1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 TNHC Arizona LLC, et al., Case No.: 21-CV-1017 W (MSB)

14 Plaintiffs,

ORDER GRANTING REQUEST FOR

15 v. JUDICIAL NOTICE [DOC. 6-1] AND

DENYING MOTION TO DISMISS

16 Peter-Lacke USA LLC, [DOC. 6] 17 Defendant. 18 19 20 Pending before the Court is Defendant Peter-Lacke’s motion to dismiss Plaintiffs’ 21 First Amended Complaint (FAC). Along with Defendant’s motion, it has filed an 22 unopposed request for judicial notice. Plaintiffs oppose the motion. 23 The Court decides the matter on the papers submitted and without oral argument. 24 See Civ. L.R. 7.1(d)(1). For the reasons stated below, the Court GRANTS the request 25 for judicial notice [Doc. 6-1] and DENIES the motion to dismiss [Doc. 6]. 26 // 27 // 28 1 I. BACKGROUND 2 This lawsuit arises out of a product-liability dispute between Plaintiffs TNHC 3 Arizona LLC and TNHC Mountain Shadows LLC (“TNHC”), and Defendant Peter- 4 Lacke USA LLC (“Lacke”). TNHC is the developer of a residential project located in 5 Paradise Valley, Arizona. (First Amended Complaint (“FAC”) [Doc. 5] ¶¶ 10, 11.) As 6 part of the development, some time from 2017 through 2018 TNHC “purchased wood- 7 free exterior siding with factory applied coatings, stains, and sealants” (the “Pre-Finished 8 Siding”), which contains UV sealant, for the exterior of the homes. (Id. ¶ 12.) TNHC 9 alleges Lacke, along with other entities, entered a joint venture to “design, manufacture, 10 supply, and distribute” the Pre-Finished Siding. (Id. ¶ 14.) TNHC further alleges Lacke 11 “designed, developed, manufactured, suppled and sold [the] UVE sealant” for the express 12 purpose of incorporating it into the Pre-Finished Siding. (Id. ¶ 16.) 13 Unfortunately, several batches of the Pre-Finished Siding that TNHC purchased for 14 the residential project began showing signs of premature degradation. (FAC ¶ 27.) This 15 was after TNHC had already complained about one batch that failed to perform as 16 intended and began cupping and warping. (Id. ¶ 26.) 17 As a result of TNHC’s complaints, on September 19, 2019, Lacke and the other 18 entities involved in the design, manufacture and supply of the Pre-Finished Siding 19 inspected the condition of the product that was installed and informed TNHC that they 20 needed more time to complete their evaluation. (FAC ¶ 27.) TNHC relied on these 21 representations in deciding not to immediately file a lawsuit and entering into a tolling 22 agreement while the parties attempted to resolve the issue. (Id. ¶¶ 29, 30.) During the 23 negotiations, Lacke “held itself out as the manufacturer, designer, and supplier” of the 24 UV sealant. (Id. ¶ 32.) 25 Ultimately, the negotiations failed and TNHC filed a lawsuit against Lacke and the 26 other entities in Arizona in the Maricopa County Superior Court (the “Arizona 27 Litigation”). Lacke moved to dismiss the complaint for lack of personal jurisdiction. On 28 February 9, 2021, the Superior Court dismissed Lacke for lack of personal jurisdiction. 1 On April 1, 2021, TNHC filed suit against Lacke in the San Diego Superior Court. 2 (Compl. [Doc. 1-2].) On May 27, 2021, Lacke timely removed the action to this Court. 3 (See Notice of Removal [Doc. 1] ¶ 2.) 4 On June 21, 2021, TNHC filed the FAC, which asserts three causes of action for: 5 (1) Strict Liability; (2) Negligence; and (3) Declaratory Relief. (See FAC.) TNHC 6 alleges that Lacke “specifically designed and manufactured the [UV] sealant to withstand 7 high temperatures and high levels of direct sun exposure” and that the UV sealant 8 reached TNHC without substantial change. (Id. ¶¶ 37, 39.) Furthermore, TNHC 9 contends the UV sealant was not fit for its intended use as it “has caused and will 10 continue to cause degradation, deterioration, and/or liquification in direct sunlight and/or 11 high temperatures” and the defects were present when the UV sealant left the factory. 12 (Id. ¶¶ 40, 41.) Finally, TNHC alleges Lacke “failed to perform the necessary tests … to 13 ensure that [the UV sealant] performs as intended to protect materials from damage from 14 sunlight and high temperatures.” (Id. ¶ 57.) 15 Lacke has now filed a motion to dismiss the FAC. (P&A [Doc. 6].) TNHC 16 opposes the motion. (Opp’n [Doc. 7].) 