Chang v. Wachovia Mortgage, FSB et al

Filing 21

ORDER by Judge Samuel Conti terminating 6 Motion to Dismiss; granting in part and denying in part 13 Motion to Dismiss (sclc1, COURT STAFF) (Filed on 7/21/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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CYNTHIA M. CHANG,

)
)
Plaintiff,
)
)
v.
)
)
WACHOVIA MORTGAGE, FSB, a national )
association; WELLS FARGO BANK,
)
N.A., a national association; and )
DOES 1 through 50, inclusive,
)
)
Defendants.
)

Case No. C-11-1951 SC
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS'
MOTION TO DISMISS

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I.

INTRODUCTION
Plaintiff Cynthia M. Chang ("Plaintiff") commenced this action

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against Wachovia Mortgage, FSB ("Wachovia") and Wells Fargo Bank,

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N.A. ("Wells Fargo") (collectively, "Defendants"), bringing nine

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causes of action arising from loan modification discussions between

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Plaintiff and Defendants and the May 2010 foreclosure sale of

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Plaintiff's San Francisco, California residence.

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("Notice of Removal") Ex. A ("Compl.").

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Defendants' fully briefed motion to dismiss Plaintiff's Complaint.

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ECF Nos. 13 ("Mot."), 17 ("Opp'n"), 18 ("Reply").

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following reasons, the Court GRANTS IN PART and DENIES IN PART

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Defendants' Motion.

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///

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///

ECF No. 1

Now before the Court is

For the

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II.

BACKGROUND

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As it must on a motion brought under Federal Rule of Civil

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Procedure 12(b)(6), the Court assumes the truth of the well-pleaded

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facts in Plaintiff's Complaint.

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Francisco, and from 1996 until around May 12, 2010, she was the

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owner of a residence located at 80 Collingwood Street, Number 302,

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San Francisco, California, Block 2648, Lot 056 ("the residence").

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Compl. ¶ 1.

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residence with World Savings Bank.1

Plaintiff is a resident of San

Around May 18, 2006, Plaintiff refinanced the
Id. ¶ 8.

The refinance

United States District Court

For the Northern District of California

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consisted of two loans: the first in the principal amount of

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$380,000 ("the first loan") and the second, an equity line of

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credit, in the amount of $50,000 ("the second loan").

Id.

Plaintiff alleges that she made all payments on her loans

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Id. ¶ 7.

Around

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until sometime in 2008, when she lost her job.

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this time, Plaintiff contacted Defendants to inquire into loan

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modification.

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continued through May 2010, and that Defendants "made statements,

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promises and assurances to plaintiff that her requests for a loan

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modification or a new loan would be reasonably considered in good

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faith."

Id. ¶ 9.

Plaintiff claims that these discussions

Id.

On July 24, 2009, and again on September 1, 2009, Defendants

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recorded a Notice of Default and Election to Sell Under Deed of

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Trust ("NOD") with respect to the second loan on Plaintiff's home.

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Id. ¶ 10.2

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"immediately contacted defendants and was assured that her requests

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1

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Plaintiff claims that upon receiving the NOD, she

Plaintiff alleges, and Defendants concede, that Wachovia is World
Savings Bank's successor in interest, and that Wells Fargo is
Wachovia's successor in interest. Id. ¶¶ 2-6.
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It is not clear from the Complaint why two NODs were recorded.
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and applications for a loan modification and new loan were being

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considered and that she would not be hurt by the NOD so long as

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such negotiations continued."

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Id. ¶ 11.

Plaintiff alleges that on or about January 11, 2010, Wachovia

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recorded a Notice of Trustee's Sale ("Notice") setting a private

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sale under the Deed of Trust securing the second loan for February

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1, 2010.

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both loans with Defendants.

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date was postponed on more than one occasion, but Plaintiff did not

United States District Court

For the Northern District of California

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Id. ¶ 12.

Plaintiff continued to discuss modification of
Id.

Plaintiff alleges that the sale

receive notice of this postponed sale date.

Id.

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Plaintiff claims that in April 2010, Defendants informed

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Plaintiff that they were "unable to proceed" with the modification.

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Id. ¶ 13.

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Defendants "continued to lead plaintiff to believe that she could

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obtain a modification of the First Loan and Second Loan and retain

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ownership of her residence."

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Defendants told her on or about May 17, 2010 that the residence was

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sold at a May 12, 2010 foreclosure sale, but informed her on June

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18, 2010 that the loan could be reinstated.

