John Doe v. Camp Pendleton & Quantico Housing, LLC

• Court: District Court, S.D. California
• Decided: April 16, 2020
• Docket: 3:20-cv-00224
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN DOE, an individual; JANE DOE, Case No.: 20-cv-224-GPC-AHG an individual; JOHN DOE 1, a minor, 12 by and through his guardian ad litem, ORDER DENYING MOTION TO 13 JANE DOE; JOHN DOE 2, a minor, by REMAND; GRANTING MOTION and through his guardian ad litem, TO DISMISS; GRANTING MOTION 14 JANE DOE, TO SEAL 15 Plaintiff, [ECF Nos. 10, 13, 16] 16 v. 17 CAMP PENDLETON & QUANTICO 18 HOUSING LLC, a Delaware limited liability company; LPC PENDLETON 19 QUANTICO PM LP, a Delaware 20 limited partnership; LINCOLN MILITARY PROPERTY 21 MANAGEMENT, LP, a Delaware 22 limited partnership; and DOES 1 through 50, inclusive, 23 Defendants. 24

25 / / / 26 / / / 27 / / / 28 1 Before the Court is Defendants Camp Pendleton & Quantico Housing LLC, LPC 2 Pendleton Quantico PM LP, and Lincoln Military Property Management LP (collectively, 3 “Defendants”) motion to dismiss (ECF No. 10). Plaintiffs filed an opposition to the 4 motion to dismiss on March 5, 2020. ECF No. 15. Defendants filed a reply on March 5 13, 2020. ECF No. 20. 6 Plaintiffs’ motion to remand (ECF No. 13) is also before the Court. Defendants 7 filed an opposition on March 6, 2020 (ECF No. 17) and a motion to seal in support of 8 their motion (ECF No. 16). Plaintiffs filed a reply on March 11, 2020. ECF No. 19. 9 FACTUAL BACKGROUND 10 On December 10, 2019, Plaintiffs John Doe, Jane Doe, John Doe 1, a minor, by 11 and through his guardian ad litem, Jane Doe, and John Doe 2, a minor, by and through his 12 guardian ad litem, Jane Doe (“Plaintiffs”) filed the Complaint with the San Diego County 13 Superior Court, Case Number 37-2019-00066467-CU-PO- CTL (“Underlying Action”). 14 In the Complaint, Plaintiffs allege that Defendants Camp Pendleton & Quantico Housing 15 LLC (“CPQH”) and LPC Pendleton Quantico PM LP (“LPC Pendleton”) were involved 16 in the ownership, management, leasing, maintenance or repairs of a property located at 17 1582 Black Eagle Dr., Apt. D, San Diego, CA 92123 (“Subject Property”). ECF No. 1, 18 Ex. A (“Compl.”) ¶¶ 1, 7, 8. Defendant CPQH disputes any role in owning, managing or 19 leasing the Subject Property. ECF No. 1 ¶ 2. LPC Pendleton is an agent that performs 20 certain property management functions for CPQH. ECF No. 1 ¶ 21. Defendant Lincoln 21 Military Property Management LP is the property manager of the Subject Property. ECF 22 No. 1 ¶ 4. 23 Defendants filed the Notice of Removal in this instant action on February 5, 2020. 24 ECF No. 1. Defendants allege that they were served with an incomplete copy of the 25 Complaint on January 6, 2020. ECF No. 1 ¶ 1. 26 Plaintiffs are individuals who lived at and occupied the Subject Property as tenants 27 from January 1, 2019 to October 29, 2019. Compl. ¶¶ 1-5, 12. Plaintiffs allege that 28 1 within the first week of moving into the Subject Property, they notified Defendants that a 2 “strong scent of mildew” existed at the Subject Property and that items within the 3 apartment would become moldy “at an alarming rate.” Id. ¶ 16. Defendants told 4 Plaintiffs to buy a de-humidifier, which Plaintiffs did at their own cost. Id. ¶¶ 18, 19. 5 After two weeks, John Doe 1 and John Doe 2 developed signs of illness, including wet 6 coughs, eye infections, sinus infections, lethargy, and shortness of breath, and Jane Doe 7 noticed that black mold was growing within the apartment. Id. ¶ 23, 24. Jane Doe 8 contacted Defendants to notify them of the black mold, in addition to the ongoing issues 9 with leaks, humidity, and mildew. Id. ¶ 25. Plaintiffs allege that Defendants’ 10 representative told Jane Doe that Defendants “don't clean mold or treat it” and told Jane 11 Doe to clean the mold herself. Id. ¶ 26. 12 Plaintiffs further allege that Defendants failed to inspect the Subject Property 13 between January 2019 and April 2019. Id. ¶ 28. In April 2019, Plaintiff John Doe 14 returned to San Diego from a military deployment overseas. Id. ¶ 30. John Doe 15 contacted Defendants to lodge a complaint about the status of the property and in 16 response, Defendants sent a regional manager to inspect the property. Id. ¶ 31. Upon 17 inspection, the regional manager told Plaintiffs that he could not smell any mold and did 18 not conduct sampling or any further inspection of the property. Id. ¶ 33. The Complaint 19 alleges that at the time of the inspection, Defendants were aware that Plaintiffs were 20 suffering from a multitude of health issues. Id. ¶ 34. 