Robert Hirsch et al v. Stephen W Hargett et al, No. 2:2018cv08371 - Document 61 (C.D. Cal. 2019)

Court Description: ORDER GRANTING DEFENDANTS MOTION TO DISMISS 36 by Judge Otis D. Wright, II: The Court GRANTS Defendants Motion With Prejudice as to Plaintiffs first, second, third, and fourth claims, and GRANTS Defendants Motion Without Prejudice as to Plaintiffs fifth, sixth, and seventh claims.) The Court will issue Judgment. (lc)

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Robert Hirsch et al v. Stephen W Hargett et al Doc. 61 O 1 2 3 4 5 6 7 United States District Court Central District of California 8 9 10 11 12 13 14 15 16 17 18 19 ROBERT HIRSCH and CINDY HIRSCH, v. Case No. 2:18-cv-08371-ODW (AGRx) ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS [36] Plaintiffs, STEPHEN W. HARGETT, CHRISTOPHER P. HARGETT, JOHN E. HARGETT, AND 678 KIRK LLC., Defendants. I. INTRODUCTION 20 This action centers on the refusal of Defendants Stephen W. Hargett, 21 Christopher P. Hargett, John E. Hargett (collectively, “Hargett Defendants”), and 678 22 Kirk, LLC (“678 Kirk”) to allow Plaintiffs Robert Hirsch and Cindy Hirsch 23 (collectively, “Plaintiffs”) additional time to remove their possessions from their 24 apartment following their eviction. (Third Am. Compl. (“TAC”) ¶ 47, ECF No. 35.) 25 Plaintiffs also assert that Hargett Defendants exerted undue influence over Jeannine 26 Davis-Kimball, former owner of Plaintiffs’ apartment complex and Hargett 27 Defendants’ mother, to take control of Ms. Davis-Kimball’s trust assets and falsely 28 and fraudulently evict Plaintiffs. (TAC ¶¶ 22, 32, 35.) Hargett Defendants and Dockets.Justia.com 1 Defendant 678 Kirk (collectively, “Defendants”) move to dismiss Plaintiffs’ TAC on 2 several grounds including failure to state a claim and lack of subject matter 3 jurisdiction. (Mot. to Dismiss (“Mot.”), ECF No. 36.) For the reasons that follow, the 4 Court GRANTS Defendants’ Motion.1 II. 5 6 A. BACKGROUND FACTUAL BACKGROUND 7 Ms. Davis-Kimball, now deceased, was the sole owner and manager of 678 8 Kirk, which owned the apartment complex where Plaintiffs previously resided. (TAC 9 ¶ 22.) Ms. Davis-Kimball, together with her spouse, Warren Matthew, were the 10 settlor-trustees of the Matthew-Davis-Kimball Trust (“Trust”). (TAC ¶ 16.) Ms. 11 Davis-Kimball amended the Trust in June 2016 to name Mr. Hirsch as successor- 12 trustee in lieu of Stephen Hargett. 13 $300,000 to Mr. Hirsch as trustee and modified the terms of the Hirschs’ rental 14 agreement. (TAC ¶¶ 19, 83.) Plaintiffs allege that Hargett Defendants exerted undue 15 influence over Ms. Davis-Kimball to obtain further amendments to the Trust so they 16 could take control of the trust assets upon Ms. Davis-Kimball’s death in April 2017. 17 (TAC ¶¶ 22, 29, 32.) (TAC ¶ 17.) The amendment provided for 18 In July 2017, 678 Kirk commenced an unlawful detainer action against Mr. and 19 Ms. Hirsch in the Superior Court of the State of California, County of Ventura. (TAC 20 ¶ 35.) After a trial on October 26, 2017, in which both parties were represented by 21 counsel, the superior court issued judgment in favor of 678 Kirk and against Mr. and 22 Ms. Hirsch on November 15, 2017.2 (See TAC ¶¶ 39–40; Jones Decl. ¶¶ 2–4, Ex. B 23 (“Eviction Judgment”).) 24 possessions from the apartment on November 20, 2017, between 10:00 a.m. and 25 4:00 p.m., and that any possessions remaining on the premises after that time would Defendants informed Plaintiffs they could remove their 26 27 28 1 After carefully considering the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 2 Plaintiffs did not appeal the Eviction Judgment, and the time for appeal has expired. (See Decl. of Greg W. Jones (“Jones Decl.”) ¶ 5, ECF No. 36-1.) 2 1 be removed to storage the following day. (TAC ¶¶ 42, 44.) On November 20, 2017, 2 at approximately 2:45 p.m., Mr. Hirsch informed Defendants that Plaintiffs required 3 more time to remove their possessions due to his physical disability. (TAC ¶¶ 44, 46.) 4 Defendants refused the request for more time. (TAC ¶ 47.) 