Engelbrecht v. Ripa

Filing 8

FINDINGS and RECOMMENDATIONS recommending that Plaintiff be allowed to proceed only on her claim for breach of contract against Defendant and that all other claims be dismissed with prejudice. The Court does not recommend granting further leave to a mend because Plaintiff filed her First Amended Complaint after receiving ample legal guidance from the Court, and it appears that the deficiencies of the First Amended Complaint cannot be cured by further leave to amend. These findings and recommenda tions are submitted to the district judge assigned to the case, pursuant to 28 U.S.C. § 636(b)(1). Within twenty-one (21) days after being served with these findings and recommendations, Plaintiff may file written objections with the Court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Order signed by Magistrate Judge Erica P. Grosjean on 7/16/208. (Rooney, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TONYA D. ENGELBRECHT,
Plaintiff,

FINDINGS AND RECOMMENDATIONS
THAT THIS ACTION PROCEED ONLY ON
PLAINTIFF’S CLAIM FOR BREACH OF
CONTRACT AND THAT ALL OTHER
CLAIMS BE DISMISSED WITH PREJUDICE

Defendants.

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(ECF No. 7)

v.

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Case No. 1:17-cv-01339-LJO-EPG

KELLY RIPA,

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OBJECTIONS, IF ANY, DUE WITHIN
TWENTY-ONE (21) DAYS

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Tonya D. Engelbrecht (“Plaintiff”) is proceeding pro se and in forma pauperis in this

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action. On October 5, 2017, Plaintiff commenced this action by filing a Complaint alleging claims

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of torture, defamation, breach of contract, and violations of the California Welfare and Institution

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Code against Kelly Ripa (“Defendant”), owner of Milojo Productions. (ECF No. 1).
On January 30, 2018, the Court found that the Complaint failed to state any cognizable

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claims, and granted Plaintiff leave to file an amended complaint. (ECF No. 6).
On February 28, 2018, Plaintiff filed a First Amended Complaint (“FAC”), which is now

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before the Court for screening. (ECF No. 7). For the reasons described below, the Court

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recommends allowing Plaintiff to proceed only on her claim for breach of contract against

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Defendant, and finds that Plaintiff has failed to state any other claims.

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I.

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SCREENING REQUIREMENT
Under 28 U.S.C. § 1915(e)(2), the Court must conduct a review of an in forma pauperis

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complaint to determine whether it “state[s] a claim on which relief may be granted,” is “frivolous

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or malicious,” or “seek[s] monetary relief against a defendant who is immune from such relief.” If

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the Court determines that the complaint fails to state a claim, it must be dismissed. Id. An action

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is frivolous if it is “of little weight or importance: having no basis in law or fact” and malicious if

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it was filed with the “intention or desire to harm another.” Andrews v. King, 398 F.3d 1113, 1121

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(9th Cir. 2005). Leave to amend may be granted to the extent that the deficiencies of the

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complaint can be cured by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

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matter, accepted as true, to ‘state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

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at 663 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal

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conclusions are not. Id. at 678.

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In determining whether a complaint states an actionable claim, the Court must accept the

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allegations in the complaint as true, Hosp. Bldg. Co. v. Trs. of Rex Hospital, 425 U.S. 738, 740

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(1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v.

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Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor. Jenkins

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v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be held to less

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stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342

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(9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after

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Iqbal).

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II.

SUMMARY OF PLAINTIFF’S FIRST AMENDED COMPLAINT

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Plaintiff’s allegations appear to be derived from occurrences during Plaintiff’s time spent

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filming an episode of “Homemade Millionaire,” a reality show produced by Defendant. Plaintiff

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alleges the following, (ECF No. 7):

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Plaintiff was tortured by Defendant while filming “Homemade Millionaire,” Plaintiff

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experienced “traumatic, indelible injuries, inflicted upon [Plaintiff’s] person, identity and

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character, at the ‘orders’ of [Defendant] Kelly Ripa” by way of “repeated, calculated, malicious

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actions of torment . . . specifically intended to induce psychological duress.” Defendant had

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producers of the show “continually wake [Plaintiff] up throughout the night, intentionally

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depriving [her] of sleep, night after night.” Defendant would then “viciously bully and publicly

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humiliate [Plaintiff] fifteen hours a day on set.” Plaintiff’s public abuse was so severe that

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strangers approached her offering condolences.

