Libby Pour et al v. Ocwen Mortgage Servicing, Inc. et al

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.July 11, 2017

TROUTMAN SANDERS LLP 11682 EL CAMINO REAL, SUITE 400 SAN DIEGO, CA 92130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS Chad R. Fuller, Bar No. 190830 chad.fuller@troutmansanders.com Justin M. Brandt, Bar No. 278368 justin.brandt@troutmansanders.com TROUTMAN SANDERS LLP 11682 El Camino Real, Suite 400 San Diego, CA 92130 Telephone: 858.509.6056 Facsimile: 858.509.6040 Attorneys for Defendant Ocwen Mortgage Servicing, Inc., and Ocwen Loan Servicing, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION Libby Pour and Joseph Izhakpor, Plaintiffs, v. Ocwen Mortgage Servicing, Inc., and Ocwen Loan Servicing, LLC, Defendants. Case No. 2:17-cv-04141-JAK-AS DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [FED. R. CIV. P. 12(b)(6)] Judge: Hon. John A. Kronstadt Date: September 25, 2017 Time: 8:30 AM Dept: 10B TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT Defendants Ocwen Mortgage Servicing, Inc. and Ocwen Loan Servicing, LLC (collectively “Ocwen”) hereby moves the Court to dismiss Plaintiffs’ Complaint, filed on June 2, 2017 (Docket No. 1), for failure to state a claim. Ocwen moves this Court for an order dismissing Plaintiffs’ claims pursuant to Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure as to counts I-VI Case 2:17-cv-04141-JAK-AS Document 16 Filed 07/11/17 Page 1 of 3 Page ID #:131 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS for alleged violation of the Telephone Consumer Protection Act (TCPA), the Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”), negligence, and negligence per se. This motion is based on this Notice of Motion, the Memorandum of Points and Authorities in support of the Motion, the pleadings and papers on file herein, and such other matters as may be presented to the Court. This motion is made following the conference of counsel pursuant to L.R. 7- 3, which took place on June 27, 2017. Dated: July 11, 2017 TROUTMAN SANDERS LLP By: /s/ Chad R. Fuller Chad R. Fuller Justin M. Brandt Attorneys for Defendant Ocwen Mortgage Servicing, Inc., and Ocwen Loan Servicing, LLC Case 2:17-cv-04141-JAK-AS Document 16 Filed 07/11/17 Page 2 of 3 Page ID #:132 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS 31656011 CERTIFICATE OF CM/ECF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served on July 11, 2017, to all counsel of record who are deemed to have consented to electronic service via the Court’s CM/ECF system. Any counsel of record who have not consented to electronic service through the Court’s CM/ECF system will be served by electronic mail, first class mail, facsimile and/or overnight delivery. /s/ Chad R. Fuller Chad R. Fuller Case 2:17-cv-04141-JAK-AS Document 16 Filed 07/11/17 Page 3 of 3 Page ID #:133 TROUTMAN SANDERS LLP 11682 EL CAMINO REAL, SUITE 400 SAN DIEGO, CA 92130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS Chad R. Fuller, Bar No. 190830 chad.fuller@troutmansanders.com Justin M. Brandt, Bar No. 278368 justin.brandt@troutmansanders.com TROUTMAN SANDERS LLP 11682 El Camino Real, Suite 400 San Diego, CA 92130 Telephone: 858.509.6056 Facsimile: 858.509.6040 Attorneys for Defendant Ocwen Mortgage Servicing, Inc., and Ocwen Loan Servicing, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION Libby Pour and Joseph Izhakpor, Plaintiffs, v. Ocwen Mortgage Servicing, Inc., and Ocwen Loan Servicing, LLC, Defendants. Case No. 2:17-cv-04141-JAK-AS DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Judge: Hon. John A. Kronstadt Date: September 25, 2017 Time: 8:30 AM Dept: 10B Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 1 of 20 Page ID #:134 TROUTMAN SANDERS LLP 580 CALIFORNIA STREET, SUITE 1100 SAN FRANCISCO, CA 94104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - i - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS TABLE OF CONTENTS Page(s) I. INTRODUCTION .............................................................................................................. 1 II. FACTUAL BACKGROUND ............................................................................................. 2 III. ARGUMENT ...................................................................................................................... 2 A. Legal Standard ...................................................................................... 2 B. Plaintiffs’ State Law Claims Are Time Barred..................................... 3 C. American Pipe Tolling Does Not Apply to TCPA Claims Against OMS......................................................................................... 5 D. Plaintiffs Fail to Plead Specific Facts Regarding Ocwen’s Conduct ................................................................................................. 6 E. Plaintiffs Cannot State Negligence or Negligence Per Se Claims........ 8 F. Plaintiffs Fail to Plead Facts Evidencing Oppression, Fraud, or Malice, Precluding an Award of Punitive Damages............................. 9 G. Plaintiffs Lack Standing......................................................................11 IV. CONCLUSION................................................................................................................. 