5 Through their TAC, Plaintiffs assert seven causes of action. Plaintiffs allege 6 that Defendants refused to reasonably accommodate Mr. Hirsch’s request for 7 additional time to remove their possessions from the apartment, in violation of (1) the 8 Fair Housing Amendments Act (“FHAA”); (2) 42 U.S.C. § 1983; (3) California 9 Disabled Persons Act (“CDPA”); and (4) California Unruh Civil Rights Act.3 (TAC 10 ¶¶ 50–75.) Plaintiffs also allege that Hargett Defendants exerted undue influence over 11 Ms. Davis-Kimball to obtain the Trust amendments and evict Plaintiffs. (See, e.g., 12 TAC ¶¶ 29, 32, 35.) These allegations relate to Plaintiffs’ claims for (5) Breach of 13 Fiduciary Trust and Trust Fraud; (6) Breach of Contract; and (7) Elder Abuse. (TAC 14 ¶¶ 76–118.) Plaintiffs allege federal question, diversity, and supplemental subject 15 matter jurisdiction pursuant to 42 U.S.C. §§ 1331, 1332, and 1367. (TAC ¶¶ 11–13.) 16 B. PROCEDURAL BACKGROUND 17 On February 26, 2018, Plaintiffs initiated this action in the United States 18 District Court, District of Arizona, asserting causes of action under the American with 19 Disabilities Act (“ADA”), 42 U.S.C. § 1983, Breach of Contract, Breach of Fiduciary 20 Duty and Trust Fraud, and Elder Abuse. (See generally Compl., ECF No. 1.) After 21 screening Plaintiffs’ Complaint, the district court of Arizona found that Plaintiffs 22 failed to state a claim and dismissed Plaintiffs’ Complaint without prejudice and with 23 leave to amend. (Order 1, 3, ECF No. 7.) Plaintiffs subsequently amended their 24 complaint twice, asserting the same causes of action. (See Am. Compl., ECF No. 8; 25 Second Am. Compl. (“SAC”), ECF No. 9.) Defendants moved to dismiss Plaintiffs’ 26 27 28 3 Plaintiffs do not oppose dismissal of the fourth cause of action for violation of the Unruh Civil Rights Act. (Opp’n to Mot. (“Opp’n”) 2, ECF No. 44.) Accordingly, the Court GRANTS Defendants’ Motion as to Plaintiffs’ fourth cause of action. 3 1 SAC or transfer the action to this Court. (Mot. to Dismiss or Transfer, ECF No. 14.) 2 The district court of Arizona granted the transfer but did not reach the merits of 3 Defendants’ motion. (Order, ECF No. 20.) Following the transfer to this Court, 4 Defendants again moved to dismiss Plaintiffs’ SAC. (Mot. to Dismiss SAC, ECF 5 No. 32.) However, the Court, sua sponte, found that Plaintiffs failed to sufficiently 6 allege federal jurisdiction and dismissed the SAC with leave to amend. 7 Dismissing SAC 1–2, ECF No. 34.) 8 motion as moot. (Order Accordingly, the Court denied Defendants’ 9 Defendants now move to dismiss Plaintiffs’ subsequently-filed TAC on several 10 grounds, including that Plaintiffs fail to state a claim and the Court lacks subject 11 matter jurisdiction. (Mot. 2–3.) Plaintiffs oppose.4 (See generally Opp’n.) III. 12 13 C. LEGAL STANDARDS FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1) 14 Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may 15 move to dismiss a complaint for lack of subject matter jurisdiction. Fed. R. Civ. P. 16 12(b)(1). “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for 17 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d 18 1214, 1242 (9th Cir. 2000)). A facial attack is based on the challenger’s assertion that 19 allegations in the complaint are “insufficient on their face to invoke federal 20 jurisdiction.” Id. A factual attack disputes the validity of allegations that, if true, 21 would invoke federal jurisdiction. Id. In resolving a factual attack, the court “need 22 23 24 25 26 27 28 4 Ms. Hirsch did not oppose Defendants’ Motion. Mr. Hirsch filed “Plaintiff’s Opposition” and submitted his declaration in support thereof; he is the sole signatory to both documents. (See Opp’n 20; Decl. of Robert Hirsch (“Hirsch Decl.”) 17, ECF No. 45.) The Court has received nothing to indicate that Ms. Hirsch joins Mr. Hirsch’s Opposition. Although a non-attorney may “appear in propria persona in his own behalf, that privilege is personal to him.” McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966) (citation omitted). Mr. Hirsch has no authority to prosecute a civil lawsuit on behalf of anyone other than himself. See C.E. Pope Equity Tr. v. United States, 818 F.2d 696, 697 (9th Cir. 1987). Accordingly, the Court may grant Defendants’ Motion as to Ms. Hirsch as unopposed. See C.D. Cal. L.R. 7-12. However, in light of Ms. Hirsch’s pro se status, the Court construes Mr. Hirsch’s Opposition as applying to Ms. Hirsch. 