AE v. County of Tulare et al

Filing 117

ORDER on Defendant Ceballos' F.R.CivP. 12 Motions to Dismiss, signed by District Judge Lawrence J. O'Neill on 6/2/2011. This court DISMISSES with leave to amend the claims against Ms. Ceballos; ORDERS AE, no later than June 17, 2011, to file either a fifth amended complaint or papers to voluntarily dismiss Ms. Ceballos. (Marrujo, C)

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1 2 3 4 5 6 7 8 9 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE EASTERN DISTRICT OF CALIFORNIA 12 13 AE, a minor, by and through his Guardian ad Litem, MARIBEL HERNANDEZ, CASE NO. CV F 09-2204 LJO DLB 14 ORDER ON DEFENDANT CEBALLOS’ F.R.Civ.P. 12 MOTIONS TO DISMISS Plaintiff, 15 vs. 16 YADIRA PORTILLO, et al., 17 Defendants. 18 / 19 INTRODUCTION 20 Defendant Sandra Ceballos (“Ms. Ceballos”) seeks to dismiss minor plaintiff AE’s (“AE’s”) 21 defamation/slander, negligence and punitive damages claims as insufficiently pled. AE responds that 22 his claims against Ms. Ceballos satisfy necessary elements. This Court considered Ms. Ceballos’ 23 F.R.Civ.P. 12(b)(6) motion to dismiss1 on the record and VACATES the June 14, 2011 hearing, pursuant 24 to Local Rule 230(g). For the reasons discussed below, this Court DISMISSES AE’s claims against Ms. 25 Ceballos. 26 1 27 28 Ms. Ceballos seeks to strike AE’s punitive damages claims under F.R.Civ.P. 12(f). However, this Court will address AE’s punitive damages claims under F.R.Civ.P. 12(b)(6) standards given the recent decision of Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 971 (9th Cir. 2010) (“W e therefore hold that Rule 12(f) does not authorize district courts to strike claims for damages on the ground that such claims are precluded as a matter of law.”) 1 1 BACKGROUND2 2 Summary 3 The FAC alleges claims arising out of AE’s foster care during which he was allegedly sexually 4 assaulted and abused by an older foster brother during late 2008. Ms. Ceballos had been AE’s foster 5 parent and allegedly made false statements that AE lied about the sexual assault and was the aggressor. 6 In addition to the claims against Ms. Ceballos, the FAC alleges deliberate indifference and negligence 7 claims against Tulare County (“County”) social workers, AE’s therapist, and the therapist’s employer.3 8 AE’s Foster Care 9 The County took “legal and physical custody and control” of AE from his mother and guardian 10 ad litem Maribel Hernandez (“Ms. Hernandez”). Defendants had “exclusive legal custody and control” 11 of AE and “a special relationship . . . to protect AE.” AE was transferred to Ms. Ceballos’ foster care 12 during an unidentified time period. 13 AE, then age 9, resided in a foster home with a then 17-year-old boy (“older boy”). Apparently 14 in early November 2009, AE had witnessed the older boy steal money from an unidentified foster parent 15 (“foster parent”) and advised the foster parent of the theft. As a result, the older boy “socked” AE in the 16 face and threatened AE, who suffered a 3½ by 5-inch bruise on his left shoulder. The foster parent 17 informed defendant social workers that on November 4, 2008 the older boy took too long in the shower, 18 the foster parent wiggled door, and the older boy cursed her because he believed AE wiggled the door. 19 On November 20, 2008, Ms. Hernandez stated to a defendant social worker that AE did not want 20 to talk to Ms. Hernandez “about what was really going on in the foster placement.” Ms. Hernandez 21 requested AE’s transfer to another foster placement. 22 On an unidentified date after November 25, 2008, AE informed defendant social workers that 23 the older boy “would unlock the bathroom door using his nail and threaten to ‘kick [AE’s] ass.’” AE 24 informed the defendant social workers that “his foster parent was aware of this because he had talked 25 26 27 2 The factual recitation is derived generally from AE’s Fourth Amended Complaint (“FAC”), the target of Ms. Ceballos’ challenges. The FAC is the first pleading to which Ms. Ceballos has responded. 