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Hirsch v. Hargett

United States District Court, C.D. California

June 26, 2019





         This 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 Defendants' Motion.[1]


         A. Factual Background

         Ms. 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.)

         In July 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.[2] (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 ¶ 47.)

         Through 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 Act.[3] (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.)

         B. Procedural Background

         On 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.[4] (See generally Opp'n.)


         C. Federal Rule of Civil Procedure 12(b)(1)

         Under 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 (1946).

         D. Federal Rule of Civil Procedure 12(b)(6)

         Dismissal 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).

         Whether 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).

         Pro se 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 ...

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