Gonzalez v. Law Office of Allen Robert King

• Decision Date: 06 July 2016
• Docket Number: CASE NO.: CV 16-02231 SJO (KSx)
• Citation: 195 F.Supp.3d 1118
• Court: U.S. District Court — Central District of California
• Parties: Eduardo GONZALEZ v. LAW OFFICE OF ALLEN ROBERT KING, et al.

195 F.Supp.3d 1118

Eduardo GONZALEZ

v.LAW OFFICE OF ALLEN ROBERT KING, et al.

CASE NO.: CV 16-02231 SJO (KSx)

United States District Court, C.D. California.

Filed July 6, 2016

Andre L. Verdun, Crowley Law Group, San Diego, CA, for Eduardo Gonzalez.

Wayne M. Abb, Law Offices of Wayne M. Abb, Canoga Park, CA, for Law Office of Allen Robert King, et al.

PROCEEDINGS (in chambers): ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS COMPLAINT [Docket No. 10]

PRESENT: THE HONORABLE S. JAMES OTERO, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendants Law Offices of Allen Robert King ("LOAK") and Allen Robert King's ("King") (collectively, "Defendants") Motion to Dismiss Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) ("Motion"), filed April 29, 2016.¹ Plaintiff Eduardo Gonzalez ("Plaintiff" or "Gonzalez") filed an Opposition on May 10, 2016. Defendants did not file a reply. The Court found the matter suitable for disposition without oral argument and vacated the hearing set for Monday, June 6, 2016. For the following reasons, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff alleges the following. Plaintiff resided at a house in East Los Angeles with his family. (Complaint ("Compl.") ¶ 17, ECF No. 1.) After Plaintiff lost his job, he fell behind on his rent, and Defendants, who represent Plaintiff's landlord, served Plaintiff with an eviction notice. (See Compl. ¶¶ 17-18.) Shortly after, Plaintiff obtained a new job and hired counsel. (Compl. ¶¶ 18-19.) Plaintiff's counsel asked King if Plaintiff could pay the current rent and all past due rent within 30 days if his family could remain in the residence. (Compl. ¶ 19.) King suggested the possibility of letting Plaintiff stay at the residence until an agreed date without requiring payment of the past due rent; King said he would notify Plaintiff's counsel after speaking with King's client. (Compl. ¶ 19.)

King did not contact Plaintiff's counsel. (Compl. ¶ 20.) Plaintiff and his attorney then called LOAK and spoke with the paralegal, who stated that the landlord did not want to keep Plaintiff as a tenant, but that if Plaintiff vacated the residence by an agreed date, the landlord would dismiss the unlawful detainer action, not seek damages from Plaintiff, and agree to an out-of-court settlement. (Compl. ¶¶ 1, 20.) Plaintiff agreed to move immediately, and LOAK stated that it would send a written stipulation to Plaintiff's counsel in the following days for review. (Compl. ¶ 21.) Based on Defendants' representations, and to avoid an unlawful detainer judgment, Plaintiff agreed to immediately begin moving and waited for the stipulation. (Compl. ¶ 21.)

Several days later, Plaintiff was served with a default judgment. (Compl. ¶ 22.) Plaintiff and his attorney called LOAK and spoke with the same paralegal, who stated that a default judgment should not have been taken. (Compl. ¶ 23.) Plaintiff's counsel demanded a call from King, who did not return the call. (Compl. ¶¶ 23-24.)

In his Complaint, Plaintiff alleges violations: (1) the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. sections 1692, et seq. , including sections 1692d, 1692e, 1692e(5), 1692e(10), and 1692f; and (2) the California Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act"), California Civil Code sections 1788 -1788.32, including sections 1788.15 and 1788.17.² (Compl. ¶¶ 28-33.) Plaintiff vacated the residence and alleges loss of job, loss of sleep, loss of appetite, marital strife, depression, anxiety, stomach pains, headaches, and negative credit reporting. (Compl. ¶¶ 1, 25-26.) Plaintiff seeks statutory and actual damages, costs, and attorneys' fees as provided under the FDCPA and Rosenthal Act. (Compl. 6.)

Defendants move to dismiss the action based on lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) (" Rule 12(b)(1)"); and failure to allege facts sufficient to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) (" Rule 12(b)(6)"). For the following reasons, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motion.

