District Court (Cal.) Says Heightened Pleading Standard Applies to Rosenthal Act When Grounded on Allegations of Fraud

In Castorina v. Bank of Am., N.A., No. 2:21-cv-02004 WBS KJN, 2022 U.S. Dist. LEXIS 83039, at *13-14 (E.D. Cal. May 5, 2022), Judge Shubb dismissed a Rosenthal Act claim under Rule 9(b).

The heightened pleading standard of Federal Rule of Civil Procedure 9(b) applies to claims under the Rosenthal Act when premised on allegations of fraud, and here plaintiff’s Rosenthal Act claim is premised on Bank of America allegedly making false, deceptive, and misleading statements. See Brown v. CitiMortgage, Inc., SACV 16-00048-CJC, 2016 WL 7507762, at *4 (C.D. Cal. Feb. 17, 2016) (applying heightened Rule 9(b) pleading standard for Rosenthal Act claim); Day v. Am. Home Mortg. Servicing, Inc., No. 2:09-CV-02676-GEB-KJM, 2010 U.S. Dist. LEXIS 63033, 2010 WL 2231988, at *2 (E.D. Cal. June 2, 2010) (same). The Ninth Circuit has held that “to avoid dismissal for inadequacy under Rule 9(b), [the] complaint would need to ‘state the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentation.'” Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004) (quoting Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1393 (9th Cir. 1988)). Further, Rule 9(b) requires that a plaintiff “must set forth what is false or misleading about a statement, and why it is false.” Rubke v. Capitol Bancorp Ltd., 551 F.3d 1156, 1161 (9th Cir. 2009) (quotations omitted). Here, the complaint states that Bank of America “made demands for payments after delinquency and/or default by sending letters, making telephone calls, and other attempts to collect mortgage payments.” (Compl. ¶ 250.) Beyond this, the complaint does not include any other factual allegations about the “time, place, and specific content” of the “letters, telephone calls, or other attempts.” Edwards, 356 F.3d at 1066; (Id.) Accordingly, plaintiff’s Rosenthal Act claim will be dismissed.