Calip v. Tanigawa et al

Filing 65

ORDER GRANTING DEFENDANTS' MOTIONS; DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND. Should plaintiff choose to file an amended pleading, such pleading shall be titled Second Amended Complaint and shall be filed no later than March 1, 2017. If plaintiff does not file a Second Amended Complaint within the time provided, the instant action will be dismissed for lack of subject matter jurisdiction and without prejudice to refiling in state court. Signed by Judge Maxine M. Chesney on 02/08/17. (mmclc2, COURT STAFF) (Filed on 2/8/2017) (Additional attachment(s) added on 2/8/2017: # 1 Certificate/Proof of Service) (tlS, COURT STAFF).

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 SHARLA CALIP, Plaintiff, 8 v. 9 10 MARY TANIGAWA, et al., ORDER GRANTING DEFENDANTS’ MOTIONS; DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND Re: Dkt. Nos. 51, 56, 57 Defendants. 11 United States District Court Northern District of California Case No. 15-cv-02111-MMC 12 13 Before the Court are two motions: (1) defendant Housing Authority of the County 14 of Alameda’s (“HACA”) motion, filed September 7, 2016, for judgment on the pleadings 15 pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, for lack of subject matter 16 jurisdiction and failure to state a claim (“HACA Motion”); and (2) defendant Mary 17 Tanigawa’s (“Tanigawa”) motion, filed October 28, 2016, to dismiss the action pursuant to 18 Rule 12(b)(1), for lack of subject matter jurisdiction (“Tanigawa Motion”).1 No opposition 19 has been filed by plaintiff Sharla Calip (“Calip”). Having read and considered the papers 20 filed in support of the motions, the Court rules as follows.2 BACKGROUND 21 22 In the operative complaint, the First Amended Complaint (“FAC”), Calip alleges 23 she is “a person with mental [i]llness” whose “rights w[]ere violated by” HACA and 24 Tanigawa. (See FAC ¶¶ 1, 7.) 25 1 26 27 That same date, Tanigawa also filed a “Notice of Joinder” in the HACA Motion, specifically joining in “HACA’s argument that [p]laintiff has failed to sufficiently plead a breach of contract claim.” (See Not. Joinder, at 2:1-4.) 2 28 By order filed November 23, 2016, the Court took the matters under submission. 1 In particular, Calip alleges that, “due to a fire in her previous residen[ce],” she 2 relocated to a building at which Tanigawa was her “[l]andlord.” (See id. ¶¶ 9, 11.) At her 3 prior residence, Calip alleges, she had a “live-in aide” named “Richard Davis,” and that, 4 upon moving to Tanigawa’s building, she “submitted a reasonable accommodation [to 5 HACA] to continue Richard[] as her live-in aide [in] her new residen[ce.]” (See id. ¶¶ 9- 6 10.) Calip further alleges that, on July 9, 2012, Tanigawa “informed [Calip] of a minor 7 violation” and “requested that [Calip] have her guest fill out an application for process.” 8 (See id. ¶ 11.) Calip alleges she thereafter “did so” (see id.) and that Tanigawa “never 9 sent [her] any other notice” stating she was “in violation of her lease” (see id. ¶ 12). In addition to her above-referenced interaction with Tanigawa, Calip alleges, she “followed 11 United States District Court Northern District of California 10 up with a request of a reasonable accommodation with HACA for Richard Davis,” and 12 that “[a] notice dated March 5, 2013 appears to have been sent by fax to [her] [a]ide, 13 indicating that HACA [was] unable to process the live-in [a]ide request” (see id. ¶ 13), but 14 that she did not receive the notice, as neither she nor her aide “own[s] a fax machine” 15 (see id. ¶ 14). 16 Based on the above allegations, Calip alleges that she was “deprived . . . of prior 17 notice of termination [and] reasonable accommodation of a live-in aide due to her 18 disability,” and, further, that defendants “conduct[ed] a hearing without indicating that the 19 information would be used against [her] to terminate her housing and/or possible 20 prosecution,” that defendants “[took] photos without [her] knowledge and [did not] 21 address[] her living in a substandard condition for over a year,” and that “defendants 22 continu[e] to violate [her] constitutionally protected rights under the federally subsidized 23 housing project.” (See id. ¶ 7.) In reliance thereon, Calip asserts a single cause of action 24 for “Breach of Contract.” (See id. at 3:2.) 