Sundby v. Marquee Funding Group, Inc.

• Court: District Court, S.D. California
• Decided: January 28, 2020
• Docket: 3:19-cv-00390
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Dale Sundby, Trustee, Case No.: 3:19-cv-0390-GPC-AHG

12 Plaintiff, ORDER DENYING MOTION FOR 13 v. JUDGMENT ON THE PLEADINGS.

14 Marquee Funding Group, Inc.; Salomon ECF NO. 62. Benzimra, Trustee; Stanley Kesselman, 15 Trustee; Jeffrey Myers; Kathleen Myers; 16 Andres Salsido, Trustee; Benning Management Group 401(k) Profit 17 Sharing Plan; Christopher Myers; Vickie 18 McCarty; Dolores Thompson; Kimberly Gill Rabinoff; Steven M. Cobin, Trustee; 19 Susan L. Cobin, Trustee; Equity Trust 20 Company, Custodian FBO Steven M. Cobin Traditional IRA; Todd B. Cobin, 21 Trustee; Barbara A. Cobin, Trustee; 22 Fasack Investments LLC; and Does 1-X, 23 Defendants. 24 25 Before the Court is Plaintiff Dale Sundby’s motion for judgment on the pleadings. 26 The motion has been fully briefed. Upon consideration of the moving papers and the 27 applicable law, and for the following reasons, the Court DENIES Plaintiff’s motion. 28 I. Procedural History 1 On November 3, 2019, Plaintiff filed a motion for judgment on the pleadings under 2 Federal Rule of Civil Procedure (“Rule”) 12(c). (ECF No. 62). The Pleadings here 3 include Plaintiff’s First Amended Complaint (the “FAC”), (ECF No. 13), and 4 Defendants’ three Answers. (ECF Nos. 45, 48, 49.) Plaintiff’s motion includes 26 5 voluminous exhibits, (see ECF No. 62-4 (Index of Exhibits)), and a request to take 6 judicial notice of an amicus brief in another matter. (ECF No. 62-3). 7 On December 5, 2019, Defendants Salomon Benzimra, Trustee, Stanley 8 Kesselman, Trustee, Jeffrey Myers, Kathleen Myers, Andres Salsido Trustee, Benning 9 Management Group 401(k) Profit Sharing Plan, Christopher Myers, Vickie McCarty, 10 Delores Thompson, Kimberly Gill Rabinoff, Steven M. Cobin, Trustee, Susan L. Cobin, 11 Trustee, Equity Trust Company, Custodian FBO Steven M. Cobin Traditional IRA, Todd 12 B. Cobin, Trustee, Barbara A. Corbin, Trustee, Fasack Investments LLC (collectively, the 13 “Lender Defendants”) filed the first opposition. (ECF No. 75.) The Lender Defendants 14 attach, to an accompanying declaration by Counsel Troy Slome various, prior filings in 15 this matter. (See ECF No. 75-1 at 2–3 (Index of Exhibits)). 16 On December 6, 2019, Marquee Funding Group, Inc. (“MFG”) filed the second 17 opposition. (ECF No. 76.) Defendant MFG “joins in and incorporates” the Lender 18 Defendants’ arguments. (Id. at 2–5.) Defendant MFG also writes separately to request 19 that the Court treat Plaintiff’s motion for judgment on the pleadings as a motion for 20 summary judgment, to set a briefing schedule on the motion, and to offer preliminary 21 arguments against the motion as such. (Id. at 5–11.) 22 On December 19, 2019, Plaintiff filed a reply to the Lender Defendants’ 23 opposition. (ECF No. 77.) Plaintiff’s first reply contains another request for judicial 24 notice of five documents filed in this action. (See ECF No. 77-1 at 2 (Index of Exhibits)). 25 On December 20, 2019, Plaintiff filed a reply to MFG’s opposition. (ECF No. 78). 26 II. Requests for Judicial Notice. 27 Courts generally do not consider materials beyond the pleadings when ruling on a 28 motion for judgment on the pleadings. See Harris v. Cty. of Orange, 682 F.3d 1126, 1128 1 (9th Cir. 2012). However, if so inclined, a court may take judicial notice of a fact that 2 “(1) is generally known within the trial court’s territorial jurisdiction; or (2) can be 3 accurately and readily determined from sources whose accuracy cannot reasonably be 4 questioned.” Fed. R. Evid. 201(b). 5 Judicial notice is appropriate in “matters of public record” not disputed by the 6 opposing party. