Krouse, et al v. BAC Home Loans Servicing, et al
Filing
19
MEMORANDUM AND ORDER signed by Judge Morrison C. England, Jr on 6/9/11 GRANTING with leave to amend 10 Motion to Dismiss Plaintiffs' First Amended Complaint. Amended complaint may be filed not later than 20 days after the date this Memorandum and Order is filed electronically. If no amended complaint is filed within said 20 day period, without further notice, Plaintiffs claims will be dismissed without leave to amend. (Meuleman, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RUSTY KROUSE and
BRENNA KROUSE,
No. 2:10-cv-03309-MCE-EFB
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Plaintiffs,
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v.
MEMORANDUM AND ORDER
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BAC HOME LOANS SERVICING, LP;
BANK OF AMERICA N.A.; and DOES
1 through 10, inclusive,
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Defendants.
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----oo0oo----
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Through this action, Plaintiffs Rusty Krouse and Brenna
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Krouse (“Plaintiffs”) seek redress from Defendants BAC Home Loans
21
Servicing, LP and Bank of America, N.A. (“Defendants”) based on
22
alleged breaches of contract and the covenant of good faith and
23
fair dealing, as well as promissory estoppel.
24
seek redress from Defendants based on alleged violations of the
25
Rosenthal Fair Debt Collection Practices Act (“RFDCPA”),
26
California Civil Code section 2923.5, the California Business &
27
Professions Code section 17200, and the Truth in Lending Act
28
(“TILA”).
1
Plaintiffs also
1
Presently before the Court is Defendants’ Motion to Dismiss
2
Plaintiffs’ Complaint for failure to state a claim upon which
3
relief may be granted, pursuant to Federal Rule of Civil
4
Procedure 12(b)(6).1
5
February 18, 2011.
6
Defendants’ Motion on April 21, 2011.
7
below, Defendants’ Motion to Dismiss is granted.
Defendants’ Motion was filed on
Plaintiffs filed a timely opposition to
For the reasons set forth
8
BACKGROUND2
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This action arises from Defendants’ alleged failure to
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modify Plaintiffs’ residential mortgage.
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December 17, 2007, Plaintiffs obtained a loan from Defendants.
14
Plaintiffs allege that, at the time of obtaining the loan, they
15
did not receive the required disclosures, including the notice of
16
the right to cancel, in violation of TILA.
17
On or about
In August 2009, Plaintiffs applied for a loan modification.
18
At that time, Plaintiffs provided documentation showing that they
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initially qualified for such a loan modification.
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offered Plaintiffs a trial period plan, under which Plaintiffs
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were to make reduced loan payments for three months while being
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evaluated by Defendants for a permanent loan modification.
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///
Defendants
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25
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1
All further references to “Rule” or “Rules” are to the
Federal Rules of Civil Procedure unless otherwise noted.
2
27
28
The factual assertions in this section are based on the
allegations in Plaintiffs’ First Amended Complaint unless
otherwise specified. (See Pls.’ First Am. Compl., Feb. 4, 2011,
ECF No. 8.)
2
1
Plaintiffs made these reduced payments for the months of
2
September, October and November of 2009.
3
three-month trial period, Defendants informed Plaintiffs that the
4
modification agreement was not yet finalized, and instructed
5
Plaintiffs to continue making trial period payments.
6
made eight more loan payments.
At the end of this
Plaintiffs
7
On April 3, 2010, Plaintiffs received a letter from
8
Defendant Bank of America informing them that Plaintiffs
9
qualified for a permanent modification.
However, on June 25,
10
2010, Plaintiffs received a letter from Defendant Bank of America
11
stating that Plaintiffs did not qualify for a permanent loan
12
modification.
13
From the time that the trial period plan began, Defendants
14
made false representations and used deceptive means to collect
15
debt from Plaintiffs.
16
Plaintiffs of their options and other rights prior to filing a
17
Notice of Default.
18
Defendants that they were exercising their right to rescind the
19
loan pursuant to TILA § 1635.
Additionally, Defendants failed to inform
On November 23, 2010, Plaintiffs notified
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STANDARD
21
22
23
On a motion to dismiss for failure to state a claim under
24
Rule 12(b)(6), all allegations of material fact must be accepted
25
as true and construed in the light most favorable to the
26
nonmoving party.