13 Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 2 of 20 Page ID #:135 TROUTMAN SANDERS LLP 580 CALIFORNIA STREET, SUITE 1100 SAN FRANCISCO, CA 94104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - ii - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS TABLE OF AUTHORITIES Page(s) CASES Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974) .........................................................................................3, 4 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...............................................................................2, 3, 7, 10 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ...............................................................................2, 3, 6, 10 Bouncing Angels, Inc. v. Burlington Ins. Co., No. EDCV 17-0015 JGB-SPx, 2017 U.S. Dist. LEXIS 54569, 2017 WL 1294004, (C.D. Cal. Mar. 20, 2017)...................................................................11 Centaur Classic Convertible Arbitrage Fund, Ltd. v. Countrywide Fin. Corp., 878 F.Supp.2d 1009 (C.D. Cal. 2011)..............................................................4, 5 Century Surety Co. v. Crosby Ins., Inc., 124 Cal.App.4th 116 (2004)................................................................................. 8 Chaconas v. JP Morgan Chase Bank, 713 F.Supp.2d 1180 (S.D. Cal. 2010) .................................................................. 9 Clemens v. Daimler Chrysler Corp., 534 F.3d 1017 (9th Cir. 2008).............................................................................. 4 Crown v. Parker, 462 U.S. 345 (1983) ............................................................................................. 4 Diaz v. Bank of Am. Home Loan Servicing, LP, No. CV099286 PSG-MANx, 2011 U.S. Dist. LEXIS 158893, 2011 WL 13046844 (C.D. Cal. July 8, 2011).....................................................................10 Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 3 of 20 Page ID #:136 TROUTMAN SANDERS LLP 580 CALIFORNIA STREET, SUITE 1100 SAN FRANCISCO, CA 94104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - iii - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS Ewing v. SQM US, Inc., 211 F.Supp.3d 1289 (S.D. Cal. 2016) ..........................................................11, 13 Galvez v. Frields, 88 Cal.App.4th 1410 (2001)................................................................................. 9 GBTI, Inc. v. Ins. Co. of Pa., No. CV F 09-1173 LJO DLB, 2009 WL 2365409 (E.D. Cal. July 29, 2009) ...................................................................................................................10 Grant v. Aurora Loan Servs., 736 F.Supp.2d 1257 (C.D. Cal. 2010).................................................................. 3 In re Enron Corp. Sec., Deriv. & ERISA Litig., 465 F.Supp.2d 687 (S.D. Tex. 2006).................................................................... 4 In re iPhone Application Litig., 844 F. Supp. 2d 1040 (N.D. Cal. 2012)................................................................ 2 Kahn v. 7-Eleven, Inc., No. ED CV 14-00522 DMG-PLAx, 2015 U.S. Dist. LEXIS 186877 (C.D. Cal. Sept. 15, 2015) .............................................................................................. 9 Katz v. Am. Express Co., No. 14-00084 JMS-RLP, 2014 U.S. Dist. LEXIS 82204, 2014 WL 2738528 (D. Haw. June 17, 2014)........................................................................ 7 Romero v. Dep’t Stores Nat’l Bank, 199 F.Supp.3d 1256 (S.D. Cal. 2016) ................................................................11 Sailola v. Mun. Servs. Bureau, No. 13-00544 HG-RLP, 2014 U.S. Dist. LEXIS 93087, 2014 WL 3389395, at *9 (D. Haw. July 9, 2014) ................................................................ 8 Sartin v. EKF Diagnostics, Inc., No. CV 16-1816, 2016 U.S. Dist. LEXIS 86777, 2016 WL 3598297 (E.D. La. July 5, 2016) .................................................................................................12 Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 4 of 20 Page ID #:137 TROUTMAN SANDERS LLP 580 CALIFORNIA STREET, SUITE 1100 SAN FRANCISCO, CA 94104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - iv - DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS Sewraz v. Guice, No. 3:08cv35, RLW 2008 U.S. Dist. LEXIS 65910, 2008 WL 3926443 (E.D. Va. Aug. 26, 2008)...................................................................................... 7 Smelt v. Cty. of Orange, 447 F.3d 673 (9th Cir. 2006) ..............................................................................13 Spencer v. DHI Mortg. Co., 642 F.Supp.2d 1153 (E.D. Cal. 2009) .................................................................. 8 Spokeo v. Robins, 136 S.Ct. 1540 (2016) ............................................................................11, 12, 13 Vaught v. Showa Denko K.K., 107 F.3d 1137 (5th Cir. 1997).............................................................................. 4 STATUTES 15 U.S.C. § 1692k(d)................................................................................................. 