Gregory v. Harris

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION [7] 8 JEANE GREGORY, Case No. 21-cv-03311-VKD 9 Plaintiff, ORDER GRANTING DEFENDANT'S 10 v. MOTION TO DISMISS 11 JOEL A. HARRIS, Re: Dkt. No. 80 Defendant. [13] 14 On January 6, 2022, this Court granted defendant Joel A. Harris’s motion to dismiss 15 plaintiff Jeane Gregory’s complaint with limited leave to amend. Dkt. No. 78. Specifically, the 16 Court gave Ms. Gregory leave to amend her claim for fraud, see Dkt. No. 78 at 5–6, 10, and her 17 claim for breach of fiduciary duty or aiding and abetting a breach of fiduciary duty, see id. at 7–8, 18 10. The Court directed Ms. Gregory to file an amended complaint by February 7, 2022. Id. at 10. 19 On February 3, 2022, Ms. Gregory filed a document titled “Amendment - Motion for 20 Summary Judgement.” Dkt. No. 79. On March 3, 2022, without leave of the Court, she filed 21 another document titled “First Amended Complaint,” stating that her earlier filing had been a 22 mistake. See Dkt. Nos. 83, 84. 23 Mr. Harris objects that Ms. Gregory’s February 3, 2022 filing does not comply with the 24 Court’s prior order, and that her March 3, 2022 filing also does not comply and is untimely. See 25 Dkt. Nos. 80, 85. To the extent the Court considers either or both of these filings, Mr. Harris 26 moves again to dismiss Ms. Gregory’s amended pleadings for failure to state a claim pursuant to 27 Federal Rule of Civil Procedure 12(b)(6). Id. 1 1(b). Having considered the parties’ submissions, the record before the Court, and the applicable 2 law, the Court grants Mr. Harris’s motion to dismiss with prejudice. 3 I. BACKGROUND 4 Ms. Gregory’s amended pleadings substantially reiterate the allegations of her original 5 complaint. The Court summarized these allegations in its prior order and does not repeat them 6 here. See Dkt. No. 78. 7 The Court notes that Ms. Gregory’s most recent amended pleading (Dkt. No. 83), unlike 8 the original complaint, includes five claims for relief: (1) fraud against Ms. Gregory’s parents, (2) 9 fraud against Ms. Gregory, (3) breach of fiduciary duty to Ms. Gregory’s parents, (4) breach of 10 fiduciary duty to Ms. Gregory, and (5) aiding and abetting a breach of fiduciary duty to Ms. 11 Gregory. Dkt. No. 83. In addition, Ms. Gregory asks for $250,000 in compensatory damages and 12 $5 million in punitive damages. Id. at 7-8. 13 II. LEGAL STANDARD 14 A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal 15 sufficiency of the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 16 Dismissal is appropriate where there is no cognizable legal theory or an absence of sufficient facts 17 alleged to support a cognizable legal theory. Id. (citing Balistreri v. Pacifica Police Dep’t, 901 18 F.2d 696 , 699 (9th Cir. 1990)). In such a motion, all material allegations in the complaint must be 19 taken as true and construed in the light most favorable to the claimant. Id. 20 However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere 21 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover, 22 “the court is not required to accept legal conclusions cast in the form of factual allegations if those 23 conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness 24 Network, 18 F.3d 752 , 754–55 (9th Cir. 1994). 25 Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the 26 pleader is entitled to relief.” This means that the “[f]actual allegations must be enough to raise a 27 right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) 1 Iqbal, 556 U.S. at 679 . A claim is plausible if its factual content permits the court to draw a 2 reasonable inference that the defendant is liable for the alleged misconduct. Id. A plaintiff does 3 not have to provide detailed facts, but the pleading must include “more than an unadorned, the4 defendant-unlawfully-harmed-me-accusation.” Id. at 678 . 5 III. DISCUSSION 6 The Court agrees with Mr. Harris that Ms. Gregory’s February 3, 2022 amended summary 7 judgment motion does not comply with the Court’s prior order. However, as Ms. Gregory is pro 8 se, the Court liberally construes her February 3, 2022 filing as an effort to amend her complaint. 9 Erickson v. Pardus, 551 U.S. 89, 94 (2007). The Court also agrees with Mr. Harris that Ms. 10 Gregory’s March 3, 2022 filing does not comply with the Court’s prior order because it was filed 11 nearly one month after the deadline. The Court will not consider this belated filing except for the 12 purpose of assessing whether any further amendment of the complaint would be futile. 