II. DISCUSSION

A. Dismissal for Lack of Subject Matter Jurisdiction

1. Legal Standard: Rule 12(b)(1)

"Federal courts are courts of limited jurisdiction [and] possess only that power authorized by the Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff "must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so, the court, on having the defect called to its attention or on discovering the same, must dismiss the case, unless the defect be corrected by amendment." Tosco Corp. v. Comtys. For a Better Env't , 236 F.3d 495, 499 (9th Cir.2001), abrogated on other grounds by Hertz Corp. v. Friend , 559 U.S. 77, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010) (citation omitted). Federal question jurisdiction arises where the plaintiff's "well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Empire Healthchoice Assurance, Inc. v. McVeigh , 547 U.S. 677, 690, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006) (internal quotation marks omitted).

A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may be "facial or factual." Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir.2004) (citations omitted). In a facial attack, the challenger "accepts the truth of the plaintiff's allegations but asserts that they are insufficient on their face to invoke federal jurisdiction." Leite v. Crane Co. , 749 F.3d 1117, 1121 (9th Cir.2014) (quotation marks and citation omitted) (stating that district court resolves a facial attack as it would a Rule 12(b)(6) motion by accepting plaintiff's allegations as true and drawing all reasonable inferences in favor of plaintiff). "By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air , 373 F.3d at 1039 (describing jurisdiction attack as factual where defendant challenged plaintiff's contention that grass residue constituted solid waste under relevant federal statute); see also Leite , 749 F.3d at 1121. For factual attacks, the court "may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment" and need not presume the truthfulness of the plaintiff's allegations. Safe Air , 373 F.3d at 1039 (citations omitted).

Dismissals premised on federal question jurisdiction are "exceptional" and warranted where the alleged federal claim "clearly appears to be immaterial and made solely for the purpose of obtaining federal jurisdiction or where such claim is wholly insubstantial and frivolous." Safe Air , 373 F.3d at 1039 (citation omitted). Federal question jurisdiction is not defeated "by the possibility that [the plaintiff] might fail to state a cause of action on which [she] could actually recover." Steel Co. v. Citizens for a Better Env. , 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

2. Jurisdictional Dismissal is Not Proper

Although it is not readily clear, Defendants' Rule 12(b)(1) argument appears to be that unlawful detainers do not present a federal question, and that Defendants do not constitute "debt collectors" within the meaning of the FDCPA. (See Mot. 4-5.) This argument fails.

First, Plaintiff is not disputing the unlawful detainer action; Plaintiff is bringing a claim under the FDCPA, a federal statute, for a representation Defendants made in connection with collecting Plaintiff's unpaid rent. Second, by disputing whether Plaintiff can "allege a claim that comes within the definitional reach of [the relevant federal statute]"–i.e., whether Defendants are considered "debt collectors" within the meaning of the FDCPA–Defendants do not demonstrate lack of subject matter jurisdiction, but instead attack the merits of Plaintiff's claims and his ability to seek relief under the FDCPA. See Sun Valley Gasoline, Inc. v. Ernst Enters., Inc. , 711 F.2d 138, 140 (9th Cir.1983) (collecting cases). In such cases, where the disputed issue "goes to the merits of the claim, a dismissal should be based on a Rule 12(b)(6) or a summary judgment motion, rather than a Rule 12(b)(1) motion." Timberlane Lumber Co. v. Bank of Am. , 549 F.2d 597, 602 (9th Cir.1976) ; see also Bollard v. Cal. Province of the Soc'y of Jesus , 196 F.3d 940, 951 (9th Cir.1999) ("Any non-frivolous assertion of a federal claim suffices to establish federal question jurisdiction, even if that claim is later dismissed on the merits under Rule 12(b)(6)."). The Court does not find sufficient support to conclude that Plaintiff's claims are wholly insubstantial, frivolous, or made solely for the purpose of obtaining federal question jurisdiction. See Steel , 523 U.S. at 89, 118 S.Ct. 1003.

Accordingly, the Court DENIES Defendants' Motion on the Rule 12(b)(1) ground. The Court now turns to Defendants' Rule 12(b)(6) argument.

B. Dismissal for Failure to State a Claim

1. Legal Standard: Rule 12(b)(6)

In reviewing a motion to dismiss under Rule 12(b)(6), a court may only consider the complaint, documents incorporated by reference in the complaint, and matters of judicial notice. United States v. Ritchie , 342 F.3d 903, 908 (9th Cir.2003). A plaintiff's cause of action must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) ; see Ileto v. Glock Inc. , 349 F.3d 1191, 1199–1200 (9th Cir.2003) (requiring Rule 12(b)(6) to be read in conjunction with Rule 8 ). "To survive a motion to dismiss, a...