David Rovinsky LLC v. Peter Marco, LLC

• Court: District Court, C.D. California
• Decided: September 21, 2020
• Docket: 2:20-cv-02580
• Status: Unknown

Opinion

O 1

2 3 4 5 6 7

8 United States District Court 9 Central District of California

11 DAVID ROVINSKY LLC, Case № 2:20-cv-02580-ODW (ASx)

12 Plaintiff, ORDER (1) DENYING

13 v. MOTION TO STAY ACTION; AND (2) GRANTING 14 PETER MARCO, LLC, et al., MOTION TO DISMISS AMENDED

15 Defendants and Third-Party THIRD-PARTY COMPLAINT Plaintiffs, [47] [63] [92] 16

17 v.

18 JONA S. RECHNITZ et al.,

19 Third-Party Defendants.

20 21 I. INTRODUCTION 22 On March 18, 2020, David Rovinsky LLC initiated this action against Peter 23 Marco, LLC, and Peter Voutsas (together, “Peter Marco”). (Compl., ECF No. 1.) On 24 April 24, 2020, Peter Marco filed the operative Amended Third-Party Complaint 25 against Jona S. Rechnitz, Rachel Rechnitz, and Levin Prado. (Am. Third-Party 26 Compl. (“ATPC”), ECF No. 39.) On May 18, 2020, the Rechnitzes filed a motion to 27 stay this action. (Mot. Stay (“MTS”), ECF No. 47.) On June 15, 2020, the Rechnitzes 28 filed a motion to dismiss the ATPC. (Mot. Dismiss (“MTD”), ECF No. 63.) For the 1 following reasons, the Court DENIES the motion for a stay of proceedings and 2 GRANTS the motion to dismiss.1 3 II. PRELIMINARY MATTERS 4 The Rechnitzes’ request for leave to file a request for judicial notice (ECF 5 No. 92) and request for judicial notice (ECF No. 63-1) are GRANTED. The Court 6 takes judicial notice of two documents on file with the United States Bankruptcy 7 Court for the Central District of California in In re Jadelle Jewelry and Diamonds, 8 LLC, Case No. 2:20-bk-13530-BR (“In re Jadelle”): (1) the government’s August 25, 9 2020, motion for a limited stay of discovery (Req. Leave File Req. Jud. Notice, Ex. A 10 (“Gov’t Mot.”), ECF No. 92-1), and (2) Voutsas’s May 19, 2020, declaration in 11 support of the petitioning creditors’ motion for appointment of an interim Chapter 7 12 trustee (Req. Jud. Notice, Ex. A (“Marco Decl.”), ECF No. 63-1). Fed. R. 13 Evid. 201(b); see Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 14 (9th Cir. 2006) (“We may take judicial notice of court filings and other matters of 15 public record.”). 16 The Rechnitzes ask the Court to consider the assertions Voutsas made in his 17 bankruptcy declaration, the “Marco Decl.,” in evaluating the motion to dismiss, 18 arguing that the assertions are judicial admissions binding on Peter Marco. (MTD 4 19 n.5.) Courts have discretion to treat a party’s statements of fact in briefs as judicial 20 admissions conclusively binding on the party. Am. Title Ins. Co. v. Lacelaw Corp., 21 861 F.2d 224, 226–27 (9th Cir. 1988). Courts generally apply this rule to statements 22 made in briefs within the same action. See, e.g., Hornberger v. Merrill Lynch, Pierce, 23 Fenner & Smith, Inc., No. SA CV 14-1645-DOC (RNBx), 2015 WL 13310465, at *3 24 (C.D. Cal. Jan. 22, 2015) (citing cases applying rule to statements made in briefs 25 opposing motions to dismiss within the same action, and deeming as judicial 26 admissions statements a party made in a declaration submitted in same action before 27

