Marshall Wexler v. Starbucks Corporation and Wells Fargo Bank, N.A.

• Court: District Court, N.D. California
• Decided: March 31, 2026
• Docket: 4:25-cv-00349
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT

3 NORTHERN DISTRICT OF CALIFORNIA

4 MARSHALL WEXLER, Case No.: 4:25-CV-00349-YGR 5 ORDER DENYING MOTION TO DISQUALIFY 6 Plaintiff, JUDGE;

7 v. DENYING MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT; 8 STARBUCKS CORPORATION AND WELLS FARGO BANK, N.A., GRANTING MOTIONS TO DISMISS 9 Defendants. Re: Dkt. Nos. 28, 33, 35, and 36. 10

11 Before the Court are (1) plaintiff’s motion to disqualify Judge Gonzalez Rogers under 28 12 U.S.C. section 455 (Dkt. No. 33), (2) defendant Wells Fargo Bank N.A.’s (“Wells Fargo”) motion 13 to strike plaintiff’s First Amended Complaint (Dkt. No. 26), (3) defendant Starbucks Corporation’s 14 (“Starbucks”) motion to dismiss (Dkt. No. 28), and (4) defendant Wells Fargo’s motion to dismiss. 15 (Dkt. No. 35). Having carefully considered the papers submitted and the pleadings in this action, 16 and for the reasons set forth below, the Court hereby DENIES plaintiff’s motion to disqualify, 17 DENIES Wells Fargo’s motion to strike, and GRANTS both Starbucks’ and Wells Fargo’s motions to 18 dismiss. 19 I. BACKGROUND 20 Plaintiff filed this lawsuit on January 11, 2025, bringing claims against defendants 21 Starbucks and John Doe Trucking Company under California law for private nuisance, trespass, 22 and negligence. (Dkt. No. 2, Wexler’s Complaint, [“Comp.”] ¶¶ 15-18, 19-20, 21-26.) Starbucks 23 filed a motion to dismiss on March 28, 2025 (Dkt. No. 12), which this Court granted with leave to 24 amend on October 27, 2025 (Dkt. No. 26). Plaintiff filed his First Amended Complaint on 25 November 16, 2025. (Dkt. No. 27, First Amended Complaint, [“FAC”].) The FAC adds Wells 26 Fargo as a defendant; reasserts the original three claims (Counts I-III); brings additional claims of 27 28 1 premises liability, fraud, and vicarious liability (Counts IV-VI); and adds class action claims 2 (Counts VII-XI). 3 Plaintiff alleges that, while living in a rental property located at 5434 Geary Boulevard, San 4 Francisco, nightly truck deliveries to a Starbucks store across from plaintiff’s residence created 5 noise and dust particulates that disturbed plaintiff’s living environment. (FAC at 9.) Plaintiff alleges 6 that the premises of the Starbucks store is owned or controlled by Wells Fargo. (Id. at 15.) The 7 noise and dust (caused by the trucks idling or braking) allegedly pushed plaintiff to leave the 8 residence due to significant pain and distress. 9 II. LEGAL FRAMEWORKS 10 A. MOTIONS TO DISQUALIFY 11 Section 455 requires a judge to recuse herself “in any proceeding in which [her] impartiality 12 might reasonably be questioned,” 28 U.S.C. § 455(a), including where the judge “has a personal 13 bias or prejudice concerning a party.” Id. § 455(b)(1). The standard for disqualification is “whether 14 a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality 15 might reasonably be questioned.” United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008). “A 16 judge should not disqualify herself when the facts do not warrant disqualification, as there is an 17 equally compelling obligation not to recuse where it is not appropriate.” Firsov v. Frontier Airlines, 18 Inc., 2025 WL 1533138, at *1 (N.D. Cal. May 28, 2025). “A federal judge is presumed to be 19 impartial, and the burden is therefore on the party seeking recusal to overcome this presumption.” 20 Washington v. United States, 2023 WL 7351836, at *1 (N.D. Cal. Oct. 30, 2023) (citing Saddozai 21 v. Davis, 2019 WL 13216339, at *1 (N.D. Cal. Aug. 26, 2019)). Any “alleged bias must stem from 22 an ‘extrajudicial source.’” United States v. Hernandez, 109 F.3d 1450, 1454 (9th Cir. 1997) (citing 23 Liteky v. United States, 510 U.S. 540, 554-56 (1994)). 