finding 3 leave to amend need not be granted if amendment would be futile
How later courts described this case
- finding 3 leave to amend need not be granted if amendment would be futile
Written by the judges who cited it.
The opinion
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5 UNITED STATES DISTRICT COURT
6 SOUTHERN DISTRICT OF CALIFORNIA
7
8 BRIAN MARTINS, Case No.: 18-CV-1731-AJB-LL
9 Plaintiff,
ORDER:
10 v.
(1) GRANTING DEFENDANTS NEW
11 NORTHWEST DEVELOPMENT
WEST INVESTMENT GROUP, INC.,
COMPANY, a California corporation
12 GREGORY M. BROWN, SR.,
d/b/a NEW WEST INVESTMENT
GREGORY M. BROWN, JR., AND
13 GROUP, INC., a California corporation,
ROBERT HOLLAND’S MOTION TO
et al.,
14 DISMISS FIRST AMENDED
Defendants. COMPLAINT;
15
16 (2) GRANTING DEFENDANTS
BOBBI PEARSON AND OAK TREE
17
ESCROW’S MOTION TO DISMISS
18 FIRST AMENDED COMPLAINT;
19
(3) GRANTING DEFENDANTS
20 GARY HALBERT, PEDRO ORSO-
DELGADO, AND JEFF TAMARES’
21
MOTION TO DISMISS
22 PLAINTIFF’S FIRST AMENDED
COMPLAINT; AND
23
24 (4) GRANTING DEFENDANT
CHICAGO TITLE COMPANY’S
25
MOTION TO DISMISS
26 PLAINTIFF’S FIRST AMENDED
COMPLAINT
27
(Doc. Nos. 19, 22, 24, 69)
28
1 Presently before the Court are Defendants New West Investment Group, Inc.,
2 Gregory Brown, Sr., Gregory Brown, Jr., and Robert Holland’s motion to dismiss first
3 amended complaint, (Doc. No. 19), Defendants Bobbi Pearson and Oak Tree Escrow’s
4 motion to dismiss first amended complaint, (Doc. No. 22), Defendants Gary Halbert, Pedro
5 Orso-Delgado, and Jeff Tamares’ motion to dismiss Plaintiff’s first amended complaint,
6 (Doc. No. 24), and Defendant Chicago Title Company’s motion to dismiss Plaintiff’s first
7 amended complaint, (Doc. No. 69). Plaintiff filed oppositions to each motion to dismiss,
8 (Doc. Nos. 87, 88, 89, 90), and Defendants each filed a reply, (Doc. Nos. 92, 93, 94, 95).
9 For the reasons set forth below, the Court GRANTS each of Defendants’ motions to
10 dismiss.
11 BACKGROUND
12 The following facts are taken from Plaintiff’s complaint and construed as true for
13 the limited purpose of resolving this motion. See Brown v. Elec. Arts, Inc., 724 F.3d 1235,
14 1247 (9th Cir. 2013).
15 In 1998, Plaintiff was hired to design and supervise a construction project titled the
16 El Nopal Estates II project. (Doc. No. 13 ¶¶ 40–45.) Plaintiff created and designed the
17 project plans, which included a tentative map, development plan, and specific technical
18 drawings. (Id. ¶ 45.) Plaintiff copyrighted these plans. (Id. ¶ 46.) In 2000, the City of Santee
19 approved the plans and construction began thereafter. (Id. ¶¶ 49, 50, 52.) Plaintiff
20 supervised the construction until 2007 when the owner/developer defaulted on the project.
21 (Id. ¶¶ 53–54.)
22 Between 2007 and 2009, Defendants Holland and Gregory Brown, Sr. made contact
23 with both the landowner and Defendant Josephson to express interest in buying the
24 property. (Id. ¶¶ 63–78.) Around late February 2008, Defendant Holland entered into a
25 Purchase and Sale Agreement for the property with the landowner. (Id.) The contract
26 allegedly provided Oak Tree Escrow as the escrow company for the sale. (Id. ¶¶ 71–72.)
27 However, it is also alleged that Chicago Title was the escrow company of record at all
28 times relevant and was not alleged in the alternative. (Id. ¶ 12.)
1 It is alleged that another defendant foreclosed on this same property and the property
2 was subsequently sold and conveyed. (Id. ¶¶ 72, 75, 76.) It was then ultimately conveyed
3 to Defendant Gregory Brown, Jr. around January 2010. (Id.)
