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November 14, 2012
TUNG Q. LAM,PLAINTIFF,v.JP MORGAN CHASE BANK, N.A. AND` MTC FINANCIAL INC. DBA TRUSTEE CORPS,DEFENDANTS
Doc. #'s 18 and 22
This is an action in diversity for damages and injunctive relief by plaintiff Tung Q. Lam ("Plaintiff") against defendants JPMorgan Chase Bank, N.A. and MTC Financial, Inc. dba Trustee Corps (hereinafter, "Trustee Corps") (collectively, "Defendants"). Plaintiff's complaint alleges claims for wrongful foreclosure, slander of title, cancellation of written instruments, fraud, quiet title, and claims for declaratory and injunctive relief. Currently before the court are separate motions by each Defendant to dismiss all claims alleged in the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state claims upon which relief can be granted. The parties do not dispute that diversity jurisdiction exists pursuant to 28 U.S.C. § 1332. Venue is proper in this court.
The court may take notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). Facts subject to judicial notice may be considered by a court on a motion to dismiss. In re Russell, 76 F.3d 242, 244 (9th Cir. 1996). In actions arising from mortgage disputes, courts may take judicial notice of the deed of trust and other documents pertaining to the loan. Kelley v. Mortgage Electronic Registration Systems, Inc., 642 F.Supp.2d 1048, 1052-1053 (N.D. Cal. 2009). A court may also take "judicial notice of matters of public record outside the pleadings." Indemnity Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986).
Defendants request for judicial notice, Document # 19, seeks judicial notice of: (1) the deed of trust securing the subject property, Exh. "A"; (2) Notice of Default and Election to Sell, recorded by Trustee Corps on June 1, 2011, Exh. "B"; (3) Assignment of Deed of Trust to JPMorgan Chase Bank, recorded by MERS on July 20, 2012, Exh. "C"; (4) Substitution of Trustee Corps as trustee under the Deed of Trust, recorded on August 7, 2012, Exh. "D"; and (5) Notice of Trustee's Sale, recorded by Trustee Corps on August 7, 2012, Exh. "E". The court has examined each of the exhibits for which judicial notice is requested and finds that each of the exhibits is suitable for judicial notice as matters of public record outside of the pleadings. Judicial notice of Exhibits "A" through "E" of Document # 19 will therefore be granted.
This action arises out of a mortgage entered into by Plaintiff and Reunion Mortgage that resulted in a deed of trust encumbering Plaintiff's property in Modesto, California (the "subject Property"). At the time the mortgage was executed, Mortgage Electronic Registration Systems, Inc. ("MERS") was nominated as beneficiary of the Deed of Trust. Plaintiff's complaint alleges that MERS was a Delaware corporation that was "not qualified to do business in California." Doc. # 1 at ¶ 12. Plaintiff alleges MERS "did not become qualified to do business in California until July 21, 2010," and that the nomination of MERS as beneficiary to the Deed of Trust was therefore was void. Id. Plaintiff alleges that shortly following the execution of the mortgage, Reunion Mortgage bundled his and other mortgages and sold them to Indymac Bank, FSB, without contemporaneously assigning the Deed of Trust to the new buyer. Plaintiff contends that as a result of the separation of the Deed of Trust and the Promissory Note, none of the Defendants have any interest in the subject property.
The Notice of Default and Election to Sell was recorded on June 1, 2011. There is no contention that the Notice of Default was improperly served. Plaintiff contends that, because Trustee Corps, the entity that recorded the Notice of Default, was not substituted as beneficiary for the Deed of Trust until August 7, 2012, the Notice of Default was void. Plaintiff also contends that JPMorgan Chase was not assigned the Deed of Trust until after the Notice of Default was record and that JPMorgan Chase therefore lacked authority to declare default in 2011. As of the date the Notice of Default was recorded, the amount Plaintiff's mortgage was claimed to be in arrears was $12,506.14. Plaintiff's complaint does not dispute the amount of claimed arrearage nor does the complaint allege any attempt to tender the amount in arrears nor does it allege the present ability to do so.
The assignment of the Deed of Trust from MERS to JPMorgan Chase was signed by MERS on July 11, 2012, and was recorded on July 20, 2012. The assignment of the Deed of Trust from JPMorgan Chase to Trustee Corps was signed by JPMorgan Chase on July 11, 2012, and was recorded on August 7, 2012, the same date that the Notice of Trustee's Sale was recorded. Plaintiff filed the complaint in this action on August 30, 2012. Within the complaint and in a separate motion filed on the following day, Plaintiff requested that the sale of the subject property pursuant to the Notice of Trustee's Sale be temporarily restrained. Plaintiff's request for TRO was granted by order of the court on September 5, 2012. The TRO was extended through October 22, 2012, by an order filed on September 21, 2012. The instant motions to dismiss and to deny TRO were filed on September 17, 2012, and September 19, 2012, by JPMorgan Chase and Trustee Corps, respectively. Plaintiff's opposition was filed on October 8, 2012, and both Defendants filed reply briefs on October 15, 2012. Defendants' motions to dismiss were taken under submission as of October 22, 2012.
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Twombly"). While a court considering a motion to dismiss must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the pleading in the light most favorable to the party opposing the motion, and resolve factual disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 ("a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do"). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("Iqbal").
The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiff's complaint:
"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."
Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1950).
Plaintiff's complaint alleges four substantive claims for relief; wrongful foreclosure, quiet title, slander of title and fraud. In addition, the complaint alleges as claims for relief various injunctive and declaratory remedies including temporary and permanent injunctive relief, cancellation of written instruments and declaratory relief. Plaintiff's substantive claims rest on three general contentions. First, Plaintiff contends that because the his loan was bundled into a securitized investment vehicle shortly after the mortgage was executed, beneficial interest in the Deed of Trust, and therefore the authority to enforce legal rights under the Deed of Trust, was transferred to the entity that owns the pool of secured mortgages, in this case Deutsche Bank National Trust Company. Although Plaintiff's contention is not altogether clear, the upshot is that the transfer of his loan into an securitized investment vehicle somehow casts legal uncertainty over the ability of Reunion Mortgage to transfer the Deed of Trust to MERS or of MERS to transfer to Trustee Corps. The second of Plaintiff's contentions is that the Notice of Default was improper because Trustee Corps, the entity originating the Notice, was not the transferee of the Deed of Trust at the time the Notice was served and would not become the transferee for another year. Plaintiff contends that Trustee Corps lacked authority to issue the Notice of Default and that the entire process of foreclosure is therefore void. Third, Plaintiff alleges in his complaint that MERS was not a business authorized to do business in California at the time the loan agreement was executed and that the designation of MERS as the Beneficiary's nominee was improper and therefore void. This contention seems to be confined to the complaint as Plaintiff did not address Defendants' contentions in his opposition to the motions to dismiss.