21 On September 19, 2019, Plaintiffs were moved out of the Subject Property into a 22 hotel, after Defendants informed Plaintiffs that they needed to replace the window in the 23 master bedroom which had been infested with black mold. Id. ¶¶ 36, 38. 24 Between September 19, 2019 and October 8, 2019, Plaintiffs lived in hotel rooms 25 where they allege they were exposed to dangerous chemicals, resulting in John Doe 1 and 26 John Doe 2 breaking out in several rashes. Id. ¶ 42. 27 28 1 Upon their return to their apartment, Plaintiffs observed that the extent of repairs 2 and alterations to the Subject Property exceeded the replacement of the window in the 3 master bedroom, and included changes throughout the property, including the bathroom 4 and carpets. Id. ¶ 45. A few days after returning to the Subject Property, John Doe 1 5 began developing dry skin and severe rashes, and John Doe 2’s eyes became swollen 6 shut. Id. ¶¶ 46, 47. Since January 1, 2019, Plaintiffs allege that they have taken John 7 Doe 1 and John Doe 2 to the emergency room at Rady Children’s Hospital three times 8 due to their exposure to the toxic mold and other conditions stemming from Defendants’ 9 conduct. Id. ¶ 48. Plaintiffs further allege that as a result of Defendants’ conduct, John 10 Doe 1 was forced to miss over four weeks of school, was ultimately pulled out of school, 11 and that his preexisting autism condition has been severely exacerbated due to his 12 inability to attend his behavioral and speech therapy sessions. Id. ¶¶ 49-51. 13 In the Underlying Action, Plaintiffs seek damages for: (1) negligence; (2) 14 nuisance; (3) constructive (wrongful) eviction; (4) negligent misrepresentation; (5) 15 negligent infliction of emotional distress; (6) breach of implied warranty of habitability; 16 (7) breach of implied covenant of quiet use and enjoyment; (8) rent abatement; (9) fraud 17 – concealment; (10) gross negligence; (11) premises liability. 18 REQUESTS FOR JUDICIAL NOTICE 19 In support of their motion to dismiss, Defendants request judicial notice of the 20 Lease Agreement of the Subject Property between the Plaintiffs and San Diego Family 21 Housing LLC pursuant to Federal Rule of Evidence 201. ECF No. 10-3, Exhibit A 22 (“Lease Agreement”). Federal Rule of Evidence 201 provides a court may take judicial 23 notice of a fact that is “not subject to reasonable dispute” because it “can be accurately 24 and readily determined from sources whose accuracy cannot reasonably be questioned.” 25 Here, Plaintiff refers to the Lease Agreement throughout the Complaint (Compl. ¶¶ 11, 26 13, 74, 146, 149, 154 and 157) and does not dispute the Defendants’ request for judicial 27 28 1 notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). Accordingly, 2 the Court GRANTS Defendants’ request for judicial notice of the Lease Agreement. 3 In support of their opposition to the motion to remand, Defendants request judicial 4 notice of the following documents: (1) County Assessor/Recorder stamped maps and 5 ownership information relating to Marine Corps Air Station Miramar; (2) United States 6 Marine Corps map of the “Main Station” area of Marine Corps Air Station Miramar; (3) 7 excerpts from the Final Environmental Impact Statement for Military Family Housing in 8 the San Diego Region; (4) excerpts from the United States Marine Corps F-35B West 9 Coast Basing Final Environmental Impact Statement. ECF No. 17-4 ¶¶ 1-4. The four 10 documents are “not subject to reasonable dispute,” and therefore the Court GRANTS 11 Defendants’ request for judicial notice as to the four documents pursuant to the Federal 12 Rule of Evidence 201. 13 In addition, Defendants also request judicial notice of the following facts: (1) the 14 United States of America is the owner of the Property at issue; and (2) Marine Corps Air 15 Station Miramar is a United States military base which is under exclusive federal 16 legislative jurisdiction. ECF No. 17-4 ¶¶ 5, 6. The request is DENIED since the 17 proposed facts are subject to “reasonable dispute” between the parties. Lee, 250 F.3d at 18 688. 