Jacinto v. Ditech Financial LLC et al, No. 3:2016cv02815 - Document 53 (N.D. Cal. 2016)
Court Description: ORDER GRANTING DEFENDANTS DITECH AND MERS' MOTION TO DISMISS; AFFORDING PLAINTIFF LEAVE TO AMEND; CONTINUING CASE MANAGEMENT CONFERENCE. Should plaintiff wish to file a second amended complaint, plaintiff shall file it no later than November 14, 2016. The case management conference is continued to February 10, 2017. Signed by Judge Maxine M. Chesney on 10/26/16. (mmclc2, COURT STAFF) (Filed on 10/26/2016)
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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 MODESTA JACINTO, Plaintiff, 8 v. 9 10 DITECH FINANCIAL LLC, et al., Defendants. 11 United States District Court Northern District of California Case No. 16-cv-02815-MMC ORDER GRANTING DEFENDANTS DITECH AND MERS’ MOTION TO DISMISS; AFFORDING PLAINTIFF LEAVE TO AMEND; CONTINUING CASE MANAGEMENT CONFERENCE 12 13 Before the Court is the “Motion to Dismiss First Amended Complaint,” filed July 12, 14 2016, by defendants Ditech Financial LLC (“Ditech”) and Mortgage Electronic 15 Registration Systems, Inc.’s (“MERS”) (collectively, “Moving Defendants”).1 Plaintiff 16 Modesta Jacinto has filed opposition, to which Moving Defendants have filed a reply. 17 Having read and considered the papers filed in support of and in opposition to the 18 motions, the Court rules as follows.2 19 BACKGROUND 20 On or about February 17, 2006, plaintiff obtained a loan from Homecomings 21 Financial Network, Inc. (“Homecomings”) in the amount of $275,000; the loan was in the 22 form of a promissory note secured by a deed of trust (“Deed of Trust”) on real property 23 located in Healdsburg, California, which Deed of Trust was recorded in Sonoma County, 24 1 25 26 27 The instant action was removed from state court by Moving Defendants. Before the removal, a third defendant, National Default Servicing Corporation (“NDSC”), filed a “Declaration of Non-Monetary Status” in state court, and consented to removal of the action to federal court. (See Not. Removal Ex. B, Ex. 4.) NDSC has not filed a motion to dismiss or joined in the instant motion. 2 28 By order filed September 16, 2016, the Court took the motion under submission. 1 California. (See First Amended Complaint (“FAC”) ¶¶ 2, 11, 12, 13.) 2 On or about June 14, 2012, defendant MERS, as “nominee” for Homecomings, 3 assigned the Deed of Trust to GMAC Mortgage, LLC (“GMAC”). (See id. ¶¶ 8, 14-15.) 4 On or about May 16, 2013, GMAC assigned the Deed of Trust to Green Tree Servicing 5 LLC, doing business as Ditech Financial LLC. (See id. ¶ 16.) 6 On or about November 9, 2015, defendant NDSC, as trustee for defendant Ditech, 7 recorded in Sonoma County a “Notice of Default and Election to Sell Under Deed of 8 Trust.” (See id. ¶¶ 6, 17.)3 To date, no foreclosure sale has been conducted. (See id. 9 ¶ 85 (seeking order enjoining defendants from conducting foreclosure sale).) Plaintiff alleges the above-referenced assignments were defective, and, based 11 United States District Court Northern District of California 10 thereon, asserts seven Causes of Action, titled, respectively, “Wrongful Foreclosure,” 12 “Violation of Civil Code of Procedure § 2924(a)(6),” “Violation of Civil Code of Procedure 13 § 2924.17,” “Violation of the Covenant of Good Faith and Fair Dealing,” “Violation of 14 California Bus. & Prof. Code Sections 17200 et seq.,” “Declaratory Relief,” and “Equitable 15 Estoppel.” LEGAL STANDARD 16 17 Dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure “can be 18 based on the lack of a cognizable legal theory or the absence of sufficient facts alleged 19 under a cognizable legal theory.” See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 20 699 (9th Cir. 1990). Rule 8(a)(2), however, “requires only ‘a short and plain statement of 21 the claim showing that the pleader is entitled to relief.’” See Bell Atlantic Corp. v. 22 Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). Consequently, “a 23 complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual 24 allegations.” See id. Nonetheless, “a plaintiff’s obligation to provide the grounds of his 25 entitlement to relief requires more than labels and conclusions, and a formulaic recitation 26 3 27 28 The FAC’s initial reference to said date as “November 9, 2016” (see FAC ¶ 17), appears to be a typographical error (see id. ¶¶ 96, 104, 108, 109 (alleging notice was recorded on “November 9, 2015”)). 