Plaintiff's first contention rests on a premise that has been raised numerous times in this court, in district courts in this state and in the Ninth Circuit and has been uniformly rejected. As this court has observed, the "securitization" of a mortgage transfers only the right to the cash flows from the pooled mortgages. Jones v. Countrywide Homeloan, 2011 WL 2462856 (E.D. Cal. 2011) at *5 (italics in original). "It does not follow that any of the other entitlements of the lender of the Deeds of Trust, including the power to declare default, are transferred or lost because of the transfer or sale of the cash flow due from the mortgage." Id. "Therefore, the transfer of the Note as part of a securitization process does not affect MERS's right as a nominee under the [Deed of Trust]." In re Cedano, 470 B.R. 522, 531 (9th Cir. 2012); see also, Benham v. Aurora Loan Services, 2009 WL 2880232 (N.D. Cal. 2009) at *3 ("Other courts in this district have summarily rejected the argument that companies like MERS lose their power of sale pursuant to the deed of trust when the original promissory note is assigned to a trust pool.") Because the power of MERS as nominee under the Deed of Trust was not impaired in any way by the alleged securitization of the loan, there is no basis upon which the subsequent assignment of the Deed of Trust to JPMorgan Chase can be found to be invalid. Plaintiff's allegations suggesting the lack of evidence to determine the status of JPMorgan Chase as assignee of the Deed of Trust are simply contrary to fact.
Plaintiff's second basic contention -- that Trustee Corps lacked authority to issue the Notice of Default because the Deed of Trust had not been assigned to them as of the date of issuance of the Notice -- is similarly flawed. As Defendants have pointed out, under California law a foreclosure is commenced when "[t]he trustee, mortgagee, or beneficiary, or any of their authorized agents shall first file for record, in the office of the recorder of each county wherein the mortgaged or trust property or some part or parcel thereof is situated, a notice of default." Cal. Civ. Code §2924(a)(1) (italics added). In the signing the loan agreement, Plaintiff agreed:
Buyer understands and agrees that MERS holds only legal title to the interests granted by borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose ands sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument.
Doc. # 19-1 at 3.
On the second page of the Notice of Default, Trustee Corps advises Plaintiff "Trustee Corps is the original Trustee, duly appointed Substituted Trustee , or acting as Agent for the Trustee or Beneficiary under a Deed of Trust dated as December 5, 2006, executed by Tung Q. Lam [. . .] as trustor, to secure obligations in favor of Reunion Mortgage, Inc. as Lender under the Deed of Trust and, [MERS] as the Original Beneficiary under Deed of Trust . . . ." Doc. # 19-1 at 26. The Notice of Default bas signed on behalf of "MTC Financial, Inc. dba Trustee Corps as Agent for the Beneficiary." Id. In sum, Plaintiff acknowledged and agreed to grant to MERS the authority to enforce the terms of the loan agreement and was informed n due course that Trustee Corps was the Agent duly appointed by MERS to institute foreclosure proceedings.
Defendants rebut Plaintiff's third contention -- that MERS was not authorized to do business in California at the time the loan was executed -- by pointing out that "an 'unregistered corporation, upon registering, is "restored to full legal competency and [has] its prior transactions given full effect."' United Medical Management Ltd. v. Gatto, 1741, 1741 (1996)" Doc. # 18 at 17:16-19 (noting that the United Medical Mgmt. decision has been cited as authoritative by district courts in California). Plaintiff's opposition to Defendants' motion to dismiss does not address Defendant's contentions regarding the status of MERS, nor does Plaintiff's opposition appear to rely at all on the contention that MERS was not authorized to operate in California. The court has reviewed the authority cited by Defendants and finds that MERS was authorized to function in the capacity of Beneficiary's nominee at the time the Notice of Default was served and recorded.
While there appears to be some uncertainty as to the exact circumstances under which a debtor has standing to challenge the authority of a party to institute and prosecute foreclosure proceedings, it clear that where the complaint fails to allege a sufficient "factual basis for alleging that the foreclosure was not initiated by the correct party," California's comprehensive statutory non-judicial scheme does not provide a legal basis for the challenge. Gomes v. Countrywide Home Loans, Inc., 192 Cal.App.4th 1149, 1156 (4th Dist. 2011); Maynard v. Wells Fargo Bank, 2012 WL 4898021 (S.D.Cal. 2012) at *3 (citing the holding in Gomes to establish that the authority of lender's nominee "to initiate foreclosure proceedings [can] not be challenged where the trusteed name[s] lender's nominee and grant[s] it foreclosure rights.") The court finds that Plaintiff has failed to allege any facts that would permit him to maintain a legal challenge to the authority of Trustee Corps to institute or maintain foreclosure proceedings. Because Plaintiff has failed to allege any facts that would permit to maintain an action for wrongful foreclosure, the court need not decide whether Plaintiff is otherwise prevented from maintaining the action because he has failed to allege tender.
To the extent Plaintiff's contentions can be interpreted to include the by now well-worn contention that the power to foreclose was somehow impaired because the Promissory Note and Deed of Trust were separated when the loan was placed in a securitized pool, that contention has been uniformly rejected by California Courts. California law is clear in stating, "[w]here a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security and vests in any person who by assignment becomes entitled to payment of the money secured by the instrument. The power of sale may be exercised by the assignee if the assignment is duly acknowledged and recorded." Cal. Civ. Code §2932.5 (italics added). Trustees regularly foreclose on behalf of assignees for the original beneficiary. See, e.g. Block v. Tobin, 45 Cal. App. 3d 214, 218 (Cal. App. 1st Dist. 1975). When a mortgage is sold, physical transfer of the note is not required. See, e.g. In re Golden Plan of Cal., Inc., 829 F.2d 705, 708-11 (9th Cir. Cal. 1986) (agreement transferring proceeds of note, including hiring agent to handle monthly payment collections and potential foreclosure proceedings, but no physical transfer of mortgage note was nevertheless a sale). It is well-settled that California law does not require production of the note as a condition to proceeding with a non-judicial foreclosure proceeding. See id.; Quintos v. Decision One Mortg. Co., 2008 WL 5411636, at *3 (S.D.Cal. Dec. 29, 2008); Tina v. Countrywide Home Loans, Inc., 2008 WL 4790906, at *7-8 (S.D.Cal. Oct. 30, 2008); see also Harrington v. Home Capital Funding, Inc., 2009 WL 514254, at *4 (S.D.Cal. Mar. 2, 2009).
For the reasons set forth above, the court finds Plaintiff's claim for wrongful foreclosure is without merit. To a significant extent, the remainder of Plaintiff's substantive claims are dependent on Plaintiff's claim for wrongful foreclosure and are therefore also without merit. Plaintiff's claim to quiet title fails because it rests on the proposition that Defendants are without any legal claim to the subject Property because the authority to enforce the Deed of Trust was lost for the reasons that have been discussed and rejected by the court. With this opinion the court rejects the contention that Defendants' claim to the Property is in any way impaired or subject to doubt. Likewise, Plaintiff's claim for slander of title is based on the now-rejected premise that the Notice of Default and Election to Sell was issued without authority. Because Plaintiff has failed to show that the issuance of the Notice of Default was without authority, Plaintiff cannot claim harm as a result of the recordation of the Notice. Plaintiff's claim for fraud is opposed on the ground it fails to plead the facts of the fraud with sufficient particularity pursuant to Rule 9(b) of the Federal Rules of Civil Procedure and because Plaintiff has failed to allege any misrepresentation of fact. Plaintiff's claim for fraud is linked to his contention that the "assignments and substitutions" were invalid. Since the court has found otherwise, Plaintiff's claim for fraud fails.
