Kohler v. Greystar Real Estate Partners, Llc

MOTION to Dismiss for Failure to State a Claim

S.D. Cal.June 13, 2017

_________________________________________________________________________________ Case No.: 15-cv-2195 JAH (KSC) THE LOFTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R. Civ. P. 12(b)(6)] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Steven D. Atlee (State Bar No. 151025) PARK & VELAYOS LLP 801 S. Figueroa St., Suite 450 Los Angeles, CA 90017 Telephone: (213) 570-8013 Fax: (213) 570-8010 E-mail: satlee@parkvelayos.com Attorneys for Defendant, The Lofts Apartments Acquisition, LLC UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA JORDAN KOHLER, individually and on behalf of all others similarly situated, Plaintiff, vs. GREYSTAR REAL ESTATE PARTNERS, LLC; THE LOFTS APARTMENTS ACQUISITION, LLC, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 15-cv-2195 JAH (KSC) CLASS ACTION DEFENDANT THE LOFTS APARTMENTS ACQUISITION, LLC’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R. Civ. P. 12(b)(6)] Assigned to: Hon. John A. Houston Date: July 24, 2017 Time: 2:30 p.m. Ctrm: 13B Complaint Filed: October 1, 2015 ) ) Case 3:15-cv-02195-JAH-KSC Document 27 Filed 06/13/17 PageID.285 Page 1 of 3 _________________________________________________________________________________ Case No.: 15-cv-2195 JAH (KSC) THE LOFTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R. Civ. P. 12(b)(6)] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on July 24, 2017, at 2:30 p.m., or as soon thereafter as this matter may be heard before the Honorable John A. Houston, in Courtroom 13B of the above-entitled Court, located at 333 W. Broadway, San Diego, California, 92101, Defendant The Lofts Apartments Acquisition, LLC (“The Lofts”) will and hereby does move the Court pursuant to Federal Rule of Civil Procedure 12(b)(6) for an order dismissing the First Amended Complaint (“FAC”) of Plaintiff Jordan Kohler (“Plaintiff”). The grounds for this Motion are that Plaintiff’s FAC fails to state a claim upon which relief may be granted. This Motion is based upon this Notice of Motion and Motion, The Lofts’ Memorandum of Points and Authorities in support thereof, and all of the pleadings, records, and papers on file herein, as well as such other oral argument as may be presented at the hearing on this Motion. DATED: June 13, 2017 PARK & VELAYOS LLP Steven D. Atlee By: /s/ Steven D. Atlee Steven D. Atlee Attorneys for Defendant, The Lofts Apartments Acquisition, LLC Case 3:15-cv-02195-JAH-KSC Document 27 Filed 06/13/17 PageID.286 Page 2 of 3 _________________________________________________________________________________ Case No.: 15-cv-2195 JAH (KSC) THE LOFTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R. Civ. P. 12(b)(6)] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served on June 13, 2017 to all counsel of record who are deemed to have consented to electronic service via the Court’s CM/ECF system per Civil Local Rule 5.4. Any other counsel of record will be served by electronic mail, facsimile and/or overnight delivery. By: /s/ Steven D. Atlee Steven D. Atlee Case 3:15-cv-02195-JAH-KSC Document 27 Filed 06/13/17 PageID.287 Page 3 of 3 _________________________________________________________________________________________________ 1 Case No. : 15-cv-2195 JAH (KSC) MEMORANDUM IN SUPPORT OF THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R.Civ. P.12(b)(6) and (7) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Steven D. Atlee (State Bar No. 151025) PARK & VELAYOS LLP 801 S. Figueroa St., Suite 450 Los Angeles, CA 90017 Telephone: (213) 570-8013 Fax: (213) 570-8010 E-mail: satlee@parkvelayos.com Attorneys for Defendant, The Lofts Apartments Acquisition, LLC UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA JORDAN KOHLER, individually and on behalf of all others similarly situated, Plaintiff, vs. GREYSTAR REAL ESTATE PARTNERS, LLC; THE LOFTS APARTMENTS ACQUISITION, LLC, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 15-cv-2195 JAH (KSC) CLASS ACTION MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT THE LOFTS APARTMENTS ACQUISITION, LLC’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R. Civ. P. 12(b)(6) and (7)] Assigned to: Hon. John A. Houston Date: July 24, 2017 Time: 2:30 p.m. Ctrm: 13B Complaint Filed: October 1, 2015 ) ) Case 3:15-cv-02195-JAH-KSC Document 27-1 Filed 06/13/17 PageID.288 Page 1 of 18 _________________________________________________________________________________________________ i Case No. : 15-cv-2195 JAH (KSC) MEMORANDUM IN SUPPORT OF THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R.Civ. P.12(b)(6) and (7) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. INTRODUCTION ....................................................................................... 1 II. FACTUAL BACKGROUND ..................................................................... 2 III. PROCEDURAL HISTORY ........................................................................ 3 IV. ARGUMENT .............................................................................................. 4 A. Legal Standards for Motion to Dismiss ............................................... 4 a. Failure to State a Claim Under Rule 12(b)(6) ............................. 4 b. Failure to Join a Necessary Party Under Rule 12(b)(7)............... 5 B. The Court Should Dismiss the FAC Because Plaintiff Still Fails to Join Necessary Parties ............................................................ 5 C. The UCL Claim Fails As A Matter of Law ......................................... 6 a. The Late Fees Are Not Unlawful ................................................. 6 b. The Late Fees Are Not Unfair ..................................................... 8 c. The Late Fees Are Not Fraudulent .............................................. 9 D. The Rosenthal Act Claim Fails As A Matter of Law Because The Lofts Is Not A Debt Collector .................................................... 10 V. CONCLUSION ......................................................................................... 