17 18 II. LEGAL STANDARD 19 Federal Rule of Civil Procedure 12(b)(6) allows a defendant to file a motion to 20 dismiss for failing “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 21 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the complaint’s sufficiency. See 22 N. Star Int’l v. Ariz. Corp. Comm’n., 720 F.2d 578, 581 (9th Cir. 1983). A complaint 23 may be dismissed as a matter of law either for lack of a cognizable legal theory or for 24 insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 25 749 F.2d 530, 534 (9th Cir. 1984). Additionally, in evaluating the motion, the court must 26 assume the truth of all factual allegations and must “construe them in light most favorable 27 to the nonmoving party.” Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002). 28 1 To survive a motion to dismiss, a complaint must contain “a short and plain 2 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 3 8(a)(2). The Supreme Court has interpreted this rule to mean that “[f]actual allegations 4 must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. 5 Twombly, 550 U.S. 554, 555 (2007). The allegations in the complaint must “contain 6 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 7 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 8 Well-pled allegations in the complaint are assumed true, but a court is not required 9 to accept legal conclusions couched as facts, unwarranted deductions, or unreasonable 10 inferences. Papasan v. Allain, 478 U.S. 265, 286 (1986); Sprewell v. Golden State 11 Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 12 13 III. REQUEST FOR JUDICIAL NOTICE 14 Lacke requests judicial notice of certain filings in the Arizona Litigation. (See RJN 15 [Doc. 6-1].) Specifically, it requests judicial notice of: (1) Travis Nuzman’s Declaration 16 filed in Support of TNHC’s Opposition to Lacke’s Motion to Dismiss; (2) the Arizona 17 Complaint; (3) John Bilson’s Declaration filed in Support of Lacke’s Motion to Dismiss; 18 and (4) the February 9, 2021 Order granting Lacke’s motion to dismiss. (Id. 1:1–11.) 19 Federal Rule of Evidence 201 permits a court to take judicial notice of an 20 adjudicative fact if it is “not subject to reasonable dispute.” Fed. R. Evid. 201(b). A fact 21 is “not subject to reasonable dispute” if it is “generally known,” or “can be accurately and 22 readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. 23 R. Evid. 201(b)(1)-(2). Under this rule, a court may “take judicial notice of matters of 24 public record without converting a motion to dismiss into a motion for summary 25 judgment,” but it “cannot take judicial notice of disputed facts contained in such public 26 records.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018). 27 Under Rule 201, judicial notice of documents filed in other court proceedings is 28 appropriate. See NuCal Food, Inc. v. Quality Egg LLC, 887 F.Supp.2d 977, 984 (E.D. 1 Cal. 2012) (“Courts have consistently held that courts may take judicial notice of 2 documents filed in other court proceedings.”). Accordingly, the Court will grant the 3 request for judicial notice. 4 5 IV. DISCUSSION 6 A. Strict Liability Claim 7 Under California law, to prove a claim for strict products liability the plaintiff must 8 show: “(1) the product is placed on the market; (2) there is knowledge that it will be used 9 without inspection for defect; (3) the product proves to be defective; and (4) the defect 10 causes injury…” from a reasonably foreseeable use of the product. Scott v. Metabolife 11 Internat., Inc., 115 Cal. App. 4th 404, 415 (2004). To prove the third prong, plaintiffs 12 can rely on a manufacturing defect, design defect, or a failure to warn. Anderson v. 13 Owens-Corning Fiberglas Corp., 53 Cal. 3d 987, 995 (1991). Accordingly, to survive a 14 motion to dismiss on a strict liability claim the plaintiff must plausibly plead each of the 15 four prongs and one of the defectiveness theories. 16 Here, Lacke argues that “TNHC’s strict liability claim must be dismissed because 17 it fails to allege a manufacturing defect, a design defect, a warning defect, or causation.” 18 (P&A 8:20–22.) The Court will address these two prongs separately. 