HMBY, LP et al v. The City of Soledad et al

Filing 25

ORDER by Magistrate Judge Howard R. Lloyd Granting in Part and Denying in Part 9 Motion to Dismiss. Plaintiff may file and serve an amended complaint within 14 days of this order. The Case Management Conference set for 5/15/2012 is VACATED and will be reset by the court as needed. Signed on 5/10/2012. (hrllc1, COURT STAFF) (Filed on 5/10/2012)

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** E-filed May 10, 2012 **

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

NOT FOR CITATION

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United States District Court

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SAN JOSE DIVISION

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HMBY, LP; and NADER AGHA,
Plaintiffs,

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v.
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CITY OF SOLEDAD; FRED LEDESMA;
and DOES 1-50,

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No. C12-00107
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
PARTIAL MOTION TO DISMISS

Defendants.
____________________________________/

[Re: Docket No. 9]

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Plaintiffs HMBY LC and its managing partner, Nader Agha (collectively “HMBY”) sue the

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City of Soledad (“City”) and its mayor, Fred Ledesma, alleging that Ledesma and the City

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improperly and discriminatorily prevented HMBY from bringing to fruition several large-scale

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development projects on land in the city and on unincorporated land adjacent thereto. HMBY

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originally brought this action in Monterey County Superior Court. Defendants removed on January

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6, 2012 on the basis of federal question jurisdiction. Dkt. No. 1 (“Notice of Removal”).

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HMBY, a property developer, claims that defendants intentionally refused to process

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applications for two large developments that HMBY planned for land it owns near the City of

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Soledad. The first of these projects is a large, multi-use development that HMBY designed (the

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“Miravale II project”). Dkt. No. 1, Exh. A (“Complaint”) ¶ 10. HMBY sold portions of the land for

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the Miravale II Project to other developers, who have successfully had their portions of the project

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approved and developed. Id. ¶¶ 11-12. HMBY and the City agreed in early 2007 that HMBY would

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prepay $751,298 in sewage impact fees to allow the City to expand its water treatment facilities to

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accommodate the Miravale II project. Id. ¶¶ 16-19; see also Exhibit A to Complaint, “SIF

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Agreement.” The SIF Agreement provides that HMBY (and the two other developers of the

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Miravale II project) would prepay the fees in return for the City’s continued best efforts to annex the

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project land into the City and approve the necessary building permits for the project. SIF

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Agreement. The City has not annexed HMBY’s portion of the land, nor has it approved HMBY’s

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application for development.

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The second project, owned entirely by HMBY, was also intended as a multi-use

For the Northern District of California

development, and would contain housing of several types, a hotel, commercial/retail space, schools,

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United States District Court

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police and fire department substations, a recycled water plant, public park spaces, and a golf course

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(the “Miravale III Project”). Id. ¶ 23. HMBY alleges that the City promised to pay $50,000 for the

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preparation of an Environmental Impact Report (“EIR”) for the project, but never proffered the

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money. Id. ¶¶ 27-30. The City convened a special panel to consider plaintiffs’ requests for approval

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of its project plans or for reimbursement of the $801,298 it claimed it was owed by the city, but

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when mayor Fred Ledesma came into office, HMBY alleges he eliminated the committee, leaving

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plaintiffs’ claims unresolved, Id. ¶¶ 21, 34, 40.

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The City and Ledesma now move to dismiss claims 1 (for writ of mandate), 2 (for

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declaratory relief); the breach of contract claim (7, 9, 11), the estoppel claims (8, 10, 12), 13 (money

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had and received), and 14 (conversion). All parties have consented to the undersigned’s jurisdiction

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pursuant to 28 U.S.C. § 636(b). The motion has been fully briefed and is deemed suitable for

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hearing without oral argument. The March 20, 2012 hearing was vacated pursuant to Civil L. R. 7-

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1(b). Based on the moving papers and applicable legal authority, the court rules as follows.

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LEGAL STANDARD

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On motion, a court may dismiss a complaint for failure to state a claim. FED. R. CIV. P.