13 Case 3:15-cv-02195-JAH-KSC Document 27-1 Filed 06/13/17 PageID.289 Page 2 of 18 _________________________________________________________________________________________________ ii Case No. : 15-cv-2195 JAH (KSC) MEMORANDUM IN SUPPORT OF THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R.Civ. P.12(b)(6) and (7) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES PAGE Cases Bell Atlantic Corp. v. Twombly 550 U.S. 544 (2007) .................................................................................................. 4 Branch v. Tunnell 14 F.3d 449 (9th Cir. 1994) ...................................................................................... 4 Camacho v. Major League Baseball 297 F.R.D. 457 (S.D. Cal. 2013) .......................................................................... 5, 6 Dawavendewa v. Salt River Project Agric. Improvement & Power Dist. 276 F.3d 1150 (9th Cir. 2002) .................................................................................. 5 Galbraith v. County of Santa Clara 307 F.3d 1119 (9th Cir. 2002) .................................................................................. 4 Gonzalez v. Planned Parenthood of Los Angeles 759 F.3d 1112 (9th Cir. 2014) ............................................................................ 4, 12 Ileto v. Glock, Inc. 349 F.3d 1191 (9th Cir. 2003) ............................................................................ 4, 10 Izenberg v. ETS Servs., LLC 589 F. Supp. 2d 1193 (C.D. Cal. 2008) .................................................................. 13 Kearns v. Ford Motor Co. 567 F.3d 1120 (9th Cir. 2009) .................................................................................. 9 Leasure v. Willmark Communities, Inc. No. 11-CV-00443 BEN DHB, 2013 WL 6097944, at *4 (S.D. Cal. Mar. 14, 2013) .................................................................................. 10, 11 Makah Indian Tribe v. Verity 910 F.2d 555 (9th Cir. 1990) .................................................................................... 5 Navarro v. Block 250 F.3d 729 (9th Cir. 2001) .................................................................................... 4 Nool v. HomeQ Serv. 653 F. Supp. 2d 1047 (E.D. Cal. 2009) .................................................................. 12 Orozco v. Casimiro 121 Cal. App. 4th Supp. 7 (Cal. App. Dep't Super. Ct. 2004) .......................... 6, 7, 8 Perry v. Stewart Title Co. 756 F.2d 1197 (5th Cir.1985)) ................................................................................ 12 Case 3:15-cv-02195-JAH-KSC Document 27-1 Filed 06/13/17 PageID.290 Page 3 of 18 _________________________________________________________________________________________________ iii Case No. : 15-cv-2195 JAH (KSC) MEMORANDUM IN SUPPORT OF THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R.Civ. P.12(b)(6) and (7) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reddy v. Litton Indus. 912 F.2d 291 (9th Cir.1990) ..................................................................................... 4 Riggs v. Prober & Raphael 681 F.3d 1097 (9th Cir. 2012) ................................................................................ 11 Robertson v. Dean Witter Reynolds, Inc. 749 F.2d 530 (9th Cir. 1984) .................................................................................... 4 Salt River Project Agric. Improvement & Power Dist. v. Lee 672 F.3d 1176 (9th Cir. 2012) .................................................................................. 5 Sanai v. U.D. Registry, Inc. No. B170618, 2005 WL 361327, at *16 (Cal.App.2d Dist. Feb. 16, 2005) ........... 11 Thompson v. Davis 295 F.3d 890 (9th Cir. 2002) .................................................................................... 4 Statutes Rosenthal Fair Debt Collection Practices Act ............................................... 10, 11, 13 Cal. Civ. Code § 1788 ................................................................................................ 10 Cal. Civ. Code §§ 1788.2(c), 1788.2(f) ..................................................................... 11 Cal. Civ. Code § 1788.2(e) ........................................................................................ 11 Cal. Civ. Code § 1788.2(f) ......................................................................................... 11 Cal. Civ. Code § 1788.17 ........................................................................................... 11 Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. .................................. 11 Federal Rule of Civil Procedure Rule 12(b)(6) ........................................................... 4 Federal Rule of Civil Procedure 12(b)(7) .................................................................... 5 Federal Rule of Civil Procedure 19(a)(1)(B)(i) ........................................................... 5 Other Authorities 1Witkin, Summary 10th Contracts § 869 (2005) ........................................................ 7 LANDLORD, Black's Law Dictionary (10th ed. 2014) ............................................ 12 Case 3:15-cv-02195-JAH-KSC Document 27-1 Filed 06/13/17 PageID.291 Page 4 of 18 _________________________________________________________________________________________________ 1 Case No. : 15-cv-2195 JAH (KSC) MEMORANDUM IN SUPPORT OF THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R.Civ. P.12(b)(6) and (7) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Although this case has been pending for a year and a half, Jordan Kohler (“Plaintiff”) added The Lofts Apartments Acquisition, LLC (“The Lofts”) only recently, in an apparent response to the Court’s finding that the original complaint failed to join necessary parties. But adding Plaintiff’s landlord hardly addresses the Court’s larger concern: Plaintiff’s requested relief would impact untold number of property owners who are not before the Court. Plaintiff’s First Amended Complaint (“FAC”) makes clear that he aspires to obtain restitution on behalf of “hundreds of thousands” of tenants. Unless Plaintiff