1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 STEPHEN GRAY, et al., Case No. 25-cv-07307-BLF

8 Plaintiffs, ORDER GRANTING MOTION TO 9 v. DISMISS

10 WARREN VERBANEC, et al., [Re: ECF No. 6] 11 Defendants.

12 13 Before the Court is Defendant Warren Verbanec’s motion to dismiss pro se Plaintiffs 14 Stephen and Mikyong “Gina” Grays’ complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the 15 Federal Rules of Civil Procedure. ECF No. 6 (“Mot.”).1 Plaintiffs filed a brief in opposition. 16 ECF No. 13 (“Opp.”). The Court finds that the motion is suitable for adjudication without oral 17 argument and VACATES the hearing set for January 15, 2026. See Civ. L.R. 7-1(b). For the 18 reasons that follow, the motion is GRANTED. 19 I. BACKGROUND 20 This case arises out of an alleged conspiracy to deprive Ms. Gray “of her civil rights and 21 her right to live free of harassment based on race, color, sex, national origin[,] and age.” ECF 22 No. 1 (“Compl.”) at 4. In an incomplete form complaint, Plaintiffs allege that the Sunset Ridge 23 Road Association, a “HOA [Homeowners’ Association] (Road Association)” in Santa Cruz 24 County, California, “perpetrated” “abuses.” Id. The events giving rise to the claim have been 25

26 1 The motion does not comply with the Court’s standing orders because it contains single-spaced block quotations. See Standing Order re Civil Cases § IV.E. The Court will accept this 27 nonconforming submission because the Motion to Dismiss was filed before the case was assigned 1 ongoing for the last eleven years in Los Gatos, California. Id. Plaintiffs allege the stress caused 2 by the “continuous harassment” of Ms. Gray has led to her suffering from several physical and 3 mental health conditions. See id. at 5. Plaintiffs have also separately submitted a set of exhibits, 4 which they contend “include photographic evidence, documentation, and supporting materials 5 demonstrating the ongoing harassment, racial discrimination, intimidation, and financial 6 exploitation.” ECF No. 3 at 1. Plaintiffs seek medical expenses and punitive damages. Compl. 7 at 5. 8 Plaintiffs describe the alleged “abuses” under the portion of the form complaint explaining 9 that

authorizes suits only against defendants who have acted under color of state 10 law. Compl. at 4. The Court construes the complaint as alleging a § 1983 claim based on 11 violations of the Fair Housing Act, because Plaintiffs also cite

, 1982, 3601– 12 3619, and 1985(3). See

The Court observes that the factual allegations relate only to 13 Ms. Gray—there are no factual allegations concerning Mr. Gray. Accordingly, the Court further 14 construes the complaint as bringing a single cause of action under § 1983, only as to Ms. Gray. 15 II. LEGAL STANDARD 16 A. Rule 12(b)(1) 17 “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of 18 Am.,

(1994). They may only adjudicate those cases that the Constitution and 19 Congress authorize, such as those involving diversity of citizenship or a federal question, or to 20 which the United States is a party. Arbaugh v. Y&H Corp.,

(2006); see also 21 Kelly v. Wengler,

(9th Cir. 2016). The plaintiff bears the burden of 22 establishing subject-matter jurisdiction, Kokkonen,

, and a defendant may 23 challenge a plaintiff’s assertion of subject matter jurisdiction by motion pursuant to Rule 12(b)(1) 24 of the Federal Rules of Civil Procedure. A facial jurisdictional challenge, as advanced here, 25 asserts that even if assumed true, “the allegations contained in a complaint are insufficient on their 26 face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer,

(9th Cir. 27 2004). B. Rule 12(b)(6) 1 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 2 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation 3 Force v. Salazar,

, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block,

(9th Cir. 2001)). While a complaint need not contain detailed factual allegations, it 5 “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 6 on its face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly, 7

(2007)). A claim is facially plausible when it “allows the court to draw the 8 reasonable inference that the defendant is liable for the misconduct alleged.”

9 Where a plaintiff proceeds pro se, the court “must ‘construe the pleadings liberally’” and 10 afford the plaintiff “the benefit of any doubt.” Boquist v. Courtney,

, 774 (9th Cir. 11 2022) (quoting Hebbe v. Pliler,

(9th Cir. 2010)). “A liberal construction of a 12 pro se complaint, however, does not mean that the court will supply essential elements of a claim 13 that are absent from the complaint.”

14 C. Leave to Amend 15 In deciding whether to grant leave to amend, the Court considers the factors set forth by 16 the Supreme Court in Foman v. Davis,

(1962), and discussed at length by the Ninth 17 Circuit in Eminence Capital, LLC v. Aspeon, Inc.,

(9th Cir. 2003). The Ninth 18 Circuit in Eminence Capital identified several factors to consider, including (1) undue delay, 19 (2) bad faith or dilatory motive, (3) repeated failure to cure deficiencies by amendment, (4) undue 20 prejudice to the opposing party, or (5) futility of amendment.

