Preview
1 MARK D. LONERGAN (State Bar No. 143622)
mdl@severson.com
2 REBECCA S. SAELAO (State Bar No. 222731)
rss@severson.com
3 JASON M. JULIAN (State Bar No. 215342)
jmj@severson.com
4 SEVERSON & WERSON
A Professional Corporation
5 595 Market Street, Suite 2600
San Francisco, California 94105
6 Telephone: (415) 398-3344
Facsimile: (415) 956-0439
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Attorneys for Cross-Defendant
8 WELLS FARGO BANK, N.A.
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10 SUPERIOR COURT OF CALIFORNIA
11 COUNTY OF SAN JOAQUIN
12 WELLS FARGO BANK, N.A., Case No. STK-CV-LCCR-2022-0011210
13 Plaintiff, CROSS-DEFENDANT WELLS FARGO
BANK, N.A.’S REPLY IN SUPPORT OF
14 vs. MOTION FOR JUDGMENT ON THE
PLEADINGS
15 JAMI J. LEWIS, an individual,
Date: March 22, 2023
16 Defendant. Time: 9:00 am
Dept.: 11-B
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JAMI J. LEWIS, an individual,
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Cross-Complainant,
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vs.
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WELLS FARGO BANK, N.A.,
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Cross-Defendant.
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1 I. INTRODUCTION
2 Cross-Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) has moved for judgment on the
3 pleadings as to the Cross-Complaint filed by Cross-Plaintiff Jami J. Lewis (“Lewis”). In response,
4 Lewis filed a pleading titled as an “objection.” Treating this as an Opposition, it effectively
5 concedes that the Cross-Complaint does not state any cause of action against Wells Fargo because
6 it includes a raft of allegations that appear nowhere in the Cross-Complaint which is devoid of
7 factual allegations. Lewis is required to state a colorable cause of action on the face of her Cross-
8 Complaint and has failed to do so. If she wishes to include the allegations in her “objection” in
9 her Cross-Complaint, she must seek leave of the Court to amend.
10 Lewis’s “objection” misstates the applicable law, citing Rule 12(CC) of the Federal Rules.
11 (Opp., 10:10-13.) However, the California standard is substantially similar. (See Code of Civ.
12 Proc. § 438(a), (b)(1) & (c)(1)(B)(ii).) The key point is that Lewis has failed to make sufficient
13 allegations in her Cross-Complaint (or any attachments thereto) to constitute any cause of action.
14 Her “objection” is outside the scope of her Cross-Complaint.
15 II. ARGUMENT
16 A. The Cross-Complaint Fails to State a Claim for Breach of Contract
17 The “objection” seeks to plead a cause of action for breach of contract through a stream of
18 consciousness that appears nowhere in the Cross-Complaint. (Opp., 5:11-7:21.) However,
19 although difficult to parse, this stream of allegations does not establish any claims for breach of
20 contract.
21 Strangely, the “objection” avers that “[t]here is no contractual agreement made by either
22 WELLS FARGO BANK, N.A. (“Wells Fargo”), or WELLS FARGO CARD SERVICES to
23 consummate this union.” (Opp., 5:23-24.) If there is no contract formation, how could there have
24 been any breach? The only purported contractual term cited in the “objection” is the text
25 “SECURED CARD COLLATERAL ACCOUNT INFORMATION; ‘REMINDER: YOUR
26 CARD IS PROTECTED BY YOUR SECURED CARD COLLATERAL ACCOUNT. AS PART
27 OF THAT PROTECTION YOU AGREE TO ‘THE BANK’S RIGHT TO SET OFF’ CLAUSE
28 PRINTED IN THE TERMS APPLICABLE TO SECURED CARD COLLATERAL ACCOUNT
07685.2950/16409731.1 -2-
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1 MAILED TO YOU AT ACCOUNT OPENING AND ALSO PRINTED ON THE BACK OF
2 THIS CREDIT CARD STATEMENT.” (Opp., 5:12-18.) But it is entirely unclear where this
3 language comes from or in what way Lewis is alleging that this term was allegedly violated.
