Brambila et al v. Temby et al

Filing 21

ORDER VACATING HEARING AND GRANTING DEFENDANTS' MOTIONS TO DISMISS 3 6 (Illston, Susan) (Filed on 12/10/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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PEDRO BRAMBILA; DOMINGA
BRAMBILA,

United States District Court
For the Northern District of California

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ORDER VACATING HEARING AND
GRANTING DEFENDANTS’ MOTIONS
TO DISMISS

Plaintiffs,

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No. CV 12-05103 SI

v.
MICHAEL ANTHONY TEMBY, et al.,
Defendants.

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Currently before the Court are defendants’ motions to dismiss pro se plaintiffs’ complaint
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pursuant to Federal Rule of Civil Procedure 12(b)(6). Pursuant to Civil Local Rule 7-1(b), the Court
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finds this matter suitable for disposition without oral argument and therefore VACATES the hearing
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currently scheduled for December 14, 2012. Having carefully considered the papers submitted, the
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Court GRANTS defendants’ motions to dismiss without leave to amend, for the reasons set forth below.
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BACKGROUND
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According to the complaint, plaintiffs Pedro and Dominga Brambila once resided at 2080 Roper
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Circle, Brentwood, California, 94513 (“Subject Property”). Compl. ¶ 1. On August 14, 2012, they
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discovered that the locks on the subject property had been changed by Bank of America. Id. ¶ 5. A
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“secured posting notice” had been taped to their door by defendants Team Temby Properties, Inc. and
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Michael Anthony Temby (collectively “Temby”). The next day, Temby posted a second notice on the
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door stating that personal property in the Subject Property would be disposed of after 18 days, on
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September 2, 2012. Id. ¶ 6. The Brambilas allege that Temby did not have an order from Bank of
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America to post notices for the removal of their personal property, and they claim that they “continue

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to hold lawful and legal title to the property, by way of a Grant Deed.” Id. ¶ 10.
Plaintiffs also allege that wrongful acts were committed by defendants Ron Ventura and his real

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estate and property management firm, Best Property Management, Inc. (collectively “Best”). Id. ¶¶ 2-3.

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On July 13, 2012, plaintiffs entered into a rental agreement with Best for a property at 2930 Lundin Ln,

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Brentwood, California 94513 (“Second Property”). Id. ¶ 4, Ex. B. Plaintiffs do not allege any wrongful

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acts regarding the Second Property or the rental agreement with Best; plaintiffs’ only factual allegation

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connecting defendants Best to defendants Temby is that they all work in the same building. Id. ¶¶ 1-2.

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Plaintiffs allege seven causes of action against all defendants based on Temby’s posted notice.

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United States District Court
For the Northern District of California

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The claims are for: (1) fraudulent misrepresentation, (2) extortion, (3) breaking and entering and theft,

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(4) conspiracy to defraud, (5) trespass, (6) RICO violations, and (7) forgery.

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LEGAL STANDARD

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Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it

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fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss,

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the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility ” standard requires the plaintiff

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to allege facts that add up to “more than a sheer possibility that a defendant has acted unlawfully.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although courts do not require “heightened fact pleading

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of specifics,” Twombly, 550 U.S. at 544, a plaintiff must provide “more than labels and conclusions, and

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a formulaic recitation of the elements of a cause of action will not do,” id. at 555. The plaintiff must

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allege facts sufficient to “raise a right to relief above the speculative level.” Id.

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In deciding whether the plaintiff has stated a claim, the Court must assume that the plaintiff’s

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allegations are true and must draw all reasonable inferences in his or her favor. Usher v. City of Los

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Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true

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“allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”

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St. Clare v. Gilead Scis., Inc., 536 F.3d 1049, 1055 (9th Cir. 2008). Moreover, “the tenet that a court

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must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”
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Iqbal, 556 U.S. at 678. In considering a motion to dismiss, the court may take judicial notice of matters

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of public record outside the pleadings. See MGIC Indemn. Corp. v. Weisman, 803 F.2d 500, 504 (9th

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Cir. 1986).
If the Court dismisses a complaint, it must decide whether to grant leave to amend. The Ninth

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Circuit has “repeatedly held that a district court should grant leave to amend even if no request to amend

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the pleading was made, unless it determines that the pleading could not possibly be cured by the

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allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal

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quotation marks omitted). Dismissal of a pro se complaint without leave to amend is proper only if it

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is “absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Noll v.

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United States District Court
For the Northern District of California

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Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (quoting Broughton v. Cutter Labs., 622 F.2d 458, 460

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(9th Cir. 1980)).