28 1 The Court deems these motions appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 removal to federal court). Because Voutsas submitted his declaration in a separate 2 proceeding involving different parties, the Court declines to apply the rule here.2 3 Peter Marco also requested judicial notice of documents. (ECF Nos. 49, 62, 85, 4 90.) The Court need not rely upon those documents to adjudicate the motions, so 5 those requests are DENIED as moot. 6 Peter Marco and the Rechnitzes present new arguments in requests for judicial 7 notice and supplemental declarations. (E.g., ECF No. 92 at 3 (“The claims in this 8 action squarely overlap with the subject matter of the criminal investigation . . . .”); 9 ECF No. 94 ¶ 8 (“Rechnitz’s Request for Leave blurs two issues . . . .”).) The Court 10 did not permit supplemental briefing, so it does not consider these arguments in 11 evaluating the pending motions. 12 Finally, Peter Marco’s briefs exceed the Court’s twenty-five-page limit. C.D. 13 Cal. L.R. 11-6. The Court does not consider any argument beyond the twenty-fifth 14 substantive page of these briefs. 15 III. BACKGROUND 16 A. Allegations in the ATPC 17 From October 29, 2019 to January 7, 2020, after experiencing some legal 18 troubles, Jona Rechnitz3 told Peter Marco4 that he was “refocused on his business” 19 and sought to consign jewelry from Peter Marco to sell to his clients. (ATPC ¶ 32.) 20 Between October 2019 and January 2020, Peter Marco consigned several pieces of 21 jewelry (“Consigned Jewelry”) to Jona.5 (ATPC ¶¶ 32–35.) Peter Marco, Jona, 22 2 The Court also declines to employ the incorporation-by-reference doctrine to consider the jewelry 23 consignment memoranda attached to the Marco Declaration because the Rechnitzes question the authenticity of the copies attached. (MTD 4–5 n.6.) See Marder v. Lopez, 450 F.3d 445, 448 (9th 24 Cir. 2006) (deeming incorporation by reference of a document appropriate if “no party questions 25 [its] authenticity”). 3 To avoid confusion, the Court respectfully refers to the Rechnitzes by their given names. 26 4 The ATPC confusingly uses the term “Marco” to refer to both Voutsas individually and Voutsas and his businesses collectively. (ATPC ¶¶ 1–4.) The Court need not distinguish Voutsas from his 27 businesses to decide the motions. The Court uses masculine pronouns to refer to Peter Marco. 28 5 Among the Consigned Jewelry are the yellow diamond ring and yellow radiant diamond necklace at the heart of Plaintiff David Rovinsky’s Complaint. (Compl. ¶¶ 10–11; see ATPC ¶ 33.) 1 Rachel, and Jadelle (the Rechnitzes’ jewelry business) memorialized the consignments 2 in a series of memoranda.6 (ATPC ¶¶ 124–34.) “Prior to 10-29-2019, and thereafter,” 3 Jona repeatedly told Peter Marco he had interested buyers for the Consigned Jewelry, 4 that sales were imminent, and that he had sold the Consigned Jewelry and was 5 awaiting payment from his clients. (ATPC ¶¶ 34, 37.) Peter Marco discovered from 6 colleagues that Jona liquidated the Consigned Jewelry. (ATPC ¶ 38.) Peter Marco 7 demanded that Jona return the Consigned Jewelry. (ATPC ¶ 49.) In January and 8 February 2020, Jona, his father Robert, and his attorneys communicated with Peter 9 Marco, expressing regret that payment was delayed, requesting that Peter Marco not 10 communicate with the press, and assuring Peter Marco that Jona was arranging for 11 payment. (ATPC ¶¶ 40–43, 49–56, 58, 67–68.) Jona has not returned the Consigned 12 Jewelry or paid Peter Marco its stated value. (See ATPC ¶¶ 38, 49.) 13 Peter Marco brings the following claims: (1) intentional misrepresentation and 14 fraud against Jona, Rachel, and Prado; (2) civil theft against Jona and Rachel; 15 (3) embezzlement against Jona; (4) civil conspiracy to commit theft, fraud, and fraud 16 by concealment against Jona, Rachel, and Prado; (5) conversion against Jona and 17 Rachel; (6) breach of contract against Jona and Rachel; (7) breach of the implied 18 covenant of good faith and fair dealing against Jona, Rachel, and Prado; (8) account 19 stated against Jona and Rachel; and (9) unethical business practices in violation of 20 California Business and Professions Code section 17200 against Jona, Rachel, and 21 Prado. (ATPC ¶¶ 86–150.) 22 B. Bankruptcy Proceedings 23 Jadelle Jewelry and Diamonds, LLC, is one of the Rechnitzes’ jewelry 24 businesses; Rachel is its managing member, and Prado is its agent for service of 25 6 The ATPC refers to three businesses named Jadelle: Jadelle Jewelry and Diamonds, LLC; Jadelle 26 Jewelry, LLC; and Jadelle Inc. (ATPC ¶¶ 11–13.) The ATPC is unclear as to which Jadelle entities are party to these consignment memoranda. (Compare ATPC ¶ 126 (stating “the Jadelle Parties” are 27 parties to the memoranda), with ATPC ¶ 11 (defining “Jadelle Entities” as the collective term 28 referring to the nonparty Jadelle businesses).) The Court need not distinguish these businesses from one another to decide the motions. 1 process and controller. (ATPC ¶¶ 6–7, 11, 14.) Jadelle Inc. is another of the 2 Rechnitzes’ jewelry businesses; Rachel is its chief executive officer, chief financial 3 officer, and secretary. (ATPC ¶¶ 7, 13.) On April 6, 2020, Peter Marco and other 4 creditors filed an involuntary bankruptcy petition against Jadelle Jewelry and 5 Diamonds, LLC, and Jadelle Inc. (ATPC ¶ 9 & Ex. 1.) Proceedings in In re Jadelle 6 are ongoing. 7 C. Criminal Investigation 8 The Rechnitzes’ attorney avers that the Beverly Hills Police Department 9 referred allegations made by Victor Franco Noval, another of the petitioning creditors 10 in In re Jadelle, to the Federal Bureau of Investigation for criminal investigation. 11 (Decl. of Reuven L. Cohen (“R. Cohen Decl.”) ISO MTS ¶¶ 9–10, ECF No. 47.) At 12 the time the MTS was filed, the United States Attorney’s Office declined to confirm 13 or deny publicly the existence of any investigation. (Id. ¶ 11.) 14 On August 25, 2020, the United States filed a motion for a limited stay of 15 discovery in In re Jadelle. (Gov’t Mot.) The government states that the FBI is 16 “investigating the alleged theft or taking by fraud of millions of dollars in diamonds 17 while on consignment with Jadelle, some or all of which have recently been recovered 18 and are being held as evidence.” (Gov’t Mot. 1.) The government requests a stay in 19 the bankruptcy proceeding based on the overlap between Noval’s claims as creditor in 20 In re Jadelle and the pending criminal investigation of transfers between Noval and 21 Jadelle. (Gov’t Mot. 10–11.) The government argues that if discovery in the 22 bankruptcy proceeding is not stayed, Noval, Jona, and others “may be forced to 23 choose to invoke their Fifth Amendment privilege against self-incrimination.” (Gov’t 24 Mot. 13.) 25 IV. LEGAL STANDARDS 26 A. Motion to Stay 27 The district court has “the power to stay proceedings . . . to control the 28 disposition of the causes on its docket with economy of time and effort for itself, for 1 counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). This 2 power includes the discretion to stay a case “pending resolution of independent 3 proceedings which bear upon the case.” Leyva v. Certified Grocers of Cal., Ltd., 593 4 F.2d 857, 863 (9th Cir. 1979). “This rule applies whether the separate proceedings are 5 judicial, administrative, or arbitral in character, and does not require that the issues in 6 such proceedings are necessarily controlling of the action before the court.” Id. 7 at 863–64. To determine whether a Landis stay is appropriate, courts consider (1) “the 8 possible damage which may result from the granting of a stay,” (2) “the hardship or 9 inequity which a party may suffer in being required to go forward,” and (3) “the 10 orderly course of justice measured in terms of the simplifying or complicating of 11 issues, proof, and questions of law which could be expected to result from a stay.” 12 Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005) (quoting CMAX, Inc. v. 13 Hall, 300 F.2d 265, 268 (9th Cir. 1962)). “The proponent of a stay bears the burden 14 of establishing its need.” Clinton v. Jones, 520 U.S. 681, 708 (1997). 