DAVENPORT v. LITTON LOAN SERVICING, LP (N.D.Cal. 7-16-2010)

geles Cellular Telephone Company, the California Supreme Court rejected that test and instead held that in a claim brought by a competitor, "any finding of unfairness . . . [must] be tethered to some legislatively declared policy." 20 Cal. 4th 163, 185 (1999). Yet, because Cel-Tech expressly limited its holding to competitor lawsuits, the appropriate test to determine whether a practice is "unfair" in a consumer case under California law remains uncertain. See Lozano v. AT T Wireless Servs., Inc., 504 F.3d 718, 735 (9th Cir. 2007) ("California's unfair competition law, as it applies to consumer suits, is currently in flux. . . ."). Compare Smith v. State Farm Mutual Automobile Ins. Co., 93 Cal. App. 4th 700, 720 n. 23 (2001) ("[W]e are not to read Cel-Tech as suggesting that such a restrictive definition of `unfair' should be applied in the case of an alleged consumer injury. . . .") with Scripps Clinic v. Superior Court, 108 Cal. App. 4th 917, 940 (2003) (requiring, under Cel-Tech, that any UCL claim must be tethered to a legislatively declared policy). The Ninth Circuit has observed that these two options — to apply Cel-Tech directly to consumer cases and require that the unfairness be tied to a "legislatively declared" policy as in Scripps Clinic, or to adhere to the former balancing test as stated in cases such as Motors, Inc. — are not mutually exclusive. Lozano, 504 F.3d at 736.

Davenport focuses solely on loan origination and characterizes that process as "unfair" insofar as defendants: (1) employed "bait and switch tactics"; (2) "ma[de] loans without providing borrowers with sufficient, accurate and understandable information regarding the terms and conditions of the loan"; (3) failed to provide "borrowers with sufficient, accurate and understandable information regarding the nature and extent of the financial risk" involved; and (4) failed to consider Davenport's ability to repay her loan. More narrowly, Davenport highlights the fact that Kruger overstated her income in a loan application form so that she would "qualify" for the loan she received. Assuredly, this practice qualifies as "unfair" (more than this, she has also adequately alleged elsewhere that it is unlawful). As alleged against First Financial, Davenport appears to have adequately pleaded an unfair business practice under the UCL. What she has failed to do, though, is connect the moving defendants to these loan origination practices. Accordingly, her claim must be denied as to the moving parties with leave to amend.

D. The Elder Abuse Act: Twentieth Claim for Relief

Davenport relies on California's Elder Abuse Act for the argument that all defendants committed actionable financial abuse. As a general matter, a plaintiff must demonstrate that a defendant: (1) subjected an elder to statutorily-defined physical abuse, neglect, or financial abuse; and (2) acted with recklessness, malice, oppression, or fraud in the commission of the abuse. See Von Mangolt Hills v. Intensive Air, Inc., No. 06-03300, 2007 WL 52122, at *2 (N.D. Cal. Feb. 15, 2007).

Defendants point out, first, that Davenport was not an "elder" as defined by the statute, at least at the time she consummated her loan. See Cal. Welf. Inst. Code § 15610.27 (defining elder as a person over the age of sixty-five). While her elder abuse arguments do indeed focus only on loan consummation, it is at least possible that she also references the failed modification attempt or the foreclosure events. By that time, she might have qualified as an elder under the statute. Because Davenport has not alleged these facts, though, she has not stated a "plausible" claim for relief; her elder abuse cause of action is dismissed with leave to amend.

E. California Civil Code Section 1691 Rescission: Sixteenth Claim for Relief

Defendants also move to dismiss Davenport's sixteenth claim for relief to rescind her loan under state law. Davenport relies on California Civil Code sections 1989(b)(1), (5) and (6) as well as 1691. Section 1989(b), respectively, allows a party to a contract to rescind where: (1) consent was obtained by mistake, through duress, menace, fraud, or undue influence exercised by or with the connivance of the adverse party; (5) where the contract is "unlawful for causes which do not appear in its terms or conditions, and the parties are not equally at fault"; or (6) where the public interest will be prejudiced by permitting the contract to stand. Section 1691 governs rescission procedure. It requires that a party give notice of his or her intent to rescind and "[r]estore to the other party everything of value which he has received from him under the contract or offer to restore the same upon condition that the other party do likewise." Cal. Civ. Code § 1691. The statute provides that when either notice of rescission has not been provided or restoration made, "the service of a pleading in an action or proceeding that seeks relief based on rescission shall be deemed to be such notice or offer or both." Cal. Civ. Code § 1691.

