United States District Court, D. Hawaii
LEONARD G. HOROWITZ, an individual; SHERRI KANE, an individual; ROYAL BLOODLINE OF DAVID, a dissolved corporation sole, Plaintiffs,
STEWART TITLE GUARANTY COMPANY; FIRST AMERICAN TITLE CO., and DOES 1 through 50, Inclusive, Defendants.
GRANTING IN PART AND DENYING IN PART: (1) DEFENDANT FIRST
AMERICAN TITLE CO.'S MOTION TO DISMISS “MOTION TO
AMEND AS A MATTER OF COURSE [FRCP RULE 15(A)(1)(A)]; AMENDED
COMPLAINT FOR DAMAGES AGAINST ALL DEFENDANTS” [ECF NO
10] FILED ON JANUARY 4, 2017; AND (2) DEFENDANT STEWART TITLE
GUARANTY CO.'S MOTION TO DISMISS MOTION TO AMEND AS A
MATTER OF COURSE [FRCP RULE 15(A)(1)(A)]; AMENDED COMPLAINT
FOR DAMAGES, FILED JANUARY 4, 2017 [DKT. 10]
E. Kobayashi United States District Judge.
January 17, 2017, Defendant First American Title Co.
(“First American”) filed a Motion to Dismiss
“Motion to Amend as a Matter of Course [FRCP Rule
15(a)(1)(A)]; Amended Complaint for Damages Against all
Defendants” [ECF No 10] Filed on January 4, 2017
(“First American Motion”). [Dkt. no. 19.] On
January 20, 2017, Defendant Stewart Title Guaranty Co.
(“Stewart Title”) filed a Motion to Dismiss
Motion to Amend as a Matter of Course [FRCP Rule
15(a)(1)(A)]; Amended Complaint for Damages, Filed
January 4, 2017 [Dkt. 10] (“Stewart Title
Motion”). [Dkt. no. 23.] On February 27, 2017, pro se
Plaintiffs Leonard G. Horowitz (“Horowitz”),
Sherri Kane (“Kane” and collectively
“Plaintiffs”), and the Royal Bloodline of David
(“Royal”) filed a memorandum in opposition to
both motions. [Dkt. no. 29.] On March 6, 2017, Stewart Title
and First American each filed a reply. [Dkt. nos. 30, 31.]
The Court finds these matters suitable for disposition
without a hearing pursuant to Rule LR7.2(d) of the Local
Rules of Practice of the United States District Court for the
District of Hawai`i (“Local Rules”). In an
Entering Order filed on April 26, 2017 (“4/26/17
EO”), the Court granted the First American Motion and
the Stewart Title Motion, [dkt. no. 36, ] and the instant
Order supersedes the 4/26/17 EO. The First American Motion
and the Stewart Title Motion are granted in part and denied
in part for the reasons set forth below.
December 21, 2016, Plaintiffs and Royal filed their Verified
Complaint for Damages (“Complaint”). [Dkt. no.
1.] On January 4, 2017, Plaintiffs and Royal filed their
Motion to Amend as a Matter of Course [FRCP Rule 15(a)(1)(A)]
(“Motion to Amend”), and attached their Amended
Complaint for Damages (“Amended Complaint”).
[Dkt. no. 10.] Because Plaintiffs and Royal filed the Motion
to Amend and Amended Complaint within the time period
provided by Fed.R.Civ.P. 15(a)(1)(A), the magistrate judge
concluded that the Motion to Amend was not necessary and
construed the filing as only an Amended Complaint. [Dkt. no.
Amended Complaint is over seventy pages long, not including
exhibits, and includes a long series of purported facts and
other allegations, many of which are not relevant to the
instant motions. However, because Plaintiffs and Royal are
proceeding pro se, the Court must construe the Amended
Complaint, and any other pleadings, liberally. See
Bernhardt v. Los Angeles Cty., 339 F.3d 920,
925 (9th Cir. 2003) (“Courts have a duty to construe
pro se pleadings liberally, including pro se motions as well
as complaints.” (some citations omitted) (citing
Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir.
2001))). The Amended Complaint and the briefs all make
repeated reference to a number of documents. This Court has
As a general rule, this Court's scope of review in
considering a motion to dismiss is limited to the allegations
in the complaint. See Daniels-Hall v. Nat'l Educ.
Ass'n., 629 F.3d 992, 998 (9th Cir. 2010).
“[A] court may consider evidence on which the complaint
necessarily relies if: (1) the complaint refers to the
document; (2) the document is central to the plaintiff's
claim; and (3) no party questions the authenticity of the
copy attached to the [Fed. R. Civ. P.] 12(b)(6)
motion.” Id. (citations and internal quotation
marks omitted). In addition, the court may consider documents
attached to the complaint and matters that are subject to
judicial notice. Consideration of any other types of material
requires the court to convert the motion to a motion for
summary judgment. Hawaii Reg'l Council of
Carpenters v. Yoshimura, Civ. No. 16-00198 ACK-KSC, 2016
WL 4745169, at *2 (D. Hawai`i Sept. 12, 2016) (quoting
United States v. Ritchie, 342 F.3d 903, 908 (9th
Hays v. VDF Futureceuticals, Inc., CIVIL 15-00535
LEK-RLP, 2016 WL 5660395, at *4 (D. Hawai`i Sept. 28, 2016).
relevant facts in the instant matter are: Royal is a ministry
that “was formed in 2001 to advance its global
humanitarian mission.” [Amended Complaint at pg. 1.] On
January 15, 2004, Royal acquired a property in Pahoa, Hawai`i
(“the Property”) via Warranty Deed from C. Loran
Lee (“Lee”) and recorded the Warranty Deed with
the State of Hawai`i Bureau of Conveyances
(“BOC”). [Amended Complaint, Aff. of Leonard G.
