Tirado v. US Bank National Association et al

Filing 21

ORDER GRANTING MOTION TO DISMISS WITHOUT LEAVE TO AMEND re 16 . Signed by Judge Ronald M. Whyte on March 2, 2012. (rmwlc2, COURT STAFF) (Filed on 3/2/2012)

1
2
3
4

E-FILED on

3/2/12

5
6
7
IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10
United States District Court
For the Northern District of California

8

SAN JOSE DIVISION

11
12

DON TIRADO,

13
14
15
16
17

No. 12-cv-00122-RMW

Plaintiffs,
v.
US BANK NATIONAL ASSOCIATION AS A
CALIFORNIA CORPORATION, FCI
LENDER SERVICES Inc., AGENT, AS A
CALIFORNIA CORPORATION, DSL
SERVICE COMPANY, TRUSTEE, AS A
CALIFORNIA CORPORATION,

18

ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS WITHOUT LEAVE
TO AMEND

[Re Docket No. 16]

And Does 1-10,
19
Defendants.
20
21

Plaintiff filed the instant action alleging claims related to the foreclosure of a residential

22

property. Defendants moved to dismiss for failure to state a claim. Plaintiff did not oppose the

23

motion, nor did he appear at oral argument. Having considered the papers submitted, and for the

24

reasons set forth below, the court grants defendants' motion to dismiss without leave to amend.

25

I. BACKGROUND

26

On June 13, 2007, plaintiff obtained a loan in the sum of $1,000,000 (“Subject Loan”)

27

secured by a deed of trust (“DOT”) encumbering residential property in Saratoga, California

28

(“Subject Property”). See Dkt. No. 17 (RJN), Ex. 1. The DOT identifies defendant Downey Savings
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITHOUT LEAVE TO AMEND—No. 12-cv-00122-RMW
CVH

1

and Loan Association, F.A. (“Downey Savings”) as the lender and beneficiary, defendant DSL

2

Service Company (“DSL”) as the trustee, and plaintiff as borrower. See id. On November 21, 2008,

3

the Office of Thrift Supervision closed Downey Savings and appointed the Federal Deposit

4

Insurance Corporation (“FDIC-R”) as receiver for that financial institution. Concurrent with this

5

appointment, defendant U.S. Bank acquired nearly all of Downey Savings' assets from the FDIC-R.1

6

Downey Savings sent a Notice of Intent to Foreclose to plaintiff on April 6, 2009. See Dkt.

7

No. 1, Ex. 1 (compl). One week later, U.S. Bank sent plaintiff a letter stating, “This is to

8

acknowledge receipt of your correspondence requesting assistance with your loan.” See id. On May

9

11, 2009, plaintiff received a Notice of Default. See id. Subsequently, a Notice of Default and

United States District Court
For the Northern District of California

10

Election to Sell issued in connection with the DOT and was recorded on May 12, 2009 with the

11

Santa Clara County Recorder’s Office. See Dkt. No. 17 (RJN), Ex. 2. A Notice of Trustee’s Sale

12

(“NOTS”) was recorded on August 18, 2009. See Dkt. No. 17 (RJN), Ex. 3. A second NOTS was

13

recorded on December 6, 2010. See id., Ex. 4. According to the NOTS, the amount of the unpaid

14

balance and other charges under the DOT was $1,153,215.93. See id.

15

The Subject Property was sold at a trustee’s sale on January 4, 2011, and a Trustee’s Deed

16

Upon Sale (“TDUS”) was recorded on January 14, 2011. See id., Ex. 5. The TDUS indicates that

17

U.S. Bank, as successor in interest to the Federal Deposit Insurance Corporation as receiver for

18

Downey Savings, took record title to the Subject Property. See id.

19

On December 21, 2010 plaintiff filed a pro se complaint in Santa Clara County Superior

20

Court, Case No. 1-10-CV-190289, asserting seventeen different claims arising out of the foreclosure

21

of the Subject Property. See Dkt. No. 17 (RJN), Ex. 6. The action was removed to the United States

22

District Court for the Northern District of California, Case No. 5:11-CV-00322-EJD (“Previous

23

Action”). See Dkt. No. 17 (RJN), Ex. 7. On January 28, 2011 defendants filed a motion to dismiss

24

the complaint. See id. On April 11, 2011, and again on June 24, 2011, plaintiff filed a motion for

25

leave to file amended complaint. See id. On June 29, 2011, the court denied plaintiff’s motion for

26

leave to file amended complaint. See id. On December 5, 2011, prior to the court’s ruling on

27

This information is taken from the FDIC-R’s official website. The court takes judicial notice of the
information contained on such websites pursuant to Fed. R. Evid. 201(b)(2). See Higginbottom v. U.S.
Bancorp, No. 10-CV-04593-LHK, 2011 WL 1558681, at *3 n. 6 (N.D. Cal. Apr. 25, 2011) (taking
judicial notice of information from the FDIC’s official website).

