*1024 AMENDED ORDER DENYING MOTION TO REMAND; DENYING MOTION FOR SANCTIONS; GRANTING MOTION TO DISMISS; DENYING MOTION TO STRIKE AS MOOT
This Order is hereby AMENDED to correct a typographical error in the Court’s October 25, 2010 Order wherein the Court mistakenly identified Wells Fargo Bank, N.A.’s main office as being located in North Dakota, as opposed to South Dakota where the evidence shows that its main office is actually located. The Order remains unchanged from the previous version in all other respects.
I. Introduction
On August 6, 2010, Plaintiff Tony Phat Ngoc Nguyen filed a complaint in Contra Costa County Superior Court against Defendants Wells Fargo Bank, N.A. (also known as Wachovia Mortgage, a division of Wells Fargo Bank, N.A.M. and formerly known as Wachovia Mortgage FSB, formerly known as World Savings Bank, FSB) (“Wells Fargo”) and Executive Trustee Services, LLC (“ETS”) alleging wrongful foreclosure, violation of California Civil Code § 2923.5 and 2924, fraudulent misrepresentation, fraudulent concealment, conspiracy to defraud, unconscionability, quiet title, violation of California Business & Professions Code § 17200, conversion, and declaratory and injunctive relief. Wells Fargo filed a notice of removal to federal court on September 10, 2010 based on diversity jurisdiction, and ETS consented to and joined in the removal. On September 17, 2010, Wells Fargo filed a motion to dismiss all claims and to strike the punitive damages and other allegations. On September 28, 2010, Plaintiff filed a motion to remand and motion for sanctions. The Court elected to hear all four motions together on October 26, 2010. The Court now finds that all four motions are appropriate for resolution without the need for oral argument, and hereby Orders as follows: Plaintiffs motion to remand and motion for sanctions are DENIED. Wells Fargo’s motion to dismiss is GRANTED. Wells Fargo’s motion to strike is DENIED AS MOOT.
II. Requests for Judicial Notice
In support of its motion to dismiss, Wells Fargo filed a request for judicial notice of various publicly filed documents.
See
Wells Fargo’s RJN. Exs. A-N. When considering a motion to dismiss, a court does not normally look beyond the complaint in order to avoid converting a motion to dismiss into a motion for summary judgment.
See Mack v. South Bay Beer Distributors,
III. Facts
On or about June 12, 2006, Plaintiff and World Savings Bank executed a 30-year adjustable rate home refinance loan of $712,000.00 secured by a deed of trust on his property. Compl. ¶¶ 13-14. Plaintiff made payments of an undetermined amount from approximately July 15, 2006 through September 2008. Id. ¶ 16. Beginning in 2008, Plaintiff attempted to obtain a loan modification, payment abatements or other means to avoid foreclosure without success. Id. ¶ 16. On December 5, 2008, Wachovia Mortgage, FSB, f.k.a. World Savings Bank executed a substitution of trustee making ETS the trustee under the deed of trust. Id. ¶ 17. On December 19, 2008, ETS recorded a notice of default and election to sell under the deed of trust, claiming that Plaintiff was in arrears on his mortgage payments in the amount of $17,205.85. Id. ¶ 18. On July 22, 2009, ETS executed and recorded a notice of trustee’s sale with sale date of January 8, 2010, though no sale has yet occurred. Id. ¶¶ 19-20. On May 27, 2009, Plaintiff filed Chapter 7 bankruptcy and the property was made part of the bankruptcy estate. Id. ¶ 20; but see Wells Fargo’s RJN, Ex. H (bankruptcy filing was on May 12, 2010).
