McVey v. McVey, Case No. CV 12–06879 MMM MANx.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
Writing for the CourtMARGARET M. MORROW, District Judge.
Citation26 F.Supp.3d 980
PartiesMichael McVEY, as Trustee of the Bittersweet Distributors, Inc. Defined Benefit Pension Plan and Trust, Plaintiff, v. Colin McVEY, as Executor, Trustee, and Representative of the Estate of Dawn M. McVey, pursuant to the Dawn M. McVey Living Trust, and as personal representative of Dawn McVey, an individual and participant in the Bittersweet Distributors, Inc. Defined Benefit Pension Plan and Trust, Defendant.
Docket NumberCase No. CV 12–06879 MMM MANx.
Decision Date16 June 2014

26 F.Supp.3d 980

Michael McVEY, as Trustee of the Bittersweet Distributors, Inc. Defined Benefit Pension Plan and Trust, Plaintiff
v.
Colin McVEY, as Executor, Trustee, and Representative of the Estate of Dawn M. McVey, pursuant to the Dawn M. McVey Living Trust, and as personal representative of Dawn McVey, an individual and participant in the Bittersweet Distributors, Inc.
Defined Benefit Pension Plan and Trust, Defendant.

Case No. CV 12–06879 MMM MANx.

United States District Court, C.D. California.

Signed June 16, 2014.


26 F.Supp.3d 982

Aurora Leigh Perez Basa, Rebecca B. Mocciaro, Farmer and Ridley, Los Angeles, CA, for Plaintiff.

Teresa S. Renaker, Shira Wakschlag, Lewis Feinberg Lee Renaker and Jackson PC, Oakland, CA, for Defendant.

ORDER GRANTING MOTION TO DISMISS

MARGARET M. MORROW, District Judge.

On August 9, 2012, Michael McVey (“plaintiff”) filed this action against Dawn McVey (“defendant”).1 Ms. McVey passed away on April 19, 2013, and the court thereafter entered an order on the parties' stipulation to substitute Colin McVey, Ms. McVey's executor, as the defendant in the action, and to permit plaintiff to file an amended complaint naming him as the defendant.2 On August 2, 2013, plaintiff filed a first amended complaint against Colin McVey as executor, trustee, and representative of the Dawn M. McVey Living Trust, and as personal representative of Dawn McVey (“defendant”).3 On August 22, 2013, defendant filed a motion to dismiss,4 which plaintiff opposes.5 At the December 2, 2013 hearing on the motion, the court directed the parties to file supplemental briefing. Supplemental briefs were filed December 9, 2013.6

I. BACKGROUND

A. Requests for Judicial Notice

Defendant requests that the court take judicial notice of six documents in deciding his motion to dismiss:7 (1) Dawn McVey's

26 F.Supp.3d 983

bench brief from the marital dissolution action between plaintiff and Dawn McVey in state court;8 (2) notice of entry of judgment in the state court action;9 (3) notice of appeal of the state court judgment to the California Court of Appeal, Second Appellate District;10 (4) the Court of Appeal docket for plaintiff's appeal of the state court action;11 (5) the California Supreme Court docket for plaintiff's appeal of the Court of Appeal's denial of his request for immediate stay;12 and (6) plaintiff's opening brief in the Court of Appeal.13 Plaintiff does not oppose these requests.

Plaintiff asks that the court take judicial notice of (1) In re Metz, 225 B.R. 173 (9th Cir. BAP 1998), an opinion of the Ninth Circuit Bankruptcy Appellate Panel;14 and (2) an opinion letter from the United States Department of Labor Pension and Welfare Benefit Programs.15 Defendant does not oppose plaintiff's requests.

In deciding a Rule 12(b)(6) motion, the court generally looks only to the face of the complaint and documents attached thereto. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir.2002) ; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990). A court normally must convert a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment if it “considers evidence outside the pleadings.... A court may, however, consider certain materials—documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir.2003). See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (a court may consider “other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice”); Branch v. Tunnell 14 F.3d 449, 453 (9th Cir.1994) (noting that a court may consider a document whose contents are alleged in a complaint, so long as no party disputes its authenticity), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.2002).

