Cherrone, et al v. Florsheim Development, et al

Filing 29

MEMORANDUM and ORDER granting 23 Motion to Dismiss signed by Senior Judge William B. Shubb on 2/27/13: The Clerk of the Court is directed to enter judgment of dismissal and close this file. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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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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Plaintiff homeowners brought this action against
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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 relating to the development and sale

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of homes within a housing subdivision.

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allegations have been previously set out in the court’s December

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5, 2012 Order, (Docket No. 21), and will not be repeated here.

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In that Order, the court dismissed plaintiffs’ federal claims in

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the First Amended Complaint (“FAC”) with leave to amend and

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declined to exercise supplemental jurisdiction over plaintiffs’

Plaintiffs’ general

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remaining state law claims.

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Plaintiffs filed their Second Amended Complaint (“SAC”) on

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December 21, 2012, bringing the same claims as brought in the

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FAC.

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motion to dismiss the SAC 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.

(Docket No. 22.)

(Dec. 5, 2012 Order at 6-13.)

Currently before the court is defendants’

Discussion

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A.

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Interstate Land Sales Full Disclosure Act
(“ILSFDA”)

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As explained in the December 5, 2012 Order, plaintiffs’

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claim alleging violations of the ILSFDA, 15 U.S.C. § 1703(a)(2),

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sounds in fraud and must be pled with particularity under Federal

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Rule of Civil Procedure 9(b).

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F.3d 1120, 1124 (9th Cir. 2009); Vess v. Ciba-Geigy Corp. USA,

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317 F.3d 1097, 1103-04 (9th Cir. 2003); Degirmenci v. Sapphire-

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Fort Lauderdale, LLLP, 693 F. Supp. 2d 1325, 1341-43 (S.D. Fla.

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2010).

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because “plaintiffs failed to identify which defendant made the

See Kearns v. Ford Motor Co., 567

In that Order, the court dismissed plaintiffs’ claim

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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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(Dec. 5, 2012 Order at 8.)

Plaintiffs now allege that defendants, from 2008 to

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2010 as “An Anniversary Gift to You,” made false promises to

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refund the difference in price between a home at purchase and at

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the year’s end.

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promise through unidentified “website, brochure, press release,

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radio and television,” and by banners hanging across the entrance

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to the subdivisions.

(SAC ¶ 35.)

(Id.)

Defendants allegedly made this

Defendants also allegedly failed to

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disclose that prices of the homes were artificially increased,

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failed to disclose the sales agents’ “dual agency relationships,”

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and misrepresented aspects of the development of the

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neighborhood, such as the building of a park, through undisclosed

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“map layouts,” “Subdivision maps,” “brochure and signage,” “the

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public record,” and “verbal representation from the Florsheim

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Homes sales representatives.”

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Plaintiffs further allege a fraudulent “scheme” to artificially

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bolster home prices through the use of “captive” lenders and

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appraisers.

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Zedlitz and Tiffany Leon, along with the alleged president of

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Florsheim Homes, Joseph Anfuso, are alleged to have “fully

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participat[ed] in all activities” related to the fraud.

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5.)

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(Id. ¶¶ 30, 41, 42, 47, 52, 54.)

(Id. ¶¶ 24, 29, 31, 51(b).)

Sales agents Mattie

(Id. ¶

Plaintiffs again fail to plead fraud with sufficient

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particularity.

Plaintiffs do not identify a specific statement

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or omission, let alone the person or marketing material making

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the misrepresentation.

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advertising material without identifying a specific brochure or

They refer to a broad array of

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advertisement, nor do they explain how each of the plaintiffs

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encountered the alleged misrepresentations.1

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extent plaintiffs rely upon a generalized fraudulent scheme to

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raise housing prices by false appraisals, plaintiffs fail to

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adequately allege any specifics of the scheme, including the

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offending appraisers and each participant’s role in the scheme.

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Furthermore, to the

At the hearing on defendants’ motion, counsel for

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plaintiffs argued that the SAC adequately alleges

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misrepresentations by Mattie Zedlitz and Tiffany Leon,

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defendants’ sales agents, when the sales agents distributed

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brochures which falsely promised to refund the difference between

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the home price at sale and at the year’s end.

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does not include any such allegation.

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alleges that the sales agents distributed lists of preferred

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lenders at model home showings between 2006 and 2011.

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25-26.)

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included promises to refund the difference in the home’s price at

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the year end.

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The SAC, however,

Rather, the SAC only

(SAC ¶¶

Nowhere does the SAC allege that these brochures

Overall, as in the FAC, plaintiffs’ allegations are not

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“‘specific enough to give defendants notice of the particular

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misconduct . . . so that they can defend against the charge and

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Plaintiffs’ argue that they have met the particularity
requirement by identifying relevant corporate officers and
alleging facts to show alter-ego or single-enterprise liability.
While “instances of corporate fraud may [] make it difficult to
attribute fraudulent conduct to each defendant,” a plaintiff must
nonetheless “include the misrepresentations themselves with
particularity and, where possible, the roles of the individual
defendants in the misrepresentations.” Moore v. Kayport Package
Express, Inc., 885 F.2d 531, 540 (9th Cir. 1989). Plaintiffs’
failure to plead particular misrepresentations is therefore fatal
to their claim.
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not just deny that they have done anything wrong.’”

