(PS)Seymour v. Wilshire Credit Corporation Home Loans Direct ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARITY PANTALION SEYMOUR, No. 2:19-cv-00564-MCE-KJN 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 NATIONSTAR; MR. COOPER; US BANK N.A. AS TRUSTEE AND 15 SUCCESSOR IN INTEREST TO BANK OF AMERICA, N.A., AS TRUSTEE, 16 SUCCESSOR BY MERGER TO LA SALLE BANK NA AS TRUSTEE FOR 17 MERRILL LYNCH MORTGAGE INVESTERS TRUST, RESMAE 18 MORTGAGE CORPORATION MORTGAGE LOANS ASSET-BACKED 19 CERTIFICATES SERIES 2006-RM5; WILSHIRE CREDIT CORPORAION 20 HOME LOANS DIRECT; DE HDL INC.; LODES CAPITAL ESCROW 21 COMPANY; and DOES 1-100, 22 Defendants. 23 24 /// 25 /// 26 /// 27 /// 28 /// 1 Presently before the Court is a Motion to Dismiss Complaint of Plaintiff Charity 2 Pantalion Seymour (“Plaintiff”) filed by Defendants Nationstar, Mr. Cooper, and U.S. 3 Bank National Association’s (“U.S. Bank”) (collectively, “Moving Defendants”) pursuant 4 to Federal Rule of Civil Procedure 12(b)(6).1 For the reasons set forth below, Moving 5 Defendants’ Motion is GRANTED.2 6 7 BACKGROUND 8 9 A. Factual Background3 10 In 2003, Plaintiff purchased her home with a down payment of $45,000. In July 11 2006, Plaintiff received an advertisement from Home Loans Direct (“HLD”) to refinance 12 her home at a reduced mortgage of $1,200-1,500 per month. Jonathan Anett of HLD 13 served as a loan consultant and promised Plaintiff verbally and in writing that she would 14 obtain a refinanced loan at the advertised monthly rate. ResMAE Mortgage Corporation 15 (“ResMAE”) was the original lender. Ex. 1, Defs.’ RJN, ECF No. 4-1. On August 4, 16 2006, Plaintiff refused to sign the loan because the payments and interest rates were 17 higher than advertised. HLD and ResMAE told Plaintiff that if she agreed to pay $4,800 18 a month for six months, then she would obtain the advertised rates. When Plaintiff still 19 refused to sign, HLD promised in writing that it would refinance the loan at the rate she 20 wanted if she agreed to pay $4,800 a month for six months. Plaintiff agreed and signed 21 the loan. The Deed of Trust, recorded in the San Joaquin County Recorder’s Office on 22 August 16, 2006, identified Mortgage Electronic Registration Systems, Inc. (“MERS”) as 23 the nominal beneficiary for the original lender ResMAE. Ex. 1, Defs.’ RJN, ECF No. 4-1. 24 1 Plaintiff additionally seeks redress from Wilshire Credit Corporation Home Loans Direct, DE HDL 25 Inc., and Lodes Capital Escrow Company. Because the present Motion is brought by Nationstar, Mr. Cooper, and U.S. Bank, the scope of the Court’s Memorandum and Order is limited to those Defendants. 26 2 Because oral argument will not be of material assistance, the Court ordered this matter submitted on the briefs. E.D. Cal. Local Rule 230(g). 27 3 Unless otherwise noted, the following recitation of facts is taken, sometimes verbatim, from 28 Plaintiff’s Complaint. ECF No. 1. 1 After six months of successful payments, Plaintiff contacted HLD and demanded 2 a lower rate as promised. When Plaintiff failed to receive a response from HLD, Plaintiff 3 sent a demand letter to Wilshire Credit Corporation (“Wilshire”), the loan servicer at the 4 time, to resolve the misrepresentations.4 Plaintiff hired legal counsel and on July 14, 5 2008, counsel served a rescission of the loan on HLD, stating that HLD’s security 6 interest was void and thus Plaintiff was entitled to reimbursement for all the money paid 7 in connection with the loan. A second rescission was served on ResMae and Wilshire in 8 2009. Efforts to resolve the rescission failed. 9 On June 30, 2009, Bank of America National Association (“BOA”), as the new 10 servicer and successor-in-interest, filed the first Notice of Default and pursued a 11 foreclosure following Plaintiff’s failure to make payments. Ex. 4, Defs.’ RJN, ECF No. 4- 12 1. Two months later, a Corporate Assignment of Deed of Trust was recorded in the 13 San Joaquin County Recorder’s office, in which MERS assigned beneficial interest in the 14 Deed of Trust to U.S. Bank as successor trustee to BOA. Ex. 2, Defs.’ RJN, ECF No. 4- 15 1. In October of that same year, Plaintiff filed for bankruptcy protection to stop the sale, 16 but the issue of rescission was not resolved during those proceedings. Shortly 17 thereafter, BOA transferred servicing of the loan to Nationstar who proceeded to file and 18 record another Notice of Default and Notice of Sale. 19 To date, Plaintiff’s property has not been sold. On December 26, 2018, a Notice 20 of Trustee’s Sale against Plaintiff’s property was recorded, but no trustee’s sale has 21 occurred. Ex. 5, Defs.’ RJN, ECF No. 4-1. 