United States District Court, C.D. California
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE
action centers on the refusal of Defendants Stephen W.
Hargett, Christopher P. Hargett, John E. Hargett
(collectively, “Hargett Defendants”), and 678
Kirk, LLC (“678 Kirk”) to allow Plaintiffs Robert
Hirsch and Cindy Hirsch (collectively,
“Plaintiffs”) additional time to remove their
possessions from their apartment following their eviction.
(Third Am. Compl. (“TAC”) ¶ 47, ECF No. 35.)
Plaintiffs also assert that Hargett Defendants exerted undue
influence over Jeannine Davis-Kimball, former owner of
Plaintiffs' apartment complex and Hargett Defendants'
mother, to take control of Ms. Davis-Kimball's trust
assets and falsely and fraudulently evict Plaintiffs. (TAC
¶¶ 22, 32, 35.) Hargett Defendants and Defendant
678 Kirk (collectively, “Defendants”) move to
dismiss Plaintiffs' TAC on several grounds including
failure to state a claim and lack of subject matter
jurisdiction. (Mot. to Dismiss (“Mot.”), ECF No.
36.) For the reasons that follow, the Court GRANTS
Davis-Kimball, now deceased, was the sole owner and manager
of 678 Kirk, which owned the apartment complex where
Plaintiffs previously resided. (TAC ¶ 22.) Ms.
Davis-Kimball, together with her spouse, Warren Matthew, were
the settlor-trustees of the Matthew-Davis-Kimball Trust
(“Trust”). (TAC ¶ 16.) Ms. Davis-Kimball
amended the Trust in June 2016 to name Mr. Hirsch as
successor-trustee in lieu of Stephen Hargett. (TAC ¶
17.) The amendment provided for $300, 000 to Mr. Hirsch as
trustee and modified the terms of the Hirschs' rental
agreement. (TAC ¶¶ 19, 83.) Plaintiffs allege that
Hargett Defendants exerted undue influence over Ms.
Davis-Kimball to obtain further amendments to the Trust so
they could take control of the trust assets upon Ms.
Davis-Kimball's death in April 2017. (TAC ¶¶
22, 29, 32.)
2017, 678 Kirk commenced an unlawful detainer action against
Mr. and Ms. Hirsch in the Superior Court of the State of
California, County of Ventura. (TAC ¶ 35.) After a trial
on October 26, 2017, in which both parties were represented
by counsel, the superior court issued judgment in favor of
678 Kirk and against Mr. and Ms. Hirsch on November 15,
2017. (See TAC ¶¶ 39-40; Jones Decl.
¶¶ 2-4, Ex. B (“Eviction Judgment”).)
Defendants informed Plaintiffs they could remove their
possessions from the apartment on November 20, 2017, between
10:00 a.m. and 4:00 p.m., and that any possessions remaining
on the premises after that time would be removed to storage
the following day. (TAC ¶¶ 42, 44.) On November 20,
2017, at approximately 2:45 p.m., Mr. Hirsch informed
Defendants that Plaintiffs required more time to remove their
possessions due to his physical disability. (TAC ¶¶
44, 46.) Defendants refused the request for more time. (TAC
their TAC, Plaintiffs assert seven causes of action.
Plaintiffs allege that Defendants refused to reasonably
accommodate Mr. Hirsch's request for additional time to
remove their possessions from the apartment, in violation of
(1) the Fair Housing Amendments Act (“FHAA”); (2)
42 U.S.C. § 1983; (3) California Disabled Persons Act
(“CDPA”); and (4) California Unruh Civil Rights
(TAC ¶¶ 50-75.) Plaintiffs also allege that Hargett
Defendants exerted undue influence over Ms. Davis-Kimball to
obtain the Trust amendments and evict Plaintiffs. (See, e.g.,
TAC ¶¶ 29, 32, 35.) These allegations relate to
Plaintiffs' claims for (5) Breach of Fiduciary Trust and
Trust Fraud; (6) Breach of Contract; and (7) Elder Abuse.
(TAC ¶¶ 76-118.) Plaintiffs allege federal
question, diversity, and supplemental subject matter
jurisdiction pursuant to 42 U.S.C. §§ 1331, 1332,
and 1367. (TAC ¶¶ 11-13.)
