Gwin et al v. Pacific Coast Financial Services et al, No. 3:2009cv02734 - Document 11 (S.D. Cal. 2010)

Court Description: ORDER granting 4 , 6 Motion to Dismiss without prejudice. Plaintiffs may file an amended complaint within twenty-one days of the entry of this order. Signed by Judge Barry Ted Moskowitz on 4/23/10. (lao)

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Gwin et al v. Pacific Coast Financial Services et al Doc. 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EDWIN and MICHIKO GWIN, Case No. 09cv2734 BTM (BLM) 12 Plaintiffs, 13 14 15 v. ORDER GRANTING MOTION TO DISMISS PACIFIC COAST FINANCIAL SERVICES, et al., 16 Defendants. 17 Defendants Pacific Coast Financial Services (“PCFS”), FCI Lender Services, Inc., and 18 David Bridgeman have filed a Motion to Dismiss the Complaint for Failure to State a Claim 19 [Docs. 4, 6]. For the following reasons, the Court GRANTS the Motion. 20 I. BACKGROUND 21 22 23 The following factual statements are allegations in the Complaint, not the Court’s findings. 24 This action concerns a $445,000 loan from PCFS to Plaintiffs, secured by a deed of 25 trust on their home located at 13393 Samantha Avenue, San Diego, CA 92129. Plaintiffs 26 executed the loan on August 31, 2007. At the signing, Plaintiffs discovered a falsified income 27 statement, stating that Mrs. Gwin, one of the Plaintiffs, owned a business called Michiko’s 28 Bridal, which had a net income of $15,000 per month. Plaintiffs did not sign the false income 1 09cv2734 BTM (BLM) Dockets.Justia.com 1 statement, but signed the remainder of the loan documents. 2 Plaintiffs did not receive copies of the deed of trust, nor any other loan documents, 3 including any notices of right to cancel and truth in lending disclosures. Although they later 4 asked Defendant David Bridgeman, the mortgage broker who arranged the loan, for copies 5 of these documents, they have not received them. 6 Defendants struggled to make payments on the loan and eventually defaulted in June 7 of 2008. Plaintiffs did not receive a Notice of Default under California Civil Code § 2924 et 8 seq. In August 2008, Plaintiffs received a Notice of Trustees Sale, which set forth a sale date 9 of December 29, 2008. On December 29, 2008, defendant PCFS purchased the property. 10 In June 2009, Defendants obtained a judgment for possession of the property. 11 On November 2, 2009, Plaintiffs filed a Complaint in the Superior Court of California 12 in the County of San Diego alleging eleven causes of action against all Defendants and 13 requesting declaratory, injunctive and monetary relief. On November 3, 2009, the Superior 14 Court entered a temporary restraining order enjoining Defendants from, among other things, 15 evicting Defendants from their residence. Defendants filed a Notice of Removal in this Court 16 on December 7, 2009. 17 18 Defendants have now moved to dismiss all eleven causes of action. The Court addresses each claim below. 19 20 II. LEGAL STANDARD 21 Under Federal Rule of Civil Procedure 8(a)(2), the plaintiff is required only to set forth 22 a “short and plain statement of the claim showing that the pleader is entitled to relief,” and 23 “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” 24 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). When reviewing a motion to 25 dismiss, the allegations of material fact in plaintiff’s complaint are taken as true and 26 construed in the light most favorable to the plaintiff. See Parks Sch. of Bus., Inc. v. 27 Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). But only factual allegations must be 28 accepted as true—not legal conclusions. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 2 09cv2734 BTM (BLM) 1 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 2 statements, do not suffice.” Id. Although detailed factual allegations are not required, the 3 factual allegations ”must be enough to raise a right to relief above the speculative level.” 4 Twombly, 550 U.S. at 555. Furthermore, “only a complaint that states a plausible claim for 5 relief survives a motion to dismiss.” Iqbal, 129 S. Ct. at 1949. 6 In ruling on a motion to dismiss, a court may take judicial notice of matters of public 7 record that are not subject to reasonable dispute. Lee v. City of Los Angeles, 250 F.3d 668, 8 689 (9th Cir. 2001). 