Winters, et al v. Jordan, et al

Filing 146

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/19/2010 recommending that Defendant Michael Armstrong's motion to dismiss the Third Amended Complaint (Dkt. No. 82, 85) be granted; and all of plaintiffs' claims alleged against Michael Armstrong be dismissed with prejudice. Objections to F&R due w/in 14 days. (Matson, R)

(PS) Winters, et al v. Jordan, et al

Doc. 146

1 2 3 4 5 6 7 8 9 10 11 v. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 This action proceeds before this court pursuant to Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1), and was reassigned by an order entered February 9, 2010 (Dkt. No. 105).
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA BRENT ALLEN WINTERS, et al., Plaintiffs, No. 2:09-cv-00522 JAM KJN PS FINDINGS AND RECOMMENDATIONS DELORES JORDAN, et al., Defendants. ______________________________/ Presently before the court is defendant Michael Armstrong's ("Michael Armstrong") motion to dismiss plaintiffs' Third Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Dkt. No. 82, 85.) The court submitted this matter without oral argument.1 (Dkt. No. 102.) The undersigned has fully considered the parties' briefs and the record in this case and, for the reasons that follow, will recommend that: (1) Michael Armstrong's motion be granted, and (2) all of plaintiffs' claims alleged against Michael Armstrong be dismissed with prejudice. ////

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I.

BACKGROUND2 Plaintiffs' operative complaint, the Third Amended Complaint,3 is a wide-ranging,

25-page complaint that alleges, in eight-point font, 38 claims for relief against 61 defendants. (Dkt. No. 66.) In dismissing plaintiffs' Second Amended Complaint (Dkt. No. 15), which spanned 163 pages and 607 numbered paragraphs, the court ordered that plaintiffs' Third Amended Complaint could not exceed 25 pages and must conform to Federal Rule of Civil Procedure 8(a), including the requirement that the pleading contain a short and plain statement of the claims alleged instead of recounting all of the evidence and arguments in support of those claims. (Dkt. No. 56 at 3.) The court had stated that "[t]his will be plaintiffs' last chance to comply." (Id.) The allegations in the Third Amended Complaint that are specific to Michael Armstrong are few. More generally, the claims against Michael Armstrong arise out of an underlying internecine family dispute between the Winters family and defendant Virginia Armstrong. The Third Amended Complaint alleges that in or around the year 2002, plaintiff Susan Winters' elderly parents, Joe and Virginia Armstrong, encouraged plaintiffs Susan and Brent Winters to sell their house in Illinois and move to Nevada City, California, to live with the Armstrongs. (Third Am. Compl. at 4.) Plaintiffs allege that before plaintiffs returned to California, Joe Armstrong passed away and that Virginia Armstrong eventually transferred

