United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTIONS TO DISMISS PLAINTIFF'S FIRST
AMENDED COMPLAINT (Doc. Nos. 18, 24)
Anthony J. Battaglia United States District Judge
before the Court are two motions: Defendants Melissa Scott
Clark (“Melissa”) and Sour Wine Farms, LLC's
motion to dismiss filed on October 4, 2017, (Doc. No. 18),
and Defendant Roger Clark's (“Roger”) motion
to dismiss filed on October 5, 2017, (Doc. No. 24). On
October 18 and 19, 2017, Plaintiff Jennifer Van Galder
(“Plaintiff”) filed oppositions to both motions.
(Doc. Nos. 29, 30.) Having reviewed the parties'
arguments and controlling legal authority and pursuant to
Civil Local Rule 7.1.d.1, the Court finds the matters
suitable for decision on the papers and without oral
argument. For the reasons set forth below, the Court
GRANTS IN PART AND DENIES IN PART both
motions to dismiss. (Doc. Nos. 18, 24.)
following facts are taken from Plaintiff's first amended
complaint (“FAC”) and construed as true for the
limited purpose of resolving the instant motion. See
Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247 (9th Cir.
9, 2015, Roger alerted Plaintiff that he had made a deal with
a bankruptcy trustee with respect to the filing of a Chapter
7 case to force the division of their marital assets if she
did not give him $250, 000.00. (Doc. No. 16 ¶ 1.) On
July 16, 2015, Roger filed for bankruptcy. (Id.
¶ 2.) While not listed as a creditor in the bankruptcy
case or even provided formal notice, Plaintiff claims to be a
creditor of Roger. (Id.) Thereafter, on October 13,
2015, Plaintiff filed an adversary proceeding against Roger
in his bankruptcy case. (Id. ¶ 4.)
Plaintiff asserts that Defendants conspired to defraud the
bankruptcy court and the creditors of Roger, including
Plaintiff. (Id. ¶ 14.) In alleging this
deception, Plaintiff advances allegations against Roger
alone, Melissa alone, and Roger and Melissa
together.(See generally Doc. No. 16.)
Plaintiff argues that both Roger and Melissa: (1) concealed
income to pass the “means test”; (2) falsified a
post-nuptial agreement; (3) altered documents to hide
Roger's interest in real property; and (4) hid funds in
undisclosed bank and corporate accounts to conceal
documentation about their income from the bankruptcy trustee.
(Id. ¶¶ 15-17, 19-20.) As to Roger
individually, Plaintiff contends that he: (1) gave false
testimony on multiple occasions; (2) falsely claimed that he
owed debts to family, friends, and Sour Wine; and (3) waived
his right to discharge. (Id. ¶¶ 18, 21-22,
29.) In regards to Melissa, the complaint alleges that she
filed false declarations under penalty of perjury with the
bankruptcy court to facilitate the fraud and filed false
proofs of claim so that she and Roger would be paid out of
the proceeds from the sale of the estate assets.
(Id. ¶¶ 23-24.)
attests that not only was she damaged as a result of the
Defendants' fraud by being forced to purchase the
bankruptcy estate's interest in her home in La Jolla,
which was a payment of $561, 000, but also that Defendants
were unjustly enriched through the fraud by their ability to
retain all of their assets and collect $70, 420.38 from
Roger's estate. (Id. ¶¶ 25-28.)
filed her original complaint on August 11, 2017. (Doc. No.
1.) Shortly thereafter, Defendants Melissa and Sour Wine
filed separate motions to dismiss on August 29, 2017. (Doc.
Nos. 7, 8.) Defendant Roger then filed a motion to dismiss on
September 6, 2017. (Doc. No. 10.)
the Court set briefing schedules on the motions, Plaintiff
filed her FAC on September 20, 2017. (Doc. No. 16.)
Plaintiff's FAC alleges causes of action for: (1)
Violation of The Racketeer Influenced and Corrupt
Organizations Act (“RICO”)-18 U.S.C. §§
1962 (a), (d); (2) Fraud as to all Defendants; (3) Conspiracy
to Commit Fraud; and (4) Fraudulent Conveyance as to
Defendants Roger and Melissa. (See generally id.)
Due to this filing, the Court found the three motions to
dismiss filed by Defendants in August and September of 2017
moot. (Doc. Nos. 19-21.) Subsequently, Defendants filed the
instant motions, their motions to dismiss. (Doc. Nos. 18,
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a plaintiff's complaint. See Navarro
v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “[A]
court may dismiss a complaint as a matter of law for (1) lack
of a cognizable legal theory or (2) insufficient facts under
a cognizable legal claim.” SmileCare Dental Grp. v.
Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir.
1996) (citation and internal quotation marks omitted).
However, a complaint will survive a motion to dismiss if it
contains “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). In making this
determination, a court reviews the contents of the complaint,
accepting all factual allegations as true and drawing all
reasonable inferences in favor of the non-moving party.
See Cedars-Sinai Med. Ctr. v. Nat'l League of
Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007).
this deference, the reviewing court need not accept legal
conclusions as true. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). It is also improper for a court to assume
“the [plaintiff] can prove facts that [he or she] has
not alleged . . . .” Assoc. Gen. Contractors of
Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S.
519, 526 (1983). However, “[w]hen there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement to relief.” Iqbal, 556 U.S.
both motions to dismiss argue that Plaintiff's FAC should
be dismissed in its entirety. (See generally Doc. Nos.
18, 24.) Plaintiff challenges each of Defendants'
contentions. (Doc. Nos. 29, 30.) The Court will first turn to
Defendants Melissa and Sour Wine's request for judicial
notice. (Doc. No. 18-1.)
Judicial Notice of the Requested Documents is
to Federal Rule of Evidence 201, Defendants Melissa and Sour
Wine request judicial notice of the Chapter 7 Trustee's
final account and distribution report, certifications that
the estate has been fully ...