22 B. Procedural History 23 On August 17, 2009, Plaintiff as a pro se litigant filed a complaint with this Court, 24 setting forth the following causes of action (“COAs”): (1) violation of the Truth in Lending 25 Act (“TILA”); (2) violation of the Real Estate Settlement Procedures Act (“RESPA”); 26 (3) unlawful business practices under California Business and Professions Code § 27 4 The Court notes that the dates provided by Plaintiff do not correlate to the facts. Here, Plaintiff signed the loan in August 2006, but says on February 11, 2008, “one (1) month past the agreed six 28 months,” she sent a demand letter. See Compl., ECF No. 1, ¶¶ 21, 22. 1 17200 (“§ 17200”); (4) fraud; (5) breach of fiduciary duty; (6) negligence; (7) violation of 2 Cal. Civ. Code § 2923.6; (8) various securities-related violations; and (9) violation of 3 California’s Rosenthal Act (“Seymour I”). Ex. 6, Defs.’ RJN, ECF No. 4. Defendants 4 Wilshire, MERS, Merrill Lynch Mortgage Investors, Inc., and Merrill Lynch Investors Trust 5 Series 2006 RM5 filed a motion to dismiss, and ResMAE subsequently filed its own 6 motion to dismiss. On May 13, 2010, the magistrate judge issued an Order and Findings 7 and Recommendations, which recommended Defendants’ motions to dismiss be granted 8 and that Defendants be dismissed with prejudice. The magistrate judge considered 9 Plaintiff’s TILA and RESPA claims, but declined to exercise supplemental jurisdiction 10 over the state law claims. First, the magistrate judge found that Plaintiff’s TILA claim 11 was barred by the statute of limitations, that Plaintiff failed to show an ability to tender 12 loan proceeds, and that Plaintiff’s transaction was a “residential mortgage transaction” 13 within the meaning of 15 U.S.C. § 1602, which exempted Plaintiff from rescission rights. 14 Ex. 8, Defs.’ RJN, ECF No. 4-1, at 8. Second, Plaintiff’s RESPA claim failed because 15 she did not provide any facts showing she made a qualified written request to Wilshire or 16 that Wilshire failed to provide information as required by statute. Id. at 9. This Court 17 adopted the findings and recommendations, and the Ninth Circuit Court of Appeals 18 affirmed that decision. Exs. 7 and 10, Defs.’ RJN, ECF No. 4-1. 19 On January 22, 2019, Plaintiff initiated the present action in the San Joaquin 20 County Superior Court, asserting the following COAs: (1) violation of TILA; (2) violation 21 of RESPA; (3) unlawful business practices under §§ 17200 et seq.; (4) fraud, intentional 22 misrepresentation, and false promises; (5) breach of contract and fiduciary duty; 23 (6) negligence; (7) violation of California Civil Code § 2923.6; (8) slander of title; 24 (9) violations of TILA, RESPA, and the Home Ownership and Equity Protection Act 25 (“HOEPA”);5 (10) intentional infliction of emotional distress; (11) negligent infliction of 26 emotional distress; (12) violation of the Homeowner’s Bill of Rights; and (13) violation of 27 the Fair Debt Collections Practices Act (“FDCPA”) (“Seymour II”). Ex. A, ECF No. 1. 28 5 The Court notes that this COA is based solely on violations of TILA. 1 Moving Defendants removed this action to this Court on April 1, 2019, and subsequently 2 filed the present Motion. ECF Nos. 1, 3. 3 4 STANDARD 5 6 On a motion to dismiss for failure to state a claim under Federal Rule of Civil 7 Procedure 12(b)(6), all allegations of material fact must be accepted as true and 8 construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. 9 Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) “requires only ‘a short and plain 10 statement of the claim showing that the pleader is entitled to relief’ in order to ‘give the 11 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell 12 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 13 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require 14 detailed factual allegations. However, “a plaintiff's obligation to provide the grounds of 15 his entitlement to relief requires more than labels and conclusions, and a formulaic 16 recitation of the elements of a cause of action will not do.” Id. (internal citations and 17 quotations omitted). A court is not required to accept as true a “legal conclusion 18 couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 19 Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief 20 above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & 21 Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the 22 pleading must contain something more than “a statement of facts that merely creates a 23 suspicion [of] a legally cognizable right of action”)). 