Having found that Plaintiff's substantive claims are without merit, it follows that Plaintiff's claims for injunctive relief, cancellation of written instruments and request for declaratory relief are likewise without merit. Defendants are therefore entitled to dismissal of Plaintiff's complaint in its entirety as to both Defendants. The court is aware that the complaint in this case is Plaintiff's original complaint. "If a complaint is dismissed for failure to state a claim, leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Schreiber Distributing Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 1986). The court has considered Plaintiff's complaint and the legal theories that underlie this action and finds itself at a loss to see how further amendment of the complaint could possibly cure the shortcomings discussed above. Fundamentally, Plaintiff has strived mightily to build an action around a perfectly ordinary set of facts that admit of no significant irregularities and has understandably failed to derive from those facts any cognizable claims. Plaintiff's action will therefore be dismissed with prejudice.
THEREFORE, in accord with the foregoing discussion, it is hereby ORDERED that the motions of JPMorgan Chase and MTC Financial, Inc. dba Trustee Corps to dismiss Plaintiff's complaint are each GRANTED with prejudice. Plaintiff's complaint is hereby DISMISSED in its entirety as to all Defendants. Any temporary restraining orders currently in effect are hereby DISSOLVED.
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June 4, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,v.DARLENE A. VARGAS, DEFENDANT AND APPELLANT.
APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. (Los Angeles County Super. Ct. No. KA085541)
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Darlene A. Vargas appeals from the judgment entered after she was again given a Three Strikes sentence for burglary after we reversed the judgment and remanded so the trial court could reconsider whether to dismiss one Three Strikes allegation because her two prior strike convictions arose from a single act. We reject her contention that it was an abuse of discretion to not dismiss one of the strike allegations solely because of that fact, and we also conclude that the trial court did not abuse its discretion when considering all the circumstances of Vargas's criminal history. Finally, we conclude that her prison sentence was not unconstitutionally cruel or unusual.
FACTS AND PROCEDURAL HISTORY*fn2
Around 2:00 p.m. on December 29, 2008, Lynn Burrows returned home to the house in Claremont that she shared with William Alves and their two sons to find it had been ransacked. Numerous items were missing, including computer equipment, cameras, a jewelry bag, cash, checks, a suitcase, a trashcan, and a backpack belonging to her son, Spencer. When Claremont police came to investigate, neighbor Gabriela Jimenez told them she saw a man and woman walking nearby sometime between 10:00 a.m. and 11:00 a.m. that day. The woman was rolling a suitcase. Sometime between noon and 1:00 p.m., Jimenez saw the same couple walking down the street. The woman was dragging a large gray trashcan filled with "bags [] of stuff," and the man was carrying a large box.
Around noon the next day, Claremont Police Officer James Hughes was on patrol in the same neighborhood when he saw Oscar Velasquez and appellant Darlene Vargas near the front door of the Chavez house. Because they matched the description of the couple Jimenez saw the day before, Hughes called for back-up as he drove past, then made a U-turn and detained the pair. Another officer soon joined Hughes. Hughes knocked on the front door of the Chavez house to speak with the owner. Hughes then noticed a backpack on the ground nearby. When owner John Chavez came to the door, he told Hughes that he did not know Vargas or Velasquez and did not know who owned the backpack by his door. Chavez said he had not seen the backpack there when he went to get his morning newspaper at 6:00 a.m. The other police officer opened the backpack, where he found a blue IKEA bag, a green duffel bag, a knife, a hammer, several gloves, and $31 in change. A search of Velasquez turned up methamphetamine and a glass smoking pipe.
Later that day, Jimenez went to the police station, where she identified Vargas and Velasquez from photographic "six-pack" lineups. A police officer took the backpack found at the Chavez house and showed it to Spencer Burrows, who identified it as his.
Vargas and Velasquez were charged with burglary, grand theft, and receiving stolen property (the backpack) in connection with the break-in at the Alves/Burrows house, and with conspiracy to commit theft based on their presence in front of the Chavez house.*fn3 The information also alleged that Vargas had convictions for carjacking and robbery from a 1999 case that qualified as "strikes" under the Three Strikes law.
At trial, the members of the Alves-Burrows household identified as theirs various objects found in the possession of Vargas and Velasquez, while Jimenez identified Vargas and Velasquez at trial and reconfirmed her earlier photo identification of them.
The jury convicted Vargas and Velasquez of burglary, grand theft, and conspiracy to commit grand theft, but acquitted them of receiving stolen property. Vargas moved to dismiss one of the two Three Strikes allegations on the ground that both convictions arose from a single act. The trial court denied the motion because Vargas received concurrent sentences for the carjack and robbery convictions, which indicated that separate acts had been involved. However, because it found that Vargas was not entirely within the Three Strikes scheme, the trial court applied both Three Strikes allegations as to only the burglary conviction and dismissed the strike allegations as to the remaining counts. Because the burglary conviction in this case was Vargas's third strike, the court imposed a sentence of 25 years to life on that count. She received a combined state prison sentence of 30 years to life.
In Vargas I, we considered and rejected Vargas's contentions that the evidence was insufficient to support the convictions and that the photo line-up shown to eyewitness Jimenez was unduly suggestive. We agreed that the concurrent sentence imposed for the grand theft conviction should have been stayed. We rejected Vargas's contention that one of the Three Strikes allegations should have been dismissed in its entirety, concluding that the record before the trial court showed no abuse of discretion because the concurrent sentences imposed for her robbery and carjacking convictions suggested that separate acts had been involved. However, we granted Vargas's companion habeas corpus petition for ineffective assistance of counsel because her original trial lawyer did not provide the court with the preliminary hearing transcript from the proceeding where she eventually pleaded out to charges of carjacking and robbery. Because that transcript made it appear that both convictions arose from a single act, and because the trial court found that Vargas did not fall entirely within spirit of the Three Strikes scheme when it dismissed those allegations as to two of the three new convictions, we reversed and remanded for a new sentencing hearing so that new evidence could be presented on that issue for the trial court to reconsider.*fn4
On remand, no new evidence other than the preliminary hearing transcript from Vargas's 1999 carjack/robbery conviction was presented. The trial court found that despite what the transcript showed, Vargas still fell enough within the Three Strikes scheme to warrant imposing a full Three Strikes sentence on the one burglary count. According to the court, the transcript from the preliminary hearing showed that Vargas took the lead role in a crime that involved the use of a weapon. She twice violated parole while serving her sentence for that crime, committed another crime in 2007 - misdemeanor trespassing - and then committed her current offenses, which showed she would have continued to burgle people's homes if she had not been stopped.
Vargas contends the trial court erred because: (1) case law requires automatic dismissal of a Three Strikes allegation when it is one of multiple convictions incurred for only a single act, particularly in regard to carjacking and robbery; (2) even if that rule does not apply, the trial court abused its discretion under the analysis ordinarily used when considering the dismissal of Three Strikes allegations; and (3) her sentence of 30 years to life violates the protections against cruel and/or unusual punishment found in the United States and California Constitutions.
1. The Three Strikes Law
Under the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), prior convictions for certain serious or violent felonies qualify as "strikes" that increase the prison sentence of a defendant who has been convicted of another felony. One "strike" will double the ordinary prison term, while two or more strikes will lead to an indeterminate sentence of at least 25 years to life. (§§ 667, subd. (e)(1), (2); 1170.12, subd. (c)(1), (2).)*fn5 Carjacking and robbery are both designated as strike offenses. (§§ 667.5, subd. (c)(9) & (17), 1192.7, subd. (c)(19) & (27).)