2 1 of the elements of a cause of action will not do.” See id. (internal quotation, citation, and 2 alteration omitted). 3 In analyzing a motion to dismiss, a district court must accept as true all material 4 allegations in the complaint, and construe them in the light most favorable to the 5 nonmoving party. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). “To 6 survive a motion to dismiss, a complaint must contain sufficient factual material, accepted 7 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 8 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “Factual allegations must be 9 enough to raise a right to relief above the speculative level[.]” Twombly, 550 U.S. at 555. Courts “are not bound to accept as true a legal conclusion couched as a factual 11 United States District Court Northern District of California 10 allegation.” See Iqbal, 556 U.S. at 678 (internal quotation and citation omitted). DISCUSSION 12 First Cause of Action: “Wrongful Foreclosure” 13 A. 14 In the First Cause of Action, plaintiff alleges defendants are attempting to foreclose 15 on her home “without any legal authority or standing to do so” (see FAC ¶ 84) because, 16 according to plaintiff, the assignments of the Deed of Trust from Homecomings to GMAC 17 and from GMAC to Ditech are void (see id. ¶¶ 73-75). 18 At the outset, Moving Defendants, citing, inter alia, Jenkins v. JP Morgan Chase 19 Bank, N.A., 216 Cal. App. 4th 497 (2013), contend plaintiff cannot bring a wrongful 20 foreclosure claim before a foreclosure sale has occurred. See id. at 511 (“California 21 courts have refused to delay the nonjudicial foreclosure process by allowing trustor- 22 debtors to pursue preemptive judicial actions to challenge the right, power, and authority 23 of a foreclosing ‘beneficiary’ or beneficiary’s ‘agent’ to initiate and pursue foreclosure.”). 24 In response, plaintiff cites to a recent decision, Yvanova v. New Century Mortgage 25 Corporation, 62 Cal. 4th 919 (2016), wherein the California Supreme Court held that “a 26 borrower who has suffered a nonjudicial foreclosure does not lack standing to sue for 27 wrongful foreclosure based on an allegedly void assignment merely because he or she 28 was in default on the loan and was not a party to the challenged assignment.” See id. at 3 1 924. The holding in Yvanova, however, was expressly limited to post-foreclosure 2 challenges. See id. (“We do not hold or suggest that a borrower may attempt to preempt 3 a threatened nonjudicial foreclosure by a suit questioning the foreclosing party’s right to 4 proceed.”). Here, no foreclosure sale has occurred, and, consequently, plaintiff’s 5 wrongful foreclosure claim is premature. See, e.g., Jenkins, 216 Cal. App. 4th at 511. 6 Moreover, even if not premature, none of plaintiff’s allegations, as discussed below, sets 7 forth a cognizable ground upon which to challenge a foreclosure sale. 8 Plaintiff alleges her promissory note and Deed of Trust were sold into a securitized 9 trust formed pursuant to New York law (see FAC ¶¶ 18, 19, 77) but that neither document was properly assigned into such trust pursuant to the trust’s governing “Pooling and 11 United States District Court Northern District of California 10 Servicing Agreement” (“PSA”) (see id. ¶¶ 22, 26, 70-71). In particular, plaintiff first 12 alleges that the assignments of the Deed of Trust from Homecomings to GMAC and from 13 GMAC to Ditech are in violation of the PSA because, according to plaintiff, both occurred 14 after the closing date of the trust. (See id. ¶¶ 72-75.) Further, plaintiff alleges, even if the 15 Deed of Trust had been transferred into the securitized trust by its closing date, the 16 promissory note would not have been transferred into such trust in accordance with the 17 PSA, which, according to plaintiff, requires “a complete and unbroken chain of transfers 18 and assignments to and from each intervening party.” (See id. ¶ 76.) 19 In Yvanova, the California Supreme Court held that a borrower may base a 20 wrongful foreclosure action upon “an allegation that the assignment was void, and not 21 merely voidable at the behest of the parties to the assignment.” See Yvanova, 62 Cal. 22 4th at 923. As explained therein, a void contract is “without legal effect” from the start, 23 and “neither action nor inaction of a party to it can validate it,” see id. at 929 (internal 24 quotation and citation omitted), whereas a voidable contract “may be declared void but is 25 not void in itself,” as any defects are “subject to ratification by the parties,” see id. at 930. 