15 B. Motion to Dismiss 16 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 17 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 18 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 19 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading 20 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. 21 Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to 22 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 23 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual matter, 24 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 25 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 26 The determination of whether a complaint satisfies the plausibility standard is a 27 “context-specific task that requires the reviewing court to draw on its judicial 28 experience and common sense.” Id. at 679. A court is generally limited to the 1 pleadings and must construe all “factual allegations set forth in the complaint . . . as 2 true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles, 3 250 F.3d 668, 679 (9th Cir. 2001). However, a court need not blindly accept 4 conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. 5 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 6 Fraud-based claims require a plaintiff to “state with particularity the 7 circumstances constituting fraud.” Fed. R. Civ. P. 9(b). The complaint must identify 8 the “who, what, when, where, and how” of the fraudulent misconduct, “as well as 9 what is false or misleading about” it, and “why it is false.” Cafasso v. Gen. Dynamics 10 C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (internal quotation marks omitted); 11 accord Vess v. Ciba-Geigy Corp., 317 F.3d 1097, 1106 (9th Cir. 2003) (requiring 12 “more than the neutral facts necessary to identify the transaction”). 13 Where a district court grants a motion to dismiss, it should generally provide 14 leave to amend unless it is clear the complaint could not be saved by any amendment. 15 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 16 1025, 1031 (9th Cir. 2008). 17 V. MOTION TO STAY 18 The Rechnitzes request that the Court stay proceedings against them for six 19 months in light of two pending proceedings involving Jadelle: a criminal investigation 20 and an involuntary bankruptcy action. (MTS 1–2.) The Rechnitzes fail to show that 21 exercise of the Court’s discretion to stay the case is appropriate. 22 A. The Keating Factors Weigh Against Staying the Action Pending the 23 Criminal Investigation. 24 “The Constitution does not ordinarily require a stay of civil proceedings 25 pending the outcome of criminal proceedings.” Keating v. Off. of Thrift Supervision, 26 45 F.3d 322, 324 (9th Cir. 1995). “Nevertheless, a court may decide in its discretion 27 to stay civil proceedings . . . ‘when the interests of justice seem[] to require such 28 action.’” Id. (alterations in original) (quoting SEC v. Dresser Indus., Inc., 628 F.2d 1 1368, 1375 (D.C. Cir. 1980)). In deciding whether to stay civil proceedings in light of 2 parallel criminal proceedings, courts consider the following factors: (1) the extent to 3 which the defendant’s Fifth Amendment rights are implicated; (2) the plaintiff’s 4 interest in proceeding expeditiously with the litigation and the potential prejudice of a 5 delay; (3) the burden the proceedings may impose on the defendant; (4) judicial 6 efficiency; (5) nonparty interests; and (6) the public’s interest in the pending civil and 7 criminal litigation. Id. at 324–25. 8 1. Implication of the Rechnitzes’ Fifth Amendment Rights 9 With respect to the first factor, “[a] defendant has no absolute right not to be 10 forced to choose between testifying in a civil matter and asserting his Fifth 11 Amendment privilege.” Id. at 326. Although a defendant’s Fifth Amendment right is 12 an important consideration, it is but one factor to be weighed against the others. See 13 id. “[T]he strongest case for deferring civil proceedings . . . is where a party under 14 indictment for a serious offense is required to defend a civil . . . action involving the 15 same matter.” Dresser Indus., 628 F.2d at 1375–76. 16 The first factor weighs only weakly in favor of staying the action. As Peter 17 Marco highlights, there is no pending criminal proceeding, only an investigation. 18 (Opp’n MTS 12, ECF No. 48.) Without a criminal indictment, “[t]he case for staying 19 civil proceedings is ‘a far weaker one.’” Fed. Sav. & Loan Ins. Corp. v. Molinaro, 20 889 F.2d 899, 903 (9th Cir. 1989) (quoting Dresser Indus., 628 F.2d at 1376); see also 21 Estate of Morad v. City of Long Beach, No. CV 16-06785 MWF (AJWx), 2017 WL 22 5187826, at *8 (C.D. Cal. Apr. 28, 2017) (“Keating stays are rarely, if ever, granted 23 where no indictment has yet been returned.”). 24 Even without an indictment, a court may order a stay “if there is substantial 25 overlap between the criminal investigation and the allegations in the civil lawsuit.” 26 C.M. ex rel. McLain v. Cnty. of Los Angeles, No. LA 17-cv-05135-VAP-AGRx, 2017 27 WL 10527380, at *2 (C.D. Cal. Oct. 19, 2017); accord eBay, Inc. v. Digit. Point Sols., 28 Inc., No. C 08-4052 JF (PVT), 2010 WL 702463, at *3 (N.D. Cal. Feb. 25, 2010) 1 (emphasizing importance of factual and legal overlap in analyzing this factor). The 2 legal and factual issues in this action do not appear to overlap with the criminal 3 investigation. The Rechnitzes identify transfers between Noval and Jadelle as the 4 subject of criminal investigation—not the jewelry consignments from Peter Marco. 5 (R. Cohen Decl. ¶¶ 9–10.) Similarly, the government’s motion in In re Jadelle 6 identifies an overlap between Noval’s claims in the bankruptcy action and the criminal 7 investigation of transfers between Noval and Jadelle. (Gov’t Mot. 5–6, 10–11 (citing, 8 among other things, Noval’s declaration describing these transfers).) Despite clear 9 allegations presented in the bankruptcy matter regarding the consignments from Peter 10 Marco (see generally Marco Decl. (describing Consigned Jewelry transactions in 11 declaration concurrently filed with Noval’s declaration)), the government’s motion 12 narrowly focuses on the Noval transfers and remains silent as to whether the Peter 13 Marco consignments also are the subject of investigation.7 The Rechnitzes do not 14 convincingly articulate how their Fifth Amendment rights are implicated by this 15 action given the pending investigation of unrelated transactions with a nonparty. 16 2. Other Keating Factors 17 As for prejudice to Peter Marco, a civil plaintiff has an interest in having its 18 case resolved quickly. ESG Cap. Partners LP v. Stratos, 22 F. Supp. 3d 1042, 1046 19 (C.D. Cal. 2014). It would be highly prejudicial to require Peter Marco to await the 20 conclusion of a criminal investigation of unclear scope and duration. If the 21 government ultimately files criminal charges against Jadelle or its officers, the delay 22 may be substantial. The potential for prejudice to Peter Marco is significant and 23 strongly weighs against a stay. 24 25

