Doe v. Hirigoyen

Filing 33

ORDER Granting in part and Denying in part 25 Motion to Dismiss. The fraudulent misrepresentation claim and related request for punitive damages are dismissed without prejudice. Denying as moot 28 Motion to Stay Discovery. Signed by Judge Miranda M. Du on 4/25/2013. (Copies have been distributed pursuant to the NEF - SLR)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

JANE DOE,

Case No. 2:12-cv-01644-MMD-GWF

8

Plaintiff,
v.

9
10

RICHARD ROE,
Defendant.

11
12
13

I.

ORDER
(Defendant’s Motion to Dismiss
– dkt. no. 25;
Defendant’s Motion to Postpone all
Discovery and Initial Discovery
Proceedings Pending Motion to Dismiss
– dkt. no. 28)

SUMMARY

14

Before the Court are Defendant Richard Roe’s Motions to Dismiss (dkt. no. 25) and

15

to Postpone Discovery (dkt. no. 28). For the reasons discussed below, the Motion to

16

Dismiss is granted in part and denied in part, and the Motion to Postpone Discovery is

17

denied.

18

II.

19

BACKGROUND
Plaintiff Jane Doe alleges that she and Defendant Richard Roe began an

20

intimate relationship in March 2010. (Dkt. no. 1 at ¶ 3.)

At the beginning of the

21

relationship, both parties resided in California. In early 2011 Defendant moved to

22

Nevada. (Dkt. no. 32-1 at ¶¶ 3, 6.)

23

Plaintiff alleges that at all times during the relationship, Defendant was knowingly

24

afflicted with Herpes Simplex Virus II (“HSV II”), and that Defendant actively and

25

knowingly withheld information concerning his venereal disease during the course of the

26

parties’ relationship. (Dkt. no. 1 at ¶¶ 8-9.) Plaintiff alleges that she contracted HSV II

27

from Defendant. (Id. at ¶ 10.) Plaintiff avers that she would not have engaged in sexual

28

intercourse with Defendant had she known that he had HSV II, but that Defendant did

1

not inform her about the disease until after her positive diagnosis in December 2010.

2

(Id. at ¶¶ 10-12.)

3

Plaintiff filed the instant action on September 19, 2012, alleging that Defendant

4

willfully transmitted HSV II to her. (Dkt. no. 1.) Plaintiff asserts claims of negligence,

5

intentional infliction of emotional distress (“IIED”), and fraudulent misrepresentation.

6

She requests both compensatory and punitive damages. (Dkt. no. 1 at 5.) Although

7

Plaintiff brings this action in Nevada District Court, her negligence and fraudulent

8

misrepresentation claims are based on California Health and Safety Code § 120290,

9

which prohibits the willful transmission of an infectious disease. (Dkt. no. 1 at ¶¶ 16, 29.)

10

Defendant filed his Motion to Dismiss for failure to state a claim pursuant to

11

Federal Rule of Civil Procedure 12(b)(6). (Dkt. no. 25.) Defendant alternatively moves

12

for summary judgment under Federal Rule of Civil Procedure 12(d), which allows courts

13

to consider matters outside the pleadings presented on a 12(b)(6) motion and to

14

construe the motion as a motion for summary judgment. The parties submit several

15

documents

16

correspondence. However, as discovery has not commenced in this action, the parties

17

have not had an opportunity to prepare the documents and arguments necessary for a

18

complete motion for summary judgment and opposition thereto. The Court declines to

19

construe the Motion as a motion for summary judgment.

to

their

Motion

and

Opposition,

including

affidavits

and

e-mail

20

Defendant argues that Plaintiff’s claims should be dismissed because: (1)

21

Plaintiff’s claims for negligence and IIED are time-barred by the statute of limitations; (2)

22

Plaintiff has not pled plausible allegations to support a claim for negligence or IIED; and

23

(3) Plaintiff’s fraudulent misrepresentation claim does not comply with the heightened

24

pleading standard set forth in Federal Rule of Civil Procedure 9(b).

25

III.

LEGAL STANDARD

26

A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which

27

relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide

28

“a short and plain statement of the claim showing that the pleader is entitled to relief.”
2

1

Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While

2

Rule 8 does not require detailed factual allegations, it demands more than “labels and

3

conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v.

4

Iqbal, 556 US 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

5

“Factual allegations must be enough to rise above the speculative level.” Twombly, 550

6

U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient

7

factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at

8

678 (internal citation omitted).