4 1 not presume the truthfulness of the plaintiffs’ allegations.” White, 227 F.3d at 1242. 2 Once a defendant moves to dismiss for lack of subject matter jurisdiction, the plaintiff 3 bears the burden of establishing the court’s subject matter jurisdiction. See Kokkonen 4 v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Chandler v. State Farm Mut. 5 Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). To sustain federal jurisdiction, a 6 complaint must allege a claim under the Constitution or relevant federal statute and 7 must not be made solely to obtain federal jurisdiction. Bell v. Hood, 327 U.S. 678, 8 682–83 (1946). 9 D. FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) 10 Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal 11 theory or the absence of sufficient facts alleged under a cognizable legal theory.” 12 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). “To survive a 13 motion to dismiss . . . under Rule 12(b)(6), a complaint generally must satisfy only the 14 minimal notice pleading requirements of Rule 8(a)(2)”—a short and plain statement of 15 the claim. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003); see also Fed. R. Civ. P. 16 8(a)(2). The “[f]actual allegations must be enough to raise a right to relief above the 17 speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The 18 “complaint must contain sufficient factual matter, accepted as true, to state a claim to 19 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 20 (internal quotation marks omitted). “A pleading that offers ‘labels and conclusions’ or 21 ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (citing 22 Twombly, 550 U.S. at 555). 23 Whether a complaint satisfies the plausibility standard is “a context-specific 24 task that requires the reviewing court to draw on its judicial experience and common 25 sense.” Id. at 679. A court is generally limited to the pleadings and must construe 26 “[a]ll factual allegations set forth in the complaint . . . as true and . . . in the light most 27 favorable to [the plaintiff].” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 28 2001). However, a court need not blindly accept conclusory allegations, unwarranted 5 1 deductions of fact, and unreasonable inferences. Sprewell v. Golden State Warriors, 2 266 F.3d 979, 988 (9th Cir. 2001). Accusations of fraud require a plaintiff to plead 3 with particularity the circumstances constituting fraud. See Fed. R. Civ. P. 9(b). Rule 4 9(b) requires that the complaint identify the “who, what, when, where, and how” of 5 the fraudulent activity, “as well as what is false or misleading about” it, and why it is 6 false. United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 7 1055 (9th Cir. 2011) (internal quotation marks omitted). 8 Pro se pleadings are to be construed liberally, but a plaintiff must still present 9 factual allegations sufficient to state a plausible claim for relief. See Hebbe v. Pliler, 10 627 F.3d 338, 341–42 (9th Cir. 2010). A court may not “supply essential elements of 11 the claim that were not initially pled.” Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 12 1992) (“Vague and conclusory allegations of official participation in civil rights 13 violations are not sufficient to withstand a motion to dismiss.”). A liberal reading 14 cannot cure the absence of such facts. Ivey v. Bd. of Regents of Univ. of Alaska, 673 15 F.2d 266, 268 (9th Cir. 1982). 16 E. LEAVE TO AMEND 17 Where a district court grants a motion to dismiss, it should generally provide 18 leave to amend unless it is clear the complaint could not be saved by any amendment. 19 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 20 1025, 1031 (9th Cir. 2008). 21 determines that the allegation of other facts consistent with the challenged pleading 22 could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture 23 Co., 806 F.2d 1393, 1401 (9th Cir. 1986); see Lopez v. Smith, 203 F.3d 1122, 1127 24 (9th Cir. 2000). Thus, leave to amend “is properly denied . . . if amendment would be 25 futile.” Carrico v. City and Cty. of San Francisco, 656 F.3d 1002, 1008 (9th Cir. 26 2011). Leave to amend may be denied when “the court 27 28 6 IV. 1 DISCUSSION 2 Defendants move to dismiss Plaintiffs’ TAC on several grounds, including 3 failure to state a claim and lack of subject matter jurisdiction. As the Court finds these 4 grounds dispositive, it does not reach Defendants’ remaining arguments. 