Martins v. New West Investment Group

[4] 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA [7] 8 BRIAN MARTINS, Case No.: 18-CV-1731-AJB-LL 9 Plaintiff, ORDER: 10 v. (1) GRANTING DEFENDANTS NEW 11 NORTHWEST DEVELOPMENT WEST INVESTMENT GROUP, INC., COMPANY, a California corporation 12 GREGORY M. BROWN, SR., d/b/a NEW WEST INVESTMENT GREGORY M. BROWN, JR., AND 13 GROUP, INC., a California corporation, ROBERT HOLLAND’S MOTION TO et al., 14 DISMISS FIRST AMENDED Defendants. COMPLAINT; [15] 16 (2) GRANTING DEFENDANTS BOBBI PEARSON AND OAK TREE [17] ESCROW’S MOTION TO DISMISS 18 FIRST AMENDED COMPLAINT; [19] (3) GRANTING DEFENDANTS 20 GARY HALBERT, PEDRO ORSODELGADO, AND JEFF TAMARES’ [21] MOTION TO DISMISS 22 PLAINTIFF’S FIRST AMENDED COMPLAINT; AND [23] 24 (4) GRANTING DEFENDANT CHICAGO TITLE COMPANY’S [25] MOTION TO DISMISS 26 PLAINTIFF’S FIRST AMENDED COMPLAINT [27] (Doc. Nos. 19, 22, 24, 69) [28] 1 Presently before the Court are Defendants New West Investment Group, Inc., 2 Gregory Brown, Sr., Gregory Brown, Jr., and Robert Holland’s motion to dismiss first 3 amended complaint, (Doc. No. 19), Defendants Bobbi Pearson and Oak Tree Escrow’s 4 motion to dismiss first amended complaint, (Doc. No. 22), Defendants Gary Halbert, Pedro 5 Orso-Delgado, and Jeff Tamares’ motion to dismiss Plaintiff’s first amended complaint, 6 (Doc. No. 24), and Defendant Chicago Title Company’s motion to dismiss Plaintiff’s first 7 amended complaint, (Doc. No. 69). Plaintiff filed oppositions to each motion to dismiss, 8 (Doc. Nos. 87, 88, 89, 90), and Defendants each filed a reply, (Doc. Nos. 92, 93, 94, 95). 9 For the reasons set forth below, the Court GRANTS each of Defendants’ motions to 10 dismiss. 11 BACKGROUND 12 The following facts are taken from Plaintiff’s complaint and construed as true for 13 the limited purpose of resolving this motion. See Brown v. Elec. Arts, Inc., 724 F.3d 1235 , 14 1247 (9th Cir. 2013). 15 In 1998, Plaintiff was hired to design and supervise a construction project titled the 16 El Nopal Estates II project. (Doc. No. 13 ¶¶ 40–45.) Plaintiff created and designed the 17 project plans, which included a tentative map, development plan, and specific technical 18 drawings. (Id. ¶ 45.) Plaintiff copyrighted these plans. (Id. ¶ 46.) In 2000, the City of Santee 19 approved the plans and construction began thereafter. (Id. ¶¶ 49, 50, 52.) Plaintiff 20 supervised the construction until 2007 when the owner/developer defaulted on the project. 21 (Id. ¶¶ 53–54.) 22 Between 2007 and 2009, Defendants Holland and Gregory Brown, Sr. made contact 23 with both the landowner and Defendant Josephson to express interest in buying the 24 property. (Id. ¶¶ 63–78.) Around late February 2008, Defendant Holland entered into a 25 Purchase and Sale Agreement for the property with the landowner. (Id.) The contract 26 allegedly provided Oak Tree Escrow as the escrow company for the sale. (Id. ¶¶ 71–72.) 27 However, it is also alleged that Chicago Title was the escrow company of record at all 28 times relevant and was not alleged in the alternative. (Id. ¶ 12.) 1 It is alleged that another defendant foreclosed on this same property and the property 2 was subsequently sold and conveyed. (Id. ¶¶ 72, 75, 76.) It was then ultimately conveyed 3 to Defendant Gregory Brown, Jr. around January 2010. (Id.) 4 “Between March 2009 and January 2010, defendants Josephson, Knohl, OTE … 5 acted together in the ‘instrument washing’ of Defective Instruments for purposes including 6 title legitimacy.” (Id. ¶ 87.) Plaintiff also alleges that Defendant Cal-Western 7 Reconveyance appears to have recorded multiple corrective deeds with respect to the sale 8 of the property. (Id. ¶¶ 76–79, 88–89.) 9 In 2010, Oak Tree Escrow received two Quitclaim Deeds for purposes of obtaining 10 title insurance and recordation of a sale to Defendant Gregory Brown, Sr. (Id. ¶ 90.) The 11 City of Santee approved plans for the project by new owners/developers that allegedly used 12 parts of Plaintiff’s design plans without his permission, a new subdivision improvement 13 agreement between the City of Santee and the new owners/developers was approved in 14 2014, and construction began again in 2015. (Id. ¶¶ 1, 93–102, 117–120, 134–147.) 