AIG Specialty Insurance Company v. Phoenician LLC, et al

Filing 48

MEMORANDUM AND ORDER RE: MOTION TO DISMISS signed by Senior Judge William B. Shubb on 9/24/2014: IT IS ORDERED that 27 Everest Indemnity Insurance Company's Motion to Dismiss be, and the same hereby is, GRANTED. Plaintiff has twenty days from the date this Order is signed to file an amended complaint, if it can do so consistent with this Order. (Kirksey Smith, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

----oo0oo----

11
12
13
14

AIG SPECIALTY INSURANCE COMPANY,
f/k/a/ CHARTIS SPECIALTY
INSURANCE COMPANY, f/k/a/
AMERICAN INTERNATIONAL SPECIALTY
LINES INSURANCE COMPANY

17

MEMORANDUM AND ORDER RE:
MOTION TO DISMISS

Plaintiff,

15
16

CIV. NO. 2:13-2578 WBS CKD

v.
PHOENICIAN LLC and EVEREST
INDEMNITY INSURANCE COMPANY,

18

Defendants.

19
20
----oo0oo----

21

Plaintiff AIG Specialty Insurance Company brought this

22
23

action against defendants Phoenician LLC (“Phoenician”) and

24

Everest Indemnity Insurance Company (“Everest”).

25

before the court is Everest’s motion to dismiss plaintiff’s

26

complaint for failure to state a claim upon which relief can be

27

granted pursuant to Federal Rule of Civil Procedure Rule

28

12(b)(6).
1

Presently

1

I.

Allegations of the First Amended Complaint

2

In 2001, Phoenician began developing a fifteen-unit

3

apartment complex in Roseville, California known as “The

4

Phoenician.”

5

apartments were later converted to condominiums.

6

Phoenician took out two insurance policies on the property, a

7

primary policy from Everest and an excess policy from plaintiff.

8

(Id. ¶ 7.)

9

retained limit per occurrence.

10

(First Am. Compl. ¶ 4 (Docket No. 11).)

The

(Id.)

Plaintiff’s policy was subject to a $2 million
(Id.)

Severe rainfall damaged several of the property’s units

11

in October 2009.

12

Association (“Association”) tendered a claim to its insurer,

13

which denied coverage on the grounds that design and construction

14

defects caused the damage.

15

Phoenician, which tendered a claim to Everest under its primary

16

policy.

17

(Id.)

18

conducted an investigation of the Phoenician property.

19

14.)

20

to evaluate these issues, it conducted destructive testing on the

21

property between 2010 and 2012.

22

during this time, the Association informed Phoenician and Everest

23

about the destructive testing, but they declined to participate.

24

(Id.)

25

(Id.)

(Id. ¶ 13.)

The Phoenician Homeowner

(Id.)

The Association contacted

Everest retained counsel to represent the matter.

Thereafter, the Association hired a consultant who
(Id. at

The consultant discovered further construction defects, and

(Id.)

Plaintiff contends that

In September 2012, the Association provided notice to

26

Phoenician, pursuant to California’s “Right to Repair Act,” that

27

it planned to commence litigation regarding alleged construction

28

defects at The Phoenician.

(Id. ¶ 15.)
2

Plaintiff contends that,

1

by failing to acknowledge the claim in writing within fourteen

2

days after receipt, both Phoenician and Everest waived

3

Phoenician’s right to avail itself of defenses and pre-litigation

4

remedies available under the Act.

5

resolve the issues, on October 10, 2012, the Association filed a

6

lawsuit against Phoenician in Placer County Superior Court.

7

¶ 17.)

8

January 2014.

(Id. ¶ 16.)

Having failed to

(Id.

Arbitration of the Association’s claims was set for
(Id. ¶ 26.)

9

Plaintiff alleges that neither Phoenician nor Everest

10

advised it of the destructive testing, the Association’s “Right

11

to Repair” notice, or the underlying lawsuit the Association

12

brought against Phoenician.

13

alleges that it did not become aware of the underlying lawsuit

14

between the Association and Phoenician until late 2012, through a

15

communication from the Association’s counsel.

16

Plaintiff contacted Everest and Klinedinst for Phoenician’s

17

contact information and was allegedly misinformed by Everest that

18

Phoenician was defunct.

19

investigation of the Secretary of State’s corporation database

20

corroborated this information.