5 A. PRO SE PLEADINGS 6 As a preliminary matter, Defendants argue the Court should not construe 7 Plaintiffs’ TAC liberally because Mr. Hirsch is a disbarred former attorney. 8 (Mot. 4–5.) Mr. Hirsch has not practiced law for more than twenty-four years, and 9 Plaintiffs have proceeded pro se throughout this litigation. (Hirsch Decl. ¶ 1.) The 10 relevant inquiry is Plaintiffs’ current pro se status, and as such, the Court construes 11 Plaintiffs’ TAC liberally, as the Supreme Court directs. See Erickson v. Pardus, 551 12 U.S. 89, 94 (2007) (“A document filed pro se is ‘to be liberally construed.’”).5 13 B. CLAIMS ARISING UNDER FEDERAL LAW 14 Defendants move to dismiss Plaintiffs’ first three claims, violation of 15 (1) FHAA, (2) § 1983, and (3) CDPA, on the grounds that Plaintiffs fail to state a 16 claim. Plaintiffs’ first two claims are Plaintiffs’ only claims arising under federal law. 17 However, the reasonable accommodation provision of the CDPA is substantially 18 similar to that of the FHAA and is analyzed in the same way. See Sabi v. Sterling, 19 183 Cal. App. 4th 916, 943 (2010) (“[California Civil Code section 54.1(b)(3)(B)] is 20 largely identical to [the] one found in [42 U.S.C. § 3604].”). Accordingly, the Court 21 22 23 24 25 26 27 28 The Court notes, however, that Plaintiffs’ procedural conduct borders on abusing the Court’s leniency. The Court granted Plaintiffs thirty days to amend their SAC, yet Plaintiffs filed their TAC after thirty-two. The Court granted the parties’ stipulation to allow Plaintiffs additional time to oppose Defendants’ Motion, yet Plaintiffs filed their Opposition days beyond their own requested deadline. Further, Mr. Hirsch filed a seventeen-page declaration expounding on his legal arguments, effectively circumventing the Court’s page limit for opposition papers. Despite this, the Court considers the opposition and declaration on the merits and in full, to the extent permissible on a 12(b)(1) or 12(b)(6) motion. As the late filing and additional pages prejudiced Defendants’ opportunity to fully respond, the Court also considers the entirety of Defendants’ Reply, despite exceeding the twelve-page limit, to mitigate the prejudice to Defendants. 5 7 1 analyzes Plaintiffs’ FHAA and CDPA claims together before turning to Plaintiffs’ 2 § 1983 claim. 3 1. Fair Housing Act and California Disabled Persons Act 4 Defendants move to dismiss Plaintiffs’ FHAA and CDPA claims on the 5 grounds that Plaintiffs’ only basis for discrimination came after Plaintiffs no longer 6 had a legal right to use or enjoy the dwelling. (Mot. 5–7.) 7 The FHAA makes it unlawful to “discriminate in the sale or rental . . . [of] a 8 dwelling to any buyer or renter because of a handicap.” 42 U.S.C. § 3604(f)(1). It is 9 unlawful to “discriminate against any person in the terms, conditions, or privileges of 10 sale or rental of a dwelling, or in the provision of services or facilities in connection 11 with such dwelling, because of a handicap.” Id. § 3604(f)(2). Discrimination may be 12 shown through disparate treatment, disparate impact, or “a refusal to make reasonable 13 accommodations in rules, policies, practices, or services, when such accommodations 14 may be necessary to afford such person equal opportunity to use and enjoy a 15 dwelling.” Id. § 3604(f)(3)(B); see also 24 C.F.R. § 100.204 (defining reasonable 16 accommodations);6 Gamble v. City of Escondido, 104 F.3d 300, 304–05 (9th Cir. 17 1997). “The reasonable accommodation inquiry is highly fact-specific, requiring 18 case-by-case determination.” United States v. Cal. Mobile Home Park Mgmt. Co., 19 107 F.3d 1374, 1380 (9th Cir. 1997). 20 The Ninth Circuit has articulated that, 21 To prevail on a claim under 42 U.S.C. § 3604(f)(3), a plaintiff must prove all of the following elements: (1) that the plaintiff or his associate is handicapped within the meaning of 42 U.S.C. § 3602(h); (2) that the defendant knew or should reasonably be expected to know of the handicap; (3) that accommodation of the handicap may be necessary to afford the handicapped person an equal opportunity to use and enjoy the 22 23 24 25 26 27 28 6 The CDPA similarly requires that “[a] person renting, leasing, or otherwise providing real property for compensation shall not refuse to make reasonable accommodations in rules, policies, practices, or services, when those accommodations may be necessary to afford individuals with a disability equal opportunity to use and enjoy the premises.” Cal. Civ. Code § 54.1(b)(3)(B). 