To support her rescission claim, Davenport contends First Financial's alleged fraud provides a basis for rescission. In the FAC, Davenport states that she is willing to return the subject property but does not otherwise offer to return the outstanding portion of her loan. As an initial matter, it is not clear that Davenport can substitute the property for the "thing of value" contemplated by the contract (when she refinanced her original loan, Davenport received cash). See, e.g., Garavito v. G.E. Money Bank, No. 08-2215, 2010 WL 744284, at *4 (S.D. Cal. Mar. 2, 2010) (rejecting plaintiff's offer to quitclaim property to lender as a valid tender offer). More importantly, the papers indicate that the property has already been sold at foreclosure sale to U.S. Bank. Accordingly, her "offer" to return the property cannot realistically count as a tender offer (nor is it remotely consistent with her plea for relief: to rescind the loan transaction, undo the foreclosure sale, and remain in her home).

While this Court has repeatedly recognized that a borrower need not allege ability to tender in support of a TILA rescission claim to survive a motion to dismiss, the rationale was tethered to the Ninth Circuit's recognition that district courts have discretion to alter the rescission procedures contemplated in that federal statute. Yamamoto v. Bank of New York, 329 F.3d 1167, 1171 (9th Cir. 2003). Accordingly, this Court has held that, while a borrower must ultimately demonstrate ability to tender to prove a claim for TILA rescission on the merits, he or she need not allege this ability at the pleading stage. See, e.g., Botelho v. U.S. Bank, No. 08-04316, 2010 WL 583954, at *5 (N.D. Cal. Feb. 16, 2010). It is not at all clear that this same leeway is appropriate in the context of rescission under California Civil Code section 1691. In contrast, courts in California continually treat tender or at least the allegation of ability to do so as a necessary part of a valid claim for rescission of a contract. See, e.g., Periguerra v. Meridas Capital, Inc., No. 09-4748, 2010 WL 39593, at *3 (N.D. Cal. Feb. 1, 2010) ("Plaintiffs must allege that they are willing to tender the loan proceeds to the lender. This is a basic tenet of California contract law."); Ritchie v. Cmty Lending Corp., No. 09-02484, 2009 WL 2581414, at *3 (C.D. Cal. Aug. 12, 2009) ("[I]t is a `basic rule' that `[a]n offer of performance is of no effect if the person making it is not able and willing to perform according to the offer.") ( quoting Cal. Civ. Code § 1495 (2003)). The rationale proceeds from the

language of the statute, which requires that a party "[r]estore to the other party everything of value which he has received from him under the contract or offer to restore the same. . . ." Cal. Civ. Code § 1691 (emphasis added). Accordingly, it seems clear that Davenport must at least allege that she has offered to tender to support a claim for equitable rescission under section 1691. Davenport has not, and she has therefore not adequately pleaded a claim for state law rescission. This claim is dismissed with leave to amend.

California Common Law Claims

A. Declaratory Relief: First Claim for Relief

Although Davenport frames the "declaratory judgment" section of her FAC as a cause of action, it is correctly understood as a form of relief. Her actual claim is based on an ultimately mistaken theory. She contends that the defendants lacked the power to sell the Canterbury property pursuant to the deed of trust because no defendant has physical possession of the promissory note. As courts have repeatedly emphasized, such a theory is "unsupported and incorrect." Hafiz v. Greenpoint Mortg. Funding, 652 F. Supp. 2d 1039, 1043 (N.D. Cal. 2009). Davenport's FAC refers to each of the defendants in their capacities as lenders, servicers and trustees. She attaches to her FAC a copy of the refinancing agreement, the deed of trust and related documentation. She does not dispute that the parties are who they claim to be but insists that they must produce a physical copy of the original note before exercising their contractual rights.