4 “Between March 2009 and January 2010, defendants Josephson, Knohl, OTE …
5 acted together in the ‘instrument washing’ of Defective Instruments for purposes including
6 title legitimacy.” (Id. ¶ 87.) Plaintiff also alleges that Defendant Cal-Western
7 Reconveyance appears to have recorded multiple corrective deeds with respect to the sale
8 of the property. (Id. ¶¶ 76–79, 88–89.)
9 In 2010, Oak Tree Escrow received two Quitclaim Deeds for purposes of obtaining
10 title insurance and recordation of a sale to Defendant Gregory Brown, Sr. (Id. ¶ 90.) The
11 City of Santee approved plans for the project by new owners/developers that allegedly used
12 parts of Plaintiff’s design plans without his permission, a new subdivision improvement
13 agreement between the City of Santee and the new owners/developers was approved in
14 2014, and construction began again in 2015. (Id. ¶¶ 1, 93–102, 117–120, 134–147.)
15 Plaintiff then filed this action in late July of 2018. (See generally id.) Plaintiff alleges
16 the following claims: causes of action I and II: copyright infringement and contributory
17 copyright infringement; causes of action III-V: three separate restatements, all for inverse
18 condemnation; cause of action VI: failure to prevent interference with civil rights; causes
19 of action VII-IX: contract related claims (equitable estoppel/breach of contract, bad faith,
20 breach of implied covenant of good faith and fair dealing); cause of action X: negligent
21 misrepresentation by municipal defendants; and cause of action XI: unjust enrichment. (See
22 generally id.)
23 LEGAL STANDARD
24 A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the
25 complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain
26 “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .”
27 Fed. R. Civ. P. 8(a)(2). Plaintiffs must also plead, however, “enough facts to state a claim
28 to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
1 The plausibility standard thus demands more than a formulaic recitation of the elements of
2 a cause of action or naked assertions devoid of further factual enhancement. Ashcroft v.
3 Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint “must contain sufficient allegations
4 of underlying facts to give fair notice and to enable the opposing party to defend itself
5 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
6 In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the
7 truth of all factual allegations and must construe them in the light most favorable to the
8 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). The
9 court need not take legal conclusions as true “merely because they are cast in the form of
10 factual allegations.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (quoting
11 W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Similarly, “conclusory
12 allegations of law and unwarranted inferences are not sufficient to defeat a motion to
13 dismiss.” Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998).
14 Where dismissal is appropriate, a court should grant leave to amend, unless the
15 plaintiff could not possibly cure the defects in the pleading. Knappenberger v. City of
16 Phoenix, 566 F.3d 936, 942 (9th Cir. 2009).
17 DISCUSSION
18 Given the number of claims raised by Plaintiff and that there are four separate
19 motions to dismiss, the Court will address the arguments pertaining to each cause of action
20 rather than address each motion to dismiss. However, it is worth noting that Plaintiff did
21 not substantively address any of the arguments made in the motions to dismiss in his replies
22 to each motion to dismiss. This alone is grounds for dismissal. See Salois v. Medifast, Inc.,
23 No. 17CV1810-GPC (NLS), 2018 WL 1083466, at *6 (S.D. Cal. Feb. 28, 2018).
24 A. Requests for Judicial Notice
25 Federal Rule of Evidence 201 states that a “court may judicially notice a fact that is
26 not subject to reasonable dispute because it: (1) is generally known within the trial court’s
27 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose
28 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).
1 i. Defendants New West Investment Group, Gregory Brown, Sr., Gregory
2 Brown, Jr., and Robert Holland’s Request for Judicial Notice
3 Defendants New West Investment Group, Gregory Brown, Sr., Gregory Brown, Jr.,
4 and Robert Holland’s request judicial notice of the City of Santee Final Map 15437. (See
5 generally Doc. No. 19-2.) The court may take judicial notice of facts that can be accurately
6 and readily determined from sources whose accuracy cannot be reasonably questioned.
7 Fed. R. Evid. 201(b); see also 2150 Sigourney Jossiah-Francis Lee Association on Behalf
8 of Pinnock v. Resort Watersports, Inc., No. 07-CV-207-H (CAB), 2007 WL 9776667, at
9 *2 (S.D. Cal. June 6, 2007). Accordingly, the Court GRANTS Defendants New West
10 Investment Group, Gregory Brown, Sr., Gregory Brown, Jr. and Robert Holland’s request
11 for judicial notice.