26 Citing Glaski v. Bank of America, N.A., 218 Cal. App. 4th 1079 (2013), plaintiff 27 argues the alleged violations of the PSA render the assignments void. In Glaski, the 28 California Court of Appeal, in considering a securitized trust formed under New York law 4 and governed by a PSA that established “a closing date after which the trust may no 2 longer accept loans,” see id. at 1096, held that any “[t]ransfers that violate the terms of 3 the trust instrument are void under New York trust law.” See id. at 1083. Subsequent 4 thereto, however, the Second Circuit, having conducted a thorough review of New York 5 case law, “conclud[ed] that as unauthorized acts of a trustee may be ratified by the trust’s 6 beneficiaries, such acts are not void but voidable,” see Rajamin v. Deutsche Bank Nat. 7 Trust. Co., 757 F.3d 79, 90 (2d Cir. 2014), and a New York appellate court thereafter 8 overturned the trial court decision upon which Glaski had relied, see Wells Fargo Bank, 9 N.A. v. Erobobo, 9 N.Y.S.3d 312, 314 (N.Y. App. Div. 2015) (holding borrower may not 10 bring claim “based upon purported noncompliance with certain provisions of the PSA”). 11 United States District Court Northern District of California 1 More recently, both the Ninth Circuit and the California Court of Appeal have held an act 12 in violation of a trust agreement, such as a PSA, is voidable, not void, under New York 13 law. See Morgan v. Aurora Loan Services, LLC, 646 Fed. App’x 546, 550 (9th Cir. 2016) 14 (holding “act in violation of a trust agreement is voidable—not void—under New York 15 law”); Yhudai v. Impac Funding Corp., 1 Cal. App. 5th 1252, 1259 (2016) (holding “a 16 post-closing assignment of a loan into an investment trust that violates the terms of the 17 trust renders the assignment voidable, not void, under New York law”); Saterbak v. 18 JPMorgan Chase Bank, N.A., 245 Cal. App. 4th 808, 815 (2016) (holding assignment of 19 loan to securitized trust after closing date was “merely voidable” under New York law). 20 21 22 Accordingly, plaintiff’s First Cause of Action is, on both procedural grounds and on the merits, subject to dismissal without leave to amend. 4 B. 23 24 25 Second Cause of Action: “Violation of Civil Code of Procedure § 2924(a)(6)” In the Second Cause of Action plaintiff alleges defendants violated § 2924 (a)(6) of the California Civil Code, which provides as follows: 26 4 27 28 Given such ruling, the Court does not address herein Moving Defendants’ argument that the FAC does not contain sufficient factual allegations, such as the name of the securitized trust or the date the loan was transferred into the securitized trust. 5 1 No entity shall record or cause a notice of default to be recorded or otherwise initiate the foreclosure process unless it is the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest. No agent of the holder of the beneficial interest under the mortgage or deed of trust, original trustee or substituted trustee under the deed of trust may record a notice of default or otherwise commence the foreclosure process except when acting within the scope of authority designated by the holder of the beneficial interest. 2 3 4 5 6 7 Cal. Civ. Code § 2924(a)(6). Plaintiff alleges MERS, Ditech, and NDSC “do not have 8 standing to record a [n]otice of [d]efault.” (See FAC ¶ 100.) 9 Plaintiff brings her claim under three theories. First, she alleges § 2924(a)(6) “states that for an entity to properly record a notice of default, that entity must be entitled 11 United States District Court Northern District of California 10 to enforce both the [n]ote and the [d]eed of [t]rust.” (See FAC ¶ 91 (emphasis omitted).) 12 The statute includes no such requirement; rather, it requires only that the entity either 13 hold the beneficial interest, be a designated agent of such holder, or be the original or 14 substituted trustee under the deed of trust. See Cal. Civil Code § 2924(a)(6). 15 Second, plaintiff alleges “the note and the [d]eed of [t]rust must remain together” in 16 order for an entity to be the “holder of the beneficial interest.” (See FAC ¶ 92.) Contrary 17 to such allegation, however, the procedures to be followed under California’s nonjudicial 18 foreclosure law “do not require that the note be in the possession of the party initiating 19 the foreclosure.” 