"California law does not require possession of the note as a precondition to non-judicial foreclosure under a deed of trust. . . . Pursuant to section 2924(a)(1) of the California Civil Code, the trustee of a Deed of Trust has the right to initiate the foreclosure process. Production of the original note is not required to proceed with a non-judicial foreclosure." Id. ( quoting Pagtalunan v. Reunion Mortg. Inc., No. 09-00162, 2009 WL 961995, at *1 (N.D. Cal. Apr. 8, 2009). Moreover, the trustee has the power and the duty to initiate foreclosure proceedings on the property upon the trustor's default. Lomboy v. SCME Mortg. Bankers, No. 09-1160, 2009 WL 1457738, at *5 (N.D. Cal. May 26, 2009). This is what happened here. C-BASS, as the named trustee in the deed of trust, initiated the foreclosure proceedings. Accordingly, the facts plaintiff alleges to support her

declaratory relief theory could not possibly give rise to a cognizable legal claim. Insofar as she bases her twenty-third, twenty-fourth, twenty-fifth and twenty-sixth claims (to set-aside the foreclosure sale, for a cancellation of the deed of trust, for permanent injunctive relief and a request to quiet title) on the same "note holder" theory, these too are dismissed without leave to amend against the defendants.

B. Accounting: Second Claim for Relief

"A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting." Teselle v. McLoughlin, 173 Cal. App. 4th 156, 179 (2009). She bases her argument that defendants owe her an uncertain sum of money on her right to rescind under either TILA or California Civil Code section 1691. As explained above, however, even if Davenport were able to prove that she did not receive the requisite TILA disclosures, the proper time frame under which she might rescind has passed. Moreover, she has not adequately pleaded a claim for rescission under California statutory law. Her accounting claim must therefore be dismissed with leave to amend. Should she choose to amend, she is reminded that the TILA rescission claim was dismissed without leave to amend.

C. Civil Conspiracy: Third Claim for Relief

A conspiracy is not an independent cause of action, but is instead "a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration." Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 510-11 (1994). Liability for civil conspiracy generally requires three elements: (1) formation of a conspiracy (an agreement to commit wrongful acts); (2) operation of a conspiracy (commission of the wrongful acts); and (3) damage resulting from operation of a conspiracy. Id. at 511. A civil conspiracy is therefore activated by the commission of an underlying wrongful act. Id.

Davenport theorizes that all defendants "knowingly and willfully conspired" to conceal the fact that her loan would be securitized and, more broadly, to provide plaintiff with a loan she could not afford. She does not provide sufficient facts to satisfy even the first element of civil conspiracy. She concludes the defendants agreed to hoodwink her with an unconscionable loan and, for support, points out that Litton collected payments each month, C-BASS mailed a notice of default, and U.S. Bank purchased her home at the foreclosure sale. As pleaded, it is simply not clear how any of these actions are unlawful, even if they may appear somewhat coordinated. The observation of "parallel conduct," the Supreme Court has instructed, combined with "the bare assertion of conspiracy" will not suffice. Twombly, 550 U.S. at 556-57. "Without more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality." Id. Davenport has not presented a claim for relief and the civil conspiracy cause of action is dismissed with leave to amend.

D. Aiding and Abetting: Fourth Claim for Relief

As against all defendants save First Financial, Davenport imputes liability for the original lender's alleged "fraudulent business practices" including, for example, Kruger's overstatement of Davenport's monthly income on her loan application. (Compl. ¶ 72.) To hold them secondarily liable, she argues the remaining defendants "aided and abetted" First Financial. In California, a party "aids and abets the commission of an intentional tort if the person (a) knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person's own conduct, separately considered, constitutes a breach of duty to the third person." Berryman v. Merit Property Mgmt., Inc., 152 Cal. App. 4th 1544, 159 (2009). By contrast, "[m]ere knowledge that a tort is being committed and the failure to prevent it does not constitute aiding and abetting." Austin B. v. Escondido Unified School Dist., 149 Cal. App. 4th 860, 879 (2007).

Davenport has not presented any facts to support her theory that, even assuming defendants could have known about Kruger's acts, they substantially assisted or encouraged Kruger. Again, she merely posits a legal conclusion. This claim, too, is dismissed with leave to amend.

E. Theories of Agency, Vicarious Liability, Negligent Supervision: Fifth Sixth Claims for Relief

In her fifth and sixth claim for relief (respectively dubbed "negligent supervision" and "agency"), Davenport essentially argues that Litton, U.S. Bank and C-BASS should be held vicariously liable for First Financial's alleged torts or at least liable for "negligent" hiring and supervision of that entity. As to the argument that First Financial was an agent of the other defendants, Davenport concludes but does not explain exactly how or why this Court should find that First Financial was not its own, independent entity. In California, "[t]he law indulges no presumption that an agency exists but instead presumes that a person is acting for himself and not as agent for another." Walsh v. Am. Trust, 7 Cal. App. 2d 654, 659 (1935).

