Paul Garcia v. Ocwen Mortgage Servicing, Inc. et al

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.June 30, 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 PLAINTIFF’S COMPLAINT CASE NO. 2:17-CV-03514-R-SK Chad R. Fuller, Bar No. 190830 chad.fuller@troutmansanders.com Virginia Bell Flynn (pro hac vice to be filed) virginia.flynn@troutmansanders.com 11682 El Camino Real, Suite 400 San Diego, CA 92130-2092 Telephone: 858-509-6000 Facsimile: 858-509-6040 Attorneys for Defendants OCWEN MORTGAGE SERVICING, INC. and OCWEN LOAN SERVICING, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION Paul Garcia, Plaintiff, v. Ocwen Mortgage Servicing, Inc., and Ocwen Loan Servicing, LLC, Defendants. Case No. 2:17-cv-03514-R-SK DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [FED. R. CIV. P. 12(b)(6)] Judge: Hon. Manuel L. Real Date: August 7, 2017 Time: 10:00AM Courtroom: 880 TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT Defendants Ocwen Loan Servicing, LLC and Ocwen Mortgage Servicing, Inc. (collectively “Ocwen”) hereby moves the Court to dismiss Plaintiff’s Complaint, filed on May 10, 2017 (Docket No. 1), for failure to state a claim. Ocwen moves this Court for an order dismissing Plaintiffs’ claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure as to counts I-V for Case 2:17-cv-03514-R-SK Document 16 Filed 06/30/17 Page 1 of 3 Page ID #:47 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 PLAINTIFF’S COMPLAINT CASE NO. 2:17-CV-03514-R-SK alleged violation of the Telephone Consumer Protection Act (TCPA), 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: June 30, 2017 TROUTMAN SANDERS LLP By: /s/ Chad R. Fuller Chad R. Fuller Virginia Bell Flynn Attorneys for Defendant Ocwen Mortgage Servicing, Inc., and Ocwen Loan Servicing, LLC Case 2:17-cv-03514-R-SK Document 16 Filed 06/30/17 Page 2 of 3 Page ID #:48 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’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT CASE NO. 2:17-CV-03514-R-SK 31664814 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 June 30, 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-03514-R-SK Document 16 Filed 06/30/17 Page 3 of 3 Page ID #:49 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 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK Chad R. Fuller, Bar No. 190830 chad.fuller@troutmansanders.com Justin M. Brandt, Bar No. 278368 Justin.brandt@troutmansanders.com 11682 El Camino Real, Suite 400 San Diego, CA 92130-2092 Telephone: 858-509-6000 Facsimile: 858-509-6040 Attorneys for Defendants OCWEN MORTGAGE SERVICING, INC. and OCWEN LOAN SERVICING, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION Paul Garcia, Plaintiff, v. Ocwen Mortgage Servicing, Inc., and Ocwen Loan Servicing, LLC, Defendants. Case No. 2:17-cv-03514-R-SK DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Judge: Hon. Manuel L. Real Date: August 7, 2017 Time: 10:00AM Courtroom: 880 Case 2:17-cv-03514-R-SK Document 16-1 Filed 06/30/17 Page 1 of 21 Page ID #:50 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 TABLE OF CONTENTS Page i DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK I. INTRODUCTION........................................................................................... 1 II. FACTUAL BACKGROUND ......................................................................... 1 III. ARGUMENT .................................................................................................. 2 A. Legal Standard ...................................................................................... 2 B. American Pipe Does Not Apply to Garcia’s State Law Claims ........... 3 C. American Pipe Tolling Does Not Apply to TCPA Claims Against OMS......................................................................................... 5 D. Garcia Fails to Plead Specific Facts Regarding Ocwen’s Conduct ................................................................................................. 6 E. Garcia Cannot State a Claim for Negligence or Negligence Per Se........................................................................................................... 7 F. Garcia Fails to Plead Facts Evidencing Oppression, Fraud, or Malice, Precluding an Award of Punitive Damages............................. 9 C. Garcia Lacks Standing ........................................................................11 IV. CONCLUSION .............................................................................................13 CERTIFICATE OF CM/ECF SERVICE ................................................................15 Case 2:17-cv-03514-R-SK Document 16-1 Filed 06/30/17 Page 2 of 21 Page ID #:51 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 ii DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK TABLE OF AUTHORITIES Page(s) CASES Am. Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974) ............................................................................................. 3 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................................2, 7, 10 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ...................................................................................2, 6, 10 Bouncing Angels, Inc. v. Burlington Ins. Co., No. EDCV 17-0015 JGB (SPx) 2017 WL 1294004 (C.D. Cal. Mar. 20, 2017) ...................................................................................................................10 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336 (9th Cir.1996) ................................................................................... 