15 Plaintiff then filed this action in late July of 2018. (See generally id.) Plaintiff alleges 16 the following claims: causes of action I and II: copyright infringement and contributory 17 copyright infringement; causes of action III-V: three separate restatements, all for inverse 18 condemnation; cause of action VI: failure to prevent interference with civil rights; causes 19 of action VII-IX: contract related claims (equitable estoppel/breach of contract, bad faith, 20 breach of implied covenant of good faith and fair dealing); cause of action X: negligent 21 misrepresentation by municipal defendants; and cause of action XI: unjust enrichment. (See 22 generally id.) 23 LEGAL STANDARD 24 A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the 25 complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain 26 “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” 27 Fed. R. Civ. P. 8(a)(2). Plaintiffs must also plead, however, “enough facts to state a claim 28 to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 1 The plausibility standard thus demands more than a formulaic recitation of the elements of 2 a cause of action or naked assertions devoid of further factual enhancement. Ashcroft v. 3 Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint “must contain sufficient allegations 4 of underlying facts to give fair notice and to enable the opposing party to defend itself 5 effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 6 In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the 7 truth of all factual allegations and must construe them in the light most favorable to the 8 nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336 , 337–38 (9th Cir. 1996). The 9 court need not take legal conclusions as true “merely because they are cast in the form of 10 factual allegations.” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (quoting 11 W. Mining Council v. Watt, 643 F.2d 618 , 624 (9th Cir. 1981)). Similarly, “conclusory 12 allegations of law and unwarranted inferences are not sufficient to defeat a motion to 13 dismiss.” Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998). 14 Where dismissal is appropriate, a court should grant leave to amend, unless the 15 plaintiff could not possibly cure the defects in the pleading. Knappenberger v. City of 16 Phoenix, 566 F.3d 936, 942 (9th Cir. 2009). 17 DISCUSSION 18 Given the number of claims raised by Plaintiff and that there are four separate 19 motions to dismiss, the Court will address the arguments pertaining to each cause of action 20 rather than address each motion to dismiss. However, it is worth noting that Plaintiff did 21 not substantively address any of the arguments made in the motions to dismiss in his replies 22 to each motion to dismiss. This alone is grounds for dismissal. See Salois v. Medifast, Inc., 23 No. 17CV1810-GPC (NLS), 2018 WL 1083466 , at *6 (S.D. Cal. Feb. 28, 2018). 24 A. Requests for Judicial Notice 25 Federal Rule of Evidence 201 states that a “court may judicially notice a fact that is 26 not subject to reasonable dispute because it: (1) is generally known within the trial court’s 27 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose 28 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). 1 i. Defendants New West Investment Group, Gregory Brown, Sr., Gregory 2 Brown, Jr., and Robert Holland’s Request for Judicial Notice 3 Defendants New West Investment Group, Gregory Brown, Sr., Gregory Brown, Jr., 4 and Robert Holland’s request judicial notice of the City of Santee Final Map 15437. (See 5 generally Doc. No. 19-2.) The court may take judicial notice of facts that can be accurately 6 and readily determined from sources whose accuracy cannot be reasonably questioned. 7 Fed. R. Evid. 201(b); see also 2150 Sigourney Jossiah-Francis Lee Association on Behalf 8 of Pinnock v. Resort Watersports, Inc., No. 07-CV-207-H (CAB), 2007 WL 9776667 , at 9 *2 (S.D. Cal. June 6, 2007). Accordingly, the Court GRANTS Defendants New West 10 Investment Group, Gregory Brown, Sr., Gregory Brown, Jr. and Robert Holland’s request 11 for judicial notice. 