26 7 The government avers that it recently recovered jewelry owned by or on consignment to Jadelle. (Decl. of Madison MacDonald ISO Gov’t Mot. (“MacDonald Decl.”) ¶¶ 4–5, 8–9, ECF No. 92-1.) 27 The provenance of the jewelry is the subject of ongoing investigation. (Gov’t Mot. 13; see also 28 MacDonald Decl. ¶ 11.) The Court declines to speculate whether pieces of the Consigned Jewelry are among the recovered jewelry. 1 In contrast, the burden on the Rechnitzes of proceeding in this action is concrete 2 but not compelling. As discussed, the Rechnitzes have no constitutional right to a 3 stay. Keating, 45 F.3d at 326. To the extent the Rechnitzes see fit to invoke their 4 privilege against self-incrimination in this action, “less drastic means” than a stay, 5 “such as asserting the privilege on a question-by-question basis and implementing 6 protective orders,” are available. Doe v. City of San Diego, No. 12-cv-689-MMA- 7 DHB, 2012 WL 6115663, at *2 (S.D. Cal. Dec. 10, 2012). Given the apparent lack of 8 overlap between the subjects of criminal investigation and Peter Marco’s claims, such 9 less drastic means are suitable safeguards of the Rechnitzes’ rights in this action. This 10 factor weighs only weakly in favor of a stay. 11 Judicial efficiency weighs against issuing a stay, as the Court has “an interest in 12 clearing its docket.” Molinaro, 889 F.2d at 903. Although the Rechnitzes limit their 13 stay request to six months (MTS 1–2), no party has provided any indication that the 14 criminal investigation, or resulting criminal proceedings, will be completed by the 15 conclusion of that six-month period. Indeed, the Rechnitzes already forecast an 16 extension of the stay in their motion papers. (See MTS 2 (requesting a status 17 conference six months from entry of the stay “to determine whether a further stay is 18 warranted”).) A stay would significantly delay adjudication of this matter. 19 Nonparty interests are unclear. The nonparty interest factor is “salient in the 20 Keating analysis where the third-parties at issue had a direct interest in the outcome of 21 the litigation.” Petrov v. Alameda Cnty., No. 16-cv-04323-YGR, 2016 WL 6563355, 22 at *6 (N.D. Cal. Nov. 4, 2016). The Rechnitzes argue the petitioning creditors in In re 23 Jadelle would benefit from having the bankruptcy action resolved before this one. 24 (MTS 8–9.) The government’s motion to stay in In re Jadelle complicates that 25 argument: should Jadelle be stayed, the order in which the actions would be resolved 26 is uncertain. If Jadelle is stayed, the petitioning creditors may have an interest in the 27 continued litigation of this action because the Rechnitzes’ participation in discovery or 28 trial may inform the petitioning creditors’ claims. Given the uncertainty as to whether 1 a stay here would directly benefit the petitioning creditors’ interests, this factor does 2 not weigh in favor of or against a stay. 3 The public interest factor weighs against a stay. The Rechnitzes’ counsel 4 declares that someone at the U.S. Attorney’s Office informed him that the office 5 would “support[] [the Rechnitzes’] request for a stay with respect to civil proceedings 6 related to the investigation.” (R. Cohen Decl. ¶ 11.) As discussed, it does not appear 7 that this proceeding relates to the investigation; the U.S. Attorney’s Office has not 8 appeared in this action to “support[]” the Rechnitzes’ request for a stay, despite the 9 government’s intervention in In re Jadelle. Thus, it is unclear whether “the public’s 10 interest in the integrity of the criminal case” is implicated here. Jones v. Conte, 11 No. C 045312S1, 2005 WL 1287017, at *2 (N.D. Cal. Apr. 19, 2005) (quoting Javier 12 H. v. Garcia-Botello, 218 F.R.D. 72, 75 (W.D.N.Y. 2003)). Instead, the Court 13 acknowledges the public’s general interest in swift resolution of civil actions, see 14 Keating, 45 F.3d at 326, and determines that this factor weighs against a stay. 15 Weighing all the Keating factors, the Court determines that a stay pending the 16 criminal investigation is not justified at this time. 17 B. The Jadelle Bankruptcy Proceeding Does Not Warrant a Stay Here. 18 The Rechnitzes also briefly argue that the ongoing proceedings in In re Jadelle 19 warrant a stay of this action because the Consigned Jewelry is arguably an asset of the 20 putative debtor. (MTS 9–10.) The Rechnitzes note that Peter Marco is attempting to 21 recover the value of the Consigned Jewelry simultaneously from Jona, Rachel, and 22 Prado in this action and from Jadelle in the bankruptcy action. (MTS 1, 9.) How 23 Peter Marco’s litigation strategy and the ownership status of the Consigned Jewelry 24 favor a stay of these proceedings is unclear. The Rechnitzes offer no argument or 25 authority probative of the issues relevant to whether a stay is appropriate—that is, 26 whether a stay would simplify or complicate the factual or legal issues in this case, 27 whether staying the action would damage the other parties, and whether the 28 Rechnitzes would face hardship or inequity should a stay be denied. See Lockyer, 398 1 F.3d at 1110. It is not the role of the Court to make parties’ arguments for them. See 2 Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). The 3 Rechnitzes fail to meet their burden to show that a stay pending the resolution of In re 4 Jadelle is appropriate.8 5 C. Conclusion 6 Neither the criminal investigation nor the bankruptcy action warrants a stay of 7 this action. The Court DENIES the Rechnitzes’ motion for a stay of proceedings. 8 VI. MOTION TO DISMISS 9 The Rechnitzes move to dismiss the ATPC with prejudice for failure to state a 10 claim. (MTD 1–3.) For the following reasons, the Court grants the motion to dismiss 11 but gives Peter Marco leave to amend all but the third claim. 12 A. Fraud-Based Claims 13 Peter Marco’s first, second, fourth, and fifth claims, all of which are predicated 14 on allegations of fraud, must be dismissed. The Court first considers the fraud-based 15 claims against Jona before turning to the same claims against Rachel. 16 1. Intentional Misrepresentation and Fraud (First Claim) 17 To state a claim of intentional misrepresentation or fraud, a plaintiff must plead: 18 (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the 19 representation was false when the defendant made it, or the defendant 20 made the representation recklessly and without regard for its truth; (4) the 21 defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was 22 harmed; and (7) the plaintiff’s reliance on the representation was a 23 substantial factor in causing that harm to the plaintiff. 24 Manderville v. PCG&S Grp., Inc., 146 Cal. App. 4th 1486, 1498 (2007) (emphasis 25 omitted); accord Lazar v. Superior Ct., 12 Cal. 4th 631, 638 (1996) (articulating the 26