3 28 The FAC makes multiple references to undefined “Defendants.” This Court presumes such reference is to all defendants identified in the FAC. 2 1 to the older boy” and the foster parent’s remedy “was to instruct Plaintiff to use the bathroom 2 downstairs.” Defendants refused to allow AE to speak with Ms. Hernandez by telephone, and AE 3 declined an offer to write Ms. Hernandez letters because he believed his “foster parents” would review 4 the letters. 5 At an unidentified date after November 26, 2008, AE’s defendant therapist stated that “he felt 6 there was a need to place more responsibility on the foster mother in supervising the actions of the 7 children in the home” and that the therapist “did not believe Plaintiff had been making allegations to 8 seek attention, but was instead minimizing the behavior of the alleged perpetrator, the 17 year old boy.” 9 On December 5 or 6, 2008, the older boy “assaulted, battered, and sexually abused” AE. The 10 older boy threatened and ordered AE “not to report the assault, battery and sexual abuse” and out of fear, 11 AE did not do so until December 12 and 15, 2008. 12 13 Defendants had failed and refused to remove AE from the foster home and to take “necessary remedial and protective action.” 14 15 16 17 18 19 Claims Against Ms. Ceballos The FAC alleges a negligence claim against “all defendants” that they acted “unreasonably and below the applicable standard of care” to proximately cause AE’s injuries and damages. The FAC alleges against Ms. Ceballos and defendant Alejandro Puentes (“Mr. Puentes”), another foster parent, a defamation/slander claim that: 1. On February 24, 2009, “Non-Defendant Celeste Abarca met with Plaintiff’s new foster 20 parent, who informed said Defendant4 that Plaintiff stated he was afraid of his former 21 foster mother, and pointed her out at school”; and 22 2. When AE’s “new foster parent” waited at school, Ms. Ceballos and/or Mr. Puentes 23 “approached her and stated”: 24 a. AE “lied about the sexual assault”; 25 b. AE “did things” to the older boy; 26 c. “[S]he was concerned about the well being of the older, 17 year old boy”; 27 4 28 This Court presumes that use of “said Defendant” is in error and refers to “Non-Defendant Celeste Abarca.” 3 1 3. 2 3 The “lied about the sexual assault” and “did things” statements “were slanderous per se,” “cause[d] damage to Plaintiff’s reputation,” and “were false”; and 4. Ms. Ceballos and/or Mr. Puentes “knew, or reasonably should have known” that the “lied 4 about the sexual assault” and “did things” statements were false and made “with malice 5 and with the intent to harm and injure” AE. 6 The complaint seeks to recover for AE’s “physical, sexual, mental, and emotional injuries, 7 medical and counseling expenses,” “lost earning capacity,” “loss of reputation” as well as punitive 8 damages. 9 DISCUSSION 10 F.R.Civ.P. 12(b)(6) Motion To Dismiss Standards 11 12 Ms. Ceballos faults the FAC’s absence of facts to support defamation/slander, negligence and punitive damages claims. 13 “When a federal court reviews the sufficiency of a complaint, before the reception of any 14 evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether 15 a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the 16 claims.” Scheurer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974); Gilligan v. Jamco Development 17 Corp., 108 F.3d 246, 249 (9th Cir. 1997). A F.R.Civ.P. 12(b)(6) dismissal is proper where there is either 18 a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal 19 theory.” Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990); Graehling v. Village of 20 Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995). A F.R.Civ.P. 12(b)(6) motion “tests the legal sufficiency 21 of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 22 In addressing dismissal, a court must: (1) construe the complaint in the light most favorable to 23 the plaintiff; (2) accept all well-pleaded factual allegations as true; and (3) determine whether plaintiff 24 can prove any set of facts to support a claim that would merit relief. Cahill v. Liberty Mut. Ins. Co., 80 25 F.3d 336, 337-338 (9th Cir. 1996). Nonetheless, a court is not required “to accept as true allegations that 26 are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead 27 Sciences Securities Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted). A court “need not 28 assume the truth of legal conclusions cast in the form of factual allegations,” U.S. ex rel. Chunie v. 4 1 Ringrose, 788 F.2d 638, 643, n. 2 (9th Cir.1986), and must not “assume that the [plaintiff] can prove 2 facts that it has not alleged or that the defendants have violated . . . laws in ways that have not been 3 alleged.” Associated General Contractors of California, Inc. v. California State Council of Carpenters, 4 459 U.S. 519, 526, 103 S.Ct. 897 (1983). A court need not permit an attempt to amend if “it is clear that 5 the complaint could not be saved by an amendment.” Livid Holdings Ltd. v. Salomon Smith Barney, 6 Inc., 416 F.3d 940, 946 (9th Cir. 2005). 7 A “plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than 8 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell 9 Atl. Corp. v. Twombly, 550 U.S. 554,127 S. Ct. 1955, 1964-65 (2007) (internal citations omitted). 10 Moreover, a court “will dismiss any claim that, even when construed in the light most favorable to 11 plaintiff, fails to plead sufficiently all required elements of a cause of action.” Student Loan Marketing 12 Ass'n v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998). In practice, “a complaint . . . must contain either 13 direct or inferential allegations respecting all the material elements necessary to sustain recovery under 14 some viable legal theory.” Twombly, 550 U.S. at 562, 127 S.Ct. at 1969 (quoting Car Carriers, Inc. v. 15 Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). 16 17 18 19 20 In Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937,1949 (2009), the U.S. Supreme Court recently explained: . . . a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” . . . 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. . . . 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. (Citations omitted.) 21 22 After discussing Iqbal, the Ninth Circuit Court of Appeals summarized: “In sum, for a complaint 23 to survive [dismissal], the non-conclusory ‘factual content,’ and reasonable inferences from that content, 24 must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 25 F.3d 962, 989 (9th Cir. 2009) (quoting Iqbal, __ U.S. __, 129 S.Ct. at 1949). 26 The U.S. Supreme Court applies a “two-prong approach” to address dismissal: 27 First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . Second, 28 5 1 only a complaint that states a plausible claim for relief survives a motion to dismiss. . . . 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. . . . But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not “show[n]”-“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2). 2 3 4 In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. 5 6 7 8 Iqbal, __ U.S. __, 129 S.Ct. at 1949-1950. 9 With these standards in mind, this Court turns to Ms. Ceballos’ challenges to the FAC’s claims. 10 Defamation/Slander 11 Ms. Ceballos contends that the defamation/slander claim fails to “specifically” attribute to her 12 an actionable statement and attributes to her statements which are vague, ambiguous, innocent on their 13 face and non-slanderous.” AE responds that the alleged slanderous statements are “clear statements of 14 fact.” 15 “The tort of defamation involves (a) a publication that is (b) false, (c) defamatory, and (d) 16 unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” Taus v. Loftus, 17 40 Cal.4th 683, 720, 151 P.3d 1185 (2007) (internal quotation omitted). 