25 26 27 28 LEGAL STANDARD A. Motion for Judgment on the Pleadings under Rule 12(c) Rule 12(c) provides that “[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” See Fed.R.Civ.P. 12(c). 2 1 “The principal difference between motions filed pursuant to Rule 12(b) and Rule 12(c) is 2 the time of filing.” See Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th 3 Cir.1989). Consequently, as the motions are “functionally identical,” see id., federal 4 courts, in considering motions made under Rule 12(c), apply the same analysis as that 5 applicable to motions made under Rule 12(b). See, e.g., id. 6 Dismissal under Rule 12(b)(6) can be based on the lack of a cognizable legal 7 theory or the absence of sufficient facts alleged under a cognizable legal theory. See 8 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). Rule 8(a)(2), 9 however, “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 11 United States District Court Northern District of California 10 1955, 167 L.Ed.2d 929 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). Consequently, “a 12 complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual 13 allegations.” See id. Nonetheless, “a plaintiff's obligation to provide the grounds of his 14 entitlement to relief requires more than labels and conclusions, and a formulaic recitation 15 of the elements of a cause of action will not do.” See id. (internal quotation, citation, and 16 alteration omitted). In analyzing a motion to dismiss, a district court must accept as true 17 all material allegations in the complaint, and construe them in the light most favorable to 18 the nonmoving party. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). 19 Courts, however, “are not bound to accept as true a legal conclusion couched as a 20 factual allegation.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation 21 and citation omitted). 22 23 B. Motion to Dismiss under Rule 12(b)(1) “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for 24 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). “In a facial attack, the 25 challenger asserts that the allegations contained in a complaint are insufficient on their 26 face to invoke federal jurisdiction.” Id. “By contrast, in a factual attack, the challenger 27 disputes the truth of the allegations that, by themselves, would otherwise invoke federal 28 jurisdiction.” Id. Where, as here, the challenge to jurisdiction is a facial attack, the Court 3 1 assumes the plaintiff's “allegations to be true and draw[s] all reasonable inferences in 2 [her] favor.” See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.2004). Because federal 3 courts are “courts of limited jurisdiction,” however, the burden of establishing subject 4 matter jurisdiction “rests upon” Calip, “the party asserting jurisdiction.” See Kokkonen v. 5 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377(1994). DISCUSSION 6 7 8 9 10 United States District Court Northern District of California 11 12 A. Subject Matter Jurisdiction Defendants contend the FAC does not include a statement of subject matter jurisdiction, as required by federal law, and, in any event, that the allegations in the FAC are insufficient to support either diversity or federal question jurisdiction. 1. Failure to Allege Jurisdiction Rule 8(a) requires that a complaint include “a short and plain statement of the 13 grounds upon which the court’s jurisdiction depends.” See Fed. R. Civ. P. 8(a). 14 Additionally, under the Civil Local Rules of this District, “[e]ach complaint . . . must include 15 a separate paragraph entitled ‘Jurisdiction,’” which must “identify the statutory or other 16 basis for federal jurisdiction and the facts supporting such jurisdiction.” See Civil L.R. 3-5. 17 Here, as defendants correctly point out, the FAC does not include the requisite 18 jurisdictional statement. Nevertheless, where a complaint lacks such statement, but the 19 factual allegations therein demonstrate a basis for jurisdiction, dismissal is not 20 appropriate. See Cook v. Winfrey, 141 F.3d 322, 326 (7th Cir. 1998) (“Imperfections in 21 the pleading will not divest a federal court of jurisdiction where the complaint as a whole 22 reveals a proper basis for jurisdiction.”). 