3 Cal. Service Station & Auto. Repair Ass’n v. Am. Home Assurance Co., 62 Cal.App.4th 1166 (1998)................................................................................. 8 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)................................................................................. 7 Chaconas v. JP Morgan Chase Bank, 713 F.Supp.2d 1180 (S.D. Cal. 2010) .................................................................. 9 Chardon v. Fumero Soto, 462 U.S. 650 (1983) ............................................................................................. 4 Clemens v. Daimler Chrysler Corp., 534 F.3d 1017 (9th Cir. 2008).............................................................................. 4 Crown v. Parker, 462 U.S. 345 (1983) ............................................................................................. 4 Case 2:17-cv-03514-R-SK Document 16-1 Filed 06/30/17 Page 3 of 21 Page ID #:52 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 iii DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK Diaz v. Bank of Am. Home Loan Servicing, L.P., No. CV099286PSGMANX, 2011 WL 13046844 (C.D. Cal. July 8, 2011) ...................................................................................................................10 Ewing v. SQM US, Inc., 211 F.Supp.3d 1289................................................................................11, 12, 13 Flores v. EMC Mortgage Co., 997 F. Supp. 2d 1088 (E.D. Cal. 2014) ................................................................ 3 Galvez v. Frields, 88 Cal.App.4th 1410 (2001)................................................................................. 9 GBTI, Inc. v. Ins. Co. of Pennsylvania, No. CV F 09-1173 LJO DLB, 2009 WL 2365409 (E.D. Cal. July 29, 2009) ...................................................................................................................10 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., ED CV 14-00522 DMG, 2015 U.S. Dist. LEXIS 186877 (C.D. Cal. Sept. 15, 2015)............................................................................................................... 9 Katz v. Am. Express Co., No. 14-00084 JMS-RLP, 2014 WL 2738528 (D. Hawaii, June 17, 2014).......... 7 Kelley v. Corr. Corp. of Am., 750 F.Supp.2d 1132 (E.D. Cal. 2010) .................................................................. 9 Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) ................................................................................ 2 Prezzi v. Berzak, 57 F.R.D. 149 (S.D.N.Y. 1972)............................................................................ 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 WL 3389395 (Hawaii, July 9, 2014)................... 7 Case 2:17-cv-03514-R-SK Document 16-1 Filed 06/30/17 Page 4 of 21 Page ID #:53 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 iv DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK 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 Sewraz v. Guice, No. 3:08cv35, 2008 WL 3926443 (E.D. Va. Aug. 26, 2008) .............................. 7 Sierra-Bay Fed. Land Bank Ass’n v. Superior Court, 227 Cal.App.3d 318 (1991) .................................................................................. 8 Smelt v. Cty. of Orange, 447 F.3d 673 (9th Cir. 2006) ..............................................................................12 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 Wade v. Danek Med., Inc., 182 F.3d 281 (4th Cir. 1999) ................................................................................ 4 STATUTES 28 U.S.C. § 1658(a) ................................................................................................... 5 CAL. CIV. CODE § 335.1............................................................................................. 5 CAL. CIV. CODE § 3294(a) ......................................................................................... 9 CAL. CIV. CODE § 3294(c) .......................................................................................10 California Civil Code § 1788.................................................................................8, 9 Evidence Code § 669 ................................................................................................. 8 OTHER AUTHORITIES Fed. R. Civ.P. 8.......................................................................................................... 7 Fed. R. Civ.P. 8(a) ..................................................................................................... 