Bridgeman v. U.S.

Full title: HARLEY S. BRIDGEMAN, JR., Plaintiff, v. UNITED STATES OF AMERICA, FREMONT…

Court: United States District Court, E.D. California

Date published: Jan 21, 2011

No. 2:10-cv-01457 JAM KJN PS (E.D. Cal. Jan. 21, 2011)

Opinion

No. 2:10-cv-01457 JAM KJN PS.

January 21, 2011

ORDER and FINDINGS AND RECOMMENDATIONS

KENDALL NEWMAN, Magistrate Judge

Presently before the court¹ are: (1) a motion to dismiss plaintiff's First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by defendant T.D. Service Company (Dkt. No. 21); (2) a motion to dismiss plaintiff's First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by defendants Fremont Bank and Federal National Mortgage Association (Dkt. No. 25); and (3) a "motion to dismiss" plaintiff's First Amended Complaint pursuant to Federal Rules of Civil Procedure 12(h)(3) and 12(c) filed by defendant United States of America (Dkt. No. 56). Although styled a "motion to dismiss," the motion filed by the United States of America ("United States") is more accurately characterized as a motion to dismiss for lack of jurisdiction and a motion for judgment on the pleadings because the United States already filed an answer to plaintiff's First Amended Complaint (Dkt. No. 24).² See Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980) (per curiam).

1 This action proceeds before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).

2 Federal Rule of Civil Procedure 12(c) provides: "After the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings." To the extent that the United States's motion is one for judgment on the pleadings, it is properly before this court because the pleadings are closed as to the United States. See Whitson v. Bumbo, No. C 07-05597 MHP, 2009 WL 1515597, at *4 (N.D. Cal. Apr. 16, 2009) (unpublished); Johnson v. Dodson Pub. Schs., Dist. No. 2-A(C), 463 F. Supp. 2d 1151, 1156 (D. Mont. 2006).

On November 18, 2010, the undesigned conducted a hearing on the motions to dismiss filed by T.D. Service Company, Fremont Bank, and Federal National Mortgage Association (collectively, the "Financial Defendants"). (Dkt. No. 66.) The Financial Defendants were represented by their respective counsel via telephone. Plaintiff appeared in person and on his own behalf. Assistant United States Jason Ehrlinspiel appeared at the November 18th hearing on behalf of the United States, and plaintiff's objection to the presence of Mr. Ehrlinspiel at the hearing was noted on the record. That objection is overruled because the United States had a right to have its counsel present at the hearing on other parties' motions to dismiss, which was, in any event, a public hearing. The motion filed by the United States was set for hearing on December 9, 2010, and the undersigned submitted that motion on the briefs and record in this case (Dkt. No. 76). See Fed.R.Civ.P. 78(b); E. Dist. Local Rule 230(g). Having reviewed the briefs and record in this case and having considered the parties' respective arguments, the undersigned recommends that plaintiff's First Amended Complaint be dismissed with prejudice.

I. BACKGROUND

A. Factual Background

As explained below in the sub-section addressing the procedural history in this case, plaintiff's First Amended Complaint (Dkt. No. 20) is the operative pleading in this action. The factual allegations in the First Amended Complaint appear under "headers" that denote each of plaintiff's eight claims for relief. Thus, this factual summary generally proceeds claim-by-claim, instead of in a temporal narrative fashion.

In the First Amended Complaint, plaintiff alleges that he was an Air Traffic Control Specialist at the Oakland Air Route Traffic Control Center and was "removed from his position by a FAA/DOT supervisor . . . for what has been described in part, as a mental state problem." (First Am. Comp. ¶ 6.) Plaintiff alleges that he was "broken down" and subsequently deemed to be "medically incapacitated" and, therefore, not entitled to a medical clearance by "the FAA/DOT Western Pacific Regional Flight surgeon . . . and [the] ZOA Air Traffic Manager." (Id. ¶ 7.) Plaintiff was required to have a medical clearance to perform his job. (Id.) Plaintiff further alleges that he was forced against his will "seek and obtain evaluations and treatment from psychiatric physicians and others." (Id.) He alleges that he complied "to the extent practicable," but refused to disclose "certain information." (Id. ¶¶ 7-8.) In regards to his refusal to provide certain information, plaintiff maintains that: (1) he had a "duty" not to disclose certain information; (2) the FAA/DOT Western Pacific Regional Flight Surgeon and the ZOA Air Traffic Manager "have a duty not to disclose or force others to disclose information that violates, minimally, 5 U.S.C. § 2302(b)(8)";³ and (3) the ZOA Air Traffic Manager has indicated "that certain information should not be disclosed." (See id. ¶¶ 9, 10, 12.) Plaintiff's refusal to make disclosures allegedly resulted in the flight surgeon concluding that plaintiff's therapy was "not meaningful" and, ultimately, in plaintiff's termination from employment for failure to maintain a medical clearance. (See id. ¶¶ 8, 11.)

3 Plaintiff does not identify the information that he withheld. However, plaintiff attached Exhibit A to his First Amended Complaint, which is a memorandum from plaintiff to Jeff Tilley that indicates that plaintiff believed that he was instructed that "it would be best not to discuss" work related issues with a psychiatrist for "safety and security reasons." (First Am. Compl., Ex. A.) Title 5 of the United States Code addresses Government Organization and Employees. In part, 5 U.S.C. § 2302(b)(8) provides:

(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority —

. . .

(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of —

(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences —

(i) a violation of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,

if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; or

(B) any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences —

(i) a violation of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

The allegations summarized above are contained in the section of the First Amended Complaint addressing plaintiff's claim pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., which is asserted only against the United States in connection with plaintiff's termination from employment and alleged intentional infliction of emotional distress. Notably, plaintiff affirmatively states in his opposition briefs that he is not alleging a wrongful termination claim. (Pl.'s Opp'n to Fin. Defs.' Mots. to Dismiss at 4:5-7 (stating that plaintiff "has not filed a cause of action for wrongful termination and does not know how it applies to this case, if at all."), Dkt. No. 58; Pl.'s Opp'n to United States's Mot. to Dismiss at 6 ("[Plaintiff] has not filed a claim for wrongful termination."), Dkt. No. 63.)

The remaining seven claims in the First Amended Complaint are asserted against "all defendants" — without any distinction as to which alleged wrongful acts were committed by which defendant — and relate to the foreclosure and completed trustee's sale of plaintiff's home. A notice of default was recorded as to plaintiffs's family home on November 13, 2009, and a trustee's sale was scheduled for June 16, 2010. (First Am. Compl. ¶ 3.) Plaintiff alleges that the trustee's sale occurred on July 13, 2010. (See id. ¶¶ 36, 45.)

Plaintiff's second claim for relief seeks to quiet title in the property located at 2650 Leaning Tree Road, Placerville, CA 95667. (See id. ¶¶ 16-23.) Plaintiff alleges that he and his wife applied for a "Government Home Affordable Program (HAMP) home loan modification through Fremont Bank . . . toward the end of 2009" and that Fremont Bank offered plaintiff and his wife a HAMP loan modification in the beginning of 2010, but that plaintiff and his wife could not afford the modification.⁴ (Id. ¶¶ 21-22.) Plaintiff alleges that the foreclosure and sale of the subject property was "brought about by the wrongful acts and omissions of the Defendants." (Id. ¶ 23.)

4 One district court has described the HAMP program as follows:

HAMP is a government program, established pursuant to the Emergency Economic Stabilization Act of 2008, designed to promote loan modification and other foreclosure prevention services. Under HAMP, individual loan servicers voluntarily enter into contracts with Fannie Mae, acting as the financial agent of the United States, to perform loan modification services in exchange for certain financial incentives. The servicer's obligations under HAMP are set forth in the HAMP Agreement, as well as in Program Guidelines established by the Department of the Treasury.

Villa v. Wells Fargo, No. 10CV81 DMS (WVG), 2010 WL 935680, at *1 (S.D. Cal. Mar. 15, 2010) (unpublished).

In his third claim for relief, plaintiff seeks to enjoin the foreclosure and trustee's sale of the subject property. (Id. ¶¶ 24-34.) Plaintiff alleges that T.D. Service Co., Fremont Bank, and Federal National Mortgage Association recorded a notice of default on November 13, 2009, and noticed a trustee's sale for June 16, 2010. (Id. ¶¶ 31-32 Exs. B, C.) Plaintiff disputes the breach that brought about the default on the grounds that the wrongful acts or omissions of "the defendants" brought it about. (Id. ¶ 34.) However, as noted above, plaintiff alleges that the trustee's sale already took place on July 13, 2010. (Id. ¶¶ 36, 45.)

