Bertrang v. Ivory Holdings, LLC

• Court: District Court, C.D. California
• Decided: July 6, 2021
• Docket: 2:20-cv-10519
• Status: Unknown

Opinion

JS-6 1 O 2 3 4 5 6 7

8 United States District Court 9 Central District of California

11 TODD BERTRANG; OPHIE BELTRAN, Case № 2:20-cv-10519-ODW (ASx)

12 Plaintiffs, ORDER GRANTING MOTIONS TO 13 v. DISMISS [32] [33] 14 IVORY HOLDINGS, LLC, a limited liability company; LIDO SAILING 15 CLUB, LLC, a limited liability company, and DOES 1 through 10, inclusive, 16

17 Defendants.

18 19 I. INTRODUCTION 20 Plaintiffs Todd Bertrang and Ophie Beltran bring this action against Defendants 21 Ivory Holdings, LLC and Lido Sailing Club, LLC for renting a property to Plaintiffs 22 that was allegedly tainted with toxic substances. (First Am. Compl. (“FAC”), ECF 23 No. 29.) Both Ivory and Lido move to dismiss, separately. (Lido’s Mot. Dismiss 24 (“Lido’s Mot.”), ECF No. 32; Ivory’s Mot. Dismiss (“Ivory’s Mot.”), ECF No. 33.) 25 Plaintiffs filed two Oppositions to Lido’s Motion but failed to file any opposition to 26 Ivory’s Motion. (See First Opp’n to Lido’s Mot. to Dismiss (“Opp’n”), ECF No. 40; 27 28 1 Second Opp’n to Lido’s Mot. to Dismiss, ECF No. 41.) Neither Defendant filed any 2 reply. (See Docket.) For the reasons discussed below, both Motions are GRANTED.1 3 II. BACKGROUND2 4 Ivory owns certain property (the “Premises”), which Bertrang subleased from 5 Defendants from May 2014 “through December 2020.”3 (FAC ¶¶ 9–11.) Beltran is 6 “a vendor that does packaging for [Bertrang] at the Premises.” (Id. ¶ 1.) Non-parties 7 Autocats, Inc. and ELV Recycling, Inc. are previous tenants of the Premises who 8 recycled motor vehicle parts and metals, causing “dangerous chemicals . . . such as 9 Chromic Acid and Spent Catalyst” to be “deposited at the Premises.” (Id. ¶¶ 13–14.) 10 “When Plaintiffs entered the [P]remises, on or about May 2014, [they] were not 11 made aware of the dangerous chemicals” therein, and “[t]his caused Plaintiffs to 12 unknowingly be exposed to chemicals such as Chromic Acid and Spent Catalyst.” 13 (Id. ¶ 15.) Plaintiffs subsequently “discovered” such exposure on or about late 14 August 2019. (Id. ¶ 16.) As a result of the exposure, Todd suffered “complete renal 15 failure requiring hospital treatment, loss of 75% of his lung function, an inflamed 16 bleeding colon, memory problems, an inflamed spine, extreme vision loss, extreme 17 fatigue, and organ malfunctioning and loss.” (Id. ¶ 22(a).) As for Beltran, she 18 suffered “extremely swollen (almost non-functional) hands, extremely swollen 19 joints, . . . numbness in her extremities, inflamed legs, back, and spine, memory 20 problems and daily migraines.” (Id. ¶ 22(b).) 21 Based on the foregoing, Plaintiffs assert five causes of action: (1) violation of 22 the Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. § 6901 et 23 seq., (2) negligence under premises liability, (3) strict liability for ultrahazardous 24 25 1 After carefully considering the papers filed in connection with the Motion, the Court deemed the 26 matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 2 For purposes of these Rule 12 Motions, the Court takes all of Plaintiffs’ well-pleaded allegations as 27 true. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). 28 3 Although the FAC does not indicate how or why Lido is involved, Plaintiffs explain in opposing Lido’s Motion that Lido is a tenant of Ivory who subleased the Premises to Bertrang. (See Opp’n 4.) 1 activity, (4) negligent infliction of emotional distress, and (5) intentional infliction of 2 emotional distress. (Id. ¶¶ 18–59.) Now, Defendants move to dismiss. 