24 B. MOTIONS TO STRIKE 25 Rule 12(f) of the Federal Rules of Civil Procedure allows the court to strike from “any 26 pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” 27 The purpose of a Rule 12(f) motion is to avoid the costs that arise from litigating spurious issues by 28 dispensing with those issues prior to trial. Sidney–Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 1 (9th Cir. 1983). Motions to strike are regarded with disfavor because striking is a drastic 2 remedy. Freeman v. ABC Legal Servs., Inc., 877 F.Supp.2d 919, 923 (N.D. Cal. 2012). Granting a 3 motion to strike may be proper if it will make the trial less complicated or if allegations being 4 challenged are so unrelated to plaintiff's claims as to be unworthy of any consideration as a defense 5 and that their presence in the pleading will be prejudicial to the moving party. Fantasy, Inc. v. 6 Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993). 7 C. MOTIONS TO DISMISS 8 A court may dismiss a complaint for failing to state a claim upon which relief can be 9 granted. See Fed. R. Civ. Pro. 12(b)(6). To survive a Rule 12(b)(6) motion, plaintiffs must plead 10 “enough facts to state a claim to relief that is plausible on its face” by nudging claims “across the 11 line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The 12 pleadings must provide more than “a formulaic recitation of the elements of a cause of action.” Id. 13 at 555. A claim is facially plausible when a plaintiff pleads “factual content that allows the court to 14 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 15 Iqbal, 556 U.S. 662, 678 (2009). Courts “accept factual allegations in the complaint as true and 16 construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul 17 Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Hence, “dismissal under Rule 18 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts 19 to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 20 1104 (9th Cir. 2008). A “pro se complaint, however inartfully pleaded, must be held to less 21 stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 22 (2007) (cleaned up). Courts must “construe [pro se] pleadings liberally and to afford the petitioner 23 the benefit of any doubt.” Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 642 (9th Cir. 2018). 24 III. DISCUSSION 25 A. MOTION TO DISQUALIFY 26 Plaintiff argues that disqualification is appropriate based on “financial interests, spousal 27 professional entanglements, overlapping institutional relationships, and cumulative circumstances 28 that create an appearance of partiality and impropriety . . . .” (Dkt. No. 33 at 1.) Contrary to 1 plaintiff’s contentions, this case does not have downstream implications for the fossil fuel industry, 2 emission standards, corporate delivery practices, or 18-wheeler trucking operations. (Id. at 3.) The 3 motion to disqualify is DENIED because no “reasonable person” would question the undersigned’s 4 impartiality based on her financial account with Wells Fargo, the professional history of her spouse, 5 or their real estate ownings in Texas. Holland, 519 F.3d. at 913. 6 B. MOTION TO STRIKE 7 Wells Fargo moves to strike all allegations in the FAC against it because plaintiff did not 8 obtain leave to add Wells Fargo as a party. (Dkt. No. 36 at 3.) Wells Fargo also seeks to strike all 9 references to plaintiff’s claims for punitive damages, emotional distress related damages, and 10 attorneys’ fees. (Dkt. No. 36 at 4-8.) 11 First, the additions to plaintiff’s amended complaint are not “in contravention” of the 12 Court’s prior order.1 (Dkt. No. 36 at 4.) Plaintiff had “leave of court” to amend his complaint, and 13 the Court did not prohibit plaintiff from adding new claims or parties.2 Fed. R. Civ. P. 15(a)(2). 14 Further, Rule 12(f) of the Federal Rules of Civil Procedure states that a district court “may strike 15 from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous 16 matter.” None of these five categories covers the allegations in the pleadings sought to be stricken 17 by Wells Fargo. See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010) 18 (finding the same for a motion to strike a claim for damages). Finally, a Rule 12(f) motion is not 19