Plaintiff's fourth claim for relief seeks recovery for "negligence per se." (First Am. Compl. ¶¶ 35-42.) This claim is premised on the acts and omissions of defendants, allegedly acting under the authority of the Secretary of the Department of Housing and Urban Development, which resulted in a wrongful foreclosure. (See id. ¶¶ 36-38.) This claim asserts that T.D. Service Company offered plaintiff what amounted to a release of liability in exchange for a non-monetary resolution of the foreclosure action, and that this act (and possibly others) violated California Civil Code § 2924 l ⁵ and California Business and Professions Code § 17200, and were thus "negligent as a matter of law." (See First Am. Compl. ¶¶ 38-41.) Plaintiff does not allege the precise nature of any such violation and does not separately seek relief for the actual violations of these statutes — his claim is limited to a negligence claim under a negligence per se theory.

5 This section essentially pertains to the filing of a "declaration of non-monetary status" by a trustee on a deed of trust when that trustee "maintains a reasonable belief that it has been named in the action or proceeding solely in its capacity as trustee, and not arising out of any wrongful acts or omissions on its part in the performance of its duties as trustee." Cal. Civ. Code § 2924 l(a). It is unclear how any purported violation of this provision may support a negligence claim.

Plaintiff's fifth claim alleges an additional claim for "negligence per se." (First Am. Compl. ¶¶ 43-48.) This claim generally alleges that T.D. Service Co., Fremont Bank, and Federal National Mortgage Association were negligent by violating the following: " 28 U.S.C. § 2409a, ⁶ the National Housing Act, ⁷ TILA, ⁸ RESPA, ⁹ the Federal Housing Enterprise Financial Safety and Soundness Act, ¹⁰ contractual duties . . . pertaining to loans, codes of conduct, . . . and other applicable laws." (First Am. Compl. ¶ 47.) Specifically, plaintiff contends that he was deprived of disclosures regarding "appraisal, evaluation, and reports on multiple loan transactions during the initiation of the loan in default, qualified written requests pursuant to 12 U.S.C. § 2605, [and] loan insurance." (First Am. Compl. ¶ 47.) He does not specify which acts or omissions violated which particular statute other than the violation of 12 U.S.C. § 2605. Plaintiff also vaguely alleges that these defendants made misrepresentations and charged or attempted to charge excessive fees, and that "some all of these acts and/or omissions" were not known to plaintiff until the notice of default was recorded. Again, however, plaintiff styles this claim as one for negligence, not claims for violations of these particular statutes, breach of contract, or fraud.

6 Generally, Section 2409a addresses real property quiet tile actions that involve a dispute about title where the United States claims an interest. Plaintiff has not precisely alleged how this statute is implicated insofar as his negligence claims are concerned.

7 Plaintiff has not specifically elaborated on any specific violation of the National Housing Act, 12 U.S.C. §§ 1701 et. seq.

8 Plaintiff's First Amended Complaint does not allege or explain the precise basis for any purported violation of the Truth In Lending Act ("TILA"), 15 U.S.C. §§ 1601 et seq.

9 Although plaintiff has not explained the precise basis for any violation of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601 et seq., it appears from plaintiff's pleading that he is alleging a violation of 12 U.S.C. § 2605.

10 Plaintiff has not explained the precise basis for any violation of the Federal Housing Enterprise Financial Safety and Soundness Act, 12 U.S.C. §§ 4501 et seq.

Plaintiff's sixth claim for relief alleges a claim for "wrongful foreclosure." (First Am. Compl. ¶¶ 49-57.) Plaintiff generally alleges that the trustee's sale of his property was "wrongful for numerous reasons, including those which have already been stated herein." (Id. ¶ 50.) However, he also alleges that the trustee's sale violated 28 U.S.C. § 2409a, but does not explain the nature of the violation.

Plaintiff's seventh claim is one for "cancellation of instrument," resulting from the alleged wrongful foreclosure and trustee's sale. (First Am. Compl. ¶¶ 58-61.) This claim is, in essence, seeking relief that is derivative of plaintiff's wrongful foreclosure claim.

Finally, plaintiff's eighth claim for relief seeks the imposition of a constructive trust. (Id. ¶¶ 62-64.) Again, this request for a constructive trust is a form of relief and is derivative of plaintiff's other claims.

B. Procedural History

This case has a rather twisted procedural history. Accordingly, it is recounted here in some detail.

On June 14, 2010, plaintiff filed his original complaint in this action (Dkt. No. 1), which was prior to the occurrence of the trustee's sale of plaintiff's home. At no time did plaintiff seek a temporary restraining order or preliminary injunction from the court to stave off the trustee's sale. Defendants T.D. Service Company and Fremont Bank filed separate motions to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. Nos. 13, 17.)

In response to T.D. Service Company's and Fremont Bank's respective motions to dismiss, and prior to the hearing and resolution of those motions, plaintiff filed, on July 28, 2010, a First Amended Complaint. (Dkt. No. 20.) Plaintiff properly filed his First Amended Complaint "as a matter of course" pursuant to Federal Rule of Civil Procedure 15(a)(1)(B).

T.D. Service Company moved to dismiss the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 21.) Defendants Fremont Bank and Federal National Mortgage Association also moved to dismiss the First Amended Complaint pursuant to Rule 12(b)(6). (Dkt. No. 25.) In the interest of judicial economy, the court reset the hearings on those motions to dismiss for October 7, 2010, with the intention of hearing those motions together. (Dkt. No. 26.) Meanwhile, defendant United States filed an answer to the First Amended Complaint. (Dkt. No. 24.)

On September 9, 2010, plaintiff filed a "Second First Amended Complaint" in this matter, which will be referred to as the Second Amended Complaint. (Dkt. No. 27.) The court's docket does not indicate that plaintiff sought the other parties' written consent or leave to amend from the court, as required by Federal Rule of Civil Procedure 15(a)(2). The Second Amended Complaint attempted to add three additional FTCA claims against the United States. Despite plaintiff's failure to seek leave to amend, T.D. Service Company filed a motion to dismiss the Second Amended Complaint pursuant to Rule 12(b)(6), and the United States filed an answer to the Second Amended Complaint. (Dkt. Nos. 29, 31.)

On September 21, 2010, plaintiff filed a "Third First Amended Complaint," which will be referred to as the Third Amended Complaint. (Dkt. No. 32.) Again, the court's docket does not indicate that plaintiff sought the other parties' written consent or leave to amend from the court prior to filing the Third Amended Complaint. The Third Amended Complaint again attempted to add three additional FTCA claims against the United States and a claim of the deprivation of constitutional rights, apparently pursuant to 42 U.S.C. § 1983, against Fremont Bank and Federal National Mortgage Association.

Curiously, on September 21, 2010, plaintiff also filed a written opposition to T.D. Service Company's motion to dismiss plaintiff's First Amended Complaint. (Dkt. No. 33.) Then, on September 23, 2010, T.D. Service Company filed a motion to dismiss plaintiff's Third Amended Complaint pursuant to Rule 12(b)(6). (Dkt. No. 44.) Fremont Bank, Federal National Mortgage Association, and the United States did not respond to the Third Amended Complaint.

On September 29, 2010, plaintiff filed a document entitled "Plaintiff's Objection to Assertions of Second Or Third Amended Complaint." (Dkt. No. 46.) In that submission, plaintiff states the following:

This notice is to inform that plaintiff objects to any party that has asserted a SECOND or THIRD AMENDED COMPLAINT made by plaintiff because plaintiff has not filed a SECOND or THIRD AMENDED COMPLAINT up to this date for this case.

(Id.) Plaintiff's statement is contradicted by the court's docket in this case. It appears that plaintiff believed that his "Second First Amended Complaint" and "Third First Amended Complaint" were not attempts to amend his pleading. It is uncertain what purpose those later-filed pleadings served other than attempts to amend plaintiff's pleadings.

As reflected in an order entered October 1, 2010, the undersigned concluded that plaintiff exhausted his single amendment as a matter of course when he filed his First Amended Complaint. Accordingly, the court struck: (1) plaintiff's "Second First Amended Complaint"; (2) the United States's answer to the Second Amended Complaint; and (3) plaintiff's "Third First Amended Complaint." (Dkt. No. 51.) The court also ordered that it would consider the motions to dismiss the First Amended Complaint filed by T.D. Service Company, Fremont Bank, and Federal National Mortgage Association on November 18, 2010.

