Uchikura et al v. Clark County Properties LP et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Vladik Uchikura, et al.,
Plaintiffs,
v.
Clark County Properties LP, et al.,
Defendants.
No. CV-23-01399-PHX-DJH
ORDER
On August 1, 2025, Defendant Copper Point Apartments, LLC (“Defendant” or
“CPA”) filed a Motion to Dismiss All Claims asserted against it in Plaintiff’s Third
Amended Complaint (Doc. 68), challenging the sufficiency of the Third Amended
Complaint (“TAC”) under Rule 12(b)(1) and 12(b)(6). Plaintiffs Vladik Uchikura
(“Uchikura”) and Cindy Mateer (“Mateer”) (collectively, “Plaintiffs”) filed a Response in
Opposition. (Doc. 72).1 Thereafter, Defendant filed a Reply. (Doc. 73).
I. Background
Plaintiffs initially filed their Complaint on July 17, 2023. (See generally Doc. 1).
In the following years, Plaintiffs have amended their Complaint three times, leading to the
operative TAC. (Doc. 58-3). Despite their amendments, the factual allegations
1 Plaintiff’s Response to Defendant’s Motion was not timely filed. The Court is mindful
of Plaintiffs’ pro se status and, because of this, considered Plaintiffs’ Response in reaching
its decision. However, Plaintiffs are forewarned that deadlines in this case are taken
seriously. Healy v. Pena, 131 F.3d 146 (9th Cir. 1997) (“[P]ro se litigants must follow the
same rules of procedure that govern other litigants.”). Further late filings will not be
accepted. If an extension of time is needed, a motion requesting one must be filed with the
Court prior to the deadline.
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underpinning each Complaint have not materially changed. Most recently, Plaintiffs
sought and were granted leave to file their TAC in order to add CPA as a party to this case.
(See Docs. 42, 57). The originally-named Defendants Clark County Properties (“Clark
County”), Morrison Ekre & Bart Management Services, Inc. (“MEB”), and Vickie Koernig
(“Koernig”) are alleged to have either owned, managed, or worked at the subject property
during Plaintiffs’ residency from 2019 to 2021. (See id. at 1–2). CPA has been added to
the case at this late juncture because Plaintiffs allege that it purchased the subject property
from Defendant Clark County Properties on December 18, 2024. (See Doc. 58-3 at 1).
Though CPA purchased the property more than three years after Plaintiffs’ tenancy ended,
the TAC uses the term “Defendants” to refer collectively to Defendants Clark County,
Continental Apartments, GP,2 and CPA. (Id. at 1). With these points in mind, the Court
turns to the TAC’s factual allegations.
Plaintiffs’ case is premised, generally, on issues that occurred during Uchikura’s
and later Mateer’s tenancy at a property called CopperPoint Apartments. (See generally
Doc. 58-3). Plaintiffs assert that Uchikura entered into leases for the property in October
2019, October 2020, and July 2021, the last of which was also signed by Mateer. (Id. at
26, 48). Each lease was signed by either one or both Plaintiffs as well as Koernig, who
was a “representative” of either Clark County or MEB, though the TAC is not clear. (Id.
at 8, 48).
Plaintiffs allege that, throughout their tenancy, “Defendants” discriminated against
Uchikura based on his disability and failed to take reasonable steps to accommodate
Uchikura, impeding the use of his wheelchair around the property.” (Id. at 4–7, 12, 40).
Specifically, “the leasing office, laundry room, and ground floor apartment unit(s)” were
allegedly inaccessible to “people with physical disabilities utilizing wheelchairs. (Id.
at 40). Plaintiffs allege Koernig “did not offer any accommodation” to assist Uchikura in
entering the leasing office, “deliberately [excluded] Mr. Uchikura (and others with
disabilities) from community events,” and made “multiple attempts to evict…Plaintiffs.”
2 Continental Apartments was dismissed as a Defendant on June 4, 2025. (See Doc. 55).
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(Id. at 5, 12, 20).
