1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 YESENIA DEL TORO, ) Case No. CV 21-1216-JAK (JPR) 11 ) Plaintiff, ) ORDER ACCEPTING FINDINGS AND 12 ) RECOMMENDATIONS OF U.S. v. ) MAGISTRATE JUDGE 13 ) 360 PARTNERSHIP LP et al., ) 14 ) Defendants. ) 15 ) 16 The Court has reviewed the Complaint, records on file, and 17 Report and Recommendation of U.S. Magistrate Judge. See 28 18 U.S.C. § 636. On October 13, 2021, Plaintiff filed objections to 19 the R. & R.,1 and Defendants 360 Partnership, Hairapetian 20 Properties, Victor Hairapetian, and Albert Hairapetian responded 21 on October 15; Defendants First American Title Insurance and 22 First American Trustee Servicing Solutions responded on October 23 27. None of Plaintiff’s objections undermines the reasoning of 24 the R. & R. 25 Plaintiff first argues that her federal claims are not time 26 barred, as the Magistrate Judge concluded (see R. & R. at 15), 27 1 On the same day, Plaintiff also filed a “List of 28 Objections,” a notice of objections, and a jury-trial demand. 1 1 because she was not “actually aware of the actual injury until 2 she actually started working on the composition of the complaint 3 prior to six months of actually filing it,” or in approximately 4 August 2020. (Objs. at 1;2 see id. at 6.) She concedes that she 5 failed to plead how she became aware of the injuries in the 6 Complaint, but she argues that she should be “allow[ed] . . . at 7 least one amendment.” (Id. at 6.) 8 Pro se litigants should be granted leave to amend unless it 9 is absolutely clear that the deficiencies cannot be cured by 10 amendment. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 11 2000) (en banc). Indeed, a pro se litigant may be denied leave 12 to amend when it would be “futile.” Id. at 1128 (citation 13 omitted). Amendment is futile “only if no set of facts can be 14 proved under the amendment to the pleadings that would constitute 15 a valid and sufficient claim or defense.” Barahona v. Union Pac. 16 R.R., 881 F.3d 1122, 1134 (9th Cir. 2018) (citation omitted). 17 Amendment is futile when a claim is clearly time barred. See 18 Deutsch v. Turner Corp., 324 F.3d 692, 718 n.20 (9th Cir. 2003) 19 (as amended) (affirming dismissal with prejudice and denying 20 leave to amend as futile because new claim in proposed amended 21 complaint was time barred); Hinton v. Pac. Enters., 5 F.3d 391, 22 397 (9th Cir. 1993) (affirming denial of leave to amend when 23 proposed amendments would not have cured statute-of-limitations 24 defects); Faulkner v. ADT Sec. Servs., Inc., 624 F. App’x 544, 25 544 (9th Cir. 2015) (finding that district court did not abuse 26 27 2 Because Plaintiff’s objections are not consecutively paginated, the Court uses the pagination generated by its Case 28 Management/Electronic Case Filing system. 2 1 discretion in denying leave to amend as futile because proposed 2 amended claim was barred by statute of limitations). 3 Amendment would be futile here. First, it is unclear why 4 Plaintiff would have been drafting the Complaint if she had not 5 yet discovered her injury. Second, her argument contradicts the 6 allegations in her oppositions to the motions to dismiss, in 7 which she repeatedly said that she discovered the alleged fraud 8 undergirding her claims in “late 2018 or early 2019.” (See R. & 9 R. at 14 (quoting Pl.’s Opp’n to 360’s Mot. Dismiss at 11, Pl.’s 10 Opp’n to First Am.’s Mot. Dismiss at 13).) Third and most 11 importantly, when she “actually” became aware of her injury is 12 not the relevant inquiry. A claim accrues when the plaintiff 13 “knows or has reason to know” of the injury, as the Magistrate 14 Judge noted. (See id. at 13 (citing Lukovsky v. City & Cnty. of 15 S.F., 535 F.3d 1044, 1048 (9th Cir. 2008)).) As the Magistrate 16 Judge explained, here, that clearly was in 2014 at the latest. 17 (See id. at 14-15.) 