28

1

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITHOUT LEAVE TO AMEND—No. 12-cv-00122-RMW
CVH
2

1

defendants’ unopposed motion to dismiss, the parties agreed to a stipulated dismissal with prejudice

2

(“Joint Stipulation”). See Dkt. No. 17 (RJN), Ex. 8. On December 5, 2011, the court executed an

3

order dismissing the case. See Dkt. No. (RJN), Ex. 9.

4

Plaintiff, again proceeding pro se, filed the instant action, Case No. 111CV214226, on

5

December 5, 2011 in San Jose Superior Court. See Dkt. No. 1, Ex. 1. The complaint seeks a

6

Temporary Restraining Order preventing sale of the Subject Property, and essentially alleges claims

7

for fraud and wrongful foreclosure. See id. The action was once again removed to the United States

8

District Court for the Northern District of California, on January 6, 2012. See id. On January 27,

9

2012 defendants filed a motion to dismiss, along with a supporting request for judicial notice.2 See

United States District Court
For the Northern District of California

10

Dkt. Nos. 16-17. Plaintiff filed no opposition.

11
12

II. DISCUSSION
Res Judicata

13

Defendants first argue that the instant action is barred by res judicata. The defense of res

14

judicata can be raised by a Rule 12(b)(6) motion “when all relevant facts are shown by the court’s

15

own records, of which the court takes notice.” Ezike v. Mittal, No. C 08-1867 SBA, 2009 WL

16

506867, at *6 (N.D. Cal. Feb. 27, 2009) (quoting Day v. Moscow, 955 F. 2d. 807, 811 (2nd Cir.

17

1992); Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) (affirming dismissal pursuant to Rule

18

12(b)(6) on grounds of res judicata because the district court did not consider any disputed facts);

19

MGIC Indem. Co. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986) (taking judicial notice of court

20

documents, i.e., a motion to dismiss filed in a court action).

21
22

“Res judicata, also known as claim preclusion, bars litigation in a subsequent action of any
claims that were raised or could have been raised in the prior action.” Western Radio Servs. Co. v.

23
Pursuant to defendant’s request, the court takes judicial notice of the following documents: (1) the
Deed of Trust, recorded on June 22, 2007; (2) the Notice of Default and Election to Sell, recorded on
May 12, 2009; (3) the Notice of Trustee’s Sale, recorded on August 18, 2009; (4) the Notice of Trustee’s
Sale, recorded on December 6, 2010; (5) the Trustee’s Deed Upon Sale, recorded on January 14, 2011;
(6) the civil complaint for Case No. 1-10-CV-190289, filed by plaintiff on or around December 21,
2010; (7) the docket for Case No. 5:11-CV-00322-EJD; (8) the Stipulation to Dismiss Complaint with
Prejudice for Case No. 5:11-CV-00322-EJD, filed December 5, 2011; and (9) the Stipulation and Order
to Dismiss Case with Prejudice for Case No. 5:11-CV-00322-EJD, executed and filed on December 6,
2011. See, e.g., Western Federal Sav. & Loan Ass'n v. Heflin Corp., 797 F. Supp. 790, 792 (N.D. Cal.
1992) (courts may take judicial notice of publicly recorded documents, including deeds of trust and
court filings).
2

24
25
26
27
28

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITHOUT LEAVE TO AMEND—No. 12-cv-00122-RMW
CVH
3

1

Glickman, 123 F.3d 1189, 1192 (9th. Cir. 1997). “The doctrine is applicable whenever there is (1) an

2

identity of claims, (2) a final judgment on the merits, and (3) identity or privity between parties.”

3

Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708 (9th Cir. 2001) (citing Western Radio

4

Servs. Co., 123 F.3d at 1192).

5

In this case, the parties to both the instant action and previous federal action are identical. In

6

addition the court finds an identity of claims. “The central criterion in determining whether there is

7

an identity of claims between the first and second adjudications is ‘whether the two suits arise out of

8

the same transactional nucleus of facts.’” Frank v. United Airlines, Inc., 216 F.3d 845, 851 (9th Cir.

9

2000) (quoting Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th. Cir. 1982)).

