1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 JOSE O’COIRBHIN, 7 Case No. 25-cv-00333-SK Plaintiff, 8 v. ORDER ON MOTION TO DISMISS 9 SECOND AMENDED COMPLAINT PNC BANK, NATIONAL ASSOCIATION, 10 Regarding Docket No. 26 Defendant. 11
12 This matter comes before the Court upon consideration of the motion to dismiss filed by 13 Defendant PNC Bank, National Association (erroneously sued as the PNC Financial Services 14 Group, Inc dba PNC Bank, Incorporated in Pennsylvania) (“Defendant”). Having carefully 15 considered the parties’ papers, relevant legal authority, the record in the case, and having had the 16 benefit of oral argument, the Court hereby GRANTS Defendant’s motion for the reasons set forth 17 below. 18 BACKGROUND 19 Plaintiff Jose O’Coirbhin brings this action to contest the foreclosure sale on the property 20 located at 1588 Quesada Avenue in San Francisco, California (the “Property”). This motion 21 concerns his Second Amended Complaint (“SAC”). As this is Plaintiff’s third complaint and 22 Defendant’s third motion to dismiss, the Court will not describe the facts again other than to state 23 that Plaintiff did not add any new substantive factual allegations in his SAC. 24 In his SAC, Plaintiff now limits his claims to two – one for wrongful foreclosure and one 25 for injunctive relief. Despite the fact that the Court denied Defendant’s previous motion to 26 dismiss Plaintiff’s initial complaint as to Plaintiff’s claim for breach of contract to the extent it 27 was based on Defendant’s foreclosure, Plaintiff failed to include this breach of contract claim in 1 In the Order granting the motion to dismiss Plaintiff’s First Amended Complaint (“FAC”), 2 the Court provided Plaintiff with leave to amend for his claims for breach of contract to the extent 3 it was based on Defendant’s conduct with respect to the automatic payment program, breach of the 4 covenant of good faith and fair dealing claim, misrepresentation, and wrongful foreclosure. (Dkt. 5 No. 24.) The Court explained that it had previously explained the necessary information that was 6 missing from Plaintiff’s Complaint. (Dkt. No. 24 (citing Dkt. No. 13).) The Court further noted: 7 Unfortunately, Plaintiff did not appear to review that Order carefully to cure the defects. Additionally, in light of Plaintiff’s failure to do 8 so, the Court provided a Notice of Questions in advance of the hearing to highlight the necessary allegations that were missing from 9 Plaintiff’s FAC. Unfortunately, it appears as though Plaintiff still did not carefully review the Court’s Notice of Questions and was 10 unprepared at the hearing. 11 (Id.) Because the carelessness appeared to be that of counsel, in order to avoid punishing Plaintiff 12 for his Counsel’s errors, the Court provided Plaintiff with one final opportunity to amend his 13 claims. (Id. (emphasis added).) 14 In addition, the Court had earlier admonished Plaintiff and Plaintiff’s counsel that the 15 Court would not overlook this type of carelessness again and directed Plaintiff’s counsel to 16 provide a copy of the Order to Plaintiff and to file a proof of service by no later than May 12, 17 2025. (Id.) Plaintiff’s counsel failed to file the requisite proof of service. After the Court posted a 18 notice of questions and asked about Plaintiff’s failure to do so, Plaintiff’s counsel filed a proof of 19 service stating that he served Plaintiff with a copy of the Order on May 22, 2025, ten days after the 20 Court’s deadline. (Dkt. Nos. 30, 32.) 21 ANALYSIS 22 A. Applicable Legal Standard on Motion to Dismiss. 23 A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the 24 pleadings fail to state a claim upon which relief can be granted. On a motion to dismiss under 25 Rule 12(b)(6), the Court construes the allegations in the complaint in the light most favorable to 26 the non-moving party and takes as true all material allegations in the complaint. Sanders v. 27 Kennedy, 794 F.2d 478, 481 (9th Cir. 1986). Even under the liberal pleading standard of Rule 1 more than labels and conclusions, and a formulaic recitation of the elements of a cause of action 2 will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 3 478 U.S. 265, 286 (1986)). Rather, a plaintiff must instead allege “enough facts to state a claim to 4 relief that is plausible on its face.” Id. at 570. 