8 For the first time in the reply, the Rechnitzes contend that some claims may be subject to Jadelle’s 27 automatic bankruptcy stay. (Reply ISO MTS 11, ECF No. 55.) The Court declines to entertain this 28 argument. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first time in a reply brief.”). 1 claim in five elements: “(a) misrepresentation (false representation, concealment, or 2 nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to 3 induce reliance; (d) justifiable reliance; and (e) resulting damage”). Claims of 4 intentional misrepresentation are subject to the heightened pleading standard of Rule 5 9(b), requiring the plaintiff to plead the “time, place, and specific content” of the 6 misrepresentations. Swartz v. KPMG LLP, 476 F.3d 756, 765 (9th Cir. 2007); see also 7 Vess, 317 F.3d at 1103 (“Rule 9(b)’s particularity requirement applies to state-law 8 causes of action.”). 9 Peter Marco alleges that, “[f]rom the period 10-29-2019 - 1-7-2020,” Jona 10 assured Peter Marco that “he was back from NY refocused on his business,” and that 11 he sought jewelry on consignment “for the purpose of reselling them to his clients.” 12 (ATPC ¶ 32.) “Prior to 10-29-2019, and thereafter,” Jona further represented that “he 13 had interested buyers for the pieces of Consigned Jewelry,” that sale of the Consigned 14 Jewelry was “imminent,” and that the sold Consigned Jewelry was “awaiting receipt 15 of payment from his clients.” (ATPC ¶¶ 34, 37.)9 16 The time, place, and specific content of these purported misrepresentations is 17 not pleaded with any specificity. For example, the phrase “[p]rior to 10-29-2019, and 18 thereafter” is entirely devoid of temporal meaning; it is unclear when or how many 19 times Jona purportedly made any representations. Peter Marco also fails to articulate 20 which of the pieces of Consigned Jewelry Jona told him had interested buyers, which 21 had imminent sales, and which were sold and awaiting payment, as well as when, 22 where, and how Jona made such representations. Specificity concerning Jona’s 23 statements that he was refocused on his business and sought jewelry on consignment 24 for his clients, made an unspecified number of times in a two-month span, is similarly 25 lacking. These allegations fall short of presenting factual content sufficient for Jona to 26

