Uribe et al v. Countrywide Financial Corporation et al

Filing 37

ORDER Granting 21 Motion to Dismiss First Amended Complaint; and Granting 24 Motion for Order to Expunge Lis Pendens; Directing Entry of Judgment: Defendants motion to dismiss the FAC is GRANTED WITH PREJUDICE; Defendants motion to expunge lis pendens is GRANTED; The Clerk of the Court is directed to enter judgment in defendants favor and against plaintiffs. Signed by Judge M. James Lorenz on 7/7/2009. (mjj) (kaj).

1 2 3 4 5 6 7 8 9 10 11 JAMES URIBE, et al., 12 13 v. 14 COUNTRYWIDE FINANCIAL, et al., 15 16 17 Defendants. Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) Civil No. 08cv1982 L(NLS) ORDER GRANTING MOTION TO DISMISS FIRST AMENDED COMPLAINT [doc. #21] and TO EXPUNGE LIS PENDENS [doc. #24]; DIRECTING ENTRY OF JUDGMENT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Defendants Countrywide Financial Corporation, Countrywide Home Loans, Inc., Bank of

18 America, N.A., Mortgage Electronic Registration Systems, Inc. and Deutsche Bank-Harborview 19 04-11 (collectively "defendants") filed a motion to dismiss the first amended complaint ("FAC") 20 and a motion to expunge lis pendens or alternatively to require plaintiffs to post a bond. The 21 motions have been fully brief and are considered without oral argument under Civil Local Rule 22 7.1(d)(1). 23 24 Background This action was removed from the California Superior Court, County of San Diego on

25 October 27, 2008. Thereafter, defendants moved to dismiss the case under Federal Rule of Civil 26 Procedure 12(b)(6). Under the Civil Local Rules, plaintiffs were required to respond to 27 defendants motion by a certain date but plaintiffs neither filed a response nor sought additional 28 time in which to file a response to defendants' motion. In its Order granting defendants' motion
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1 to dismiss, the Court noted that "[w]hen an opposing party does not file papers in the manner 2 required by Civil Local Rule 7.1(e.2), the Court may deem the failure to "constitute a consent to 3 the granting of a motion or other request for ruling by the court." CIV. L.R. 7.1(f.3.c). 4 Notwithstanding plaintiffs' failure to file an opposition, the Court reviewed the motion on the 5 merits to determine whether any legal issue existed that would preclude the granting of 6 defendants' motion to dismiss. 7 The Court dismissed plaintiffs' claims as follows: the RICO and fraud causes of action

8 were dismissed without prejudice for failure to meet Rule 9(b)'s particularity requirement; the 9 TILA and RESPA claims were barred by the applicable statutes of limitation; the negligent 10 infliction of emotional distress claim was dismissed with prejudice because plaintiffs did not 11 and could not allege an independent duty imposed by law, assumed by defendants, or created by 12 a special relationship between the parties that proximately caused plaintiffs' emotional distress; 13 the quiet title claim was dismissed without prejudice because plaintiffs did not allege tender or 14 offer of tender of the amounts admittedly borrowed; slander of title claim was dismissed with 15 prejudice because defendants' conduct was privileged; the cancellation of plaintiffs' trust deeds 16 and notes claims were dismissed with prejudice because the property had been foreclosed. 17 Notwithstanding plaintiffs' failure to respond to the motion to dismiss or to request leave Plaintiffs filed a massive 318-page, 62-count FAC.1 The FAC alleged claims under

18 to amend, the Court permitted the filing of a FAC. 19

20 RICO, 18 U.S.C. §§ 1961, 1962(a), (b), (c), (d), 1964(a), (b) and (c); the "Ku Klux Klan Act of 21 1871", 42 U.S.C. § 1981 et seq.; the Equal Credit Opportunity Act of 1974 ("ECOA"), 15 U.S.C. 22 § 1691; the Fair Housing Act of 1968 ("FHA"), 42 U.S.C. § §3601; Declaratory Judgment Act 23 of 1940, 28 U.S.C. §§ 2201-2202; common-law fraud; constructive fraud; promissory fraud; and 24 conspiracy to commit fraud; breach of fiduciary duty; breach of implied covenant of good faith 25 The Court notes that attorney Dean Browning Webb signed both the FAC and the opposition to defendants' motion to dismiss the FAC. Mr. Webb provided a pro hac vice 27 application that the Court denied on February 18, 2009. [doc. #12] Accordingly, Mr. Webb is not and has not been permitted to appear and participate in this case. Because this action is 28 being dismissed with prejudice, the Court will not order Mr. Webb to show cause why sanctions should not be imposed. 26
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1 and fair dealing; negligence; Consumer Legal Remedies Act ("CLRA"); and California Business 2 & Professions Codes 17200 and 17500. 3 Defendants move for dismissal of the FAC under Federal Rule of Civil Procedure

