Tibbetts v. Nationstar Mortgage LLC ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 STEVE F. TIBBETTS and No. 2:23-cv-00596-JAM-CKD TAMBERLYN TIBBETTS, 11 Plaintiffs, 12 ORDER GRANTING DEFENDANT KELLER v. MORTGAGE, LLC’S MOTION TO 13 DISMISS KELLER MORTGAGE, LLC, dba 14 KELLER MORTGAGE, NATIONSTAR MORTGAGE LLC, and NATIONSTAR 15 MORTAGE LLC, dba MR. COOPER, U.S. BANK NATIONAL 16 ASSOCIATION and DOES 1-20, inclusive, 17 Defendants. 18 19 This case arises from a mortgage rescission transaction 20 between Plaintiffs Steve F. Tibbetts and Tamberlyn Tibbetts 21 (collectively, “Plaintiffs”) and Defendant Keller Mortgage, LLC, 22 dba Keller Mortgage (“Defendant Keller”). Plaintiffs’ claim the 23 actions of Defendant Keller, as well as those of Defendant U.S. 24 Bank National Association (“Defendant U.S. Bank N.A.”), Defendant 25 Nationstar Mortgage, LLC. (“Defendant Nationstar”), and Defendant 26 Nationstar Mortgage LLC, dba Mr. Cooper (“Defendant Cooper”), 27 after Plaintiffs rescinded their loan agreement, resulted in 28 damages to Plaintiffs’ credit ratings and has caused Plaintiffs 1 to suffer emotional distress. 2 Before the Court is Defendant Keller’s motion to dismiss 3 Plaintiffs’ claims against Defendant Keller for (1) Breach of 4 Contract; (2) Breach of Fiduciary Duty; and (3) Constructive 5 Fraud. See Mot. To Dismiss. (“Mot.”), ECF No. 19. Additionally, 6 Defendant Keller moves the Court to dismiss Plaintiffs’ request 7 for attorney’s fees and punitive damages. Id. Plaintiffs 8 opposed this Motion. Opp’n, ECF No. 22. Defendant Keller 9 replied. Reply, ECF No. 23. 10 11 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 12 The facts are taken from the Second Amended Complaint 13 (“SAC”), as well as the exhibits filed in support of the SAC, and 14 assumed to be true for the purposes of this motion. See Federal 15 Rules of Civil Procedure Rule 10(c) (“A copy of a written 16 instrument that is an exhibit to a pleading is a part of the 17 pleading for all purposes.”). 18 In March of 2021, Plaintiffs took out a home equity line of 19 credit through Defendant Keller (“Original Equity Loan”), secured 20 against their real property. SAC ¶ 12, ECF No. 17. 21 In April of 2022, Plaintiffs began the process of 22 refinancing the Original Equity Loan. Id. ¶ 13. 23 In May of 2022, Defendant Keller issued a new loan to 24 Plaintiffs (“May 2022 Refinanced Equity Loan”). Id. ¶ 14. 25 Plaintiffs were to use the May 2022 Refinanced Equity Loan to pay 26 the balance on the Original Equity Loan and begin a construction 27 project on their real property. Id. 28 /// 1 In June of 2022, Plaintiffs received a letter from Defendant 2 Keller advising them that during closing of the May 2022 3 Refinanced Equity Loan, Defendant Keller provided an incorrect 4 Right to Cancel form to Plaintiffs. Id. ¶ 16. Defendant Keller 5 provided Plaintiffs a new form, extending Plaintiffs’ deadline to 6 cancel the May 2022 Refinanced Equity Loan. Id.; See also Exh. 1 7 to SAC, ECF No. 17. 8 Prior to the extended deadline, Plaintiffs signed the new 9 form and sent the executed document to an employee of Defendant 10 Keller, in accordance with the instructions on the form. SAC 11 ¶ 17; Exh. 1 to SAC. Defendant Keller failed to respond to this 12 executed form. SAC ¶ 18. 13 On July 7, 2022, Defendant Keller and Plaintiffs opened 14 escrow to rescind the May 2022 Refinanced Equity Loan. Id. 15 ¶¶ 18, 47. At some point before this date, the May 2022 16 Refinanced Equity Loan was sold by Defendant Keller to Defendant 17 U.S. Bank N.A. Id. ¶ 19. Defendant Cooper became the servicer. 18 Id. 19 On July 25, 2022, Defendant Keller issued a new loan to 20 Plaintiffs and Plaintiffs returned the construction funds, 21 placing Plaintiffs in the position they were prior to the May 22 2022 Refinanced Equity Loan. Id. ¶¶ 18, 36. 