20 433, 440 (2012). 21 See Debrunner v. Deutsche Bank Nat. Trust Co., 204 Cal.App.4th Third, plaintiff alleges defendants do not have “standing” to record the notice of 22 default. (See FAC ¶ 97.) To the extent such theory relies on the defects alleged in the 23 First Cause of Action, the claim also fails, as “no injunctive relief is available” for a 24 violation of § 2924(a)(6). See Lucioni v. Bank of America, N.A., 3 Cal. App. 5th 150, 155 25 (2016). 26 Lastly, as Moving Defendants correctly argue, the Second Cause of Action, to the 27 extent brought against MERS, fails for the additional reason that the FAC alleges no facts 28 suggesting MERS had any role in the challenged recordation or otherwise in the 6 1 foreclosure process. Section 2924(a)(6) applies to entities that either “record . . . a notice 2 of default” or “cause [such notice] to be recorded.” See Cal. Civ. Code § 2924(a)(6). 3 Here, plaintiff alleges NDSC recorded the notice “on behalf of” Ditech (see FAC ¶ 96) and 4 that MERS assigned its interest in the Deed of Trust in 2012, more than three years 5 before the notice of default allegedly was entered (see id. ¶¶ 14-15). 6 7 8 Accordingly, the Second Cause of Action is subject to dismissal without leave to amend. C. 9 10 Third Cause of Action: “Violation of Civil Code of Procedure § 2924.17” In the Third Cause of Action, plaintiff alleges Ditech and NDSC violated United States District Court Northern District of California 11 § 2924.17(b) of the California Civil Code, which requires that a mortgage servicer, “before 12 recording or filing,” amongst other things, a notice of default, “ensure that it has reviewed 13 competent and reliable evidence to substantiate the borrower's default and the right to 14 foreclose, including the borrower's loan status and loan information.” See Cal. Civ. Code 15 § 2924.17(a)-(b).5 16 In support of such claim, plaintiff alleges that, if Ditech and NDSC had “reviewed 17 her file competently,” they “would have seen” their “fail[ure] to put the correct amount 18 owed in the [n]otice of [d]efault” (see FAC ¶ 107) and would not have “record[ed] a 19 [n]otice of [d]efault with improperly verified loan status and loan information” (see id. 20 ¶ 109.)6 As Moving Defendants point out, however, plaintiff fails to provide any factual 21 22 23 24 5 The Court notes that plaintiff seeks, inter alia, “statutory damages” as relief for the alleged § 2924.17 violation. (See FAC ¶ 112). A plaintiff is not entitled to such damages until “[a]fter a trustee’s deed of sale has been recorded.” See Cal. Civ. Code §§ 2924.12(b), 2924.19(b). 6 25 26 27 28 In her opposition, plaintiff states the Third Cause of Action should be understood to be based additionally on her allegations that defendants “did not have proper standing to initiate foreclosure proceedings.” (See Pl.’s Opp. at 12:23-28.) Assuming the FAC can reasonably be interpreted in such a manner, the claim nonetheless would appear to fail. See Lucioni, 3 Cal. App. 5th at 163 (holding § 2924.17 “does not create a right to litigate, preforeclosure, whether the foreclosing party’s conclusion that it had the right to foreclose was correct”) (emphasis omitted). 7 1 support for her claim. She does not allege the amount stated in the notice or what 2 amount should have been stated therein, nor does she identify what information, if any, 3 was improperly verified. Without such supporting facts, plaintiff’s claim necessarily fails. 4 See Iqbal, 556 U.S. at 678-79 (holding complaint subject to dismissal where it lacks 5 “sufficient factual matter” to support its “legal conclusions”); see, e.g., Snyder v. Bank of 6 America, N.A., No. 15-CV-04228-EDL, 2016 WL 109981, at *7 (N.D. Cal., Jan. 8, 2016) 7 (holding that, “[w]ithout further explanation in the FAC, [p]laintiff’s conclusory allegation 8 that the [m]oving [d]efendants failed to review competent and reliable evidence based 9 solely on the amount they claim she owed is insufficient to state a claim for violation of 10 California Civil Code § 2924.17”). United States District Court Northern District of California 11 Accordingly, the Third Cause of Action is subject to dismissal with leave to amend. 