4 12(b)(6). 5 6 7 8 1. MOTION TO DISMISS THE FAC Legal Standard a. Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6)

"The focus of any Rule 12(b)(6) dismissal . . . is the complaint." Schneider v. California

9 Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). A motion to dismiss under Rule 10 12(b)(6) tests the sufficiency of the complaint. Novarro v. Black, 250 F.3d 729, 732 (9th Cir. 11 2001). "A district court should grant a motion to dismiss if plaintiffs have not pled `enough facts 12 to state a claim to relief that is plausible on its face.'" Williams ex rel. Tabiu v. Gerber Products 13 Co., 523 F.3d 934, 938 (9th Cir. 2008)(quoting Bell Atlantic Corp. v. Twombley, 127 S. Ct. 14 1955, 1974 (2007)). "`Factual allegations must be enough to raise a right to relief above the 15 speculative level.'" Id. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does 16 not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his 17 `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of 18 the elements of a cause of action will not do." Twombley, 127 S. Ct. at 1964-1965. Dismissal of 19 a claim under Rule 12(b)(6) is appropriate only where "it appears beyond doubt that the plaintiff 20 can prove no set of facts in support of his claim which would entitle him to relief." Conley v. 21 Gibson, 355 U.S. 41, 45-46 (1957). Dismissal is warranted under Rule 12(b)(6) where the 22 complaint lacks a cognizable legal theory or where the complaint presents a cognizable legal 23 theory yet fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, 24 Inc., 749 F.2d 530, 534 (9th Cir. 1984). 25 In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of

26 all factual allegations and must construe all inferences from them in the light most favorable to 27 the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). But legal 28 conclusions need not be taken as true merely because they are cast in the form of factual
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1 allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). Finally, in determining 2 the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint for 3 additional facts, e.g., facts presented in plaintiff's memorandum in opposition to a defendant's 4 motion to dismiss or other submissions. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 5 2003); Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998); see also 2 MOORE'S 6 FEDERAL PRACTICE, § 12.34[2] (Matthew Bender 3d ed.) ("The court may not . . . take into 7 account additional facts asserted in a memorandum opposing the motion to dismiss, because 8 such memoranda do not constitute pleadings under Rule 7(a)."). But in addition to the facts 9 alleged in the complaint, the Court may consider documents attached to the complaint, 10 documents relied upon but not attached to the complaint when authenticity is not contested, and 11 matters of which the court takes judicial notice. Parrino, 146 F.3d at 705-706. 12 13 b. Federal Rule of Civil Procedure 8

When plaintiffs were given leave to file an amended complaint that corrected the

14 deficiencies the Court had previously discussed, they filed a behemoth pleading that fails to 15 comply with Rule 8. Rule 8 sets forth general rules of notice pleading in the Federal Courts. 16 See Swierkiewicz v. Sorema, 534 U.S. 506 (2002). Complaints are required to set forth (1) the 17 grounds upon which the court's jurisdiction rests, (2) a short and plain statement of the claim 18 showing entitlement to relief; and (3) a demand for the relief plaintiff seeks. Rule 8 requires 19 "sufficient allegations to put defendants fairly on notice of the claims against them." McKeever 20 v. Block, 932 F.2d 795, 798 (9th Cir. 1991). When a plaintiff's allegations are too vague and 21 broad-sweeping to put defendants fairly on notice of the claims against them, the notice 22 requirement of Rule 8 is not satisfied. See Conley, 355 U.S. at 47. 23 Even if the factual elements of the cause of action are present, but are scattered

