Bunce v Ocwen

Filing 18

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 7/16/13 ORDERING that defendant's motion to dismiss be, and the same hereby is, GRANTED.Plaintiff has twenty days from the date of this Order to file an amended complaint if he can do so consistent with this Order. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES V. BUNCE,
Plaintiff,

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NO. CIV. 2:13-00976 WBS EFB
MEMORANDUM AND ORDER RE:
MOTION TO DISMISS

v.
OCWEN LOAN SERVICING, LLC; and
DOES 1-10 inclusive,

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Defendants.
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Plaintiff James V. Bunce brought this action against

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Ocwen Loan Servicing, LLC, and Does one through ten in connection

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with the attempted modification of his home loan.

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moves to dismiss the Complaint in its entirety for failure to

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state a claim upon which relief can be granted pursuant to

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Federal Rule of Civil Procedure 12(b)(6).

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I.

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Defendant now

(Docket No. 6.)

Relevant Facts and Procedural Background
Plaintiff resides at 1029 Enwood Road, Roseville,

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California (the “Subject Property”).

(Notice of Removal

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(“Compl.”) ¶ 1 (Docket No. 1).)

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executed a deed of trust (“Deed of Trust”) involving the Subject

On June 23, 2006, plaintiff

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Property as security for a loan of $325,000 (“Subject Loan”) from

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American Brokers Conduit (“ABC”).

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Electronic Registration Service, Inc. (“MERS”) was named as a

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nominee for ABC and was designated as the beneficiary under the

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Deed of Trust.

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“took over the subject loan” in a manner unknown to plaintiff.

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(Id. ¶ 10.)

Mortgage

Plaintiff alleges that defendant

In or about 2010, plaintiff’s income was reduced and he

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(Id. Ex. A.)

(Id. ¶ 9.)

contacted defendant for assistance with the Subject Loan.

(Id. ¶

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11.)

Plaintiff was allegedly told to submit loan modification

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applications on several occasions.

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accepted the applications, but denied plaintiff a loan

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modification without explanation.

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allegedly requested the same documents on multiple occasions and

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defendant complied, but defendant allegedly rejected plaintiff’s

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applications for a loan modification without a review on the

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merits.

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potential options to defer, forbear, or modify the loan payments.

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(Id. ¶ 11.)

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foreclosure proceedings” and recorded a notice of default, (id. ¶

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15), its opposition brief admits that a notice of default has not

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been recorded, (Pl.’s Opp’n at 3:14-15 (Docket No. 13)).

(Id. ¶ 12.)

(Id.)

Defendant allegedly

(Id. ¶¶ 11-14, 16.)

Defendant

Defendant also allegedly failed to discuss

While plaintiff alleges that defendant “began

Plaintiff first filed suit in state court, but the

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action was removed to federal court on May 16, 2013.

(Docket No.

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1.)

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Civil Code section 2923.5, (Compl. ¶¶ 19-24); (2) breach of the

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implied covenant of good faith and fair dealing, (id. ¶¶ 25-35);

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(3) “lack of standing,” or declaratory relief (id. ¶¶ 36-48); (4)

Plaintiff brings claims for: (1) violation of California

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negligence, (id. ¶¶ 49-59); and (5) violation of California

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Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et

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seq., (id. ¶¶ 60-66).

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II.

Discussion

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To survive a motion to dismiss, a plaintiff must plead

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“only enough facts to state a claim to relief that is plausible

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on its face.”

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(2007).

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than a sheer possibility that a defendant has acted unlawfully,”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

This “plausibility standard,” however, “asks for more

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and “[w]here a

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complaint pleads facts that are ‘merely consistent with’ a

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defendant’s liability, it ‘stops short of the line between

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possibility and plausibility of entitlement to relief.’”

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(quoting Twombly, 550 U.S. at 557).

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plaintiff has stated a claim, the court must accept the

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allegations in the complaint as true and draw all reasonable

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inferences in favor of the plaintiff.

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U.S. 232, 236 (1974), overruled on other grounds by Davis v.

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Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322

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(1972).

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A.

Id.

In deciding whether a

Scheuer v. Rhodes, 416

California Civil Code section 2923.5
Section 2923.5 requires the mortgage servicer,

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mortgagee, beneficiary, or authorized agent to “contact the

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borrower in person or by telephone to assess the borrower’s

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financial situation and explore options for the borrower to avoid

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foreclosure” at least thirty days before filing a notice of

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default.