12 D. 13 Fourth Cause of Action: “Breach of the Covenant of Good Faith and Fair Dealing” 14 Plaintiff’s Fourth Cause of Action alleges defendants breached the implied 15 covenant of good faith and fair dealing by (1) denying her “the benefits of the loan 16 contract which set [her] up for certain default” (see FAC ¶115 (emphasis omitted)), and 17 (2) “attempting to collect on [her] [l]oan without any lawful standing or authority to do so” 18 (see id.). 19 The former theory fails for lack of supporting factual allegations and the latter fails 20 for the reasons already discussed by the Court in Section A above. See Jenkins, 216 21 Cal. App. 4th at 528 (holding complaint “fails to satisfy the fundamental prerequisite for a 22 claim asserting a breach of the implied covenant of good faith and fair dealing—a specific 23 allegation [defendant’s] actions did something to interfere with [plaintiff’s] right to receive 24 the benefits of the agreement”); see also Saterbak, 245 Cal. App. 4th at 814-15 (holding 25 borrower “lacks standing to challenge alleged defects” in the assignment of a deed of 26 trust to a securitized trust where such claim is brought preforeclosure and the challenged 27 assignment is “merely voidable” under applicable law). 28 Accordingly, the Fourth Cause of Action is subject to dismissal with leave to 8 1 2 3 amend as to the former theory and without leave to amend as to the latter. E. Fifth Cause of Action: “Violation of California Bus. & Prof. Code § 17200 et. seq. and 17500 et seq.” 4 In the Fifth Cause of Action, plaintiff alleges a violation of § 17200 of the California 5 Business and Professions Code (see FAC ¶ 121), which prohibits “any unlawful, unfair or 6 fraudulent business act or practice.” See Cal. Bus. & Prof. Code § 17200. In particular, 7 plaintiff alleges, defendants engaged in “deceptive business practices” by “marketing and 8 funding a predatory loan that obligated [plaintiff] to make payments well beyond what 9 [she] could afford” (see FAC ¶ 119), “attempting to collect on a debt that was void and unenforceable” (see id.), and “fraudulently recommending, offering, marketing, accepting, 11 United States District Court Northern District of California 10 purchasing and or collecting on a debt/mortgage that they each knew or should have 12 known was void due to the illegal nature of the contract that would inevitably cause 13 default before completion of the loan term and was therefore unconscionable as a 14 violation of the public policy of promoting home ownership and preventing foreclosures” 15 (see id. ¶ 120.) 16 To the extent the cause of action is predicated on allegations of improprieties that 17 occurred at the time of loan origination, Moving Defendants argue plaintiff’s claim is 18 barred by the statute of limitations. The Court agrees such claim is subject to dismissal, 19 but with leave to amend. Claims asserted under § 17200 must be brought within four 20 years of the date upon which the cause of action accrues. See Cal. Bus. & Prof. Code 21 § 17208. Here, plaintiff alleges the promissory note and deed of trust were executed on 22 February 17, 2006. (See FAC ¶ 11.) She did not file the initial complaint in the instant 23 action, however, until April 4, 2016 (see Not. Removal Ex. A), more than ten years later, 24 and neither that pleading nor the FAC includes any factual allegations that would support 25 tolling of the statute of limitations. Moreover, plaintiff’s conclusory allegation that 26 defendants “market[ed] and fund[ed] a predatory loan that obligated [plaintiff] to make 27 payments well beyond what [she] could afford” (see FAC ¶ 119) lacks sufficient factual 28 support. See Iqbal, 556 U.S. at 678-79 (holding complaint subject to dismissal where it 9 1 2 lacks “sufficient factual matter” to support its “legal conclusions”). Next, to the extent the cause of action is predicated on allegations that defendants 3 are attempting to collect on a void loan, it is derivative of the First Cause of Action and 4 consequently is subject to dismissal without leave to amend for the reasons stated in 5 Section A above. Lastly, to the extent the cause of action may be predicated on some 6 other unlawful, fraudulent, or unfair practice, it fails for lack of supporting factual 7 allegations, see id., and, consequently, is subject to dismissal with leave to amend. 8 9 Accordingly, the Fifth Cause of Action is subject to dismissal with leave to amend as set forth above. Sixth Cause of Action: “Declaratory Relief” F. 11 United States District Court Northern District of California 10 Plaintiff’s Sixth Cause of Action seeks a “judicial determination of [plaintiff’s] rights 12 and a declaration as to the duties and obligations of all [d]efendants in this controversy.” 