21

later learned in October 2013 that Phoenician was not defunct and

22

had been in contact with Everest, Klinedinst, and the Association

23

during the period leading up to the lawsuit.

24

Plaintiff now alleges that by the time of this discovery, it was

25

unable to participate meaningfully in the arbitration process.

26

(Id. ¶¶ 25-26, 46.)

27

counsel’s motion to continue the proceedings.

28

(Id. ¶ 18.)

(Id. ¶ 20.)

Plaintiff further

(Id. ¶ 19.)

Plaintiff’s independent

(Id. ¶ 21.)

However, plaintiff

(Id. ¶¶ 24-25.)

The arbitrator nevertheless denied plaintiff
(Id. ¶ 26.)

As a result of its late discovery of Phoenician’s
3

1

status as an existing entity and the Association’s action against

2

Phoenician, plaintiff now contends that it lacked adequate time

3

to investigate and discover facts directly relevant to its

4

defense.

5

Phoenician’s status prevented it from contacting other parties

6

and insurers that might have contributed toward the settlement

7

amount.

(Id. ¶ 25.)

It also asserts its confusion over

(Id. ¶ 46.)

8

Prior to the date set for arbitration, the Association

9

tendered a demand for settlement to Phoenician’s counsel, who in

10

turn forwarded the correspondence to plaintiff and Everest.

11

¶ 27.)

12

proposed a full settlement involving all three parties.

13

28.)

14

approximately $1.8 million--in addition to a payment of $200,000

15

by Phoenician, which would ostensibly trigger plaintiff’s excess

16

coverage.

17

proposing that Phoenician would sign a release from liability

18

with Everest in exchange for Everest’s $1.8 million payment.

19

(Id. ¶ 29.)

20

The Association gave the parties two options.

(Id.

“Option A”
(Id. ¶

Everest would pay the remaining limits of its policy--

(Id. ¶ 28.)

“Option B” was a partial settlement,

Plaintiff contends both of these options disregarded

21

its available defenses and erroneously presumed that the $2

22

million combined disbursements from Phoenician and Everest would

23

trigger its excess policy.

24

participate in the proposed settlement on the basis that most of

25

the defects fell outside the scope of the coverage of its issued

26

policy; that, in the alternative, the defects were overvalued by

27

the Association and actually fell below the policy’s retained

28

limit; and that the defects belonged to multiple occurrences such

(Id. ¶ 30.)

4

It declined to

1

that no single “occurrence” exceeded the $2 million retained

2

limit.

(Id. ¶¶ 32-36.)

3

On December 12, 2013, plaintiff filed its Complaint for

4

declaratory relief, seeking a declaration that it had no duty to

5

defend or indemnify Phoenician in connection with certain claims

6

brought by the Association and that the partial settlement

7

executed by Everest did not reduce or exhaust the retained limit

8

of its excess insurance policy.

9

(Compl. (Docket No. 1).)

Despite plaintiff’s protests, Everest and Phoenician

10

moved forward with “Option B” and entered into two separate

11

partial settlements with the Association for $1,776,368.87 and

12

$230,000, respectively.

13

nevertheless agreed to assume Phoenician’s defense subject to a

14

reservation of rights to seek reimbursement.

15

Phoenician, and the Association reached a conditional joint

16

resolution one week prior to the January arbitration date.

17

¶ 42.)

18

II.

(First Am. Compl. ¶¶ 38-39.)

Plaintiff

Plaintiff,

(Id.

Procedural Background

19

Plaintiff filed its First Amended Complaint (“FAC”) on

20

March 28, 2014, asserting claims for cost recovery against

21

Phoenician and Everest.1

22

Phoenician for having failed to appear or answer plaintiff’s

23

Complaint within the time allowed by law.

24

Default (Docket No. 21).)

25

reimbursement for sums it paid in the defense of Phoenician and

26

the January 2014 settlement with the Association.

27
1

28

Default judgment was entered against

(Clerk’s Entry of

Against Everest, plaintiff seeks

Plaintiff

Plaintiff’s FAC does not state legal theories for such

recovery.
5

1

argues those sums were attributable to negligence and breach of

2

duty by Everest in the defense and settlement of the

3

Association’s underlying claim.

4

to dismiss plaintiff’s First Amended Complaint for failure to

5

state a claim upon which relief can be granted pursuant to Rule

6

12(b)(6).