19 MOTION TO REMAND 20 Plaintiffs seek to remand the case to state court and Defendants oppose. ECF No. 21 19. Pursuant to 28 U.S.C. § 1441(a), a defendant may remove to federal court a claim 22 filed in state court that could have initially been brought in federal court. 28 U.S.C. § 23 1441(a); Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). As federal courts have 24 limited jurisdiction, they are presumed to lack jurisdiction unless the contrary is 25 established. Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968–69 (9th Cir. 26 1981). Removal statutes are to be strictly construed and any doubts are to be resolved in 27 28 1 favor of state court jurisdiction and remand. See Gaus v. Miles, 980 F.2d 564, 566 (9th 2 Cir. 1992). 3 Defendants filed a notice of removal of this action to this Court on the following 4 three bases: (1) pursuant to 28 U.S.C. § 1331, because the events alleged in the 5 Complaint occurred within a federal enclave; and under 28 U.S.C. § 1442, because (2) 6 Defendant Camp Pendleton & Quantico Housing LLC is a federal agency (moreover, San 7 Diego Family Housing, LLC, the actual ground lessor, although not presently named, is 8 also federal agency); (3) at all relevant times Lincoln Military Property Management LP 9 was acting under a federal officer. ECF No. 1. Plaintiff counters on all three bases. The 10 Court addresses each of the three bases in turn.1 11 I. Federal Enclave – 28 U.S.C. § 1331 12 Defendants argue that this Court has jurisdiction on the basis of federal question 13 jurisdiction under 28 U.S.C. § 1331 since the events upon which Plaintiffs’ claims are 14 founded occurred within federal property. ECF No. 1 ¶ 10. Plaintiffs counter that neither 15 the Subject Property nor the surrounding property qualifies as a federal enclave. 16

17 1 In support of their opposition to the motion to remand (ECF No. 17), Defendants seek to file under seal 18 (1) the Fourth Amended and Restate Limited Liability Operating Agreement of San Diego Family 19 Housing, LLC (“Operating Agreement”), (2) the Third Amended and Restated Real Estate Ground Lease between the United States of America, Department of the Navy and San Diego Family Housing, 20 LLC (“Ground Lease”), (3) the Fourth Amended and Restated Property Management Agreement between San Diego Family Housing, LLC and Lincoln Military Property Management LP (“Property 21 Management Agreement”); and (4) the Water Intrusion/Mold Operations and Maintenance Management System (“Mold O&M Plan”). ECF No. 16. The documents are filed as Exhibits B, C, D, and E, 22 respectively, to the Declaration of Philip Rizzo (ECF No. 17-1). ECF No. 18. Defendants argue that 23 these documents must be sealed given the confidential information contained therein related to the proprietary business operations of the federal government that disclose how these businesses are 24 “structured and run, and how they are financed, and how they execute on their government contracts.” ECF No. 16-1 at 7-8. Plaintiffs do not oppose. A party seeking to seal a judicial record must overcome 25 the presumption of access “by demonstrating compelling reasons for sealing the document.” In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 2008) (licensing agreement merited sealing to protect 26 confidential and commercially sensitive information). Here, Defendants have shown that there is a 27 “compelling reason” to seal these documents and protect the proprietary business information. The motion to seal is therefore GRANTED. 28 1 a. Legal Standard 2 Article I, section 8, clause 17 of the United States Constitution provides in relevant 3 part that “Congress shall have the power . . . to exercise exclusive Legislation . . . over all 4 Places purchased by the Consent of the Legislature of the State in which the Same shall 5 be, for the Erection of Forts, Magazines, Arsenals, Dock-Yards, and other needful 6 Buildings.” U.S. Const., Art. I § 8, cl. 17. A federal enclave is created where the federal 7 government acquires land by purchase or condemnation with the consent of the state or 8 commonwealth in which the land is located. See Humble Pipe Line v. Waggonner, 376 9 U.S. 369, 371-72 (1964). Federal enclaves include “numerous military bases, federal 10 