Peebles v. Seterus, Inc. ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DARRELL PEEBLES, on behalf of No. 2:19-cv-00242-JAM-KJN himself and others similarly 12 situated, 13 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S 14 v. MOTION TO DISMISS 15 SETERUS, INC. and DOES 1 through 50, inclusive, 16 Defendants. 17 18 In February 2019, Darrell Peebles filed a class action 19 lawsuit against Seterus, Inc., alleging violations of the Fair 20 Debt Collection Practices Act (“FDCPA”) and the Rosenthal Act— 21 California’s fair debt collection statute. Compl., ECF No. 1. 22 Peebles also brought unfair competition and negligent 23 misrepresentation claims under California state law. See 24 generally Compl. ¶¶ 118-148. Two months later, Seterus filed a 25 motion to dismiss all of Peebles’s claims. Mot. to Dismiss 26 (“Mot.”), ECF No. 7. Following a page-limits dispute, Peebles 27 filed an opposition that better complied with the Court’s filing 28 requirements. Amended Opposition Brief (“Opp’n), ECF No. 20-1; 1 see also Order re Filing Requirements, ECF No. 3-2. Seterus 2 filed a reply. Amended Reply (“Reply”), ECF No. 25.1 3 For the reasons discussed below, the Court GRANTS in part 4 and DENIES in part Seterus’s motion to dismiss. The Court 5 DISMISSES Peebles’s 15 U.S.C. § 1692f, UCL, and negligent 6 misrepresentation claims WITHOUT PREJUDICE. 7 8 I. FACTUAL ALLEGATIONS 9 Peebles lives in Rancho Cordova, California. Compl. ¶ 30. 10 His home is secured by a mortgage that is owned by Fannie Mae and 11 serviced by Seterus. Compl. ¶ 31. While Seterus was servicing 12 the loan, Peebles, at times, defaulted on his payments. Compl. 13 ¶¶ 34-35. When a loan Seterus services becomes more than 45 days 14 delinquent, Seterus sends a form letter referred to as a 15 “California Final Letter.” Compl. ¶ 36. Seterus “occasionally 16 alleged” that Peebles’s loan had become more than 45 days 17 delinquent, at which point Seterus sent Peebles a California 18 Final Letter. Compl. ¶¶ 36-37; see also Exh. A to Compl, ECF No. 19 1-1. Each California Final Letter states: 20 If full payment of the default amount is not received by us . . . on or before [the Expiration Date], we 21 will accelerate the maturity date of your loan and upon such acceleration the ENTIRE balance of the 22 loan . . . shall, at once and without further notice, become immediately due and payable.” 23 24 Exh. A to Compl. (emphasis in original). 25 Peebles alleges that Seterus does not, in fact, “accelerate 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for July 30, 2019. 1 loans in the manner threatened by its California Final Letters.” 2 Compl. ¶ 42. Although the California Final Letter requires 3 recipients to make a “full payment of the default amount” by the 4 Expiration Date to avoid acceleration, Seterus purportedly 5 maintains a practice of not accelerating loans so long as the 6 loan is fewer than 45 days delinquent. Compl. ¶¶ 39-40. Put 7 simply, the collection letters instruct borrowers that, to avoid 8 acceleration, they must pay a larger share of the amount owed 9 than Seterus actually requires. Id. 10 11 II. OPINION 12 A. Legal Standard 13 Federal Rule of Civil Procedure 8(a)(2) requires a “short 14 and plain statement of the claim showing that the pleader is 15 entitled to relief.” A court will dismiss a suit if the 16 plaintiff fails to “state a claim upon which relief can be 17 granted.” Fed. R. Civ. Proc. 12(b)(6). When considering a 18 motion to dismiss, the Court “must accept as true all of the 19 allegations contained in a complaint.” Ashcroft v. Iqbal, 556 20 U.S. 662, 678 (2009). It is not, however, “bound to accept as 21 true a legal conclusion couched as a factual allegation.” Id. 22 “Unwarranted inferences” are likewise “insufficient to defeat a 23 motion to dismiss for failure to state a claim.” Epstein v. 24 Washington Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996). 