Corona v. Azul Vista, LLC et al

Filing 10

ORDER Granting 4 Defendant's Motion to Dismiss. IT IS HEREBY ORDERED that Defendant's motion to dismiss for failure to state a claim is GRANTED. 1. Plaintiff's Civil RICO claim brought pursuant to 18 U.S.C. § 1961, et seq. is DI SMISSED WITH PREJUDICE, as to both Defendants; 2. Plaintiff's federal TCPA claim, and supplemental state law claims alleged against Defendant Michael J. Martinez are DISMISSED WITHOUT PREJUDICE; 2. Plaintiff is GRANTED fourteen (14) days leave t o file an Amended Complaint which cures all the deficiencies of pleading described in this Order. Plaintiff is cautioned, however, that should she choose to file an Amended Complaint, it must be complete by itself, comply with the Federal Rules of Civil Procedure, including Rule 8(a), and that any claim not re-alleged will be considered waived. Signed by Judge John A. Houston on 3/31/2017. (All non-registered users served via U.S. Mail Service)(aef)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

ARLENE CORONA,

Case No.: 16cv1594-JAH (BGS)

Plaintiff,

12

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS [DOC. NO. 4]

13

v.

14

AZUL VISTA, LLC, a Nevada limited
liability company; MICHAEL J.
MARTINEZ, an individual, DOES 1-100,
ABC CORPORATIONS 1-100, XYZ,
LLC’s 1-100.

15
16
17

Defendants.

18
19

INTRODUCTION

20
21

Pending before the Court is Defendant Michael J. Martinez’s (“Defendant”) motion

22

to dismiss pro se Plaintiff Arlene Corona’s (“Plaintiff”) verified complaint for damages,

23

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Doc. No. 4.

24

Defendant’s motion has been fully briefed by the parties. See Doc. Nos. 6, 7. After a careful

25

review of the pleadings and for the reasons set forth below, Defendant’s motion is

26

GRANTED.

27

//

28

//
1
16cv1594-JAH (BGS)

1

BACKGROUND

2

The instant action arises from Plaintiff’s allegation that, on March 25, 2016, she

3

received a text message, on her personal cell phone, from a phone number registered to

4

AZUL VISTA, LLC, a Nevada limited liability corporation alleged to be owned by

5

Defendant. See Doc. No. 1-2, Exh. A. Plaintiff had expressly informed the public not to

6

make solicitation calls and/or texts on her personal cellular phone via national do-not-call

7

registration. Id.

8

On April 27, 2016, Plaintiff, proceeding pro se, filed suit in the Superior Court of

9

California, County of San Diego, alleging violations under the Racketeering Influence and

10

Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964; and violations under the

11

Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Id. Plaintiff also alleged

12

violations under Cal. Pub. Util. Code § 2873, for using an automated dialer and automated

13

answering device to call/text Plaintiff; violations under Cal. Bus. & Prof. Code § 17200,

14

for engaging in illegal business activity; as well as trespass to chattels. Id. Plaintiff seeks

15

statutory damages, punitive damages, injunctive relief, and payment of reasonable

16

attorney’s fees and costs. Id.

17

On June 23, 2016, Defendant removed the matter to this Court. See Doc. No. 1. On

18

June 30, 2016, Defendant moved to dismiss Plaintiff’s complaint for failure to state a claim

19

upon which relief can be granted. See Doc. No. 4. On August 5, 2016, Plaintiff filed a

20

response in opposition, and on August 15, 2016, Defendant field a reply. See Doc. Nos. 6,

21

7. On August 18, 2016, the Court deemed the matter suitable for disposition without oral

22

argument, pursuant to CivLR 7.1 (d.1). See Doc. No. 8.

23
24

DISCUSSION
I.

Legal Standard

25

A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint.

26

Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule

27

12(b)(6) where the complaint lacks a cognizable legal theory. See Robertson v. Dean Witter

28

Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); Neitzke v. Williams, 490 U.S. 319, 326
2
16cv1594-JAH (BGS)

1

(1989) (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive

2

issue of law”). Alternatively, a complaint may be dismissed where it presents a cognizable

3

legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534.

