Fung et al v. Ray et al

Filing 43

ORDER GRANTING 12 MOTION TO DISMISS FILED BY DEFENDANTS MOSKOWITZ AND INTERO WITH LEAVE TO AMEND. Amended Pleading due by 4/15/2016. Signed by Judge Beth Labson Freeman on 3/24/2016. (blflc1S, COURT STAFF) (Filed on 3/24/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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JOHN FUNG, et al.,

Case No. 15-cv-04871-BLF

Plaintiffs,
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v.
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PATRICE JOHNSON RAY, et al.,

United States District Court
Northern District of California

Defendants.

ORDER GRANTING MOTION TO
DISMISS FILED BY DEFENDANTS
MOSKOWITZ AND INTERO WITH
LEAVE TO AMEND
[Re: ECF 12]

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For the reasons stated on the record at the hearing on March 24, 2016 and summarized

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herein, the motion to dismiss filed by Defendants Daniel Moskowitz and Intero Real Estate

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Services, Inc. is GRANTED WITH LEAVE TO AMEND.

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This action arises out of a landlord’s alleged abusive treatment of and, ultimately, eviction

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of two tenants suffering from serious mental health issues despite accepting their rent payments.

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After being homeless for several years, Plaintiffs John Fung and Lynette Mason entered into a

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one-year written lease for a single family home through the assistance of the Catholic Charities of

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Santa Clara County and a Section 8 housing subsidy program. Plaintiffs allege that although they

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had leased the entire premises, the property owner – Defendant Patrice Johnson Ray – permitted

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Plaintiffs access only to the garage while continuing to reside in the house itself. Ray also listed

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the property for sale through Defendant Daniel Moskowitz, a real estate agent with Defendant

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Intero Real Estate Service, Inc. Plaintiffs allege that Moskowitz discriminated against and

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conspired to discriminate against Plaintiffs on the basis of their mental health issues, and acted as

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Ray’s agent with respect to tenancy negotiations between Ray and Plaintiffs. Plaintiffs assert

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nineteen claims against Ray, Moskowitz, and Intero under federal and state law.

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Moskowitz and Intero move to dismiss the complaint under Federal Rule of Procedure
12(b)(6) for failure to state a claim upon which relief may be granted. As it observed at the

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hearing, the Court is not persuaded by moving parties’ arguments that this case is solely a

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landlord-tenant dispute and that Moskowitz and Intero cannot be held liable for any of the alleged

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conduct. However, the Court concludes that Plaintiffs have not pled with sufficient particularity

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what facts give rise to liability against Moskowitz and Intero on each claim alleged against them.

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While a complaint need only include “a short and plain statement of the claim showing that the

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pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), it “should ‘fully set forth who is being sued,

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for what relief, and on what theory, with enough detail to guide discovery,’” Salazar v. Cnty. of

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Orange, No. 12-56545, 564 Fed. Appx. 322, 322 (9th Cir. Mar. 18, 2014) (quoting McHenry v.

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United States District Court
Northern District of California

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Renne, 84 F.3d 1172, 1177 (9th Cir. 1996)) (alteration omitted). While the complaint’s

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background section contains specific allegations regarding each defendant’s conduct, the claims

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themselves are devoid of such allegations, leaving the Court to guess which factual allegations

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Plaintiffs intend to support which claims. This deficiency is exacerbated by Plaintiffs’ inclusion

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of Moskowitz and Intero as defendants to claims that clearly may be brought only against the

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landlord, Ray.

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Accordingly, the motion to dismiss is GRANTED WITH LEAVE TO AMEND as to all

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claims set forth in the complaint. Plaintiffs shall file any amended pleading on or before April 15,

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2016. Leave to amend is limited to the claims alleged in the original complaint; Plaintiffs may not

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add claims or parties without express leave of the Court.

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IT IS SO ORDERED.

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Dated: March 24, 2016
______________________________________
BETH LABSON FREEMAN
United States District Judge

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