Barboza v. Deutsche Bank Securities, Inc. et al

Filing 27

ORDER Defendant Deutsche Bank Servicing, Inc.'s ("DBSI") and Litton Loan Servicing LP's ("Litton") motion to dismiss and motion to strike, signed by Judge Oliver W. Wanger on 7/2/2010. (Arellano, S.)

333 SOUTH GRAND AVENUE SUITE 2100 LOS ANGELES, CALIFORNIA 90071

DYKEMA GOSSETT LLP

1 Fredrick S. Levin, SBN: 187603 ([e-mail]) 2 Dawn N. Williams, SBN: 267925 ([e-mail]) 3 DYKEMA GOSSETT LLP 333 South Grand Avenue 4 Suite 2100 Los Angeles, California 90071 5 Telephone: [phone] Facsimile: [phone] 6 Attorneys for Deutsche Bank Securities, Inc. 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 JOSE LUIS BARBOZA, Case No. 1:10-CV-00559-OWW-DLB 10 Plaintiff, Assigned for all purposes to Hon. Judge Oliver 11 W. Wanger vs. 12 ORDER DEUTSCHE BANK SECURITIES, INC; 13 LITTON LOAN SERVICING LP; and DOES 1 Hearing Date: June 21, 2010 TO 50, inclusive, Time: 10:00 A.M. 14 Location: Courtroom 3 Defendants. 15 16 17 18 ORDER GRANTING MOTION Having considered Defendant Deutsche Bank Servicing, Inc.'s ("DBSI") and Litton Loan

19 Servicing LP's ("Litton") motion to dismiss and motion to strike in the above-entitled action, the 20 Plaintiff having had a full and fair opportunity to be heard with respect to the Motion, and the Court 21 being fully apprised of the premises of the Motion, 22 23 IT IS ORDERED that (1) Plaintiff's fraud cause of action fails to meet Rule 9(b) of the Federal Rules of Civil

24 Procedure pleading standard and, therefore, is dismissed with leave to amend; 25 (2) Plaintiff's unconscionable contract claim does not serve as an independent cause of

26 action and, therefore, is dismissed without leave to amend; 27 28 1
ORDER

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333 SOUTH GRAND AVENUE SUITE 2100 LOS ANGELES, CALIFORNIA 90071

(3) Plaintiff's breach of the covenant of good faith and fair dealing claim fails to plead the existence of a valid contract between Plaintiff and DBSI and Litton and, therefore, is dismissed with leave to amend; (4) Plaintiff's Business and Professions Code § 17200 claim is wholly contingent upon his prior deficient causes of action and, therefore, is likewise dismissed with leave to amend; (5) Plaintiff's reformation claim is dismissed with leave to amend because it fails to meet Rule 9(b) of the Federal Rules of Civil Procedure pleading standards and fails to establish that DBSI and Litton are real parities in interest to the contract to be reformed. (6) Plaintiff's prayer for punitive damages in paragraph 10 of the Complaint is void of any allegations that DBSI and Litton engaged in oppressive, fraudulent, or malicious conduct and, therefore, must be stricken; (7) The remainder of DBSI's and Litton's motion to strike is denied as moot.

DYKEMA GOSSETT LLP

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IT IS SO ORDERED. Dated:
DEAC_Signature-END:

July 2, 2010

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

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[PROPOSED] ORDER DISMISSING COMPLAINT