Sowinski v. Wells Fargo Bank, N.A.

Filing 49

ORDER by Judge Samuel Conti granting in part and denying in part 39 Motion to Dismiss; granting 41 Motion to Expunge Lis Pendens. (sclc1, COURT STAFF) (Filed on 2/26/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RICHARD SOWINSKI,
Plaintiff,

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For the Northern District of California

United States District Court

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v.

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WELLS FARGO BANK, N.A., and DOES
1-10,

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Defendants.

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I.

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Case No. 11-6431-SC
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS SECOND AMENDED
COMPLAINT AND GRANTING
MOTION TO EXPUNGE LIS
PENDENS

INTRODUCTION
Plaintiff Richard Sowinski ("Plaintiff") challenges Defendant

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Wells Fargo Bank, N.A.'s ("Wells Fargo") foreclosure of his

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residential mortgage and the subsequent trustee sale of his

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residence.

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lis pendens against the subject property.1

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Wells Fargo's motion to dismiss Plaintiff's Second Amended

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Complaint ("SAC") and motion to expunge the lis pendens.

In connection with this action, Plaintiff recorded a
Now before the Court is

ECF Nos.

23
24
25
26
27
28

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"A lis pendens is recorded by someone asserting a real property
claim, to give notice that a lawsuit has been filed which may, if
that person prevails, affect title to or possession of the real
property described in the notice." Fed. Deposit Ins. Corp. v.
Charlton, 17 Cal. App. 4th 1066, 1069 (Cal. Ct. App. 1993). "Once
a lis pendens is filed, it clouds the title and effectively
prevents the property's transfer until the litigation is resolved
or the lis pendens is expunged." BGJ Associates, LLC v. Superior
Court, 75 Cal. App. 4th 952, 966 (Cal. Ct. App. 1999).

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39 (Motion to Dismiss ("MTD")), 41 (Motion to Expunge ("MTE")).

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The motions are fully briefed.

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ISO MTD"); 47 ("Reply ISO MTE").

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1(b), the Court finds this matter appropriate for resolution

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without oral argument.

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Fargo's motion to dismiss is GRANTED in part and DENIED in part,

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and its motion to expunge is GRANTED.

ECF Nos. 45 ("Opp'n"), 46 ("Reply
Pursuant to Civil Local Rule 7-

For the reasons set forth below, Wells

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United States District Court

For the Northern District of California

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II.

BACKGROUND
On February 3, 2006 Plaintiff and his wife, Mary B. Sowinski

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borrowed $672,000 from World Savings Bank, FSB ("WSB").

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(Request for Judicial Notice ("RJN")) Ex. 1.

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by a deed of trust recorded against Plaintiff's residence in Walnut

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Creek, California.

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noticeable correspondence from federal banking regulators, WSB

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later changed its name to Wachovia Mortgage, FSB, which was

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subsequently converted to Wells Fargo Bank Southwest, N.A., and

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then merged into Wells Fargo.

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RJN Ex. 2 ("DOT").

ECF No. 40

The loan was secured

According to judicially

RJN Exs. 3, 4.

At the time of the loan transaction, Plaintiff was sixty-eight

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years old and allegedly suffered from "pre-Alzheimers."

ECF No. 38

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("SAC") ¶ 1.

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to the terms of the loan transaction.

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Plaintiff alleges that: (1) WSB falsely represented that the

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interest rate on the loan was fixed rather than adjustable; (2) WSB

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falsely stated Plaintiff's income and the value of the property on

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the loan application; (3) Plaintiff was not permitted to read the

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loan documents and, "because of his weakened mental state," he

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could not have understood them if he had.

Plaintiff alleges that he was intentionally misled as

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Id. ¶ 9.

Id.

Specifically,

As a result of

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these alleged misrepresentations, Plaintiff took out a loan he

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could not afford.

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Id. ¶ 12.

In January 2008, Plaintiff contacted Wells Fargo about

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increases to his monthly loan payments.

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Fargo's agents offered to assist Plaintiff with a loan

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modification, and, for the next twenty-eight months, Plaintiff

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submitted and re-submitted loan modification application materials.

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Id. ¶¶ 25-26.

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decision on his application.

United States District Court

For the Northern District of California

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Id. ¶ 25.

One of Wells

Plaintiff alleges that Wells Fargo never reached a
Id. ¶ 26.

On August 18, 2011, a notice of default was recorded with the

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Contra Costa County Recorder's Office, indicating that Plaintiff

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was over $46,000 in arrears on his loan.