9

In Iqbal, the Supreme Court clarified the two-step approach district courts are to

10

apply when considering motions to dismiss. First, a district court must accept as true all

11

well-pled factual allegations in the complaint; however, legal conclusions are not entitled

12

to the assumption of truth. Id. at 679. Mere recitals of the elements of a cause of action,

13

supported only by conclusory statements, do not suffice. Id. at 678. Second, a district

14

court must consider whether the factual allegations in the complaint allege a plausible

15

claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s complaint

16

alleges facts that allow a court to draw a reasonable inference that the defendant is

17

liable for the alleged misconduct. Id. at 678. Where the complaint does not permit the

18

court to infer more than the mere possibility of misconduct, the complaint has “alleged–

19

but not shown–that the pleader is entitled to relief.” Id. at 679 (internal quotation marks

20

omitted). When the claims in a complaint have not crossed the line from conceivable to

21

plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570.

22

IV.

DISCUSSION
Choice of Law1

23

A.

24

When considering a case founded on diversity, federal courts must apply the

25

substantive law of the forum state. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78-80

26
27
28

1

The parties initially failed to brief the choice of law issue. On April 11, 2013, the
Court ordered the parties to submit supplemental briefings on the issue, which the Court
relies on in reaching its conclusion. (Dkt. nos. 23, 31 and 32.)
3

1

(1938). Pursuant to Nevada choice of law rules concerning personal injury actions, the

2

local law of the state where the injury occurred determines the rights and liabilities of the

3

parties, unless some other state has a more significant relationship to the occurrence

4

and the parties. Gen. Motors Corp. v. Eighth Judicial Dist., 135 P.3d 111, 117 (Nev.

5

2006) (citing Restatement (Second) of Conflict of Laws § 146 (1971)). Section 146 of

6

the Restatement (Second) of Conflict of Laws defines “personal injury” as “either

7

physical harm or mental disturbance, such as fright and shock, resulting from physical

8

harm or from threatened physical harm or other injury to oneself or to another.” More

9

than one injury can arise from a single event. Wyeth v. Rowatt, 244 P.3d 765, 776 (Nev.

10

2010).

11

In Wyeth, the Nevada Supreme Court considered which state law governs in an

12

action involving an injury that could have occurred in multiple states. 244 P.3d at 775-

13

777. The plaintiffs in Wyeth developed breast cancer after taking hormone replacement

14

pills manufactured by the defendant. Id. at 770. The plaintiffs began taking the pills in

15

other states for seven to fourteen years before moving to Nevada, where they continued

16

taking the pills and were diagnosed with breast cancer. Id. The Nevada Supreme Court

17

held that the place of injury is “the state where the last element necessary for a claim

18

against the tortfeasor occurs . . . .” Id. at 776. The Court further held that the diagnosis

19

was the last element necessary to assert a claim against the defendants. Id. at 777. As

20

such, because the diagnosis occurred in Nevada, Nevada law governed the action. Id.

21

The Court reached this conclusion by reasoning that until a slow-developing disease is

22

detected, there is no injury to redress. Id. at 776. Moreover, the Court held that Nevada

23

had a more significant relationship to the parties than other states because the plaintiffs

24

resided and were diagnosed in Nevada, and experienced emotional and physical

25

distress from the treatments they received in Nevada. Id. at 777.

26

Nevada’s choice of law principles dictate that the Court apply California law in

27

this case. Plaintiff avers that she is unable to ascertain the state where she suffered her

28

injury. She states that she and Defendant had intercourse multiple times in Nevada and
4

1

California before, during, and after her positive diagnosis of HSV II. (Dkt. no. 32 at 2.) It

2

is unclear whether Plaintiff will ultimately be able to determine the location of the injury.

3

However, Plaintiff received her positive diagnosis in California. Without this diagnosis,

4

Plaintiff could not have known that she was infected with a sexually transmitted disease.

5

The Court therefore holds that Plaintiff’s injury occurred in California because it is the

6

location of the diagnosis giving rise to the injury and the state where the last element

7

(damages) of the claims occurred. Additionally, Plaintiff has alleged that following the

8

transmission and diagnosis, she suffered severe emotional distress from her infection,

9

incurring additional injury in California.

10

Defendant argues that the location of the injury must be Nevada because Plaintiff

11

alleges that she was diagnosed with the disease only after having intercourse with

12

Defendant in Las Vegas. Even though the transmission may have occurred in Nevada,

13

the location of the conduct is irrelevant to this choice of law analysis. See Renfroe v. Eli

14

Lilly & Co., 686 F.2d 642, 645 (8th Cir. 1982) (holding that the injury occurred in

15

California, the state where the cancer had been discovered, even though the conduct

16

causing the plaintiff to obtain cancer occurred in Missouri).