18 Finally, Plaintiff has not offered any facts, much less 19 sufficient ones, demonstrating that she could allege her claims 20 were timely. As the Magistrate Judge noted, she has not alleged 21 that she was actually unaware of the 2014 foreclosure, apparently 22 filed several bankruptcy cases in 2012 and 2013 in an effort to 23 postpone the foreclosure proceedings, and was served with an 24 order in one of the bankruptcy cases that lifted the stay 25 prohibiting enforcement of the sale of her property based in part 26 on a declaration filed by Defendant Victor Hairapetian alleging 27 that the bankruptcy was “part of a scheme to delay, hinder, and 28 defraud creditors.” (See id. at 14-15; 360’s Mot. Dismiss, 3 1 Attach. Req. Judicial Notice, Ex. 1 at 6, Ex. 12 at 2-3, & Ex. 13 2 at 1 (proof of service).) And the recording of the deed upon 3 sale would have triggered her knowledge of the allegedly 4 fraudulent sale, see Cal. ex rel. State Land Comm’n v. Yuba 5 Goldfields, Inc., 752 F.2d 393, 397 (9th Cir. 1985) (finding that 6 recording of quitclaim deeds triggered running of statute of 7 limitations); Suri v. Bank of Am. Corp., NA, No. CV 11-5124-JFW 8 (AJWx), 2011 WL 13220740, at *2 (C.D. Cal. Sept. 20, 2011) 9 (finding that recording of deed of trust on foreclosure sale 10 triggered limitation statute, particularly because plaintiff 11 clearly knew of pending foreclosure, and granting Defendants’ 12 motion to dismiss with prejudice in part because in opposing 13 motion Plaintiff “fail[ed] to allege any specific facts” to 14 justify tolling), which Plaintiff acknowledged in the Complaint 15 happened on June 25, 2014 (see Compl. at 8). 16 For these reasons, the Magistrate Judge correctly concluded 17 that Plaintiff’s claims should be dismissed with prejudice and 18 without leave to amend because she can allege no facts showing 19 that they were timely. 20 Plaintiff agrees that the unserved Defendants should be 21 dismissed but asserts that they should be dismissed without 22 prejudice “since the case is not actually time[]barred.” (Objs. 23 at 6.) Because it is, however, the federal claims against the 24 unserved Defendants are dismissed with prejudice. Similarly, 25 Plaintiff argues that the Court should not decline to exercise 26 jurisdiction over the state-law claims because the federal claims 27 “are not necessarily time-barred.” (Id. at 8.) But they are. 28 Plaintiff objects to the denial of her motions to strike the 4 1 motions to dismiss for failure to properly meet and confer. (Id. 2 at 9.) She acknowledges that she “may have had some limited 3 conversations with counsel for the [D]efendants,” but she claims 4 that she “has never met any of the counsel or met via telephone.” 5 (Id.) Although she contends that she would be “prejudiced by the 6 . . . allowing of exceptions to the meet and confer requirement,” 7 she does not say how. (Id.) As the Magistrate Judge observed, 8 she was able to file thorough responses to the motions to 9 dismiss, and the parties’ respective positions are clear. (See 10 R. & R. at 11.) Therefore, striking Defendants’ motions based on 11 an untimely meet and confer is not warranted.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 YESENIA DEL TORO, ) Case No. CV 21-1216-JAK (JPR) 11 ) Plaintiff, ) ORDER ACCEPTING FINDINGS AND 12 ) RECOMMENDATIONS OF U.S. v. ) MAGISTRATE JUDGE 13 ) 360 PARTNERSHIP LP et al., ) 14 ) Defendants. ) 15 ) 16 The Court has reviewed the Complaint, records on file, and 17 Report and Recommendation of U.S. Magistrate Judge. See 28 18 U.S.C. § 636. On October 13, 2021, Plaintiff filed objections to 19 the R. & R.,1 and Defendants 360 Partnership, Hairapetian 20 Properties, Victor Hairapetian, and Albert Hairapetian responded 21 on October 15; Defendants First American Title Insurance and 22 First American Trustee Servicing Solutions responded on October 23 27. None of Plaintiff’s objections undermines the reasoning of 24 the R. & R. 25 Plaintiff first argues that her federal claims are not time 26 barred, as the Magistrate Judge concluded (see R. & R. at 15), 27 1 On the same day, Plaintiff also filed a “List of 28 Objections,” a notice of objections, and a jury-trial demand. 