# Vichai Vongsvirates v. Wells Fargo Bank N.A.

> District Court, E.D. California · April 16, 2020

URL: https://www.frixlaw.com/law-library/cases/10018499

## Case

- **Court:** District Court, E.D. California
- **Decided:** April 16, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10018499

## How later opinions describe it (automated extraction)

- explaining that to avoid dismissal for failure to meet 3 the standards under Rule 9(b), "[a] complaint would need to state the time, place, and specific content 4 of the false representations as well as the identities of the parties to the misrepresentation"

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 VICHAI VONGSVIRATES, ) Case No.: 1:20-cv-00474-NONE-JLT
)
12 Plaintiff, ) ORDER DISMISSING THE COMPLAINT WITH
) LEAVE TO AMEND
13 v. )
)
14 WELLS FARGO BANK N.A., et al.,
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15 Defendants. )
)
16 )

17 Vichai Vongsvirates seeks to proceed in forma pauperis1 in this action against Wells Fargo
18 Bank, N.A. and Rushmore Loan Management Services. (Docs. 1, 3.) According to the Plaintiff,
19 Defendants committed “multiple violations of ignoring proper loan procedures,” including improper
20 noticing for the mortgage note and the deed of trust. (See Doc. 1.) Because Plaintiff fails to allege facts
21 sufficient to support his claims, the complaint is DISMISSED with leave to amend.
22 I. Screening Requirement
23 When an individual seeks to proceed in forma pauperis, the Court is required to review the
24 complaint and shall dismiss a complaint, or portion of the complaint, if it is “frivolous, malicious or
25 fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant
26 who is immune from such relief.” 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2).
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28 1 The Court is deferring ruling on Plaintiff’s request to proceed in forma pauperis until Plaintiff provides sufficient facts to
1 A plaintiff’s claim is frivolous “when the facts alleged rise to the level of the irrational or the
2 wholly incredible, whether or not there are judicially noticeable facts available to contradict them.”
3 Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). In other words, a complaint is frivolous where the
4 litigant sets “not only the inarguable legal conclusion, but also the fanciful factual allegation.” Neitzke
5 v. Williams, 490 U.S. 319, 325 (1989).
6 II. Pleading Standards
7 General rules for pleading complaints are governed by the Federal Rules of Civil Procedure. A
8 pleading must include a statement affirming the court’s jurisdiction, “a short and plain statement of the
9 claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may
10 include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a).
11 A complaint must give fair notice and state the elements of the plaintiff’s claim in a plain and
12 succinct manner. Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The
13 purpose of the complaint is to inform the defendant of the grounds upon which the complaint stands.
14 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,
15 Rule 8 does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers
16 labels and conclusions or a formulaic recitation of the elements of a cause of action will
not do. Nor does a complaint suffice if it tenders naked assertions devoid of further
17 factual enhancement.