24 throughout the complaint and are not organized into a "short and plain statement of the claim," 25 dismissal for failure to satisfy Rule 8(a)(2) is proper. McHenry v. Renne, 84 F.3d 1172, 1178 26 (9th Cir. 1996) (stating that a complaint should set forth "who is being sued, for what relief, and 27 on what theory, with enough detail to guide discovery" (emphasis added)). A complaint that 28 fails to comply with rules 8(a) and 8(e) may be dismissed with prejudice pursuant to Federal
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1 Rule of Civil Procedure 41(b). Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th 2 Cir.1981)). Further, "[t]he propriety of dismissal for failure to comply with Rule 8 does not 3 depend on whether the complaint is wholly without merit," McHenry 84 F.3d at 1179. 4 Plaintiffs' FAC does not comply with Rule 8(a) as it fails to give each defendant a short

5 and plain statement as to plaintiffs' claims and factual basis against each defendant. Indeed, the 6 FAC, which was prepared and filed by counsel, is prolix, replete with redundancy and most 7 importantly, fails to perform the essential functions of a complaint. McHenry, 84 F.3d at 8 1179-80. As filed, the FAC imposes unfair burdens on defendants and the Court. Defendants 9 have a right to be free from costly and harassing litigation. Von Poppenheim v. Portland Boxing 10 & Wrestling Comm'n, 442 F.2d 1047, 1054 (9th Cir. 1971). Plaintiffs' failure to comply with 11 Rule 8 has impeded the expeditious resolution of the present litigation, has burdened the court's 12 docket and consumed scarce judicial resources in addressing litigation that has little basis for 13 success. 14 Plaintiffs had an opportunity to respond to defendants' initial motion to dismiss but failed 15 to do so2 which imposed a burden on the Court to review the complaint and defendants' motion 16 on the merits without plaintiffs' input. When given the opportunity to file an amended 17 complaint that addressed the deficiencies found in the original complaint, plaintiffs again 18 burdened the Court with a pleading that is onerous at best. The filing of the FAC that remains 19 deficient, as discussed below, and is grossly excessive in size appears to have been made in bad 20 faith and with the intent to unduly delay the litigation and to harass defendants. 21 22 23 24 25 26 27 28 Plaintiffs' counsel has developed a habit of not responding to motions to dismiss in cases that he files that are similar to the present case. See, Bartolome v. Downey Savings & Loan, 08cv1777 LAB(WMC); Uribe v. MorgageIT, 08cv1983 L (NLS); Ajero v. Aegis Wholesale Corp., 08cv2002 W (JMA); Bantog v. Downey Savings & Loan, 08cv2212 MMA (POR); Cataulin v. Washington Mutual Bank, 08cv2419 JM (NLS); Silva v. US Bank, 09cv36 JAH (BLM); Rosales v. Downey Savings & Loan, 09cv39 WQH (AJB); Hernandez v. Downey Savings & Loan, 09cv40 JAH (JMA); Floyd v. Millennium Mortgage Corp., 09cv115 BEN (NLS); Locsin v. Quick Loan Funding, 09cv153 L (RBB); Andrade v. Wachovia Mortgage, 09cv377 JM (WMC). In each of these 11 cases, the court was put to the task of reviewing the complaint and a motion to dismiss without an opposition from plaintiff. Counsel, as an officer of the court, is admonished that he has an obligation to the court to avoid frivolous filings and to follow the Federal Rules of Civil Procedure, particularly Rule 11, and the Civil Local Rules.
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Based on the foregoing, the Court will dismiss plaintiffs' FAC with prejudice for failure

1 to comply with Federal Rule of Civil Procedure 8. 2 3 2. Discussion

Notwithstanding dismissal of the FAC under Rule 8, the Court will consider defendants'

4 motion to dismiss on the merits. 5 6 a. Fraud

As discussed in the Court's Order dismissing plaintiffs' initial complaint, Federal Rule of

7 Civil Procedure 9(b) requires that fraud, whether based on federal or state law, be alleged with 8 particularity. To comply with rule 9(b), "the circumstances constituting fraud . . . shall be stated 9 with particularity." "A pleading is sufficient under rule 9(b) if it identifies the circumstances 10 constituting fraud so that a defendant can prepare an adequate answer from the allegations." 11 Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir. 1989). In this regard, it is 12 sufficient to plead items such as the time, place and nature of the alleged fraudulent activities. 13 Id. 14 Generally, Rule 9(b) requires a plaintiff to attribute particular fraudulent statements or

