Maristela et al v. Paramont Realty and Financial et al

Filing 10

ORDER Granting (Doc. 8 ) Defendants' Unopposed Motion to Dismiss With Leave to Amend. Should Plaintiff choose to file a First Amended Complaint, they must do so on or before August 6, 2010. Signed by Judge Thomas J. Whelan on 7/19/2010. (cap)

-BLM Maristela et al v. Paramont Realty and Financial et al

Doc. 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 FELIX R. MARISTELA & SALOME E. MARISTELA, vs. Plaintiffs, CASE NO. 09-CV-2856 W (BLM) ORDER GRANTING DEFENDANTS' UNOPPOSED MOTION TO DISMISS (Doc. No. 8.) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

PARAMOUNT REALTY AND FINANCIAL, et al., Defendants.

On May 21, 2010, Defendants PNC Bank, National Association, doing business

23 as PNC Mortgage; and as successor by merger to National City Bank, formerly doing 24 business as National City Mortgage, and PNC Financial Services Group ("Defendants") 25 moved to dismiss Plaintiffs Felix Maristela and Salome E. Maristela ("Plaintiffs") 26 complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 8.) 27 The Court decides the matter on the papers submitted and without oral 28 argument. See S.D. Cal. Civ. R. 7.1(d.1) And for the reasons stated below, the Court
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1 GRANTS Defendants' motion to dismiss. (Doc. No. 8.) The Court also GRANTS 2 Defendants' request for judicial notice. (Doc. No. 9.) 3 4 I. 5 BACKGROUND Plaintiffs are the current title holders of a single family residence located at 8111

6 Elston Place, San Diego, California 92126. (the "Property") Defendants are a collection 7 of financial institutions that have been, or are currently, involved with the mortgage on 8 the Property. 9 On or about November 8, 2006, Plaintiffs refinanced the mortgage on the 10 Property. (Doc. No. 1 at ¶ 9.) At some point, Plaintiffs began having difficulty making 11 payments on their mortgage. On August 12, 2009, Defendants recorded a "Notice of 12 Default" on the Property.1 (Doc. No. 9, Exh 2.) A Trustee's Sale of the Property was 13 scheduled for December 31, 2009. (Id. at Exh. 3.) 14 On December 21, 2009, Plaintiffs filed the instant lawsuit, asserting eight claims 15 against the Defendants, including claims for intentional misrepresentation and 16 violations of various statutes that dictate lending practices. (Doc. No. 1.) 17 On May 21, 2010 Defendants moved to dismiss the Complaint. Defendants 18 motion was set to be heard July 19, 2010. As such, any opposition to Defendants' 19 motion was due July 2, 2010. See S.D. Cal. Civ. R. 7.1(e.3) To date, Plaintiffs have not 20 filed an opposition, nor have they requested an extension of time in which to do so. 21 22 II. 23 LEGAL STANDARD Rule 12(b)(6) allows a court to dismiss a complaint upon a finding that the

24 plaintiff has failed to state a claim upon which relief may be granted. FED. R. CIV. P. 25 12(b)(6). A 12(b)(6) motion tests a complaint's legal sufficiency. See Navarro v. Block, 26 27 Defendants request for the Court to take judicial notice of the Deed of Trust, 28 Notice of Default, and Notice of Trustee's Sale, pursuant to Federal Rule of Evidence 201, is GRANTED. (Doc. No. 9.)
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1 250 F.3d 729, 732 (9th Cir. 2001). Thus, dismissal is proper only where the plaintiff's 2 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal 3 theory. See id. "[I]f as a matter of law `it is clear that no relief could be granted under 4 any set of facts that could be proved consistent with the allegations,' a claim must be 5 dismissed . . . whether it is based on an outlandish legal theory or a close but ultimately 6 unavailing one." Neitzke v. Williams, 490 U.S. 319, 326-27 (1989) (citations omitted). 7 Thus, a court should not dismiss a complaint "unless it appears beyond doubt that 8 plaintiff can prove no set of facts in support of his claim which would entitle him to 9 relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Parks Sch. of Bus., Inc. 10 v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Finally, a court must accept the 11 complaint's allegations as true and construe the complaint in the light most favorable 12 to the plaintiff. See Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 338 (9th Cir. 1996). 13 14 III. 15 D ISCUSSION The Court grants Defendants' motions based upon Plaintiffs' failure to file an

16 opposition as required by Civil Local Rule 7.1. The Ninth Circuit has held that 17 pursuant to a local rule a district court may properly grant a motion to dismiss for failure 18 to respond. See generally Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.1995) (affirming 19 dismissal for failure to file timely opposition papers where plaintiff had notice of the 20 motion and ample time to respond); accord Martinez v. Stanford, 323 F.3d 1178, 1183 21 (9th Cir. 2003)(affirming Ghazali's applicability to Rule 12(b) motions). 22 Moreover, Civil Local Rule 7.1(f.3.c) expressly provides that "[i]f an opposing 23 party fails to file papers in the manner required by Local Rule 7.1(e)(2), that failure may 24 constitute a consent to the granting of that motion or other ruling by the court." Here, 25 Plaintiffs has failed to oppose or to request an extension of time in which to do so. 26 Relying on Civil Local Rule 7.1(f.3.c), the Court interprets Plaintiffs' failure to oppose 27 Defendants' motion to dismiss as a consent to its merits. 28 Plaintiffs, however, have never been afforded an opportunity to amend their
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1 Complaint. Accordingly, the Court will GRANT Defendants' motion WITH LEAVE 2 TO AMEND. Should Plaintiffs choose to file a First Amended Complaint, they must 3 do so on or before August 6, 2010. 4 5 6 7 DATED: July 19, 2010 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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IT IS SO ORDERED.

Hon. Thomas J. Whelan United States District Judge