1 1 because she was not “actually aware of the actual injury until 2 she actually started working on the composition of the complaint 3 prior to six months of actually filing it,” or in approximately 4 August 2020. (Objs. at 1;2 see id. at 6.) She concedes that she 5 failed to plead how she became aware of the injuries in the 6 Complaint, but she argues that she should be “allow[ed] . . . at 7 least one amendment.” (Id. at 6.) 8 Pro se litigants should be granted leave to amend unless it 9 is absolutely clear that the deficiencies cannot be cured by 10 amendment. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 11 2000) (en banc). Indeed, a pro se litigant may be denied leave 12 to amend when it would be “futile.” Id. at 1128 (citation 13 omitted). Amendment is futile “only if no set of facts can be 14 proved under the amendment to the pleadings that would constitute 15 a valid and sufficient claim or defense.” Barahona v. Union Pac. 16 R.R., 881 F.3d 1122, 1134 (9th Cir. 2018) (citation omitted). 17 Amendment is futile when a claim is clearly time barred. See 18 Deutsch v. Turner Corp., 324 F.3d 692, 718 n.20 (9th Cir. 2003) 19 (as amended) (affirming dismissal with prejudice and denying 20 leave to amend as futile because new claim in proposed amended 21 complaint was time barred); Hinton v. Pac. Enters., 5 F.3d 391, 22 397 (9th Cir. 1993) (affirming denial of leave to amend when 23 proposed amendments would not have cured statute-of-limitations 24 defects); Faulkner v. ADT Sec. Servs., Inc., 624 F. App’x 544, 25 544 (9th Cir. 2015) (finding that district court did not abuse 26 27 2 Because Plaintiff’s objections are not consecutively paginated, the Court uses the pagination generated by its Case 28 Management/Electronic Case Filing system. 2 1 discretion in denying leave to amend as futile because proposed 2 amended claim was barred by statute of limitations). 3 Amendment would be futile here. First, it is unclear why 4 Plaintiff would have been drafting the Complaint if she had not 5 yet discovered her injury. Second, her argument contradicts the 6 allegations in her oppositions to the motions to dismiss, in 7 which she repeatedly said that she discovered the alleged fraud 8 undergirding her claims in “late 2018 or early 2019.” (See R. & 9 R. at 14 (quoting Pl.’s Opp’n to 360’s Mot. Dismiss at 11, Pl.’s 10 Opp’n to First Am.’s Mot. Dismiss at 13).) Third and most 11 importantly, when she “actually” became aware of her injury is 12 not the relevant inquiry. A claim accrues when the plaintiff 13 “knows or has reason to know” of the injury, as the Magistrate 14 Judge noted. (See id. at 13 (citing Lukovsky v. City & Cnty. of 15 S.F., 535 F.3d 1044, 1048 (9th Cir. 2008)).) As the Magistrate 16 Judge explained, here, that clearly was in 2014 at the latest. 17 (See id. at 14-15.) 18 Finally, Plaintiff has not offered any facts, much less 19 sufficient ones, demonstrating that she could allege her claims 20 were timely. As the Magistrate Judge noted, she has not alleged 21 that she was actually unaware of the 2014 foreclosure, apparently 22 filed several bankruptcy cases in 2012 and 2013 in an effort to 23 postpone the foreclosure proceedings, and was served with an 24 order in one of the bankruptcy cases that lifted the stay 25 prohibiting enforcement of the sale of her property based in part 26 on a declaration filed by Defendant Victor Hairapetian alleging 27 that the bankruptcy was “part of a scheme to delay, hinder, and 28 defraud creditors.” (See id. at 14-15; 360’s Mot. Dismiss, 3 1 Attach. Req. Judicial Notice, Ex. 1 at 6, Ex. 12 at 2-3, & Ex. 13 2 at 1 (proof of service).) And the recording of the deed upon 3 sale would have triggered