In an order dated September 24, 2009, the court ordered that all references to the minor plaintiffs in this action--Joy Winters, Clark Winters, and Jill Winters--be stricken from plaintiffs' Third Amended Complaint because those minors were not represented by an attorney or attorneys. (Dkt. No. 80; see also Dkt. Nos. 68, 89 at 2 n.1.) Plaintiffs filed the operative complaint under the title "Amended Complaint," notwithstanding this court's order that it be labeled "Third Amended Complaint." (Compare Dkt. No. 66 with Dkt No. 56 at 4.) The Third Amended Complaint supersedes plaintiffs' "Second Amended Complaint." (Dkt. No. 15.) As the court noted in a prior order, the Second Amended Complaint represented plaintiffs' first amendment of the original complaint (Dkt. No. 56 at 1 n.1), and the operative Third Amended Complaint represents plaintiffs' second amendment of the original complaint.
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properties, including the residence at 11318 Via Vista in Nevada City, California, from the Armstrong Living Trust dated July 29, 1994, to the Virginia Armstrong Living Trust. (Id.) Plaintiffs allege that Virginia Armstrong took these actions due, in part, to the undue influence of defendants Valerie Logsdon, who was Virginia Armstrong's attorney, and Michael Armstrong, Virginia Armstrong's son, who is an attorney. (Id.) The relationship between Virginia Armstrong and plaintiffs resulted in several proceedings in the Nevada County Superior Court. Relevant here, Logsdon, acting as Virginia Armstrong's attorney, filed an unlawful detainer action on her client's behalf seeking to evict members of the Winters family from Ms. Armstrong's home. (Third Am. Compl. at 5; Req. for Judicial Notice, Ex. 1, Dkt. No. 75.) In connection with the unlawful detainer action, and relevant to claims alleged against Michael Armstrong, plaintiffs allege that an Assistant United States Attorney from Illinois wrote a letter to defendant Logsdon "offering any aid to help her evict the Winters from their home in Nevada City, California." (Third Am. Compl. at 6, 21.) Plaintiffs further allege that Michael Armstrong caused declarations or other documents to be filed in connection with the issuance of a restraining order, which was favorable to plaintiff Susan Winters, by a judge of the Nevada County Superior Court. (Id. at 6.) Plaintiffs' Third Amended Complaint alleges the following claims against Michael Armstrong: abuse of process (claim 6); trespass to chattels (claim 13); violation of 42 U.S.C. § 1983 (claim 14); civil conspiracy in violation of 42 U.S.C. § 1983 (claim 15); civil conspiracy (claim 18); "Slander, Libel, and Slander & Libel Per Se" (claim 21); conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. 1962(d) (claim 31); loss of consortium (claim 36); and intentional infliction of emotional distress (claim 38). In response to the filing of the Third Amended Complaint, Michael Armstrong filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. Nos. 82, 85.) ////
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There are several, separately-filed motions pending before the court. Despite the court's previous order that plaintiffs file a separate opposition to each pending motion (Dkt. No. 89 at 6), plaintiffs filed a consolidated opposition. (See Dkt. No. 99.) Plaintiffs filed their opposition on January 13, 2010, despite a court-ordered deadline of January 6, 2010. (Compare Dkt. Nos. 89 with 99.) Although plaintiffs' opposition was untimely and need not be considered, the undersigned has considered that opposition in arriving at the findings and recommendations that follow. II. LEGAL STANDARDS A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains `enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009)). "`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.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts "all facts alleged as true and construes them in the light most favorable to the plaintiff." County of Santa Clara v. Astra USA, Inc., 588 F.3d 1237, 1241 n.1 (9th Cir. 2009). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily
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assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted). The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect.4 See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). III. DISCUSSION A. Plaintiffs' Section 1983 Claims Against Michael Armstrong Plaintiffs sued "All Defendants" for violation of 42 U.S.C. § 1983 (claim 14), for engaging in a conspiracy to violate 42 U.S.C. § 1983 (claim 15), and for "civil conspiracy," which appears to be an additional claim alleging a conspiracy to violate Section 1983. (See Third Am. Compl. at 19-20.) Michael Armstrong moves to dismiss these claims for failure to state a claim on the grounds that: (1) plaintiffs have not alleged that he participated in any act that deprived plaintiffs of their constitutional or statutory rights, and (2) plaintiffs have alleged no specific facts that he acted under the color of law. His arguments, although tersely stated, are persuasive. "Section 1983 imposes civil liability upon an individual who `under color [of state law]... subjects or causes to be subjected, any citizen of the United States...to the deprivation of