13 Having carefully considered Ms. Gregory’s February 3, 2022 pleading, the Court 14 concludes that it does not plausibly state any facts that could support timely claims for fraud or for 15 breach of fiduciary duty. 16 With respect to her fraud claim, this amended pleading does not identify any false or 17 misleading representations by Mr. Harris. The amended pleading adds allegations that Mr. 18 Harris’s engagement with Ms. Gregory’s parents should be viewed with suspicion because his law 19 office was 70 miles from the place where he met with Ms. Gregory’s parents about their estate, 20 and other attorneys with local offices could have performed the same services. See, e.g., Dkt. No. 21 79 at 12–14. However, these additional allegations do not address the deficiencies outlined in the 22 Court’s prior order. Dkt. No. 78 at 8–9. 23 With respect to her claim that Mr. Harris breached his fiduciary duty by depriving (or 24 assisting Mr. Glaser to deprive) Ms. Gregory of her position as successor trustee, the amended 25 pleading indicates that Ms. Gregory relies on the duty owed by a lawyer to his client. See Dkt. 26 No. 79 at 11-12. The nature of the alleged breach is not clear as it concerns Ms. Gregory, who 27 does not claim to have ever been Mr. Harris’s client. As to duties that may have been owed to her 1 probate in California and that Mr. Glaser should not have been named as trustee of the Trust, but 2 the connection between those events and a duty Mr. Harris may have owed to Ms. Gregory 3 remains murky. 4 As to both claims, Ms. Gregory’s February 3, 2022 amended pleading confirms that she 5 learned all of the facts on which she relies for her fraud claim by March 26, 2009, and that she 6 learned all of the facts on which she relies for her fiduciary duty claim by either March 26, 2009 or 7 sometime in 2011. See Dkt. No. 79 at 3, 15. Ms. Gregory says that she only discovered that her 8 prior allegations fit a claim of fraud upon reading this Court’s prior order. Id. at 11, 19 (citing 9 “Fraud and Deceit,” 34A Cal. Jur. 3d § 73). However, the statute of limitations is not tolled 10 merely because a claimant knows the facts supporting her claim, but has not yet identified a legal 11 theory. See Britton v. Girardi, 235 Cal. App. 4th 721, 725 (2015) (“[w]here there are facts 12 sufficient to put one on inquiry notice, the fraud statute of limitations starts running even when the 13 defendant is a fiduciary”); see also “Fraud and Deceit,” 34A Cal. Jur. 3d § 73 (“[T]he statute 14 begins to run after one has knowledge of facts sufficient to make a reasonably prudent person 15 suspicious of fraud, thus putting him on inquiry.”). Nothing in Ms. Gregory’s amended pleading 16 suggests that there is any basis on which the statutes of limitations applicable to her claims might 17 be tolled. See Dkt. No. 78 at 8-10 (discussing statutes of limitations). 18 For these reasons, the Court concludes that Ms. Gregory fails to state any claim upon 19 which relief may be granted. Fed. R. Civ. P. 12(b)(6). 20 As noted above, the Court considers Ms. Gregory’s late-filed March 3, 2022 pleading to 21 determine whether it would be futile to give Ms. Gregory further leave to amend. This pleading 22 relies on the same factual allegations presented in Ms. Gregory’s original complaint and her 23 February 3, 2022 amended pleading. The Court therefore concludes that permitting Ms. Gregory 24 to amend her pleading further would be futile in these circumstances. See Leadsinger, Inc. v. BMF 25 Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (“The decision of whether to grant leave to 26 amend nevertheless remains within the discretion of the district court, which may deny leave to 27 amend due to ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure 1 virtue of allowance of the amendment, [and] futility of amendment.’”) (citing Foman v. Davis, 371 2 |} US. 178, 182 (1962)). 3 || IV. CONCLUSION 4 For the foregoing reasons, the Court grants defendant’s motion to dismiss all claims 5 against Mr. Harris with prejudice. 6 IT IS SO ORDERED. 7 || Dated: April 8, 2022 [8] . 28 □ [9] VIRGINIA K. DEMARCHI 10 United States Magistrate Judge 1] a 12 [16] Z 18