27
336,337-38 (9th Cir. 1996).
28
///
Cahill v. Liberty Mut. Ins. Co., 80 F.3d
3
1
Rule 8(a)(2) requires only “a short and plain statement of the
2
claim showing that the pleader is entitled to relief” in order to
3
“give the defendant fair notice of what the [...] claim is and
4
the grounds upon which it rests.”
5
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,
6
47 (1957)).
7
dismiss does not require detailed factual allegations.
8
“a plaintiff’s obligation to provide the grounds of his
9
entitlement to relief requires more than labels and conclusions,
10
and a formulaic recitation of the elements of a cause of action
11
will not do.”
12
A court is not required to accept as true a “legal conclusion
13
couched as a factual allegation.”
14
1937, 1950 (2009) (quoting Twombly, 550 U.S. at 555).
15
allegations must be enough to raise a right to relief above the
16
speculative level.”
17
Alan Wright & Arthur R. Miller, Federal Practice and Procedure
18
§ 1216 (3d ed. 2004) (stating that the pleading must contain
19
something more than “a statement of facts that merely creates a
20
suspicion [of] a legally cognizable right of action.”)).
21
Bell Atl. Corp. v. Twombly,
A complaint attacked by a Rule 12(b)(6) motion to
However,
Id. (internal citations and quotations omitted).
Ashcroft v. Iqbal, 129 S. Ct.
“Factual
Twombly, 550 U.S. at 555 (citing 5 Charles
Furthermore, “Rule 8(a)(2)...requires a showing, rather than
22
a blanket assertion, of entitlement to relief.”
23
550 U.S. at 556 n.3 (internal citations and quotations omitted).
24
Thus, “[w]ithout some factual allegation in the complaint, it is
25
hard to see how a claimant could satisfy the requirements of
26
providing not only ‘fair notice’ of the nature of the claim, but
27
also ‘grounds’ on which the claim rests.”
28
Alan Wright & Arthur R. Miller, supra, at § 1202).
4
Twombly,
Id. (citing 5 Charles
1
A pleading must contain “only enough facts to state a claim to
2
relief that is plausible on its face.”
3
“plaintiffs...have not nudged their claims across the line from
4
conceivable to plausible, their complaint must be dismissed.”
5
Id.
6
strikes a savvy judge that actual proof of those facts is
7
improbable, and ‘that a recovery is very remote and unlikely.’”
8
Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
9
Id. at 570.
If the
However, “[a] well-pleaded complaint may proceed even if it
A court granting a motion to dismiss a complaint must then
10
decide whether to grant leave to amend.
Leave to amend should be
11
“freely given” where there is no “undue delay, bad faith or
12
dilatory motive on the part of the movant,...undue prejudice to
13
the opposing party by virtue of allowance of the amendment, [or]
14
futility of the amendment....”
15
(1962); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,
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1052 (9th Cir. 2003) (listing the Foman factors as those to be
17
considered when deciding whether to grant leave to amend).
18
Not all of these factors merit equal weight.
19
consideration of prejudice to the opposing party...carries the
20
greatest weight.”
21
833 F.2d 183, 185 (9th Cir. 1987).
22
amend is proper only if it is clear that “the complaint could not
23
be saved by any amendment.”
24
Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou
25
Sys., Inc., 411 F.3d 1006, 1013 (9th Cir. 2005); Ascon Props.,
26
Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)
27
(“Leave need not be granted where the amendment of the
28
complaint...constitutes an exercise in futility....”)).
Foman v. Davis, 371 U.S. 178, 182
Rather, “the
Id. (citing DCD Programs, Ltd. v. Leighton,
Dismissal without leave to
Intri-Plex Techs. v. Crest Group,
5
ANALYSIS
1
2
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Plaintiffs allege violations of state and federal law and
4
request relief accordingly.
The issue before the Court is not
5
the substance of these various claims, but whether Plaintiffs
6
have plead sufficient facts as a general matter.
7
complaint does not need detailed factual allegations, it must
8
still provide sufficient facts alleged under a cognizable legal
9
theory. See supra.
While the
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A.
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Breach of Contract
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Plaintiffs assert breach of contract as their first cause of
14
action.