Plaintiffs complaint makes ten claims which allege three basic categories of wrongdoing by Defendants. First, Plaintiff claims that there have been improprieties in the beneficiary and trustee assignments and/or substitutions (including an improper severance of the deed of trust and the promissory note) such that no Defendant is currently properly appointed or authorized to foreclose on his property. Compl. ¶¶ 22-28 (Claim 1 for wrongful foreclosure); ¶¶ 81-83 (Claim 7 for quiet title); ¶¶ 85-87 (Claim 8 for violation of § 17200); ¶¶ 90-91 (Claim 9 for conversion); ¶¶ 93-98 (Claim 10 for declaratory and injunctive relief)- Plaintiff also claims that Defendants failed to comply with California’s pre-foreclosure statutory requirements so the foreclosure is invalid. Id. ¶¶ 31-37 (Claim 2 for violation of Civil Code § 2923.5 and 2924); ¶¶ 57-66 (Claim 5 for conspiracy); ¶¶ 85-87 (Claim 8 for violation of § 17200); ¶¶ 90-91 (Claim 9 for conversion); ¶¶ 93-98 (Claim 10 for declaratory and injunctive relief)- Finally, Plaintiff alleges various improprieties and misrepresentations during the origination of his mortgage. Id. ¶¶ 40-50 (Claim 3 for fraudulent misrepresentation); ¶¶ 52-55 (Claim 4 for fraudulent concealment); ¶¶ 57-66 (Claim 5 for conspiracy); ¶ 69-78 (Claim 6 for unconscionability); ¶¶ 85-87 (Claim 8 for violation of § 17200); ¶¶ 90-91 (Claim 9 for conversion); ¶¶ 93-98 (Claim 10 for declaratory and injunctive relief).
IV. Plaintiffs Motion to Remand and for Sanctions
Wells Fargo removed this action on the basis of diversity of citizenship, claiming that it is a citizen of South Dakota and therefore complete diversity exists. 1 *1026 Plaintiff now moves to remand on the basis that both Plaintiff and Wells Fargo are citizens of California, and that Defendants cannot show that the jurisdictional minimum of $75,000 has been met.
A. Legal Standard
“Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). “If at any time before final judgment, it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).
The Ninth Circuit “strictly construe[s] the removal statute against removal jurisdiction.”
Gaus v. Miles, Inc.,
B. Discussion
The Complaint alleges that Plaintiff is a citizen of California. Compl. ¶ 1. The Complaint further alleges that ‘Wells Fargo Bank, N.A., also known as Wachovia Mortgage, a division of Wells Fargo Bank, NAM and formerly known as Wachovia Mortgage, FSB, formerly known as World Savings Bank, FSB” was a Delaware corporation using a business address in Contra Costa County, California. Id. ¶2. It also alleges that ETS has a business address and was doing business in California. Id. ¶ 5. Plaintiff argues that the face of the complaint makes no allegations about the corporate headquarters or principal place of business of either defendant, and that Wells Fargo’s contention in the notice of removal that it is a citizen of South Dakota for purposes of diversity is false and sanctionable. Plaintiff also argues that the jurisdictional minimum has not been met. The Court rejects these arguments.
1. Wells Fargo’s Citizenship
In support of his position on diversity, Plaintiff relies on “Wells Fargo & Company’s” by-laws, which state that its principal place of business is San Francisco. Moore Decl. Ex. E at 2. Additionally, Wells Fargo & Company’s 2008 Annual Report states that its corporate headquarters remain in San Francisco, and its 2009 annual meeting was held in San Francisco. Moore Decl. Ex. B at 5; Ex. E. Wells Fargo does not challenge the authenticity of the documents relied on by Plaintiff, but points out that they relate only to its parent company, Wells Fargo & Company, which is not a party to this lawsuit. Wells Fargo relies on its public profile on the FDIC website, which lists its main office in South Dakota, as well as its history on the same website. See Wells Fargo’s RJN in Opposition to *1027 Remand at Ex. A; Ex. C to Notice of Removal.
Pursuant to 28 U.S.C. § 1348, all national banking associations are “deemed citizens of the States in which they are respectively located.” Unlike § 1332, § 1348 does not state that a national banking association “shall be deemed to be a citizen of any State ... where it has its principal place of business....” 28 U.S.C. § 1332(c)(1). The Supreme Court has interpreted this to mean that a national banking association is a citizen of the state where its articles of association designate its “main office.”
See Wachovia Bank, N.A. v. Schmidt,
To achieve complete parity with state banks and other state-incorporated entities, a national banking association would have to be deemed a citizen of both the State of its main office and the State of its principal place of business. See Horton [v. Bank One, N.A], 387 F.3d [426], at 431, and n. 26 [ (5th Cir.2004) ]; Firstar Bank, N.A. [v. Faul ], 253 F.3d [982], at 993-994 [(7th Cir. 2001) ]. Congress has prescribed that a corporation “shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” 28 U.S.C. § 1332(c)(1) (emphasis added). The counterpart provision for national banking associations, 1348, however, does not refer to “principal place of business”; it simply deems such associations “citizens of the States in which they are respectively located.” The absence of a “principal place of business” reference in § 1348 may be of scant practical significance for, in almost every case, as in this one, the location of a national bank’s main office and of its principal place of business coincide.