Although plaintiffs are proceeding without counsel in this action, the undersigned notes that plaintiff Brent Winters is alleged to be a licensed, practicing attorney. (Third Am. Compl. at 21 (referring to Brent Allan Winters as "a licensed attorney"); see also Dkt. No. 89 at 13 (alleging damage to "Brent Allan Winters's law practice").)
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any rights, privileges or immunities secured by the Constitution and laws.'" Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002) (citing 42 U.S.C. § 1983). "To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law." Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)); accord Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009). Conclusory allegations of a violation of Section 1983 or a conspiracy to violate Section 1983 will not survive a motion to dismiss. See, e.g., Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (affirming dismissal of plaintiff's second amended complaint as a result of plaintiff's "conclusory allegations" of a conspiracy to deprive him of his constitutional rights in violation of Section 1983). Plaintiffs' allegations in support of their Section 1983 claims are conclusory and, on this basis alone, claims 14, 15 and 18 should be dismissed as to Michael Armstrong. For example, plaintiffs do not allege which of their specific constitutional rights were violated and how specifically Michael Armstrong participated in such a violation. Nevertheless, the undersigned will address additional grounds why plaintiffs' claims fail as alleged against Michael Armstrong. As to claim 14, alleging that all defendants, including Michael Armstrong, individually violated plaintiffs' constitutional rights, plaintiffs allege: Paragraphs above incorporated by reference. Defendants, by their actions and acting under the color of law, subjected Plaintiffs, and caused Plaintiffs to be subjected, to the deprivations of their rights, privileges, and immunities secured by the Constitution and laws of the State of California and of the United States of America, Plaintiffs claim damages under 42 U.S.C. § 1983 for their injuries set forth above. //// ////
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(Third Am. Compl. at 19.)5 In addition to the conclusory nature of plaintiffs' allegations, their claim that Michael Armstrong, as an individual, violated plaintiffs' rights fails because plaintiffs have not alleged any constitutional right that was purportedly violated. Moreover, dismissal is warranted because Michael Armstrong is a private actor and thus was not acting under color of state law. "To determine whether a private actor acts under color of state law, [the court] must evaluate whether the alleged infringement of federal rights is `fairly attributable' to the government even though committed by private actors." Florer v. Congregation Pidyon Shevuyim, 603 F.3d 1118, 1122 (9th Cir. 2010) (citation omitted) (stating, in addition, that "[t]here must be such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself" (citation and quotation marks omitted)). Nothing in the Third Amended Complaint or plaintiffs' written opposition suggests as much. Insofar as his individual acts are concerned, Michael Armstrong is alleged to have unduly influenced his mother, Virginia Armstrong, to transfer certain trust assets from one trust to another. (Third. Am. Compl. at 4.) This is the act of a private individual, not a state actor. Accordingly, plaintiffs' fourteenth claim should be dismissed with prejudice as to Michael Armstrong. Plaintiffs' Section 1983 conspiracy claims, claims 15 and 18, are also fatally flawed. In their fifteenth claim, plaintiffs allege that "Defendants Logsdon, Michael Armstrong, Jordan, Wade, Harpainter and Ford worked in concert with Defendants from the Nevada County Superior Court, Sheriff's Department, Adult Protective Services, and other agencies." (Third Am. Compl. at 20.) However, they also allege that a state court judge entered a restraining order "on his own motion." (Id.) Additionally, plaintiffs allege that defendants Logsdon and Harpainter "worked in concert with" with defendants Chelsey and Frooman. (Id.) Elsewhere in Although plaintiffs incorporate the remainder of their complaint by reference, the rest of the Third Amended Complaint and plaintiffs' opposition to the pending motion do not suggest exactly how Michael Armstrong individually violated plaintiffs' civil rights.