25 Rule 12(b)(6)’s plausibility standard “is not akin to a 26 probability requirement, but asks for more than a sheer 27 possibility that a defendant has acted unlawfully.” Iqbal, 556 28 U.S. at 678. A claim is plausible “when the plaintiff pleads 1 factual content that allows the court to draw the reasonable 2 inference that the defendant is liable for the misconduct 3 alleged.” Id. 4 B. Judicial Notice 5 Rule 201 of the Federal Rules of Evidence allows a court to 6 take judicial notice of an adjudicative fact that is “not 7 subject to reasonable dispute,” because it (1) “is generally 8 known within the trial court’s territorial jurisdiction”; or 9 (2) “can be accurately and readily determined from sources whose 10 accuracy cannot reasonably be questioned.” Fed. R. Evid. 11 201(a)-(b). A court may take judicial notice of matters of 12 public record. United States ex rel. Lee v. Corinthian 13 Colleges, 655 F.3d 984, 999 (9th Cir. 2011). 14 Seterus requests the Court take judicial notice of (1) the 15 Promissory Note dated March 17, 2008 between Peebles and IndyMac 16 Bank, F.S.P. related to the real property at 4384 Binchy Way, 17 Rancho Cordova, CA 95742; and (2) the Deed of Trust, dated March 18 17, 2008 and recorded in the Official Records of Sacramento 19 County Recorder’s Office on April 1, 2008 as Document No. 20 20080401. RJN, ECF No. 7-2. A recorded deed is a matter of 21 public record, and therefore, a proper subject of judicial 22 notice. The Court GRANTS Seterus’s request for judicial notice 23 of the March 17, 2008 deed of trust. 24 A promissory note, on the other hand, is not a matter of 25 public record. Seemingly, Seterus contends the Court should 26 nonetheless consider the document under the doctrine of 27 incorporation by reference. See RJN (citing Marder v. Lopez, 28 450 F.3d 445, 448 (9th Cir. 2006)). Under this doctrine, “[a] 1 Court may consider evidence on which the complaint ‘necessarily 2 relies’ if: (1) the complaint refers to the document; (2) the 3 document is central to the plaintiff’s claim; and (3) no party 4 questions the authenticity of the copy attached to the 12(b)(6) 5 motion. The court does not find the complaint “necessarily 6 relies” on the promissory note between Peebles and IndyMac Bank. 7 As discussed below, Peebles’s claims do not raise the question 8 of whether Seterus was authorized to engage in the collection 9 practices listed in the California Final Letter. Rather, the 10 issue is whether the California Final Letter accurately 11 reflected Seterus’s practices. The Court DENIES Seterus’s 12 request for judicial notice of the March 17, 2008 promissory 13 note. 14 C. Analysis 15 1. Fair Debt Collection Practices Act 16 The FDCPA is a strict liability statute that prohibits debt 17 collectors “from making false or misleading representations and 18 from engaging in various abusive and unfair practices.” 19 Laungenour v. Northland Grp., Inc., No. 2:12-cv-2995-GEB-DAD, 20 2013 WL 3745727, at *2 (E.D. Cal. July 15, 2013); see also 21 Tourgeman v. Collins Financial Services, Inc., 755 F.3d 1109, 22 1119 (9th Cir. 2014). To state an FDCPA claim, a complaint must 23 plead four elements: (1) the plaintiff is a “consumer” within 24 the meaning of 15 U.S.C. § 1692a(3); (2) the debt at issue 25 arises out of a transaction entered into for personal purposes; 26 (3) the defendant is a debt collector within the meaning of 27 § 1692a(6); and (4) the defendant violated a provision of the 28 FDCPA. Laungenour, 2013 WL 3745727, at *2. Peebles contends 1 that false statements within the California Final Letter violate 2 Sections 1692e and 1692f of the FDCPA. Seterus argues its 3 collection notice is devoid of any false statements, and thus, 4 both claims should be dismissed. The Court finds that although 5 Peebles failed to state a claim under Section 1692f, his 6 allegations—taken as true—plainly state a claim under Section 7 1692e. 8 a. Section 1692e 9 Section 1692e of the FDCPA “broadly prohibits the use of 10 ‘any false, deceptive or misleading representation or means in 11 connection with the collection of any debt.’” Tourgeman, 755 12 F.3d at 1119 (quoting 15 U.S.C. § 1692e). This provision 13 includes a non-exhaustive list of sixteen prohibited practices. 