24 Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket 25 assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3 (internal citations and 26 quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard 27 to see how a claimant could satisfy the requirements of providing not only ‘fair notice’ of 28 the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing Wright & 1 Miller, supra, at 94, 95). A pleading must contain “only enough facts to state a claim to 2 relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . have not nudged their 3 claims across the line from conceivable to plausible, their complaint must be dismissed.” 4 Id. However, “[a] well-pleaded complaint may proceed even if it strikes a savvy judge 5 that actual proof of those facts is improbable, and ‘that a recovery is very remote and 6 unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). 7 A court granting a motion to dismiss a complaint must then decide whether to 8 grant leave to amend. Leave to amend should be “freely given” where there is no 9 “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice 10 to the opposing party by virtue of allowance of the amendment, [or] futility of the 11 amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. 12 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to 13 be considered when deciding whether to grant leave to amend). Not all of these factors 14 merit equal weight. Rather, “the consideration of prejudice to the opposing party . . . 15 carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 16 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that 17 “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group, 18 Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 19 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 20 1989) (“Leave need not be granted where the amendment of the complaint . . . 21 constitutes an exercise in futility . . . .”)). 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 1 ANALYSIS 2 3 Moving Defendants argue that Plaintiff’s present complaint is barred by the 4 doctrines of res judicata and collateral estoppel because the facts alleged in Seymour I 5 are identical to the facts alleged in Seymour II. The Court first addresses Plaintiff’s 6 federal COAs, then turns to the state law COAs.6 7 A. Moving Defendants’ Request for Judicial Notice 8 The court may take judicial notice of public records “without converting a motion 9 to dismiss into a motion for summary judgment.” Lee v. City of Los Angeles, 250 F.3d 10 668, 689 (9th Cir. 2001). Moving Defendants ask the Court to take judicial notice of two 11 sets of documents. The first set of documents was recorded in the San Joaquin County 12 Recorder’s Office: (1) deed of trust, (2) corporate assignment of deed of trust, 13 (3) substitution of trustee, (4) notice of default, and (5) notice of trustee’s sale. As 14 undisputed matters of public record, the Court may take judicial notice of their existence. 15 See Lee, 250 F.3d at 688-89. 16 The second set of documents was filed in this Court: (1) complaint, (2) docket 17 report, (3) order and findings and recommendations, (4) order, and (5) the Ninth Circuit 18 Court of Appeal’s order. Materials from a proceeding in another tribunal are appropriate 19 to be judicially noticed. Biggs v. Terhune, 334 F.3d 910, 916 n.3 (9th Cir. 2003); MGIC 20 Indemnity Corp. v. Weisman, 803 F.2d 500, 504-05 (9th Cir. 1986) (taking judicial notice 21 of allegations made in a motion to dismiss and supporting memorandum filed in a 22 different federal court action). “When a court takes judicial notice of another court’s 23 opinion, it may do so ‘not for the truth of the facts recited therein, but for the existence of 24 the opinion, which is not subject to reasonable dispute over its authenticity.’” Lee, 25 250 F.3d at 690 (quoting Southern Cross Overseas Agencies, Inc. v. Wah Kwong 26 6 Moving Defendants’ Motion to Dismiss generally asserts both res judicata and collateral estoppel as bars to Seymour II. See Defs.’ Mot. Dismiss, ECF No. 3, at 5. However, in their Reply brief to 27 Plaintiff’s Opposition, Moving Defendants argue that res judicata bars Plaintiff’s federal COAs whereas collateral estoppel bars Plaintiff’s state law COAs. Defs.’ Reply, ECF No. 15, at 5. 28 1 Shipping Grp. Ltd., 181 F.3d 410, 426-27 (3rd Cir. 1999)). Accordingly, since the cited 2 documents are all public records filed in this Court, the Court will take judicial notice of 3 the requested documents. However, the Court notices only the existence of documents 4 and not the truth of the facts recited therein. 5 B. Federal COAs 6 Claim preclusion “bars litigation in subsequent action of any claims that were 7 raised or could have been raised in the prior action.” Owens v. Kaiser Foundation 8 Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (internal quotation marks omitted). 