In its October 1, 2010 order, the court also advised plaintiff that he could seek leave to amend the First Amended Complaint. Plaintiff did not do so. However, on October 7, 2010, plaintiff filed objections to the undersigned's October 1, 2010 order, and sought reconsideration of that order by the United States District Judge assigned to this matter. (Dkt. No. 53.) United States District Judge John A. Mendez denied plaintiff's motion for reconsideration. (Dkt. No. 68.)

As noted above, the undersigned heard the Financial Defendants' motions to dismiss on November 18, 2010. Having concluded that plaintiff's First Amended Complaint was subject to dismissal prior to the hearing, the undersigned held the hearing only to ascertain whether there was any reason to permit plaintiff to further amend his complaint. In this regard, the undersigned attempted to ask plaintiff several questions about plaintiff's ability to amend his complaint. However, plaintiff reacted hostilely to the court's questions and repeatedly declined or refused to answer the court's questions.¹¹ As stated above, the undersigned submitted the United States's motion.

11 On December 8, 2010, plaintiff filed a motion for recusal seeking that the undersigned recuse himself from presiding over this matter. (Dkt. No. 79.) On December 16, 2010, the undersigned entered an order denying plaintiff's motion for recusal. (Dkt. No. 84.) On January 14, 2011, plaintiff filed a motion for reconsideration of the undersigned's order denying plaintiff's motion for recusal. (Dkt. No. 85.) Plaintiff's motion for reconsideration is pending before Judge Mendez.

II. LEGAL STANDARDS

A motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) or 12(h)(3) challenges the court's subject matter jurisdiction. Federal district courts are courts of limited jurisdiction that "may not grant relief absent a constitutional or valid statutory grant of jurisdiction," and "[a] federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." A-Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (citations and quotation marks omitted); see also Fed.R.Civ.P. 12(h)(3) ("If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action."). When ruling on a motion to dismiss for lack of subject matter jurisdiction, the court takes the allegations in the complaint as true. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). However, the court is not restricted to the face of the pleadings and "may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988), cert. denied, 489 U.S. 1052 (1989); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) ("A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence."). "When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Tosco Corp. v. Communities for a Better Env't., 236 F.3d 495, 499 (9th Cir. 2001) (per curiam), abrogated on other grounds by Hertz Corp v. Friend, 130 S. Ct. 1181 (2010); see also Colwell v. Dep't of Health Human Servs., 558 F.3d 1112, 1121 (9th Cir. 2009) ("In support of a motion to dismiss under Rule 12(b)(1), the moving party may submit 'affidavits or any other evidence properly before the court. . . . It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction." (citation omitted, modification in original)).

A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed.R.Civ.P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted). The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted).

"A judgment on the pleadings is properly granted when, taking all the allegations in the non-moving party's pleadings as true, the moving party is entitled to judgment as a matter of law."Ventress v. Japan Airlines, 603 F.3d 676, 681 (9th Cir. 2010) (citation and quotation marks omitted). Where a motion for judgment on the pleadings is used to raise the defense of failure to state a claim, the motion "faces the same test as a motion under Rule 12(b)(6)." McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988). "When considering a motion for judgment on the pleadings, [the] court may consider facts that are contained in materials of which the court may take judicial notice." Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 980 n. 18 (9th Cir. 1999) (citation and quotation marks omitted).

III. REQUESTS FOR JUDICIAL NOTICE

T.D. Service Company requests that the court take judicial notice of three publicly recorded documents: (1) a Deed of Trust recorded on January 16, 2004, as document number 2004-0003532-00 in the official records of the El Dorado County Recorder's Office ("Recorder's Office"); (2) a Substitution of Trustee recorded on January 15, 2010, as instrument number 2010-0002331-00 in the official records of the Recorder's Office; and (3) a Trustee's Deed Upon Sale recorded on August 2, 2010, as instrument number 2010-0034867 in the official records of the Recorder's Office. (Dkt. No. 22.) The court may take judicial notice of matters of public record, but "may not take judicial notice of a fact that is 'subject to reasonable dispute.'" Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir. 2001) (citing Fed.R.Evid. 201(b)). Additionally, under the "incorporation by reference" doctrine, a court may also review documents "whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading."Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (citation omitted and modification in original). The incorporation by reference doctrine also applies "to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Id. Accordingly, the undersigned takes judicial notice of the documents requested by T.D. Service Company, which are matters of public record.

Fannie Mae and Fremont Bank request that the court take judicial notice of the following documents: (1) the Grant Deed recorded on January 16, 2004, as document number 2004-0003531-00 in the official records of the Recorder's Office; (2) a Deed of Trust recorded on January 16, 2004, as document number 2004-0003532-00 in the official records of the Recorder's Office; (3) a Notice of Default and Election to Sell Under Deed of Trust recorded on November 13, 2009, as document number 2009-0056712-00 in the official records of the Recorder's Office; (4) a Notice of Trustee's Sale recorded on May 27, 2010, as document number 2010-0023410-00 in the Recorder's Office; (5) an Assignment of Deed of Trust recorded on August 2, 2010, as document number 2010-0034866-00 in the official records of the Recorder's Office; and (6) the Trustee's Deed Upon Sale recorded on August 2, 2010, as document number 2010-0034867-00 in the official records of the Recorder's Office. (Dkt. No. 25, Doc. No. 25-2.) For the reasons stated above as to T.D. Service Company's request for judicial notice, the undersigned takes judicial notice of these documents, which are matters of public record.

On December 9, 2010, plaintiff requested that the court take judicial notice of excerpts of the "Truth In Lending Comptroller's Handbook July 2010," which is published by the Office of the Comptroller of the Currency and provides consumers with information about the Truth In Lending Act. (Dkt. No. 81.) The undersigned takes judicial notice of the existence of the excerpts from this public document, but does not take judicial notice of the truth of any of the matters stated therein.

IV. DISCUSSION

Three motions are pending before the court. The undersigned first addresses the motion to dismiss and motion for judgment on the pleadings filed by the United States, and then addresses the motions to dismiss filed by the Financial Defendants. However, plaintiff's claims for injunctive relief, cancellation of instruments, and the imposition of a constructive trust are analyzed as to all defendants toward the end of these findings and recommendations.

A. The United States's Motions to Dismiss and for Judgment on the Pleadings

1. Plaintiff's FTCA Claim, Negligence Claims, and Wrongful Foreclosure Claim (Claims 1, 4, 5, and 6)

The United States seeks the dismissal of plaintiff's FTCA claim, negligence claims, and wrongful foreclosure claim on the grounds that the court lacks subject matter jurisdiction over those claims. Specifically, the United States that, in essence, it has not waived its sovereign immunity as to these claims because plaintiff failed to timely present these claims as required by the FTCA and, accordingly, those claims are forever barred as to the United States.

To confer subject matter jurisdiction in an action against a sovereign, there must exist (1) "statutory authority vesting a district court with subject matter jurisdiction," and (2) "a waiver of sovereign immunity." Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1016 (9th Cir. 2007). Because the United States is a sovereign, it is immune from suit unless it has expressly waived its immunity and consented to be sued. See Dunn Black, P.S. v. United States, 492 F.3d 1084, 1087-88 (9th Cir. 2007). The United States Supreme Court has "frequently held . . . that a waiver of sovereign immunity is to be strictly construed, in terms of scope, in favor of the sovereign." Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999). Moreover, the waiver cannot be implied, but must be "unequivocally expressed" in the statutory text. Id.; accord Harger v. Dep't of Labor, 569 F.3d 898, 903 (9th Cir. 2009). The party asserting a waiver of sovereign immunity bears "the burden of establishing that its action falls within an unequivocally expressed waiver of sovereign immunity by Congress. . . ." Dunn Black, P.S., 492 F.3d at 1088.

Relevant to plaintiff's claims against the United States, the FTCA waives the United States's sovereign immunity as to tort claims for money damages arising out of negligent or other wrongful acts or omissions of federal government employees acting within the scope of their employment. See 28 U.S.C. §§ 1346(b)(1), 2675(a); see also, e.g., Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008) ("The FTCA waives the government's sovereign immunity for tort claims arising out of negligent conduct of government employees acting within the scope of their employment."). An action against the United States brought pursuant to the FTCA may not be instituted "unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail." 28 U.S.C. § 2675(a). "A claim is deemed presented for purposes of § 2675(a) when a party files '(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim.'" Blair v. United States, 304 F.3d 861, 864 (9th Cir. 2002) (quoting Warren v. U.S. Dep't of Interior Bureau of Land Mgmt., 724 F.2d 776, 780 (9th Cir. 1984) (en banc)).¹² The FTCA further provides that "[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing . . . of notice of final denial of the claim by the agency to which it was presented." 28 U.S.C. § 2401(b); see also, e.g., Winter v. United States, 244 F.3d 1088, 1090 (9th Cir. 2001). "A claim accrues when a plaintiff knows that he has been injured and who has inflicted the injury."¹³ Winter, 244 F.3d at 1090.

