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Tison v. First American Title Co.

United States District Court, W.D. Washington, Tacoma

July 2, 2019

DIANNE C. TISON, an individual, Plaintiff,
v.
FIRST AMERICAN TITLE COMPANY, a foreign corporation, Defendant.

          ORDER ON DEFENDANT'S MOTION TO DISMISS

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Defendant First American Title Insurance Company's (“First American”) Fed.R.Civ.P. 12(b)(6) Motion to Dismiss Plaintiff's First Amended Complaint (Dkt. 17), Requests for Judicial Notice (Dkts. 11 and 18) and motion to strike the Plaintiff's declaration (Dkt. 22). The Court has considered the pleadings filed in support of and in opposition to the motions and requests and the file herein.

         In this diversity case, the Plaintiff asserts that First American failed to “lawfully prepare, execute, and record” a July 2011 quit claim deed which resulted in litigation over the ownership of real property between the Plaintiff and the estate of the Plaintiff's mother. Dkt. 14. The Plaintiff makes claims against First American for negligence, professional negligence, legal malpractice, and breach of contract. Id. First American, who maintains that it was incorrectly sued as First American Title Company, now moves to dismiss the case for failure to state a claim. Dkt. 17. For the reasons provided below, the motion to dismiss (Dkt. 17) should be granted as to the Plaintiff's contract claim, and denied, in all other respects; First American's requests for judicial notice (Dkts 11 and 18) should be granted, in part, and denied in part, and the motion to strike (Dkt. 22) should be denied as moot.

         I. PROCEDURAL HISTORY, REQUESTS FOR JUDICIAL NOTICE, FACTS, AND PENDING MOTION

         A. PROCEDURAL HISTORY

         Originally filed on March 29, 2019, in Pierce County, Washington Superior Court, this case was removed to this Court on April 29, 2019. Dkt. 1. On May 6, 2019, First American filed a motion to dismiss (Dkt. 10) and a request for judicial notice regarding the motion to dismiss (Dkt. 11).

         The Plaintiff filed an Amended Complaint (Dkt. 14) and First American withdrew its motion to dismiss.

         On June 3, 2019, First American filed the instant motion to dismiss (Dkt. 17) and a second request for judicial notice (Dkt. 18).

         B. REQUESTS FOR JUDICIAL NOTICE AND DECISION ON MOTION TO STRIKE

         In reviewing a motion to dismiss for failure to state a claim as is the case here, the court is generally limited to review of “the face of the complaint, materials incorporated into the complaint by reference, ” and matters of which judicial notice may be taken. In re Rigel Pharmaceuticals, Inc. Securities Litigation, 697 F.3d 869, 876 (9th Cir. 2012). “A court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment, as long as the facts noticed are not subject to reasonable dispute.” Id. (internal quotations omitted). Pursuant Fed.R.Evid. 201 (b), “the court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”

         In the first request for judicial notice, First American asks the Court to take judicial notice of: (1) a June 25, 2004 statutory warranty deed between Kenneth and Diana Frick and William and Catherine Johnson, (2) escrow instructions dated February 2, 2017, (3) Dianne C. Tison's loan application dated February 2, 2017, (4) a quit claim deed dated February 24, 2011, (5) a quit claim deed dated July 5, 2011, (6) a court docket sheet for Estate of Catherine L. Johnson, Pierce County, Washington Superior Court case 16-4-01044-2, (7) Last Will and Testament of Catherine L. Johnson dated June 14, 2016, (8) a court docket sheet for In re Estate of Catherine L. Johnson, Pierce County, Washington Superior Court case 17-4-02140-0, (9) an Amended Petition for Judicial Proceedings in dated January 24, 2018 in In re Estate of Catherine L. Johnson, Pierce County, Washington Superior Court case 17-4-02140-0, and (10) a loan application for the Johnsons dated February 2, 2011. Dkt. 11. In the second request for judicial notice, First American requests that the Court take notice of (11) a Petition for Order Probating Will and Appointing Personal Representative dated September 14, 2016 filed in Estate of Catherine L. Johnson, Pierce County, Washington Superior Court case 16-4-01044-2. Dkt. 18.