Under California law, plaintiffs bringing an action for
15
breach of contract must plead facts sufficient to establish the
16
following elements: (1) the existence of a contract; (2) the
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plaintiff’s performance or excuse for nonperformance of the
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contract; (3) the defendant’s breach of the contract; and
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(4) resulting damages.
20
& Gas Co., 116 Cal. App. 4th 1375, 1391 n.6 (2004).
21
under California law, a breach of contract claim is subject to
22
demurrer when, “[i]n an action founded upon a contract, it cannot
23
be ascertained from the pleading whether the contract is written,
24
is oral, or is implied by conduct.”
25
§ 430.10 (West 2011).
26
///
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///
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///
Armstrong Petrol. Corp. v. Tri Valley Oil
6
Furthermore,
Cal. Civ. Proc. Code
1
In the instant case, Plaintiffs allege that Defendants
2
entered into a written or oral contract to honor the terms of the
3
trial period plan, and that Defendants’ later denial of a loan
4
modification is a breach of that contract.
5
Compl. 17:22-28, ECF No. 8.)
6
the nature of their loan modification contract with Defendants.
7
Instead, Plaintiffs assert that they entered into “written or
8
oral” contracts with Defendants.
9
facts in the light most favorable to Plaintiffs, the Court is
(Pls.’ First Am.
However, Plaintiffs fail to specify
(Id. at 17:22.)
Taking these
10
unable to determine whether the contract is written or is oral,
11
or whether a contract existed between the parties at all.
12
Accordingly, the Court lacks sufficient information to determine
13
whether a claim can be sustained as the case is currently stated.
14
Defendants’ Motion to Dismiss Plaintiffs’ breach of contract
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claim is therefore granted.
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B.
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Breach of the Covenant of Good Faith and Fair Dealing
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Plaintiffs assert a breach of the covenant of good faith and
20
fair dealing as their second cause of action.
Under common law,
21
a covenant of good faith and fair dealing is implied in every
22
contract.
23
23 Cal. 4th 390, 400 (2000).
24
“does not extend beyond the terms of the contract at issue.”
25
Poway Royal Mobilehome Owners Ass’n v. City of Poway, 149 Cal.
26
App. 4th 1089, 1094 (2004).
27
///
28
///
Kransco v. Am. Empire Surplus Lines Ins. Co.,
However, this implied covenant
7
1
The covenant of good faith and fair dealing will not be implied
2
where there is no existing contract between the parties.
3
& Laramie, Ltd. v. Dept. of Parks & Recreation, 11 Cal. App. 4th
4
1026, 1032 (1992).
5
Racine
Plaintiffs assert that Defendants entered into a written or
6
oral contract to honor the terms of the trial period plan, and
7
that the later denial of the loan modification is a breach of the
8
duty of good faith and fair dealing.
9
19:1-16, ECF No. 8.)
(Pls.’ First Am. Compl.
However, as set forth above in the analysis
10
of Plaintiffs’ breach of contract claim, Plaintiffs have failed
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to allege facts sufficient for the Court to ascertain what type
12
of contract, if any, existed between the parties.
13
Without facts sufficient to establish the existence of a
14
contract, Plaintiffs’ claim for a breach of the covenant of good
15
faith and fair dealing must fail.
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Motion to Dismiss this claim is granted.
See supra.
Accordingly, Defendants’
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C.
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Promissory Estoppel
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Plaintiffs argue that Defendants’ representations regarding
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the loan modification were intended to induce Plaintiffs to rely
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on those representations and make monthly modification payments.
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Plaintiffs therefore assert promissory estoppel as their third
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cause of action.
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action for promissory estoppel must demonstrate:
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///
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///
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///
Under California law, a plaintiff bringing an
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1
(1) the existence of a promise “clear and unambiguous in its
2
terms;” (2) “reliance by the party to whom the promise is made;”
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(3) that any reliance was both “reasonable and foreseeable;” and
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(4) that the party asserting the estoppel was injured by his
5
reliance.
6
(2005) (citing Laks v. Coast Fed. Sav. & Loan Ass’n., 60 Cal.
7
App. 3d 885, 890 (1976)).
US Ecology, Inc. v. State, 129 Cal. App. 4th 887, 901
8
Plaintiffs argue that Defendants’ representations regarding
9
the loan modification were intended to induce Plaintiffs to rely
10
on those representations and make monthly modification payments.