4 The remaining verbiage in the “objection” is unintelligible as drafted, appearing to
5 reference definitions for “debt collectors” and “debt buyers,” and appears to, without coherent
6 explanation, claim that Lewis does not owe any debt to Wells Fargo, and that she never received
7 any funds. Once again, these unintelligible claims are not part of the Cross-Complaint, and even
8 assuming arguendo that they were, state no claim for breach of contract.
9 B. There is No Claim for Breach of Fiduciary Duty
10 The “objection” seeks to assert a cause of action for Breach of Fiduciary Duty. (Opp.,
11 7:22-8:6.) As an initial matter, the Cross-Complaint includes no cause of action for Breach of
12 Fiduciary duty, so such reference is irrelevant. Even it were in the Cross-Complaint, such claim
13 would fail as a matter of law. Lewis cannot allege a fiduciary duty on the part of Wells Fargo
14 because Wells Fargo is Lewis’s former credit card provider. A fiduciary relationship is a “relation
15 existing between two parties to a transaction wherein one of the parties to a transaction is in duty
16 bound to act with the utmost good faith for the benefit of the other party.” (Herbert v. Lankershim
17 (1937) 9 Cal.2d 409, 483.) This special relationship “ordinarily arises where a confidence is
18 reposed by one person in the integrity of another, and in such a relation the party in whom the
19 confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can
20 take no advantage from his [or her] acts relating to the interest of the other party without the
21 latter’s knowledge or consent ....” (Id.; see also Barbara A. v. John G. (1983) 145 Cal.App.3d
22 369, 382.)
23 However, “[n]o fiduciary relationship is established merely because ‘... the parties reposed
24 trust and confidence in each other.’ ” (Girard v. Delta Tower Joint Ventures (1993)
25 20 Cal.App.4th 1741, 1749 (citation omitted).) Rather, “[b]efore a person can be charged with a
26 fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of
27 another, or must enter into a relationship which imposes that undertaking as a matter of law.”
28 (City of Hope Nat’l Med. Ctr. v. Genentech, Inc. (2008) 43 Cal.4th 375, 385 (citations omitted).)
07685.2950/16409731.1 -3-
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1 For example, “recognized legal relationship[s] such as guardian and ward, trustee and beneficiary,
2 principal and agent, or attorney and client …” are fiduciary in nature. (Richelle L. v. Roman
3 Catholic Archbishop of California (2003) 106 Cal.App.4th 257, 271.)
4 California courts have consistently refused to extend the “‘special relationship’ doctrine to
5 include ordinary commercial contractual relationships …” (Girard, supra, 20 Cal.App.4th at 1749
6 (citations omitted)) or to debtor-creditor relationships in particular. “The relationship between a
7 lending institution and its borrower-client is not fiduciary in nature.” (Nymark v. Heart Fed.
8 Sav. & Loan Ass’n (1991) 231 Cal.App.3d 1089, 1093 n.1.) “[B]etween a bank and its loan
9 customers” there is no fiduciary relationship. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d
10 465, 476; see also Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 981 (same).) “A debt is not
11 a trust and there is not a fiduciary duty relation between debtor and creditor as such.” (Downey v.
12 Humphreys (1951) 102 Cal.App.2d 323, 332.)
13 C. There is No Cause of Action for Violation of the Truth in Lending Act
14 The “objection” seeks to assert a cause of action for Violation of the Truth in Lending Act.
15 (Opp., 8:8-10:7.) As an initial matter, the Cross-Complaint includes no cause of action for
16 Violation of the Truth in Lending Act, so such reference is irrelevant. Even it were in the Cross-
17 Complaint, such claim would fail as a matter of law, as any claim for rescission under TILA is
18 necessarily time-barred. TILA provides that the borrower may rescind certain types of loans if the
19 lender fails to deliver certain forms or to disclose certain terms. (15 U.S.C. § 1635.) A borrower
20 initially has three days following the consummation of the transaction or the delivery of the
21 disclosure forms required under section 1635 to notify the creditor of his intent to rescind. (15
22 U.S.C. § 1635(a).) However, if the creditor either fails to provide notice of the borrower’s right of
23 rescission, or fails to make a material disclosure—the three-day period is extended to three years.
