United States District Court, N.D. California
PERNARDO V. GALANG, Plaintiff,
ORDER GRANTING MOTION TO DISMISS RE: DKT. NO.
HAYWOOD S. GILLIAM, JR. United States District Judge
before the Court is Defendant Wells Fargo Bank, N.A.'s
motion to dismiss the complaint filed by Plaintiff Pernardo
Galang. Dkt. No. 15. Having considered Defendant's motion
to dismiss, Plaintiff's opposition, and all related
papers, the Court finds the matter appropriate for decision
without oral argument. See Civil L.R. 7-1(b). For
the reasons set forth below, the Court GRANTS Defendant's
motion to dismiss.
purposes of deciding the motion, the Court accepts the
following as true:
about February 2006, Plaintiff and his wife, Teresita Galang,
obtained a mortgage loan from World Savings Bank, which
subsequently became Wells Fargo Bank, N.A. Dkt. No. 4
(“Compl.”) ¶¶ 8, 10, 13. Plaintiff and
his wife executed a promissory note and deed of trust secured
against their home at 898 Camaritas Circle, South San
Francisco, California (the “Property”).
Id. ¶ 10.
defaulted on the loan and contacted Defendant sometime in
November 2011 to discuss refinancing. Id.
¶¶ 14, 15. On December 9, 2011, Defendant recorded
a notice of default against the Property. Id. ¶
16. Defendant did not contact Plaintiff beforehand.
Id. ¶ 17. In response to the notice of default,
Plaintiff submitted a loan modification application to
Defendant. Id. ¶ 19. Defendant then sent
Plaintiff a letter stating that if he was ineligible for the
modification program, someone would contact him to discuss
other options. Id. ¶ 20. Plaintiff received a
denial letter in 2013. Id. ¶ 21. Yet Defendant
never contacted Plaintiff - before or after - to discuss his
application or his right to appeal. Id. For the next
three years, Defendant did not contact Plaintiff.
Id. Then on February 26, 2016, Defendant recorded a
second notice of default. Id. ¶ 22.
filed this action on June 22, 2016. Dkt. No. 4. Based on the
allegations set forth above, Plaintiff asserts five claims
under California state law: (1) violation of California Civil
Code § 2923.5; (2) violation of California Civil Code
§ 2924.17(a); (3) negligence; (4) breach of the implied
covenant of good faith and fair dealing; and (5) violation of
California Business and Professions Code §§ 17200
et seq. (“UCL”). Id. Plaintiff
seeks rescission of the most recent notice of default;
preliminary and permanent injunctions barring Defendant from
conducting a trustee's sale of the Property under
California Civil Code § 2924.12(a); compensatory and
actual damages; punitive damages; and attorneys' fees and
costs. Id. at 22.
Rule of Civil Procedure 8(a) requires that a complaint
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” A
defendant may move to dismiss a complaint for failing to
state a claim upon which relief can be granted under Federal
Rule of Civil Procedure 12(b)(6). “Dismissal under Rule
12(b)(6) is appropriate only where the complaint lacks a
cognizable legal theory or sufficient facts to support a
cognizable legal theory.” Mendiondo v. Centinela
Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To
survive a Rule 12(b)(6) motion, a plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 540, 570 (2007). A claim is facially
plausible when a plaintiff pleads “factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
reviewing the plausibility of a complaint, courts
“accept factual allegations in the complaint as true
and construe the pleadings in the light most favorable to the
nonmoving party.” Manzarek v. St. Paul Fire &
Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
Nonetheless, Courts do not “accept as true allegations
that are merely conclusory, unwarranted deductions of fact,
or unreasonable inferences.” In re Gilead Scis.
Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).
may move to dismiss a complaint for “failure to join a
party under Rule 19.” Fed.R.Civ.P. 12(b)(7). It is
designed “to protect the interests of absent parties,
as well as those ordered before the court, from multiple
litigation, inconsistent judicial determinations or the
impairment of interests or rights.” CP Nat'l
Corp. v. Bonneville Power Admin., 928 F.2d 905, 911 (9th
Cir. 1991). Rule 19 requires a three-step inquiry: (1)
whether the absent party is necessary under Rule 19(a)
(i.e., required to be joined if feasible); (2) if
so, whether it is feasible to order that absent party be
joined; and (3) if joinder is not feasible, whether the case
can proceed without the absent party or whether the action
must be dismissed. Salt River Project Agr. Imp. &
Power Dist. v. Lee, 672 F.3d 1176, 1179 (9th Cir. 2012).
has moved to dismiss the complaint based on a failure to
state a claim and on a failure to join a necessary party.
Because the Court finds that most of Plaintiff's claims
are time-barred, it addresses this argument first, then turns
to the substance of the few remaining claims.
Statute of Limitations
Civil Code §§ ...