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Plaintiff claims that despite this communication,

Id. ¶ 14.

Plaintiff claims that

Id. ¶ 13.

Plaintiff claims that due to the sale, she suffered between
$250,000 and $300,000 in lost equity in the residence.
Plaintiff brings nine causes of action.

Id. ¶ 16.

First, she alleges a

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claim for promissory estoppel based on Defendants' statements that

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they would not proceed with a foreclosure sale so long as

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Plaintiff's modification negotiations continued.

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Second, she alleges fraud, misrepresentation, and reckless

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disregard, asserting that Defendants' conduct "constituted material

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misrepresentations, omissions . . . and actions in reckless

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Id. ¶ 18-24.

her Residence."

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committed negligent misrepresentation by making misleading or

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inaccurate statements to Plaintiff despite having access to

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accurate information and data.

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alleges negligence, claiming Defendants "breached their duties of

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care and skill to plaintiff in servicing and administering

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plaintiff's First Loan and Second Loan."

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Plaintiff alleges Defendants breached the implied covenant of good

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United States District Court

disregard of plaintiff's rights and remedies to retain and preserve

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For the Northern District of California

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faith and fair dealing by secretly continuing the foreclosure sale

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while continuing modification negotiations with Plaintiff.

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26.

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stating that "the conduct of defendants . . . in enforcing the Deed

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of Trust and foreclosure action through the Trustee's sale was

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unconscionable since it contained elements of oppression (i.e. an

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inequality of bargaining power) and surprise (i.e. failure to

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inform plaintiff of the running of separate statutory time periods

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under the Civil Code, resulting in an allocation of risks in an

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objectively unreasonable manner)."

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alleges Defendants waived their right to foreclosure by continuing

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loan modification negotiations.

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alleges a claim for violation of California's Unfair Competition

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Law, Cal. Bus. & Profs. Code § 17200 ("UCL"), claiming Defendants

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engaged in deceptive business practices by "failing to provide

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plaintiff with accurate and proper information as to loan status

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and steps of foreclosure in accordance with the requirements of the

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California Civil Code," concealing from Plaintiff information about

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the ongoing foreclosure, and "[i]nducing plaintiff to not resume

Id. ¶ 26.

Third, Plaintiff alleges Defendants

Id. ¶ 30.

Fourth, Plaintiff

Id. ¶¶ 31-33.

Fifth,

Id. ¶

Sixth, Plaintiff alleges a claim for unconscionability,

Id. ¶ 40.

Id. ¶ 41.

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Seventh, Plaintiff

Eighth, Plaintiff

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her payments or otherwise cure alleged defaults by falsely

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promising and stating that a modification . . . would reasonably be

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considered in good faith based on plaintiff's circumstances."

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¶ 46.

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distress ("IIED"), asserting: "Defendants' conduct was outrageous

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and beyond the bounds of decency and in reckless disregard of

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causing plaintiff mental and emotional distress."

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United States District Court

For the Northern District of California

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Id.

Ninth, Plaintiff alleges intentional infliction of emotional

Defendants move to dismiss all nine claims.

Id. ¶ 51.
Defendants argue

that all claims are preempted by the Federal Home Owner's Loan Act
("HOLA"), and that none of the nine claims are properly pleaded.

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III. LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure

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12(b)(6) "tests the legal sufficiency of a claim."

Navarro v.

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Block, 250 F.3d 729, 732 (9th Cir. 2001).

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on the lack of a cognizable legal theory or the absence of

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sufficient facts alleged under a cognizable legal theory.

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

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1990).

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should assume their veracity and then determine whether they

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plausibly give rise to an entitlement to relief."

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Iqbal, 129 S. Ct. 1937, 1950 (2009).

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court must accept as true all of the allegations contained in a

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complaint is inapplicable to legal conclusions.

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recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice."

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(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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allegations made in a complaint must be both "sufficiently detailed

Dismissal can be based

"When there are well-pleaded factual allegations, a court

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Ashcroft v.

However, "the tenet that a

Threadbare

Iqbal, 129 S. Ct. at 1950
The

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to give fair notice to the opposing party of the nature of the

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claim so that the party may effectively defend against it" and

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sufficiently plausible such that "it is not unfair to require the

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opposing party to be subjected to the expense of discovery."

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v. Baca, 633 F.3d 1191, 1204 (9th Cir. 2011).

Starr

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IV.

DISCUSSION

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A.

