The opinion of the court was delivered by: NAPOLEON JONES, District Judge
(1) DENYING DEFENDANT'S MOTION TO DISMISS UNDER RULE 12(b)(1);
(2) DENYING DEFENDANT'S MOTION TO DISMISS UNDER RULE 12(b)(6);
(3) DENYING DEFENDANT'S MOTION TO DISMISS UNDER RULE 9(b);
(4) GRANTING DEFENDANT'S MOTION TO STRIKE INJUNCTIVE RELIEF; and
(5) STRIKING PARAGRAPHS 90 AND 96(b) OF THE COMPLAINT UNDER RULE
Currently before the Court is a Motion to Dismiss ("Motion")
under Federal Rules of Civil Procedure 12(b)(1) ("Rule
12(b)(1)"), 12(b)(6) ("Rule 12(b)(6)"), 9(b) ("Rule 9(b)") and a
Motion to Strike under 12(f) ("Rule 12(f)") and supporting
Memorandum of Points and Authorities in Support thereof filed by
Defendant Manor Care, Inc. ("Defendant") [Doc. No. 6.] Plaintiffs
Richard Scholl and Kathleen Levin ("Plaintiffs") have filed an
Opposition to the Motion. [Doc. No. 10.] Defendant has also filed a Reply. [Doc.
No. 14.] For the reasons set forth below, the Court DENIES
Defendant's Motion to Dismiss under Rule 12(b)(1), DENIES
Defendant's Motion to Dismiss under Rule 12(b)(6); GRANTS
Defendant's Motion to Strike injunctive relief, and STRIKES
paragraphs 90 and 96(b) of the Complaint.
Plaintiffs Richard Scholl and Kathleen Levin are individuals
residing in San Diego and appearing respectively on behalf of the
estates of their mothers, Mildred Scholl and Kathleen Van Arum,
as well as on behalf of all others similarly situated.
(Complaint, Prayer for Relief.) Defendant Manor Care Health
Services, Inc., is a corporation organized and existing under the
laws of Delaware with its principal place of business located in
Ohio. (Complaint ¶ 6). Defendant Manor Care Health Services,
Inc., and affiliated companies Defendants Manor Care, Inc., Manor
Care of America, Inc., and Manor Properties, Inc. (collectively,
"Manor Care"), own and operate ten facilities in the State of
California that treat the elderly. (Complaint ¶ 4).
Plaintiffs allege that their mothers were subjected to
substandard care during their time as residents at Defendant's
facility located in Encinitas, California. (Id. ¶ 6). In
addition to their personal claims, Plaintiffs also seek to
represent a purported class consisting of all persons who resided
as patients at the Manor Care skilled nursing facility in
Encinitas at any time in the four (4) years preceding the filing
of the complaint. (Id. ¶ 77). Specifically, Plaintiffs allege
that on a class-wide basis Manor Care has failed to maintain
adequate staffing at their Encinitas facility and that as a
result, residents have suffered from: (1) pressure sores
resulting from staff failure to turn over bedfast residents; (2)
incontinence and urinary tract infections resulting from
inadequate toileting assistance; (3) falls resulting from the
failure to respond to call lights; (4) malnutrition resulting
from inadequate feeding assistance and lack of monitoring; and
(5) dehydration. (Id. ¶ 4-5). According to Plaintiffs,
Defendant misrepresented the level of care, services, and
staffing levels to the public in their written marketing
materials and admission agreement. (Id. ¶ 10).
Plaintiffs filed a Complaint in the Superior Court of the State
of California that was subsequently removed to this Court on
diversity of citizenship grounds under the Class Action Fairness Act. Plaintiffs have alleged the following causes of
action against Defendant: (1) unlawful, unfair, and fraudulent
business acts and practices in violation of California Business &
Professions Code §§ 17200 and 17500 (together, the unfair
competition law, "UCL"); (2) false advertising; (3) violation of
the Consumer Legal Remedies Act (Cal. Civ. Code § 1750 et seq.);
and (4) unjust enrichment. (Complaint ¶¶ 86-106). Defendant now
seeks to dismiss the action for: (1) lack of subject matter
jurisdiction; (2) failure to state a claim on which relief can be
granted; and (3) failure to plead fraud with the requisite
particularity. Additionally, Defendant moves to strike
Plaintiffs' request for injunctive relief.
A. Motion to Dismiss Pursuant to Rule 12(b)(1)
Under Federal Rule of Civil Procedure Rule 12(b)(1), a
defendant may seek to dismiss a complaint for "lack of
jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1).
Federal subject matter jurisdiction must have a statutory
basis. The primary sources of federal subject matter jurisdiction
are federal question jurisdiction under 28 U.S.C. § 1331,
diversity jurisdiction under 28 U.S.C § 1332, and supplemental
jurisdiction under 28 U.S.C. § 1367.
When considering a Rule 12(b)(1) motion, the district court "is
free to hear evidence regarding jurisdiction and to rule on that
issue prior to trial, resolving factual disputes where
necessary." Augustine v. United States, 704 F.2d 1074, 1077
(9th Cir. 1983). "In such circumstances, `[n]o presumptive
truthfulness attaches to plaintiff's allegations, and the
existence of disputed facts will not preclude the trial court
from evaluating for itself the merits of jurisdictional claims.'"
Id. (quoting Thornhill Publishing Co. v. General Telephone &
Electronic Corp., 594 F.2d 730, 733 (9th Cir. 1979)).