24 (Miguel v. Country Funding Corp. (9th Cir. 2002) 309 F.3d 1161, 1163 (citing 15 U.S.C. §
25 1635(f)); 12 C.F.R. § 226.23(a)(3).) In Beach v. Ocwen Federal Bank, 523 U.S. 410 (1998), the
26 Supreme Court held that “section 1635(f) completely extinguishes the right of rescission at the end
27 of the 3 year period.” The Court stated, “[w]e respect Congress’s manifest intent by concluding
28 that the Act permits no federal right to rescind, defensively or otherwise, after the 3–year period of
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1 § 1635(f) has run.” (Id. at 419.) The Ninth Circuit has similarly held that section 1635(f)
2 represents an “absolute limitation on rescission actions” which bars any claims filed more than
3 three years after the consummation of the transaction. (King v. California (9th Cir. 1986) 784
4 F.2d 910, 913 .) “Therefore, § 1635(f) is a statute of repose, depriving the courts of subject matter
5 jurisdiction when a § 1635 claim is brought outside the three-year limitation period.” (Miguel,
6 309 F.3d at 1164.) Thus, any right Lewis may have had to rescind the credit card account expired,
7 at the latest, three years after she obtained the credit card account in 2012. Because this lawsuit
8 was not filed until 2023, any claim for rescission under TILA is untimely.
9 Similarly, a TILA damages claim is subject to 15 U.S.C. § 1640(e), which provides that an
10 action for a TILA violation must proceed “within one year from the date of the occurrence of the
11 violation.” “TILA requires that any claim based on an alleged failure to make material disclosures
12 be brought within one year from the date of the occurrence of the violation.” (Hallas v.
13 Ameriquest Mortg. Co. (D. Or. 2005) 406 F.Supp.2d 1176, 1183.) Once again, the limitations
14 period runs from the date of a transaction’s consummation, which is the time that a consumer
15 becomes contractually obligated on a credit transaction. (Monaco v. Bear Stearns Residential
16 Mortgage Corp. (C.D. Cal. 2008) 554 F.Supp.2d 1034, 1039.) Again, Lewis obtained the credit
17 card account in 2012. However, Lewis did not file her Cross-Complaint until 2023, rendering it
18 untimely.
19 Notably, equitable tolling cannot salvage Lewis’s claim. “Equitable tolling is generally
20 applied in situations where the claimant has actively pursued his judicial remedy by filing a
21 defective pleading during the statutory period, or where the complainant has been induced or
22 tricked by his adversary’s misconduct into allowing the filing deadline to pass.” (O’Donnell v.
23 Vencor, Inc. (9th Cir. 2006) 465 F. 3d 1063, 1068 (internal quotations omitted).) Dismissal is
24 appropriate where, as here, a plaintiff “fails to allege facts demonstrating that he could not have
25 discovered the alleged violations by exercising reasonable diligence.” (Rosenfeld v. JPMorgan
26 Chase Bank, N.A. (N.D. Cal. 2010) 2010 WL 3155808, *8-9 (dismissing TILA damages claim
27 where the plaintiff’s allegations were insufficient to establish reasonable diligence) (citing Meyer
28 v. Ameriquest Mortgage Company (9th Cir. 2003) 342 F.3d 899, 902-903.)