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DISCUSSION
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Defendants Best’s Motion to Dismiss

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The Best defendants move to dismiss the Brambilas’ complaint pursuant to Federal Rule of Civil

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Procedure 12(b)(6), arguing that each cause of action fails to allege any facts to support any claim

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against Best. The Court agrees. Best entered into a lease agreement with plaintiffs for the Second

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Property, but had nothing to do with the alleged wrongful acts regarding the Subject Property. Although

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each of plaintiffs’ seven causes of action is pled against all defendants, plaintiffs never state any specific

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facts that Best knew of Temby’s actions, agreed with the actions, or participated in any manner. That

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they worked in the same building as the Temby defendants is not enough to attribute knowledge,

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agreement, or concerted actions.

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Furthermore, the Court finds it absolutely clear that plaintiffs could not cure the deficiencies in

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their complaint against the Best defendants. In their opposition, plaintiffs do not even aver that they

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may be able to allege more facts regarding Best, and instead merely recite the same facts alleged in their

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complaint. The facts that they do allege regarding Best and the Second Property have nothing to do with

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the alleged wrongful acts of Temby and the Subject Property. Therefore, the Court dismisses defendants

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Best and Ventura with prejudice.
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II.

Defendants Temby’s Motion to Dismiss
In support of the Temby defendants’ motion to dismiss, Temby attaches 13 documents, along

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with a request for judicial notice of these exhibits. Federal Rule of Evidence 201 allows a court to take

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judicial notice of facts that are either generally known or “capable of accurate and ready determination

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by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). The Court

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grants this request, because all documents are matters of public record (e.g., recorded deeds and public

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court filings). See MGIC Indemn. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). Plaintiffs

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object to this, arguing that judicial notice is only proper at the summary judgment stage. They are

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incorrect. See id.; Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1998) (“It is proper for

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United States District Court
For the Northern District of California

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the district court to take judicial notice of matters of public record outside the pleadings and consider

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them for the purposes of the motion to dismiss.”) (citations and quotations omitted).

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Plaintiffs’ entire theory of defendants’ wrongful action is premised on the fact that they were the

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rightful owners of the Subject Property. However, the documents presented by defendants clearly show

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that plaintiffs were not the rightful owners of the Subject Property when defendants placed notices on

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the door for the removal of personal property. On March 29, 2005, plaintiffs obtained a loan from First

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Franklin, secured by a Deed of Trust against the Subject Property. Req. for Judicial Notice (“RJN”),

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Ex. 1. Plaintiffs defaulted on their loan, and non-judicial foreclosure proceedings were commenced,

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ending in a trustee’s sale. RJN, Exs. 2-7. The Notice of Default and Election to Sell Under Deed of

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Trust was recorded with the Contra Costa County Recorder on August 17, 2009. RJN, Ex. 2.

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On January 12, 2010, plaintiff Pedro Brambila filed a complaint against First Franklin and other

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banks in the Superior Court of California, Contra Costa County, alleging that the Subject Property was

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not properly foreclosed upon. RJN, Ex 10. On September 23, 2010, the Superior Court adjudged that

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defendants Wells Fargo Bank and First Franklin should be dismissed with prejudice. RJN, Ex. 11. On

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August 3, 2011, a Trustee’s Deed Upon Sale was recorded with the Contra Costa County Recorder.

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RJN, Ex. 8.

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Defendants Temby posted the notice of the Subject Property on August 15, 2012. This was more

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than a year after the Trustee’s Deed Upon Sale was recorded. Therefore, the Court finds that the

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Brambilas were not the rightful owners of the Subject Property when the notice was posted.
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In their opposition, plaintiffs do not dispute any of these facts. Plaintiffs argue that the request

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for judicial notice is only proper for a summary judgment, and then they restate all of the same facts that

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they alleged in their complaint. Nowhere have they made a showing that they will be able to cure the

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deficiencies in their complaint. Indeed, the Court finds that, because public documents show that they

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were not the rightful owners of the subject property when Temby posted the notice, as a matter of law

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it is “absolutely clear that the deficiencies of the complaint could not be cured by amendment.”

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CONCLUSION
For the foregoing reasons, the Court finds that the plaintiffs have failed to state a claim in their

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United States District Court
For the Northern District of California

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complaint, and it would be impossible for them to cure the deficiencies by amendment. Accordingly,

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defendants’ motions to dismiss are GRANTED. Docket Nos. 3, 6. The case is DISMISSED WITH

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PREJUDICE. The clerk shall close the file.

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IT IS SO ORDERED.

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Dated: December 10, 2012
SUSAN ILLSTON
United States District Judge

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