3 III. LEGAL STANDARD 4 Under Rule 12(b)(1), a defendant may move to dismiss a complaint for lack of 5 subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). “If the court determines at 6 any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” 7 Fed. R. Civ. P. 12(h)(3). A challenge pursuant to Rule 12(b)(1) may be facial or 8 factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Where a defendant brings 9 a facial attack on the district court's subject-matter jurisdiction under Rule 12(b)(1) the 10 court “assume[s] [plaintiff's] [factual] allegations to be true and draw[s] all reasonable 11 inferences in his favor.” Wolfe v. Strankman, 392 F.3d 358, 360 (9th Cir. 2004). By 12 contrast, in a factual attack the challenger disputes the “truth of the allegations that, by 13 themselves, would otherwise invoke federal jurisdiction.” Wolfe, 392 F.3d at 362 14 (citing Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). 15 A court dismissing a complaint should provide leave to amend if the complaint 16 could be saved by amendment. Manzarek v. St. Paul Fire & Marine Ins. Co., 17 519 F.3d 1025, 1031 (9th Cir. 2008); see also Fed. R. Civ. P. 15(a)(2) (“The Court 18 should freely give leave when justice so requires.”). Reasons to deny leave to amend 19 include “bad faith, undue delay, prejudice to the opposing party, and/or futility.” 20 Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (quoting William O. Gilly 21 Enters. v. Atl. Richfield Co., 588 F.3d 659, 669 n.8 (9th Cir. 2009)); see also Foman v. 22 Davis, 371 U.S. 178, 182 (1962). 23 IV. DISCUSSION 24 Between Lido and Ivory, they assert at least five unique arguments for 25 dismissal. (See generally Lido’s Mot.; Ivory’s Mot.) The Court need not address 26 them all because, among other reasons, Ivory correctly argues that Plaintiffs fail to 27 sufficiently allege standing to bring a claim under RCRA. (Ivory’s Mot. 10–11.) 28 1 A. Plaintiffs’ RCRA Claim 2 “RCRA is a comprehensive environmental statute that governs the treatment, 3 storage, and disposal of solid and hazardous waste.” Meghrig v. KFC Western, Inc., 4 516 U.S. 479, 483 (1996). Its “primary purpose . . . is to reduce the generation of 5 hazardous waste and to ensure the proper treatment, storage, and disposal of that 6 waste which is nonetheless generated, ‘so as to minimize the present and future threat 7 to human health and the environment.’” Id. (quoting 42 U.S.C. § 6902(b)). The 8 RCRA provision under which Plaintiffs assert their claim, 42 U.S.C. § 6972(a)(1)(B), 9 permits private citizens to bring RCRA claims “against any person who has 10 contributed or who is contributing to the past or present handling, storage, treatment, 11 transportation, or disposal of any solid or hazardous waste which may present an 12 imminent and substantial endangerment to health or the environment.” Ecological 13 Rts. Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 514 (9th Cir. 2013) (emphasis 14 added) (quoting 42 U.S.C. § 6972(a)(1)(B)). 15 Under Article III, the Court’s jurisdiction is limited to cases and controversies, 16 and “[s]tanding is an essential, core component of [that] requirement.” San Diego 17 Cnty. Gun Rts. Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996) (citing Lujan v. 18 Defs. of Wildlife, 504 U.S. 555, 560 (1992)). To have standing, Plaintiffs must 19 demonstrate an injury-in-fact to a legally protected interest that is concrete and 20 particularized and actual or imminent, a causal connection between their injury and 21 the conduct complained of, and a likelihood the injury will be redressed by a favorable 22 decision. Id. Under this standard, “[t]he mere existence of a statute, which may or 23 may not ever be applied to plaintiffs, is not sufficient to create a case or controversy 24 within the meaning of Article III.” Stoianoff v. Montana, 695 F.2d 1214, 1223 25 (9th Cir. 1983). 26 Section 6972(a)(1)(B) only provides a cause of action for injunctive relief. 