Parra v ADT Security Services, Inc.

Filing 14

MEMORANDUM AND ORDER signed by Chief Judge Morrison C. England, Jr. on 9/29/2014 GRANTING 5 Motion to Dismiss; DISMISSING the Complaint WITHOUT LEAVE TO AMEND. CASE CLOSED. (Michel, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STELLA PARRA,

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Plaintiff,

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No. 2:14-cv-01742-MCE-EFB

v.

MEMORANDUM AND ORDER

ADT SECURITY SERVICES, INC.,
et al.
Defendants.

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Presently before the Court is Defendant ADT Security Service, Inc.’s (“Defendant”

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or “ADT”) Motion to Dismiss Plaintiff Stella Parra’s (“Plaintiff”) Complaint for failure to

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state a claim upon which relief may be granted pursuant to Federal Rule of Civil

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Procedure 12(b)(6) (“Motion”).1 For the following reasons, Defendant’s Motion is

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GRANTED WITHOUT LEAVE TO AMEND.

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All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless
otherwise noted.

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BACKGROUND2

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Plaintiff was Defendant’s customer and had an ADT security system installed in

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her home. On October 5, 2011, Plaintiff’s security system alarm began to sound off

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because the backup battery in the control panel drained or failed. Plaintiff telephoned

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Defendant that day concerning the high-pitched alarm. Plaintiff claims that Defendant’s

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customer service representative told Plaintiff the only way to turn the alarm off was to

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disconnect the battery located in the control box, or to allow the battery powering the

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alarm to drain down or go dead. Plaintiff alleges that she advised Defendant’s

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representative that the control box and battery backup were in the attic and Plaintiff

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would need a ladder to gain access. During the phone conversation, Defendant’s

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representative told Plaintiff not to access the control panel using a ladder, but also

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indicated there were no ADT service technicians in Plaintiff’s area to turn off her alarm.

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According to Plaintiff, Defendant’s representative failed to advise Plaintiff that she could

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have turned the alarm off using the control panel located in her home.
Plaintiff claims the high-pitched alarm made her home unlivable and she was

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unable to avoid the noise by moving to a different area of her home. After being advised

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by Defendant’s representative that the alarm could only be turned off from the control

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box in her attic, Plaintiff attempted to access the control box using a ladder. Plaintiff fell

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and sustained serious bodily injuries. On October 2, 2013, nearly two years after the

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incident, Plaintiff initiated this action for negligence and strict products liability.

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STANDARD

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On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all

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allegations of material fact must be accepted as true and construed in the light most

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The following recitation of facts is taken, sometimes verbatim, from Plaintiff’s Complaint. ECF

No. 1-3.

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favorable to the moving party. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38

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(9th Cir. 1996). Rule 8(a)(2) requires only “a short and plain statement of the claim

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showing that the pleader is entitled to relief” in order to “give the defendant fair notice of

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what the…claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 550 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A

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complaint attacked by a Rule 12(b)(6) motion to dismiss does not require detailed factual

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allegations. However, “a plaintiff’s obligation to provide the grounds of his entitlement to

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relief requires more than labels and conclusions, and a formulaic recitation of the

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elements of a cause of action will not do.” Id. (internal citations and quotations omitted).

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A court is not required to accept as true a “legal conclusion couched as a factual

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allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at

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555). “Factual allegations must be enough to raise a right to relief above the speculative

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level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright & Arthur R. Miller,

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Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the pleading must

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contain something more than “a statement of facts that merely creates a suspicion [of] a

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legally cognizable right of action.”)).

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Furthermore, “Rule 8(a)(2)…requires a showing, rather than a blanket assertion,

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of entitlement to relief.” Twombly, 550 U.S. at 556 n.3 (internal citations and quotations

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omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard to see how

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a claimant could satisfy the requirements of providing not only ‘fair notice’ of the nature

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of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing 5 Charles Alan

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Wright & Arthur R. Miller, supra, at § 1202). A pleading must contain “only enough facts

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to state a claim to relief that is plausible on its face.” Id. at 570. If the “plaintiffs…have

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not nudged their claims across the line from conceivable to plausible, their complaint

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must be dismissed.” Id. However, “[a] well-pleaded complaint may proceed even if it

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strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery

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is very remote and unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236

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(1974)).
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Although review of a Rule 12(b)(6) motion to dismiss is generally confined to the

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complaint, the Court may consider documents referenced therein, but not attached to,

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the complaint. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). A statute of

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limitations defense may be raised in a motion to dismiss if the running of the statute is

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apparent from the face of the complaint. See Ledesma v. Jack Stewart Produce, Inc.,

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816 F.2d 482, 484 n.1 (9th Cir. 1987).

