Hoffman Brothers Harvesting, Inc. v. County of San Joaquin ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HOFFMAN BROTHERS HARVESTING, No. 2:20-cv-00660-TLN-AC INC., a California corporation; PAUL D. 12 HOFFMAN & SONS, a partnership; RONALD E. HOFFMAN; and CARL R. 13 HOFFMAN, ORDER 14 Plaintiffs, 15 v. 16 COUNTY OF SAN JOAQUIN; DAVID KWONG, Director, San Joaquin 17 Community Development Department; JUANITA M. HUERTA, Code 18 Enforcement Officer, San Joaquin County Code Enforcement; and DOES 1 to 10, 19 Defendants. 20 21 22 This matter is before the Court on Defendants’ County of San Joaquin (“County”), David 23 Kwong, and Juanita M. Huerta’s (collectively, “Defendants”) Motion to Dismiss. (ECF No. 6.) 24 Plaintiffs Hoffman Brothers Harvesting Inc., Paul D. Hoffman & Sons, Ronald E. Hoffman, and 25 Carl R. Hoffman (collectively, “Plaintiffs”) oppose Defendants’ motion. (ECF No. 20.) 26 Defendants have filed a reply. (ECF No. 22.) For the reasons set forth herein, Defendants’ 27 Motion to Dismiss is hereby GRANTED. (ECF No. 6.) 28 / / / 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiffs bring this action against Defendants for purported violations of their 3 constitutional rights when County “down-zoned” Plaintiffs’ property and required them to apply 4 for a land use permit to continue business operations. (See ECF No. 1.) 5 Plaintiffs purchased real property located at 26577 S. Banta Road in Tracy, California, in 6 1982. (Id. at 3.) Since that time, Plaintiffs have openly operated their property as a harvesting 7 and trucking business, which included truck parking on the property. (Id. at 4.) Plaintiffs further 8 allege that prior to their purchase of the property in 1982, trucks were permitted to park on the 9 property without special land use permits. (Id.) 10 On September 23, 2019, Plaintiffs allege Defendants issued a “Notice of Violation and 11 Order to Abate” on the basis that Plaintiffs were operating a “trucking company” without a proper 12 land use permit. (ECF No. 1 at 4; ECF No. 6-2 at 5.) Plaintiffs allege they were first informed of 13 a zoning change on October 24, 2019, by Code Enforcement Officer Huerta, which is also when 14 they received the “Final Notice and Order to Abate” regarding their trucking operations. (ECF 15 No. 1 at 4; ECF No. 6-2 at 5.) 16 Plaintiffs allege their zoning was changed “from ‘M-2 (Heavy Industrial)’ to ‘IW 17 (Warehouse Industrial)’” which required them to get a “a special use permit” to continue 18 operating their property as it had been used for “at least 40 years.” (ECF No. 1 at 2, 5.) Plaintiffs 19 do not include any allegations about what they must do in order to get the permit, the 20 requirements of the new zoning, or what they must do to comply with the new zoning 21 requirements. (See id.) However, Plaintiffs indicate it would cost “more than $2,000,000 to 22 make [] modifications to the [p]roperty” to get the needed permit which is so “expensive” it 23 renders their “[p]roperty totally without any value . . . [and] a huge liability.” (Id. at 2, 5.) 24 Plaintiffs initiated the current action on March 27, 2020. (ECF No. 1.) The operative 25 complaint asserts two causes of action pursuant to 42 U.S.C § 1983 (“§ 1983”) for: (1) 26 unconstitutional taking in violation of the Fifth and Fourteenth Amendments; and (2) a due 27 process violation of the Fourteenth Amendment. (Id. at 5–6.) 28 / / / 1 On May 19, 2020, Defendants filed the instant motion to dismiss. (ECF No. 6.) Plaintiffs 2 oppose the motion (ECF No. 20), and Defendants replied (ECF No. 22.) On June 28, 2021, 3 Defendants filed a notice of new supreme court authority relevant to their motion, which the 4 Court has reviewed. (ECF No. 23.) 5 II. STANDARD OF LAW 6 A. Federal Rule of Civil Procedure 12(b)(1) 7 A motion under Rule 12(b)(1) challenges a federal court’s jurisdiction to decide claims 8 alleged in the complaint. Fed. R. Civ. P. 12(b)(1); see also id. at 12(h)(3) (“If the court 9 determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the 10 action.”); Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009) (holding the court may 11 determine jurisdiction on a Rule 12(b)(1) motion unless “the jurisdictional issue is inextricable 12 from the merits of a case”) (internal citations omitted). 13 A Rule 12(b)(1) motion attacking subject matter jurisdiction may be either facial or 14 factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). When the motion is a facial attack, 15 the court only considers the allegations in the complaint and any documents attached to the 16 complaint or referred to in the complaint. Gould Electronics Inc. v. U.S., 220 F.3d 169, 176 (3rd 17 Cir. 2000). The court accepts all the material factual allegations in plaintiff’s complaint as true. 18 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). “[J]urisdiction must be 19 shown affirmatively, and that showing cannot be made by drawing from the pleadings inferences 20 favorable to the party asserting it.” Shipping Financial Services Corp. v. Drakos, 140 F.3d 129, 21 131 (2nd Cir. 1998) (citing Norton v. Larney, 266 U.S. 511, 515 (1925)). 