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the Third Amended Complaint, defendant Harpainter is alleged to have been an attorney that the Nevada County Superior Court appointed for Virginia Armstrong in connection with certain restraining order proceedings before that court. (Id. at 7.) Defendants Chelsey and Frooman are alleged to be Assistant United States Attorneys in Illinois who were prosecuting plaintiff Brent Winters, an attorney, on criminal charges and wrote a letter to defendant Logsdon offering assistance with the unlawful detainer action. (Id. at 6, 24.) Plaintiffs' eighteenth claim is largely redundant of the fifteenth claim, at least as it relates to allegations against Michael Armstrong. "A private individual may be liable under § 1983 if [he] conspired or entered joint action with a state actor." Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002); see also Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) ("While generally not applicable to private parties, a § 1983 action can lie against a private party when he is a willful participant in joint action with the State or its agents" (citation and quotation marks omitted).). "To establish liability for a conspiracy in a § 1983 case, a plaintiff must demonstrate the existence of an agreement or meeting of the minds" to violate constitutional rights." Crowe v. County of San Diego, 593 F.3d 841, 875 (9th Cir. 2010) (citation and quotation marks omitted). Although the Supreme Court has articulated several alternative tests for determining whether a private individual's actions amount to state action, Franklin, 312 F.3d at 445, the "joint action" test is relevant here. The joint action test applies where, as here, state officials and private parties are alleged to have acted in concert to effectuate a particular deprivation of constitutional rights and "focuses on whether the state has so far insinuated itself into a position of interdependence with the private actor that it must be recognized as a joint participant in the challenged activity." Id. (citation, quotation marks, and modifications omitted). "The plaintiff must show `an agreement or meeting of the minds to violate constitutional rights,' and `[t]o be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy.'" Crowe, 593 F.3d at 875 (quoting Franklin, 312 F.3d at 441).
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As an initial matter, it bears repeating that plaintiffs' allegations regarding a conspiracy between state actors and private actors are vague and conclusory and, for that reason alone, cannot survive the motion to dismiss. See Simmons, 318 F.3d at 1161 ("Plaintiff's conclusory allegations that the lawyer was conspiring with state officers to deprive him of due process are insufficient."); Degrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000) (stating that "a bare allegation of . . . joint action will not overcome a motion to dismiss" (citation and quotation marks omitted)); Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991) (stating that "[c]onclusionary allegations, unsupported by facts, [will be] rejected as insufficient to state a claim under the Civil Rights Act" (citation and quotation marks omitted, modifications in original).). It also bears repeating that plaintiffs have not alleged which of their constitutional rights has been violated. Plaintiffs have not alleged facts constituting a plausible claim of a conspiracy between Michael Armstrong and state actors to deprive them of their constitutional rights. Although, plaintiffs vaguely allege that Michael Armstrong conspired with others, the allegations in the Third Amended Complaint indicate a lack of interdependence between state and private actors. As far as the unlawful detainer action is concerned, plaintiffs only allege that Assistant United States Attorneys Frooman and Chelsey offered aid to defendant Logsdon. An offer of assistance does not suggest the level of interdependence that will support a Section 1983 conspiracy under a joint action theory. In terms of joint action related to the entry of certain restraining orders, plaintiffs allege joint action, but also allege that Judge Anderson of the Nevada County Superior Court acted on his "own motion." None of plaintiffs allegations suggest a common goal of depriving plaintiffs of their rights, or any interdependence among the alleged members of the conspiracy. Taken together with the conclusory and vague allegations in the Third Amended Complaint, plaintiffs' conspiracy claims alleged against Michael Armstrong should be dismissed.
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B.

