Hall v. Apollo Group, Inc. et al

Filing 86

ORDER by Judge Lucy H. Koh denying 39 Ex Parte Application ; granting 8 Motion to Dismiss (lhklc3S, COURT STAFF) (Filed on 9/2/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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KRISLEE CARDINAL HALL,

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Plaintiff,
v.

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APOLLO GROUP, INC., et al.,
Defendants.

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Case No.: 14-CV-01404-LHK
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS; DENYING
PLAINTIFF’S MOTION TO SCHEDULE
RULE 16 SCHEDULING
CONFERENCE

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Currently before the Court is Defendants Apollo Group, Inc. (“Apollo”) and University of
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Phoenix, Inc.’s (“UOP”) (collectively, “Defendants”) Motion to Dismiss Krislee Cardinal Hall’s
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(“Hall”) Complaint. (“Mot.”) ECF No. 8. Also before the Court is Hall’s Request to Schedule Rule
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16 Scheduling Conference. ECF No. 39. Pursuant to Civil Local Rule 7-1(b), the Court concludes
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that this matter is appropriate for determination without oral argument and accordingly VACATES
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the hearing and case management conference scheduled for September 4, 2014, at 1:30 p.m.
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Having considered the submissions of the parties and the relevant law, the Court hereby GRANTS
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Defendants’ Motion to Dismiss without prejudice. Hall’s Request to Schedule Rule 16 Scheduling
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Conference is DENIED.
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I.

BACKGROUND

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A.

Factual Background

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Case No.: 14-CV-01404-LHK
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION TO
SCHEDULE RULE 16 SCHEDULING CONFERENCE

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Defendant Apollo provides educational programs at the high school, college, and graduate
levels. (“Compl.”) ¶ 5, ECF No. 203. Apollo’s subsidiary, Defendant UOP, offers associates,

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bachelors, masters, and doctoral degree programs in a number of fields, including criminal justice.

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Id. ¶ 6. Hall received a Bachelor of Science in Criminal Justice Administration from Phoenix in

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2006 and “completed online classes for Masters of Justice and Security Administration” in 2008.

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Id. ¶ 4. However, Hall was unable to obtain a job in the criminal justice field. Id. ¶¶ 20-21. On

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March 26, 2014, Hall, proceeding pro se, filed the present action, asserting claims against Apollo

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and Phoenix for: (1) fraud; (2) breach of contract; (3) breach of the implied covenant of good faith

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and fair dealing; (4) concealment; (5) reliance; (6) intentional infliction of emotional distress; (7)

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United States District Court
For the Northern District of California

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negligent infliction of emotional distress; (8) false promise; (9) intentional misrepresentation; (10)

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negligent misrepresentation; (11) opinions as statement of fact; and (12) invasion of privacy. Id. at

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1.

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The facts underlying all twelve of Hall’s asserted causes of action are essentially the same.

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Specifically, Hall alleges that Defendants made various misrepresentations to her regarding the

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nature and value of her criminal justice degrees. Hall alleges that prior to enrolling at UOP in June

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of 2004, Robert Jacobs, “an employee and authorized agent of [D]efendants],” informed Hall that

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“credits obtained from education at defendants[’] institutions were and would be transferrable to

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any university or college,” and that Hall would have lifetime access to UOP’s “Student Resource

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Center[s].” Id. ¶¶ 10-11. Hall alleges that Joan Rodrigues, the “manager/director” of UOP’s

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Fremont campus, similarly represented that credits from UOP would be transferable to any other

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learning institution. Id. ¶¶ 15, 28. Hall further alleges that Rodrigues and various UOP professors

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told her at various times during Hall’s time as a student at UOP that a degree in criminal justice

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from UOP would enable Hall to get a job as an FBI special agent. Id. ¶¶ 16-19, 28.

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Hall maintains that these representations were false. Hall contends that upon applying for a

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job with the FBI, which Hall claims to have done in 2008, 2009, and 2010, she discovered that her

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degrees from UOP did not qualify her for a position as an FBI special agent. Id. ¶ 28. Hall further

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contends that she discovered that her credits from UOP were not transferable to “any university or

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Case No.: 14-CV-01404-LHK
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION TO
SCHEDULE RULE 16 SCHEDULING CONFERENCE

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college” in October 2011, when she unsuccessfully attempted to transfer her credits to law school.