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23, 2011, a substitution of trustee was recorded, substituting NDeX

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West, LLC as the new trustee.

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substitution was recorded by "WELLS FARGO BANK, NA SUCCESSOR BY

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MERGER TO WELLS FARGO BANK SOUTHWEST, NA F/K/A WACHOVIA MORTGAGE."

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RJN Ex. 6.

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"so that it falsely appears as though there was no need for an

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actual sale/transfer/assignment and that it is the same entity as

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the originating bank proceeding with foreclosure under the law."

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SAC ¶ 24.

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RJN Ex. 5.

SAC ¶ 18; RJN Ex. 6.

On September

The

Plaintiff alleges that Defendants concocted this name

On December 2, 2011, Plaintiff filed the instant action in

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California Superior Court, and Wells Fargo timely removed to this

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Court.

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action was filed, a trustee's sale was conducted, through which

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Wells Fargo allegedly sold the property to itself at a below-market

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price.

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total debt at the time of sale was $763,042.60.

ECF No. 1 Ex A.

SAC ¶ 28.

On December 12, 2011, a few days after the

According to the trustee's deed upon sale, the

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RJN Ex. 8.

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On or about December 13, 2011, an unidentified local agent of

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Wells Fargo allegedly offered Plaintiff $10,000 if he and his wife

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would vacate the property by January 2, 2012.

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told the agent that he and his wife needed more time and the agent

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allegedly agreed to give them until January 20, 2012.

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Fargo initiated unlawful detainer proceedings on January 4, 2012.

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RJN Ex. 9.

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the unlawful detainer complaint.

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vacated the property on January 15, 2012.

SAC ¶ 29.

Plaintiff

Wells

Id.

There is no mention of the "cash for keys" agreement in
See id.

Plaintiff allegedly
SAC ¶ 29.

After

United States District Court

For the Northern District of California

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Plaintiff surrendered his keys, the Wells Fargo agent allegedly

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revoked the offer because of Plaintiff's pending lawsuit.

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30.

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Fargo would only pay the $10,000 if Plaintiff agreed to dismiss

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this action with prejudice.

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Id.

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judgment against Plaintiff, RJN Ex. 11, allegedly destroying

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Plaintiff's credit rating, SAC ¶ 31.

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Id. ¶

Wells Fargo's counsel informed Plaintiff's counsel that Wells

Id.

Plaintiff refused this offer.

On March 16, 2012, Wells Fargo obtained an unlawful detainer

On February 13, 2012, Wells Fargo moved to dismiss the first

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complaint.

ECF No. 11.

On February 27, 2012, the response

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deadline, Plaintiff filed an amended complaint, asserting claims

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for: (1) quiet title, (2) declaratory relief, (3) injunctive

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relief, and (4) violation of the California Unfair Competition Law

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("UCL"), Cal. Bus. & Prof. Code § 17200 et seq.

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Amended Complaint ("FAC")).

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motion to dismiss the FAC, the Court dismissed Plaintiff's claims

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for declaratory relief and injunctive relief with prejudice.

ECF No. 14 (First

After Wells Fargo filed an unopposed

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ECF

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No. 37 ("Nov. 26 Order").2

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two claims with leave to amend.

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Plaintiff's quiet title claim failed because Plaintiff had not

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alleged a valid and viable offer of tender.

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UCL claim was dismissed because it was supported by nothing more

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than "legal conclusions and generalities."

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filed an unopposed motion to expunge the lis pendens, which the

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Court denied in order to "give Plaintiff one last chance to

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establish the 'probable validity' of a claim concerning the real

United States District Court

For the Northern District of California

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estate at issue."

The Court dismissed Plaintiff's other
Id. at 3.

The Court found that

Id. at 4.

Id.

Plaintiff's

Wells Fargo also

Id. at 6.

Plaintiff subsequently amended his complaint a second time.

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Like the FAC, the SAC asserts claims for quiet title and violation

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of the UCL.

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oral contract, rescission of written contract due to

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unconscionability, and elder abuse.3

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dismiss all five claims pursuant to Federal Rule of Civil Procedure

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12(b)(6).

The SAC also asserts three new claims for breach of

Wells Fargo now moves to

Wells Fargo also moves to expunge the lis pendens.

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III. DISCUSSION

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A.

Motion Dismiss

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A motion to dismiss under Federal Rule of Civil Procedure

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

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

Navarro v.

