Acevedo vs. Veterans Educating Veterans LLC

Defendants Veterans Educating Veterans, LLC and Robert Pinero’s Motion or Judgment on the Pleadings is DENIED.

Defendants’ request for judicial notice (ROA 90) The Court GRANTS Defendants’ request for judicial notice. (Cal. Evid. Code, § 452, subds. (a) and (c).)

Legal standard “The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.” (Bezirdjian v. O’Reilly (2010) 183 Cal.App.4th 316, 321 [citation omitted].)

Defendants contend Plaintiff’s claims are preempted by federal law. 22

Analysis Defendants contend Plaintiff’s claims are expressly preempted by federal law as the VA has exclusive jurisdiction over claims for veterans’ benefits pursuant to Title 38 of the United States Code.

38 U.S.C. § 511(a) provides the Secretary of Veteran’s Affairs “shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans.” “‘Benefit’ means any payment, service, commodity, function, or status, entitlement to which is determined under laws administered by the Department of Veterans Affairs pertaining to veterans and their dependents and survivors.” (38 C.F.R., § 20, subd. (e).)

In support of its motion, Defendants rely on various authorities to contend Plaintiff’s claims are preempted. These cases are inapposite, however, as they all involve direct challenges to, or put at issue, benefits administered by the VA.

For example, Hicks v. Small (1993 D. Nev.) 842 F.Supp.407, 414, involved a challenge to a reduction in the plaintiff’s VA benefits, which the court found would “involve judicial review of a decision of the Secretary of the Department of Veterans Affairs regarding Plaintiff’s benefits as a veteran.”

Similarly, in White v. Wright (N.D. Cal. 2018) 284 F. Supp.3d 998, 1000 1004, the plaintiff filed a complaint alleging the VA wrongfully offset her retirement payments to pay for a debt she asserted she was not responsible for and therefore was “essentially challenging the actions of the VA in supervising her use of her brother’s benefits when acting as his fiduciary.”

Here, Plaintiff’s allegations relate solely to Defendants’ business practices. (See, e.g., Compl. ¶¶ 59-60.) Plaintiff is not challenging any actions of the VA nor would proceeding in this action involve judicial review of a decision of the VA regarding Plaintiff’s benefits as a veteran. 23

Defendants’ contentions as to field preemption and conflict preemption fail for the same reasons.

Defendants contend “Congress has fully occupied the field of veterans’ benefits, including consulting contracts and fees, with Title 38 of the U.S. Code,” including issues of the accreditation of representatives, regulation of fee agreements, and enforcement of enforcement violations by the VA’s Office of General Counsel.” (Mtn. at p. 8:12-17.)

Defendant does not demonstrate, however, Congress’ occupation of Plaintiff’s state law contract claims or claim under California Unfair Competition Law. Plaintiff is not alleging, for example, Defendants failed to properly maintain their accreditation with the VA or should have had their accreditation suspended.

Nor have Defendants demonstrated their alleged misconduct would fall under the purview of the VA’s Office of General Counsel which may suspend or terminate accreditation of accredited representatives on certain grounds and following certain procedures. (38 C.F.R. § 14.633.)

Finally, Defendants contend Plaintiff’s state law contract claim is preempted as it “interferes with the VA’s administration of benefits or creates conflicting outcomes or remedies.” (Mtn. at 9:1-4.)

As discussed above, none of Plaintiff’s claims relating to its private contract with VEV involve any decision regarding the VA’s administration of benefits. Nor does Plaintiff allege Defendants were acting pursuant to a contract with the VA under which it provided the services at issue.