19 20 1. Product Defect 21 Generally, a “manufacturing or production defect is readily identifiable because a 22 defective product is one that differs from the manufacturer’s intended result or from other 23 ostensibly identical units of the same product line.” Barker v. Lull Engineering Co., 20 24 Cal. 3d 413, 429 (1978). To successfully pursue a manufacturing defect claim, a plaintiff 25 “must identify/explain how the product either deviated from the manufacturer’s intended 26 result/design or how the product deviated from other seemingly identical models; 27 therefore, a bare allegation that the product had ‘a manufacturing defect’ is an insufficient 28 legal conclusion.” Zetz v. Bos. Sci. Corp., 398 F. Supp. 3d 700, 708 (E.D. Cal. 2019) 1 (citing Lucas v. City of Visalia, 726 F. Supp. 2d 1149, 1155 (E.D. Cal. 2010)). “[A]n 2 inference of defect [cannot be drawn] solely from the fact of an accident….” Hinckley v. 3 La Mesa R.V. Center, Inc., 158 Cal. App. 3d 630, 642 (Cal. Ct. App. 1984). However, a 4 plaintiff can still prove “a manufacturing defect using only circumstantial evidence.” 5 Notmeyer v. Stryker Corp., 502 F. Supp. 2d 1051, 1059 (N.D. Cal. 2007) (citing 6 Hinckley, 158 Cal. App. 3d at 643). “A manufacturing defect exists when an item is 7 produced in a substandard condition.” McCabe v. Am. Honda Motor Co., 100 Cal. App. 8 4th 1111, 1120 (2002). 9 Lacke argues TNHC failed to state a claim for manufacturing defect because 10 TNHC failed to identify how the UV sealant was defectively manufactured, how it differs 11 from its intended design, or what specific manufacturing defect the sealant suffered from. 12 (P&A 9:10–20.) The Court disagrees. 13 The FAC alleges that “Defendants specifically designed and manufactured the 14 Lacke Sealant to withstand high temperatures and high levels of direct sun exposure” and 15 that when exposed to such conditions the sealant “has caused and will continue to cause 16 degradation, deterioration, and/or liquification …, and is not fit for its intended use as a 17 sealant to protect the wood-free boards from the elements.” (FAC ¶¶ 37, 40.) TNHC 18 also alleges that initially “one batch” of the Pre-Finished Siding, which contained the 19 Lacke UV sealant, “failed to perform as intended and began cupping and warping” and 20 “[t]hereafter, several other batches … appeared to be prematurely degrading.” (Id. ¶¶ 26, 21 27.) From this allegation, it is reasonable to infer that some of the “other batches” did not 22 fail to perform. As such, TNHC’s claim that the UV sealant had a manufacturing defect 23 is facially plausible. The fact that certain batches of ostensibly identical units of the same 24 product line appeared to be defective while others did not—combined with TNHC’s 25 allegation that the sealant was intended for use in Arizona-like climates and failed to 26 meet that intention—allows the court to draw the reasonable inference that Lacke is liable 27 for a manufacturing defect and provides Lacke with the required notice in defending this 28 1 suit. Lacke’s proposed level of specificity is not required at the pleading stage. E.g., 2 Izzetov v. Tesla Inc., 2020 U.S. Dist. LEXIS 60261, at *10 (N.D. Cal. Apr. 6, 2020) 3 (“Plaintiffs, however, need not specifically allege that the manufacture of the Tesla at 4 issue deviated from the design specification or from the manufacture of other Teslas.”) 5 For these reasons, the Court finds the FAC sufficiently alleges the product was defective. 6 7 2. Causation 8 In the product liability context, “[a] manufacturer, distributor, or retailer is liable in 9 tort if a defect in the … product causes injury while the product is being used in a 10 reasonably foreseeable way.” Soule v. General Motors Corp., 8 Cal. 4th 548, 560 (1994). 11 “As with other tort claims, the plaintiff must show the defect in the product was a legal or 12 proximate cause of the plaintiff’s injury.” Shih v. Starbucks Corp., 53 Cal. App. 5th 13 1063, 1067 (2020). Proximate cause has two aspects; one is cause in fact and the other 14 focuses on public policy considerations. Id. at 1068 (citation and quotation omitted). As 15 Lacke focuses on the cause in fact aspect and fails to address the public policy 16 considerations, the Court will focus solely on the cause in fact aspect of the FAC. (See 17 P&A 13:5–14:9.) 