Plaintiffs' RICO Conspiracy Claim Michael Armstrong also moves to dismiss plaintiffs' thirty-first claim for relief,

which alleges that "All Defendants"--over sixty defendants including private actors, state court judges and employees, law enforcement, and local agencies--conspired to commit racketeering activity in violation of the RICO statute, see 18 U.S.C. §§ 1962(d), 1964(c). (See Third Am. Compl. at 24.) Plaintiffs allege that all defendants in this case conspired to "maintain a federal prosecution against Plaintiff Brent Winters in Illinois." (Id.) They further allege that on July 9, 2002, defendant Jan Paul Miller agreed with an individual named Michael McCuskey and defendant Assistant United States Attorney Frooman "to investigate and prosecute Brent Winters on false charges" knowing that the presiding judge was biased. (Id.) They also allege that "Agent Pogue," who is not a defendant here, contributed to the conspiracy by testifying based on "conjecture" at Brent Winters's sentencing hearing. (Id.) In addition, they vaguely allege an undefined "pattern of misrepresentation" intended to "defraud the Winters of their rights and their property." (Id.) Moreover, plaintiffs allege the "concealment of critical data," including a memorandum drafted by Judge Anderson of the Nevada County Superior Court. (Id.) Plaintiffs do not allege any specific facts with respect to Michael Armstrong. "The elements of a civil RICO claim are as follows: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (known as `predicate acts') (5) causing injury to plaintiff's `business or property.'" Living Designs, Inc., E.I. Dupont de Nemours & Co., 431 F.3d 353, 361 (9th Cir. 2005) (citation and quotation marks omitted). "To state a RICO claim, one must allege a `pattern' of racketeering activity, which requires at least two predicate acts." Clark v. Time Warner Cable, 523 F.3d 1110, 1116 (9th Cir. 2008) (citations omitted). Furthermore, a plaintiff must also show that the injury to his business or property was proximately caused by the prohibited conduct and that he has suffered a concrete financial loss. Chaset v. Fleer/Skybox Int'l, L.P., 300 F.3d 1083, 1086 (9th Cir. 2002).
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Plaintiffs' RICO conspiracy claim should be dismissed for several reasons. First, the allegations are of such a vague and conclusory nature that they do not state a plausible claim for relief under the RICO statute. Second, plaintiffs have not pled two predicate acts of "racketeering activity," as that term is defined in 18 U.S.C. § 1961(1). Third, plaintiffs have not alleged a "concrete financial loss" or injury to business or property proximately caused by the conspiracy. At most, plaintiffs' opposition to Michael Armstrong's motion to dismiss alleges that the purported RICO conspiracy damaged plaintiff Brent Winters's law practice, but provides no information about the nature of the injury or a concrete financial loss. Nothing contained in plaintiffs' Third Amended Complaint or opposition brief suggests that they can amend their pleading to state a plausible claim for relief. Accordingly, plaintiffs' thirty-first claim for relief should be dismissed with prejudice. C. Plaintiffs' State Law Claims for Abuse of Process and Slander/Libel Plaintiffs allege that Michael Armstrong, defendant Logsdon, and several defendants employed in the clerk's office of the Nevada County Superior Court "abused process of the court," by "improperly and with malice causing false allegations to be filed in Nevada County (case file #73025 Winters v. Jordan) against Plaintiffs."6 (Third Am. Compl. at 13.) In essence, plaintiffs allege that Michael Armstrong and others, who were not parties to a case pending in the Nevada County Superior Court, interfered with that case by filing "declarations and pleadings" in order to paint plaintiffs in a bad light. (See id.) In addition, plaintiffs allege in their twenty-first claim for relief that Michael Armstrong, among others, committed "Slander, ////