12 ii. Defendants Oaktree Escrow and Bobbie Pearson’s Request for Judicial
13 Notice
14 Defendants Oaktree Escrow and Bobbie Pearson also request judicial notice of the
15 City of Santee Final Map 15437. (See generally Doc. No. 22-2.) The court may take judicial
16 notice of facts that can be accurately and readily determined from sources whose accuracy
17 cannot be reasonably questioned. Fed. R. Evid. 201(b); see also 2150 Sigourney Jossiah-
18 Francis Lee Association on Behalf of Pinnock, 2007 WL 9776667, at *2. Accordingly, the
19 Court GRANTS Defendants Oaktree Escrow and Bobbie Pearson’s request for judicial
20 notice.
21 iii. Defendants Gary Halbert, Pedro Orso-Delgado, and Jeff Tamares’ Request
22 for Judicial Notice
23 Defendants Gary Halbert, Pedro Orso-Delgado and Jeff Tamares request the Court
24 take judicial notice of the claims presented by Plaintiff to the City of Santee and rejection
25 the claim. (See generally Doc. No. 24-2.) The Court GRANTS Defendants Halbert, Orso-
26 Delgado and Tamares request. See Elliott v. Amador Cty. Unified Sch. Dist., No. 12-cv-
27 117-MCE-DAD, 2012 WL 5013288, at *7 (E.D. Cal. Oct. 17, 2012) (“Whether or not a
28 Tort Claim has been presented to a public entity is subject to judicial notice.”); Navarro v.
1 City of Alameda, No. 14-cv-1954-JD, 2014 WL 4744184, at *2 (N.D. Cal. Sept. 22, 2014)
2 (the court may take judicial notice of California government-claim documents); see also
3 Davis v. Zimmerman, No. 17-cv-1230-BAS-NLS, 2018 WL 1806101, at *6 (S.D. Cal. Apr.
4 17, 2018) (taking judicial notice of claim and rejection).
5 iv. Defendant Chicago Title Company’s Request for Judicial Notice
6 Defendant Chicago Title Company requests judicial notice of the following
7 documents: (1) Quitclaim Deed recorded on January 22, 2010, as Document No. 2010-
8 0032991 in the Official Records, San Diego County Recorder’s Office and (2) Grant Deed
9 recorded on January 22, 2010, as Document No. 2010-0032992, in the Official Records,
10 San Diego County Recorder’s Office. (See generally Doc. No. 69-2.) Courts may take
11 judicial notice of documents recorded in the county recorder’s offices and documents filed
12 in the courts. See Grant v. Aurora Loan Services, Inc., 736 F. Supp. 2d 1257, 1263 (C.D.
13 Cal. 2010); Velazquez v. GMAC Mortg. Corp., 605 F. Supp. 2d 1049, 1057 (C.D. Cal.
14 2008); Hayes v. United States, 461 F. Supp. 1168, 1174 (C.D. Cal. 1978). Accordingly, the
15 Court GRANTS Defendant Chicago Title Company’s request for judicial notice.
16 B. Failure to Join an Indispensable Party
17 Defendants contend that Plaintiff failed to join the City of Santee. Plaintiff alleges
18 that the City of Santee is a co-conspirator in his complaint. However, Plaintiff failed to join
19 the City of Santee to the action. The Court cannot accord complete relief in this action
20 without the City of Santee. See Applied Equipment Corp. v. Liton Saudi Arabia Ltd., 7 Cal.
21 4th 503, 510–11 (1994). Failure to join an indispensable party under Federal Rule of Civil
22 Procedure 19 is grounds for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(7).
23 Thus, this alone is a basis for dismissal of the entire complaint.
24 C. Causes of Action I and II
25 Plaintiff’s first two causes of action are for copyright infringement and contributory
26 copyright infringement. These are both barred by a three-year statute of limitations. 17
27 U.S.C. § 507(b). “A cause of action for copyright infringement accrues when one has
28 knowledge of a violation or is chargeable with such knowledge.” Roley v. New World
1 Pictures, Ltd., 19 F.3d 479, 481 (9th Cir. 1994). Here, the Quitclaim Deed and the Grant
2 Deed were recorded in 2010. (See generally Doc. No. 69-2.) Plaintiff acknowledged in his
3 first amended complaint that he was aware of the foreclosure proceedings, the NOD and
4 NOS-2, the trustee’s deed upon sale, Defendant Josephson’s ownership in the property,
5 and NWIG’s subsequent ownership of the property. (See generally Doc. No. 13.)
6 Accordingly, Plaintiff is “charged” with knowing about the recorded Quitclaim Deed and
7 Grant Deed in 2010. Further, Plaintiff’s allegations against Defendants Oak Tree Escrow,
8 Bobbi Pearson, New West Investment, Gregory Brown, Sr., Gregory Brown, Jr., and
9 Robert J. Holland date back to January 2010. Plaintiff’s complaint was filed in July of
10 2018. Accordingly, the statute of limitations bars Plaintiff’s first two causes of action.
