United States District Court, S.D. California
L. LEE BRIGHTWELL, Plaintiff,
THE MCMILLAN LAW FIRM, et al., Defendants.
ORDER:(1) GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS [DOC. 18]; AND (2) GRANTING
IN PART AND DENYING IN PART DEFENDANTS' MOTION TO STRIKE
Thomas J. Whelan United States District Judge.
before the Court are (1) Defendants' Motion to Dismiss
pursuant to Fed.R.Civ.P. 12(b)(6) [Doc. 18], and
Defendants' Motion to Strike pursuant to Fed.R.Civ.P.
12(f). [Doc. 19.] The Court decides the matters on the papers
submitted and without oral argument pursuant to Civil Local
Rule 7.1(d)(1). For the reasons that follow, the Court GRANTS
IN PART AND DENIES IN PART both motions.
a legal malpractice case over which this Court has diversity
jurisdiction pursuant to 28 U.S.C. § 1332. (First
Amended Complaint (“FAC”) [Doc. 16].) It
arises out of an underlying action that began in 2013.
(Id. [Doc. 16] ¶ 8.) On June 30, 2016,
Plaintiff filed the Complaint against the law firm that
previously represented her, an attorney at that law firm, and
that attorney's associate. (See Compl. [Doc.
First Amended Complaint (“FAC”) alleges that, on
the eve of trial, Plaintiff's former counsel informed her
of a lack of confidence in his own abilities as a result of a
2015 car accident that caused him to suffer a traumatic brain
injury from which he was still recovering at the time.
(See FAC [Doc. 16] ¶¶ 1-20.) As a result,
Plaintiff alleges that “Defendants put great pressure
on [her] to settle the [underlying action] for far less than
the amount Defendants originally told [her] the case was
worth.” (See Id. [Doc. 16] ¶ 20.)
Further, the FAC alleges that Defendants unjustifiably
inflated their legal bills and then threatened to withdraw
during critical settlement negotiations when she did not pay
them within eleven days. (See Id. [Doc. 16] ¶
22.) According to the FAC, Defendants did, in fact, file a
motion to withdraw with the Court during said settlement
negotiations, which was granted. (Id. [Doc. 16]
¶¶ 26-27.) Plaintiff then hired a new attorney and
settled the case several months later. (See Id.
[Doc. 16] ¶¶ 28.) Thereafter, despite a voluntary
withdrawal from the matter, Defendants allegedly billed
Plaintiff based on their original contingency agreement-for a
settlement they did not arrange. (See Id. [Doc. 16]
asserts five causes of action: (1) breach of contract; (2)
fraud; (3) professional negligence; (4) breach of fiduciary
duty; and (5) declaratory relief. (FAC [Doc. 16].)
Legal Standards A. Motion
to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)
Court must dismiss a cause of action for failure to state a
claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the
legal sufficiency of the complaint. See Parks Sch. of
Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.
1995). A complaint may be dismissed as a matter of law either
for lack of a cognizable legal theory or for insufficient
facts under a cognizable theory. Balistreri v. Pacifica
Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990). In
ruling on the motion, a court must “accept all material
allegations of fact as true and construe the complaint in a
light most favorable to the non-moving party.”
Vasquez v. L.A. Cnty., 487 F.3d 1246, 1249 (9th Cir.
complaint 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 Supreme Court has
interpreted this rule to mean that “[f]actual
allegations must be enough to raise a right to relief above
the speculative level[.]” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The allegations in
the complaint must “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.' ” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570).
allegations in the complaint are assumed true, but a court is
not required to accept legal conclusions couched as facts,
unwarranted deductions, or unreasonable inferences. See
Papasan v. Allain, 478 U.S. 265, 286 (1986);
Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001).
Motion to Strike Pursuant to Rule 12(f)
12(f) allows a court to “strike from a pleading an
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).
“ ‘The function of a 12(f) motion to strike is to
avoid the expenditure of time and money that must arise from
litigating spurious issues by dispensing with those issues
prior to trial . . ..' ” Whittlestone, Inc. v.
Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010)
(quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524,
1527 (9th Cir. 1993), overruled on other grounds by
510 U.S. 517 (1994)). Motions to strike are generally
disfavored and are “usually . . . denied unless the
allegations in the pleading have no possible relation to the
controversy, and may cause prejudice to one of the
parties.” See Travelers Cas. & Sur. Co. of Am.
v. Dunmore, 2010 WL 5200940, at *3 (E.D. Cal. 2010).
matter is the needless repetition of assertions. See
Dunmore, 2010 WL 5200940, at *3. “
‘Immaterial matter is that which has no essential or
important relationship to the claim for relief or the
defenses being plead.' ” Whittlestone, 618
F.3d at 974 (quoting Fogerty, 984 F.2d at 1527).
“Impertinent matter consists of statements that do not
pertain, and are not necessary, to the issues in
question.” Id. (internal quotation omitted).
“Scandalous matters are allegations that unnecessarily
reflect . . . on the moral character of an individual or
state . . . anything in repulsive language that detracts from
the dignity of the court.” Consumer Soultions REO,
LLC v. Hillery, 658 F.Supp.2d 1002, 1020 (N.D. Cal.
2009) (quoting Corbell v. Norton, 224 F.R.D. 1, 5
may not strike from the pleadings any disputed and
substantial factual or legal issue. See
Whittlestone, 618 F.3d at 973-74 (9th Cir. 2010). For
the purpose of this inquiry, the Court construes the pleading
in the light most favorable to the non-moving party. See
id. at 975 n.2.
Request for Judicial Notice
requests judicial notice via two identical filings in
connection with the instant motion to dismiss and motion to
strike. (Request for Judicial Notice as to Motion to
Dismiss [Doc. 18-2]; Request for Judicial Notice as
to Motion to Strike [Doc. 19-2].)
“may judicially notice a fact that is not subject to
reasonable dispute because it . . . can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed.R.Evid. 201.
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) (internal quotation omitted),
overruled on other grounds as stated in Galbraith v. Cty.
of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002).
Matters of public record subject to judicial notice are an
exception to this rule. See id. at 688-90. However,
this exception may not exceed the outer bounds of Rule 201-it
may not allow for the introduction or consideration of
disputed facts, or facts that would contradict those alleged
in the complaint. See id. at 690. Accordingly,
“on a Rule 12(b)(6) motion to dismiss, when a court
takes judicial notice of another court's opinion, it may
do so ‘not for the truth of the facts recited therein,
but for ...