Swords to Plowshares v. Smith

• Citation: 294 F.Supp.2d 1067
• Decision Date: 24 April 2002
• Docket Number: No. C 01-5441 MJJ.,C 01-5441 MJJ.
• Parties: SWORDS TO PLOWSHARES, Plaintiff, v. Samuel G. SMITH, Defendant.
• Court: U.S. District Court — Northern District of California

294 F.Supp.2d 1067

SWORDS TO PLOWSHARES, Plaintiff, v. Samuel G. SMITH, Defendant.

No. C 01-5441 MJJ.

United States District Court, N.D. California.

April 24, 2002.

Christopher Baker, Wynne S. Carvill, Patrick M. Ryan, Thelen Reid & Priest LLP, San Francisco, CA, for Samuel G. Smith, Defendant.

Richard L. Beckman, Patrick J. Dooley, MacDonald Beckman LLP, San Francisco, CA, for Swords to Plowshares, Veterans Rights Organization, Plaintiffs.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

JENKINS, District Judge.

INTRODUCTION

Before the Court is a motion to dismiss for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(6) brought by Defendant Samuel G. Smith ("Defendant"). The motion requires the Court to determine (1) whether Plaintiff Swords to Plowshares ("Plaintiff") complied with the appropriate eviction notice requirements; (2) whether the eviction notices were sufficiently detailed to put Defendant on notice of the allegations against him; and (3) whether the eviction notice based on nuisance pled the requisite elements of nuisance. Having read and considered the papers, and having heard the parties at oral argument, the Court GRANTS IN PART and DENIES IN PART Defendant's motion.

FACTUAL BACKGROUND

Plaintiff, a non-profit California corporation which provides housing to low income veterans like Defendant, instituted the instant eviction proceeding against Defendant who, according to the First Amended Complaint ("FAC"), became delinquent in the payment of rent and has engaged in behavior that threatens the safety of other tenants and their comfort in and enjoyment of the property in which his unit is located. See FAC at ¶¶ 14. As a result of Defendant's failure to pay, Plaintiff caused him to be served with two copies of a written three-day notice to pay rent or quit on October 17, 2001 ("Nonpayment Notice"). See id.; see also FAC, Exh. C. As a result of the behavior, Plaintiff caused Defendant to be served with two copies of a written three-day notice to quite for nuisance on December 17, 2001 ("Nuisance Notice").¹ See FAC at ¶ 14; see also FAC, Exh. D. According to Plaintiff, "[b]oth the [N]onpayment [N]otice and the [N]uisance [N]otice were served in compliance with state and federal law, including, but not limited to the requirements of 24 C.F.R. § 274.4(b)(2001) and [California Code of Civil Procedure ("CCP")] § 1162 (2001). At the time of service upon [D]efendant, both notices were also provided to the San Francisco Housing Authority, in compliance with the terms of the written sublease agreement."² FAC at ¶ 14.

LEGAL STANDARD

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the claims asserted in the complaint. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337 (9th Cir.1996). Dismissal of an action pursuant to Rule 12(b)(6) is appropriate only where it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir.1991). The Court will dismiss the complaint or any claim in it without leave to amend only if "it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987).

In determining a motion to dismiss, the Court must assume all factual allegations to be true and must construe them in the light most favorable to the non-moving party. See North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 580 (9th Cir. 1983). However, the Court need not accept as true unreasonable inferences, unwarranted deductions of fact, or conclusory legal allegations cast in the form of factual allegations. See Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981). Further, the Court need not accept as true allegations that contradict facts that have been judicially noticed or by exhibit attached to a complaint. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir.2001).

The Court may consider documents outside of the pleadings in support of a Rule 12(b)(6) motion to dismiss if the documents are referenced in plaintiff's complaint, are "central" to plaintiff's claim, and whose authenticity are not at issue. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001) (finding that courts may consider documents which are not physically attached to the plaintiff's complaint if their authenticity is not contested and the complaint necessarily relies on them). The Court may also take judicial notice of public records outside the pleadings. See MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.1986); see also In re American Continental Corp./Lincoln Savings and Loan Sec. Lit., 102 F.3d 1524, 1537 (9th Cir.1996), reversed on other grounds by Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998) (finding that courts may take judicial notice of "matters of public record, including court records in related or underlying cases which have a direct relation to the matters at issue" without converting the motion into one for summary judgment).