18 To prove cause in fact, a “plaintiff must prove that the defective products supplied 19 by the defendant were a substantial factor in bringing about his or her injury.” 20 Rutherford v. Owens-Illinois, Inc., 16 Cal. 4th 953, 968 (1997). “Ordinarily, proximate 21 cause is a question of fact which cannot be decided as a matter of law from the 22 allegations of a complaint. … Nevertheless, where the facts are such that the only 23 reasonable conclusion is an absence of causation, the question is one of law, not of fact.” 24 State Dep’t of State Hosps. v. Superior Court, 61 Cal. 4th 339, 353 (2015) (quoting 25 26 27 1 While both parties have briefed the design defect and failure to warn theories, the Court need not address these alternative theories at the motion to dismiss stage since the FAC pleads a single strict 28 1 Weissich v. County of Marin, 224 Cal. App. 3d 1069, 1084 (1990)) (internal quotations 2 omitted). 3 Here, Lacke contends TNHC has failed to establish causation for the following 4 reasons: (1) it offers no support for the proposition that the sealant caused the damage; 5 (2) “the damage could have been caused instead by the substrate provided by Westech, 6 the stain used by Resysta, or the manner in which Resysta built the Resysta Siding and/or 7 applied the sealant and stain[;]”2 and (3) “[a]bsent factual allegations as to the … specific 8 context of the facts underlying this case, it is just as likely to infer that the Sealant 9 performed without issue and any number of variable or events … are responsible for the 10 alleged harm.” (P&A 13:18–21; Reply 3:7–11.) The Court disagrees with each 11 argument. 12 The second contention can be disposed of rather quickly. “[I]t is not necessary for 13 a plaintiff to establish the negligence of the defendant as the proximate cause of injury 14 with absolute certainty so as to exclude every other possible cause of a plaintiff’s [injury] 15 ….” Cooper v. Takeda Pharm. Am., Inc., 239 Cal. App. 4th 555, 578 (2015) (emphasis 16 in original); see also Bettencourt v. Hennessy Indus., Inc., 205 Cal. App. 4th 1103, 1123 17 (2012) (“That the conduct of other entities may also have contributed to plaintiffs’ 18 injuries would not preclude a finding that [Defendant’s] product was a substantial factor 19 in causing those injuries.”); Bates v. John Deere Co., 148 Cal. App. 3d 40, 50 (1983) 20 (“All a plaintiff need show to establish proximate or legal cause is that a defendant’s 21 conduct in some way substantially contributed to the injury and that the circumstances 22 are such that make it just to hold a defendant responsible for the consequences of the 23 accident.”) Therefore, the fact that the damage may have also been caused by another 24 party does not necessarily mean that Lacke did not substantially contribute to the damage. 25 26

27 2 Westech and Resysta were two of the “other entities” with whom Lacke entered the joint venture to 28 1 As to Lacke’s other contentions, they essentially challenge whether TNHC has 2 plausibly alleged causation in the FAC. As an option to prove cause in fact, California 3 has adopted the substantial factor standard which “is a relatively broad [standard], 4 requiring only that the contribution of the individual cause be more than negligible or 5 theoretical.” Rutherford v. Owens-Illinois, Inc., 16 Cal. 4th 953, 978 (1997). 6 Here, TNHC has alleged that Lacke played an integral role in the overall 7 production of the sealant, that Lacke specifically designed and manufactured the sealant 8 to withstand high temperatures and high levels of direct sunlight, that Lacke expected the 9 sealant to reach TNHC without substantial change—and it did—, that when TNHC used 10 the product as intended it caused and will continue to cause several types of damage, and 11 that the sealant was the cause or one of the causes of the damage. (FAC ¶¶ 37, 39, 40, 41, 12 44.) This is more than a negligible or theoretical contribution, especially since the 13 damage sustained in the final product was due to UV exposure and the UV sealant was 14 intended to protect the whole product against this. The causation element of the strict 15 liability claim is therefore plausibly plead in this action. See Tellez-Cordova v. 16 Campbell-Hausfeld/Scott Fetzger Co., 129 Cal. App. 4th 577, 587 (2004) (“[Plaintiffs’] 17 theory is that [Defendant’s] products, when used as intended—indeed, when used in the 18 only way they could be used—did cause the injury, and they pled facts in support of that 19 theory. We cannot say on demurrer that [Defendant’s] products did not, as a matter of 20 law, cause the injury.”) 21 Accordingly, the Court finds the FAC sufficiently pleads causation.3 22 23 24