14 See 15 U.S.C. § 1692e. When a debt collector is accused of 15 engaging in one of these practices, a court must ask whether 16 “the least sophisticated debtor” would likely be misled by the 17 communication. Tourgeman, 755 F.3d at 1119. This inquiry is an 18 objective one—courts cannot consider whether the plaintiff was 19 actually misled, but rather, whether a hypothetical, uninformed 20 consumer would have been. Id. The “least sophisticated debtor” 21 may be “uninformed, naïve, and gullible”; however, his 22 interpretation of a collection notice “cannot be bizarre or 23 unreasonable.” Id. Peebles maintains Seterus’s collection 24 notice violated both subsection 5 and subsection 10 of Section 25 1692e. See Compl. ¶ 93. 26 (i) Section 1692e(5) 27 Section 1692e(5) prohibits a debt collector from making a 28 “threat to take any action that cannot legally be taken or that 1 is not intended to be taken.” 15 U.S.C. § 1692e(5). Schwarm v. 2 Craighead, 552 F. Supp. 2d 1056, 1077 (E.D. Cal. 2008) applied a 3 two-prong test to a Section 1692e(5) claim, asking first whether 4 the debt collector “threatened legal action or arrest,” and 5 second, whether the debt collector “could legally take such 6 action and had the intent to do so.” Peebles contends Seterus 7 threatened to accelerate the maturity date of his loan if he did 8 not pay the full default amount by the Expiration date when, in 9 reality, Seterus maintained a policy of only accelerating loans 10 that were more than 45 days past due. Compl. ¶¶ 7, 40, 44-54, 11 57, 96-99. In light of this policy, Peebles contends Seterus’s 12 threat to “immediately” accelerate past-due loans was an empty 13 one; no more than an attempt to inspire “a false sense of 14 urgency.” Compl. ¶ 9. 15 Seterus refutes these allegations, and maintains Peebles’s 16 Section 1692e(5) claim fails because he cannot satisfy either of 17 the two Schwarm prongs. Mot. at 6-8. Seterus first argues a 18 threat to accelerate the maturity date of a loan is neither a 19 “threat of legal action or arrest.” Mot. at 6. The Court 20 declines this invitation to bypass a plain reading of Section 21 1692e(5) for a hypertechnical reading of Schwarm. As Peebles 22 argues, Section 1692e(5) plainly covers “threats to take any 23 action”; not simply civil or criminal enforcement actions. The 24 Ninth Circuit has also never adopted the narrow reading of 25 Section 1692e(5) that Seterus suggests Schwarm requires. The 26 Court finds Peebles’s allegations that Seterus threatened to 27 accelerate the maturity date of his loan qualify as a “threat to 28 take any action” under Section 1692e(5). 1 Furthermore, the Court finds Peebles sufficiently alleged 2 that Seterus did not intend to accelerate past-due loans in the 3 way described by the California Final Letter. The Court is not 4 persuaded by Seterus’s argument that Peebles’s Section 1692e(5) 5 claim must be dismissed because he failed to show Seterus lacked 6 any intent to accelerate Peebles’s loan. See Mot. at 7. It is 7 not Peebles’s burden to produce evidence at this stage in the 8 proceedings. See Fisher v. Bonner, No., 2015 WL 8327949, at *2 9 (E.D. Cal. Dec. 9, 2015) (“A Rule 12(b)(6) is not the 10 appropriate procedural vehicle to test the sufficiency of a 11 plaintiff’s evidence.”). The Federal Rules of Civil Procedure 12 only require complaints to contain sufficient non-conclusory 13 allegations to make out the prima facie elements of a claim. 