brings before the Court all of the property owners from whom he seeks restitution – and he clearly has failed to do that when given the chance -- Plaintiff’s FAC still fails to join necessary parties. As a consequence, the Court should dismiss the FAC. Plaintiff’s claims also fail substantively, for all of the same reasons that the Court identified when it dismissed the original complaint. Contrary to Plaintiff’s contention, landlords can suffer damages in addition to interest when a tenant pays late, and California law allows contracting parties to agree to late fee provisions to account for such damages. Plaintiff’s amended Unfair Competition Law claim still fails to allege sufficient facts as to how or why the agreed-upon late fees are neither practicable nor extremely difficult to fix. Similarly, Plaintiff’s amended Rosenthal Act claim fails because it falls short of alleging that The Lofts, a landlord receiving rent and charges pursuant to a residential lease, is a debt collector collecting a consumer credit transaction. The Court previously gave Plaintiff leave to include necessary parties and amend his claims, but the minor revisions that appear in the FAC are not enough to save Plaintiff’s claims. Accordingly, the Court should dismiss with prejudice. Case 3:15-cv-02195-JAH-KSC Document 27-1 Filed 06/13/17 PageID.292 Page 5 of 18 _________________________________________________________________________________________________ 2 Case No. : 15-cv-2195 JAH (KSC) MEMORANDUM IN SUPPORT OF THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R.Civ. P.12(b)(6) and (7) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. FACTUAL BACKGROUND The Lofts accepts the factual allegations in the FAC as true for the limited purpose of this Motion to Dismiss. The key factual allegations are as follows:  Plaintiff leased a residential unit from The Lofts. FAC ¶ 32.  Plaintiff’s rent was due on the 3rd of each month with no grace period. ECF No. 10-4 (“Lease”), p. 1, ¶6 (Rent and Charges).  The Lease states, “If you don’t pay all rent on or before the expiration of one business day after due date, you’ll be delinquent. You will be obligated to pay us a late charge of $75.00 if you fail to pay any amount when due under the Contract.” FAC ¶ 36.  Plaintiff and The Lofts also agreed in the Lease, “You agree that it would be impracticable or extremely difficult to fix the actual damage to us and that the late charge is a reasonable estimate of the actual damages that the parties reasonably believe would occur as a result of late payment.” Lease, ECF No. 10-4, p. 1, ¶6 (Rent and Charges).  Plaintiff fell behind on his rent payments. FAC ¶ 37.  Defendants sent Plaintiff e-mails dated February 25, 2015, March 12, 2015, and April 7, 2015, relating to Plaintiff’s late payment of rent. FAC ¶¶ 38, 56-57.  On April 7, 2015, Plaintiff received notice that he owed $1,739.53 on his account, which included a $75 late fee. FAC ¶ 38.  Defendants sent Plaintiff a letter dated May 18, 2015, relating to Plaintiff’s late payment of rent. FAC ¶¶ 58.  Plaintiff’s monthly rent was $1,575, and thus the per diem rent ranged from $50.81 to $56.25. FAC ¶¶ 51-52. Case 3:15-cv-02195-JAH-KSC Document 27-1 Filed 06/13/17 PageID.293 Page 6 of 18 _________________________________________________________________________________________________ 3 Case No. : 15-cv-2195 JAH (KSC) MEMORANDUM IN SUPPORT OF THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R.Civ. P.12(b)(6) and (7) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28  Plaintiff believes there are “several tens of thousands, if not hundreds of thousands” of putative class members. FAC ¶ 73. III. PROCEDURAL HISTORY On March 31, 2017, the Court dismissed Plaintiff’s original complaint, with leave to amend:  The Court dismissed the UCL claim because Plaintiff failed to allege how the late fee in his Lease, which he agreed to in writing, was neither practicable nor extremely difficult to fix.  The Court dismissed the Rosenthal Act claim because defendant Greystar Real Estate Partners, LLC (“Greystar”) was a property management company, not engaged in the collection of consumer debt when it collected rent and late fees on behalf of the landlord.  The Court found that Plaintiff failed to join property owners as necessary parties. ECF No. 19 (March 31, 2017 Order Granting Defendant’s Motion to Dismiss (“Order”)). On May 1, 2017, Plaintiff filed his FAC, in which he added The Lofts as a defendant. ECF No. 20. Greystar filed its motion to dismiss the FAC on May 15, 2017. ECF No. 23 (“Greystar MTD”). Concurrently with filing this Motion, The Lofts joins in Greystar’s MTD and requests that the Court take judicial notice of the Lease, a copy of which is attached at ECF No. 10-4. Case 3:15-cv-02195-JAH-KSC Document 27-1 Filed 06/13/17 PageID.294 Page 7 of 18 _________________________________________________________________________________________________ 4 Case No. : 15-cv-2195 JAH (KSC) MEMORANDUM IN SUPPORT OF THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R.Civ. P.12(b)(6) and (7) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. ARGUMENT A. Legal Standards for Motion to Dismiss a. Failure to State a Claim Under Rule 12(b)(6) A motion to dismiss under Federal Rule of Civil Procedure Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The Court should dismiss a complaint under Rule 12(b)(6) where the complaint lacks a cognizable legal theory or presents a cognizable legal theory but fails to plead facts essential to that theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). A plaintiff must plead sufficient facts that would “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545, 570 (2007). Although the Court should assume the truth of factual allegations and construe all inferences in the light most favorable to the plaintiff, Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002), it need not accept legal conclusions as true, Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003), nor need it accept allegations as true when they “contradict matters properly subject to judicial notice or by exhibit.” See Gonzalez v. Planned Parenthood of Los Angeles, 759 F.3d 1112, 1115 (9th Cir. 2014) (internal quotations omitted). The Court may also consider a document incorporated by reference in the pleading, so long as the document is “central” to the plaintiff’s case and its authenticity is not disputed. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994) overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). Although courts typically allow leave to amend when granting a motion to dismiss, it can deny leave to amend where amendment would be futile. Reddy v. Litton Indus., 912 F.2d 291, 296 (9th Cir.1990), cert. denied, 502 U.S. 921, 112 S.Ct. 332, 116 L.Ed.2d 272 (1991). Case 3:15-cv-02195-JAH-KSC Document 27-1 Filed 06/13/17 PageID.295 Page 8 of 18 _________________________________________________________________________________________________ 5 Case No. : 15-cv-2195 JAH (KSC) MEMORANDUM IN SUPPORT OF THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R.Civ. P.12(b)(6) and (7) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. Failure to Join A Necessary Party Under Rule 12(b)(7) Federal Rule of Civil Procedure 12(b)(7) permits dismissal of a claim for failure to join a party under Rule 19: Rule 19 imposes a three-step inquiry: (1) Is the absent party necessary (i.e., required to be joined if feasible) under Rule 19(a)?; (2) If so, is it feasible to order that absent party to be joined?; and (3) If joinder is not feasible, can the case proceed without the absent party, or is the absent party indispensable such that the action must be dismissed? Salt River Project Agric. Improvement & Power Dist. v. Lee, 672 F.3d 1176, 1179 (9th Cir.2012). Camacho v. Major League Baseball, 297 F.R.D. 457, 460 (S.D. Cal. 2013). An absent party is necessary under Federal Rule of Civil Procedure 19(a)(1)(B)(i) if it has a “legally protected interest in the suit” which will be “impaired or impeded by the suit.” Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990)(emphasis in original). “[A] party to a contract is necessary, and if not susceptible to joinder, indispensable to litigation seeking to decimate that contract.” Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 276 F.3d 1150, 1157 (9th Cir. 2002). B. The Court Should Dismiss the FAC Because Plaintiff Still Fails To Join Necessary Parties In an apparent attempt to deal with the Court’s finding that the original complaint failed to join necessary parties, ECF No. 19 at 7:7-14, Plaintiff named a single property owner: The Lofts. Plaintiff’s thin effort hardly addresses the Court’s concern that the Plaintiff’s requested class-wide relief would impact numerous property owners who are not before the Court. Plaintiff believes that there are “several tens of thousands, if not hundreds of thousands” of persons in the Class. See FAC ¶ 73. Virtually all of those putative Class members would have contractual relationships with property owners other than Case 3:15-cv-02195-JAH-KSC Document 27-1 Filed 06/13/17 PageID.296 Page 9 of 18 _________________________________________________________________________________________________ 6 Case No. : 15-cv-2195 JAH (KSC) MEMORANDUM IN SUPPORT OF THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R.Civ. P.12(b)(6) and (7) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Lofts. Even if Plaintiff’s focus remains on the property manager, Greystar, Plaintiff’s requested relief includes obtaining restitution, which would entail ordering all of the property owners who have received late fees pursuant to their contracts with Class members to return funds to the Class. See FAC at 17:28. Unless he brings before the Court all those property owners from whom he seeks restitution, Plaintiff’s complaint should be dismissed for failure to join necessary parties. Camacho, 297 F.R.D. at 463 (dismissing complaint where plaintiff failed to name all parties to baseball player contracts he was seeking to invalidate; “If Plaintiffs want to record an earned run against the absent pitchers, Plaintiffs need to face them”). Any decision by this Court will impact many absent property owners. Once again, Plaintiff has failed to join necessary parties, and thus the Court should dismiss the FAC. C. The UCL Claim Fails As A Matter Of Law Once again, Plaintiff has failed to state a claim under the UCL. As explained below, Plaintiff’s allegations fall short of stating a claim that the late fees which he agreed to pay if he failed to pay his rent on time are unlawful, unfair and fraudulent within the meaning of the UCL. a. The Late Fees Are Not Unlawful Contrary to the Plaintiff’s contentions, landlords can suffer damages in addition to interest when a tenant pays late, and California law allows contracting parties to agree to late fee provisions to account for such damages. First, California law is clear that a tenant’s late payment can cause the landlord to suffer damages that are not limited to interest on the late rent. Orozco v. Casimiro, 121 Cal. App. 4th Supp. 7, 10–11 (Cal. App. Dep't Super. Ct. 2004) (“A landlord is not limited to interest as damages as a consequence of the late payment of money. He is also entitled to administrative costs reasonably related to collecting and accounting for late payments.”) (internal quotations omitted). This accords with basic contract law. Case 3:15-cv-02195-JAH-KSC Document 27-1 Filed 06/13/17 PageID.297 Page 10 of 18 _________________________________________________________________________________________________ 7 Case No. : 15-cv-2195 JAH (KSC) MEMORANDUM IN SUPPORT OF THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R.Civ. P.12(b)(6) and (7) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1Witkin, Summary 10th Contracts § 869 (2005) (“The basic object of damages is compensation, and in the law of contracts the theory is that the party injured by breach should receive as nearly as possible the equivalent of the benefits of performance.”). Plaintiff’s own allegations confirm that a tenant’s late payment of rent can cause the landlord to suffer damages in addition to interest. Plaintiff’s