5 “The plausibility standard is not akin to a probability requirement, but it asks for more than 6 a sheer possibility that a defendant has acted unlawfully. . . . When a complaint pleads facts that 7 are merely consistent with a defendant’s liability, it stops short of the line between possibility and 8 plausibility of entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 9 Twombly, 550 U.S. at 557) (internal quotation marks omitted). If the allegations are insufficient to 10 state a claim, a court should grant leave to amend, unless amendment would be futile. See, e.g. 11 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990); Cook, Perkiss & Lieche, Inc. v. N. 12 Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). 13 As a general rule, “a district court may not consider material beyond the pleadings in ruling 14 on a Rule 12(b)(6) motion.” Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994), overruled on 15 other grounds, Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) (citation omitted). 16 However, documents subject to judicial notice, such as matters of public record, may be 17 considered on a motion to dismiss. See Harris v. Cnty of Orange, 682 F.3d 1126, 1132 (9th Cir. 18 2011). In doing so, the Court does not convert a motion to dismiss to one for summary judgment. 19 See Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986), overruled on other 20 grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991). “The court need 21 not . . . accept as true allegations that contradict matters properly subject to judicial notice . . . .” 22 Sprewell v. Golden State Warriors, 266 F. 3d 979, 988 (9th Cir. 2001). 23 B. Defendant’s Motion to Dismiss. 24 The Court will address each of Plaintiff’s claims in turn. 25 1. Breach of Contract. 26 The Court held that Plaintiff sufficiently stated a claim for breach of contract based on 27 Defendant’s foreclosure and denied Defendant’s motion as to Plaintiff’s claim for breach of 1 No. 13.) However, the Court dismissed Plaintiff’s claim for breach of contract to the extent it was 2 premised on Defendant’s automatic payment program. (Dkt. Nos. 13, 24.) Although the Court 3 provided Plaintiff with leave to amend this claim, he did not elect to do so and did not continue to 4 bring this claim for breach of contract at all, even on the grounds that the Court held was 5 sufficiently pled. At the hearing, Plaintiff requested an opportunity to replead the one claim the 6 Court had found sufficiently pled. So as to not harm Plaintiff from his counsel’s carelessness, the 7 Court will provide one final opportunity to amend.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 JOSE O’COIRBHIN, 7 Case No. 25-cv-00333-SK Plaintiff, 8 v. ORDER ON MOTION TO DISMISS 9 SECOND AMENDED COMPLAINT PNC BANK, NATIONAL ASSOCIATION, 10 Regarding Docket No. 26 Defendant. 11
12 This matter comes before the Court upon consideration of the motion to dismiss filed by 13 Defendant PNC Bank, National Association (erroneously sued as the PNC Financial Services 14 Group, Inc dba PNC Bank, Incorporated in Pennsylvania) (“Defendant”). Having carefully 15 considered the parties’ papers, relevant legal authority, the record in the case, and having had the 16 benefit of oral argument, the Court hereby GRANTS Defendant’s motion for the reasons set forth 17 below. 18 BACKGROUND 19 Plaintiff Jose O’Coirbhin brings this action to contest the foreclosure sale on the property 20 located at 1588 Quesada Avenue in San Francisco, California (the “Property”). This motion 21 concerns his Second Amended Complaint (“SAC”). As this is Plaintiff’s third complaint and 22 Defendant’s third motion to dismiss, the Court will not describe the facts again other than to state 23 that Plaintiff did not add any new substantive factual allegations in his SAC. 24 In his SAC, Plaintiff now limits his claims to two – one for wrongful foreclosure and one 25 for injunctive relief. Despite the fact that the Court denied Defendant’s previous motion to 26 dismiss Plaintiff’s initial complaint as to Plaintiff’s claim for breach of contract to the extent it 27 was based on Defendant’s foreclosure, Plaintiff failed to include this breach of contract claim in 1 In the Order granting the motion to dismiss Plaintiff’s First Amended Complaint (“FAC”), 2 the Court provided Plaintiff with leave to amend for his claims for breach of contract to the extent 3 it was based on Defendant’s conduct with respect to the automatic payment program, breach of the 4 covenant of good faith and fair dealing claim, misrepresentation, and