11
Plaintiffs’ First Amended Complaint states only that Plaintiffs
12
entered into a “written or oral” loan modification contract with
13
Defendants, and that Defendant Bank of America “made a
14
representation to Plaintiffs that if they agreed to the terms of
15
the TPP proposal...[Plaintiffs] would receive a permanent...
16
[loan] modification.”
17
No. 8.)
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Plaintiffs, Plaintiffs have failed to plead facts sufficient to
19
demonstrate the existence of a promise made by Defendants that is
20
“clear and unambiguous in its terms.”
21
App. 4th at 901.
22
Plaintiffs’ promissory estoppel claim is granted.
(Pls.’ First Am. Compl. 17:22, 20:3-6, ECF
Viewing these facts in the light most favorable to
US Ecology, Inc., 129 Cal.
Accordingly, Defendants’ motion to dismiss
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D.
Violation of the Rosenthal Fair Debt Collection
Practices Act
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As their fourth cause of action, Plaintiffs allege that
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Defendants made false representations and used deceptive means to
28
collect debt from Plaintiffs, in violation of the RFDCPA.
9
1
The RFDCPA regulates debt collectors, and defines a debt
2
collector as “any person who...engages in debt collection.”
3
Civ. Code § 1788.1, .2(c) (West 2011).
4
“prohibit debt collectors from engaging in unfair or deceptive
5
acts or practices in the collection of consumer debts and to
6
require debtors to act fairly in entering into and honoring such
7
debts....”
8
created to protect consumers from debt collection practices for
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“consumer debts.”
Id. § 1788.1.
Id.
Cal.
The RFDCPA was created to
More specifically, the RFDCPA was
Under the Act, debt collectors may not
10
collect or attempt to collect debt in a harassing or threatening
11
manner.
12
not a collection of a debt within the meaning of the RFDCPA, and
13
this Court does not recognize it as such.
14
Loans Serv. LP, No. 10-CV-03057-FCD/GGH, 2011 WL 127891, at *9
15
(E.D. Cal. Jan. 14, 2011) (citing numerous other cases
16
corroborating this view); Morgera v. Countrywide Home Loans,
17
No. 2:09-cv-01476-MCE-GGH, 2010 WL 160348, at *3 (E.D. Cal.
18
Jan. 11, 2010) (“California courts have declined to regard a
19
residential mortgage loan as a ‘debt’ under the RFDCPA.”).
20
Id. § 1788.10-.12, .14-.16.
A mortgage transaction is
Grill v. BAC Home
In the present case, Plaintiffs allege that Defendants are
21
“debt collectors” within the meaning of the RFDCPA, and that the
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“monies allegedly owed by Plaintiffs are ‘debts’ within the
23
meaning of [the Act].”
24
No. 8.)
25
established case law of this court.
26
///
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///
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///
(Pls.’ First Am. Compl. 20:27-28, ECF
This assertion is clearly contradictory to the
10
1
Plaintiffs have thus failed to demonstrate that they are entitled
2
to bring a claim for violation of the RFDCPA, and analysis of
3
this cause of action under Rule 12(b)(6) is unnecessary.
4
Accordingly, Defendants’ Motion to Dismiss Plaintiffs’ RFDCPA
5
claim is granted.
6
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E.
Violation of California Civil Code Section 2923.5
8
9
Plaintiffs’ fifth cause of action alleges that Defendants
10
violated California Civil Code section 2923.5 by failing to
11
inform Plaintiffs of their options and other rights prior to
12
filing a Notice of Default.
13
mortgagees, trustees, beneficiaries and authorized agents that
14
seek non-judicial foreclosure of loans to make diligent efforts
15
to “contact the borrower . . . in order to assess the borrower's
16
financial situation and explore options for the borrower to avoid
17
foreclosure.”
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further requires that applicable notices of default include a
19
declaration that “the mortgagee, beneficiary, or authorized agent
20
has contacted the borrower, has tried with due diligence to
21
contact the borrower as required by this section, or that no
22
contact was required pursuant to subdivision (h).”
23
§ 2923.5(b).
24
Section 2923.5 requires all
Cal. Civ. Code § 2923.5(a) (West 2011).
The law
Id.
While the statute does give rise to a right of action, no
25
party has rights under this statute until a notice of default has
26
been filed.
