-CAB Sanchez v. Bear Stearns Residential Mortgage Corporation et al, No. 3:2009cv02056 - Document 28 (S.D. Cal. 2010)

Court Description: ORDER Granting Defendants' 24 Motion to Dismiss: The first cause of action is dismissed with prejudice as against Defendant EMC and dismissed without prejudice as to Defendant Bear Sterns. The second cause of action is dismissed without prejud ice. The fifth cause of action is dismissed without prejudice as to the claim under 12 USC 2605(e) and dismissed with prejudice as to the claim for accounting. The sixth cause of action is dismissed with prejudice. The seventh cause of action is dismissed without prejudice. Plaintiff is granted leave to amend and may file an amended complaint within twenty-one days of the date this Order is electronically docketed. Signed by Judge Janis L. Sammartino on 5/11/10. (mkz)(mam).

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-CAB Sanchez v. Bear Stearns Residential Mortgage Corporation et al Doc. 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SALVADOR SANCHEZ, CASE NO. 09-CV-2056 JLS (CAB) Plaintiff, 12 ORDER: GRANTING DEFENDANTS’ MOTION TO DISMISS vs. 13 14 15 BEAR STEARNS RESIDENTIAL MORTGAGE CORPORATION; EMC MORTGAGE; NDEX WEST, LLC.; et al., (Doc. No . 24) Defendant. 16 17 18 19 20 21 22 23 24 25 26 27 28 Presently before the Court is Defendants Bear Stearns Residential Mortgage Corporation and EMC Mortgage’s motion to dismiss. (Doc. No. 24.) Also before the Court are Plaintiff’s opposition and Defendants’ reply. (Doc. Nos. 26 & 27.) After reviewing these materials, Defendants’ motion to dismiss is GRANTED. BACKGROUND The facts of this case were set out in the Court’s Prior Order and appear not to have changed in the Second Amended Complaint (SAC). (Doc. No. 22 (Prior Order) at 1–2.) That factual background is incorporated here by reference. Plaintiff filed this suit on September 21, 2009. (Doc. No. 1.) On October 19, 2009, Defendants filed a motion to dismiss. (Doc. No. 4.) On November 30, 2009, Plaintiff filed his First Amended Complaint (FAC). (Doc. No. 13.) Defendants filed a second motion to dismiss on -1- 09cv2056 Dockets.Justia.com 1 December 17, 2009, (Doc. No. 15) which the Court granted on February 8, 2010. (Prior Order.) 2 Plaintiff filed his Second Amended Complaint on February 26, 2010. (Doc No. 23 (SAC).) And 3 Defendants filed this motion on March 15, 2010. 4 LEGAL STANDARD 5 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that 6 the complaint “fail[s] to state a claim upon which relief can be granted,” generally referred to as a 7 motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and 8 sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a “short and plain 9 statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 “does not 10 require ‘detailed factual allegations,’ . . . it [does] demand[] more than an unadorned, the-defendant- 11 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, – US — , 129 S. Ct. 1937, 1949 (2009) 12 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s 13 obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 14 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 15 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Nor does a complaint suffice 16 if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 129 S. Ct. at 1949 17 (citing Twombly, 550 U.S. at 557). 18 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted 19 as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 20 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled “allow[] the 21 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 22 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be 23 probable, but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. 24 Facts “‘merely consistent with’ a defendant’s liability” fall short of a plausible entitlement to relief. 