. 21 III. DISCUSSION 22 Mr. Verbanec moves for dismissal. First, he argues that the complaint does not plausibly 23 allege a basis for federal question jurisdiction because it does not explain how he acted under color 24 of law. Mot. at 5–8. Second, he contends that Plaintiffs have failed to state a claim. 25 Mr. Verbanec also indicates at the beginning of his motion that he moves to dismiss under 26 Rule 12(b)(4) of the Federal Rules of Civil Procedure on the ground that Plaintiffs did not obtain 27 or serve summons. Other than this statement, however, Mr. Verbanec does not provide any 1 argument on this issue, so the Court need not consider it.2 In opposition, Plaintiffs urge that the 2 Court has subject matter jurisdiction and that the complaint alleges sufficient facts to state a claim. 3 Opp. at 7–8. 4 Mr. Verbanec argues that nothing in the complaint “identifies any fact[] or theory about 5 how a local private road homeowners association” gives rise to a plausible inference of the 6 defendants having acted under color of state law. Mot. at 7. He argues that, as a consequence, the 7 complaint does not identify any basis for federal jurisdiction.

at 5–8. Plaintiffs urge that 8 “jurisdiction is clear,” including because Defendants acted “jointly with local associations and 9 attorneys.” Opp. at 7. 10 In section III of his brief, Mr. Verbanec states that no federal jurisdiction exists or is 11 alleged in the complaint because Plaintiffs have not alleged facts sufficient to show that 12 Mr. Verbanec acted under color of state law. Mot. at 5. In fact, Mr. Verbanec seems to be arguing 13 that Plaintiffs have not adequately alleged an essential element of their claim. See

at 5–8. 14 Accordingly, the Court construes Mr. Verbanec’s brief as arguing that Plaintiffs have failed to 15 state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. 16 To state a claim, a § 1983 plaintiff must allege facts sufficient to show (1) a person 17 deprived him of a federal right; and (2) that the person depriving him of that right acted under 18 color of state law. Gomez v. Toledo,

(1980). A defendant has acted under color 19 of state law where he has “exercised power ‘possessed by virtue of state law and made possible 20 only because the wrongdoer is clothed with the authority of state law.’” West v. Atkins,

42, 49 (1988) (quoting United States v. Classic,

(1941)). Typically, private 22 parties are not acting under color of state law. Price v. Hawaii,

, 707–08 (9th Cir. 23 1991). 24 Here, Plaintiffs have not alleged any facts explaining how Mr. Verbanec was acting under 25

26 2 Throughout the motion, Mr. Verbanec also argues that this lawsuit should be dismissed because it was brought with the purpose of delaying ongoing state court cases. See, e.g., Mot. at 7–8 27 (“Plaintiff should not be allowed to delay the state court cases by removing and refiling federal 1 color of state law. Indeed, Plaintiffs allege that the “Sunset Ridge Road Association,” a private 2 HOA, is responsible for the conduct. Compl. at 4. A private HOA is not a governmental entity, 3 nor is it “the functional equivalent of a municipality or a purported ‘quasi-governmental entity.’” 4 Kulick v. Leisure Village Ass’n, No. 19-cv-07630-E,

, at 2 (C.D. Cal. Oct. 2, 5 2019) (collecting cases). Plaintiffs’ argument that “private individuals, attorneys, and county- 6 affiliated actors acted in concert under the color of law,” Opp. at 6, is belied by the complaint, 7 which alleges no facts sufficient to support this inference. Accordingly, the Court finds that there 8 are no facts in the complaint demonstrating that Mr. Verbanec (or any other defendant) acted 9 under color of state law. 10 Even if Plaintiffs had alleged facts showing that Mr. Verbanec was acting under color of 11 state law, the Court agrees with Mr. Verbanec that “the Grays fail to state a single act that any of 12 the defendants (including Verbanec) did that violated their civil rights.” Mot. at 8. The complaint 13 is devoid of any plausible, specific factual allegations to support the conclusory claims of 14 conspiracy and discrimination. 15 In sum, the complaint does not allege sufficient facts to state a claim. No factual 16 allegations demonstrate that Mr. Verbanec was a state actor and was acting under color of state 17 law. Other allegations in the complaint show that the HOA is private, so amendment would be 18 futile. Accordingly, the complaint is DISMISSED as to Mr. Verbanec WITH PREJUDICE. 19 *** 20 Finally, the Court notes that Plaintiffs submitted roughly forty pages of exhibits “in 21 support of” the complaint. ECF No. 3. These exhibits are unincorporated by reference and 22 unexplained by any allegations in the complaint itself. Although the Court is mindful of its duty 23 to liberally construe pro se complaints, the Court will not sift through attached exhibits to 24 determine whether a claim may be stated based on attached material where the pleading itself does 25 not state a claim. See, e.g., Stewart v. Nevada, No. 09-cv-01063-PMP-GWF,

, 26 at *2 (D. Nev. Feb. 9, 2011).

27 IV. ORDER For the foregoing reasons, IT IS HEREBY ORDERED that the complaint as to 2 Mr. Verbanec is DISMISSED WITH PREJUDICE. 3 4 Dated: December 5, 2025

6 TH LABSON FREEMAN 5 United States District Judge 8 9 10 11 12

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