14 Fed. R. Civ. Proc. 12(b)(6); see Iqbal, 556 U.S. at 678. If 15 anything, Peebles went beyond Rule 12(b)(6)’s pleading standard 16 by appending to his complaint a partial transcript from the 17 deposition of a Seterus officer in a factually analogous case 18 pending in the Middle District of North Carolina. Exhibit B to 19 Compl. While this transcript might neither be admissible at 20 trial nor sufficient to defeat a motion for summary judgment, it 21 is more than enough to help set forth a plausible cause of 22 action. Seterus’s motion to dismiss Peebles’s claim under 15 23 U.S.C. § 1692e(5) is DENIED. 24 (ii) Section 1692e(10) 25 Peebles also states a claim under Section 1692e(10). 26 Section 1692e(10) prohibits “the use of any false representation 27 or deceptive means to collect or attempt to collect any debt.” 28 15 U.S.C. § 1692e(10). Seterus advances three reasons why its 1 threat of acceleration is not a false representation: 2 (1) Seterus has the authority to immediately accelerate a loan 3 in default; (2) Peebles does not allege any facts suggesting 4 that Seterus would not accelerate a loan in default; and (3) the 5 existence of a “grace period” does not make the California Final 6 Letter’s threat of immediate acceleration false. Mot. at 4-6. 7 None of these arguments justify dismissing Peebles’s Section 8 1692e(10) claim. 9 Seterus’s first argument mischaracterizes the basis of 10 Peebles’s claim. Peebles does not challenge Seterus’s authority 11 to immediately accelerate a loan. Rather, Peebles contends the 12 California Final Letter misrepresents the circumstances under 13 which Seterus will, in fact, immediately accelerate a loan. 14 Compl. ¶¶ 40, 43-44. If a statement in Seterus’s collection 15 notice is false, it is false, notwithstanding Seterus’s 16 authority to conduct the practice described. 17 Seterus’s second argument similarly misconstrues Peebles’s 18 claim. Peebles’s claim does not depend upon the notion that 19 Seterus never accelerates defaulted loans. Rather, Peebles 20 contends the California Final Letter’s threat to immediately 21 accelerate a loan absent payment of the full default amount is 22 false because Seterus would not always accelerate a loan under 23 those circumstances. As previously discussed, Peebles has 24 sufficiently alleged that Seterus’s acceleration policy in 25 practice was different from its acceleration policy as described 26 in the California Final Letter. 27 Finally, Seterus urges the Court to dismiss Peebles’s 28 Section 1692e(10) claim because allowing borrowers a “grace 1 period” does not make its threat of immediate acceleration 2 false. Seterus cites Warran v. Smith Debnam Narron, Drake 3 Saintsing & Myers, LLP, No. 7:10-cv-00071-BO, 2011 WL 10858230, 4 at *3-4 (E.D.N.C. April 19, 2011) for the proposition that a 5 debt collector does not violate the FDCPA when it affords a 6 borrower greater latitude than the FDCPA requires. In Warran, a 7 borrower sued a debt collector under the FDCPA, alleging the 8 defendant’s collection notice allowed 45 days to challenge or 9 request verification of the debt when the FDCPA only afforded 10 borrowers 30 days to challenge or request verification of a 11 debt. Id. at *2-3. The district court found that, so long as 12 the debt collectors honored their 45-day guarantee, the notice’s 13 45-day provision was not a “false statement” in violation of 14 1692e(10). 