5 28 U.S.C. § 1658(a) ................................................................................................... 6 CAL. CIV. CODE § 335.1............................................................................................. 5 CAL. CIV. CODE § 1788.17......................................................................................... 5 CAL. CIV. CODE § 1788.30(f)..................................................................................... 5 CAL. CIV. CODE § 3294(a) .......................................................................................10 CAL. CIV. CODE § 3294(c) .......................................................................................10 Evidence Code section 669....................................................................................8, 9 Telephone Consumer Protection Act, 47 U.S.C. §227 et seq. (“TCPA”)........passim OTHER AUTHORITIES FED. R. CIV. P. 8(A) .........................................................................................1, 2, 6, 7 FED. R. CIV. P. 12(b)(6) .........................................................................................1, 9 Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 5 of 20 Page ID #:138 TROUTMAN SANDERS LLP 11682 EL CAMINO REAL, SUITE 400 SAN DIEGO, CA 92130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS Defendants Ocwen Mortgage Servicing, Inc. and Ocwen Loan Servicing, LLC submit this memorandum of points and authorities in support of its motion for an order dismissing Plaintiffs’ Complaint, in its entirety, pursuant to Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure. I. INTRODUCTION Plaintiffs Libby Pour and Joseph Izhakpor (“Plaintiffs”) allege that Ocwen Mortgage Servicing, Inc. (“OMS”) and Ocwen Loan Servicing, LLC (“OLS”) (collectively “Ocwen”) violated the Telephone Consumer Protection Act, 47 U.S.C. §227 et seq. (“TCPA”) by calling their cellular telephones using an automatic telephone dialing system (“ATDS”) after they orally revoked consent for Ocwen to call them at those numbers. See Docket No. 1, Compl. ¶¶ 26-47. In addition to TCPA claims, Plaintiffs allege several state law claims that all relate to the TCPA. Plaintiffs’ pleading suffers from numerous deficiencies requiring dismissal:  Plaintiffs’ state law claims are barred by the applicable statute of limitations;  Plaintiffs do not allege conduct by OLS or OMS sufficient to state cognizable claims;  Plaintiffs cannot, as a matter of law, couch their TCPA and Rosenthal Act claims as separate claims grounded in negligence;  Plaintiffs fail to plead any facts supporting a finding of malice, oppression, or fraud, which precludes awards of punitive damages; and  Plaintiffs do not have standing to bring TCPA claims because they cannot demonstrate concrete injuries resulting from the alleged calls. Because of their numerous incurable defects, Plaintiffs’ TCPA, Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788 et seq. (“Rosenthal Act”), negligence, and negligence per se claims against Ocwen should be dismissed with prejudice. Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 6 of 20 Page ID #:139 TROUTMAN SANDERS LLP 11682 EL CAMINO REAL, SUITE 400 SAN DIEGO, CA 92130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS II. FACTUAL BACKGROUND On June 2, 2017, Plaintiffs filed a Complaint in this Court alleging violations of the TCPA, the Rosenthal Act, and claims of negligence and negligence per se. Id. ¶¶ 65-96. According to Plaintiffs, Ocwen called Libby Pour’s cellular telephone numbers with an ATDS between January 10, 2012 through September 9, 2016 and Joseph Izhakpor’s cellular telephone numbers between March 2011 and December 2016, without their consent. Id. ¶¶ 26, 32. Between these two individuals, Plaintiffs maintained at least fourteen cellular telephone numbers. Id. Plaintiffs also contend that these calls were “an attempt to collect on a consumer debt,” but fail to describe this consumer debt or proffer any information regarding any loan or mortgage that OLS or OMS allegedly serviced. Id. ¶ 43. These calls form the basis of the allegations contained in this Complaint. III. ARGUMENT A. Legal Standard A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the Plaintiff’s claims. See In re iPhone Application Litig., 844 F. Supp. 2d 1040, 1052 (N.D. Cal. 2012) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). This standard “does not require detailed factual allegations, but it demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To withstand dismissal, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Naked assertion[s],” “labels and conclusions,” or Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 7 of 20 Page ID #:140 TROUTMAN SANDERS LLP 11682 EL CAMINO REAL, SUITE 400 SAN DIEGO, CA 92130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS “formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 557. Although a plaintiff need not establish a probability of success on the merits, he or she must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. Although the Court must draw “reasonable inferences” in favor of the nonmoving party, it