As alleged in the Third Amended Complaint, this action in Nevada County Superior Court involved plaintiffs Brent and Susan Winters' application for a restraining order against defendant Delores Jordan, a friend of defendant Virginia Armstrong. Jordan is alleged to have trespassed on the residence at 11318 Via Vista, which is part of the trust property for which Michael Armstrong is trustee, and paid to have the locks on the doors changed in order to keep the Winters' family members away from Virginia Armstrong. (See Third Am. Compl. at 5-6.)
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Libel, Slander & Libel Per Se" through "false accusations, both spoken and written to the court." (Id. at 21.) Michael Armstrong argues that plaintiffs' claims for abuse of process and slander/libel should be dismissed with prejudice as to him because his conduct is protected by California's absolute litigation privilege. That privilege, found at California Civil Code § 47(b), provides, in part, that a publication or broadcast made as part of a judicial proceeding is privileged. See also Action Apartment Ass'n, Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 1241, 163 P.3d 89, 95 (Cal. 2007). The California Supreme Court recently summarized this litigation privilege as follows: This privilege is absolute in nature, applying to all publications, irrespective of their maliciousness. The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action. The privilege is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards. Id. (citations and internal quotation marks omitted, modification in original). The California Supreme Court has given this privilege "a broad interpretation" in furtherance of the purpose of the privilege, which is "to afford litigants and witnesses . . . the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions." Id. "Any doubt as to whether the privilege applies is resolved in favor of applying it." Adams v. Superior Court, 2 Cal. App. 4th 521, 529, 3 Cal. Rptr. 2d 49, 53 (Ct. App. 1992); accord Sengchanthalangsy v. Accelerated Recovery Specialists, Inc., 473 F. Supp. 2d 1083, 1087 (S.D. Cal. 2007); Lambert v. Carneghi, 158 Cal. App. 4th 1120, 1138, 70 Cal. Rptr. 3d 626, 639 (Ct. App. 2008). Thus, although the privilege was originally enacted with reference to claims of defamation, "`the privilege is now held applicable to any communication, whether or not it amounts to a publication . . . , and all torts except malicious prosecution.'" Rusheen v. Cohen, 37 Cal. 4th
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1048, 1057, 128 P.3d 713, 718 (2006) (quoting Silberg v. Anderson, 50 Cal. 3d 205, 212, 786 P.2d 365 (1990)); see also Action Apartment Ass'n, Inc., 41 Cal. 4th at 1241-42 (noting that the litigation privilege applies to claims of slander, libel, and abuse of process, among other types of claims). The privilege applies "regardless whether the communication was made with malice or the intent to harm" and "does not depend on the publisher's motives, morals, ethics or intent." Kashian v. Harriman,98 Cal. App. 4th 892, 913, 120 Cal. Rptr. 2d 576, 592 (Ct. App. 2002) (citation and quotation marks omitted). The litigation privilege applies to the abuse of process and slander/libel claims against Michael Armstrong. Plaintiffs' allegations in support of these claims reveal that Michael Armstrong's acts consist of communications with the Superior Court made in connection with a judicial proceeding, whether by filing of declarations or documents or making statements to that court.7 (See Third Am. Compl. at 13, 21.) The undersigned concludes that the privilege applies notwithstanding plaintiffs' objection that Michael Armstrong was not a party to the state court proceedings. Although Michael Armstrong's moving papers are not the model of clarity and do not explain in great detail his role in the underlying state court litigation, application of California's litigation privilege does not turn on whether the person asserting the privilege was a party to the underlying litigation; he or she need only be connected or related to the proceedings. See, e.g., Castaline v. Aaron Mueller Arts, No. C 09-02543 CRB, 2010 WL 583944, at *4 (N.D. Cal. Feb. 16, 2010) (unpublished) (stating that the phrase "other participants authorized by law"

For example, under California law, the "tort of abuse of process arises when one uses the court's process for a purpose other than that for which the process was designed." Rusheen, 37 Cal. 4th at 1056, 128 P.3d at 718. "To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings." Id. Here, plaintiffs allege that Michael Armstrong abused the Nevada County Superior Court's process by filing "false allegations" contained in declarations and pleadings in a pending case. The California Supreme Court has specifically held that the litigation privilege applies to an abuse of process claim "alleging the filing of false or perjurious testimony or declarations." Id. at 1058, 128 P.3d at 719 (collecting cases).
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includes non-parties who have a "substantial interest in the outcome of the pending litigation") (citing Costa v. Superior Court, 157 Cal. App. 3d 673, 677-78, 204 Cal. Rptr. 1, 4 (Ct. App. 1984)); Adams, 2 Cal. App. 4th at 529, 3 Cal. Rptr. 2d at 52 (stating that "the privilege is not restricted to the actual parties to the lawsuit but need merely be connected or related to the proceedings"). Here, Michael Armstrong was connected to and participated in the underlying litigation, which related to the protection and well-being of his mother, by allegedly filing declarations or making statements to the court. Thus, he had a logical connection to that litigation.8 The conclusion that the privilege applies under the facts presented is further supported by the fact that the California Supreme Court has given the privilege a broad interpretation, and any doubt regarding whether the privilege applies should be resolved in favor of applying the privilege. Accordingly, the undersigned will recommend that Michael Armstrong's motion to dismiss plaintiffs' claims for abuse of process and slander/libel be granted and that these claims be dismissed with prejudice. D. Plaintiffs' State Law Claim for Trespass to Chattels Plaintiffs further allege that all defendants, including Michael Armstrong, committed the tort of trespass to chattels. (Third Am. Compl. at 19.) "[T]he tort of trespass to chattels allows recovery for interferences with possession of personal property not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered." Intel Corp. v. Hamidi, 30 Cal. 4th 1342, 1350, 71 P.3d 296, 302 (2003). The California Supreme Court has stated that "[t]respass remains as an occasional remedy for minor interferences, resulting in some