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create an affirmative obligation on a lender to offer a loan

Cal. Civ. Code § 2923.5(b).

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Section 2923.5 does not

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modification.

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01152-CJC(DTBx), 2013 WL 3071250, at *4 (C.D. Cal. June 18,

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2013).

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Clerk v. Telesis Cmty. Credit Union, EDCV 12-

The court cannot find, nor does plaintiff cite, a case

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in which the court found a violation of section 2923.5 when a

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notice of default was not filed and the mortgage foreclosure

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process had not been initiated.

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no notice of default has been filed, plaintiff’s claim under

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section 2923.5 is not ripe.

Because plaintiff concedes that

See Wienke v. Indymac Bank FSB, No.

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CV 10-4082, 2011 WL 2565370, at *5 (N.D. Cal. June 29, 2011)

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(Vadas, Magistrate J.) (“[T]he FAC does not allege that a

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foreclosure sale is even pending, so the request for injunctive

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relief [under section 2923.5] is not ripe.”); cf. Texas v. United

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States, 523 U.S. 296, 300 (1998) (“A claim is not ripe for

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adjudication if it rests upon contingent future events that may

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not occur as anticipated, or indeed may not occur at all.”

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(internal quotation marks and citations omitted)).

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plaintiff’s allegations indicate that he has engaged in the loan

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modification process.

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Credit Union, “[p]laintiffs admit that they engaged in loan

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modification discussions . . . ; [p]laintiffs were simply unhappy

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with the results of those discussions.”

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at *4.

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Here, as in Clerk v. Telesis Community

Clerk, 2013 WL 3071250,

Plaintiff’s first claim for violation of section 2923.5

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Furthermore,

must accordingly be dismissed.
B.

Breach of the Implied Covenant of Good Faith and Fair

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Dealing

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“‘There is an implied covenant of good faith and fair
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dealing in every contract that neither party will do anything

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which will injure the right of the other to receive the benefits

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of the agreement.’”

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F 11-0352 LJO DLB, 2011 WL 1232989, at *9 (E.D. Cal. Mar. 31,

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2011) (quoting Kransco v. Am. Empire Surplus Lines Ins. Co., 23

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Cal. 4th 390, 400 (2000)).

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prerequisite for any action for breach of the implied covenant of

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good faith and fair dealing is the existence of a contractual

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relationship between the parties, since the covenant is an

Dooms v. Fed. Home Loan Mortg. Corp., No. CV

“[I]t is . . . well settled ‘[t]he

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implied term in the contract.”

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N.A., 216 Cal. App. 4th 497, 525 (4th Dist. 2013) (second

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alteration in original) (citing Smith v. City & County of San

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Francisco, 225 Cal. App. 3d 38, 49 (1st Dist. 1990)).

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Jenkins v. JP Morgan Chase Bank,

“Without a contractual underpinning, there is no

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independent claim for breach of the implied covenant.”

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(citing Fireman’s Fund Ins. Co. v. Maryland Cas. Co., 21 Cal.

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App. 4th 1586, 1599 (4th Dist. 1994)).

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alleging a breach of the implied covenant cannot be used by a

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plaintiff to try to extend existing, or to create new,

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obligations that were not contemplated by the parties when the

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contract was executed.”

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(Cal.), Inc. v. Marathon Dev. Cal., Inc., 2 Cal. 4th 342, 373

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(1992)); see Dooms, 2011 WL 1232989, at *9 (“The implied covenant

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of good faith and fair dealing is limited to assuring compliance

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with the express terms of the contract, and cannot be extended to

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create obligations not contemplated by the contract.” (internal

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quotation marks and citation omitted)).

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Id.

“Consequently, an action

Id. at 528 (citing Carma Developers

In support of his claim, plaintiff points to a single
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sentence in the Deed of Trust, under the section titled “Transfer

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of Rights in the Property.”

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sentence states: “This Security Instrument secures to Lender: (i)

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the repayment of the Loan, and all renewals, extensions and

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modifications of the Note; and (ii) the performance of Borrower’s

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covenants and agreements under this Security Instrument and The

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Note.”

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loan modification, this sentence provides that if plaintiff

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received a loan modification, the right to receive payment from

(Id. Ex. A.)

(See Compl. ¶ 27, Ex. A.)

The

Rather than creating a contractual right to

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the modification would belong to the lender.

