McVey v. McVey
Citation | 26 F.Supp.3d 980 |
Decision Date | 16 June 2014 |
Docket Number | Case No. CV 12–06879 MMM MANx. |
Court | U.S. District Court — Central District of California |
Parties | 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. |
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
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
Defendant requests that the court take judicial notice of six documents in deciding his motion to dismiss:7 (1) Dawn McVey's 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 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) ( ); Branch v. Tunnell 14 F.3d 449, 453 (9th Cir.1994) (, )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) () .
The remainder of the documents defendant seeks to have judicially noticed 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) (). See also In re Zulueta, 520 Fed.Appx. 558, 559 (9th Cir.2013) (Unpub.Disp.) ( ); Rodriguez v. Disner, 688 F.3d 645, 660 n. 11 (9th Cir.2012) ( ); Roberson v. City of Los Angeles, 220 Fed.Appx. 522, 523 (9th Cir.2007) (Unpub.Disp.) ( ); Asdar Group v. Pillsbury, Madison & Sutro, 99 F.3d 289, 290 n. 1 (9th Cir.1996) ( ); Madden v. Cate, No. CV 11–5652 FMO(JC), 2013 WL 5741781, *3 n. 5 (C.D.Cal. Oct. 22, 2013) ( ); Rosal v. First Fed. Bank of California, 671 F.Supp.2d 1111, 1120–21 (N.D.Cal.2009) ( ); Retired Employees Ass'n of Orange County, Inc. v. County of Orange, 632 F.Supp.2d 983, 985 (C.D.Cal.2009) ( ); 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) (); Jacquett v. Sisto, No. CIV S–06–2938 RRB EFBP, 2008 WL 1339362 (E.D.Cal. Apr. 9, 2008) ( ); Chapman v. Chast Manhattan Mortg. Corp., No. 04–CV–0859–CVE–FHM, 2007 WL 4268774, *2 n. 7 (N.D.Okla. Nov. 30, 2007) () ; BP West Coast Products LLC v. May, 347 F.Supp.2d 898, 901 (D.Nev.2004) ( ); see also Getty Petroleum Marketing, Inc. v. Capital Terminal Co.,
391 F.3d 312 (1st Cir.2004) (Lipez, J., concurring) () .
The second document plaintiff asks the court to judicially notice is an opinion letter issued by the Department of Labor. Courts may take judicial notice of this type of public record. See Madrigal v. Tommy Bahama Group, Inc., No. CV 09–08924 SJO (Cwx), 2011 WL 10511339, *1–2 (C.D.Cal. June 27, 2011) ( ); Mendoza v. Home Depot, U.S.A. Inc., No. CV 09–05843 SJO (JCx), 2010 WL 424679, *3 (C.D.Cal. Jan. 21, 2010) (same). The court thus takes judicial notice of the opinion letter. Having granted the parties' requests, the court will consider the judicially noticed documents in...
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