7

III. Analysis

(Id. ¶ 54.)

Everest now moves

(Def.’s Mot. to Dismiss (Docket No. 28).)

8

A. Legal Standard

9

On a motion to dismiss, the court must accept the

10

allegations in the complaint as true and draw all reasonable

11

inferences in favor of the plaintiff.

12

U.S. 232, 236 (1974), overruled on other grounds by Davis v.

13

Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322

14

(1972).

15

plead “only enough facts to state a claim to relief that is

16

plausible on its face.”

17

544, 570 (2007).

18

for more than a sheer possibility that a defendant has acted

19

unlawfully,” and “where a complaint pleads facts that are

20

“‘merely consistent with’ a defendant’s liability, it ‘stops

21

short of the line between possibility and plausibility.’”

22

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550

23

U.S. at 556–57).

24

Scheuer v. Rhodes, 416

To survive a motion to dismiss, a plaintiff needs to

Bell Atl. Corp. v. Twombly, 550 U.S.

This “plausibility standard,” however, “asks

When ruling on a motion to dismiss, a court may

25

generally not consider materials other than the facts alleged in

26

the plaintiff’s complaint.

See Anderson v. Angelone, 86 F.3d

27

932, 934 (9th Cir. 1996).

Both plaintiff and Everest attached

28

voluminous exhibits to their briefings.
6

(See Docket Nos. 34,

1

37.)

2

motion, the court intends only to rely on plaintiff’s FAC.

Constrained by Rule 12(b)(6), in ruling on Everest’s

3

B. Plaintiff’s Theories for Recovery

4

1. Equitable Subrogation

5

“In the insurance context, [equitable subrogation]

6

permits the paying insurer to be placed in the shoes of the

7

insured and to pursue recovery from third parties responsible to

8

the insured for the loss for which the insurer was liable and

9

paid.”

Fireman’s Funds Ins. Co. v. Maryland Casualty Co., 21

10

Cal. App. 4th 1586, 1596 (4th Dist. 1994).

There are six

11

elements essential to an equitable subrogation claim:

12
13
14
15
16
17
18
19
20
21
22
23

(1) the insured has suffered a loss for which the
party to be charged is liable, either because the
latter is a wrongdoer whose act or omission caused the
loss or because he is legally responsible to the
insured for the loss caused by the wrongdoer; (2) the
insurer, in whole or in part, has compensated the
insured for the same loss for which the party to be
charged is liable; (3) the insured has an existing,
assignable cause of action against the party to be
charged, which action the insured could have asserted
for his own benefit had he not been compensated for
his loss by the insurer; (4) the insurer has suffered
damages caused by the act or omission upon which the
liability of the party to be charged depends; (5)
justice requires that the loss should be entirely
shifted from the insurer to the party to be charged .
. . ; and (6) the insurer’s damages are in a stated
sum, usually the amount it has paid to its insured,
assuming the payment was not voluntary and was
reasonable.

24
25
26
27
28

Id. (quoting Troost v. Estate of DeBoer, 155 Cal. App. 3d 289,
294 (4th Dist. 1984)).
As it presently stands, plaintiff’s FAC does not
plausibly support the inference that Phoenician has an existing
7

1

assignable cause of action against Everest, the third element of

2

an equitable subrogation claim. According to the FAC, the

3

Association delivered written notice to Phoenician of its intent

4

to commence litigation under California’s “Right to Repair” Act.

5

(First Am. Compl. ¶ 16.)

6

Phoenician nor Everest acknowledged notice of the Association’s

7

filing within fourteen days after receipt and “[a]s a result,

8

Phoenician and Everest--without notifying or consulting AIG

9

Specialty--waived Phoenician’s right to avail itself of defenses

10
11

Plaintiff alleges that neither

and remedies to which it was entitled under the Act.”

(Id.)

California’s Right to Repair Act requires that

12

homeowners serve notice on building owners before commencing

13

litigation.

14

the opportunity to receive notice and cure a defect in order to

15

resolve the matter in a nonadversarial manner.

16

Grp., Inc. v. Superior Court, 224 Cal. App. 4th 1330, 1350 (4th

17

Dist. 2014).

18

could have waived Phoenician’s ability to proceed under the Act.

