Miller Marital Deduction Trust et al v. Estate Of Mark B. Dubois, et al
ORDER signed by District Judge Stanley A Bastian on 11/14/17 ORDERING that Defendant's Motion to Dismiss 39 is DENIED. (Mena-Sanchez, L)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
9 MILLER MARITAL DEDUCTION
10 TRUST, by and through its trustees, Helen
11 Miller and James Morris; and HELEN
12 MILLER, an individual,
DEFENDANT’S MOTION TO
15 ESTATE OF MARK B. DUBOIS,
16 DECEASED, an individual and dba Glo
17 Dry Cleaning System, et al.,
On November 2, 2017, the Court held a telephonic motion hearing on
21 Defendant Estate of Jack Miller’s Motion to Dismiss, ECF No. 39. Bret Stone and
22 Barry Bryan appeared on behalf of Plaintiffs, and Jon-Erik Magnus and Jodi
23 Lambert appeared on behalf of Defendant. The Court took the motion under
Defendant Estate of Jack Miller (“Defendant”) requests the Court dismiss
26 Plaintiffs’ Third, Fourth, Fifth, Sixth, Tenth, and Thirteenth Causes of Action; as
27 well as Plaintiffs’ First and Sixth Prayer for Relief alleged in Plaintiffs’ First
28 Amended Complaint for failure to state a claim upon which relief may be granted.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS ^ 1
1 After careful consideration of the parties’ briefings and presentation to the Court,
2 Defendant’s motion is denied.
From approximately 1970 to 1985, Jack Miller owned the property located
5 at 6054 Pacific Avenue, Stockton, California (the “Property”). During those years
6 Mr. Miller leased the Property to Glo Dry Cleaning System; a dry cleaning
7 business that had been operating on the Property since approximately 1956. 1 This
8 action stems from the environmental contamination to the Property and the areas
9 to which the contamination has migrated outside the boundaries of the Property
10 (collectively, the “Site”), as a result of hazardous chemicals used in the operation
11 of the dry cleaning business.
Upon Mr. Miller’s death, the Miller Marital Deduction Trust (“Miller
13 Trust”) obtained—and currently holds—ownership of the Property. On August 10,
14 2016, the Miller Trust, by and through its trustees, Helen Miller and James Morris;
15 and Helen Miller, as an individual, (“Plaintiffs”) filed this action in defense of
16 claims made against them by the California Regional Water Quality Control
17 Board, Central Valley Region, related to the environmental contamination.
Of the numerous Defendants named in the Complaint, Plaintiffs included
19 Defendant to the extent of his estate’s liability insurance assets pursuant to Cal.
20 Prob. Code §§ 550, et seq. On September 12, 2017 Plaintiffs filed a First Amended
21 Complaint (“FAC”). ECF No. 34.
On October 3, 2017 Defendant filed a motion to dismiss pursuant to Rule
23 12(b)(6). ECF No. 39. Defendant seeks dismissal of Plaintiffs’ Third, Fourth,
24 Fifth, Sixth, Tenth, and Thirteenth Causes of Action; as well as Plaintiffs’ First
25 and Sixth Prayer for Relief.
The estates of those individuals who owned and leased the property to Glo Dry Cleaning System prior to Mr. Miller
are also named Defendants in this action.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS ^ 2
In support of its motion, Defendant attatched declarations for the following:
2 (1) Darrell McCarley, a claims adjuster for Allianz Insurance Company; and (2)
3 Arlene Church, a records management specialist for Zurich American Insurance
4 Company. Defendant holds insurance policies with both companies. Defendant
5 also seeks judicial notice of the following documents: (1) Jack Miller’s death
6 certificate; and (2) proof of service of summons of Zurich American Insurance
On a motion to dismiss, all well-pleaded allegations of material fact are
10 taken as true and construed in a light most favorable to the non-moving party.
11 Wyler Summit P’ship v. Turner Broadcasting Sys., Inc., 135 F.3d 658, 661 (9th
12 Cir. 1998). Under Rule 12(b)(6), a complaint “should not be dismissed unless it
13 appears beyond doubt that [the] plaintiff can prove no set of facts in support of his
14 claim which would entitle him to relief.” Hydranautics v. FilmTec Corp., 70 F.3d
15 533, 535-36 (9th Cir. 1995).