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A court granting a motion to dismiss a complaint must decide whether to grant

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leave to amend. Leave to amend should be “freely given” where there is no “undue

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delay, bad faith or dilatory motive on the part of the movant,…undue prejudice to the

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opposing party by virtue of allowance of the amendment, [or] futility of the

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amendment….” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminent Capital, LLC v.

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Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to

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be considered when deciding whether to grant leave to amend). Not all of these factors

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merit equal weight. Rather, “the consideration of prejudice to the opposing

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party…carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d

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183, 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear

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that “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest

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Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d

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1006, 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th

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Cir. 1989) (“Leave need not be granted where the amendment of the

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complaint…constitutes an exercise in futility….”)).

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ANALYSIS

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Defendant argues that three separate bases warrant dismissal of the Complaint

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pursuant to Rule 12(b)(6). See ECF No. 5-2 at 1. First, Defendant argues that Plaintiff

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failed to abide by her contractual promise to file a lawsuit against Defendant within one

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year of the date of any incident. Second, Defendant argues that Plaintiff’s negligence
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claim fails because Defendant had no common law duty to install and/or monitor

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Plaintiff’s alarm system, or to advise her how to disable it. Finally, and in the alternative,

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Defendant argues that Plaintiff is contractually limited to recover no more than $250.00

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in damages.

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In opposition, Plaintiff argues that her alarm services contract with Defendant is

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void or voidable because it did not strictly conform with the provisions of the “Alarm

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Company Act,” codified at California Business and Professions Code §§ 7590 et seq. In

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the absence of an enforceable contract, argues Plaintiff, she has pled sufficient facts to

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support her claims.

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As an initial matter, Plaintiff failed to attach her contract with Defendant to the

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Complaint; the contract was supplied by Defendant and attached to the Motion. ECF

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No. 5-3 at 4-7. However, because Plaintiff refers to her contract with Defendant in the

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Complaint, ECF No. 1-3 at 10, the Court will consider the contract when ruling on the

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Motion. See Knievel, 393 F.3d at 1076.

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A. Alarm Services Contract

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1. The Alarm Services Contract Is Neither Void Nor Voidable

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Defendant argues that although Plaintiff contracted with Defendant to install,

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maintain, and monitor Plaintiff’s home alarm system, Plaintiff’s common law negligence

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claim fails because there is no independent, common law duty to perform contractual

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obligations under an alarm services contract. See ECF No. 5-2 at 9. While Plaintiff

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refers to a service contract with Defendant in the Complaint, see ECF No. 5-3 at 11, and

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does not dispute the authenticity of the contract attached to Defendant’s Motion, in her

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Opposition Plaintiff argues the contract is void or voidable because it does not comply

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with the provisions of the Alarm Company Act. See ECF No. 6 at 2. Defendant argues

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that a violation of the Alarm Company Act does not result in a contract being void or

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voidable, but rather that noncompliance may result in the issuance of a citation and fine.

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See ECF No. 8 at 3 (citing Cal. Bus. & Prof. Code § 7599.54).

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The Alarm Company Act requires each agreement for installation of an alarm

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system to contain a host of information and be in writing. See Cal. & Bus. Prof. Code

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§ 7599.54. Plaintiff argues that Defendant’s failure to include eleven mandatory

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provisions required by the Alarm Company Act renders the contract void or voidable,

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and thus Plaintiff is not bound by the contract’s statute of limitations and limitation of

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damages provisions. The cases cited by Plaintiff in her Opposition do not support her

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argument. In In re Mitchell’s Estate, 123 P.2d 503, 505 (Cal. 1942), for instance, the

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court held that failure to include statutorily imposed mandatory language in a contract did

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not render the contract void. Duffens v. Valenti, 74 Cal. Rptr. 3d 311, 326 (2008), also

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relied on by Plaintiff, is distinguishable. There, the statute in question expressly stated

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that a contract failing to satisfy its provisions was void and unenforceable. The Alarm

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Company Act contains no such provision.

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Moreover, as exemplified by Duffens, the California Legislature has demonstrated

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its ability to render contracts void or voidable for non-compliance within a statute itself.