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suggest that plaintiff had a contractual right to loan

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modification, “plaintiff has failed to allege nonconclusory

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factual content from which the court could infer the existence of

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a modification agreement that could provide the basis for

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additional duties owed by each party.”

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Credit Solutions, Inc., CIV. 2:11-2261 WBS D, 2012 WL 260357, at

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*4 (E.D. Cal. Jan. 26, 2012) (Shubb, J.); see also Jenkins, 216

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Cal. App. 4th at 525 (“Nowhere in Jenkin’s SAC are facts alleged

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as to how Quality’s actions violated an express or implied duty

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under the deed of trust.”).

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As no other facts

Thompson v. Residential

Accordingly, defendant’s motion to dismiss plaintiff’s

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second claim for breach of the implied covenant of good faith and

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fair dealing must be granted.

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C.

Declaratory Relief
In his third claim entitled “Lack of Standing,”

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plaintiff alleges that defendant does not have a beneficial

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interest in the Deed of Trust.

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“seek[ing] judicial determination of each parties’ rights and

(Compl. ¶ 40.)

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He brings a claim

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duties” under the Deed of Trust and an unspecified promissory

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note.

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establish whether defendant may “exercise the power of sale” by

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recording a notice of default and foreclosing upon the Subject

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Property.

(Id. ¶¶ 41, 48.)1

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It appears that plaintiff wishes to

(See id. ¶ 47.)
The Declaratory Judgment Act provides, in relevant

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part, that “[i]n a case of actual controversy within its

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jurisdiction . . . , any court of the United States . . . may

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declare the rights and other legal relations of any interested

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party seeking such declaration.”

28 U.S.C. § 2201(a).

“[T]he

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phrase ‘case of actual controversy’ in the Act refers to the type

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of ‘Cases’ and ‘Controversies’ that are justiciable under Article

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III.”

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(2007).

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dispute be ‘definite and concrete, touching the legal relations

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of parties having adverse legal interests’; and that it be ‘real

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and substantial’ and ‘admi[t] of specific relief of a conclusive

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character, as distinguished from an opinion advising what the law

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would be upon a hypothetical state of facts.”

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in original) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S.

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227, 240-41 (1937)).

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brings to the present a litigable controversy, which otherwise

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might only by [sic] tried in the future.”

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Conditionnement en Aluminium v. Hunter Eng’g Co., Inc., 655 F.2d

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127
The Supreme Court’s decisions “have required that the

Id. (alterations

“In effect, [the Declaratory Judgment Act]

Societe de

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Plaintiff appears to argue that MERS, BNYM, and the
REMIC Trust do not have a beneficial interest in the Deed of
Trust. (Compl. ¶¶ 42-45.) MERS is listed as the beneficiary in
the Deed of Trust, (id. Ex. A), but plaintiff fails to allege or
explain BNYM or REMIC Trust’s relationship to the case.
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938, 943 (9th Cir. 1981).

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California Civil Code sections 2924 through 2924k “set

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forth a ‘comprehensive framework for the regulation of a

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nonjudicial foreclosure sale pursuant to a power of sale

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contained in a deed of trust.’”

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508 (quoting Moeller v. Lien, 25 Cal. App. 4th 822, 830 (2d Dist.

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1994)).

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beneficiary, or any of their authorized agents’ may initiate the

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foreclosure process.”

Jenkins, 216 Cal. App. 4th at

Under section 2924(a), “a ‘trustee, mortgagee, or

Gomes v. Countrywide Home Loans, Inc., 192

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Cal. App. 4th 1149, 1155 (4th Dist. 2011) (quoting Cal. Civ. Code

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§ 2924(a)).

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Since a notice of default has not been recorded and the

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foreclosure process has not been initiated, the court cannot know

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whether the foreclosure process will even commence, let alone

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what party would be exercising the power of sale, under what

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alleged authority, and in what manner.

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App. 4th at 512 (distinguishing between an action to determine a

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party’s right to foreclose upon a property which impermissibly

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“seeks to create ‘the additional requirement’ that the

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foreclosing entity must ‘demonstrate in court that it is

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authorized to initiate a foreclosure,’” and an action which

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“seek[s] a remedy for a foreclosing party’s misconduct with

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regards to the initiation and processing of the nonjudicial

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foreclosure, which . . . may serve as the basis of a valid cause

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of action” (quoting Gomes, 192 Cal. App. 4th at 1154 n.5)).