9 10 11 III. DISCUSSION 1. First Cause of Action – Truth in Lending Act 12 Any action for damages under the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et 13 seq., must be brought within one year of the loan execution. 15 U.S.C. § 1640(e); see King 14 v. California, 784 F.2d 910, 915 (9th Cir. 1986). 15 documents in August 2007. They filed their suit in state court in November 2009, well 16 beyond the one-year limitations period. Additionally, although courts may equitably toll TILA 17 claims “in certain circumstances” such as fraudulent concealment, King v. State of California, 18 784 F.2d 910, 914–15 (9th Cir. 1986), Plaintiffs have not alleged any facts justifying equitable 19 tolling. Here, Plaintiffs executed the loan 20 Plaintiffs also seek rescission of the loan under TILA. Rescission actions under TILA 21 have a three-year limitations period. 15 U.S.C. § 1635(f). The right of rescission also 22 expires upon the sale of the property. Id. Plaintiffs allege that their home has been sold to 23 Defendant PCFS. Thus, their rescission claim is also time barred. For these reasons, the Court DISMISSES without prejudice Plaintiffs’ First Cause 24 25 of Action for TILA Violations in its entirety. 26 27 28 2. Second Cause of Action – Violations of California Financial Code § 4973 Plaintiffs allege that Defendants did not reasonably believe that Plaintiffs could make 3 09cv2734 BTM (BLM) 1 payments on the loan when they executed the loan transaction, in violation of California 2 Financial Code § 4973(f)(1). In order for Plaintiffs to state a claim under California Financial 3 Code § 4973, the loan must be a “covered loan” as defined by California Financial Code § 4 4970(b). See Cal. Fin. Code § 4970; Glover v. Fremont Inv. & Loan, No. 09-3922, 2009 WL 5 5114001, at *5 (N.D. Cal. December 18, 2009). If “the original balance of the loan does not 6 exceed the most current conforming loan limit for a single-family first mortgage loan 7 established by the Federal National Mortgage Association (“Fannie Mae”) ...” then the loan 8 is “covered.” Cal. Fin.Code § 4970(b). The Court takes judicial notice that since January 1, 9 2006, the national conforming loan limit has been $417,000. See Defendants’ Request for 10 Judicial Notice; Alvara v. Aurora Loan Srvcs., No. 09-1512, 2009 WL 1689640, at *4 (N.D. 11 Cal. June 16, 2009) (noting that the 2006 loan limit on a single-family first mortgage loan was 12 $417,000). Plaintiffs have alleged that they received a loan in the amount of $445,000. 13 Thus, their loan is not a “covered loan” under § 4970(b). 14 In their opposition, Plaintiffs argue that even though the loan amount exceeded the 15 national conforming loan limit, the “true substance” of the loan fits the definition of covered 16 loan. But Plaintiffs do not allege facts in their Complaint showing that Defendants structured 17 the loan at issue here to avoid application of this provision. Nor do Plaintiffs’ allegations 18 show that the true substance of the loan was anything other than a $445,000 loan secured 19 by Plaintiffs’ home. The loan at issue here exceeds the national conforming loan limit of 20 $417,000 and is therefore not a “covered loan.” 21 Plaintiffs also assert that their loan is a “consumer loan” under § 4970(d). But whether 22 their loan is a consumer loan under § 4970(d) is immaterial, because the requirement that 23 an originator “reasonably believe[] the consumer . . . will be able to make the scheduled 24 payments . . .” only applies to covered loans. The requirement does not apply to consumer 25 loans. 26 Because the loan here is not a covered loan under California Financial Code § 27 4970(b), the Court DISMISSES without prejudice Plaintiffs’ Second Cause of Action in its 28 entirety. 4 09cv2734 BTM (BLM) 1 3. Third Cause of Action – Setting Aside Notice of Default and Notice of Trustee’s Sale 2 In the third cause of action, Plaintiffs allege that they never received the Notice of 3 Default and Notice of Trustees’ Sale as required by California Civil Code § 2924. Based on 4 this defect, Plaintiffs seek cancellation of the sale of their property. 