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Defendants argue that because World Savings Bank was a federal

HOLA Preemption

United States District Court

For the Northern District of California

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savings bank organized and operated under HOLA, all nine of

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Plaintiff's claims are preempted by HOLA and its implementing

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regulations.

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savings associations under federal law, at a time when record

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numbers of homes were in default and a staggering number of state-

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chartered savings associations were insolvent."

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Mortg. Corp., 514 F.3d 1001, 1004 (9th Cir. 2008).

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Office of Thrift Supervision ("OTS") "broad authority to issue

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regulations governing thrifts."

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1464).

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Mot. at 14.

Congress enacted HOLA "to charter

Silvas v. E*Trade
HOLA gives the

Id. at 1005 (citing 12 U.S.C. §

OTS, in turn, has promulgated regulations stating that OTS

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"occupies the entire field of lending regulation for federal

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savings associations."

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Section 560.2 offers a framework for determining whether a state

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law claim is preempted by HOLA and its implementing regulations,

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and the Ninth Circuit has held that this framework controls.

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Silvas, 514 F.3d at 1005.

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state law is one of the enumerated types of laws expressly

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identified as preempted in section 560.2(b).

12 C.F.R. § 560.2(a) ("section 560.2").

Courts must first determine whether the

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Id.

These include:

(4) The terms of credit, including amortization
of loans and the deferral and capitalization of
interest and adjustments to the interest rate,
balance, payments due, or term to maturity of
the loan, including the circumstances under
which a loan may be called due and payable upon
the passage of time or a specified event
external to the loan;

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. . . .
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(9) Disclosure and advertising, including laws
requiring specific statements, information, or
other
content
to
be
included
in
credit
application
forms,
credit
solicitations,
billing statements, credit contracts, or other
credit-related documents and laws requiring
creditors to supply copies of credit reports to
borrowers or applicants;

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United States District Court

For the Northern District of California

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(10) Processing, origination, servicing, sale
or purchase of, or investment or participation
in, mortgages;

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12 C.F.R. § 560.2(b).
If the state law is of one of these enumerated types, "the

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analysis will end there; the law is preempted."

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at 1005.

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affects lending."

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preempted, subject to the exceptions provided by section 560.2(c).

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Id.

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Silvas, 514 F.3d

If not, the court should determine "whether the law
Id.

If it does, the law is presumed to be

Section 560.2(c) provides:
State laws of the following types are not
preempted
to
the
extent
that
they
only
incidentally affect the lending operations of
Federal savings associations or are otherwise
consistent with the purposes of [section
560.2(a)]:

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(1) Contract and commercial law;
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(2) Real property law;
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(3) Homestead laws specified in 12 U.S.C. §
1462a(f);

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(4) Tort law;

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(5) Criminal law; and

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(6) Any other law that OTS, upon review, finds:
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(i) Furthers a vital state interest; and
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(ii) Either has only an incidental effect
on lending operations or is not otherwise
contrary to the purposes expressed in
paragraph (a) of this section.

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12 C.F.R. § 560.2(c).

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narrowly."

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These exceptions are "to be interpreted

Silvas, 514 F.3d at 1005.

Defendants argue that Plaintiff's claims are preempted under
section 560.2(b)(4) (preempting laws relating to "terms of credit,"

United States District Court

For the Northern District of California

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including "the circumstances under which a loan may be called due

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and payable") and (b)(10) (preempting laws concerning

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"[p]rocessing, origination, servicing, sale or purchase of, or

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investment or participation in, mortgages").

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Defendants argue that Plaintiff's chief allegation of wrongdoing --

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that Defendants committed fraud, acted in bad faith, or otherwise

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violated the law through their actions taken and statements made

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during the loan modification talks and the subsequent foreclosure

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sale -- concerns "processing" or "servicing" of the mortgage and

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thus compels preemption.

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does not apply, claiming, "HOLA was historically passed for the

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protection of owners and borrowers, not creditors."

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Id.

Mot. at 15.

Plaintiff argues HOLA preemption

Opp'n at 6.

HOLA preemption is not as simple as either side presents it.

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In Silvas, the Ninth Circuit focused not on the nature of the cause

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of action allegedly preempted, but rather on the "functional effect

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upon lending operations of maintaining the cause of action."

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Naulty v. GreenPoint Mortg. Funding, Inc., No. 09-1542, 2009 WL

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2870620, at *4 (N.D. Cal. Sep. 3, 2009).

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whether an application of a given state law to the activities of

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"The question was rather

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federal savings associations would 'impose requirements' regarding

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the various activities broadly regulated by the OTS."

