1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICHOLAS FROST and KATHRYN No. 2:17-cv-2428 DB

FROST,

12 13 Plaintiffs, ORDER 14 v. 15 WELLS FARGO BANK, N.A., 16 Defendant. 17 18 On March 22, 2019, this action was reassigned to the undersigned pursuant to the parties’ 19 consent to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c)(1). (ECF No. 12.) Pending 20 before the court is defendant’s motion to dismiss submitted on May 10, 2019. (ECF No. 17.) For 21 the reasons stated below, defendant’s motion to dismiss is granted and plaintiffs’ complaint is 22 dismissed without leave to amend. 23 BACKGROUND 24 Plaintiffs commenced this action on October 13, 2017, by filing a complaint in the Placer 25 County Superior Court. (Compl. (ECF No. 1) at 8.1) The complaint alleges that plaintiffs are 26 residents and owners of real property located in Lincoln, California, (“Property”). (Id.) Plaintiffs 27 1 Page number citations such as this one are to the page number reflected on the court’s CM/ECF 28 system and not to page numbers assigned by the parties. 1 obtained a loan against the property in September of 2009. (Id. at 9.) On May 7, 2013, plaintiffs 2 met an agent of defendant Wells Fargo Bank, N.A., (“Wells Fargo”). (Id.) The agent offered 3 plaintiffs a loan modification “pursuant to the government HAMP program[.]”2 (Id.) 4 Pursuant to that offer, plaintiffs were to make three timely trial plan payments in lieu of 5 their regularly monthly loan payment. (Id.) Once the three trial plan payments were timely made 6 the trial plan payments would become permanent for the duration of the loan. (Id.) Moreover, 7 plaintiffs were informed that “as long as an existing judgment lien against their property was less 8 than $20,000 they would qualify for a HAMP loan modification.” (Id.) Plaintiffs accepted the 9 offer. (Id.) 10 Plaintiffs made the three trial loan payments but were told by defendant’s agent “to 11 continue making the same trial plan monthly payments while their permanent modification was 12 being processed.” (Id. at 10.) Plaintiffs made a total of eight trial plan payments. (Id.) After 13 making the last of these payments defendant’s agent told plaintiffs that defendant “would not be 14 issuing a permanent loan modification” because their was “an existing lien of record against the 15 property[.]” (Id.) The existing lien against the property, however, was for less than $20,000. 16 (Id.) 17 On January 31, 2014, defendant recorded a Notice of Trustee Sale for February 26, 2014. 18 (Id.) On February 4, 2014, defendant denied plaintiffs’ loan modification application in writing 19 but did not advise plaintiffs of their right to appeal. (Id.) Nonetheless, the Trustee Sale did not 20 go forward. (Id.) In November of 2016, the parties entered into a written loan modification. (Id.) 21 The 2016 modification required plaintiffs to pay greater monthly payments than under the terms 22 of the modification plaintiffs accepted in 2014. (Id. at 11.) 23 Pursuant to these allegations the complaint asserts claims for breach of contract, 24 promissory estoppel, and negligent misrepresentation. (Id. at 11-13.) On November 17, 2017,