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 dwelling; (4) that the accommodation is reasonable; and (5) that defendant refused to make the requested accommodation. Dubois v. Ass’n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006) (citing 42 U.S.C. § 3604(f)(3)(B); Cal. Mobile Home, 107 F.3d at 1380). “To prove that an accommodation is necessary, plaintiffs must show that, but for the accommodation, they likely will be denied an equal opportunity to enjoy the housing of their choice.” Giebeler v. M & B Assocs., 343 F.3d 1143, 1155 (9th Cir. 2003) (emphasis added and internal quotation marks omitted); see also S. Cal. Hous. Rights Ctr. v. Los Feliz Towers Homeowners Ass’n, 426 F. Supp. 2d 1061, 1066 (C.D. Cal. 2005). The FHAA’s reasonable accommodation provision does not encompass Plaintiffs’ request for additional time to move out after their eviction. To begin, the FHAA prohibits disability-related discrimination against actual or prospective buyers or renters and their associates. But Plaintiffs were not actual or prospective buyers or renters; they were former renters, subject to a state court eviction judgment. Further, Plaintiffs’ request for an extension of time was not in pursuit of inhabiting the housing of their choice, but rather in vacating that housing. Moreover, the request came after they had been legally evicted and were no longer entitled to use of the dwelling. A discriminatory denial under the FHAA can occur at any time during the entire period before a tenant is actually evicted. Cf. Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 713 (9th Cir. 2009) (recognizing FHA claims based on discrimination at the time of and after acquisition of the housing); Radecki v. Joura, 114 F.3d 115, 116 (8th Cir. 1997) (relying on 42 U.S.C. § 3604(f)(1)(A) and focusing the inquiry on the timeframe before the plaintiff was actually evicted). Plaintiffs were actually evicted on November 15, 2017. (TAC ¶ 40.) Five days later, on November 20, 2017, Mr. Hirsch requested an extension of time to remove Plaintiffs’ possessions. (TAC ¶ 46.) Although individuals with disabilities are to be granted accommodations necessary to afford them equal opportunity to use and enjoy 9 1 a dwelling, no provision of the FHAA entitles an individual to use and enjoy a 2 dwelling in which the individual has no potentially valid basis to live.7 3 Accordingly, even construing Plaintiffs’ TAC liberally, Plaintiffs’ FHAA and 4 CDPA claims fail. As Plaintiffs can allege no facts consistent with the TAC that 5 would remedy this deficiency and have previously amended three times, including 6 with the benefit of Defendants’ arguments for dismissal, the Court finds further 7 amendment would be futile. Accordingly, the Court GRANTS Defendants’ Motion 8 as to Plaintiffs’ first and third claims WITHOUT LEAVE TO AMEND. 9 2. 42 U.S.C. § 1983 10 Plaintiffs allege that Defendants violated their rights under 42 U.S.C. § 1983 by 11 filing an unlawful detainer action against them and by refusing to reasonably 12 accommodate Mr. Hirsch’s disability with additional time to remove Plaintiffs’ 13 possessions from the apartment following the eviction. (TAC ¶¶ 49, 59–64.) 14 To state a claim under § 1983, Plaintiffs must show that Defendants acted under 15 color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978). “Action 16 taken by private individuals may be ‘under color of state law’ where there is 17 ‘significant’ state involvement in the action.” Howerton v. Gabica, 708 F.2d 380, 382 18 (9th Cir. 1983). Conversely, “[p]rivate misuse of a state statute does not describe 19 conduct that can be attributed to the state.” Lugar v. Edmondson Oil Co., 457 U.S. 20 922, 941–42 (1982); see also Howerton, 708 F.2d at 384 (“[A] private repossession 21 pursuant to a state statutory provision is not state action.”). Courts must examine the 22 totality of circumstances surrounding a private eviction to determine whether the 23 defendants acted under color of state law. Howerton, 708 F.2d at 384. 