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Id. Hall also claims that she was prevented from using a UOP student resource center for personal

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business in spite of Defendants’ representation that she would enjoy lifetime access to these

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centers. Id. ¶ 30.

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Hall identifies additional purported misrepresentations made by UOP employees. Hall

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claims that Joan Rodrigues claimed to have an MBA when she did not. Id. ¶ 34. Hall also alleges

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that several of her professors lied about their academic credentials and professional achievements.

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Id. ¶¶ 16-18.

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B.

United States District Court
For the Northern District of California

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Procedural History

Hall filed the Complaint in this action on March 26, 2014. ECF No. 1. The Complaint is

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nearly identical to a Second Amended Complaint filed in Bernstein v. Apollo Group, Inc., Case No.

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13-CV-01701.1 Compare id., with Case No. 13-CV-01701, ECF No. 203. Accordingly, upon

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motion of Defendants, Case No. 13-CV-01701, ECF No. 210, the Court related the Bernstein and

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Hall cases on April 28, 2014. ECF No. 19.2

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Defendants moved to dismiss the Complaint on April 21, 2014.3 Mot. Hall filed an

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“Opposition” to the Motion on April 23, 2014, in which Hall principally objected to Defendants’

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contention that the Bernstein and Hall actions were related. See ECF No. 13. Hall’s April 23 filing

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also objected to Defendants’, apparently erroneous, title of their Motion as a Motion to Dismiss a

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“Second Amended Complaint” on the ground that Hall had filed only one complaint. See id.

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Hall had previously sought joinder in the Bernstein action, which this Court had denied on the
ground that the basis for joinder was inadequately explained. See Case No. 13-CV-01701, ECF No.
201 at 10-11. Although the instant complaints in the Bernstein and Hall actions are substantively
identical, the Court addresses Defendants’ motion to dismiss Ms. Bernstein’s Second Amended
Complaint in a separate order. See Case No. 13-CV-01701, ECF No. 284.
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Unless otherwise noted, all remaining ECF citations are to Case Number 14-CV-01404.
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Defendants accompanied the Motion to Dismiss with a Request for Judicial Notice. (“RJN”) ECF
No. 9. Defendants ask the Court to take judicial notice of four documents filed in the Bernstein
action. See id. The Court finds that these documents are all proper subjects for judicial notice, as
they are publicly available court documents filed in another case. See, e.g., Chrisanthis v. United
States, No. 08-2472, 2008 WL 4848764, at * 1 (N. D. Cal. Nov. 7, 2008); Del Puerto Water Dist.
v. U.S. Bureau of Reclamation, 271 F. Supp. 2d 1224, 1233 (E.D. Cal. 2003). Accordingly, the
Court GRANTS Defendants’ Requests for Judicial Notice.
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Case No.: 14-CV-01404-LHK
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION TO
SCHEDULE RULE 16 SCHEDULING CONFERENCE

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On April 29, 2014, Hall filed a “Response to Opposition” that again objected to the title of

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Defendants’ Motion to Dismiss. See ECF No. 23. The April 29 filing also stated that pro se

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pleadings are to be liberally construed and that Hall should be given leave to amend in the event

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the Complaint is dismissed. See id. Also on April 29, 2014, Hall filed “Objections” to the Court’s

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order relating the Bernstein and Hall actions. ECF No. 24.

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Defendants filed a Reply in support of the Motion to Dismiss on May 12, 2014. ECF No.

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34. Hall responded with a “Surreply to Reply” on May 13, 2014. ECF No. 35. On May 16, 2014,

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Hall filed a Request to Schedule Rule 16 Scheduling Conference. ECF No. 39.

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Since the inception of this case, Hall has also filed numerous motions seeking to compel

United States District Court
For the Northern District of California

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discovery. See ECF Nos. 36-37, 42-43, 45-46, 55. Magistrate Judge Grewal denied these motions

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without prejudice to their renewal pending this Court’s ruling on Defendants’ instant Motion to

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Dismiss. See ECF No. 72 at 2.

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II.

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LEGAL STANDARD
A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6) tests the legal

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sufficiency of the plaintiff’s claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When

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determining whether a claim has been stated, the Court accepts as true all well-pleaded factual

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allegations and construes them in the light most favorable to the plaintiff. Reese v. BP Exploration

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(Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, a court need not accept as true

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allegations contradicted by judicially noticeable facts, Shwarz v. United States, 234 F.3d 428, 435

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(9th Cir. 2000), and the “[C]ourt may look beyond the plaintiff’s complaint to matters of public

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record” without converting the Rule 12(b)(6) motion into one for summary judgment, Shaw v.

