United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
RE: DKT. NO. 23
J. DAVHA United States District Judge
Erlinda Gil (“Plaintiff”) contends in this action
that Defendant Wells Fargo Bank, N.A. (“Wells
Fargo”) engaged in misconduct related to a “bad
faith review” of loan modification applications, and
recorded documents containing false statements against her
real property. Presently before the court is Wells
Fargo’s Motion to Dismiss the Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6), which Plaintiff
opposes. Dkt. Nos. 23, 28.
jurisdiction arises under 28 U.S.C. § 1332. Having
carefully reviewed the pleadings in conjunction with the
arguments of counsel, the court has determined that all
causes of action are barred by the judicial estoppel
doctrine. Thus, Wells Fargo’s Motion to Dismiss will be
granted and the causes of action will be dismissed without
leave to amend for the reasons explained below.
October, 1997, Plaintiff and her now-deceased husband
purchased real property located in Milpitas, California, with
a “mortgage loan they received from a third party
lender.” Compl., Dkt. No. 1, at ¶ 15. The $345,
000 loan was secured by a deed of trust to the Milpitas
property. Id. Plaintiff later refinanced the loan in
April, 2007, through Wachovia Bank, FSB, and executed a
promissory note in the amount of $750, 000 to Wachovia.
Id. at ¶ 16; Req. for Judicial Notice
(“RJN”), Dkt. No. 24, at Ex. A. The note was also
secured by a deed trust to the Milpitas property.
Id.; RJN at Ex. B. Plaintiff alleges she
“received a high interest, negative amortization,
variable rate mortgage loan” from Wachovia.
Id. at ¶ 17. Wachovia subsequently merged with
Wells Fargo. Id. at ¶ 19; RJN at Exs. C-G.
Plaintiff made payments under the loan for several years, the
monthly payment eventually became
“unsustainable/unaffordable.” Id. at
¶ 18. Plaintiff alleges she “had no choice but to
default” in 2009. Id. In response, Wells Fargo
caused a Notice of Default to be recorded on February 4,
2010, which Plaintiff alleges falsely stated that it tried to
contact her with due diligence. Id. at ¶¶
20-23. A Notice of Trustee’s Sale was recorded on
behalf of Wells Fargo on May 7, 2010. Id. at ¶
applied to Wells Fargo for a loan modification in late 2011.
Id. at ¶ 25. On March 16, 2012, Plaintiff
alleges the single point of contact assigned by Wells Fargo
notified her she was approved for a Trial Payment Plan, or
“TPP.” Id. at ¶ 26. Plaintiff was
also informed the TPP documents would be sent to her and that
in order to accept the offer, she would need to make all
three TPP payments on time. Id. at ¶ 27.
alleges, however, that she never received the TPP documents
and, after several inquiries, was eventually told her
application had “gotten stale” and that a new
loan modification application would need to be submitted.
Id. at ¶¶ 28-35. Plaintiff faxed a new,
complete application to Wells Fargo on June 30, 2012, which
was denied for “insufficient income.”
Id. at ¶¶ 36, 37. Three subsequent
applications submitted by Plaintiff were also denied, and a
second Notice of Trustee’s Sale was recorded on March
27, 2015. Id. at ¶¶ 38-41, 44.
initiated this action on April 21, 2015, and asserts the
following causes of action against Wells Fargo: (1) violation
of California Civil Code § 2923.7; (2) violation of
California Civil Code § 2923.5; (3) violation of
California Civil Code § 2924.17; (4) negligence; (5)
breach of the covenant of good faith and fair dealing; (6)
promissory estoppel; (7) intentional misrepresentation; (8)
violation of California Welfare & Institutions Code
§ 15610.30; and (9) violation of the Unfair Competition
Law, California Business & Professions Code § 17200.
instant motion followed.
Rule of Civil Procedure 8(a) requires a plaintiff to plead
each claim with sufficient specificity to “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotations
omitted). The factual allegations “must be enough to
raise a right to relief above the speculative level”
such that the claim “is plausible on its face.”
Id. at 556-57. A complaint that falls short of the
Rule 8(a) standard may be dismissed if it fails to state a
claim upon which relief can be granted. Fed.R.Civ.P.
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).
deciding whether to grant a motion to dismiss, the court must
generally accept as true all “well-pleaded factual
allegations.” Ashcroft v. Iqbal, 556 U.S. 662,
664 (2009). The court must also construe the alleged facts in
the light most favorable to the plaintiff. Love v. United
States, 915 F.2d 1242, 1245 (9th Cir. 1988). However,
“courts are not bound to accept as true a legal
conclusion couched as a factual allegation.”
Iqbal, 556 U.S. at 678.
the court generally does not consider any material beyond the
pleadings for a Rule 12(b)(6) analysis. Hal Roach
Studios, Inc. v. Richard Feiner & Co., 896 F.2d
1542, 1555 n. 19 (9th Cir. 1990). Exceptions to this rule
include material submitted as part of the complaint or relied
upon in the complaint, and material subject to ...