An action upon a contract, obligation or liability not founded upon an instrument of writing”); Zecos v. Nicholas-Applegate Capital Management 42 Fed. App’x. 31, 31 (9th Cir.2002). Thus, St. Paul must have commenced its claim within two years after the alleged cause of action accrued to avoid being time barred by Cal. Code Civ. Pro. § 339. A cause of action for a breach of an oral contract accrues at the time of the breach when the party charged with the duty to perform under the contract fails to perform.

See Roots Ready Made Garments v. Gap Inc., No. C 07-03363 CRB, 2007 WL 3045999, at *5 (N.D. Cal. Oct. 18, 2007) (citing Cal. Civ. Proc. Code § 339(1); Barton v. New United Motor Mfg., Inc., 43 Cal. App. 4th 1200, 1206 (1996)). The statute of limitations for quasi- contract claims “begins to run immediately upon performance of the service at issue.”

See Roots Ready Made Garments v. Gap Inc., No. C 07-03363 CRB, 2007 WL 3045999, at *5 (N.D. Cal. Oct. 18, 2007) (citing Cal. Civ. Proc. Code § 339(1); Barton v. New United Motor Mfg., Inc., 43 Cal. App. 4th 1200, 1206 (1996)). The statute of limitations for quasi- contract claims “begins to run immediately upon performance of the service at issue.”

Plaintiff’s Breach of Confidence claim is governed by a two-year statute of limitations. See Cal. Civ. Proc. Code § 339(1) (limitations period for an obligation “not founded upon an instrument of writing” is two years). This is premised on the same conduct alleged in connection Plaintiff’s breach of the Second Contract claim: that Rickard and Ou used Plaintiff’s Work in connection with Midnight Sun.

Case 2:16-cv-08027-DMG-JPR Document 20 Filed 01/27/17 Page 16 of 33 Page ID #:94 DEFENDANT’S MOTION TO DISMISS, OR ALTERNATIVELY, TO TRANSFER -9- Case No. 2:16-cv-08027-DMG (JPRx) 4825-5456-2624.9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 applicable limitations period is two years. Cal. Code Civ. Proc. § 339(1). 2.

Cal. Civ. Proc. Code § 339; Thomas v. Canyon, 198 Cal. App. 4th 594, 606 (2011); see also Schutte & Koerting, Inc. v. Swett & Crawford, 298 Fed. App’x 613, 614 (9th Cir. 2008) (“[T]he district court properly held that the ‘gravaman’ of S & K’s claims was for professional negligence subject to a two-year statute of limitations period under Cal. Code Civ. Proc. § 339.”).

Plaintiff filed the Complaint on October 24, 2014. The statute of limitations for each of Plaintiff’s causes of action is as follows: 1. Breach of Contract: 4 years written & 2 years oral – Cal. Civ. Proc. Code §§ 337, 339; 2. Breach of the Covenant of Good Faith and Fair Dealing: same as breach of contract; 3. Wrongful Foreclosure: 3 years, as this claims sounds in fraud (misrepresentations from Chase) – Cal. Civ. Proc. Code § 338; 4. Intentional Misrepresentation: 3 years – Cal. Civ. Proc. Code § 338; 5. Negligent Misrepresentation: 2 years – Cal. Civ. Proc. Code § 339 (Ventura Cnty. Nat. Bank v. Macker, 49 Cal. App. 4th 1528, 1531, 57 Cal. Rptr. 2d 418, 420 (1996)); 6. Unfair Business Practices: 4 years - Civ. Code Section 17208; 7. Violation of Civ. Code 2923, 2924 et. al: 3 years - statutory violations Cal. Civ. Proc. Code § 338; and 8. Negligence: 2 years – Cal. Civ. Proc. Code § 339. Because none of these claims has a statute of limitations beyond four years, they are untimely, and Plaintiff’s Complaint should be dismissed with prejudice.

As such, Defendant’s earlier argument that under Cal Code Civ. Proc. §339, the statute of limitations is 2 years is simply incorrect. The basis for the Cause of Action is on the written promises inherent in the TPP, and therefore, the statute of limitations is four years.

Accordingly, Plaintiffs have not pled the existence of an enforceable contract, and Plaintiffs’ breach of contract claim fails.5 5 To the extent that Plaintiffs’ breach of contract claim relies on the alleged oral representations made by Chase during the loan modification discussions, that claim is time-barred. See CAL. CODE CIV. PROC. § 339 (a claim for breach of an oral contract must be brought within two years of the date of the alleged breach). Case 2:14-cv-00328-KJM-KJN Document 5 Filed 02/07/14 Page 15 of 20 - 10 - KYL_SF627660 DEFENDANT JPMORGAN CHASE BANK, N.A.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E. PLAINTIFFS’ CLAIM FOR “UNLAWFUL BUSINESS PRACTICES IN VIOLATION OF BUS. & PROF. CODE § 17200, ET SEQ.” FAILS.

See Hensler v. City of Glendale, 8 Cal. 4th 1, 22 (1994). These tag-along claims concerning intangible property rights are subject to Cal. Civ. Proc. Code § 339’s two-year statute of limitations. See, e.g., Alberghetti, 713 F. Supp. 2d at 983-84; Karls v. Wachovia Trust Co., 2010 WL 4233047, at *6 (Cal. App. Oct. 27, 2010) (unpublished); Italiani v. Metro- Goldwtn-Mayer Corp., 45 Cal. App. 2d 464, 466-67 (Cal. App. 1941).