wrongful foreclosure. (Dkt. 5 No. 24.) The Court explained that it had previously explained the necessary information that was 6 missing from Plaintiff’s Complaint. (Dkt. No. 24 (citing Dkt. No. 13).) The Court further noted: 7 Unfortunately, Plaintiff did not appear to review that Order carefully to cure the defects. Additionally, in light of Plaintiff’s failure to do 8 so, the Court provided a Notice of Questions in advance of the hearing to highlight the necessary allegations that were missing from 9 Plaintiff’s FAC. Unfortunately, it appears as though Plaintiff still did not carefully review the Court’s Notice of Questions and was 10 unprepared at the hearing. 11 (Id.) Because the carelessness appeared to be that of counsel, in order to avoid punishing Plaintiff 12 for his Counsel’s errors, the Court provided Plaintiff with one final opportunity to amend his 13 claims. (Id. (emphasis added).) 14 In addition, the Court had earlier admonished Plaintiff and Plaintiff’s counsel that the 15 Court would not overlook this type of carelessness again and directed Plaintiff’s counsel to 16 provide a copy of the Order to Plaintiff and to file a proof of service by no later than May 12, 17 2025. (Id.) Plaintiff’s counsel failed to file the requisite proof of service. After the Court posted a 18 notice of questions and asked about Plaintiff’s failure to do so, Plaintiff’s counsel filed a proof of 19 service stating that he served Plaintiff with a copy of the Order on May 22, 2025, ten days after the 20 Court’s deadline. (Dkt. Nos. 30, 32.) 21 ANALYSIS 22 A. Applicable Legal Standard on Motion to Dismiss. 23 A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the 24 pleadings fail to state a claim upon which relief can be granted. On a motion to dismiss under 25 Rule 12(b)(6), the Court construes the allegations in the complaint in the light most favorable to 26 the non-moving party and takes as true all material allegations in the complaint. Sanders v. 27 Kennedy, 794 F.2d 478, 481 (9th Cir. 1986). Even under the liberal pleading standard of Rule 1 more than labels and conclusions, and a formulaic recitation of the elements of a cause of action 2 will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 3 478 U.S. 265, 286 (1986)). Rather, a plaintiff must instead allege “enough facts to state a claim to 4 relief that is plausible on its face.” Id. at 570. 5 “The plausibility standard is not akin to a probability requirement, but it asks for more than 6 a sheer possibility that a defendant has acted unlawfully. . . . When a complaint pleads facts that 7 are merely consistent with a defendant’s liability, it stops short of the line between possibility and 8 plausibility of entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 9 Twombly, 550 U.S. at 557) (internal quotation marks omitted). If the allegations are insufficient to 10 state a claim, a court should grant leave to amend, unless amendment would be futile. See, e.g. 11 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990); Cook, Perkiss & Lieche, Inc. v. N. 12 Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). 13 As a general rule, “a district court may not consider material beyond the pleadings in ruling 14 on a Rule 12(b)(6) motion.” Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994), overruled on 15 other grounds, Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) (citation omitted). 16 However, documents subject to judicial notice, such as matters of public record, may be 17 considered on a motion to dismiss. See Harris v. Cnty of Orange, 682 F.3d 1126, 1132 (9th Cir. 18 2011). In doing so, the Court does not convert a motion to dismiss to one for summary judgment. 19 See Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986), overruled on other 20 grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991). “The court need 21 not . . . accept as true allegations that contradict matters properly subject to judicial notice . . . .” 22 Sprewell v. Golden State Warriors, 266 F. 3d 979, 988 (9th Cir. 2001). 23 B. Defendant’s Motion to Dismiss. 24 The Court will address each of Plaintiff’s claims in turn. 25 1. Breach of Contract. 