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12(b)(6). The federal rules require that a complaint include a “short and plain statement” showing

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the plaintiff is entitled to relief. FED. R. CIV. P. 8(a)(2). The statement must “raise a right to relief

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above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 55 (2007). However, only

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plausible claims for relief will survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 129

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S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). A claim is plausible if its factual content “allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at

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1949. A plaintiff does not have to provide detailed facts, but the pleading must include “more than

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an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 1950.

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In deciding a motion to dismiss, the court is ordinarily limited to the face of the complaint.

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Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). The factual

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allegations pled in the complaint must be taken as true and reasonable inferences drawn from them

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must be construed in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336,

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337-38 (9th Cir. 1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995) (citing Usher v. City of

For the Northern District of California

United States District Court

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Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987)). However, the court cannot assume that “the

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[plaintiff] can prove facts which [he or she] has not alleged.” Associated General Contractors of

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California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). “Nor is the

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court required to accept as true allegations that are merely conclusory, unwarranted deductions of

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fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.

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2001) (citing Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994)), amended on

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other grounds by 275 F.3d 1187 (9th Cir. 2001).

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“A court should freely give leave [to amend] when justice so requires.” FED. R. CIV. P.

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15(a)(2). “‘Four factors are commonly used to determine the propriety of a motion for leave to

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amend. These are: bad faith, undue delay, prejudice to the opposing party, and futility of

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amendment.’” Ditto v. McCurdy, 510 F.3d 1070, 1079 (9th Cir. 2007) (internal citations omitted).

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“Futility of amendment can, by itself, justify the denial of a motion for leave to amend.” Bonin v.

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Calderon, 59 F.3d 815, 845 (9th Cir. 1995). An amendment would be “futile” if there is no set of

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facts can be proved which would constitute a valid claim or defense. See Miller v. Rykoff-Sexton,

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Inc., 845 F.2d 209, 214 (9th Cir. 1988). A complaint may be dismissed with prejudice when plaintiff

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has “multiple opportunities to amend and [is] unable to cure the defects that required dismissal of []

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previous complaints.” Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1060 (9th

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Cir. 2008).

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DISCUSSION

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A. Plaintiffs’ First Claim for Writ of Mandate Against All Defendants

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A writ of mandate “may be issued by any court . . . to compel the performance of an act

Civ. Proc. § 1085(a). “The petitioner must demonstrate the public official or entity had a ministerial

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duty to perform, and the petitioner had a clear and beneficial right to performance.” AIDS

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Healthcare Foundation v. Los Angeles County Dept. of Public Health, 197 Cal. App. 4th 693, 700

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(Cal. App. 2d Dist. 2011). A ministerial act is “an act that a public officer is required to perform in a

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prescribed manner in obedience to the mandate of legal authority and without regard to his [or her]

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own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts

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For the Northern District of California

which the law specifically enjoins, as a duty resulting from an office, trust, or station.” Cal. Code

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United States District Court

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exists.” Id. (citing Rodriguez v. Solis, 1 Cal. App. 4th 495, 501 (1991)). “[T]o authorize the issuance

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of a writ of mandamus the party sought to be coerced must be bound to act.” Plum v. Healdsburg,

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237 Cal. App. 2d 308, 317 (Cal. App. 1st Dist. 1965). “Mandamus does not lie to compel a public

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agency to exercise discretionary powers in a particular manner, only to compel it to exercise its

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discretion in some manner.” Id. at 700-01 (citing Excelsior College v. Board of Registered Nursing,

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136 Cal. App. 4th 1218, 1238–123 (2006)).
Plaintiff contends that the defendants have a ministerial duty imposed by law “to act on

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and/or process the Apartment Tracts [of the Miravale II Project] and the Miravale III Project,” and

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that the defendants have failed to act in accordance with that duty. Complaint ¶¶ 62-63. Defendants

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contend that the plaintiffs have failed to identify a legal duty that would compel defendants to act on

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plaintiffs’ applications. Dkt. No. 9, p. 7. In their opposition to the motion to dismiss, plaintiffs argue

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at length that defendants’ authority is inapposite, but make no effort to identify the legal source of

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the duty they claim defendants owe them. See Dkt. No. 10, pp. 1-5. The court agrees with