"An agency is either actual or ostensible." Cal. Civ. Code § 2298. Agency is actual where the "agent is really employed by the principal." Cal. Civ. Code § 2299. The Ninth Circuit has instructed that the key factor to consider in analyzing whether an entity is an employer is "the right to control and direct the activities of the person rendering service, or the manner and method in which the work is performed." Doe I v. Wal-mart Stores, Inc., 572 F.3d 677, 682-83 (9th Cir. 2009) ( quoting Serv. Employees Int'l Union v. County of L.A., 225 Cal. App. 3d 761, 786 (1990)). "A finding of the right to control employment requires . . . a comprehensive and immediate level of `day-to-day' authority over employment decisions." Id. ( quoting Vernon v. State, 116 Cal. App. 4th 114, 131 (2004)). Davenport concludes that the other defendants (presumably, all of them) employed First Financial but presents no facts or evidence in support.

Where a "principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess" authority, the agency relationship is said to be "ostensible." Cal. Civ. Code § 2299. Davenport's agency theory is tethered to the notion that the defendants' interests in consummating the loan were aligned and the parties benefitted financially from the contract. This is not an argument that can impute an agency relationship. As to her negligent supervision claim, the legal theory arises where an employer negligently "hir[es] or retain[s] an employee who is incompetent or unfit." Phillips v. TLC Plumbing, Inc., 172 Cal. App. 4th 1207, 1214 (1997). Again, without any facts to support the notion that First Financial was an employee of one or all

defendants, this claim cannot survive a motion to dismiss. The fifth and sixth claims for relief are, accordingly, dismissed with leave to amend.

F. Breach of Fiduciary Duty: Ninth Claim for Relief

Davenport asserts that First Financial breached a fiduciary duty it owed her; she further contends that the remaining defendants may be held vicariously liable for this breach. Defendants correctly point out that no fiduciary duty ever arose. "[A]s a general rule, a financial institution owes no duty of care to a borrower when the institution's involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money." Nymark v. Heart Fed. Sav. Loan Ass'n, 231 Cal. App. 3d 1089, 1098 (1991). "A commercial lender is entitled to pursue its own economic interests in a loan transaction. This right is inconsistent with the obligations of a fiduciary which require that the fiduciary knowingly agree to subordinate its interests to act on behalf or for the benefit of another." Id. at 1093 n. 1. Davenport has not shown the existence of a fiduciary relationship or presented facts to suggest that First Financial acted outside the ordinary scope of a commercial lender. Accordingly, she cannot possibly impute vicarious liability to the moving defendants and this claim is dismissed with leave to amend.

G. Due Process: Twelfth Claim for Relief

In her twelfth claim for relief, Davenport argues that defendants failed to serve her properly with notice of a trustee's sale and of foreclosure by registered or certified mail. As discussed in the California Civil Code sections 2924 and 2923.5 segment, Davenport does admit that she received both notices in the mail and in a timely fashion. It is not clear how a private bank's failure to certify its mail denies her due process of law in any reasonable sense of the concept.

She also argues that, "Defendants unlawfully foreclosed on the Subject Property, in violation of Plaintiff's Right to Due Process and that of the HAMP program." (Compl. ¶ 127.) "HAMP" refers to a federal Homeowner Affordable Modification Program. Apparently, the voluntary program establishes guidelines that lenders should consider when reviewing a modification request. It seems that her argument works something like this: because Litton apparently received federal money for its agreement to participate in HAMP, it was required to follow the program's guidelines on loan modifications. Again, however, her reliance on the due process clause of the Fourteenth Amendment is misplaced. Even assuming Litton stepped outside of these federal guidelines, her right to due process is not implicated. This claim is dismissed without leave to amend.

H. Intentional or Negligent Infliction of Emotional Distress: Eighteenth Nineteenth Claims for Relief

To present a claim for intentional infliction of emotional distress, a plaintiff must plead: (1) defendant's extreme and outrageous conduct; (2) that defendant intended to cause, or recklessly disregarded the probability of causing, emotional distress; (3) that plaintiff suffered severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by defendant's outrageous conduct. Potter v. Firestone Tire Rubber Co., 6 Cal. 4th 965, 1001 (1993). Outrageous conduct must be "so extreme as to exceed all bounds of that usually tolerated in a civilized community." Id. at 1001. To succeed on her claim for negligent infliction of emotional distress, Davenport must show serious emotional distress actually and proximately caused by wrongful conduct on the part of a defendant who should have foreseen that the conduct would cause such distress. Cole v. Fair Oaks Fire Protection Dist., 43 Cal. 3d 148, 155 (1987).