25 Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true “legal 26 conclusions” contained in the complaint. Id. This review requires context-specific analysis involving 27 the Court’s “judicial experience and common sense.” Id. at 1950 (citation omitted). “[W]here the 28 well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the -2- 09cv2056 1 complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. 2 3 ANALYSIS I. INTENTIONAL MISREPRESENTATION 4 Plaintiff’s first cause of action is for intentional misrepresentation. In California, the elements 5 of the tort of intentional misrepresentation are “‘(1) misrepresentation (false representation, 6 concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to 7 induce reliance); (4) justifiable reliance; and (5) resulting damage.’” Alliance MortgageCo. v. 8 Rothwell, 900 P.2d 601, 608 & n.4 (Cal. 1995) (quoting Molko v. Holy Spirit Ass’n, 762 P.2d 46, 53 9 (Cal. 1988)). If the allegations are based on concealment, then the plaintiff must show that the party 10 concealing the fact was “bound do disclose it, or . . . [gave] information of other facts which [were] 11 likely to mislead for want of communication of that fact.” Cal. Civ. Code § 1710(3). 12 Further, Federal Rule of Civil Procedure 9(b) governs the pleading of this claim because 13 intentional misrepresentation is a form of fraud. See Cadlo v. Owens-Illinois, Inc., 23 Cal. Rptr. 3d 14 1, 5 (Cal. Ct. App. 2004); Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102–03 (9th Cir. 2003). 15 Rule 9(b) states that “In alleging fraud or mistake, a party must state with particularity the 16 circumstances constituting fraud or mistake.” These allegations must “be ‘specific enough to give 17 defendants notice of the particular misconduct . . . so that they can defend against the charge and not 18 just deny that they have done anything wrong.’ Averments of fraud must be accompanied by ‘the 19 who, what, when, where, and how’ of the misconduct charged. ‘[A] plaintiff must set forth more than 20 the neutral facts necessary to identify the transaction. The plaintiff must set forth what is false or 21 misleading about a statement, and why it is false.’” Vess 317 F.3d at 1106 (citations omitted). 22 According to Defendants, Plaintiff’s claim fails because (1) it fails to differentiate between 23 Defendants in its allegations, and (2) it “fails to allege what material facts were allegedly 24 misrepresented by Defendants or that Defendants made any representation at all to Plaintiff.” (Memo. 25 ISO Motion at 3–4.) Further, as to Defendant EMC Mortgage, the claim “fails” because “[i]t appears 26 that all representations were made by parties other than EMC since, as evidenced by the recorded title 27 documents, EMC did not originate the subject loans to Plaintiff.” (Id. at 3–4.) 28 The Court finds that this claim must be DISMISSED WITH PREJUDICE as against -3- 09cv2056 1 Defendant EMC. As Defendants point out, the SAC makes no allegations of intentional 2 misrepresentation against Defendant EMC. The first cause of action describes EMC as “the current 3 servicer/lender/beneficiary under the note and/or deed of trust or who was acting on behalf of either 4 the holder of the note or the current beneficiary under the deed of trust when they sold the home in 5 a foreclosure sale to SD Seaport.” (SAC ¶ 32.) It does not, however, allege that EMC made any 6 misrepresentations or was involved at the loans’ origination. Therefore, since the key element of an 7 intentional misrepresentatoin is absent, there is no basis for this claim against EMC. 8 In the Opposition, Plaintiff claims that “EMC was acting as the undisclosed lender as Bear 9 Stearns was immediately selling off these loans such as the Plaintiff’s to investors using EMC 10 underwriting standards.” (Opp. at 3.) Nothing even suggesting such a thing is in the SAC. Moreover, 11 it is difficult to see how this is relevant to the issue of an intentional representation. Plaintiff does not 12 claim his loan was sold, or that EMC instructed or encouraged Bear Stearns to make 13 misrepresentations, or was otherwise directly involved in the loans’ origination. 