Shuang Ying Nancy Zhang v. A-Z Realty and Investment Corp.

• Court: District Court, C.D. California
• Decided: December 21, 2020
• Docket: 5:19-cv-00887
• Status: Unknown

Opinion

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7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11

12 SHUANG YING NANCY ZHANG, Case No. EDCV 19-887-KK 13 Plaintiff, 14 15 v. ORDER DENYING DEFENDANTS A-Z REALTY & INVESTMENT 16 A-Z REALTY & INVESTMENT CORP., DONGYAN (ANNIE) ZHENG, AND JENNIFER WHELAN’S CORP., et al., 17 RENEWED MOTION TO DISMISS Defendants. 18

20 I. 21 INTRODUCTION 22 Plaintiff Shuang Ying (Nancy) Zhang (“Plaintiff”) filed a Complaint alleging 23 one federal claim for a violation of the Racketeer Influenced and Corrupt 24 Organizations Act (“RICO”), 18 U.S.C. §§ 1961–1968, and ten state law claims. ECF 25 Docket No. (“Dkt.”) 1. Plaintiff sues defendants A-Z Realty & Investment Corp. 26 (“A-Z Realty”); Dongyan (Annie) Zheng; Jennifer Whelan; Realty One Group, Inc. 27 (“Realty One”); Jihui (Lucky) Luo; Shi Dan Chen; Ming-Wing Lam; Fu Long Zheng; 1 and DOES 1 through 30. Id. at 3–5. Defendants A-Z Realty, Dongyan (Annie) 2 Zheng, and Whelan (“Moving Defendants”) filed a Renewed Motion to Dismiss, 3 arguing Plaintiff failed to adequately plead a RICO claim and the remaining causes of 4 action should be dismissed for lack of subject matter jurisdiction. Dkt. 91. The 5 parties have consented to the jurisdiction of the undersigned United States Magistrate 6 Judge, pursuant to 28 U.S.C. § 636(c). Dkts. 49, 59, 63. For the reasons set forth 7 below, Moving Defendants’ Renewed Motion to Dismiss is DENIED. 8 II. 9 PROCEDURAL HISTORY 10 On May 10, 2019, Plaintiff filed a Complaint against defendants A-Z Realty, 11 Dongyan (Annie) Zheng, Whelan, Realty One, Luo, Chen, Lam, Fu Long Zheng, and 12 DOES 1 through 30 alleging one federal claim for a RICO violation and ten state law 13 claims. Dkt. 1. Plaintiff alleges she owns a single-family residential home in Lake 14 Elsinore, California. Id. at 1. Plaintiff’s claims arise out of an allegedly fraudulent 15 lease application and a “sophisticated criminal marijuana farming operation” involving 16 defendants that occurred on Plaintiff’s property. Id. at 2. 17 On July 10, 2019, defendants Realty One and Luo filed a Motion to Dismiss 18 the Complaint. Dkt. 12. On July 18, 2019, Moving Defendants also filed a Motion to 19 Dismiss (“First Motion to Dismiss”) arguing Plaintiff failed to adequately plead a 20 RICO claim and the remaining causes of action should be dismissed for lack of 21 subject matter jurisdiction. Dkt. 19. On August 5, 2019, Plaintiff filed a Joint 22 Opposition to both Motions to Dismiss. Dkt. 23. On August 12, 2019, Moving 23 Defendants and defendants Realty One and Luo filed separate Replies. Dkts. 26, 27. 24 On September 3, 2019, Judge Virginia A. Phillips denied both Motions to 25 Dismiss, dkts. 12, 19, and found Plaintiff adequately pled her RICO claim. Dkt. 29. 26 On April 7, 2020, pursuant to the parties’ voluntary consent, the case was 27 transferred to the undersigned Magistrate Judge to conduct all further proceedings in 1 On November 12, 2020, Moving Defendants filed a Renewed Motion to 2 Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim Upon 3 Which Relief May Be Granted (“Renewed Motion to Dismiss”). Dkt. 91. Moving 4 Defendants, once again, argue Plaintiff failed to adequately plead a RICO claim. Id. 5 On November 19, 2020, Plaintiff filed an Opposition to the Renewed Motion to 6 Dismiss. Dkt. 92. On November 30, 2020, Moving Defendants filed a Reply. Dkt. 7 95. The matter thus stands submitted. 8 III. 9 MOVING DEFENDANTS’ RENEWED MOTION TO DISMISS IS 10 DENIED FOR FAILURE TO COMPLY WITH LOCAL CIVIL RULE 7-17 11 A. Applicable Law 12 Central District of California Local Civil Rule 7-17 provides: 13 If any motion, application or petition has been made to any judge of this 14 Court and has been denied in whole or in part . . . any subsequent 15 motion for the same relief in whole or in part, whether upon the same or 16 any allegedly different state of facts, shall be presented to the same judge 17 whenever possible. If presented to a different judge, it shall be the duty 18 of the moving party to file and serve a declaration setting forth the 19 material facts and circumstances as to each prior motion, including the 20 date and judge involved in the prior motion, the ruling, decision, or 21 order made, and the new or different facts or circumstances claimed to 22 warrant relief and why such facts or circumstances were not shown to 23 the judge who ruled on the motion. 