King v. U.S. Bank Trust, N.A. as Trustee for LSF9 Master Participation Trust

• Court: District Court, S.D. California
• Decided: October 11, 2019
• Docket: 3:19-cv-01689
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 PAMELA KING aka PAMELA Case No.: 19-CV-1689-CAB-WVG SCHIAVONE, 11 ORDER ON MOTIONS TO DISMISS Plaintiff, 12 AND MOTION TO EXPUNGE v. NOTICE OF PENDENCY OF 13 ACTION OR REQUIRE A BOND U.S. BANK TRUST, N.A., AS TRUSTEE 14 FOR LSF9 MASTER PARTICIPATION 15 TRUST et al., [Doc. Nos. 3, 5, 9] 16 Defendants. 17 18 This matter is before the Court on motions to dismiss and to expunge a notice of 19 pendency of action recorded against the real property located at 584 Palomar Court, 20 Encinitas, California 92024 (the “Property”) filed by Defendants U.S. Bank Trust, N.A., 21 as trustee for LSF9 Master Participation Trust (“US Bank”) and Summit Management 22 Company, LLC (“Summit”). Plaintiff has opposed the motions, and the Court deems them 23 suitable for submission without oral argument. As discussed below, the motions are 24 granted. 25 I. Background 26 On October 15, 2004, Plaintiff entered into a mortgage loan agreement with 27 Countrywide Bank as lender consisting of a promissory note and deed of trust secured by 28 the Property. [Doc. No. 1-2 at ¶ 8.] The trustee under the deed of trust was CTC Real 1 Estate Services, and the beneficiary was Defendant Mortgage Electronic Registration 2 Systems (“MERS”). [Id.] 3 On October 20, 2009, a “Substitution of Trustee and Assignment of Deed of Trust” 4 dated September 8, 2009 (the “September 2009 Assignment”), was recorded in the San 5 Diego County Recorder’s Office. [Id. at 58.] The document states that MERS substituted 6 Recontrust Company, N.A., as trustee, and transferred to BAC Home Loans Servicing LP 7 all beneficial interest under the deed of trust to the Property.1 [Id. at 58, 60.] 8 On July 21, 2016, an “Assignment of Deed of Trust” dated May 17, 2016, was 9 recorded in the San Diego County Recorder’s Office. [Id. at 62.] The document stated 10 that Defendant Bank of America, N.A. (“BoA”), successor by merger to BAC Home Loans 11 Servicing LP, assigned its rights under the deed of trust to the Property to US Bank. [Id.] 12 On July 25, 2016, a “Substitution of Trustee” dated July 21, 2016, that substituted Summit 13 as trustee was recorded in the San Diego County Recorder’s Office. [Doc. No. 4 at 43.]2 14 On October 21, 2016, a notice of trustee sale on the Property was recorded. [Doc. 15 No. 1-2 at ¶ 18; Doc. No. 4 at 51.] On July 5, 2017, a foreclosure sale was held with 16 Summit as trustee, and the Property was conveyed to U.S. Bank. [Doc. No. 1-2 at ¶ 19; 17 Doc. No. 4 at 54.] 18 Two years later, on July 9, 2019, Plaintiff filed a complaint in San Diego County 19 Superior Court seeking to unwind the foreclosure sale, cancel the various assignments and 20 substitutions recorded against the Property, and to quiet title to the Property. The complaint 21 named US Bank, Summit, BoA, and MERS as defendants. Summit and US Bank removed 22 the complaint to this court and on September 6, 2019, filed a motion to dismiss and a 23 motion to expunge or require a bond for the notice of pendency of action that Plaintiff 24

25 26 1 A duplicative “Substitution of Trustee and Assignment of Deed of Trust” was recorded in March 2010. 2 Defendants request judicial notice of various recorded documents related to the Property and a certificate 27 of merger filed with the Texas Secretary of State. [Doc. No. 4.] Plaintiff did not oppose this request, and it is granted. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (“[U]nder Fed.R.Evid. 28 1 recorded after filing the complaint. These motions have been fully briefed. Meanwhile, 2 on September 25, 2019, BoA and MERS filed their own motion to dismiss. The deadline 3 for Plaintiff’s opposition to that motion has yet to pass. 4 II. Legal Standard for Motions to Dismiss 5 The familiar standards on a motion to dismiss apply here. To survive a motion to 6 dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted 7 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 8 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus, 9 the Court “accept[s] factual allegations in the complaint as true and construe[s] the 10 pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire 11 & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). On the other hand, the Court is 12 “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 13 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Nor is the Court “required to accept as 14 true allegations that contradict exhibits attached to the Complaint or matters properly 15 subject to judicial notice, or allegations that are merely conclusory, unwarranted deductions 16 of fact, or unreasonable inferences.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 17 (9th Cir. 2010). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory 18 factual content, and reasonable inferences from that content, must be plausibly suggestive 19 of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th 20 Cir. 2009) (quotation marks omitted). 21 III. Discussion 22 The complaint asserts five claims, each of which arise out of Plaintiff’s apparent 23 belief that the recorded assignments and substitutions of trustee on the Deed of Trust on 24 the Property were invalid or void rendering the foreclosure sale wrongful and void. The 25 five claims in the complaint are: (1) wrongful foreclosure against US Bank and Summit; 26 (2) quiet title against US Bank; (3) cancelation of instruments against all defendants; (4) 27 violation of California’s unfair competition law (“UCL”) against all defendants; and (5) 28 slander of title against all defendants. Each of Plaintiff’s claims are predicated on her 1 position that MERS lacked authority to assign the Deed of Trust to BAC Home Loans 2 Servicing, meaning all subsequent assignments and substitutions were ineffectual and the 3 beneficiary and trustee unchanged from the original Deed of Trust. Thus, according to 4 Plaintiff, US Bank and Summit had no interest in the Deed of Trust or promissory note and 5 no right to foreclose on the Property. US Bank and Summit each move to dismiss all claims 6 against them for failure to state a claim. 7 A. Wrongful Foreclosure 8 “The elements of a wrongful foreclosure cause of action are: (1) The trustee or 9 mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property 10 pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale 11 (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in 12 cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered 13 the amount of the secured indebtedness or was excused from tendering.” Sciarratta v. U.S. 14 Bank Nat’l Assn., 247 Cal. App. 4th 552, 561–62 (Cal. Ct. App. 2016) (internal quotation 15 marks and citation omitted). US Bank and Summit argue that the complaint does not 16 adequately allege any of these elements. 17 1. Tender 18 First, US Bank and Summit argue that this claim should be dismissed because the 19 complaint does not allege that Plaintiff tendered the amount owed on her loan. Under 20 California law, however, because Plaintiff’s wrongful foreclosure claim is premised on an 21 allegedly “void as distinguished from a voidable assignment, she is excused from having 22 to allege tender as an element of her wrongful foreclosure cause of action.” Sciarratta, 23 247 Cal. App. 4th at 565 n.10; see also Glaski v. Bank of Am., 218 Cal. App. 4th 1079, 24 1100 (Cal. Ct. App. 2013) (“Tender is not required where the foreclosure sale is void, rather 25 than voidable, such as when a plaintiff proves that the entity lacked the authority to 26 foreclose on the property.”). Accordingly, the lack of an allegation of tender is not fatal to 27 Plaintiff’s wrongful foreclosure claim. 28 1 2. Prejudice or Harm 2 US Bank and Summit also argue that Plaintiff does not adequately allege prejudice 3 as a result of the foreclosure sale. Yet, the gravamen of the complaint is that US Bank and 4 Summit foreclosed on the Property without any right to do so because they had no interest 5 in the debt. Under California law, “[a] homeowner experiences prejudice or harm when 6 an entity with no interest in the debt forecloses. When a non-debtholder forecloses, a 7 homeowner is harmed because he or she has lost her home to an entity with no legal right 8 to take it. If not for the void assignment, the incorrect entity would not have pursued a 9 wrongful foreclosure. Therefore, the void assignment is the cause-in-fact of the 10 homeowner’s injury and all he or she is required to allege on the element of prejudice.” 