23 24 25 26 Accordingly, in determining whether Calip has stated a basis for federal subject matter jurisdiction, the Court next turns to the factual allegations made in the FAC. 2. Diversity Jurisdiction Federal courts have diversity jurisdiction over actions between citizens of different 27 states. See 28 U.S.C. § 1332(a). Diversity jurisdiction requires that the citizenship of 28 each plaintiff be diverse from that of each defendant. See Caterpillar, Inc. v. Lewis, 519 4 1 U.S. 61, 68 (1996). Here, Calip alleges that she is “a resident of the State of California” 2 (see FAC ¶ 1), that Tanigawa is a “sole proprietorship doing business as a[] landlord in 3 the State of California” (see id. ¶ 2), and that HACA is “a governmental agency in the 4 State of California” (see id. ¶ 3). The Court thus finds the FAC does not state a basis for 5 diversity jurisdiction over the instant action. 3. Federal Question Jurisdiction 6 7 Pursuant to 28 U.S.C. § 1331, federal courts have “original jurisdiction of all civil 8 actions arising under the Constitution, laws, or treaties of the United States.” See 28 9 U.S.C. § 1331. In this instance, as defendants point out, Calip has not asserted a cause of action arising under a federal law. Rather, the only cause of action she asserts is a 11 United States District Court Northern District of California 10 breach of contract claim, which is governed by state law. 12 Calip, however, proceeds pro se, and pro se complaints are “h[e]ld to less 13 stringent standards than formal pleadings drafted by lawyers.” See Haines v. Kerner, 404 14 U.S. 519, 520 (1972). The Court “ha[s] an obligation where the [plaintiff] is pro se, 15 particularly in civil rights cases, to construe the pleadings liberally and to afford the 16 [plaintiff] the benefit of any doubt.” See Bretz v. Kelman, 773 F.2d 1026, 1027 n.3 (9th 17 Cir. 1985). Where a plaintiff alleges facts sufficient to support a federal basis for his or 18 her complaint, dismissal is not warranted “for imperfect statement of the legal theory 19 supporting [that] claim.” See Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 346-47 20 (2014) (holding, where plaintiffs had “informed [defendant] of the factual basis for their 21 complaint,” which facts were sufficient to plead a claim under 42 U.S.C. § 1983, plaintiffs 22 “should [have been] accorded an opportunity to add to their complaint a citation to 23 § 1983”). 24 In that regard, as noted, Calip alleges defendants “violate[d] [her] constitutionally 25 protected rights under the federally subsidized housing project,” by “depriv[ing] [her] of 26 prior notice of termination” and “reasonable accommodation of a[] live-in aide due to her 27 disability,” and “conducting a hearing without indicating that the information would be 28 used against [her] to terminate her housing.” (See FAC ¶7.) The Fair Housing Act 5 1 (“FHA”) prohibits, inter alia, a person or entity from “discriminat[ing]” against any renter or 2 prospective renter based on “handicap.” See 42 U.S.C. § 3604(f)(2). For purposes of the 3 FHA, “discrimination” includes “a refusal to make reasonable accommodations in rules, 4 policies, practices, or services, when such accommodations may be necessary to afford 5 such person equal opportunity to use and enjoy a dwelling.” See id. § 3604(f)(3)(B). 6 Additionally, a “public housing agency,” see 24 C.F.R. § 982.4(b), “must approve a 7 [qualified] live-in aide if needed as a reasonable accommodation.” See id. § 982.316(a). 8 Construing the pleadings liberally, the Court finds Calip has informed defendants of her 9 reliance on federal antidiscrimination law, notwithstanding the “imperfect statement of the 10 United States District Court Northern District of California 11 legal theory supporting [her] claim.” See Johnson, 135 S. Ct. at 346-47. The Court may not, however, “supply essential elements of the claim that were not 12 initially pled.” See Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 13 1982). Although, as discussed above, Calip appears to be alleging a federal housing 14 discrimination claim, she has not identified the federal statute or other federal law on 15 which she relies, nor has she made clear the facts on which any such violation is alleged 16 to be based. 