12 A plaintiff's failure to satisfy the FTCA's claim presentation requirements deprives the court of subject matter jurisdiction over the claims at issue. As the Ninth Circuit Court of Appeals has remarked, the "claim requirement of section 2675 is jurisdictional in nature and may not be waived." Jerves v. United States, 966 F.2d 517, 519 (9th Cir. 1992); see also Alvarado, 509 F.3d at 1019 ("Appellants cannot establish subject matter jurisdiction through the FTCA because they have not administratively exhausted their claims."); Blair, 304 F.3d at 863-64 ("Under the claim presentation rule, a district court cannot exercise subject matter jurisdiction over an action brought pursuant to the FTCA unless the plaintiff 'shall have first presented the claim to the appropriate Federal agency. . . .'" (citing 28 U.S.C. § 2675(a); modification in original)).

13 In Winter, the Court of Appeals further stated: "Accrual of a claim does not 'await awareness by a plaintiff that his injury has been negligently inflicted.' As we have pointed out, 'It is well settled that the limitations period begins to run when the plaintiff has knowledge of injury and its cause, and not when the plaintiff has knowledge of legal fault.'" 244 F.3d at 1090 (citations omitted).

Here, plaintiff's First Amended Complaint does not allege that plaintiff complied with the FTCA's claim presentation requirement as to any of his claims against the United States. For this reason alone, plaintiff's claims against the United States must be dismissed for lack of subject matter jurisdiction.

Furthermore, plaintiff's claims against the United States based on the negligent or wrongful acts or omissions of government employees should be dismissed with prejudice because plaintiff has not met his burden to show that he adequately presented his claims to the United States, and nothing in plaintiff's submissions to the court suggests that plaintiff could amend his First Amended Complaint to cure the defects therein. First, as to plaintiff's express FTCA claim, which alleges negligence and wrongful acts on the part of government employees in connection with the termination of plaintiff's employment, plaintiff alleges that he was removed from his position as an Air Traffic Control Specialist on February 22, 2003. (First Am. Compl. ¶ 6.) Plaintiff's opposition brief and an exhibit attached to plaintiff's declaration in support thereof reflect that plaintiff was terminated from employment on September 3, 2004. (Pl.'s Opp'n to United States's Mot. to Dismiss at 6, 8; Bridgeman Decl. at 14 (termination letter stating that termination was effective September 3, 2004).) Thus, plaintiff was obligated to properly present his FTCA claim related to his employment by September 3, 2006. He did not do so and, accordingly plaintiff's first claim is forever barred.

Plaintiff counters in his written opposition that he filed formal and informal grievances in September of 2004 to dispute the personnel action taken against him, i.e., removal from duty and termination for failure to maintain a medical clearance, all of which were either expressly denied or should be deemed denied for lack of a response. (See Pl.'s Opp'n to United States's Mot. to Dismiss at 15-17, 20; Bridgeman Decl. at 18, 20, 21.) Even assuming that plaintiff intended that these formal and informal grievances serve as the means by which plaintiff timely presented his tort claims under the FTCA, those grievances are legally inadequate. None of the grievances states "a sum certain damages claim" with respect to plaintiff's claims, which is required to exhaust claims of tortious or wrongful conduct under the FTCA.See, e.g., Blair, 304 F.3d at 864. Thus, plaintiff's argument with respect to the grievances fails. Additionally, plaintiff's grievances do not seek money damages; they only seek reinstatement of plaintiff's medical clearance and return to job. To the extent plaintiff's tort claims seek injunctive relief in the form of reinstatement, such relief is barred because the only relief provided for in the FTCA is money damages. See Westbay Steel, Inc. v. United States, 970 F.2d 648, 651 (9th Cir. 1992); Palm v. United States, 835 F. Supp. 512, 518 (N.D. Cal. 1993).

Plaintiff's claims covered by the FTCA fail for the additional reason that they are preempted by the Civil Service Reform Act ("CSRA"), which is codified in various sections of Title 5 of the United States Code. Plaintiff contends that insofar as his employment was concerned, he was covered and subject to the provisions of the Civil Service Reform Act, and that he exhausted his remedies consistent with that act and the applicable collective bargaining agreement. (See Pl.'s Opp'n to United States's Mot. to Dismiss at 12-16.) "The CSRA limits federal employees challenging their supervisors' 'prohibited personnel practices' to an administrative remedial system." Mahtesian v. Lee, 406 F.3d 1131, 1134 (9th Cir. 2005). Thus, assuming the truth of plaintiff's representation that he is covered by the CSRA, if plaintiff's termination constitutes a "prohibited personnel action" under the CSRA, his claims related to the termination of his employment are barred because the CRSA provides the exclusive means by which plaintiff can challenge personnel actions. See id. ("If the conduct that [Mahtesian] challenge[s] in this action falls within the scope of the CSRA's 'prohibited personnel practices,' then the CSRA's administrative procedures are his only remedy, and the federal courts cannot resolve Appellants' claims under . . . the FTCA.") (modifications in original) (quoting Orsay v. U.S. Dep't of Justice, 289 F.3d 1125, 1128 (9th Cir. 2002)). The Ninth Circuit Court of Appeals has held that alleged unlawful termination constitutes a "prohibited personnel action" under the CSRA. Manango v. United States, 529 F.3d 1243, 1247 (9th Cir. 2008) (holding that appellant's "claim that he was unfairly terminated falls squarely within the definition of a personnel action as a 'significant change in duties, responsibilities or working conditions' under the CSRA") (citing 5 U.S.C. § 2302(a)(2)(A)(xi)). Accordingly, plaintiff's FTCA claims are preempted by the CSRA, and must be dismissed with prejudice for this additional reason.

Plaintiff's negligence per se claims and wrongful foreclosure claim should similarly be dismissed with prejudice. For similar reasons as those stated above, plaintiff has not presented these claims to the United States as required by the FTCA. Nothing in plaintiff's operative compliant or other papers filed with the court suggests that plaintiff could cure the deficiencies in regards to the FTCA presentation requirements.

2. Plaintiff's Quiet Title Act Claim (Claim 2)

Plaintiff's quiet title claim seeks to quiet title to the subject property in plaintiff's name pursuant to 28 U.S.C. § 2409a, which authorizes the naming of the United States as a defendant in a civil action to quiet title to real property in which the United States claims an interest. The United States has moved to dismiss on the grounds that it does not claim an interest in the property at issue here. Plaintiff alleges that the United States claims an interest by virtue of the fact that defendant Federal National Mortgage Association, or "Fannie Mae," "is the owner of the loan on the property" and "is a potential party to become an owner of the property" after the "foreclosure sale." (See First Am. Compl. ¶¶ 19-20.) Plaintiff alleges elsewhere that the trustee's sale has already occurred. (Id. ¶ 36.)

In relevant part, the Quiet Title Act ("QTA"), 28 U.S.C. § 2409a, provides: "The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest or water rights." 28 U.S.C. § 2409a(a). The QTA waives the United States's sovereign immunity in actions to quiet title. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009). The Ninth Circuit Court of Appeals has held that "[f]or a court to exercise jurisdiction under the QTA, '(1) the United States must claim an interest in the property at issue, and (2) there must be a disputed title to real property.'" Id. at 686 (quoting Leisnoi, Inc. v. United States, 170 F.3d 1188, 1191 (9th Cir. 1999)).

The first element of the jurisdictional test is at issue here, and plaintiff alleges that the United States claims an interest in the subject property because Fannie Mae allegedly claims an interest in the now-defaulted loan and/or the property. The undersigned concludes that the United States does not claim an interest in the subject property because Fannie Mae is not a federal agency. As provided in 12 U.S.C. § 1716b, what was previously referred to as the Federal National Mortgage Association was partitioned into two entities. One corporation, Fannie Mae, retained the name Federal National Mortgage Association and was designated as a "Government-sponsored private corporation." Id. The other corporation, known as the Government National Mortgage Association, was designated to remain "in the Government." Id. One judge of this court recently stated, citing Section 1716b, that "Fannie Mae is a private, for-profit entity." See Hookano v. Wash. Mut. Bank, Inc., No. CIV. S-08-751 LKK/JFM, 2010 WL 4623956, at *2 (E.D. Cal. Nov. 4, 2010) (unpublished) (stating also that Fannie Mae is "a private shareholder-owned company, and its common stock is publicly traded on the New York Stock Exchange). The undersigned agrees that, by statute, Fannie Mae is not a federal agency. Accordingly, the United States does not claim an interest in the subject property.