11 D. Cause of Action III
12 Plaintiff’s third cause of action for conspiracy fails as a matter of law. “Since liability
13 for civil conspiracy depends on performance of some underlying tortious act, the
14 conspiracy is not independently actionable; rather, it is a means for establishing vicarious
15 liability for the underlying act.” Beck v. Prupis, 529 U.S. 494, 501–03 (2000). As
16 conspiracy is not a separate cause of action, this claim fails as a matter of law.
17 Further, this claim arises under 42 U.S.C. Section 1985(3). Plaintiff’s claim under
18 section 1985 is governed by California’s two-year limitation for personal injury. California
19 Coal. for Families & Children, Lexevia, PC v. San Diego Cty. Bar Ass’n, No. 13-cv-1944-
20 CAB (BLM), 2013 WL 12184146, at *5 (S.D. Cal. Dec. 23, 2013). This claim is based on
21 various events that occurred between 2008 and 2014. Further, even if he discovered these
22 facts in February 2016, this claim would still be time barred. Accordingly, this claim is
23 time barred because his complaint was filed in July 2018.
24 E. Causes of Action IV and V
25 These two claims are under the Fifth Amendment’s “Taking Clause,” which are
26 claims under 42 U.S.C. Section 1983. Thus, the applicable statute of limitations period is
27 two-years. Bell v. California Dep’t of Corr. & Rehab., No. 14-cv-1397-BEN-PCL, 2016
28 WL 8736865, at *3 (S.D. Cal. Mar. 29, 2016), report and recommendation adopted, No.
1 14-cv-1397-BEN-PCL, 2016 WL 8737572 (S.D. Cal. Apr. 29, 2016), aff’d sub nom. Bell
2 v. Glynn, 696 F. App’x 249 (9th Cir. 2017). As explained above, these claims are time
3 barred as they are based on events that occurred between 2008 and 2014.
4 Furthermore, Plaintiff’s causes of action III-V allege inverse condemnation. “The
5 basic issues in an adverse condemnation case are (1) whether private property was taken
6 or damaged; (2) whether the taking or damaging was for a public use; and (3) the amount
7 of just compensation.” Miller and Starr California Real Estate § 23:1. Basis for inverse
8 condemnation, 7 Cal. Real Est. § 23:1 (4th ed.). Generally, the plaintiff must show (1)
9 ownership of a valuable property interest, (2) taking/damaging of that interest for a public
10 project, and (3) causation. See CEB Condemnation Practice in California at 808–822 (3d
11 Ed., Sept. 2011 Update). Here, Plaintiff has failed to allege two key aspects. First, Plaintiff
12 has not alleged that he had any interest in the property. Second, Plaintiff has failed to allege
13 how this “taking” was for a public use. Accordingly, causes of action III-V fail on this basis
14 as well.
15 F. Cause of Action VI
16 It is unclear whether Plaintiff alleges this cause of action under 42 U.S.C. § 1983,
17 42 U.S.C. § 1985, or 42 U.S.C. § 1986. However, regardless of which section Plaintiff is
18 alleging, the statute of limitations bar this claim. As explained above under 42 U.S.C. §§
19 1983, 1985, the statute of limitations is two-years. Under 42 U.S.C. § 1986, the statute of
20 limitations is one-year. 42 U.S.C. § 1986. Accordingly, as explained above, this claim is
21 based on events that occurred between 2008 and 2014. Thus, this claim is barred based on
22 the statute of limitations.
23 G. Cause of Action VII
24 Actions for breach of a written contract are subject to a four-year limitations period,
25 and equitable actions such as equitable estoppel are subject to a three-year limitations
26 period. See Cal. Civ. Proc. § 337(1); § 508 Action on Written Contract., 3 Witkin, Cal.
27 Proc. 5th Actions § 508 (2020); see also Cal. Civ. Proc. § 343; § 677 Action on Written
28 Contract., 3 Witkin, Cal. Proc. 5th Actions § 677 (2020). Against Defendants Oak Tree,
1 Bobbi Pearson, New West Investment, Gregory Brown, Sr., Gregory Brown, Jr., and
2 Robert J. Holland, the latest charging allegations relate to actions taken in 2010.
3 Accordingly, this claim is time barred against these Defendants.
4 Further, Defendants Orso-Delgado, Tamares, and Halbert were not parties to the
5 contract. It is also unclear if Plaintiff, himself, was a party to the contract. Thus, this cause
6 of action fails against Defendants Orso-Delgado, Tamares and Halbert.
