Defendant, a loan servicing company, moved to dismiss the third amended complaint filed by plaintiffs, mortgage borrowers. The court granted defendant’s motion. The deeds of trust did not require loan modification upon plaintiffs’ default and even if the lender or beneficiary decided to consider loan modification, no terms in the deed of trust imposed duties on the lender with respect to this discretionary decision. Because plaintiffs failed to allege the existence of a contract, plaintiffs’ performance, a breach by defendant, or any resulting damages, the contract claim had to be dismissed.
litigation attorney California Motion to dismiss granted.
Plaintiff test pilot and his foundation sued defendant couple for fraud, breach of an oral contract, and claims under the Lanham Act, 15 U.S.C.S. § 1051, California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, and California’s False Advertising Act, Cal. Bus. & Prof. Code § 17500. The U.S. District Court for the Eastern District of California granted summary judgment to defendants and awarded fees. Plaintiffs appealed.
Plaintiffs’ arguments that the statute of limitations did not apply to equitable claims under the Lanham Act, 15 U.S.C.S. § 1051, and that California’s statutory single-publication rule, Cal. Civ. Code § 3425.3, could not be applied to his equitable claims under the California Unfair Competition Law and the California False Advertising Act, were waived because they were not raised before the district court. Plaintiffs did not point to any evidence in the record that defendants induced plaintiff test pilot into forbearing suit within the applicable limitations period for any of his claims. Thus, the district court did not err in rejecting the application of equitable tolling and estoppel to his common law claims for fraud and breach of oral contract. The district court did not abuse its discretion in its award of attorneys’ fees. Once defendants submitted their reconstructed time records, the district court made a detailed analysis of the time records presented and a finding as to the reasonable hourly rate.
The court affirmed the judgment of the district court and its post-judgment award of attorneys’ fees.