need not, however, “accept as true unreasonable inferences of conclusory legal allegations cast in the form of factual allegations.” Grant v. Aurora Loan Servs., 736 F.Supp.2d 1257, 1266 (C.D. Cal. 2010) (citing Twombly, 550 U.S. at 553-56). B. American Pipe Does Not Apply to Plaintiffs’ State Law Claims. While Plaintiffs allege in their Complaint that the statute of limitations for each of their causes of action is tolled as a result of a class action filed in 2014, the state law claims against OLS and OMS - Rosenthal Act, negligence, negligence per se Rosenthal Act, and negligence per se TCPA - should be dismissed because those claims are not asserted in the underlying class action of which, if certified, Plaintiffs would be members. See Compl. ¶ 8. Namely, on October 27, 2014, the Snyder v. Ocwen Loan Servicing, LLC class action was filed in the Northern District of Illinois, seeking certification of a nationwide TCPA class.1 No. 14-c-8461. The class as defined in Snyder includes those individuals who allege receiving calls from Ocwen placed with an ATDS after revocation of consent - i.e., the same allegations that Plaintiffs assert here. While filing a class action in federal court tolls the applicable statute of limitations federal claims asserted on behalf of the putative class until the court grants or denies class certification, see Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 553 (1974), it does not for state law claims in California. 1 The Snyder case also includes a cause of action under the Fair Debt Collection Practices Act, which is not relevant here. Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 8 of 20 Page ID #:141 TROUTMAN SANDERS LLP 11682 EL CAMINO REAL, SUITE 400 SAN DIEGO, CA 92130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS In American Pipe, the Supreme Court permitted unnamed members of a class to intervene as plaintiffs in an individual action that continued after denial of class certification, even though the limitations period for their claims had expired. The Court held that “the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.” Id. In Crown v. Parker, 462 U.S. 345 (1983), the Court clarified that the tolling of the limitations period applies to both intervenors and putative class members who wish to file entirely new actions. Tolling under American Pipe only applies within the federal court system in federal question class actions. Clemens v. Daimler Chrysler Corp., 534 F.3d 1017, 1025 (9th Cir. 2008). “The rule is not binding on state law claims, which are governed by state law statutes of limitation and state law tolling principles.” Centaur Classic Convertible Arbitrage Fund, Ltd. v. Countrywide Fin. Corp., 878 F.Supp.2d 1009, 1015 (C.D. Cal. 2011), citing Wade v. Danek Med., Inc., 182 F.3d 281, 290 (4th Cir. 1999); In re Enron Corp. Sec., Deriv. & ERISA Litig., 465 F.Supp.2d 687, 719 (S.D. Tex. 2006). Whether the limitations period for a state law claim is tolled by a federal class action presents a question of state law. Id., citing Chardon v. Fumero Soto, 462 U.S. 650, 661 (1983); Vaught v. Showa Denko K.K., 107 F.3d 1137, 1144 (5th Cir. 1997). Here, California law does not permit “cross-jurisdictional tolling”-that is, the filing of an out-of-state class action does not toll the limitations period for claims under California law. See Centaur Classic Convertible, 878 F.Supp.2d at 1017 (“Because California does not recognize cross-jurisdictional tolling, this Court has no authority to apply American Pipe to toll the state statutes of limitation here.”). In Clemens, the plaintiff filed a putative class action in December 2005 asserting California state law claims for fraud and unfair competition alleging that Dodge Neon automobiles were sold with defective head gaskets. Although the Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 9 of 20 Page ID #:142 TROUTMAN SANDERS LLP 11682 EL CAMINO REAL, SUITE 400 SAN DIEGO, CA 92130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS three-year statute of limitations had passed, the plaintiff argued that the limitations period had been tolled because: (a) a similar action concerning Dodge Neon head gaskets had been filed in Illinois in 2001; (b) he was a member of the nationwide class that the plaintiffs had attempted to certify in the Illinois action; and (c) he relied upon the Illinois action to vindicate his rights. Id. at 1025. In rejecting this argument, the Ninth Circuit noted that the “rule of American Pipe-which allows tolling within the federal court system in federal question class actions-does not mandate cross-jurisdictional tolling as a matter of state procedure.” Id. Because California, like most states, “has not adopted such cross-jurisdictional tolling,” the state law fraud claims were time-barred. Id. Plaintiffs’ state law claims (Counts I, IV, V, and VI) do not receive the benefit of tolling under American Pipe because these claims arise under California state law. Although Plaintiffs may have qualified as members of the putative class in Snyder, Snyder includes TCPA and FDCPA claims, but does not include any claims arising under California law, and thus has no bearing on