7 H. Causes of Action VIII and IX
8 The statute of limitations for bad faith and breach of implied covenant of good faith
9 and fair dealing is four years. Cal. Civ. Proc. §§ 337(1), 343. Against Defendants Oak Tree,
10 Bobbi Pearson, New West Investment, Gregory Brown, Sr., Gregory Brown, Jr., and
11 Robert J. Holland, the latest charging allegations relate to actions taken in 2010.
12 Accordingly, these claims are time barred as to these Defendants.
13 As to Defendants Orso-Delgado, Tamares, and Halbert, under California law,
14 conditions precedent to maintaining an action for damages against a government entity or
15 a government entity employee are: (1) the timely presentation of a pre-lawsuit claim; and
16 (2) the government entity’s actual rejection of the claim or rejection by operation of law.
17 DiCampli-Mintz v. Cty. of Santa Clara, 55 Cal. 4th 983, 990 (2012); Williams v. Horvath,
18 16 Cal. 3d 834, 838 (1976); Shelley v. Cty. of San Joaquin, 954 F. Supp. 2d 999, 1009 (E.D.
19 Cal. 2013); Cal. Govt. Code, §§ 910, 912.4, 915, 945.4. Once the government entity rejects
20 the claim, a plaintiff has six months from rejection to commence a lawsuit against the
21 government entity or government entity employee. Cal. Govt. Code § 945.6(a)(1); Julian
22 v. City of San Diego, 183 Cal. App. 3d 169, 175 (1986). “The deadline for filing a lawsuit
23 against a public entity, as set out in the government claims statute, is a true statute of
24 limitations defining the time in which, after a claim presented to the government has been
25 rejected or deemed rejected, the plaintiff must file a complaint alleging a cause of action
26 based on the facts set out in the denied claim.” Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th
27 201, 209 (2007). Plaintiff filed a claim with the City of Santee on June 3, 2016, and
28 subsequently amended his claim on June 17, June 29, and August 12, 2016. (See generally
1 24-2.). The City of Santee rejected Plaintiff’s claim on September 29, 2016. (Id.) Plaintiff
2 thus had until March 29, 2017, to file his complaint against the City of Santee or any City
3 of Santee employee. Plaintiff failed to do so, filing his amended complaint naming
4 Defendants Halbert, Orso-Delgado and Tamares in 2019. (Doc. No. 13.) All of Plaintiff’s
5 state law claims are accordingly barred against Defendants Halbert, Orso-Delgado, and
6 Tamares.
7 I. Cause of Action X
8 The statute of limitations for negligent misrepresentation is three years. Cal. Civ.
9 Proc. § 338(d). Against Defendants Oak Tree, Bobbi Pearson, New West Investment,
10 Gregory Brown, Sr., Gregory Brown, Jr., and Robert J. Holland, the latest charging
11 allegations relate to actions taken in 2010. Against Defendants Halbert, Orso-Delgado, and
12 Tamares, a claim for negligent misrepresentation is barred as they are granted immunity as
13 public employees. See Cal. Govt. Code, § 822.2.
14 J. Cause of Action XI
15 Unjust enrichment is not a cause of action, but rather a remedy for quasi-contract
16 causes of action. Astana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015);
17 John v. AM Retail Grp., Inc., No. 17cv727-JAH (BGS), 2018 WL 1400718, at *9 (S.D.
18 Cal. Mar. 20, 2018). Here, Plaintiff has not properly alleged a quasi-contract claim, and
19 this is simply not a cause of action. Thus, this cause of action is dismissed.
20 CONCLUSION
21 Based on the foregoing reasons, the Court GRANTS Defendants New West
22 Investment Group, Inc., Gregory Brown, Sr., Gregory Brown, Jr., and Robert Holland’s
23 motion to dismiss first amended complaint, (Doc. No. 19), GRANTS Defendants Bobbi
24 Pearson and Oak Tree Escrow’s motion to dismiss first amended complaint, (Doc. No. 22),
25 GRANTS Defendants Gary Halbert, Pedro Orso-Delgado, and Jeff Tamares’ motion to
26 dismiss Plaintiff’s first amended complaint, (Doc. No. 24), and GRANTS Defendant
27 Chicago Title Company’s motion to dismiss Plaintiff’s first amended complaint, (Doc. No.
28 69).
1 The Court finds that leave to amend would be futile, and thus DENIES granting
2 || additional leave to amend. Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999) (finding
3 leave to amend need not be granted if amendment would be futile).
4
5 IS SO ORDERED.
© Dated: March 24, 2020 Q ZS : 2
7 Hon. Anthony J.Battaglia
8 United States District Judge
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