25 2 “The U.S. Department of Treasury (“DOT”) established the Home Affordable Modification Program (‘HAMP’) pursuant to the Emergency Economic Stabilization Act of 2008 (‘EESA’), 12 26 U.S.C. §§ 5201, et seq. EESA directed DOT to protect home values and other assets of 27 individuals, to preserve home ownership, to maximize returns to taxpayers, and to provide public accountability.” Phipps v. Wells Fargo Bank, N.A., No. CV F 10-2025 LJO SKO, 2011 WL 28 302803, at *1 (E.D. Cal. Jan. 27, 2011). 1 defendant removed the matter to this court pursuant to diversity jurisdiction. (Id. at 1.) On 2 November 27, 2017, defendant filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal 3 Rules of Civil Procedure. (ECF No. 5.) Plaintiffs filed an opposition on February 8, 2018. (ECF 4 No. 9.) Defendant filed a reply on February 14, 2018. (ECF No. 10.) The motion to dismiss was 5 taken under submission by the previously assigned District Judge on February 14, 2018. (ECF 6 No. 11.) 7 However, on March 22, 2019, this action was reassigned to the undersigned pursuant to 8 the parties’ consent and defendant’s motion to dismiss was vacated. (ECF Nos. 12 & 13.) 9 Defendant re-noticed the motion to dismiss for hearing before the undersigned on March 27, 10 2019. (ECF No. 16.) On May 10, 2019, the court took defendant’s motion to dismiss under 11 submission. (ECF No. 17.) 12 STANDARDS 13 I. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(6) 14 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 15 Procedure is to test the legal sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 16 720 F.2d 578, 581 (9th Cir. 1983). “Dismissal can be based on the lack of a cognizable legal 17 theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. 18 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough 19 facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 20 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that 21 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 22 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 23 In determining whether a complaint states a claim on which relief may be granted, the 24 court accepts as true the allegations in the complaint and construes the allegations in the light 25 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 26 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less 27 stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 28 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the 1 form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th 2 Cir. 1986). 3 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 4 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 5 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 6 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 676 7 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 8 statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove 9 facts which it has not alleged or that the defendants have violated the . . . laws in ways that have 10 not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 11 459 U.S. 519, 526 (1983). 12 In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court is permitted 13 to consider material which is properly submitted as part of the complaint, documents that are not 14 physically attached to the complaint if their authenticity is not contested and the plaintiff’s 15 complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 16 250 F.3d 668, 688-89 (9th Cir. 2001). 17 ANALYSIS 18 Defendant’s motion to dismiss argues, in relevant part, that plaintiffs’ complaint must be 19 dismissed because each of the claims therein are time-barred pursuant to the relevant statute of 20 limitations. (Def.’s MTD (ECF No. 5) at 10-14.) “A claim may be dismissed under Rule 21 12(b)(6) on the ground that it is barred by the applicable statute of limitations only when ‘the 22 running of the statute is apparent on the face of the complaint.’” Von Saher v. Norton Simon 23 Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase 24 Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). In actions based on diversity the court 25 applies the state law statute of limitations. See Guar. Trust Co. of N.Y. v. York, 326 U.S. 99, 110 26 (1945) (noting that, “[a]s to consequences that so intimately affect recovery or non-recovery a 27 federal court in a diversity case should follow State law”). 28 //// 1 Here, plaintiffs’ complaint asserts three causes of action: (1) breach of an oral contract; (2) 2 promissory estoppel; and (3) negligent misrepresentation. (Compl. (ECF No. 1) at 8.) Under 3 California law the statute of limitations for claims arising from an alleged breach of an oral 4 contract is two years. See Cal. Code Civ. P. § 339. However, “courts apply [California Code of 5 Civil Procedure § 338’s] three-year statute of limitations to negligent misrepresentation claims 6 and contract-related claims, including specific performance, unjust enrichment, and promissory 7 estoppel, when the gravamen of the claims is a defendant’s alleged fraud.” Wright v. Old Gringo 8 Inc., Case No. 17-cv-1996 BAS MSB, 2018 WL 6568199, at *10 (S.D. Cal. Dec. 13, 2018) 9 (citing Mamola v. JP Morgan Chase Bank, N.A., No. 2:14-cv-2688 MCE EFB, 2015 WL 10 6951185, at *5 (E.D. Cal. Nov. 10, 2015)). 11 The complaint alleges that defendant denied plaintiffs’ loan modification application on 12 February 4, 2014. (Compl. (ECF No. 1) at 10.) Even assuming, arguendo, that the three-year 13 statute of limitations applied to plaintiffs’ claims, that statute of limitations ran as of February 4, 14 2017. The complaint in this action, however, was not filed until October 13, 2017. (Id. at 8.) In 15 this regard, the running of the statute of limitations on plaintiffs’ claims is apparent from the face 16 of the complaint. 17 Plaintiffs argue that “the damages plaintiffs seek is the difference between what they 18 should have received by the prior modification and the increased amount” reflected in the parties’ 19 November 2016 loan modification. (Pls.’ Opp.’n (ECF No. 9) at 5.) Because that “amount could 20 not have been ascertained or determined until entry into the Modification . . . filing anytime in 21 2017 was within the statute of limitations.” (Id.) 22 “A cause of action for breach of contract accrues at the time of breach, which then starts 23 the limitations period running.” Cochran v. Cochran, 56 Cal.App.4th 1115, 1120 (1997). “[A] 24 cause of action for fraud under California law accrues when a plaintiff has inquiry notice, that is, 25 when he or she ‘learns, or at least is put on notice, that a representation is false[.]’” Platt Elec. 26 Supply, Inc. v. EOFF Elec., Inc., 522 F.3d 1049, 1058 (9th Cir. 2008) (quoting Hamilton 27 Materials, Inc. v. Dow Chemical Corp., 494 F.3d 1203, 1207 (9th Cir. 2007)). “It is not 28 necessary that all or even the greater part of the damages have to occur before the cause of action 1 arises.” Bell v. Hummel & Pappas, 136 Cal. App. 3d 1009, 1016 (1982), disapproved on other 2 grounds in Laird v. Blacker, 2 Cal. 4th 606, 616 (1992), cert. denied, 506 U.S. 1021 (1992); see 3 also Mamola, 2015 WL 6951185, at *4 (“there is no requirement that damages must fully 4 materialize before a cause of action accrues”); Menefee v. Ostawari, 228 Cal.App.3d 239, 246 5 (1991) (“a cause of action for breach of contract ordinarily accrues at the time of breach 6 regardless of whether any substantial damage is apparent or ascertainable”); In re Estate of 7 Fincher, 119 Cal.App.3d 343, 352 (1981) (“The general rule is that a suit for breach of an implied 8 agreement accrues at the time of the breach.”). 9 Here, the complaint alleges that plaintiffs “accepted the offer” to modify “the terms of 10 repayment of their loan including monthly payment amount” on May 7, 2013. (Compl. (ECF No. 11 1) at 9.) And that on February 4, 2014, plaintiffs were informed “in writing” that defendant 12 “denied said loan modification application[.]” (Id. at 10.) In this regard, the complaint alleges 13 that plaintiffs were aware of defendant’s breach of the parties’ alleged oral agreement on 14 February 4, 2014, which started the limitations period running.3 15 Accordingly, the complaint’s claims are time-barred and defendant’s motion to dismiss 16 must be granted.4