"Dismissal can be based

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Sowinski v. Wells Fargo Bank, N.A., 2012 WL 5904711, 2012 U.S.
Dist. LEXIS 168198 (N.D. Cal. Nov. 26, 2012).

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In the SAC, Plaintiff numbers his causes of action as follows:
(1) quiet title, (2) breach of oral contract, (3) rescission, (5)
elder abuse, and (6) UCL. The Court assumes that the omission of
claim four was merely a numbering error and refers to Plaintiff's
claims for elder abuse and UCL as claims (4) and (5), respectively.

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1

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

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sufficient facts alleged under a cognizable legal theory."

3

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

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1988).

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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, 556 U.S. 662, 664 (2009).

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

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is inapplicable to legal conclusions.

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

Ashcroft v.

However, "the tenet that a court

Threadbare recitals of the

United States District Court

For the Northern District of California

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elements of a cause of action, supported by mere conclusory

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statements, do not suffice."

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Twombly, 550 U.S. 544, 555 (2007)).

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complaint must be both "sufficiently detailed to give fair notice

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to the opposing party of the nature of the claim so that the party

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may effectively defend against it" and "sufficiently plausible"

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such that "it is not unfair to require the opposing party to be

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subjected to the expense of discovery."

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1191, 1204 (9th Cir. 2011).

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20
21
22

Id. at 663 (citing Bell Atl. Corp. v.
The allegations made in a

Starr v. Baca, 633 F.3d

With these principles in mind, the Court turns to each of the
claims challenged by Wells Fargo.
1.

Quiet Title

Defendants move to dismiss Plaintiff's first cause of action

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for quiet title on the ground that Plaintiff has once again failed

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to allege a valid and viable offer of tender.

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responds that the tender requirement only applies in cases where a

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plaintiff alleges defects in the foreclosure process and Plaintiff

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has made no such allegation here.

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authority to support this proposition, and the case law holds

MTD at 4.

Opp'n at 10.

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Plaintiff

Plaintiff cites no

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otherwise.

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2012 WL 4099568, at *3 (N.D. Cal. Sept. 17, 2012).

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Plaintiff has in fact alleged deficiencies in the foreclosure

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process.

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to the property is based on a "fraudulent substitution of trustee."

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FAC ¶ 34.

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See Ananiev v. Aurora Loan Services, LLC, C 12-2275 SI,
Further,

Specifically, Plaintiff alleges that Wells Fargo's claim

Plaintiff also argues that he need not tender because he has

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alleged that the underlying loan transaction was unconscionable.

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Opp'n at 11.

This argument has merit.

As the California Court of

United States District Court

For the Northern District of California

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Appeal held in Lona v. Citibank, N.A., "if the borrower's action

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attacks the validity of the underlying debt, a tender is not

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required since it would constitute an affirmation of the debt."

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202 Cal. App. 4th 89, 112 (Cal. Ct. App. 2011).

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suggests that the Court's November 26 Order somehow precludes

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Plaintiff from asserting an exception to the tender rule.

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4; Reply at 1.

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well-established California law.

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Lona is inapposite because that case dealt with an equitable cause

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of action to set aside a trustee's sale, while this case concerns a

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claim for quiet title.

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explain why that distinction is significant or why the Court could

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not construe Plaintiff's claim as an equitable cause of action.

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Wells Fargo also argues that Lona's discussion of the

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unconscionability exception should be accorded limited weight since

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the defendant in that case only lost on the issue because it failed

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to brief it.

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line of authority recognizing this particular exception to the

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tender rule.

Wells Fargo

Mot. at

But nothing in that Order was intended to set aside

Id. at 3.

Wells Fargo also asserts that

Reply at 2.

However, Wells Fargo does not

But Wells Fargo fails to address the long

See, e.g., Shuster v. BAC Home Loans Servicing, LP,

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1

211 Cal. App. 4th 505, 512 (Cal. Ct. App. 2012); Onofrio v. Rice,

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55 Cal. App. 4th 413, 424 (Cal. Ct. App. 1997); Stockton v. Newman,

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148 Cal. App. 2d 558, 564 (Cal. Ct. App. 1957).

4

Wells Fargo also argues that Plaintiff's claims of

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unconscionability are barred by the Home Owners Loan Act ("HOLA"),

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12 U.S.C. 1461 et seq.