23 At some point between July 7, 2022, and July 25, 2022, the 24 May 2022 Refinanced Equity Loan was repurchased by Defendant 25 Keller from Defendant U.S. Bank N.A. Id. ¶ 20. As part of the 26 repurchase, Defendant Keller was required to reconvey the May 27 2022 note and deed of trust. Id. ¶ 37; Exh. 6 to SAC. 28 /// 1 Plaintiffs allege they did not receive a copy of the 2 recorded Substitution of Trustee and Full Reconveyance, in 3 violation of California Civil Code § 2941. See generally SAC 4 ¶¶ 22, 41, 52, 54, 58. Additionally, Plaintiffs allege Defendant 5 Keller failed to notify Defendants U.S. Bank N.A., Nationstar, 6 and Cooper that a reconveyance had taken place. Id. ¶ 40. 7 Plaintiffs contend the failure of Defendant Keller to mail 8 them a copy of the reconveyance documents caused Defendant Cooper 9 to continue seeking enforcement of the May 2022 Refinanced Equity 10 Loan after it was rescinded. See generally id. ¶¶ 23-31. As a 11 result, Plaintiffs were reported by Defendant Cooper as 12 delinquent on the May 2022 Refinanced Equity Loan, which resulted 13 in “significant deterioration of their credit worthiness.” Id. 14 ¶ 33. 15 Additionally, Plaintiffs claim Defendant Keller breached its 16 fiduciary duty to act in the best interest as trustee of the deed 17 of trust under California Civil Code § 2941. 18 Finally, Plaintiffs allege Defendant Keller committed 19 constructive fraud under California Civil Code § 1573. 20 21 II. OPINION 22 A. Legal Standard 23 A Rule 12(b)(6) motion challenges the complaint as not 24 alleging sufficient facts to state a claim for relief. Fed. R. 25 Civ. P. 12(b)(6). “To survive a motion to dismiss [under 26 12(b)(6)], a complaint must contain sufficient factual matter, 27 accepted as true, to state a claim for relief that is plausible 28 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 1 (internal quotation marks and citation omitted). While 2 “detailed factual allegations” are unnecessary, the complaint 3 must allege more than “[t]hreadbare recitals of the elements of 4 a cause of action, supported by mere conclusory statements.” 5 Id. When a plaintiff fails to “state a claim upon which relief 6 can be granted,” the Court must dismiss the suit. Fed. R. Civ. 7 P. 12(b)(6). 8 In considering a motion to dismiss for failure to state a 9 claim, a court generally accepts as true the allegations in the 10 complaint and construes the pleading in the light most favorable 11 to the plaintiff. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 12 588 (9th Cir. 2008). “In sum, for a complaint to survive a 13 motion to dismiss, the non-conclusory ‘factual content,’ and 14 reasonable inferences from that content, must be plausibly 15 suggestive of a claim entitling the plaintiff to relief.” Moss 16 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 17 To defeat a motion to dismiss, a plaintiff must “plead 18 enough facts to state a claim to relief that is plausible on its 19 face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 20 (2007). Plausibility under Twombly requires “factual content 21 that allows the court to draw a reasonable inference that the 22 defendant is liable for the misconduct alleged.” Ashcroft, 556 23 U.S. at 678. “At this stage, the Court ‘must accept as true all 24 of the allegations contained in a complaint.’” Id. But it need 25 not “accept as true a legal conclusion couched as a factual 26 allegation.” Id. 27 Conclusory allegations are not to be considered in the 28 plausibility analysis. Id. at 679 (“While legal conclusions can 1 provide the framework of a complaint, they must be supported by 2 factual allegations.”) 