Schmidt,
546 U.S. at n. 9,
In his Reply, Plaintiff argues that there is a split of authority among the district courts of the Ninth Circuit on this issue, relying on
Mount v. Wells Fargo Bank, N.A.,
In this case, judicially noticeable documents establish that Wells Fargo is a citizen of South Dakota, not California.
See
Wells Fargo’s RJN Ex. A (FDIC website stating that Wells Fargo, N.A.’s main office is located in South Dakota). Plaintiff argues that Wells Fargo has not attached its articles of association designating South Dakota as its main office, as required by
Schmidt.
However, Plaintiffs evidence on reply does nothing to negate Wells Fargo’s evidence that its main office is in South Dakota, and in fact confirms this conclusion. Plaintiff proffers Wells Fargo’s SEC “13-F” filings, which list the bank’s business and mailing address in South Dakota, though the documents were signed in San Francisco.
See
Pl.’s Reply RJN Exs. 1, 2 (2004-2010 13-F forms list South Dakota as the business and mailing address; 2000 13-F form lists San Francisco as the business address). Plaintiff also relies on Wells Fargo & Company’s 2009 Form 10-K list of properties, which states that Wells Fargo & Company “own[s its] corporate headquarters building in San Francisco, California.”
See id.
Ex. 3. However, Wells Fargo & Company is not a named defendant, and this statement in its 10-K does not shed light on the location of Wells Fargo, N.A.’s main office. Based on the evidence provided to the Court, Wells Fargo is a citizen of South Dakota for purposes of diversity.
See also Deleon v. Wells Fargo Bank, N.A.,
2010 U.S.Dist. LEXIS 62499, *7 (N.D.Cal. r banking associations and finding that Wells Fargo is not a citizen of California);
California ex rel. Bates v. Mortgage Electronic Registration Systems, Inc.,
2. Amount In Controversy
Plaintiff also contends that the amount in controversy cannot be determined but is estimated to be less than $75,000. He argues that the amount in controversy for the wrongful foreclosure claim is the unspecified loss of equity in his house, not the full $712,000 mortgage amount, and that the damages on the other claim are unspecified and punitive damages are speculative. If the amount of the plaintiffs damages are unclear from the complaint, the Defendant must set forth in the removal petition the underlying facts supporting jurisdiction and show by a preponderance of the evidence that the jurisdictional threshold has been met.
Sanchez v. Monumental Life Ins. Co.,
Wells Fargo argues that the Complaint seeks to quiet title by cancelling the deed of trust and note on the property and seeks rescission of the $712,000 loan. Compl. ¶ 82-83, Prayer ¶ 12. Numerous courts have held that, where a complaint seeks to invalidate a loan secured by a deed of trust, the amount in controversy is the loan amount.
See, e.g., Cabriales v. Aurora Loan,
In this case, the amount of the loan is approximately $712, 000, the notice of trustee’s sale lists the total amount owed as $822,319 (see Well’s Fargo’s RJN in support of Motion to Dismiss at Ex. G), and Plaintiffs bankruptcy petition lists the value of the property at $450,000 {see id. Ex. 1, Schedule D). Given the large amount of the loan in question and Plaintiffs own valuation of the property, as well as Plaintiffs claims for general, compensatory, special, statutory, exemplary, treble and punitive damages as well as injunctive relief and rescission, the statutory minimum has been met.
For the foregoing reasons, there is diversity jurisdiction and Plaintiffs Motion for remand is DENIED.
C. Plaintiffs Motion for Sanctions
In conjunction with his Motion to Remand, Plaintiff also moves for attorneys fees pursuant to 28 U.S.C. § 1447(c) and Rule 11 sanctions against both defendants, claiming that the removal was frivolous and done in bad faith. However, because the removal was meritorious, this motion is DENIED. 2
V. Defendant’s Motion to Dismiss
Wells Fargo has filed a motion to dismiss each of Plaintiffs ten claims on grounds that they are time-barred, preempted by federal law, improperly pled, and/or otherwise not viable. For the following reasons, the Court GRANTS Wells Fargo’s motion.