12 ii. Defendants Oaktree Escrow and Bobbie Pearson’s Request for Judicial 13 Notice 14 Defendants Oaktree Escrow and Bobbie Pearson also request judicial notice of the 15 City of Santee Final Map 15437. (See generally Doc. No. 22-2.) The court may take judicial 16 notice of facts that can be accurately and readily determined from sources whose accuracy 17 cannot be reasonably questioned. Fed. R. Evid. 201(b); see also 2150 Sigourney Jossiah18 Francis Lee Association on Behalf of Pinnock, 2007 WL 9776667 , at *2. Accordingly, the 19 Court GRANTS Defendants Oaktree Escrow and Bobbie Pearson’s request for judicial 20 notice. 21 iii. Defendants Gary Halbert, Pedro Orso-Delgado, and Jeff Tamares’ Request 22 for Judicial Notice 23 Defendants Gary Halbert, Pedro Orso-Delgado and Jeff Tamares request the Court 24 take judicial notice of the claims presented by Plaintiff to the City of Santee and rejection 25 the claim. (See generally Doc. No. 24-2.) The Court GRANTS Defendants Halbert, Orso26 Delgado and Tamares request. See Elliott v. Amador Cty. Unified Sch. Dist., No. 12-cv27 117-MCE-DAD, 2012 WL 5013288 , at *7 (E.D. Cal. Oct. 17, 2012) (“Whether or not a 28 Tort Claim has been presented to a public entity is subject to judicial notice.”); Navarro v. 1 City of Alameda, No. 14-cv-1954-JD, 2014 WL 4744184 , at *2 (N.D. Cal. Sept. 22, 2014) 2 (the court may take judicial notice of California government-claim documents); see also 3 Davis v. Zimmerman, No. 17-cv-1230-BAS-NLS, 2018 WL 1806101 , at *6 (S.D. Cal. Apr. 4 17, 2018) (taking judicial notice of claim and rejection). 5 iv. Defendant Chicago Title Company’s Request for Judicial Notice 6 Defendant Chicago Title Company requests judicial notice of the following 7 documents: (1) Quitclaim Deed recorded on January 22, 2010, as Document No. 20108 0032991 in the Official Records, San Diego County Recorder’s Office and (2) Grant Deed 9 recorded on January 22, 2010, as Document No. 2010-0032992, in the Official Records, 10 San Diego County Recorder’s Office. (See generally Doc. No. 69-2.) Courts may take 11 judicial notice of documents recorded in the county recorder’s offices and documents filed 12 in the courts. See Grant v. Aurora Loan Services, Inc., 736 F. Supp. 2d 1257, 1263 (C.D. 13 Cal. 2010 ); Velazquez v. GMAC Mortg. Corp., 605 F. Supp. 2d 1049, 1057 (C.D. Cal. 14 2008); Hayes v. United States, 461 F. Supp. 1168, 1174 (C.D. Cal. 1978). Accordingly, the 15 Court GRANTS Defendant Chicago Title Company’s request for judicial notice. 16 B. Failure to Join an Indispensable Party 17 Defendants contend that Plaintiff failed to join the City of Santee. Plaintiff alleges 18 that the City of Santee is a co-conspirator in his complaint. However, Plaintiff failed to join 19 the City of Santee to the action. The Court cannot accord complete relief in this action 20 without the City of Santee. See Applied Equipment Corp. v. Liton Saudi Arabia Ltd., 7 Cal. 21 4th 503, 510–11 (1994). Failure to join an indispensable party under Federal Rule of Civil 22 Procedure 19 is grounds for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(7). 23 Thus, this alone is a basis for dismissal of the entire complaint. 24 C. Causes of Action I and II 25 Plaintiff’s first two causes of action are for copyright infringement and contributory 26 copyright infringement. These are both barred by a three-year statute of limitations. 17 27 U.S.C. § 507 (b). “A cause of action for copyright infringement accrues when one has 28 knowledge of a violation or is chargeable with such knowledge.” Roley v. New World 1 Pictures, Ltd., 19 F.3d 479, 481 (9th Cir. 1994). Here, the Quitclaim Deed and the Grant 2 Deed were recorded in 2010. (See generally Doc. No. 69-2.) Plaintiff acknowledged in his 3 first amended complaint that he was aware of the foreclosure proceedings, the NOD and 4 NOS-2, the trustee’s deed upon sale, Defendant Josephson’s ownership in the property, 5 and NWIG’s subsequent ownership of the property. (See generally Doc. No. 13.) 6 Accordingly, Plaintiff is “charged” with knowing about the recorded Quitclaim Deed and 7 Grant Deed in 2010. Further, Plaintiff’s allegations against Defendants Oak Tree Escrow, 8 Bobbi Pearson, New West Investment, Gregory Brown, Sr., Gregory Brown, Jr., and 9 Robert J. Holland date back to January 2010. Plaintiff’s complaint was filed in July of 10 2018. Accordingly, the statute of limitations bars Plaintiff’s first two causes of action. 