         First American's requests for judicial notice (Dkts. 11 and 18) should be granted as to the following: (1) the June 25, 2004 statutory warranty deed between Kenneth and Diana Frick and William and Catherine Johnson (Dkt. 11-1, at 2-4), (2) the quit claim deed dated February 24, 2011 (Dkt. 11-1, at 15-16), (3) the quit claim deed dated July 5, 2011 (Dkt. 11-1, at 18-19)(“July 2011 quit claim deed”), (4) a court docket sheet for Estate of Catherine L. Johnson, Pierce County, Washington Superior Court case 16-4-01044-2 (Dkt. 11-1, at 21-22), (5) Petition for Order Probating Will and Appointing Personal Representative dated September 14, 2016 filed in Estate of Catherine L. Johnson, Pierce County, Washington Superior Court case 16-4-01044-2, (Dkt. 18, at 6-9) (6) a court docket sheet for In re Estate of Catherine L. Johnson, Pierce County, Washington Superior Court case 17-4-02140-0 (Dkt. 11-1, at 32-34), (7) the Amended Petition for Judicial Proceedings in dated January 24, 2018 filed in In re Estate of Catherine L. Johnson, Pierce County, Washington Superior Court case 17-4-02140-0 (Dkt. 11-1, at 36-41), and (8) the Last Will and Testament of Catherine L. Johnson dated June 14, 2016 (Dkt. 11-1, at 24-30). Each of these are public records and the facts noticed by the undersigned are “not subject to reasonable dispute.” In re Rigel, at 876.

         The request should be denied as to the escrow instructions dated February 2, 2017 (Dkt. 11-1, at 6-8), Dianne C. Tison's loan application dated February 2, 2017 (Dkt. 11-1, at 10-13), and a loan application for the Johnsons dated February 2, 2011 (Dkt. 11-1, at 43-46). The escrow instructions and loan applications are not “matters of public record” and it is not clear that the facts First American requests be noticed in them are “not subject to reasonable dispute.” In re Rigel, at 876. In particular, First American's request that the Court take judicial notice of the escrow instructions, maintaining that they are referred to in the Amended Complaint, is problematic. Dkt. 11. The Plaintiff points out that First American failed to include all the instructions and included her own declaration, pointing to additional instructions and disclosures. Dkt. 21. First American moved to strike her declaration, arguing that she “should not be permitted to force a summary judgment proceeding by filing her declaration.” Dkt. 22. The Court will not take judicial notice of the escrow instructions or loan applications. Accordingly, First American's motion to strike the Plaintiff's declaration (Dkt. 22) should be denied as moot.

         C. FACTS

         The following facts are taken from the Amended Complaint, materials incorporated into the Amended Complaint by reference, and those facts which are properly judicially noticed. In re Rigel, at 876.

         On June 25, 2004, William Johnson and his wife, Catherine L. Johnson, acquired real property commonly known as 5528 Broadview Avenue, Tacoma, Washington by statutory warranty deed. Dkts. 14, at 2 and 11-1, at 2-4. According to the Amended Complaint, the Plaintiff, Dianne C. Tison, who is the Johnsons' daughter, made the down payment on the property and continued to make the mortgage payments. Id. The Plaintiff and her parents intended for the home to become the Plaintiff's after her parents' deaths. Id. They further agreed that Mr. and Mrs. Johnson would remain on the title because they lived in the home and were entitled to a property tax exemption due to their age. Id.

         The First Amended Complaint alleges that in February 2011, the parties refinanced the property with Bank of America. Dkt. 14, at 2. Bank of America required a co-signor; the Plaintiff agreed to be the co-signor because she was already paying the mortgage and she and her parents intended for her to eventually be the owner of the property. Id., at 2-3. The Plaintiff asserts that the parties verbally told Bank of America that they wanted to keep Mr. and Mrs. Johnson on the property for the tax exemption, “but for all intents and purposes, this was Ms. Tison's home, as she had been paying for it and would continue to pay for it.” Id., at 3.

         The First Amended Complaint maintains that First American was contracted to provide title, escrow and closing services for the refinance. Dkt. 14, at 3. First American employee, Julie Bruso, a Limited Practice Officer under Washington law, was the closing officer. Id. As part of the refinance, Mr. and Mrs. Johnson executed a quit claim deed conveying their interest in the property to themselves and the Plaintiff. Id. First American prepared the quit claim deed which did not list Mr. and Mrs. Johnson and the Plaintiff as “joint tenants with right of survivorship.” Id. The Plaintiff asserts that “the parties were unaware of this error at the time of executing the quit claim deed, as they had been relying on Bank of America and First American to provide ...


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