Blankenchip et al v. CitiMortgage, Inc. et al

Filing 10

MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 12/3/2014 re 5 Defendant Citimortgage, Inc.'s Motion to Dismiss: Defendant Citimortgage's motion to dismiss be, and the same hereby is, GRANTED with respect to plaintiffs&# 039; claims intentional infliction of emotional distress; and DENIED with respect to all of plaintiffs' other claims. The court does not require that plaintiffs amend their Complaint, but should they choose to do so plaintiffs have twenty days from the date this Order is signed to file an amended complaint, if they can do so consistently with this Order. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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RANDY BLANKENCHIP AND SUSAN
BLANKENCHIP,
Plaintiffs,

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CIV. NO. 2:14-2309 WBS AC
MEMORANDUM AND ORDER RE: MOTION
TO DISMISS

v.
CITIMORTGAGE, INC.; CALWESTERN RECONVEYANCE, LLC;
and DOES 1 through 50,
inclusive,

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Defendants.
----oo0oo---Plaintiffs filed this action in state court, arising
out of allegations that defendants breached a loan modification
agreement and wrongfully foreclosed on their home.

Defendant

Citimortgage, Inc. removed the action to federal court under 28
U.S.C. § 1441(b) on the basis of diversity jurisdiction.
Presently before the court is Citimortgage’s motion to dismiss
the Complaint pursuant to Federal Rule of Civil Procedure

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12(b)(6) for failure to state a claim upon which relief can be

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granted.

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I.

Factual and Procedural Background

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Plaintiffs’ allegations concern a residential mortgage

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loan they took out for their home in Suisun City, California.

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(Compl. ¶ 2 (Docket No. 1).)

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plaintiffs struggled to maintain their monthly loan payments and

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sought a loan modification.

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sent them a Home Affordable Modification Program Trial Period

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Plan agreement.

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Due to a reduction in their income,

(Id. ¶ 13.)

Citimortgage agreed and

(Id. ¶ 14.)

The terms of the modification agreement required

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plaintiffs to make three timely payments of $2,758.05 to qualify

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for a permanent modification.

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1, 2011, the second on August 1, 2011, and the third on September

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1, 2011.

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all trial period payments are timely made and you have submitted

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all the required documents, your mortgage will be permanently

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modified.”

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(Id. ¶ 15.)

The first payment was due on July

The agreement further promised that “after

(Id. ¶ 16.)
In addition to the modification agreement, Citimortgage

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sent a document entitled “Important Program Info,” which stated,

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“The terms of your trial period plan are effective on the day you

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make your first trial period payment . . . .

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to foreclosure sale during the trial period, provided you are

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complying with the terms of the trial plan.”

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document further stated that “[a]ny pending foreclosure action or

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proceeding that has been suspended may be resumed if you are

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notified in writing that you failed to comply with the terms of

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the trial period plan or do not qualify for a permanent
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We will not proceed

(Compl. ¶ 17.)

The

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modification.”

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(Id.)

Plaintiffs allege they accepted the agreement by making

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their first trial period payment by July 1, 2011.

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Plaintiffs allege each of the three payments under the trial plan

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were timely, (id. ¶¶ 18-22.), despite the fact that the Notice of

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Trustee recorded their second payment date as “August 5,” which

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plaintiffs allege is an error, (id. ¶ 20).

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postponed the sales date of plaintiffs’ home while plaintiffs

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remained in the trial plan.

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(Id. ¶ 18.)

Citimortgage

(Id. ¶ 21.)

Ultimately, Citimortgage did not provide plaintiffs

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with a permanent payment modification.

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Nevertheless, plaintiffs continued to pay the modified amount

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after the trial period ended.

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date of November 10, 2011.

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plaintiffs that it would not pursue a foreclosure sale while it

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continued to review plaintiffs’ eligibility for a permanent

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modification.

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(Id.)

(Id.)

