1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 DONALD D. BEURY, Case No.: 23-CV-1886-CAB-BGS
11 Plaintiff, ORDER GRANTING MOTION TO 12 v. DISMISS
13 HERTZ CORPORATION et al., [Doc. No. 13] 14 Defendants. 15 16 17 This matter is before the Court on a motion to dismiss the first amended complaint 18 (“FAC”) filed by Defendants Hertz Corporation, Hertz Global Holdings, and Thrifty Rent 19 A Car (collectively, the “Hertz Defendants”). The motion has been fully briefed, and the 20 Court finds it suitable for determination on the papers and without oral argument. See S.D. 21 Cal. CivLR 7.1(d)(1). For the reasons set forth below, the motion is granted, and Plaintiff’s 22 claims against the Hertz Defendants are dismissed with prejudice. 23 I. Background1 24 On February 10, 2023, Plaintiff Donald Beury filed the complaint in this lawsuit 25 against Hertz Corporation and Shaun Stone in San Diego County Superior Court. The 26
27 1 Most of this background was previously set forth in the Court’s order denying Plaintiff’s motion to 28 1 complaint asserted state law claims arising out of two instances where Beury rented, or 2 attempt to rent, a car from Hertz or its affiliate, Thrifty Rent a Car (“Thrifty”). 3 The first of these instances allegedly occurred in 2016. The FAC alleges that Beury 4 rented a car from a Hertz location in the Mission Valley neighborhood of San Diego in 5 October 2016, and then returned the car to an auto repair shop in Santee, California, that 6 he claims also served as a Hertz location. Beury allegedly returned the vehicle by leaving 7 it in the auto repair shop’s parking lot with the keys under a floor mat. 8 According to the FAC, several weeks after Beury left the car at the auto repair shop, 9 an associate of Beury’s informed him that Shaun Stone, whom the FAC alleges was a Hertz 10 employee, had accused Beury of stealing the rental car. Beury then returned to the repair 11 shop, found the car where he had left it, and drove it back to Mission Valley location from 12 which he had originally rented the car. The FAC alleges that Hertz then withdrew $1,000 13 from Beury’s bank account using the debit card information he had provided to secure the 14 rental. Hertz and Beury allegedly reached an agreement in July 2017 pursuant to which 15 Hertz would return the $1,000 and remove Beury from its “do not rent” list. Beury claims 16 that Hertz breached this agreement and did not return the $1,000 on the grounds that the 17 rental car was too dusty when Beury returned it. 18 The second instance occurred in 2019. The FAC alleges that Beury used 19 rentalcars.com to reserve a rental car from Thrifty Car Rental at the Miami, Florida, airport 20 for pickup in November 2019. When Beury arrived at the airport, however, Thrifty 21 allegedly refused to rent him the car because he was on the “do not rent” list. 22 Based on these allegations, the original complaint asserted claims for: (1) breach of 23 the alleged July 2017 settlement related to the first Hertz rental; (2) defamation arising out 24 Stone’s alleged accusation that Beury stole the rental car; (3) breach of the alleged 25 agreement Beury made in 2019 to rent a car at the Miami airport; (4) elder abuse arising 26 out of the denied rental in Miami; and (5) conversion relating to the $1,000 Hertz debited 27 from Beury’s bank account in 2017. 28 1 On October 16, 2023, Hertz removed the case to this Court based on diversity 2 jurisdiction. On October 31, 2023, Beury filed the operative FAC that added a few new 3 allegations, eliminated the conversion cause of action, and added Hertz Global Holdings, 4 Thrifty, and Rentalcars.com as defendants along with Hertz Corporation and Stone. Beury 5 filed a motion to remand along with his FAC. On December 27, 2023, the Court denied 6 the motion to remand on the grounds that Stone was a fraudulently joined defendant for 7 the purpose of defeating diversity jurisdiction. The Court ordered Hertz to respond to the 8 amended complaint by January 12, 2024. The instant motion followed. 9 II. Legal Standard 10 The familiar standards on a motion to dismiss apply here. To survive a motion to 11 dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted 12 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 13 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus, 14 the Court “accept[s] factual allegations in the complaint as true and construe[s] the 15 pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire 16 & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). On the other hand, the Court is 17 “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 18 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Nor is the Court “required to accept as 19 true allegations that contradict exhibits attached to the Complaint or matters properly 20 subject to judicial notice, or allegations that are merely conclusory, unwarranted deductions 21 of fact, or unreasonable inferences.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 22 (9th Cir. 2010). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory 23 factual content, and reasonable inferences from that content, must be plausibly suggestive 24 of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th 25 Cir. 2009) (internal quotation marks omitted). 26 Plaintiff is appearing pro se. “[A] pro se complaint, however inartfully pleaded, 27 must be held to less stringent standards than formal pleadings drafted by lawyers and can 28 only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff 1 can prove no set of facts in support of his claim which would entitle him to relief.” Estelle 2 v. Gamble, 429 U.S. 97, 106 (1976). However, “pro se litigants in the ordinary civil case 3 should not be treated more favorably than parties with attorneys of record.” Jacobsen v. 4 Filler, 790 F.2d 1362, 1364 (9th Cir. 1986). 5 III. Discussion 6 Defendants argue that (1) all of Plaintiffs claims were discharged in connection with 7 their bankruptcy decree, (2) the claims arising out of the 2016 car rental are barred by the 8 statute of limitations, and (3) the claims arising out of the attempted 2019 car rental fail to 9 state a claim. In his opposition, Plaintiff concedes that his claims arising out of the Hertz 10 Defendants’ actions in 2016 and 2017 are barred by the statute of limitations. [Doc. No. 11 14 at 8.] Claims one and two are therefore dismissed on that ground, leaving only the two 12 claims arising out of the attempted 2019 car rental. 13 A. The Hertz Defendants’ Bankruptcy 14 The FAC acknowledges that the Hertz Defendants filed for bankruptcy in 2020. 15 [Doc. No. 6 at 7 ¶¶ 60-61.] Moreover, in a declaration accompanying his opposition to the 16 instant motion, Plaintiff concedes that he was contemporaneously aware of the bankruptcy 17 proceeding and that he abandoned a civil suit he had pending against the Hertz Defendants 18 as a result of the bankruptcy filing. [Doc. No. 15 at 5-6.] “Under § 1111 of the Bankruptcy 19 Code, 11 U.S.C. § 1111
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 DONALD D. BEURY, Case No.: 23-CV-1886-CAB-BGS
11 Plaintiff, ORDER GRANTING MOTION TO 12 v. DISMISS
13 HERTZ CORPORATION et al., [Doc. No. 13] 14 Defendants. 15 16 17 This matter is before the Court on a motion to dismiss the first amended complaint 18 (“FAC”) filed by Defendants Hertz Corporation, Hertz Global Holdings, and Thrifty Rent 19 A Car (collectively, the “Hertz Defendants”). The motion has been fully briefed, and the 20 Court finds it suitable for determination on the papers and without oral argument. See S.D. 21 Cal. CivLR 7.1(d)(1). For the reasons set forth below, the motion is granted, and Plaintiff’s 22 claims against the Hertz Defendants are dismissed with prejudice. 23 I. Background1 24 On February 10, 2023, Plaintiff Donald Beury filed the complaint in this lawsuit 25 against Hertz Corporation and Shaun Stone in San Diego County Superior Court. The 26
27 1 Most of this background was previously set forth in the Court’s order denying Plaintiff’s motion to 28 1 complaint asserted state law claims arising out of two instances where Beury rented, or 2 attempt to rent, a car from Hertz or its affiliate, Thrifty Rent a Car (“Thrifty”). 3 The first of these instances allegedly occurred in 2016. The FAC alleges that Beury 4 rented a car from a Hertz location in the Mission Valley neighborhood of San Diego in 5 October 2016, and then returned the car to an auto repair shop in Santee, California, that 6 he claims also served as a Hertz location. Beury allegedly returned the vehicle by leaving 7 it in the auto repair shop’s parking lot with the keys under a floor mat. 8 According to the FAC, several weeks after Beury left the car at the auto repair shop, 9 an associate of Beury’s informed him that Shaun Stone, whom the FAC alleges was a Hertz 10 employee, had accused Beury of stealing the rental car. Beury then returned to the repair 11 shop, found the car where he had left it, and drove it back to Mission Valley location from 12 which he had originally rented the car. The FAC alleges that Hertz then withdrew $1,000 13 from Beury’s bank account using the debit card information he had provided to secure the 14 rental. Hertz and Beury allegedly reached an agreement in July 2017 pursuant to which 15 Hertz would return the $1,000 and remove Beury from its “do not rent” list. Beury claims 16 that Hertz breached this agreement and did not return the $1,000 on the grounds that the 17 rental car was too dusty when Beury returned it. 18 The second instance occurred in 2019. The FAC alleges that Beury used 19 rentalcars.com to reserve a rental car from Thrifty Car Rental at the Miami, Florida, airport 20 for pickup in November 2019. When Beury arrived at the airport, however, Thrifty 21 allegedly refused to rent him the car because he was on the “do not rent” list. 22 Based on these allegations, the original complaint asserted claims for: (1) breach of 23 the alleged July 2017 settlement related to the first Hertz rental; (2) defamation arising out 24 Stone’s alleged accusation that Beury stole the rental car; (3) breach of the alleged 25 agreement Beury made in 2019 to rent a car at the Miami airport; (4) elder abuse arising 26 out of the denied rental in Miami; and (5) conversion relating to the $1,000 Hertz debited 27 from Beury’s bank account in 2017. 