7 Case 2:17-cv-03514-R-SK Document 16-1 Filed 06/30/17 Page 5 of 21 Page ID #:54 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 v DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK Fed. R. Civ. P. 8(a)(2)............................................................................................2, 6 Fed. R. Civ.P. 12(b)(6) ..........................................................................................2, 9 Similarly, American Pipe........................................................................................... 5 Case 2:17-cv-03514-R-SK Document 16-1 Filed 06/30/17 Page 6 of 21 Page ID #:55 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 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK 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 Plaintiff Paul Garcia’s Complaint, in its entirety, pursuant to Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure. I. INTRODUCTION Plaintiff Paul Garcia (“Garcia”) alleges that Ocwen Mortgage Servicing, Inc. (“OMS”) and Ocwen Loan Servicing, LLC (“OLS”) (collectively “Ocwen”) violated the Telephone Consumer Protection Act (“TCPA”) by calling his cellular telephone using an automatic telephone dialing system (“ATDS”) after he orally revoked his consent for Ocwen to call his at that number. See ECF 1, Compl. ¶¶ 26-38. In addition to claims arising under the TCPA, Garcia alleges that the calls constitute negligence and “negligence per se.” Garcia’s pleading suffers from a number of deficiencies requiring dismissal:  Garcia’s negligence claims are barred by the applicable statute of limitations;  Garcia does not allege conduct by OLS or OMS sufficient to state a cognizable claim;  Garcia cannot, as a matter of law, couch his TCPA claim as separate claims grounded in negligence;  Garcia fails to plead any facts supporting a finding of malice, oppression, or fraud, which precludes an award of punitive damages; and  Garcia does not have standing to bring a TCPA claim because he cannot demonstrate a concrete injury resulting from the alleged calls. Because of their numerous incurable defects, Garcia’s TCPA, negligence, and negligence per se claims against Ocwen should be dismissed with prejudice. II. FACTUAL BACKGROUND On May 10, 2017, Garcia filed a Complaint in this Court alleging violations of the TCPA, and claims of negligence and negligence per se. Id. ¶¶ 50-78. Case 2:17-cv-03514-R-SK Document 16-1 Filed 06/30/17 Page 7 of 21 Page ID #:56 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 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK According to Garcia, Ocwen called his cellular telephone number with an ATDS between January 4, 2010 and April 16, 2016 without his consent. Id. ¶ 21. Garcia contends that these calls were “an attempt to collect on a consumer debt,” but fails to describe this consumer debt or proffer any information regarding any loan or mortgage that OLS or OMS allegedly serviced. Id. ¶ 31. These calls form the basis of the allegations contained in his Complaint. III. ARGUMENT A. Legal Standard A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) 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 “formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 557. While 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. On a Rule 12(b)(6) motion, the Court construes the complaint in the light most favorable to the plaintiff and the facts asserted therein are taken as true. Case 2:17-cv-03514-R-SK Document 16-1 Filed 06/30/17 Page 8 of 21 Page ID #:57 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 3 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK Flores v. EMC Mortgage Co., 997 F. Supp. 2d 1088, 1100 (E.D. Cal. 2014) (quoting Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-338 (9th Cir.1996). However, “allegations that are merely conclusory, unwarranted deductions of fact, . . . unreasonable inferences . . . [and] legal conclusions cast in the form of factual allegations” will not prevent dismissal. Id. (citations omitted). B. American Pipe Does Not Apply to Garcia’s State Law Claims. While Garcia alleges in his Complaint that the statute of limitations for each of his causes of action is tolled as a result of a class action filed in 2014, the state law claims against OLS and OMS - 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, Garcia would be a member. 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 Garcia asserts 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 & Construction Co. v. Utah, 414 U.S. 538, 553 (1974), it does not for state law claims in California. 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. 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-03514-R-SK Document 16-1 Filed 06/30/17 Page 9 of 21 Page ID #:58 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 4 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK 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 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 Case 2:17-cv-03514-R-SK Document 16-1 Filed 06/30/17 Page 10 of 21 Page ID #:59 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 5 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK 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. Garcia’s negligence law claims (Counts III, IV and V) do not receive the benefit of tolling under American Pipe because these claims arise under California state law. Although Garcia may have qualified as a member of the putative class in Snyder, Snyder includes TCPA and FDCPA claims, but does not include any claims for negligence or claims arising under state law, and thus has no bearing on Garcia’s negligence claims. The applicable statutes of limitations bar Garcia’s negligence 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. In the Complaint, Garcia’s allegations relate to calls that allegedly occurred between January 4, 2010 and April 6, 2016, but he pleads no facts to demonstrate that any violation actually occurred within the relevant statutory period. See Compl. ¶ 21. Garcia’s failure to raise these claims within the applicable statute of limitations is fatal, and thus his negligence claims must be dismissed. 