Cherrone, et al v. Florsheim Development, et al

Filing 21

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 12/4/2012 GRANTING 14 Motion to Dismiss; GRANTING Plaintiffs 20 days to file a Second Amended Complaint. (Michel, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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CONNIE CHERRONE, RICARDO
DOMINGUEZ, DENISE ELLIS,
THOMAS HOOVER, HAZEL
SARMIENTO, THELMA KNIGHTON,
HENRY KNIGHTON, VICENT MACIAS,
SHAHANNY MACIAS, TRAVIS
MARTIN, KATIE MARTIN, DUC TAN
NGUYEN, STEPHEN ORTEGA, DALE
RISENHOOVER, KRISTA REGO, and
JARED STERRITT,

NO. CIV. 2:12-02069 WBS CKD
MEMORANDUM AND ORDER RE:
MOTION TO DISMISS

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Plaintiffs,
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v.
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FLORSHEIM DEVELOPMENT, a
California Corporation;
FLORSHEIM PROPERTIES, a
California Corporation; ROSE
PETALS, LLC, a California
Limited Liability Company;
ROSE PARK, LLC, a California
Limited Liability Company; and
DOES 1-300 inclusive,

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Defendants.
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/
----oo0oo---Plaintiff homeowners brought this action against
defendants Florsheim Development, Florsheim Properties, Rose
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Petals, LLC, and Rose Park, LLC, arising from defendants’

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allegedly wrongful conduct related to the development and sale of

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homes within a housing subdivision.

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is defendants’ motion to dismiss the First Amended Complaint

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(“FAC”) in its entirety under Federal Rule of Civil Procedure

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12(b)(6) for failure to state a claim upon which relief can be

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granted.

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I.

Currently before the court

Factual and Procedural Background

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Plaintiffs are the original purchasers of homes in the

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Valley Blossom Subdivision (“Subdivision”) located in San

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Joaquin, California.

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homes.

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conspired with “captive” mortgage, appraisal, and financing

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companies to manipulate the market value of the homes in the

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Subdivision to attract buyers and bolster sales.

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Plaintiffs further allege that defendants “tied” the sale of

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homes to financing with the captive lenders, (id. ¶¶ 23-24, 30,

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42), and that defendants misrepresented the value of homes to

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buyers as well as the stability of the market in the

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neighborhood, (id. ¶¶ 36-41).

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(First Am. Compl. ¶ 2 (“FAC”) (Docket No.

Defendants are the developer, builder, and sellers of the
(Id. ¶¶ 3-6.)

Plaintiffs allege that defendants

(Id. ¶¶ 18-21.)

Defendants brought a motion to dismiss under Rule

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12(b)(1) for lack of subject matter jurisdiction and, in the

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alternative, failure to state a claim under Rule 12(b)(6).

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(Docket No. 9.)

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the federal claims in the Complaint for lack of subject matter

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jurisdiction and declining to exercise supplemental jurisdiction

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on the remaining state law claims.

The court granted defendants’ motion, dismissing

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(Docket No. 12.)

Plaintiffs

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filed the FAC on October 17, 2012.

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(Docket No. 13.)

In the FAC, plaintiffs bring claims for: (1) violation

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of the Interstate Land Sales Full Disclosure Act, 15 U.S.C. §

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1703; (2) violation of the California Unfair Competition Act,

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Cal. Bus. & Prof. Code § 17200; (3) violation of the California

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False Advertising Law, Cal. Bus. & Prof. Code § 17500; (4)

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rescission under California Civil Code section 1689; (5)

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violation of the Sherman Antitrust Act, 15 U.S.C. § 1, and the

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Cartwright Act, Cal. Bus. & Prof. Code § 16720; and (6) violation

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of the Subdivision’s CC&R’s.

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Defendants now move to dismiss all claims under Rule

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12(b)(6) for failure to state a claim upon which relief can be

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granted.

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II.

Discussion

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To survive a motion to dismiss, a plaintiff must plead

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“only enough facts to state a claim to relief that is plausible

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on its face.”