9 Peter Marco avers Jona told him “further false and misleading stories.” (ATPC ¶ 40.) The Court 27 limits its analysis to the two sets of statements described here, which are the only statements 28 identified and argued in the parties’ briefs. (MTD 9; Third-Party Pls.’ Opp’n MTD (“Opp’n MTD”) 14–15, ECF No. 66.) 1 meaningfully respond to the claim. See, e.g., R Power Biofuels, LLC v. Chemex LLC, 2 No. 16-CV-00716-LHK, 2016 WL 6663002, at *14 (N.D. Cal. Nov. 11, 2016) (finding 3 insufficient under Rule 9(b) “allegations of ‘repeated’ conversations over an 4 eight-month time frame”); Giron v. Wells Fargo Bank, N.A., No. 2:14-cv-02437-ODW 5 (VBKx), 2014 WL 12589628, at *4 (C.D. Cal. May 27, 2014) (finding insufficient 6 under Rule 9(b) “[g]eneralized allegations that at some unknown point a vague 7 statement was made”). 8 Because the allegations concerning the representations at issue are insufficient 9 under Rule 9(b), the Court need not decide whether the other elements are adequately 10 pleaded. The claim for intentional misrepresentation must be dismissed. 11 2. Civil Theft (Second Claim) 12 California Penal Code section 496(a) criminalizes buying or receiving “any 13 property that has been stolen or has been obtained in any manner constituting theft or 14 extortion”; section 496(c) provides a private right of action to a person injured by a 15 violation of section 496(a). To plead a violation of section 496(a), a plaintiff must 16 establish: “(1) that the particular property was stolen, (2) that the accused received, 17 concealed or withheld it from the owner thereof, and (3) that the accused knew that 18 the property was stolen.” Finton Constr., Inc. v. Bidna & Keys, APLC, 238 Cal. App. 19 4th 200, 213 (2015). 20 Peter Marco alleges that Jona received the Consigned Jewelry in a manner 21 constituting theft by false pretenses under California Penal Code section 484(a). 22 (ATPC ¶¶ 95–96.) That subdivision proscribes “knowingly and designedly, by any 23 false or fraudulent representation or pretense, defraud[ing] any other person 24 of . . . personal property.” Cal. Pen. Code § 484(a). Theft by false pretenses and 25 fraud carry “substantially similar elements,” and both are subject to heightened 26 pleading requirements. Worldwide Travel, Inc. v. Travelmate US, Inc., No. 14-cv- 27 00155-BAS (DHB), 2016 WL 1241026, at *8 (S.D. Cal. Mar. 30, 2016); see Vess, 28 317 F.3d at 1103–04 (recognizing Rule 9(b) applies to a claim relying upon 1 allegations of fraud even where fraud is not a necessary element of the claim). As 2 described above, Peter Marco has not adequately pleaded fraud; for the same reasons, 3 he also has not pleaded theft by false pretenses. Accordingly, Peter Marco has not 4 adequately alleged facts establishing the first element of his claim, that the property 5 was stolen. 6 The Rechnitzes argue that Peter Marco further failed to establish facts showing 7 that Jona received, concealed, or withheld the pieces of Consigned Jewelry from their 8 owners. (MTD 12.) Peter Marco does not respond to this argument. (See Opp’n 9 MTD 17–20.) The Court has not identified any allegation in the ATPC pertaining to 10 this element of the claim, so the second element also appears to be insufficiently 11 pleaded. 12 For both of these reasons, the claim for civil theft must be dismissed. 13 3. Civil Conspiracy (Fourth Claim) 14 Civil conspiracy is not a distinct cause of action under California law, but 15 instead is “a legal doctrine that imposes liability on persons who, although not 16 actually committing a tort themselves, share with the immediate tortfeasors a common 17 plan or design in its perpetration.” Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 18 Cal. 4th 503, 510–11 (1994). The elements of a civil conspiracy are “(1) the 19 formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the 20 conspiracy, and (3) damages arising from the wrongful conduct.” Kidron v. Movie 21 Acquisition Corp., 40 Cal. App. 4th 1571, 1581 (1995). Rule 9(b) applies to a civil 22 conspiracy claim where, as here, “the object of the conspiracy is fraudulent.” Swartz, 23 476 F.3d at 765. 24 Peter Marco claims Jona conspired with Rachel and Prado to defraud Peter 25 Marco and commit civil theft. (ATPC ¶ 107.) As discussed above, the fraud and theft 26 claims are inadequately pleaded, so this claim similarly must be dismissed for failure 27 to allege wrongful conduct with the particularity required by Rule 9(b). 28 1 4. Conversion (Fifth Claim) 2 “Conversion is the wrongful exercise of dominion over the property of 3 another.” Lee v. Hanley, 61 Cal. 4th 1225, 1240 (2015) (internal quotation marks 4 omitted). Its elements are “(1) the plaintiff’s ownership or right to possession of the 5 property; (2) the defendant’s conversion by a wrongful act or disposition of property 6 rights; and (3) damages.” Id. Because the wrongful acts alleged here are predicated 7 in fraud (ATPC ¶ 117), this claim also is subject to heightened pleading requirements. 8 Vess, 317 F.3d at 1103–04. 9 Because the purported conversion by fraud is inadequately pleaded, this claim 10 too must be dismissed for failure to meet Rule 9(b)’s particularity requirement. In 11 sum, the first, second, fourth, and fifth claims against Jona must be dismissed. 12 5. Fraud-Based Claims Against Rachel (First, Second, Fourth, and Fifth 13 Claims) 14 Peter Marco also has not adequately pleaded any of these claims against Rachel. 15 As established, the fraud, theft, conspiracy, and conversion claims are subject to the 16 heightened pleading requirements of Rule 9(b). “To satisfy Rule 9(b), a fraud suit 17 against differently situated defendants must identify the role of each defendant in the 18 alleged fraudulent scheme. In other words, when defendants engage in different 19 wrongful conduct, plaintiffs must likewise differentiate their allegations.” United 20 States ex rel. Silingo v. Wellpoint, Inc., 904 F.3d 667, 677 (9th Cir. 2018) (citation and 21 internal quotation marks omitted). “[W]ith different actors playing different parts, it is 22 not enough to lump together the dissimilar defendants and assert that everyone did 23 everything.” Id. (internal quotation marks omitted). 24 Peter Marco avers that Rachel is the wife of Jona; the managing member of 25 Jadelle Jewelry and Diamonds, LLC, and Jadelle Jewelry, LLC; and an officer of 26 Jadelle Inc. (ATPC ¶¶ 6–7, 11–13.) He alleges that Jona committed wrongdoing 27 “with Rachel’s knowledge and direction,” as Jona was afforded the opportunity to 28 commit fraud because Rachel “set[] up the entities to commit the frauds.” (ATPC 1 ¶¶ 8, 15.) Although Peter Marco argues that Rachel “knew of, participated in, and 2 endorsed Jona’s frauds,” (Opp’n MTD 7), he pleads no factual basis for these 3 conclusions—or any facts showing that Rachel herself made any fraudulent 4 representations. Peter Marco further contends that “Jona and Rachel (and Jadelle) are 5 one and the same,” and that group pleading as to Jona, Rachel, Prado and Jadelle’s 6 collective conduct is appropriate. (Opp’n MTD 8, 12–13.) But the ATPC does not set 7 forth factual allegations supporting Peter Marco’s conclusion that Jona, Rachel, and 8 Prado are alter egos of one another. (See ATPC ¶ 18 (making this conclusion on 9 unpleaded “information and belief”).) In any event, Peter Marco’s allegations of 10 fraudulent misconduct are not collective—according to the ATPC, Jona made the 11 misrepresentations at issue, not Rachel or Prado. (E.g., ATPC ¶¶ 32, 34, 37; see also 12 Opp’n MTD 6 (admitting each third-party defendant plays a “respective role[] in the 13 alleged conduct,” rather than one collective role).) Finally, Peter Marco presents 14 allegations concerning Rachel in the opposition brief that are not pleaded. (E.g., 15 Opp’n MTD 2–3 (arguing Rachel “has been paying off Jona’s defrauded creditors 16 through her Paypal and personal bank accounts”).) 17 The pleading is entirely devoid of any allegations of Rachel’s fraudulent 18 conduct, let alone allegations made with the specificity required by Rule 9(b). The 19 first, second, fourth, and fifth claims against Rachel must be dismissed. 20 B. Embezzlement (Third Claim) 21 There is no civil claim for embezzlement under California law. Sharp v. 22 Nationstar Mortg., LLC, 701 F. App’x 596, 598 (9th Cir. 2017) (citing In re Basinger, 23 45 Cal. 3d 1348, 1363 (1988)); Mohebbi v. Khazen, 50 F. Supp. 3d 1234, 1257 (N.D. 24 Cal. 2014). Peter Marco does not offer any authority to the contrary.10 (See Opp’n 25 MTD 21–23.) This claim is dismissed. 26