United States District Court
For the Northern District of California

10

Although the previous action alleged seventeen claims while the instant action alleges, in essence,

11

only fraud and wrongful foreclosure, both actions “clearly arise from the same transactional nucleus

12

of facts” as those asserted in the previous action. Id. Both sets of claims are predicated on the

13

foreclosure of the Subject Property and allege misconduct by defendants related to either their

14

issuance of the subject loan or the manner in which they attempted to serve notice of foreclosure. In

15

fact, the argument that defendants have failed to show proof of standing was made verbatim in the

16

previous action. Although the current action also alleges actual fraud, and wrongful foreclosure,

17

these are “grounds for recovery which could have been asserted, whether they were or not, in a prior

18

suit between the same parties … on the same cause of action. Owens v. Kaiser Foundation Health

19

Plan, Inc., 244 F.3d 708, 714 (9th Cir. 2001) (citing Gregory v. Widnall, 153 F.3d 1071, 1074 (9th

20

Cir. 1998)). As defendants correctly note, “these claims all relate to the foreclosure proceedings on

21

the same property at issue in the previous matter.” See Dkt. No. 16.

22

Additionally, none of the events underlying the instant claims took place after entry of

23

judgment in the previous action. A claim arising after an entry of judgment is barred unless it is

24

based on facts that occurred after the final judgment. See Frank, 216 F.3d 851 (citing Lawlor v.

25

Nat’l Screen Serv. Corp., 349 U.S. 322, 328 (1955)). In Frank, the court allowed additional Title VII

26

claims asserted by the plaintiffs in a second action because they were based on continued policies of

27

discrimination that remained in place after the initial entry of judgment. By contrast, plaintiff here

28
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITHOUT LEAVE TO AMEND—No. 12-cv-00122-RMW
CVH
4

1

filed the present action on December 5, 2011, the very day the stipulation order in the previous

2

action was signed, demonstrating that there is no new factual basis for plaintiff’s claims.

3

Moreover, res judicata is appropriate although plaintiff now seeks a different remedy.

4

Plaintiff’s present action seeks a temporary restraining order whereas the previous suit requested the

5

court to release security interests in plaintiff’s property and award “treble damages.” See Dkt. No. 17

6

(RJN), Ex. 6. Res judicata bars plaintiff’s claim “even though plaintiff is prepared in the second

7

action to seek remedies or forms of relief not demanded in the first action.” Restatement (Second) of

8

Judgments § 24 (1982); see also Feminist Women’s Health Ctr. v. Codispoti, 63 F.3d 863, 868 (9th

9

Cir. 1995). In Codispoti, the court barred a second claim seeking treble damages under RICO for the

United States District Court
For the Northern District of California

10

same conduct that had prompted an earlier action seeking an injunction. The court is faced with

11

almost the same situation here. Plaintiff has filed a second action that seeks a different form of relief

12

based upon the same foreclosure proceedings, the same loan, and the same conduct on behalf of

13

defendants. Because the claims and form of remedy in the present action could have been raised in

14

the earlier action, res judicata bars plaintiff’s case.

15

Lastly, the stipulation, signed by both plaintiff and defendants, followed by the dismissal

16

with prejudice constitutes a valid final judgment on the merits for purposes of res judicata. Fed. R.

17

Civ. P 41 (a)(1)(B) (stipulation of dismissal “operates as an adjudication on the merits”);

18

Headwaters, Inc. v. U.S. Forest Service, 399 F.3d 1047, 1052 (9th Cir. 2005); (citing Concha v.

19

London, 62 F.3d 1493, 1507-08 (9th Cir. 1995) (“We have held that a stipulated dismissal of an

20

action with prejudice in a federal district court generally constitutes a final judgment on the merits

21

and precludes a party from reasserting the same claims in a subsequent action in the same court.”).

22

Accordingly, because the complaint is barred by res judicata, defendants’ motion to dismiss

23

is granted. Given that any amendment would be futile because plaintiff’s complaint clearly arises

24

from the same nucleus of facts as the previous action, dismissal is granted without leave to amend.

25
26
27

III. ORDER
For the foregoing reasons, the court grants defendants' motion to dismiss without leave to
amend. The clerk shall close the file.

28
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITHOUT LEAVE TO AMEND—No. 12-cv-00122-RMW
CVH
5

1
2
3

DATED:

March 2, 2012
RONALD M. WHYTE
United States District Judge

4
5
6
7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITHOUT LEAVE TO AMEND—No. 12-cv-00122-RMW
CVH
6