facilities, and even some national forests and parks.” Azhocar v. Coastal Marine Servs., 11 Inc., 2013 WL 2177784 (S.D. Cal. May 20, 2013) (citing Allison v. Boeing Laser 12 Technical Servs., 689 F.3d 1234, 1235 (10th Cir. 2012); see also U.S. Const. art. I, § 8, 13 cl. 1). The Act of October 9, 1940, 40 U.S.C. § 255 (re-codified as 40 U.S.C. § 3112), 14 provides that as of date of its enactment, United States agencies and authorities may 15 accept exclusive or partial jurisdiction over lands acquired by the United States by filing 16 a notice with the Governor of the state on which the land is located or by taking other 17 similar appropriate action. Adams v. United States, 319 U.S. 312, 313 (1943). 18 The parties dispute whether the Subject Property sits in a federal enclave. 19 Plaintiffs argue that since the land on which the Subject Property sits was acquired by the 20 federal government after 1940, Defendants must show that the federal government 21 accepted jurisdiction by filing notice of acceptance pursuant to 40 U.S.C. § 3112(b) 22 (2006). Defendants counter that the land was purchased by the federal government in 23 1931, not after 1940, and that notice of acceptance is unnecessary. The Court agrees with 24 Defendants. 25 a. MCAS Miramar 26 The parties disagree as to the history of the federal ownership of Marine Corps. Air 27 Station Miramar (“MCAS Miramar”) (former Miramar Naval Air Station). 28 1 Defendants claim that since the Subject Property is within the jurisdictional bounds 2 of MCAS Miramar, it is owned by the federal government – specifically, the Department 3 of the Navy (“Navy”).2 ECF No. 1 ¶ 10. Defendants allege that the Subject Property and 4 surrounding properties were ceded from Mexico to the United States through the Treaty 5 of Guadalupe Hidalgo of 1848, and that the State of California subsequently ceded to the 6 federal government exclusive jurisdiction over all lands used for military purposes 7 through the California Statutes of 1897. ECF No. 1 ¶ 11. Defendants therefore conclude 8 that the land is a federal enclave, since there has been no retrocession of this portion of 9 MCAS Miramar to the State of California. ECF No. 1 ¶ 11. Plaintiffs counter that the 10 land constituting MCAS Miramar was privately owned when the California Statute of 11 1897 was enacted and was only converted to a military base around 1917 when it was 12 leased to the federal government and was not acquired by the federal until the 1940s. 13 ECF 13-1 at 4. Plaintiffs argue that Defendants must prove that the federal government 14 accepted jurisdiction over the property by filing a “notice of acceptance” per the 15 requirements of 40 U.S.C. § 3112(b). ECF 13-1 at 4. 16 Both parties refer to the Historical Overview of Marine Corps Air Station, 17 Miramar, San Diego, California, which documents the historical development of the area 18 “that is now within Marine Corps Air Station (MCAS) Miramar.” ECF No. 13-3 at 6. 19 Plaintiffs cite ECF No. 13-3 at 39 in arguing that the federal government did not acquire 20 the property until 1940s. However, as Defendants note, Plaintiffs cite a section of the 21 report that describe the “six satellite camps” that were established around the relevant 22 property, rather than property itself. ECF No. 13-3 at 39. Instead, the historical record 23 shows that the Department of the Navy purchased Camp Kearny, “the land that ultimately 24 became MCAS Miramar,” in February 1931. ECF No. 13-3 at 46. In 1917, the War 25 Department leased Camp Kearny, (ECF No. 13-3 at 29), and while most of the Camp’s 26

27 28 2 The Subject Property is located in the Miramar Townhomes neighborhood. ECF No. 1 ¶ 10. 1 buildings were destroyed or salvaged in the 1920s, (ECF No. 13-3 at 35), the property 2 continued to be used by the Marines through the 1930s. ECF No. 13-3 at 36. 3 Through execution of the Ground Lease, the United States Navy retained 4 ownership of the land where the Subject Property sits. ECF No. 17-1 ¶ 12. The 5 Operating Agreement and Ground Lease specify that the land and housing units on it 6 must be used for the governmental purpose of housing military service members and their 7 families. Id. ¶ 13. 