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(2007).

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than a sheer possibility that a defendant has acted unlawfully,”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and “[w]here a

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complaint pleads facts that are ‘merely consistent with’ a

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defendant’s liability, it ‘stops short of the line between

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possibility and plausibility of entitlement to relief.’”

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(quoting Twombly, 550 U.S. at 557).

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plaintiff has stated a claim, the court must accept the

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allegations in the complaint as true and draw all reasonable

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inferences in favor of the plaintiff.

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U.S. 232, 236 (1974), overruled on other grounds by Davis v.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

This “plausibility standard,” however, “asks for more

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Id.

In deciding whether a

Scheuer v. Rhodes, 416

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Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322

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(1972).

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A.

Dismissal Due to Arbitration

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Defendants first argue that all claims are subject to

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an arbitration clause contained in the homeowners’ purchase

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agreements.

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exhibits for the court’s consideration.

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Exs. A-J (Docket No. 14).)

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(1) a Purchase Agreement signed by the respective plaintiffs that

In support of their motion, defendants submit ten
(See Florsheim Decl.

Each exhibit includes two documents:

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contains an dispute resolution clause; and (2) the 2-10 Home

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Buyers Warranty Booklet (“Warranty Booklet”), which defendants

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represent is a copy of the arbitration provisions incorporated by

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reference in the dispute resolution clause of the Purchase

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Agreements.

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(Id. ¶¶ 2-11.)

While a court generally may look only to the complaint

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and any attached exhibits on a Rule 12(b)(6) motion to dismiss,

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the court “may also consider unattached evidence on which the

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complaint ‘necessarily relies’ if: (1) the complaint refers to

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the document; (2) the document is central to the plaintiff’s

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claim; and (3) no party questions the authenticity of the

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document.”

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999 (9th Cir. 2011) (citing Marder v. Lopez, 450 F.3d 445, 448

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(9th Cir. 2006); Lee v. City of Los Angeles, 250 F.3d 668, 688

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(9th Cir. 2001)).

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United States v. Corinthian Colleges, 655 F.3d 984,

Plaintiffs vigorously dispute the authenticity of the

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attached Warranty Booklet and indicate that the terms of the

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attached Warranty Booklet are unconscionable under California

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law.

Factual development would be needed to determine what
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arbitration or dispute resolution process, if any, plaintiffs

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consented to in the Purchase Agreements and whether that process

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is enforceable.

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entered into a valid arbitration agreement on the basis of the

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submitted documents.

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consider the existence of disputed reports referenced in the

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complaint, but could not “draw inferences or take notice of facts

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that might reasonably be disputed” when there “are open questions

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requiring further factual development”).

Thus, the court cannot find that plaintiffs

See id. (noting that the court could

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Although the FAC alleges that plaintiffs entered into

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arbitration agreements, (see FAC ¶ 15(e)), it does not disclose

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the scope of the claims subject to arbitration.

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KeyBank, Nat. Ass’n, 673 F.3d 947, 955 (9th Cir. 2012) (“‘The

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court’s role under the Act is . . . limited to determining (1)

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whether a valid agreement to arbitrate exists and, if it does,

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(2) whether the agreement encompasses the dispute at issue.’”

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(quoting Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d

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1126, 1130 (9th Cir. 2000)).

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plaintiffs’ claims as arbitrable or stay the action pending

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arbitration at this time.1

See Kilgore v.

Thus, the court will not dismiss

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The court also declines to convert defendants’ motion
under Rule 12(b)(6) into a motion for summary judgment. See Fed.
R. Civ. P. 12(d). The court’s ruling on defendants’ motion to
dismiss under Rule 12(b)(6) does not, however, preclude
defendants from bringing a motion to stay the case or compel
arbitration. See 9 U.S.C. §§ 3-4 (providing for motions to stay
the case or compel arbitration under the Federal Arbitration Act
(“FAA”)). These motions would permit the court to consider
evidence outside the complaint. See, e.g., Guadagno v. E*Trade
Bank, 592 F. Supp. 2d 1263, 1266-69 (C.D. Cal. 2008) (examining
declarations and exhibits in ruling on a motion to compel
arbitration under the FAA).