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018), 7 cert. denied sub nom. Hagan v. Khoja, 139 S. Ct. 2615 (2019). Courts may also take 8 judicial notice of documents attached to, or “properly submitted as part of,” the 9 complaint. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). In applying the 10 doctrine of judicial notice to any document, the Court must specify what facts it has 11 judicially noticed within that document. Khoja, 899 F.3d at 999–1000. 12 A court may typically take notice of orders and filings in other proceedings. See 13 United States v. Black, 482 F.3d 1035, 1041 (9th Cir.2007) (noting that a court “may take 14 notice of proceedings in other courts, both within and without the federal judicial system, 15 if those proceedings have a direct relation to matters at issue”) (emphasis added). It is 16 also “well established that a court may take judicial notice of its own records.” United 17 States v. Author Servs., Inc., 804 F.2d 1520, 1523 (9th Cir. 1986), amended, 811 F.2d 18 1264 (9th Cir. 1987), and overruled on other grounds by United States v. Jose, 131 F.3d 19 1325 (9th Cir. 1997); see Shuttlesworth v. City of Birmingham, 394 U.S. 147, 157 (1969). 20 Turning to Plaintiff’s first request for judicial notice, (ECF No. 62-3), the Court 21 declines to take judicial notice of a brief filed by the National Consumer Law Center as 22 amicus curiae on April 20, 2014 before the Ninth Circuit in Robert Burns, et al v. HSBC 23 Bank USA, et al, Case No. 13-56680. The brief does not bear any relation to the facts of 24 this case, except that it too arises under TILA. U.S. ex rel. Modglin v. DJO Glob. Inc., 48 25 F. Supp. 3d 1362, 1383 (C.D. Cal. 2014), aff’d sub nom. United States v. DJO Glob., 26 Inc., 678 F. App’x 594 (9th Cir. 2017) (declining to consider “irrelevant” documents). 27 Plaintiff, moreover, does not specify which facts in the document should be noticed and, 28 the brief’s legal arguments cannot be noticed. See Blye v. California Supreme Court, No. 1 CV-11-5046-DWM, 2014 WL 295022, at *1 (N.D. Cal. Jan. 21, 2014) (“A request for 2 judicial notice is not a proper vehicle for legal argument”). 3 As to Plaintiff’s second request, (ECF No. 77-1), the Court also declines to take 4 judicial notice of five prior filings and orders in this matter. (See ECF No. 77-1 at 2 5 (listing the five documents as ECF Nos. 30-1, 31-2, 31-3, 33-1, and 44)). Certainly, a 6 Court has the authority to take notice of documents in matters before the Court. See 7 Author Servs., Inc., 804 F.2d at 1523. However, there is no reason to do so here. Four of 8 the documents cited by Plaintiff in his request are not referenced in his reply, and thus is 9 it unclear why they should be judicially noticed. As to the fifth document, this Court’s 10 order denying Defendants’ motion to dismiss, (ECF No. 40), it need not be noticed for 11 Plaintiff to refer to it in his arguments. (See ECF No. 77 at 4.) 12 Consequently, both of Plaintiff’s requests are denied. (ECF Nos. 62-3, 77-1). 13 III. Defendant MFG’s Request Under Rule 12(d). 14 a. Standard of Review 15 If “matters outside the pleadings are . . . not excluded by the court, the motion must 16 be treated as one for summary judgment under Rule 56.” Fed. R. Civ. Pro. 12(d) 17 (emphasis added); Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 18 (9th Cir. 1989). “Whether to convert a Rule 12(b)(6) motion into one for summary 19 judgment pursuant to Rule 12(d) is at the discretion of the district court.” Adobe Sys. Inc. 20 v. Blue Source Grp., Inc., 125 F. Supp. 3d 945, 968 (N.D. Cal. 2015); see also Arthur R. 21 Miller, Mary Kay Kane, A. Benjamin Spencer, Federal Practice & Procedure § 1371 22 (2018 3d ed.) (discussing a court’s discretionary