Kelly v. Cubesmart

• Docket Number: 22-cv-05470-HSG
• Decision Date: 21 June 2023
• Citation: Kelly v. Cubesmart, 22-cv-05470-HSG (N.D. Cal. Jun 21, 2023)
• Parties: CYNTHIA RENEE KELLY, Plaintiff, v. CUBESMART, et al., Defendants.
• Court: U.S. District Court — Northern District of California

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CYNTHIA RENEE KELLY, Plaintiff, v. CUBESMART, et al., Defendants.

No. 22-cv-05470-HSG

United States District Court, N.D. California

June 21, 2023

ORDER GRANTING MOTION TO STRIKE, GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS, AND DENYING MISCELLANEOUS MOTIONS

Re: Dkt. Nos. 16, 18, 19, 21, 26, 27, 33, 45, 57, 61 73, 75, 81, 82, 83, 86

HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE

Before the Court are Defendants' motions to dismiss and to strike, as well as several motions filed by Plaintiff, who is representing herself.The Court finds this matter appropriate for disposition without oral argument and the matter is deemed submitted.SeeCivilL.R. 7-1(b).The CourtGRANTS the Lewis Brisbois Defendants' motion, Dkt. No. 33, GRANTS IN PART and DENIES IN PART the CubeSmart Defendants' motion, Dkt. No. 27, and DENIESPlaintiff's motions, Dkt. Nos. 16, 18-19, 21, 26, 45, 57 61, 73, 75, 81-83, 86.

I.BACKGROUND

Plaintiff's case arises out of the sale of her personal property at auction by Defendant CubeSmart, a self-storage facility company.SeeDkt.No. 22-1(“SAC”)¶¶ 2, 6, 20-21, 31, 38, 46, 123;Dkt. No. 1-5 at 2-5.^[1]Plaintiff entered into a rental agreement for a storage unit in December 2018.SAC¶ 34;Dkt. No. 1-5at 18-21.According to Plaintiff, the property she stored in her unit was worth $15,000.SAC¶ 35;Dkt. No. 1-5at 3, 44-45.Plaintiff alleges that throughout her rental term, she was in close contact with CubeSmart, frequently retrieved items, and always paid rent, late charges, and fees.SAC ¶¶ 36-37.

Plaintiff asserts that while she was out of state taking care of her elderly mother, Defendants placed a lien on her property with the intent of selling it at auction.Id.¶¶ 36-38;Dkt. No. 1-5at 4-5;Dkt. No. 1-7at 3-4.The allegations in the complaint are a bit difficult to interpret, but Plaintiff's exhibits make clear that she asserts Defendants never sent notification of lien or sale as required by law.SAC ¶¶ 2, 20, 31, 46, 50;Dkt. No. 1-5at 2-5, 29, 32;Dkt. No. 1-7at 3-4.Plaintiff attaches to her complaint a demand letter, Dkt. No. 1-5at 4-5, and email sent to Josh Branum, CubeSmart general manager, in which she requested proper documentation and was told he was “unable to provide those specific documents,”id. at 32-33.Plaintiff wrote “after several attempts to request proper procedural documentation via telephone and in writing, I was informed that I had ‘no rights.'”Dkt. No. 1-5at 4;SAC¶¶ 2, 99.Plaintiff asserts that she pleaded with Defendants but was denied access to personal identifying information for her and her children, including tax, banking, and business documents.Dkt. No. 1-5at 2;SAC¶¶ 24, 58-59.

Plaintiff alleges that Defendants discriminated against her based on her race and gender.SeeSAC ¶¶ 1-2, 4.Plaintiff brings causes of action for violations of the Unruh Civil Rights Act, Bane Act, andRalph Act, unlawful contracts in business establishments, negligent infliction of emotional distress, and punitive damages.Id.¶¶ 44-125.Plaintiff also repeatedly references the California Self-Service Storage Facility Act, breach of contract, and conversion of property.See, e.g., id.¶¶ 2-3, 7, 22, 31, 39, 46, 55, 58, 82-83, 88.

Plaintiff filed her initial complaint in Alameda County Superior Court, and the CubeSmart Defendants removed to this Court.^[2]Dkt. No. 1.Plaintiff has since added as Defendants the attorneys and law firm involved in the representation of CubeSmart: Jessica Pliner, Johanna Templeton, and Lewis Brisbois Bisgaard & Smith LLP (“Lewis Brisbois Defendants”).