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Plaintiff has been defamed by Defendant. Plaintiff has repeatedly requested that

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Defendant cease airing the episode on “Homemade Millionaire,” but Defendant refuses to do so.

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As a result of airing the episode, Plaintiff has been unable to find employment. Additionally, the

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episode presents Plaintiff in a “completely false and negative manner.”

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Plaintiff had a contract with Defendant that Plaintiff would be paid “$40 per diem.”

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However, Defendant would only pay Plaintiff and the other reality show participants $10 per day.

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Defendant therefore breached her contract with Plaintiff.

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Plaintiff was “emotionally unstable and severely unwell” while filming “Homemade

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Millionaire.” Plaintiff also suffers from bipolar disorder. These conditions “seemed to fuel Kelly

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Ripa’s abuse and degr[a]dation,” in violation of the Welfare and Institution Code.

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III.

DISCUSSION1

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A.

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Plaintiff alleges a claim of torture pursuant to a criminal statute, California Penal Code

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Torture

§ 206, which provides:
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While it appears that the relevant event(s) took place in New York, Plaintiff specifically cites to California
laws in her FAC. The Court will therefore analyze Plaintiff’s FAC under the cited California law. However, even if
New York law were to be applied, the Court’s analysis would be the same.

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Every person who, with the intent to cause cruel or extreme pain
and suffering for the purpose of revenge, extortion, persuasion, or
for any sadistic purpose, inflicts great bodily injury as defined in
Section 12022.7 upon the person of another, is guilty of torture.

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The crime of torture does not require any proof that the victim
suffered pain.

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In turn, Section 12022.7 defines “great bodily injury” as a significant or substantial physical

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injury. Cal. Penal Code Ann. § 12022.7(f). The crime of torture is punishable by imprisonment in

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the state prison for a term of life. Cal. Penal Code Ann. § 206.1.

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Plaintiff fails to set forth sufficient factual allegations that Defendant inflicted any bodily
injury upon her person. Instead, Plaintiff alleges that she “experienced ‘traumatic, indelible

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injuries, inflicted upon [her] person, identity and character’” by means of “‘repeated, calculated,

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malicious actions of torment . . . specifically intended to induce psychological duress.’” Plaintiff

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further alleges that the “‘repeated, calculated, malicious actions of torment’” involved “having

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producers ‘continually wake [her] up throughout the night, intentionally depriving [her] of

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sleep.’” These allegations of psychological duress from sleep deprivation fail to state a claim of

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torture under California Penal Code § 206.

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In any event, Plaintiff’s claim of torture—a criminal cause of action—is not a cognizable

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claim in this civil action. A plaintiff may bring a civil action against a defendant based on an

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alleged violation of criminal statute in the following three circumstances:

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First, and perhaps most commonly, violation of a criminal statute
can be used to establish a breach of the standard of care or other
element of an ordinary tort cause of action. Second . . . a criminal
statute can expressly or impliedly give rise to a private right of
action for its violation. Third, under some circumstances, a
governmental or quasi-governmental agency can sue to enjoin
further breaches of the statute on a public nuisance or related
theory.
Animal Legal Defense Fund v. Mendes, 72 Cal. Rptr. 3d 553, 555-56 (Ct. App. 2008) (citations
omitted). Whether a plaintiff can bring a private action against a defendant for an alleged
violation of criminal law is ultimately an issue of legislative intent; “[i]f the Legislature intended
there be no private right of action, that usually ends the inquiry.” Id. at 556. Further, if it is
determined that “the Legislature expressed no intent on the matter either way, directly or

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impliedly, there is no private right of action, with the possible exception that compelling reasons

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of public policy might require judicial recognition of such a right.” Id. (citing Moradi-Shalal v.

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Fireman’s Fund Ins.Cos., 758 P.2d 58, 69 (Cal. 1988), Katzenberg v. Regents of Univ.of Cal., 58

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P.3d 339, 349-50 (Cal. 2002)).