25 26 3 In the present motion, Lacke cites to the “Chrysler Declaration.” (P&A 5:21–22.) However, that declaration was attached to Lacke’s motion to dismiss the original Complaint and was not attached to 27 the present motion to dismiss. Therefore, the declaration is not properly before this Court. More importantly, the Court may not consider the truth of the statements in the declaration on a motion to 28 1 B. Negligence Claim 2 The main difference between strict and negligent product liability claims is that in 3 a negligent product liability suit the focus is on the conduct of the manufacturer not 4 whether the product itself was defective. Brown v. Superior Court, 44 Cal. 3d 1049, 5 1056 (1988). As every first-year law student painstakingly knows, a plaintiff seeking to 6 recover under a negligence theory must prove duty, breach, causation, and damages 7 resulting from the breach. Merrill v. Navegar, Inc., 26 Cal. 4th 465, 477 (2001). Under a 8 negligent product liability theory, “a plaintiff must also prove ‘an additional element, 9 namely, that the defect in the product was due to negligence of the defendant.’” Id. at 10 479 (citation omitted). Here, Lacke argues TNHC failed to plausibly plead every element 11 except damages. (P&A 14:13–16:10.) The Court takes up each element in order. 12 Lacke contends that the “Chrysler Declaration” shows that Lacke neither designed 13 nor manufactured the sealant, and therefore, could not owe TNHC a duty. (P&A 14:15– 14 19.) As mentioned above in footnote 3, the “Chrysler Declaration” is not properly before 15 the Court and is not proper to consider at the pleading stage. 16 Lacke further contends that even if it had designed or manufactured the sealant, a 17 “manufacturer’s duty to consumers is limited to its warranty obligations absent either an 18 affirmative misrepresentation or a safety issue.” Opperman v. Path, Inc., 84 F. Supp. 3d 19 962, 985 (N.D. Cal. 2015) (P&A 14:20–22.) This is only true in the limited instance of 20 failure to disclose cases. Id. at 983. “[U]nder established California law, a manufacturer 21 … owes a duty of care to foreseeable users of its product.” Bettencourt, 205 Cal. App. 22 4th at 1118. Lacke seems to concede as much since it uses that exact quote in its Reply. 23 (Reply 7:9–11.) Lacke’s sole objection, therefore, seems to be with the assertion that 24 TNHC made-up a duty. (Reply 7:7.) 25 TNHC alleged that “Defendants were under a duty to Plaintiffs, the end user of the 26 product, to manufacture, design, and/or supply the Lacke Sealant with reasonable care, in 27 a good and workmanlike manner, free from defects, and fit for its intended use.” (FAC ¶ 28 54.) The difference here is one of degree, not of kind. Based on the allegations in the 1 FAC, the Court finds that TNHC has plausibly alleged that Lacke owed them a duty of 2 care as foreseeable users of its product. 3 Furthermore, Lacke contends the FAC merely contains “threadbare allegations, 4 without factual support,” which “fail to allege breach.” (P&A 15:7–8.) However, the 5 Plaintiffs have clearly plead more than threadbare allegations: 6 55. Defendants were negligent and breached their duty of reasonable care by failing to properly design, develop, manufacture, and supply the Lacke 7 Sealant in that the Lacke Sealant is defective and is not suitable for its intended 8 use to protect the board substrate, stain, and adjacent building components from and against UV radiation and sun exposure and/or a sealant which 9 degrades and liquifies in sunlight and damages the board substrate, stain, and 10 adjacent building components.

