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Kzsa Broadcasting, Inc, A v. Immaculate Heart Radio Educational Broadcasting

December 17, 2010

KZSA BROADCASTING, INC, A CALIFORNIA CORPORATION; DIAMOND BROADCASTING, A CALIFORNIA CORPORATION,
PLAINTIFFS,
v.
IMMACULATE HEART RADIO EDUCATIONAL BROADCASTING, INC., A CALIFORNIA NON-PROFIT CORPORATION; DOUGLAS M. DAGGS, SUCCESSOR TRUSTEE OF THE SYLVIA DELLAR SURVIVOR'S TRUST; DOUGLAS M. DAGGS, SUCCESSOR TRUSTEE OF THE DELLAR FAMILY TRUST; WEST AUCTIONS, INC.; GREAT AMERICAN MOVERS, INC.; ROES 1-10,
DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER DENYING DEFENDANTS' MOTIONS TO DISMISS

Defendant Douglas M. Daggs, successor trustee of the Sylvia Dellar Survivor's Trust ("Daggs") moves for dismissal of Plaintiffs' Second Amended Complaint under Federal Rule of Civil Procedure ("Rule") 12(b)(1) and 12(b)(6). Daggs argues the Rooker-Feldman doctrine bars this action, and Plaintiffs have failed to state viable claims. Defendant IHR Educational Broadcasting, Inc. ("IHR") also seeks dismissal of Plaintiffs' claims under Rule 12(b)(6), arguing Plaintiffs failed to allege a federal claim under 42 U.S.C. § 1981 or 42 U.S.C. § 1982, and the court should decline to exercise supplemental jurisdiction over Plaintiffs' state law claims.

I. LEGAL STANDARD

A. Rule 12(b)(1)

A "[r]ule 12(b)(1) jurisdictional attack[ ] can be either facial or factual." White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Daggs' Rule 12(b)(1) dismissal motion is a facial attack because the existence of subject matter jurisdiction depends on allegations in Plaintiffs' complaint, rather than evidence extrinsic to the complaint. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

Plaintiffs bear the burden of demonstrating that federal subject matter jurisdiction exists. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). However, "[i]n considering a facial jurisdictional attack, a court must take the allegations in the pleadings as true and draw all reasonable inferences in the plaintiff[s'] favor." State Farm Life Ins. Co. v. Cai, No. 09-CV-00396-LHK, 2010 WL 4628228, at *3 (N.D. Cal. Nov. 4, 2010) (citation omitted).

B. Rule 12(b)(6)

A Rule 12(b)(6) dismissal motion tests the legal sufficiency of the claims alleged in the complaint. Novarro v. Black, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). The complaint must "give the defendant fair notice of what the [plaintiff's] claim is and the grounds upon which relief rests . . . ." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Dismissal of a claim under Rule 12(b)(6) is appropriate only where the complaint either 1) lacks a cognizable legal theory, or 2) lacks factual allegations sufficient to support a cognizable legal theory. Balistreri v. Pacific Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). To avoid dismissal, a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 547.

In deciding a Rule 12(b)(6) motion, the material allegations of the complaint are accepted as true and all reasonable inferences are drawn in favor of the plaintiff. See al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). However, conclusory statements and legal conclusions are not entitled to a presumption of truth. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009); Twombly, 550 U.S. at 555. "In sum, for a complaint to survive a motion to dismiss, the nonconclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

II. REQUEST FOR JUDICIAL NOTICE

IHR's dismissal motion includes a request that the Court take judicial notice of its Articles of Incorporation and Certificate of Amendment of Articles of Incorporation, which were filed with the State of California Secretary of State on April 28, 1988, and November 10, 1999, respectively. (IHR's Req. for Judicial Notice, Exs. 4-5.) Plaintiffs do not oppose this request.

"As a general rule, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (quotations and citation omitted). However, a court may consider matters properly subject to judicial notice. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). A matter may be judicially noticed if it is either "generally known within the territorial jurisdiction of the trial court" or "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b).

Since the corporate documents are matters of public record, they may be judicially noticed. See Grassmueck v. Barnett, 281 F. Supp. 2d 1227, 1232 (W.D. Wash. 2003) (taking judicial notice of articles of incorporation). Therefore, IHR's request that these documents be judicially noticed is granted.*fn1

III. PLAINTIFFS' FACTUAL ALLEGATIONS

Plaintiffs allege this action is "about theft, conversion and race discrimination not withstanding [sic] any claims to possession to real property[,]" in which IHR, "a Roman Catholic operated radio station[,] conspired with [(Daggs),] the landlord of certain . . . real property [,] to drive an African American owned gospel radio station off the air and out of business . . . ." (Second Amended Complaint ("SAC") 2:23-24, 2:27-3:1.)

Daggs' predecessors-in-interest leased certain premises to Plaintiff KZSA Broadcasting, Inc. ("KZSA")'s predecessor-in-interest for the operation of a radio transmission tower in the late 1980's. Id. ΒΆ 12. KZSA ...


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