Common sense dictates that home foreclosure is a terrible event and likely to be fraught with unique emotions and angst. Where a lending party in good faith asserts its right to foreclose according to contract, however, its conduct falls shy of "outrageous," however wrenching the effects on the borrower. Here, Davenport concludes but does not adequately present evidence of Litton, C-BASS or U.S. Bank's bad faith in the foreclosure process. The alleged certified mail failure and the refusal, after meeting with her and her legal representative, to modify her loan also do not, by themselves, qualify as outrageous or even indicative of bad faith. Even under the auspices of her negligence theory, she has not connected the mail failures to her distress or, for that matter, suggested that any reasonable lender would foresee such harm. Both claims are therefore denied with leave to amend.

I. Breach of the Implied Covenant of Good Faith and Fair Dealing: Thirteenth Claim for Relief

Davenport grounds her breach of the implied covenant of good faith and fair dealing claim in contract, not in tort law. Section 205 of the Restatement of Contracts states that, "[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement." Restatement (Second) of Contracts § 205 (2009). "[T]he implied covenant of good faith is read into contracts in order to protect the express covenants or promises of the contract, not to protect some general public policy interest not directly tied to the contract's purpose." Carma Dev., Inc. v. Marathon Dev. Cal., Inc., 2 Cal. 4th 342, 373 (1992).

With regard to the defendants whose involvement centers on the loan foreclosure — Litton, C-Bass and U.S. Bank — the loan agreements outlined the possibility of foreclosure should Davenport fail to meet her agreed-upon payment obligations. She does not deny she defaulted and does not present any facts to demonstrate exactly how these defendants sought to obtain more from her than that to which they were contractually entitled. As a general matter, a court should not "conclude that a foreclosure conducted in accordance with the terms of a deed of trust constitutes a breach of the implied covenant of good faith and fair dealing." Id. at 374-76. The covenant does not "impose any affirmative duty of moderation in the enforcement of legal rights." Price v. Wells Fargo Bank, 213 Cal. App. 3d 465, 479-80 (1989). The mere fact that the remaining defendants foreclosed on the Canterbury property does not without more constitute a breach of the covenant of good faith and fair dealing. This claim is dismissed as alleged against the moving defendants with leave to amend.

J. Unjust Enrichment: Seventeenth Claim for Relief

Davenport's seventeenth claim is one for "unjust enrichment." Courts in this state and district diverge on whether unjust enrichment functions as an independent claim or is instead an effect that must be tethered to a distinct legal theory to warrant relief. Some courts have read a plaintiff's "claim" for unjust enrichment as a claim for relief. See, e.g., Ghirardo v. Antonioli, 14 Cal. 4th 39, 50 (1996) (recognizing that a plaintiff may advance a stand-alone claim for unjust enrichment, particularly where he or she seeks restitution and other remedies are inadequate). These courts focus on whether the facts demonstrate a defendant's unjust receipt of some benefit. Other courts cast unjust enrichment as an effect: it is simply the thing that needs remedying. See McKell v. Wash. Mut., Inc., 412 Cal. App. 4th 1457, 1489 (2006); Melchior v. New Line Prod., Inc., 106 Cal. App. 4th 779, 793 (2003) ("The phrase `unjust enrichment' does not describe a theory of recovery, but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so.").

Under both views, the effect of unjust enrichment is remedied with some form of restitution. See, e.g., Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 684 (9th Cir. 2009) ("Unjust enrichment is commonly understood as a theory upon which the remedy of restitution may be granted."); Restatement of Restitution § 1 (1936) ("A person who has been unjustly enriched at the expense of another is required to make restitution to the other."). A plaintiff advances a basis for obtaining restitution if he or she demonstrates defendant's receipt and unjust retention of a benefit. See Lectrodryer v. SeoulBank, 77 Cal. App. 4th 723, 726 (2000); First Nationwide Savings v. Perry, 11 Cal. App. 4th 1657, 1662-63 (1992). "The fact that one person benefits another is not, by itself, sufficient to require restitution." McBride v. Boughton, 123 Cal. App. 4th 379, 389 (2004) ( quoting First Nationwide Savings v. Perry, 11 Cal. App. 4th 1657, 1662 (1992)). Instead, "[t]he person receiving the benefit is required to make restitution only if the circumstances are such that, as between the two individuals, it is unjust for the person to retain it." Id. (internal quotation marks and citations omitted).

