Vincent McLaughlin et al v. Owens et al

Filing 45

ORDER denying 40 Motion to Strike ; granting 31 Motion to Expunge Lis Pendens. The motion hearings scheduled for 3/16/2012 are VACATED. Signed by Judge Edward J. Davila On 3/14/2012. (ejdlc1, COURT STAFF) (Filed on 3/14/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION
ESTATE OF VINCENT McLAUGHLIN, et.
al.,

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For the Northern District of California

United States District Court

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CASE NO. 5:11-cv-02287 EJD
ORDER DENYING DEFENDANT’S
MOTION TO STRIKE; GRANTING
DEFENDANT’S MOTION TO EXPUNGE
LIS PENDENS

Plaintiff(s),
v.

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TERRI OWENS, et. al.,
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[Docket Item No(s). 31, 40]
Defendant(s).
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I.

INTRODUCTION

Plaintiffs Estate of Vincent McLaughlin and Raquel McLaughlin-Ray (collectively,

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“Plaintiffs”) filed the instant action against Defendants Terri Owen (“Owen”), San Jose Mercury

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News, LLC, The McClatchey Company and Aetna Life Insurance Company (“Aetna”), alleging

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wrongful payment of life insurance benefits. Presently before the Court are two matters: (1) Aetna’s

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Motion to Strike portions of the First Amended Complaint (“FAC”) pursuant to Federal Rule of

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Civil Procedure 12(f) (see Docket Item No. 40), and (2) Owen’s Motion to Expunge a lis pendens

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recorded against her home by Plaintiffs. See Docket Item No. 31.

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The court finds these matters suitable for decision without oral argument pursuant to Civil

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Local Rule 7-1(b). For the reasons explained below, Aetna’s motion will be denied while Owen’s

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motion will be granted.

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CASE NO. 5:11-cv-02287 EJD
ORDER DENYING DEFENDANT’S MOTION TO STRIKE; GRANTING DEFENDANT’S MOTION TO EXPUNGE
LIS PENDENS

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II.

THE MOTION TO STRIKE

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A.

Legal Standard

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The Court may strike “from any pleading any insufficient defense or any redundant,

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immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Because such motions are

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disfavored, a motion to strike will generally not be granted unless it is clear the matter to be stricken

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could not have any possible bearing on the subject matter of the litigation. See RDF Media Ltd. v.

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Fox Broad. Co., 372 F. Supp. 2d 556, 566 (C.D. Cal. 2005); see also LeDuc v. Ky. Cent. Life Ins.

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Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992).

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When the court considers a motion to strike, it “must view the pleading in a light most
favorable to the pleading party.” In re 2TheMart.com, Inc. Sec Litig., 114 F. Supp. 2d 955, 965

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For the Northern District of California

United States District Court

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(C.D. Cal. 2000). A motion to strike should be denied if there is any doubt whether the allegations

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in the pleadings might be relevant in the action. Id. Material that is redundant, immaterial,

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impertinent or scandalous is properly stricken. Id.

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B.

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A motion under Rule 12(f) may be used to strike an improvident demand for jury trial. See,

Discussion

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e.g., Stout v. Hartford Life & Accident Ins. Co., No. C 11-6186 CW, 2012 WL 762024, 2012 U.S.

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Dist. LEXIS 30862, at *2-3 (N.D. Cal. Mar. 8, 2012); Hoffman v. Am. Soc’y for Tecnnion-Israel

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Inst. of Tech., Inc., No. 09cv2482 AJB (CAB), 2011 WL 5570075, 2011 U.S. Dist. LEXIS 132207,

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at *9-10 (S.D. Cal. Nov. 16, 2011). And as Aetna points out, Ninth Circuit precedent provides that

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in “ERISA actions there is no independent constitutional or statutory right to a jury trial.” Nevill v.

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Shell Oil Co., 835 F.2d 209, 212-13 (9th Cir. 1987) (citing Blau v. Del Monte Corp., 748 F.2d 1348,

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1357 (9th Cir. 1984)); Thomas v. Oregon Fruit Prods. Co., 228 F.3d 991, 996-97 (9th Cir. 2000).

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Such precedent, however, does not result in an order striking Plaintiffs’ jury trial demand

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here. Aetna’s motion to strike the demand stems from its apparent characterization of this action as

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one governed exclusively by ERISA, and Aetna cites one of this court’s prior orders in support of

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that claim. See Decl. of Caraine R. Leon Guerrero, Docket Item No. 41, at ¶ 2. The problem with

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this characterization, however, is that a determination of ERISA’s application to, or preemption of,

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CASE NO. 5:11-cv-02287 EJD
ORDER DENYING DEFENDANT’S MOTION TO STRIKE; GRANTING DEFENDANT’S MOTION TO EXPUNGE
LIS PENDENS

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every state law cause of action alleged by Plaintiffs has not yet been made. Indeed, the prior order