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Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995). Nor is the court required to “‘assume the truth of

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legal conclusions merely because they are cast in the form of factual allegations.’” Fayer v.

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Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam) (quoting W. Mining Council v. Watt,

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643 F.2d 618, 624 (9th Cir. 1981)). Mere “conclusory allegations of law and unwarranted

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inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183

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(9th Cir. 2004).

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Case No.: 14-CV-01404-LHK
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION TO
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While a complaint need not contain detailed factual allegations, it “must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A

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claim is facially plausible when it “allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Id.
Complaints drafted by pro se litigants are held to “less stringent standards than formal

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pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). The Court has an

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obligation to construe pro se pleadings liberally and to afford the plaintiff the benefit of any doubt.

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Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). “A district court should not dismiss a pro se

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United States District Court
For the Northern District of California

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complaint without leave to amend unless it is absolutely clear that the deficiencies of the complaint

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could not be cured by amendment.” Id. (internal quotation marks omitted). “‘[B]efore dismissing a

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pro se complaint the district court must provide the litigant with notice of the deficiencies in his

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complaint in order to ensure that the litigant uses the opportunity to amend effectively.’” Id.

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(quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).

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III.

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DISCUSSION
Even under the liberal pleading standard afforded to pro se litigants, the Court concludes

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that the Complaint fails to state any plausible claim for relief. The Court will address each of Hall’s

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claims in turn, before turning to the question of whether to grant leave to amend.

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A.

Fraud (Claims 1, 4, 5, 8, 9, 10, 11)

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The Complaint raises numerous claims for fraud. Specifically, Hall’s claims for fraud

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(claim 1), concealment (claim 4), reliance (claim 5), false promise (claim 8), intentional

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misrepresentation (claim 9), negligent misrepresentation (claim10), and opinions as statements of

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fact (claim 11), all rely on the allegation that Defendants’ made false statements regarding the

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nature and value of a degree in criminal justice from UOP. See Compl. ¶¶ 28, 34-37, 39-43, 49-51,

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54-58, 60-69. What is more, these claims all relate to the same set of misrepresentations—namely,

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that a degree in criminal justice from UOP would enable Hall to find work as an FBI special agent

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Case No.: 14-CV-01404-LHK
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION TO
SCHEDULE RULE 16 SCHEDULING CONFERENCE

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and that UOP credits would be transferable to “any” learning institution.4 See id. Accordingly, the

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Court will discuss these claims as a group.

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A claim of fraud “must state with particularity the circumstances constituting fraud.” Fed.

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R. Civ. P. 9(b). The Ninth Circuit has “interpreted Rule 9(b) to mean that the pleader must state the

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time, place, and specific content of the false representations as well as the identities of the parties

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to the misrepresentation.” Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392-93 (9th Cir.

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1988) (internal quotation marks omitted).

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Initially, the Court finds that Hall’s fraud claims based on Defendants’ representation that
Hall’s degree would allow her to obtain a job with the FBI are untimely. In California, fraud claims

United States District Court
For the Northern District of California

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must be brought within three years after the plaintiff discovers the facts giving rise to the fraud.

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Cal. Civ. P. Code § 338(d). Hall alleges that she applied for a job with the FBI beginning in 2008.

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Compl. ¶ 28. Accordingly, Hall must have learned in 2008 that her criminal justice degree was

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insufficient to qualify her for a position as an FBI special agent. Hall did not file this case until

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March 2014, more than three years since she first applied for a job with the FBI. ECF No. 1.

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Therefore, Hall’s fraud claims arising out of this alleged misrepresentation are barred by the statute

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of limitations and must be dismissed.