In his opposition brief, plaintiff makes two arguments in an effort to demonstrate that the United States has claimed an interest to the subject property by virtue of Fannie Mae's interest. First, plaintiff relies on a federal regulation that provides that the Secretary of the Department of Housing and Urban Development ("HUD") has general regulatory power over Fannie Mae. (Pl.'s Opp'n to United States's Mot. to Dismiss at 22 (citing 24 C.F.R. § 81.1(a)).) Second, plaintiff argues that Fannie Mae is, in essence, a federal agency because the Federal Housing Finance Agency ("FHFA") became the conservator of Fannie Mae in 2008. (Pl.'s Opp'n to United States's Mot. to Dismiss at 23-25.) The undersigned is not persuaded by plaintiff's arguments. However, even assuming that the United States could be found to claim an interest here, plaintiff's quiet title claim would fail because it is contingent on his other claims for relief which have been found to be subject to dismissal. See, cf., Juarez v. Wells Fargo Bank, N.A., No. CV 09-3104 AHM (AGRx), 2009 WL 3806325, at *2 (C.D. Cal. Nov. 11, 2009) (dismissing plaintiff's quiet title claim with prejudice because that claim was dependent on plaintiff's right to rescind the contract and that right to rescind was time-barred). Accordingly, the undesigned will recommend the dismissal of plaintiff's QTA claim with prejudice.

B. The Financial Defendants' Motions to Dismiss

Before turning to the Financial Defendants' motions to dismiss, the undersigned addresses two issues that impact several of the claims against the Financial Defendants. First, the undersigned clarifies that because, as explained above, the United States does not claim an interest in the property at issue, 28 U.S.C. § 2409a does not govern plaintiff's quiet title claim. Thus, California law, and not federal law guides the court's discussion of plaintiff's quiet title claim.

Second, the undersigned concludes that to the extent that plaintiff is claiming any alleged procedural irregularities in the foreclosure of the property and trustee's sale in support of claims seeking to set aside that sale and quiet title in plaintiff, such claims fail because plaintiff has not alleged a tender of the entire indebtedness. "Under California law, in an action to set aside a trustee's sale, a plaintiff must demonstrate that he has made a valid and viable tender [offer] of payment of the indebtedness." Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177, 1183-84 (N.D. Cal. 2009) (citations and quotation marks omitted); see also Alcaraz v. Wachovia Mortgage FSB, 592 F. Supp. 2d 1296, 1304 (E.D. Cal. 2009) ("'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.'") (citing Karlsen v. Am. Sav. Loan Ass'n, 15 Cal. App. 3d 112, 92 Cal. Rptr. 851 (Ct. App. 1971)). A tender must be one of full performance and must also be unconditional. Arnolds Mgmt. Corp. v. Eischen, 158 Cal. App. 3d 575, 580, 205 Cal. Rptr. 15, 18 (Ct. App. 1984). The California Court of Appeal has held that the tender rule applies in an action to set aside a trustee's sale for irregularities in the sale notice or procedure and has stated that "[t]he rationale behind the rule is that if plaintiffs could not have redeemed the property had the sale procedures been proper, any irregularities in the sale did not result in damages to the plaintiffs." FPCI RE-HAB 01 v. E G Invs., Ltd., 207 Cal. App. 3d 1018, 1021, 255 Cal. Rptr. 157, 160 (Ct. App. 1989). Furthermore, a party must allege full tender "in order to maintain any cause of action for irregularity in the sale procedure." Abdallah v. United Savs. Bank, 43 Cal. App. 4th 1101, 1109, 51 Cal. Rptr. 2d 286, 292 (Ct. App. 1996); see also Arnolds Mgmt. Corp., 158 Cal. App. 3d at 579, 205 Cal. Rptr. at 18 ("A cause of action 'implicitly integrated' with the irregular sale fails unless the trustor can allege and establish a valid tender." (citation omitted)). This rule also generally applies to a claim to cancel a voidable sale under a deed of trust. See Karlsen, 15 Cal. App. 3d at 117, 92 Cal. Rptr. at 854 ("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.").

Here, plaintiff has not alleged that he has tendered the full amount of the indebtedness.¹⁴ Accordingly, plaintiff's claims including his quiet title, negligence, wrongful foreclosure, and cancellation claims fail to the extent they rely on procedural irregularities in the foreclosure and trustees' sale of the property. See, e.g., Ngoc Nguyen v. Wells Fargo Bank, N.A., F.Supp.2d, No. C-10-4081-EDL, 2010 WL 4348127, at *11-12 (N.D. Cal. Oct. 27, 2010) (dismissing wrongful foreclosure and quiet title claims for failure to tender); accord Garcia v. Wachovia Mortgage Corp., 676 F. Supp. 2d 895, 914 (C.D. Cal. 2009) ("In order to allege a claim to quiet title, Plaintiff must allege ability to tender the amounts admittedly borrowed."). The undersigned addresses additional grounds for dismissal below.

14 Plaintiff's opposition brief states that he alleged a proper tender in his First Amended Complaint. (Pl.'s Opp'n to Fin. Defs.' Mots. to Dismiss at 19, Dkt. No. 58.) This assertion is not supported by the allegations in the First Amended Complaint, and plaintiff repeatedly refused to answer the undersigned's questions regarding the tender issue at the November 18, 2010 hearing.

1. T.D. Service Company's Motion to Dismiss

a. Quiet Title Claim

T.D. Service Company moves to dismiss plaintiff's quiet title claim on the grounds that T.D. Service Company, which acted as the foreclosure trustee with respect to a trustee's sale that has already occurred, does not claim any interest in the property at issue and, accordingly, is not a proper party insofar as the quiet title claim is concerned. California Code of Civil Procedure § 762.010 provides that the "plaintiff shall name as defendants in the action the persons having adverse claims to the title of the plaintiff against which a determination is sought." Under the facts of this case, the argument of T.D. Service Company, which claims no interest of any type in the property, is well-taken. Accordingly, plaintiff's quiet title claim should be dismissed.¹⁵

15 Plaintiff has not alleged in his First Amended Complaint that T.D. Service Company has an unknown, uncertain, or contingent interest in the property, which might support naming T.D. Service Company as a defendant under certain circumstances. See Cal. Civ. Proc Code § 762.020(b).

b. Negligence Per Se Claims

Next, T.D. Service Company argues that plaintiff's negligence claims should be dismissed because it does not owe a duty to plaintiff beyond the statutory duties provided in California Civil Code §§ 2924 et seq.¹⁶ Generally, "[t]o prevail on [a] negligence claim, plaintiffs must show that [the defendant] owed them a legal duty, that it breached the duty, and that the breach was a proximate or legal cause of their injuries." Merrill v. Navegar, Inc., 26 Cal. 4th 465, 477, 28 P.3d 116, 123 (Cal. 2001). There is no such thing as an independent claim for "negligence per se," and this theory does not confer a private action where a statute does not otherwise provide for one. See,e.g., Basham v. Pac. Funding Group, No. 2:10-cv-96 WBS GGH, 2010 WL 2902368, at *2 (E.D. Cal. July 22, 2010) (unpublished) ("The negligence per se doctrine does not establish a cause of action distinct from negligence."). Instead, negligence per se is an evidentiary doctrine, codified at California Evidence Code § 669, which creates a presumption that a defendant's conduct fell below the applicable standard of care, i.e., a presumption of a breach, "if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted." Quiroz v. Seventh Avenue Ctr., 140 Cal. App. 4th 1256, 1285, 45 Cal. Rptr. 3d 222, 244 (Ct. App. 2006); accord Millard v. Biosources, Inc., 156 Cal. App. 4th 1338, 1353, 68 Cal. Rptr. 3d 177, 187-88 (Ct. App. 2007).

16 The existence of a legal duty on the part of the defendant is a question of law to be determined by the court. Kentucky Fried Chicken of Cal., Inc. v. Superior Court, 14 Cal. 4th 814, 819, 927 P.2d 1260 (Cal. 1997).