27 Meghrig, 516 U.S. at 484. To assert such a claim, “there must be a threat which is 28 present now, although the impact of the threat may not be felt until later.” Id. at 486 1 (quoting Price v. U.S. Navy, 39 F.3d 1011, 1019 (9th Cir. 1994)). Where plaintiffs no 2 longer have any interest in the subject property, they lack standing to bring a claim 3 under § 6972(a)(1)(B) because they would no longer benefit from any relief that could 4 be granted. See, e.g., Doyle v. Town of Litchfield, 372 F. Supp. 288, 302 (D. Conn. 5 2005) (“[N]one of the injuries [plaintiff] alleges can be redressed by a favorable 6 RCRA decision” where “[plaintiff] no longer has an interest in the [premises].”); 7 Wademan v. Concra, 13 F. Supp. 2d 295, 304–05 (N.D.N.Y 1998) (“The plaintiffs are 8 not faced with an imminent harm because they are no longer associated with the 9 [premises]. They therefore lack standing because any remedial action [under RCRA] 10 would not [a]ffect or assist the plaintiffs.”). 11 Here, Plaintiffs allege that they “continued occupying the Premises . . . through 12 December 2020.” (FAC ¶ 11; see also Opp’n 3 (“Plaintiffs occupied the Premises 13 through December 2020.”).) Plaintiffs do not allege any current interest in the 14 Premises. Thus, Plaintiffs lack standing to bring their RCRA claim. Although this 15 argument was raised only by Ivory, it applies with equal force to the extent Plaintiffs’ 16 RCRA claim is asserted against Lido. See Abigninin v. AMVAC Chem. Corp., 17 545 F.3d 733, 743 (9th Cir. 2008) (“A district court may properly on its own motion 18 dismiss an action as to defendants who have not moved to dismiss where such 19 defendants are in a position similar to that of moving defendants.” (brackets 20 omitted).). Accordingly, Plaintiffs’ first cause of action under RCRA is DISMISSED. 21 B. No Leave to Amend 22 Additionally, the Court finds leave to amend would be futile, for three reasons. 23 1. Failure to Oppose 24 First, Plaintiffs did not oppose Ivory’s Motion, and the Court deems the non- 25 opposition as consent to the granting of Ivory’s Motion. “The failure to file [an 26 opposition], or the failure to file it within the deadline, may be deemed consent to the 27 granting or denial of the motion . . . .” C.D. Cal. L.R. 7-12; see Hines v. Toyota Motor 28 Sales, U.S.A., Inc., 504 F. App’x 642, 643 (9th Cir. 2013) (affirming grant of 1 unopposed motion to dismiss, based on Local Rule 7-12). Before granting an 2 unopposed motion, courts must consider: “(1) the public’s interest in expeditious 3 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 4 prejudice to the defendants; (4) the public policy favoring disposition of cases on their 5 merits; and (5) the availability of less drastic sanctions.” Ghazali v. Moran, 46 F.3d 6 52, 53 (9th Cir. 1995). The first factor always weighs in favor of dismissal, Yourish v. 7 Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999), and the fourth factor often weighs 8 against dismissal, Hernandez v. City of El Monte, 138 F.3d 393, 401 (9th Cir. 1998). 9 Here, Plaintiffs’ failure to oppose Ivory’s Motion appears to have been 10 intentional, as Plaintiffs did oppose Lido’s Motion, which was noticed for hearing on 11 the same date as Ivory’s Motion. (See Opp’n.) Additionally, although the Court is 12 not required to consider the merits of the Motion before granting it as unopposed, see 13 Wystrach v. Ciachurski, 267 F. App’x 606, 609 (9th Cir. 2008), dismissal in this 14 instance is on the merits, as explained above. Accordingly, the Court finds that the 15 first, second, third, and fourth Ghazali factors weigh in favor of dismissal, while the 16 fifth Ghazali factor is neutral, at worst. 17 2. Plaintiffs’ Proposed Amendments Would Be Ineffectual 18 Second, half of Plaintiffs’ Opposition to Lido’s Motion is devoted to explaining 19 why leave to amend should be granted. (See Opp’n 6–8.) Significantly, not a single 20 proffered amendment suggests that Plaintiffs have any current interest in or 21 association with the Premises. (See id. at 7–8.) 22 3. Existing Allegations Show Lack of Standing 23 Third, the Court infers from Plaintiffs’ FAC and Opposition that Plaintiffs are, 24 in fact, no longer tenants at the Premises. Plaintiffs have made clear that they were 25 subtenants “through December 2020.” (FAC ¶ 11; Opp’n 3.) “A party cannot amend 26 pleadings to ‘directly contradict an earlier assertion made in the same proceeding.’” 