A. Legal Standard
A complaint will survive a motion to dismiss if it contains “sufficient factual matter ... to ‘state a claim to relief that is plausible on its face.’ ”
Ashcroft v. Iqbal,
— U.S. -,
Courts must then determine whether the factual allegations in the complaint “plausibly give rise to an entitlement of relief.” Id. Though the plausibility inquiry “is not akin to a probability requirement,” a complaint will not survive a motion to dismiss if its factual allegations “do not permit the court to infer more than the mere possibility of misconduct ....” Id. at 1949 (internal quotation marks omitted) & 1950. That is to say, plaintiffs must “nudge[ ] their claims across the line from conceivable to plausible.”
Twombly,
B. Discussion
1. Judicial Estoppel Applies to the Case As a Whole
Wells Fargo contends that Plaintiff is judicially estopped from pursuing any of his claims because he failed to adequately disclose them in his bankruptcy proceeding. Plaintiff filed for bankruptcy on May 12, 2010 and received a discharge on August 17, 2010. Wells Fargo’s RJN Exs. H, J. In his “Schedule D,” he listed World Savings and ETS as creditors holding a secured claim but did not indicate that the claim was disputed. Id. Ex. I at Schedule D. He also did not list his claims based on the mortgage in Schedule B, which asks about “counterclaims of the debtor and rights to set off claims” and “other personal property of any kind not already listed.” Id. at Schedule B. One day before receiving a discharge, Plaintiff filed an adversary proceeding in the bankruptcy court, but has never amended his schedules to add his claims against Defendants as an asset of the estate. Id. Ex. K
Wells Fargo relies on
Conrad v. Bank of America, National Trust and Savings Ass’n.,
Plaintiff does not dispute that he did not originally list his claims against Defendants on his bankruptcy schedules, and has not yet amended the schedules to include his claims at this time. Instead, he counters that he is not judicially estopped from bringing this action because he can still amend his bankruptcy schedules as a matter of course because the case is not yet closed and Defendants have not shown bad faith or prejudice.
See
Fed. R. Bankruptcy Proc. 1009 (“A voluntary petition, list, schedule, or statement may be amended by the debtor as a matter of course at any time before the case is closed.”);
In re Magallanes,
In its Reply, Wells Fargo cites
Oneida Motor Freight, Inc. v. United Jersey Bank,
However, even if estoppel did not apply, each of Plaintiffs claims fail for multiple additional reasons as discussed below.
2. Plaintiffs Claims Are Preempted By HOLA
Wells Fargo contends that all of Plaintiffs claims are completely preempted by federal law and must be dismissed because World Savings Bank (renamed Wachovia Mortgage FSB and later a division of Defendant Wells Fargo Bank N.A.) was a federally chartered savings bank regulated by the Office of Thrift Supervision under the Home Owners Loan Act (“HOLA”), 12 U.S.C. § 1461
et seq.,
at the time the loan was made.
See
Wells Fargo’s RJN Exs. A-E. Pursuant to the Supremacy Clause, federal law preempts state law “when federal regulation in a particular field is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.”
Bank of America v. City and County of San Francisco,
Wells Fargo relies on 12 C.F.R. § 560.2 in support of its argument that the OTS regulations establish that state laws do not apply to the lending practices of federal banks and thrifts and “oceup[y] the entire field of lending regulation for federal savings associations.” 12 C.F.R. § 560.2(a). That regulation provides that “federal savings associations may extend credit as authorized under federal law, including this part, without regard to state laws purporting to regulate or otherwise affect their credit activities, except to the extent provided in paragraph (c) of this section or § 560.110 of this part.”
Id.
Examples of credit activities that states may not regulate include “terms of credit, including
*1032
amortization of loans and the deferral and capitalization of interest and adjustments to the interest rate, balance, payments due, or term to maturity of the loan,” (§ 560.2(b)(4)) “[l]oan-related fees, including without limitation, initial charges, late charges, prepayment penalties, servicing fees, and overlimit fees,” (§ 560.2(b)(5)) “disclosurefs] and advertising,” (§ 560.2(b)(9)) and “[processing, origination, servicing, sale or purchase of, or investment or participation in, mortgages.” (§ 560.2(b)(10)). A state law of general applicability can be preempted by HOLA if, as applied, it falls under § 560.2(b).