14 importantly, Plaintiff is still unable to offer any actual misrepresentation by EMC. And most 15 As to Defendant Bear Stearns, the Court finds that this claim should be DISMISSED 16 WITHOUT PREJUDICE. As Defendants rightly point out, the SAC lacks adequate specificity 17 pursuant to Rule 9(b). The Court has identified four different places where Plaintiff attempts to state 18 a misrepresentation. (See SAC ¶¶ 29–31.) Each, however, is defective. Two of these statements 19 indicate that Plaintiff “was misled” and what he believed. (Id. ¶ 29.) They do not, however identify 20 the statements (either generally or specifically) which actually misled Plaintiff. (Id.) A third 21 “representation” is similarly unclear because it merges alleged (but unidentified) statements by Doe 22 defendants with an act of the “underwriting department,” and fails to identify either the “where” or 23 “when” of the misrepresentations. (Id. ¶ 30.) The final allegation is similarly deficient because it fails 24 to identify who made the statement or how it was communicated. (Id. ¶ 31.) Moreover, and equally 25 fatally, Plaintiff has not pled either intent to defraud or knowledge of falsity with respect to these 26 statements. 27 Therefore, as previously stated, Defendants’ motion is GRANTED on this claim. The 28 intentional misrepresentation cause of action is DISMISSED WITH PREJUDICE as to Defendant -4- 09cv2056 1 EMC and DISMISSED WITHOUT PREJUDICE as to Defendant Bear Stearns. 2 II. FRAUDULENT CONCEALMENT 3 Plaintiff’s second cause of action is for fraudulent concealment. (SAC ¶¶ 39–49.) “[T]he 4 elements of that action are: (1) the defendant must have concealed or suppressed a material fact, (2) 5 the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must 6 have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the 7 plaintiff must have been unaware of the fact and would not have acted as he did if he had known of 8 the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the 9 plaintiff must have sustained damage.” Kaldenbach v. Mut. of Omaha Life Ins. Co., 100 Cal. Rptr. 10 3d 637, 653 (Cal. Ct. App. 2009) (quoting Roddenberry v. Roddenberry, 51 Cal. Rptr. 2d 907, 926 11 (Cal. Ct. App. 1996)) (citation and quotation marks omitted). 12 misrepresentation claim, this cause of action is governed by Rule 9(b). See Cadlo, 23 Cal. Rptr. 3d 13 at 5; Vess, 317 F.3d at 1102–03. And, as with the intentional 14 Defendants make three arguments against this claim. First, that “the SAC alleges no personnel 15 or employee of Defendants who allegedly engaged in the fraudulent conduct,” but rather “refers to 16 ‘defendants’ collectively.” (Memo. ISO Motion at 5.) Second, “Plaintiff’s allegations are conclusory 17 and do not put Defendants on notice as to what is being alleged against them.” (Id.) Finally, 18 Defendants claim that they “do not owe a duty to Plaintiff.” 19 The Court agrees with Defendants. The most specific allegation in this complaint is that 20 Defendants “failed to provide disclosures.” (SAC ¶ 41.) It does not, however, indicate which 21 disclosures Defendants failed to provide or who failed to make those disclosures. The SAC also does 22 not say why the Defendants were under a duty to make any disclosures to Plaintiff, but rather only that 23 such a duty exists “under federal and state law.” (Id. ¶¶ 42–43.) Since, generally “a financial 24 institution owe[s] no duty of care to a borrower,” this Court will not simply presume that one exists. 25 Nymark v. Heart Fed. Sav. & Loan Ass’n, 231 Cal. App. 3d 1089, 1096 (1991). Moreover, Plaintiff 26 has failed to comply with Rule 9(b)’s directives. He has not stated “the who, what, when, where, and 27 how” of the alleged fraud nor even specifically identified what fraud was perpetuated. Vess 317 F.3d 28 at 1106. -5- 09cv2056 1 Therefore, the second cause of action is DISMISSED WITHOUT PREJUDICE and with 2 LEAVE TO AMEND to correct the noted deficiencies. 3 III. ACCOUNTING & RESPA VIOLATION (12 U.S.C. § 2605(E)) 4 Plaintiff’s fifth claim is for accounting and violation of 12 U.S.C. § 2605(e). 