22 When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction “in fact,” 23 no presumption of truthfulness attaches to the plaintiff's allegations. Thornhill Pub. Co., Inc. v. 24 Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). Rather, “the district court is not 25 restricted to the face of the pleadings, but may review any evidence, such as affidavits and 26 testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. 27 United States, 850 F.2d 558, 560 (9th Cir. 1988). “Once challenged, the party asserting subject 28 matter jurisdiction has the burden of proving its existence.” Robinson, 586 F.3d at 685 (quoting 1 Rattlesnake Coal. v. E.P.A., 509 F.3d 1095, 1102 n.1 (9th Cir. 2007)). 2 B. 12(b)(6) 3 A motion to dismiss for failure to state a claim upon which relief can be granted under 4 Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th 5 Cir. 2001). Rule 8(a) requires that a pleading contain “a short and plain statement of the claim 6 showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 7 (2009). Under notice pleading in federal court, the complaint must “give the defendant fair notice 8 of what the claim . . . is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 9 544, 555 (2007) (internal quotations omitted). “This simplified notice pleading standard relies on 10 liberal discovery rules and summary judgment motions to define disputed facts and issues and to 11 dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 12 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 13 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give the plaintiff the benefit of every 14 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 15 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 16 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 17 relief.” Twombly, 550 U.S. at 570. 18 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 19 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). 20 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 21 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. Thus, a 22 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 23 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 24 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 25 statements, do not suffice.”). Moreover, it is inappropriate to assume the plaintiff “can prove 26 facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not 27 been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 28 U.S. 519, 526 (1983). 1 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 2 facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim 3 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 4 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 5 680. While the plausibility requirement is not akin to a probability requirement, it demands more 6 than “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility 7 inquiry is “a context-specific task that requires the reviewing court to draw on its judicial 8 experience and common sense.” Id. at 679. Thus, only where a plaintiff fails to “nudge [his or 9 her] claims . . . across the line from conceivable to plausible [,]” is the complaint properly 10 dismissed. Id. at 680 (internal quotations omitted). 11 In ruling on a motion to dismiss, a court may only consider the complaint, any exhibits 12 thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. 13 See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. 14 Consumers Union of U.S., Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998). 15 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 16 amend even if no request to amend the pleading was made, unless it determines that the pleading 17 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 18 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). 19 III. JUDICIAL NOTICE 20 As a preliminary matter, Defendants request the Court to take judicial notice of Exhibits 1, 21 2, and 3. (ECF No. 6-2.) Judicial notice allows a court to consider an adjudicative fact “if it is not 22 subject to reasonable dispute.” Fed. R. Evid. 201(b). A fact is not subject to reasonable dispute if 23 it can be “accurately and readily determined from sources whose accuracy cannot reasonably be 24 questioned.” Fed. R. Evid. 201(b)(2). On a motion to dismiss a court may take judicial notice of 25 documents attached to the complaint, documents incorporated by reference in the complaint, or 26 matters of judicial notice. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). The Court 27 may take judicial notice of a record of a state agency not subject to reasonable dispute for 28 1 purposes of a motion to dismiss. See Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 2 (9th Cir. 1986). 