15 acts to individual defendants. Id. However, in this case, no individual defendants are named. 16 17 18 19 20 21 Id. 22 Just as the fraud claims in the original complaint failed to comply with Rule 9(b), the [T]he rule may be relaxed as to matters within the opposing party's knowledge. For example, in cases of corporate fraud, plaintiffs will not have personal knowledge of all the underlying facts. . . . Instances of corporate fraud may also make it difficult to attribute particular fraudulent conduct to each defendant as an individual. To overcome such difficulties in cases of corporate fraud, the allegations should include the misrepresentations themselves with particularity and, where possible, the roles of the individual defendants in the misrepresentations.

23 FAC is also deficient in alleging fraud with particularity. Plaintiffs again do not identify the 24 individuals making the allegedly false statements or make disclosures by alleging, where 25 possible, the role of the individuals in the misrepresentations or non-disclosures. Further, there 26 are no allegation of time, place and nature of the alleged fraudulent activities. The fraud claims 27 will be dismissed. 28 / /
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b.

RICO

The essential elements of a civil RICO violation under 18 U.S.C. § 1962(c) are: "(1)

3 conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Sedima, S.P.R.L. 4 v. Imrex Co., Inc., 473 U.S. 479, 496 (1985); Miller v. Yokohama Tire Corp., 358 F.3d 616, 620 5 (9th Cir.2004). "`Racketeering activity' is defined in 18 U.S.C. § 1961(1)(B) as including any 6 act `indictable' under certain enumerated federal criminal statutes listed in 18 U.S.C. § 1961(5), 7 including 18 U.S.C. § 1341, which makes mail fraud a criminal offense, and 18 U.S.C. § 1343, 8 which makes wire fraud a crime." Schreiber Distrib. Co. v. ServWell Furniture Co., 806 F.2d 9 1393, 1399 (9th Cir. 1986)). A "pattern of racketeering activity" means at least two acts of 10 racketeering activity. Thus, in order to state a RICO cause of action, plaintiffs are required to 11 allege, at a minimum, that defendants participated in two predicate offenses of racketeering 12 listed in 18 U.S.C. § 1961(1)(B). 13 Defendants contend that plaintiffs have not alleged a pattern of racketeering activity or

14 any conduct constituting racketeering activity, i.e., criminal acts found in 18 U.S.C. § 15 1961(1)(B) that would serve as predicate offenses. In so arguing, defendants point to the FAC at 16 ¶¶ 70-72 in which plaintiffs "allege that defendants engaged in the above activities and/or 17 conduct that constitutes the following form of `racketeering activity,' as that term is defined 18 pursuant to Title 18 United States Code § 1961(1)." (FAC ¶ 72.) The "above activities and/or 19 conduct" noted in paragraph 72 apparently are intended to function as predicate offenses. 20 Plaintiffs' purported two predicate offenses are: (1) that defendants misrepresented the 21 availability of mortgage payment relief and plaintiffs "were deprived and/or denied obtaining 22 mortgage payment relief" by defendants (FAC ¶70) and (2) after the mortgage was defaulted 23 upon, the defendants transferred the mortgages "to a corporate affiliate for sale, without prior 24 written notification served upon" the borrowers. (FAC ¶ 71.) 25 Plaintiffs' first predicate offense appears to allege common-law fraud. When a RICO

26 claim is based on the predicate offense of fraud, the "circumstances constituting fraud . . . shall 27 be stated with particularity." FED. R. CIV. P. 9(b). As discussed above, for acts of fraud, "the 28 pleader must state the time, place, and specific content of the false representations as well as the
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1 identities of the parties to the misrepresentation." Alan Neuman Prods., Inc. v. Albright, 862 2 F.2d 1388, 1392-93 (9th Cir. 1989) (quoting Schreiber Distrib. Co., 806 F.2d at 1401). The 3 particularity requirement is satisfied if the complaint "identifies the circumstances constituting 4 fraud so that a defendant can prepare an adequate answer from the allegations." Moore v. 5 Kayport Package Exp., Inc., 885 F.2d 531, 540 (9th Cir.1989); see also Vess v. Ciba-Geigy 6 Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) ("Rule 9(b) demands that, when averments of 7 fraud are made, the circumstances constituting the alleged fraud be specific enough to give 8 defendants notice of the particular misconduct . . . so that they can defend against the charge and 9 not just deny that they have done anything wrong.") (internal quotation marks and citations 10 omitted). Here, plaintiffs have not alleged fraud sufficiently to constitute a predicate offense 11 under RICO. 12 The second purported predicate offense, that defendants transferred the mortgages