12 U.S.C. § 2605 5 is a provision of the Real Estate Settlement Procedures Act (RESPA). Section 2605(e)(1)(A) 6 provides: 7 8 If any servicer of a federally related mortgage loan receives a qualified written request from the borrower . . . for information relating to the servicing of such loan, the servicer shall provide a written response acknowledging receipt of the correspondence within 20 days . . . unless the action requested is taken within such period. 9 A qualified written request must “enable[] the servicer to identify[] the name and account of the 10 borrower,” and “include[] a statement of the reasons for the belief of the borrower . . . that the account 11 is in error.” 12 U.S.C. § 2605(e)(1)(B). A plaintiff suing for violation of this section may recover 12 actual damages, up to $1,000 in statutory damages where there is “a pattern or practice of 13 noncompliance,” and reasonable costs and attorney’s fees. 12 U.S.C. § 2605(f). 14 Plaintiff’s fifth cause of action is deficient in several ways. First, it is unclear that the 15 document sent to Defendant EMC was actually a qualified written request (QWR). The complaint 16 simply assumes that it was. (See SAC ¶ 66.) Plaintiff does not allege facts demonstrating that the 17 alleged QWR “include[d], or otherwise enable[d] the servicer to identify, the name and account of the 18 borrower.” 12 U.S.C. § 2605(e)(1)(B)(i). Without this allegation, it is implausible that he will be able 19 to recover. See Lincoln v. GMAC Mortgage, LLC, 2009 WL 5184413, at *2 (C.D. Cal. 2009). 20 Moreover, the SAC does not allege that Plaintiff suffered “actual damages . . . as a result of 21 [Defendant’s] failure” to respond to the QWR. 12 U.S.C. § 2605(f)(1)(A). The SAC merely states 22 Plaintiff is entitled to actual damages. (SAC ¶ 69.) Plaintiff also does not allege facts indicating “a 23 pattern or practice of noncompliance.” 12 U.S.C. § 2605(f)(1)(B). Given the statute’s text, Plaintiff 24 cannot recover if he has not shown at least one of these two items.1 See Garcia v. Wachovia Mortgage 25 Corp., 676 F. Supp. 2d 895, 909 (C.D. Cal. 2009). Thus, Plaintiff’s claim under 12 U.S.C. § 2605 is 26 27 28 1 Contrary to Defendants’ argument, Plaintiff need not show both actual damages and a pattern or practice of noncompliance. (Memo. ISO Motion at 10–11.) The pattern or practice requirement applies only to an award of “additional damages,” not to an award of actual damages. 12 U.S.C. § 2605(f)(1). -6- 09cv2056 1 DISMISSED WITHOUT PREJUDICE and WITH LEAVE TO AMEND. 2 As to the request for an accounting, it is not one of the available remedies under RESPA. See 3 Gaitan v. Mortgage Elec. Registration Sys., 2009 WL 3244729, at *13 (C.D. Cal. 2009). Thus, the 4 Court evaluates whether Plaintiff has stated an independent claim for accounting. 5 As discussed in the Prior Order, “[a]n accounting cause of action is equitable in nature, and 6 may be sought ‘where . . . the accounts are so complicated that an ordinary legal action demanding 7 a fixed sum is impracticable.’” Civic W. Corp. v. Zilla Indus. Inc., 135 Cal. Rptr. 915, 923 (Cal. Ct. 8 App. 1977). The party seeking an accounting must be a “wronged fiduciary.” See Glue-Fold, Inc. 9 v. Slautterback Corp., 98 Cal Rptr. 2d 611, 663 n.3 (Cal. Ct. App. 2000). “‘A suit for an accounting 10 will not lie where it appears from the complaint that none is necessary or that there is an adequate 11 remedy at law. An accounting will not be accorded with respect to a sum that a plaintiff seeks to 12 recover and alleges in his complaint to be a sum certain.’” Id. (citation omitted). 13 As in the FAC, the SAC fails to allege facts to support an independent claim for accounting. 