11 Sciarratta, 247 Cal. App. 4th at 565–66; cf. Yvanova v. New Century Mortg. Corp., 62 Cal. 12 4th 919, 924 (2016) (“[A] borrower who has suffered a nonjudicial foreclosure does not 13 lack standing to sue for wrongful foreclosure based on an allegedly void assignment merely 14 because he or she was in default on the loan and was not a party to the challenged 15 assignment.”). Accordingly, the complaint adequately alleges this element of a wrongful 16 foreclosure claim as well. 17 3. Propriety of the Foreclosure 18 Finally, US Bank and Summit argue that the complaint does not adequately allege 19 that the foreclosure was illegal, fraudulent, or willfully oppressive. The premise for 20 Plaintiff’s claim that the foreclosure was wrongful is that US Bank was not the beneficiary 21 on the Deed of Trust and that Summit was not trustee at the time of the foreclosure. This 22 “theory that a foreclosure was wrongful because it was initiated by a nonholder of the deed 23 of trust has also been phrased as (1) the foreclosing party lacking standing to foreclose or 24 (2) the chain of title relied upon by the foreclosing party containing breaks or defects.” 25 Glaski, 218 Cal. App. 4th at 1093. Although “courts have recognized the existence of a 26 valid cause of action for wrongful foreclosure where a party alleged not to be the true 27 beneficiary instructs the trustee to file a Notice of Default and initiate nonjudicial 28 foreclosure . . . properly alleging a cause of action under this theory requires more than 1 simply stating that the defendant who invoked the power of sale was not the true 2 beneficiary under the deed of trust. Rather, a plaintiff asserting this theory must allege 3 facts that show the defendant who invoked the power of sale was not the true beneficiary.” 4 Id. at 1094 (internal quotation marks and citation omitted). The complaint here alleges no 5 such facts. 6 Plaintiff’s theory is that the September 2009 Assignment is void because MERS did 7 not have the authority to execute it. Thus, according to Plaintiff, all future assignments are 8 void and the foreclosure was wrongful because “[t]he holder of the Subject Note and 9 Beneficiary of the Subject Deed of Trust as of the date of the sale was Countrywide Bank”, 10 and “[t]he true trustee was CTC Real Estate Services.” [Doc. No. 1-2 at 13, ¶ 21.] The 11 only facts alleged in the complaint to support this theory are that a MERS “State by State 12 Foreclosure Manual” establishes that MERS had no authority to assign the beneficial 13 interest in the Deed of Trust or the promissory note. The existence of such a manual and 14 Countrywide Bank’s membership in MERS (or lack thereof), however, do not render the 15 assignments executed and recorded by MERS, or the foreclosure itself, void. 16 “A deed of trust to real property acting as security for a loan typically has three 17 parties: the trustor (borrower), the beneficiary (lender), and the trustee.” Yvanova, 62 Cal. 18 4th at 926. “[T]he borrower, or ‘trustor,’ conveys nominal title to property to an 19 intermediary, the ‘trustee,’ who holds that title as security for repayment of the loan to the 20 lender, or ‘beneficiary.’” Kachlon v. Markowitz, 168 Cal. App. 4th 316, 334, (Cal. Ct. 21 App. 2008). “The trustee of a deed of trust is not a true trustee with fiduciary obligations, 22 but acts merely as an agent for the borrower-trustor and lender-beneficiary.” Yvanova, 62 23 Cal. 4th at 927. “The trustee’s duties are twofold: (1) to ‘reconvey’ the deed of trust to the 24 trustor upon satisfaction of the debt owed to the beneficiary, resulting in a release of the 25 lien created by the deed of trust, or (2) to initiate nonjudicial foreclosure on the property 26 upon the trustor’s default, resulting in a sale of the property.” Kachlon, 168 