Michael Armstrong's moving papers state: "Any actions taken by MICHAEL ARMSTRONG were in support of the efforts taken to alleviate the Elder Abuse, Domestic Violence, and other harassment and illegal acts taken by plaintiffs against his mother, VIRGINIA ARMSTRONG. All actions taken by this answering defendant should be deemed legal, privileged or based on a duty." (Memo. of P. & A. in Supp. of Michael Armstrong's Motion to Dismiss at 6, Dkt. No. 85.)
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damage, but not sufficiently serious or sufficiently important to amount to the greater tort" of conversion." Id. at 1351, 71 P.3d at 302 (citation omitted, modification in original). As to Michael Armstrong, and indeed as to all defendants, plaintiffs have not specified the chattel or chattels with which each defendant interfered, which in turn proximately caused them harm. See id. at 1350-51, 71 P.3d at 302 ("Under California law, trespass to chattels lies where an intentional interference with the possession of personal property has proximately caused injury" (citation and quotation marks omitted).). Insofar as any property is concerned, plaintiffs have only alleged that Michael Armstrong influenced Virginia Armstrong to transfer a piece of real property from one trust to another. (Third Am. Compl. at 4.) This is not an interference with "possession of personal property," which appears to be the crux of the tort of trespass to chattels.9 Accordingly, plaintiffs' claim for trespass to chattels should be dismissed with prejudice as to Michael Armstrong. E. Plaintiffs' State Law Claim for Loss of Consortium In their thirty-sixth claim for relief, plaintiffs allege that "All Defendants" are liable for loss of consortium. (Third Am. Coml. at 25.) Although plaintiffs incorporate the remainder of their complaint by reference, their allegations are limited to the following: Paragraphs above incorporated by reference. Plaintiffs Brent, Susan, Jeremiah, Cacey, Jennifer, Christy, Joy, Clark, and Jill Winters suffered loss of consortium with each other and their grandmother as a result of the actions of the Defendants. (Id.) One California court has cited with approval a California practice manual that defines the tort of loss of consortium as having the following four elements:

The term "chattel" is defined as "[m]ovable or transferable property; esp., personal property." Black's Law Dictionary at 229 (7th ed. 1999). To the extent that a real property interest is concerned, the term "chattel real" is defined as "a real-property interest that is less than a freehold or fee, such as a leasehold." Id.
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(1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; (2) a tortious injury to the plaintiff's spouse;

3 (3) loss of consortium suffered by the plaintiff; and 4 (4) the loss was proximately caused by the defendant's act. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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Hahn v. Mirda, 147 Cal. App. 4th 740, 746 & n.2, 54 Cal. Rptr. 3d 527, 530 & n.2 (Ct. App. 2007) (citation omitted). Additionally, "[a] cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse." Id. at 746, 54 Cal. Rptr. 3d at 531 (Ct. App. 2007). Additionally, the Ninth Circuit Court of Appeals recently explained: To support a loss of consortium claim, marital spouses must allege that their partner suffered an injury that is "sufficiently serious and disabling to raise the inference that the conjugal relationship is more than superficially or temporarily impaired." Molien v. Kaiser Found. Hosp., 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, 823 (1980); Anderson v. Northrop Corp., 203 Cal.App.3d 772, 250 Cal.Rptr. 189, 195 (1988) (same). The injury may be physical or psychological, but psychological injury must "rise [ ] to the level of a `neurosis, psychosis, chronic depression, or phobia' [to be] sufficient to substantially disturb the marital relationship." Anderson, 250 Cal.Rptr. at 195, quoting Molien, 167 Cal.Rptr. 831, 616 P.2d at 813. Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1039 (9th Cir. 2008) (modifications in original). The undersigned will recommend that plaintiffs' loss of consortium claim be dismissed with prejudice because they have failed to allege a plausible claim for relief. First, plaintiffs have not alleged any facts that would suggest that any conjugal or marital relationship has been more than superficially affected. Second, plaintiffs have not alleged any facts regarding how the acts of Michael Armstrong proximately caused any loss of consortium. Plaintiffs' allegations of causation are general as to all defendants and are conclusory in nature. Third, under California law, parents may not pursue a claim loss of filial consortium, and children may