(Id. ¶ 22.)

The bank set a new sales

However, it allegedly promised

(Id. ¶ 23.)1

On November 3, 2011, seven days before the proposed

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foreclosure sale, Citimortgage sent plaintiffs a letter stating

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that “the deadline for you to return the required documentation

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for the Home Affordable Modification Program has been extended,”

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giving plaintiffs until December 5, 2011 to submit the required

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documentation.

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is real—don’t risk being dropped from the [modification]

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program.”

(Id.)

The letter cautioned that “this deadline

(Id.)

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Plaintiffs do not allege who at Citimortgage made this
promise, only that the promise was “in line with the terms of the
written Agreement dated June 13, 2011.” (Id. ¶ 23.)
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Despite the November 3, 2011 letter’s assurances,

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Citimortgage proceeded to sell plaintiffs’ home on November 10,

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2011.

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defendants Citimortgage and Cal-Western Conveyance, LLC, alleging

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the foreclosure sale was wrongful on multiple grounds: (1)

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wrongful foreclosure; (2) breach of contract; (3) promissory

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estoppel; (4) breach of the implied covenant of good faith and

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fair dealing; (5) fraud; (6) violations of California Business

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and Professions Code sections § 17200, et seq.; and (7)

(Id. ¶ 25.)

Plaintiffs brought several claims against

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intentional infliction of emotional distress.

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Citimortgage now move to dismiss all of plaintiffs’ claims.

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II.

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Defendant

Judicial Notice
In general, a court may not consider items outside the

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complaint when deciding a motion to dismiss, but it may consider

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items of which it can take judicial notice.

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F.3d 1370, 1377 (9th Cir. 1994).

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court take judicial notice of eighty-five pages of material:

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various deeds of trusts and reconveyances pertaining to

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plaintiffs’ residence, (Def.’s Req. for Judicial Notice Exs. 1-7

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(Docket No. 6)); plaintiffs’ notice of default, (id. Ex. 8);

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correspondence between plaintiffs and Citimortgage spanning the

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period of June 13 to October 14, 2011, (id. Exs. 9-13); notice of

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the trustee’s sale to Polymathic properties and the corresponding

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deed of grant, (id. Exs. 14-15); and Polymathic and

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Citimortgage’s business entity detail from the California

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Secretary of State website, (id. Exs. 16-17).

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Barron v. Reich, 13

Citimortgage requests that the

Such requests for judicial notice in conjunction with a
motion to dismiss have become common practice among litigants in
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this court.

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not for summary judgment pursuant to Rule 56.

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for summary judgment the court looks to evidence, see Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (noting the court

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must determine whether there is sufficient evidence to create a

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triable issue), on a motion to dismiss, the court is limited to

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the allegations in the plaintiff’s Complaint, Pareto v. F.D.I.C.,

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139 F.3d 696, 699 (9th Cir. 1998).

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Citimortgage insisted it did not wish the court to convert its

Citimortgage moves to dismiss under 12(b)(6), and
While on a motion

At oral argument,

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motion into one for summary judgment.

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only take notice of those records that fall into one of the

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narrow exceptions identified by Ninth Circuit precedent.

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The court may therefore

Through the “incorporation by reference” doctrine, the

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court may “take into account documents . . . alleged in a

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complaint and whose authenticity no party questions, but which

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are not physically attached to the [plaintiff’s] pleading . . .

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even though the plaintiff does not explicitly allege the contents

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of that document in the complaint.”

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1068, 1076 (9th Cir. 2005) (internal quotation marks and

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citations omitted).

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allegations contained in the plaintiffs’ Complaint “incorporate”

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any of its exhibits.

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“plaintiffs’ entire pleading implicitly references and

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necessarily relies on the contents of Citi’s correspondence set

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forth as Exhibits 9 through 11 and 13 . . . .”

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for Judicial Notice at 13.)