See Silvas,
However, “[sjtate laws of the following types are not preempted to the extent that they only incidentally affect the lending operations of Federal savings associations or are otherwise consistent with the purposes of paragraph (a) of this section: (1) Contract and commercial law; (2) Real property law; ... (4) Tort law; (5) Criminal law; and (6) Any other law that OTS, upon review, finds: (i) Furthers a vital state interest; and (ii) Either has only an incidental effect on lending operations or is not otherwise contrary to the purposes expressed in paragraph (a) of this section.” Id. § 560.2(c). OTS has stated “that the purpose of paragraph (c) is to preserve the traditional infrastructure of basic state laws that undergird commercial transactions, not to open the door to state regulation of lending by federal savings associations.” 61 Fed. Reg. 50951, 50966-50967.
“When analysing the status of state laws under § 560.2, the first step will be to determine whether the type of law in question is listed in paragraph (b). If so, the analysis will end there; the law is preempted. If the law is not covered by paragraph (b), the next question is whether the law affects lending. If it does, then, in accordance with paragraph (a), the presumption arises that the law is preempted. This presumption can be reversed only if the law can clearly be shown to fit within the confines of paragraph (c). For these purposes, paragraph (c) is intended to be interpreted narrowly. Any doubt should be resolved in favor of preemption.” Id.
Wells Fargo argues that Plaintiffs third claim for fraudulent misrepresentation, fourth claim for fraudulent concealment, and sixth claim for unconscionability are based solely on allegations that it failed to properly disclose loan terms and improperly approved him for a loan (loan-origination allegations), and that such claims are preempted by section 560.2(b)(4), (5), (9), and (10). Wells Fargo also contends that Plaintiffs first claim for wrongful foreclosure, second claim for failure to comply with pre-foreclosure notification requirements of Civil Code sections 2923.5 and 2924, and seventh claim for quiet title relate entirely to its allegedly improper foreclosure efforts and/or improper transfer of the deed to ETS, and that these claims relate to the “processing, origination, servicing [or] sale” of mortgages under 520.2(b)(10). It contends that the fifth, eighth, ninth, and tenth claims, which are based on a combination of the loan-origination, improper transfer, and foreclosure procedure allegations are preempted as also falling within these categories.
Plaintiff counters that none of the state statutes he relies on are preempted because they do not regulate or otherwise effect Wells Fargo’s credit activities, but he does not attempt to justify his non-statutory claims or allegations relating to loan origination or the deed of trust assignment. The claims relying solely on loan-origination allegations (Claims 3, 4 and 6) and wrongful transfer of the deed (Claims 1 and 7) are preempted.
*1033
Plaintiff relies on
Mabry v. Superior Court,
Plaintiff also argues that his § 17200 claim is not preempted. However, it is well-settled that loan-origination disclosure and related claims that involve the activities listed in section 560.2(b), including those brought under § 17200, are preempted.
See Silvas v. E*Trade Mortg. Corp.,
Because each of Plaintiffs claims are directed to “disclosures,” “terms of credit,” “loan related fees,” “disclosures and advertising,” and/or “processing, origination, servicing, sale or purchase” of mortgages, they are preempted by 12 C.F.R. § 560.2(b)(4), (5), (9) and/or (10) and are dismissed.
3. Failure to Tender Also Requires Dismissal of Claims 1 (Wrongful Foreclosure), 7 (Quiet Title) and 10 (Injunctive and Declaratory Relie©
Wells Fargo also argues that Plaintiffs’ claims for wrongful foreclosure, quiet title, and injunctive relief to prevent the foreclosure should be dismissed be- . cause Plaintiff has not tendered or offered to tender. “A valid and viable tender of payment of the indebtedness owing is essential to an action to cancel a voidable sale under a deed of trust.”
Karlsen v. American Sav. & Loan Assn.,
“The rules which govern tenders are strict and are strictly applied.”