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 the Garcia began on January 4, 2010 through April 16, 2016. Compl., ¶ 21. Because the Complaint was filed on May 10, 2017, only calls alleged to have been received after May 10, 2013, are actionable against OMS. The TCPA claims against OMS alleged prior to May 10, 2013, therefore, should be dismissed with prejudice. Case 2:17-cv-03514-R-SK Document 16-1 Filed 06/30/17 Page 11 of 21 Page ID #:60 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 6 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK D. Garcia Fails to Plead Specific Facts Regarding Ocwen’s Conduct. The Complaint is also deficient because the facts as alleged are not tied to a specific defendant, namely, Garcia has 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. Garcia’s 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. Garcia alleges that he “bring[s] this action to challenge the conduct of Ocwen Mortgage Servicing, Inc. … and Ocwen Loan Servicing, LLC … (collectively “Ocwen”), with regard to attempts by defendant to unlawfully and abusively collect a debt allegedly owed by Plaintiff.” Compl. ¶ 5. The conduct of the individual entities is not discussed in the remaining voluminous allegations. See generally Compl. The Complaint generally alleges that:  “Plaintiff would answer the calls from Defendants” (Compl. ¶ 23);  “Sometimes, Plaintiff would receive calls from Defendants in which the caller was a recorded voice or message.” (Compl. ¶ 24); and  “Plaintiff has received at least 1654 calls from Defendant on Plaintiff’s cellular telephone.” (Compl. ¶ 25). Nowhere does the Complaint allege that Garcia received calls from either of the defendants, instead it groups them together for conduct relating to the allegedly unlawful phone calls. Indeed, Garcia never specifies which defendant allegedly caused his injuries. Case 2:17-cv-03514-R-SK Document 16-1 Filed 06/30/17 Page 12 of 21 Page ID #:61 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 7 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK 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 Garcia 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 WL 2738528 (D. Hawaii 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. Garcia Cannot State a Claim for Negligence or Negligence Per Se. In addition to being barred by the statute of limitations, Garcia’s negligence claims (Counts III-V) 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. Hawaii 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). Case 2:17-cv-03514-R-SK Document 16-1 Filed 06/30/17 Page 13 of 21 Page ID #:62 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 8 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK In the Complaint, Garcia alleges 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. ¶ 57. He claims that the Ocwen defendants breached their respective duties of care by “calling Plaintiff on Plaintiff’[s] cellular telephone a voluminous number of times, as discussed above, and continued to call despite Plaintiff’s request that the calls stop.” Id. ¶ 58. Although Garcia attempts to couch his TCPA claim as a claim for negligence, he fails to identify a valid “duty” to support a common-law negligence claim. Further, Garcia inexplicably attempts to state a separate claim for negligence per se relating to the Rosenthal Fair Debt Collection Practices Act, California Civil Code § 1788 et seq. (the “Rosenthal Act”), as well as a separate claim for negligence per se connected to the alleged violations of the TCPA. 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. 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, Garcia’s 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; Case 2:17-cv-03514-R-SK Document 16-1 Filed 06/30/17 Page 14 of 21 Page ID #:63 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 9 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK (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 his 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 Garcia’s recourse is provided for in the statutes. Here, Garcia did not state a Rosenthal Act claim, nor did he allege conduct relating to an alleged violation of the same. Put simply, his TCPA claim cannot be restated in negligence, and the negligence claims should be dismissed with prejudice. F. Garcia Fails 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 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 2 Although Garcia seeks punitive damages as a form of relief, Ocwen’s motion is properly brought under Rule 12(b)(6) because Plaintiff fails to plead facts supporting such relief. See See Kahn v. 7-Eleven, Inc., ED CV 14-00522 DMG (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-03514-R-SK Document 16-1 Filed 06/30/17 Page 15 of 21 Page ID #:64 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 10 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK 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). Garcia’s demand for punitive damages must satisfy the requirements of Twombly and Iqbal. See GBTI, Inc. v. Ins. Co. of Pennsylvania, 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, he provides no facts showing that either OLS’ or OMS’s actions were oppressive, fraudulent, or malicious, or that either entity acted “with a willful and conscious disregard” of his rights. Garcia’s 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 