26 The Court held that Plaintiff sufficiently stated a claim for breach of contract based on 27 Defendant’s foreclosure and denied Defendant’s motion as to Plaintiff’s claim for breach of 1 No. 13.) However, the Court dismissed Plaintiff’s claim for breach of contract to the extent it was 2 premised on Defendant’s automatic payment program. (Dkt. Nos. 13, 24.) Although the Court 3 provided Plaintiff with leave to amend this claim, he did not elect to do so and did not continue to 4 bring this claim for breach of contract at all, even on the grounds that the Court held was 5 sufficiently pled. At the hearing, Plaintiff requested an opportunity to replead the one claim the 6 Court had found sufficiently pled. So as to not harm Plaintiff from his counsel’s carelessness, the 7 Court will provide one final opportunity to amend. Plaintiff may replead his breach of contract 8 claim, but only to the extent it is based on Defendant’s precluding Plaintiff from curing his 9 default. The Court is not providing leave to allege a breach of contract claim based on the 10 automatic payment program. 11 2. Breach of the Implied Covenant of Good Faith and Fair Dealing. 12 “[U]nder California law, all contracts have an implied covenant of good faith and fair 13 dealing.” In re Vylene Enterprises, Inc., 90 F.3d 1472, 1477 (9th Cir. 1996) (citing Harm v. 14 Frasher, 181 Cal. App. 2d 405, 417 (1960)). The covenant “exists merely to prevent one 15 contracting party from unfairly frustrating the other party’s right to receive the benefits of the 16 agreement actually made.” Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 349 (2000). However, the 17 covenant “cannot impose substantive duties or limits on the contracting parties beyond those 18 incorporated in the specific terms of their agreement.” Id. Thus, to the extent a plaintiff seeks to 19 impose limits “beyond those to which the parties actually agreed, the [implied covenant] claim is 20 invalid. To the extent the implied covenant claim seeks simply to invoke terms to which the 21 parties did agree, it is superfluous.” Id. at 352 (emphasis in original); see also Careau & Co. v. 22 Sec. Pac. Bus. Credit, Inc., 222 Cal. App. 3d 1371, 1395 (1990) (holding that if the allegations 23 supporting a claim for breach of the implied covenant of good faith and fair dealing “do not go 24 beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek 25 the same damages or other relief already claimed in a companion contract cause of action, they 26 may be disregarded as superfluous as no additional claim is actually stated.”). “The central 27 teaching of Guz is that in most cases, a claim for breach of the implied covenant can add nothing 1 1047 (N.D. Cal. 2004). 2 A plaintiff may bring a claim for breach of the implied covenant where the plaintiff alleges 3 that the defendant acted in bad faith to frustrate the contract’s benefits. See Guz, 24 Cal. 4th at 4 353 n. 18 (acknowledging that “the covenant might be violated if termination of an at-will 5 employee was a mere pretext to cheat the worker out of another contract benefit to which the 6 employee was clearly entitled . . . .”); see also McCollum v. XCare.net, Inc., 212 F. Supp. 2d 1142, 7 1153 (N.D. Cal. 2002) (applying California law). It is well established that “the scope of conduct 8 prohibited by the covenant of good faith is circumscribed by the purposes and express terms of the 9 contract.” Carma Developers (Cal.), Inc. v. Marathon Dev. California, Inc., 2 Cal. 4th 342, 373 10 (1992). “The implied covenant of good faith and fair dealing rests upon the existence of some 11 specific contractual obligation.” Racine & Laramie, Ltd. v. Dep’t of Parks & Recreation, 11 Cal. 12 App. 4th 1026, 1031 (1992) (citing Foley v. Interactive Data Corp., 47 Cal. 3d 654, 683-84, 689- 13 90 (1988)). “The covenant of good faith is read into contracts in order to protect the express 14 covenants or promises of the contract, not to protect some general public policy interest not 15 directly tied to the contract’s purpose.” Foley, 47 Cal. 3d at 690. 16 As the Court explained in the Order granting Defendant’s first and second motions to 17 dismiss, the basis for Plaintiff’s breach of the covenant of good faith and fair dealing claim was 18 unclear. The Court explained that if Plaintiff amended this claim, he: 19 should take care to explain on what specific contract terms it is based and how he alleges that Defendant acted in bad faith to frustrate the 20 contract’s benefits. In addition, to the extent the claim is premised on an oral agreement or promise, Plaintiff should take care to allege facts 21 sufficient to show, if true, why the statute of frauds would not preclude such a claim. 