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defendants that where plaintiff has not identified any actual legal duty that would require them to act

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on plaintiffs’ applications. Additionally, Cal. Code Civ. Proc. § 1086 requires that a petition for writ

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of mandate be issued upon a verified petition, and plaintiffs’ complaint is unverified.
Accordingly, plaintiffs’ first claim fails to state a claim and is DISMISSED with leave to

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amend.
B. Plaintiffs’ Second Claim for Declaratory Relief Against All Defendants

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An action for declaratory relief lies “when the parties are in fundamental disagreement over

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the construction of particular legislation, or they dispute whether a public entity has engaged in

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conduct or established policies in violation of applicable law.” Alameda County Land Use Assn. v.

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City of Hayward, 38 Cal. App. 4th 1716, 1723 (Cal. App. 1st Dist. 1995).

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Plaintiffs correctly offer this statement of the law in their opposition to defendants’ motion

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to dismiss. Dkt. No. 10, p. 5. However, they apparently fail to recognize that their complaint falls

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short of this standard because it does not identify any “particular legislation” or “applicable law”

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requiring determination by this court. Rather, they appear to want this court to determine whether or

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not the defendants have a duty to act on their applications for the Miravale II and III Projects. See

For the Northern District of California

United States District Court

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Complaint ¶¶ 69-70. This is not an appropriate use of a claim for declaratory relief.
Accordingly, plaintiffs’ claim for declaratory relief must be DISMISSED. Plaintiffs may

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amend this claim to identify some “particular legislation” or “applicable law,” the validity of which

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“raises a pure question of law” that this court must answer. See Alameda County Land Use Assn.,

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38 Cal. App. 4th at 1724.

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C. Plaintiffs’ Breach of Contract Claims Against All Defendants

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“A cause of action for damages for breach of contract is comprised of the following

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elements: (1) the contract, (2) plaintiffs’ performance or excuse for nonperformance, (3) defendant's

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breach, and (4) the resulting damages to plaintiff.” Careau & Co. v. Sec. Pacific Bus. Credit, Inc.,

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222 Cal. App. 3d 1371, 1388 (1990).

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a. Plaintiffs’ Seventh Claim for Breach of an Implied-in-Fact Contract

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Plaintiffs rather vaguely allege that they “advanced monies and effort as part of the usual

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court of conduct of the City’s usual processing of applications for building permits” and that this

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created an implied-in-fact contract with Defendants. Complaint ¶ 98. Plaintiffs contend that their

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payments and efforts were a contractual performance requiring the defendants to “process the

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project reasonably, competently, and in accordance with law.” Id. In their opposition brief, plaintiffs

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explain further that their alleged “performance” included the payment of fees associated with their

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applications, as well as the costs of completing an EIR, and the consulting fees plaintiffs paid to

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nonparties for myriad services associated with the development of their proposals for the Miravale II

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and III projects. Dkt. No. 10, pp. 6-7, fn. 1; see also Complaint ¶ 45.

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“An implied contract is one, the existence and terms of which are manifested by conduct,”

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but differs from an express contract only by the manifestation of assent. 1 Witkin Sum. Cal. Law

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Contracts § 102. Defendants apparently misread plaintiffs’ claim as asserting rights under the two

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written agreements between the parties (for payment of the sewer impact fees and for sharing the

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cost of an EIR for the Miravale III project), but plaintiffs contend that they are only addressing

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money and acts they performed outside the scope of those written agreements. Dkt. No 9, p. 11;

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Dkt. No. 10, p. 6. Defendants’ argument, also renewed in their reply brief, that an implied contract

For the Northern District of California

United States District Court

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cannot exist where an express contract does, fails to address the actual merits of plaintiffs’ attempted

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claim for breach of an implied-in-fact contract. See Dkt. No. 11, p. 8.