Garcia’s prayer for punitive damages. Case 2:17-cv-03514-R-SK Document 16-1 Filed 06/30/17 Page 16 of 21 Page ID #:65 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 11 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK C. Garcia Lacks Standing. Finally, Garcia’s Complaint should be dismissed because he has not suffered a concrete injury from the phone calls referenced in the Complaint. As such, he lacks Article III standing to bring this action because he has 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 a plaintiff to maintain Article III standing he must have suffered a concrete injury even in the context of a statutory violation. A plaintiff cannot simply allege a procedural violation without any connection to a concrete harm 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 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. Garcia fails to do so and cannot do so here. Garcia’s failure to plead facts sufficient to connect his claimed injuries with a Case 2:17-cv-03514-R-SK Document 16-1 Filed 06/30/17 Page 17 of 21 Page ID #:66 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 12 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK specific TCPA violation eliminates any possibility for him to maintain Article III standing. Further, Garcia has not suffered a concrete injury caused by the alleged TCPA violation, and thus his 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 Garcia 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 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, Garcia makes only confusing, boilerplate statements referencing standing and harm in connection with Case 2:17-cv-03514-R-SK Document 16-1 Filed 06/30/17 Page 18 of 21 Page ID #:67 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 13 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK his claims, and attempts to plead around the Spokeo requirements with conclusory allegations, which are insufficient to demonstrate standing. See Compl. ¶¶ 39-49. The only allegations in the Complaint relating to harm he allegedly suffered are bare and ambiguous; for example, he alleges that calls “disrupted [his] daily activities” and the “peaceful enjoyment of [his] personal and professional life.” Id. ¶ 37. He further alleges that “the calls . . . were extremely intrusive, including Plaintiff’s relationships with close family members.” Id. ¶ 38. In short, Garcia does not adequately allege standing because he does not, and cannot, connect his claims related to alleged TCPA violations-Ocwen’s use of an ATDS or artificial/prerecorded voice, to dial his cellular telephone number. “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, Garcia did not suffer an injury in fact traceable to Ocwen’s alleged violations of the TCPA and lacks standing to make a claim for the TCPA violation here. Garcia’s TCPA claims as stated in Counts I and II should be dismissed. IV. CONCLUSION The Court should dismiss the Complaint for failure to state a claim upon which relief can be granted. Further, the Plaintiff’s complete lack of damages connecting his alleged injury to a concrete injury in fact eliminates his ability to establish Article III standing to assert his TCPA claims. As a result, Defendants are entitled to a dismissal with prejudice of the Complaint. Case 2:17-cv-03514-R-SK Document 16-1 Filed 06/30/17 Page 19 of 21 Page ID #:68 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 14 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK Dated: June 30, 2017 TROUTMAN SANDERS LLP By: /s/ Chad R. Fuller Chad R. Fuller Attorney for Defendant Ocwen Mortgage Servicing, Inc., and Ocwen Loan Servicing, LLC Case 2:17-cv-03514-R-SK Document 16-1 Filed 06/30/17 Page 20 of 21 Page ID #:69 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 15 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS CASE NO. 2:17-CV-03514-R-SK 31651177 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 June 30, 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 chad.fuller@troutmansanders.com Case 2:17-cv-03514-R-SK Document 16-1 Filed 06/30/17 Page 21 of 21 Page ID #:70 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-03514-R-SK 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 Paul Garcia, Plaintiff, v. Ocwen Mortgage Servicing, Inc., and Ocwen Loan Servicing, LLC, Defendants. Case No. 2:17-cv-03514-R-SK [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Defendants Ocwen Mortgage Servicing, Inc.’s and Ocwen Loan Servicing, LLC’s Motion to Dismiss with respect to the cause of action brought under the Telephone Consumer Protection Act and negligence and negligence per se by Plaintiff Paul Garcia came on regularly for hearing before the Hon. Manuel L. Real. After reviewing Defendants’ Motion to Dismiss, Plaintiffs’ opposition, Defendant’s reply, for the reasons stated on the record and for good cause appearing, the Court makes the following order: \\ \\ \\ Case 2:17-cv-03514-R-SK Document 16-2 Filed 06/30/17 Page 1 of 2 Page ID #:71 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-03514-R-SK IT IS HEREBY ORDERED that Defendants’ motion to dismiss is GRANTED with prejudice. IT IS FURTHER ORDERED that Plaintiff shall take nothing against Defendants with respect to his causes of action, and judgment shall issue in favor of Defendants. Enter: United States District Judge Case 2:17-cv-03514-R-SK Document 16-2 Filed 06/30/17 Page 2 of 2 Page ID #:72