07685.2950/16409731.1 -5-
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1 D. The Cross-Complaint Fails to State a Claim for Common Counts
2 The “objection makes no attempt to defend the causes of action for common counts. Thus,
3 Lewis concedes she has failed to state a cause of action for Common Counts.
4 E. The Cross-Complaint Fails to State a Claim for Fraud
5 The “objection makes no attempt to defend the causes of action for Fraud. Thus, Lewis
6 concedes she has failed to state a cause of action for Fraud.
7 III. CONCLUSION
8 For the foregoing reasons, Lewis’s Cross-Complaint fails to state any claim and should be
9 dismissed.
10 DATED: March 14, 2023 SEVERSON & WERSON
A Professional Corporation
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12 By:
13 JASON M. JULIAN
14 Attorneys for Cross-Defendant
WELLS FARGO BANK, N.A.
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1 PROOF OF SERVICE
2 Wells Fargo Bank, N.A. v Jami J. Lewis
San Joaquin County Superior Court Case No. STK-CV-LCCR-2022-0011210
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At the time of service, I was over 18 years of age and not a party to this action. I am
4 employed in the County of San Francisco, State of California. My business address is 595 Market
Street, Suite 2600, San Francisco, CA 94105.
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On March 15, 2023, I served true copies of the following document(s):
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CROSS-DEFENDANT WELLS FARGO BANK, N.A.’S REPLY IN
7 SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS
8 on the interested parties in this action as follows:
9 Jami J. Lewis Plaintiff
119 E. Rose Street
10 Stockton, CA 95202
11 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the
persons at the addresses listed in the Service List and placed the envelope for collection and
12 mailing, following our ordinary business practices. I am readily familiar with Severson &
Werson's practice for collecting and processing correspondence for mailing. On the same day that
13 correspondence is placed for collection and mailing, it is deposited in the ordinary course of
business with the United States Postal Service, in a sealed envelope with postage fully prepaid.
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I declare under penalty of perjury under the laws of the State of California that the
15 foregoing is true and correct.
16 Executed on March 15, 2023, at San Francisco, California.
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19 Angela C Johnson
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07685.2950/16413272.1
Preview
1 MARK D. LONERGAN (State Bar No. 143622) mdl@severson.com 2 REBECCA S. SAELAO (State Bar No. 222731) rss@severson.com 3 JASON M. JULIAN (State Bar No. 215342) jmj@severson.com 4 SEVERSON & WERSON A Professional Corporation 5 595 Market Street, Suite 2600 San Francisco, California 94105 6 Telephone: (415) 398-3344 Facsimile: (415) 956-0439 7 Attorneys for Cross-Defendant 8 WELLS FARGO BANK, N.A. 9 10 SUPERIOR COURT OF CALIFORNIA 11 COUNTY OF SAN JOAQUIN 12 WELLS FARGO BANK, N.A., Case No. STK-CV-LCCR-2022-0011210 13 Plaintiff, CROSS-DEFENDANT WELLS FARGO BANK, N.A.’S REPLY IN SUPPORT OF 14 vs. MOTION FOR JUDGMENT ON THE PLEADINGS 15 JAMI J. LEWIS, an individual, Date: March 22, 2023 16 Defendant. Time: 9:00 am Dept.: 11-B 17 JAMI J. LEWIS, an individual, 18 Cross-Complainant, 19 vs. 20 WELLS FARGO BANK, N.A., 21 Cross-Defendant. 22 23 24 25 26 27 28 07685.2950/16409731.1 REPLY 1 I. INTRODUCTION 2 Cross-Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) has moved for judgment on the 3 pleadings as to the Cross-Complaint filed by Cross-Plaintiff Jami J. Lewis (“Lewis”). In response, 4 Lewis filed a pleading titled as an “objection.” Treating this as an Opposition, it effectively 5 concedes that the Cross-Complaint does not state any cause of action against Wells Fargo because 6 it includes a raft of allegations that appear nowhere in the Cross-Complaint which is devoid of 7 factual allegations. Lewis is required to state a colorable cause of action on the face of her Cross- 8 Complaint and has failed to do so. If she wishes to include the allegations in her “objection” in 9 her Cross-Complaint, she must seek leave of the Court to amend. 