19

According to plaintiff, Phoenician failed to respond to the

20

Homeowner’s notice and waived its own right.

21

fail to give rise to a discernible cause of action by Phoenician

22

against Everest.

See Cal. Civ. Code § 910.

The Act gives builders

See McCaffrey

It is unclear how Everest, Phoenician’s insurer,

These facts thus

23

Additionally, plaintiff alleges Everest made no serious

24

attempt to contact Phoenician or to secure the cooperation of the

25

company’s managing member or agent.

26

also states that “Phoenician took no active role at all in the

27

defense of the Association’s claims” and “did little or nothing

28

to monitor, direct, or participate in the defense that was being
8

(Id. ¶ 18.)

But plaintiff

1

provided by Everest; and it provided no meaningful assistance to

2

Klinedinst, or to other defense counsel Everest appointed.”

3

(Id.)

4

it is not apparent it would have an “existing, assignable cause

5

of action” against Everest for failing to involve it.

6

Fireman’s Funds Ins., 21 Cal. App. 4th at 1596.

7

If Phoenician made it itself unavailable to Everest, then

See

Plaintiff’s FAC fails to allege a plausible assignable

8

cause of action between Phoenician and Everest.

9

plaintiff has failed to sufficiently plead a claim for equitable

10

subrogation.

11
12

Therefore,

See Twombly, 550 U.S. at 570.
2. Duty of Good Faith and Fair Dealing

Because of an insurer’s contractual relationship with

13

the insured, the insurer owes the insured an implied duty of good

14

faith and fair dealing that is part of any contract.

15

Commercial Union Assurance Cos. v. Safeway Stores, Inc., 164 Cal.

16

Rptr 709, 711 (1980).

17

such relationship.

18

Spink Corp., 94 Cal. App. 3d 124 (3d. Dist. 1979), a California

19

Court of Appeal recognized a duty of good faith and fair dealing

20

between primary and excess insurers untethered to any contractual

21

relationship.

22

overruled less than a year later by the California Supreme Court,

23

which held an excess insurer’s cause of action against a primary

24

insurer for refusal to settle is limited to a claim for equitable

25

subrogation.

26

94 Cal. App. 3d at 131.

27

a contract with each other, and thus the covenant of good and

28

fair dealing does not apply to their dispute.

See

An excess and primary insurer share no

See id. at 1041.

Id. at 131.

In Transit Casualty Co. v.

Spink, however, was effectively

See Commercial Union, 164 Cal. Rptr. at 712; Spink,
Everest and plaintiff did not enter into

9

See Commercial

1

Union, 164 Cal. Rptr. at 712.

2

3. Collusive Settlement

3

Plaintiff’s claim against Everest based on a theory of

4

“collusive settlement” is essentially an extension of its direct-

5

duty theory.

6

theory in reliance on Kaiser Foundation Hospitals v. North Star

7

Reinsurance Corp., 90 Cal. App. 3d 786, (2d Dist. 1979).

8

Kaiser, the insured colluded with its primary insurer by

9

assigning dates of loss on malpractice claims to the wrong policy

Plaintiff advances its “collusive settlement”

In

10

years in an attempt to trigger the excess insurer’s coverage.

11

Id. at 789.

12

mercy of the insured and primary carrier.”

13

California Court of Appeal noted that both Kaiser and the primary

14

insurer owed a duty of good faith and fair dealing to the excess

15

insurer.

16

This strategy placed the excess insurer “at the
Id. at 792.

The

Id. at 792.
However, the court in Kaiser went on to qualify this

17

conclusion, noting that “while we have held that the parties’

18

relationships are governed by the implied covenant of good faith

19

and fair dealing rather than by unilateral fiats of [the insured

20

and the primary insurer], we make no attempt to define precisely

21

what rights and duties that entails in a case such as this.”

22

at 794.

23

primary and excess insurer was also later dismissed as dictum by

24

the Court of Appeal in Fireman’s Fund, because the only parties

25

to the appeal in Kaiser were the insured and the excess insurer.

26

Fireman’s Fund, 21 Cal. App. 4th at 1602.

27

regarding duties mutually owed between insurers was unnecessary

28

to the ruling.

Id.

The Kaiser court’s recognition of a duty between the

See id.
10

The opinion’s language

1

Kaiser thus does not assist plaintiff any more than

2

Spink.