Plaintiffs, as the party seeking to invoke jurisdiction, have the
burden of establishing that jurisdiction exists. See Kokkonen v.
Guardian Life Ins. Co. of Am., 114 S. Ct. 1673, 1675 (1994).
B. Motion to Dismiss Pursuant to Rule 12(b)(6)
Federal Rules of Civil Procedure Rule 12(b)(6) provides that a
complaint may be dismissed for failure to state a claim upon
which relief can be granted. Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion to dismiss tests the sufficiency of the
complaint. See Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200
(9th Cir. 2003). Dismissal of a claim under this rule is
appropriate only where it "appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Edwards v. Marin Park, Inc.,
356 F.3d 1058, 1061 (9th Cir. 2004), (quoting Conley v. Gibson,
355 U.S. 41, 45-46 (1957)). A complaint may be dismissed as a matter
of law for two reasons: (1) lack of a cognizable legal theory, or
(2) insufficient facts under a cognizable theory. Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001).
In reviewing the motion, the court must assume the truth of all
factual allegations and must construe them in the light most
favorable to the nonmoving party. Gompper v. VISX, Inc.,
298 F.3d 893, 895 (9th Cir. 2002). However, the court is not bound to
accept as true a legal conclusion couched as a factual
allegation. Papasan v. Allain, 478 U.S. 265, 286 (1986); see
also Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.
1981). Instead, the court must determine "whether conclusory
allegations follow from the description of facts as alleged by
the plaintiff." Holden v. Hagopian, 978 F.2d 1115, 1121 (9th
When ruling on a motion to dismiss, the court may consider the
facts alleged in the complaint, documents attached to the
complaint, and documents relied upon but not attached to the
complaint when authenticity is not contested. Parrino v. FHP,
Inc., 146 F.3d 699, 705-06 (9th Cir. 1998); Fed.R.Civ.P.
C. Motion to Strike Pursuant to Rule 12(f)
Federal Rules of Civil Procedure Rule 12(f) provides that the
court may strike from any pleading "any insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter."
Fed.R.Civ.P. 12(f). Immaterial matter is material "which has
no essential or important relationship to the claim for relief."
Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993),
rev'd on other grounds by 510 U.S. 517 (1994). Impertinent
material "consists of statements that do not pertain, and are not
necessary, to the issues in question." Id.
For purposes of the motion to strike, the court "must view the
pleading under attack in the light more favorable to the
pleader." Lazar v. Trans Union LLC, 195 F.R.D. 665, 669 (C.D.
Cal. 2000); see also California v. United States, 512 F. Supp. 36,
39 (N.D. Cal. 1981). Because striking a portion of a pleading is
a drastic remedy, Rule 12(f) motions are disfavored and
infrequently granted. Lazar, 195 F.R.D. at 669. For a motion to
strike to succeed, the movant must show that the allegations
objected to are "so unworthy of any consideration . . . that
their presence in the pleading throughout the proceedings will be
prejudicial to the moving party." 5A Wright & Miller, Federal
Practice and Procedure § 1380 (2d ed. 1990). Motions to strike
based on impertinent or immaterial matters are usually denied
unless "the allegations have no possible relation to the
controversy." Id. § 1382.
I. 12(b)(1) Motion to Dismiss
Under Rule 12(b)(1), Defendant moves to dismiss Plaintiff's
Complaint on the grounds of (1) the primary jurisdiction doctrine
and (2) lack of standing. For the reasons set forth below, this
Court DENIES Defendant's Motion on both grounds.
Defendant argues that the doctrine of primary jurisdiction
requires this Court to decline jurisdiction over any alleged
incidents or complaints that have not first been reviewed by the
California's Department of Health Services ("CDHS") and the
federal government's Center for Medicare and Medicaid ("CMS").
(Def.'s Mem. of P. and A. at 2-3.) Plaintiffs contend that
invoking the doctrine is improper. For the reasons stated below,
this Court FINDS that it has jurisdiction over each of
Plaintiffs' causes of action.
1. Background on Primary Jurisdiction Doctrine
The Supreme Court has spoken on the issue of primary
"The doctrine of primary jurisdiction . . . is
concerned with promoting proper relationships between
the courts and administrative agencies charged with
particular regulatory duties. "Primary jurisdiction,"
. . . applies where a claim is originally cognizable
in the courts, and comes into play whenever
enforcement of the claim requires the resolution of
issues which, under a regulatory scheme, have been
placed within the special competence of an
administrative body; in such a case the judicial
process is suspended pending referral of such issues
to the administrative body for its views . . . No
fixed formula exists for applying the doctrine of
primary jurisdiction. In every case the question is
whether the reasons for the existence of the doctrine
are present and whether the purposes it serves will
be aided by its application in the particular
litigation." United States v. Western Pac. R. Co., 352 U.S. 59,
63-64 (1956). The Court also suggested that two
reasons for invoking the doctrine are (1) to promote
uniform application of regulatory laws by having
agencies initially resolve certain administrative
questions and (2) to utilize the expert and
specialized knowledge of the agencies involved in
matters not within the conventional experience of
judges. Id. at 64.
The Ninth Circuit has also addressed this doctrine. In Brown
v. MCI Worldcom Servs., Inc., 277 F.3d 1166
, 1169 (9th Cir.
2002), the plaintiff filed a ...