The determination of whether a prior felony conviction qualifies as a strike is not affected by the sentence imposed unless the sentence automatically converts to a misdemeanor at the initial sentencing. (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) Various other sentencing dispositions also have no effect on the determination of what prior convictions qualify as strikes, including the stay of execution of sentence. (§§ 667, subd. (d)(1)(B), 1170.12, subd. (b)(1)(B).)
Trial courts have discretion under section 1385 to dismiss Three Strikes allegations in the furtherance of justice. In deciding whether to exercise this discretion, the trial court must take into consideration the defendant's background, the nature of the current offense and other individualized considerations. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 531 (Romero).) "Preponderant weight" must be given to factors intrinsic to the Three Strikes scheme, including the nature and circumstances of the defendant's present felonies and prior serious or violent felony convictions, and the particulars of her background, character, and prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.)
We review the trial court's decision under the abuse of discretion standard. (People v. Carrasco (2008) 163 Cal.App.4th 978, 992-993.) A trial court abuses its discretion when it refuses to dismiss because of personal antipathy for the defendant while ignoring her background, the nature of her present offenses, and other individualized considerations. When determining whether to dismiss a Three Strikes allegation, the trial court must consider whether, in light of the nature and circumstances of her present felonies and prior serious or violent felony convictions, along with the particulars of her character, background, and prospects, the defendant may be deemed to be outside the Three Strikes scheme in whole or in part. (Id. at p. 993.)
2. Vargas's Contentions
Carjacking occurs when a car is taken by force or fear, regardless of whether the perpetrator had the intent to permanently or temporarily deprive the victim of the car. (§ 215, subd. (a).) When the thief had the intent to permanently deprive the victim of his car, the crime is also a robbery. (People v. Scott (2009) 179 Cal.App.4th 920, 928-929 (Scott).) The carjacking statute allows convictions for both offenses, but does not allow punishment for both when they were each based on the same act. (§ 215, subd. (c).) This provision incorporates the principles of section 654, which prohibits multiple punishments when multiple convictions arise from an indivisible course of conduct involving different acts or when multiple convictions arise from a single act. (People v. Thurman (2007) 157 Cal.App.4th 36, 43; People v. Burgos (2004) 117 Cal.App.4th 1209, 1215 (Burgos).)
The preliminary hearing transcript from Vargas's 1999 carjacking and robbery convictions includes the testimony of her victim. According to the victim, a man got into his parked car and forced him out at knifepoint, while Vargas stood outside and claimed to have a gun. The pair then drove off. Respondent does not dispute that these convictions arose from the same act. Vargas contends that as a result the trial court was automatically required to dismiss one of the Three Strikes allegations. To support this contention she relies on People v. Sanchez (2001) 24 Cal.4th 983 (Sanchez) overruled on another ground in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229, People v. Benson (1998) 18 Cal.4th 24 (Benson), and Burgos, supra, 117 Cal.App.4th 1209. Respondent concedes that Vargas's carjacking and robbery convictions arose from a single act. However, respondent disputes Vargas's interpretation of those decisions, and also relies on Scott, supra, 179 Cal.App.4th 920, which rejected the Burgos decision. We discuss these decisions below.
3. Decisions Concerning Effect of Stayed Sentences on Motions to Dismiss Three Strikes Allegations
A. People v. Benson
The court in Benson, supra, 18 Cal.4th 24 held that strike convictions still counted even if they had been stayed under section 654. The defendant in that case fell within the multiple-acts, single-course-of-conduct rule because he allegedly incurred two strikes for burglary and assault with intent to commit murder arising out of the same incident. The sentence on one of those counts was stayed under section 654, and the defendant claimed that as a result one of the two strike allegations in his current case had to be dismissed. The Benson court rejected that contention based on both the plain language of the Three Strikes statute and its legislative history.
The court's plain language analysis was based on two portions of the Three Strikes law: (1) the statute's directive that "Notwithstanding any other provision of law," prior convictions of any violent or serious felony offense set forth in section 667.5 subdivision (c) or section 1192.7 subdivision (c) were prior strike convictions under the Three Strikes law (§ 1170.12, subd. (b)(1)); and (2) the directive that a stay of sentence did not affect the determination that a prior conviction qualified as a strike (§ 1170.12, subd. (b)(1)(B)). (Benson, supra,18 Cal.4th at pp. 30-32.) Accepting defendant's contention would effectively and impermissibly rewrite the Three Strikes law to state that a stay of sentence does not affect the determination of what counts as a strike except for stays imposed under section 654. (Id. at p. 31.)
The Benson court's legislative history analysis looked at both versions of the Three Strikes law: section 1170.12, which was enacted by the voters as a ballot measure (Proposition 184) in 1994; and section 667, subdivisions (b) through (i), which the Legislature enacted that same year. According to the Benson court, nothing in the ballot arguments for Proposition 184 indicated an intent to exclude convictions that otherwise qualified as strikes because sentence on that charge had been stayed under section 654. (Benson, supra, 18 Cal.4th at p. 33.) So too with the pre-enactment history of the legislative version of Three Strikes, with one legislative analysis stating that nothing in the statute " 'require[s] that the prior convictions be separate in any way.' " (Id. at pp. 33-34, quoting Sen. Com. on Judiciary, Analysis of Assem. Bill No. 971 (1993-1994 Reg. Sess.) as amended Jan. 26, 1994, p. 10.)
Based on this, the Benson court rejected the defendant's contention that there was no rational basis to consider as a two-strike offender someone who committed two crimes as part of a single act committed against a single victim at the same time with a single intent. Whether he formed the intent to assault his victim before or after he entered her house "is less significant for purposes of the Three Strikes law than the fact that his prior criminal conduct yielded two convictions." (Benson, supra, 18 Cal.4th at pp. 34-35, original italics.) Instead, the central focus of the Three Strikes law is the defendant's status as a repeat felon - someone who committed a felony after being convicted of one or more strike offenses. (Ibid.)
In response to defendant's claim that applying Three Strikes to convictions where the sentence had been stayed under section 654 would lead to dramatic and harsh results, the Benson court said that absent a constitutional violation, it was not free to alter the statute's intended effect. It added: "It is worth noting, however, that our decision in Romero, supra, 13 Cal.4th 497, affirms that a trial court retains discretion in such cases to strike one or more prior felony convictions under section 1385 if the trial court properly concludes that the interests of justice support such action. [Citation].)" (Benson, supra, 18 Cal.4th at pp. 35-36.) In a footnote to this sentence, the court said: "Because the proper exercise of a trial court's discretion under section 1385 necessarily relates to the circumstances of a particular defendant's current and past criminal conduct, we need not and do not determine whether there are some circumstances in which two prior felony convictions are so closely connected - for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct - that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors." (Id. at p. 36, fn. 8.)
B. People v. Sanchez
The defendant in Sanchez, supra, 24 Cal.4th 983, was convicted of both second degree murder and gross vehicular manslaughter. The Supreme Court rejected his contention that he could not be convicted of both because the vehicular manslaughter charge was a lesser included offense of the murder charge. However, sentence on the manslaughter count was properly stayed under section 654, the court held. (Id. at p. 992.)