Additionally, Plaintiffs allege various problems with other tenants, including
improper notice of power washing windows, nearly being struck by a tenant’s car in the
parking lot, and excessive noise from their upstairs tenants. (Id. at 21–22, 24, 26). They
assert that Koernig failed to respond to complaints and was “ineffectual” and “flagrantly
indifferent.” (Id. at 49). Further allegations state, in brief, that “Defendants” did not
provide notice of maintenance and generally engaged in harassing behavior. (See, e.g., id.
at 17–18, 24–28, 36–38). Plaintiffs allege that Defendants’ conduct has caused Uchikura
severe anxiety and emotional distress. (See, e.g., id. at 8–10, 17, 20, 53). Plaintiffs’
tenancy ultimately ended on September 20, 2021, when they were constructively evicted
due to the discovery of black mold in their apartment. (Id. at 29, 37–38). This alleged
conduct led Plaintiffs to file their initial Complaint in 2023. (Doc. 1).
As previously stated, Plaintiffs allege Defendants “Clark County Properties, LP.,
and Continental Apartments, GP., [] sold their respective shares of interest of ownership to
the newly added Defendant(s); Copper Point Apartments, LLC., back on December 18th,
2024.” (Doc. 58-3 at 1). CPA is thus being sued on purely successor liability grounds.
The exact claims Plaintiffs bring against Defendants are not clear. However, based
on the foregoing allegations, and construed in the light most favorable to Plaintiffs,
Plaintiffs have brought claims under the Fair Housing Act (“FHA”) and the Americans
with Disabilities Act (“ADA”) against all Defendants. (Id. at 39–47). Plaintiffs also
purport to bring state law claims against all Defendants “[u]nder all relevant Arizona laws
such as Arizonans with Disabilities Act (AzDA), Arizona Fair Housing Act (AFHA),
Arizona Contract Law, Arizona Material Affect on Health and Safety of Occupants, and
under Article 8 (Public Accommodations and Services) of Arizona’s Civil Rights Laws[.]”
(Id. at 50). Plaintiffs maintain that all Defendants are jointly and severally liable for all of
their claims. (Id. at 50–51).
II. Legal Standard
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim.
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Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). Complaints must make a short and
plain statement showing that the pleader is entitled to relief for its claims.
Fed. R. Civ. P. 8(a)(2). This standard does not require “‘detailed factual allegations,’ but
it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). There must be “more than a sheer possibility that a defendant has acted
unlawfully.” Id. A plaintiff must allege facts sufficient to “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. A complaint must “state a claim to relief
that is plausible on its face.” Id. at 570. “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.” Iqbal, 556 U.S. at 678. “Determining
whether a complaint states a plausible claim for relief will . . . be a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.”
Id. at 679.
Dismissal of a complaint for failure to state a claim may be based on either the “lack
of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable
legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). In
reviewing a motion to dismiss, courts will “accept factual allegations in the complaint as
true and construe the pleadings in the light most favorable to the nonmoving party.”
Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But
courts are not required “to accept as true a legal conclusion couched as a factual allegation.”
Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
III. Discussion
In December of 2024, Defendant purchased the subject property. (Doc. 68 at 2).
Following this development, Plaintiffs added Defendant as a party. Defendant now raises
several arguments in support of dismissing Plaintiffs’ claims against it. Primarily,
Defendant argues that Plaintiff has failed to allege circumstances that establish successor
liability against Defendant. (Doc. 68 at 6–7).
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Under Arizona law, “the general rule for successor liability is when a corporation
sells or transfers its principal assets to a successor corporation, the successor corporation
is not liable for the former corporation’s debts and liabilities.” Warne Investments, Ltd. v.
Higgins, 195 P.3d 645, 650 (Ariz. Ct. App. 2008). A successor corporation is only liable
if one of the following circumstances is present: (1) the successor corporation expressly or
impliedly agreed to assume the liabilities of the predecessor corporation; (2) the alleged
transactions between the two companies amounted to a consolidation or merger of the
corporations; (3) the successor corporation is a mere continuation or reincarnation of the
predecessor corporation; or (4) clear and convincing evidence shows that the transfer of
assets from the predecessor corporation to the successor corporation was for the fraudulent
purpose of escaping debt liability. Id.