3 Exhibit 1 is the September 23, 2019 Notice and Order to Abate. Exhibit 2 is the October 4 24, 2019 Final Notice and Order to Abate. Exhibit 3 is selected sections of the San Joaquin 5 County Development Title. Plaintiffs do not oppose Defendants’ request and do not dispute the 6 authenticity of any of the exhibits. 7 As to Exhibits 1 and 2, both exhibits were sent by Defendants, a government agency, to 8 Plaintiffs. (Ex. 1, ECF No. 6-2 at 5, 7.) Correspondence between government agencies and 9 members of the public has been found to be appropriate for judicial notice when unopposed. 10 Torrance Redevelopment Agency v. Solvent Coating Co., 763 F. Supp. 1060, 1066 (C.D. Cal.), on 11 reconsideration, 781 F. Supp. 650 (C.D. Cal. 1991) (taking judicial notice of two letters written 12 by a governmental agency when the plaintiff did not oppose the request). Moreover, the request 13 to notice these Exhibits is unopposed and the Complaint explicitly references both notices. (See 14 generally ECF No. 1.) The Court finds Exhibits 1 and 2 appropriate for judicial notice and 15 Defendants’ request as to these exhibits is GRANTED. 16 Exhibit 3 is comprised of “Selected Sections of the San Joaquin County Development 17 Title.” (Ex. 3, ECF No. 6-2 at 8–27.) The Development Title is a state agency record that is a 18 proper subject of judicial notice because its authenticity can be accurately and readily determined 19 from sources whose accuracy cannot be reasonably disputed. Accordingly, Defendants’ request 20 to judicially notice Exhibit 3 which includes section of the County’s Development Title is hereby 21 GRANTED. 22 IV. ANALYSIS 23 Plaintiffs allege claims for an unconstitutional taking of their property and violations of 24 substantive and procedural due process. (See ECF No. 1.) Defendants move to dismiss 25 Plaintiffs’ claims for lack of subject-matter jurisdiction under Rule 12(b)(1) and, in the 26 alternative, for failure to state a claim upon which relief may be granted under Rule 12(b)(6). 27 (See ECF No. 6-1.) As the Court finds it lacks subject matter jurisdiction over each claim under 28 1 Rule 12(b)(1), it does not reach the parties’ arguments under 12(b)(6). The Court will evaluate 2 the parties’ arguments as to each claim. 3 A. Unconstitutional Taking (Claim One) 4 Plaintiffs assert an unconstitutional takings claim under the Fifth and Fourteenth 5 Amendments to the U.S. Constitution and Article I, Sections 1, 7(a), and 19(a) of the California 6 Constitution. (ECF No. 1 at 5.) Defendants move to dismiss this claim as unripe because 7 Plaintiffs have not alleged facts showing that there has been a “final administrative decision” 8 concerning their property as required under Supreme Court precedent. (ECF No. 6-1 at 8.); 9 Williamson Cnty. Reg’l Plan. Comm’n v. Hamilton Bank of Johnson City (Williamson County), 10 473 U.S. 172, 186 (1985). More specifically, Defendants argue agency decisionmakers have had 11 no opportunity to evaluate Plaintiffs’ claim or application, and therefore the finality requirement 12 from Williamson County cannot be met. (Id. at 10.) 13 In opposition, Plaintiffs do not dispute that they have not exhausted their state remedies 14 but instead argue that under Knick v. Township of Scott, a recent Supreme Court case overruling 15 parts of Williamson County they may proceed directly to federal court without having to first 16 exhaust potentially available state remedies. (ECF No. 20 at 3. (citing Knick, 139 S. Ct. 2162, 17 2170 (2019).) Therefore, Plaintiffs contend there is no need to seek any further application or 18 decision from Defendants because as soon as their property was “down-zoned” and the pre- 19 existing use “was made illegal, [P]laintiffs suffered a taking . . . in violation of the Fifth 20 Amendment,” and the case is currently ripe. (Id.) 21 To assert a takings claim, a “plaintiff must affirmatively establish that it has been denied 22 just compensation” as only takings without just compensation are prohibited by the Takings 23 Clause. North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 485 (9th Cir. 2008) (citing 24 Williamson County, 473 U.S. at 195). A regulatory taking occurs when a government regulation 25 on the use of property “goes too far.” Penn. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). 26 The Supreme Court articulated two independent ripeness requirements for regulatory 27 takings claims: first, that the government entity charged with implementing the regulations reach 28 a final decision regarding the application of the regulations to the property; and second, that the 1 plaintiff seek compensation through procedures provided by the State before bringing his claim to 2 federal court. Williamson County, 473 U.S. at 186, 194. In Knick v. Township of Scott, the 3 Supreme Court eliminated the second requirement but left the “final decision” requirement intact. 