II.LEGAL STANDARD

“Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.”Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104(9th Cir.2008).To survive a Rule 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible on its face.”Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570(2007).A claim is facially plausible when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”Ashcroft v. Iqbal, 556 U.S. 662, 678(2009).In reviewing the plausibility of a complaint, courts“accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.”Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031(9th Cir.2008).Nevertheless, courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055(9th Cir.2008)(quotingSprewell v. Golden State Warriors, 266 F.3d 979, 988(9th Cir.2001)).

Additionally, “[p]leadings must be construed so as to do justice.”Fed.R.Civ.P. 8(e).A “document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”Erickson v. Pardus, 551 U.S. 89, 94(2007)(quotation omitted).However, even a “liberal interpretation of a . . . complaint may not supply essential elements of the claim that were not initially pled.”SeeIvey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268(9th Cir.1982).“[P]ro se litigants are bound by the rules of procedure,”Ghazali v. Moran, 46 F.3d 52, 54(9th Cir.1995), which require “a short and plain statement of the claim showing that the pleader is entitled to relief,”Fed.R.Civ.P. 8(a).

Even if the Court concludes that a 12(b)(6) motion should be granted, the “court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.”Lopez v. Smith, 203 F.3d 1122, 1127(9th Cir.2000)(en banc)(quotation omitted).Where leave to amend is appropriate, “before dismissing a pro se complaint the district court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively.”Ferdik v. Bonzelet, 963 F.2d 1258, 1261(9th Cir.1992).

III.DISCUSSION

A. Lewis BrisboisDefendants

The Lewis Brisbois Defendants move to strike under California's “Anti-SLAPP”statute, arguing they are protected by litigation privilege.SeeDkt. No. 33at 12-16.The Court agrees, GRANTS the motion, and does not reach the remaining arguments for dismissal.^[3]

California's “Anti-SLAPP”statute requires the defendant to make a threshold showing that the suit arises from protected activity, at which point the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim.SeeHilton v. Hallmark Cards, 599 F.3d 894, 903(9th Cir.2010);Cal. Code Civ. P. § 425.16(b)(1).

First, the Court finds the claims against the Lewis Brisbois Defendants arise from protected activity, as courts routinely hold that the anti-SLAPP statute“protects lawyers sued for litigation-related speech and activity.”Thayer v. Kabateck Brown Kellner LLP, 207 Cal.App.4th 141, 154(Cal.Ct.App.2012)(collecting cases);see alsoMogan v. Sacks, Ricketts & Case LLP, No. 21-CV-08431-TSH, 2022 WL 94927, at *11(N.D. Cal.Jan. 10, 2022).This includes “not only the conduct of litigation but also acts and communications reasonably incident to litigation,” including settlement negotiations or communications in anticipation of filing.Bonni v. St. Joseph Health Sys., 11 Cal. 5th 995, 1024-25(Cal.2021).Thus, “all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute.”Kulkarni v. Upasani, 659 Fed.Appx. 937, 940(9th Cir.2016)(quotingCabral v. Martins, 177 Cal.App.4th 471, 480(Cal.Ct.App.2009)).Plaintiff's allegations against the Lewis Brisbois Defendants relate only to their representation of CubeSmart in this case.SeeSAC ¶¶ 15, 23, 38, 47, 66-67, 93, 100;see alsoDkt. No. 37.For example, Plaintiff alleges that they instructed CubeSmart not to release information, “condoned” its conduct, committed perjury in court filings, and “corruptly offered” $7,500 to settle the case.Seeid;Dkt. No. 37at 6, 9.

Second, the Court finds Plaintiff has not shown a reasonable probability of prevailing on her claims against the Lewis Brisbois Defendants-nor can she-because the alleged conduct is covered by California's litigation privilege.SeeCal. Civ. Code § 47(b).The privilege applies to “any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that ha[s] some connection or logical relation to the action.”Mandel v. Hafermann, 503 F.Supp.3d 946, 963(N.D. Cal.2020)(quotingSilberg v. Anderson, 50 Cal.3d 205, 212(1990)).As explained, the allegations against the Lewis Brisbois Defendants relate only to communications made as part of this litigation, including efforts to resolve the case, client advice, and statements in filings.The Court's conclusion is consistent with the policy underlying the litigation privilege, in part to “encourag[e] attorneys to zealously protect their clients' interests” by “protect[ing] them from the fear of subsequent derivative actions for communications made in the context of judicial proceedings.”Edwards v. Centex Real Est. Corp., 53 Cal.App.4th 15, 30(1997).

The Court thus GRANTS the Lewis Brisbois Defendants' Anti-SLAPP motion and STRIKES the allegations against them.

B CubeSmart D...