9 Under federal law,7 the doctrine of claim preclusion “is applicable whenever there is (1) 10 an identity of claims, (2) a final judgment on the merits, and (3) identity or privity between 11 parties.” Id. Here, the doctrine of claim preclusion will be applied to Plaintiff’s present 12 federal claims: (1) TILA (First COA); (2) RESPA (Second COA); (3) TILA, RESPA, and 13 HOEPA (Ninth COA); and (4) FDCPA (Thirteenth COA). 14 1. Identity of Claims 15 “The central criterion in determining whether there is an identity of claims between 16 the first and second adjudications is whether the two suits arise out of the same 17 transactional nucleus of facts.” Id. at 714. The Court must also consider: “(1) whether 18 rights or interests established in the prior judgment would be destroyed or impaired by 19 prosecution of the second action; (2) whether substantially the same evidence is 20 presented in the two actions; (3) whether the two suits involve infringement of the same 21 right; and (4) whether the two suits arise out of the same transactional nucleus of facts.” 22 See Headwaters Inc. v. United States Forest Serv., 399 F.3d 1047, 1052 (9th Cir. 2005) 23 (quoting Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir. 1982)). 24 In most cases, “the inquiry into the ‘same transactional nucleus of facts’ is 25 essentially the same as whether the claim could have been brought in the first action.” 26 7 Defendants removed this case from California state court on the basis of federal question 27 jurisdiction. ECF No. 1. Federal preclusion rules apply in cases where federal-court jurisdiction is based on the presence of a federal question. See Taylor v. Sturgell, 553 U.S. 880, 891 (2008). 28 1 United States v. Liquidators of European Fed. Credit Bank, 630 F.3d 1139, 1151 2 (9th Cir. 2011). “A plaintiff need not bring every possible claim. But where claims arise 3 from the same factual circumstances, a plaintiff must bring all related claims together or 4 forfeit the opportunity to bring any omitted claim in a subsequent proceeding.” Turtle 5 Island Restoration Network v. U.S. Dep’t of State, 673 F.3d 914, 918 (9th Cir. 2012). 6 “Newly articulated claims based on the same nucleus of facts may still be subject to a 7 [claim preclusion] finding if the claims could have been brought in the earlier action.” 8 Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1078 9 (9th Cir. 2003); United States ex rel. Barajas v. Northrup Corp., 147 F.3d 905, 909 (9th 10 Cir. 1998) (“It is immaterial whether the claims asserted subsequent to the judgment 11 were actually pursued in the action that led to the judgment; rather, the relevant inquiry 12 is whether they could have been brought.”). 13 Plaintiff’s federal COAs are either the same as the claims brought in Seymour I or 14 they are claims that could have been raised because they arise out of the “same 15 transactional nucleus of fact.” Both complaints stem from the purported rescission and 16 occurrences involving the handling of the purported rescission and loan default.8 17 Plaintiff essentially faults the Moving Defendants for moving forward with the foreclosure 18 despite her purported rescission: 19 Defendants have continued to set the home for sale. Plaintiffs have advised Defendants Mr. Cooper of the history 20 of the loan and rescission and provided them with the documents as proof. Mr. Cooper on behalf of Nationstar, 21 Bank of America et al have filed and recorded a Notice of Default and Notice of Sale as they have failed to recognize 22 the Plaintiff’s rights in rescission. Nationstar/Mr. Cooper have chosen to ignore the history of the loan . . . . Mr. Cooper has 23 consistently failed to acknowledge rescission and have consistently denied Plaintiff’s counsel from speaking with Mr. 24 Cooper either with Plaintiff on the phone or without. 25 Compl., ECF No. 1, ¶ 30; see also Pl.’s Opp., ECF No. 13, at 4. However, this Court in 26 8 See, e.g., Compl., ECF No. 1, ¶ 149 (alleging under her FDCPA COA that she was “subjected to 27 collection calls seeking amounts she does not owe” and that Moving Defendants “added late fees and reported her failure to pay to credit bureaus while she was paying the agreed upon loans and after the 28 Notice of Rescission.”). 1 Seymour I established that there was no proper rescission, and this decision was 2 affirmed by the Ninth Circuit. Allowing Plaintiff’s duplicative complaint to move forward 3 would set a terrible precedent. The prior judgment, standing alone, properly adjudicated 4 the case which established that because Plaintiff failed to properly rescind her loan, the 5 case could not stand. Therefore, the identity of claims prong is satisfied. 