22 (Dkt. Nos. 13, 24.) Additionally, in the questions posted for the hearing on Defendant’s motion to 23 dismiss Plaintiff’s FAC, Plaintiff’s FAC still failed to identify the specific contract terms upon 24 which he relies for this claim. The Court explained that while Plaintiff argued at the hearing that 25 he was relying on the underlying loan agreement, he still failed to identify any actual terms within 26 the agreement on which he alleged to support his claim for breach of the covenant of good faith 27 and fair dealing. (Dkt. No. 24.) Thus, the Court again dismissed Plaintiff’s claim for breach of 1 the covenant of good faith and fair dealing claim and provided one more opportunity to amend this 2 claim. (Id.) Again, “the Court admonishe[d] Plaintiff that he shall clearly allege the specific 3 contract terms upon which he relies for this claim and how Defendant acted in bad faith to 4 frustrate the benefits of these terms. (Id. (emphasis added).) 5 Instead of alleging the specific contract terms on which Plaintiff relies to allege a breach of 6 the implied covenant of good faith and fair dealing, Plaintiff dropped this claim and added a 7 conclusory statement in his wrongful foreclosure claim that Defendant violated the “covenant of 8 good faith and fair dealing implied in all contracts, including Plaintiff’s mortgage and forbearance 9 agreement, by making false promises, failing to deliver critical documents, and ignoring Plaintiff’s 10 repeated attempts to reinstate the loan.” (Dkt. No. 25 (SAC) at ¶ 24.) This conclusory allegation 11 fails to address the defects the Court has repeatedly emphasized. Again, Plaintiff fails to identify 12 any contract terms on which he relies for the breach of the implied covenant. Including the 13 alleged breach of the implied covenant within his wrongful foreclosure claim does not lessen his 14 burden to state a claim premised on the implied covenant. Because, as he was clearly admonished, 15 this was Plaintiff’s last opportunity to amend his allegations to support this claim, the Court 16 dismisses his wrongful foreclosure claim to the extent it is premised on a breach of the implied 17 covenant of good faith and fair dealing and will not provide leave to amend. 18 3. Fraudulent Misrepresentation. 19 “The elements of a cause of action for intentional misrepresentation are (1) a 20 misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another’s reliance 21 on the misrepresentation, (4) actual and justifiable reliance, and (5) resulting damage.” Daniels v. 22 Select Portfolio Serv., Inc., 246 Cal. App. 4th 1150, 1166 (2016). Moreover, where, as here, a 23 plaintiff alleges fraud, Federal Rule of Civil Procedure 9(b) (“Rule 9(b)”) requires the plaintiff to 24 state with particularity the circumstances constituting fraud, including the “who, what, when, 25 where, and how” of the charged misconduct. See Vess v. Ciba Geigy Corp. USA, 317 F.3d 1097, 26 1106 (9th Cir. 2003); In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1547-49 (9th Cir. 1994). The 27 particularity requirement is satisfied if the complaint “identifies the circumstances constituting 1 Package Exp., Inc., 885 F.2d 531, 540 (9th Cir. 1989); see also Vess, 317 F.3d at 1106 (“Rule 9(b) 2 demands that, when averments of fraud are made, the circumstances constituting the alleged fraud 3 be specific enough to give defendants notice of the particular misconduct ... so that they can 4 defend against the charge and not just deny that they have done anything wrong.”) (internal 5 quotation marks and citations omitted). Additionally, when a party pleads fraud against a 6 corporation, as Plaintiff does here, the party must allege “the names of the persons who made the 7 allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said 8 or wrote, and when it was said or written.” Tarmann v. State Farm Mut. Auto. Ins. Co., 2 Cal. 9 App. 4th 153, 157 (1991); see also Dubin v. BAC Home Loans Servicing, 2011 WL 794995, *5-6 10 (N.D. Cal. Mar. 1, 2011). 11 The Court granted Defendant’s first motion to dismiss this claim because Plaintiff only 12 vaguely alleged that Defendant made “various fraudulent and intentional misrepresentations” but 13 failed to identify what the statements were, when they were made, and who made them. 14 Moreover, Plaintiff failed to allege how he relied on any alleged misrepresentations to his 15 detriment. (Dkt. No. 13.) In his FAC, Plaintiff again alleged that “Defendants, and each of them, 16 made various fraudulent and intentional misrepresentations of fact”. (Dkt. No. 14 at ¶ 41.) 