Pointing to footnote 8 in Benson, supra, 18 Cal.4th at page 36, Sanchez complained that should he ever reoffend, he could be wrongly deemed to have two strikes from his current convictions. Noting that it was not faced with that question, the Sanchez court said it was "appropriate and prudent to note that in . . . Benson, we observed that a trial court may strike a prior felony conviction under section 1385, and that we left open the possibility that 'there are some circumstances in which two prior felony convictions are so closely connected . . . that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors.' [Citation.]" (Sanchez, supra, 24 Cal.4th at p. 993, quoting Benson, supra, at p. 36, & fn. 8.)
C. People v. Burgos
The court in Burgos, supra, 117 Cal.App.4th 1209 relied on Benson's footnote 8 when concluding that the trial court erred by failing to dismiss a Three Strikes allegation because both of the defendant's strike priors involved one act - a failed attempt to steal someone's car at gunpoint - resulting in twin convictions for attempted carjacking and attempted robbery. According to the Burgos court, footnote 8 of Benson "strongly indicates that where the two priors were so closely connected as to have arisen from a single act, it would necessarily constitute an abuse of discretion to refuse to strike one of the priors." (Burgos, at p. 1215.) Quoting the reminder in Sanchez, supra, 24 Cal.4th at page 993 that Benson left open the possibility that there might be circumstances where it would be an abuse of discretion to deny a motion to dismiss a strike allegation if the prior convictions were sufficiently closely connected, the Burgos court concluded that "[t]hose circumstances are present in this case." (Burgos, at pp. 1215-1216.)
Because Burgos's convictions for attempted carjacking and attempted robbery arose from "the same single act," the trial court's failure to dismiss one of them "must be deemed an abuse of discretion." (Burgos, supra, 117 Cal.App.4th at p. 1216.) This conclusion was bolstered, the court said, by the fact that section 215, subdivision (c) precludes multiple punishments for carjacking and robbery when based on the same act. (Ibid.)
Despite the use of language that sounds like a hard and fast rule requiring dismissal of strike allegations in cases such as this, the Burgos court still went on to conduct a traditional section 1385 analysis that included the relatively minor nature of the defendant's past and current offenses and the length of the sentence he would serve if the strike allegation were dismissed. (Burgos, supra, 117 Cal.App.4th at p. 1216.)
D. People v. Scott
The court in Scott, supra, 179 Cal.App.4th 920 considered the appeal of a defendant whose two prior strike convictions were for robbery and carjacking arising from the same act, and concluded that Benson did not stand for the proposition that the trial court's failure to dismiss one of those convictions based on that fact alone was an abuse of discretion.
The Scott court began by pointing out that even though portions of Burgos seemed to state an automatic rule of dismissal in such circumstances, the Burgos court's use of a standard section 1385 analysis made the true nature of the decision doubtful. (Scott, supra, 179 Cal.App.4th at p. 930.) It then noted the Burgos court's failure to discuss the statutory definition of a strike as something unaffected by the sentence imposed unless the felony was converted to a misdemeanor at that time. The failure to do so "negates a broad reading of Burgos," the Scott court held. (Scott, at p. 931.) Finally, the Scott court faulted Burgos for its reliance on section 215, subdivision (c), which bars multiple punishments for carjacking and robbery when they arise from the same act. Doing so was contrary to Benson, the Scott court said, because Benson said the defendant was on notice that both convictions would be treated as strikes should he reoffend. (Scott, at p. 931.)
Therefore, Scott held, the "same act" circumstance arising from convictions for robbery and carjacking was just another factor for the trial court to consider when determining whether to dismiss a Three Strikes allegation. (Scott, supra, 179 Cal.App.4th at p. 930.)
4. The Trial Court Did Not Err By Refusing to Dismiss One of the Three Strikes Allegations
A. No Rule of Automatic Dismissal for Strikes Arising from Same Act
Vargas's contention that a three strikes allegation must be dismissed if it was based on the same act as another three strikes conviction is based on her interpretation of Benson's footnote 8. According to Vargas, the Burgos court properly read the footnote that way, and she asks that we follow both decisions.
Footnote 8 must be examined in two ways: First, in the context of the entire Benson decision; and second, by the language of that footnote and the context of the sentence in the text to which it was appended. We address them in that order.
Benson held that a strike is a strike is a strike, regardless of whether the sentence on that strike conviction was stayed under section 654. Its rationale was simple - both the plain language of the Three Strikes law and its pre-enactment history showed that the law was concerned with a defendant's status as a repeat offender, not the timing of his criminal intent. When the law said that the stay of execution of sentence had no effect on determining whether a prior conviction was a strike, its language was unambiguous and extended to sentencing stays of all kinds. (Benson, supra, 18 Cal.4th at pp. 30-32.) Thus, the overall context of Benson was to clarify that a prior conviction that qualified as a strike remained a strike even if sentence on that charge had been stayed for any reason.
As for the specific context of footnote 8 itself, it came toward the end of the Benson majority's response to the defendant's contention that harsh results would follow should convictions where sentence had been stayed under section 654 continue to qualify as strikes. After pointing out that it could not alter the law on that ground absent some constitutional infirmity, the court said: "It is worth noting, however, that our decision in Romero, supra, 13 Cal.4th 497, affirms that a trial court retains discretion in such cases to strike one or more prior felony convictions under section 1385 if the trial court properly concludes that the interests of justice support such action. [Citation.]" (Benson, supra, 18 Cal.4th at p. 36.) Footnote 8 followed immediately: "Because the proper exercise of a trial court's discretion under section 1385 necessarily relates to the circumstances of a particular defendant's current and past criminal conduct, we need not and do not determine whether there are some circumstances in which two prior felony convictions are so closely connected - for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct - that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors." (Id. at p. 36, fn. 8.)
In short, Benson answered the harshness argument by pointing out that trial courts still had discretion under Romero to dismiss strike allegations where the sentence had been stayed. Because such discretion necessarily takes into account a defendant's past and current criminal conduct, the court said it did not have to determine whether a trial court would abuse its discretion by failing to dismiss a strike allegation arising from single act, multiple convictions.
We do not read this as stating, much less signaling, that a trial court automatically abuses its discretion by failing to dismiss a Three Strikes allegation that was part of a single act that yielded another Three Strikes conviction. Such a rule does not involve discretion at all. Instead, it strips the trial court of discretion. But the exercise of discretion under Romero is the whole point of footnote 8 and the text it follows. This is especially so given Benson's conclusion, which rejected defendant's proposed rule as untenable because it would prevent certain convictions on which sentence had been stayed from ever being treated as a strike, a result that violated both the language and intent of the Three Strikes law. (Benson, supra, 18 Cal.4th at p. 36.) Instead, the stay of sentence was a factor for the trial court to consider when determining whether to dismiss a strike allegation. (Ibid.)
Given Benson's interpretation of the Three Strikes law and the statutory non-effect of stayed sentences when determining whether a prior conviction is a strike, combined with the language and context of footnote 8, we conclude that the footnote does no more than offer guidance, and perhaps a warning, that trial courts should consider whether one act produced multiple strike convictions as a factor when deciding whether to dismiss a strike allegation.