5 First, the Court notes that § 2924 does not require the Notice of Default to be served 6 upon the property owner. See Cal. Civ. Code § 2924. The Notice of Default must only be 7 filed in the office of the county recorder where the property is located. Id. at § 2924(a)(1). 8 Thus, Plaintiffs allegation that they never received the Notice of Default is inconsequential. 9 Second, although Plaintiffs state in their Third Cause of Action that they never 10 received the Notice of Sale, they admit in the factual portion of the Complaint that “the 11 Plaintiffs received the Notice of Trustees Sale dated August 29, 2008.” (Compl. ¶ 15.) Thus, 12 their allegation that they never received the Notice of Sale is directly contradicted by their 13 own Complaint. 14 Even if there were defects in the procedure effecting the trustee’s sale, under 15 California law, “an action to set aside a trustee’s sale for irregularities in sale notice or 16 procedure should be accompanied by an offer to pay the full amount of the debt for which 17 the property was security.” Arnolds Management Corp. v. Eischen, 158 Cal. App. 3d 575, 18 577 (1984). “A valid and viable tender of payment of the indebtedness owing is essential to 19 an action to cancel a voidable sale under a deed of trust.” Karlsen v. American Sav. & Loan 20 Ass’n, 15 Cal. App. 3d 112, 117 (1971). The reason for this requirement is that a court of 21 equity will not use its remedial power to accomplish a futile act that has no beneficial 22 purpose. Id. at 117-18. 23 Plaintiffs have not alleged that they tendered the full amount of the debt for which the 24 property was security. Nor have Plaintiffs alleged that they are capable of tendering the full 25 amount. Karlsen v. Amer. Sav. & Loan Ass’n, 15 Cal. App. 3d 112, 118 (1971) (“Simply put, 26 if the offeror ‘is without the money necessary to make the offer good and knows it . . .’ the 27 tender is without legal force or effect”). Until they do so, the Court cannot set aside the 28 // 5 09cv2734 BTM (BLM) 1 trustee’s sale of their property. 2 Because Plaintiffs have failed to tender, the Court declines to address Defendants’ 3 res judicata argument at this time. Any defense based on res judicata should be raised on 4 a motion for summary judgment. Plaintiffs fail to state a claim for the reasons described 5 above. Accordingly, the Court DISMISSES without prejudice Plaintiffs’ Third Cause of 6 Action in its entirety. 7 8 4. Fourth Cause of Action – Cancellation of Instruments 9 In this cause of action, Plaintiffs seek to cancel the Notice of Sale, the Notice of 10 Default, the Election to Sell Under Deed of Trust, the Deed of Trust, and the Promissory 11 Note. Plaintiffs allege that each document was the product of “multiple violations of law” and 12 should therefore be cancelled. 13 The Court assumes that Plaintiffs assert their cause of action under California Civil 14 Code § 3412, which states a “written instrument, in respect to which there is a reasonable 15 apprehension that if left outstanding it may cause serious injury to a person against whom 16 it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered 17 up or canceled.” Cancellation is an equitable remedy. Strong v. Strong, 22 Cal. 2d 540, 546 18 (1943). Plaintiffs only make general allegations that the documents are the result of “multiple 19 violations of law,” and have not alleged any facts showing why the documents should be 20 cancelled. 21 cancellation of instruments. See id. Moreover, as set forth above, in order to set aside a 22 trustee’s sale Plaintiffs must tender the full amount owed, which they have not done. See 23 Karlsen, 15 Cal. App. 3d at 117. For these reasons, the Court DISMISSES without prejudice Plaintiffs’ Fourth Cause 24 25 General allegations of unlawfulness are insufficient to state a claim for of Action in its entirety. 26 27 28 5. Fifth Cause of Action – Quiet Title Plaintiffs’ Fifth Cause of Action is to quiet title. To state a claim to quiet title, a 6 09cv2734 BTM (BLM) 1 complaint must be verified and include (1) a legal description of the property and its street 2 address or common designation, (2) the title of the plaintiff and the basis of the title, (3) the 3 adverse claims to the title of the plaintiff, (4) the date as of which the determination is sought, 4 and (5) a prayer for the determination of the title of the plaintiff against the adverse claims. 