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Office of Thrift Supervision ("OTS"), state laws are preempted

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where they purport to impose requirements regarding "[t]he terms of

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credit, including amortization of loans and the deferral and

Pursuant to regulations promulgated by the

United States District Court

For the Northern District of California

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capitalization of interest and adjustments to the interest rate,

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balance, payments due, or term to maturity of the loan . . . ."

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C.F.R. § 560.2(b)(4).

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law," "real property law," and "tort law," among other things, "are

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not preempted to the extent that they only incidentally affect

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lending operations . . . or are otherwise consistent with the

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purpose [of the regulation]."

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the extent that [a] [p]laintiff's claims are premised on fraud or

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promises made by [the lender], such claims are not necessarily

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preempted, because the only 'requirement' they impose on federal

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savings banks is that they be held responsible for the statements

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they make to their borrowers."

22

No. 11-1998 SC, 2011 WL 3740828, at *7 (N.D. Cal. Aug. 25, 2011).

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Such is the case here.

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he could not afford because WSB -- Wells Fargo's predecessor-in-

25

interest -- misrepresented his income and the value of his property

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on a loan application and because WSB lied about the terms of the

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proposed loan.

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Plaintiff's claim for quiet title does not impose additional

12

However, state "contract and commercial

Id. § 560.2(c).

Accordingly, "[t]o

Rumbaua v. Wells Fargo Bank, N.A.,

Plaintiff alleges that he was given a loan

SAC ¶ 35.

Contrary to Wells Fargo's argument,

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requirements on the terms of credit that are included in the the

2

loan agreement.

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were the result of a series of misrepresentations.

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not preempted by HOLA.

5

Rather, the claim asserts that the terms of credit
Such a claim is

Finally, Wells Fargo argues that, under principles of res

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judicata, the unlawful detainer action precludes Plaintiff from

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challenging the validity of the foreclosure sale.

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"subsequent fraud or quiet title suits founded upon allegations of

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irregularity in a trustee's sale are barred by [a] prior unlawful

It is true that

Malkoskie v. Option One Mortg. Corp., 188 Cal.

United States District Court

For the Northern District of California

10

detainer judgment."

11

App. 4th 968, 974 (Cal. Ct. App. 2010) (quoting Vella v. Hudgins,

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20 Cal. 3d 251, 256 (Cal. 1977)).

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is, in part, predicated on irregularities in the foreclosure sale.

14

See FAC ¶ 34.

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allegations that Wells Fargo's predecessor-in-interest made a

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number of misrepresentations during loan origination.

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to the extent that Plaintiff's claim for quiet title is not

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predicated on alleged deficiencies in the foreclosure process, it

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is not precluded by the unlawful detainer judgment.

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21
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Plaintiff's quiet title claim

However, as noted above, it is also based on

Accordingly,

For these reasons, Wells Fargo's Motion to Dismiss is DENIED
as to Plaintiff's first claim for quiet title.
2.

Breach of Oral Contract

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Plaintiff's second cause of action for breach of oral

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contract, along with his third and fourth causes of action, were

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not raised in either of his two prior complaints.

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neglected to respond to Wells Fargo's last motion to dismiss, the

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Court dismissed Plaintiff's first amended complaint with leave to

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amend so that Plaintiff could cure certain pleading deficiencies.

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After Plaintiff

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The Court did not grant Plaintiff leave to amend to plead three

2

additional causes of action, nor is there any indication that Wells

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Fargo consented to these amendments.

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are procedurally improper.

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amend once as a matter of course and any other amendments require

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opposing party's written consent or court's leave).

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leave to amend should be freely given, id. 15(a)(1)(B)(3), the

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Court declines to dismiss these new causes of action.

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amendments which would add new causes of action should be made in

United States District Court

For the Northern District of California

10

Accordingly, the amendments

See Fed. R. Civ. P. 15 (plaintiff may

However, as

Any future

accordance with Rule 15.
Plaintiff's second cause of action is predicated on

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12

Defendants' alleged breach of an oral agreement to pay Plaintiff

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$10,000 if he and his wife moved out of the subject property by a

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certain date.

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it argues that the claim is barred by the statute of frauds.

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at 5.

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clearly applies to agreements for the sale of real property and

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agreements to pay an indebtedness secured by mortgage upon the

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property purchased, Cal. Civ. Code § 1624(a)(3), (6), Wells Fargo

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cites no authority suggesting that it also applies to the type of

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cash-for-keys agreement at issue here.

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Wells Fargo moves to dismiss on two grounds.