20 1 By granting leave “[i]f plaintiff can amend . . . in the manner instructed,” the Court directed plaintiff to make factual allegations in relation to a defendant, and not just in relation to the 21 non-party delivery truck company. (Dkt. No. 26 at 5.) Unlike the cases cited by Wells Fargo, the 22 Court here was not limiting the scope of plaintiff’s amendments. See Serpa v. SBC Telecomms., Inc., 2004 WL 2002444, at *3 (N.D. Cal. Sept. 7, 2004) (disallowing amendment because the court 23 granted leave “solely for the purpose” of asserting specific claims); Inland Cities Express, Inc. v. Diamond Nat’l Corp., 524 F.2d 753, 755 (9th Cir. 1975) (holding the same where the court had 24 only granted leave to amend in accordance with a proposed amendment). 25 2 Plaintiff was not required, separately from the leave to amend his complaint, to seek leave 26 to add a new party to the litigation. Wells Fargo misrepresents this as a requirement by citing a case in which the court had previously prohibited the plaintiff from adding parties in their amended 27 complaint. See Steshenko v. Gayrard, 70 F.Supp.3d 979, 985 n. 1 (N.D. Cal. Sept. 29, 2014) 28 (disallowing addition of new defendants where, “[i]n the Court's previous order” to grant a motion to dismiss with leave to amend, “Plaintiff was cautioned [he] may not add new parties . . . .”). 1 the proper vehicle to “attempt to dismiss certain claims,” as a Rule 12(b)(6) motion “already serves 2 such a purpose.” Rosen v. Masterpiece Mktg. Grp., LLC, 222 F. Supp. 3d 793, 797 (C.D. Cal. 3 2016); Whittlestone, 618 F.3d at 974. 4 Therefore, Wells Fargo’s motion to strike is DENIED. 5 C. MOTIONS TO DISMISS 6 As previously noted by the Court, plaintiff must “plausibly plead how [a defendant] is 7 responsible for the conduct of the . . . trucking company in his complaint to hold [a defendant] 8 liable.” (Dkt. No. 26 at 3.) Plaintiff’s FAC fails to link any facts related to Starbucks or Wells 9 Fargo with the claims brought against them. For this reason, all of plaintiff’s claims are DISMISSED 10 WITH PREJUDICE. The Court expands below. 11 Counts I-IV: Private Nuisance, Trespass, Negligence, Premises Liability 12 The Court dismissed plaintiff’s initial claims for private nuisance, trespass, and negligence 13 because plaintiff did not “adequately plead Starbucks’ connection to the alleged conduct.” (Dkt. 14 No. 26 at 3.) The FAC rehashes these claims and adds an argument on nondelegable duty based on 15 the “premises liability doctrine.” 3 (Id. at 23, 30, 42.) Plaintiff has not alleged any act of Starbucks 16 or Wells Fargo that caused or contributed to plaintiff’s alleged injuries, which is fatal to each 17 claim.4 The counts for private nuisance, trespass, negligence, and premises liability are dismissed. 18 Count V: Fraud / Concealment 19 Plaintiff also alleges that, as a “joint venture,” Starbucks and Wells Fargo “intentionally 20 misrepresented or concealed the fact that they were making . . . daily dangerous loud deliveries at 21 night.” (Id. at 23-25, 37-38.) 22 To state a claim for fraud, plaintiff must plead (1) misrepresentation (false representation, 23 concealment, or nondisclosure); (2) knowledge of falsity, or scienter; (3) intent to defraud; (4) 24

25 3 The premises liability argument has been grouped here because, under California law, the elements of a negligence and premises liability claim are the same. Lemberg v. JPMorgan Chase 26 Bank, N.A., 2018 WL 1046886, at *2 (N.D. Cal. Feb. 26, 2018).