3 B. Judicial Notice 4 Defendant Keller requests the Court take judicial notice of 5 three documents: (1) the recorded Deed of Trust executed by 6 Plaintiffs for the May 2022 Loan; (2) the recorded Deed of Trust 7 executed by Plaintiffs for the July 2022 Loan; and (3) the 8 recorded Substitution of Trustee and Full Reconveyance for the 9 May 2022 Loan. Mot. at 2; Req. for Judicial Notice, ECF No. 19- 10 2. The Court does not need to take Judicial Notice of these 11 documents since it can, and has, considered them under the 12 incorporation-by-reference doctrine. See Khoja v. Orexigen 13 Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018) 14 (explaining that unlike rule-established judicial notice, 15 incorporation-by-reference is a judicially created doctrine that 16 treats certain documents as though they are part of the 17 complaint itself when the plaintiff refers extensively to the 18 document or it forms the basis of plaintiff’s claim). 19 C. Discussion 20 1. Claim One: Breach of Contract 21 In general, real estate contracts are subject to the 22 general law of contracts. The elements for a breach of contract 23 claim include the following: (1) the contract, (2) plaintiff's 24 performance or excuse for nonperformance, (3) defendant's 25 breach, and (4) the resulting damages to plaintiff. Careau & 26 Co. v. Sec. Pac. Bus. Credit, Inc., 222 Cal. App. 3d 1371, 1388 27 (1990). 28 /// 1 Here, Plaintiffs argue Defendant Keller breached “both the 2 May 2022 [Refinanced Equity] Loan and the July 2022 Loan.” SAC 3 ¶ 40. These breaches, Plaintiffs allege, occurred when 4 Plaintiffs “had not received a copy of the Substitution of 5 Trustee and Full Reconveyance” prepared and recorded by 6 Defendant Keller’s legal team. SAC ¶ 37. Plaintiffs claim they 7 performed all obligations required of them, however, Defendant 8 Keller failed to notify the purchaser of the May 2022 Refinanced 9 Equity Loan that a reconveyance took place. Id. ¶ 40. 10 Defendant Keller, Plaintiffs argue, breached its obligations as 11 required under California Civil Code § 2941. Id. ¶ 41. 12 Defendant Keller, on the other hand, contends Plaintiffs’ 13 claim fails because Plaintiffs have failed to allege a contract 14 that required Defendant Keller to notify the owners of the May 15 2022 Refinanced Loan. Mot. at 5:24-26. The Court agrees. 16 Plaintiffs have not provided the Court with any evidence 17 that there was an agreement between Plaintiffs and Defendant 18 Keller which imposed upon Defendant Keller an obligation to 19 notify the May 2022 Refinanced Equity Loan’s purchaser of the 20 reconveyance. Plaintiffs reference their deed of trust with 21 Defendant Keller, stating that paragraph 23 of the deed of trust 22 requires Defendant Keller to request that the trustee reconveys 23 the property back to Plaintiffs after full repayment. SAC ¶ 37. 24 The full terms of paragraph 23 state: 25 23. Reconveyance. Upon payment of all sums secured by this Security Instrument, Lender shall request Trustee 26 to reconvey the Property and shall surrender this Security Instrument and all notes evidencing debt 27 secured by this Security Instrument to Trustee. Trustee shall reconvey the Property without warranty 28 to the person or persons legally entitled to it. 1 Lender may charge such person or persons a reasonable fee for reconveying the Property, but only if the fee 2 is paid to a third party (such as the Trustee) for services rendered and the charging of the fee is 3 permitted under Applicable Law. If the fee charged does not exceed the fee set by Applicable Law, the fee 4 is conclusively presumed to be reasonable. 5 Exh. 6 to SAC, ECF No. 17. Although there is a requirement that 6 Defendant Keller request the trustee reconvey the property to 7 Plaintiffs, there are no terms requiring Defendant Keller to 8 notify the purchaser of the reconveyance, nor to provide 9 Plaintiffs a copy of the Substitution of Trustee and Full 10 Reconveyance. Plaintiffs’ allegations in the SAC are 11 insufficient to support their breach of contract claim. 