24 L.R. 7-17, Resubmission of Motions Previously Acted Upon. 25 “Any failure to comply with the foregoing requirements shall be the 26 basis for setting aside any order made on such subsequent motion, either sua 27 sponte or on motion or application, and the offending party or attorney may be 1 failure to conform to” Local Civil Rule 7-17 “may subject the offending party 2 or counsel to:” 3 (a) monetary sanctions, if the Court finds that the conduct was willful, 4 grossly negligent, or reckless; 5 (b) the imposition of costs and attorneys’ fees to opposing counsel, if the 6 Court finds that the conduct rises to the level of bad faith and/or a 7 willful disobedience of a court order; and/or 8 (c) for any of the conduct specified in (a) and (b) above, such other 9 sanctions as the Court may deem appropriate under the circumstances. 10 L.R. 83-7, Sanctions – Violation of Rule. 11 B. Analysis 12 Here, Moving Defendants have failed to comply with the Local Civil Rules. 13 Moving Defendants filed their First Motion to Dismiss on July 18, 2019, arguing 14 Plaintiff failed to adequately plead a RICO claim. Dkt. 19. On September 3, 2019, 15 Judge Phillips denied Moving Defendants’ Motion to Dismiss, finding Plaintiff had 16 adequately plead a RICO claim. Dkt. 29. On November 12, 2020, Moving 17 Defendants filed a Renewed Motion to Dismiss, once again, arguing Plaintiff failed to 18 adequately plead a RICO claim. Dkt. 91. 19 As Judge Phillips has already ruled on the issues presented in the Renewed 20 Motion to Dismiss, it was incumbent on Moving Defendants to submit their Renewed 21 Motion to Dismiss in compliance with Local Civil Rule 7-17. In complete disregard 22 of Local Civil Rule 7-17, Moving Defendants failed to “serve a declaration setting 23 forth the material facts and circumstances as to each prior motion[.]” L.R. 7-17. 24 Moving Defendants label their motion as a “Renewed Motion to Dismiss” but fail to 25 mention they previously filed a Motion to Dismiss and Judge Phillips denied their 26 earlier motion. See dkt. 91. This attempt to take a second bite of the apple with a 27 different judicial officer is not well-taken. Moving Defendants’ Renewed Motion to 1 different facts or circumstances claimed to warrant relief and why such facts or 2 circumstances were not shown to the judge who ruled on the motion.” L.R. 7-17. 3 In response to Plaintiff’s Opposition, which correctly notes Moving 4 Defendants’ failure to comply with the Local Civil Rules, dkt. 92 at 13–15, Moving 5 Defendants seek to remedy the deficiencies in their Renewed Motion to Dismiss by 6 including a declaration of counsel and seeking to assert new arguments and facts in 7 their Reply, dkt. 95. The Court is unimpressed with these belated efforts. “It is 8 improper for the moving party to ‘shift gears’ and introduce new facts or different 9 legal arguments in the reply brief than [those that were] presented in the moving 10 papers.” VIRGINIA A. PHILLIPS, J. & KAREN L. STEVENSON, J., RUTTER GROUP PRAC. 11 GUIDE FED. CIV. PRO. BEFORE TRIAL § 12:107 (Calif. & 9th Cir. eds. 2020) (citing 12 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 894–95 (1990)). The Court, therefore, 13 declines to consider facts or arguments presented for the first time in Moving 14 Defendants’ Reply. See Burke v. City of Santa Monica, No. CV 09-02259-MMM 15 (PLAx), 2010 WL 11549357, at *1 (C.D. Cal. Nov. 2, 2010); Stump v. Gates, 211 F.3d 16 527, 533 (10th Cir. 2000) (“This court does not ordinarily review issues raised for the 17 first time in a reply brief . . . The reasons are obvious. It robs the appellee of the 18 opportunity to demonstrate that the record does not support an appellant’s factual 19 assertions and to present an analysis of the pertinent legal precedent that may compel 20 a contrary result.”). 21 Finally, even considering the merits of the Renewed Motion to Dismiss, the 22 Court finds Moving Defendants’ arguments to be unconvincing for the reasons set 23 forth by Judge Phillips. Dkt. 29. 24 /// 25 /// 26 /// 27 /// 1 IV. 2 ORDER 3 IT IS THEREFORE ORDERED Moving Defendants’ Renewed Motion to 4 Dismiss is DENIED. The parties are advised that future violations of the Local Civil 5 Rules will result in sanctions. 6

7 Dated: December 21, 2020

8 HONORABLE KENLY KIYA KATO United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27