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Complaint, the court could not find an allegation referencing any

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of the letters submitted by Citimortgage; plaintiffs only

Knievel v. ESPN, 393 F.3d

Citimortgage has not indicated how specific

Citimortgage asserts categorically that

(Def.’s Request

After independently reviewing the

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reference a letter dated November 3, 2011.

(Compl. ¶ 23.)

If Citimortgage is trying to raise a factual dispute,

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it must do so in the context of a motion for summary judgment.

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The more generously a court interprets the word “incorporate,”

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the more a motion to dismiss will impermissibly come to resemble

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a cheapened motion for summary judgment.

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2d at 16 (declining to consider a defendant’s motion in the

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alternative for summary judgment before the plaintiff has been

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“afforded an appropriate opportunity to conduct discovery and

See Baker, 150 F. Supp.

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submit materials”).

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“permits” the district court to consider material outside

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pleadings, but it does not require it.

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1076 (recognizing the incorporation doctrine “permits” the court

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to take into account documents incorporated by the complaint

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(emphasis added)).

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not extend the doctrine here.

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Furthermore, the incorporation doctrine

See Knievel, 393 F.3d at

In exercising its discretion, the court will

A court may also take judicial notice of matters of

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public record in deciding a motion to dismiss.

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Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001), impliedly

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overruled on other grounds as recognized by Gollardo v. Dicarlo,

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203 F. Supp. 2d 1160, 1162 n.2 (C. D. Cal. 2002).

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hesitant to permit Citimortgage to proffer a selection of public

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records, possibly incomplete and out of context, where plaintiff

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has not had the opportunity to do so.

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reference doctrine, the court may exercise its discretion in

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deciding to take notice of public records on a motion to dismiss.

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See id. (noting a court “may” take judicial notice of matters of

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public record and reviewing the district court’s decision to take
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Lee v. City of

The court is

Like the incorporation by

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notice for abuse of discretion (emphasis added)).

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the court will deny Citimortgage’s request for judicial notice of

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those exhibits Citimortgage deems are public records.

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III. Analysis

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Accordingly,

On a Rule 12(b)(6) motion to dismiss, the court must

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accept the allegations in the complaint as true and draw all

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reasonable inferences in favor of the plaintiff.

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Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by

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

See Scheuer v.

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319, 322 (1972).

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must plead “only enough facts to state a claim to relief that is

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plausible on its face.”

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544, 570 (2007).

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for more than a sheer possibility that a defendant has acted

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unlawfully,” and where a plaintiff pleads facts that are “merely

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consistent with a defendant’s liability,” it “stops short of the

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line between possibility and plausibility.”

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556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557).

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To survive a motion to dismiss, a plaintiff

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

This “plausibility standard,” however, “asks

Ashcroft v. Iqbal,

A. Wrongful Foreclosure

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Wrongful foreclosure is an action in equity, where a

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plaintiff seeks to set aside a foreclosure sale.

See Karisen v.

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Am. Sav. & Loan Ass’n, 15 Cal. App. 3d 112, 117 (2d Dist. 1971).

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Generally, “[a] full tender must be made to set aside a

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foreclosure sale, based on equitable principles.”

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Litton Loan Servicing, LLP, 202 Cal. App. 4th 522, 526 (3d Dist.

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2011)).

Stebley v.

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Plaintiffs admit they never fully tendered, (see Compl.

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¶¶ 26-27), but contend that “[r]equiring plaintiffs to tender the
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complete indebtedness would be inequitable,” (Pl.’s Opp’n at 4).

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The court agrees.

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distinguishable from those instances in which courts require a

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plaintiff to allege tender of indebtedness when the plaintiff is

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attacking some irregularity in the sale procedure, and not the

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validity of the foreclosure itself.

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Savings Bank, 43 Cal. App. 4th 1101, 1109 (1st Dist. 1996)

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(dismissing appellants’ claim that the trustee unlawfully failed

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to notify them when the sale would take place because appellants

The allegations in this case are

See, e.g. Abdallah v. United

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never tendered their indebtedness).