4 Knick, 139 S. Ct. at 2169–70. A final decision is made when the applicable decisionmakers have 5 had an opportunity to exercise their high degree of discretion regarding a takings of plaintiff’s 6 particular property. See Suitum v. Tahoe Reg’l Plan. Agency, 520 U.S. 725, 738 (1997). Prior to 7 bringing a regulatory takings claim, a plaintiff must make at least one “meaningful” request and 8 be denied a variance or other action providing similar relief from the challenged regulation. S. 9 Pac. Transp. C. v. City of Los Angeles, 922 F.2d 498, 503 (9th Cir. 1990). 10 The Supreme Court recently clarified the administrative finality prong of Williamson 11 County when it vacated and remanded the Ninth Circuit’s decision in Pakdel v. City and County 12 of San Francisco, California, 141 S. Ct. 2226 (2021); 977 F.3d 928 (9th Cir. 2020). The 13 Supreme Court rejected the Ninth Circuit’s requirement to seek “an exemption through prescribed 14 [state] procedures” because the plaintiffs had in fact requested exemptions from regulations and 15 been denied. Pakdel, 141 S. Ct. at 2230. The Court held that administrative exhaustion of state 16 remedies is not a prerequisite for a takings claim “when the government has reached a conclusive 17 position.” Id. However, the Court further explained its position reasoning “a plaintiff’s failure to 18 properly pursue administrative procedures may render a claim unripe if avenues still remain for 19 the government to clarify or change its decision.” Id. at 2231. 20 Defendants maintain the zoning change alone is not a final administrative decision for 21 purposes of ripeness even if it renders Plaintiffs’ existing operations as nonconforming because 22 Plaintiffs must submit at least one “meaningful application” or request for relief from the 23 requirements of the new zoning before coming into a federal forum. (ECF No. 22 at 3–4.) 24 Plaintiffs’ Complaint includes no allegations that they sought variances or exemptions 25 from the “down-zoning” or “special use permit.” (See ECF No. 1.) Plaintiffs simply assert in 26 their opposition that there are no “avenue[s] to appeal or challenge . . . [the] down-zoning or order 27 to close their business.” (ECF No. 20 at 2.) Defendants maintain there are several avenues for 28 Plaintiffs to continue their trucking operations as they had before the “down-zoning,” such as 1 applying for a site approval, seeking a variance for relief from zoning standards, or applying for 2 nonconforming use. (ECF No. 6-1 at 9, ECF No. 6-2 at 8–27.) Plaintiffs failed to allege the 3 “down-zoning” was final nor did Plaintiffs allege that they requested any alternative relief and 4 received a final administrative decision. (ECF No. 20 at 2–3; see ECF No. 1.); 473 U.S. at 186– 5 90. Plaintiffs’ failure to include any allegations of requesting an exemption or any kind of relief 6 from the new zoning requirements does not satisfy the finality requirement of Williamson. 473 7 U.S. at 191.1 Accordingly, they have not sufficiently alleged a takings claim and Defendants’ 8 motion to dismiss on this basis is GRANTED. 9 B. Due Process Violation (Claim Two) 10 i. Substantive Due Process 11 Defendants argue that the substantive due process claim fails as unripe because Plaintiffs 12 failed to make at least one meaningful application for some type of variance for applicable land 13 uses under their new zoning requirement. (ECF No. 6-1 at 10–11.) In opposition, Plaintiffs argue 14 they cannot now challenge the down-zoning because they have lost their right to appeal the 15 decision. (ECF No. 20 at 3–4.) Consequently, Plaintiffs argue the due process claim is ripe 16 because the “down-zoning” decision is final and the “long-standing use of the property is 17 prohibited.” (Id.) 18 The Court agrees with Defendants. In Kinzli, the Ninth Circuit held that a substantive due 19 process claim was unripe when “the City ha[d] not yet made a final decision regarding the 20 property.” Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1456 (9th Cir.), amended, 830 F.2d 968 21 (9th Cir. 1987). The Court found that the plaintiffs needed to “first obtain a final decision 22 regarding the application of regulations to their property and the availability of variances,” and 23 24 1 To the extent Plaintiffs argue that their inability to appeal satisfies the finality 25 requirement, this argument is unpersuasive. Plaintiffs were provided with the opportunity to appeal the Notice of Violation and Order to Abate within thirty days. (ECF No. 6-2 at 5.) 26 Plaintiffs have not alleged that they appealed this Notice or were unable to appeal. They now 27 state that they have “lost their right to appeal,” and even appear to mislead the Court in stating that they did not have “any avenue to appeal.” However, a party cannot miss a deadline and use 28 the now unavailable appeal process as the basis for the finality requirement. 