14 There are no facts which indicate that Plaintiff and Defendant EMC were or are in a fiduciary 15 relationship.2 Nor has Plaintiff alleged that these accounts are “so complicated that an ordinary legal 16 action demanding a fixed sum is impracticable.” Civic W., 135 Cal. Rptr. at 923. Because the Court 17 set these factors out in its prior motion and Plaintiff failed to correct the defects in his pleading, the 18 claim for accounting is DISMISSED WITH PREJUDICE.3 19 IV. VIOLATION OF RESPA (12 U.S.C. § 2607) 20 The sixth cause of action is also for an alleged violation of 12 U.S.C. § 2607. Its specific 21 allegation is that Plaintiff’s loan involved an illegal yield spread premium. (SAC ¶ 75.) As this Court 22 has previously noted, claims under section 2607 must be brought within one year “from the date of 23 the occurrence of the violation.” 12 U.S.C. § 2614; see also Prior Order at 8–9. 24 Plaintiff executed his loan on September 1, 2006. (SAC ¶ 7.) This action was not filed until 25 26 27 2 Plaintiff’s bare assertion that “Defendant EMC had a fiduciary duty” is inadequate to carry this point. (SAC ¶ 43.) 3 28 This dismissal applies only to Plaintiff’s independent claim for accounting. If one of his other causes of action will allow for accounting as an equitable remedy, this holding does not bar him from seeking such a remedy. -7- 09cv2056 1 September 21, 2009, more than three years after the loan was consummated. (Doc. No. 1.) Generally, 2 such a claim would be barred by the statute of limitations. 3 Plaintiff believes that he is entitled to tolling of the limitations period. (Opp. at 4.) He argues 4 that it should run from when he first met with his attorney in September of 2009 because he is 5 “primarily a Spanish speaker[ and] would be in no position to discover that the yield spread premium 6 was being used as a kickback outside of escrow to sell the Plaintiff into a more dangerous loan.” (Id.) 7 The Court’s Prior Order held that these allegations do not justify tolling. (Prior Order at 9.) 8 “Plaintiff has been in possession of his loan documents since at least September 1, 2006, the date his 9 loan closed. The alleged violation of RESPA would have been apparent on the face of those 10 documents. The statute of limitations here is not based on actual discovery of the violation. Plaintiff 11 had a reasonable opportunity to discover these alleged violations from the date the loan was 12 consummated.” (Id.) The SAC does not allege that Plaintiff is a Spanish speaker or that he is not a 13 mortgage professional. However, neither would not change this conclusion because the alleged 14 violations were apparent on the face of the documents. Making the statute of limitations a rule of 15 actual discovery in this type of case would effectively nullify Congress’s purpose in placing it in the 16 statute. Therefore, the sixth cause of action is DISMISSED WITH PREJUDICE. 17 VII. CALIFORNIA UNFAIR BUSINESS PRACTICES ACT 18 The final cause of action is for alleged violations of California Business and Professions Code 19 section 17200, et seq., otherwise known as the Unfair Business Practices Act. (SAC ¶¶ 82–85.) 20 “California’s unfair competition statute prohibits any unfair competition, which means ‘any unlawful, 21 unfair or fraudulent business act or practice.’” In re Pomona Valley Med. Group, Inc., 476 F.3d 665, 22 674 (9th Cir. 2007) (citing Cal. Bus. & Prof. Code §§ 17200, et seq.). To state a claim, the plaintiff 23 must allege that the Defendant’s acts were unlawful, unfair or fraudulent. Id. Plaintiff believes that 24 Defendant Bear Stearns’s business practice “designed to place Plaintiff into an unsuitable mortgage 25 product thereby destroying his equity in the Property and causing financial and emotional distress” 26 was “unlawful, unfair and fraudulent.” (SAC ¶ 84.) 27 // 28 // -8- 09cv2056 1 A. 2 “The ‘unlawful’ practices prohibited by . . . section 17200 are any practices forbidden by law, 3 be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made.” South Bay 4 Chevrolet v. General Motors Acceptance Corp., 72 Cal. App. 4th 861, 881 (1999) (citations omitted). 5 Under the unlawful prong, therefore, the UCL “borrows” violations of other laws and makes them 6 independently actionable under the UCL. See id.; see also Scripps Clinic v. Superior Court, 108 Cal. 7 App. 4th 917, 938 (2003). Because all causes of action against the moving Defendants are dismissed, 8 the motion to dismiss this claim on the unlawful prong is GRANTED. 