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where the foreclosure is void, rather than voidable, such as when

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a plaintiff proves that the entity lacked the authority to

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foreclose on the property.”

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218 Cal. App. 4th 1079, 1100 (5th Dist. 2013) (declining to

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dismiss a claim although plaintiff failed to allege tender, where

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plaintiff sought damages because the trustee’s signature was

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forged to effectuate a fraudulent foreclosure and trustee’s sale

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of his home); Subramani v. Wells Fargo Bank N.A., Civ. No. 13-

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1605 SC, 2013 WL 5913789, at *4 (N.D. Cal. Oct. 31, 2013)

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(declining to dismiss plaintiff’s claim although he failed to

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tender where he sufficiently alleged the foreclosure sale was

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void because defendant was no longer the valid lender).

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“Tender is not required

Glaski v. Bank of Am., Nat’l Ass’n,

Here, plaintiffs are not seeking to set aside a

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foreclosure sale that was procedurally flawed; they seek damages

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based on the alleged invalidity of the foreclosure sale in the

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first place.

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foreclosure was wrongful because it was void, the court will not

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grant Citimortgage’s motion to dismiss the wrongful foreclosure

(Compl. ¶¶ 28-32.)

Because plaintiffs allege the

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claim on the basis that plaintiffs failed to allege tender.

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B.

Breach of Contract and Implied Covenant of Good Faith

and Fair Dealing

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The essential elements of a breach of contract claim

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are: (1) the existence of a valid contract between the parties;

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(2) plaintiff’s performance or excuse for nonperformance; (3)

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defendants’ unjustified or unexcused failure to perform; and (4)

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damages to plaintiff caused by the breach.

See Lortz v. Connell,

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273 Cal. App. 2d 286, 290 (1st Dist. 1969).

Additionally, “[t]he

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law implies in every contract . . . a covenant of good faith and

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fair dealing.

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party to refrain from doing anything to injure the right of the

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other to receive the agreement’s benefits.”

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Century Ins. Co., 42 Cal. 4th 713, 720 (2007).

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The implied promise requires each contracting

Wilson v. 21st

Plaintiffs allege Citimortgage breached the loan

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modification agreement when it foreclosed on their home, despite

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the bank’s promise that it would not do so while plaintiffs

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remained in the trial payment plan.

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to alleging Citimortgage breached the express terms of the

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modification agreement, plaintiffs also allege Citimortgage’s

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proceeded in bad faith when they pursued the foreclosure sale on

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November 10, 2011, after sending plaintiffs a letter that

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extended the filing deadline for paperwork until December 5,

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2011.

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their home and incurred numerous expenses due to their eviction.

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(Id. ¶ 50.)

(Id. ¶ 23.)

(Compl. ¶ 38.)

In addition

As a result, plaintiffs allege they lost

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Citimortgage argues that plaintiffs failed to make

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timely payments as required by the trial plan and thus their
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breach of contract and implied covenant claims must fail.

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(Def.’s Mem. at 6 (Docket No. 5).)

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Citimortgage requested the court to take judicial notice of

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correspondence between plaintiffs and itself over a several month

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period in 2011, but the court denied that request for the reasons

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stated above.

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the trial payment plan were timely and they were still within the

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modification plan when Citimortgage foreclosed on their home.

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Because the court must accept plaintiffs’ allegations that they

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made timely payments and remained in the trial payment program,

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plaintiffs plausibly allege claims for breach of contract and of

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the implied covenant of good faith and fair dealing.

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v. Xoma Corp., 74 F.3d 955, 977 (9th Cir. 1996) (holding that on

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a 12(b)(6) motion to dismiss, the court “take[s] as true all

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allegations of material fact stated in the complaint and

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construe[s] them in the light most favorable to the nonmoving

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party”).