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not pursue a claim for loss of parental consortium. See Baxter v. Superior Court, 19 Cal. 3d 461, 466, 563 P.2d 871, 874 (1977); Borer v. Am. Airlines, Inc., 19 Cal. 3d 441, 453, 563 P.2d 858, 866 (1977); Meighan v. Shore, 34 Cal. App. 4th 1025, 1034, 40 Cal. Rptr. 2d 744, 749 (Ct. App. 1995). Fourth, plaintiffs have improperly re-pled claims on behalf of Joy, Clark and Jill Winters, as the court previously ordered that references to these minors be stricken from the Third Amended Complaint. Finally, it would appear facially improper that plaintiffs could recover for loss of consortium with "their grandmother," Virginia Armstrong, whom they have named as a defendant in this case. Plaintiffs have failed to meet the pleading requirements to state a cognizable claim for relief, and the undersigned has no reason to believe that these deficiencies could be cured through amendment. F. Plaintiffs' State Law Claim for Intentional Infliction of Emotional Distress Finally, Michael Armstrong seeks to dismiss plaintiffs' thirty-eighth claim for relief, which seeks damages for intentional infliction of emotional distress ("IIED") against "All Defendants." (Third Am. Compl. at 25.) As with their loss of consortium claim, plaintiffs' IIED claim contains only bare factual allegations and legal conclusions, which are stated generally against all defendants: Paragraphs above incorporated by reference.All [sic] Defendants acted with reckless and intentionally [sic] disregard of Plaintiffs' rights. Defendants' conduct on dates referenced above was extreme and outrageous. Defendants' conduct is the proximate cause of their distress. Each Plaintiff suffers severe emotional distress as a result of all Defendants' conduct. (Id.) To state a claim for intentional infliction of emotional distress under California law, a plaintiff must satisfactorily allege the following elements: "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and
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(3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." Hughes v. Pair, 46 Cal. 4th 1035, 1050, 209 P.3d 963, 976 (2009) (citations and quotation marks omitted). The California Supreme Court has explained that "outrageous" conduct is that which is so "extreme as to exceed all bounds of that usually tolerated in a civilized community," and that "the defendant's conduct must be intended to inflict injury or engaged in with the realization that injury will result." Id. (citations and quotation marks omitted). As noted above, plaintiffs' IIED claim is a collection of legal conclusions and bare factual allegations that incorporate the remainder of the Third Amended Complaint by reference. Plaintiffs do not allege facts demonstrating that Michael Armstrong's acts rose to the level of "extreme and outrageous" behavior as defined under California, that any of the plaintiffs suffered severe or extreme emotional distress, or that Michael Armstrong's conduct proximately caused any particular plaintiff's emotional distress. Accordingly, the undersigned will recommend that this claim be dismissed as to Michael Armstrong. The undersigned will recommend dismissal with prejudice because nothing in the Third Amended Complaint or plaintiffs' written opposition brief suggests that the identified pleading deficiencies can be cured through amendment. In their consolidated opposition brief, plaintiffs continue their conclusory allegations regarding the IIED claim as to all "Responding Defendants." (Dkt. No. 89 at 10.) In an attempt to substantiate that the Responding Defendants' engaged in outrageous conduct, plaintiffs explain that they "were unlawfully thrown out of their lawfully possessed home, [and were] physically abused in the middle of the night." (Id.) Yet there is no suggestion in the opposition brief or the Third Amended Complaint that this was Michael Armstrong's conduct. //// //// ////
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IV.

CONCLUSION For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 1. Defendant Michael Armstrong's motion to dismiss the Third Amended

Complaint (Dkt. No. 82, 85) be granted; and 2. with prejudice. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed with the court and served on all parties within fourteen days after service of the objections. Local Rule 304(d). Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). IT IS SO RECOMMENDED. DATED: July 19, 2010 All of plaintiffs' claims alleged against Michael Armstrong be dismissed

_____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

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