5 Cal. Civ. Proc. Code § 761.020. 6 Here, the Complaint is not verified as § 761.020 requires. Moreover, Plaintiffs fail to 7 allege the specific “adverse claims” that form the basis of his cause of action. Id. at § 8 761.020(c); see also id. cmt. at ¶ 4. Instead, Plaintiffs bring this cause of action “against all 9 Defendants” and alleges that “[a]ny and all claims whatsoever, of defendants . . . which is 10 adverse to plaintiffs’ fee title ownership interest . . . is without basis in law or fact, being the 11 product of a defective, deceptive and void transaction . . . .” (Compl. ¶ 41.) This is 12 insufficient to provide Defendants with notice of grounds upon which Plaintiffs base their 13 cause of action. Moreover, quieting title in Plaintiffs would require setting aside the trustee’s 14 sale, and such relief is unavailable to Plaintiffs given that they have not tendered the full 15 amount owed on their debt. See Karlsen, 15 Cal. App. 3d at 117. 16 17 For these reasons, the Court DISMISSES Plaintiffs’ Fifth Cause of Action in its entirety. 18 19 6. Sixth Cause of Action – Accounting 20 Plaintiffs also seek a “detailed accounting calculation and summary payoff balance, 21 including unpaid principal balance, accrued interest, unpaid interest, daily interest charges 22 and all other fees and costs or expenses comprising the payoff amount and alleged default 23 amounts.” (Compl. ¶ 43.) 24 A complaint for an accounting must state facts showing the nature of the relationship 25 that requires accounting and that some balance is due to the plaintiff. Stilwell v. Trutanich, 26 178 Cal. App. 2d 614, 620 (1960). There is no right to an accounting where none is 27 necessary. St. James Church v. Superior Court, 135 Cal. App. 2d 352, 359 (1955). 28 Here, Plaintiffs have not stated a cause of action for an accounting. First, Plaintiffs 7 09cv2734 BTM (BLM) 1 have not alleged any sums are due to them from Defendants. And second, Plaintiffs have 2 alleged that they received the trustee’s notice of sale (also attached as Exhibit 5 to 3 Defendants’ Motion to Dismiss), which sets forth the amount of the unpaid debt, together with 4 costs. Under these circumstances, Plaintiffs have not stated a claim for an accounting and 5 the Court further finds than an accounting is unnecessary. 6 7 For these reasons, the Court DISMISSES without prejudice Plaintiffs’ Sixth Cause of Action in its entirety. 8 9 7. Seventh Cause of Action – Rescission Based Upon Fraud 10 Plaintiffs seek rescission of the $445,000 loan they received in August 2007. In an 11 action for rescission, the party seeking rescission must restore, or offer to restore, to the non- 12 rescinding party all consideration received under the contract. See Cal. Civ. Code § 1691(b). 13 The Plaintiffs here, however, have not done so. Nor have they demonstrated that they are 14 capable of doing so. For this reason, the Court DISMISSES without prejudice Plaintiffs’ 15 Seventh Cause of Action in its entirety. 16 17 8. Eighth Cause of Action – Unfair Debt Collection Practices 18 In the eighth cause of action, Plaintiffs claim that Defendants violated the Federal Debt 19 Collection Practices Act (“FDCPA”). Plaintiffs have not specified which provision Defendants 20 have allegedly violated. Plaintiffs also allege that Defendants violated California’s Rosenthal 21 Fair Debt Collection Practices Act (“RFDCPA”). 22 Defendants violated the RFDCPA as well. See Cal. Civ. Code § 1788.17 (providing that 23 every debt collector shall comply with certain provisions of the FDCPA). If Defendants violated the FDCPA, 24 Plaintiff’s FDCPA claims fail because (1) mortgage servicers are not “debt collectors”; 25 and (2) actions taken in pursuit of foreclosure are not debt collection. The FDCPA defines 26 a “debt collector” as “any person who uses any instrumentality of interstate commerce or the 27 mails in any business the principal purpose of which is the collection of any debts, or who 28 regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted 8 09cv2734 BTM (BLM) 1 to be owed or due another.” 