13 without notice to plaintiffs, is not a criminal act and is not listed in 18 U.S.C. § 1961(1). As a 14 result, it cannot function as a predicate offense under RICO. 15 Accordingly, plaintiffs have not alleged two predicate offenses as required under the

16 RICO statute. Plaintiffs may have intended, however, to allege wire and mail fraud as predicate 17 offenses. Defendants contend that plaintiffs have failed to allege sufficient predicate acts of wire 18 and mail fraud to establish a pattern and that the allegations are "legally insufficient" within the 19 meaning of Rule 9(b). To allege a violation of mail fraud under section 1341, "it is necessary to 20 show that (1) the defendants formed a scheme or artifice to defraud; (2) the defendants used the 21 United States mails or caused a use of the United States mails in furtherance of the scheme; and 22 (3) the defendants did so with the specific intent to deceive or defraud." Miller, 358 F.3d at 620 23 (citing Schreiber Distrib. Co., 806 F.2d at 1400). To be considered part of the fraud, the use of 24 the mails need not be an essential element of the scheme. Schmuck v. United States, 489 U.S. 25 705, 710 (1989). "It is sufficient for the mailing to be `incident to an essential part of the 26 scheme' or `a step in [the] plot.'" Id. (citing Badders v. United States, 240 U.S. 391, 394 27 (1916)). "Similarly, a wire fraud violation consists of (1) the formation of a scheme or artifice to 28 defraud (2) the use of the United States wires or causing a use of the United States wires in
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1 furtherance of the scheme; and (3) specific intent to deceive or defraud." Schreiber Distrib. Co., 2 806 F.2d at 1400. To establish specific intent for either mail or wire fraud, the pleader must 3 show "the existence of a scheme which was `reasonably calculated to deceive persons of 4 ordinary prudence and comprehension ....' " Id. (citations omitted). 5 Here, the FAC fails to properly allege a claim for violation of RICO based on the

6 predicate offenses of mail and wire fraud. The allegations of predicate acts in the FAC 7 concerning those elements of RICO are entirely general with no specifics concerning the time, 8 place, or nature of the alleged communications. This is a fatal defect under Federal Rule of Civil 9 Procedure 9(b), which requires that circumstances constituting fraud be stated with particularity. 10 Because plaintiffs had two opportunities to allege a RICO claim or claims and did not

11 properly allege fraud, mail fraud or wire fraud as predicate offenses ­ a foundational element for 12 any RICO claim ­ all of the RICO claims found in the FAC are dismissed with prejudice. 13 14 c. ECOA, FHA and § 1981

Defendants contend that plaintiffs' ECOA, FHA and § 1981 claims are time barred. The

15 Court concurs. Plaintiffs' first loan was consummated on October 4, 2004 and the second loan 16 on June 20, 2006. (FAC ¶¶ 21, 23, 48.) This action was filed on September 9, 2008. 17 A claim brought under § 1981 must be brought within one-year of the alleged

18 discrimination. A two-year limitations period under ECOA begins to run on the date of the 19 occurrence of the allegedly intentional discriminatory violation. The FHA has a two year statute 20 of limitations, beginning at the occurrence or termination of an alleged discriminatory housing 21 practice. See 42 U.S.C. § 3613(a)(1)(A). Plaintiffs' claims were filed beyond the applicable 22 statutes of limitations and therefore, are subject to dismissal. In their opposition, plaintiffs 23 contend that the claims are not time-barred because plaintiffs sought mortgage modification 24 relief in 2008 and were refused. The FAC unmistakably is directed to the 2004 and 2006 25 mortgage loans and not to any loan modifications that plaintiffs suggest they sought. 26 Additionally, plaintiffs have not alleged that they are members of a protected class ­ an