12 The Court notes, within their breach of contract cause of 13 action, Plaintiffs allege Defendant Keller “breached its 14 obligations as a Trustee to the [Plaintiffs] as required by 15 Civil Code section 2941.” SAC ¶ 41. While California Civil 16 Code § 2941 imposes statutory requirements on Defendant Keller 17 after an obligation has been satisfied, See Cal. Civ. Code 18 § 2941(b), an action under § 2941 is one in tort rather than 19 contract because it seeks damages for violation of a statutory 20 duty. Pintor v. Ong, 211 Cal. App. 3d 837, 841 (1989). The 21 duty to reconvey exists in express provisions of the statute, 22 regardless of any contractual obligations. Id. Therefore, if 23 Plaintiffs are claiming that Defendant Keller violated a 24 statutory requirements of § 2941, the action would be in tort 25 not breach of contract. Accordingly, Plaintiffs’ claim for 26 breach of contract is dismissed without prejudice. 27 /// 28 /// 1 2. Claim Two: Breach of Fiduciary Duty 2 Ordinarily, Plaintiffs’ claim is no fiduciary duty in a 3 lender-borrower relationship. Ragland v. U.S. Bank Nat'l Ass'n, 4 209 Cal. App. 4th 182, 206 (2012) (“No fiduciary duty exists 5 between a borrower and lender in an arm's length transaction.”); 6 Lawrence v. Bank of Am., 163 Cal. App. 3d 431, 437 (1985); Price 7 v. Wells Fargo Bank, 213 Cal. App. 3d 465, 476 (1989). A lender 8 owes no duty of care to a borrower when the lender’s involvement 9 of the loan does not exceed the customary role in arm’s length 10 lending and servicing. Sheen v. Wells Fargo Bank, N.A., 12 Cal. 11 5th 905, 927 (2022), reh'g denied (June 1, 2022). 12 In a lender-borrower relationship, a special relationship 13 can exist in certain circumstances, which may result in 14 fiduciary obligations, however, the relationship must be beyond 15 the scope of the traditional arm’s length transaction. Barrett 16 v. Bank of Am., 183 Cal. App. 3d 1362, 1369 (1986) 17 (“Confidential and fiduciary relations are in law, synonymous 18 and may be said to exist whenever trust and confidence is 19 reposed by one person in another.”); Brown v. Wells Fargo Bank, 20 N.A., 168 Cal. App. 4th 938, 961 (2008) (determining that a 21 bank’s employee inducing elderly and frail individuals to rely 22 on the bank to handle their financial affairs constitutes a 23 fiduciary relationship.). A lender will owe a fiduciary duty to 24 a borrower if it excessively controls or dominates the borrower. 25 Pension Tr. Fund for Operating Engineers v. Fed. Ins. Co., 307 26 F.3d 944, 955 (9th Cir. 2002). 27 In lending transactions involving deeds of trust, a trustee 28 of a deed of trust is not a true trustee and does not hold 1 fiduciary obligations. Yvanova v. New Century Mortg. Corp., 62 2 Cal. 4th 919, 927 (2016). A trustee of a deed of a trust merely 3 acts as an agent for the borrower-trustor and the lender- 4 beneficiary. Id.; Biancalana v. T.D. Serv. Co., 56 Cal. 4th 5 807, 819 (2013). 6 Here, Plaintiffs argue Defendant Keller breached their 7 fiduciary duty as trustee of the deed of trust. SAC at ¶ 48. 8 Plaintiffs argue upon the recordation of the Substitution of 9 Trustee and Full Reconveyance, Defendant Keller became the 10 trustee of the deed of trust and owed a duty to “act with the 11 utmost good faith in the best interests of Plaintiffs.” Id. 12 Plaintiffs argue Defendant Keller breached this duty when it 13 failed to act as a reasonably careful loan provider and failed 14 to fulfill its obligations under California Civil Code § 2941. 15 Id. ¶¶ 51, 52. 16 Defendant Keller, however, argues it was not a fiduciary. 