authority under Rule 12(d)). Because 23 Rule 12(d) requires that “[a]ll parties must be given a reasonable opportunity to present 24 all the material that is pertinent to the motion,” such a decision requires that courts 25 consider whether the Parties have sufficient notice and an opportunity to respond. Id. 26 (emphasis added); see Rubert-Torres v. Hosp. San Pablo, Inc., 205 F.3d 472, 476 (1st 27 Cir. 2000) (requiring, at a minimum, a party have constructive notice that the motion may 28 be converted at the time of filing); Morales v. City of Delano, No. 1:10-CV-1203-AWI, 1 2012 WL 1669398, at *2 (E.D. Cal. May 11, 2012) (converting motion based on the 2 parties’ “mutual recognition that the court must convert”). Likewise, if a claim or defense 3 would benefit from additional discovery, a court is likely to not consider the documents 4 and forgo converting the motion into one for summary judgment. See Rubert-Torres, 205 5 F.3d at 475; Century Sur. Co. v. Master Design Drywall, Inc., No. 09-CV-0280-LAB, 6 2009 WL 3425326, at *2 (S.D. Cal. Oct. 21, 2009). 7 Courts, however, recognize a series of well-worn exceptions to Rule 12(d), 8 including (1) attachments to the complaint, Lee, 250 F.3d at 688, (2) judicially noticed 9 documents, Khoja, 899 F.3d 988, or (3) documents incorporated by reference. Coto 10 Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). As relevant here, a plaintiff 11 incorporates a document by reference where the complaint “refers extensively to the 12 document or the document forms the basis of the plaintiff's claim.” Khoja, 899 F.3d at 13 999–1002. However, the “mere mention of the existence of a document is insufficient to 14 incorporate the contents” of a document. Id. at 1002. And, a document cannot be 15 incorporated if another party questions its authenticity. See Branch v. Tunnell, 14 F.3d 16 449, 454 (9th Cir. 1994), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 17 307 F.3d 1119 (9th Cir. 2002). 18 b. Analysis 19 Defendant MFG asks that the Court treat Plaintiff’s motion for judgment on the 20 pleadings as a motion for partial summary judgment pursuant to Rule 12(d). (ECF No. 76 21 at 5–6.) Defendant MFG asserts that the attachments to Plaintiff’s motion cannot be 22 judicially noticed or incorporated by reference because the “authenticity, validity and 23 efficacy of the loan documents is in issue.” (Id.) Specifically, Defendant disputes whether 24 Plaintiff “authorized changes to the documents.” (Id.) 25 Plaintiff responds that the motion’s attachments are incorporated by reference, and 26 thus the motion need not be converted. (ECF No. 78 at 2 (citing Mulinix v. Unifund CCR 27 Partners, No. 07-CV-1629-DMS, 2008 WL 2001747, at *1 (S.D. Cal. May 5, 2008)). 28 Plaintiff also notes that Defendant MFG mischaracterizes his filing, and that his request 1 for judicial notice does not encompass the exhibits. (Id.; see also ECF No. 62-3 at 2). 2 Here, the Court agrees with Plaintiff and finds that the attachments to his instant 3 motion are incorporated by reference. As Plaintiff notes in reply, (ECF No. 78 at 2), the 4 Court has already addressed this issue by stating the following in a prior order: 5 “All the documents referred to in this case are cognizable by the Court upon a Rule 12(b)(6) challenge. The documents attached to Plaintiff’s opposition 6 brief were incorporated by reference in his FAC. The Court may thus 7 consider them. See, e.g., Mulinix v. Unifund CCR Partners, No. 07- 1629DMS, 2008 WL 2001747 (S.D. Cal. May 5, 2008) (“A complaint is 8 deemed to include materials incorporated by reference and documents that, 9 although not incorporated by reference, are ‘integral’ to the complaint.”). Defendants’ materials are also appropriately subject to notice. For one, their 10 proffered deeds and notes are incorporated by reference in Plaintiff’s FAC, 11 and are integral to Plaintiff’s claim that they have been improperly altered. Furthermore, they are independently judicially noticeable. See, e.g., Fimbres 12 v. Chapel Mort. Corp., No. 09-CV-0886-IEG (POR), 2009 WL 4163332, at 13 *3 (S.D. Cal. Nov. 20, 2009) (taking judicial notice of deed of trust). 