Malifrando v. Real Time Resolutions, Inc., 2016 U.S. Dist. LEXIS 164497 (E.D. Cal. Nov. 29, 2016):

A. Rule 12(b)(6) - Failure to State a Claim

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In ruling on a motion to dismiss filed 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). Although the court may not consider a memorandum in opposition to a defendant's motion to dismiss to determine the propriety of a Rule 12(b)(6) motion, see Schneider v. Cal. Dep't of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding whether to grant leave to amend, see, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003).

B. REAL TIME'S REQUEST FOR JUDICIAL NOTICE

Defendant Real Time has filed a request for judicial notice. (ECF. no. 22.) Real Time requests judicial notice of its Exhibits A, B, and C, which are, respectively, plaintiff's loan application, dated October 11, 2004, plaintiff's correspondence to Real Time, dated April 14, 2015, and plaintiff's Voluntary Chapter 7 Bankruptcy Petition and accompanying Schedule D (Creditors holding secured claims). Plaintiff has not opposed the request.

A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). However, not all court records are equal with respect to the ability to take judicial notice. The sine qua non [*7]  for any judicial notice request is that the information sought to be noticed is of a character that is generally known, or cannot reasonably be disputed. Fed. R. Ev. 201(b). Thus, for example, the facts contained in a declaration opposing a summary judgment found in another case file could not normally be judicially noticed because those facts, with infrequent exception, would not be generally known, nor would they be facts which could not be reasonably disputed. However, the fact that a declarant uttered such facts (whether true or not) in a declaration which was filed could not be reasonably disputed assuming that proper authentication was performed. Judicial notice could be taken of the declaration in this latter example.

   As a general rule, "a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Branch, 14 F.3d at 453 (citation omitted). Rule 12(b)(6) expressly provides that when:

   matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Fed.R.Civ.P. 12(b)(6) (emphasis added). There are, however, two [*8]  exceptions to the requirement that consideration of extrinsic evidence converts a 12(b)(6) motion to a summary judgment motion. First, a court may consider "material which is properly submitted as part of the complaint" on a motion to dismiss without converting the motion to dismiss into a motion for summary judgment. Branch, 14 F.3d at 453 (citation omitted). If the documents are not physically attached to the complaint, they may be considered if the documents' "authenticity ... is not contested" and "the plaintiff's complaint necessarily relies" on them. Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir.1998). Second, under Fed.R.Evid. 201, a court may take judicial notice of "matters of public record." Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir.1986).

Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

Exhibit C, documents filed in support of plaintiff's bankruptcy petition, will be judicially noticed as court records that are not subject to dispute, especially in light of plaintiff's declaration under penalty of perjury as to the accuracy of the summary and schedules. (ECF No. 22 at 19.)

Exhibits A and B are a different matter because they are not court records which are usually not subject to dispute. Exhibit A is purportedly plaintiff's loan application, dated October 11, 2004.

   A court may consider evidence on which the complaint "necessarily relies" if: (1) the complaint [*9]  refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion. See Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir.1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.2002); see also Warren, 328 F.3d at 1141 n. 5, Chambers v. Time Warner, Inc., 282 F.3d 147, 153 n. 3 (2d Cir.2002). The court may treat such a document as "part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6)." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003).

Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006).

As pointed out by Real Time, Exhibit A is referred to in the FAC. In fact it is central to plaintiff's claims. Both the FAC and Exhibit A contain the following information: On October 11, 2004, plaintiff purportedly signed a loan application, as did Charlotte Macasarte, which stated that he worked for Megalynx, that he earned $10,988 per month, that he had an account at Bank of America, that he owned two pieces of real estate valued at a total of $834,000, and received rental income in the amount of $7,200 from these properties. (ECF No. 18 at ¶¶ 15-20; ECF No. 22 at 4-7.)

The question whether the application contains false information is the issue in the case, but the document itself may be judicially noticed because its authenticity as the document referenced by plaintiff in his complaint is not questioned, and because [*10]  it forms the basis of plaintiff's complaint.

Exhibit B is a letter entitled "Qualified Written Request," sent by plaintiff to Real Time, and dated April 14, 2015. It also forms the basis of the claims in the FAC, which alleges that on April 14, 2015, plaintiff sent correspondence to Real Time which qualified as a QWR, "requesting pertinent documents pertaining to the Loan and requesting documentation detailing updated assignments of ownership or necessary proof of Real Time's custodial servicing obligations to GMAC." (ECF No. 18 at 7.) The FAC alleges that Real Time only responded with partial information, and to date has failed to provide certain information. (Id. at 7-8.) Exhibit B also makes certain requests pertaining to the loan at issue as asserted in the FAC, and is the document referenced in the FAC. (ECF No. 22 at 10-11.) The authenticity of the correspondence in Exhibit B is not questioned, and is central to plaintiff's claim. Therefore, the court takes judicial notice of Exhibit B.

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6   Plaintiff filed [*22]  for bankruptcy protection in 2012, and that action was closed the same year. See https://ecf.caeb.uscourts.gov . Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir.), cert. denied, 454 U.S. 1126, 102 S. Ct. 976, 71 L. Ed. 2d 113 (1981).