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Hermenegildo ("Jay") Martinez, An Individual, On His Own Behalf and On Behalf of v. the Welk Group

June 2, 2011


The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge




Currently before the Court are Defendants, The Welk Group, Inc., Welk Resort Group, Inc. ("Welk Resort Defendants"), Welk Music Group, Inc., and Soleil Communications, Inc. ("Welk Group Defendants") (collectively "Defendants") Motion to Dismiss and Motion to Strike. Both motions have been fully briefed by the parties. After a careful consideration of the pleadings presented and for the reasons set forth below, the Court DENIES Defendants' motion to dismiss and GRANTS Defendants' motion to strike.


Factual Background

Plaintiff Hermenegildo Martinez ("Plaintiff") brings this putative class action on behalf of himself and all persons who entered into a purchase and sale agreement and purchased timeshare ownership points for use at the Welk Resort San Diego property. [Doc. No. 58 at 3]. Defendants have been active in the vacation resort ownership business since 1984, and have resorts in Maui, Hawaii; Palm Desert; Branson, Missouri; Cabo San Lucas, and a "flagship property" at the Welk Resort San Diego [Doc. No. 58 at 9]. The Welk Resort San Diego is located in north San Diego county, and comprises three timeshare resorts totaling 654 units. In April 2007, Plaintiff entered into an agreement to purchase 120,000 timeshare ownership points in the "Welk Resorts Platinum Program." [Doc. No. 58, Ex. A at 24.] This purchase provided Plaintiff with "the right to use and occupy an individual dwelling unit in any of the Resort Accommodations within the Program . . ." [Doc. No. 58, Ex. A at 24]. In April 2009, Plaintiff "upgraded" his ownership interest to 240,000 points. [Doc. No. 58, Ex. B at 54] These two purchases, as exemplified in the Purchase and Sales Agreements, constitute the entirety of Plaintiff's timeshare ownership [Doc. No. 58, Ex. A at 31; Ex. B at 61].

Procedural Background

This case was originally before United States District Judge Michael M. Anello, and was transferred to United State District Judge Anthony J. Battaglia on March 14, 2011 [Doc. No. 65]. As such, this Court will provide a detailed account of the procedural background of the case, including prior motions submitted by the parties' and Judge Anello's corresponding order.

On September 17, 2010, Plaintiff filed the Third Amended Complaint ("TAC"), in which Plaintiff alleged timeshare units owned and operated by the Defendants developed substantial water leaks; causing mold, mildew, and fungus to grow within the units. [Doc. No. 39 at 6.] Plaintiff further alleged that because Defendants knew of, or was able to ascertain that the water leaks had caused mold, mildew, and fungus to grow within timeshare units, Defendants were liable for failing to investigate and resolve the issue. Specifically, Plaintiff alleged six causes of action in the TAC: (1) breach of contract; (2) breach of fiduciary duty; (3) negligence; (4) private nuisance; (5) unfair competition in violation of CAL. BUS. & PROF. CODE §17200 et seq.; and (6) breach of implied warranty of habitability. [Doc. No. 39 at 7.]

On October 1, 2010, Defendants filed a motion to dismiss Plaintiff's TAC pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the alternative, to require Plaintiff to provide a more definite statement under Rule 12(e). [Doc. No. 42.] Defendants also filed a motion to strike portions of Plaintiff's TAC pursuant to Rule 12(f), and requested the Court take judicial notice of certain documents in support of their motions [Doc. No. 47]. After taking the matter under submission without oral argument, Judge Anello dismissed the breach of contract and breach of fiduciary duty claims as to the Welk Group Defendants, but declined to dismiss either claim as to the Welk Resort Defendants. The Court further declined to dismiss any of the remaining claims as to any of the Defendants. [Doc. No. 57 at 6-12]. However, the Court granted the Defendants motion for a more definite statement, finding it appropriate for the Plaintiff to re-plead his references to the ownership of timeshare units, to specify a particular location, to provide additional details regarding his ownership interest, to provide a complete description of the nature of his property interest, to specify the documents that comprised the "Purchase and Sales Agreement," and to indicate the pages numbers on the 2007 Agreement and 2009 Agreement that comprised the entirety of the Purchase and Sales Agreement. [Doc. No. 57 at 12-13].

In the Judge Anello's January 11, 2011 order, the Court also denied Defendants' motion to strike Plaintiff's references to unit ownership, Plaintiff's statements charactering his ownership interest, Plaintiff's statements referring to the duty arising under the 2007 disclosure, Plaintiff's allegations that Defendants violated disclosure requirements applicable to brokers or seller of real property interests, and Plaintiff's claim for breach of implied warranty of habitability [Doc. No. 57 at 13-19]. However, the Court did grant Defendants' motion to strike, without leave to amend, any references by the Plaintiff to the Toxic Mold Protection Act [Doc. No. 57 at 16].*fn1

In accordance with Judge Anello's order granting in part and denying in part Defendants' motion to dismiss, and Defendants' motion to strike portions of Plaintiff's TAC [Doc. No. 57], Plaintiff filed a Fourth Amended Complaint ("4AC") on February 1, 2011 [Doc. No. 58]. In the 4AC, Plaintiff refined the class definition to include "all natural persons in the United States who had maintained an ownership interest in timeshare points for use at the Welk Resort San Diego . . ." [Doc. No. 58.] This class definition differed from the class definition stated in the TAC, only in that "an ownership interest in a time share unit" [Doc. No. 39] was changed to an "ownership interest in time share points" [Doc. No. 58]. In addition to refining the class definition, Plaintiff made several other minor changes. These included, but were not limited to, changing "time share unit" [Doc. No. 39 at 12: 27-28] to "time share ownership points" [Doc. No. 58 at 13:13-14], changing "market and sell time share units" [Doc. No. 39 at 12: 7-8] to "market and sell time share ownership points" [Doc. No. 58 at 12: 20-21], and changing "inquiries by time share owners" [Doc. 39 at 16: 10-11] to "inquiries by time share point owners" [Doc. No. 58 at 16: 26-27]. These change were all made in response to the Judge Anello's January 11, 2011 order, which required the Plaintiff to provide additional detail, and a description of the nature of his property interest [Doc. No. 57 at 12].

On February 15, 2011, Defendants moved to dismiss and strike portions of Plaintiffs 4AC pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(f). [ Doc. Nos. 60, 61.] Plaintiff filed an opposition [Doc. Nos. 62. 63], to which Defendants replied [Doc. Nos. 66, 67]. The Court found the matters suitable for resolution without oral argument, and took the matters under submission pursuant to Civil Local Rule 7.1(d.1).


Motion to Strike

A. Legal Standard

Under Rule 12(f) of the Federal Rules of Civil Procedure, the Court may "strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter." FED. R. CIV. P. 12(f). "Immaterial" matter is that which has "'no essential or important relationship to the claim for relief or the defenses being pleaded.'" Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (citation omitted), rev'd on other grounds, 510 U.S. 517 (1994). "Impertinent" matter consists of statements that "'do not pertain, and are not necessary, to the issues in question.'" Id. (citation omitted). In ruling upon a motion to strike, just as with a motion to dismiss, the court must view the pleadings in a light most favorable to the nonmoving party. In re, Inc. Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000).

The purpose of a Rule 12(f) motion is "to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983) (citation omitted). However, courts often view motions to strike with disfavor, and therefore will not grant a motion to strike "unless the matter to be stricken clearly could have no possible bearing on the subject of the litigation." Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004) (citations omitted); see also Bureerong v. Uvawas, 922 F. Supp. 1450, 1478 (C.D. Cal. 1996). The court should deny the motion to strike if ...

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