17 Although the Court gave notice to the parties before the hearing on the motion to dismiss the FAC, 18 Plaintiff was still unable to clearly state what the specific statements were, how they were false, 19 who made them, and when. The Court thus granted the motion to dismiss his misrepresentation 20 claim in Plaintiff’s FAC and noted that it was providing “Plaintiff with one more opportunity to 21 amend this claim.” (Dkt. No. 24 (emphasis added).) The Court, again, admonished Plaintiff to 22 “clearly allege the specific statements, how they were false, who made them, when they were 23 made, and how Plaintiff relied to his detriment on such statement or statements.” (Id.) 24 Similar to the breach of the claim for implied covenant of good faith and fair dealing, 25 Plaintiff elected not to amend this claim. Instead, Plaintiff inserted a phrase that Defendant made 26 false promises in his wrongful foreclosure claim. (Dkt. No. 25 at ¶ 24.) Again, Plaintiff failed to 27 cure the defects repeatedly highlighted by the Court. As noted above, including an allegation 1 sufficiently state a claim premised on a misrepresentation. Because, as he was clearly 2 admonished, this was Plaintiff’s last opportunity to amend his allegations to support this claim, the 3 Court dismisses his wrongful foreclosure claim to the extent it is premised on any 4 misrepresentation or false promise and will not provide leave to amend. 5 4. Wrongful Foreclosure. 6 To state a claim for wrongful foreclosure, a plaintiff must allege the following: “(1) the 7 trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property 8 pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale . . . was 9 prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the 10 trustor or mortgagor tendered the amount of the secured indebtedness or was excused from 11 tendering.” Sciarratta v. U.S. Bank Nat’l Ass’n, 247 Cal. App. 4th 552, 561-62 (2016) (quoting 12 Miles v. Deutsche Bank Nat’l Tr. Co., 236 Cal. App. 4th 394, 408 (2015)). 13 As the Court previously explained, to bring a claim for wrongful foreclosure under the 14 HBOR, a plaintiff must allege, pursuant to California Civil Code § 2924.15, that the property at 15 issue is “owner-occupied”, meaning that it is the borrower’s principal residence. Warren v. PNC 16 Bank Nat’l Ass’n, 671 F. Supp. 3d 1035, 1042 (N.D. Cal. 2023) (citing Cal. Civ. Code § 2924.15); 17 see also Mulato v. Wells Fargo Bank, N.A., 76 F. Supp. 3d 929, 957 (N.D. Cal. 2014). California 18 Civil Code § 2924.15 provides, in pertinent part, “paragraph (5) of subdivision (a) of Section 2924 19 and Sections 2923.5, 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, and 2924.18 shall apply 20 only to a first lien mortgage or deed of trust that is secured by owner-occupied residential real 21 property[.]” 22 In addition to Plaintiff’s references to the covenant of good faith and fair dealing and to 23 false promises addressed above, Plaintiff also relies on alleged violations of California Civil Code 24 §§ 2923.5, 2924b, and 2924c to support his wrongful foreclosure claim. California Civil Code § 25 2924.15 specifically identifies California Civil Code § 2923.5 as one of the sections that only 26 applies “to a first lien mortgage or deed of trust that is secured by owner-occupied residential real 27 property.” Cal. Civ. Code § 2924.15. In light of Plaintiff’s allegations that he was renting the 1 precluded on bringing a wrongful foreclosure claim premised on California Civil Code § 2923.5. 2 In terms of California Civil Code § 2924b, this statute requires that, within ten business 3 days after any notice of default is recorded, the mortgagee, trustee, or other person authorized to 4 record the notice of default or the notice of sale must mail a copy of the notice of default by 5 registered or certified mail to the trustor or mortgagor. Cal. Civ. Code § 2924b(b)(1). The Notice 6 of Default was recorded on November 23, 2023. (Dkt. No. 27 (Defendant’s Request for Judicial 7 Notice), Ex. C.) Plaintiff attached to his initial complaint and FAC a document right after part of 8 the Notice of Default, stating that it was mailed to Plaintiff at an address in Pinole, California on 9 December 1, 2023. (Dkt. No. 1-1 at p. 24; Dkt. No. 14 at p. 23.) At the hearing held on August 4, 10 2025, Plaintiff argued that Defendant did not actually mail the Notice of Default, despite the 11 language of the document. However, Plaintiff has not alleged any facts to support this argument. 