United States District Court, S.D. California
ORDER GRANTING IN PART DEFENDANTS' MOTIONS TO
DISMISS (ECF NO. 22, 24)
L. SAMMARTINO UNITED STATES DISTRICT JUDGE.
before the Court are Defendants Integrity Capital Solutions,
Inc.'s (“ICS”) and Michele Sharpe's
(collectively, “Defendants”) Motion to Dismiss
Plaintiff's Amended Complaint (“ICS MTD”),
(ECF No. 22), Defendant Harvey Scholl's Motion to Dismiss
Plaintiff's Amended Complaint (“Scholl MTD”),
(ECF No. 24), and Plaintiff's Response to Defendants'
Second Motion to Dismiss (“Opp'n”), (ECF No.
25). Having considered the Parties' arguments and the
law, the Court GRANTS IN PART Defendants' Motion to
asserts various claims stemming from alleged phone calls
Defendants placed to Plaintiff without prior authorization.
(See generally First Amended Complaint
(“FAC”), ECF No. 21.) Plaintiff alleges that
Defendants made the phone calls with an Automatic Telephone
Dialing System, which can be verified by the “click and
pause” contained at the start of “a full and
complete recording” Plaintiff has of one such call.
(FAC 3; see also Id. at 5 (alleging that one of
Defendants' agents “admitted on the call that he
used an ATDS to initiate the dialing of the call”).)
Plaintiff further asserts that the purpose of Defendants'
calls were to “sell . . . usurious loans into
California without a California Finance Lender license or a
California Real Estate Broker license.” (Id.
at 11 (noting that Defendants sold loans at over 10% interest
in violation of California law); id. at 13
(“Defendant did, in fact, sell and continues to sell
illegal loans into California, including express and
intentional selling to Plaintiff.”).) These calls
allegedly harmed Plaintiff in various ways. (Id. at
12-14.) Based on these facts, Plaintiff identifies five
causes of action:
(1) [violation of the] Telephone Consumer Protection Act, (2)
fraud, (3) violation of Business & Professions Code 17200
for unfair business practices, (4) violation of
California's Invasion of Privacy Act at Penal Code 630,
et seq., and (5) [violation of] RICO under 18 USC §1961,
§19622 and §1964.
(See FAC 2; see also Id. at 26-27.)
April 11, 2016, Plaintiff filed the instant case in
California Superior Court (Anton Ewing v. Integrity
Capital Solutions, Inc., , 37-2016-00011562-CU-BT-CTL),
which Defendants subsequently removed to Federal Court.
(Defs. Integrity Capital Sols., Inc. and Michelle [sic]
Sharpe's Notice of Removal (“Removal Notice”)
¶ 1, ECF No. 1.) Defendants previously moved to dismiss
Plaintiff's cause of action for violation of the
Racketeering Influence and Corrupt Organizations Act
(“RICO”), (ECF No. 3), which the Court granted,
(Order Granting Defendants' Motion to Dismiss
(“First MTD Order”), (ECF No. 19)). However, the
Court granted Plaintiff leave to amend his Complaint, (ECF
No. 19), which Plaintiff did. Defendants now move to dismiss
the First Amended Complaint in its entirety. (ECF No. 22.)
Rule of Civil Procedure 12(b)(6) permits a party to raise by
motion the defense that the complaint “fail[s] to state
a claim upon which relief can be granted, ” generally
referred to as a motion to dismiss. The Court evaluates
whether a complaint states a cognizable legal theory and
sufficient facts in light of Federal Rule of Civil Procedure
8(a), which requires a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Although Rule 8 “does not require
‘detailed factual allegations, ' . . . it [does]
demand more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). In other words, “a plaintiff's obligation
to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly,
550 U.S. at 555 (citing Papasan v. Allain, 478 U.S.
265, 286 (1986)). “Nor does a complaint suffice if it
tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.' ”
Iqbal, 556 U.S. at 677 (citing Twombly, 550
U.S. at 557).
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.' ”
Id. (quoting Twombly, 550 U.S. at 570);
see also Fed. R. Civ. P. 12(b)(6). A claim is
facially plausible when the facts pled “allow the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556). That is not to
say that the claim must be probable, but there must be
“more than a sheer possibility that a defendant has
acted unlawfully.” Id. Facts “
‘merely consistent with' a defendant's
liability” fall short of a plausible entitlement to
relief. Id. (quoting Twombly, 550 U.S. at
557). Further, the Court need not accept as true “legal
conclusions” contained in the complaint. Id.
This review requires context-specific analysis involving the
Court's “judicial experience and common
sense.” Id. at 678 (citation omitted).
“[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.' ” Id. Additionally, when a
plaintiff proceeds pro se the court must
“construe the pleadings liberally and . . . afford the
p[laintiff] the benefit of any doubt.” Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
the Court will grant leave to amend unless it determines that
no modified contention “consistent with the challenged
pleading . . . [will] cure the deficiency.” DeSoto
v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th
Cir. 1992) (quoting Schriber Distrib. Co. v. Serv-Well
Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)).
move to dismiss Plaintiff's First Amended Complaint in
its entirety.(ICS MTD 1-2.) In the 1.5 pages Defendants
devote to their Motion to Dismiss, Defendants generally argue
that “the FAC is almost wholly conclusionary [sic], and
the claims by the way they are pled demonstrate they are not
tethered on facts.” (ICS MTD 1.) Defendants' sole
citations to authority are to (1) Federal Rule of Civil
Procedure 12(b)(6); (2) Federal Rule of Civil Procedure 8(a);
(3) Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007); and (4) Ashcroft v. Iqbal, 556 U.S. 662
(2009). Defendants' Analysis Section reads, in
For all the reasons set forth in this Court's February
27, 2017 order (docket # 19), the FAC should be dismissed.
Indeed, Defendants' [sic] submit the FAC is even worse ...