18 Ms. Ceballos challenges the FAC’s lumping her with Mr. Puentes as the makers of allegedly 19 defamatory statements. A plaintiff “must allege the basis of his claim against each defendant to satisfy 20 Federal Rule of Civil Procedure 8(a)(2), which requires a short and plain statement of the claim to put 21 defendants on sufficient notice of the allegations against them.” Gauvin v. Trombatore, 682 F.Supp. 22 1067, 1071 (N.D. Cal. 1988); see Arikat v. JP Morgan Chase & Co., 430 F.Supp.2d 1013, 1020 23 (plaintiffs' defamation allegations “are insufficient in that they are ascribed to defendants collectively 24 rather than to individual defendants”). 25 Ms. Ceballos argues that her alleged statements are not defamatory in that they are ambiguous 26 “statements of opinion or innocent on their face and insufficient to constitute slander.” Ms. Ceballos 27 points to the absence of facts to indicate “extrinsic circumstances or that the words had a particular 28 meaning, or ‘innuendo,’ which makes them defamatory.” When offending language is susceptible of 6 1 an innocent interpretation, it is not actionable per se, and in addition to an innuendo, the plaintiff must 2 allege special damages by reason of the meaning gained from the publication. Washer v. Bank of Amer. 3 Nat’l. Trust & Sav. Ass’n, 21 Cal.2d 822, 828, 136 P.2d 297 (1943), overruled on other grounds, 4 McLeod v. Tribune Pub. Co., 52 Cal.2d 536, 551, 343 P.2d 36 (1959). “Where words or other matters 5 are of ambiguous meaning, or are innocent on their face but defamatory in light of extrinsic 6 circumstances (i.e., not defamatory ‘per se’), the plaintiff must plead and prove that they were used in 7 a particular meaning that makes them defamatory (the ‘innuendo’).” 5 Witkin, Sum. of Cal. Law, Torts, 8 § 555, p. 811 (2005). Ms. Ceballos faults the absence of allegations of “extrinsic circumstances which 9 show the third person reasonably understood it in its derogatory sense.” 10 AE responds that the FAC “specifically” identifies “the slanderous statements made, who made 11 them (i.e., the two, and only the two, foster parents), and the falsity of all of the statements.” AE 12 responds that the alleged slanderous statements are “clearly slanderous” without need of innuendo, 13 inducement, or further explanation given that the context of the conversation involving AE and the older 14 boy. 15 Ms. Ceballos raises a valid point that the FAC fails to distinguish the alleged defamation/slander 16 of Ms. Ceballos and Mr. Puentes. The FAC merely lumps them together and attributes the alleged 17 slanderous statements to either or both of them. Such pleading fails to satisfy F.R.Civ.P. 8(a)(2), and 18 AE offers no meaningful points that the FAC distinguishes their alleged slanderous statements. The 19 defamation/slander claim is subject to dismissal with leave to amend for failure to segregate particular 20 wrongs of Ms. Ceballos and Mr. Puentes. 21 Nonetheless, this Court disagrees with Ms. Ceballos that given the alleged slanderous statements 22 are ambiguous. Given the context which the FAC details, the alleged slanderous statement need no 23 further extrinsic circumstances to delineate their meaning. In the context of the FAC, Ms. Ceballos 24 and/or Mr. Puentes allegedly claimed that AE lied about sexual assault and that AE was the sexual 25 aggressor. The meaning of the alleged slanderous statements is not ambiguous. The only ambiguity is 26 who made that alleged slanderous statements. 27 28 Negligence Ms. Ceballos challenges the FAC’s absence of facts to support her alleged “active negligence” 7 1 in that AE seeks to impose liability on Ms. Ceballos for the older boy’s “criminal acts.” Ms. Ceballos 2 points to the absence of facts that she “participated in the assault or otherwise facilitated the assault.” 3 Ms. Ceballos argues that at most the FAC alleges that she “failed to prevent the alleged sexual assault” 4 but lacks facts that “the third party criminal conduct was reasonably foreseeable” to impose a duty on 5 her. 6 AE responds that he need not “allege each and everything that did not occur beyond Defendants’ 7 failure to perform its [sic] duty to protect Plaintiff.” AE champions the FAC’s alleged facts that assault 8 of AE was foreseeable to Ms. Ceballos based on the older boy’s prior criminal conduct. 