10 Lewis’s “objection” misstates the applicable law, citing Rule 12(CC) of the Federal Rules. 11 (Opp., 10:10-13.) However, the California standard is substantially similar. (See Code of Civ. 12 Proc. § 438(a), (b)(1) & (c)(1)(B)(ii).) The key point is that Lewis has failed to make sufficient 13 allegations in her Cross-Complaint (or any attachments thereto) to constitute any cause of action. 14 Her “objection” is outside the scope of her Cross-Complaint. 15 II. ARGUMENT 16 A. The Cross-Complaint Fails to State a Claim for Breach of Contract 17 The “objection” seeks to plead a cause of action for breach of contract through a stream of 18 consciousness that appears nowhere in the Cross-Complaint. (Opp., 5:11-7:21.) However, 19 although difficult to parse, this stream of allegations does not establish any claims for breach of 20 contract. 21 Strangely, the “objection” avers that “[t]here is no contractual agreement made by either 22 WELLS FARGO BANK, N.A. (“Wells Fargo”), or WELLS FARGO CARD SERVICES to 23 consummate this union.” (Opp., 5:23-24.) If there is no contract formation, how could there have 24 been any breach? The only purported contractual term cited in the “objection” is the text 25 “SECURED CARD COLLATERAL ACCOUNT INFORMATION; ‘REMINDER: YOUR 26 CARD IS PROTECTED BY YOUR SECURED CARD COLLATERAL ACCOUNT. AS PART 27 OF THAT PROTECTION YOU AGREE TO ‘THE BANK’S RIGHT TO SET OFF’ CLAUSE 28 PRINTED IN THE TERMS APPLICABLE TO SECURED CARD COLLATERAL ACCOUNT 07685.2950/16409731.1 -2- REPLY 1 MAILED TO YOU AT ACCOUNT OPENING AND ALSO PRINTED ON THE BACK OF 2 THIS CREDIT CARD STATEMENT.” (Opp., 5:12-18.) But it is entirely unclear where this 3 language comes from or in what way Lewis is alleging that this term was allegedly violated. 4 The remaining verbiage in the “objection” is unintelligible as drafted, appearing to 5 reference definitions for “debt collectors” and “debt buyers,” and appears to, without coherent 6 explanation, claim that Lewis does not owe any debt to Wells Fargo, and that she never received 7 any funds. Once again, these unintelligible claims are not part of the Cross-Complaint, and even 8 assuming arguendo that they were, state no claim for breach of contract. 9 B. There is No Claim for Breach of Fiduciary Duty 10 The “objection” seeks to assert a cause of action for Breach of Fiduciary Duty. (Opp., 11 7:22-8:6.) As an initial matter, the Cross-Complaint includes no cause of action for Breach of 12 Fiduciary duty, so such reference is irrelevant. Even it were in the Cross-Complaint, such claim 13 would fail as a matter of law. Lewis cannot allege a fiduciary duty on the part of Wells Fargo 14 because Wells Fargo is Lewis’s former credit card provider. A fiduciary relationship is a “relation 15 existing between two parties to a transaction wherein one of the parties to a transaction is in duty 16 bound to act with the utmost good faith for the benefit of the other party.” (Herbert v. Lankershim 17 (1937) 9 Cal.2d 409, 483.) This special relationship “ordinarily arises where a confidence is 18 reposed by one person in the integrity of another, and in such a relation the party in whom the 19 confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can 20 take no advantage from his [or her] acts relating to the interest of the other party without the 21 latter’s knowledge or consent ....” (Id.; see also Barbara A. v. John G. (1983) 145 Cal.App.3d 22 369, 382.) 23 However, “[n]o fiduciary relationship is established merely because ‘... the parties reposed 24 trust and confidence in each other.’ ” (Girard v. Delta Tower Joint Ventures (1993) 25 20 Cal.App.4th 1741, 1749 (citation omitted).) Rather, “[b]efore a person can be charged with a 26 fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of 27 another, or must enter into a relationship which imposes that undertaking as a matter of law.” 28 (City of Hope Nat’l Med. Ctr. v. Genentech, Inc. (2008) 43 Cal.4th 375, 385 (citations omitted).) 07685.2950/16409731.1 -3- REPLY 1 For example, “recognized legal relationship[s] such as guardian and ward, trustee and beneficiary, 2 principal and agent, or attorney and client …” are fiduciary in nature. (Richelle L. v. Roman 3 Catholic Archbishop of California (2003) 106 Cal.App.4th 257, 271.) 4 California courts have consistently refused to extend the “‘special relationship’ doctrine to 5 include ordinary commercial contractual relationships …” (Girard, supra, 20 Cal.App.4th at 1749 6 (citations omitted)) or to debtor-creditor relationships in particular. “The relationship between a 7 lending institution and its borrower-client is not fiduciary in nature.” (Nymark v. Heart Fed. 8 Sav. & Loan Ass’n (1991) 231 Cal.App.3d 1089, 1093 n.1.) “[B]etween a bank and its loan 9 customers” there is no fiduciary relationship. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 10 465, 476; see also Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 981 (same).) “A debt is not 11 a trust and there is not a fiduciary duty relation between debtor and creditor as such.” (Downey v. 12 Humphreys (1951) 102 Cal.App.2d 323, 332.) 13 C. There is No Cause of Action for Violation of the Truth in Lending Act 14 The “objection” seeks to assert a cause of action for Violation of the Truth in Lending Act. 15 (Opp., 8:8-10:7.) As an initial matter, the Cross-Complaint includes no cause of action for 16 Violation of the Truth in Lending Act, so such reference is irrelevant. Even it were in the Cross- 17 Complaint, such claim would fail as a matter of law, as any claim for rescission under TILA is 18 necessarily time-barred. TILA provides that the borrower may rescind certain types of loans if the 19 lender fails to deliver certain forms or to disclose certain terms. (15 U.S.C. § 1635.) A borrower 20 initially has three days following the consummation of the transaction or the delivery of the 21 disclosure forms required under section 1635 to notify the creditor of his intent to rescind. (15 22 U.S.C. § 1635(a).) However, if the creditor either fails to provide notice of the borrower’s right of 23 rescission, or fails to make a material disclosure—the three-day period is extended to three years. 24 (Miguel v. Country Funding Corp. (9th Cir. 2002) 309 F.3d 1161, 1163 (citing 15 U.S.C. § 25 1635(f)); 12 C.F.R. § 226.23(a)(3).) In Beach v. Ocwen Federal Bank, 523 U.S. 410 (1998), the 26 Supreme Court held that “section 1635(f) completely extinguishes the right of rescission at the end 27 of the 3 year period.” The Court stated, “[w]e respect Congress’s manifest intent by concluding 28 that the Act permits no federal right to rescind, defensively or otherwise, after the 3–year period of 07685.2950/16409731.1 -4- REPLY 1 § 1635(f) has run.” (Id. at 419.) The Ninth Circuit has similarly held that section 1635(f) 2 represents an “absolute limitation on rescission actions” which bars any claims filed more than 3 three years after the consummation of the transaction. (King v. California (9th Cir. 1986) 784 4 F.2d 910, 913 .) “Therefore, § 1635(f) is a statute of repose, depriving the courts of subject matter 5 jurisdiction when a § 1635 claim is brought outside the three-year limitation period.” (Miguel, 6 309 F.3d at 1164.) Thus, any right Lewis may have had to rescind the credit card account expired, 7 at the latest, three years after she obtained the credit card account in 2012. Because this lawsuit 8 was not filed until 2023, any claim for rescission under TILA is untimely. 