17

Moreover, California has a more significant relationship to the parties than does

18

Nevada. Plaintiff resides in California, and the parties began their relationship in

19

California. Because Defendant has not demonstrated that Nevada has a more

20

significant relationship to the parties, the Court concludes that California law applies to

21

this case. See Restatement (Second) of Conflict of Laws § 146.

22
23

The Court must next determine whether Plaintiff has sufficiently pled her claims
under California law.

24
25

B.

Statute of Limitations Defense to Plaintiff’s Negligence and IIED
Claims

26

Defendant argues that Plaintiff’s negligence and IIED claims should be dismissed

27

because they were not asserted within the applicable statutes of limitations. “Statutes

28

of limitation are considered substantive rather than procedural; therefore a federal court
5

1

sitting on a diversity case must use the limitations law of the forum state.” Flowers v.

2

Carville, 292 F. Supp. 2d 1225, 1229 (D. Nev. 2003) aff’d, 161 Fed. App’x 697 (9th Cir.

3

2006) (citing Alberding v. Brunzell, 601 F.2d 474, 476 (9th Cir.1979); Klaxon Co. v.

4

Stentor Electric Mfg. Co., 313 U.S. 487, 496-97 (1941)). As such, this Court must

5

interpret and apply the California statutes of limitations to Plaintiff’s negligence and IIED

6

claims.

7

The statute of limitations for both negligence and IIED in California is two years.

8

Cal. Civ. Proc. Code § 335.1. Generally, the date of a cause of action is measured from

9

when the injury occurs. Jolly v. Eli Lilly Co., 751 P.2d 923, 926 (Cal. 1988). California,

10

however, has adopted the “discovery rule” in which “the accrual date of a cause of

11

action is delayed until the plaintiff is aware of her injury and its negligent cause.” Rivas

12

v. Safety-Kleen Corp., 98 Cal. App. 4th 218, 224 (2002) (quoting Jolly, 751 P.2d at 926).

13

The discovery rule measures the date of injury from the time a plaintiff discovers, or has

14

reason to discover, the cause of action. Id. at 225. Thus, the limitations periods here

15

began accruing once Plaintiff “has notice or information of circumstances to put a

16

reasonable person on inquiry . . . .” Id. When a suspicion of wrongdoing arises, a

17

plaintiff must find the facts underlying the possible cause of action; a plaintiff cannot wait

18

for the facts to find them. Id. Additionally, a plaintiffs is held to “knowledge that could

19

reasonably be discovered through investigation open to [the plaintiff],” and thus does

20

not need to have actual knowledge of the facts giving rise to her potential claim. Id.

21

In his Motion to Dismiss, Defendant argues that the statute of limitations began to

22

run in July of 2010, when Plaintiff began experiencing symptoms similar to an HSV II

23

infection. However, the Complaint alleges that Plaintiff was diagnosed in December

24

2010. (Dkt. no. 1 at ¶ 10.) The date of diagnosis is the relevant date here; the statute of

25

limitations was triggered when Plaintiff was diagnosed, not merely when she

26

experienced certain symptoms associated with HSV II. See Graveline v. Select Comfort

27

Retail Corp., 871 F. Supp. 2d 1033, 1038 (E.D. Cal. 2012) (holding that the statute of

28

limitations did not begin accruing until after plaintiffs discovered the cause of their
6

1

alleged injuries, not when they began experiencing symptoms associated with their

2

injuries).

3

Even were Defendant correct that the date in which Plaintiff suspected she

4

contracted HSV II was the relevant date here, Plaintiff does not allege that she

5

suspected she had contracted HSV II before December 2010. Defendant cites to e-mail

6

evidence stating that Plaintiff was suspicious she had the virus in July 2011, but the

7

Court does not consider these documents on a motion to dismiss. This is because

8

generally, a court may not consider any material beyond the pleadings in ruling on a

9

Rule 12(b)(6) motion to dismiss. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir.

10

2003). There are three exceptions to this rule, none of which are applicable here. See

11

Lee v. Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (describing the exceptions:

12

“‘1) a court may consider documents properly submitted as part of the complaint on a

13

motion to dismiss; 2) if documents are not physically attached to the complaint,

14

incorporation by reference is proper if the document’s authenticity . . . is not contested’

15

and ‘the plaintiff’s complaint necessarily relies’ on them; and 3) a court may take judicial

16

notice of ‘matters of public record.’”) (internal citations omitted). In fact, “[a] motion to

17

dismiss based on the running of the statute of limitations period may be granted only if

18

the assertions of the complaint, read with the required liberality, would not permit the

19

plaintiff to prove that the statute was tolled.” Bancroft Life & Cas. ICC, Ltd. v. Scolari,

20

No. 3:11-CV-5017, 2012 WL 4514361, at *3 (W.D. Wash. Oct. 2, 2012) (quoting

21

Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206–07 (9th Cir. 1995)). This is

22

not the case here.