9 “The elements of a cause of action for negligence are (1) a legal duty to use reasonable care, (2) 10 breach of that duty, and (3) proximate [or legal] cause between the breach and (4) the plaintiff's injury.” 11 Mendoza v. City of Los Angeles, 66 Cal.App.4th 1333, 1339, 78 Cal.Rptr.2d 525 (1998) (citation 12 omitted). “The existence of a duty of care owed by a defendant to a plaintiff is a prerequisite to 13 establishing a claim for negligence.” Nymark v. Heart Fed. Savings & Loan Assn., 231 Cal.App.3d 14 1089, 1095, 283 Cal.Rptr. 53 (1991). “[A]bsent a duty, the defendant's care, or lack of care, is 15 irrelevant.” Software Design & Application, Ltd. v. Hoefer & Arnett, Inc., 49 Cal.App.4th 472, 481, 56 16 Cal.Rptr.2d 756 (1996). “The existence of a legal duty to use reasonable care in a particular factual 17 situation is a question of law for the court to decide.” Vasquez v. Residential Investments, Inc., 118 18 Cal.App.4th 269, 278, 12 Cal.Rptr.3d 846 (2004) (citation omitted). 19 “The 'legal duty' of care may be of two general types: (a) the duty of a person to use ordinary care 20 in activities from which harm might reasonably be anticipated [, or] (b) [a]n affirmative duty where the 21 person occupies a particular relationship to others. . . . In the first situation, he is not liable unless he is 22 actively careless; in the second, he may be liable for failure to act affirmatively to prevent harm.” 23 McGettigan v. Bay Area Rapid Transit Dist., 57 Cal.App.4th 1011, 1016-1017, 67 Cal.Rptr.2d 516 24 (1997). 25 Ms. Ceballos characterizes her alleged negligence as “nonfeasance,” which is “the 26 nonperformance of an act that should be performed.” Jacoves v. United Merchandising Corp., 9 27 Cal.App.4th 88, 114, n. 16, 11 Cal.Rptr.2d 468 (1992). Ms. Ceballos notes that nonfeasance involving 28 negligent supervision of minors requires “a heightened foreseeability standard.” 8 1 An “adult who invites a minor into her home assumes a special relationship with the minor in 2 light of the minor’s vulnerability.” Margaret W. v. Kelley R., 139 Cal.App.4th 141, 153, 42 Cal.Rptr.3d 3 519 (2006). “The existence of a special relationship, however, is only the beginning of the analysis.” 4 Margaret W., 139 Cal.App.4th at 152, 42 Cal.Rptr.3d 519. “[F]or there to be a duty to prevent third 5 party criminal conduct, that conduct must be foreseeable.” Margaret W., 139 Cal.App.4th at 152, 42 6 Cal.Rptr.3d 519. 7 8 9 In Margaret W., 139 Cal.App.4th at 152, 42 Cal.Rptr.3d 519, the California Court of Appeal explained in greater detail: 15 But, despite that special relationship, the existence of a duty still requires that the harm be reasonably foreseeable, which requires that the defendant have actual knowledge of the assaultive propensities of the assailant. Defendants cannot be liable under a negligent supervision theory for nonfeasance based solely on constructive knowledge or information they should have known. . . .There is no per se rule of duty to every invitee, and there must be actual knowledge in addition to a special relationship. “To impose on an adult a duty to supervise and protect a female teenage invitee against sexual misconduct by a male teenage invitee, it is not enough to assert that [it is] conceivable the latter might engage in sexual misconduct during a brief absence of adult supervision. As we have already held, the imposition of such a duty of care requires evidence of facts from which a trier of fact could reasonably find that the defendant adult had prior actual knowledge of the teenage assailant's propensity to sexually molest other minors.” (Citations and footnote omitted.) 16 Ms. Ceballos challenges the lack of facts that the older boy’s alleged criminal conduct was 10 11 12 13 14 17 foreseeable to her and that she “had actual knowledge of the risk of sexual assault to the plaintiff.” 