27 Airs Aromatics, LLC v. Op. Victoria’s Secret Stores Brand Mgmt., Inc., 744 F.3d 595, 28 600 (9th Cir. 2014) (brackets omitted) (quoting Russell v. Rolfs, 893 F.2d 1033, 1307 1 (9th Cir. 1990)); see also Reddy v. Litton Indus., Inc., 912 F.2d 291, 296–97 (9th Cir. 2 1990) (“[An] amended complaint may only allege ‘other facts consistent with the 3 challenged pleading.’” (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 4 806 F.2d 1393, 1401 (9th Cir. 1986)). 5 In short, Plaintiffs have been given—and in fact have attempted to capitalize 6 on—ample opportunities to provide any indication that amendment would not be 7 futile. The Court remains convinced that leave to amend would be futile. Thus, leave 8 to amend Plaintiffs’ RCRA claim is DENIED. 9 C. Remaining State Law Claims 10 The rest of Plaintiffs’ claims are brought under state law. When a complaint in 11 federal court includes both federal claims and state law claims, and the federal claims 12 are dismissed before trial, the district court has discretion regarding whether to 13 exercise supplemental jurisdiction over state law claims or dismiss them in favor of 14 state court. Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997); Carlsbad 15 Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 640 (2009). Where other factors do not 16 support the state law claims remaining in federal court, the general preference is for 17 the district court to dismiss those claims. Schneider v. TRW, Inc., 938 F.2d 986, 993 18 (9th Cir. 1991); Wren v. Sletten Constr. Co., 654 F.2d 529, 536 (9th Cir. 1981). “The 19 Supreme Court has stated, and [the Ninth Circuit] ha[s] often repeated, that in the 20 usual case in which all federal-law claims are eliminated before trial, the balance of 21 factors will point toward declining to exercise jurisdiction over the remaining state- 22 law claims.” Acri, 114 F.3d at 1001 (internal quotation marks and alterations 23 omitted). Here, no factors support Plaintiffs’ state law claims in federal court. 24 Accordingly, the Court declines to exercise supplemental jurisdiction over Plaintiffs’ 25 remaining causes of action, which are DISMISSED without prejudice. 26 D. Request for Costs 27 Lastly, Lido requests costs pursuant to 28 U.S.C. § 1919, which provides: 28 “Whenever any action or suit is dismissed in any district court . . . for want of 1 || jurisdiction, such court may order the payment of just costs." (See Lido’s Mot. 9.) 2 || Section 1919 “is explicitly a discretionary cost statute” that “stands in stark contrast to 3 || costs under Rule 54(d), which turns on a prevailing party standard.” Otay Land Co. v. 4|| United Enters. Ltd., 672 F.3d 1152, 1157 (9th Cir. 2012) (citing Miles v. California, 5 || 320 F.3d 986, 988 (9th Cir. 2003)). Under § 1919, “the proper standard for ‘just’ 6 || costs is what 1s most fair and equitable under the circumstances.” Jd. at 1159. 7 Here, it was Ivory, not Lido, who raised the issue of standing discussed above. 8 | (Ivory’s Mot. 10-11.) In fact, the only jurisdiction argument raised by Lido was that 9 || the Court should decline supplemental jurisdiction over Plaintiffs’ state law claims. 10 | (Lido’s Mot. 7-8.) Yet it is Lido, not Ivory, who seeks costs. (/d. at 9.) The Court 11 || finds that an award of costs to either Lido or Ivory would not be fair or equitable 12 || under the circumstances, so the request for costs is DENIED. 13 Vv. CONCLUSION 14 In summary, both Motions to Dismiss are GRANTED. (ECF Nos. 32, 33.) 15 || Plaintiffs’ first claim, brought under RCRA, is DISMISSED with prejudice. The 16 || Court declines to exercise supplemental jurisdiction over the remaining claims in this 17 || action, which are DISMISSED without prejudice. All dates and deadlines 18 || remaining in this action are VACATED. The Clerk of Court shall close this case. 19 20 IT IS SO ORDERED. 21 22 July 6, 2021 os Géedliot 4 OTIS D. WRIGHT, IT 05 UNITED STATES DISTRICT JUDGE

26 27 28 || 4 Lido cites to “42 U.S.C. § 1919,” erroneously it seems, as the quoted language appears in 28 U.S.C. § 1919. (See Lido Mot. 9.)