9 B. Unlawful Prong Unfair Prong 10 A practice that is not “unlawful” under the UCL may still be considered “unfair.” See Cel- 11 Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 180–81 (1999). In Cel-Tech, the 12 California Supreme Court ruled that conduct is “unfair” between business competitors under the UCL 13 only if it is “tethered” to an underlying law. Cel-Tech, 20 Cal. 4th at 186–87. Whether this 14 “tethering” test is applicable to allegations of unfair competition as applied to consumers, however, 15 is not settled. California appellate courts have split on whether to apply the “tethering” test or an older 16 “balancing test.” Compare Gregory v. Albertson’s, Inc., 104 Cal. App. 4th 845, 854 (2002) (applying 17 “tether” test to consumers); and Scripps Clinic, 108 Cal. App. 4th at 938 (same); with Smith v. State 18 Farm Mutual Auto. Ins. Co., 93 Cal. App. 4th 700, 718–19 (2001) (applying balancing test). The 19 Ninth Circuit has not stated its preference. See Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718, 20 737 (9th Cir. 2007). This Court finds that the “tether” test is more in line with the California Supreme 21 Court’s reasoning in Cel-Tech. The Cel-Tech court found, and this Court agrees, that the balancing 22 test to determine unfairness is “too amorphous and provide[s] too little guidance to the courts.” Cel- 23 Tech, 20 Cal.4th at 185. 24 Therefore, this claim must be DISMISSED WITHOUT PREJUDICE on the unfair prong. 25 The SAC does not “tether” its allegations of unfairness to any underlying law. Rather it simply states 26 that this practice is “unfair.” This is insufficient to survive Defendants’ motion to dismiss. 27 // 28 // -9- 09cv2056 1 C. Fraudulent Prong 2 To state a cause of action under the fraudulent prong of Section 17200, “it is necessary only 3 to show that ‘members of the public are likely to be deceived.’ Allegations of actual deception[ and] 4 reasonable reliance . . . are unnecessary.”4 Comm. on Children’s Television, Inc. v. Gen. Foods Corp., 5 673 P.2d 660, 668 (Cal. 1983). In this case, Plaintiff has neither alleged nor shown that “members of 6 the public are likely to be deceived.” He merely states that Defendant Bear Stearns has engaged in a 7 “fraudulent business practice.” 8 Therefore, this claim is DISMISSED WITHOUT PREJUDICE. 9 This is inadequate to survive Defendant’s motion to dismiss. CONCLUSION 10 For the reasons stated, Defendants’ motion to dismiss is GRANTED. The first cause of action 11 is DISMISSED WITH PREJUDICE as against Defendant EMC and DISMISSED WITHOUT 12 PREJUDICE as to Defendant Bear Stearns. The second cause of action is DISMISSED WITHOUT 13 PREJUDICE. The fifth cause of action is DISMISSED WITHOUT PREJUDICE as to the claim 14 under 12 U.S.C. § 2605(e) and DISMISSED WITH PREJUDICE as to the claim for accounting. The 15 sixth cause of action is DISMISSED WITH PREJUDICE. Finally, the seventh cause of action is 16 DISMISSED WITHOUT PREJUDICE. Further, the Court finds it appropriate to grant Plaintiff 17 LEAVE TO AMEND. He MAY FILE an amended complaint within twenty-one days of the date this 18 Order is electronically docketed. 19 IT IS SO ORDERED. 20 21 DATED: May 11, 2010 22 Honorable Janis L. Sammartino United States District Judge 23 24 25 26 27 28 4 Although this case held that damages were also unnecessary, after the enactment of Proposition 64 on November 2, 2004, “a private person has standing to sue only if he or she ‘has suffered injury in fact and has lost money or property as a result of such unfair competition.’” Californians for Disability Rights v. Mervyn’s LLC, 39 Cal. 4th 223, 227 (2006); Comm. on Children’s Television, Inc. v. Gen. Foods Corp., 673 P.2d 660, 668 (Cal. 1983). Therefore, the holding that “damages are unnecessary” is no longer good law. - 10 - 09cv2056

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