The second document defendant asks the court to notice is attached to the first amended complaint.16 The court may thus consider this document in deciding the pending motion. See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.1987) (“If a complaint is accompanied by attached documents, the court is not limited by the allegations contained in the complaint. These documents are part of the complaint and may be considered in determining whether the plaintiff can prove any set of facts in support of the claim”).

The remainder of the documents defendant seeks to have judicially noticed

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are pleadings or orders filed in a related state court case, the divorce action between plaintiff and Dawn McVey, and appeals of the trial court decision in that action to the Court of Appeal and California Supreme Court. Under Rule 201, the court can judicially notice “[o]fficial acts of the legislative, executive, and judicial departments of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Because court filings are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned,” pleadings filed and orders issued in related litigation are proper subjects of judicial notice under Rule 201. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir.2006) (“We may take judicial notice of court filings and other matters of public record”). See also In re Zulueta, 520 Fed.Appx. 558, 559 (9th Cir.2013) (Unpub.Disp.) (taking judicial notice of the docket in an underlying bankruptcy proceedings); Rodriguez v. Disner, 688 F.3d 645, 660 n. 11 (9th Cir.2012) (taking judicial notice of briefs filed in related case); Roberson v. City of Los Angeles, 220 Fed.Appx. 522, 523 (9th Cir.2007) (Unpub.Disp.) (taking judicial notice of the state court docket sheet in the underlying action); Asdar Group v. Pillsbury, Madison & Sutro, 99 F.3d 289, 290 n. 1 (9th Cir.1996) (court may take judicial notice of the pleadings and court orders in earlier related proceedings); Madden v. Cate, No. CV 11–5652 FMO(JC), 2013 WL 5741781, *3 n. 5 (C.D.Cal. Oct. 22, 2013) (taking judicial notice of the California Supreme Court docket); Rosal v. First Fed. Bank of California, 671 F.Supp.2d 1111, 1120–21 (N.D.Cal.2009) (taking judicial notice of plaintiff's bankruptcy petition, an order granting a motion for relief from the automatic stay, and the bankruptcy court's order of dismissal); Retired Employees Ass'n of Orange County, Inc. v. County of Orange, 632 F.Supp.2d 983, 985 (C.D.Cal.2009) (taking judicial notice of a bankruptcy court order under Rule 201 ); Accordingly, the court takes judicial notice of these documents.

Plaintiff asks the court to judicially notice an opinion of the Ninth Circuit Bankruptcy Appellate Panel. It is unnecessary to take judicial notice of the opinion, which plaintiff cites as precedent and which the court can consider as such. See, e.g., Lucero v. Wong, No. C 10–1339 SI (pr), 2011 WL 5834963 (N.D.Cal. Nov. 21, 2011) (“It is unnecessary to request that the court judicially notice published cases from California and federal courts as legal precedent; the court routinely considers such legal authorities in doing its legal analysis without a party requesting that they be judicially noticed”); Jacquett v. Sisto, No. CIV S–06–2938 RRB EFBP, 2008 WL 1339362 (E.D.Cal. Apr. 9, 2008) (construing a request that the court take judicial notice of a published Ninth Circuit decision as “a notice of supplemental authority”); Chapman v. Chast Manhattan Mortg. Corp., No. 04–CV–0859–CVE–FHM, 2007 WL 4268774, *2 n. 7 (N.D.Okla. Nov. 30, 2007) (“Plaintiff's motion could also be construed as request to take judicial notice of legal precedent.... As a matter of course, federal courts are bound to apply precedent without formally taking judicial notice of law, and the procedure for judicial notice under Fed. R.Evid. 201 applies only to adjudicative facts”); BP West Coast Products LLC v. May, 347 F.Supp.2d 898, 901 (D.Nev.2004) (responding to a request for judicial notice of another court's decision by stating that the court could “take this case into account as non-binding precedent”); see also Getty Petroleum Marketing, Inc. v. Capital Terminal

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Co., 391 F.3d 312 (1st Cir.2004) (Lipez, J., concurring) (“Judicial notice of law is the name given to the commonsense doctrine that the rules of evidence governing admissibility and proof of documents generally do not make sense to apply to statutes or judicial opinions-which are technically documents-because they are presented to the court as law, not to the jury as evidence.... Although judicial notice of fact and judicial notice of law share the phrase ‘judicial notice,’ they draw on different rules of practice. Rule 201 ‘governs only judicial notice of adjudicative facts.’ ... Judicial notice of law is outside the scope of Rule 201,...