Horowitz (“Horowitz Aff.”), Exh. 4 at 22-26
(Warranty Deed).. Royal financed part of the purchase of
the Property with a loan from Lee, and Royal signed a
Promissory Note for $350, 000 on January 15, 2004
(“Note”), and recorded a Mortgage in the BOC the
same day. [Id. at 27-28 (Promissory Note), 29-44
(Mortgage).] First American was the escrow agent for
Royal's purchase of the Property. [Amended Complaint at
pg. 2.] Stewart Title provided title insurance on the
Property, and issued the title insurance policy to Royal for
$550, 000 on January 23, 2004 (“the Policy”).
[Horowitz Aff., Exh. 1.]
of a judgment entered in a separate case, Royal was
instructed to make payments under the Note and Mortgage to
someone aside from Lee starting in 2004. [Stewart Title
Motion, Decl. of Jenny J.N.A. Nakamoto (“Nakamoto
Decl.”), Exh. 5 (Garnishment Order, dated 12/27/2004).]
On May 15, 2009, Lee assigned the Mortgage to himself as the
“Overseer of the Office of the Overseer, a Corporate
Sole and His Successor Over/For the Popular Assembly of
Revitalize, a Gospel of Believers” (“Gospel of
Believers” and “Assignment”). [Horowitz
Aff., Exh. 30.] Lee died on June 29, 2009, and Jason Hester
(“Hester”), as his successor, became the Overseer
of the Gospel of Believers (“Overseer”).
See First American Motion, Decl. of Summer H. Kaiawe
(“Kaiawe Decl.”), Exh. C (Quitclaim Deed, dated
May 3, 2010 (“5/3/10 Quitclaim Deed”)) at 2;
see also Amended Complaint at pg. 16. On April 2,
2010, Hester, as Overseer, initiated non-judicial foreclosure
proceedings by filing the Mortagee's Affidavit of
Foreclosure under Power of Sale with the BOC. [Kaiawe Decl.,
Exh. B.] On April 20, 2010, the Overseer held a sale by
public auction, and the Overseer purchased the Property for
$175, 000 and conveyed the Property via a Quitclaim Deed.
See 5/3/10 Quitclaim Deed; see also Amended
Complaint at pg. 17. On June 9, 2011, the Overseer conveyed
the Property to Hester via Quitclaim Deed (“6/9/11
Quitclaim Deed”). [Kaiawe Decl., Exh. D (6/9/11
Quitclaim Deed); Amended Complaint at pg. 17.] Finally, on
June 28, 2012, Royal conveyed the Property to Plaintiffs via
Quitclaim Deed (“6/28/12 Quitclaim Deed”).
[Horowitz Aff., Exh. 6.]
and Royal allege that First American and Stewart Title
“have withdrawn unreasonably, and neglected their
duties, ” and “seek compensation for damages of
more than $6 million stemming from protracted litigation and
the Property's wrongful conversion by Lee's virtual
representative, attorney Sulla, aided-and-abetted by the
Defendants alleged negligence and willful blindness.”
[Amended Complaint at pg. 4.] To that end, Plaintiffs and
Royal bring claims for: negligence (“Count I”);
[id. at pg. 20-26;] gross negligence (“Count
II”); [id. at pg. 27-28;] bad faith
(“Count III”); [id. at pg. 29-36;] fraud
(“Count IV”); [id. at pg. 37-49;] unfair
and deceptive trade practices, in violation of Haw. Rev.
Stat. § 480-2 and Haw. Rev. Stat. § 481-3(a)(7)
(“Count V”); [id. at pg. 50-52;]
negligent infliction of emotional distress (“Count
VI”); [id. at pg. 52-53;] violation of the
Bank Holding Company Act, 12 U.S.C. § 1972(1)
(“Count VII”); [id. at pg. 53-55;]
tortious interference with prospective business advantage
(“Count VIII”); [id. at pg. 55-59;]
breach of fiduciary duty (“Count IX”);
[id. at pg. 59-60;] civil conspiracy (“Count
X”); [id. at 61-62;] and violation of the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.
§ 1962 (“Count XI”) [id. at pg.
Horowitz and Kane's Representation of
and Kane bring the instant action pro se, and purport to also
represent Royal. [Id. at pg. 1.] Local Rule 83.11
states: “Business entities, including but not limited
to corporations, partnerships, limited liability
partnerships, limited liability corporations, and community
associations, cannot appear before this court pro se
and must be represented by an attorney.” This district
court has noted that “[t]his Rule implements
established law.” Quality Prof'l Indus., Inc.
v. Sun Power, CIV. NO. 15-00080 JMS-BMK, 2015 WL
12838142, at *1 (D. Hawai`i Mar. 19, 2015) (citing
Rowland v. Cal. Men's Colony, 506 U.S. 194,
201-02 (1993) (“It has been the law for the better part
of two centuries . . . that a corporation may appear in the
federal courts only through ...