Cal. App. 4th 27 at 334. “The beneficiary [under a Deed of Trust] may make a substitution of trustee . . . to 28 conduct the foreclosure and sale.” Id. 1 “Typically, the owner of a promissory note is the beneficiary of the associated deed 2 of trust. [] ‘Under the MERS System, however, MERS is designated as the beneficiary in 3 deeds of trust, acting as “nominee” for the lender, and granted the authority to exercise 4 legal rights of the lender.’” Marshall v. Gen. Motors/Corp. Serv. Co., No. 18-CV-2551- 5 GPC-JLB, 2019 WL 2642661, at *7 n.3 (S.D. Cal. June 27, 2019) (quoting Orcilla v. Big 6 Sur, Inc., 244 Cal. App. 4th 982, 1003 (2016)). “California courts have held that the role 7 of MERS under deeds of trusts clearly confers upon MERS the authority to assign a deed 8 and any associated notes.” Holden v. Bank of New York Mellon, No. 18-CV-02037-BLF, 9 2019 WL 452041, at *4 (N.D. Cal. Feb. 5, 2019); see also Morgan v. Aurora Loan Servs., 10 LLC, 646 F. App’x 546, 551 (9th Cir. 2016) (“California courts have universally held that 11 MERS, as nominee beneficiary, has the power to assign its interest under a deed of trust.”) 12 (citing Herrera v. Fed. Nat’l Mortg. Assn., 205 Cal. App. 4th 1495 (Cal. Ct. App. 2012)) 13 (internal brackets omitted). 14 The Deed of Trust here grants MERS rights, as nominee for Countrywide Bank, to 15 exercise all of the interests granted by Plaintiff in the Deed of Trust, including “the right to 16 foreclose and sell the Property; and to take any action required of [Countrywide Bank] 17 including . . . releasing and canceling this Security Instrument.” [Doc. No. 1-2 at 30-31.] 18 “Several California courts have held that this exact language clearly and unmistakably 19 grants MERS the right to assign the deed of trust.” Holden, 2019 WL 452041, at *4. 20 “Because the deed of trust in this case identifies MERS as a nominee and beneficiary, and 21 provides MERS the ability to exercise any and all interests, MERS had the authority to 22 assign the beneficial interest in [Plaintiff’s] deed of trust.” Bever v. Cal-W. Reconveyance 23 Corp., No. 1:11-CV-1584 AWI SKO, 2013 WL 5492154, at *3 (E.D. Cal. Oct. 2, 2013); 24 see also Herrera, 205 Cal. App. 4th at 1506 (“Because the DOT stated MERS held all the 25 rights of the lender, including the right to foreclose, there was no abuse of discretion in the 26 trial court concluding plaintiffs were precluded from contesting MERS’s authority to 27 assign . . . the DOT and note.”), disapproved on other grounds by Yvanova, 62 Cal. 4th at 28 939 n.13. 1 Plaintiff’s allegation and argument that a MERS’s “State by State Foreclosure 2 Manual” establishes that MERS had no authority to assign the beneficial interest in the 3 Deed of Trust because Countrywide Bank was not a MERS member is unavailing. The 4 Deed of Trust expressly grants MERS the authority to act on behalf of Countrywide Bank, 5 and this authority was not limited to the terms of any other agreements between MERS and 6 Countrywide. Thus, any language in a MERS manual or any other agreements (or lack 7 thereof) between MERS and Countrywide Bank do not eliminate this authority. Cf. Ratliff 8 v. JPMorgan Chase Bank N.A., No. 17-CV-02155-EMC, 2017 WL 2876141, at *8 n.3 9 (N.D. Cal. July 6, 2017) (“At the hearing, Mr. Ratliff raised a new argument . . . that MERS 10 has a manual which provides that MERS will not act on a third party’s behalf unless that 11 third party is a member of MERS. . . . [O]n the merits, the argument is not persuasive. . . . 12 even if [the defendants were not MERS members], the DOT specifically provides that 13 MERS has the authority to act for the lender’s successors and assigns. MERS apparently 14 relied on that contractual delegation to act, regardless of what a manual may or may not 15 have said.”); Avila v. Wells Fargo Bank, Nat’l Ass’n, No C-16-5904-WHA, 2016 WL 16 7425925, at *3 (N.D. Cal. Dec. 23, 2016) (holding that MERS’s authority applies “to the 17 extent described in the applicable deed of trust,” regardless of MERS membership); Gomes 18 v. Mortg. Elec. Registration Sys., Inc., No S-11-CV-1790-KFM, 2012 WL 370542, at *3 19 (E.D. Cal. Feb. 