15 The allegations here only resemble those in Warran if the 16 Court closes one eye and squints with the other. In Warran, the 17 debt collector was allowed to be inconsistent with the FDCPA 18 because the inconsistency granted borrowers more protection; not 19 less. Here, Peebles does not allege Seterus violated the FDCPA 20 by granting him more leniency than the statute requires. He 21 argues that Seterus violated the FDCPA by threatening harsher 22 enforcement than it actually implements. Seterus describes its 23 after-the-fact leniency as a “grace period,” and urges the court 24 to see generosity where Peebles alleges deception. But the 25 FDCPA is a strict liability statute. If Seterus’s threat to 26 immediately accelerate the maturity date of a loan absent 27 payment of the full default amount does not mirror its actual 28 acceleration policy, it is a false statement. A debt 1 collector’s claimed intent does not factor into the analysis. 2 Section 1692e(10) does, however, requires plaintiffs to 3 allege more than the existence of a false representation. They 4 must also allege the false representation was material. 5 Afewerki, 868 F.3d at 775-76. Material false representations 6 are those that could “cause the least sophisticated debtor to 7 suffer a disadvantage in charting a course of action” in 8 response to the debt collector’s collection efforts. Id. at 9 776. By contrast, a false representation is immaterial if it is 10 “literally false but meaningful only to the hypertechnical 11 reader.” Id. 12 In Afewerki, the Ninth Circuit emphasized that the 13 materiality requirement “remains a fairly narrow exception to 14 the general rule requiring accuracy in communications from debt 15 collectors.” Id. It also recounted the facts of several cases 16 where it had found material and immaterial misrepresentations. 17 Id. at 774-76. For example, in Donohue v. Quick Collect, Inc., 18 592 F.3d 1027, 1033-34 (9th Cir. 2010), a debt collector 19 incorrectly described a $32.89 charge as “interest due” when the 20 amount also included certain “finance charges.” Afewerki, 868 21 F.3d at 775. The Ninth Circuit found this representation—albeit 22 false—was not material because an incorrect characterization of 23 a correct amount “would not affect a consumer’s ability to make 24 intelligent decisions.” Id. (quoting Donohue, 592 F.3d at 25 1034). In Tourgeman, on the other hand, the Ninth Circuit found 26 the misidentification of a consumer’s original creditor in a 27 dunning letter was both false and materially so. Id. at 776 28 (citing Tourgeman, 755 F.3d at 1121). “Without knowing the 1 identity of the original creditor,” Tourgeman explained, “a 2 debtor might be frustrated in an attempt to discover how he 3 incurred the debt or to obtain his payment records.” Id. 4 In Afewerki itself, a debt collector mistakenly filed a 5 complaint against a debtor in state court that listed the debt 6 amount and interest rate. Id. at 773-74. The debtor hired an 7 attorney who pointed out the errors, and the debt collector 8 promptly corrected them. Id. at 774. The district court found 9 the errors were not material because the debt collector 10 eventually would have had to prove the correct amount owed. Id. 11 The Ninth Circuit reversed, explaining that the correct inquiry 12 was not whether this specific debtor would have been 13 disadvantaged by the misstatement, but rather, whether the error 14 could have disadvantaged the hypothetical, least sophisticated 15 debtor. Id. at 775. The Ninth Circuit then answered this 16 question, finding that the least sophisticated debtor “may well 17 have simply paid the amount demanded in the complaint,” 18 resulting in overpayment of $3,000. Id. at 777. Similarly, the 19 state court case could have proceeded to default judgment. Id. 20 Given the debt collector’s false statement could have caused 21 these disadvantages, the Ninth Circuit deemed them material. 22 Id. 23 The Court finds that Peebles, like the plaintiffs in 24 Donohue and Afewerki, alleged a material violation. Peebles’s 25 claim hinges on the question of what amount a borrower must pay 26 by the Expiration Date to prevent Seterus from immediately 27 accelerating his loan. The California Final Notice states the 28 borrower must pay the full default amount. Exhibit A to Compl. 