Giordano et al v. Wachovia Mortgage, FSB et al

Filing 65

ORDER GRANTING 54 MOTION TO DISMISS; AND TERMINATING 55 MOTION TO STRIKE AS MOOT. Signed by Judge Jeremy Fogel on July 8, 2011. (jflc3, COURT STAFF) (Filed on 8/3/2011)

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**E-Filed 8/3/2011**

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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JOHN H. GIORDANO, et al.,
Plaintiffs,

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v.

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WACHOVIA MORTGAGE, FSB, et al.,

Case Number 5:10-cv-04661-JF
ORDER1 GRANTING MOTION TO
DISMISS; AND TERMINATING
MOTION TO STRIKE AS MOOT
[re: dkt. entries 54, 55]

Defendants.

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Defendant Wachovia Mortgage, FSB (“Wachovia”) moves to dismiss the second

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amended complaint (“SAC”) of Plaintiffs John and Georgana Giordano (“the Giordanos”) for

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failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) and to strike portions

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of the complaint pursuant to Federal Rule of Civil Procedure 12(f). Because the SAC fails to

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cure the deficiencies identified by the Court in dismissing Plaintiffs’ original and first amended

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complaints, the motion to dismiss will be granted, without leave to amend.

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On October 4, 2010, the Giordanos filed the instant action in the Santa Clara Superior

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Court, alleging six state law claims arising out of the refinance of their home mortgage and their

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subsequent default on the loan. Wachovia removed the case to this Court on the basis of

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This disposition is not designated for publication in the official reports.

Case No. 5:10-cv-04661-JF
ORDER GRANTING MOTION TO DISMISS FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND ETC.
(JFLC2)

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diversity jurisdiction. On December 14, 2010, this Court issued an order granting Wachovia’s

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motion to dismiss with leave to amend in part. The Giordanos filed a first amended complaint

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(“FAC”) on January 3, 2011, asserting only two state law claims: (1) financial elder abuse; and

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(2) unfair business practices in violation of California Business and Professions Code § 17200 et

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seq. On March 25, 2011, the Court concluded that the FAC failed to state a claim for either elder

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abuse or unfair business practices because it did not “allege a basis for asserting that [Wachovia]

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had a duty to provide an oral explanation of the loan terms,” and because the claims appeared “to

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be time-barred on [their] face.” Order of March, 25, 2011 at 3. Although the Court expressed

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reservations about whether the statute of limitations defect could be cured by additional

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amendment, leave to amend was granted based on the representation of the Giordanos’ counsel

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that the Giordanos could allege additional facts demonstrating delayed discovery of the facts

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giving rise to the claim. The Giordanos filed the SAC on April 22, 2011.

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The SAC varies only slightly from the FAC, and it does not cure any of the defects

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identified by the Court. The FAC stated that the Giordanos did not learn of the true terms of the

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loan until they “began to experience severe financial problems due in part to the increasing

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interest rate and mortgage payments.” FAC ¶ 15. The SAC adds only that in 2009, John H.

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Giordano was diagnosed with metastatic cancer, and the Giordanos “began to experience severe

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financial problems due in part to medical expenses and the increased interest rates and mortgage

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payments. SAC ¶ 16. While Mr. Giordano’s health problems apparently are serious, they do not

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explain why the Giordanos were unable discover the truth about their loan in the exercise of

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reasonable diligence. See Parson v. Tickner, 31 Cal. App. 4th 1513, 1525 (1995). The SAC also

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fails to provide additional support for the Giordanos’ assertion that the bank had a duty to

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provide an oral explanation of the loan terms. See SAC ¶¶ 11-12 (alleging substantially the same

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facts as FAC ¶¶ 9, 12).

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The Giordanos did not file opposition to the instant motion. However, at oral argument,

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the Giordanos, representing themselves, indicated that they intended to obtain new legal counsel

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to pursue their claims. While the Court recognizes the Giordanos’ right to seek counsel of their

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choice, neither the original complaint nor the two amended complaints allege any facts
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Case No. 5:10-cv-04661-JF
ORDER GRANTING MOTION TO DISMISS FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND ETC.
(JFLC2)

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suggesting that a viable claim could be stated. Accordingly, the motion to dismiss will be

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granted without leave to amend. However, if after seeking legal advice, the Giordanos are able

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to articulate a valid claim for relief, the Court will entertain a motion for relief from judgment

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pursuant to Fed. R. Civ. P. 60(b).

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Accordingly, the SAC will be dismissed, without leave to amend, and the motion to strike
terminated as moot. The Clerk shall enter judgment and close the file.

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DATED: 7/8/2011

_________________________________
JEREMY FOGEL
United States District Judge

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Case No. 5:10-cv-04661-JF
ORDER GRANTING MOTION TO DISMISS FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND ETC.
(JFLC2)