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See also Cal. Bus. & Prof. Code § 6148(c) (“Failure to comply with any provision of this

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section renders the agreement voidable at the option of the client, and the attorney shall,

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upon the agreement being voided, be entitled to collect a reasonable fee”); Cal. Civ.

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Code § 1694.4(a) (“Any contract for dating services which does not comply with this

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chapter is void and unenforceable.”). Additionally, where a California statute makes

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conduct illegal, by providing for a fine or other administrative discipline when the statute

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is violated, the statute “excludes by implication the additional penalty involved in holding

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the illegal contract unenforceable….” Lewis & Queen v. N.M. Ball Sons, 308 P.2d 713,

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719 (Cal. 1957). Moreover, where California courts consider rendering such contracts

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voidable, they assess whether “serious moral turpitude” is involved, whether penalties

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are available, and whether unjust enrichment will occur if the contract is deemed

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voidable. See Hinfedl-Ward, Inc. v. Lipian, 115 Cal. Rptr. 3d 237 (2010).

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Plaintiff’s argument that Defendant’s technical violations of the Alarm Company
Act render the contract, which was entered into sixteen years prior to Plaintiff’s fall, void
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or voidable, is unavailing. The violations were purely technical and there is no indication

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Defendant exhibited any moral turpitude. Furthermore, Defendant would be subject to a

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citation and fine based on the technical violations. See Cal. Bus. & Prof. Code

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§ 7599.54. Moreover, it can be inferred that if the Legislature wanted non-compliance

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with the Alarm Company Act to render a contract void or voidable, it would have so

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stated in the statute. Plaintiff’s contract with Defendant is neither void nor voidable and

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thus is binding and enforceable in connection with this case.

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2. Plaintiff’s Negligence Claim Fails for Lack of a Common Law Duty
In her Opposition, Plaintiff argues in the alternative that her negligence claim does

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not arise out of any contractual relationship with Defendant because the contract "does

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not include or state that any agreement was entered into for maintenance, service calls,

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or ongoing customer service.” ECF No. 6 at 6. Plaintiff’s argument is unpersuasive.

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The Complaint expressly alleges “that [Plaintiff]’s service contract with Defendant

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included in-home service repairs for her security system that would have included

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replacement of the backup battery in the control box.” ECF No. 5-3 at 11. Moreover, it

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is clear from the contract itself that the parties contracted for service beyond installation

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of the alarm system. ECF No. 5-3 at 4.

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B. Statute of Limitations

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Defendant argues that Plaintiff contractually agreed to bring any claims within one

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year of an incident, and because Plaintiff filed the Complaint nearly two years after her

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fall, the action should be dismissed. Under California law, courts generally enforce

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agreements between parties to shorten a statutory limitations period if reasonable. See

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Moreno v. Sanchez, 106 Cal. App. 4th 1415, 1430 (2003). The California Supreme

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Court has held that “[i]t is a well-settled proposition of law that the parties to a contract

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may stipulate therein for a period of limitation, shorter than that fixed by the statute of

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limitations, and that such stipulation violates no principle of public policy, provided the

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period fixed be not so unreasonable as to shop imposition or undue advantage in some

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way.” Beeson v. Schloss, 192 P. 292, 294 (Cal. 1920) (citations omitted). California
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courts typically uphold contractual provisions that shorten the statute of limitations where

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straightforward contracts are involved and the breach of accrual of rights under the

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contract is unambiguous. Charnay v. Cobert, 145 Cal. App. 4th 170, 183 (2006); see

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Capeheart v. Heady, 206 Cal. App. 2d 386 (1962) (upholding contractual limitations

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period of three months).

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Here, Plaintiff’s contract with Defendant was straightforward and the cause of

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action accrued when Plaintiff fell and sustained injury. Accordingly, the Court finds the

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one-year statute of limitations provision in the contract is reasonable and enforceable.

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Thus, the Complaint is dismissed because all of Plaintiff’s claims are barred by the

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statute of limitations provision in the alarm services contract. Moreover, because any

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amended complaint alleging a duty independent of the contract would necessarily

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require Plaintiff to contradict previous allegations that she had a service contract with

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Defendant, no leave to amend will be permitted.

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CONCLUSION

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For the foregoing reasons, Defendant’s Motion to Dismiss, ECF No. 5, is
GRANTED and Plaintiff’s Complaint is DISMISSED WITHOUT LEAVE TO AMEND.

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IT IS SO ORDERED.

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Dated: September 29, 2014

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