This argument lacks merit.

First,
MTD

While the statute of frauds

Wells Fargo's second argument, that Plaintiff has failed to

23

plead the elements of an oral contract, MTD at 5-6, is more

24

persuasive.

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Plaintiff $10,000 to move out of the property by January 2, 2012.

26

SAC ¶ 38.

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allegedly agreed to a January 20, 2012 move-out date.

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However, it is unclear from the SAC -- and Plaintiff's opposition

According to the SAC, Wells Fargo's agent offered

Plaintiff counter-offered, and Wells Fargo's agent

10

Id.

i.e., whether the parties agreed that Plaintiff would be

3

compensated for moving out by January 20.

4

failed to plead whether the unidentified agent mentioned in the SAC

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had the authority to make such a deal on behalf of Wells Fargo.

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Plaintiff's opposition papers aver that Plaintiff confirmed the

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agent's authority, but the Court cannot consider facts asserted in

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the opposition without converting Wells Fargo's 12(b)(6) motion

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into a motion for summary judgment.

10

United States District Court

-- whether there was a meeting of the minds over the counter-offer,

2

For the Northern District of California

1

342 F.3d 903, 909 (9th Cir. 2003).

11

Plaintiff has also

See United States v. Ritchie,

Accordingly, the Court DISMISSES Plaintiff's claim for breach

12

of oral contract, but GRANTS Plaintiff leave to amend so as to

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plead the exact terms of the oral contract and the purported

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agent's authority to enter into the alleged contract.
3.

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16

Rescission

Wells Fargo argues that Plaintiff's third cause of action for

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"rescission of written contract due to uncons[c]ionability pursuant

18

to [California] Civil Code § 1670.5" fails because

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unconscionability is an affirmative defense, not a cause of action.

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The Court agrees.

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may refuse to enforce a contract if it finds "the contract or any

22

clause of the contract to have been unconscionable at the time it

23

was made."

24

provides for an independent cause of action.

25

is in accord.

26

(9th Cir. 2010).

27

for the contrary proposition, but nothing in that decision suggests

28

that a plaintiff can state an independent claim for

Civil Code section 1670.5 provides that a court

Cal. Civ. Code § 2670.5(a).

Nothing in the statute
Prevailing case law

See Rubio v. Capital One Bank, 613 F.3d 1195, 1206
Plaintiff cites Lona, 202 Cal. App. 4th at 101,

11

1

unconscionability.

2

largely, if not entirely, duplicative of his first cause of action.

3

Compare FAC ¶¶ 45-47 with id. ¶ 35.

4

rescission claim is DISMISSED WITH PREJUDICE.
4.

5

In any event, Plaintiff's rescission claim is

For these reasons, Plaintiff's

Elder Abuse

Wells Fargo argues that Plaintiff's fourth claim for elder

6

elder abuse is four years, Cal. Wel. & Inst. Code § 15657.7, and

9

Plaintiff alleges that he entered into the loan transaction in

10

United States District Court

abuse is time barred.

8

For the Northern District of California

7

The statute of limitations for financial

2006, see SAC ¶ 10, over five years before he filed the instant

11

action.
Plaintiff counters that the statute of limitations has not run

12
13

because his elder abuse claim relates to ongoing conduct over a

14

series of years, culminating in the breach of the cash-for-keys

15

agreement in January 2011.

16

yet to allege any actionable conduct beyond the misrepresentations

17

Defendants allegedly made in connection with the loan transaction.

18

Plaintiff's allegation that Wells Fargo's actions somehow violated

19

a February 2012 agreement with the Department of Justice is

20

implausible, as all of the events involved in this case pre-date

21

2012.

22

"h[eld] out the possibility of a loan modification and ke[pt]

23

Plaintiff in the process for over 28 months," Opp'n at 16, but

24

fails to explain how this conduct amounted to elder abuse.

25

extent that Plaintiff means to plead that Wells Fargo engaged in

26

double-tracking, i.e., purporting to review a loan modification

27

request while at the very same time foreclosing on the property,

28

his allegations amount to little more than legal conclusions.

See SAC ¶ 53.

Opp'n at 16.

However, Plaintiff has

Plaintiff also asserts that Wells Fargo

12

To the

1

Further, as noted in Section III.A.2 supra, Plaintiff's claim for

2

breach of an oral contract is implausible as pled.

3
4

Accordingly, Plaintiff's claim for elder abuse is DISMISSED
with leave to amend.
5.