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have thus interpreted Silvas to not preempt all state law causes of

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action arising out of loan modification and/or foreclosure

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proceedings.

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2011 WL 2471167, at *4-6 (C.D. Cal. June 21, 2011) (denying bank's

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motion to dismiss borrower's breach of contract, negligence, bad

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faith, and fraud claims as preempted by HOLA).

Id.

Courts

E.g., Susilo v. Wells Fargo Bank, N.A., No. 11-1814,

Several of Plaintiff's claims are based on alleged affirmative

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United States District Court

For the Northern District of California

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statements by the bank that Plaintiff allegedly relied upon.

These

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include Plaintiff's claims for promissory estoppel, fraud, IIED,

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and breach of the implied covenant of good faith and fair dealing.

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The only "requirement" these claims impose on lending institutions

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is that they be held responsible for the statements they make to

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their borrowers.

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savings associations would be free to lie to their customers with

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impunity.

If these causes of action were preempted, federal

The Court finds these claims are not preempted by HOLA.

However, the Court finds Plaintiff's negligence and negligent

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misrepresentation claims to be preempted.

These claims are not

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premised on affirmative misrepresentation, concealment, or fraud:

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rather, they are premised on Defendants' representatives' alleged

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failure to use proper care in communicating with Plaintiff, to

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ensure other representatives of Defendants were not pursuing

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foreclosure, and to verify the accuracy of the statements they

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made.

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imposition of new disclosure and notice requirements on federal

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savings associations.

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PREJUDICE, Plaintiff's claims for negligence and negligent

Allowing these claims to go forward would amount to an

Accordingly, the Court DISMISSES, WITH

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misrepresentation.
The Court discusses Defendants' challenges to the remaining

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3

causes of action below.

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B.

Promissory Estoppel

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The elements of a claim for promissory estoppel are: "(1) a

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promise clear and unambiguous in its terms; (2) reliance by the

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party to whom the promise is made; (3)[the] reliance must be both

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reasonable and foreseeable; and (4) the party asserting the

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estoppel must be injured by his reliance."

United States District Court

For the Northern District of California

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Aceves v. U.S. Bank,

N.A., 192 Cal. App. 4th 218, 225 (Ct. App. 2011).
Defendants argue that Plaintiff fails to allege the first

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three elements.

The Court disagrees.

Plaintiff alleges that

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Defendants told her they would not proceed with a foreclosure sale

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so long as Plaintiff's loan modification negotiations continued.

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Plaintiff allegedly relied on these promises by not challenging the

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foreclosure sale, seeking alternative funding, or pursuing a short

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sale.

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in the form of lost equity and, ultimately, eviction.

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18-24.

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such, the Court DENIES Defendants' Motion with respect to

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Plaintiff's promissory estoppel claim.

As a result, Plaintiff's residence was sold, causing damages
Compl. ¶¶

Plaintiff properly pleads a promissory estoppel claim.

As

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C.

Fraud

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Defendants argue that Plaintiff has not properly pleaded her

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second claim for fraud, misrepresentation, and reckless disregard,

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given Federal Rule of Civil Procedure 9(b)'s heightened pleading

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standard for claims sounding in fraud.

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The Court agrees.

Mot. at 4.

"To satisfy Rule 9(b), a pleading must

identify the who, what, when, where, and how of the misconduct

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charged, as well as what is false or misleading about [the

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purportedly fraudulent] statement, and why it is false."

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U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055

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(9th Cir. 2011) (internal quotation marks omitted).

5

Complaint obliquely refers to numerous unidentified "statements" by

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unidentified representatives of Defendants; she fails to

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sufficiently identify "what" these statements were, "when" they

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were made, or "who" said them.

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properly plead her fraud claims.

Cafasso,

Plaintiff's

As such, Plaintiff has failed to
Because the heightened pleading

United States District Court

For the Northern District of California

10

standard is relaxed when "the defendant must necessarily possess

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full information concerning the facts of the controversy" or "when

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the facts lie more in the knowledge of the opposite party," Susilo

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v. Wells Fargo Bank, N.A., --- F. Supp. 2d ---, 2011 WL 2471167, at

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*10 (C.D. Cal. June 21, 2011), Plaintiff may satisfy Rule 9(b)

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without providing the names of Defendants' representatives who

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allegedly made the statements.

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than what Plaintiff supplies here.

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claim is dismissed WITH LEAVE TO AMEND.