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B.

Interstate Land Sales Full Disclosure Act

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In their first claim for relief, plaintiffs allege a

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violation of the Interstate Land Sales Full Disclosure Act

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(“ILSFDA”).

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deceptive practices in the sale of unimproved tracts of land by

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requiring developers to disclose information needed by potential

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buyers.”

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426 U.S. 776, 778 (1976).

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makes it unlawful for any developer or an agent to use the means

The ILSFDA is “designed to prevent false and

Flint Ridge Dev. Co. v. Scenic Rivers Ass’n of Okla.,
The ILSFDA’s anti-fraud provision

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or instruments of interstate commerce or of the mails, with

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respect to the sale or offer to sell any lot,

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(A) to employ any device, scheme, or artifice to defraud;
(B) to obtain money or property by means of any untrue
statement of a material fact, or any omission to state a
material fact necessary in order to make the statements
made (in light of the circumstances in which they were
made and within the context of the overall offer and sale
or lease) not misleading, with respect to any information
pertinent to the lot or subdivision; [or] (C) to engage
in any transaction, practice, or course of business which
operates or would operate as a fraud or deceit upon a
purchaser . . . .
15 U.S.C. § 1703(a)(2).

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Plaintiffs allege that defendants “implemented a scheme

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to manipulate the housing market” by falsely promising to refund

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the difference between the price paid for a home and the current

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market value at year’s end, by misrepresenting the stability of

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the market in the neighborhood, by marketing to and approving

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financing for unqualified buyers, and by promising but failing to

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build facilities in the neighborhood.

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43-48.)

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are therefore subject to the heightened pleading standard of Rule

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9(b).

(FAC ¶¶ 25-27, 32-34, 38,

Their claims under § 1703(a)(2) thus sound in fraud and

See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04
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(9th Cir. 2003) (holding that when a plaintiff alleges a “unified

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course of fraudulent conduct and rel[ies] entirely on that course

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of conduct for the basis of a claim,” the “claim is said to be

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‘grounded in fraud’ or to ‘sound in fraud,’ and the pleading of

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that claim as a whole must satisfy the particularity requirement

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of Rule 9(b)”); see also Degirmenci v. Sapphire-Fort Lauderdale,

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LLLP, 693 F. Supp. 2d 1325, 1341-43 (S.D. Fla. 2010) (noting that

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a plaintiff’s claim under § 1703(a)(2) sounded in fraud and thus

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required particularity in pleading under Rule 9(b)).

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Under Federal Rule of Civil Procedure 9(b), “[i]n all

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averments of fraud or mistake, the circumstances constituting

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fraud or mistake shall be stated with particularity.”

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Civ. P. 9(b).

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constituting the alleged fraud ‘be specific enough to give

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defendants notice of the particular misconduct . . . so that they

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can defend against the charge and not just deny that they have

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done anything wrong.’”• Kearns v. Ford Motor Co., 567 F3d. 1120,

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1124 (9th Cir. 2009) (quoting Bly-Magee v. California, 236 F.3d

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1014, 1019 (9th Cir. 2001)).

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accompanied by ‘the who, what, when, where, and how’ of the

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misconduct charged.”

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Pickett, 137 F.3d 616, 627 (9th Cir. 1997)).

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Fed. R.

“Rule 9(b) demands that the circumstances

“Averments of fraud must be

Vess, 317 F.3d at 1106 (quoting Cooper v.

While “there is no absolute requirement that where

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several defendants are sued in connection with an alleged

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fraudulent scheme, the complaint must identify false statements

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made by each and every defendant,” a plaintiff cannot “lump

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defendants together” in the complaint.