27 essential element of each of these claims. As a result of this omission, these claims are also 28 subject to dismissal.
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Based on the running of the limitations periods, plaintiff's ECOA, FHA and § 1981

2 claims are dismissed with prejudice. 3 4 d. California Statutory and Common Law Claims

Defendants assert a variety of reasons why plaintiffs' state statutory and common law

5 claims must be dismissed. Rather than address defendants' arguments, plaintiffs state that their 6 causes of action for "[n]egligence, restitution, fraud, unjust enrichment, and remaining common 7 law claims, are sufficiently pleaded." (Opp. at 41.) Plaintiffs chose not to address defendants' 8 detailed contentions concerning the appropriateness of dismissal of these claims and as a result, 9 plaintiffs have waived any opposition they may have to those arguments. See, e.g., City of 10 Arcadia v. E.P.A., 265 F. Supp.2d 1142. 1154. n. 16 (N.D. Cal. 2003). Accordingly, the 11 California statutory and common law claims plaintiffs have asserted in the FAC are dismissed. 12 13 3. Leave to Amend

The Court's discretion to deny leave to amend is particularly broad where plaintiff has

14 previously been permitted to amend his complaint. See Sisseton-Wahpeton Sioux Tribe v. United 15 States, 90 F.3d 351, 355 (9th Cir. 1996). Failure to cure deficiencies by previous amendment is 16 one of the factors to be considered in deciding whether justice requires granting leave to amend. 17 Moore, 885 F.2d at 538. A bad faith motive and undue prejudice to the opposing party by virtue 18 of allowance of the amendment, and futility of amendment are other factors to consider. 19 Schlacter-Jones v. General Telephone of California, 936 F.2d 435, 443 (9th Cir. 1991). 20 Plaintiffs, who are represented by counsel, have made two efforts to provide a feasible

21 complaint. Rather than file a FAC that met appropriate pleading standards, plaintiffs' counsel 22 filed a pleading gargantuan in size but severely lacking in basic facts and allegations. Because 23 counsel has been unable to properly allege viable causes of action in two attempts, the Court has 24 no reason to believe plaintiffs would be able to correct the many remaining deficiencies in a 25 second amended complaint. Therefore, the Court, in its discretion, will not grant plaintiffs 26 further leave to amend and will dismiss the FAC with prejudice. 27 / / / 28 / / /
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Motion to Expunge Lis Pendens Defendants also move for expungement of the lis pendens pursuant to Cal. Civ.Code §§

3 405.31 and 405.32 that plaintiffs recorded. A lis pendens effectively prevents a sale or 4 encumbrance of the property until litigation is resolved or the lis pendens is expunged. See 5 Kirkeby v. Superior Court, 33 Cal. 4th 642. 651 (2004). In other words, a lis pendens prevents 6 the resale of the property to recoup any of the losses caused by plaintiffs' default. 7 A court "shall order the notice [of pendency] expunged if . . . the pleading on which the

8 notice is based does not contain a real property claim." CAL. CIV. CODE § 405.31. A "real 9 property claim" is defined, inter alia, as a cause of action "which would, if meritorious, affect . . 10 . title to, or the right to possession of, specific real property...." CAL. CIV. CODE § 405.4. 11 Plaintiff bears the burden of establishing by a preponderance of the evidence, the probable 12 validity of the claims. 13 Because plaintiffs have alleged no "real property claim" or any viable claim, defendants'

14 motion to expunge lis pendens will be granted. 15 16 17 18 19 20 Accordingly, IT IS HEREBY ORDERED: 1. 2. 3. Defendants' motion to dismiss the FAC is GRANTED WITH PREJUDICE; Defendants' motion to expunge lis pendens is GRANTED; The Clerk of the Court is directed to enter judgment in defendants' favor and against plaintiffs. IT IS SO ORDERED.

21 DATED: July 7, 2009 22 23 24 COPY TO: 25 HON. NITA L. STORMES UNITED STATES MAGISTRATE JUDGE 26 27 ALL PARTIES/COUNSEL 28
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M. James Lorenz United States District Court Judge

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