24 25 26 27 28 7 Plaintiffs argue for the first time in their Opposition that Defendants’ “discrimination against [P]laintiff[s] is evidenced by the widely disparate treatment [to which they were] subject.” (Opp’n 9.) However, Plaintiffs’ TAC contains no disparate treatment allegations. (See generally TAC.) Regardless, Plaintiffs cannot state a prima facie case for disparate treatment for the same reasons as discussed above: they were not entitled to use of the dwelling after eviction. See Gamble, 104 F.3d at 305 (applying McDonnell Douglas burden-shifting analysis to FHA disparate treatment claims, requiring a plaintiff to first plead a prima facie case). 10 1 Here, Plaintiffs allege no facts suggesting significant state involvement in the 2 filing of the unlawful detainer action, eviction, or management of the removal of 3 Plaintiffs’ possessions from the apartment. The mere filing of the unlawful detainer 4 action, alone, cannot be attributed to the state. See Lugar, 457 U.S. at 941. Plaintiffs 5 do not allege that Defendants participated in joint action with state actors to effectuate 6 the eviction, and they name no state officials or agents as defendants in their TAC. As 7 part of their breach of contract claims, Plaintiffs allege that they were evicted from 8 their apartment by the Sheriff of Ventura County, (TAC ¶ 103), but this single, 9 conclusory allegation does not rise to the level of “significant state involvement.” See 10 Howerton, 708 F.2d at 384 (“A single request for the police to perform their peace- 11 keeping functions may not be sufficient to make a landlord a ‘joint actor’ with the 12 state for section 1983 purposes.”). 13 Further, Plaintiffs do not allege any state involvement in Defendants’ refusal to 14 give Plaintiffs more time to remove their possessions before Defendants put them in 15 storage. Plaintiffs allege that only Defendants and their agents and employees were 16 present on November 20, 2017, and that only Defendants refused Mr. Hirsch’s 17 request. (See TAC ¶¶ 44–49, 59–64.) That a state statute authorizes Defendants to 18 store Plaintiffs’ possessions after eviction does not make Defendants’ decision to do 19 so state action. See Flagg Bros., 436 U.S. at 165–66; see also Melara v. Kennedy, 541 20 F.2d 802, 808 (9th Cir. 1976) (holding that action taken pursuant to a non-mandatory 21 statutory scheme is not state action). 22 In short, Plaintiffs do not allege state action. Accordingly, even construing 23 Plaintiffs’ TAC liberally, it fails to state a claim under § 1983. As noted, Plaintiffs 24 have amended their complaint three times, including with the benefit of Defendants’ 25 arguments for dismissal. Plaintiffs can allege no set of facts consistent with the TAC 26 that would remedy the deficiency in their § 1983 claim. As such, further amendment 27 would be futile. 28 Plaintiffs’ second claim WITHOUT LEAVE TO AMEND. Accordingly, the Court GRANTS Defendants’ Motion as to 11 1 C. DIVERSITY JURISDICTION 2 Defendants move to dismiss Plaintiffs’ TAC on the grounds that Plaintiffs fail 3 to sufficiently allege diversity jurisdiction. The Supreme Court “ha[s] consistently 4 interpreted § 1332 as requiring complete diversity: In a case with multiple plaintiffs 5 and multiple defendants, the presence in the action of a single plaintiff from the same 6 State as a single defendant deprives the district court of original diversity jurisdiction 7 over the entire action.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 8 553 (2005). For diversity purposes, an individual is a citizen of the state where he or 9 she is domiciled. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). 10 A person’s domicile is her permanent home, where she resides with the intention to 11 remain or to which she intends to return. Id. (citing Lew v. Moss, 797 F.2d 747, 749 12 (9th Cir. 1986)). “[A] limited liability company is a citizen of every state of which its 13 owners/members are citizens.” 3123 SMB LLC v. Horn, 880 F.3d 461, 465 (9th Cir. 14 2018) (quoting Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th 15 Cir. 2006)). 