18 The FAC is unclear as to purported prior criminal conduct which provided Ms. Ceballos actual 19 knowledge of the older boy’s assaultive propensities. AE appears to rely on FAC allegations that the 20 older boy hit AE in the chest, socked AE in the face after AE witnessed the older boy steal money, 21 cursed at a foster parent thinking the foster parent was AE, and threatened to “kick [AE’s] ass.” The 22 problem for AE is that the FAC fails to attribute knowledge of such matters to Ms. Ceballos or an 23 identified foster parent. The FAC is unclear whether AE resided at Ms. Ceballos’ home during these 24 alleged warning events given the FAC’s mere reference to “foster parent.” 25 Moreover, although as a foster parent Ms. Ceballos may have assumed a special relationship with 26 AE, the contours of such relationship are unclear with the FAC’s vague allegations as to an unidentified 27 foster parent. In turn, reasonable foreseeability remains unclear under the limited matters of which a 28 “foster parent” was aware. The FAC appears to impose actual knowledge on Ms. Ceballos without 9 1 alleging facts from which Ms. Ceballos acquired such knowledge. The FAC extrapolates limited facts 2 to constitute Ms. Ceballos’ actual knowledge of the older boy’s alleged assaultive propensities. Such 3 extrapolation is insufficient to support a negligence claim against Ms. Ceballos to warrant dismissal of 4 the negligence claim against her with leave to amend. 5 Punitive Damages 6 The defamation/slander claim alleges that Ms. Ceballos made statements “with malice and with 7 intent to harm and injure” AE. The FAC’s prayer seeks an award of punitive damages. Ms. Ceballos 8 seeks to dismiss the punitive damages claim in absence of specific facts to support its elements. 9 California Civil Code section 3294 (“section 3294") provides that in an action “for breach of an 10 obligation not arising from contract,” a plaintiff may seek punitive damages “where it is proven by clear 11 and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” Cal. Civ. 12 Code, § 3294(a). Section 3294(c)(1)–(3) defines: 13 1. “Malice” as “conduct which is intended by the defendant to cause injury to the plaintiff 14 or despicable conduct which is carried on by the defendant with a willful and conscious 15 disregard of the rights and safety of others”; 16 2. 17 18 “Oppression” as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights”; and 3. “Fraud” as “an intentional misrepresentation, deceit, or concealment of a material fact 19 known to the defendant with the intention on the part of the defendant of thereby 20 depriving a person of property or legal rights or otherwise causing injury.” 21 “Although the court will apply the substantive law embodied in section 3294, ‘determinations 22 regarding the adequacy of pleadings are governed by the Federal Rules of Civil Procedure.’” Jackson 23 v. East Bay Hosp., 980 F.Supp. 1341, 1353 (N.D. Cal. 1997). 24 Punitive damages are “available to a party who can plead and prove the facts and circumstances 25 set forth in Civil Code section 3294.” Hilliard v. A.H. Robbins Co., 148 Cal.App.3d 374, 392, 196 26 Cal.Rptr. 117 (1983). “To support punitive damages, the complaint . . . must allege ultimate facts of the 27 defendant's oppression, fraud, or malice.” Cyrus v. Haveson, 65 Cal.App.3d 306, 316-317, 135 Cal.Rptr. 28 246 (1976). Pleading the language in section 3294 “is not objectionable when sufficient facts are alleged 10 1 to support the allegation.” Perkins v. Superior Court, 117 Cal.App.3d 1, 6-7, 172 Cal.Rptr. 427 (1981). 2 In G.D. Searle & Co. v. Superior Court, 49 Cal.App.3d 22, 29, 122 Cal.Rptr. 218 (1975), the 3 California Court of Appeal explained punitive damages pleading: 4 7 When the plaintiff alleges an intentional wrong, a prayer for exemplary damage may be supported by pleading that the wrong was committed willfully or with a design to injure. . . . When nondeliberate injury is charged, allegations that the defendant's conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice. . . . When a defendant must produce evidence in defense of an exemplary damage claim; fairness demands that he receive adequate notice of the kind of conduct charged against him. (Citations omitted.) 