27
mortgages or deeds of trust recorded from January 1, 2003, to
28
December 31, 2007, inclusive . . . .”
See id.
Furthermore, this statute applies only to
11
Id. § 2923.5(I).
1
In the present case, Plaintiffs never alleged in their
2
Amended Complaint that a notice of default was filed.
3
Additionally, Plaintiffs failed to allege that their mortgage was
4
recorded by the statutory deadline of December 31, 2007.
5
these factual allegations, section 2923.5 is inapplicable to
6
Plaintiffs’ case.
7
Plaintiffs’ section 2923.5 claim is granted.
Without
As such, Defendants’ Motion to Dismiss
8
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F.
Violation of California Business & Professions Code
Section 17200
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Plaintiffs’ sixth cause of action alleges that the
12
Defendants violated California Business & Professions Code
13
§ 17200 by engaging in unlawful, unfair and fraudulent business
14
practices.
15
Competition Law, defines “unfair competition” as “any unlawful,
16
unfair or fraudulent business act or practice.”
17
Prof. Code § 17200 (West 2011).
18
private right of action to remedy such unfair competition.
19
See Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1082
20
(9th Cir. 2007).
21
Section 17200, more commonly known as the Unfair
Cal. Bus. &
This section establishes a
Section 17200 establishes three separate varieties of unfair
22
competition: acts or practices which are unlawful, or unfair, or
23
fraudulent.
24
20 Cal. 4th 163, 180 (1999).
25
practices, section 17200 ‘borrows’ violations of other laws and
26
treats them as unlawful practices that [section 17200] makes
27
independently actionable.”
28
108 Cal. App. 4th 1350, 1361 (2010).
Cal-Tech Commc’ns., Inc. v. L.A. Cellular Tel. Co.,
In proscribing “unlawful business
Durrell v. Sharp Healthcare,
12
1
Any business practice which violates federal, state or local law
2
is an unlawful business practice under the terms of section
3
17200.
4
Id.
A claim for fraudulent business acts under section 17200 is
5
distinct from a common law fraud claim.
6
plaintiff does not need to show reliance in order to state a
7
claim for fraudulent business acts.
8
59 Cal. App. 4th 965, 970 (1997).
9
that the public is likely to be deceived by the alleged business
Klein v. Earth Elements,
A plaintiff need only allege
10
acts.
11
practices under section 17200 are subject to the heightened
12
pleading standard of Rule 9(b).
13
“alleging fraud or mistake, a party must state with particularity
14
the circumstances constituting fraud or mistake.”
15
Circuit has held that “to avoid dismissal for inadequacy under
16
Rule 9(b), [the] complaint would need to state the time, place,
17
and specific content of the false representations as well as the
18
identities of the parties to the misrepresentation.”
19
Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004) (quoting
20
Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392 (9th
21
Cir. 1989)).
22
Id.
Under section 17200, a
However, all claims alleging fraudulent business
Rule 9(b) requires that when
The Ninth
Edwards v.
Finally, an unfair business practice under section 17200 is
23
one that “either offends an established public policy or is
24
immoral, unethical, oppressive, unscrupulous or substantially
25
injurious to consumers.”
26
498, 506 (2008) (citing People v. Casa Blanca Convalescent Homes,
27
Inc., 159 Cal. App. 3d 509, 530 (1984)).
28
///
McDonald v. Coldwell Banker, 543 F.3d
13
1
Such a claim requires a plaintiff to tether its allegation to a
2
constitutional or statutory provision or regulation carrying out
3
such a statutory policy.
4
cv-01455-LHK, 2010 WL 3910169, at *11-13 (N.D. Cal. Oct. 5, 2010)
5
(citing Lozano v. AT&T Wireless Servs., 504 F.3d 718 (9th Cir.
6
2007))(discussing the use of the tethering test in California
7
courts and the Ninth Circuit).3
8
See Ferrington v. McAfee, Inc., No. 10-
In this case, Plaintiffs allege that Defendants engaged in
9
business practices that were unfair, unlawful and fraudulent.
10
However, Plaintiffs’ pleadings are insufficient to establish a
11
cause of action for any of the three varieties of unfair
12
competition. First, Plaintiffs have failed to plead facts
13
sufficient to establish that Defendants have violated any law and
14
thus engaged in unlawful business acts.
