United States District Court, S.D. California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
[DOC. NO. 4]
A. HOUSTON United States District Judge
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.
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.
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.
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.
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).
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.
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).
moves this Court for an order dismissing all of
Plaintiff's federal and state law claims for failure to
state a claim upon ...