The court in Stewart v. Bank of New York Mellon, for example, found a claim for
successor liability against a bank was insufficiently pled where a plaintiff merely asserted
that the successor bank exercised a “substantially similar degree of ownership and control”
over the property as its predecessor did. 2011 WL 3267321, *3 (D. Ariz. 2011). The court
concluded that
[t]his allegation, by itself, is insufficient to state a claim for successor liability
as to [the successor bank]. It completely fails to plead the existence of any
fact or facts sufficient to make plausible a relation between [the successor]
and [its predecessor] that would give rise to successor liability, or any other
basis upon which [the successor bank] would become liable for the actions
of [the predecessor bank].
Id. The court also noted that its conclusion was strengthened because the successor bank
“apparently did not claim any role with respect to this matter until 2009—three years after
the refinance [of the subject property] occurred.” Id.
Here, as in Stewart, Plaintiff fails to allege any of the scenarios that may plausibly
establish successor liability. Indeed, the TAC states only that Defendant purchased
CopperPoint Apartments on December 18, 2024, over three years after Plaintiffs’ tenancy
ended. (Doc. 58-3 at 1) (internal citation omitted). There is no other allegation in the TAC
that specifically identifies CPA, let alone allegations that plausibly state one of the above
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circumstances justifies its liability as a successor.
In their Response, Plaintiffs argue that “under established legal principles, liability
may be extended to a successor entity through doctrines of third-party liability and
inheritance of liability in the context of a business buyout or acquisition.” (Doc. 72 at 4).
And they state that “Defendants’ argument for dismissal fails to address the reality that
liability can persist and attach to the successor entity where appropriate, and thus the claims
against the named Defendants should not be dismissed on the basis of a mere change in
name or ownership.” (Id.) Plaintiffs say the purchase agreement between Defendant and
its successors may outline “what liabilities the successor company declines to purchase
from the target company.” (Id. at 5). Plaintiffs cite sample contract language from such
“common situations” and say “[u]nless there in definitive evidence showcasing such
information, then the newly added Defendant shall be collectively liable, responsible, and
accountable.” (Id. at 5–6).
“At the motion to dismiss stage, the Court must determine whether Plaintiffs’
allegations give rise to plausible claims of liability against Defendant.” Morgan v. Systems
and Software Enterprises LLC, 2015 WL 13283061, *4 (C.D. Cal. 2015). Put differently,
the complaint must allege sufficient factual allegations to give rise to any theory of liability
the plaintiff intends to pursue. It is Plaintiffs’ burden to plead sufficient facts to support
their theory of liability. Critically, Plaintiffs do not point to any allegations in the TAC
that establish successor liability. Plaintiffs do not allege in the TAC that CPA is related to
or affiliated in any way at all with the prior owners of the property, nor do they even allege
that CPA is a mere continuation of the prior owners. (See generally Doc. 58-3). Plaintiffs
also do not allege that they ever interacted with CPA, executed a lease with CPA, or have
returned to the property since CPA’s December 2024 purchase. (See generally id.). The
TAC, in fact, lacks any allegations of CPA’s specific conduct. (See generally id.). At
bottom, Plaintiffs assert claims against CPA solely based on events that happened years
before CPA’s ownership and in which CPA was in no way involved.
The TAC is clear that both Plaintiffs’ tenancy at the subject property ended in 2021.
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(Doc. 53-3 at 38). Defendant purchased the property in 2024. (See id. 58-3 at 1). Without
successor liability, Plaintiffs have not established a basis for holding Defendant
accountable for events that transpired years before its purchase of the property. Moreover,
the TAC is devoid of allegations establishing an ADA, FHA, or other statutory claim
against CPA, and Plaintiffs have not otherwise provided any provision of state or federal
law that allows Plaintiffs’ statutory claims to be brought against Defendant.3
Accordingly,
IT IS ORDERED that Defendant Copper Point Apartments LLC’s Motion to
Dismiss All Claims Asserted Against It (Doc. 68) is GRANTED. Defendant Copper Point
Apartments LLC shall be dismissed as a party to this case.
Dated this 2nd day of February, 2026.
Honorable Diane J. Humetewa
United States District Judge
3 Defendant’s request an award of attorney fees under A.R.S. § 12-341.01. (Doc. 68 at 16).
That provision allows a Court to award attorney fees to the successful party in any dispute
“arising out of” a contract dispute. A.R.S. § 12–341.01. Such an award is discretionary,
and, given Plaintiffs’ pro se status and the brief time Defendant spent as a party to this case,
the Court will not award attorney fees and costs.
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