Myrette-Crosley v. Ditech Home Loans et al

Filing 55

ORDER DISMISSING CASE. Signed by Judge James Donato on 4/16/2020. (jdlc3S, COURT STAFF) (Filed on 4/16/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FAYE MYRETTE-CROSLEY,
Plaintiff,

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DITECH HOME LOANS, et al.,
Defendants.

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United States District Court
Northern District of California

ORDER DISMISSING CASE

v.

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Case No. 3:17-cv-05528-JD

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Plaintiff Faye Myrette-Crosley’s claims under the Federal Debt Collection Practices Act,

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the Truth in Lending Act, and fraudulent concealment are dismissed pursuant to the permanent

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injunction entered as part of defendant Ditech’s confirmed bankruptcy plan. Dkt. No. 41, Ex. A.

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A subsequent order by the bankruptcy court to enforce the injunctive provisions of the plan and

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confirmation order expressly confirmed these causes of action must be dismissed. Dkt. No. 51,

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Ex. 1.

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The remaining claim in the first amended complaint for specific performance, Dkt. No. 28,

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is dismissed with prejudice for failure to state a claim. The Court’s prior order dismissed the

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claim as time-barred. Dkt. No. 26 at 4. Defendant moved to dismiss on this ground, Dkt. No. 44,

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and plaintiff has not opposed the motion.

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The allegation that plaintiff previously filed a case “containing causes of action seeking

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equitable remedies thereby tolling the statute of limitations,” does not save the claim. Dkt. No. 28

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¶ 121. Under California law, equitable tolling by a prior proceeding requires “a showing of three

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elements: timely notice, and lack of prejudice, to the defendant, and reasonable and good faith

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conduct on the part of the plaintiff.” McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th

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88, 102 (2008) (internal quotation and citation omitted). The prior action referenced is Myrette-

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Crosley v. OneWest Bank, Case No. CIVMSC15-01688. (Cal. Super. Ct., Contra Costa Cty.).

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There is no indication that Ditech has any relationship to that defendant or appeared in that case.

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Plaintiff does not allege that Ditech was even aware of OneWest, let alone how the substance of

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OneWest would have provided notice to Ditech of the specific performance claim in this action.

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Accordingly, Myrette-Crosley has not shown that equitable tolling is applicable here.

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Additionally, “[s]pecific performance is a remedy associated with breach of contract,” not

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a cause of action itself. Pauma Band of Luiseno Mission Indians of Pauma & Yuima v.

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California, 813 F.3d 1155, 1167 (9th Cir. 2015). “Where, as here, no breach of a contract has

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been alleged, but rather a challenge to its formation . . . the contract is voidable and the appropriate

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remedy is rescission and restitution.” Id; see Dkt. No. 28 ¶¶ 84, 88, 110.

United States District Court
Northern District of California

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The Court’s discretion to dismiss with prejudice is “particularly broad” after prior leave to

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amend has been granted, which is the case here. Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133

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(9th Cir. 2013). In light of plaintiff’s multiple chances to plead her claim for specific

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performance, and her inability to do so, the specific performance claim against Ditech is dismissed

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with prejudice.

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The case is dismissed and judgment will be entered against plaintiff.

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IT IS SO ORDERED.

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Dated: April 16, 2020

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JAMES DONATO
United States District Judge

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