10 Instead, he states that “embezzlement may create various causes of action such as, for example, 27 conversion (wrongful taking of property), fraud, and breach of fiduciary duty – all properly alleged 28 in the [ATPC].” (Opp’n MTD 21.) The adequacy of the fraud and conversion claims are discussed above, but the ATPC presents no claim of breach of fiduciary duty. 1 C. Breach of Contract (Sixth Claim) 2 To state a claim for breach of contract under California law, a plaintiff must 3 plead: (1) a contract; (2) plaintiff’s performance or excuse for nonperformance; 4 (3) defendant’s breach; and (4) resulting damages to plaintiff. Reichert v. Gen. Ins. 5 Co. of Am., 68 Cal. 2d 822, 830 (1968); Tribeca Cos., LLC v. First Am. Title Ins. Co., 6 239 Cal. App. 4th 1088, 1109 (2015). 7 The Rechnitzes argue Peter Marco failed to adequately plead the material terms 8 of the asserted contracts, the consignment memoranda—specifically, the terms 9 governing when the consignment memoranda required the Rechnitzes to return or pay 10 the value of the Consigned Jewelry. (MTD 17.) “While it is unnecessary for a 11 plaintiff to allege the terms of the alleged contract with precision, the Court must be 12 able generally to discern at least what material obligation of the contract the defendant 13 allegedly breached.” Langan v. United Servs. Auto. Ass’n, 69 F. Supp. 3d 965, 979 14 (N.D. Cal. 2014) (citation omitted). If “it affirmatively appears that all the terms of 15 the contract are not set forth in haec verba, nor stated in their legal effect, but that a 16 portion which may be material has been omitted, the complaint is insufficient.” 17 Nasseri v. Wells Fargo Bank, N.A., 147 F. Supp. 3d 937, 941 (N.D. Cal. 2015) 18 (quoting Gilmore v. Lycoming Fire Ins. Co., 55 Cal. 123, 124 (1880)). 19 The ATPC affirmatively exhibits several material omissions concerning the 20 Rechnitzes’ relevant contract obligations. Peter Marco alleges that he, Jona, Rachel, 21 and Jadelle are parties to a series of consignment memoranda that obligate Jona and 22 Rachel to either return certain pieces of Consigned Jewelry to Peter Marco or pay 23 Peter Marco their value. (ATPC ¶¶ 124, 126–34.) He claims that Jadelle, Jona, and 24 Rachel breached the agreements by failing to either return or pay the value of all of 25 the Consigned Jewelry, and that the value of the Consigned Jewelry “is past due and 26 owing.” (ATPC ¶ 135.) Taken together, these allegations leave unstated what event or 27 events would trigger the Rechnitzes’ obligation to return or pay, or which contracting 28 party would elect between return or payment upon occurrence of the triggering event. 1 Accordingly, the ATPC leaves unclear how the Rechnitzes have a “past due” payment 2 obligation under the consignment memoranda given the failure to plead contract terms 3 establishing when payment was due. Peter Marco also has not pleaded any terms 4 giving rise to interest obligations, despite claiming interest is owed under the 5 contracts. (ATPC ¶ 135.) Finally, Peter Marco fails to allege the existence of 6 contracts governing consignment of several pieces of Consigned Jewelry for which he 7 claims he is owed payment. For example, he pleads that the Consigned Jewelry 8 includes three butterfly rings consigned to the Rechnitzes on November 11, 2019, 9 (ATPC ¶ 33), but he does not allege the existence of a memorandum obligating the 10 Rechnitzes to return or pay the value of the rings, (see ATPC ¶¶ 126–34). The ATPC 11 clearly omits material portions of the contracting parties’ relevant obligations, so the 12 breach of contract claim must be dismissed. 13 D. Breach of Implied Covenant of Good Faith and Fair Dealing (Seventh 14 Claim) 15 California law implies in every contract a covenant of good faith and fair 16 dealing. Moore v. Wells Fargo Bank, N.A., 39 Cal. App. 5th 280, 291 (2019). To state 17 a claim for breach of the implied covenant of good faith and fair dealing, the plaintiff 18 must allege the specific contractual obligation from which the implied covenant arose. 19 Terpin v. AT&T Mobility, LLC, 399 F. Supp. 3d 1035, 1050 (C.D. Cal. 2019). 20 Peter Marco tersely alleges that the Rechnitzes “breached the implied covenant 21 of good faith and fair dealing continuously throughout the business relationship.” 22 (ATPC ¶ 138.) Peter Marco does not identify the specific contractual obligation from 23 which he claims the implied covenant arose, let alone the contract from which the 24 covenant arose. He further fails to describe how the Rechnitzes “continuously” 25 breached any such covenant. See Terpin, 399 F. Supp. 3d at 1050 (dismissing claim 26 where plaintiff did not allege how defendant “failed or refused to discharge their 27 contractual responsibilities through a conscious or deliberate act to frustrate their 28 contractual agreement”). This claim must be dismissed. 1 E. Account Stated (Eighth Claim) 2 “An account stated is an agreement, based on prior transactions between the 3 parties, that all items of the account are true and that the balance struck is due and 4 owing from one party to the other.” S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1091 5 (9th Cir. 1989) (quoting Trafton v. Youngblood, 69 Cal. 2d 17, 25 (1968)). To state a 6 claim for account stated, a plaintiff must plead: “(1) previous transactions between the 7 parties establishing the relationship of debtor and creditor; (2) an agreement between 8 the parties, express or implied, on the amount due from the debtor to the creditor; 9 [and] (3) a promise by the debtor, express or implied, to pay the amount due.” Zinn v. 10 Fred R. Bright Co., 271 Cal. App. 2d 597, 600 (1969). An account stated “constitutes 11 a new contract which supersedes and extinguishes the original obligation.” Id. at 604. 