17 Accordingly, the FAC is subject to dismissal with leave to amend to plead a claim 18 or claims over which the Court has subject matter jurisdiction. See Morongo Band of 19 Mission Indians v. California State Bd. of Equalization, 852 F.2d 1376, 1380 n.3 (9th Cir. 20 1988) (holding, where complaint “inadequately alleges jurisdiction, the court may grant 21 leave to amend the defective allegations”). In particular, should Calip choose to file a 22 second amended complaint and assert, in addition to breach of contract, any cause(s) of 23 action under federal law, she is directed to include a jurisdictional statement complying 24 with Rule 8(a) of the Federal Rules of Civil Procedure and Civil Local Rule 3-5, and to set 25 forth sufficient facts to “state a claim to relief that is plausible on its face.” See Iqbal, 556 26 U.S. at 678. 27 28 B. Failure To State a Claim Defendants contend that, even if the Court has jurisdiction over the instant action, 6 1 the FAC fails to state a claim for breach of contract. In particular, defendants argue, 2 Calip “fails to provide factual underpinnings regarding the nature of th[e] alleged contract, 3 its material terms, or the parties to the agreement” (see HACA Mot. at 6:21-22) or 4 “describe any contractual obligation that [defendant] violated” (see id. at 7:12). 5 As discussed above, the Court has found it lacks jurisdiction over Calip’s 6 complaint as currently pleaded. Nevertheless, as Calip will be afforded leave to amend 7 to plead, if she can do so, a federal claim, the Court, in an effort to obviate the need for 8 additional amendment subsequent to the filing of any such amended pleading, next 9 addresses herein the deficiencies in Calip’s state law claim. 10 Pursuant to Rule 8, a complaint must “give the defendant fair notice of what the United States District Court Northern District of California 11 claim is and the grounds upon which it rests.” See Erickson v. Pardus, 551 U.S. 89, 93 12 (2007) (internal quotation, citation, and alteration omitted). If a complaint “fails to identify 13 the alleged contract between the parties, and the facts and circumstances surrounding 14 the alleged breach of contract . . . [it] fail[s] to give fair notice to [d]efendants of the 15 actions of which they are accused, in direct contravention of Rule 8.” See Rasidescu v. 16 Midland Credit Mgmt., Inc., 435 F. Supp. 2d 1090, 1099 (S.D. Cal. 2006). 17 Here, although the FAC makes reference to a “written contract” (see FAC ¶ 7), 18 defendants have not been given fair notice of its relevant terms. See Bassam v. Bank of 19 Am., No. CV 15-00587 MM FMX, 2015 WL 4127745, at *4 (C.D. Cal. July 8 2015 (“To 20 plead the existence of a contract, a plaintiff must quote the terms of the purported 21 contract, attach it to the complaint, or clearly allege the substance of the relevant 22 terms.”); McKell v. Wash. Mut., Inc., 142 Cal. App. 4th 1457, 1489 (2006) (same). 23 Next, although Calip sets forth, as described above, various acts on the part of 24 Tanigawa and HACA, such allegations, in the absence of an adequate pleading of the 25 underlying terms of the contract or contracts, do not provide either defendant with “fair 26 notice,” see Erickson, 551 U.S. at 93, of the material contractual obligations on which 27 Calip relies, let alone how any such obligation was breached by either defendant. See 28 Langan v. United Servs. Auto. Ass’n, 69 F.Supp.3d 965, 979-80 (N.D. Cal. 2014) (holding 7 1 “the Court must be able generally to discern at least what material obligation of the 2 contract the defendant allegedly breached”). 3 Accordingly, if Calip does decide to amend her complaint to plead both a claim for 4 breach of contract and one or more federal claims, she will need to cure the above-noted 5 deficiencies. CONCLUSION 6 7 8 For the reasons stated above, defendants’ motions are hereby GRANTED and the FAC is DISMISSED with leave to amend as set forth above. Should Calip choose to file an amended pleading, such pleading shall be titled 10 Second Amended Complaint and shall be filed no later than March 1, 2017. Further, 11 United States District Court Northern District of California 9 although Calip has been afforded leave to amend her pleadings, she may not add any 12 new defendant without first obtaining leave of court. See Fed. R. Civ. P. 15(a)(2). If 13 Calip does not file a Second Amended Complaint within the time provided, the instant 14 action will be dismissed for lack of subject matter jurisdiction and without prejudice to 15 refiling in state court. 16 17 IT IS SO ORDERED. 18 19 Dated: February 8, 2017 MAXINE M. CHESNEY United States District Judge 20 21 22 23 24 25 26 27 28 8

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