However, more detail is required
Accordingly, Plaintiff's fraud

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D.

Implied Covenant of Good Faith and Fair Dealing

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In California, "[e]very contract imposes upon each party a

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duty of good faith and fair dealing in its performance and its

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enforcement."

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Inc., 2 Cal. 4th 342, 371 (1992).

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imposes a duty upon a party to a contract not to deprive to other

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party of the benefits of the contract."

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American/Mort. Corp., 53 Cal. App. 4th 299, 314 (Ct. App. 1997).

27

Defendants allege that Plaintiff's claim fails because

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"Plaintiff does not specify what contract is at issue, does not

Carma Dev. (Cal.), Inc. v. Marathon Dev. California,

11

"In general, the covenant

Sutherland v. Barclays

1

attach a contract to the complaint, and does not sufficiently plead

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the express terms of any contract."

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argue that if Plaintiff's claim relates to the note or the Deed of

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Trust, Plaintiff's claim should be barred because she "admittedly

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breached the contract by failing to make the required payments."

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Id.

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Mot. at 9.

Defendants also

The Court agrees with Defendants that Plaintiff, having failed

8

to identify the contract at issue and the benefits deprived by

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Defendants, has failed to plead this claim with the required

United States District Court

For the Northern District of California

10

specificity.

However, the Court rejects Defendants' argument that

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Plaintiff's failure to make payments under the note relieved

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Defendants of their duty to act in good faith in performing under

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the note and in enforcing it.

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plead a claim based on Defendants' conduct as a party to the deed

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of trust.

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Court DISMISSES, WITH LEAVE TO AMEND, Plaintiff's claim.

As such, Plaintiff may be able to

Because Plaintiff has not pleaded sufficient facts, the

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E.

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Plaintiff alleges the unusual causes of action of

Unconscionability and Waiver Claims

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"unconscionability" and "waiver."

20

does not recognize a claim for unconscionability."

21

Plaintiff does not argue otherwise in her Opposition.

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Defendants argue that "the law
Mot. at 11.

California law is clear that unconscionability is not a cause

23

of action, but rather a defense to the enforcement of a contract.

24

Dean Witter Reynolds, Inc. v. Super. Ct., 211 Cal. App. 3d 758, 766

25

(Ct. App. 1989).

26

waiver; rather, it is "the intentional relinquishment of a known

27

right."

28

3d 292, 298 (Ct. App. 1984). To the extent Plaintiff argues that

California also does not recognize a claim for

Rubin v. Los Angeles Fed. Sav. & Loan Ass'n, 159 Cal. App.

12

1

Defendants waived their right under the deed of trust to foreclose

2

by allegedly telling Plaintiff that they would halt foreclosure

3

proceedings and negotiate toward a modification, Plaintiff

4

essentially presents a poorly pleaded breach-of-contract claim.

5

such, both Plaintiff's unconscionability and waiver claims are

6

DISMISSED WITH PREJUDICE.

As

7

F.

8

Defendants allege that Plaintiff's UCL claim "is plagued with

9

UCL

incurable defects."

Mot. at 12.

Defendants argue that it is

United States District Court

For the Northern District of California

10

unclear from Plaintiff's Complaint upon which of the three prongs

11

of UCL -- unfair, unlawful, or fraudulent -- Plaintiff premises her

12

UCL claim.

Id.

13

Given Plaintiff's consistent use of the term "fraudulent" in

14

the relevant portion of Plaintiff's Complaint, the Court surmises

15

that her UCL claim is premised on the allegedly fraudulent business

16

practices of Defendants.

17

fraudulent conduct trigger the heightened pleading standard of Rule

18

9(b).

19

2009).

20

Compl. ¶¶ 43-49.

UCL claims premised on

Kearns v. Ford Motor Co., 567 F.3d. 1120, 1125 (9th Cir.

In her Complaint, Plaintiff cites four acts or practices by

21

Defendants.

First, she alleges a failure to provide Plaintiff with

22

accurate and proper information as to loan status and steps of

23

foreclosure "in accordance with the requirements of the California

24

Civil Code."

25

this constitutes a fraudulent act, Plaintiff has failed to satisfy

26

Rule 9(b).

27

"unlawful" act, Plaintiff has failed to allege what specific

28

disclosure requirements Defendants violated.

Compl. ¶ 46.

To the extent Plaintiff alleges that

To the extent that Plaintiff alleges an "unfair" or

13

Furthermore, because

1

HOLA preempts most disclosure requirements, see supra, such a cause

2

of action would likely be preempted under Silvas.