Plaintiffs’ state law claims. The applicable statutes of limitations bar Plaintiffs’ state law claims based on the scant facts plead in the Complaint. The statute of limitations for negligence as to an individual is two years from the date of injury. CAL. CIV. CODE § 335.1. The statute of limitations for claims brought under the Rosenthal Act is one year. CAL. CIV. CODE § 1788.30(f); see also 15 U.S.C. § 1692k(d); CAL. CIV. CODE § 1788.17. In the Complaint, Plaintiffs’ allegations relate to calls that allegedly occurred March 2011 and December 2016, but they plead no facts to demonstrate that any violation actually occurred within the relevant statutory period. See Compl. ¶ 26, 32. Plaintiffs’ failure to raise these claims within the applicable statute of limitations is fatal, and thus their state law claims must be dismissed. Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 10 of 20 Page ID #:143 TROUTMAN SANDERS LLP 11682 EL CAMINO REAL, SUITE 400 SAN DIEGO, CA 92130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS C. American Pipe Tolling Does Not Apply to TCPA Claims Against OMS. Similarly, American Pipe tolling does not apply to TCPA claims asserted against OMS because it is not a named party in the Snyder litigation. The statute of limitations for the TCPA is four years. See 28 U.S.C. § 1658(a). The Complaint alleges that calls to Libby Pour began on January 10, 2012 through September 9, 2016, and calls to Joseph Izhakpor’s cellular telephone numbers occurred between March 2011 and December 2016. Compl., ¶¶ 26, 32. Because the Complaint was filed on June 2, 2017, only calls alleged to have been received after June 2, 2013, are actionable against OMS. The TCPA claims against OMS alleged prior to June 2, 2013, therefore, should be dismissed with prejudice. D. Plaintiffs Fail to Plead Specific Facts Regarding Ocwen Conduct. The Complaint is also deficient because the facts as alleged are not tied to a specific defendant, namely, Plaintiffs have not complied with the requirement of Rule 8(a)(2) to give OLS and OMS fair notice of what the claims are and the grounds upon which they rest. See Twombly, 550 U.S. at 555. Plaintiffs’ conclusory allegations that OLS and OMS acted collectively as a single wrongdoer do not plausibly demonstrate how each defendant is liable for the claims stated herein. General allegations that fail to specifically identify any of the alleged conduct of the particular defendants, such as the allegations in the Complaint, are inadequate. See id. OLS and OMS individually are only mentioned twice in the Complaint, and no specific conduct by either is alleged. Plaintiffs allege that they “bring this action to challenge the conduct of Ocwen Mortgage Servicing, Inc. . . . and Ocwen Loan Servicing, LLC . . . (collectively “Ocwen”), with regard to attempts by Defendants to unlawfully and abusively collect a debt allegedly owed by Plaintiffs.” Compl. ¶ 6. The conduct of the individual entities is not discussed in the remaining voluminous allegations. See generally Compl. Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 11 of 20 Page ID #:144 TROUTMAN SANDERS LLP 11682 EL CAMINO REAL, SUITE 400 SAN DIEGO, CA 92130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS The Complaint generally alleges that:  “Plaintiffs would answer the calls from Defendants” (Compl. ¶ 30);  “Sometimes, Plaintiffs would receive calls from Defendants in which the caller was a recorded voice or message.” (Compl. ¶ 31);  “Ms. Pour received at least 2306 calls from Defendant on her cellular phones.” (Compl. ¶ 27); and  “Mr. Izhkapor received at least 1213 calls from Defendant on her cellular phones.” (Compl. ¶ 33). Nowhere does the Complaint allege that Plaintiffs received calls from either of the defendants. Instead, the allegations group the defendants together as one in the same. Indeed, Plaintiffs never actually specify which defendant allegedly injured them. Rule 8 articulates a vision for “a system of simplified pleadings that give notice of the general claim asserted, allow for the preparation of a basic defense, narrow the issues to be litigated, and provide a means for quick dispositions of sham claims.” Sewraz v. Guice, No. 3:08cv35, 2008 WL 3926443, at *1 (E.D. Va. Aug. 26, 2008) (quoting Prezzi v. Berzak, 57 F.R.D. 149, 151 (S.D.N.Y. 1972)). Here, even reading the Complaint in the light most favorable to Plaintiffs cannot satisfy the basic pleading requirements of Rule 8(a). See Iqbal, 556 U.S. at 678-79 (2009) (“Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”). The Court cannot plausibly infer any acts or omissions of either OLS or OMS that allegedly give rise to liability in the Complaint. OLS and OMS are two separate and distinct entities - even if under the same corporate umbrella - and should have the ability to properly assess the specific allegations being made against each. In short, because the Complaint fails basic pleading requirements, all claims as to both OLS and OMS should be dismissed. See Katz v. Am. Express Co., No. 14-00084 JMS-RLP, 2014 Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 12 of 20 Page ID #:145 TROUTMAN SANDERS LLP 11682 EL CAMINO REAL, SUITE 400 SAN