February 26, 2018, Plaintiffs initiated this action in the
United States District Court, District of Arizona, asserting
causes of action under the American with Disabilities Act
(“ADA”), 42 U.S.C. § 1983, Breach of
Contract, Breach of Fiduciary Duty and Trust Fraud, and Elder
Abuse. (See generally Compl., ECF No. 1.) After screening
Plaintiffs' Complaint, the district court of Arizona
found that Plaintiffs failed to state a claim and dismissed
Plaintiffs' Complaint without prejudice and with leave to
amend. (Order 1, 3, ECF No. 7.) Plaintiffs subsequently
amended their complaint twice, asserting the same causes of
action. (See Am. Compl., ECF No. 8; Second Am. Compl.
(“SAC”), ECF No. 9.) Defendants moved to dismiss
Plaintiffs' SAC or transfer the action to this Court.
(Mot. to Dismiss or Transfer, ECF No. 14.) The district court
of Arizona granted the transfer but did not reach the merits
of Defendants' motion. (Order, ECF No. 20.) Following the
transfer to this Court, Defendants again moved to dismiss
Plaintiffs' SAC. (Mot. to Dismiss SAC, ECF No. 32.)
However, the Court, sua sponte, found that Plaintiffs failed
to sufficiently allege federal jurisdiction and dismissed the
SAC with leave to amend. (Order Dismissing SAC 1-2, ECF No.
34.) Accordingly, the Court denied Defendants' motion as
moot. Defendants now move to dismiss Plaintiffs'
subsequently-filed TAC on several grounds, including that
Plaintiffs fail to state a claim and the Court lacks subject
matter jurisdiction. (Mot. 2-3.) Plaintiffs
oppose. (See generally Opp'n.)
Federal Rule of Civil Procedure 12(b)(1)
Rule 12(b)(1) of the Federal Rules of Civil Procedure, a
defendant may move to dismiss a complaint for lack of subject
matter jurisdiction. Fed.R.Civ.P. 12(b)(1). “A Rule
12(b)(1) jurisdictional attack may be facial or
factual.” Safe Air for Everyone v. Meyer, 373
F.3d 1035, 1039 (9th Cir. 2004) (citing White v.
Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). A facial
attack is based on the challenger's assertion that
allegations in the complaint are “insufficient on their
face to invoke federal jurisdiction.” Id. A
factual attack disputes the validity of allegations that, if
true, would invoke federal jurisdiction. Id. In
resolving a factual attack, the court “need not presume
the truthfulness of the plaintiffs' allegations.”
White, 227 F.3d at 1242. Once a defendant moves to dismiss
for lack of subject matter jurisdiction, the plaintiff bears
the burden of establishing the court's subject matter
jurisdiction. See Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994); Chandler v. State
Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir.
2010). To sustain federal jurisdiction, a complaint must
allege a claim under the Constitution or relevant federal
statute and must not be made solely to obtain federal
jurisdiction. Bell v. Hood, 327 U.S. 678, 682-83
Federal Rule of Civil Procedure 12(b)(6)
under Rule 12(b)(6) “can be based on the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory.”
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1988). “To survive a motion to
dismiss . . . under Rule 12(b)(6), a complaint generally must
satisfy only the minimal notice pleading requirements of Rule
8(a)(2)”-a short and plain statement of the claim.
Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003);
see also Fed.R.Civ.P. 8(a)(2). The “[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 “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)
(internal quotation marks omitted). “A pleading that
offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of action
will not do.'” Id. (citing Twombly, 550
U.S. at 555).
a complaint satisfies the plausibility standard is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 679. A court is generally limited to the
pleadings and must construe “[a]ll factual allegations
set forth in the complaint . . . as true and . . . in the
light most favorable to [the plaintiff].” Lee v.
City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
However, a court need not blindly accept conclusory
allegations, unwarranted deductions of fact, and unreasonable
inferences. Sprewell v. Golden State Warriors, 266
F.3d 979, 988 (9th Cir. 2001). Accusations of fraud require a
plaintiff to plead with particularity the circumstances
constituting fraud. See Fed.R.Civ.P. 9(b). Rule 9(b) requires
that the complaint identify the “who, what, when,
where, and how” of the fraudulent activity, “as
well as what is false or misleading about” it, and why
it is false. United States ex rel. Cafasso v. Gen.
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir.
2011) (internal quotation marks omitted).
pleadings are to be construed liberally, but a plaintiff must
still present factual allegations sufficient to state a
plausible claim for relief. See Hebbe v. Pliler, 627
F.3d 338, 341-42 (9th Cir. 2010). A court may not
“supply essential elements of the claim that were not
initially pled.” Pena v. Gardner, 976 F.2d
469, 471 (9th Cir. 1992) (“Vague and conclusory
allegations of official participation in civil rights
violations are not sufficient to withstand a motion to