28 1 On October 16, 2023, Hertz removed the case to this Court based on diversity 2 jurisdiction. On October 31, 2023, Beury filed the operative FAC that added a few new 3 allegations, eliminated the conversion cause of action, and added Hertz Global Holdings, 4 Thrifty, and Rentalcars.com as defendants along with Hertz Corporation and Stone. Beury 5 filed a motion to remand along with his FAC. On December 27, 2023, the Court denied 6 the motion to remand on the grounds that Stone was a fraudulently joined defendant for 7 the purpose of defeating diversity jurisdiction. The Court ordered Hertz to respond to the 8 amended complaint by January 12, 2024. The instant motion followed. 9 II. Legal Standard 10 The familiar standards on a motion to dismiss apply here. To survive a motion to 11 dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted 12 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 13 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus, 14 the Court “accept[s] factual allegations in the complaint as true and construe[s] the 15 pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire 16 & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). On the other hand, the Court is 17 “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 18 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Nor is the Court “required to accept as 19 true allegations that contradict exhibits attached to the Complaint or matters properly 20 subject to judicial notice, or allegations that are merely conclusory, unwarranted deductions 21 of fact, or unreasonable inferences.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 22 (9th Cir. 2010). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory 23 factual content, and reasonable inferences from that content, must be plausibly suggestive 24 of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th 25 Cir. 2009) (internal quotation marks omitted). 26 Plaintiff is appearing pro se. “[A] pro se complaint, however inartfully pleaded, 27 must be held to less stringent standards than formal pleadings drafted by lawyers and can 28 only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff 1 can prove no set of facts in support of his claim which would entitle him to relief.” Estelle 2 v. Gamble, 429 U.S. 97, 106 (1976). However, “pro se litigants in the ordinary civil case 3 should not be treated more favorably than parties with attorneys of record.” Jacobsen v. 4 Filler, 790 F.2d 1362, 1364 (9th Cir. 1986). 5 III. Discussion 6 Defendants argue that (1) all of Plaintiffs claims were discharged in connection with 7 their bankruptcy decree, (2) the claims arising out of the 2016 car rental are barred by the 8 statute of limitations, and (3) the claims arising out of the attempted 2019 car rental fail to 9 state a claim. In his opposition, Plaintiff concedes that his claims arising out of the Hertz 10 Defendants’ actions in 2016 and 2017 are barred by the statute of limitations. [Doc. No. 11 14 at 8.] Claims one and two are therefore dismissed on that ground, leaving only the two 12 claims arising out of the attempted 2019 car rental. 13 A. The Hertz Defendants’ Bankruptcy 14 The FAC acknowledges that the Hertz Defendants filed for bankruptcy in 2020. 15 [Doc. No. 6 at 7 ¶¶ 60-61.] Moreover, in a declaration accompanying his opposition to the 16 instant motion, Plaintiff concedes that he was contemporaneously aware of the bankruptcy 17 proceeding and that he abandoned a civil suit he had pending against the Hertz Defendants 18 as a result of the bankruptcy filing. [Doc. No. 15 at 5-6.] “Under § 1111 of the Bankruptcy 19 Code, 11 U.S.C. § 1111(a), and Bankruptcy Rule 3003(c)(2), [] creditors are required to 20 file a proof of claim with the bankruptcy court before the deadline, or ‘bar date,’ established 21 by the court.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 383 22 (1993). The Hertz Defendants contend, and Plaintiff does not dispute, that Plaintiff did not 23 make a claim in the bankruptcy proceeding. [Doc. No. 13 at 11.] The final decree in the 24 Hertz Defendants’ bankruptcy proceeding was entered on September 28, 2021. [Doc. No. 25 13-3.]2 26
