United States District Court, S.D. California
JONATHON YOUNG, Individually and On Behalf of All Others Similarly Situated, Plaintiff,
GREYSTAR REAL ESTATE PARTNERS, LLC d/b/a DYLAN POINT LOMA APARTMENTS, Defendant.
ORDER: (1) GRANTING DEFENDANT'S MOTION TO DISMISS
COUNTS ONE AND THREE OF PLAINTIFF'S FIRST AMENDED
COMPLAINT; AND (2) DENYING DEFENDANT'S MOTION TO STRIKE
[DOC. 16, 17]
ROGER T. BENITEZ, UNITED STATES DISTRICT JUDGE
Jonathon Young ("Young" or "Plaintiff) on
behalf of himself and all others similarly situated, brings
the instant action against Defendant Greystar Real Estate
Partners, LLC ("Greystar" or
"Defendant"). (See Doc. No. 14.) The
gravamen of Plaintiffs First Amended Complaint
("FAC") is Defendant harvested a personal
photograph of Plaintiff from Plaintiffs personal Instagram
page and subsequently reposted it on Defendant's
Instagram and Facebook pages without the Plaintiffs consent.
See Id. ¶¶ 15 - 46. Defendant moves under
Federal Rule of Civil Procedure 12(b)(6) to dismiss counts
one and three of Plaintiff Jonathon Young's
("Young" or "Plaintiff) First Amended Class
Action Complaint ("FAC"), or in the alternative,
under 12(f), to strike portions of the FAC. (Doc. Nos. 16,
17.) For the following reasons, Defendant's Motion to
Dismiss Counts One and Three is GRANTED and
the Motion to Strike is DENIED.
13, 2018, Plaintiff posted a personal photograph on his
personal Instagram page which he claims depicted his entire
frame. (See Doc. No. 14 ¶¶ 15, 16.) The
Defendant allegedly harvested that photograph from Plaintiffs
Instagram page and subsequently posted it with a personalized
caption to an apartment complex's Instagram and Facebook
webpages on June 26, 2018, to "showcase Defendant's
ideal geographical location as well as Defendant's
dog-friendly atmosphere." Id. ¶ 27. Plaintiff
contends that Defendant does business under the name
"Dylan Point Loma Apartments" and currently
maintains Instagram and Facebook pages under the names
"dylanpointlomaapartments" and "Dylan Point
Loma Apartments - Point Loma, CA." Id.
¶¶ 20, 26. Plaintiff further contends the Defendant
harvested and reposted his photograph without his knowledge
or consent causing him severe emotional harm, mental anguish,
and a significant privacy violation. Id. ¶¶
REQUEST FOR JUDICIAL NOTICE
Court generally may not look beyond the four corners of a
complaint in ruling on a Rule 12(b)(6) motion, with the
exception of documents incorporated into the complaint by
reference, and any relevant matters subject to judicial
notice. See Swartz v. KPMG LLP, 476 F.3d 756, 763
(9th Cir. 2007); Lee v. City of L.A, 250 F.3d 668,
688-89 (9th Cir. 2001). Under the doctrine of incorporation
by reference, the Court may consider on a Rule 12(b)(6)
motion not only documents attached to the complaint, but also
i documents whose contents are alleged therein, provided the
complaint "necessarily relies" on the documents or
contents thereof, the document's authenticity is
uncontested, and the document's relevance is uncontested.
Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038
(9th Cir. 2010); accord Lee, 250 F.3d at 688-89. The
purpose of this rule is to "prevent plaintiffs from
surviving a Rule 12(b)(6) motion by deliberately omitting
documents upon which their claims are based."
Swartz, 476 F.3d at 763 (alterations and internal
quotation marks omitted).
Court also may take judicial notice of matters that are
either (1) generally known within the trial court's
territorial jurisdiction or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned. Fed.R.Evid. 201(b). Proper subjects
of judicial notice when ruling on a motion to dismiss
j include legislative history reports,
see Anderson v. Holder, 673 F.3d 1089, 1094 n. 1
(9th Cir. 2012); court documents already in the public record
and documents filed in other courts, see Holder v.