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Providing declaratory relief at this stage would be an

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impermissible “opinion advising what the law would be upon a

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hypothetical state of facts.”

Cf. Jenkins, 216 Cal.

MedImmune, 549 U.S. at 127.
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Because no actual controversy exists to warrant

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declaratory judgment, defendant’s motion to dismiss plaintiff’s

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third claim for declaratory relief must be granted.

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D.

Negligence
“The elements of a cause of action for negligence are

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(1) a legal duty to use reasonable care, (2) breach of that duty,

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and (3) proximate cause between the breach and (4) the

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plaintiff’s injury.”

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App. 4th 1333, 1339 (2d Dist. 1998) (citation omitted).

Mendoza v. City of Los Angeles, 66 Cal.
“The

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existence of a duty of care owed by a defendant to a plaintiff is

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a prerequisite to establishing a claim for negligence.”

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v. Heart Fed. Sav. & Loan Ass’n, 231 Cal. App. 3d 1089, 1095 (3d

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Dist. 1991).

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Nymark

“[A]s a general rule, a financial institution owes no

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duty of care to a borrower when the institution’s involvement in

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the loan transaction does not exceed the scope of its

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conventional role as a mere lender of money.”

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“This rule also applies to loan servicers.”

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Fed. Bank, 682 F. Supp. 2d 1142, 1149 (E.D. Cal. 2010) (Burrell,

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J.) (citation omitted).

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to a borrower when its involvement does not exceed the scope of

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its role as a mere loan servicing company.”

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Fed. Bank, FSB, 2:09CV01947 FCD DAD, 2010 WL 761221, at *5 (E.D.

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Cal. Mar. 3, 2010) (citing cases).

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Id. at 1096.

Lingad v. Indymac

“[A] loan servicer does not have a duty

Somera v. Indymac

Recently, a California appellate court applied six

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nonexhaustive factors in determining whether a duty existed

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between the borrower and lender.

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LLC, 213 Cal. App. 4th 872, 899 (1st Dist. 2013).

See Jolley v. Chase Home Fin.,

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Those factors

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are:
(1) the extent to which the transaction was intended to
affect the plaintiff, (2) the foreseeability of harm to
the plaintiff, (3) the degree of certainty that the
plaintiff suffered injury, (4) the closeness of the
connection between the defendant’s conduct and the injury
suffered, (5) the moral blame attached to the defendant’s
conduct, and (6) the policy of preventing future harm.

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4
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(citing Biakanja v. Irving, 49 Cal. 2d 647, 650 (1958)); see

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Id.

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also Nymark, 231 Cal. App. 3d at 1098-99 (applying the Biakanja

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factors).

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Here, plaintiff alleges that defendant owed plaintiff a

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duty of care because defendant exceeded the scope of its

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traditional role as a lender of money.

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All of plaintiff’s allegations, however, revolve around

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defendant’s review of plaintiff’s loan modification application.

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(Compl. ¶¶ 50-58.)

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the factors outlined in Jolley, plaintiff’s factual allegations

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concerning the loan modification process are insufficient to

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plausibly suggest that defendant owed plaintiff a duty of care.

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See Armstrong v. Chevy Chase Bank, FSB, 5:11-CV-05664 EJD, 2012

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WL 4747165, at *4 (N.D. Cal. Oct. 3, 2012), appeal dismissed,

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(Dec. 14, 2012) (finding no duty arose when the plaintiffs

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alleged that defendant “held out to Plaintiffs that they would be

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offered a loan modification if their loan was brought current”);

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Argueta v. J.P. Morgan Chase, No. CIV. 2:11-441 WBS GGH, 2011 WL

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2619060, at *5 (June 30, 2011) (Shubb, J.) (acknowledging the

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Biakanja factors and holding that no duty of care arose when

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defendant accepted and processed plaintiff’s loan modification

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application); Sullivan v. JP Morgan Chase Bank, NA, 725 F. Supp.

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2d 1087, 1094 (E.D. Cal. 2010) (Burrell, J.) (holding that the

(Pl.’s Opp’n at 8:1-16.)

