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Corona v. Azul Vista, LLC

United States District Court, S.D. California

March 31, 2017

AZUL VISTA, LLC, a Nevada limited liability company; MICHAEL J. MARTINEZ, an individual, DOES 1-100, ABC CORPORATIONS 1-100, XYZ, LLC's 1-100. Defendants.


          JOHN A. HOUSTON United States District Judge


         Pending before the Court is Defendant Michael J. Martinez's (“Defendant”) motion to dismiss pro se Plaintiff Arlene Corona's (“Plaintiff”) verified complaint for damages, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Doc. No. 4. Defendant's motion has been fully briefed by the parties. See Doc. Nos. 6, 7. After a careful review of the pleadings and for the reasons set forth below, Defendant's motion is GRANTED.


         The instant action arises from Plaintiff's allegation that, on March 25, 2016, she received a text message, on her personal cell phone, from a phone number registered to AZUL VISTA, LLC, a Nevada limited liability corporation alleged to be owned by Defendant. See Doc. No. 1-2, Exh. A. Plaintiff had expressly informed the public not to make solicitation calls and/or texts on her personal cellular phone via national do-not-call registration. Id.

         On April 27, 2016, Plaintiff, proceeding pro se, filed suit in the Superior Court of California, County of San Diego, alleging violations under the Racketeering Influence and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964; and violations under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Id. Plaintiff also alleged violations under Cal. Pub. Util. Code § 2873, for using an automated dialer and automated answering device to call/text Plaintiff; violations under Cal. Bus. & Prof. Code § 17200, for engaging in illegal business activity; as well as trespass to chattels. Id. Plaintiff seeks statutory damages, punitive damages, injunctive relief, and payment of reasonable attorney's fees and costs. Id.

         On June 23, 2016, Defendant removed the matter to this Court. See Doc. No. 1. On June 30, 2016, Defendant moved to dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted. See Doc. No. 4. On August 5, 2016, Plaintiff filed a response in opposition, and on August 15, 2016, Defendant field a reply. See Doc. Nos. 6, 7. On August 18, 2016, the Court deemed the matter suitable for disposition without oral argument, pursuant to CivLR 7.1 (d.1). See Doc. No. 8.


         I. Legal Standard

         A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory. See Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); Neitzke v. Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law”). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. While a plaintiff need not give “detailed factual allegations, ” he must plead sufficient facts that, if true, “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 547). A claim is facially plausible when the factual allegations permit “the court to draw the reasonable inference that the Defendant is liable for the misconduct alleged.” Id. In other words, “the non-conclusory ‘factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 129 S.Ct. at 1950.

         In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on a motion to dismiss, a court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which a court takes judicial notice. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). If a court determines that a complaint fails to state a claim, the court should grant leave to amend unless it determines that the pleading could not possibly be cured by the allegation of other facts. See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995).

         II. Analysis

         Defendant moves this Court for an order dismissing all of Plaintiff's federal and state law claims for failure to state a claim upon ...

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