15 U.S.C. § 1692a(6). The Court agrees with the courts that 2 hold that a mortgagor or mortgage servicing company is not a “debt collector” within the 3 meaning of the FDCPA. See e.g., Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 4 1985) (holding that FDCPA’s definition of debt collector “does not include the consumer’s 5 creditors, a mortgage servicing company, or any assignee of the debt, so long as the debt 6 was not in default at the time it was assigned.”); Walker v. Equity 1 Lenders Group, 2009 WL 7 1364430, at *7 (S.D. Cal. May 14, 2009); Nool v. Homeq Servicing, 653 F. Supp. 2d 1047 8 (E.D. Cal. 2009). 9 The Court also holds that initiating nonjudicial foreclosure proceedings by filing notices 10 of default and filing notices of trustee’s sale does not constitute debt collection activity within 11 the scope of § 1692e. See Hulce v. Ocwen Fed. Bank, FSB, 195 F. Supp. 2d 1188, 1204 12 (D. Or. 2002); Izenberg v. ETS Servs., LLC, 589 F. Supp. 2d 1193, 1198-99 (C.D. Cal. 2008). 13 Although some actions that pertain to foreclosure, such as writing letters to a debtor 14 demanding payment, may constitute debt collection (see, e.g., Wilson v. Draper & Goldberg 15 P.L.L.C., 443 F.3d 373 (4th Cir. 2006) (attorneys wrote letter instructing debtor to make 16 payments)), filing a notice of default or filing a notice of trustee’s sale does not amount to 17 debt collection actionable under § 1692e. 18 Plaintiffs also allege that Defendants violated the Real Estate Settlement Procedures 19 Act (“RESPA”), 12 U.S.C. § 2601 et seq. Again, Plaintiffs do not specificy which provisions 20 Defendants allegedly violated. General allegations or wrongdoing are insufficient, and the 21 allegations here do not give “fair notice of what the . . . claim is and the grounds upon which 22 it rests.” Twombly, 550 U.S. at 555. Plaintiffs must specify which provisions Defendants 23 have violated. 24 For these reasons, the Court DISMISSES without prejudice Plaintiffs’ Eighth Cause 25 of Action in its entirety. 26 // 27 // 28 // 9 09cv2734 BTM (BLM) 1 9. Ninth Cause of Action – Elder Abuse Practices 2 Plaintiffs also allege causes of action under California Civil Code § 1575 (undue 3 influence), California Civil Code § 3345 (treble damages provision), and California Welfare 4 & Institutions Code § 15610.10 (financial elder abuse). The Court addresses each provision 5 separately below. 6 First, Plaintiffs cite to California Civil Code § 1575, which sets forth three types of 7 undue influence. Plaintiffs do not indicate which type of undue influence they allege here. 8 Nevertheless, the Court finds that there are two potentially relevant types of undue influence: 9 “taking advantage of another’s weakness of mind” or “taking a grossly oppressive and unfair 10 advantage of another’s necessities or distress.” Cal. Civ. Code § 1575(2)–(3). Plaintiffs 11 have not alleged facts showing Plaintiffs’ “weakness of mind” or that Defendants took 12 advantage of Plaintiffs’ “necessities or distress.” 13 More importantly, however, the remedy in an action asserting undue influence is 14 rescission of the contract at issue. See O’Neil v. Spillane, 45 Cal. App. 3d 147, 158–59 15 (1975). And in an action for rescission, the party seeking rescission must restore, or offer 16 to restore, to the non-rescinding party all consideration received under the contract. See Cal. 17 Civ. Code § 1691(b). The Plaintiffs here, however, have not done so. Nor have they 18 demonstrated that they are capable of doing so. Karlsen v. Amer. Sav. & Loan Ass’n, 15 19 Cal. App. 3d 112, 118 (1971) (“Simply put, if the offeror ‘is without the money necessary to 20 make the offer good and knows it . . .’ the tender is without legal force or effect”). 21 Second, Plaintiffs cite to California Civil Code § 3345, which is a treble-damages 22 provision regarding elder-abuse claims. It is not an independent cause of action and will only 23 apply if Plaintiffs successfully prove liability under their elder-abuse claim. 24 And third, Plaintiffs cite a provision in the California Welfare & Institutions Code related 25 to financial elder abuse. Cal. Welf. & Inst. Code § 15610.30. Financial abuse occurs when 26 a person takes or appropriates, or assists in taking or appropriating, the property of an elder 27 adult for a “wrongful use or with intent to defraud” or by the use of “undue influence.” Cal. 28 Welf. & Inst. Code § 15610.30(a)(1)–(2). 