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F.3d 756, 764 (9th Cir. 2007) (emphasis omitted).
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Swartz v. KPMG, LLC, 476
Rather, “[i]n

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the context of a fraud suit involving multiple defendants, a

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plaintiff must, at a minimum, ‘identif[y] the role of [each]

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defendant[] in the alleged fraudulent scheme.’”

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(quoting Moore v. Kayport Package Express, Inc., 885 F.2d 531,

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541 (9th Cir. 1989)) (alterations in original).

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Id. at 765

In support of their claim, plaintiffs only broadly

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allege that defendants made false statements about the

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development of the subdivision that were included in “sales

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brochures and fliers, model home displays, and sales

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advertisements,” (FAC ¶ 46), as well as “a printed property

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report and other advertising,” (id. ¶ 58).

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defendants made false promises to refund the difference in price

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between a home at purchase and at year’s end.

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Yet plaintiffs fail to identify which defendant made the

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allegedly false statements, the time and place of the statements,

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and the specifics of the statements.

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not specific enough to allow defendants to prepare an adequate

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defense.

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that ‘defendants’ engaged in fraudulent conduct,” Swartz, 476

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F.3d 756, but fails to attribute specific misconduct to any

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particular defendant.2

They also allege that

(Id. at ¶ 25.)

Plaintiffs’ allegations are

The FAC is also “shot through with general allegations

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Plaintiffs argue that they have sufficiently pled an
alter ego theory of liability and thus may “link the specific bad
acts of one Defendant to the other Defendants.” (Pls.’ Opp’n at
10-11 (Docket No. 16).) Plaintiffs, however, fail to allege any
“specific bad acts” at all.
To the extent plaintiffs wish to impose liability on
all defendants for the acts of one defendant, plaintiffs’
allegations that defendants are alter egos of one another are
insufficient. “Before the doctrine [of alter ego liability] may
be invoked, two elements must be alleged: ‘First, there must be
such a unity of interest and ownership between the corporation
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Plaintiffs therefore fail to plead their § 1703(A)(2)

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claim with the requisite particularity under Rule 9(b).

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Accordingly, their first claim for relief will be dismissed.

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C.

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Sherman Act
Section 1 of the Sherman Act prohibits “[e]very

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contract, combination in the form of trust or otherwise, or

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conspiracy, in restraint of trade or commerce among the several

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States, or with foreign nations.”

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claim for relief, plaintiffs allege that defendants “tied” home

15 U.S.C. § 1.

In their fifth

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sales to financing through Guild Mortgage and other “captive”

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lenders.

(FAC ¶¶ 16, 23-24, 26, 29-30, 42, 76-84.)3

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and its equitable owner that the separate personalities of the
corporation and the shareholder do not in reality exist. Second,
there must be an inequitable result if the acts in question are
treated as those of the corporation alone.’” Neilson v. Union
Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1116 (C.D. Cal. 2003)
(quoting Sonora Diamond Corp. v. Sup. Ct., 83 Cal. App. 4th 523,
526 (5th Dist. 2000)). “‘[O]nly a difference in wording is used
in stating the . . . concept where the entity sought to be held
liable is another corporation instead of an individual.’” Id.
(quoting Las Palmas Asscs. v. Las Palmas Ctr. Asscs., 235 Cal.
App. 3d 1220, 1249 (2d Dist. 1991)) (alterations in the
original).
“Conclusory allegations of ‘alter ego’ status are
insufficient . . . .” Id. “Rather, a plaintiff must allege
specifically both of the elements of alter ego liability, as well
as facts supporting each.” Id. As for the first element,
plaintiffs allege that defendants shared the same office space,
but fail to allege facts as to other factors, including
commingling of funds and other assets of the two entities, the
holding out by one entity that it is liable for the debts of the
other, or identical equitable ownership in the two entities. See
Wady v. Provident Life & Accident Ins. Co. of Am., 216 F. Supp.
2d 1060, 1066 (C.D. Cal. 2002) (listing factors). Under the
second element, plaintiffs do not allege facts to show, for
example, bad faith in acquisition and/or management, inadequate
initial capitalization, or the draining of corporate assets after
capitalization. See Neilson, 290 F. Supp. 2d at 1117-18.
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All factual allegations implicated in the fifth claim
for relief involve the alleged “tie” between purchasing a house
and obtaining financing through Guild Mortgage or other mortgage
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“A tying arrangement is a device used by a seller with

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market power in one product market to extend its market power to

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a distinct product market.”