3, 2012) (“Whether Countrywide is officially a member of MERS or not is 20 irrelevant here—the fact remains that Countrywide, via the deed of trust, authorized MERS 21 to be its nominee and beneficiary under the deed of trust.”). Accordingly, because the Deed 22 of Trust gave MERS the authority to execute the September 2009 Assignment [Doc. No. 23 1-2 at 30-31], the substitution of trustee to Recontrust Company and assignment of 24 beneficial interest to BAC Home Loans Servicing, LP is not void based on the MERS 25 foreclosure manual or Countrywide Bank’s lack of membership in MERS. 26 Plaintiff makes a second related argument that US Bank did not have the right to 27 foreclose because it did not hold the promissory note. According to Plaintiff, US Bank did 28 not hold the note either because MERS did not have the authority to transfer the note or 1 because the recorded assignment of the Deed of Trust from BAC Home Loans Servicing, 2 LP to US Bank [Doc. No. 1-2 at 62] did not also assign the note. This argument is equally 3 unavailing. “There is no stated requirement in California’s non-judicial foreclosure 4 scheme that requires a beneficial interest in the Note to foreclose. Rather, the statute 5 broadly allows a trustee, mortgagee, beneficiary, or any of their agents to initiate non- 6 judicial foreclosure. Accordingly, the statute does not require a beneficial interest in both 7 the Note and the Deed of Trust to commence a non-judicial foreclosure sale.” Debrunner 8 v. Deutsche Bank Nat’l Tr. Co., 204 Cal. App. 4th 433, 441 (2012); see also Marshall, 9 2019 WL 2642661, at *5 (holding that based on Debrunner, “the separation of the note and 10 deed of trust does not prevent a party from concluding a non-judicial foreclosure sale.”). 11 Based on the complaint and the documents subject to judicial notice, US Bank was the 12 beneficiary of the Deed of Trust and Summit was the trustee at the time of the foreclosure 13 sale. Notably, the complaint does not contain any factual allegations that, if true, 14 affirmatively demonstrate that US Bank did not have an interest in the note itself. 15 Regardless, whether US Bank had an interest in the note is irrelevant to its right to foreclose 16 based on its beneficial interest in the Deed of Trust. 17 In light of the foregoing, the complaint does not state a plausible claim that any of 18 the assignments and substitutions are void or that US Bank and Summit did not have 19 standing to foreclose on the Property. The wrongful foreclosure claim is therefore 20 dismissed. 21 B. Remaining Claims 22 Plaintiff’s claims for quiet title, cancelation of instruments, unfair competition, and 23 slander of title are all premised on the same flawed theory underlying her wrongful 24 foreclosure claim that the trustee and beneficiary remained unchanged from the original 25 deed of trust at the time the foreclosure occurred. Thus, because the complaint does not 26 allege facts supporting that theory, these claims do not survive dismissal either. 27 28 1 IV. Motion to Expunge 2 On August 16, 2019, Plaintiff recorded a Notice of Pendency of Action Pursuant to 3 CCP § 405 (the “Lis Pendens”) on the Property with the San Diego County recorder. Under 4 California Code of Civil Procedure § 450.20, “[a] party to an action who asserts a real 5 property claim may record a notice of pendency of action in which that real property claim 6 is alleged.” “The effect of a lis pendens is that anyone acquiring an interest in the property 7 after the action was filed will be bound by the judgment. Once a lis pendens is filed, it 8 clouds the title and effectively prevents the property’s transfer until the litigation is 9 resolved or the lis pendens is expunged.” Cornell v. Select Portfolio Servicing, Inc., No. 10 CIV S-11-1462 KJM, 2011 WL 6097721, at *1 (E.D. Cal. Nov. 29, 2011) (internal 11 quotation marks and citation omitted) (citing BGJ Assocs., LLC v. Superior Court, 75 Cal. 12 App. 4th 952, 966 (Cal. Ct. App. 1999)). 