4

While a plaintiff need not give “detailed factual allegations,” he must plead sufficient facts

5

that, if true, “raise a right to relief above the speculative level.” Bell Atlantic Corp. v.

6

Twombly, 550 U.S. 544, 545 (2007).

7

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

8

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

9

129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 547). A claim is facially

10

plausible when the factual allegations permit “the court to draw the reasonable inference

11

that the Defendant is liable for the misconduct alleged.” Id. In other words, “the non-

12

conclusory ‘factual content,’ and reasonable inferences from that content, must be

13

plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service,

14

572 F.3d 962, 969 (9th Cir. 2009). “Determining whether a complaint states a plausible

15

claim for relief will . . . be a context-specific task that requires the reviewing court to draw

16

on its judicial experience and common sense.” Iqbal, 129 S. Ct. at 1950.

17

In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the

18

truth of all factual allegations and must construe all inferences from them in the light most

19

favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002);

20

Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal

21

conclusions need not be taken as true merely because they are cast in the form of factual

22

allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); Western Mining

23

Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on a motion to dismiss, a

24

court may consider the facts alleged in the complaint, documents attached to the complaint,

25

documents relied upon but not attached to the complaint when authenticity is not contested,

26

and matters of which a court takes judicial notice. Lee v. City of Los Angeles, 250 F.3d 668,

27

688-89 (9th Cir. 2001). If a court determines that a complaint fails to state a claim, the

28

court should grant leave to amend unless it determines that the pleading could not possibly
3
16cv1594-JAH (BGS)

1

be cured by the allegation of other facts. See Doe v. United States, 58 F.3d 494, 497 (9th

2

Cir. 1995).

3

II.

4
5

Analysis
Defendant moves this Court for an order dismissing all of Plaintiff’s federal and state

law claims for failure to state a claim upon which relief may be granted. See Doc. No. 4.

6

A.

7

RICO focuses on “racketeering activity,” which the statute defines as a number of

8

specific criminal acts under federal and state laws. See 18 U.S.C. § 1961(1) (emphasis

9

added). Under § 1962(c), it is illegal for any person “to conduct or participate, directly or

10

indirectly, in the conduct of [an] enterprise’s affairs through a pattern of racketeering

11

activity,” where that enterprise affects interstate commerce. It is also illegal for any person

12

to conspire to do so. 18 U.S.C. § 1962(d). A “pattern of racketeering activity” requires at

13

least two predicate acts of racketeering activity, as defined in 18 U.S.C. § 1961(1), within

14

a period of ten years. 18 U.S.C. § 1961(5).

Failure to State a Civil RICO Claim

15

Under RICO’s civil enforcement mechanism, “[a]ny person injured in his business

16

or property by reason of a violation of [18 U.S.C. § 1962] may sue therefor in any

17

appropriate United States district court and shall recover threefold the damages he sustains

18

and the cost of the suit, including a reasonable attorney’s fee[.]” 18 U.S.C. § 1964(c). To

19

have standing under § 1964(c), a civil RICO plaintiff must show: (1) that his alleged harm

20

qualifies as injury to his business or property; and (2) that his harm was “by reason of” the

21

RICO violation, which requires the plaintiff to establish proximate causation. Holmes v.

22

Sec. Investor Prot. Corp., 503 U.S. 258, 268 (1992); Sedima, S.P.R.L. v. Imrex Co., 473

23

U.S. 479, 496 (1985).

24

Defendant contends that Plaintiff cannot state a cognizable RICO claim, as to it,

25

because (1) Plaintiff fails to allege a pattern of racketeering activity; (2) Plaintiff has

26

insufficiently alleged the existence of an enterprise; (3) Plaintiff has failed to prove

27
28
4
16cv1594-JAH (BGS)

1

proximate cause; and (4) Plaintiff fails to allege a conspiracy under 18 U.S.C. § 1961(d).1

2

See Doc. No. 4-1 at 3-7. As a matter of law, the Court agrees.