Even assuming that the court must consider

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“Plaintiffs’ allegations that [the] Defendant misrepresented to

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them that a permanent loan modification would be put into place

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are insufficient to form the basis of a negligence claim”);

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DeLeon v. Wells Fargo Bank, N.A., No. 10-CV-01390, 2010 WL

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4285006, at *4 (N.D. Cal. Oct. 22, 2010) (finding that defendant

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did not have a duty “to complete the loan modification process”).
In Ansanelli v. JP Morgan Chase Bank, N.A., No. C

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10–03892, 2011 WL 1134451 (N.D. Cal. Mar. 28, 2011), the primary

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case relied upon by plaintiff in support of its negligence

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argument, the defendant bank had “agreed to place plaintiffs in a

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trial payment plan, guaranteeing that if plaintiffs made payments

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on time . . . [the defendant] would provide a permanent

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modification of their loan.”

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The court therefore found that the defendant “went beyond its

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role as a silent lender and loan servicer to offer an opportunity

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to plaintiffs for loan modification and to engage with them

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concerning the trial period plan.”

Ansanelli, 2011 WL 1134451, at *1.

Id. at *7.

Courts have disagreed with Ansanelli’s finding that

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loan modification activities extend beyond the role of a money

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lender or loan servicer.

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at *4; Johnston v. Ally Fin. Inc., No. 11-CV-0998-H BLM, 2011 WL

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3241850, at *4 (S.D. Cal. July 29, 2011) (“In addition, loan

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modification is an activity that is intimately tied to

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Defendant’s lending role.” (internal quotation marks and citation

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omitted)).

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modification, which at its core is an attempt by a money lender

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to salvage a troubled loan, is nothing more than a renegotiation

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of loan terms.”

See, e.g., Armstrong, 2012 WL 4747165,

In Armstrong, the court explained that “a loan

Armstrong, 2012 WL 4747165, at *4.
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“Outside of

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actually lending money, it is undebatable that negotiating the

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terms of the lending relationship is one of the key functions of

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a money lender.”

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minority of cases which hold otherwise, such as Ansanelli . . . ,

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are unpersuasive.”

Id.

The court ultimately found that “[t]he

Id.

This court, like the court in Armstrong, finds

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Ansanelli unpersuasive.

Furthermore, even assuming that

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Ansanelli is correct in finding that the plaintiff in that case

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adequately pled a duty of care, the allegations here are

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distinguishable since plaintiff does not allege that he entered

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into a trial payment plan with defendant.
Because plaintiff fails to plausibly allege that

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defendant owed him a duty of care, his fourth claim for

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negligence must accordingly be dismissed.

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E.

UCL
California Business and Professions Code section 17200

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et seq. (“UCL”) prohibits unfair competition, which is defined to

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include, in relevant part, “any unlawful, unfair or fraudulent

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business act or practice.”

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“Because Business and Profession Code section 17200 is written in

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the disjunctive, it establishes three varieties of unfair

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competition . . . . In other words, a practice is prohibited as

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unfair or deceptive even if not unlawful and vice versa.”

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Tech Comm’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163,

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180 (1999) (internal quotation marks and citations omitted).

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Cal. Bus. & Prof. Code § 17200.

Cel-

“Conduct is considered ‘fraudulent’ under the UCL if

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the conduct is ‘likely to deceive.’”

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Servs., Inc., 814 F. Supp. 930, 941 (N.D. Cal. 2011) (quoting
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Pinel v. Aurora Loan

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Morgan v. AT & T Wireless Servs., Inc., 177 Cal. App. 4th 1235,

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1254 (2d Dist. 2009)).

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based on the reasonable consumer standard, which requires the

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plaintiff to ‘show that members of the public are likely to be

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deceived.’”

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934, 938 (9th Cir. 2008)).

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claim under the UCL’s fraudulent prong “must plead and prove

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actual reliance.”

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(2009).

10

“A claim under this prong of the UCL is

Id. (quoting Williams v. Gerber Prods. Co., 552 F.3d
Furthermore, a plaintiff bringing a

In re Tobacco II Cases, 46 Cal. 4th 298, 329

UCL claims sounding in fraud must meet the pleadings

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standards of Federal Rule of Civil Procedure 9(b).

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Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir. 2003).

13

Rule 9(b), “[i]n all averments of fraud or mistake, the

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circumstances constituting fraud or mistake shall be stated with

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particularity.”

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the circumstances constituting the alleged fraud ‘be specific

17

enough to give defendants notice of the particular misconduct . .

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. so that they can defend against the charge and not just deny

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that they have done anything wrong.’”

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567 F.3d 1120, 1124 (9th Cir. 2009) (quoting Bly-Magee v.

