United States District Court, S.D. California
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS AND
DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND
[DOC. NOS. 16, 17]
Cathy Ann Bencivengo United States District Judge.
the Court are Defendant Vasquez Marshall Architects' and
Defendant BDS Engineering, Inc.'s (collectively
“Defendants”) motions to dismiss Plaintiff's
complaint based on identical grounds. [Doc. Nos. 16, 17.]
Plaintiff filed a consolidated opposition to both motions
[Doc. No. 19], and Defendants replied. [Doc. Nos. 20, 21.]
The Court deems them suitable for determination on the papers
submitted and without oral argument. See S.D. Cal.
CivLR 7.1(d)(1). For the reasons set forth below, the Court
grants Defendants' motions to dismiss with leave to
Great American Insurance Company (“GAIC”) filed a
complaint against Defendants Vasquez Marshall Architects
(“VMA”) and BDS Engineering, Inc.
(“BDS”) on June 21, 2019. [Doc. No. 1.] The
complaint alleges five claims for: (1) breach of contract;
(2) breach of express warranty; (3) breach of professional
duty/negligence/gross negligence; (4) negligent
misrepresentation; and (5) breach of implied warranty.
[Id. at ¶¶ 46-71.
alleges that on September 30, 2014, non-party K.O.O.
Construction, Inc. entered into a design/build contract with
the Navy for the Close Quarters Dynamic Shooting Facility
Project at Camp Michael Monsoor in Pine Valley, California.
[Id. at ¶ 9.] K.O.O. Construction then entered
into a subcontract for the architectural and civil
engineering portion of the work with Defendant VMA and
Defendant VMA hired Defendant BDS. [Id. at
¶¶ 14-19.] Essentially, the complaint alleges that
Defendants held themselves out as capable of meeting the
expectations of the contract which did not allow for any
significant off-site borrow material to be brought on-site or
on-site material to be taken off-site (a “balanced
site”) but failed to meet said expectations.
[Id. at ¶¶ 14-71.] According to the
complaint, K.O.O. Construction assigned to Plaintiff all of
the claims that are the subject matter of this complaint and
Plaintiff paid for the damages suffered as a result of
Defendants' breach. [Id. at ¶ 3.]
REQUEST FOR JUDICIAL NOTICE
Rule of Evidence 201 provides that “[t]he court may
judicially notice a fact that is not subject to reasonable
dispute because it . . . is generally known within the trial
court's territorial jurisdiction; or . . . can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed.R.Evid. 201(b).
“[U]nder Fed.R.Evid. 201, a court may take judicial
notice of ‘matters of public record.'”
Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th
Cir. 2001) (quoting Mack v. South Bay Beer Distrib.,
798 F.2d 1279, 1282 (9th Cir. 1986)).
ask the Court to take judicial notice of K.O.O.
Construction's certificate of status and contractor's
license, as well as a California Court of Appeals opinion.
[Doc. Nos. 16-2, 17-2.] Plaintiff has not opposed and
therefore Defendants' requests for judicial notice are
survive a motion to dismiss under Rule 12(b)(6), “a
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) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Thus, 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 F.3d 1025, 1031 (9th Cir.
2008). On the other hand, the Court is “not bound to
accept as true a legal conclusion couched as a factual
allegation.” Iqbal, 556 U.S. at 678; see
also Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th
Cir. 2001) (“Conclusory allegations of law are
insufficient to defeat a motion to dismiss”). Nor is
the Court “required to accept as true allegations that
contradict exhibits attached to the Complaint or . . .
allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences.”
Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d
992, 998 (9th Cir. 2010).
resolving a motion to dismiss for failure to state a claim,
courts may not generally consider materials outside the
pleadings. See Schneider v. Cal. Dep't of
Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998);
Jacobellis v. State Farm Fire & Cas. Co., 120
F.3d 171, 172 (9th Cir. 1997); Allarcom Pay Television
Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th
Cir. 1995). “The focus of any Rule12(b)(6) dismissal .
. . is the complaint.” Schneider, 151 F.3d at
1197 n.1. “A court may, however, consider certain
materials-documents attached to the complaint, documents
incorporated by reference in the complaint, or matters of
judicial notice-without converting the motion to dismiss into
a motion for summary judgment.” United States v.
Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
when dismissing a complaint for failure to state a claim, the
court should deny opportunity to amend only if amendment
would be futile. See Albrecht v. Lund, 845 F.2d 193,
195 (9th Cir. 1988) (dismissal without leave to amend is
appropriate if amendment “could not possibly cure the
deficiency”), amended, 856 F.2d 111 (9th Cir. 1988).
contend: (1) Plaintiff lacks standing because the complaint
failed to demonstrate a valid and effective assignment; (2)
Plaintiff lacks capacity to sue because K.O.O. Construction
is a suspended corporation; and (3) the complaint fails to
demonstrate sufficient grounds ...