When distilled, Benson holds that a stay of sentence under section 654 does not affect the determination of whether a prior conviction qualifies as a strike. However, the fact that a sentence was stayed on a conviction that is alleged as a strike is a factor the trial court may consider when ruling on a motion to dismiss that allegation. This rule applies whether multiple acts in a single course of conduct or single acts by themselves produced multiple strike convictions. Although Benson was specifically focused on section 654 stays, it noted that the Three Strikes provision that a stay of sentence did not affect whether a prior conviction counts as a strike applied to any type of stay.
We see no reason why Benson's rationale does not apply here. Under section 215, subdivision (c), when robbery and carjacking convictions are based on the same act, only one may be punished, a provision that effectively incorporated the sentencing stay principles of section 654. (People v. Thurman, supra, 157 Cal.App.4th at p. 43.) Given Benson's holding, combined with the plain language of the Three Strikes law concerning the non-effect of stayed sentences on determining whether a prior conviction is a strike, we conclude that whether a single act yielded multiple convictions is just one more factor, albeit an important one, for a trial court's Romero analysis.
Our interpretation of Benson means that we part ways with our colleagues in Burgos, who read footnote 8 as a strong indication "that where the two priors were so closely connected as to have arisen from a single act, it would necessarily constitute an abuse of discretion to refuse to strike one of the priors." (Burgos, supra, 117 Cal.App.4th at p. 1215.) To the extent that Burgos can be read to endorse such a rule, we decline to follow it.
However, we agree with the Scott court that the precise nature of the Burgos holding is not entirely clear. As the Scott court noted, after making what looked like a blanket pronouncement about the necessity of dismissing strike priors that arose from a single act, Burgos went on to conduct a typical Romero analysis based on the defendant's past and current criminal offenses. (Scott, supra, 179 Cal.App.4th at p. 930.)
A stronger indication that Burgos did not hold that dismissal was automatically required under these circumstances comes from that decision's statement of facts. Burgos arose from that court's earlier, unpublished decision in the same case (People v. Burgos (Oct. 31, 2002, B153653) [nonpub. opn.] (Burgos I)) where the defendant, pointing to footnote 8 of Benson, contended that he received ineffective assistance of counsel because his trial lawyer had not asked the trial court to dismiss one of the strike allegations because it arose from the same act as the other.
The Burgos I court remanded for resentencing because the trial court erroneously imposed two five-year sentence enhancements under section 667, subdivision (a). It declined to reach the Benson issue because the defendant failed to establish prejudice from his lawyer's failure to raise it in the trial court. Recounting its decision in Burgos I, the Burgos court said that based on Benson's footnote 8 and the sentence that preceded that footnote, it had "pointed out that the Supreme Court in Benson had not stated that the refusal to strike a prior conviction on which the sentence had been stayed would necessarily constitute an abuse of discretion . . . ." (Italics added.) Accordingly it remanded " 'the matter for resentencing, at which time the trial court may consider whether, under the language in Benson cited above . . . it deems it appropriate to exercise its discretion under Romero . . . and section 1385 to strike one of the prior strikes.' " (Burgos, supra, 117 Cal.App.4th at p. 1213, quoting Burgos I, supra, B153653, slip opn. at p. 14.)
Based on this, it sounds to us like the Burgos court read Benson the same as we do - as holding that the circumstances of multiple convictions arising from the same act or course of conduct is a factor to consider when determining, and not dispositive of, motions to dismiss a strike allegation.*fn6
B. The Trial Court Did Not Abuse Its Discretion
Vargas contends that even if the trial court was not required by Benson and Burgos to dismiss one of the Three Strikes allegations, the trial court abused its discretion when it failed to do so. She bases this on her limited criminal history - the 1999 carjacking and robbery convictions that sprang from a single act where she did not perform an act of violence, her 2007 misdemeanor trespass conviction, and two parole violations.
As the trial court pointed out, Vargas was very active during the 1999 carjacking, making the initial contact with the victim, yelling at him to get out of his car, and threatening that she had a gun, although she never displayed one. Her companion did have a knife and pressed it to the victim's neck. Vargas was granted parole while serving her sentence for this crime, but violated parole twice. She was released from prison supervision in September 2006 and committed her trespass one year later. Sixteen months after that, she committed the current offenses.
As we pointed out in Vargas I when discussing Vargas's current offenses, she broke into one house and stole numerous items, including cash, jewelry, and personal electronics. She returned to the same neighborhood the next day prepared to burgle another house, thereby giving every indication that she was on her way to becoming a frequent residential burglar. Thus, she fell within the Three Strikes scheme, warranting a Three Strikes sentence. Although both strike convictions could have been imposed on all three of her current offenses for a sentence of 75 years to life, the trial court mitigated the effects of the Three Strikes law by dismissing both allegations as to two of the counts. We therefore hold that the failure to dismiss one of those allegations entirely was not an abuse of discretion.*fn7
5. Vargas's Sentence Was Not Unconstitutionally Cruel
Vargas contends that the Three Strikes sentence of 25 years to life she received on the burglary conviction was unconstitutional because it was cruel and unusual under the Eighth Amendment to the United States Constitution and cruel or unusual under Article I, section 17 of the California Constitution.*fn8
Under the Eighth Amendment, the courts examine whether a punishment is grossly disproportionate to the crime. We consider all the circumstances of the case, beginning with the gravity of the offense and the severity of the sentence. (Graham v. Florida (2010) ___ U.S. ___, 130 S.Ct. 2011, 2021, 2022.) In the rare case where this threshold comparison raises an inference of gross disproportionality, the court then compares the defendant's sentence with those received by others in both the same state and other states. If this comparative analysis confirms the initial belief that the sentence is grossly disproportionate, then it is cruel and unusual. (Id. at p. 2022.)
Under the California Constitution, a sentence is cruel or unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity. Our review under this test includes an examination of the nature of the crime and the character of the defendant, and the penalties in this state for more serious crimes and those imposed in other states for the same crime. (In re Lynch (1972) 8 Cal.3d 410, 424; People v. Haller (2009) 174 Cal.App.4th 1080, 1092.)
Vargas contends her Three Strikes sentence violated both the federal and California constitutions because: (1) she claims her previous criminal history was minimal and non-violent and her current offenses were also non-violent and showed no intent to harm; (2) the sentence is extremely severe when compared to the sentence imposed for other more serious crimes in California and for burglary when committed in other states; and (3) it is grossly disproportionate when compared to the sentences imposed by habitual offender statutes in other states. We disagree.
In Ewing v. California (2003) 538 U.S. 11, 20 (Ewing), the United States Supreme Court held that a Three Strikes sentence of 25 years to life was not grossly disproportionate for a defendant convicted of grand theft. The defendant's strike convictions were for three residential burglaries and a robbery. He was on parole at the time of the current offense, and had several other felony and misdemeanor convictions for theft, petty theft, unlawful firearm possession, and possession of drug paraphernalia. In the companion case of Lockyer v. Andrade (2003) 538 U.S. 63, 77, the court held that a Three Strikes sentence of 50 years to life for a defendant convicted of two counts of petty theft with a prior was not grossly disproportionate. Three convictions for residential burglary were charged as strikes. The defendant also had two misdemeanor theft convictions and a felony conviction for transporting marijuana.