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California, 236 F.3d 1014, 1019 (9th Cir. 2001)).

22

fraud must be accompanied by ‘the who, what, when, where, and

23

how’ of the misconduct charged.”

24

Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)).

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Fed. R. Civ. P. 9(b).

Vess v. CibaUnder

“Rule 9(b) demands that

Kearns v. Ford Motor Co.,

“Averments of

Vess, 317 F.3d at 1106 (quoting

To have standing to bring a claim under the UCL, a

26

person must have “suffered injury in fact and has lost money or

27

property as a result.”

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that showing, they must: “(1) establish a loss or deprivation of

Cal. Bus. & Prof. Code § 17204.

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To make

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money or property sufficient to qualify as injury in fact, i.e.,

2

economic injury, and (2) show that that economic injury was the

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result of, i.e., caused by, the unfair business practice . . .

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that is the gravamen of the claim.”

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Court, 51 Cal. 4th 310, 322 (2011) (emphasis in original).

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is no causation “when a complaining party would suffer the same

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harm whether or not a defendant complied with the law.”

8

Superior Court, 151 Cal. App. 4th 1079, 1099 (1st Dist. 2007).

Kwikset Corp. v. Superior
There

Daro v.

9

Here, plaintiff’s claim appears to rest on allegations

10

that defendant misrepresented the loan modification process when

11

it told plaintiff that his application would be reviewed on the

12

merits if he submitted certain documentation to defendant.

13

(Compl. ¶¶ 11-12, 14, 16.)

14

are therefore subject to the heightened pleading standard of Rule

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9(b).

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to adequately specify any alleged misrepresentations “so that

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[defendant] can defend against the charge and not just deny that

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[it] ha[s] done anything wrong.”

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Plaintiff does not adequately identify the substance of the

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alleged misrepresentation, who said it, when it was said, or how

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it was false.

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These allegations sound in fraud and

See Vess, 317 F.3d at 1103-04.

Plaintiff fails, however,

Kearns, 567 F.3d at 1124.

See Vess, 317 F.3d at 1106.

Plaintiff also fails to show how defendant’s alleged

23

misrepresentation caused his injury.

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forced to “exhaust [his] resources, incur additional fees on

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interest, penalties and foreclosure costs.”

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Putting aside the fact that foreclosure has not yet occurred, and

27

assuming that these allegations sufficiently state an economic

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injury, all of these injuries assume that he would have been
14

He alleges that he was

(Compl. ¶ 14.)

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granted a loan modification.

2

or legal support for the contention that he would have been

3

entitled to a loan modification if he did submit all the required

4

documentation.

5

2d 1209, 1224 (S.D. Cal. 2012) (noting that HAMP does not require

6

a bank to offer a borrower a loan modification).2

claim for violation of the UCL.

9
10

See Kimball v. Flagstar Bank F.S.B., 881 F. Supp.

Accordingly, the court must dismiss plaintiff’s fifth

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8

Yet plaintiff provides no factual

IT IS THEREFORE ORDERED that defendant’s motion to
dismiss be, and the same hereby is, GRANTED.
Plaintiff has twenty days from the date of this Order

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12

to file an amended complaint if he can do so consistent with this

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Order.

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DATED:

July 16, 2013

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2
To the extent plaintiff bases his UCL claim on
“unlawful” or “unfair” conduct, plaintiff has failed to
adequately allege an underlying violation of another law to
satisfy the “unlawful” prong. See Lucia v. Wells Fargo Bank,
N.A., 798 F. Supp. 2d 1059, 1072 (N.D. Cal. 2011) (rejecting a
UCL claim based upon violation of Home Affordable Modification
Plan (“HAMP”) because “there is no private cause of action under
HAMP” and “‘[a] court may not allow a plaintiff to plead around
an absolute bar to relief simply by recasting the cause of action
as one for unfair competition’” (quoting Chabner v. United Omaha
Life Ins. Co., 225 F.3d 1042, 1048 (9th Cir. 2000))); Berryman v.
Merit Prop. Mgmt., Inc., 152 Cal. App. 4th 1544, 1554 (4th Dist.
2007) (“Under its unlawful prong, the UCL borrows violations of
other laws . . . and makes those unlawful practices actionable
under the UCL.” (alteration in original) (internal quotation
marks and citation omitted)). Plaintiff has also failed to
include sufficient factual allegations to state a plausible claim
under the “unfair” prong.

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