FAC admits that Defendants sent him e-mails dated February 25, 2015, March 12, 2015, and April 7, 2015, as well as a letter dated May 18, 2015, all relating to Plaintiff’s chronic late payment of rent. See FAC ¶¶ 38, 56-58. Thus, by Plaintiff’s own admission, Defendants incurred administrative costs related to collecting and accounting for Plaintiff’s late payments. These are recoverable costs under Orozco, and Defendants are not limited to recovering only the interest on Plaintiff’s late rent. Orozco also dispenses with Plaintiff’s other legal contention -- that late fees are always void as a matter of law. Plaintiff asserts that “[w]hen a provision in a residential lease requires a tenant to pay a set amount whenever rent is paid late, such a provision is void.” See FAC ¶ 55. The Orozco court analyzed this precise issue, rejected Plaintiff’s contention, and confirmed that California Civil Code § 1671 allows for liquidated damages under certain circumstances: As is apparent from the language of section 1671, a liquidated damages provision in a residential lease is normally void, except where the parties specifically agree and “when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.” (Id., subd. (d).) Once the landlord shows that it was impracticable or extremely difficult to fix actual damages, the amount the parties agreed upon is presumed to represent the amount of damage suffered by the breach. Appellant argues that, notwithstanding such language, late fee provisions in a residential lease are never valid, since the landlord is only entitled to interest on the late-paid rent as Case 3:15-cv-02195-JAH-KSC Document 27-1 Filed 06/13/17 PageID.298 Page 11 of 18 _________________________________________________________________________________________________ 8 Case No. : 15-cv-2195 JAH (KSC) MEMORANDUM IN SUPPORT OF THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R.Civ. P.12(b)(6) and (7) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 damages, which is easily ascertainable as a matter of law. Appellant's legal premise, however, is simply wrong. Orozco, 121 Cal. App. 4th Supp. at 10–11. When it dismissed Plaintiff’s original complaint, this Court found that Plaintiff’s complaint was alleged in general, conclusory terms which failed to set forth sufficient facts to state a UCL claim. See Order, ECF 19 at 5:2-24. Nothing in the FAC has improved Plaintiff’s claim. Plaintiff admits he entered into the Lease, which clearly states “If you don’t pay all rent on or before the expiration of one business day after due date, you’ll be delinquent. You will be obligated to pay us a late charge of $75.00 if you fail to pay any amount when due under the Contract.” See FAC ¶ 36. Plaintiff did not quote it in the FAC, but the Lease language immediately following states, “You agree that it would be impracticable or extremely difficult to fix the actual damage to us and that the late charge is a reasonable estimate of the actual damages that the parties reasonably believe would occur as a result of late payment.” See Lease, ECF No. 10-4, p. 1 at ¶6 (Rent and Charges). While Plaintiff now asserts legal conclusions to the contrary -- that “it would be neither impracticable nor extremely difficult to fix actual damages,” see FAC ¶ 42 -- these bare conclusions are unsupported by his factual allegations and contradicted by the language in the Lease which Plaintiff agreed to. Moreover, as described above, Plaintiff has admitted to least three e-mails and one letter that Defendants sent to him as a consequence of his late payment of rent. FAC ¶¶ 38, 56-58. Plaintiff’s FAC makes no attempt to explain how calculating the costs associated with these specific additional administrative and accounting efforts required by Plaintiff’s late payment would have been easy to fix or why it would have been practicable to do so. b. The Late Fees Are Not Unfair Plaintiff fails to state a claim that the late fees are unfair within the meaning of the UCL. Plaintiff admits he entered into the Lease which has a late fee clause and Case 3:15-cv-02195-JAH-KSC Document 27-1 Filed 06/13/17 PageID.299 Page 12 of 18 _________________________________________________________________________________________________ 9 Case No. : 15-cv-2195 JAH (KSC) MEMORANDUM IN SUPPORT OF THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R.Civ. P.12(b)(6) and (7) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that he did not pay his rent timely; there is nothing unfair with abiding by one’s agreement or paying for damages which flow from one’s breach. Plaintiff admits that in order to establish a UCL claim under the “unfair” prong, he must allege that his injury: (1) is substantial; (2) not outweighed by countervailing benefits to consumers or competition; and (3) reasonably could not have been avoided. See FAC ¶ 98. Plaintiff’s own allegations undermine any such possible showing that the late fee is unfair. For example, he admits he fell behind on his rent, FAC ¶ 37, but he does not allege any facts that, if true, would establish how he reasonably could not have avoided doing so. He also alleges that his per diem rental payment ranged from $50.81 to $56.25, that his rent was due on the 3rd of each month, and that Defendants sent him three e-mails and one letter on separate occasions, all relating to Plaintiff’s various late payments of rent. See FAC ¶¶ 38, 51-52, 56-58; ECF No. 10-4, Lease ¶6 (Rent and Charges). In light of Plaintiff’s admitted failures to pay rent on time and the resulting administrative and accounting costs imposed on Defendants on multiple occasions, a single alleged late fee of $75 which amounts to less than 2 days’ rent is neither substantial nor unfair. Finally, Plaintiff has alleged no facts to support his apparent belief that it would be fair to impose the costs occasioned by late-paying tenants (such as himself) onto all tenants as opposed to having the late-paying tenants bear the costs. Apparently, Plaintiff would rather have landlords absorb those costs and spread them across all rents, but the FAC contains no allegations that, if true, would establish why Plaintiff’s approach would be more fair than having late-paying tenants pay their own late fees. Accordingly, Plaintiff has failed to state a claim under the “unfair” prong of the UCL. c. The Late Fees Are Not Fraudulent To state a claim under the “fraudulent” prong of the UCL, Plaintiff must meet the pleading requirements of Federal Rule of Civil Procedure 9(b). Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). The FAC fails to allege, in requisite Case 3:15-cv-02195-JAH-KSC Document 27-1 Filed 06/13/17 PageID.300 Page 13 of 18 _________________________________________________________________________________________________ 10 Case No. : 15-cv-2195 JAH (KSC) MEMORANDUM IN SUPPORT OF THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R.Civ. P.12(b)(6) and (7) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 detail, the “who, what, when, where, and how” of the alleged fraudulent conduct. Kearns, 567 F.3d at 1125. Indeed, Plaintiff’s allegations admit that he was told all about the late fee, up front, when he entered into the Lease: “If you don’t pay all rent on or before the expiration of one business day after due date, you’ll be delinquent. You will be obligated to pay us a late charge of $75.00 if you fail to pay any amount when due under the Contract.” See FAC ¶ 36. Based on Plaintiff’s allegations, there can be no fraud or deception relating to enforcement of the late fee pursuant to the plain language of the Lease. Accordingly, Plaintiff has failed to state a claim for violation of the UCL under the “fraudulent” prong. D. The Rosenthal Act Claim Fails As A Matter Of Law Because The Lofts Is Not A Debt Collector Plaintiff fails to establish that The Lofts was engaged in the collection of consumer debt as required by the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788, et seq. Disregarding Plaintiff’s bare legal conclusions -- which the Court need not accept as true, Ileto, 349 F.3d at 1200 -- Plaintiff alleges no facts which, if true, would establish that The Lofts is a debt collector as a matter of law. Indeed, the FAC admits that the Plaintiff’s relationship with The Lofts is one of tenant/landlord formed by a residential lease. See FAC ¶ 32 (“Plaintiff’s debt was for a residential lease to rent a unit with the Lofts”); Lease (ECF. No. 10-4). As explained below, these factual allegations fall short of alleging that The Lofts is a debt collector collecting a consumer credit transaction within the meaning of the Rosenthal Act. Accordingly, the Court should dismiss Plaintiff’s Second Claim of Relief for violation of the Rosenthal Act against The Lofts. It is established law in this District that rent collection is not “debt collection” and rent is not a “consumer credit transaction” under the Rosenthal Act. As explained by Judge Benitez in Leasure v. Willmark Communities, Inc., No. 11-CV-00443 BEN DHB, 2013 WL 6097944, at *4 (S.D. Cal. Mar. 14, 2013): Case 3:15-cv-02195-JAH-KSC Document 27-1 Filed 06/13/17 PageID.301 Page 14 of 18 _________________________________________________________________________________________________ 11 Case No. : 15-cv-2195 JAH (KSC) MEMORANDUM IN SUPPORT OF THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R.Civ. P.12(b)(6) and (7) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Rosenthal Act governs the collection of “consumer debts” by “debt collectors.” Cal. Civ. Code §§ 1788.2(c), 1788.2(f). “Consumer debt” is defined as “money, property or their equivalent, due or owing or alleged to be due or owing from a natural person by reason of a consumer credit transaction.” Cal. Civ. Code § 1788.2(f). A “consumer credit transaction,” in turn, is defined as “a transaction between a natural person and another person in which property, services or money is acquired on credit by that natural person from such other person primarily for personal, family, or household purposes.” Cal. Civ. Code § 1788.2(e) (emphasis added). “Debt collection” under the Rosenthal Act, therefore, requires a “consumer credit transaction” which in turn requires the extension of credit. The Court is not aware of any cases holding that rent collection equates to “debt collection” or that rent involves a “consumer credit transaction” under the Rosenthal Act. Plaintiffs have not established that Creekside Meadows, as a landlord, extends credit to tenants. See Sanai v. U.D. Registry, Inc., No. B170618, 2005 WL 361327, at *16 (Cal.App.2d Dist. Feb. 16, 2005) (a month-to-month tenancy was not a “consumer credit transaction” and unpaid rent was not a “consumer debt”). Accordingly, Plaintiffs have not established that Creekside Meadows engaged in the collection of a consumer debt for the purposes of the Rosenthal Act. Leasure, 2013 WL 6097944, at *4. This Court cited Leasure in dismissing Plaintiff’s Rosenthal Act claim in the original complaint. Order, ECF No. 19 at 6-7. Although the Court gave leave to amend, Plaintiff’s amendment demonstrates that further leave would be futile because he cannot allege facts establishing that The Lofts is a “debt collector” under the Rosenthal Act or the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”).1 The FDCPA defines a debt collector as “any person who uses any instrumentality of interstate commerce or the 1 As this Court observed when dismissing Plaintiff’s original complaint, “[t]he Rosenthal Act mimics or incorporates by reference the FDCPA’s requirements . . . and makes available the FDCPA’s remedies for violations.” Riggs v. Prober & Raphael, 681 F.3d 1097, 1100 (9th Cir. 2012) (citing Cal. Civ. Code § 1788.17). Case 3:15-cv-02195-JAH-KSC Document 27-1 Filed 06/13/17 PageID.302 Page 15 of 18 _________________________________________________________________________________________________ 12 Case No. : 15-cv-2195 JAH (KSC) MEMORANDUM IN SUPPORT OF THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R.Civ. P.12(b)(6) and (7) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). Notably, this definition “does not include the consumer’s creditors, a mortgage servicing company, or any assignee of the debt, so long as the debt was not in default at the time it was assigned.” Nool v. HomeQ Serv., 653 F. Supp. 2d 1047, 1053 (E.D. Cal. 2009) (citing Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.1985)). Plaintiff’s FAC is devoid of factual allegations which, if true, could establish that The Lofts meets the definition of a debt collector:  Plaintiff does not, and cannot, allege any facts establishing that the “principal purpose” of The Lofts’ business is to collect debts. To the contrary, Plaintiff’s FAC admits that The Lofts was his landlord. See FAC ¶ 32 and Lease (ECF. No. 10-4); see also LANDLORD, Black's Law Dictionary (10th ed. 2014) (“Someone who rents a room, building, or piece of land to someone else”).  