14 (ECF No. 44 at 9.) The Court sees no reason to reconsider that ruling now as Defendant 15 MFG’s only argument on point – i.e., that the question of whether Plaintiff consented to 16 changing the loan documents is a fact in dispute – is of no consequence. (ECF No. 76 at 17 5–6.) After all, Defendant MFG’s argument does not raise a dispute as to the authenticity 18 of the loan documents themselves, just what occurred to alter them. (Compare ECF No. 19 13 at ¶ 109 (“The recorded deed (‘2017 Altered Deed’) was not the 2017 Signed Deed”) 20 with, e.g., ECF No. 48 at ¶ 109 (“Defendant admits that the identified documents are the 21 best evidence of the content thereof and denies any allegation characterizing the content 22 thereof in Paragraph 109 of the FAC.”)); see also Branch, 14 F.3d at 454. 23 In addition, to the extent this Court’s prior ruling did not cover all 26 of the 24 documents attached to Plaintiff’s motion, the Court finds the attachments are 25 incorporated by reference. First, each of the 26 documents were referenced and discussed 26 in the FAC. (See ECF No. 62-4 at 2–4 (citations for each document)). Second, these 27 documents – disclosures, notes, deeds, e-mails, etc. – are “integral” to the instant lawsuit 28 in that Plaintiff’s claims turn on their content or because the documents are “themselves 1 alleged to violate” TILA. Figueroa v. Law Offices of Patenaude & Felix, A.P.C., No. ED- 2 CV-14325-JGB, 2014 WL 12597118, at *2 (C.D. Cal. May 30, 2014). Other courts 3 considering mortgage and foreclosure cases have also incorporated or judicially noticed 4 similar documents. See, e.g., Haynish v. Bank of America, N.A., 284 F. Supp. 3d 1037, 5 1045 (N.D. Cal. 2018); Tefera v. OneWest Bank, FSB, 19 F. Supp. 3d 215, 221 (D.D.C. 6 2014). Lastly, Defendant MFG does not now dispute the authenticity of these documents. 7 (See, e.g., ECF No. 48 at ¶¶ 27–35, 37, 39–42, 46, 48–50, 54–63, 71–75, 77–80.) 8 Thus, the Court finds that Rule 12(d) does not apply here because the attachments 9 to Plaintiff’s motion have been incorporated by reference. This decision is appropriate, 10 moreover, given the Parties’ ongoing discovery and the Court’s concerns as to notice. As 11 Defendant notes, fact “discovery only just commenced on November 26, 2019,” (ECF 12 No. 76 at 6), and is due to continue until March 2, 2020. (ECF No. 70 at ¶ 2.) Because 13 discovery may yield information material to the Defendants’ alleged affirmative defenses 14 or which corroborates Plaintiff’s allegations, it would be imprudent for the Court to 15 convert Plaintiff’s motion and entertain summary judgment at this time. See Rubert- 16 Torres, 205 F.3d at 475 (noting the importance of discovery under Rule 12(d)); Soratorio 17 v. Tesoro Ref. & Mktg. Co., LLC, No. CV-17-1554, 2017 WL 1520416, at *4 (C.D. Cal. 18 Apr. 26, 2017) (same); Century Sur. Co., 2009 WL 3425326, at *2 (same). 19 In addition, it is plainly not the case that “[a]ll parties” have received a “reasonable 20 opportunity to present all the material that is pertinent to the motion.” See Fed. R. Civ. 21 Pro. 12(d). The Lender Defendants have not addressed the arguments now raised by 22 Defendant MFG and, while Plaintiff touched on Defendant MFG’s arguments in reply, 23 (ECF No. 78), that is no substitute for a full briefing schedule – as Defendant MFG 24 appears to recognize in requesting a schedule for its upcoming “cross-motion” for 25 summary judgment. (See ECF No. 76 at 2.)1 In addition, as it appears that pro se Plaintiff 26