11 D. Cause of Action III 12 Plaintiff’s third cause of action for conspiracy fails as a matter of law. “Since liability 13 for civil conspiracy depends on performance of some underlying tortious act, the 14 conspiracy is not independently actionable; rather, it is a means for establishing vicarious 15 liability for the underlying act.” Beck v. Prupis, 529 U.S. 494 , 501–03 (2000). As 16 conspiracy is not a separate cause of action, this claim fails as a matter of law. 17 Further, this claim arises under 42 U.S.C. Section 1985 (3). Plaintiff’s claim under 18 section 1985 is governed by California’s two-year limitation for personal injury. California 19 Coal. for Families & Children, Lexevia, PC v. San Diego Cty. Bar Ass’n, No. 13-cv-194420 CAB (BLM), 2013 WL 12184146 , at *5 (S.D. Cal. Dec. 23, 2013). This claim is based on 21 various events that occurred between 2008 and 2014. Further, even if he discovered these 22 facts in February 2016, this claim would still be time barred. Accordingly, this claim is 23 time barred because his complaint was filed in July 2018. 24 E. Causes of Action IV and V 25 These two claims are under the Fifth Amendment’s “Taking Clause,” which are 26 claims under 42 U.S.C. Section 1983 . Thus, the applicable statute of limitations period is 27 two-years. Bell v. California Dep’t of Corr. & Rehab., No. 14-cv-1397-BEN-PCL, 2016 28 WL 8736865 , at *3 (S.D. Cal. Mar. 29, 2016), report and recommendation adopted, No. 1 14-cv-1397-BEN-PCL, 2016 WL 8737572 (S.D. Cal. Apr. 29, 2016), aff’d sub nom. Bell 2 v. Glynn, 696 F. App’x 249 (9th Cir. 2017). As explained above, these claims are time 3 barred as they are based on events that occurred between 2008 and 2014. 4 Furthermore, Plaintiff’s causes of action III-V allege inverse condemnation. “The 5 basic issues in an adverse condemnation case are (1) whether private property was taken 6 or damaged; (2) whether the taking or damaging was for a public use; and (3) the amount 7 of just compensation.” Miller and Starr California Real Estate § 23:1. Basis for inverse 8 condemnation, 7 Cal. Real Est. § 23:1 (4th ed.). Generally, the plaintiff must show (1) 9 ownership of a valuable property interest, (2) taking/damaging of that interest for a public 10 project, and (3) causation. See CEB Condemnation Practice in California at 808–822 (3d 11 Ed., Sept. 2011 Update). Here, Plaintiff has failed to allege two key aspects. First, Plaintiff 12 has not alleged that he had any interest in the property. Second, Plaintiff has failed to allege 13 how this “taking” was for a public use. Accordingly, causes of action III-V fail on this basis 14 as well. 15 F. Cause of Action VI 16 It is unclear whether Plaintiff alleges this cause of action under 42 U.S.C. § 1983 , [17] 42 U.S.C. § 1985 , or 42 U.S.C. § 1986 . However, regardless of which section Plaintiff is 18 alleging, the statute of limitations bar this claim. As explained above under 42 U.S.C. §§ 19 1983, 1985, the statute of limitations is two-years. Under 42 U.S.C. § 1986 , the statute of 20 limitations is one-year. 42 U.S.C. § 1986 . Accordingly, as explained above, this claim is 21 based on events that occurred between 2008 and 2014. Thus, this claim is barred based on 22 the statute of limitations. 23 G. Cause of Action VII 24 Actions for breach of a written contract are subject to a four-year limitations period, 25 and equitable actions such as equitable estoppel are subject to a three-year limitations 26 period. See Cal. Civ. Proc. § 337(1); § 508 Action on Written Contract., 3 Witkin, Cal. 27 Proc. 5th Actions § 508 (2020); see also Cal. Civ. Proc. § 343; § 677 Action on Written 28 Contract., 3 Witkin, Cal. Proc. 5th Actions § 677 (2020). Against Defendants Oak Tree, 1 Bobbi Pearson, New West Investment, Gregory Brown, Sr., Gregory Brown, Jr., and 2 Robert J. Holland, the latest charging allegations relate to actions taken in 2010. 3 Accordingly, this claim is time barred against these Defendants. 4 Further, Defendants Orso-Delgado, Tamares, and Halbert were not parties to the 5 contract. It is also unclear if Plaintiff, himself, was a party to the contract. Thus, this cause 6 of action fails against Defendants Orso-Delgado, Tamares and Halbert. 