Kirby v. AT & T Corp

Decision Date23 November 2022
Docket Number3:21-cv-01680-BEN-BGS
CourtU.S. District Court — Southern District of California




Before the Court is Defendant AT&T's (Defendant) Motion to Dismiss. James Kirby and Sarah Jean Kirby-Gonzalez, as co-trustees of William Warner Kirby's 2014 Trust (Plaintiffs), bring their second amended complaint (“SAC”) against Defendant AT&T. Plaintiffs allege that they suffered financial damages following a “SIM card swap” that permitted unknown individuals to access William Kirby's accounts after his death and wrongfully acquire money belonging to the Kirby Trust.[1] SAC, ECF No. 14. For the reasons set forth below, the Court GRANTS Defendant's motion to dismiss.


Plaintiffs' father William W. Kirby (Decedent), a prominent physician and politician in the City of Auburn, perished in an aviation accident on April 18, 2020. SAC at ¶ 11. The following week, Plaintiffs contacted Defendant AT&T to close Decedent's account. Id. at ¶ 12. Plaintiffs provided a copy of Decedent's death certificate and paid the final bill. Id. Defendant confirmed the account was closed at that time. Id.

Shortly thereafter, third parties were able to reopen Decedent's AT&T account and order a new SIM card “and/or related equipment” licensed to that account. Id. at ¶ 13. In early May of 2020, Plaintiffs noticed continued account activity resulting from this reopening and reported it to Defendant. Id. at ¶ 14. On May 6, 2020, Defendant responded with a letter stating an investigation revealed someone had indeed reopened the Decedent's account and that “equipment was upgraded without [Plaintiffs'] knowledge.” Id. at ¶ 15. The letter also stated that the unauthorized equipment was removed, and credits would be issued for any charges incurred. Id. By the time Defendant issued this letter, Plaintiffs allege that third parties had already taken tens of thousands of dollars from Decedent's estate. Id. at ¶ 16. Plaintiffs allege these third parties “gain[ed] access to other accounts by providing the [Decedent's] phone number to the entities maintaining them” and that these third parties “open[ed] new accounts.” Id. at ¶¶ 19, 23.

Plaintiffs subsequently filed a police report with the City of Auburn for the identity theft and provided a copy of this report to Defendant. Id. at ¶ 24. Plaintiffs additionally allege that Defendant “continued to pursue claim[s] against the Decedent's account and against Plaintiffs after receiving notice of the identity theft. Id. at ¶ 29.


Rule 12(b)(6) permits dismissal for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable plausible claim. See Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990). A complaint may survive a motion to dismiss only if, taking all well pled factual allegations as true, it contains enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The bare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). Where a motion to dismiss is granted, leave to amend should be liberally allowed “unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986).

A. Defendant's Motion to Dismiss is Not Waived Under Fed.R.Civ.P. 12(g)(2)

Before addressing the motion to dismiss, Plaintiffs argue that Defendant's right to bring a motion to dismiss has been waived. The argument is unavailing. Federal Rule of Civil Procedure 12(g)(2) states:

“Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion.. .raising a defense or objection that was available to the party but omitted from its earlier motion.”

Both parties cite In re Apple iPhone Antitrust Litigation, 846 F.3d 313, 317-18 (9th Cir. 2017). There, the Ninth Circuit noted Rule 1 of the Federal Rules of Civil Procedure directs courts and parties to construe and employ the Rules “to secure the just, speedy, and inexpensive determination” of proceedings. In re Apple, 846 F.3d at 319. The In re Apple Court interpreted Rule 1 as a lens through which to apply the other Rules, and accordingly upheld the district court's decision to reach the merits of defendant's previously un-raised standing challenge because it “materially expedited the district court's disposition of the case, which was a benefit to both parties.” Id. at 320. The Ninth Circuit adopted the Third and Tenth Circuit's “forgiving” stance on Rule 12(g)(2) when reviewing district courts' entertainment of late filed or successive 12(b)(6) motions. Id. at 319. The court noted the goal behind Rule 12(g)(2) is to avoid repetitive motion tactics, delay, or tactics designed to ambush the other party. Id. at 318. Courts often use their discretion to consider new arguments in the interest of judicial economy. Id. at 319-20.

As Defendant correctly points out, the first dismissal order was based on an issue of standing. Although Defendant did raise two other issues under 12(b)(6) in the first motion to dismiss, the first dismissal order did not reach the legal sufficiency of Plaintiffs' claims. See ECF No. 13. Following In re Apple's logic, this Court finds there is no indication that Defendant brought additional 12(b)(6) challenges in bad faith or to delay the case. Declining to reach the merits of Defendant's instant 12(b)(6) motion would delay resolving issues with Plaintiffs' SAC.

Therefore, Defendant's motion to dismiss Counts I, III, IV and VI is not waived. This Court will reach the merits of these issues and turns now to challenges against the respective claims.

B. Claim I, California Identity Theft Law, Cal. Civ. Code § 1798.93.

For their first claim for relief, Plaintiffs seek a remedy under the California Identity Theft Law, Cal. Civ. Code § 1798.93.[3] Essentially § 1798.93 is intended to be used defensively by victims of identity theft, either as a counterclaim or an individual action against creditors. See Lori J. Parker, Causes of Action for Identity Theft, 31 CAUSES OF ACTION 2D § 1, § 14 (last updated Sept. 2022) (describing § 1798.93 as “preventing debt collectors from pursuing collection activities against alleged victims of identity theft...”).

The remedies provided under the statute support this reading. Relief can be granted in the form of a declaration that the victim is not obligated to pay the claim against them or one that voids any security interest obtained from identity fraud. Cal. Civ. Code § 1798.93(c)(1)-(2). Victims of identity theft can also seek relief in the form of injunctions restraining claimants from attempting to collect on claims connected with identity theft. Cal. Civ. Code § 1798.93(c)(3). A claimant under this statute is defined as any person who has a claim for money or property connected with a transaction procured through identity theft. See § 1798.92(a). For the law to be applicable, two things must be true. First, a person must be able to show, by a preponderance of the evidence, that they are the victim of identity theft. See 1798.93(b). Second, the action must be brought against or in relation to a claimant as defined under the statute.

Here, Plaintiffs plead facts supporting the first prong of the statute, but not the second. Although Plaintiffs state Defendant is a claimant under the meaning of the statue, their factual allegations do not support this conclusion. Plaintiffs plead that Defendant formerly pursued claim(s) against them. However, the Ninth Circuit has ruled this statute requires the claimant have a currently existing claim against the victim of identity theft. Satey v. JPMorgan Chase & Co., 521 F.3d 1087, 1092 (9th Cir. 2008).

In Satey, the plaintiff sued Chase bank and others under § 1798.93 for pursuit of credit card debt that was allegedly incurred due to identity theft. Satey, 521 F.3d at 109091. Chase bank had previously conducted an internal investigation, determined the debt was valid and subsequently sold the debt to third parties. Id. The other defendants named in the plaintiff's suit were the entities which purchased the debt from Chase bank. Id. The Ninth Circuit upheld the district court's grant of summary judgment in favor of Chase bank, reasoning the bank did not qualify as a claimant under the statute because it had sold its interest in the disputed debt. Id. at 1092-93. The Satey Court explicitly ruled that claimant under § 1798.93 requires a present tense interest in the disputed debt, and it could not construe claimant to include former creditors. Id. at 1092.

The same issue is present here. In the SAC, Plaintiffs allege Defendant “con...

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