DIEGO, CA 92130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS WL 2738528 (D. Haw. June 17, 2014) (dismissing claims against multiple creditors where the court was not able to draw the reasonable inference that multiple creditor defendants were liable for the misconduct alleged). E. Plaintiffs Cannot State Negligence or Negligence Per Se Claims. In addition to being barred by the statute of limitations, Plaintiffs’ negligence claims (Counts IV-VI) fail because the TCPA does not provide a duty of care sufficient for a negligence cause of action. Sailola v. Mun. Servs. Bureau, No. 13- 00544 HG-RLP, 2014 WL 3389395, at *9 (D. Haw. July 9, 2014). To state a claim for negligence, a plaintiff must allege (1) a legal duty of care owed by the defendant to the plaintiff, (2) breach of that duty by the defendant, (3) legal and proximate causation, and (4) damages resulting from the defendant’s breach. Century Surety Co. v. Crosby Ins., Inc., 124 Cal.App.4th 116, 127 (2004). In the Complaint, Plaintiffs allege that each of the defendants “had a duty to use care to not infringe on consumers’ privacy rights when collecting on alleged debts” and to “not [call] Plaintiffs [sic] hundreds and/or thousands of times to harass and/or abuse Plaintiffs [sic].” Compl. ¶ 75. They claim that the Ocwen defendants breached their respective duties of care by “calling Plaintiffs on Plaintiffs’ cellular telephone a voluminous number of times, as discussed above, and continued to call despite Plaintiffs’ request that the calls stop.” Id. ¶ 76. Although Plaintiffs attempt to couch their TCPA claims as claims for negligence, they fail to identify a valid “duty” to support a common-law negligence claim. Further, Plaintiffs attempt to state a separate claim for negligence per se relating to the alleged TCPA violations, as well as a separate claim for negligence per se connected to an alleged violation of the Rosenthal Act. The negligence per se doctrine does not, however, establish a cause of action distinct from negligence. Spencer v. DHI Mortg. Co., 642 F.Supp.2d 1153, 1162 (E.D. Cal. 2009). “’[A]n underlying claim of ordinary negligence must be viable before the presumption of negligence of Evidence Code section 669 can be employed.’” Id. (quoting Cal. Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 13 of 20 Page ID #:146 TROUTMAN SANDERS LLP 11682 EL CAMINO REAL, SUITE 400 SAN DIEGO, CA 92130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS Service Station & Auto. Repair Ass’n v. Am. Home Assurance Co., 62 Cal.App.4th 1166, 1178 (1998)). By alleging negligence per se, a plaintiff “is not attempting to pursue a private cause of action for violation of the statute; rather, he is pursuing a negligence action and is relying upon the violation of a statute, ordinance, or regulation to establish part of that cause of action.” Id. (quoting Sierra-Bay Fed. Land Bank Ass’n v. Superior Court, 227 Cal.App.3d 318, 333 (1991)). Therefore, Plaintiffs’ causes of action for negligence per se cannot be sustained. Under California law, negligence per se is presumed where a plaintiff establishes “(1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to her person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” Galvez v. Frields, 88 Cal.App.4th 1410, 1420 (2001). However, where a statute itself provides for civil remedies, a plaintiff’s recourse is under the statute, not under the negligence per se doctrine. Chaconas v. JP Morgan Chase Bank, 713 F.Supp.2d 1180, 1188-89 (S.D. Cal. 2010). The TCPA and the Rosenthal Act both provide for a private right of action, and thus Plaintiffs’ recourse is provided for in the respective statutes. Their claims cannot be restated in negligence, and their negligence claims should be dismissed with prejudice. F. Plaintiffs Fail to Plead Facts Evidencing Oppression, Fraud, or Malice, Precluding an Award of Punitive Damages. The Complaint also fails to assert any facts permitting an award of punitive damages.2 In California, punitive damages can be awarded “where it is proven by 2 Although Plaintiffs seek punitive damages as a form of relief, Ocwen’s motion is properly brought under Rule 12(b)(6) because Plaintiffs fail to plead facts supporting such relief. See Kahn v. 7-Eleven, Inc., ED CV 14-00522 DMG Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 14 of 20 Page ID #:147 TROUTMAN SANDERS LLP 11682 EL CAMINO REAL, SUITE 400 SAN DIEGO, CA 92130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” CAL. CIV. CODE § 3294(a). Section 3294 elaborates on these prerequisites:  “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others;  “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights; and  “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. CAL. CIV. CODE § 3294(c). Plaintiffs’ demands for punitive damages must satisfy the requirements of Twombly and Iqbal. See GBTI, Inc. v. Ins. Co. of Pa., No. CV F 09-1173 LJO DLB, 2009 WL 2365409, at *8 (E.D. Cal. July 29, 2009) (striking punitive damages where the complaint contained only “platitudes and a conclusory paragraph which essentially summarizes section 3294 elements”); see also Diaz v. Bank of Am. Home Loan Servicing, L.P., No. CV099286PSGMANX, 2011 WL 13046844, at *5 (C.D. Cal. July 8, 2011) (granting the defendants’ motion to dismiss the plaintiff’s demands for punitive damages for lack of sufficient factual detail). Instead, they provide no facts showing that either OLS’s or OMS’s actions were oppressive, fraudulent, or malicious, or that either entity acted “with a willful and conscious disregard” of their rights. (PLAx), 2015 U.S. Dist. LEXIS 186877, at *5 (C.D. Cal. Sept. 15, 2015) (citing Kelley v. Corr. Corp. of Am., 750 F.Supp.2d 1132, 1146 (E.D. Cal. 2010)). Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 15 of 20 Page ID #:148 TROUTMAN SANDERS LLP 11682 EL CAMINO REAL, SUITE 400 SAN DIEGO, CA 92130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS Plaintiffs’ claims for punitive damages are predicated on the exact same “conclusory allegations” that Ocwen was negligent, without any support for punitive damages. See Bouncing Angels, Inc. v. Burlington Ins. Co., No. EDCV 17- 0015 JGB (SPx), 2017 WL 1294004, at *4 (C.D. Cal. Mar. 20, 2017) (dismissing punitive damages claim where the allegations of a breach of contract claim remained undifferentiated from the defendant’s allegedly despicable conduct). Accordingly, the Court should dismiss their prayer for punitive damages. G. Plaintiffs Lack Standing. Finally, Plaintiffs’ Complaint should be dismissed because they have not suffered concrete injuries from the phone calls referenced in the Complaint. As such, they lack Article III standing to bring this action because they have not, and cannot, plead an “injury-in-fact” with respect to the allegation of Ocwen placing phone calls with an ATDS, or otherwise using a prerecorded message or artificial voice as alleged in the Complaint. According to the Supreme Court in Spokeo v. Robins, 136 S.Ct. 1540 (2016), for plaintiffs to maintain Article III standing they must have suffered concrete injuries even in the context of a statutory violation. Plaintiffs cannot simply allege procedural violations without any connection to concrete harms and satisfy the injury-in-fact requirement of Article III of the Constitution. As a court in the Southern District of California recently noted, bare assertion of a procedural violation of the TCPA does not satisfy the fundamental requirement under Article III of the Constitution to plead a concrete injury in fact. Ewing v. SQM US, Inc., 211 F.Supp.3d 1289, 1292 (S.D. Cal. 2016); see Romero v. Dep’t Stores Nat’l Bank, 199 F.Supp.3d 1256 (S.D. Cal. 2016). In Ewing, the Court held that “Plaintiff does not, and cannot, allege that Defendants’ use of an ATDS to dial his number caused him to incur a charge that he would not have incurred had Defendants manually dialed his number, which would not have violated the TCPA.” Id. Like the instant case, the plaintiff in Ewing Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 16 of 20 Page ID #:149 TROUTMAN SANDERS LLP 11682 EL CAMINO REAL, SUITE 400 SAN DIEGO, CA 92130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS did not suffer an injury in fact traceable to the defendants’ alleged violation of the TCPA, and the plaintiff therefore lacked standing to make a claim for the TCPA violation. Although the TCPA provides call recipients with a private right of action for receiving certain calls on their cellular phones, a recipient lacks standing to bring a claim under the TCPA unless he can also allege a concrete and particularized harm caused by the TCPA violation. Plaintiffs fail to do so and cannot do so here. Plaintiffs’ failure to plead facts sufficient to connect their claimed injuries with a specific TCPA violation eliminates any possibility for them to maintain Article III standing. Further, Plaintiffs have not suffered a concrete injury caused by the alleged TCPA violation, and thus their claims cannot stand. See Sartin v. EKF Diagnostics, Inc., No. CV 16-1816, 2016 U.S. Dist. LEXIS 86777, 2016 WL 3598297, at *3 (E.D. La. July 5, 2016) (“Although Dr. Sartin has plausibly alleged that defendants violated the TCPA by sending unsolicited fax advertisements, he fails to plead facts demonstrating how this statutory violation caused him concrete harm.”). Requiring Plaintiffs to have suffered an injury in fact “is a constitutional requirement, and ‘it is settled that Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.’” Spokeo, 136 S.Ct. at 1547-48 (quoting Raines, 521 U.S. at 820 n.3). “To establish injury in fact, a plaintiff must show that she or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Id. at 1548 (quoting Lujan, 504 U.S. at 560). “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’” Id. (quoting Lujan, 504 U.S. at 560 n.1). Meanwhile, “[a] ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.” Id. (citing BLACK’S LAW DICTIONARY 479 (9th ed. 2009)). Therefore, a plaintiff does not “automatically satisf[y] the injury-in-fact Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 17 of 20 Page ID #:150 TROUTMAN SANDERS LLP 11682 EL CAMINO REAL, SUITE 400 SAN DIEGO, CA 92130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation.” Ewing, 211 F. Supp. 3d at 1292. “A ‘bare procedural violation, divorced from any concrete harm,’ does