10 09cv2734 BTM (BLM) 1 Here, Plaintiffs only make general allegations of wrongdoing, and fail to specify which 2 Defendants violated which provisions of these statutes. Vague and conclusory allegations 3 are insufficient to state a claim upon which relief can be granted. Iqbal, 129 S. Ct. at 1949. 4 Plaintiffs must specify which provisions of these statutes Defendants violated and the facts 5 supporting each alleged violation. 6 7 For these reasons, the Court DISMISSES without prejudice Plaintiffs’ Ninth Cause of Action in its entirety. 8 9 10. Tenth Cause of Action – Unfair Business Practices 10 To bring a claim under the California Unfair Competition Law, a plaintiff must show 11 either an (1) “unlawful, unfair or fraudulent business act or practice,” or (2) “unfair, deceptive, 12 untrue, or misleading advertising.” Lippitt v. Raymond James Fin. Servs., 340 F.3d 1033, 13 1043 (9th Cir. 2003) (quoting Cal. Bus. & Prof. Code § 17200). “Prevailing plaintiffs are 14 generally limited to injunctive relief and restitution.” Cel-Tech Commc’ns, Inc. v. Los Angeles 15 Cellular Tel. Co., 20 Cal. 4th 163, 179 (1999). “Plaintiffs may not receive damages . . . or 16 attorney fees.” Id. 17 Plaintiffs have yet again failed to allege anything more than vague and conclusory 18 allegations. 19 regulations,” but do not state which laws Defendants broke and how they broke them. These 20 allegations are insufficient to state a claim. Iqbal, 129 S. Ct. at 1949. For these reasons, the 21 Court DISMISSES without prejudice Plaintiffs’ Tenth Cause of Action in its entirety. Plaintiffs only claim that Defendants “have violated several laws and/or 22 23 11. Eleventh Cause of Action – Declaratory and Injunctive Relief 24 Plaintiffs allege that an actual controversy exists between Plaintiffs and Defendants 25 concerning their respective rights and duties pertaining to the Plaintiff’s property. Under 28 26 U.S.C. § 2201, “[i]n a case of actual controversy within its jurisdiction . . . any court of the 27 United States . . . may declare the rights and other legal relations of any interested party 28 seeking such declaration, whether or not further relief is or could be sought.” Declaratory 11 09cv2734 BTM (BLM) 1 relief should be denied if it will “neither serve a useful purpose in clarifying and settling the 2 legal relations in issue nor terminate the proceedings and afford relief from the uncertainty 3 and controversy faced by the parties.” United States v. Washington, 759 F.2d 1353, 1357 4 (9th Cir. 1985). The Court concludes that the declaratory relief Plaintiffs seek is entirely 5 commensurate with the relief sought through their other causes of action. Thus, Plaintiffs’ 6 declaratory relief claim is duplicative and will neither serve a useful purpose in clarifying legal 7 relations nor terminate the proceedings. See id. The Court has dismissed every other claim 8 Plaintiffs assert. Accordingly, the Court also DISMISSES without prejudice Plaintiffs’ 9 Eleventh Cause of Action for Declaratory and Injunctive Relief. 10 11 IV. CONCLUSION 12 For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss [Docs. 13 4, 6] and DISMISSES without prejudice Plaintiffs’ Complaint in its entirety as against all 14 Defendants. Plaintiffs may file an amended complaint within twenty-one days of the entry 15 of this order. 16 Since the Court has dismissed the Complaint at this point, there does not appear to 17 be any likelihood of success on the merits and the continuance of the injunction previously 18 entered by the state court before removal is questionable. Therefore, the injunction shall 19 remain in effect only for twenty-one days from the entry of this order. At the time of the filing 20 of any amended complaint, Plaintiffs may move for a continuance of the injunction. If such 21 a motion is filed, the injunction will continue for seven days to allow the Court to consider it. 22 IT IS SO ORDERED. 23 DATED: April 23, 2010 24 25 Honorable Barry Ted Moskowitz United States District Judge 26 27 28 12 09cv2734 BTM (BLM)

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