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Upon the court’s review of the claim, plaintiffs contend that an implied-in-fact contract was

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created when plaintiffs expended the costs associated with the development of two large-scale land

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use proposals, which they then submitted for defendants’ review. These allegations do not support a

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finding that any contract, express or implied, was created. Rather, plaintiffs seem to want to recover

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the cost of doing business by claiming that their efforts to generate property development proposals

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bound the defendants to perform by processing (and approving) the applications for the Miravale II

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and III projects. This court concludes that plaintiffs expended those costs at its own risk, as does

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every developer who purchases land in the hope that it can later sell that land and its plans for

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development to an entity willing to pay for the development. Plaintiff has not alleged facts that

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could logically support such a claim. Indeed, the court does not believe that plaintiffs could

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truthfully allege facts that would support a claim for breach of an implied contract even if this court

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were to grant leave to amend.

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Accordingly, plaintiffs’ claim for breach of implied in fact contract is DISMISSED, and

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because the court concludes that plaintiffs could not state a valid claim even if given leave to amend,

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the claim is dismissed without leave to amend.

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b. Plaintiffs’ Ninth and Eleventh Claims for Breach of Contract Against Ledesma

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Defendants argue, and plaintiffs concede, that the ninth and eleventh claims for breach of

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contract should be dismissed as to defendant Ledesma, as he was not a signatory to the contracts in

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question. Dkt. No. 9, p. 16; Dkt. No. 10, p. 14. Accordingly, plaintiffs’ ninth and eleventh claims for

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breach of contract are DISMISSED as to defendant Ledesma without leave to amend.

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D. Plaintiffs’ Eighth, Tenth, and Twelfth Claims for Estoppel Against All Defendants

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Plaintiffs allege three claims for estoppel. First, they claim that they reasonably relied on

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defendants’ “conduct [and] . . . past practices” when they expended the costs of developing their

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Miravale II and II Projects, to their detriment (the “eighth claim”). Complaint ¶¶ 103-08. Second,

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they argue that they reasonably relied on the City’s express promise to provide $50,000 toward the

For the Northern District of California

United States District Court

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cost of an EIR for the Miravale III project and accordingly paid for the production of the EIR, to

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their detriment (the “tenth claim”). Id. ¶¶ 115-19. Third, they claim that they reasonably relied on

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the City’s express promise, “in conjunction with the SIF Agreement,” that plaintiffs would be

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entitled to a reimbursement of the $751,298 plaintiffs paid in sewer impact fees if the Miravale II

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project was not built. Id. ¶¶ 126-29. Although plaintiffs do not specify in their complaint what type

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of estoppel they seek, their opposition brief explains that all three claims are for promissory, rather

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than equitable, estoppel. Dkt. No. 10, pp. 7-8.

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The elements of a promissory estoppel claim are “(1) a promise clear and unambiguous in its

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terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both

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reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.”

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Laks v. Coast Federal Savings & Loan Assn., 60 Cal.App.3d 885, 890, 131 Cal. Rptr. 836 (1976).

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a. Plaintiffs’ Tenth and Twelfth Claims for Estoppel
Plaintiff’s tenth and twelfth claims for estoppel are based upon the written agreements

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between the parties for 1) fees the City’s payment of $50,000 toward production of the EIR for the

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Miravale III project, and 2) plaintiffs’ prepayment of sewer impact, respectively. Defendants argue

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that promissory estoppel is unavailable to plaintiffs for these claims because their only claimed

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reliance is for the act bargained for. Dkt. No. 9, p. 13. This is a correct statement of the law.

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Promissory estoppel “is inapplicable where the promisee’s performance was requested by the

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promisor at the time the promise was made. Under such circumstances, the only reliance which can

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make the promisor's failure to perform actionable is the promisee's doing what was requested. If that

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reliance was detrimental, it would constitute consideration.” Healy v. Brewster, 59 Cal. 2d 455, 463

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(Cal. 1963) (internal citations omitted).