ANALYSIS

Defendant moves to dismiss the action because while the FAC pleads that Defendant served two notices in compliance with Section 247.4, the FAC does not contain specific, non-conclusory allegations describing the manner of service, namely that Plaintiffs served Defendant by "both mail and personal service." Defendant contends that this failure, coupled with the fact that Plaintiff had already amended its complaint once, supports a dismissal with prejudice.

Defendant also argues Plaintiff did not plead that all eviction notices were provided to the San Francisco Housing Authority ("SFHA"), as Plaintiff was obligated to do according to the terms of the lease agreement. Indeed, according to Defendant, Plaintiff served a total of three notices on him. The third notice was served on December 20, 2001, and was not referenced in either the original complaint or the FAC. Despite having been served with a third notice, the FAC only states that "[a]t the time of service upon [D]efendant, both notices were also provided to the [SFHA]." FAC ¶ 14 (emphasis added). This, according to Defendant, constitutes a defect which cannot be cured because three, not two, notices should have been provided to SFHA.

The third basis for Defendant's dismissal motion is that the Nuisance Notice did not put Defendant on the specific allegations of nuisance against him because the allegations were vague and failed to identify when the events occurred, the persons involved in each of the events, and the person who brought the event to Plaintiff's attention, all of which must be identified to meet the specificity requirement protected by the Due Process Clause. In support, Defendant relies on cases which stand for the proposition that under California law, failure to provide the tenant with adequate particularity could constitute a violation of his or her due process rights, and specificity is required to give the tenant the opportunity to decide whether to cure the breach, quit the premises, or defend against the allegations.

Finally, Defendant argues that Plaintiff's eviction notice did not plead the requisite elements of nuisance because it did not allege that it suffered substantial actual damage, or that Defendant's alleged conduct was of such a duration as to constitute unreasonable interference, as it must, according to Defendant, to state a claim. Since the notice cannot be amended, Defendant urges the Court to dismiss the FAC with prejudice.

A. Compliance with Service Requirements

Both parties agree that because Plaintiff seeks to evict Defendant from federal subsidized housing, Plaintiff must comply with the applicable federal regulations when serving notice. 24 C.F.R. § 247.4(b) ("Section 247.4(b)") provides, in relevant part, the following:

[N]otice provided for [termination] shall be accomplished by: (1) Seconding a letter by first class mail, properly stamped and addressed, to the tenant at his or her address at the project, with a proper return address, and (2) serving a copy of the notice on any adult person answering the door at the leased dwelling unit, or if no adult responds, by placing the notice under or through the door, if possible, or else by affixing the notice to the door.

Here, although Plaintiff does not specifically allege that it served Defendant both by mail and in person, it claims to have served Defendant in compliance with the requisite federal and state law provisions. A restatement of the service provision, however, does not constitute an allegation of fact the Court must accept as true. See Western Mining, 643 F.2d at 624 (courts need not accept as true conclusory legal allegations cast in the form of factual allegations). As such, the Court finds that Plaintiff has failed to state a claim on this ground.

Having said that, there is no indication that Defendant is unable to cure the deficiencies. See Noll, 809 F.2d at 1448 (finding that courts dismiss complaints without leave to amend if "it is absolutely clear that the deficiencies of the complaint could not be cured by amendment."). As such, the Court GRANTS WITH LEAVE TO AMEND Defendant's motion on this ground.

B. Compliance with Required Service to SFHA

Both parties agree that pursuant to the express terms of the lease agreement between Plaintiff and Defendant, Plaintiff is required to notify the SFHA at the same time Defendant is served. Specifically, the notice provision in the lease agreement states as follows:

The Landlord may evict the Tenant from the unit only by instituting a court action. The Landlord must notify the SFHA in writing of the commencement of procedures for termination of tenancy, at the same time that the Landlord gives notice to the Tenant under State or local law. The notice to the SFHA may be given by furnishing the...