16 The Court previously dismissed Plaintiffs’ SAC for lack of subject matter 17 jurisdiction and provided guidance to Plaintiffs on the requirements for pleading 18 diversity jurisdiction. (Order Dismissing SAC 4–5.) Despite the Court’s previous 19 guidance, Plaintiffs again fail to allege any Defendant’s citizenship or domicile. 20 Plaintiffs allege that they are domiciled in Phoenix, Arizona, so they recognize the 21 distinction between domicile and residence. (TAC ¶¶ 4–5.) But Plaintiffs again 22 merely allege that Hargett Defendants are residents of California. (TAC ¶¶ 7–9.) 23 Even were the Court to construe Plaintiffs’ allegations of residence as citizenship or 24 domicile, Plaintiffs also again fail to sufficiently allege the citizenship of Defendant 25 678 Kirk. As in Plaintiffs’ SAC, and despite the Court’s directive to allege the 26 identity and citizenship of Defendant 678 Kirk’s owners or members, Plaintiffs allege 27 only that 678 Kirk is organized under the laws of California with its principal place of 28 12 1 business in California, and that Ms. Davis-Kimball was its former owner. (TAC 2 ¶ 10.) 3 What is more, Defendants move to dismiss Plaintiffs’ state law claims (counts 4 three through seven) on the grounds that Plaintiffs fail to sufficiently allege diversity. 5 (Mot. 10–11.) 6 generally Opp’n; Reply 10, ECF No. 48.) Accordingly, the Court accepts Plaintiffs’ 7 failure to oppose as waiver or abandonment of diversity jurisdiction. See Heraldez v. 8 Bayview Loan Servicing, LLC, No. CV 16-1978-R, 2016 WL 10834101, at *2 (C.D. 9 Cal. Dec. 15, 2016), aff’d, 719 F. App’x 663 (9th Cir. 2018) (citing Stichting 10 Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 1132 (C.D. Cal. 11 2011)) (“Failure to oppose constitutes a waiver or abandonment of the issue.”). Plaintiffs do not oppose Defendants’ Motion on this issue. (See 12 As Plaintiffs again fail to sufficiently plead complete diversity, and do not 13 oppose Defendants’ Motion on the issue, the Court must conclude that it lacks 14 diversity jurisdiction. 15 D. SUPPLEMENTAL JURISDICTION 16 When a federal court has dismissed all claims over which it has original 17 jurisdiction, it may, at its discretion, decline to exercise supplemental jurisdiction over 18 the remaining state law claims. 28 U.S.C. § 1367(c)(3); Carlsbad Tech., Inc. v. HIF 19 Bio, Inc., 556 U.S. 635, 640 (2009). “[I]n the usual case in which all federal-law 20 claims are eliminated before trial, the balance of factors to be considered under the 21 pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity— 22 will point toward declining to exercise jurisdiction over the remaining state law 23 claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); see also 24 United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“Needless decisions 25 of state law should be avoided both as a matter of comity and to promote justice 26 between the parties, by procuring for them a surer-footed reading of applicable law.”); 27 Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) (citing San Pedro Hotel Co., Inc. v. 28 13 1 City of Los Angeles, 159 F.3d 470, 478 (9th Cir. 1998)) (holding that a district court is 2 not required to provide an explanation when declining jurisdiction under § 1367(c)). 3 As discussed above, the Court dismisses Plaintiffs’ federal claims. Further, 4 Plaintiffs fail to adequately plead and abandon their claims of diversity jurisdiction. 5 Thus, the Court has dismissed all claims over which it has original jurisdiction. As 6 such, the Court declines to exercise supplemental jurisdiction over the remaining 7 claims and DISMISSES, WITHOUT PREJUDICE, Plaintiffs’ fifth, sixth, and 8 seventh claims for breach of fiduciary trust and trust fraud, breach of contract, and 9 elder abuse, respectively. V. 10 CONCLUSION 11 For the reasons discussed above, the Court GRANTS Defendants’ Motion 12 With Prejudice as to Plaintiffs’ first, second, third, and fourth claims, and GRANTS 13 Defendants’ Motion Without Prejudice as to Plaintiffs fifth, sixth, and seventh 14 claims. (ECF No. 36.) The Court will issue Judgment. 15 16 IT IS SO ORDERED. 17 18 June 26, 2019 19 20 21 22 ____________________________________ HON. OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 14

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