Jha v. Wells Fargo Bank, N.A.

Filing 43

Order by Hon. Vince Chhabria granting in part and denying in part 33 Motion to Dismiss.(knm, COURT STAFF) (Filed on 11/14/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PURNIMA JHA,

Case No. 14-cv-01691-VC

Plaintiff,
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v.
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WELLS FARGO BANK, N.A.,
Defendant.

ORDER GRANTING IN PART,
DENYING IN PART MOTION TO
DISMISS
Re: Dkt. No. 33

United States District Court
Northern District of California

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The motion to dismiss the breach of contract claim is denied. Wells Fargo argues the

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foreclosure sale could not have constituted a breach of the deed of trust because Jha herself was in

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breach of the deed, having failed to make her mortgage payments. But a breach by one party does

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not always inoculate the other party from liability for its own subsequent breach. It is common for

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a contract to limit the remedies available to one party in the event of breach by another, and by

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definition such contractual limits apply even in the event of a breach. See Michel & Pfeffer v.

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Oceanside Props., Inc., 61 Cal.App.3d 443, 442 (Cal. Ct. App. 1976), overruled on other grounds,

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Wm. R. Clark Corp. v. Safeco Ins. Co. of Am., 15 Cal.4th 882 (Cal. 1997). And here, the First

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Amended Complaint alleges: (i) the deed of trust limited the actions Wells Fargo could take in the

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event of default by Jha; and (ii) the foreclosure sale exceeded those limits. Specifically, Jha

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asserts that Wells Fargo breached the deed by failing to follow "applicable law," namely the Home

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Affordable Modification Program ("HAMP"), which she contends precluded the foreclosure sale

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of her home in these circumstances. It may be that Jha's claim that Wells Fargo violated the deed

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by failing to follow HAMP would fail for some other reason, but in its motion to dismiss Wells

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Fargo relies solely on the incorrect argument that it could never be found in breach of the deed of

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trust based on the manner in which it responded to Jha's breach. Accordingly, the motion to

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dismiss the breach of contract claim is denied.
The motion to dismiss the trespass claim is granted. Jha asserts that the unlawful

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foreclosure by Wells Fargo constituted a trespass onto her property. However, "[t]he essence of

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the cause of action for trespass is an unauthorized entry onto the land of another." Miller v. Nat'l

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Broad. Co., 187 Cal.App.3d 1463, 1480 (Cal. Ct. App. 1986) (quotation omitted). Jha pleads no

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facts describing an entry onto her property by Wells Fargo. See Murphy v. Wells Fargo Bank,

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N.A., 2011 WL 6182422, at *3 (N.D. Cal. Dec. 13, 2011) (dismissing the trespass claim where the

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complaint failed to plead facts describing an entry onto the property by Wells Fargo); cf. Susilo v.

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Wells Fargo Bank, N.A., 2011 WL 2471167, at *11 (C.D. Cal. June 21, 2011) (finding the trespass

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claim sufficiently pled where there were allegations that "defendants changed the locks prior to the

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United States District Court
Northern District of California

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foreclosure, and removed and converted plaintiff's personal furnishings, furniture, and

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belongings"). Dismissal of the trespass claim is with prejudice.

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IT IS SO ORDERED.
Dated: November 14, 2014
______________________________________
VINCE CHHABRIA
United States District Judge

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