27 1 The Court respectfully reminds Defendant MFG that, pursusant to Local Rule 7.1, a party cannot file a 28 1 attached the documents to his motion with the understanding that they were already 2 incorporated, (ECF No. 78 at 2), and thus did not intentionally “invite[]” conversion, the 3 Court is reluctant to treat Plaintiff’s motion as one for summary judgment at this time. 4 See San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 477 (9th Cir. 1998) 5 (quotation omitted). 6 Consequently, Defendant’s request under Rule 12(d) is denied. (ECF No. 76.) In 7 addition, because the Court will not treat Plaintiff’s motion as one for summary 8 judgment, the Court DENIES without prejudice Defendant MFG’s other arguments as 9 premature. (ECF No. 76 at 7–11.) Defendant MFG may re-assert its arguments in a 10 properly filed motion for summary judgment. 11 IV. Plaintiff’s Motion for Judgment on the Pleadings 12 a. Standard for Rule 12(c) Motions 13 “After the pleadings are closed—but early enough not to delay trial—a party may 14 move for judgment on the pleadings.” Fed. R. Civ. Pro. 12(c). A motion for judgment on 15 the pleadings under Rule 12(c) is evaluated under a “substantially identical” standard to 16 that of a Rule 12(b)(6) motion to dismiss, “because, under both rules, a court must 17 determine whether the facts alleged in the complaint, taken as true, entitle the plaintiff to 18 a legal remedy.” Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (citation 19 and internal quotation marks omitted); see also Hason v. Los Angeles Cty., No. CV-11- 20 5382-SVW, 2013 WL 12377029, at *1 (C.D. Cal. Apr. 30, 2013). 21 Consequently, a judgment on the pleadings is proper when the moving party 22 clearly establishes on the face of the pleadings that no material issue of fact remains to be 23 resolved and that it is entitled to judgment as a matter of law. Doleman v. Meiji Mut. Life 24 Ins. Co., 727 F.2d 1480, 1482 (9th Cir. 1984). If “the defendant raises an affirmative 25 26 27 7.1.e.1. The Court will not set a briefing schedule until Defendant’s counsel call chambers to do so. A failure to abide by this rule is grounds to deny any motion. Prof’l Programs Grp. v. Dep’t of Commerce, 28 1 defense in his answer it will usually bar judgment on the pleadings.” Gen. Conference 2 Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 3 F.2d 228, 230 (9th Cir. 1989) (hereinafter “Seventh-Day Adventist”). When considering a 4 motion under Rule 12(c), the court “must accept all factual allegations in the complaint as 5 true and construe them in the light most favorable to the non-moving party.” Fleming v. 6 Pickard, 581 F.3d 922, 925 (9th Cir. 2009). 7 b. Defendants Dispute Plaintiff’s Material Allegations 8 Plaintiff now moves the Court for a judgment on the pleadings as to his two causes 9 of action. (ECF No. 62 -2.) With respect to his TILA claims, Plaintiff asserts that the 10 2016 and 2017 loans violated TILA’s prepayment penalties provision (15 U.S.C. § 11 1639(c)), arbitration provision (15 U.S.C. § 1639c(e)(1)), and ability-to-pay provision (15 12 U.S.C. § 1639b(C)(3)(A)(i)). (Id. at 2.) With respect to his state law claim for declaratory 13 judgment, Plaintiff seeks reconveyance of the property and a declaration that 2017 14 Altered Note and Deed are void ab initio. (Id.; ECF No. 13 at 21.) The Court has already 15 found that Plaintiff’s arguments are adequately pled to survive a motion to dismiss, and 16 thus need not re-assess the adequacy of Plaintiff’s pleadings now. (ECF No. 44.) 