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Plaintiff’s tenth claim, based on the City’s agreement to provide $50,000 toward the cost of

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developing an EIR, quite clearly falls into the situation described by Healy. Plaintiffs claim that they

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paid for the EIR in reasonable reliance on the City’s promise to provide $50,000—precisely what

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the written agreement says. Therefore, plaintiffs cannot state a claim for estoppel based upon this

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bargained-for exchange, as their appropriate claim is for breach of contract. Accordingly, the

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plaintiffs’ tenth claim for estoppel must be DISMISSED, and because California law prohibits such

For the Northern District of California

United States District Court

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a claim, amendment would be futile and the claim is dismissed without leave to amend.
However, plaintiff’s twelfth claim for estoppel is different. Here, plaintiffs claim that the

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City promised that plaintiffs could be reimbursed for the prepaid fees if the Miravale II project was

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not completed. Complaint ¶ 127. But, the SIF Agreement provides that, should the relevant land not

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be timely annexed by the city, the parties would be able to negotiate an extension of the time for

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annexation, or agree to new terms “whereby a credit against future sewer impact fees . . . will be

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provided by the City.” SIF Agreement, p. 2 (emphasis added). Plaintiffs’ claim for estoppel in this

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instance alleges that the City made a promise “in conjunction with the SIF Agreement” that goes

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beyond the scope of the written agreement. See Complaint ¶ 127. But, the court is unconvinced that

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plaintiffs’ reliance was reasonable, given that the Agreement never mentions reimbursement and

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does not appear to allow for the possibility of reimbursement. Therefore, the twelfth claim for

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estoppel fails to state a claim and must be DISMISSED, but it is dismissed with leave to amend.

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b. Plaintiffs’ Eighth Claim for Estoppel
“[W]here the promisee's reliance was bargained for, the law of consideration applies; [but] . .

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. where the reliance was unbargained for[,] there is room for application of the doctrine of

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promissory estoppel.” Healy, 59 Cal. 2d at 463. But, the alleged promise must be “clear and

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unambiguous in its terms.” Laks, 60 Cal. App. 3d at 890. Plaintiff’s eighth claim for estoppel alleges

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that “defendants’ conduct, as well as their past practices” led plaintiffs to believe that defendants

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would “timely” process plaintiffs’ applications if plaintiffs’ paid for the development of those

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applications. Complaint ¶ 104. However, plaintiffs offer no details about what promises, if any,

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were made by defendants to support plaintiffs’ alleged reliance. On the facts as pled, the court can

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find no clear and unambiguous promise alleged by defendants. Accordingly, the plaintiffs’ eighth

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claim for estoppel must be DISMISSED. However, the court cannot conclude that plaintiffs would

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be unable to truthfully state a viable claim if given the opportunity to amend, so, the claim is

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dismissed with leave to amend.
E. Plaintiffs’ Thirteenth Claim for Common Counts: Money Had and Received Against All

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Defendants

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Plaintiffs claim that they gave $751,298 to the City “that was supposed to be reimbursed to

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For the Northern District of California

United States District Court

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plaintiffs in the event the Apartment Tracts [of the Miravale II project] did not come to fruition,”

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and that the City instead “used the money for its own benefit.” Complaint ¶¶ 131-32. “‘The

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essential element of an action for money had and received is the allegation that the defendant had

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and received the money to and for the use and benefit of a plaintiff. . . . [I]t must appear that the

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money held by defendant is the property of plaintiff and that defendant is obliged in equity and good

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conscience to restore it to him.’” Sandy v. McClure, 676 F. Supp. 2d 866, 880 (N.D. Cal. 2009)

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(quoting Macbeth v. West Coast Packing Corp., 83 Cal. App. 2d 96, 98, 187 P.2d 815 (Ct. App.

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1947)).

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Defendants first argue that because plaintiffs’ eleventh claim for breach of the SIF

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Agreement was dismissed, this claim for common counts, an alternative means of seeking the same

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recovery demanded in plaintiffs’ eleventh claim for relief, must also be dismissed. This is a correct

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statement of the law. When a common count is used as an alternative way of seeking the same

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recovery demanded in a specific [claim], and is based on the same facts,” it does not survive if the

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underlying claim does not survive.” McAfee v. Francis, 2011 U.S. Dist. LEXIS 83878, *6-7 (N.D.

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Cal. Aug. 1, 2011) (internal citations omitted). However, defendants only moved to dismiss the

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eleventh claim against Ledesma, so this proposition of law will only operate to dismiss the claim

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against Ledesma. Accordingly, the claim for common counts is DISMISSED against Ledesma,

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without leave to amend.

