Luis Colom v. Wells Fargo Home Mortgage Inc

Filing 19

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS COMPLAINT; DISMISSING COMPLAINT WITH LEAVE TO AMEND; VACATING HEARING. The complaint is dismissed. If plaintiff wishes to amend, plaintiff shall file a First Amended Complaint no later than July 25, 2014. Signed by Judge Maxine M. Chesney on July 25, 2014. (mmclc1, COURT STAFF) (Filed on 7/3/2014)

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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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LUIS COLOM,
Plaintiff,

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No. C-14-2410 MMC
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS COMPLAINT;
DISMISSING COMPLAINT WITH LEAVE
TO AMEND; VACATING HEARING

v.
WELLS FARGO HOME MORTGAGE, INC.,
Defendant.

/

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Before the Court is defendant Wells Fargo Home Mortgage, Inc.’s “Motion to

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Dismiss Complaint,” filed May 30, 2014. Plaintiff Luis Colom has filed opposition, to which

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defendant has replied. Having read and considered the papers filed in support of and in

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opposition to the motion, the Court deems the matter appropriate for determination on the

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parties’ respective written submissions, VACATES the hearing scheduled for July 11, 2014,

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and rules as follows.

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For the reasons stated by defendant (see Def.’s Mot. at 3:17-5:21), plaintiff’s First

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Cause of Action, alleging violations of the Homeowner’s Bill of Rights (“HBOR”), is subject

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to dismissal, as plaintiff fails to allege any facts to support a finding that “there has been a

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material change in [his] financial circumstances since the date of [his] previous application”

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that he “documented” and “submitted” to defendant, see Cal. Civ. Code § 2923.6(g), and,

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further, fails to allege sufficient facts to support a finding that defendant engaged in a

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“material violation” of the HBOR, see Cal. Civ. Code § 2924.12(a)(1); Ashcroft v. Iqbal, 556

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U.S. 662, 678-79 (2009).1

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For the reasons stated by defendant (see Def.’s Mot. at 9:19-10:20), plaintiff’s

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Second Cause of Action, alleging a claim for promissory estoppel, is subject to dismissal,

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as plaintiff fails to plead facts to support a finding that defendant made a “promise clear and

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unambiguous in its terms” and that plaintiff was “injured by his reliance” thereon. See US

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Ecology, Inc. v. State, 129 Cal. App. 4th 887, 905 (2005) (internal quotation and citation

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omitted).

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For the reasons stated by defendant (see Def.’s Mot. at 10:21-11:2), plaintiff’s Third

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Cause of Action, alleging violations of § 17200 of the Business and Professions Code, is

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subject to dismissal, as the claim is derivative of the First Cause of Action. Further, to the

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extent the Third Cause of Action can be interpreted as predicated on other conduct, plaintiff

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fails to plead sufficient facts to provide notice of the basis thereof. See Iqbal, 556 U.S. at

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678-79.

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For the reasons stated by defendant (see Def.’s Mot. at 12:1-13:6), plaintiff’s Fourth

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Cause of Action, alleging a claim for negligence, is subject to dismissal, as defendant does

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not owe plaintiff a duty of care in connection with its review of his application for a loan

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modification. See Lueras v. BAC Home Loans Servicing, Inc., 221 Cal. App. 4th 49, 67-68

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(2013).

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For the reasons stated by defendant (see Def.’s Mot. at 13:20-27), plaintiff’s Fifth

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Cause of Action, alleging “negligence per se,” is subject to dismissal, for the reason that

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“the doctrine of negligence per se is not a separate cause of action, but creates an

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evidentiary presumption that affects the standard of care in a cause of action for

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negligence,” see Das v. Bank of America, N.A., 186 Cal. App. 4th 727, 737-38 (2010), and,

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Given plaintiff’s failure to state a claim under the HBOR, the Court does not address
defendant’s additional argument that the HBOR is unconstitutional. In the event defendant
makes the argument in a future filing, defendant is directed to serve any such filing, as well
as a notice of constitutional question, on the California Attorney General. See Fed. R. Civ.
P. 5.1(a).
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as noted above, plaintiff fails to state a claim for negligence.
Accordingly, defendant’s motion is hereby GRANTED and the complaint is hereby

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DISMISSED. If plaintiff wishes to amend to cure the deficiencies identified above with

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respect to the First, Second, Third, and/or Fourth Causes of Action, plaintiff shall file a First

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Amended Complaint no later than July 25, 2014. Plaintiff may not, however, add new

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claims, new plaintiffs or new defendants without leave of court. See Fed. R. Civ. P.

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15(a)(2).

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IT IS SO ORDERED.

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Dated: July 3, 2014
MAXINE M. CHESNEY
United States District Judge

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