8 “Allegations that the acts . . . were ‘arbitrary, capricious, fraudulent, wrongful and unlawful,’ like other 9 adjectival descriptions of such proceedings, constitute mere conclusions of law . . .” Faulkner v. 10 California Toll Bridge Authority, 40 Cal.2d 317, 329, 253 P.2d 659 (1953); see Letho v. Underground 11 Construction Co., 69 Cal.App.3d 933, 944, 138 Cal.Rptr. 419 (1997) (facts and circumstances of fraud 12 should be set out clearly, concisely, and with sufficient particularity to support punitive damages); Smith 13 v. Superior Court, 10 Cal.App.4th 1033, 1042, 13 Cal.Rptr.2d 133 (1992) (punitive damages claim is 14 insufficient in that it is “devoid of any factual assertions supporting a conclusion petitioners acted with 15 oppression, fraud or malice.”); Brousseau v. Jarrett, 73 Cal.App.3d 864, 872, 141 Cal.Rptr. 200 (1977) 16 (“conclusory characterization of defendant's conduct as intentional, willful and fraudulent is a patently 17 insufficient statement of ‘oppression, fraud, or malice, express or implied,’ within the meaning of section 18 3294"). 5 6 19 Ms. Ceballos attributes the FAC to assert a conclusion of law as to malice with no facts of her 20 intent to injure or despicable conduct to create cruel and unjust hardship in conscious disregard of AE’s 21 rights. Ms. Ceballos points to the absence of facts that she made intentional misrepresentations or 22 committed deceit or concealment. Ms. Ceballos notes the FAC’s failure to allege facts to show her 23 intent to vex, injure or annoy. 24 AE offers nothing to support his punitive damages claim other than a general statement that 25 “[p]unitive damages are available in a defamation action where such knowing and intentional slanderous 26 and defamatory statements [sic] alleged and shown.” 27 The FAC does not satisfy AE’s own standard for punitive damages. In the absence of facts to 28 support elements of punitive damages, AE may not rely on platitudes and generalities that punitive 11 1 damages are available in defamation cases. Moreover, in the absence of a viable defamation/slander 2 action against Ms. Ceballos, a punitive damages claim against her necessarily fails. As such, the FAC’s 3 punitive damages claim against Ms. Ceballos is subject to dismissal without prejudice. 4 Attempt At Amendment 5 AE requests an attempt to amend given that the FAC is the first pleading to which Ms. Ceballos 6 has responded. Despite the FAC’s numerous deficiencies as to Ms. Ceballos and out of an abundance 7 of caution, this Court grants AE leave to amend the defamation/slander, negligence and punitive 8 damages claims against Ms. Ceballos. If AE elects to amend such claims, this Court ADMONISHES 9 AE to cure the deficiencies, support the claims with sufficient facts consistent with the principles 10 discussed above, and refrain to pursue claims which lack factual or legal support. A further amended 11 complaint must identify particular wrongs and facts attributable to Ms. Ceballos. 12 CONCLUSION AND ORDER 13 For the reasons discussed above, this Court: 14 1. 15 DISMISSES with leave to amend the defamation/slander, negligence and punitive damages claims against Ms. Ceballos; 16 2. ORDERS AE, no later than June 17, 2011, to file and serve either: 17 a. A fifth amended complaint which complies with this order; or 18 b. Papers to voluntarily dismiss Ms. Ceballos; and 19 3. 20 to the fifth amended complaint if she remains as a defendant. 21 22 ORDERS Ms. Ceballos, no later than July 5, 2011, to file and serve papers to respond IT IS SO ORDERED. Dated: 66h44d June 2, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 12

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