8 Since the federal government purchased the property in 1931, the “notice of 9 acceptance” requirement as set forth by 40 U.S.C. § 3112(b) cited by Plaintiffs is 10 inapplicable. See generally Markham v. United States, 215 F.2d 56 (4th Cir. 1954) (the 11 statutory requirement of filing a notice of acceptance filed was inapplicable to land 12 acquired prior to enactment of the statute). 13 Since 40 U.S.C. § 3112(b) (formerly 40 U.S.C. § 255) was amended to include 14 this requirement in 1940, this requirement applies only to lands thereafter acquired. 15 Defendants have sufficiently established that the federal government purchased MCAS 16 Miramar in 1931 and therefore exercises ownership over the property to meet the 17 requirements of federal jurisdiction. Humble Pipe Line, 376 U.S. at 371-72. And since 18 neither party disputes that the relevant “pertinent events” took place on the Subject 19 Property, the Court therefore finds that the claim properly arises on a federal enclave. 20 Rosseter, 2009 WL 210452 at *2. 21 Plaintiffs argue that the Subject Property itself cannot be considered part of a 22 federal enclave since it is not a “needful building,” citing Johnson v. Morrill, 20 Cal. 2d 23 446, 451 (1942). ECF No. 13-1 at 4. In Johnson, the court held that since the property at 24 issue was merely leased to the Navy Department, the federal government was “expressly 25 accepted for exclusive jurisdiction by the United States by the filing of any notice of 26 acceptance of exclusive jurisdiction” pursuant to 40 U.S.C. § 3112(b). Id. at 450. 27 However, as discussed above, the statutory presumption against acceptance of 28 1 jurisdiction over land acquired by government in absence of a notice of such acceptance 2 is inapplicable to land acquired prior to enactment of the statute. See Markham, 215 F.2d 3 56 (4th Cir. 1954). Furthermore, the Johnson court considered the role of the Lanham 4 Act, which provided for the construction of housing for national defense workers, and the 5 “express refusal in the Lanham Act to take exclusive jurisdiction” in finding that there 6 was no federal jurisdiction. Johnson, 20 Cal. 2d at 453. No such analogous statute exists 7 here. Instead, given that the Navy purchased the land on which the Subject Property sits 8 in 1931, the Court accordingly finds that Subject Property is part a federal enclave. 3 9 “Federal courts have federal question jurisdiction over tort claims that arise on 10 ‘federal enclaves.’” Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1250 (9th Cir. 11 2006). “In determining whether a claim arises on a federal enclave, courts have simply 12 looked to see where all the ‘pertinent events’ took place.” Rosseter v. Industrial Light & 13 Magic, 2009 WL 210452, at *2 (N.D. Cal. 2009) (citing Stiefel v. Bechtel Corp., 497 F. 14 Supp. 2d 1138, 1148 (S.D. Cal 2007)). Here, all of the pertinent alleged events took 15 place on the Subject Property and therefore, the Court finds that it properly exercises 16 federal question jurisdiction over Plaintiffs’ claims. 17 MOTION TO DISMISS 18 I. Legal Standard 19 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) permits dismissal for “failure to 20 state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal 21 under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or 22 sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police 23 Dep't., 901 F.2d 696, 699 (9th Cir. 1990). Under Rule 8(a)(2), the plaintiff is required 24 25 26 3 Defendants argue that removal is also appropriate under the federal officer removal statute, 28 U.S.C. § 27 1442(a), since (1) CPQH is a federal agency as defined by the statute; and (2) Lincoln acted under a federal officer. Since the Court has determined that it may properly exercise jurisdiction, as discussed 28 above, the Court declines to address those arguments here. 1 only to set forth a “short and plain statement of the claim showing that the pleader is 2 entitled to relief,” and “give the defendant fair notice of what the ... claim is and the 3 grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 4 A complaint may survive a motion to dismiss only if, taking all well-pleaded factual 5 allegations as true, it contains enough facts to “state a claim to relief that is plausible on 6 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 7 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows 8 the court to draw the reasonable inference