her knowledge of the allegedly 4 fraudulent sale, see Cal. ex rel. State Land Comm’n v. Yuba 5 Goldfields, Inc., 752 F.2d 393, 397 (9th Cir. 1985) (finding that 6 recording of quitclaim deeds triggered running of statute of 7 limitations); Suri v. Bank of Am. Corp., NA, No. CV 11-5124-JFW 8 (AJWx), 2011 WL 13220740, at *2 (C.D. Cal. Sept. 20, 2011) 9 (finding that recording of deed of trust on foreclosure sale 10 triggered limitation statute, particularly because plaintiff 11 clearly knew of pending foreclosure, and granting Defendants’ 12 motion to dismiss with prejudice in part because in opposing 13 motion Plaintiff “fail[ed] to allege any specific facts” to 14 justify tolling), which Plaintiff acknowledged in the Complaint 15 happened on June 25, 2014 (see Compl. at 8). 16 For these reasons, the Magistrate Judge correctly concluded 17 that Plaintiff’s claims should be dismissed with prejudice and 18 without leave to amend because she can allege no facts showing 19 that they were timely. 20 Plaintiff agrees that the unserved Defendants should be 21 dismissed but asserts that they should be dismissed without 22 prejudice “since the case is not actually time[]barred.” (Objs. 23 at 6.) Because it is, however, the federal claims against the 24 unserved Defendants are dismissed with prejudice. Similarly, 25 Plaintiff argues that the Court should not decline to exercise 26 jurisdiction over the state-law claims because the federal claims 27 “are not necessarily time-barred.” (Id. at 8.) But they are. 28 Plaintiff objects to the denial of her motions to strike the 4 1 motions to dismiss for failure to properly meet and confer. (Id. 2 at 9.) She acknowledges that she “may have had some limited 3 conversations with counsel for the [D]efendants,” but she claims 4 that she “has never met any of the counsel or met via telephone.” 5 (Id.) Although she contends that she would be “prejudiced by the 6 . . . allowing of exceptions to the meet and confer requirement,” 7 she does not say how. (Id.) As the Magistrate Judge observed, 8 she was able to file thorough responses to the motions to 9 dismiss, and the parties’ respective positions are clear. (See 10 R. & R. at 11.) Therefore, striking Defendants’ motions based on 11 an untimely meet and confer is not warranted. 12 Although Plaintiff does not actually object to the 13 Magistrate Judge’s recommendation that the Court grant 14 Defendants’ requests for judicial notice — and has never done so, 15 ignoring the requests in her original briefing — she states that 16 the taking of judicial notice of the documents “do[es] not 17 necessarily prove when [P]laintiff actually became aware of the 18 injury in the lawsuit.” (List Objs. at 2.) She then repeats her 19 arguments that the “federal causes of action are not time-barred 20 and this court should exercise jurisdiction of the state law 21 causes of action.” (Id.) For the reasons the Magistrate Judge 22 noted, however, the documents are properly subject to judicial 23 notice (see R. & R. at 11-12) and demonstrate that Plaintiff 24 should have been aware of her injury in 2014. 25 Having reviewed de novo those portions of the R. & R. to 26 which Plaintiff objected, the Court accepts the findings and 27 recommendations of the Magistrate Judge. It therefore is ORDERED 28 that: 5 1 1. Plaintiff’s request for entry of default and motions to strike are DENIED; 3 2. Defendants’ regquests for judicial notice are GRANTED; 4 3. Defendants’ motions to dismiss Plaintiff’s federal 5 || claims are GRANTED and the claims are dismissed with prejudice 6 | and without leave to amend; 7 4. Plaintiff’s federal claims against the unserved 8 || Defendants are dismissed with prejudice; and 9 5. Plaintiff’s state-law claims are dismissed without 10 |} prejudice. 11 IT IS SO ORDERED 12 C] Ww. 13 | DATED: November 1, 2021 JOHN A. KRONSTADT 14 U.S. DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28