Here, T.D. Service Company's argument that it owes plaintiff no duty beyond its duties contained in California Civil Code §§ 2924 et seq. is supported by California case law. See I.E. Assocs. v. Safeco Title Ins. Co., 39 Cal. 3d 281, 288, 702 P.2d 596, 600 (Cal. 1985) ("In short, there is no authority for the proposition that a trustee under a deed of trust owes any duties with respect to exercise of the power of sale beyond those specified in the deed and the statutes."); Banc of Am. Leasing Capital, LLC v. 3 Arch Trustee Servs., Inc., 180 Cal. App. 4th 1090, 1097, 103 Cal. Rptr. 3d 397, 401 (Ct. App. 2009) ("The rights and powers of trustees in nonjudicial foreclosure proceedings are strictly limited and defined by the contract of the parties and the statutes" (citation and quotation marks omitted).). Plaintiff's First Amended Complaint does not contain allegations sufficient to state a plausible claim that T.D. Service Co. violated those limited duties. At most, plaintiff cursorily alleges that T.D. Service Company violated California Civil Code § 2924 l, which permits a trustee to file a declaration of nonmonetary status, ¹⁷ and derivatively violated California Business and Professions Code § 17200. (First Am. Compl. ¶ 41.) However, plaintiff has not identified a duty imposed on T.D. Service Company in Section 2924 l that would give rise to liability for negligence under a negligence per se theory.¹⁸

17 As a judge of this court recently explained, California Civil Code Section 2924 l provides that "where 'trustee under a deed of trust [who] is named in an action or proceeding in which the deed of trust is the subject, and in the event that the trustee maintains a reasonable belief that it has been named in the action or proceeding solely in its capacity as trustee' it may file a declaration of nonmonetary status. If unopposed, 'the trustee shall not be required to participate any further in the action or proceedings, shall not be subject to any monetary awards as and for damages, attorneys' fees or costs, shall be required to respond to any discovery requests as a nonparty, and shall be bound by any court order relating to the subject deed of trust that is subject to the action or proceeding.'" Tran v. Wash. Mut. Bank, No. CIV. S-09-3277 LKK/DAD, 2010 WL 520878, at *1 (E.D. Cal. Feb. 11, 2010) (unpublished) (citations omitted, modification in original).

18 Indeed, it is not certain that Section 2924 l is a substantive rule that applies in federal court. See Tran, 2010 WL 520878, at * 1 (concluding that Section 2924 l is a state procedural rule and thus "nonmonetary status may not be granted in federal court").

Moreover, plaintiff's argument that T.D. Service Company owes a broader fiduciary duty to him fails. See Kachlon v. Markowitz, 168 Cal. App. 4th 316, 335, 85 Cal. Rptr. 3d 532, 546 (Ct. App. 2008) ("The trustee in nonjudicial foreclosure is not a true trustee with fiduciary duties, but rather a common agent for the trustor and beneficiary. The scope and nature of the trustee's duties are exclusively defined by the deed of trust and the governing statutes. No other common law duties exist.") (citation omitted); accord Saldate v. Wilshire Credit Corp., 686 F. Supp. 2d 1051, 1061-62 (E.D. Cal. 2010). Accordingly, plaintiff's negligence claims should be dismissed against T.D. Service Company.¹⁹

19 Additionally, as to plaintiff's fifth claim for relief, alleging various violations of statutes, plaintiff does not allege any negligent conduct on the part of T.D. Service Company in his First Amended Complaint.

c. Wrongful Foreclosure Claim

In response to plaintiff's alleged wrongful foreclosure claim, T.D. Service Company seeks dismissal on the grounds that: (1) plaintiff has not alleged any specific wrongdoing on T.D. Service Company's part; (2) the allegations pertaining to the claim of wrongful foreclosure are redundant of the other allegations in the complaint; and (3) T.D. Service Company is immune from liability under California Civil Code § 2924(d). Plaintiff has not alleged any specific acts supporting T.D. Service Company's liability for wrongful foreclosure. His First Amended Complaint reflects that T.D. Service Company acted as a trustee in connection with the non-judicial foreclosure and trustee's sale, but does not allege facts regarding the basis for T.D. Service Company's liability for wrongful foreclosure. Accordingly, without more, plaintiff's claim appears to be redundant of his other claims, and plaintiff has failed to state a claim against T.D. Service Company in regards to the claim for wrongful foreclosure.²⁰ The court need not reach T.D. Service Company's other arguments.

20 At most, plaintiff's opposition brief alleges that T.D. Service Company proposed a settlement agreement to plaintiff, which plaintiff rejected. It is not clear how this alleged offer of settlement gives rise to liability for wrongful foreclosure.

2. Federal National Mortgage Association and Fremont Bank's Motion to Dismiss

a. Quiet Title Claim

Plaintiff's quiet title claim is premised on an allegation that Fremont Bank offered plaintiff and his wife "a United States Government Home Affordable Program (HAMP) home loan modification at the beginning of 2010," but that plaintiff and his wife could not afford the modification. Federal National Mortgage Association and Fremont Bank move to dismiss plaintiff's quiet title claim as to them on the grounds that they are not liable for plaintiff's inability to afford the loan modification offered and, in any event, owed no duty to offer a loan modification to plaintiff.

As an initial matter, plaintiff alleges that he was actually offered a loan modification, but simply could not afford it. Plaintiff has not provided any authority in his opposition for the proposition that plaintiff was entitled to a loan modification that he could afford and that a failure to provide an affordable loan modification supports the quieting of title in plaintiff. Moreover, insofar as the HAMP program is concerned, district courts have persuasively concluded that lenders are not required to make loan modifications for borrowers who qualify under HAMP and that there is no private right of action to enforce obligations under HAMP that exist between a loan servicer and the government. See Wilson v. GMAC Mortgage LLC, 10CV2559 DMS (NLS), 2010 WL 5387829, at *1 (S.D. Cal. Dec. 22, 2010) (unpublished) ("HAMP generally involves an agreement between a participating loan servicer and the U.S. Department of Treasury and a borrower does not have a private right to enforce the HAMP contract."); Ingalsbe v. Bank of Am., N.A., No. 1:10-cv-01665-OWW-SMS, 2010 WL 5279839, at *5 (E.D. Cal. Dec. 13, 2010) (unpublished) (collecting cases and stating that the "consensus among district courts in the Ninth Circuit is that there is no private right of action under HAMP"); Hernandez v. HomeEq Servicing, No. 1:10cv01484 OWW DLB, 2010 WL 5059673, at *2-3 (E.D. Cal. Dec. 6, 2010) (unpublished) (concluding that HAMP provides incentives to modify loans but does not require such modifications, and that there is no private right of action to enforce HAMP); Hoffman v. Bank of Am., No. C 10-2171 SI, 2010 WL 2635773, at *5 (N.D. Cal. June 30, 2010) (unpublished) (concluding that "lenders are not required to make loan modifications for borrowers that qualify under HAMP nor does the servicer's agreement confer an enforceable right on the borrower"); Marks v. Bank of Am., No. 03:10-cv-08039-PHX-JAT, 2010 WL 2572988, at *5-7 (D. Ariz. June 22, 2010) (unpublished) (discussing the history of HAMP and concluding that no express or implied private right of action exists to enforce HAMP obligations). Accordingly, plaintiff's quiet title claim should be dismissed.²¹

21 Fannie Mae and Fremont Bank argue that they had no obligation to offer plaintiff a loan modification under California Civil Code § 2923.6. However, plaintiff does not make such an argument. In any event, to the extent that plaintiff argues that he as entitled to a loan modification pursuant to California Civil Code § 2923.6, such an argument fails because that statutory section does not place a duty on Fannie Mae or Fremont Bank to offer plaintiff a loan modification. See, e.g., Pantoja, 640 F. Supp. 2d at 1187-88.

b. Negligence Per Se Claims

Fremont Bank and Federal National Mortgage Association argue that plaintiff's First Amended Complaint fails to state a claim for negligence based on statutory violations. The undersigned agrees.

First, the undersigned agrees with Fremont Bank and Federal National Mortgage Association's assertion that "as a general rule, a financial institution owes no duty of care to a borrower when the institution's involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money." Nymark v. Heart Fed. Sav. Loan Ass'n, 231 Cal. App. 3d 1089, 283 Cal. Rptr. 53, 56 (Ct. App. 1991); see also Wagner v. Benson, 101 Cal. App. 3d 27, 35, 161 Cal. Rptr. 516 (Ct. App. 1980) ("Liability to a borrower for negligence arises only when the lender 'actively participates' in the financed enterprise 'beyond the domain of the usual money lender'" (citation omitted).). Plaintiff has not alleged anything more than an armslength relationship between himself and Fremont Bank and Federal National Mortgage Association insofar as his loan is concerned, and as a result, plaintiff's claim in his opposition that these defendants owed plaintiff a general fiduciary duty is not well-taken.