3

Second, Plaintiff alleges Defendants made statements to

4

Plaintiff and concealed information from Plaintiff relating to the

5

ongoing foreclosure sale.

6

misleading and omissions as to the foreclosure sale and deprived

7

plaintiff of the opportunity to sell her residence and realize the

8

'equity' value of between $250,000.00 and $300,000."

9

The Court cannot parse this sentence, but it appears to sound in

Third, Plaintiff alleges "[e]ngaging in

Compl. ¶ 46.

United States District Court

For the Northern District of California

10

fraud.

Fourth, Plaintiff alleges Defendants induced her to "not

11

resume her payments or otherwise cure alleged defaults by falsely

12

promising and stating that a modification of the First Loan and

13

Second Loan would be reasonably considered in good faith based on

14

plaintiff's circumstances."

15

required specificity under Rule 9(b).

None of these are pleaded with the

16

Because Plaintiff has failed to plead her UCL claim with the

17

required specificity, the Court DISMISSES it WITH LEAVE TO AMEND.

18

G.

Intentional Infliction of Emotional Distress

19

To plead a claim for IIED, Plaintiff must allege: "(1) extreme

20

and outrageous conduct by the defendant with the intention of

21

causing, or reckless disregard of the probability of causing,

22

emotional distress; (2) the plaintiff's suffering severe or extreme

23

emotional distress; and (3) actual and proximate causation of the

24

emotional distress by the defendant's outrageous conduct."

25

Christensen v. Super. Ct,, 54 Cal. 3d 868, 903 (1991).

26

only "extreme and outrageous" when it was "so extreme as to exceed

27

all bounds of that usually tolerated in a civilized community."

28

Davidson v. City of Westminster, 32 Cal.3d 197, 185 (1982)

14

Conduct is

1

(citation omitted).

For emotional distress to be severe, it must

2

be "of such substantial quantity or enduring quality that no

3

reasonable man in a civilized society should be expected to endure

4

it."

5

397, (Ct. App. 1970).

Fletcher v. Western Nat'l Life Ins. Co., 10 Cal. App. 3d 376,

In rather broad strokes and with little detail, Plaintiff

6
7

alleges that she suffered extreme emotional distress due to

8

Defendants' conduct.

9

conduct rendered it so extreme as to "exceed all bounds of that

She fails to state what about Defendants'

United States District Court

For the Northern District of California

10

usually tolerated in a civilized community."

Given the lack of

11

detail, the Court finds that Plaintiff has failed to plead a

12

plausible IIED claim.

13

AMEND, Plaintiff's IIED claim.

As such, the Court DISMISSES, WITH LEAVE TO

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15

V.

CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART and DENIES

16
17

IN PART the motion of Defendants Wachovia Mortgage and Wells Fargo

18

Bank, N.A. to dismiss Plaintiff Cynthia M. Chang's Complaint, and

19

rules as follows:

20

•

Plaintiff's second cause of action for fraud,

21

misrepresentation, and reckless disregard is DISMISSED WITH

22

LEAVE TO AMEND.

23

•

misrepresentation is DISMISSED WITH PREJUDICE.

24
25

•

28

Plaintiff's fourth cause of action for negligence is
DISMISSED WITH PREJUDICE.

26
27

Plaintiff's third cause of action for negligent

•

Plaintiff's fifth cause of action for breach of the implied
covenant of good faith and fair dealing is DISMISSED WITH

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LEAVE TO AMEND.

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2

•

DISMISSED WITH PREJUDICE.

3
4

•

Plaintiff's seventh cause of action for waiver is DISMISSED
WITH PREJUDICE.

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6

Plaintiff's sixth cause of action for unconscionability is

•

Plaintiff's eighth cause of action for violation of section

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17200 of California's Business and Professions Code is

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DISMISSED WITH LEAVE TO AMEND.

9

•

Plaintiff's ninth cause of action for intentional infliction

United States District Court

For the Northern District of California

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of emotional distress is DISMISSED WITH LEAVE TO AMEND.

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Plaintiff may proceed with her first cause of action for

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promissory estoppel.

Plaintiff is granted thirty (30) days' leave

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to file an amended complaint.

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amended complaint within this time frame, her second through ninth

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causes of action are dismissed WITHOUT LEAVE TO AMEND.

If Plaintiff fails to file an

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IT IS SO ORDERED.

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Dated: July 21, 2011
UNITED STATES DISTRICT JUDGE

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