Any recognition by the Kaiser court of an extra-

3

contractual duty between the primary and excess insurers was

4

dictum later called into question by Commerical Union and

5

Fireman’s.

6

Fireman’s Fund, 21 Cal. App. 4th at 1602.

See Commercial Union, 164 Cal. Rptr. at 712;

7

4. Negligent Undertaking

8
9

As a general rule, one has no duty to aid another. See
Williams v. California, 192 Cal. Rptr. 233, 235 (1983).

Under

10

certain circumstances, one has liability to third persons for

11

physical harm caused when one negligently performs an undertaking

12

to another.

13

has adopted the negligent undertaking or “Good Samaritan” rule

14

from the Restatement (Second).

15

Rptr. 479, 483 (1998).

16

no initial duty to do so, undertakes to come to the aid of

17

another . . . has a duty to exercise care in performance and is

18

liable if (a) his failure to exercise care increases the risk of

19

such harm, or (b) the harm is suffered because of the other’s

20

reliance upon the undertaking.”

21

Rptr. at 235-36) (internal quotation marks omitted).

22

Restatement (Second) of Torts § 324A.

California

Artiglio v. Corning Inc., 76 Cal.

“[I]t is settled law that one who, having

Id. (quoting Williams, 192 Cal.

Recovery on a negligent undertaking theory “requires

23

proof of each of the well-known elements of any negligence cause

24

of action, viz., duty, breach of duty, proximate cause, and

25

damages.”

26

assumption of an undertaking provides a basis for finding that a

27

duty to perform existed between the actor and third party.

28

A negligence claim on this theory requires a showing that

Artiglio, 76 Cal. Rptr. at 479.

11

The actor’s actual

Id.

1
2
3
4
5
6
7
8

(1)
the
actor
undertook,
gratuitously
or
for
consideration, to render services to another; (2) the
services rendered were of a kind the actor should have
recognized as necessary for the protection of third
persons; (3) the actor failed to exercise reasonable
care in the performance of the undertaking; (4) the
actor’s failure to exercise reasonable care resulted
in physical harm to the third persons; and (5) either
(a) the actor’s carelessness increased the risk of
such harm, or (b) the actor undertook to perform a
duty that the other owed to the third persons, or (c)
the harm was suffered because either the other or the
third persons relied on the actor’s undertaking.

9
10
11
12
13
14
15

Paz v. California, 93 Cal. Rptr. 2d 703, 709 (2000).

actor’s alleged actions, if proven, would constitute an
undertaking is generally a question of law.
Rptr. 2d at 484.

18
19
20
21
22
23
24
25
26
27

Artiglio, 76 Cal.

However, in some cases there may be factual

questions depending on the nature and extent of the act
undertaken.

16
17

Whether an

Id.

Plaintiff’s FAC does not plausibly support an inference
that Everest specifically undertook performance of a service to
it that Everest should have recognized was necessary for
plaintiff’s protection.

Plaintiff alleges Everest incorrectly

advised it that Phoenician was defunct and that its last known
point of contact was through an individual named Larry John.
(First Am. Compl. ¶ 20.)

Merely “advising” Phoenician, whether

or not Everest was aware the information was incorrect, did not
amount to an undertaking of a service for the protection of
plaintiff.

Everest never “held itself out as undertaking an

obligation” to ensure the information it provided was accurate.
See Rappenecker v. United States, 509 F. Supp. 1018, 1021 (N.D.

28
12

1

Cal. 1981) (concluding the government never held itself out to

2

give warnings as part of its long-range radio navigations service

3

in such a way as to constitute an undertaking).

4

Everest’s actions did not constitute an undertaking sufficiently

5

within the meaning of section 324A.

6

615.

7

To that end,

See Artiglio, 18 Cal. 4th at

Additionally, only a minority of courts have extended

8

the negligent undertaking basis for tort liability to disputes

9

involving only economic harm, and California does not appear to

10

be one of them.

See Felton v. Schaeffer, 229 Cal. App. 3d 229,

11

238 (4th Dist. 1991) (concluding that because plaintiff’s claim

12

did not involve physical damage it was outside the ambit of

13

negligent undertaking).

14

jurisdictions have read the references to ‘physical harm’ in §

15

323 and § 324A of the Restatement as affirmatively precluding

16

recovery for economic losses in such cases,” while a smaller

17

number of courts have held that pure economic losses are

18

recoverable in such cases.