Second, the undersigned concludes that plaintiff failed to allege facts identifying the specific breach of a specific duty imposed on Fremont Bank and Federal National Mortgage Association by the National Housing Act, or the Federal Housing Enterprise Financial Safety and Soundness Act. (See First Am. Compl. ¶ 47.) Fremont Bank and Federal National Mortgage Association should not be left to guess about the nature of the statutory duties purportedly owed and violated by them in regards to plaintiff.²² Without more, plaintiff's negligence per se claims that rely on these statutes fail.

22 Moreover, in the context of plaintiff's negligence per se claim, plaintiff alleges that Fremont Bank and Federal National Mortgage Association engaged in fraud. (First Am. Compl. ¶ 47.) However, plaintiff's fraud allegations are vague and conclusory and do not meet the specificity requirements attendant to claims of fraud under the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 9(b) ("In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.")

Plaintiff's First Amended Complaint appears to allege that either Fremont Bank and Federal National Mortgage Association failed to respond to a qualified written request submitted by plaintiff, in violation of a provision of RESPA, 12 U.S.C. § 1205. (See First Am. Compl. ¶ 47.) Plaintiff's allegations are general and do not specify which provision of Section 1205 either Fremont Bank and Federal National Mortgage Association allegedly violated. In regards to a qualified written request for information ("QWR"), 12 U.S.C. § 1205(e)(1) provides:

(e) Duty of loan servicer to respond to borrower inquiries

(1) Notice of receipt of inquiry

(A) In general

If any servicer of a federally related mortgage loan receives a qualified written request from the borrower (or an agent of the borrower) for information relating to the servicing of such loan, the servicer shall provide a written response acknowledging receipt of the correspondence within 20 days (excluding legal public holidays, Saturdays, and Sundays) unless the action requested is taken within such period.

(B) Qualified written request

For purposes of this subsection, a qualified written request shall be a written correspondence, other than notice on a payment coupon or other payment medium supplied by the servicer, that —

(i) includes, or otherwise enables the servicer to identify, the name and account of the borrower; and

(ii) includes a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower.

Plaintiff's First Amended Complaint does not allege whether and when plaintiff actually sent a QWR to either Federal National Mortgage Association or Fremont Bank, whether the QWR met the requirements of the statute, and what plaintiff sought through the QWR. Without more, plaintiff's negligence claim should be dismissed to the extent it is premised on RESPA.²³ See, e.g., Javaheri v. JPMorgan Chase Bank, N.A., No. CV10-08185 ODW (FFMx), 2011 WL 97684, at *4 (C.D. Cal. Jan. 11, 2011) (unpublished) (dismissing plaintiff's RESPA claim because plaintiff's complaint failed to allege that his request constituted a QWR under Section 2605(e)(1)(B)).

23 Plaintiff's opposition brief, which does not constitute part of the First Amended Complaint, discusses a request for appraisal documents allegedly sent to Fremont Bank. (Pl.'s Opp'n to Fin. Defs.' Mot. to Dismiss at 17-18.) It is unclear whether this alleged request — which is not identified in the First Amended Complaint — serves as the basis for plaintiff's RESPA claim. Assuming it is, plaintiff's claim fails because plaintiff's First Amended Complaint does not allege actual pecuniary harm in support of actual damages under RESPA and does not allege a pattern or practice of non-compliance with RESPA in support of statutory damages. See Lal v. Am. Home Servicing, Inc., 680 F. Supp. 2d 1218, 1223 (E.D. Cal. 2010) (dismissing RESPA claim where plaintiff's complaint did not allege pecuniary damages in support of a claim for actual damages and did not allege a pattern or practice of non-compliance with RESPA in support of a claim for statutory damages); Allen v. United Fin. Mortgage Corp., 66 F. Supp. 2d 1089, 1097 (N.D. Cal. 2009) (concluding that failure to plead pecuniary loss attributable to the violation of RESPA was fatal to the claim).

Plaintiff's First Amended Complaint fails to allege sufficient facts establishing a statutory duty on the part of Fremont Bank and Federal National Mortgage Association, and a violation thereof, in regards to the TILA statute. (See First Am. Compl. ¶ 47.) However, although factual allegations in an opposition to a motion to dismiss are not to be considered in evaluating the motion to dismiss, plaintiff's opposition alleges a violation of 12 C.F.R. § 226.4(d)(1)(i), a regulation under the TILA statute. (See Pl.'s Opp'n to Fin. Defs.' Mots. to Dismiss at 18.) Plaintiff contends that in connection with this regulation, "information regarding Credit Life, Accident, Health, or Loss of Income Insurance" was not disclosed to him. (Id.) Section 226.4(d)(1)(i) provides:

(d) Insurance and debt cancellation and debt suspension coverage.

(1) Voluntary credit insurance premiums. Premiums for credit life, accident, health, or loss-of-income insurance may be excluded from the finance charge if the following conditions are met:

(i) The insurance coverage is not required by the creditor, and this fact is disclosed in writing.

(ii) The premium for the initial term of insurance coverage is disclosed in writing. If the term of insurance is less than the term of the transaction, the term of insurance also shall be disclosed. The premium may be disclosed on a unit-cost basis only in open-end credit transactions, closed-end credit transactions by mail or telephone under § 226.17(g), and certain closed-end credit transactions involving an insurance plan that limits the total amount of indebtedness subject to coverage.

(iii) The consumer signs or initials an affirmative written request for the insurance after receiving the disclosures specified in this paragraph, except as provided in paragraph (d)(4) of this section. Any consumer in the transaction may sign or initial the request.

12 C.F.R. § 226.4(d)(1)(i)-(iii). Initially, it is unclear from the First Amended Complaint and plaintiff's opposition how this regulation applies here. Moreover, plaintiff has not alleged that the premiums for the types of insurances identified in the regulation were excluded from the finance charge in relation to his loan, which is a condition required for the disclosures identified in Section 226.4(d)(1)(i). Thus, plaintiff has not sufficiently alleged that either Fremont Bank and Federal National Mortgage Association had a duty to disclose the information provided for in the regulation and, accordingly, plaintiff's negligence claim fails as to this specific alleged TILA violation.

For the reasons stated above, plaintiff's negligence per se claims should be dismissed for failure to state a claim.

c. Wrongful Foreclosure Claim

As is the case with respect to T.D. Service Company, the success of plaintiff's wrongful foreclosure claim is contingent on the success of his other claims. Because plaintiff has not successfully pled a plausible claim in any other respect, and failed to allege a tender of the entire indebtedness, his wrongful foreclosure claim fails.

C. Plaintiff's Claims For Injunctive Relief, Cancellation, and A Constructive Trust As To All Defendants (Claims 3, 7 and 8)

1. Injunctive Relief

Plaintiff's claim for injunctive relief seeks to enjoin the trustee's sale of his foreclosed property, which is alleged to have taken place on July 13, 2010. It appears that this claim is a hold-over claim from plaintiff's original complaint, which was filed prior to the trustee's sale. (See Compl., June 14, 2010, Dkt. No. 1.) The undersigned recommends dismissal of this claim because: (1) injunctive relief is a remedy, not an independent claim, and (2) plaintiff's request for the particular injunction sought is moot.

As an initial matter, injunctive relief is a remedy that derives from the underlying claims, not an independent claim.See, e.g., Lane v. Vitek Real Estate Indus. Group, 713 F. Supp. 2d 1092, 1104 (E.D. Cal. 2010); Hafiz v. Greenpoint Mortgage Funding, Inc., 652 F. Supp. 2d 1039, 1049 (N.D. Cal. 2009);Schimsky v. U.S. Ofc. of Personnel Mgmt., 587 F. Supp. 2d 1161, 1168 (S.D. Cal. 2008); Cox Comm'n PCS, L.P. v. City of San Marcos, 204 F. Supp. 2d 1272, 1283 (S.D. Cal. 2002); accord Marlin v. Aimco Venezia, LLC, 154 Cal. App. 4th 154, 162, 64 Cal. Rptr. 3d 488, 494-95 (Ct. App. 2007). For this reason alone, the court recommends dismissal of plaintiff's "claim" for injunctive relief.

In any event, plaintiff's "claim" seeking to enjoin an act that has already been completed is moot. The trustee's sale occurred on July 13, 2010. The court cannot prevent the trustee's sale from occurring because it has already occurred. Accordingly, the undersigned recommends that plaintiff's claim for injunctive relief be dismissed with prejudice.²⁴

24 Plaintiff also seeks injunctive relief in his "prayer" section that essentially seeks to set aside the trustee's sale and/or prevent any eviction of plaintiff and his wife from the property.(See First Am. Compl. at 16.) That requested relief is plainly dependent on plaintiff's remaining claims. Accordingly, such relief rises or falls with plaintiff's remaining claims.