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9 practice notes
  • Owino v. Corecivic, Inc., Case No.: 17-CV-1112 JLS (NLS)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • May 14, 2018
    ...courts without resort to Rule 201. See, e.g., Derum v. Saks & Co., 95 F. Supp. 3d 1221, 1224 (S.D. Cal. 2015) (citing McVey v. McVey, 26 F. Supp. 3d 980, 984-85 (C.D. Cal. 2014)). The opinions attached to Plaintiffs' requests are the legal reasoning and conclusion of other federal courts. W......
  • Figueira v. Cnty. of Sutter, No. 2:15-cv-00500-KJM-AC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • October 22, 2015
    ...is a public document whose existence is not subject to reasonable dispute, and is subject to judicial notice, see McVey v. McVey, 26 F. Supp. 3d 980, 984 (C.D. Cal. 2014), appeal dismissed (Apr. 22, 2015), but judicial notice does not establish the truth of the report's contents, see Missud......
  • Decoulos v. Town of Aquinnah, the Aquinnah/Gay Head Cmty. Ass'n, Inc., Civil Action No. 17-cv-11532-ADB
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • July 24, 2018
    ...in Decoulos' claims as more fully set forth herein, the Court need not now determine the reach of Rooker-Feldman. See McVey v. McVey, 26 F. Supp. 3d 980, 995 n.45 (C.D. Cal. 2014) (where respondent appeared in state-court action in his individual capacity, but filed federal-court action in ......
  • Brown v. United Airlines, Inc., Case No.: 19cv537-MMA (JLB)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • July 9, 2019
    ...see, e.g., Ghalehtak v. FNBN I, LLC, No. 15-CV-05821-LB, 2016 U.S. Dist. LEXIS 61347, at *3 (N.D. Cal. May 6, 2016); McVey v. McVey, 26 F. Supp. 3d 980, 984 (C.D. Cal. 2014), appeal dismissed (Apr. 22, 2015). Accordingly, the Court DENIES Plaintiff's request for judicial notice. 2. Diversit......
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9 cases
  • Owino v. Corecivic, Inc., Case No.: 17-CV-1112 JLS (NLS)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • May 14, 2018
    ...courts without resort to Rule 201. See, e.g., Derum v. Saks & Co., 95 F. Supp. 3d 1221, 1224 (S.D. Cal. 2015) (citing McVey v. McVey, 26 F. Supp. 3d 980, 984-85 (C.D. Cal. 2014)). The opinions attached to Plaintiffs' requests are the legal reasoning and conclusion of other federal courts. W......
  • Figueira v. Cnty. of Sutter, No. 2:15-cv-00500-KJM-AC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • October 22, 2015
    ...is a public document whose existence is not subject to reasonable dispute, and is subject to judicial notice, see McVey v. McVey, 26 F. Supp. 3d 980, 984 (C.D. Cal. 2014), appeal dismissed (Apr. 22, 2015), but judicial notice does not establish the truth of the report's contents, see Missud......
  • Decoulos v. Town of Aquinnah, the Aquinnah/Gay Head Cmty. Ass'n, Inc., Civil Action No. 17-cv-11532-ADB
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • July 24, 2018
    ...in Decoulos' claims as more fully set forth herein, the Court need not now determine the reach of Rooker-Feldman. See McVey v. McVey, 26 F. Supp. 3d 980, 995 n.45 (C.D. Cal. 2014) (where respondent appeared in state-court action in his individual capacity, but filed federal-court action in ......
  • Brown v. United Airlines, Inc., Case No.: 19cv537-MMA (JLB)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • July 9, 2019
    ...see, e.g., Ghalehtak v. FNBN I, LLC, No. 15-CV-05821-LB, 2016 U.S. Dist. LEXIS 61347, at *3 (N.D. Cal. May 6, 2016); McVey v. McVey, 26 F. Supp. 3d 980, 984 (C.D. Cal. 2014), appeal dismissed (Apr. 22, 2015). Accordingly, the Court DENIES Plaintiff's request for judicial notice. 2. Diversit......
  • Request a trial to view additional results

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