that the defendant is liable for the misconduct 9 alleged.” Id. “Threadbare recitals of the elements of a cause of action, supported by 10 mere conclusory statements, do not suffice.” Id. “In sum, for a complaint to survive a 11 motion to dismiss, the non-conclusory factual content, and reasonable inferences from 12 that content, must be plausibly suggestive of a claim entitling the plaintiff to 13 relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations 14 omitted). In reviewing a Rule 12(b)(6) motion, the Court accepts as true all facts alleged 15 in the complaint and draws all reasonable inferences in favor of the plaintiff. al-Kidd v. 16 Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). 17 Where a motion to dismiss is granted, “leave to amend should be granted ‘unless 18 the court determines that the allegation of other facts consistent with the challenged 19 pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight Sys., Inc., 20 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture 21 Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would 22 be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 23 806 F.2d at 1401. 24 II. Discussion 25 Defendants move to dismiss the complaint due to Plaintiffs’ failure to properly 26 serve the Complaint; for improperly lumping allegations against all Defendants; and for 27 failure to state a claim. ECF No. 10-1 at 3, 7, 8. 28 1 a. Insufficient service 2 Plaintiffs filed the Complaint in state court on December 10, 2019. ECF No. 1-4. 3 On January 6, 2020, Plaintiffs served Defendants CPQH and Lincoln with the first page 4 of the Complaint. ECF No. 15 at 2. On February 11, 2020, Defendants filed a motion to 5 dismiss in this Court. ECF No. 3.4 On February 13 and February 15, 2020, Plaintiffs 6 served Defendants CPQH, LPC Pendleton, and Lincoln with full versions of the 7 Complaint. ECF No. 15 at 3. Plaintiffs state that the initial service of process of only the 8 first page of the Complaint was due to “unintentional clerical error,” ECF No. 15 at 2, but 9 since filing the motion to dismiss in this Court, Plaintiffs have personally served all 10 Defendants with a full version of the Complaint; Plaintiffs have filed the relevant proofs 11 of service. ECF No. 15-1, Exs. 4 and 5. However, Defendants allege that since they 12 were not served with full version of Complaint within sixty days of the original filing 13 (i.e., by February 8, 2020) the Plaintiffs violated California Rule of Court 3.110(a) and on 14 this basis, the Complaint must be dismissed. ECF No. 10-1 at 4. 15 However, California Rule of Court 3.110(b) provides: “If a party fails to serve and 16 file pleadings as required under this rule, and has not obtained an order extending time to 17 serve its pleadings, the court may issue an order to show cause why sanctions shall not be 18 imposed.” Courts have accordingly found that “[a] plaintiff who fails to timely serve a 19 defendant as required by California Rule of Court 3.110(b) is subject only to sanctions by 20 the court.” Austin v. AstraZeneca Pharmaceuticls, LP, 2013 WL 12142637 (C.D. Cal, 21 2013) (emphasis added). Therefore, the Court finds Defendants’ argument unavailing 22 and declines to dismiss the Complaint on the basis of Plaintiff’s failure to comply with 23 California Rule of Court 3.110(a). 24 25 26 27 4 This motion was withdrawn on February 13, 2020 (ECF No. 9) and Defendants later filed the operative 28 motion to dismiss on February 14, 2020. ECF No. 10. 1 Plaintiffs argue that pursuant to 27 U.S.C. § 1448, a plaintiff may serve process 2 after removal within 120 days of the date of removal. ECF No. 15 at 3. The statute 3 provides: 4 In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in 5 which the service has not been perfected prior to removal, or in which process 6 served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court. 7