19

F.3d 98, 104-05 (1st Cir. 2013); see also Love v. United States,

20

915 F.2d 1242, 1248 (9th Cir. 1989) (interpreting Montana tort

21

law but noting that “‘good samaritan’ cases have typically arisen

22

where the negligently performed service is related to safety” and

23

emphasizing that under the Restatement the tortfeasor is subject

24

to the other for physical harm resulting from his failure to

25

exercise reasonable care); Shaner v. United States, 976 F.2d 990,

26

994 (6th Cir. 1992) (“Recovery under the Good Samaritan Doctrine

“Courts in a large number of

Shaefer v. Indymac Mortg. Servs., 731

27
28
13

1

is limited to physical harm.”).2

2

Plaintiff fails to allege that Everest undertook a

3

service for its protection.

4

allegations, plaintiff would not have a claim for pure economic

5

harm under California law. Therefore, plaintiff’s claim based on

6

a theory of negligent undertaking must fail.

7

5. Negligent Misrepresentation

8
9

Even if the FAC contained such

To state a claim for negligent misrepresentation, a
plaintiff must allege: (1) a misrepresentation of a past or

10

existing material fact; (2) without reasonable ground for

11

believing it to be true; (3) intent to induce reliance; (4)

12

justifiable reliance; and (5) resulting damage.

13

Inc. v. Roe, 273 F.3d 1192, 1201 n.2 (9th Cir. 2001); Apollo

Glenn K. Jackson

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2

Neither of the cases plaintiff cites in its Opposition
in support of extending section 324A to economic harm are
helpful, as they both involved personal injury. (See Pl.’s Opp’n
at 32 n.23) FNS Mortgage Service Corp. v. Pacific General Group,
Inc., 24 Cal. App. 4th 1564 (3d Dist. 1994), involved physical
harm to consumers due to defective pipes and Hanberry v. Hearts
Corp., 276 Cal. App. 2d 680 (4th Dist 1969), was a slip-and-fall
case. In Cooper v. State Farm, 177 Cal. App. 4th 876 (4th Dist.
2009), a case involving economic harm, the Court of Appeal
suggested the plaintiff could proceed on either a contract or
negligent undertaking theory against a defendant insurer that
destroyed evidence despite an express promise to retain it.
However, Cooper was not a straightforward application of section
324A. The duty the Court of Appeal identified arose from the
defendant’s express promise to the plaintiff to preserve evidence
and the plaintiff’s reliance thereon. Id. at 884.
Additionally, in its Surreply, plaintiff cites J’Aire Corp
v. Gregory, 157 Cal. Rptr. 407, 410 (1979) for the proposition
that economic harm standing alone is recoverable where the
parties share a special relationship. (See Pl.’s Surreply at
11:15 n.11.) This authority is inapposite, because plaintiff’s
FAC fails to support a plausible inference that Everest and
plaintiff shared a special relationship.
14

1

Capital Fund, LLC v. Roth Capital Partners, LLC, 158 Cal. App.

2

4th 226, 243 (2d Dist. 2007).

3

Plaintiff alleges Everest represented that Phoenician

4

was defunct and that its last known point of contact was through

5

Larry John who no longer associated with the company.

6

Compl. ¶ 20.)

7

plausible inference that the person plaintiff spoke to at Everest

8

lacked a reasonable ground for believing this information to be

9

true or intended to induce plaintiff’s reliance--the second and

(First Am.

These allegations are insufficient to support a

10

third elements of a claim for negligent misrepresentation. Facts

11

that are “merely consistent” with a defendant’s liability are

12

insufficient to allege a plausible claim for relief.

13

556 U.S. at 678 (2009).3

14
15

See Iqbal,

IT IS THEREFORE ORDERED that Everest’s motion to
dismiss be, and the same hereby is, GRANTED.

16

Plaintiff has twenty days from the date this Order is

17

signed to file an amended complaint, if it can do so consistent

18

with this Order.

19

Dated:

September 24, 2014

20
21
22
23
24
25
26
27
28

3

In its Opposition, plaintiff raises new allegations in
support of this claim. (See Pl.’s Opp’n at 5:23-6:8, 7:5-10.)
The court will not consider those new allegations as they were
absent from the FAC. See Anderson, 86 F.3d at 934.
15