Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gomez v. State

United States District Court, D. Arizona

May 23, 2017

Raymond P Gomez, et al., Plaintiffs,
State of Arizona, et al., Defendants.


          David G. Campbell United States District Judge.

         Defendants have filed a total of four motions to dismiss the two separate amended complaints pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Docs. 65, 66, 71, 73. The motions are fully briefed. Docs. 88, 89, 91, [1] 95, 97, 98, 100, 102, 103, 105. For the reasons discussed below, the Court will grant the motions. The requests for oral argument are denied because the issues have been fully briefed and oral argument will not aid the Court's decision. See Fed. R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

         I. Background.

         A. Maricopa County Superior Court Probate Action (PB2015-091767).

         Catalina Gomez stands at the factual heart of this case. In connection with an ongoing conservatorship/guardianship matter brought in Maricopa County Superior Court (PB2015-091767), Catalina was found incompetent. Doc. 60, ¶ 11. On July 6, 2016, Southwest Fiduciary (“SWF”) was appointed as Catalina's conservator, Brian J. Theut was appointed as her counsel, and Yvette Banker, of the Banker Law Office PLLC, was appointed as her guardian ad litem. Id., ¶¶ 12-13.

         In October 2016, SWF filed an initial inventory and appraisement regarding Catalina's property, and identified a commercial parcel located at 202 E. Broadway Road in Mesa, Arizona (the “Property”). Id., ¶ 14. SWF's inventory assessment estimated the value of the Property at about $290, 000, and also identified a deed of trust on the Property securing a $175, 000 loan made to Catalina in 2015. Id., ¶ 15.

         In March or April of 2016, the beneficiary of the deed of trust, Dafni LLC, recorded a notice of trustee's sale on the Property. Id., ¶ 17. On September 30, 2016, the trustee's sale occurred and Dafni purchased the Property with a credit bid of $179, 118.16. Id., ¶ 18. On October 4, 2016, the trustee executed a trustee's deed conveying the Property to Dafni. Id., ¶ 19. Plaintiffs allege that Defendants failed to take any action to avoid the trustee's sale. Id., ¶ 24.

         On October 27, 2016, Ms. Banker filed a motion for discharge as the guardian ad litem, and was subsequently discharged from her responsibilities. Id., ¶ 20. Plaintiffs allege that Ms. Banker, in her motion for discharge, asserted that SWF had evaluated the Property and determined there was no value in excess of encumbrances. Id., ¶ 21. Plaintiffs note that this assertion contradicts SWF's October 18, 2016 filing stating that the Property had more than $100, 000 in equity. Id., ¶ 23.

         B. Case History.

         On December 5, 2016, Raymond Gomez filed the initial complaint in this action, pro se, on behalf of himself and seven other Plaintiffs, including Catalina Gomez, Jesus Gomez, Tony Gomez, Maria Helena Gomez, Maria Consuelo Gomez, Maria Luz Cabaleiro [sic], and Felicia Rea Gomez. Doc. 1. After Defendants' counsel met and conferred with the Plaintiffs, Plaintiffs agreed to file an amended complaint. See, e.g., Doc. 71 at 2.

         On January 30, 2017, a pro-se amended complaint was filed on behalf of “Gomez ” and was signed by Raymond Gomez, Tony Gomez, Felicia Rea Gomez, Maria Luz Caballero, and Maria Gomez. Doc. 57 (“RG-Complaint”).[2] On February 1, 2017, a separate amended complaint was filed by counsel on behalf of Jesus Gomez, as guardian of Catalina Gomez. Doc. 60 (“CG-Complaint”).[3] Both amended complaints named multiple Defendants, including the State of Arizona, Governor Ducey, Terri Clarke, Gregory Dovico, Peggy Dovico, Southwest Fiduciary Incorporated, Brian J Theut, the law firm of Theut Theut & Theut PC, and Yvette Banker. Docs. 57, 60.

         The parties later stipulated to dismiss the State of Arizona, Governor Ducey, Terri Clarke, Gregory Dovico, Peggy Dovico, and Southwest Fiduciary, Inc. Docs. 84, 101. The remaining Defendants, Theut and Banker, now seek dismissal under Rules 12(b)(1) and 12(b)(6). Docs. 65, 66, 71, 73.

         II. Legal Standard.

         A. Subject-Matter Jurisdiction.

         Lack of subject-matter jurisdiction may be raised at any time by the parties or the Court. Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011). “A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When considering a facial attack, the Court takes the allegations in the plaintiff's complaint as true. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). The party invoking the Court's jurisdiction has the burden of establishing it. Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016).

         The Constitution limits the jurisdiction of the federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2. “No principle is more fundamental to the judiciary's proper role in our system of government.” Raines v. Byrd, 521 U.S. 811, 818 (1997) (citation omitted). In order to show that a case or controversy exists, a plaintiff must establish that he has standing to bring suit. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). A plaintiff has standing if he (1) “has suffered an ‘injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). “If a plaintiff lacks Article III standing to bring a suit, the federal court lacks subject matter jurisdiction and the suit must be dismissed under Rule 12(b)(1).” Dunn v. Haag, No. 16-CV-00792-JST, 2017 WL 818863, at *2 (N.D. Cal. Mar. 2, 2017).

         B. Failure to State a Claim.

         A successful motion to dismiss under Rule 12(b)(6) must show either that the complaint lacks a cognizable legal theory or fails to allege facts sufficient to support its theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A complaint that sets forth a cognizable legal theory will survive a motion to dismiss if it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id., 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556).

         III. RG-Complaint.

         The RG-Complaint generally asserts that Defendants have (1) violated the RG-Plaintiffs' constitutional rights protected by the First, Fifth, Thirteenth, and Fourteenth Amendments, and (2) violated several federal laws, including the Civil Rights Act of 1983, 1964, 1986, and the Americans with Disabilities Act. Doc. 57, ¶ 2. Defendants move to dismiss the RG-Complaint for failure to state a claim and lack of standing. Docs. 65, 66. The RG-Complaint asserts the following factual allegations against the Theut Defendants:

(1) Brian Theut had no contact with Raymond before an unspecified hearing, despite contacting other children of Catalina;
(2) Another attorney at Theut law firm promised Raymond that the law firm would keep in contact ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.