not satisfy the injury-in-fact requirement of Article III.” Id. In a challenge to Article III standing, “[t]he burden of showing that there is standing rests on the shoulders of the party asserting” that standing is proper. Smelt v. Cty. of Orange, 447 F.3d 673, 682 (9th Cir. 2006). Here, Plaintiffs make only confusing, boilerplate statements referencing standing and harm in connection with their claims, and attempt to plead around the Spokeo requirements with conclusory allegations that are insufficient to demonstrate standing. See Compl. ¶¶ 54-64. The only allegations in the Complaint relating to harm they allegedly suffered are bare and ambiguous; for example, they allege that calls “disrupted [their] daily activities” and the “peaceful enjoyment of [their] personal and professional life.” Id. ¶ 49. They further alleges that “the calls . . . were extremely intrusive, including Plaintiff’s relationships with close family members.” Id. ¶ 50. In short, Plaintiffs do not adequately allege standing because they do not, and cannot, connect their claims related to the alleged TCPA violation: Ocwen’s use of an ATDS or artificial/prerecorded voice to dial their cellular telephone numbers. “Put differently, Plaintiff does not, and cannot, allege that Defendants’ use of an ATDS to dial his number caused him to incur a charge that he would not have incurred had Defendants manually dialed his number, which would not have violated the TCPA.” Ewing, 211 F.Supp.3d at 1293. Therefore, Plaintiffs did not suffer injuries in fact traceable to Ocwen’s alleged violations of the TCPA and lack standing to make a claim for TCPA violations here. Plaintiffs’ TCPA claims as stated in Counts I and II should be dismissed. Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 18 of 20 Page ID #:151 TROUTMAN SANDERS LLP 11682 EL CAMINO REAL, SUITE 400 SAN DIEGO, CA 92130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS IV. CONCLUSION The Court should dismiss the Complaint for failure to state a claim upon which relief can be granted. Further, the Plaintiffs’ complete lack of damages connecting their alleged injury to a concrete injury in fact eliminates their ability to establish Article III standing to assert their TCPA claims. As a result, Defendants are entitled to a dismissal with prejudice of the Complaint. Dated: July 11, 2017 TROUTMAN SANDERS LLP By: /s/ Chad R. Fuller Chad R. Fuller Justin M. Brandt Attorneys for Defendant Ocwen Mortgage Servicing, Inc., and Ocwen Loan Servicing, LLC Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 19 of 20 Page ID #:152 TROUTMAN SANDERS LLP 11682 EL CAMINO REAL, SUITE 400 SAN DIEGO, CA 92130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS CASE NO: 2:17-CV-04141-JAK-AS 31644514 CERTIFICATE OF CM/ECF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served on July 11, 2017, to all counsel of record who are deemed to have consented to electronic service via the Court’s CM/ECF system. Any counsel of record who have not consented to electronic service through the Court’s CM/ECF system will be served by electronic mail, first class mail, facsimile and/or overnight delivery. /s/ Chad R. Fuller Chad R. Fuller Case 2:17-cv-04141-JAK-AS Document 16-1 Filed 07/11/17 Page 20 of 20 Page ID #:153 TROUTMAN SANDERS LLP 11682 EL CAMINO REAL SUITE 400 SAN DIEGO, CA 92130-2092 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS CASE NO. 2:17-cv-04141-JAK-AS TROUTMAN SANDERS LLP Chad R. Fuller, CA Bar No. 190830 chad.fuller@troutmansanders.com 11682 El Camino Real, Suite 400 San Diego, CA 92130-2092 Telephone: 858-509-6000 Facsimile: 858-509-6040 Attorney for Defendant OCWEN MORTGAGE SERVICING, INC. and OCWEN LOAN SERVICING, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA (WESTERN DIVISION) Libby Pour and Joseph Izhakpor, Plaintiffs, v. Ocwen Mortgage Servicing, Inc., and Ocwen Loan Servicing, LLC, Defendants. Case No. 2:17-cv-04141-JAK-AS [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS COMPLAINT Defendants Ocwen Mortgage Servicing, Inc.’s and Ocwen Loan Servicing, LLC’s Motion to Dismiss with respect to the causes of action brought under the Telephone Consumer Protection Act, negligence, and negligence per se by Plaintiffs Libby Pour and Joseph Izhakpor came on regularly for hearing before the Hon. John A. Kronstadt. After reviewing Defendants’ Motion to Dismiss, Plaintiffs’ opposition, Defendants’ reply, for the reasons stated on the record and for good cause appearing, the Court makes the following order: \\ \\ Case 2:17-cv-04141-JAK-AS Document 16-2 Filed 07/11/17 Page 1 of 2 Page ID #:154 TROUTMAN SANDERS LLP 11682 EL CAMINO REAL SUITE 400 SAN DIEGO, CA 92130-2092 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 2 - [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS CASE NO. 2:17-cv-04141-JAK-AS 31722673v1 IT IS HEREBY ORDERED that Defendants’ motion to dismiss is GRANTED with prejudice. IT IS FURTHER ORDERED that Plaintiffs shall take nothing against Defendants with respect to their causes of action, and judgment shall issue in favor of Defendants. Enter: United States District Judge Case 2:17-cv-04141-JAK-AS Document 16-2 Filed 07/11/17 Page 2 of 2 Page ID #:155