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to dismiss those claims.

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C. Promissory Estoppel

In support of this assertion,

Plaintiffs allege all three of the payments under

See Warshaw

Accordingly, the court will deny Citimortgage’s motion

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Under California law, a plaintiff alleging a promissory

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estoppel claim must allege: (1) the existence of a promise “clear

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and unambiguous in its terms”; (2) “reliance by the party to whom

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the promise is made”; (3) that any reliance was both “reasonable

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and foreseeable”; and (4) that the party asserting the estoppel

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was injured by his reliance.

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App. 4th 887, 901 (4th Dist. 2005) (quoting Laks v. Coast Fed.

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Sav. & Loan Ass’n, 60 Cal. App. 3d 885, 890 (2d Dist. 1976)).

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US Ecology, Inc. v. State, 129 Cal.

Citimortgage argues plaintiffs cannot show that it
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breached any clear and unambiguous promise to give rise to a

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claim for promissory estoppel.

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plaintiffs’ Complaint, Citimortgage representatives initially

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told plaintiffs to miss payments in order to place their loan

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into default status, as they could not qualify for a permanent

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modification if their loan status remained current.

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10.)

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Citimortgage promised, “We will not proceed to foreclosure sale

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during the trial period, provided you are complying with the

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terms of your trial period plan,” (id. ¶ 42), and that this

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promise induced plaintiffs to enter into the program and fail to

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pursue other alternatives to foreclosure to keep their home from

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being sold, (id. ¶¶ 44-45).

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(Def.’s Mem. at 7.)

According to

(Complaint ¶

Once plaintiffs had defaulted, plaintiffs allege that

Because plaintiffs plausibly allege the existence of

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Citimortgage’s clear, unambiguous promise not to foreclose on the

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property while plaintiffs remain in the trial payment plan, the

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court will deny Citimortgage’s motion to dismiss plaintiffs’

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promissory estoppel claim.

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D. Fraud

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It is well established that “[a] district court may

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dismiss a claim ‘[i]f the running of the statute [of limitations]

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is apparent on the face of the complaint.’”

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Countrywide Home Loans, Inc., 656 F.3d 1034, 1045 (9th Cir.

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2011).

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claim is three years.

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action in that case is not deemed to have accrued until

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discovery, by the aggrieved party, of the facts constituting the

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fraud or mistake.”

Cervantes v.

In California, the statute of limitations for a fraud
Cal. Civ. Proc. § 338(d).

Id.

“The cause of

Citimortgage asserts that plaintiffs
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must have discovered the facts constituting the alleged fraud in

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August 2011, because plaintiffs received a notice of trustee’s

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sale on August 5, 2011.

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August 24, 2014--would therefore be outside the 3-year statute of

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limitations window.

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continued to assure them that they would remain in the trial

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program as of its November 3, 2011 letter.

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Therefore, it is plausible plaintiffs did not discover the

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alleged fraud until after the November 3 letter, when they

The filing date of plaintiffs’ action--

However, plaintiffs allege that Citimortgage

(Compl. ¶ 23.)

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discovered the property was sold.

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thus not barred by the three-year statute of limitations.

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Plaintiffs’ fraud claim is

Rule 9(b)’s heightened pleading standards apply to

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claims premised on fraud.

Kearns v. Ford Motor Co., 567 F.3d

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1120, 1125 (9th Cir. 2009).

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must state with particularity the circumstances constituting

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fraud or mistake.”

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premise their action on Citimortgage’s “false promise,” “an

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action based on a false promise is simply a type of intentional

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misrepresentation, i.e. actual fraud.”

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Mut. Augo. Ins. Co., 2 Cal. App. 4th

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“To maintain an action for deceit based on a false promise, one

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must specifically allege and prove . . .

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not intend to perform at the time he or she made the promise and

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that it was intended to deceive or induce the promisee to do or

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not do a particular thing.”