17 Mem. in Supp. of Mot., ECF No. 19-1 at 9:15-17. Rather, its 18 relationship with Plaintiffs was that of a lender-borrower under 19 a contract. Id. 20 Plaintiffs claim a fiduciary relationship began when 21 Defendant Keller stepped in as trustee, Opp’n at 14, and 22 Defendant Keller breached this duty when it failed to provide a 23 copy of the recorded reconveyance to Plaintiffs. Id. The 24 failure to provide this document was the proximate cause of 25 damages suffered by Plaintiffs. Id. 26 Here, the facts establishing the parties’ relationship can 27 be summarized as follows: (a) Defendant Keller was the initial 28 loan provider of the Original Equity Loan; (b) Defendant Keller 1 and Plaintiffs reached an agreement on refinancing the Original 2 Equity Loan; and (c) Plaintiffs properly rescinded that loan 3 with Defendant Keller, placing them back in the position they 4 were prior to the refinance. 5 The Court finds that no fiduciary relationship between 6 Plaintiffs and Defendant Keller existed. Although Defendant 7 Keller was the trustee identified in the deed of trust, the law 8 is clear that a trustee of a deed of trust is not a fiduciary. 9 There are no fiduciary obligations as a trustee of a deed of 10 trust, or even just as a lender, absent facts suggesting 11 otherwise. Yvanova v. New Century Mortg. Corp., 62 Cal.4th at 12 927. 13 There are no facts alleged which establish Defendant Keller 14 acted in any fiduciary capacity with Plaintiffs, such as 15 Defendant Keller offering Plaintiffs financial advice or 16 Plaintiffs providing Defendant Keller with confidential, 17 privileged information, believing they were in a position of 18 trust. Plaintiffs have not alleged any facts that create more 19 than a typical arm’s length lending and servicing transaction. 20 Additionally, Plaintiffs have not alleged any facts that support 21 Defendant Keller, acting as trustee, acted more than a passive 22 agent for the parties. 23 Plaintiff’s second claim for breach of fiduciary duty is 24 dismissed without prejudice. 25 3. Claim Three: Constructive Fraud 26 Constructive fraud exists when there is a breach of duty, 27 without actual fraudulent intent, in which the person at fault 28 gains an advantage by misleading another with whom they owed a 1 duty. Cal. Civ. Code § 1573. Constructive fraud depends on the 2 existence of a fiduciary relationship of some kind and arises 3 from a breach of duty in that relationship. Mark Tanner Constr. 4 v. Hub Internat. Ins. Servs., 224 Cal. App. 4th 574, 588 (2014); 5 Ragland v. U.S. Bank Nat'l Ass'n, 209 Cal. App. 4th 182, 207 6 (2012); Barrett v. Bank of Am., 183 Cal. App. 3d 1362, 1369 7 (1986); Darrow v. Robert A. Klein & Co., 111 Cal. App. 310, 316 8 (Cal. Dist. Ct. App. 1931). Like fraud claims, an action for 9 constructive fraud requires a heightened pleading standard in 10 which the action must be pled with specificity. Schauer v. 11 Mandarin Gems of Cal., Inc., 125 Cal. App. 4th 949, 960 (2005). 12 Here, Plaintiffs argue Defendant Keller committed 13 constructive fraud in violation of California Civil Code § 1573 14 because Plaintiffs reasonably relied on Defendant Keller as the 15 substituted trustee to comply with California Civil Code § 2941. 16 SAC ¶ 58. Plaintiffs state Defendant Keller’s failure to 17 provide Plaintiffs a copy of the recorded Substitution and Full 18 Reconveyance of the Deed of Trust caused damages to Plaintiffs. 19 Id. Defendant Keller’s failure to disclose to the other 20 defendants that the May 2022 Refinanced Equity Loan was 21 reconveyed and repurchased was a substantial factor in causing 22 Plaintiffs’ harm. Id. ¶¶ 59, 60. 23 Defendant Keller argues it did not owe Plaintiffs a 24 fiduciary duty, thus, Plaintiffs’ constructive fraud claim 25 fails. Mem. in Supp. of Mot. at 11:13-19. The Court agrees. 26 First, as detailed above, Plaintiffs have failed to show 27 that Defendant Keller owed Plaintiffs a fiduciary duty, or that 28 it was in a position of trust or confidence. Absent facts 1 demonstrating a fiduciary relationship, Plaintiffs’ constructive 2 fraud claim fails. 3 Second, Plaintiffs have failed to allege that Defendant 4 Keller, or any other party, gained any advantage by Defendant 5 Keller’s failure to disclose that the May 2022 Refinanced Equity 6 Loan was reconveyed and repurchased. 