There are no factual allegations supporting the legal assertion that The Lofts regularly collects debts on behalf of others. Once again, Plaintiff’s admission that The Lofts is his landlord is fundamentally inconsistent with such a legal conclusion.  Plaintiff has not, and cannot, allege that he was in default at the time he entered into his Lease with The Lofts in May 2014; to the contrary, he admits that he fell behind in his payments “sometime thereafter” and the late fee at issue was imposed a year into the Lease, in April 2015. See FAC ¶¶ 37-38.  Plaintiff alleges no facts which would establish that his apartment was acquired on credit. Indeed, such allegations would contradict Plaintiff’s Lease, which is properly subject to judicial notice. See Gonzalez, 759 Case 3:15-cv-02195-JAH-KSC Document 27-1 Filed 06/13/17 PageID.303 Page 16 of 18 _________________________________________________________________________________________________ 13 Case No. : 15-cv-2195 JAH (KSC) MEMORANDUM IN SUPPORT OF THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R.Civ. P.12(b)(6) and (7) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F.3d at 1115; Lease, ECF. No. 10-4, at ¶ 6 (“you will pay $1,575.00 per month for rent, payable in advance . . .”) (emphasis added). These factual allegations do not just fail to allege – they actually negate – Plaintiff’s claim that The Lofts is a debt collector collecting a consumer credit transaction within the meaning of the Rosenthal Act. Cf. Izenberg v. ETS Servs., LLC, 589 F. Supp. 2d 1193, 1198 (C.D. Cal. 2008) (“To be liable for violation of the FDCPA, a Defendant must—as a threshold requirement—fall within the Act’s definition of a ‘debt collector.’”) (citations omitted). Plaintiff has had enough chances to state a Rosenthal Act claim but consistently has failed to do so. Accordingly, the Court should dismiss Plaintiff’s Second Claim of Relief for violation of the Rosenthal Act against The Lofts with prejudice. V. CONCLUSION For the foregoing reasons, The Lofts respectfully requests that the Court grant its motion to dismiss Plaintiff’s FAC with prejudice. DATED: June 13, 2017 PARK & VELAYOS LLP Steven D. Atlee By: /s/ Steven D. Atlee Steven D. Atlee Attorneys for Defendant, The Lofts Apartments Acquisition, LLC Case 3:15-cv-02195-JAH-KSC Document 27-1 Filed 06/13/17 PageID.304 Page 17 of 18 _________________________________________________________________________________________________ 14 Case No. : 15-cv-2195 JAH (KSC) MEMORANDUM IN SUPPORT OF THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R.Civ. P.12(b)(6) and (7) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served on June 13, 2017 to all counsel of record who are deemed to have consented to electronic service via the Court’s CM/ECF system per Civil Local Rule 5.4. Any other counsel of record will be served by electronic mail, facsimile and/or overnight delivery. By: /s/ Steven D. Atlee Steven D. Atlee Case 3:15-cv-02195-JAH-KSC Document 27-1 Filed 06/13/17 PageID.305 Page 18 of 18 _________________________________________________________________________________ 1 Case No.: 15-cv-2195 JAH (KSC) THE LOFTS’ JOINDER IN DEFENDANT GREYSTAR’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Steven D. Atlee (State Bar No. 151025) PARK & VELAYOS LLP 801 S. Figueroa St., Suite 450 Los Angeles, CA 90017 Telephone: (213) 570-8013 Fax: (213) 570-8010 E-mail: satlee@parkvelayos.com Attorneys for Defendant, The Lofts Apartments Acquisition, LLC UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA JORDAN KOHLER, individually and on behalf of all others similarly situated, Plaintiff, vs. GREYSTAR REAL ESTATE PARTNERS, LLC; THE LOFTS APARTMENTS ACQUISITION, LLC, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 15-cv-2195 JAH (KSC) CLASS ACTION THE LOFTS APARTMENTS ACQUISITION, LLC’S NOTICE OF JOINDER IN DEFENDANT GREYSTAR’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Assigned to: Hon. John A. Houston Date: July 24, 2017 Time: 2:30 p.m. Ctrm: 13B Complaint Filed: October 1, 2015 ) ) Case 3:15-cv-02195-JAH-KSC Document 27-2 Filed 06/13/17 PageID.306 Page 1 of 3 _________________________________________________________________________________ 2 Case No.: 15-cv-2195 JAH (KSC) THE LOFTS’ JOINDER IN DEFENDANT GREYSTAR’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Lofts Apartments Acquisition, LLC (“The Lofts”) hereby joins Defendant Greystar Real Estate Partners, LLC’s Notice of Motion and Motion to Dismiss Plaintiff’s First Amended Complaint and the arguments and authorities found therein. ECF No. 23 (“Greystar MTD”). For all of the reasons set forth in the Greystar MTD, Plaintiff’s First Amended Complaint should be dismissed with prejudice. DATED: June 13, 2017 PARK & VELAYOS LLP Steven D. Atlee By: /s/ Steven D. Atlee Steven D. Atlee Attorneys for Defendant, The Lofts Apartments Acquisition, LLC Case 3:15-cv-02195-JAH-KSC Document 27-2 Filed 06/13/17 PageID.307 Page 2 of 3 _________________________________________________________________________________ 3 Case No.: 15-cv-2195 JAH (KSC) THE LOFTS’ JOINDER IN DEFENDANT GREYSTAR’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served on June 13, 2017 to all counsel of record who are deemed to have consented to electronic service via the Court’s CM/ECF system per Civil Local Rule 5.4. Any other counsel of record will be served by electronic mail, facsimile and/or overnight delivery. By: /s/ Steven D. Atlee Steven D. Atlee Case 3:15-cv-02195-JAH-KSC Document 27-2 Filed 06/13/17 PageID.308 Page 3 of 3 _________________________________________________________________________________ 1 Case No.: 15-cv-2195 JAH (KSC) THE LOFTS’ REQUEST FOR JUDICAL NOTICE IN SUPPORT OF MOTION TO DISMISS FAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Steven D. Atlee (State Bar No. 151025) PARK & VELAYOS LLP 801 S. Figueroa St., Suite 450 Los Angeles, CA 90017 Telephone: (213) 570-8013 Fax: (213) 570-8010 E-mail: satlee@parkvelayos.com Attorneys for Defendant, The Lofts Apartments Acquisition, LLC UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA JORDAN KOHLER, individually and on behalf of all others similarly situated, Plaintiff, vs. GREYSTAR REAL ESTATE PARTNERS, LLC; THE LOFTS APARTMENTS ACQUISITION, LLC, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 15-cv-2195 JAH (KSC) CLASS ACTION THE LOFTS APARTMENTS ACQUISITION, LLC’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Assigned to: Hon. John A. Houston Date: July 24, 2017 Time: 2:30 p.m. Ctrm: 13B Complaint Filed: October 1, 2015 ) ) Case 3:15-cv-02195-JAH-KSC Document 27-3 Filed 06/13/17 PageID.309 Page 1 of 3 _________________________________________________________________________________ 2 Case No.: 15-cv-2195 JAH (KSC) THE LOFTS’ REQUEST FOR JUDICAL NOTICE IN SUPPORT OF MOTION TO DISMISS FAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE HONORABLE JOHN A. HOUSTON, UNITED STATES DISTRICT COURT JUDGE, AND ALL INTERESTED PARTIES: Pursuant to Federal Rule of Evidence 201, The Lofts Apartments Acquisition, LLC (“The Lofts”) submits this request for judicial notice in support of its Motion to Dismiss Plaintiff’s First Amended Complaint. Specifically, The Lofts respectfully requests that this Court take judicial notice of the Plaintiff’s lease with The Lofts, a true and correct copy of which was filed previously as ECF No. 10-4 (the “Lease”). Judicial notice of the Lease is appropriate here because Plaintiff’s First Amended Complaint (“FAC”) necessarily relies upon it in challenging the validity of the Lease. "A district court ruling on a motion to dismiss may consider documents whose content are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiffs pleading." Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998) (quotation omitted). "[A] district court ruling on a motion to dismiss may consider a document the authenticity of which is not contested, and upon which the plaintiff s complaint necessarily relies." Id. at 706. Plaintiff claims that the late fee provisions in the Lease are unlawful. FAC ¶¶ 28-68, ECF No. 20. While Plaintiff’s claims necessarily rely on the terms of his Lease, he failed to attach it to his FAC. Plaintiff should be prevented "from surviving a Rule 12(b)(6) motion by deliberately omitting references to documents upon which [his] claims are based." Id. (citation omitted). Accordingly, The Lofts respectfully requests that this Court take judicial notice of the Lease. DATED: June 13, 2017 PARK & VELAYOS LLP Steven D. Atlee By: /s/ Steven D. Atlee Steven D. Atlee Attorneys for Defendant, The Lofts Apartments Acquisition, LLC Case 3:15-cv-02195-JAH-KSC Document 27-3 Filed 06/13/17 PageID.310 Page 2 of 3 _________________________________________________________________________________ 3 Case No.: 15-cv-2195 JAH (KSC) THE LOFTS’ REQUEST FOR JUDICAL NOTICE IN SUPPORT OF MOTION TO DISMISS FAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served on June 13, 2017 to all counsel of record who are deemed to have consented to electronic service via the Court’s CM/ECF system per Civil Local Rule 5.4. Any other counsel of record will be served by electronic mail, facsimile and/or overnight delivery. By: /s/ Steven D. Atlee Steven D. Atlee Case 3:15-cv-02195-JAH-KSC Document 27-3 Filed 06/13/17 PageID.311 Page 3 of 3 _________________________________________________________________________________ 1 Case No.: 15-cv-2195 JAH (KSC) [PROPOSED] ORDER GRANTING THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R. Civ. P. 12(b)(6)] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Steven D. Atlee (State Bar No. 151025) PARK & VELAYOS LLP 801 S. Figueroa St., Suite 450 Los Angeles, CA 90017 Telephone: (213) 570-8013 Fax: (213) 570-8010 E-mail: satlee@parkvelayos.com Attorneys for Defendant, The Lofts Apartments Acquisition, LLC UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA JORDAN KOHLER, individually and on behalf of all others similarly situated, Plaintiff, vs. GREYSTAR REAL ESTATE PARTNERS, LLC; THE LOFTS APARTMENTS ACQUISITION, LLC, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 15-cv-2195 JAH (KSC) CLASS ACTION [PROPOSED] ORDER GRANTING DEFENDANT THE LOFTS APARTMENTS ACQUISITION, LLC’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R. Civ. P. 12(b)(6)] Assigned to: Hon. John A. Houston Date: July 24, 2017 Time: 2:30 p.m. Ctrm: 13B Complaint Filed: October 1, 2015 ) ) Case 3:15-cv-02195-JAH-KSC Document 27-4 Filed 06/13/17 PageID.312 Page 1 of 2 _________________________________________________________________________________ 2 Case No.: 15-cv-2195 JAH (KSC) [PROPOSED] ORDER GRANTING THE LOFTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT [Fed. R. Civ. P. 12(b)(6)] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This matter came on for hearing on the Motion to Dismiss the First Amended Complaint of Plaintiff Jordan Kohler filed by defendant The Lofts Apartments Acquisition, LLC (“The Lofts”). Having considered the moving and opposition papers, arguments, and all other matters presented to the Court, the Court finds that the First Amended Complaint of Plaintiff Jordan Kohler fails to state a claim upon which relief may be granted against The Lofts. IT IS HEREBY ORDERED that The Lofts’ Motion to Dismiss the First Amended Complaint is GRANTED in its entirety. The First Amended Complaint is hereby dismissed with prejudice. Dated: By: _____________________________ Honorable John A. Houston United States District Judge Case 3:15-cv-02195-JAH-KSC Document 27-4 Filed 06/13/17 PageID.313 Page 2 of 2