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Hall’s fraud allegations based on Defendants’ representation that Hall’s UOP criminal

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justice credits would be transferable to any other learning institution fail as well. For one thing, it is

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unclear whether claims based on this representation are time-barred. Although Hall claims that she

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did not discover that Defendants’ representation regarding the transferability of credits were false

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until October 2011, when she attempted to transfer her credits to law school, e.g., Compl. ¶ 28, this

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allegation is not, by itself, sufficient to establish that her claims are timely. Under California’s

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“discovery rule,” a cause of action does not accrue “until the plaintiff discovers, or has reason to

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discover, the cause of action.” Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 807 (2005). In

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Although Hall additionally claims that Defendants falsely represented that she would enjoy
lifetime access to UOP’s student resource centers, none of Hall’s fraud-based causes of action
attempts to state a claim based on this alleged misrepresentation. Accordingly, the Court will
discuss this allegation only as it relates to Hall’s contract claims. See infra Part III.B.
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Case No.: 14-CV-01404-LHK
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION TO
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order for this rule to apply, however, a plaintiff must plead facts to show “the inability to have

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made earlier discovery despite reasonable diligence.” Id. at 808 (emphasis added) (internal

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quotation marks omitted). Thus, for her claims to be timely, Hall must explain why she could not,

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through the exercise of reasonable diligence, have discovered her fraud claims based on

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Defendants’ purported misrepresentation regarding transferability of credits prior to October 2011.

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The Complaint contains no such allegations of diligence.

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In any event, even if Hall’s fraud claims regarding transferability of credits are timely, the

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claims fail because the purported misrepresentation—that other learning institutions would accept

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Hall’s criminal justice credits from UOP, see, e.g., Compl. ¶¶ 30, 32—is a prediction concerning

United States District Court
For the Northern District of California

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future events and the actions of third parties, rather than a statement regarding an existing fact.

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“Generally, actionable misrepresentation must be one of existing fact; predictions as to future

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events, or statements as to future action by some third party, are deemed opinions, and not

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actionable fraud.” Cohen v. S & S Constr. Co., 151 Cal. App. 3d 941, 946 (1983) (internal

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quotation marks omitted). There are exceptions to this rule where: (1) one party holds himself out

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to be specially qualified and the other party reasonably relies upon the former’s superior

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knowledge; (2) the opinion is by a fiduciary or other trusted person; or (3) a party states his opinion

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as an existing fact or as implying facts that justify a belief in the truth of the opinion. See id.

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However, Hall does not allege that any of these exceptions applies.5 Accordingly, the Court finds

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that Hall fails to identify an actionable fraudulent statement with respect to her claims arising out

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of Defendants’ statement regarding the transferability of credits, and her fraud claims based on this

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statement must therefore be dismissed.

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Finally, to the extent Hall seeks to bring fraud claims based on assorted other

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misrepresentations identified in the Complaint, the Court finds that Hall has failed to state a claim

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for fraud based on these additional misrepresentations. In particular, Hall repeatedly alleges that

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Hall does allege that an exception to the general rule that predictions of future events are not
actionable fraud applies with regard to Defendants’ purported misrepresentation that Hall’s UOP
degree would enable her to work as an FBI special agent. See Compl. ¶ 42. The Complaint contains
no similar allegations with regard to Defendants’ remaining purported misrepresentations.
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Case No.: 14-CV-01404-LHK
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION TO
SCHEDULE RULE 16 SCHEDULING CONFERENCE

Joan Rodrigues falsely stated in November 2004 that she had an MBA. See, e.g., Compl. ¶¶ 39, 49.

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Any effort to state a claim for fraud based on this misrepresentation would fail for lack of reliance,

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a necessary element of a claim sounding in fraud. See Engalla v. Permanente Med. Grp., Inc., 15

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Cal. 4th 951, 974 (1997) (“The elements of fraud that will give rise to a tort action for deceit are:

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(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of

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falsity (or scienter); (c) intent to defraud, i.e. to induce reliance; (d) justifiable reliance; and (e)

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resulting damage.” (emphasis added) (internal quotation marks omitted)). Although Hall intimates

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that Rodrigues’s false representation of her academic credentials played some role in convincing

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Hall to enroll in UOP, this allegation is belied by the fact that Rodrigues made the false statement

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United States District Court
For the Northern District of California

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after Hall’s enrollment. Compare Compl. ¶ 14 (Hall began attending UOP in July 2004), with id.

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¶ 28 (Rodrigues told Hall she possessed an MBA in November 2004). Consequently, Hall cannot

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bring fraud claims based on Rodrigues’s allegedly false statement that Rodrigues had an MBA.

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Hall also identifies numerous instances in which her professors allegedly misrepresented

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their academic and professional credentials. See id. ¶¶ 16-18. The Complaint appears to tie these

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misrepresentations to Hall’s decision to enroll at UOP, but again, Hall alleges that her professors

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made these allegedly false statements after Hall enrolled and began coursework at UOP. See id.