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must have made the promise with the intent to defraud the

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plaintiff.

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for fraud).

Rule 9(b) requires that “a party

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

Id.

Although plaintiffs

Tarmann v. State Farm
153, 159 (6th Dist. 1991).

that the promisor did

Additionally, the defendant

See Kearns, 567 F.3d at 1126 (stating the elements

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Plaintiffs allege that Citimortgage did not intend on

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performing its promise to hold off on foreclosing on their home

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while they remained in the trial payment program.

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In support, plaintiffs allege that the foreclosure sale took

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place only seven days after Citmortgage stated that plaintiffs

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had another month to complete their paperwork in order to remain

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in the trial plan program.

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Citimortgage lured them into default status, (id. ¶ 10), and

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induced them to enter into the trial plan agreement, (id. ¶ 56).

(Id.)

(Compl. ¶ 55.)

Plaintiffs also allege that

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The court finds these allegations sufficiently particular to

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support a claim for fraud, and it will deny Citimortgage’s motion

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to dismiss that claim.

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E. Unfair Competition Law

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The California Unfair Competition Law (“UCL”) “provides

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an equitable means through which both public prosecutors and

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private individuals can bring suit to prevent unfair business

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practices and restore money or property to victims of these

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practices.”

Yanting Zhang v. Superior Court, 57 Cal. 4th 364,

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370 (2013).

The California Business and Professions Code defines

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“unfair competition” to include “any unlawful, unfair, or

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fraudulent business act or practice.”

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17200.

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competition--acts or practices which are unlawful, or unfair, or

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fraudulent.’”

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Tel. Co., 20 Cal. 4th 163, 180 (1999) (quoting Podolsky v. First

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Healthcare Corp., 50 Cal. App. 4th 632, 647 (2d Dist. 1996)).

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“Each prong of the UCL is a separate and distinct theory of

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liability.”

“‘[The

Cal. Bus. & Prof. Code §

UCL] establishes three varieties of unfair

Cal-Tech Commc’ns, Inc. v. Los Angeles Cellular

Kearns, 567 F.3d at 1127.
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Under the UCL, “[a] fraudulent business practice is one

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in which members of the public are likely to be deceived.”

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Tucker v. Pac. Bell Mobile Servs., 208 Cal. App. 4th 201, 225

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(1st Dist. 2012) (internal quotation marks and citations

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omitted).

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their UCL claim on Citimortgage’s false promise to grant them a

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permanent modification upon their successful completion of the

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trial program and not to foreclose on their home while they

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remained in the program.

Like their common law fraud claim, plaintiffs premise

(Compl. ¶ 65.)

In addition to

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allegations of how the bank deceived them individually,

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plaintiffs allege Citimortgage engaged in a “complicated and

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fraudulently concealed scheme aimed at increasing servicing fees

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and costs to the detriment of plaintiffs,” (Compl. ¶ 67), and

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that the bank acted in a manner that was wrongful and likely to

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mislead members of the general public, (id. ¶ 67).

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need not allege that members of the public were actually

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deceived.

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the UCL is available without individualized proof of deception,

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reliance and injury”).

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inference that, like the plaintiffs, the general public would be

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deceived by Citimortage’s alleged fraudulent practice, and the

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court therefore finds plaintiffs have alleged a plausible claim

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under the UCL.

Plaintiffs

See Tucker, 208 Cal. App. 4th at 225 (“[R]elief under

Plaintiffs’ allegations support the

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Citimortgage argues that plaintiffs’ UCL claim fails

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because the statute permits plaintiffs to seek only injunctive

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relief or restitution, and that plaintiffs are not entitled to

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either.

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contends, for the same reasons they cannot set aside the

Plaintiffs may not seek not an injunction, the bank

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foreclosure,2 and plaintiffs are not entitled to restitution

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because they have not returned the consideration they paid under

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the promissory note.

(Def.’s Mem. at 12-13.)