Nguyen v. Calhoun,
Plaintiffs opposition does not state an ability or willingness to tender the amount owed. Instead, Plaintiff argues that the original note is “void,” not voidable, and therefore the tender rule does not apply. For this position, Plaintiff relies on
Dimock v. Emerald Properties,
However, judicially noticeable documents reveal that the original lender, World Savings Bank, FSB, simply changed its name to Wachovia Mortgage, FSB, and is now a division of Wells Fargo Bank, N.A., so transfers among those entities were proper. See Wells Fargo’s RJN Exs. A-F. Further, a notice of substitution of trustee substituting ETS as the trustee for the deed of trust was recorded in 2008. See id. Ex. M. Therefore Plaintiffs argument that the note is “void” based on improper transfers has no merit, and Plaintiff cites no authority that would make the tender rule inapplicable under these circumstances in any event.
Without citation, Plaintiff also argues that Defendants must produce an original copy of the note in “wet ink.” Opp. at 5. However, “California law does not require possession of the note as a precondition to non-judicial foreclosure under a deed of trust.”
See Putkkuri v. Recontrust Co.,
Because Plaintiff has not shown that the note or deed is “void,” and has not indicated a willingness or ability to tender the amount owed, Plaintiffs first, seventh and tenth causes of action are dismissed on this basis as well.
4. Plaintiffs Other Claims Fail For Additional Reasons
1. Claim 2 For Violation of California Civil Code § 2923.5
California Civil Code § 2923.5(a)(1) states that “A mortgagee, [etc.] may not file a notice of default pursuant to Section 2924 until 30 days after initial contact is made as required by paragraph (2) or 30 days after satisfying the due diligence requirements .... ” Cal. Civ. Code § 2923.5(a)(1). Paragraph (2) also specifies the type of initial contact that is required (including exploring options to avoid foreclosure) before filing the notice of default.
See
Cal. Civ. Code § 2923.5(a)(2). Wells Fargo argues that Plaintiff has failed to state a claim under California Civil Code § 2923.5 because the only remedy available is postponement of foreclosure, and Plaintiff does not seek this remedy.
See
Compl. ¶¶ 30-38;
Mabry v. Superior Court,
In his opposition, Plaintiff argues that
Mabry
was wrongly decided and is “likely to fall” based on a petition for review filed in July 2010. However, that petition for review was denied months before Plaintiffs opposition was filed, so this argument is without merit.
See Mabry v. Superior Court,
2. Claim 3 (Fraudulent Misrepresentation), Claim 4 (Fraudulent Concealment) and Claim 5 (Conspiracy to Defraud and Convert) Also Fail
To establish a cause of action for fraudulent misrepresentation, Plaintiff must plead and prove four elements: (1) a knowingly false representation by Defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by Plaintiffs; and (4) resulting damages.
Gutierrez v. Wells Fargo Bank,
Wells Fargo moves to dismiss Plaintiffs fraud-related claims on a number of bases. First, it points out that the claims are time-barred because they are based on alleged actions that occurred during the origination of the loan in 2006 but the complaint was not brought until 2010. See Cal.Code Civ. P. § 338(d) (three year statute of limitation for fraud claims). Plaintiff does not address this argument in opposition and the Court finds that the fraud-related claims should also be dismissed as time-barred,
Second, Wells Fargo argues that the fraud-related claims have not been pled with the level of specificity required by Rule 9(b), and Plaintiff does not address this argument or attempt to justify the specificity of these claims. Rule 9(b) requires that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Fed.R.Civ.P. 9(b);
Vess v. Ciba-Geigy, Inc.,
Plaintiffs allegations of fraud are not pled with particularity. Plaintiff has not alleged any specific information about who made misrepresentations, when those misrepresentations were made or the content of form of the statements. Plaintiff does not allege which facts were material, which were and were not disclosed to them, which Defendant concealed which facts, and which Defendant had a duty to disclose those facts to them. Therefore, the fraud and conspiracy to defraud claims are dismissed on this basis as well.
3. Claim 9 (Conversion) Also Fails
Plaintiffs conversion claim is based on allegations of fraud, which have not been pled with the required specificity as discussed above.
