United States District Court, E.D. California
PETER T. HARRELL, Plaintiff,
ELIZABETH F. FERGUSON REVOCABLE LIVING TRUST, et al., Defendants.
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
Pater Harrell is proceeding in this action pro se. This
matter was referred to the undersigned in accordance with
Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Pending
before the court are plaintiff's motion to dismiss,
plaintiff's motion for a preliminary injunction, and
plaintiff's motions to strike. (ECF Nos. 34, 35, 40, and
50.) For the reasons stated below, plaintiff's motion to
dismiss is granted, defendants are granted leave to file a
second amended answer and counterclaim, and plaintiff's
motions to strike and motion for preliminary injunction are
proceeding pro se, commenced this action on December 26,
2017, by filing a complaint and motion to proceed in forma
pauperis. (ECF Nos. 1 & 2.) The complaint alleges that
defendants Darlene Little, Elizabeth E. Ferguson, and the
Elizabeth E. Ferguson Revocable Living Trust, (“the
Trust”), abandoned the property at 404 Henley Hornbrook
Road, Hornbrook, CA, (“subject property”),
“since at least August 1, 2006[.]” (Compl. (ECF
No. 1) at 2.) Plaintiff “has openly,
continuously, notoriously, uninterruptedly, and in a manner
hostile to the holders of title thereto, ” occupied the
subject property “since at least May of 2011[.]”
(Id.) “In late 2015, ” plaintiff filed a
declaration of adverse position and “paid the taxes for
that property on November 19, 2015.” (Id. at
3.) Defendants then “aided the Siskiyou County
Treasure/Tax Collector's office to wrongfully cancel
Plaintiff's tax payment o the subject property.”
(Id.) Based on these allegations the complaint
asserts state law claims for prescriptive easement, nuisance,
negligence, and the negligent infliction of emotional
distress. (Id. at 6-7.)
September 4, 2018, the previously assigned Magistrate Judge
granted plaintiff's motion to proceed in forma pauperis
and ordered service on the defendants. (ECF No. 5.)
Defendants filed an answer and counterclaim on December 3,
2018. (ECF No. 9.) On February 4, 2019, defendants filed an
amended answer and counterclaim. (ECF No. 24.)
March 13, 2019, plaintiff filed a motion to dismiss the
counterclaim pursuant to Rules 12(b)(6) and 12(f) of the
Federal Rules of Civil Procedure. (ECF No. 34.) Plaintiff
also filed a motion to strike the affirmative allegations and
defenses in the amended answer. (ECF No. 35.) On April 12,
2019, plaintiff filed a motion for a preliminary injunction.
(ECF No. 40.) On May 21, 2019, defendants filed oppositions
to plaintiff's motion to dismiss and motion to strike.
(ECF Nos. 42 & 44.) On May 30, 2019, plaintiff filed a
motion to strike portions of a declaration offered in support
of defendant's opposition. (ECF No. 50.) That same day
plaintiff filed a reply to defendants' opposition to
plaintiff's motion for preliminary injunction. (ECF No.
3, 2019, plaintiff's motion to dismiss, motions to
strike, and motion for preliminary injunction were taken
under submission. (ECF No. 53.) On June 3, 2019, plaintiff
filed replies to defendants' oppositions. (ECF Nos. 54
& 55.) On June 4, 2019, defendants filed an objection to
evidence submitted in connection with plaintiff's reply
to the motion for preliminary injunction. (ECF No. 56.)
Legal Standards Applicable to Motions to Dismiss Pursuant to
motion to dismiss a counterclaim brought under Federal Rule
of Civil Procedure 12(b)(6) is evaluated under the same
standard as a motion to dismiss a plaintiff's
complaint.” Oracle America, Inc. v. CedarCrestone,
Inc., 938 F.Supp.2d 895, 900 (N.D. Cal. 2013). The
purpose of a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure is to test the legal
sufficiency of the complaint. N. Star Int'l v. Ariz.
Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983).
“Dismissal 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. 1990). A
plaintiff is required to allege “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). “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 (2009).
determining whether a complaint states a claim on which
relief may be granted, the court accepts as true the
allegations in the complaint and construes the allegations in
the light most favorable to the plaintiff. Hishon v. King
& Spalding, 467 U.S. 69, 73 (1984); Love v.
United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In
general, pro se complaints are held to less stringent
standards than formal pleadings drafted by lawyers.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
However, the court need not assume the truth of legal
conclusions cast in the form of factual allegations.
United States ex rel. Chunie v. Ringrose, 788 F.2d
638, 643 n.2 (9th Cir. 1986).
Rule 8(a) does not require detailed factual allegations,
“it demands more than an unadorned, the
Iqbal, 556 U.S. at 678. A pleading is insufficient
if it offers mere “labels and conclusions” or
“a formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555; see
also Iqbal, 556 U.S. at 676 (“Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”). Moreover, it
is inappropriate to assume that the plaintiff “can
prove facts which it has not alleged or that the defendants
have violated the . . . laws in ways that have not been
alleged.” Associated Gen. Contractors of Cal., Inc.
v. Cal. State Council of Carpenters, 459 U.S. 519, 526
ruling on a motion to dismiss brought pursuant to Rule
12(b)(6), the court is permitted to consider material which
is properly submitted as part of the complaint, documents
that are not physically attached to the complaint if their
authenticity is not contested and the plaintiff's
complaint necessarily relies on them, and matters of public
record. Lee v. City of Los Angeles, 250 F.3d 668,
688-89 (9th Cir. 2001).
Legal Standards Applicable to Motions to Strike Pursuant to
motion to strike pursuant to Rule 12(f) allows a court to
strike “from any pleading any insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter.” Fed.R.Civ.P. 12(f). “[T]he function of a
12(f) motion to strike is to avoid the expenditure of time
and money that must arise from litigating spurious issues by
dispensing with those issues prior to trial[.]”
Whittlestone, Inc. v. Handi-Craft, Co., 618 F.3d
970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v.
Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993)), rev'd
on other grounds by Fogerty v. Fantasy, Inc., 510
U.S. 517, 114 (1994); see also Sidney-Vinstein v. A.H.
Robins Co., 697 F.2d 880, 885 (9th Cir. 1983).
motion to strike is well-taken when “it is clear that
the matter to be stricken could have no possible bearing on
the subject matter of litigation.” LeDuc v.
Kentucky Central Life Ins. Co., 814 F.Supp. 820, 830
(N.D. Cal. 1992). Impertinent allegations are those that are
not responsive or relevant to issues involved in the action
and which could not be admitted as evidence in the
litigation. Fantasy, Inc., 984 F.2d at 1527.
“Scandalous” within the meaning of Rule 12(f)
includes allegations that cast a cruelly derogatory light on
a party or other person. Talbot v. Robert Mathews
Distributing Co., 961 F.2d 654, 665 (7th Cir. 1992).
whether to grant a motion to strike applying these standards
lies within the sound discretion of the district court.
Fantasy, Inc., 984 F.2d at 1527; see also
California Dept. of Toxic Substances Control v. Alco Pacific,
Inc., 217 F.Supp.2d 1028, 1032-33 (C.D. Cal.