Federal Rule of Civil Procedure 8(a)(2) requires that each claim in a
17 pleading be supported by “a short and plain statement of the claim showing that
18 the pleader is entitled to relief.” To satisfy this requirement, a complaint must
19 contain sufficient factual content “to state a claim to relief that is plausible on its
20 face.” Landers v. Quality Commc’ns, Inc., 771 F.3d 638, 641 (9th Cir. 2014)
21 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim for
22 relief is plausible on its face “when the plaintiff pleads factual content that allows
23 the court to draw the reasonable inference that the defendant is liable for the
24 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In evaluating
25 whether a complaint states a plausible claim for relief, courts rely on “judicial
26 experience and common sense” to determine whether the factual allegations,
27 which are assumed to be true, “plausibly give rise to an entitlement to relief.” Id.
28 at 679.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS ^ 3
2 Extrinsic Evidence
As a threshold matter, the Court declines to consider Defendant’s extrinsic
4 evidence in ruling on this motion. Generally, a court may not consider material
5 beyond the complaint in ruling on a Rule 12(b)(6) motion. Intri-Plex Tech., Inc. v.
6 Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007). “A court may, however,
7 consider certain materials—documents attached to the complaint, documents
8 incorporated by reference in the complaint, or matters of judicial notice—without
9 converting the motion to dismiss into a motion for summary judgment.” United
10 States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). A court may also consider a
11 document the authenticity of which is not contested, and upon which the plaintiff’s
12 complaint necessarily relies. Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir.
13 1998), superseded by statute on other grounds.
Defendant requests the Court consider the depositions of Darrell McCarley
15 and Arlene Church. Attached to these declarations are insurance policies issued to
16 Jack Miller. By considering the insurance policies, Defendant argues, Plaintiffs’
17 Third, Fourth, and Fifth Causes of Action, and First Prayer for Relief fail to state a
18 claim because the insurance policies issued to Jack Miller do not cover injunctive
The Court declines to consider this extrinsic evidence because the extent of
21 Defendant’s liability is not material to the present motion. It is true, Plaintiffs’
22 claims against Defendant are made pursuant to Cal. Prob. Code §§ 550, et seq. As
23 such, Plaintiffs will bear the burden of proving liability and insurance coverage.
24 Pelayo v. City of Downey, 570 F. Supp. 2d 1183, 1197 (C.D. Cal. 2008) (“The
25 California Supreme Court has held that establishing proof of insurance coverage is
26 essential to recovery under [Section 550]”); see also Cal. Prob. Code § 554(a)
27 (“damages sought in an action under this chapter shall be within the limits and
28 coverage of the insurance”). However, the extent of that coverage—i.e., the
ORDER DENYING DEFENDANT’S MOTION TO DISMISS ^ 4
1 amount Plaintiffs will be able to recover—is not material to the present motion.
2 The test on a Rule 12(b)(6) motion is the plausibility of Plaintiffs’ claims against
3 Defendant, Landers, 771 F.3d at 641, not the extent to which Plaintiff may recover
4 under those claims.
Defendant also requests the Court take judicial notice of Jack Miller’s death
6 certificate, and the proof of service of summons of Zurich American Insurance
7 Company. The Court declines to exercise its discretion to consider these
8 documents. Ritchie, 342 F.3d at 908. Therefore, the Court will rely only on
9 Plaintiffs’ FAC in ruling on Defendant’s motion.
10 Motion to Dismiss
Defendant requests the Court dismiss Plaintiffs’ Third, Fourth, Fifth, Sixth,
12 Tenth, and Thirteenth Causes of Action; as well as Plaintiffs’ First and Sixth
13 Prayer for Relief alleged in the FAC for failure to state a claim upon which relief
14 may be granted. While Plaintiffs’ FAC is by no means a perfectly crafted pleading,
15 it is legally sufficient and will survive Defendant’s challenge. Taking the factual
16 allegations in the FAC as true, Plaintiffs have stated plausible claims for
17 abatement of a public nuisance; abatement of a private nuisance; continuing
18 trespass; negligence; equitable indemnity; waste; preliminary and permanent
19 injunction; and treble damages.
For the reasons set forth above, Defendant’s Motion to Dismiss, ECF No.
22 39, is denied.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS ^ 5
Accordingly, IT IS HEREBY ORDERED:
1. Defendant’s Motion to Dismiss, ECF No. 39, is DENIED.
IT IS SO ORDERED. The District Court Clerk is hereby directed to enter
4 this Order and provide copies to counsel.
DATED this 14th day of November 2017.
Stanley A. Bastian
United States District Judge
ORDER DENYING DEFENDANT’S MOTION TO DISMISS ^ 6
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