13 (See FAC ¶ 130.) In support thereof, plaintiff alleges defendants have engaged in 14 “deceptive activity” (see id. ¶ 127), defendants have violated §§ 17200-17500 (see id. 15 ¶ 128), and that an “actual controversy” exists as to defendants’ “standing and capacity to 16 enforce any provisions within [the Deed of Trust and promissory note]” (see id. ¶ 129). 17 To the extent the cause of action is predicated on allegations that defendants are 18 attempting to collect on a void loan, it is derivative of the First Cause of Action and, 19 consequently, is subject to dismissal without leave to amend for the reasons stated in 20 Section A above. 21 To the extent the cause of action is predicated on allegations that defendants 22 violated §§ 17200-17500, it is derivative of the Fifth Cause of Action and, consequently, is 23 subject to dismissal with partial leave to amend for the reasons stated in Section E 24 above. 25 26 Accordingly, the Sixth Cause of Action is subject to dismissal with leave to amend as set forth above. Seventh Cause of Action: “Equitable Estoppel” 27 G. 28 Plaintiff’s Seventh Cause of Action seeks an order by which defendants are 10 1 “estopped based on equitable considerations from taking any action to enforce the 2 contract in a detrimental manner against plaintiff, including, but not limited to, recording 3 any [n]otice of [d]efault and commencing any foreclosure proceedings on the subject real 4 property.” (See FAC ¶134.) In support thereof, plaintiff alleges defendants “seek to 5 foreclose . . . based on a void and unenforceable contract” and “knew or should have 6 known that the loan agreement which they claim ownership of and the right to enforce, 7 was illegal, fraudulent and unconscionable, and yet took the assignment of the interest in 8 the loan with such knowledge.” (See id. ¶ 133.) 9 As Moving Defendants note, equitable estoppel is a doctrine that is “defensive in nature only” and “cannot be stated as an independent cause of action in California.” See 11 United States District Court Northern District of California 10 Moncada v. West Coast Quartz Corp., 221 Cal. App. 4th 768, 782 (2013). 12 Moreover, to the extent the cause of action is predicated on allegations that 13 defendants are attempting to collect on a void loan, it is derivative of the First Cause of 14 Action and consequently is subject to dismissal without leave to amend for the reasons 15 stated in Section A above. 16 17 Accordingly, the Seventh Cause of Action is subject to dismissal without leave to amend. 18 H. Non-Moving Defendant NDSC 19 The deficiencies identified above are equally applicable to the sole non-moving 20 defendant, NDSC, which plaintiff alleges is the “foreclosure trustee.” (See FAC ¶ 6). 21 Accordingly, the complaint is subject to dismissal as against said additional defendant. 22 See Silverton v. Dep’t of Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981) (holding, where 23 court grants motion to dismiss complaint as to one defendant, court may dismiss 24 complaint against non-moving defendant “in a position similar to that of moving 25 defendants”). CONCLUSION 26 27 28 For the reasons stated above, Moving Defendants' motion to dismiss is hereby GRANTED as follows: 11 1 2 3 1. To the extent the motion seeks dismissal of the First, Second, and Seventh Causes of Action, said causes of action are DISMISSED without leave to amend. 2. To the extent the motion seeks dismissal of the Third, Fourth, Fifth, and 4 Sixth Causes of Action, said causes of action are DISMISSED with limited leave to 5 amend as set forth above. Should plaintiff wish to file an amended complaint for 6 purposes of curing the identified deficiencies, plaintiff shall file, no later than November 7 14, 2016, a Second Amended Complaint. Plaintiff may not, however, add any new 8 causes of action or add any new defendant without first obtaining leave of court. See 9 Fed. R. Civ. P. 15(a)(2). 10 United States District Court Northern District of California 11 12 In light of such dismissal, the Case Management Conference presently scheduled for November 4, 2016 is hereby CONTINUED to February 10, 2017. IT IS SO ORDERED. 13 14 Dated: October 26, 2016 MAXINE M. CHESNEY United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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