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Enters. LLC, 532 F.3d 963, 971 (9th Cir. 2008) (quoting Cascade

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Health Solutions v. PeaceHealth, 515 F.3d 883, 912 (9th Cir.

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2008)).

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sale of one product (the tying product) on the buyer’s purchase

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of a second product (the tied product).”

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arrangements are forbidden on the theory that, if the seller has

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market power over the tying product, the seller can leverage this

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market power through tying arrangements to exclude other sellers

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of the tied product.”

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Rick-Mik Enters., Inc. v. Equilon

“To accomplish this objective, the seller conditions the

Id.

“Tying

Id.

“Tying can be either a per se violation or a violation
under the rule of reason.”4

Cnty. of Tuolumne v. Sonora Comm.

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companies. If plaintiffs have attempted to allege a separate
conspiracy in restraint of trade between defendants and Guild
Mortgage, such as price-fixing, any such allegations are
insufficient. See Twombly, 550 U.S. at 555-56 (“Factual
allegations must be enough to raise a right to relief above the
speculative level,” which “requires a complaint with enough
factual matter (taken as true) to suggest that an agreement was
made.”); Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1047 (9th
Cir. 2008) (“[T]o allege an agreement between antitrust
co-conspirators, the complaint must allege facts such as a
‘specific time, place or person involved in the alleged
conspiracies’ to give a defendant seeking to respond to
allegations of a conspiracy an idea of where to begin.” (quoting
Twombly, 550 U.S. at 565 n.10)); Rick-Mik Enters. Inc. v. Equilon
Enters., LLC, 532 F.3d 963, 976 (9th Cir. 2008) (dismissing
alleged price-fixing conspiracy where “the co-conspirator banks
or financial institutions are not mentioned,” “[t]he nature of
the conspiracy or agreement is not alleged,” “[t]he type of
agreements are not alleged,” and “[t]he discernible theories do
not implicate antitrust laws”).
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Plaintiffs assert only that their claims satisfy the
per se test for illegal tying. They do not argue that the FAC
states a claim under the rule of reason, thus the court will only
address the per se rule. See Foremost Pro Color, Inc. v. Eastman
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Hosp., 236 F.3d 1148, 1157 (9th Cir. 2001).

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to suffer per se condemnation, a plaintiff must prove: (1) that

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the defendant tied together the sale of two distinct products or

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services; (2) that the defendant possesses enough economic power

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in the tying product market to coerce its customers into

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purchasing the tied product, and (3) that the tying arrangement

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affects a ‘not insubstantial volume of commerce’ in the tied

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product market.”

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Cascade Health, 515 F.3d at 913).

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“For a tying claim

Rick-Mik Enters., 532 F.3d at 971 (quoting

“Not all tying arrangements are illegal.

Rather, ties

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are prohibited where a seller ‘exploits,’ ‘controls,’ ‘forces,’

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or ‘coerces,’ a buyer of a tying product into purchasing a tied

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product.”

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does not constitute coercion.”

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Power Co., 328 F.3d 1145, 1160 (9th Cir. 2003).

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Id. at 971.

“[M]ere and incidental sales pressure
Paladin Asscs., Inc. v. Mont.

Plaintiffs allege that defendants tied housing sales to

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financing through Guild Mortgage and other captive lenders by

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“steer[ing], but most often mandat[ing],” or otherwise

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“wrongfully conditioning, either by mandate or by empty

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incentives,” that home buyers obtain financing through these

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lenders.