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referenced by Aetna was one addressing a motion to remand. See Order Denying Pl.s’ Mot. to

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Remand, Docket Item No. 26. For that particular motion, the court found that ERISA’s express

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preemption of three particular causes of action supports federal question jurisdiction, and that

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supplemental jurisdiction exists as to the remaining claims. See id. (“Having found that three of

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Plaintiff’s claims are subject to complete preemption under ERISA, the court must find a basis for

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federal jurisdiction here. . . . Accordingly, the court may assert supplemental jurisdiction over the

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remaining claims and must deny Plaintiff’s motion to remand.”). The court did not make a

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determination that ERISA exclusively governs this case; such a finding was not necessary since the
motion to remand was not a motion to dismiss. Neither can such a determination be made within

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For the Northern District of California

United States District Court

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this motion since it is not a proper vehicle to test the legal sufficiency of the FAC. See Whittlestone,

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Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010).

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Plaintiffs may not be entitled to a jury trial as to those causes of action preempted by ERISA.

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However, they are entitled to a jury trial on those that are not preempted. See U.S. Const. amend.

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VII. For this reason, the demand may ultimately have some bearing on this litigation. Viewing the

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FAC in the light most favorable to Plaintiffs even in the absence of opposition, the motion to strike

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is denied with respect to the demand for jury trial.

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In addition, Aetna’s motion to strike Plaintiffs’ prayer for extra-contractual damages must

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also be denied. Although “[e]xtracontractual, compensatory and punitive damages are not available

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under ERISA,” (Bast v. Prudential Ins. Co. of Am., 150 F.3d 1003, 1009 (9th Cir. 1998)), “Rule

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12(f) does not authorize district courts to strike claims for damages on the ground that such claims

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are precluded as a matter of law.” Whittlestone, Inc., 618 F.3d at 974.

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III.

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MOTION TO EXPUNGE

State law controls matters relating to lis pendens. See 28 U.S.C. § 1964. In California, any

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party may apply to the court in which the action is pending to expunge a lis pendens. Cal. Code Civ.

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Proc. § 405.30. The court must grant a motion to expunge if it determines either (1) that the

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pleading on which the notice is based does not contain a real property claim, or (2) that the claimant

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CASE NO. 5:11-cv-02287 EJD
ORDER DENYING DEFENDANT’S MOTION TO STRIKE; GRANTING DEFENDANT’S MOTION TO EXPUNGE
LIS PENDENS

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has not established by a preponderance of the evidence the probable validity of the real property

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claim. Cal. Code Civ. Proc. §§ 405.31, 405.32. “[T]he burden is on the party opposing the motion

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to show the existence of a real property claim.” Kirkeby v. Sup. Ct., 33 Cal. 4th 642, 647 (2004).

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Owen argues this action does not contain a real property claim. The court agrees. A “real

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property claim” is a cause of action “in a pleading which would, if meritorious, affect (a) title to, or

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the right to possession of, specific real property . . . .” Cal. Code Civ. Proc. § 405.4. None of the

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causes of action contained in the FAC affect the title to or right to possession of Owen’s home on

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their face. To the extent Plaintiffs’ rely on a claim for constructive trust, such reliance is misplaced.

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See Lewis v. Sup. Ct., 30 Cal. App. 4th 1850, 1862 (1994) (“[A]llegations of equitable remedies,
even if colorable, will not support a lis pendens if, ultimately, those allegations act only as a

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For the Northern District of California

United States District Court

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collateral means to collect money damages.” (internal quotations omitted, emphasis preserved)).

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The case cited by Plaintiffs in opposition, Hunting World, Inc. v. Superior Court, 22 Cal. App. 4th

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67 (1994), does not compel a different conclusion since fraudulent conveyance is not alleged here.

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Accordingly, the motion to expunge the lis pendens will be granted. Since Owen did not

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provide sufficient evidence to support her request for attorney’s fees and costs, such as information

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concerning her attorney’s billing rate, the amount requested, or an explanation as to its reasonability,

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fees and costs pursuant to California Code of Civil Procedure § 405.38 will be denied as unjust

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under the circumstances.

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IV.

ORDER

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Based on the foregoing, Aetna’s Motion to Strike (Docket Item No. 40) is DENIED.

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Owen’s Motion to Expunge the Lis Pendens (Docket Item No. 31) is GRANTED. The lis

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pendens recorded against 679 Cree Drive, San Jose, California, (APN 695-26-039), is hereby

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expunged. Owen’s request for attorney’s fees and costs is DENIED.

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The motion hearings scheduled for March 16, 2012, are VACATED.

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IT IS SO ORDERED.

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Dated: March 14, 2012

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EDWARD J. DAVILA
United States District Judge

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CASE NO. 5:11-cv-02287 EJD
ORDER DENYING DEFENDANT’S MOTION TO STRIKE; GRANTING DEFENDANT’S MOTION TO EXPUNGE
LIS PENDENS