2. Cancellation of Instruments

Plaintiff's seventh claim seeks cancellation of "any instruments that result in a termination of ownership as a product of the foreclosure and July 13, 2010, trustee's sale."²⁵ (First Am. Compl. ¶ 60.) Plaintiff's request for cancellation is premised on the other acts or omissions alleged elsewhere in plaintiff's First Amended Complaint. (See id. ¶ 61 ("Because of the misconduct and/or violations, as stated herein . . ., any instruments depriving plaintiff and his wife of their ownership in the subject property should be void and cancelled.").) Plaintiff does not expressly identify which instruments are the subject of this claim.

25 California Civil Code § 3412 provides: "A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled."

The undersigned recommends the dismissal of plaintiff's claim for cancellation as to all defendants. First, district courts have concluded that cancellation of an instrument such as a deed is an equitable remedy and not an independent basis for liability. See, e.g., Gwin v. Pac. Coast Fin. Servs., No. 09cv2734 BTM (BLM), 2010 WL 1691567, at *4 (S.D. Cal. Apr. 23, 2010) (unpublished) ("Cancellation is an equitable remedy.");Qureshi v. Countrywide Home Loans, Inc., No. C 09-4198 SBA, 2010 WL 841669, at *7 (N.D. Cal. Mar. 10, 2010) (unpublished) ("A request to cancel a trustee's deed is a request for a remedy as opposed to an independent cause of action.") (citing Porter v. Superior Court, 73 Cal. App. 3d 793, 799, 141 Cal. Rptr. 59 (Ct. App. 1977));Yazdanpanah v. Sacramento Valley Mortgage Group, No. C 09-02024 SBA, 2009 WL 4573381, at *6 (N.D. Cal. Dec. 1, 2009) (unpublished) ("A request to cancel the trustee's deed is 'dependent upon a substantive basis for liability, [and it has] no separate viability.'") (modification in original) (quotingGlue-Fold, Inc. v. Slautterback Corp., 82 Cal. App. 4th 1018, 1023 n. 3, 98 Cal. Rptr. 2d 661, 663 n. 3 (Ct. App. 2000)). Moreover, plaintiff has pled his claim for cancellation in a manner such that the success of his cancellation claim is entirely contingent on the success of his other claims. Thus, because the undersigned has concluded that plaintiff's other claims for relief should be dismissed, plaintiff's claim for cancellation should be dismissed as well.²⁶ See Sanchez v. U.S. Bank, N.A., No. C 09-04506 SI, 2010 WL 670632, at *5 (N.D. Cal. Feb. 22, 2010) (unpublished) (dismissing plaintiff's claim for cancellation where allegations in support of that claim were the same allegations related to the claims that the court had determined failed to state a claim); accord Razawi v. FDIC, No. 2:09-cv-00985-MCE-JFM, 2009 WL 2914120, at *7 (E.D. Cal. Sept. 9, 2009) (unpublished).

26 As to the United States, plaintiff's claim for cancellation should be dismissed for the additional reason that plaintiff has not sufficiently alleged or provided documents establishing that the United States or a federal agency is or was a party to a void or voidable contract that might be subject to cancellation.

3. Imposition of A Constructive Trust

Plaintiff's eighth claim for relief seeks the imposition of a constructive trust on the grounds that T.D. Service Co., Fremont Bank, and Federal National Mortgage Association were "unjustly enriched" at plaintiff's expense. (First Am. Compl. ¶ 63.) Although this claim is alleged against "All Defendants," plaintiff alleges no specific facts with respect to the acts of the United States in his claim for a constructive trust. Plaintiff does not elaborate on the precise grounds supporting the imposition of a constructive trust; instead, he refers to "the acts and/or omissions as set forth herein." (Id.)

Under California law, "[a] constructive trust . . . is an equitable remedy, not a substantive claim for relief." PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil Shapiro, LLP, 150 Cal. App. 4th 384, 398, 58 Cal. Rptr. 3d 516, 527 (Ct. App. 2007); accord Batt v. City County of San Francisco, 155 Cal. App. 4th 65, 82, 65 Cal. Rptr. 3d 716, 728 (Ct. App. 2007) (stating that a constructive trust is not an independent cause of action); Glue-Fold, Inc., 82 Cal. App. 4th at 1023 n. 23, 98 Cal. Rptr. 2d at 663 n. 3 (same);see also F.T.C. v. Network Servs. Depot, Inc., 617 F.3d 1127, 1141 (9th Cir. 2010) ("Constructive trust is a form of remedy that is flexibly fashioned in equity to provide relief where a balancing of interests in the context of a particular case seems to call for it" (citation and quotation marks omitted).); Monday v. Saxon Mortgage Servs., Inc., No. CIV. 2:10-989 WBS KJM, 2010 WL 2574080, at *6 (E.D. Cal. June 25, 2010) (unpublished). "A plaintiff seeking imposition of a constructive trust must show: (1) the existence of a res (property or some interest in property); (2) the right to that res; and (3) the wrongful acquisition or detention of the res by another party who is not entitled to it." Mattel, Inc. v. MGA Entm't, Inc., 616 F.3d 904, 909 (9th Cir. 2010) (citing Communist Party of U.S. v. 522 Valencia, Inc., 35 Cal. App. 4th 980, 41 Cal. Rptr. 2d 618, 623-24 (Ct. App. 1995)).

Based on the foregoing, the undersigned recommends dismissal of plaintiff's eighth claim for relief with prejudice because it is not an independent claim. To the extent that plaintiff has sought relief in the form of a constructive trust in the "prayer" portion of his First Amended Complaint (First Am. Compl. at 16:19-22), that request is permissible, but is entirely contingent on the success of his other claims that would purport to establish some unjust enrichment to defendants.

D. Leave To Amend Would Be Futile

For the reasons stated above, the undersigned recommends that all claims against all defendants be dismissed with prejudice. Nothing in plaintiff's operative complaint or other submissions to this court persuade the undersigned that plaintiff could amend his First Amended Complaint to state claim on which relief can be granted.²⁷

27 In that regard, the undersigned has reviewed plaintiff's purported "Second First Amended Complaint" and his purported "Third First Amended Complaint," and they do not cure any of the deficiencies discussed herein.

Moreover, dismissal of plaintiff's claims with prejudice is warranted because of plaintiff's demonstrated unwillingness to assist the court in finding a reason to provide leave to amend. The undersigned held a hearing on November 18, 2010, to determine whether plaintiff should be granted leave to amend as to the Financial Defendants' motions to dismiss. The undersigned asked plaintiff several questions for the express purpose of ascertaining whether leave should be granted and relayed this purpose to plaintiff at the hearing. Plaintiff, however, only responded that he considered these questions as an "interrogation" of which plaintiff was given no advance notice. Therefore, plaintiff refused to answer any of the court's questions. As the undersigned repeatedly sought to make clear to plaintiff, these questions were intended to assist plaintiff. Nevertheless, plaintiff remained unconvinced, and the hearing ended with plaintiff having provided no responses to the court's questions and instead having repeatedly yelled at the undersigned. Plaintiff's refusal to assist the court in determining whether to grant leave to amend further supports dismissal with prejudice.

V. CONCLUSION

For the reasons stated above, IT IS HEREBY ORDERED that:

1. T.D. Service Company's request for judicial notice is granted.

2. Federal National Mortgage Association and Fremont Bank's request for judicial notice is granted.

3. Plaintiff's request for judicial notice is granted, as narrowed above.

It is FURTHER RECOMMENDED that:

1. The motion to dismiss plaintiff's First Amended Complaint filed by defendant T.D. Service Company (Dkt. No. 21) be granted.

2. The motion to dismiss plaintiff's First Amended Complaint filed by defendants Fremont Bank and Federal National Mortgage Corporation (Dkt. No. 25) be granted.

3. The motion to dismiss plaintiff's First Amended Complaint filed by defendant United States of America (Dkt. No. 56), which the court construes a motion for judgment on the pleadings in part, be granted.

4. Plaintiff's First Amended Complaint (Dkt. No. 20) be dismissed with prejudice as to all defendants.

5. This case be closed and all dates in this matter be vacated.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Id.; see also E. Dist. Local Rule 304(b). Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed with the court and served on all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d). Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

IT IS SO ORDERED AND RECOMMENDED.

DATED: January 20, 2011