17 Instead, the Court looks to whether Defendants’ Answers “raise[] issues of fact or 18 an affirmative defense which, if proved, would defeat plaintiff’s recovery.” Qwest 19 Commc’ns Corp. v. City of Berkeley, 208 F.R.D. 288, 291 (N.D. Cal. 2002) (citing 20 Seventh-Day Adventist, 887 F.2d at 230). Here, they do.2 21 As a threshold matter, Plaintiff’s argument that “the only alleged facts required to 22 prove the claims were previously admitted” is unavailing. (ECF No. 77 at 2.) That the 23 Court has incorporated the exhibits attached to Plaintiff’s motion by reference does not 24 mean that the Court adopts their contents as true. See Sgro v. Danone Waters of N. Am., 25 Inc., 532 F.3d 940, 942 n.1 (9th Cir. 2008) (considering a document referenced by the 26

27 2 Defendant MFG joins in the arguments presented by the other Defendants. Consequently, the Court 28 1 complaint but declining to accept its contents as true). Defendants contest Plaintiff’s 2 characterization of the documents and their effect, and thus the facts in those documents 3 – even if incorporated into the complaint – remain in dispute. (ECF No. 75 at 11–13.) 4 Consequently, the Court declines Plaintiff’s invitation to “resolv[e] factual disputes at the 5 pleading stage.” Khoja, 899 F.3d at 1003. If Plaintiff seeks a finding of fact, trial or 6 summary judgment are the more appropriate vehicles. See Hsu v. Puma Biotechnology, 7 Inc., 213 F. Supp. 3d 1275, 1281–82 (C.D. Cal. 2016) (describing how a party’s reliance 8 on voluminous exhibits at the pleading stage often results in arguments “more appropriate 9 for a motion for summary judgment or some other later stage of the case”). 10 Defendants, moreover, correctly note that a response in an Answer expressing a 11 “lack[ of] knowledge or information sufficient to form a belief about the truth of an 12 allegation . . . has the effect of a denial.” Fed. R. Civ. P. 8; see Gencarelli v. Twentieth 13 Century Fox Film Corp., No. 2:17-CV-02818-ODW, 2018 WL 376664, at *4 (C.D. Cal. 14 Jan. 11, 2018); Schroeder v. Hundley, No. 17-CV-919-JLS, 2017 WL 6945405, at *2 15 (S.D. Cal. Sept. 13, 2017). Thus, contrary to Plaintiff’s assertions, Defendants’ Answers 16 largely deny Plaintiff’s allegations. (See ECF No. 75 at 11–13 (stating that the Answer 17 filed by the Lender Defendants, (ECF No. 49), asserts denials as to 94 of 103 paragraphs 18 in the Factual Allegation section and that the Answer filed by Defendants Benzimira and 19 Kesselman, (ECF No. 45), asserts denials as to 79 paragraphs). Plaintiff does not dispute 20 this point in reply. (ECF No. 77 at 2.) 21 Some of Defendants’ denials, moreover, directly address claims core to the FAC. 22 As to the first cause of action, Defendants deny violating TILA’s prohibition on 23 prepayment penalty provisions, (ECF No. 45 at ¶¶ 131(c), 132(c); ECF No. 48 at ¶¶ 24 131(c), 132(c); ECF No. 49 at ¶¶ 131(c), 132(c)), TILA’s ban on mandatory arbitration 25 provisions, (ECF No. 45 at ¶¶ 74, 75; ECF No. 48 at ¶¶ 74, 75; ECF No. 49 at ¶¶ 74, 75), 26 and TILA’s requirement that the lender assess a party’s ability to pay. (ECF No. 45 at ¶¶ 27 131(d)–(e), 132(d)–(e); ECF No. 48 at ¶¶ 131(d)–(e), 132(d)–(e); ECF No. 49 at ¶¶ 28 131(d)–(e), 132(d)–(e)). As to the second cause of action, Defendants likewise deny 1 altering any documents without Plaintiff’s consent. (See, e.g., ECF No. 45 at ¶¶ 140, 142; 2 ECF No. 48 at ¶¶ 140, 142; ECF No. 49 at ¶¶ 140, 142). 3 In addition, Defendants plead various affirmative defenses which they claim, “if 4 proven at trial, would bar Plaintiff’s claim for TILA damages in the Complaint.” (See 5 ECF No. 75 at 8–11.) And, though Defendants do not allege how each of their defenses is 6 to apply with great specificity, they need not do so given the Ninth Circuit’s more lenient 7 standard for affirmative defenses. (ECF No. 64); see Wyshak v. City Nat’l Bank, 607 F.2d 8 824, 827 (9th Cir. 1979), overruled on other grounds by Castro v. County of Los Angeles, 9 833 F.3d 1060 (9th Cir. 2016) (en banc). 