12 Therefore, as currently pled, Plaintiff fails to state a claim for wrongful foreclosure based on 13 California Civil Code § 2924b. Because it may not be futile, the Court will provide Plaintiff with 14 one final opportunity to amend his wrongful foreclosure claim to the extent it is premised on 15 California Civil Code § 2924b. Plaintiff is admonished that he must allege facts to support this 16 claim, including facts that, if true, would be sufficient to state a claim despite the statement in the 17 document he attached to his complaints that the Notice of Default was mailed to him on December 18 1, 2023. 19 California Civil Code § 2924c(b)(1) provides: “Upon your written request, the [lender] will 20 give you a written itemization of the entire amount you must pay”. (emphasis added)); see also 21 Carson v. Bank of Am. NA, 611 F. App’x 379, 380-81 (9th Cir. 2015) (plaintiffs’ claim under 22 Section 2924c was deficient due to their failure to plead they made a request in writing regarding 23 arrearage amount); see also Vazquez v. Wells Fargo Bank N.A., 2017 WL 4679726, at *3 (C.D. 24 Cal. June 5, 2017) (granting summary judgment on claim under California Civil Code § 2924c 25 where plaintiff never made a written request for a reinstatement quote). Plaintiff does not allege 26 that he made any written requests for an itemization of the amount due. (Dkt. No. 1-1 at ¶¶ 17-19 27 (alleging that he called on May 2, 3, and 10, 2023; Dkt. No. 14 (same)). He further alleges that he 1 Plaintiff’s allegations that all his requests for the payoff amount were through calls, Plaintiff fails 2 to allege a claim for wrongful foreclosure claim premised on California Civil Code § 2924c. The 3 Court thus grants Defendant’s motion to dismiss Plaintiff’s claim for wrongful foreclosure. The 4 Court is only providing Plaintiff with leave to amend to the extent his wrongful foreclosure claim 5 is premised on California Civil Code § 2924b. 6 In addition, Plaintiff is admonished that he is required to clarify his allegations regarding 7 tender. In the Order on the motion to dismiss Plaintiff’s FAC, the Court stated: 8 If Plaintiff elects to amend, he shall also clarify his allegations regarding tender, including whether he attempted to tender the full 9 amount owed under the loan or merely the amount he was in default. Moreover, to the extent Plaintiff did not tender the full amount 10 required, he shall allege facts sufficient to establish that tender was not actually required. Confusingly, in response to the Court’s 11 question regarding what amount was needed to be tendered, Plaintiff cited Glaski v. Bank of Am., 218 Cal. App. 4th 1079(2013) at the 12 hearing for the proposition that tender is not owed to bring a claim for wrongful foreclosure if the foreclosure was based on fraud. What 13 Glaski actually states is that “[t]ender is not required where the foreclosure sale is void, rather than voidable, such as when a plaintiff 14 proves that the entity lacked the authority to foreclose on the property.” Id. at 1100. To date, Plaintiff has not alleged that 15 Defendant lacked authority to foreclose on the property. 16 (Dkt. No. 24.) Despite the Court’s admonition to clarify in any amended complaint “his 17 allegations regarding tender, including whether he attempted to tender the full amount owed under 18 the loan or merely the amount he was in default”, Plaintiff failed to do so in his SAC. At the 19 hearing, Plaintiff’s counsel stated that Plaintiff could not plead, in good faith, that he could have 20 tendered the full amount owed under the loan and not just the amount he was in default. If 21 Plaintiff elects to amend, because he cannot allege in good faith that he tendered or attempted to 22 tender the full amount owed under the loan, he shall allege facts sufficient to establish that tender 23 was not actually required. Plaintiff is again reminded that this will be his final opportunity to 24 amend his complaint to allege the factual basis for his claims. Plaintiff should take care to 25 carefully review and amend his allegations in accordance with this Order. 26 5. Injunctive Relief. 