The defendant in People v. Romero (2002) 99 Cal.App.4th 1418 was given a Three Strikes sentence after being convicted of felony petty theft with prior petty theft convictions for stealing a $3 magazine. In addition to the petty thefts, he had prior convictions for burglary, hit and run battery on, and obstruction of, a peace officer, and lewd conduct with a child under 14. He violated both probation and parole on the burglary conviction. Given that, the court held that no inference of gross disproportionality had been raised. (Id. at p. 1428.)
Although every case is obviously different, we conclude Vargas falls within the parameters established by these decisions. If Three Strikes sentences of 25 years to life for grand theft and 50 years to life for stealing a magazine are not grossly disproportionate under the Eighth Amendment, then neither is Vargas's sentence for residential burglary. The only distinguishing factor might be her criminal history, but it is sufficiently extensive to warrant the sentence imposed.
As noted above when discussing whether the trial court abused its discretion when declining to dismiss one of the strike allegations for the burglary sentence, Vargas has rarely been free of prison custody or supervision. She was convicted of carjacking and robbery in 1999 at the age of 20. She violated her parole twice, and appears to have been in prison or on parole supervision for those crimes until September 2006. One year later, she committed a misdemeanor trespass and was placed on probation for 36 months. Sixteen months later, while still on probation, she committed her current offenses: burglary, grand theft, conspiracy to commit theft, and giving false information to a police officer.
Although Vargas downplays her role in the 1999 carjack-robbery, she forgets that she was working in tandem with someone who held a knife to the victim's neck while she at least claimed to have a gun. As for her current offenses, residential burglary "is an extremely serious crime presenting a high degree of danger to society," because of the risk of violence it creates should the victims be at home and because it is an invasion of our most private space. (People v. Weaver (1984) 161 Cal.App.3d 119, 127.) Not only did Vargas commit one burglary and conspire to commit another, as we have pointed out before, it is reasonable to infer she was on a new criminal pathway and would commit even more burglaries in the future if unchecked. At the very least, it suggests that the present crimes were not an aberration for someone of otherwise good behavior. Based on all this, we hold that her sentence did not violate the Eighth Amendment.
The same analysis applies under the California Constitution. What we have just said above applies to an examination of the nature of the offense and the offender. As for a comparison with Vargas's punishment and that for more serious crimes in the same jurisdiction, that step is inapplicable to recidivist sentencing schemes like Three Strikes. (People v. Romero, supra, 99 Cal.App.4th at p. 1433.) As for the final prong, a comparison with recidivist sentencing provisions in other states, Vargas is correct that Three Strikes is one of the nation's most severe. However, the state constitution "does not require California to march in lockstep with other states in fashioning a penal code," and we are not required to adhere to some majority rule. Otherwise, California could not take the toughest stance against repeat offenders. (Ibid.)
The judgment is affirmed.*fn9
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United States District Court, Third Circuit
September 25, 2013
SANDI TUCKER, Plaintiff,v.UNITED PARCEL SERVICE, a corporation or business organization, UPS, : a corporation or business organization, : JOSEPH BUTKUS, JOHN DOE, said name being fictitious, RICHARD ROE, said name being fictitious, AETNA INSURANCE COMPANY, a corporation or business organization, METROPOLITAN LIFE INSURANCE: COMPANY, a corporation or business organization, Defendants.
DENNIS M. CAVANAUGH, District Judge.
This matter comes before the Court upon motion by Defendants United Parcel Service, Inc. ("UPS"), Joseph Butkus ("Butkus"), Aetna Life Insurance Company ("Aetna"), and Metropolitan Life Insurance Company ("MetLife"), (collectively "Defendants"), to dismiss the First and Fourth Counts of Plaintiff Sandi Tucker's ("Plaintiff') First Amended Complaint pursuant to FED. R. Civ. P. 12(b)(6). (Defs. Mot. to Dismiss, .Ian. 31, 2013, ECF No. 25). Pursuant to FED. R. Civ. P 78, no oral argument was heard. After considering the submissions of all parties, it is the decision of this Court, for the reasons herein expressed, that Defendants' Motion to Dismiss the First and Fourth Counts of the First Amended Complaint is granted.
Plaintiff Sandi Tucker is a former employee of UPS. On January 3, 2012, Plaintiff filed suit against Defendants UPS, Butkus, Aetna, and MetLife in the Superior Court of New Jersey, Law Division, Essex County. On February 20, 2012, Defendants removed the case to this Court, pursuant to 28 U.S.C. § 1446 on the basis of federal question jurisdiction. On March 9, 2012, Defendants filed a Motion to Dismiss the First Count of Plaintiffs complaint. (Defs.' Mot. to Dismiss, Mar. 9, 2012, ECF. No. 6). This Court granted Defendants' motion without prejudice on the grounds that Plaintiff had failed to assert facts demonstrating any plausible misconduct by Defendants. (Op., Oct. 26, 2012, ECF. No. 21). Plaintiffs were granted leave to file an amended complaint and cure the deficiencies pointed out by this Court in its Opinion filed October 26, 2012 (the "October 26 Opinion").
In the First Amended Complaint (the "Amended Complaint"), Plaintiff added facts to Count One as well as an additional Fourth Count. (Pl.'s Am. Compl., Dec. 19, 2013, ECF No. 24). In the First Count of the Amended Complaint, Plaintiff again alleges she was "subjected to a hostile, sexual environment, sexual harassment and sexual abuse and... intimidation, humiliation and adverse environment..." and that Defendants violated her "Federal and State Constitutional and Statutory Rights and [her] rights under the Law Against Discrimination." In the Second and Third Counts of the Amended Complaint, Plaintiff alleges that Defendants Aetna and MetLife, respectively, improperly denied her claims for benefits under employee welfare benefit plans that are promulgated under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq.. The Fourth Count alleges Defendants "had a duty to continue the implied employment contract of the plaintiff, and to provide protections of short term disability benefits and of long term disability benefits to the plaintiff, in good faith, without wrongful conduct and without violation of public policy." Plaintiff asserts such policy includes "Federal and State constitutional precepts, statutory law, reported case law, and relevant administrative regulations and decisions" including "the Federal Americans with Disabilities Act (ADA)" and the "Federal Civil Rights Act (Title VII)."
As to Count One, Defendants argue that the Amended Complaint contains the exact same deficiencies as Plaintiffs original Complaint, i.e. it does not plead any facts that would support a sexually hostile work environment claim. (Defs.' Br. 4, Jan. 31, 2013, ECF No. 25). Defendants argue that Count Four should be dismissed because Plaintiff has asserted no facts to support a common law claim for breach of an implied contract. Id. at 5. In addition, Defendants argue any such claim is preempted by ERISA and duplicative of Plaintiffs claims in Counts Two and Three. Id.
Plaintiff argues that the Amended Complaint is "lengthier and more elaborate with factual detail about Plaintiff's allegations" and successfully pushes her claims "across the line from conceivable to plausible." (Pl.'s Opp. Br. 7, Feb. 17, 2013, ECF No. 27) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). As to Count Four, Plaintiff asserts that the existence of a duty to continue an implied contract of employment is a fact that should be left tc a jury to decide. (Pl.'s Opp. Br. 8). Plaintiff also attaches a number of exhibits to her opposition brief which, as discussed in the October 26 Opinion, this Court will not consider, See Hart v. Elec. Arts, Inc. , 740 F.Supp.2d 658, 662 (D.N.J. 2010) ("A court may not consider matters extraneous to the pleadings without treating the motion as one for summary judgment and giving all parties reasonable opportunity to present materials pertinent to such a motion under Rule 56.")