5

UCL

6

In its November 13 Order granting Wells Fargo's motion to

7

dismiss the first amended complaint, the Court identified a number

8

of defects in Plaintiff's UCL claim, including Plaintiff's failure

9

to (1) identify the prong on which his UCL claim rests, (2) plead

United States District Court

For the Northern District of California

10

fraud with specificity, and (3) specify how his allegations support

11

his UCL claim.

12

the third deficiency by copying and pasting allegations from other

13

parts of the SAC into the UCL section (rather than incorporating

14

the allegations by reference as he did last time), and largely

15

ignores the rest of the Court's guidance.

16

Plaintiff assures the Court that he is able to plead more facts.

17

Opp'n at 17.

18

amended complaints, three motions to dismiss, and one Court order

19

providing specific guidance on this very point.

20

failed to follow that guidance, the Court DISMISSES his UCL claim

21

WITH PREJUDICE.

Nov. 13 Order at 4-5.

Plaintiff attempts to cure

In his opposition brief,

But Plaintiff has already had the benefit of two

As Plaintiff has

22

B.

Motion to Expunge Lis Pendens

23

Plaintiff bears the burden of proving that the lis pendens

24

should not be expunged, notwithstanding Wells Fargo being the

25

moving party.

26

Registration Sys., Inc., No. C 09-01605 SBA, 2012 WL 2792437, at *1

27

(N.D. Cal. July 9, 2012).

28

court finds either that the pleading on which the notice is based

Cal. Civ. Proc. Code § 405.30; Cua v. Mortgage Elec.

"A lis pendens shall be expunged if the

13

1

does not contain a real property claim, or that the claimant failed

2

to establish by a preponderance of the evidence the probable

3

validity of the real property claim."

Cua, 2012 WL 2792437, at *1.

4

Wells Fargo's current motion to expunge the lis pendens is

5

almost identical to its last motion to expunge the lis pendens.

6

Compare MTE with ECF No. 19.

7

(1) Plaintiff is incapable of bringing a claim that affects title

8

since he cannot tender his debt, and (2) the lis pendens is void

9

because it was not properly served and recorded.

Once again, Wells Fargo argues that

As Plaintiff's

United States District Court

For the Northern District of California

10

quiet title claim remains undisturbed, he is clearly capable of

11

bringing a claim that affects the title to the property.

12

Section III.A.1 supra.

13

Wells Fargo's argument concerning the service and recordation of

14

the lis pendens.

15

Fargo's motion to expunge altogether.

16

not reference the motion, other than in the caption.

17

Plaintiff bears the burden of proof in opposing the motion, his

18

failure to respond is fatal to his lis pendens.

19

was previously inclined to give Plaintiff another chance to

20

establish the "probable validity" of a claim concerning the real

21

estate at issue, Nov. 26 Order at 6, this is now the second time

22

Plaintiff has failed to respond to a motion to expunge.

However, Plaintiff has failed to respond to

In fact, Plaintiff appears to have ignored Wells
His opposition brief does
Since

While the Court

Accordingly, Wells Fargo's motion to expunge the lis pendens

23
24

See

is GRANTED.

25
26
27
28

V.

CONCLUSION
For the reasons set forth above, Defendant Wells Fargo Bank,

N.A.'s motion to dismiss Plaintiff Richard Sowinski's second

14

1
2

amended complaint is GRANTED in part and DENIED in part.
•

Plaintiff's first claim for quiet title remains undisturbed to

3

the extent it is not premised on deficiencies in the

4

foreclosure process.

5

•

DISMISSED with leave to amend.

6
7

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United States District Court

For the Northern District of California

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Plaintiff's fourth claim for elder abuse is DISMISSED with
leave to amend.

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Plaintiff's third claim for rescission is DISMISSED WITH
PREJUDICE.

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Plaintiff's second claim for breach of oral contract is

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Plaintiff's fifth claim for violation of the UCL is DISMISSED
WITH PREJUDICE.

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The Court also GRANTS Defendants' motion to expunge the lis

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pendens.

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(30) days of the signature date of this Order.

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may result in dismissal with prejudice of his causes of action for

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breach of oral contract and elder abuse.

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with Rule 15 prior to asserting any previously unpled causes of

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action.

Plaintiff shall file an amended complaint within thirty
Failure to do so

Plaintiff shall comply

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IT IS SO ORDERED.

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Dated:

February 26, 2013
UNITED STATES DISTRICT JUDGE

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