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Zuniga v. Bank of America, NA

United States District Court, C.D. California

December 9, 2014

Deborah Zuniga
Bank of America NA

For Deborah Zuniga, Plaintiff: Leslie Alexis McAdam, Ferguson Case Orr Paterson LLP, Ventura, CA.

For Bank of America, N.A., Erroneously Sued As Bank of America, Defendant: Tracy Evans-Moyer, LEAD ATTORNEY, McGuireWoods LLP, Los Angeles, CA.




Before the Court is the Motion to Dismiss Plaintiff's First Amended Complaint (the " Motion") filed by Defendant Bank of America N.A. (" BANA") on November 3, 2014. (Docket No. 10). Plaintiff Deborah Zuniga filed her Opposition to Motion to Dismiss Plaintiff's First Amended Complaint (the " Opposition") on November 17, 2014. (Docket No. 11). BANA filed a Reply in Support of Defendant's Motion to Dismiss Plaintiff's First Amended Complaint (the " Reply) on November 24, 2014. (Docket No. 12).

The Court has read and considered the papers filed on this Motion and held a hearing on December 8, 2014. For the reasons stated below, the Court DENIES BANA's Motion as to Plaintiff's first claim for relief, and GRANTS BANA's Motion as to Plaintiff's second claim for relief.


On April 22, 2014, Plaintiff initiated this action by filing a Complaint in Ventura County Superior Court pro se (" Complaint"). (Docket No. 1, Ex. A). Plaintiff articulated three claims for relief using the standard forms authorized by the Judicial Council of California: First, breach of contract; second, fraud based on intentional misrepresentation, concealment, and a promise without intent to perform; and third, negligence. (Id.).

BANA moved to dismiss this action for failure to state a claim, primarily because the statute of limitations had run on Plaintiff's claims. (Docket No. 5). Plaintiff did not oppose the motion. The Court dismissed the claims, finding that they were barred by the various applicable statutes of limitations, but granted Plaintiff leave to file an amended complaint. (Docket No. 8). On November 3, 2014, Plaintiff filed a First Amended Complaint (" FAC"). (Docket No. 9).

Plaintiff's claims in the FAC rest on BANA's alleged representations to her in April 2010. In April 2010, BANA allegedly offered Plaintiff a modification of her mortgage and told her she would receive the appropriate documentation in the mail. (FAC ¶ 8). Despite the modification offer BANA foreclosed on Plaintiff's home. (Id.) On April 15, 2014, Plaintiff allegedly spoke with Tim Edwards, a representative of BANA, who said that the foreclosure was wrongful because of the modification offer and would be reversed because BANA had been notified within 24 hours. (Id.) However, on April 23, 2014, BANA recorded a Trustee's Deed upon Sale and refused to honor the offer of a modification or to reverse the foreclosure.

In her FAC, Plaintiff alleges two claims for relief. First, violation of California's Unfair Competition Law, California Business and Professions Code sections 17200 et seq. (" UCL"), and second, fraud. (FAC). Plaintiff also argues that the statute of limitations for her fraud claim should be tolled because she became ill and underwent surgery in February 2012. (FAC ¶ 6). Her surgery went badly and she has been suffering serious medical setbacks since which have meant that she was unable to file this action until April 22, 2014. (FAC ¶ 6).

Motion to Dismiss

In ruling on a Motion to Dismiss under Rule 12(b)(6), the Court follows Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). " To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). " All allegations of material fact in the complaint are taken as true and construed in the light most favorable to the plaintiff." Williams v. Gerber Prods. Co., 552 F.3d 934, 937 (9th Cir. 2008) (holding that a plaintiff had plausibly stated that a label referring to a product containing no fruit juice as " fruit juice snacks" may be misleading to a reasonable consumer).

In answering questions of state law, this Court is bound by the decisions of a state supreme court. Muniz v. United Parcel Serv., Inc., 738 F.3d 214, 219 (9th Cir. 2013). When a state supreme court has not spoken on a particular issue, the Court must determine what result that supreme court would reach based on state appellate court opinions, statutes, and treatises. Id.

Plaintiff filed the Complaint pro se. Because it was filed pro se, it is " to be liberally construed . . . and however inartfully pleaded, must be held to less stringent standards than formal pleadings drafter by lawyers." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citations omitted); Cf . Fed. Rule Civ. Proc. 8(f) (" All pleadings shall be so construed as to do substantial justice.").

In its Motion, BANA argues that Plaintiff's fraud claim is barred because it was filed beyond the statute of limitations, and Plaintiff fails to state a claim for relief for both her fraud claim and her claim under the UCL. (Mot. at 4-7).

Plaintiff's Claim for Fraud

BANA argues that Plaintiff's fraud claim accrued on April 23, 2010, when BANA recorded the Deed upon Sale and Plaintiff was aware that BANA would not reverse the foreclosure as allegedly promised by Tim Edwards. Plaintiff filed this action on April 22, 2014, and therefore filed it beyond the three-year statute of limitations for fraud under California law. (Mot. at 4). BANA contends that Plaintiff's FAC fails to establish any basis for tolling the statute of limitations and so the claim must be dismissed. (Id.)

In diversity cases, federal courts apply whatever tolling provisions are recognized under state law. Emrich v. Touche Ross & Co . 846 F.2d 1190, 1199 (9th Cir. 1988) (holding that dismissal of the complaint was improper were complaint adequately alleged equitable tolling under California because of pendency of related case). Under California law a claim for fraud or misrepresentation must be brought within three years. Cal. Code Civ. Proc. ยง 338(d). Section 338(d) also states that " [t]he cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake." As the Court previously concluded, the date on which the fraud was discovered, construed most generously to Plaintiff, is April 23, 2010, when she became aware BANA was ...

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