Supreme Court has held that, while a complaint does not need detailed factual allegations:“[a] plaintiff’s obligation to provide ‘grounds’ of his ‘entitle(ment) to relief’ requires morethan labels and conclusions . . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . .”
See Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007), quoting
Conley v. Gibson
, 355 U.S.41, 47 (1957).On a Rule 12(b)(6) motion, all facts are assumed to be true and construed in the light mostfavorable to the nonmoving party.
Cervantes v. United States
, 330 F.3d 1186, 1187 (9 Cir.
Leave to amend must “be freely given when justice so requires.”
15(a).This policy is applied with “extraordinary liberality.”
See Morongo Band of Mission Indians v. Rose,
893 F.2d 1074, 1079 (9 Cir. 1990). “[L]eave to amend should be granted unless amendment
would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay.”
See Johnson v. Mammoth Recreations, Inc.,
975 F.2d 604, 607 (9 Cir. 1992). “[T]here exists a
presumption under Rule 15(a) in favor of granting leave to amend.”
See Eminence Capital, LLC v. Aspeon, Inc.,
316 F.3d 1048, 1052 (9 Cir. 2003). However, leave to amend need not be granted
when amendment would be futile.
See Steckman v. Hart Brewing, Inc.
, 143 F.3d 1293, 1298 (9 Cir.
ARRANTED AS TO
In the FAC, Plaintiffs allege that the Defendants violated California Civil Code section2923.5 because they did not contact the borrower, and because the notice of default did not include arequired declaration. Defendants argue that this cause of action fails because (1) the Notice of Default did include the required declaration that Central contacted the borrower to discuss the borrower’s financial situation, (2) Plaintiffs did not explain how they were prejudiced by the allegedfailure to contact them, (3) California Civil Code section 2923.5 does not afford a private right of action, and (4) Plaintiffs have not tendered the amount of the secured indebtedness.
Case5:10-cv-00650-PVT Document80 Filed10/29/10 Page3 of 13