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Harrell v. Elizabeth F. Ferguson Revocable Living Trust

United States District Court, E.D. California

December 4, 2019

PETER T. HARRELL, Plaintiff,



         Plaintiff 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.[1] (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 denied.


         Plaintiff, 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.[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.)

         On September 4, 2018, the previously assigned Magistrate Judge granted plaintiff's motion to proceed in forma pauperis and ordered service on the defendants.[3] (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.)

         On 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. 51.)

         On June 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.)


         I. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(6)

         “A 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).

         In 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).

         While Rule 8(a) does not require detailed factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” 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 (1983).

         In 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).

         II. Legal Standards Applicable to Motions to Strike Pursuant to Rule 12(f)

         A 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).

         A 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).

         Ultimately, 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. 2002).[4]


         I. Plaintiff's ...

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