Opinion
NO. CIV. 2:10-CV-01024-FCD-KJN.
January 10, 2011
MEMORANDUM AND ORDER
This matter is before the court on the motion of defendants' American Home Mortgage Servicing, Inc. ("AHMSI"), Deutsche Bank National Trust Company ("Deutsche Bank"), as trustee for American Home Mortgage Assets Trust (collectively "defendants", and Mortgage Electronic Registration Systems, Inc. ("MERS") to dismiss plaintiff Kira B. Christensen's ("plaintiff" or "Christensen") second amended complaint ("SAC") pursuant to Federal Rules of Civil Procedure 12(b)(6), 8(a), and 9(b). Plaintiff opposes the motion. For the reasons set forth below, defendants' motion is GRANTED.
Defendants also move to strike plaintiff's request for punitive damages and attorneys' fees. Because the court dismisses all claims against defendants, the court does not address the merits of their motion to strike.
Plaintiff simultaneously filed a dismissal of her fifth and sixth claims for relief for violation of Civil Code § 2923.5 and for declaratory relief against all defendants and a dismissal of all claims against defendant MERS pursuant to Federal Rule of Civil Procedure Rule 41(a)(1). See Fed.R.Civ.Proc. 41(a) (providing that a plaintiff may dismiss an action where the opposing party has not filed an answer or a motion for summary judgment); Swedberg v. Marotzke, 339 F.3d 1139 (9th Cir. 2003) (defendant's filing of a motion to dismiss, pursuant to FRCP 12(b), does not prevent the plaintiff from later filing a voluntary dismissal). Plaintiff's request to dismiss her fifth and sixth claims for relief against all defendants and to dismiss all claims against defendant MERS is granted without prejudice.
Because oral argument will not be of material assistance, the court orders these matters submitted on the briefs. E.D. Cal. L.R. 230(g).
BACKGROUND
The factual allegations in the complaint are set forth fully in the court's orders on defendants' two prior motions to dismiss.(See Mem. Order [Docket #20], filed Aug. 3, 2010; Mem. Order [Docket #27], filed Oct. 19, 2010.)
Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). On a 12(b)(6) motion to dismiss, the factual allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n. 6 (1963).
A plaintiff need not allege "`specific facts' beyond those necessary to state his claim and the grounds showing entitlement to relief." Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Ultimately, the court may not dismiss a complaint in which the plaintiff has alleged "enough facts to state a claim to relief that is plausible on its face." Iqbal, 129 S. Ct. at 1949 (citingTwombly, 550 U.S. at 570). Only where a plaintiff has failed to "nudge [his or her] claims across the line from conceivable to plausible," is the complaint properly dismissed. Id. at 1952. While the plausibility requirement is not akin to a probability requirement, it demands more than "a sheer possibility that a defendant has acted unlawfully." Id. at 1949. This plausibility inquiry is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.
The application of the equitable tolling doctrine is dependant on the plaintiff's "excusable ignorance of the limitations period" and lack of prejudice to the defendant. Santa Maria v. Pac. Bell, 202 F.3d 1170, 1176 (9th Cir. 2000). It is well established that the doctrine of equitable tolling may be applied in circumstances where a plaintiff's failure to comply with the time limitations was because he had neither actual nor constructive notice of the factual basis for the claim within the filing period. Leorna v. U.S. Dep't of State, 105 F.3d 548, 551 (9th Cir. 1997); see Santa Maria, 202 F.3d at 1178 ("If a reasonable plaintiff would not have known of the existence of a possible claim within the limitations period, then equitable tolling will serve to extend the statute of limitations for filing suit until the plaintiff can gather what information he needs."). Equitable tolling focuses on the plaintiff's excusable ignorance, but the doctrine is not available to avoid the consequences of a plaintiff's own negligence. Lehman v. U.S., 154 F.3d 1010, 1016 (9th Cir. 1998); see Scholar v. Pacific Bell, 963 F.2d 264, 268 (9th Cir. 1992) (noting that courts are generally unforgiving when a civil action is filed late due to the claimant's failure to "exercise due diligence in preserving his legal rights") (citations omitted).
Like plaintiff's original and first amended complaint, the allegations in the SAC fail to demonstrate that plaintiff was unable to obtain the information needed to file her claim until after the alleged statutory period. Plaintiff's claims are premised on the alleged wrongful conduct that took place at the origination of her loan, including, inter alia, misstating her monthly income, excessive fees, abusive prepayment penalties, kickbacks to brokers, and over valuation of the property. (See SAC ¶ 11-33). Indeed, plaintiff alleges that "she had some misgivings" and raised "concern" regarding the overstatement of her income at the time the application was filed. (Id. ¶ 28.) Plaintiff, however, simultaneously alleges that all the misrepresentations and allegations made were discovered within the past year and that she was not aware until within a year before filing the instant lawsuit that overstating her income was wrongful or that the bank did not verify her income with the IRS. (Id. ¶¶ 28, 31).
As noted by the court in its previous orders, plaintiff's allegations demonstrate that she was aware of at least some, if not all, of the alleged wrongful conduct at the time the loan originated. Plaintiff acknowledges that she "was aware at the time the application was submitted that it indicated income that was grossly incorrectly overstated." (Id. ¶ 28). Plaintiff does not allege that she did not receive documentation regarding her loan; rather, she conclusorily asserts that review was not reasonable because "the documents were of such a voluminous nature that a reasonable person would not be expected to have them independently reviewed by additional experts beyond her broker." (Id. ¶ 30).
Accepting the allegations in plaintiff's complaint as true and drawing all reasonable inferences therefrom, the court cannot conclude that plaintiff's allegations are sufficient to establish a factual predicate for plaintiff's excusable ignorance of the factual basis for her claim or the applicable statute of limitations period. Because plaintiff's allegations fail to demonstrate the applicability of equitable tolling to her facially time barred claims for relief, defendants' motion to dismiss plaintiff's complaint is GRANTED.
In her opposition, plaintiff represents that there are no further facts that can be pled in support of a theory of equitable tolling. Accordingly, the dismissal of plaintiff's first four claims for relief is granted with prejudice.
Because plaintiff did not allege sufficient facts to support the doctrine of equitable tolling, the court need not reach the other grounds for defendants' motion to dismiss.
The clerk of Court is directed to close this case.
IT IS SO ORDERED.
DATED: January 7, 2011