27 2 With their motion, the Hertz Defendants attached the final decree along with the notice of deadlines for 28 1 “A claim is discharged in the bankruptcy proceeding if the events giving rise to the 2 claim occurred before the confirmation of the plan.” Lesane v. Aloha Airlines, Inc., No. 3 CV 06-00155 HG-LEK, 2007 WL 9711167, at *5 (D. Haw. Jan. 23, 2007) (citing 11 U.S.C. 4 § 1141(d)(1)(A)). Bankruptcy discharge “operates as an injunction against the 5 commencement or continuation of an action, the employment of process, or an act, to 6 collect, recover or offset any such debt as a personal liability of the debtor, whether or not 7 discharge of such debt is waived.” 11 U.S.C. § 524(a)(2). 8 Here, Plaintiff does not dispute that he could have asserted his claims against the 9 Hertz Defendants in the bankruptcy proceeding. Rather, he argues that his claims against 10 the Hertz Defendants here were not discharged because the final decree excepted from 11 discharge other individuals’ claims that, according to Plaintiff, are similar to his claims of 12 alleged intentional wrongdoing by the Hertz Defendants. Plaintiff asserts no authority for 13 the proposition that his unasserted claim should survive discharge because other claims 14 made in litigation that was pending at the time of the bankruptcy were excepted from 15 discharge. Because Plaintiff did not file a proof of his claim, it was not and could not have 16 been excepted from discharge by the final decree. 17 Plaintiff also argues that the “willful and malicious injury” exception to the 18 discharge rule precludes dismissal. 11 U.S.C. § 523(a)(6). By its terms, however, this 19 exception applies to “individual debtor[s].” Id. The Hertz Defendants are corporate 20 debtors, so section 523(a)(6) does not apply. See In re Pac.-Atl. Trading Co., 64 F.3d 1292, 21 1302 (9th Cir. 1995) (“§ 523 only applies to individual and not corporate debtors.”); 22 Yamaha Motor Corp. U.S.A. v. Shadco, Inc., 762 F.2d 668, 670 (8th Cir. 1985) (“[W]e 23 hold that the exemptions embodied in 11 U.S.C. § 523(a) do not apply to corporate 24 25 references the bankruptcy proceeding, (2) Plaintiff does not object to the Court’s consideration of these 26 documents outside of the body of the complaint in connection with the instant motion, and (3) the documents are public records whose authenticity is not contested, the Court takes judicial notice of them 27 without converting the instant motion into a motion for summary judgment. See generally Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (“A court may take judicial notice of “matters of public 28 1 debtors.”). Accordingly, Plaintiffs’ claims against the Hertz Defendants were discharged 2 in the Hertz Defendants’ bankruptcy proceedings. 3 B. The FAC Fails to State a Claim Against the Hertz Defendants 4 In addition, the FAC fails to state a claim against the Hertz Defendants arising out 5 of Plaintiff’s 2019 attempt to rent a car from Thrifty in Miami. As for the breach of contract 6 claim purportedly arising out of the 2019 rental attempt, the FAC does not attach a copy of 7 the contract or allege the terms and parties to the agreement. Moreover, the FAC alleges 8 that Plaintiff received a refund of his deposit from “Rental Cars.com,” [FAC ¶ 44] 9 indicating that to the extent Plaintiff had a contract, it was with “Rental Cars.com” and not 10 the Hertz Defendants, and that Plaintiff did not suffer any damages as a result of any breach 11 of the purported contract. The FAC therefore does not state a claim for breach of a contract 12 by the Hertz Defendants. 13 The FAC also does not state a claim for financial elder abuse. “[F]inancial abuse of 14 an elder occurs when any person or entity takes, secretes, appropriates, or retains real or 15 personal property of an elder adult to a wrongful use or with an intent to defraud, or both.” 16 Teselle v. McLoughlin, 173 Cal. App. 4th 156, 174 (2009) (citing Cal. Welf. & Inst. Code 17 § 15610.30). Here, the FAC does not allege that any defendant “took, secreted, 18 appropriated, or retained” any of Plaintiff’s property. Moreover, Plaintiff ignores this 19 claim in his opposition to the motion to dismiss, thereby waiving any arguments against 20 dismissal. Accordingly, Plaintiff’s elder abuse claim is also dismissed for failure to state 21 a claim. 22 IV. Conclusion 23 For the foregoing reasons, it is hereby ORDERED that the Hertz Defendants’ 24 motion to dismiss is GRANTED. Because Plaintiff’s claims were discharged in the Hertz 25 Defendants’ bankruptcy, any further amendment to the complaint would be futile. 26 Accordingly, Plaintiff’s claims against the Hertz Defendants are DISMISSED WITH 27 PREJUDICE. 28 1 There is no indication on the docket that the FAC has been served on 2 ||Rentalcars.com. Under Federal Rule of Civil Procedure 4(m), “[i]f a defendant is not 3 || served within 90 days after the complaint is filed, the court—on motion or on its own after 4 notice to the plaintiff—must dismiss the action without prejudice against that defendant or 5 || order that service be made within a specified time.” Accordingly, it is further ORDERED 6 if Plaintiff does not file a proof of service indicating that the FAC was served on 7 ||Rentalcars.com by March 8, 2024, Plaintiff's claims against Rentalcars.com will be 8 || dismissed without prejudice, and this case will be closed in its entirety. 9 It is SO ORDERED. 10 || Dated: February 22, 2024 (fb 11 Hon. Cathy Ann Bencivengo 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28