In deciding a motion under Rule 12(b)(6), a district court is "required to accept as true all factual allegations in the complaint and draw all inferences in the facts alleged in the light most favorable to the [Plaintiff]." Phillips v. Cnty. of Allegheny , 515 F.3d 224, 228 (3d Cir. 2008). "[A] complaint attacked by a... motion to dismiss does not need detailed factual allegations." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). However, the Plaintiffs "obligation to provide the grounds' of his entitle[mentl to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id . (internal citations omitted). "[A court is] not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain , 478 U.S. 265, 286 (1986). Instead, assuming that the factual allegations in the complaint are true, those "Macula' allegations must be enough to raise a right to relief above a speculative level." Twombly , 550 U.S. at 555.
"A complaint will survive a motion to dismiss if it contains sufficient factual matter to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Twombly , 550 U.S. at 570). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for misconduct alleged." Id . "Determining whether the allegations in a complaint are plausible' is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Young v. Speziale , 2009 WL 3806296, *3 (0. N.J. Nov. 10, 2009) (quoting Iqbal , 556 U.S. at 679). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown'-that the pleader is entitled to relief." Iqbal , 556 U.S. at 679.
"To decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." Pension Benefit Guar. Corp. v. White Consol. Indus. , 998 F.2d. 1192, 1196 (3d. Cir. 1993). The complaint must show' an entitlement to relief with its facts. Steedley v. McBride, 2011 U.S. App. LEXIS 20302, at *4 (3d Cir. Oct. 4, 2011) (citing Fowler v. UPMC Shadyside , 578 F.3d 203, 2011 (3d Cir. 2009)). Factual allegations contained in a certification offered in defense of a motion to dismiss will not be considered in determining the sufficiency of Plaintiffs complaint. See Solutions Partners, Inc. v. Thomas, No. 09-cv-4778, 2010 U.S. Dist. LEXIS 50840, at *7, n.3 (D.N.J. May 21, 2010).
As explained by this Court in its October 26 Opinion, in a 12(b)(6) inquiry, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal 556 U.S. at 678; Fowler v. UPMC Shadyside , 578 F.3d 203, 210-11 (3d Cir.2009). In addition, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal , 556 U.S. at 678-679. Therefore, "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id . Ultimately, "a complaint must do more than allege the plaintiffs entitlement to relief. A complaint has to show' such an entitlement with its facts." Fowler , 578 F.3d at 211.
The Amended Complaint alleges that Plaintiff began working for UPS in 1999 (Am. Compl. 2, ¶ 2) and was assigned to report to Defendant Butkus as her Supervisor in January 2010. (Am. Compl. 3, ¶ 5). The Amended Complaint then makes a series of conclusory statements that Plaintiff was "subjected to a hostile sexual environment and sexual harassment and sexual abuse...intimidation, humiliation and adverse environment." (Am. Compl. 3, ¶ 6). These allegations are identical to those contained in the original Complaint. (See Compl. 2, ¶ 3).
Essentially, the only facts Plaintiff asserts to support her allegations are that (I) she is "Afro-American" and "female" (Am. Compl. 1, ¶ 1); (2) Butkus was a "massive" man and "tall enough to see over the subordinate employees' cubicles" (Id. at 2-3, ¶ 4); (3) she shared a desk with Butkus, who was her supervisor (Id. 3, ¶); (4) she requested reassignment away from Butkus (Id. at 4, ¶ 7), (5) there were "ongoing incidents and conduct" in her office building and "in the employee parking areas" (Id. at 4, ¶¶ 8); and (6) some unidentified "hostile sexual conduct" occurred at Plaintiff's mother's funeral and "through personal telephone calls and emails which reached plaintiff when she was away from her job." (Id. at 4-5, ¶ 8). These threadbare factual assertions are insufficient to support Plaintiff s conclusory allegations of sexual harassment and a hostile work environment None of these facts, even if true, support a plausible claim that plaintiff worked in a sexually hostile work environment as defined under the New Jersey La Against Discrimination ("NJLAD"), N.J. Stat. Ann. §10:5-1 et. seq. See Lehmann v. Toys R Us, Inc. , 132 N.J. 587, 603 (1993).
Plaintiff, in her Amended Complaint, has failed to cure the deficiencies articulated by this Court to he grounds for dismissal. Plaintiff has not described any acts performed by Butkus or other events that took place during her employment that would make her claims of sexual harassment and a hostile work environment plausible. Once again, the First Count of the Amended Complaint does not rise to the level of plausibility required under lqbal and therefore must be dismissed for failure to state a claim.
Count Four of the Amended Complaint appears primarily to be a claim for breach of an implied employment contract. Plaintiff also claims Defendants had a duty to provide Short Term and Long Term Disability benefits to Plaintiff in good faith and without violating public policy. (Am. Compl. 8, ¶ 3). Plaintiff asserts such public policy includes "Federal and State constitutional precepts, statutory law, reported case law, and relevant administrative decisions, including but not limited to: the Federal Americans with Disabilities Act (ADA); the Federal Civil Rights Act (Tile Vie..." (Am. Compl. 8-9, ¶ 7). To support these broad claims, Plaintiff repeats the allegations of the preceding counts and asserts that Defendants had actual and constructive notice of Plaintiff's age, disabling medical conditions and status as an "Afro-American" and "female." (Am. Compl. 7-8, ¶ 2).
Again, Plaintiff has failed to provide facts that would state a claim for relief that is plausible on its face. Plaintiff does not provide any facts identifying a specific implied employment contract (e.g. the existence of an employee handbook). See Theodossiou v. Commerce Bank, N.A., No. 06-4137, 2007 U.S. Dist. LEXIS 26029, *6 (D.N.J. Apr. 5, 2007) ("An employee handbook can alter an employee's at-will status by creating an implied contract between employer and employee." (citing Wooley v. Hoofmann-La Roche , 99 N.J. 284, 297-98 (1985)). Plaintiff also does not provide any facts explaining how said "implied contract" was allegedly violated.
As for Plaintiff's public policy claims, she does not provide any facts to explain precisely how Defendants violated public policy. Nor does she specify the nature of the public policy she asserts Defendants violated. See Bell v. K.A. Indus. Servs., LLC. , 567 F.Supp. 2d. 701, 709 n.12 (D.N.J. 2008) ("If an employee does not point to a clear expression of public policy the court can grant a motion to dismiss." (quoting Pierce v. Ortho Pharm. Corp. , 84 N.J. 58, 72 (1980)). Instead Plaintiff provides a broad list of categories of law, general laws and case names without explaining how they relate to her claim. Count Four is essentially a series of broad legal conclusions that merely allege Plaintiff is entitled to relief without demonstrating, through facts, that Plaintiff is entitled to such relief As such, Count Four of the Amended Complaint must also be dismissed.
For the foregoing reasons, Defendants' Motion to Dismiss the First and Fourth Counts of Plaintiffs First Amended Complaint is granted. An appropriate Order accompanies this Opinion.
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I dealt with classified manuals in the Army. Some of them had classified titles I couldn't see because I wasn't cleared that high.
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