See Montoya v. Countrywide Bank, FSB,
In his opposition, Plaintiff also appears to demand an accounting based on this claim, though he did not seek such relief in his Complaint. An accounting is a “ ‘species of disclosure, predicated upon the plaintiff’s legal inability to determine how much money, if any, is due.’ ”
Teselle v. McLoughlin,
4. Claim 6 (Unconscionability) Is Not a Claim
Wells Fargo correctly contends that Plaintiff’s sixth claim for unconscionability under California Civil Code section 1670.5 is a defense to the enforcement of a contract, not an affirmative claim.
See Dean Witter Reynolds, Inc. v. Superior Court,
5. Plaintiff Does Not State a Valid UCL Claim
Not only should Plaintiffs eighth claim for violation of California Business & Professions Code section 17200 be dismissed because it is preempted as applied in this case, it should also be dismissed because Plaintiff fails to state a claim with the requisite specificity. Section 17200 prohibits “any unlawful, unfair or fraudulent business act or practice. This cause of action is derivative of some other illegal conduct or fraud committed by a defendant, and a plaintiff must state with reasonable particularity the facts supporting the statutory elements of the violation.”
Lomboy v. SCME Mortgage Bankers,
Here, Plaintiffs 17200 claim is not sufficiently particular to satisfy the pleading standards. For example, Plaintiffs do not distinguish between Defendants with respect to the conduct alleged. Plaintiff also alleges that Defendants made improper disclosures, but fails to allege any particular facts to support that claim. Plaintiffs opposition simply summarizes the conclusory allegations of his complaint and does not otherwise attempt to explain how the claim is properly pled. The opposition *1038 also does not counter Wells Fargo’s persuasive point that, to the extent the claim is based on loan-origination allegations, it is time-barred by the applicable four-year statute of limitations. Accordingly, the sixth claim should be dismissed for failure to state a claim.
6. Claim 10 (Declaratory and Injunctive Relief) Should Be Dismissed
In addition to requesting dismissal based on Plaintiffs failure to indicate an ability or willingness to tender, Wells Fargo moves to dismiss Plaintiffs tenth claim for declaratory and injunctive relief on other grounds.
With respect to declaratory relief, Wells Fargo argues that this claim seeks a declaration of matters already alleged elsewhere in his complaint and should be dismissed because it is superfluous and subsumed within Plaintiffs’ other claims.
See Mangindin v. Washington Mut. Bank,
With respect to the injunctive relief claim, Wells Fargo correctly points out that injunctive relief is a remedy, not a claim. Further, to the extent that Plaintiffs have not otherwise stated a claim for relief against these Defendants, they are not entitled to injunctive relief. Accordingly, the tenth claim is also dismissed.
VI. Defendant’s Motion To Strike
Wells Fargo moves to strike all of the punitive damages claims from Plaintiffs complaint, as well as certain allegations relating to Plaintiffs UCL claim and an un-pled Unfair Debt Collection Practices Act claim. 3 Because all of Plaintiffs claims are DISMISSED WITH PREJUDICE, the Court need not rule on this motion and it is DENIED AS MOOT. IT IS SO ORDERED.
Notes
. The notice of removal does not mention the citizenship of ETS, and it is not the focus of either party's arguments. Plaintiff "as-sum[es] for the sake of argument that ETS could be a citizen of Delaware" and relies *1026 entirely on Wells Fargo's citizenship for its remand arguments. Motion at 5. ETS contends that its citizenship is to be ignored for purposes of diversity because it is an uncontested nominal defendant. ETS' Opp. to Motion for Sanctions at 3; see also Dkt. # 9.
. ETS did not file a separate opposition to the remand motion but did so for the sanctions motion. In its opposition, ETS contends that the motion is procedurally improper because it does not comply with the mandatory Rule 11 safe-harbor provision, which requires that sanctions motions be served 21 days before they are filed. Instead, it was served the same day it was filed and therefore no Rule 11 sanctions can be awarded. See Dkt. # 20 (certificate of service showing service on same day as filing). Wells Fargo also opposes the sanctions motion on procedural grounds. Because Plaintiff did not abide by the safe harbor provision of Rule 11, the motion is denied for this additional reason.
. Plaintiff claims punitive damages for each of his claims except for the quiet title and injunctive/declaratory relief claims based on Defendants' alleged malice, fraud, and or oppression. See Compl. ¶¶ 29, 38, 49, 51, 55, 67, 79, 88, 91; Prayer ¶¶ 4, 9, 11.