11 56. Defendants were negligent and breached their duty of reasonable care 12 owed to Plaintiffs by designing, developing, manufacturing, and supplying the Lacke Sealant in a deficient and substandard manner resulting in the addition 13 of contaminants to or improper chemical components in the Lacke Sealant, 14 negligently directing the mixing and application of the Lacke Sealant to the unfinished siding product in that Defendants failed to properly mix, properly 15 apply, and/or identify and/or apply the proper thickness of the Lacke Sealant 16 to the unfinished siding product, and placing the defective product into the stream of commerce. 17

18 57. On information and belief, Defendants failed to perform the necessary tests, or failed to perform the necessary tests in a reasonable and workmanlike 19 manner, of the Lacke Sealant to ensure that it performs as intended to protect 20 material from damage from sunlight and high temperatures, and/or was suitable for use on exterior siding and/or for use in climates with high 21 temperature and high sun exposure, the latter of which was the sole or 22 substantial purpose of the joint venture and/or enterprise, and/or common plan between Lacke, Resysta, RSW, Westech, Westlake, and DOES 1 through 100. 23

24 (FAC ¶¶ 55, 56, 57.) These allegations have sufficiently provided Lacke with 25 notice regarding the possible breaches of duty that TNHC is pursuing and can 26 hardly be considered “threadbare.” Moreover, these allegations simultaneously 27 plead the additional element, “that the defect in the product was due to negligence 28 1 of the defendant,” since these negligent acts, which must be taken as true at the 2 pleading stage, plausibly lead to the failure of the UV sealant to work as intended. 3 Merrill, 26 Cal. 4th at 479. 4 Finally, Lacke’s contentions regarding the causation element in the 5 negligence cause of action mimic its contentions regarding the causation element 6 in the strict liability cause of action. Lacke contends TNHC fails to explain how 7 the sealant is a substantial factor, “as opposed to, for example, the substrate 8 provided by Westech, the stain used by Resysta by itself or the manner in which 9 Resysta built the Resysta Siding and/or applied the sealant and stain. Absent such 10 factual support, [Plaintiffs’] conclusory allegations must be dismissed.” (P&A 11 16:4–7.) As this line of argument is merely repetitive of Lacke’s second 12 contention regarding causation in the strict liability claim, the Court finds that 13 TNHC has plausibly plead causation in the negligence claim for the same reasons 14 discussed in Part IV.A.2, supra. Namely, the fact that the damage may have also 15 been caused by another party does not necessarily mean that Lacke did not 16 substantially contribute to that damage. see Bettencourt, 205 Cal. App. 4th at 1123 17 (“That the conduct of other entities may also have contributed to plaintiffs’ injuries 18 would not preclude a finding that [Defendant’s] product was a substantial factor in 19 causing those injuries.”) The FAC contains numerous allegations, which taken as 20 true, plausibly plead causation between Lacke’s product and the damages alleged. 21 (FAC ¶¶ 37, 39, 40, 41, 44); see also Tellez-Cordova, 129 Cal. App. 4th at 587 22 (“[Plaintiffs’] theory is that [Defendant’s] products, when used as intended— 23 indeed, when used in the only way they could be used—did cause the injury, and 24 they pled facts in support of that theory. We cannot say on demurrer that 25 [Defendant’s] products did not, as a matter of law, cause the injury.”) 26 Accordingly, the Court finds the FAC sufficiently alleges the negligence cause of 27 action. 28 1 C. Declaratory Relief 2 Both parties agree that “declaratory relief is not a separate cause of action; rather it 3 simply a remedy.” DPR Constr. v. Shire Regenerative Med., Inc., 204 F. Supp. 3d 4 |/1118, 1132 (S.D. Cal. 2016). Thus, since the underlying claims upon which this remedy 5 || may be premised were not dismissed, the Court will not dismiss the declaratory relief 6 ||remedy. See Farmer v. Countrywide Fin. Corp., 2009 U.S. Dist. LEXIS 49553, at *20 7 (C.D. Cal. May 18, 2009) (citing Principal Life Ins. Co. v. Robinson, 394 F.3d 665, 669 8 Cir. 2005)) (‘For declaratory relief to be appropriate, then, there must be an actual 9 || controversy relating to the legal rights and duties of the parties.’’) 10 11 CONCLUSION & ORDER 12 For the foregoing reasons, the Court GRANTS the request for judicial notice [Doc. 13 || 6-1] and DENIES the motion to dismiss [Doc. 6]. 14 || Dated: February 16, 2022 \ pe lnLor 16 Hn. 7 omas J. Whelan 7 Unted States District Judge 18 19 20 21 22 23 24 25 26 27 28 13