Holder, 305 F.3d 854, 866 (9th Cir. 2002); and publicly
accessible websites, see Daniels-Hall v. Nat 7
Educ. Ass % 629 F.3d 992, 998-99 (9th Cir. 2010).
support of their Motion to Dismiss, Defendant requests
judicial notice of 'Tnstagram and Facebook posts attached
as Exhibits 'A' and 'B' to the Declaration of
Lily Zimmel in Support of Defendant's Motion to Dismiss
Plaintiffs First Amended Complaint." (Doc. No. 16-2 at
2.) Plaintiff did not file any opposition to the
Defendant's request for judicial notice. Moreover,
"the complaint specifically describes the posts (and
photograph) by reference to a social media caption
('Welcome to doggy heaven ...' and hashtags
(#LiveDylan ...'". Id. Accordingly, the
Court GRANTS Defendant's request for judicial notice of
Exhibits "A" and "B" to the Declaration
of Lily Zimmel.
Motion to Dismiss
moves to dismiss count "one" and
"three" of the FAC under Federal Rule of Civil
Procedure 12(b)(6) because (1) the Plaintiff is not readily
identifiable in the photograph for purposes of the statutory
right of publicity claim; (2) the Plaintiff failed to
plausibly allege statutory standing necessary to pursue a UCL
claim; (3) the Plaintiff failed to state any claim for
injunctive relief or restitution, the only two remedies
available under the UCL; and (4) the Plaintiff does not and
cannot allege that he actually relied on any purported
misrepresentation under the UCL's fraudulent prong. (Doc.
No. 16-1 at 1-2.)
8(a)(2) of the Federal Rules of Civil Procedure requires a
complaint to include "a short and plain statement of the
claim showing that the pleader is entitled to relief." A
complaint that fails to meet this standard may be dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(6). The
Supreme Court has held that Rule 8(a) requires a plaintiff to
plead "enough facts to state a claim to relief that is
plausible on its face." Bell Atl Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
"The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility
that a defendant has acted unlawfully." Id.
(internal quotation marks omitted). For purposes of ruling on
a Rule 12(b)(6) motion, the Court "accept[s] factual
allegations in the complaint as true and construe[s] the
pleadings in the light most favorable to the nonmoving
party." Manzarek v. St. Paul Fire & Marine Ins.
Co., 519 i F.3d 1025, 1031 (9th Cir. 2008).
Court, however, need not accept as true allegations
contradicted by judicially noticeable facts, see Shwarz
v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and
it "may look beyond the plaintiffs complaint to matters
of public record" without converting the Rule 12(b)(6)
motion into a motion for summary judgment, Shaw v.
Hahn, 56 F.3d 1128, 1129 n. 1 (9th Cir. 1995). Nor must
the Court "assume the truth of legal conclusions merely
because they are cast in the form of factual
allegations." Foyer v. Vaughn, 649 F.3d 1061,
1064 (9th Cir. 2011) (per curiam) (internal quotation marks
omitted). Mere "conclusory allegations of law and
unwarranted inferences are insufficient to defeat a motion to
dismiss." Adams v. Johnson, 355 F.3d 1179, 1183
(9th Cir. 2004).
Court must then determine whether, based on the allegations
that remain and all reasonable inferences that may be drawn
therefrom, the Complaint alleges a plausible claim for
relief. See Iqbal, 556 U.S. at 679; U.S. ex rel.
Cafasso v. Gen. Dynamics C4 Sys., Inc.,637 F.3d 1047,
1054 (9th Cir. 2011). "Determining whether a complaint
states a plausible claim for relief is 'a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.'"
Ebner v. Fresh, Inc., No. 13-56644, 2016 WL 5389307,
at *2 (9th Cir. Sept. 27, 2016) (as amended) (quoting
Iqbal, 556 U.S. at 679). Where the facts as pleaded
in the Complaint indicate that there are two alternative
explanations, only one of which would result in liability,
"plaintiffs cannot offer allegations that are merely
consistent with their favored explanation but are also
consistent with the alternative explanation as true, in ...