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Plaintiff’s claim of torture does not fall within any of the three categories. Plaintiff does

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not allege a tort claim for which a criminal statute can be used to establish a breach of a standard

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of care. Plaintiff is not a governmental or quasi-governmental agency, and is not suing to enjoin

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further breaches of the torture criminal statute on a public nuisance theory. And, most

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importantly, it is evident from the face of the criminal statute that the state legislature expressed

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no intent to provide for a private right of action for its violation. The language of the criminal

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statute does not— either expressly nor impliedly—contemplate a private right of action; in fact, it

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expressly anticipates punishment for its violation only by means of imprisonment. See Cal. Penal

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Code Ann. § 206.1. Furthermore, the Court finds no compelling reasons of public policy to

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recognize a private right of action for torture in this action because, as aforementioned, Plaintiff’s

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allegations of psychological duress from sleep deprivation fail to state a claim of torture pursuant

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to the criminal statute.

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To the extent Plaintiff is attempting to initiate criminal proceedings against Defendant,

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Plaintiff does not have a constitutional right to prosecute another person or to petition a federal

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court to compel criminal prosecution of another person. Linda R.S. v. Richard D., 410 U.S. 614,

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619 (1973) (“[I]n American jurisprudence… a private citizen lacks a judicially cognizable interest

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in the prosecution or nonprosecution of another.”); Diamond v. Charles, 476 U.S. 54, 64-65

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(1986); see also Maine v. Taylor, 477 U.S. 131, 137 (1986) (citations omitted) (“private parties…

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have no legally cognizable interest in the prosecutorial decisions of the Federal Government”);

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Leeke v. Timmerman, 454 U.S. 83, 86-87 (1981) (“the decision to prosecute is solely within the

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discretion of the prosecutor”).

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Accordingly, Plaintiff fails to state a claim for torture.

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Defamation2

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B.

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Under California Civil Code § 44, defamation is defined as either libel or slander. Section

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45, in turn, defines libel as:

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[A] false and unprivileged publication by writing, printing, picture,
effigy, or other fixed representation to the eye, which exposes any
person to hatred, contempt, ridicule, or obloquy, or which causes
him to be shunned or avoided, or which has a tendency to injure
him in his occupation.

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Cal. Civ. Code § 45. Additionally, § 46 defines slander, in relevant part, as:

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[A] false and unprivileged publication, orally uttered, and also
communications by radio or any mechanical or other means
which… [t]ends directly to injure [a person] in respect to his office,
profession, trade or business, either by imputing to him general
disqualification in those respects which the office or other
occupation peculiarly requires, or by imputing something with
reference to his office, profession, trade, or business that has a
natural tendency to lessen its profits . . . .

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Id. at § 46. Finally, § 47 defines privileged publication as one made:
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(a) In the proper discharge of an official duty.

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(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in
any other official proceeding authorized by law, or (4) in the
initiation or course of any other proceeding authorized by law and
reviewable pursuant to Chapter 2 (commencing with Section 1084
of Title 1 of Part 3 of the Code of Civil Procedure . . .

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(c) In a communication, without malice, to a person interested
therein, (1) by one who is also interested, or (2) by one who stands
in such a relation to the person interested as to afford a reasonable
ground for supposing the motive for the communication to be
innocent, or (3) who is requested by the person interested to give
the information. This subdivision applies to and includes a
communication concerning the job performance or qualifications of
an applicant for employment . . .

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(d) (1) By a fair and true report in, or a communication to, a public
journal, of (A) a judicial, (B) legislative, or (C) other public official
proceeding, or (D) of anything said in the course thereof, or (E) of a
verified charge or complaint made by any person to a public
official, upon which complaint a warrant has been issued . . .

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(e) By a fair and true report of (1) the proceedings of a public
meeting, if the meeting was lawfully convened for a lawful purpose
and open to the public, or (2) the publication of the matter
complained of was for the public benefit.

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Plaintiff alleges a claim of defamation by citing 28 U.S.C. § 4101; however, that code section pertains to foreign
judgments and is therefore not relevant to this matter.