1 Peebles, however, alleges, a debtor need only pay enough to 2 bring the loan fewer than 45 days past due. Compl. ¶ 39-40. In 3 some scenarios, these two amounts will be starkly different. 4 And in all scenarios, it will cost a debtor more to pay the full 5 default amount than a partial amount. Assuming the California 6 Final Letter falsely represents how much a debtor must pay to 7 avoid immediate acceleration of his loan, this misrepresentation 8 is material. A borrower undoubtedly “suffer[s] a disadvantage 9 in charting a course of action in response to [a] collection 10 effort” when he is told he must pay more than necessary to avoid 11 dire consequences. Because the complaint alleges Seterus made a 12 material false representation, Peebles properly stated a claim 13 under 15 U.S.C. § 1692e(10). Seterus’s motion to dismiss this 14 claim is DENIED. 15 b. Section 1692f 16 Section 1692f of the FDCPA prohibits a debt collector from 17 using “unfair or unconscionable means to collect or attempt to 18 collect any debt.” 15 U.S.C. § 1692f. This provision also 19 lists eight non-exhaustive examples of “unfair or 20 unconscionable” conduct. See id. Peebles contends the empty 21 threat of acceleration that violates Section 1692e also violates 22 Section 1692f. Compl. ¶¶ 103-08. To be sure, “one action can 23 give rise to multiple violations of the [FDCPA].” Clark v. 24 Capital Credit & Collection Serv., 460 F.3d 1162, 1177-78 (9th 25 Cir. 2006). But, as Seterus argues, a plaintiff cannot obtain 26 relief under Section 1692f if the conduct challenged is not at 27 least “comparable with the conduct condemned” by that provision. 28 Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507, 1519 (9th 1 Cir. 1994); see also Mot. at 9. Furthermore, at least one 2 district court in California has found that Section 1692e’s 3 specific coverage of false and misleading statements by debt 4 collectors counsels against reading Section 1692f to proscribe 5 the same conduct. Cunningham v. Meridian Credit Group, LLC, No. 6 18-cv-1889-JGB-SHKx, 2019 WL 643966, at *5 (C.D. Cal. Feb. 11, 7 2019). Peebles has not adequately explained how the false 8 threat of acceleration is comparable to any of the categories 9 listed in Section 1692f. See Opp’n at 11-12. Nor does the 10 Court see a resemblance. The Court DISMISSES Peebles’s Section 11 1692f claim WITHOUT PREJUDICE. 12 2. Rosenthal Act 13 The Rosenthal Act incorporates by reference the 14 prohibitions contained in Section 1692b to 1692j of the FDCPA. 15 Cal. Civ. Code § 1788.17. Peebles’s Rosenthal Act claims are 16 therefore derivative of his FDCPA claims. See Afewerki, 868 17 F.3d at 776. Given that the Court has found Peebles stated a 18 claim under Section 1692e(5),(10) of the FDCPA, the Court DENIES 19 Seterus’s motion to dismiss Peebles’s Rosenthal Act claim. 20 3. Unfair Competition 21 California’s Unfair Competition Law (“UCL”) prohibits 22 corporations from engaging in “any unlawful, unfair or 23 fraudulent business act or practice.” Cal. Bus. Prof. Code 24 § 17200. UCL claims are governed by the “reasonable consumer” 25 test. Williams v. Gerber Products Co., 552 F.3d 934, 938 (9th 26 Cir. 2008). “Under the reasonable consumer standard, 27 [plaintiffs] must show that members of the public are likely to 28 be deceived [by the business practice.]” Id. 1 Seterus argues the Court need not address the reasonable 2 consumer test because Peebles lacks standing to even bring a UCL 3 claim. Mot. at 11. A plaintiff lacks standing under the UCL 4 unless he (1) establishes a loss or deprivation of money or 5 property sufficient to qualify as an injury in fact, and 6 (2) shows the economic injury suffered was caused by the unfair 7 business practice challenged. Gerber v. Citigroup, Inc., No. 8 07-cv-0078-WBS-JFM, 2009 WL 248094, at *7 (E.D. Cal. Jan. 29, 9 2009), findings and recommendations adopted by 2009 WL 2058576 10 (E.D. Cal. July 14, 2019). Peebles does not allege he lost 11 money or property as a result of Seterus’s collection notice. 