3

A review of the complaint reveals that Plaintiff pleads no facts alleging that either

4

Defendant committed any of the enumerated criminal acts recognized as “racketeering

5

activity” under 18 U.S.C. § 1961(1). Instead, Plaintiff alleges that, on March 25, 2016,

6

without her consent, Defendants contacted her cell phone on March 25, 2016. The Court

7

finds this omission alone fatal. Moreover, assuming arguendo that the predicate act

8

Plaintiff alleges constituted racketeering activity under § 1961(1)—which it does not—

9

Plaintiff’s RICO claim would still fail to state a cognizable claim because a pattern of

10

racketeering requires “at least two acts of racketeering activity” within “ten years” of each

11

other. 18 U.S.C. § 1961(5). The Court finds that Plaintiff’s Civil RICO claim fails, and, as

12

a matter of law, is suitable for dismissal WITH PREJUDICE.

13

B. Failure to State a TCPA Claim

14

The TCPA is codified at 47 U.S.C. § 227. The statute contains prohibitions

15

concerning calls made to residential telephone lines and prohibitions concerning calls made

16

to wireless telephone lines. 47 U.S.C. § 227(b)(1)(B); 47 U.S.C. § 227(b)(1)(A)(iii). Under

17

the prohibition related to residential lines, the Federal Communications Commission

18

(“FCC”) is permitted to make exceptions for certain calls that are not made for a

19

commercial purpose or those made for a commercial purpose that do not contain an

20

unsolicited advertisement and will not adversely affect privacy rights. 47 U.S.C. §

21

227(b)(2)(B). The statute does not permit the FCC to make similar exceptions for calls

22

made to wireless numbers.

23

The TCPA clearly prohibits making any call “using any automatic telephone dialing

24

system or an artificial or prerecorded voice” to a wireless number. 47 U.S.C. §

25
26
27
28

Because the Court ultimately finds that Plaintiff fails to allege any “racketeering
activity” as defined in 18 U.S.C. § 1961(1), the Court need not address Defendant’s
alternate theories for dismissing the Complaint.
1

5
16cv1594-JAH (BGS)

1

227(b)(1)(A). Since the applicable section is written in the disjunctive, a violation may

2

occur if any one of an automated telephone dialing system, an artificial voice, or a

3

prerecorded voice is used to make the call. In re Pacific–Atlantic Trading Co., 64 F.3d

4

1292, 1302 (9th Cir.1995). The only statutory exceptions to the wireless number

5

prohibition are calls made for emergency purposes or with the prior consent of the call

6

recipient. 47 U.S.C. § 227(b)(1)(A). The TCPA prohibits making offending calls to a

7

cellular number in addition to other services for which the called party is charged, but there

8

is no statutory requirement that a recipient be charged for an incoming call on a cellular

9

line in order for a violation to occur. 47 U.S.C. § 227(b)(1)(A)(iii). In sum, the TCPA

10

clearly prohibits using an automated telephone dialing system, an artificial voice, or a

11

prerecorded voice to make a call to a cellular phone number where prior consent was not

12

obtained except for emergency purposes.

13

Defendant contends that Plaintiff’s allegations are insufficient to support her TCPA

14

claim because Plaintiff does not allege that her phone number was, during the relevant time

15

period, on the national do-not-call list. See Doc. No. 4-1 at 8. In opposition, Plaintiff argues

16

that her number was registered on the national do-not-call list more than 31 days prior to

17

her receipt of the March 25, 2016 text message, but that a personal cell phone is not

18

required to be listed on the do-not-call registry in order to receive protection from spam

19

telemarketers. See Doc. No. 6 at 6. In reply, Defendant maintains that Plaintiff’s complaint

20

fails to include allegations that she received more than one text message, on one date, from

21

the Defendant. See Doc. No. 7 at 3.

22

Drawing all inferences in the light most favorable to Plaintiff, the Court finds that

23

Plaintiff fails to plead plausible facts sufficient to state a claim under the TCPA. Although

24

Plaintiff's complaint alleges that she expressly informed the public to not make solicitation

25

calls and/or texts via the national do-not-call registration of her personal cell phone

26

number, Plaintiff does not allege that she was contacted more than once by Defendant.