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“Both the unfair competition law and the false

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advertising act contain broad remedial provisions which authorize

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the courts to correct violations.”

7

v. Alta-Dena Certified Dairy, 4 Cal. App. 4th 963, 972 (1st Dist.

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1992).

9

judgments, including the appointment of a receiver, as may be

Consumers Union of U.S., Inc.

Section 17203 states, “The court may make such orders or

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necessary to prevent the use or employment by any person of any

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practice which constitutes unfair competition . . . or as may be

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necessary to restore to any person in interest any money or

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property, real or personal, which may have been acquired by means

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of such unfair competition.”

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of money or property has standing to seek such an injunction.

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Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 321 (2011)

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(noting someone who has suffered injury in fact and has lost

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money or property as a result of unfair competition has standing

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under the UCL).

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to have “tendered” in order to seek an injunction under the UCL,

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where plaintiffs are asking the court to enjoin an unfair

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business practice.

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A private person who suffers loss

Nothing in the statute suggests plaintiffs need

Accordingly, because plaintiffs’ Complaint plausibly
alleges that Citimortgage engaged in a fraudulent business
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Citimortgage argues plaintiffs may not set aside the
foreclosure because plaintiffs never tendered and the home was
sold to a bona fide purchaser. While there are no allegations in
the Complaint regarding the sale to the bona fide purchaser,
plaintiffs do allege, as previously discussed, that they never
tendered.
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practice, and that the plaintiffs are not precluded from seeking

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injunctive relief under the UCL, the court will deny

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Citimortgage’s motion with respect to this claim.

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F. Intentional Infliction of Emotional Distress

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The statute of limitations for a claim of intentional

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infliction of emotional distress in California is two years.

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Cal. Civ. Proc. § 335.1. “Generally, a limitations period begins

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to run upon the occurrence of the last fact essential to the

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cause of action.”

Pugliese v. Superior Court, 146 Cal. App. 4th

10

1444, 1452 (2d Dist. 2007).

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“[w]here a tort involves a continuing wrong.”

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“the statute of limitations does not begin to run until the date

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of the last injury or when the tortuous acts cease.”

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There is an exception to this rule
Id.

In that case,

Id.

The elements for plaintiffs’ IIED claim would have thus

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occurred in November 2011 upon the sale of their home, which is

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the conduct plaintiffs allege caused them severe emotional

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distress.

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months after the two-year statute of limitations ended.

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Plaintiffs have not alleged a “continuing wrong,” only that they

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suffered emotional distress for an unsaid duration.

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plaintiffs’ claim does not fall into the “continuing wrong”

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exception, their claim for intentional infliction of emotional

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distress is barred by the statute of limitations.3

Plaintiffs filed this action in August 2014, nine

Because

Accordingly,

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3

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27
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Plaintiffs’ reference to Hernandez v. Attisha, Civ. No.
9-2257 IEG WMC, 2010 WL 81610, at *4 (S.D. Cal. Mar. 5, 2010) is
to no avail here. In Attisha the court found that where the
conduct complained of is continuing in nature, and the plaintiff
continues to suffer emotional distress as a result, the
“continuing wrong” doctrine applies to determine when the statute
of limitations begins to run. Here, plaintiffs do not allege a
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1

the court will grant Citimortgage’s motion to dismiss that claim.

2

IT IS THEREFORE ORDERED that defendant Citimortgage’s

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motion to dismiss be, and the same hereby is, GRANTED with

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respect to plaintiffs’ claims intentional infliction of emotional

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distress; and DENIED with respect to all of plaintiffs’ other

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claims.

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The court does not require that plaintiffs amend their

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Complaint, but should they choose to do so plaintiffs have twenty

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days from the date this Order is signed to file an amended

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complaint, if they can do so consistently with this Order.

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Dated:

December 3, 2014

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“continuing wrong,” so even if there distress was continuing, the
exception does not apply.
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