9 Similarly, a TILA damages claim is subject to 15 U.S.C. § 1640(e), which provides that an 10 action for a TILA violation must proceed “within one year from the date of the occurrence of the 11 violation.” “TILA requires that any claim based on an alleged failure to make material disclosures 12 be brought within one year from the date of the occurrence of the violation.” (Hallas v. 13 Ameriquest Mortg. Co. (D. Or. 2005) 406 F.Supp.2d 1176, 1183.) Once again, the limitations 14 period runs from the date of a transaction’s consummation, which is the time that a consumer 15 becomes contractually obligated on a credit transaction. (Monaco v. Bear Stearns Residential 16 Mortgage Corp. (C.D. Cal. 2008) 554 F.Supp.2d 1034, 1039.) Again, Lewis obtained the credit 17 card account in 2012. However, Lewis did not file her Cross-Complaint until 2023, rendering it 18 untimely. 19 Notably, equitable tolling cannot salvage Lewis’s claim. “Equitable tolling is generally 20 applied in situations where the claimant has actively pursued his judicial remedy by filing a 21 defective pleading during the statutory period, or where the complainant has been induced or 22 tricked by his adversary’s misconduct into allowing the filing deadline to pass.” (O’Donnell v. 23 Vencor, Inc. (9th Cir. 2006) 465 F. 3d 1063, 1068 (internal quotations omitted).) Dismissal is 24 appropriate where, as here, a plaintiff “fails to allege facts demonstrating that he could not have 25 discovered the alleged violations by exercising reasonable diligence.” (Rosenfeld v. JPMorgan 26 Chase Bank, N.A. (N.D. Cal. 2010) 2010 WL 3155808, *8-9 (dismissing TILA damages claim 27 where the plaintiff’s allegations were insufficient to establish reasonable diligence) (citing Meyer 28 v. Ameriquest Mortgage Company (9th Cir. 2003) 342 F.3d 899, 902-903.) 07685.2950/16409731.1 -5- REPLY 1 D. The Cross-Complaint Fails to State a Claim for Common Counts 2 The “objection makes no attempt to defend the causes of action for common counts. Thus, 3 Lewis concedes she has failed to state a cause of action for Common Counts. 4 E. The Cross-Complaint Fails to State a Claim for Fraud 5 The “objection makes no attempt to defend the causes of action for Fraud. Thus, Lewis 6 concedes she has failed to state a cause of action for Fraud. 7 III. CONCLUSION 8 For the foregoing reasons, Lewis’s Cross-Complaint fails to state any claim and should be 9 dismissed. 10 DATED: March 14, 2023 SEVERSON & WERSON A Professional Corporation 11 12 By: 13 JASON M. JULIAN 14 Attorneys for Cross-Defendant WELLS FARGO BANK, N.A. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 07685.2950/16409731.1 -6- REPLY 1 PROOF OF SERVICE 2 Wells Fargo Bank, N.A. v Jami J. Lewis San Joaquin County Superior Court Case No. STK-CV-LCCR-2022-0011210 3 At the time of service, I was over 18 years of age and not a party to this action. I am 4 employed in the County of San Francisco, State of California. My business address is 595 Market Street, Suite 2600, San Francisco, CA 94105. 5 On March 15, 2023, I served true copies of the following document(s): 6 CROSS-DEFENDANT WELLS FARGO BANK, N.A.’S REPLY IN 7 SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS 8 on the interested parties in this action as follows: 9 Jami J. Lewis Plaintiff 119 E. Rose Street 10 Stockton, CA 95202 11 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and 12 mailing, following our ordinary business practices. I am readily familiar with Severson & Werson's practice for collecting and processing correspondence for mailing. On the same day that 13 correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. 14 I declare under penalty of perjury under the laws of the State of California that the 15 foregoing is true and correct. 16 Executed on March 15, 2023, at San Francisco, California. 17 18 19 Angela C Johnson 20 21 22 23 24 25 26 27 28 07685.2950/16413272.1