7 H. Causes of Action VIII and IX 8 The statute of limitations for bad faith and breach of implied covenant of good faith 9 and fair dealing is four years. Cal. Civ. Proc. §§ 337(1), 343. Against Defendants Oak Tree, 10 Bobbi Pearson, New West Investment, Gregory Brown, Sr., Gregory Brown, Jr., and 11 Robert J. Holland, the latest charging allegations relate to actions taken in 2010. 12 Accordingly, these claims are time barred as to these Defendants. 13 As to Defendants Orso-Delgado, Tamares, and Halbert, under California law, 14 conditions precedent to maintaining an action for damages against a government entity or 15 a government entity employee are: (1) the timely presentation of a pre-lawsuit claim; and 16 (2) the government entity’s actual rejection of the claim or rejection by operation of law. 17 DiCampli-Mintz v. Cty. of Santa Clara, 55 Cal. 4th 983, 990 (2012); Williams v. Horvath, [18] 16 Cal. 3d 834, 838 (1976); Shelley v. Cty. of San Joaquin, 954 F. Supp. 2d 999, 1009 (E.D. 19 Cal. 2013 ); Cal. Govt. Code, §§ 910, 912.4, 915, 945.4. Once the government entity rejects 20 the claim, a plaintiff has six months from rejection to commence a lawsuit against the 21 government entity or government entity employee. Cal. Govt. Code § 945.6 (a)(1); Julian 22 v. City of San Diego, 183 Cal. App. 3d 169, 175 (1986). “The deadline for filing a lawsuit 23 against a public entity, as set out in the government claims statute, is a true statute of 24 limitations defining the time in which, after a claim presented to the government has been 25 rejected or deemed rejected, the plaintiff must file a complaint alleging a cause of action 26 based on the facts set out in the denied claim.” Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 27 201, 209 (2007). Plaintiff filed a claim with the City of Santee on June 3, 2016, and 28 subsequently amended his claim on June 17, June 29, and August 12, 2016. (See generally 1 24-2.). The City of Santee rejected Plaintiff’s claim on September 29, 2016. (Id.) Plaintiff 2 thus had until March 29, 2017, to file his complaint against the City of Santee or any City 3 of Santee employee. Plaintiff failed to do so, filing his amended complaint naming 4 Defendants Halbert, Orso-Delgado and Tamares in 2019. (Doc. No. 13.) All of Plaintiff’s 5 state law claims are accordingly barred against Defendants Halbert, Orso-Delgado, and 6 Tamares. 7 I. Cause of Action X 8 The statute of limitations for negligent misrepresentation is three years. Cal. Civ. 9 Proc. § 338(d). Against Defendants Oak Tree, Bobbi Pearson, New West Investment, 10 Gregory Brown, Sr., Gregory Brown, Jr., and Robert J. Holland, the latest charging 11 allegations relate to actions taken in 2010. Against Defendants Halbert, Orso-Delgado, and 12 Tamares, a claim for negligent misrepresentation is barred as they are granted immunity as 13 public employees. See Cal. Govt. Code, § 822.2. 14 J. Cause of Action XI 15 Unjust enrichment is not a cause of action, but rather a remedy for quasi-contract 16 causes of action. Astana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015); 17 John v. AM Retail Grp., Inc., No. 17cv727-JAH (BGS), 2018 WL 1400718 , at *9 (S.D. 18 Cal. Mar. 20, 2018). Here, Plaintiff has not properly alleged a quasi-contract claim, and 19 this is simply not a cause of action. Thus, this cause of action is dismissed. 20 CONCLUSION 21 Based on the foregoing reasons, the Court GRANTS Defendants New West 22 Investment Group, Inc., Gregory Brown, Sr., Gregory Brown, Jr., and Robert Holland’s 23 motion to dismiss first amended complaint, (Doc. No. 19), GRANTS Defendants Bobbi 24 Pearson and Oak Tree Escrow’s motion to dismiss first amended complaint, (Doc. No. 22), 25 GRANTS Defendants Gary Halbert, Pedro Orso-Delgado, and Jeff Tamares’ motion to 26 dismiss Plaintiff’s first amended complaint, (Doc. No. 24), and GRANTS Defendant 27 Chicago Title Company’s motion to dismiss Plaintiff’s first amended complaint, (Doc. No. 28 69). 1 The Court finds that leave to amend would be futile, and thus DENIES granting 2 || additional leave to amend. Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999) (finding 3 leave to amend need not be granted if amendment would be futile). [4] 5 IS SO ORDERED. © Dated: March 24, 2020 Q ZS : 2 7 Hon. Anthony J.Battaglia 8 United States District Judge