8 27 U.S.C. § 1447. Defendants contend argue that Plaintiff’s February 13, 2020 and 9 February 15, 2020 service of process violated Fed R. Civ. P. (“Rule”) 4(a) since Plaintiffs 10 did not serve Defendants with a federal court summons. ECF No. 20 at 2. The court 11 agrees and directs Plaintiffs to effectuate service of proper federal court summons and 12 file such proof of service with this Court. 13 b. Rule 8 14 Defendants argue that Plaintiffs do not make any specific allegations as to each 15 defendant and instead engaged in improper “group pleading,” which is impermissible 16 under Rule 8. Rule 8 requires that allegations be pled with sufficient specificity so as to 17 put the opposing party on notice of the wrong they allegedly committed so that they can 18 adequately defend themselves. See Gauvin v. Trombatore, 682 F. Supp. 1067, 1071 19 (N.D. Cal. 1988) (lumping together multiple defendants in one broad allegation fails to 20 satisfy the notice requirement of Rule 8(a)(2)). The Ninth Circuit has explained that the 21 animating feature of Rule 8 is that plaintiffs’ allegations “may not simply recite the 22 elements of a cause of action, but must contain sufficient allegations of underlying facts 23 to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. 24 Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 25 Here, Plaintiffs argue that they have met the Rule 8 pleading requirement since 26 they have set forth information regarding the alleged nature of the connection between 27 the Defendants and the connection to Plaintiffs’ claims. Compl. ¶¶ 5-7; ECF No. 15 at 6. 28 1 Defendants argue that this is insufficient since Plaintiffs have failed to allege any specific 2 action taken by any of the Defendants and have failed to allege with any specificity 3 “which defendant did which repair, or failed to investigate, or how that repair was 4 negligent, is not specifically explained.” ECF No. 10-1 at 7. 5 Rule 8 requires allegations in a complaint to be specific enough to place the 6 opposing party on notice so that they can defend themselves. Lumping multiple 7 defendants with broad allegations does not provide such notice and is prohibited. See 8 Ewing v. Encor Solar, LLC, 2019 WL 277386, at *6 (S.D. Cal. Jan. 22, 2019) (complaint 9 did not meet Rule 8 pleading standards where plaintiff failed to differentiate the alleged 10 wrongs amongst defendants); Ingalls v. AMG Demolition & Envtl. Servs., 2018 WL 11 2086155, at *3 (S.D. Cal. May 4, 2018) (dismissing claim noting where it failed under 12 Rule 8 to adequately notify defendants of the harms defendants allegedly committed); 13 Lopez v. Wells Fargo Bank, N.A., 2017 WL 1336764, at *3 (S.D. Cal. Apr. 5, 2017) 14 (plaintiff failed to allege with sufficient specificity “as to which Defendant did what” in 15 order to meet the Rule 8 pleading standard). 16 Here, Plaintiffs’ allegations are broad and conclusory. They allege that they 17 entered “into lease agreement Defendants [sic] on or around January 1, 2019.” Compl. ¶ 18 13. However, the Lease Agreement was made between certain of the Plaintiffs and San 19 Diego Family Housing, LLC, named as the “Owner,” acting by and through its 20 authorized agent, Lincoln. Plaintiffs allege that Plaintiffs had contact with “Defendants’ 21 designated housing representative” throughout the course of their ordeal but Plaintiffs fail 22 to specify the representative’s employer. Plaintiffs additionally allege that “Defendants 23 informed” Plaintiffs about the need for them to move out and the status of the mold in the 24 apartment, but Plaintiffs do not specify which Defendant. Compl. ¶¶ 36, 37. Plaintiffs 25 only broadly allege that “Defendants were aware” of the Plaintiffs’ ongoing issues. Id. ¶ 26 34. Plaintiffs’ allegations about the nature of Defendants’ actions – especially for CPQH 27 28 1 |}and LPC Pendleton who are not named in the Lease Agreement — are therefore 2 ||unsupported by any specific factual allegations.° 3 CONCLUSION 4 The motion to remand is DENIED. The motion to dismiss is GRANTED. 5 || Plaintiffs are directed to effectuate service of proper federal court summons and file such 6 || proof of service with this Court within the next 30 days. Plaintiffs are granted leave to 7 ||amend within the next 30 days. 8 9 IT IS SO ORDERED. 10 || Dated: April 16, 2020 7 sale Ok Hon. Gonzalo P. Curiel 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 || 26 Defendants also seek to dismiss CPQH and LPC Pendleton on the basis that they are not proper 7 defendants to this action since they are not named in the Lease Agreement. Since the Court has already granted the motion to dismiss on the grounds discussed above, the Court declines to address this 28 || argument. 15 20-cv-224-GPC-AHG