18 Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (internal quotation marks and citations omitted). Vague
19 and conclusory allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266,
20 268 (9th Cir. 1982). The Court clarified further,
21 [A] complaint must contain sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” [Citation]. A claim has facial plausibility when the
22 plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged. [Citation]. The plausibility standard is
23 not akin to a “probability requirement,” but it asks for more than a sheer possibility that
a defendant has acted unlawfully. [Citation]. Where a complaint pleads facts that are
24 “merely consistent with” a defendant’s liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to relief.’
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26 Iqbal, 556 U.S. at 679 (citations omitted). When factual allegations are well-pled, a court should
27 assume their truth and determine whether the facts would make the plaintiff entitled to relief; legal
28 conclusions are not entitled to the same assumption of truth. Id. The Court may grant leave to amend a
1 complaint to the extent deficiencies of the complaint can be cured by an amendment. Lopez v. Smith,
2 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).
3 III. Factual Allegations
4 Plaintiff alleges that the events giving rise to the claims “[took] place within the past few
5 years.” (Doc. 1 at 4.) According to Plaintiff, the subject matter of this action relates to real property
6 located at 4507 Letzring Lane, Bakersfield, CA 93304. (Doc. 1 at 4-5.) Plaintiff claims that a cloud on
7 title exists due to “divergent paths taken by both the mortgage note and by the deed of trust.” (Doc. 1
8 at 4.) Plaintiff claims that Defendants used improper mortgage company procedures, servicing through
9 an independent broker/realtor, including but not limited to, improperly noticing for the mortgage note
10 and deed activities. (Doc. 1 at 5.) Plaintiff asserts that there were “multiple violations of ignoring
11 proper loan procedures.” (Doc. 1 at 5.)
12 As a preliminary matter, the Court notes that Plaintiff sets forth no facts in his complaint to
13 support his claims. Instead, he merely states his conclusions about what has occurred. This does not
14 suffice. Iqbal, 556 U.S. at 679
15 IV. Discussion and Analysis2
16 In his complaint, Plaintiff contends that Defendants are liable for fraud, negligence, and
17 misrepresentation. (Doc. 1 at 5.)
18 A. Intentional Misrepresentation or Actual Fraud Claim
19 "Under California law, the elements for an intentional-misrepresentation, or actual-fraud, claim
20 are (1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4)
21 justifiable reliance; and (5) resulting damage." UMG Recording, Inc. v. Bertelsmann AG, 479 F.3d
22 1078, 1096 (9th Cir.2007).
23 To state a cognizable claim for intentional misrepresentation, a plaintiff must meet the
24 heightened pleading standards of Rule 9 of the Federal Rules of Civil Procedure, which requires a
25 plaintiff to state "with particularity the circumstances constituting fraud." Fed. R. Civ. P. 9(b). In other
26 words, the plaintiff must articulate the "who, what, when, where, and how" of the fraud
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28 2 The plaintiff seems to claim that he suffered violations of the United States Constitution. (Doc. 1 at 5 However, such
1 alleged. Kearns v. Ford Motor Co., 567 F.3d 1120, 1126 (9th Cir. 2009); see also Edwards v. Marin
2 Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004) (explaining that to avoid dismissal for failure to meet
3 the standards under Rule 9(b), "[a] complaint would need to state the time, place, and specific content
4 of the false representations as well as the identities of the parties to the misrepresentation"). If
5 allegations of fraud do not meet the heightened pleading standard, the "averments . . . should be
6 disregarded, or stripped from the claim for failure to satisfy Rule 9(b)." Kearns, 567 F.3d at
7 1124 (quotations omitted).
8 "For corporate defendants, a plaintiff must allege the names of the persons who made the
9 allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or
10 wrote, and when it was said or written." Flowers v. Wells Fargo Bank, N.A., 2011 U.S. Dist. LEXIS
11 75429, 2011 WL 2748650, at *6 (N.D. Cal. July 13, 2011). Plaintiff alleges only his conclusions about
12 what has happened; he fails to allege any facts. He fails to describe what has occurred, when it
13 occurred and who were the tortious actors. He does not identify the regarding improper noticing
14 procedures he alleges or how either defendant acted to cause this improper notice. Plaintiff fails to
15 identify any specific representations made to him by either entity or demonstrate any facts that the
16 speakers knew the statements were false or in what manner he relied upon these statements. Without
17 factual allegations, the Court is unable to find that Plaintiff meets the heightened pleading
18 requirements under Rule 9 for a claim sounding in fraud. Consequently, Plaintiff’s claim for
19 intentional misrepresentation is DISMISSED with leave to amend.
20 B. Negligence
21 To the extent Plaintiff seeks to state a negligence claim under California law, the facts alleged
22 fail to state a cognizable claim. In general, to succeed upon a claim for negligence, Plaintiff “must
23 establish four required elements: (1) duty; (2) breach; (3) causation; and (4) damages.” Ileto v. Glock,
24 Inc., 349 F.3d 1191, 1203 (9th Cir. 2003) (citing Martinez v. Pacific Bell, 225 Cal. App. 3d 1557, 275
25 Cal.Rptr. 878, 883 (1990)). “To prevail in an action for negligence, the plaintiff must show that the
26 defendant owed a duty to the plaintiff.” John B. v. Superior Court, 38 Cal. 4th 1177, 1188 (2006).
27 Plaintiff fails to identify a specific duty owed to him by an employee of Wells Fargo Bank, N.A. or
28 Rushmore Loan Management Services. Plaintiff also does not satisfy the causation element of his
1 claim for negligence. Therefore, Plaintiff’s claim for negligence is DISMISSED with leave to amend.
2 V. Conclusion and Order
3 Plaintiff has not alleged facts to support his claims. However, the Court will provide Plaintiff
4 with one opportunity to file an amended complaint that sets forth facts sufficient to support his claims.
5 See Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987); see also Lopez, 203 F.3d at 1128
6 (dismissal of a pro se complaint without leave to amend for failure to state a claim is proper only
7 where it is obvious that an opportunity to amend would be futile). The amended complaint must
8 reference the docket number assigned to this case and must be labeled “First Amended Complaint.”
9 Plaintiff is advised that an amended complaint supersedes the original complaint. Forsyth v.
10 Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
11 In addition, the amended complaint must be “complete in itself without reference to the prior or
12 superseded pleading.” Local Rule 220. Once Plaintiff files an amended complaint, the original
13 pleading no longer serves any function in the case. Finally, Plaintiff is warned that “[a]ll causes of
14 action alleged in an original complaint which are not alleged in an amended complaint are waived.”
15 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986) (citing London v. Coopers & Lybrand, 644 F.2d 811,
16 814 (9th Cir. 1981)). Based upon the foregoing, the Court ORDERS:
17 1. Plaintiff’s Complaint is DISMISSED with leave to amend; and
18 2. Within thirty days from the date of service of this order, Plaintiff SHALL file a First
19 Amended Complaint or a notice of voluntary dismissal of the action.
20 If Plaintiff fails to comply with this order to file a First Amended Complaint, the action may be
21 dismissed for failure to prosecute and failure to obey the Court’s order.
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23 IT IS SO ORDERED.

24 Dated: April 16, 2020 /s/ Jennifer L. Thurston
25 UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10018499. Public record. Not legal advice.