12 Thus, “a debt which is predicated upon the breach of the terms of an express contract 13 cannot be the basis of an account stated.” Moore v. Bartholomae Corp., 69 Cal. App. 14 2d 474, 477 (1945). 15 Peter Marco incorporates his previous allegations by reference to claim that “an 16 account was stated in writing . . . , and on such statement, a balance of $6,950,444.40 17 was found due.” (ATPC ¶¶ 143–44.) Aside from the consignment memoranda, Peter 18 Marco does not allege the existence of any written agreement between Peter Marco 19 and the Rechnitzes establishing the amount due for the Consigned Jewelry. (See 20 ATPC ¶ 135 (claiming breach of contract due to failure to “make full repayment of the 21 $6,950,444.40”).) Peter Marco’s account stated claim may not be predicated on the 22 same debts claimed due under the consignment memoranda. See, e.g., Advanced 23 Cleanup Techs., Inc. v. BP Am. Inc., No. CV14-9033-CAS (AJWx), 2016 WL 67671, 24 at *7 (C.D. Cal. Jan. 4, 2016) (concluding plaintiff failed to state claim for account 25 stated where plaintiff sought to recover amounts it claimed were due under a written 26 agreement); Nat’l Ins. Co. of Hartford v. Expert Auto. Reconditioning, Inc., No. SACV 27 13-0873-DOC (JPRx), 2013 WL 6190591, at *4 (C.D. Cal. Nov. 24, 2013) (same). 28 The claim is dismissed. 1 F. Unethical Business Practices (Ninth Claim) 2 California’s unfair competition law (“UCL”) prohibits “any unlawful, unfair or 3 fraudulent business act or practice and unfair, deceptive, untrue or misleading 4 advertising.” Cal. Bus. & Prof. Code § 17200. “By proscribing any unlawful 5 business practice, section 17200 borrows violations of other laws and treats them as 6 unlawful practices that the unfair competition law makes independently actionable.” 7 Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999) 8 (internal quotation marks omitted). 9 Incorporating his preceding allegations, Peter Marco claims that the Rechnitzes 10 “intentionally conspired with each other to restrain competition and deprive [Peter 11 Marco] of the benefit of their contracts.” (ATPC ¶ 148.) Peter Marco leaves unclear 12 whether he brings his claims under the unlawful, unfair, or fraudulent prongs of the 13 UCL. By incorporating his other claims, this claim appears to derive from those 14 claims. To the extent this claim is predicated on the fraud-based claims, such as 15 conspiracy, it fails to meet the heightened pleading requirements of Rule 9(b). See 16 Kearns v. Ford Motor Co., 567 F.3d 1120, 1127 (9th Cir. 2009) (applying Rule 9(b)’s 17 heightened pleading standards to UCL claims sounding in fraud). To the extent this 18 claim is predicated on any of the other claims, it fails because Peter Marco failed to 19 state his other claims. See Matudio v. Countrywide Home Loans, Inc., No. CV 09- 20 02960 DDP (FFMx), 2010 WL 114185, at *3–4 (C.D. Cal. Jan. 6, 2010) (dismissing 21 derivative UCL claim where plaintiff failed to state underlying claims). This claim 22 must be dismissed. 23 G. Conclusion 24 The Court dismisses Peter Marco’s claims against the Rechnitzes. 25 The Court also dismisses Peter Marco’s claims against Prado. “A District Court 26 may properly on its own motion dismiss an action as to defendants who have not 27 moved to dismiss where such defendants are in a position similar to that of moving 28 defendants or where claims against such defendants are integrally related.” Silverton 1 v. Dep’t of Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981). Prado stands in a similar 2 position to Rachel in the foregoing analysis of the fraud-based claims; Peter Marco 3 fails to allege fraudulent misconduct by Prado, (see ATPC ¶¶ 14–16, 48), so the fraud 4 and conspiracy claims against him may be dismissed on that basis. The reasoning 5 supporting dismissal of the breach of implied covenant and UCL claims against the 6 Rechnitzes applies in equal measure to the claims against Prado. 7 Recognizing the policy favoring adjudicating cases on their merits and granting 8 leave to amend when justice so requires, Fed. R. Civ. P. 15(a)(2), the Court dismisses 9 the first, second, and fourth through ninth claims with leave to amend. Because 10 California law does not provide a civil claim for embezzlement, amendment of such a 11 claim would be futile and the third claim is dismissed without leave to amend. 12 Concerning amendment, the Court reminds Peter Marco of his pleading 13 obligations under Rule 8(a)(2), which requires a “short and plain statement of the 14 claim.” Complaints that are “argumentative, prolix, replete with redundancy, and 15 largely irrelevant” may be dismissed. Cafasso, 637 F.3d at 1058 (quoting McHenry v. 16 Renne, 84 F.3d 1172, 1177 (9th Cir. 1996)). Much of the ATPC consists of scurrilous 17 allegations irrelevant to Peter Marco’s substantive claims. (E.g., ATPC ¶¶ 25–30 18 (discussing unrelated criminal proceedings involving Jona); ATPC ¶¶ 70, 75–84 19 (setting forth allegations concerning Peter Marco’s attorney).) These superfluous 20 allegations do not comport with the letter or spirit of Rule 8; any amended pleading 21 should avoid them. 22 VII. CONCLUSION 23 For the reasons discussed above, the Court orders as follows: 24 1. The Rechnitzes’ motion to stay is DENIED. (ECF No. 47.) 25 2. The Rechnitzes’ motion to dismiss the ATPC is GRANTED. (ECF 26 No. 63.) Peter Marco’s first, second, and fourth through ninth claims are 27 DISMISSED with leave to amend. Peter Marco’s third claim for embezzlement is 28 DISMISSED without leave to amend. 1 3. Peter Marco may file a Second Amended Third-Party Complaint within 2 fourteen (14) days curing the deficiencies identified in this Order. Third-Party 3 Defendants’ response shall be due fourteen (14) days thereafter. 4 5 IT IS SO ORDERED. 6 7 September 21, 2020 8 9 ____________________________________ OTIS D. WRIGHT, II 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28