Kearns, 567

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F.3d at 1124 (quoting Bly-Magee v. California, 236 F.3d 1014,

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1019 (9th Cir. 2001)).

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be dismissed.

Plaintiffs’ ILSFDA claim will therefore

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B.

Sherman Act

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In the December 5, 2012 Order, the court dismissed

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plaintiffs’ claim under § 1 of the Sherman Act, 15 U.S.C. § 1,

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because plaintiffs failed to sufficiently plead that defendants

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tied home sales to financing under the first prong of a per se

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tying violation.

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for a per se tying violation, the plaintiff must allege: “‘(1)

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that the defendant tied together the sale of two distinct

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products or services; (2) that the defendant possesses enough

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economic power in the tying product market to coerce its

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customers into purchasing the tied product, and (3) that the

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tying arrangement affects a not insubstantial volume of commerce

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in the tied 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)) (internal quotation marks omitted).

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(Dec. 5, 2012 Order at 12.)

To state a claim

Rick-Mik Enters., Inc. v. Equilon

“The essential characteristic of an invalid tying

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arrangement lies in the seller’s exploitation of its control over

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the tying product to force the buyer into purchase of a tied

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product that the buyer either did not want at all, or might have

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preferred to purchase elsewhere on different terms.”

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Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 12 (1984),

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overruled on other grounds by Illinois Tool Works Inc. v. Indep.

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Ink, 547 U.S. 28 (2006).

Jefferson

If a defendant lacks market power in
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the relevant tying product market, there can be no cognizable

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tying claim because the defendant “has no power to force,

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exploit, or coerce” the plaintiff to purchase a tied product or

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to affect competition in the tied-product market.

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F.3d at 972.

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is a sufficient ground to dismiss an antitrust complaint.”

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Rick-Mik, 532

“A failure to allege power in the relevant market
Id.

In Rick-Mik, the Ninth Circuit reviewed a district

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court’s dismissal of a Sherman Act tying claim for failure to

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state a claim upon which relief can be granted.

See id. at 970.

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The plaintiff alleged that Equilon, which does business as Shell

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Oil Products, required the plaintiff to use its credit-card

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processing services (the tied product) when the plaintiff

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obtained a retail gasoline franchise (the tying product).

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972.

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power in the retail gasoline market, the plaintiff failed to

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adequately allege market power in the relevant market for the

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tying product–-the retail gasoline franchise market–-because the

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complaint failed to include relevant factual allegations such as

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“what percentage of gasoline franchises are Equilon’s

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(Shell/Texaco) as compared to other franchises[,] . . . the

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percentage of gasoline retail sales that are made through non-

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franchise outlets[,] . . . the amount of power or control that

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Equilon has over prospective franchisees[,] . . . [or] the

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relative difficulty of a franchisee to switch franchise brands.”

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Id.

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Id. at

While the plaintiff alleged specific facts as to Equilon’s

Even assuming, without deciding, that plaintiffs’

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amended allegations can be read to indicate a tying arrangement,

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plaintiffs here, like the plaintiff in Rick-Mik, fail to allege
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defendants’ market power in the relevant market.

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plaintiffs allege that Florsheim Homes built “literally

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thousands” of homes between 2006 and 2011, (SAC ¶ 33), the SAC

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lacks any factual allegations as to the percentage of homes in

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the relevant market built by Florsheim compared to other

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builders, the percentage of home sales by non-Florsheim

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developers in the relevant market, or the relative difficulty of

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obtaining a comparable home in the relevant market.

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Mik, 532 F.3d at 972.2

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While the

See Rick-

Plaintiffs rely on Northern Pacific Railway Company v.

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United States, 356 U.S. 1 (1958).

There, the Court found an

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illegal tying arrangement based on the extensive landholdings of

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the defendant railroad.

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(noting that the railroad “possessed substantial economic power

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by virtue of its extensive landholdings”).

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plaintiffs fail to adequately allege the extent of defendants’

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holdings or power in the relevant market.