13 “At any time after notice of pendency of action has been recorded, any party, or any 14 nonparty with an interest in the real property affected thereby, may apply to the court in 15 which the action is pending to expunge the notice.” Cal. Code Civ. Proc. § 405.30. “In 16 opposition to a motion to expunge, the party who recorded the notice of lis pendens has the 17 burden of proof.” Leramo v. Wells Fargo Bank, N.A., No. 119CV00090DADJLT, 2019 18 WL 2089990, at *1 (E.D. Cal. May 13, 2019). “[T]o carry that burden, the recording party 19 must demonstrate that ‘the pleading on which the notice is based does . . . contain a real 20 property claim’ and establish ‘by a preponderance of the evidence the probable validity of 21 the real property claim.’” Id. (quoting Cal. Code Civ. Proc. §§ 405.31, 405.32). Having 22 dismissed the complaint, Plaintiff cannot meet the burden of establishing that the complaint 23 contains a real property claim of probable validity. See id. Accordingly, the motion to 24 expunge the lis pendens should be granted. See generally Cornell, 2011 WL 6097721, at 25 26 27 28 1 *2 (“Once [the action on which the lis pendens is based] has been dismissed, the lis pendens 2 serves no purpose, and thus, must be expunged.”).3 3 US Bank and Summit also request their attorney’s fees pursuant to Cal. Code. Civ. 4 Proc. § 405.38, which provides: “The court shall direct that the party prevailing on any 5 motion under this chapter be awarded the reasonable attorney’s fees and costs of making 6 or opposing the motion unless the court finds that the other party acted with substantial 7 justification or that other circumstances make the imposition of attorney’s fees and costs 8 unjust.” Although the complaint fails to state a claim, Plaintiff did not act without 9 substantial justification in recording the Lis Pendens based on the filing of this lawsuit. 10 Accordingly, the Court declines to award attorney’s fees. 11 V. Leave to Amend 12 “[I]n dismissing for failure to state a claim under Rule 12(b)(6), a district court 13 should grant leave to amend even if no request to amend the pleading was made, unless it 14 determines that the pleading could not possibly be cured by the allegation of other facts.” 15 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (internal quotation marks and citation 16 omitted). Here, Plaintiff does not request leave to amend, and the Court is skeptical, based 17 on the documents in the record, that Plaintiff can allege facts that would support her theory 18 for why US Bank and Summit did not have authority to foreclose, which underlies all of 19 her claims. Nevertheless, this dismissal of the complaint is without prejudice, and leave to 20 amend is granted. 21 22 23 24 3 With her opposition to the motion to expunge, Plaintiff requests judicial notice of four publicly recorded 25 documents, some of which were attached to the complaint or were already subject to Defendants’ request for judicial notice. [Doc. No. 11-1, Exs. A-D.] Defendants do not object to this request, and it is granted. 26 Defendants do object, however, to Plaintiff’s request for judicial notice of a document called, “MERS State By State Foreclosure Procedures.” [Doc. No. 11-1, Ex. E.] Although the Court agrees with 27 Defendants that this document is not subject to judicial notice, the Court did not consider the document in connection with the instant motions. Accordingly, the request for judicial notice of this document is 28 1 VI. Disposition 2 For the foregoing reasons, it is hereby ORDERED as follows: 3 1. US Bank and Summit’s motion to dismiss [Doc. No. 3] is GRANTED, and the 4 complaint is DISMISSED WITHOUT PREJUDICE; 5 2. The motion to expunge the notice of pendency of action [Doc. No. 5] is 6 GRANTED; 7 3. US Bank and Summit’s request for attorney’s fees related to their motion to 8 expunge is DENIED; 9 4. The motion to dismiss filed by BoA and MERS [Doc. No. 9] is DENIED AS 10 MOOT; and, 11 5. Plaintiff has leave to file an amended complaint by October 25, 2019. If an 12 amended complaint is not filed by this date, the Clerk of Court shall close this 13 case without further order from the Court. 14 It is SO ORDERED. 15 ||Dated: October 11, 2019 € Z 16 Hon. Cathy Ann Bencivengo 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28