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to allege facts indicating that any of them purchased or obtained

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the tied product (financing through Guild Mortgage or another

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“captive” lender).

(FAC ¶¶ 16, 23, 42, 78, 80.)

Plaintiffs, however, fail

See Strawflower Elecs., Inc. v. Radioshack

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Kodak Co., 703 F.2d 534, 541 (9th Cir. 1983) (“[The plaintiff]
has not challenged the alleged tying under the rule of reason.
Thus, the dispositive question before us is whether, under the
per se rule, [the plaintiff] adequately pleaded the requisite
coercion in its complaint.”).
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Corp., Civ. No. 05-0747 MMC, 2005 WL 2290314, at *8-9 (N.D. Cal.

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Sept. 20, 2005) (dismissing plaintiff’s tying claim for failure

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to allege actual purchase in the tied market).

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besides offering broad and conclusory statements, plaintiffs make

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no allegations as to how defendants “steered” or “mandated” that

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plaintiffs obtain financing through Guild or another lender.

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See Nicolosi Dist., Inc. v. BMW N. Am., LLC, Civ. No. 10-3256 SI,

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2011 WL 479993, at *3 (N.D. Cal. Feb. 7, 2011) (dismissing a

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state-law tying violation under the Cartwright Act when plaintiff

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simply alleged that defendant “forced” the plaintiff into buying

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paint, without clearly alleging “the source of coercion”).

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Therefore plaintiffs fail to adequately allege that plaintiffs

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tied homes sales to financing under the first element of the per

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se rule.5

In addition,

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Accordingly, since plaintiffs fail to satisfy even the

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first of three elements of a per se tying violation, plaintiffs’

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fifth claim for relief under the Sherman Act will be dismissed.

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D.

Remaining State Law Claims

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Under 28 U.S.C. § 1367(c)(3), a district court may

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decline to exercise supplemental jurisdiction over state law

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claims if “the district court has dismissed all claims over which

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it has original jurisdiction.”

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Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997)

28 U.S.C. § 1367(c)(3); see also

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Defendants argue that plaintiffs’ tying claim also
fails under the second element of the per se rule because any
market power in the tying market is derived from the contractual
relationship between the parties. (Defs.’ Reply at 10-11 (Docket
No. 18).) However, since plaintiffs fail to allege how the
products were tied in the first place, whether through
contractual arrangement or otherwise, the court will not address
defendants’ argument at this time.
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(“[A] federal district court with power to hear state law claims

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has discretion to keep, or decline to keep, them under the

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conditions set out in § 1367(c).”).

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deciding whether to dismiss supplemental state claims include

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judicial economy, convenience, fairness, and comity.

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Imagineering, Inc. v. Kiewit Pac. Co., 976 F.2d 1303, 1309 (9th

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Cir. 1992), abrogated by Diaz v. Gates, 420 F.3d 897, 900 (9th

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Cir. 2005).

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eliminated before trial, the balance of factors . . . will point

Factors courts consider in

“[I]n the usual case in which federal law claims are

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toward declining to exercise jurisdiction over the remaining

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state law claims.”

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1171 (9th Cir. 1996), overruled on other grounds by Acri, 114

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F.3d at 1000.

Reynolds v. Cnty. of San Diego, 84 F.3d 1162,

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The court has yet to issue a Status (Pretrial

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Scheduling) Order and the pending motion is only the second that

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has been filed in the case.

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extraordinary or unusual circumstances suggesting that the court

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should retain jurisdiction over plaintiffs’ state law claims in

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the absence of any federal claims, the court will decline to

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exercise supplemental jurisdiction under § 1367(c)(3) over

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plaintiffs’ state law claims and will accordingly grant

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defendants’ motion to dismiss those claims.

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As none of the parties raise any

IT IS THEREFORE ORDERED that defendants’ motion to
dismiss be, and the same hereby is, GRANTED.

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Plaintiffs have twenty days from the date of this Order

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to file a second amended complaint, if they can do so consistent

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with this Order.

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DATED:

December 4, 2012

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