The benefit of the narrower view is that it effectively delineates precisely what unjust enrichment means and how it works. There are several factual scenarios where a theory of unjust enrichment has historically supported restitution as a remedy. A plaintiff may, for example, advance a claim as an alternative to breach of contract when the parties have a contract that was procured by fraud or is for some reason unenforceable. See McBride v. Boughton, 123 Cal. App. 4th 379, 388 (2004). Or, where the plaintiff cannot assert title or right to possession of particular property, but nevertheless can show just grounds for recovering money to pay for some benefit the defendant received from him, "the plaintiff has a right to restitution at law through an action derived from the common-law writ of assumpsit" (this method implies a contract at law, or a quasi-contract). See Great-West Life Annuity Ins. Co. v. Knudson, 534 U.S. 204, 213 (2002) ("Such claims were [historically] viewed essentially as actions at law for breach of contract (whether the contract was actual or implied)."). Finally, a plaintiff may seek restitution in equity, ordinarily in the form of a constructive trust or an equitable lien, where money or property "identified as belonging in good conscience to the plaintiff could clearly be traced to particular funds or property in the defendant's possession." Id.

Davenport's "unjust enrichment" theory does not fit into any of these categories. She argues that because she had a valid right to rescind her loan under either TILA or California Civil Code section 1691 (in light or the alleged TILA violations and fraudulent income statement), all defendants improperly collected her monthly mortgage payments from the loan's inception. These mortgage payments, she insists, "unjustly enriched" defendants. Her theory might work if she validly exercised her rescission right under either statute and defendants failed to honor it and continued to collect payments from her. This did not happen here, though, and she has not alleged that any the mortgage payments constituted an unjust benefit. This claim must therefore be dismissed with leave to amend.

V. CONCLUSION

The defendants' motion to dismiss is resolved accordingly:

1. The plaintiff's first, twenty-third, twenty-fourth, twenty-fifth and twenty-sixth claims for relief (declaratory judgment, set-aside sale, cancel trustee's deed, injunctive relief, and quiet title) are each based on an incorrect legal theory. A trustee need not demonstrate physical possession of a promissory note to exercise its contractual right to foreclose on property. These claims are dismissed without leave to amend.

2. The fourteenth claim for relief (TILA) is time-barred. Her claim for rescission is dismissed without leave to amend and her claim for statutory damages is dismissed with leave to amend. Should she choose to amend, she must at a minimum allege facts in support of equitable tolling.

3. The fifteenth claim for relief (RESPA) is dismissed with leave to amend in the event that Davenport grounds her claim on sections of the statute which trigger a private right of action.

4. Claims twenty through twenty-two (Elder Abuse, Fair Housing Act, and Equal Credit Opportunity Act) are dismissed with leave to amend.

5. Claim eleven ( Cal. Civ. Code § 2923.5) is dismissed with leave to amend.

6. The tenth claim for relief (UCL) is dismissed with leave to amend.

7. The thirteenth claim for relief (contractual breach of the implied covenant of good faith and fair dealing) is dismissed with leave to amend.

8. Claims seven and eight (fraud and constructive fraud) are dismissed with leave to amend.

9. Claim sixteen (rescission pursuant to Cal. Civ. Code § 1691) is dismissed with leave to amend.

10. The second claim (accounting) is dismissed with leave to amend.

11. Plaintiff's common law claims for civil conspiracy (third claim), aiding and abetting (fourth claim), negligent supervision (fifth claim), agency (sixth claim), unjust enrichment (seventeenth claim), intentional infliction of emotional distress (eighteenth claim), negligent infliction of emotional distress (nineteenth claim), and lack of due process (twelfth claim) are dismissed with leave to amend.

If Davenport wishes to amend the FAC, she must do so on or before September 2, 2010. A Case Management Conference shall be held on October 14, 2010 at 10:00 a.m. The parties shall submit a Joint Case Management Statement one week prior to the Conference.

IT IS SO ORDERED.