7 Third, Plaintiffs repeatedly state that Defendant Keller’s 8 failure to provide the copy of the recorded Substitution and 9 Full Reconveyance of Deed of Trust caused Plaintiffs’ damages. 10 Plaintiffs, however, have failed to allege facts demonstrating 11 causation to establish “but-for” Defendant Keller failing to 12 provide the documentation, Plaintiffs would not have been 13 injured. 14 For all these reasons, Plaintiffs’ claim for constructive 15 fraud is dismissed without prejudice. 16 4. Request for Attorney’s Fees 17 Defendant Keller requests the Court dismiss Plaintiffs’ 18 claim for attorney’s fees. Mot. at 2. Under California law, the 19 prevailing party is not entitled to attorney’s fees unless 20 provided for by contract or statute. Cal. Code Civ. Proc. § 21 1021; See also Cal. Code Civ. Proc. § 1033.5(a)(10) (establishing 22 attorney’s fees are allowable as costs when authorized by (a) 23 contract; (b) statute; or (c) law.). 24 Plaintiffs have not cited to a statute or any other law that 25 entitles them to attorney’s fees in this case. Under California 26 Civil Code § 1717, Plaintiffs also cannot recover attorney’s fees 27 unless the action is under the contractual obligations set forth 28 in the deed of trust. Cal. Civ. Code § 1717. Because 1 Plaintiffs’ breach of contract claim fails, there is no action on 2 the deed of trust and Plaintiffs are not entitled to attorney’s 3 fees. 4 Plaintiffs’ claim for attorney’s fees is dismissed without 5 prejudice. 6 5. Punitive Damages Claim 7 Defendant Keller also requests an Order dismissing 8 Plaintiffs’ claim for punitive damages. Mot. at 2. Defendant 9 Keller argues Plaintiffs fail to allege any facts in which 10 fraudulent, malicious, or oppressive conduct could be inferred. 11 Mem. in Supp. of Mot. at 14 (citing Kelley v. Corr. Corp. of Am., 12 750 F.Supp.2d 132, 1447 (E.D. Cal. 2010)). 13 If a cause of action bars recovery of certain damages, the 14 request for damages can be dismissed in a Rule 12(b)(6) motion. 15 Vaughan v. Anderson Reg'l Med. Ctr., 849 F.3d 588, 590 (5th Cir. 16 2017); Beluca Ventures LLC v. Einride Aktiebolag, No. 21-CV- 17 06992-WHO, 2022 WL 17252589, at *5 (N.D. Cal. Nov. 28, 2022) 18 (determining if punitive damages are unavailable as a matter of 19 law, a motion to dismiss under Rule 12(b)(6) is procedurally 20 proper.). 21 California Civil Code § 3294(a) allows punitive damages 22 under certain circumstances by way of “punishing the defendant” 23 in actions not arising from a contract. Here, Plaintiffs claims 24 for breach of fiduciary duty and constructive fraud were the only 25 non-contractual claims against Defendant Keller. Both claims 26 have been dismissed. 27 Given the failure of Plaintiffs to properly plead a tortious 28 claim against Defendant Keller, as a matter of law, Plaintiffs nee nnn nen ne nn nnn nn nn nn nn on nn I NE 1 request for punitive damages also fails and is dismissed without 2 prejudice. Copelan v. Infinity Ins. Co., 359 F.Supp.3d 926, 930 3 (C.D. Cal. 2019) (determining punitive damages request fails when 4 underlying claims fail). 5 6 Til. ORDER 7 For the reasons set forth above, the Court GRANTS Defendant 8 Keller’s Motion to Dismiss claims one, two and three against it 9 WITHOUT PREJUDICE. The Court also GRANTS Defendant Keller’s 10 Motion to Dismiss Plaintiffs’ request for attorney’s fees and 11 punitive damages WITHOUT PREJUDICE. If Plaintiffs elect to amend 12 their complaint, they shall file their Third Amended Complaint 13 | within twenty days (20) of this Order. Defendants’ responsive 14 pleadings are due twenty days (20) thereafter. 15 IT IS SO ORDERED. 16 Dated: October 12, 2023 17 opens JOHN A. MENDEZ 19 SENIOR UNITED*STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 15