6 2. Final Judgment on the Merits 7 A dismissal for failure to state a claim constitutes a final judgment for purposes of 8 claim preclusion analysis. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995). 9 Plaintiff argues that because Seymour I did not address the state COAs, claim 10 preclusion does not apply to Seymour II. See Pl.’s Opp. Mot. Dismiss, ECF No. 13, at 11 13 (“Here, the elements for Res Judicata are not present, there was not a finality of 12 judgment, at least with respect to Plaintiff’s state causes of action; hence there is no res 13 judicata with respect to this Complaint.”). Seymour I was dismissed with prejudice as to 14 all claims and Defendants for failure to state a claim, which is considered a final 15 judgment on the merits. Therefore, this element is met.9 16 3. Privity 17 “Privity . . . is a legal conclusion designating a person so identified in interest with 18 a party to former litigation that he represents precisely the same right in respect to the 19 subject matter involved.” Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1052-53 20 (9th Cir. 2005) (internal citations and quotation marks omitted). “Even when the parties 21 are not identical, privity may exist if ‘there is substantial identity’ between the parties, that 22 is, when there is sufficient commonality of interest.’” Tahoe-Sierra Pres. Council, 23 322 F.3d at 1081 (quoting In re Gottheiner, 703 F.2d 1136, 1140 (9th Cir. 1983)). 24 “[P]rivity is a flexible concept dependent on the particular relationship between the 25 parties in each individual set of cases.” Tahoe-Sierra Pres. Council, 322 F.3d at 1081. 26 /// 27 9 Plaintiff appears to concede that Seymour I ruled on her federal COAs. See Pl.’s Opp. Mot. Dismiss, ECF No. 13, at 13 (“The Court only exercised jurisdiction and ruled on the TILA and RESPA 28 causes of action and declined to exercise supplemental jurisdiction over the state causes of action.”). 1 Generally, “federal courts will bind a non-party whose interests were represented 2 adequately by a party in the original suit.” In re Schimmels, 127 F.3d 875, 881 3 (9th Cir. 1997). 4 Plaintiff argues the privity requirement fails because Moving Defendants were not 5 parties to Seymour I, but she misunderstands the law. Privity exists because each 6 Defendant has the same legal right with respect to the subject matter involved—the 7 Deed of Trust and Plaintiff’s property. Nationstar, as the current servicer of the loan, is 8 in privity with Wilshire, the prior servicer of the loan. U.S. Bank, as the current trustee 9 and successor-in-interest to beneficiary of deed of trust, is in privity with Merrill Lynch 10 Investors Trust Series 2006 RM5 and Merrill Lynch Mortgage Investors, Inc., the trust 11 and former beneficiaries. Therefore, there is privity between Defendants. 12 Since the requirements for claim preclusion are met, the Court finds that Moving 13 Defendants’ Motion to Dismiss must be GRANTED as to the federal COAs.10 14 C. State COAs 15 Plaintiff’s federal claims presently dismissed, the Court declines to exercise 16 supplemental jurisdiction over the remaining state COAs. The Court need not address 17 the merits of Moving Defendants’ Motion to Dismiss with respect to the remaining state 18 law COAs, as those issues are now moot. 19 /// 20 /// 21 /// 22 /// 23 10 In her Opposition, Plaintiff argues the Supreme Court’s holding in Jesinoski v. Countrywide 24 Home Loans, Inc., 574 U.S. 259 (2015), should be applied retroactively to revive her TILA and RESPA claims. Pl.’s Opp. Mot. Dismiss, ECF No. 13, at 13-18. “Under controlling precedent from the Supreme 25 Court and the Ninth Circuit, the fact that a judgment may have been wrong, or have rested on a since- repudiated legal principle, does not alter the claim preclusive effect of a final judgment.” Roche Palo Alto LLC v. Apotex, Inc., 526 F. Supp. 2d 985, 999 (N.D. Cal. Sept. 11, 2007) (citing Federated Dep’t Stores, 26 Inc. v. Moitie, 452 U.S. 394, 398 (1981)); see also Clifton v. Atty. Gen. of State of Cal., 997 F.2d 660, 663 (9th Cir. 1993) (“For us to conclude . . . that the district court’s order has become an ‘instrument of wrong’ 27 merely because it rests on a since repudiated rationale would be to nullify the doctrine of res judicata.”). Plaintiff has not shown the Court why it should disturb its prior ruling and therefore, the Court declines to 28 retroactively apply the holding in Jesinoski to revive Plaintiff’s TILA and RESPA claims. 1 2 CONCLUSION 3 4 Based on the foregoing, Moving Defendants’ Motion to Dismiss, ECF No. 3, is 5 | GRANTED without leave to amend. 6 IT IS SO ORDERED. 7 | Dated: February 18, 2020 9 MORRISON C. ENGLAND, J UNITED STATES DISTRI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12