15
Plaintiffs have failed to plead facts sufficient to establish a
16
right to relief based on “unfair” business practices, as
17
Plaintiffs have neither alleged that Defendants’ actions violated
18
a public policy, nor have Plaintiffs tethered their claim of
19
unfairness to a constitutional or statutory provision or
20
regulation carrying out such a statutory policy.
21
///
See supra.
Furthermore,
22
23
24
25
26
27
28
3
The California Supreme Court has held that a tethering
test applies in actions brought by a business competitor
challenging anti-competitive practices. Cel-Tech Comms. v. L.A.
Cellular Tel. Co., 20 Cal. 4th 163, 185 (1999). California
courts are currently divided on whether a balancing test or a
tethering test applies in consumer actions alleging “unfair”
business acts. Cf. McKell v. Wash. Mut., Inc., 142 Cal. App. 4th
1457, 1473 (2006)(applying balancing test) with Scripps Clinic v.
Super. Ct., 108 Cal. App. 4th 917, 940 (2003). The Ninth Circuit
has approved the use of either a balancing test or a tethering
test in such actions. Lozano, 504 F.3d at 736.
14
1
Finally, Plaintiffs have not met the heightened pleading
2
requirements of Rule 9(b), as they make only vague statements
3
that Defendants have “made and continue[] to make
4
misrepresentations and omissions of material fact....” regarding
5
Plaintiffs’ loan modifications and loan payments.
6
Am. Compl. 23:17-22, ECF No. 8.)
7
little more than a “formulaic recitation of the elements of [the]
8
cause of action,” and are therefore insufficient to “raise a
9
right to relief above the speculative level.”
10
at 555.
11
(Pls.’ First
Plaintiffs’ pleadings are
Twombly, 550 U.S.
Accordingly, Defendants’ Motion to Dismiss Plaintiffs’
section 17200 claim is granted.
12
G.
13
Violation of TILA
14
15
Plaintiffs’ seventh cause of action alleges that Defendants
16
violated the Truth in Lending Act (“TILA”) and Regulation Z, a
17
Federal Reserve regulation implementing TILA.
18
Regulation Z contain specific disclosure requirements that give
19
rise to a cause of action if violated by the creditor.
20
§ 1638(a)-(c) (2006).
21
disclosures to borrowers.
22
Additionally, TILA includes a provision which allows borrowers
23
three business days to rescind, without penalty, a consumer loan
24
that uses their principal dwelling as security.
25
If the lender has not complied with TILA’s disclosure
26
requirements, the rescission period is extended to three years.
27
Id. § 1635(f).
28
///
Both TILA and
15 U.S.C.
TILA requires creditors to make certain
See generally id. §§ 1601-1667f.
15
Id. § 1635(a).
1
Under the statute, creditors must provide a borrower with
2
two notices of the right to rescind the loan agreement within
3
three days of its execution.
4
Section 1635(e) clearly states that this “buyer’s remorse”
5
provision does not apply to a residential mortgage transaction,
6
or a transaction constituting a refinancing or consolidation of
7
the principal balance due.
8
9
12 C.F.R. § 226.15(b) (2011).
15 U.S.C. § 1635(e).
Plaintiffs allege that they did not receive two copies of
the notice of their right to rescind their loan.
(Pls.’ First
10
Am. Compl. 25:2, ECF No. 8.)
However, § 1635(e) clearly
11
eliminates this cause of action in Plaintiffs’ case, as the
12
transaction constitutes a refinancing or consolidation of the
13
principal balance due on their residential mortgage loan.
14
such, analysis under Rule 12(b)(6) is not necessary.
15
of action fails and Defendants’ Motion to Dismiss Plaintiffs’
16
TILA claim should be granted.
As
This cause
17
CONCLUSION
18
19
20
As a matter of law, and for the reasons set forth above,
21
Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint
22
is GRANTED with leave to amend.
23
any bad faith or other malicious conduct, and therefore may file
24
an amended complaint not later than twenty (20) days after the
25
date this Memorandum and Order is filed electronically.
26
///
27
///
28
///
Plaintiffs have not demonstrated
16
1
If no amended complaint is filed within said twenty (20)-day
2
period, without further notice, Plaintiffs’ claims will be
3
dismissed without leave to amend.
4
5
IT IS SO ORDERED.
Dated: June 9, 2011
6
7
8
_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE
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