17 3 Not only were plaintiffs aware of defendant’s breach, plaintiffs filed a complaint on February 24, 2014, in the Placer County Superior Court based on essentially the same facts asserted in this 18 action, alleging the three claims asserted in the complaint in this action, and arguing that plaintiffs 19 were “damaged by not receiving the modification[.]” (Defs.’ RJN (ECF No. 5-1) at 32.) The court may take judicial notice of its own files and of documents filed in other courts. Reyn’s 20 Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006) (taking judicial notice of documents related to a settlement in another case that bore on whether the plaintiff was still 21 able to assert its claims in the pending case); Burbank–Glendale–Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998) (taking judicial notice of court filings in a state 22 court case where the same plaintiff asserted similar and related claims); Hott v. City of San Jose, 23 92 F.Supp.2d 996, 998 (N.D. Cal. 2000) (taking judicial notice of relevant memoranda and orders filed in state court cases). Plaintiffs later dismissed that action without prejudice. (Id. at 37.) 24 4 In light of this finding the court need not reach defendant’s remaining arguments. However, the 25 court will note that—even if plaintiffs’ claims were not been time-barred—defendant’s additional argument that plaintiffs’ breach of contract claim is barred by the statute of frauds would be 26 meritorious. (Def.’s MTD (ECF No. 5) at 11.) In this regard, an “alleged promise for a loan 27 modification is subject to the statute of frauds. Absent a written agreement to modify the loan, any claim based upon an oral contract to modify the loan is barred by the statute of frauds.” 28 Clark v. Countrywide Home Loans, Inc., 732 F.Supp.2d 1038, 1044 (E.D. Cal. 2010). 1 LEAVE TO AMEND 2 For the reasons stated above, defendant’s motion to dismiss will be granted. The 3 | undersigned has carefully considered whether plaintiffs could amend the complaint to state a 4 | claim upon which relief can be granted that is not barred by the applicable statute of limitations. 5 | “Valid reasons for denying leave to amend include undue delay, bad faith, prejudice, and futility.” 6 | California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 7 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 8 | (9th Cir. 1983) (holding that while leave to amend shall be freely given, the court does not have 9 | to allow futile amendments). 10 Here, in light of the complaint’s allegations and plaintiffs’ arguments in opposition, the 11 | court finds that granting plaintiffs’ leave to amend would be futile. 12 CONCLUSION 13 Accordingly, for the reasons stated above, IT IS HEREBY ORDERED that: 14 1. Defendant’s November 27, 2017 motion to dismiss (ECF No. 5), re-noticed on March 15 | 27, 2019 (ECF No. 16) is granted; 16 2. Plaintiffs’ October 13, 2017 complaint (ECF No. 1) is dismissed without leave to 17 || amend; and 18 3. This action is closed. 19 | Dated: January 20, 2020

21

BORAH BARNES

UNITED STATES MAGISTRATE JUDGE

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