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PETTY v. PETTY

May 27, 2003

BENJAMIN PETTY, PLAINTIFF,
v.
MAE PETTY, WILLIAM BACHRACH, JACQUELINE TABER, MARK EISENBERG, BONNIE LEWMAN, ALAMEDA COUNTY AND THE STATE BAR OF CALIFORNIA, DEFENDANTS.



The opinion of the court was delivered by: Susan Illston, United States District Judge

JUDGMENT

Plaintiffs complaint has been dismissed without leave to amend. Accordingly, judgment is entered in favor of defendants and against plaintiff Benjamin Petty.

IT IS SO ORDERED AND ADJUDGED.

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS AND DENYING PLAINTIFF'S REQUEST FOR LEAVE TO AMEND
On May 23, 2003 the Court heard argument on defendants' motions to dismiss. Having carefully considered the arguments of the parties and the papers submitted, the Court GRANT defendants' motions to dismiss and DENIES plaintiffs request for leave to amend.

BACKGROUND

Plaintiff filed this action on February 7, 2003. The causes of action alleged by plaintiff from the litigation of his marital dissolution in 1979 and 1980.

The first cause of action for fraud and deceit is alleged against Mae Petty, plaintiffs ex-wife and William Bachrach, her attorney in the divorce proceedings. Plaintiff alleges that Petty and Bachrach fraudulently induced William Petty to allow May Petty to return to the marital household at 1901 Warner Way after the two had separated.

The second cause of action for violation of procedural due process is against Bachrach, Jacqueline Taber (the family court judge in the divorce proceedings), Alameda County (as the county employing Taber), and the California State Bar Association (the correct title for which is the State Bar of California, as the entity which licensed Bachrach to practice law).

The third cause of action for violation of procedural due process is against Eisenberg (an attorney for defendant), Lewman (another family court judge), Alameda County (the County in which Lewman presides), and the State Bar of California (which licensed Eisenberg to practice law).

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. The question presented by a motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of the claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012 (1984).

In answering this question, the Court must assume that the plaintiffs allegations are true and must draw all reasonable inferences in the plaintiffs favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Even if the face of the pleadings suggests that the chance of recovery is remote, the Court must allow the plaintiff to develop the case at this stage of the proceedings. See United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).

If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has "repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. ...


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