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Accordingly, these statements cannot serve as a basis for Hall’s fraud claims either.

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In sum, the Court concludes that the Complaint’s causes of action for fraud (claim 1),

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concealment (claim 4), reliance (claim 5), false promise (claim 8), intentional misrepresentation

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(claim 9), negligent misrepresentation (claim10), and opinions as statements of fact (claim 11) all

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fail to state a claim for purposes of Rule 9(b). Accordingly, the Court GRANTS Defendants’

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Motion to Dismiss these causes of action.

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B.

Contract (Claims 2 and 3)

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Hall’s second and third causes of action assert claims for breach of contract (claim 2) and

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breach of the implied covenant of good faith and fair dealing (claim 3). In California, “[t]he

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standard elements of a claim for breach of contract are: (1) the contract, (2) plaintiff’s performance

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or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.” Wall

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Case No.: 14-CV-01404-LHK
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION TO
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St. Network, Ltd. v. N.Y. Times Co., 164 Cal. App. 4th 1171, 1178 (2008). Count 2 of the

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Complaint alleges that Hall and Defendants entered into an oral agreement on June 22, 2004,

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wherein Hall would pay for a UOP degree in criminal justice. Compl. ¶ 30. Hall further alleges that

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the essential terms of this oral agreement were that Hall would receive “[l]ifetime access to Student

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Resource Center . . . . Credits would be transferable to any learning institution . . . [and] [d]egree

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would qualify plaintiff to apply for special agent criminal justice position.” Id. As Defendants point

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out, see Mot. at 7, this claim is barred by California’s statute of frauds, which requires that any

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agreement “that by its terms is not to be performed within a year from the making thereof” be in

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writing in order to be enforceable. Cal. Civ. Code § 1624(a)(1); see also, e.g., Rossberg v. Bank of

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United States District Court
For the Northern District of California

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Am., N.A., 219 Cal. App. 4th 1481, 1503 (2013) (concededly oral agreement that fell within statute

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of frauds not enforceable). The alleged agreement was for Hall to complete a multiyear criminal

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justice degree (and to receive “lifetime” access to UOP’s student resource centers), something that

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by its terms was not to be completed within a year of entering the agreement. Accordingly, the

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agreement alleged in the Complaint comes within the statute of frauds and was required to be in

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writing. As Hall concedes that the agreement was oral, Compl. ¶ 30, Hall’s breach of contract

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claim must be dismissed for failure to allege the existence of an enforceable contract.

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The absence of a contract is also fatal to Hall’s claim for breach of the implied covenant of

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good faith and fair dealing. See Justo v. Indymac Bancorp, No. 09-1116, 2010 WL 623715, at *7

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(C.D. Cal. Feb. 19, 2010) (“Because the alleged oral contract is unenforceable under the statute of

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frauds, Plaintiffs’ breach of implied covenant claim fails with respect to that contract.” (citing

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Foley v. Interactive Data Corp., 47 Cal. 3d 654, 683-84 (1988))). Accordingly, the Court

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GRANTS Defendants’ Motion to Dismiss Hall’s second and third causes of action.

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C.

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Hall’s sixth and seventh causes of action assert claims for intentional (claim 6) and

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negligent (claim 7) infliction of emotional distress. “The tort of intentional infliction of emotional

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distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with

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the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2)

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Emotional Distress (Claims 6 and 7)

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the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were

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actually and proximately caused by the defendant’s outrageous conduct.” Cochran v. Cochran, 65

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Cal. App. 4th 488, 494 (1998). The conduct alleged must be “regarded as atrocious[] and utterly

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intolerable in a civilized society.” Id. at 496.

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Hall’s allegations of extreme and outrageous conduct fall far short of what is necessary to

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state a claim for intentional infliction of emotional distress. Hall alleges that Defendants

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misrepresented the value of a UOP degree and that some of Hall’s professors misrepresented their

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academic and professional credentials. Compl. ¶ 45. On its face, none of this conduct rises to the

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level of conduct that is “atrocious[] and utterly intolerable in a civilized society.”

United States District Court
For the Northern District of California

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The elements of a claim of negligent infliction of emotional distress are: (1) the defendant

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engaged in negligent conduct; (2) the plaintiff suffered serious emotional distress; and (3) the

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defendants’ negligent conduct was a cause of the serious emotional distress. Butler-Rupp v.