12 See Opp’n at 13-14. Rather, he claims Seterus’s representation 13 “created a substantial risk that Plaintiff and others similarly 14 situated would lose real dollars . . . by paying more money than 15 was necessary to avoid acceleration.” Id. Peebles does not 16 cite any authority for the proposition that a “substantial risk” 17 of monetary loss confers standing under the UCL. 18 Peebles also argues that the threat of foreclosure may 19 serve as the basis for UCL standing. Opp’n at 14. Courts have 20 indeed allowed plaintiffs to bring UCL claims to enjoin 21 foreclosure proceedings that were ongoing or imminent. See 22 Foronda v. Wells Fargo Home Mortgage, Inc., No. 14-cv-03513, 23 2014 WL 6706815, at *9 (N.D. Cal. Nov. 26, 2014) (collecting 24 cases). Peebles does not allege that Seterus has initiated 25 foreclosure proceedings against his property or that foreclosure 26 proceedings are imminent. See generally Compl. Although the 27 California Final Notice threatened “immediate” acceleration of 28 the maturity date of Peebles’s loan if he did not pay the full 1 default amount by the Expiration Date, it did not threaten 2 foreclosure with the same degree of certainty. See Exhibit A to 3 Compl. Rather, the notice only says continued default “may” 4 result in foreclosure proceedings. Nothing in the complaint or 5 the briefings suggest foreclosure is imminent. Peebles 6 therefore lacks UCL standing on that basis. The Court DISMISSES 7 Peebles’s UCL claim WITHOUT PREJUDICE. 8 4. Negligent Misrepresentation 9 To plead a claim of negligent misrepresentation, a plaintiff 10 must allege: (1) defendant misrepresented a past or existing 11 material fact, (2) without reasonable ground for believing it to 12 be true, (3) with intent to induce another’s reliance on the fact 13 misrepresented; (4) justifiable reliance on the 14 misrepresentation; and (5) resulting damage. As Seterus argues, 15 the complaint does not allege a “resulting damage.” Nor does 16 Plaintiff’s opposition explain how he was harmed. The Court 17 DISMISSES Peebles’s negligent misrepresentation claim WITHOUT 18 PREJUDICE. 19 20 III. ORDER 21 For the reasons set forth above, the Court GRANTS in part 22 and DENIES in part Seterus’s motion to dismiss. The Court 23 DISMISSES Peebles’s 15 U.S.C. § 1692f, UCL, and negligent 24 misrepresentation claims WITHOUT PREJUDICE. If Peebles elects to 25 amend his complaint with respect to these claims, he shall file 26 an Amended Complaint within twenty (20) days of this Order. 27 Seterus’s responsive pleading is due twenty (20) days thereafter. 28 The Court’s Order re Filing Requirements (“Order”), ECF No. 1 3-2, limits memoranda in support of and opposition to motions to 2 dismiss to fifteen pages. Order at 1. A violation of the Order 3 requires the offending counsel (not the client) to pay $50.00 per 4 | page over the page limit to the Clerk of Court. Id. The Court 5 does not consider arguments made past the page limit. Id. 6 Plaintiff’s counsel initially filed a 36-page opposition. ECF 7 No. 18. The Court, in exercising its discretion, allowed counsel 8 to file an amended opposition. ECF No. 24. Notwithstanding this 9 allowance, Plaintiff’s counsel filed another opposition that 10 exceeded the Court’s page limits. Plaintiff’s counsel must 11 therefore send a check payable to the Clerk for the Eastern 12 District of California for $50.00 no later than seven days from 13 the date of this Order. 14 IT IS SO ORDERED. 15 Dated: September 17, 2019 16 kA 7 Geren aaa pebrsacr 00k 18 19 20 21 22 23 24 25 26 27 28 17