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As for the claim as against the City, defendants argue in their reply brief that since the SIF

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Agreement does not provide for reimbursement of the sewer impact fees in any event, plaintiffs

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cannot truthfully claim that defendants owe them a sum certain. Dkt. No. 11, pp. 11-12. The court

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agrees that the plaintiffs’ complaint does not establish that “defendant[s] is obliged in equity and

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good conscience to restore” the funds to plaintiffs. See Sandy 676 F. Supp. 2d at 880. Accordingly,

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the claim must be DISMISSED as to the City as well. However, the court cannot conclude that

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plaintiffs would be unable to truthfully state a viable claim if given the opportunity to amend, so, the

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claim is dismissed with leave to amend.

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For the Northern District of California

United States District Court

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F. Plaintiffs’ Fourteenth Claim for Conversion Against All Defendants
“A cause of action for conversion requires allegations of plaintiffs’ ownership or right to

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possession of property; defendant's wrongful act toward or disposition of the property, interfering

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with plaintiffs’ possession; and damage to plaintiff.” PCO, Inc. v. Christensen, Miller, Fink, Jacobs,

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Glaser, Weil & Shapiro, LLP, 150 Cal. App. 4th 384, 395 (Cal. App. 2d Dist. 2007). “Money cannot

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be the subject of a cause of action for conversion unless there is a specific, identifiable sum

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involved.” Id. A party must allege that it is “‘entitled to immediate possession at the time of

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conversion.’” Farmers Ins. Exchange v. Zerin, 53 Cal. App. 4th 445, 452 (Cal. App. 3d Dist. 1997)

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(citing Bastanchury v. Times-Mirror Co., 68 Cal. App. 2d 217, 236 (Cal. App. 1945) (italics in

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original)).

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Here, plaintiffs have not alleged that they were entitled to immediate possession of the

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prepaid sewer impact fees at the time of conversion. Nor do they specify when the conversion

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occurred. When plaintiffs paid the $751,298 in prepaid sewer impact fees, they did so voluntarily, in

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accordance with the SIF Agreement. They apparently allege that defendants converted the funds at

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some point after payment. But, as the SIF Agreement does not, on its face, provide for

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reimbursement of the fees, and plaintiffs offer no other basis for an immediate right of possession

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(other than, perhaps, their claim that they have demanded reimbursement of defendants), the court

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cannot conclude that they have stated a claim for conversion.

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Accordingly, plaintiffs’ claim for conversion is DISMISSED. However, the court cannot

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conclude that plaintiffs would be unable to truthfully state a viable claim if given the opportunity to

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amend, so, the claim is dismissed with leave to amend.

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CONCLUSION

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Based on the foregoing, IT IS SO ORDERED that:

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1. Plaintiffs’ first claim for writ of mandate is dismissed with leave to amend.

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2. Plaintiffs’ second claim for declaratory relief is dismissed with leave to amend.

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3. Plaintiffs’ seventh claim for breach of implied-in-fact contract is dismissed without leave

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For the Northern District of California

United States District Court

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to amend.
4. Plaintiffs’ ninth and eleventh claims for breach of contract against Ledesma are
dismissed without leave to amend.

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5. Plaintiffs’ tenth claim for promissory estoppel is dismissed without leave to amend.

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6. Plaintiffs’ twelfth claim for promissory estoppel is dismissed with leave to amend.

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7. Plaintiffs’ eighth claim for promissory estoppel is dismissed with leave to amend.

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8. Plaintiffs’ thirteenth claim for common counts: money had and received is dismissed

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without leave to amend as to Ledesma, and with leave to amend as to the City.

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9. Plaintiffs’ fourteenth claim for conversion is dismissed with leave to amend.

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Plaintiff may file and serve upon defendants an amended complaint within 14 days of the

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date of this order. Plaintiff may not add new claims or new parties without first seeking leave of

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court. The Case Management Conference currently set for May 15, 2012 is VACATED, and will be

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reset by the court as needed.

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Dated: May 10, 2012
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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C12-00107 HRL Notice will be electronically mailed to:

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Lester Hart
Vincent Hurley
Amanda Cohen

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[e-mail]
[e-mail]
[e-mail]

Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

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