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Lourdeaux, 134 Cal. App. 4th 1220, 1226 n.1 (2005). Moreover, “unless the defendant has

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assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is

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available only if the emotional distress arises out of the defendant’s breach of some other legal duty

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and the emotional distress is proximately caused by that breach of duty.” Potter v. Firestone Tire &

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Rubber Co., 6 Cal. 4th 965, 985 (1993). “Even then, with rare exceptions, a breach of the duty

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must threaten physical injury, not simply damage to property or financial interests.” Id. The

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Complaint neither identifies any legal duty owed to Hall by Defendants, nor explains how

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Defendants’ breach of any duty proximately caused Hall emotional distress.

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Due to the above-described pleading deficiencies, the Court GRANTS Defendants’ Motion
to Dismiss Hall’s sixth and seventh causes of action.

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D.

Invasion of Privacy (Claim 12)

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Hall’s final claim is for invasion of privacy. Compl. ¶ 71. Hall claims that on February 22,

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2005, UOP Professor Lionel Rawlins (“Rawlins”) “accosted Plaintiff [] in an elevator.” Id. Hall

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does not provide any further details regarding this incident.

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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION TO
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Under California law, four distinct types of conduct may give rise to liability for invasion of

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privacy: “(1) intrusion into private matters; (2) public disclosure of private facts; (3) publicity

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placing a person in a false light; and (4) misappropriation of a person’s name or likeness.” Hill v.

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Nat’l Collegiate Athletic Ass’n, 7 Cal. 4th 1, 24 (1994). In order to state a claim for invasion of

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privacy based upon any one of these types of conduct, a plaintiff must allege: (1) a legally

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protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3)

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conduct by defendant constituting a serious invasion of privacy.” Ruiz v. Gap, Inc., 380 F. App’x

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689, 692 (9th Cir. 2010) (internal quotation marks omitted). “Actionable invasions of privacy must

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be sufficiently serious in their nature, scope, and actual or potential impact to constitute an

United States District Court
For the Northern District of California

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egregious breach of the social norms underlying the privacy right.” Id. (internal quotation marks

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omitted).

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The Complaint fails to state a claim for invasion of privacy. Hall has not alleged the

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existence of a legally protected privacy interest, a reasonable expectation of privacy, or conduct by

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Defendants invading her privacy. Indeed, the Complaint does not provide sufficient factual detail

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for the Court to understand what Hall means when she alleges that Rawlins “accosted” her.

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Accordingly, the Court concludes that Hall fails to state a claim for invasion of privacy and

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GRANTS Defendants’ Motion to Dismiss Hall’s twelfth cause of action.

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E.

Leave to Amend

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The Court has serious misgivings about granting leave to amend in this case. Hall’s

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Complaint is, in all material respects, identical to the Second Amended Complaint filed in the

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Bernstein case, which this Court has dismissed with prejudice. Case No. 13-CV-01701, ECF No.

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284. However, as this is Hall’s first complaint, and in light of the more liberal pleading standards

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that apply to pro se litigants, the Court will grant Hall leave to amend the Complaint. However,

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discovery in this case shall remain stayed until Hall files a complaint that can at least partially

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withstand a motion to dismiss. The Court further orders that the parties need not engage in a Rule

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26(f) conference until after a complaint in this case survives a motion to dismiss.

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IV.

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CONCLUSION
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Case No.: 14-CV-01404-LHK
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION TO
SCHEDULE RULE 16 SCHEDULING CONFERENCE

1

For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss in its

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entirety without prejudice. Hall’s Request to Schedule Rule 16 Scheduling Conference is DENIED.

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Discovery shall remain stayed. Should Hall elect to file an amended complaint, she shall do so

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within 21 days of this Order. Failure to meet the 21-day deadline or failure to cure the deficiencies

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identified in this order will result in a dismissal with prejudice. Hall may not add new claims or

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parties without leave of the Court or stipulation of the parties pursuant to Federal Rule of Civil

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Procedure 15.

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IT IS SO ORDERED.

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United States District Court
For the Northern District of California

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Dated: September 2, 2014

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 14-CV-01404-LHK
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION TO
SCHEDULE RULE 16 SCHEDULING CONFERENCE