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Id. at § 47.
To state a cause of action for defamation, Plaintiff must allege that Defendant

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intentionally (1) published a statement of fact (2) which is false, (3) unprivileged, and (4) has a

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natural tendency to injure or which causes special damage. Price v. Stossel, 620 F.3d 992, 998

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(9th Cir. 2010) (citing Gilbert v. Sykes, 53 Cal.Rptr.3d 752, 764 (Ct. App. 2007)). A private

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figure plaintiff must also allege that a defendant failed to use reasonable care to determine the

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truth or falsity of the allegedly defamatory statements. Brown v. Kelly Broad. Co., 48 Cal. 3d 711,

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749 (1989).

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Plaintiff alleges that Defendant continues to air an episode of Homemade Millionaire that

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presents Plaintiff in a false and negative manner, and the airing of the episode has prevented her

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from gaining employment. These allegations fail to state a cognizable claim for defamation.

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Plaintiff fails to allege that Defendant made any false statement and published any such statement

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by means of the television episode. Plaintiff merely states that the television episode in which she

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appeared presents her in a “completely false and negative manner.” Accordingly, Plaintiff has

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failed to state a claim of defamation.

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C.

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Under California law, the elements of a breach of contract claim are: 1) existence of a

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valid contract; 2) performance by the plaintiff or excuse for nonperformance; 3) breach by the

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defendant; and 4) damages. First Commercial Mortgage Co. v. Reece, 89 Cal. App. 4th 731, 745

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(2001). To state a cause of action for breach of contract, the plaintiff must plead the terms of the

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contract either verbatim or according to its legal effect. Langan v. United Servs. Auto. Ass’n, 69

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F.Supp.3d 965, 979 (N.D. Cal. 2014) (quoting Twaite v. Allstate Ins. Co., 216 Cal.App.3d 239,

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252 (1989)).

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Breach of Contract

Accepting Plaintiff’s allegations as true and construing them in the light most favorable to

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her, Plaintiff has stated a viable breach of contract cause of action. Although Plaintiff does not

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plead the terms of the contract verbatim, she alleges that she and Defendant had a contract

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whereby Defendant would pay Plaintiff $40 per day as compensation for Plaintiff’s participation

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in the episode of “Homemade Millionaire.” Plaintiff further alleges that she filmed the episode of
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Homemade Millionaire, and Defendant breached the contract by only paying Plaintiff $10 per day

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instead of $40 per day. Plaintiff also appears to allege that she has suffered damages in the form

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of receiving less money than she is owed. Accordingly, Plaintiff has alleged sufficient facts to

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state a cognizable breach of contract claim.

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D.

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Plaintiff alleges that Defendant violated the Welfare and Institution Code because

Welfare and Institution Code Violation

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Defendant’s “abuse and degr[a]dation” were “fueled” by Plaintiff being “emotionally unstable

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and severely unwell”. Plaintiff, however, does not cite to a specific section of the Welfare and

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Institutions Code. Upon examination of the California Welfare and Institutions Code, the Court

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cannot locate any provision granting a private right of action against a private citizen for abusing

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and degrading an individual suffering a mental impairment. Accordingly, Plaintiff has failed to

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adequately plead a cause of action under the California Welfare and Institution Code.

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IV.

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CONCLUSION AND RECOMMENDATIONS
The Court recommends that Plaintiff be allowed to proceed only on her claim for breach

of contract against Defendant and that all other claims be dismissed with prejudice.

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The Court does not recommend granting further leave to amend because Plaintiff filed her

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First Amended Complaint after receiving ample legal guidance from the Court, and it appears that

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the deficiencies of the First Amended Complaint cannot be cured by further leave to amend.

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These findings and recommendations are submitted to the district judge assigned to the

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case, pursuant to 28 U.S.C. § 636(b)(1). Within twenty-one (21) days after being served with

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these findings and recommendations, Plaintiff may file written objections with the court. Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.”

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Plaintiff is advised that failure to file objections within the specified time may result in the

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waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (quoting

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Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

July 16, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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