1 the “absence of a meaningful application” rendered their substantive due process claim unripe for 2 review and the claim was dismissed for lack of jurisdiction. Id. at 1456–57. 3 The Court finds Plaintiffs’ substantive due process claim unripe for the same reason 4 Plaintiffs’ takings claim is unripe. Plaintiffs have failed to include any allegation that they 5 requested and were denied an exemption or variance from the contested land use regulation. 6 Further, Plaintiffs’ argument that they have “lost the right of appeal” regarding the down-zoning 7 is unavailing because there are still avenues remaining “for the government to clarify or change 8 its decision.” (ECF No. 20 at 4.); Pakdel, 141 S. Ct. at 2231. Accordingly, this Court finds 9 Plaintiffs failed to sufficiently allege that their substantive due process claim is ripe for review. 10 ii. Procedural Due Process 11 Defendants argue Plaintiffs’ procedural due process claim fails because there are available 12 state law remedies, and since Plaintiffs have admittedly made no attempt to explore state 13 remedies there cannot be a violation of procedural due process “and thus cannot invoke this 14 Court’s jurisdiction.” (ECF No. 6-1 at 11–12.) 15 Plaintiffs argue in their opposition that their property “was down-zoned without notice” 16 and “there is no procedure by which the down-zoning may now be challenged.” (ECF No. 20 at 17 3–4.) Thus, Plaintiffs assert that there are no adequate state law remedies because their business 18 has been declared illegal and they have been ordered to terminate their operations due to the new 19 zoning. (Id. at 4.) 20 21 “The requirements of procedural due process apply only to [government] deprivation of 22 interests encompassed by the Fourteenth Amendment’s protection of liberty and property.” 23 Board of Regents v. Roth, 408 U.S. 564, 569 (1972). For a procedural due process claim to be 24 ripe in land use contexts, it must be “clear that a distinct deprivation of a constitutionally 25 protected interest in liberty or property has occurred” thus invoking federal jurisdiction to decide 26 if the “deprived party received the process to which it was due.” Guatay Christian Fellowship v. 27 County of San Diego, 670 F.3d 957, 984 (9th Cir. 2011). 28 / / / 1 Plaintiffs do not allege that as a result of Defendants actions they have ceased their 2 trucking operations. (See ECF No. 1.) Plaintiffs contend that requiring a “special use permit” — 3 which was not previously required — in itself constitutes a denial of due process. Plaintiffs do 4 not allege anything to support their contention that the “special use permit” deprived them of a 5 property interest or liberty interest. (Id. at 6.) Threadbare, conclusory statements are insufficient 6 to withstand a motion to dismiss. Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678. 7 Additionally, the Complaint makes no allegation the County has brought any sort of 8 enforcement action in court to enforce the zoning regulations. (ECF No. 6-2 at 4–7.) Plaintiffs 9 have not alleged any attempt to receive a final administrative decision regarding allowable land 10 uses on their property. The lack of finality regarding how the regulation at issue will be applied 11 to Plaintiffs’ property and whether the zoning change will actually affect their trucking operations 12 prevents the Court from knowing if the regulations will result in a “distinct deprivation of a 13 constitutionally protected interest.” Guatay, 670 F.3d at 984. 14 Plaintiffs have not alleged they received a final determination from the County regarding 15 allowable land uses on their property or any enforcement action by the County, either of which 16 could demonstrate that a “distinct deprivation of a constitutionally protected interest” has 17 occurred. Guatay, 670 F.3d at 984. Therefore, the Court finds Plaintiffs have not made sufficient 18 allegations to find their procedural due process claim ripe for review. Accordingly, Defendants’ 19 Motion on this basis is GRANTED. The Court will provide Plaintiffs with an opportunity to 20 amend their complaint. 21 V. CONCLUSION 22 For the foregoing reasons, Defendants’ Motion to Dismiss as to Claims One and Two are 23 hereby GRANTED with leave to amend. The Court ORDERS Plaintiffs to file their amended 24 complaint not later than thirty (30) days from the electronic filing of this Order. Defendants shall 25 file a responsive pleading no later than twenty-one (21) days after the filing of Plaintiffs’ 26 amended complaint. 27 /// 28 ////// 1 IT IS SO ORDERED. 2 | Dated: September 23, 2021 3 NN /) “ i eck 6 Troy L. Nunle> ] United States District Judge 4 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19