10 Consequently, because the Court is required to take the non-moving parties’ 11 assertions as true, the Court finds that Defendants’ denials and affirmative defenses 12 create an issue of disputed fact, and that alone is sufficient to withstand Plaintiff’s 13 motion. (ECF No. 77 at 2.); Esilicon Corp. v. Silicon Space Tech. Corp., No. C -11- 14 06184-EDL, 2012 WL 12920837, at *2 (N.D. Cal. Oct. 3, 2012) (citing Seventh-Day 15 Adventists, 887 F.2d at 230) (“A plaintiff is not entitled to judgment on the pleadings if 16 the answer raises issues of fact or an affirmative defense which, if proved, would defeat 17 plaintiff's recovery.”) Plaintiff’s arguments that the incorporated documents alone entitle 18 him to judgment at this time are misplaced. (ECF No. 77 at 5–8.) 19 c. The Court Defers Plaintiff’s Other Arguments 20 With respect to Plaintiff’s first cause of action, Plaintiff asserts that 15 U.S.C. § 21 1640 precludes Defendant from raising affirmative defenses except those listed in the 22 statute. (ECF No. 77 at 3.) For this proposition, Plaintiff cites Semar, wherein the Ninth 23 Circuit held that a technical violation of TILA (a failure to provide adequate notice of 24 plaintiffs’ 3-day cancellation right) permitted plaintiffs to rescind a loan agreement, 25 without regard for plaintiffs’ subsequent conduct or the fact that the violation was 26 immaterial. Semar v. Platte Valley Fed. Sav. & Loan Ass’n, 791 F.2d 699, 705 (9th Cir. 27 1986); see also Buie v. Palm Springs Motors, Inc., 36 F. App’x 328, 329 (9th Cir. 2002) 28 (noting that the Ninth Circuit has “explicitly rejected the claim that equitable 1 || considerations are a defense to TILA liability’); Jackson v. Grant, 890 F.2d 118, 120 (9th 2 || Cir. 1989) (noting that “[e]ven technical or minor violations of the TILA impose liability 3 ||on the creditor’). 4 Plaintiff, however, only asserts this argument in reply, and does so briefly at that. 5 || Plaintiff did not raise this argument in his initial motion, (ECF No. 62-2), nor has he 6 || raised it in prior motions directed at the pleadings. (ECF No. 54-2). And, a district court 7 “need not consider arguments raised for the first time in a reply brief.” See Zamani v. 8 || Carnes, 491 F.3d 990, 997 (9th Cir. 2007); see also United States v. Anderson, 472 F.3d 9 || 662, 668 (9th Cir. 2006) (recognizing the general principle that arguments raised for the 10 || first time in a reply brief are waived); Architectureart, LLC v. City of San Diego, No. 15- 11 CV-1592-BAS, 2016 WL 1077124, at *3 (S.D. Cal. Mar. 18, 2016) (declining to consider 12 || arguments raised in a reply on a motion to dismiss). Because Plaintiff has, perhaps 13 |/inadvertently, deprived Defendants of a meaningful opportunity to address what he 14 || contends is a dispositive argument, the Court declines to consider this argument now. 15 Likewise, Plaintiff presents a last-minute request for an order satisfying the second 16 || cause of action in reply, thereby precluding Defendants from responding as to whether an 17 || order should be issued. (ECF No. 77 at 8-11.) The Court also declines to consider this 18 || argument at this time. Zamani, 491 F.3d at 997. 19 Conclusion. 20 For the foregoing reasons, the Court finds that Plaintiff's motion for judgment on 21 || the pleadings fails. Defendants’ denials and affirmative defenses create issues of fact that 22 cannot be resolved at this stage, and Plaintiff's other arguments presented only in reply 23 not properly before the Court now. 24 IT IS SO ORDERED. 25 Dated: January 28, 2020 2 sale Cx 26 Hon. Gonzalo P. Curiel 07 United States District Judge 28 12