27

Indeed, this omission is fatal to Plaintiff’s TCPA claim because, under 47 U.S.C. §

28

227(c)(5) (Private Right of Action), she lacks standing. Section 227(c) provides that only
6
16cv1594-JAH (BGS)

1

“[a] person who has received more than one telephone call within any 12-month period by

2

or on behalf of the same entity in violation of the regulations prescribed under this

3

subsection may bring an action for injunctive relief, damages, or both.” Accordingly, the

4

Court finds that Plaintiff lacks standing to brining her TCPA claim, and, as a matter of law,

5

cannot state a claim upon which TCPA relief can be granted.

6

C.

7

Defendant moves this Court, under Fed. R. Civ. P. 12(b)(6), for an order dismissing

8

Plaintiff’s supplemental state law claim for trespass to chattels. See Doc. No. 1-2 at 4. The

9

Court finds that Plaintiff’s state law claims “form part of the same case or controversy” as

10

those alleged in Plaintiff’s federal causes of action, and therefore exercises supplemental

11

jurisdiction over it. 28 U.S.C. § 1367(a).

12

Claims Arising Under State Law

(i)

Trespass to Chattels

13

“Trespass to chattels ‘lies where an intentional interference with the possession of

14

personal property has proximately cause[d] injury.’” eBay, Inc. v. Bidder’s Edge, Inc., 100

15

F.Supp.2d 1058, 1069 (N.D. Cal. 2000) (quoting Thrifty–Tel v. Bezenek, 46 Cal.App. 4th

16

1559 (1996)). Although Plaintiff sufficiently alleges ownership of the property in question,

17

see Intel Corp. v. Hamidi, 30 Cal.4th 1342, 1350 (2003), the Court finds that Plaintiff’s

18

complaint lacks sufficient allegations with respect to injury to said property, proximately

19

caused by either Defendant. See generally Doc. No. 1-2, Exh. A.

20

D.

21

A pro se litigant must be given leave to amend their pleading to state a claim unless

22

it is absolutely clear the deficiencies cannot be cured by amendment. See Lopez, 203 F.3d

23

at 1130 (noting that leave to amend should be granted when a complaint is dismissed “if it

24

appears at all possible that the plaintiff can correct the defect[.]”). Therefore, while the

25

Court finds Plaintiff’s complaint fails to state a claim upon which relief can be granted, it

26

will provide her a chance to cure the pleading deficiencies discussed in this order, if she

27

can. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet,

28

963 F.2d 1258, 1261 (9th Cir. 1992)).

Leave to Amend

7
16cv1594-JAH (BGS)

1
2
3
4

CONCLUSION AND ORDER
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s motion to
dismiss for failure to state a claim is GRANTED.
1.

5
6

Plaintiff’s Civil RICO claim brought pursuant to 18 U.S.C. § 1961, et seq. is
DISMISSED WITH PREJUDICE, as to both Defendants;

2.

Plaintiff's federal TCPA claim, and supplemental state law claims alleged

7

against Defendant Michael J. Martinez are DISMISSED WITHOUT

8

PREJUDICE;

9

2.

Plaintiff is GRANTED fourteen (14) days leave to file an Amended

10

Complaint which cures all the deficiencies of pleading described in this

11

Order. Plaintiff is cautioned, however, that should she choose to file an

12

Amended Complaint, it must be complete by itself, comply with the Federal

13

Rules of Civil Procedure, including Rule 8(a), and that any claim not re-

14

alleged will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach

15

Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir.

16

1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa

17

Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with

18

leave to amend which are not re-alleged in an amended pleading may be

19

“considered waived if not repled.”);

20

IT IS SO ORDERED.

21
22
23
24
25

DATED: March 31, 2017
_________________________________
JOHN A. HOUSTON
United States District Judge

26
27
28
8
16cv1594-JAH (BGS)