27 4 While plaintiff attempts to rectify the trespass claim by alleging that “airborne particulate 28 matter” from the delivery trucks’ brakes were deposited throughout plaintiff’s residence, these allegations still concern the actions of the trucks, not Starbucks or Wells Fargo. (FAC at 8.) 1 justifiable reliance; and (5) resulting damage. Engalla v. Permanente Med. Grp., Inc., 15 Cal. 4th 2 951, 938 (1997). Claims for fraud must be stated “with particularity.” Fed. R. Civ. P. 9(b); see 3 Desaigoudar v. Meyercord, 223 F.3d 1020, 1022 (9th Cir. 2000) (fraud claims must be pleaded 4 “with a high degree of meticulousness” to meet the Rule 9(b) standard). Here, plaintiff has failed to 5 identify any acts by Starbucks or Wells Fargo that satisfy those elements, let alone meet the 6 heightened pleading requirements of Rule 9(b). This count is dismissed. 7 Count VI: Vicarious Liability 8 Under the doctrine of respondeat superior, an employer is vicariously liable for an 9 employee’s torts committed within the scope of employment. PetConnect Rescue, Inc. v. Salinas, 10 656 F.Supp.3d 1131, 1174 (S.D. Cal. 2023) (citing John Y. v. Chaparral Treatment Ctr., Inc., 101 11 Cal.App.4th 565, 574 (2002)). In discussing vicarious liability (FAC at 12), nondelegable duty (id. 12 at 42), and scope of employment (id. at 38-40), plaintiff appears to allege that defendants, as 13 employers of the delivery truckers, are vicariously liable for plaintiff’s injuries. 14 Here, plaintiff has failed to allege any facts that indicate either defendant employed the 15 delivery truck drivers. Even if plaintiff properly pleaded that each defendant employed the delivery 16 trucks, the claim does not survive because the underlying theories of liability (Counts I-V) are 17 dismissed. The count for vicarious liability is also dismissed. 18 Counts VII-XI: Class Action Claims 19 To the extent that plaintiff seeks class action status in his amended complaint, such a 20 request will be denied.5 “[A] litigant appearing in propria persona has no authority to represent 21 anyone other than himself.” Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962). Any 22 allegations pertaining to a class action are dismissed because pro se plaintiffs are not adequate class 23 representatives able to fairly represent and adequately protect the interests of a class. See Fed. R. 24 Civ. Pro. 23(4). 25 26

27 5 Plaintiff seeks to add a total of five class action claims: negligence, trespass, private 28 nuisance, public nuisance, and strict liability for especially dangerous activities. (FAC at 41-46.) 1 5. Punitive Damages 2 Plaintiffs claims for punitive damages are nothing more than conclusory allegations of 3 || “willful and reckless disregard of Plaintiff's rights and well-being.” (FAC at 47.) Further, the 4 || request does not flow from a valid claim. The Court finds that plaintiffs claims for punitive 5 || damages are unsupported by allegation of any facts. The claims for punitive damages are 6 || dismissed. 7 IV. CONCLUSION 8 For the foregoing reasons, plaintiff's motion to disqualify is DENIED; defendant Wells 9 || Fargo’s motion to strike is DENIED; defendant Starbucks’ motion to dismiss 1s GRANTED; and 10 || defendant Wells Fargo’s motion to dismiss is GRANTED. 11 As leave to amend was previously granted, the Court any further amendment would be 12 || futile. Thus, all claims (Counts I-XI) are dismissed with prejudice, which means plaintiff may not E 13 || file an amended complaint. To the extent plaintiff disagrees with this ruling, the option to appeal 14 || remains. 8 15 This Order terminates Docket Nos. 28, 33, 35, and 36. 3 16 The Clerk of the Court shall close the action. 17 IT Is SO ORDERED. Eis Date: March 31, 2026 pe in he YVONNE GONZALEZROGERS 20 UNITED STATES DISTRICT COURT JUDGE 21 22 23 24 25 26 27 28