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plaintiffs wish the court to apply any kind of presumption of

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market power due to the unique nature of property or homes, the

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Supreme Court, in overruling its case law holding that a patent

See N. Pac. Ry. Co., 356 U.S. at 7

Here, however,

To the extent

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Defendants further argue that any market power obtained
by defendants is based on the contractual arrangement between the
parties and therefore cannot satisfy the second prong of a per se
illegal tying arrangement. See Rick-Mik, 532 F.3d at 973 (“A
tying claim generally requires that the defendant’s economic
power be derived from the market, not from a contractual
relationship that the plaintiff has entered into voluntarily).
Since plaintiffs have failed to adequately allege market power in
the relevant market, the court declines to address whether that
alleged market power is derived from a voluntary contractual
relationship.
The court also need not address whether plaintiffs have
satisfied the third prong of a per se illegal tying arrangement.
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on the tying product creates a presumption of market power, has

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explicitly held that “in all cases involving a tying arrangement,

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the plaintiff must prove that the defendant has market power in

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the tying product.”

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added).

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presumption.

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Ill. Tool Works, 547 U.S. at 46 (emphasis

The court, therefore, will not apply any such

Under the standard for a motion to dismiss laid out in

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft

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v. Iqubal, 556 U.S. 662 (2009), the SAC fails to satisfy the

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second prong of a per se illegal tying arrangement because it

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does not include factual allegations of market power in the

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relevant market.

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therefore be dismissed.3

Plaintiffs’ claim under the Sherman Act will be

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C.

Remaining State Law Claims and Leave to Amend

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Because plaintiffs’ federal claims will be dismissed

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and no unusual circumstances suggest that the court should retain

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jurisdiction over plaintiffs’ state law claims, the court again

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declines to exert supplemental jurisdiction over plaintiffs’

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remaining state law claims and those claims will be dismissed.

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See 28 U.S.C § 1367(c) (providing that a district court may

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To the extent the SAC could be read to allege a
violation of the Sherman Act under the “rule of reason,” see
Brantley v. NBC Universal, Inc., 675 F.3d 1192, 1197 (9th Cir.
2012), plaintiffs’ allegations again fall short. Plaintiffs
allege that defendants colluded with appraisers and lenders to
artificially inflate prices of homes, (SAC ¶¶ 24, 29), and allege
that this scheme is shown by unspecified “greater than average
sums” and “non-typical fees” paid to the preferred lenders at
closings of escrow, (id. ¶ 30). These vague allegations,
however, do not provide “enough factual matter (taken as true) to
suggest that an agreement was made,” nor do they create a context
that suggests a preceding agreement, rather than “parallel
conduct that could just as well be independent action.” See
Twombly, 550 U.S. at 556-57.
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decline to exercise supplemental jurisdiction if “the district

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court has dismissed all claims over which it has original

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jurisdiction”); see also Reynolds v. County of San Diego, 84 F.3d

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1162, 1171 (9th Cir. 1996) (“[I]n the usual case in which federal

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law claims are eliminated before trial, the balance of factors

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[outlined in 28 U.S.C. § 1367(c)] . . . will point toward

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declining to exercise jurisdiction over the remaining state law

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claims.”) overruled on other grounds by Acri v. Varian Assocs.,

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Inc., 114 F.3d 999, 1000 (9th Cir. 1997).4

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Plaintiffs have now been permitted to amend their

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complaint twice.

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federal claims under the Sherman Act and the ILSFDA for failing

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to adequately allege subject matter jurisdiction, (Oct. 12, 2012

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Order at 6, 8 (Docket No. 12)), and for failing to state a claim

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upon which relief can be granted, (Dec. 5, 2012 Order at 9, 12).

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While leave to amend must be freely given, the court is not

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required to permit futile amendments.

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Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992); Reddy v.

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Litton Indus., Inc., 912 F.2d 291, 296-97 (9th Cir. 1990); Rutman

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Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir.

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1987); Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau,

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701 F.2d 1276, 1293 (9th Cir. 1983).

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The court previously dismissed plaintiffs’

See DeSoto v. Yellow

Since the court has already found plaintiffs’

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allegations lacking on these very same federal claims twice

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before and plaintiffs’ allegations remain insufficient, the court

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Since the court will dismiss the entire SAC, the court
makes no finding as to whether plaintiffs have failed to join a
necessary party under Federal Rule of Civil Procedure 19.
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must assume that plaintiffs can do no better and will dismiss the

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SAC without leave to amend.

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The court, however, has consistently declined to

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exercise jurisdiction over plaintiffs’ state law claims on the

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grounds that their federal claims were deficient.

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Order at 9; Dec. 5, 2012 Order at 13).

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orders, the court makes no finding as to the sufficiency of

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plaintiffs’ state law claims and will dismiss those claims

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without prejudice.

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in the state court.

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(Oct. 12, 2012

As in the court’s prior

Plaintiffs will be free to bring those claims

IT IS THEREFORE ORDERED that defendants’ motion to

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dismiss be, and the same hereby is, GRANTED.

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claim under the ILSFDA and fifth claim under the Sherman Act are

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DISMISSED with prejudice.

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state law are DISMISSED without prejudice.

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Plaintiffs’ first

Plaintiffs’ remaining claims under

The Clerk of the Court is directed to enter judgment of

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dismissal and close this file.

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DATED: February 27, 2013

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