27 As the Court explained in the Order on the first motion to dismiss: to rescind the Trustee sale, as opposed to merely recover damages 1 from Defendant, Plaintiff must allege facts sufficient to show that the purchaser was not a bona fide purchaser. A bona fide purchaser ““is 2 one who pays value for the property without notice of any adverse interest or of any irregularity in the sale proceedings.” Melendrez v. 3 D & I Inv., Inc., 127 Cal. App. 4th 1238, 1250 (2005). “If the trustee’s deed recites that all statutory notice requirements and procedures 4 required by law for the conduct of the foreclosure have been satisfied, a rebuttable presumption arises that the sale has been conducted 5 regularly and properly; this presumption is conclusive as to a bona fide purchaser.” Moeller v. Lien, 25 Cal. App. 4th 822, 831 (1994) 6 (emphasis added). As a result, if the Property were sold to a bona fide purchaser, he would have “no right to set aside a trustee’s deed as 7 against a bona fide purchaser for value by attacking the validity of the sale.” Id. Instead, Plaintiff would be limited to seeking damages from 8 Defendant. Id. at 832. 9 (Dkt. No. 13.) In his FAC, Plaintiff continued to seek recission of the Trustee sale without 10 alleging any facts that the purchaser was not a bona fide purchaser. At the hearing on the motion 11 to dismiss Plaintiff’s FAC, Plaintiff’s counsel conceded that Plaintiff was not seeking rescission of 12 the sale and, instead, is only seeking damages. The Court instructed Plaintiff that if he elected to 13 amend his complaint again, he should carefully review his allegations and omit the request for 14 rescission. (Dkt. No. 24.) Despite Plaintiff’s counsel’s representation and the Court’s admonition, 15 Plaintiff again sought recission of the sale in his SAC but again did not allege any facts that, if 16 true, would show that the purchaser was not a bona fide purchaser. Again, at the hearing on the 17 motion to dismiss Plaintiff’s SAC, the Court asked whether he was trying to rescind the sale, and 18 Plaintiff’s counsel again said no. Counsel admitted that he had no information to indicate that the 19 purchaser was not a bona fide purchaser. Therefore, Plaintiff cannot seek recission. When asked 20 about what other injunctive relief Plaintiff sought, Plaintiff’s counsel responded that he was 21 seeking to prevent further transfers of the property. The current owner is not a defendant in this 22 lawsuit. Thus, it is not clear how the Court could enjoin further transfers of the property. 23 Because Plaintiff has not pled any basis for seeking injunctive relief, the Court grants 24 Defendant’s motion to dismiss this claim and any request for injunctive relief in Plaintiff’s SAC. 25 Moreover, because Plaintiff has repeatedly conceded that he has no basis to seek injunctive relief, 26 Plaintiff’s request for injunctive relief is dismissed with prejudice. 27 CONCLUSION 1 is only providing leave to amend the following two claims: (1) breach of contract based on 2 || Defendant’s precluding Plaintiff from curing his default and (2) wrongful foreclosure based on a 3 violation of California Civil Code § 2924b. If Plaintiff elects to amend his wrongful foreclosure 4 claim, he is admonished that he must allege facts that, if true, would be sufficient to state a claim 5 despite the statement in the document he attached to his complaints that the Notice of Default was 6 mailed to him on December 1, 2023. In addition, if Plaintiff elects to amend, he shall allege facts 7 sufficient to establish that tender of the entire amount of the loan was not actually required. 8 Plaintiff's counsel is directed to carefully read this Order and the previous Orders on the 9 other two motions to dismiss. (Dkt. Nos. 13, 24.) Plaintiff shall file an amended complaint, if 10 any, by no later than August 26, 2025. Plaintiff is again reminded that this will be his final 11 opportunity to amend his complaint to allege the factual basis for his claims. If Plaintiff files 12 || a Third Amended Complaint in violation of this Order — for example, by adding claims that the 5 13 Court does not permit or failing to provide factual allegations to support a claim — the Court will 14 || entertain a motion for sanctions. 3 15 The Court ORDERS Plaintiffs counsel to provide a copy of this Order to his client and 16 || file a proof of service by no later than August 12, 2025. Failure to do so will result in an Order to 3 17 Show Cause why sanctions should not be issued. IT IS SO ORDERED. 19 Dated: August 5, 2025 20 adhas. lane ALLIE KIM 21 United States Magistrate Judge 22 23 24 25 26 27 28