23

Plaintiff filed this lawsuit on September 19, 2012. She alleges that she was

24

diagnosed in December 2012. Therefore, looking solely to the allegations contained in

25

the Complaint, the two-year California statute of limitations for IIED and negligence

26

does not bar this suit.

27

///

28

///
7

1

C.

Negligence

2

To bring a negligence claim under California law, a plaintiff must show “duty;

3

breach of duty; legal cause; and damages.” Friedman v. Merck & Co., 107 Cal. App.

4

4th 454, 463 (2003). “The threshold element of a cause of action for negligence is the

5

existence of a duty to use due care toward an interest of another that enjoys legal

6

protection against unintentional invasion.” Paz v. State of Cal., 994 P.2d 975, 981 (Cal.

7

2000). Defendant owed Plaintiff a duty under California law. California Health and

8

Safety Code § 120290 provides that “[a]ny person afflicted with any contagious,

9

infections, or communicable disease who willfully exposes himself or herself to another

10

person . . . is guilty of a misdemeanor.” Defendant allegedly violated this statute by

11

transmitting HSV II to Plaintiff. When a court adopts conduct proscribed by a statute as

12

the standard of care for negligence, negligence is presumed when the statute is

13

violated. Spates v. Dameron Hosp. Assn., 114 Cal. App. 4th 208, 218 (2003).

14

Negligence per se creates a presumption of negligence if four elements are

15

established: “(1) the defendant violated a statute, ordinance, or regulation of a public

16

entity; (2) the violation proximately caused death or injury to person or property; (3) the

17

death or injury resulted from an occurrence of the nature of which the statute,

18

ordinance, or regulation was designed to prevent; and (4) the person suffering the death

19

or the injury to his person or property was one of the class of persons for whose

20

protection the statute, ordinance, or regulation was adopted.” Galvez v. Frields, 88 Cal.

21

App. 4th 1410, 1420 (2001).

22

Plaintiff has alleged sufficient facts showing that Defendant violated § 20290 of

23

the California Health and Safety Code by willfully exposing himself to her. Plaintiff

24

alleges that Defendant knew he was infected with HSV II while in a relationship with

25

Plaintiff, and that Defendant and Plaintiff engaged in unprotected sex prior to Plaintiff

26

being diagnosed with HSV II.

27

Plaintiff has also sufficiently alleged that Defendant’s willful exposure was the

28

proximate cause of her contracting the disease. Plaintiff alleges that she was not
8

1

infected with HSV II prior to commencing the relationship with Defendant, and that

2

Plaintiff did not have sexual relations with any other men during their relationship (dkt.

3

no. 1 at ¶¶ 13-14), giving rise to the reasonable inference that she contracted the

4

disease from Defendant.

5

Additionally, Plaintiff has alleged facts suggesting that her injury is the type which

6

the statute was designed to prevent. Section 120290 prohibits the transmission of

7

infectious diseases, and Plaintiff alleges that Defendant transmitted an infectious

8

venereal disease to her. (Dkt. no. 1 at ¶ 19.)

9

Defendant contends that Plaintiff’s allegations demonstrate that she could not

10

have contracted HSV II from Defendant. Defendant points out that Plaintiff (1) did not

11

become aware of her infection until nine months after commencing the sexual

12

relationship with Defendant, despite HSV II’s short incubation period; (2) may have

13

contracted the disease from a prior relationship; and (3) apologized to Defendant for

14

accusing him of giving her HSV II. (Dkt. no. 13 at 10-11.) Plaintiff’s late diagnosis does

15

not render the allegation that Defendant transmitted the disease to her implausible.

16

Defendant’s argument regarding the apology relies on documents outside the

17

pleadings, and the argument is therefore inappropriate on a motion to dismiss. And

18

while it is possible Plaintiff received the venereal disease from another person, this does

19

not warrant dismissal; at this stage of the litigation, Plaintiff must only show that it is

20

plausible that Defendant is responsible for the transmission. See Iqbal, 550 U.S. at 555.

21

Taking Plaintiff’s allegations in the light most favorable to her with all reasonable

22

inferences drawn in her favor, she has alleged enough to state a claim of negligence

23

per se.

24

D.

Intentional Infliction of Emotional Distress

25

In order to establish a claim for IIED under California law, a plaintiff must allege:

26

“(1) extreme and outrageous conduct by the defendant with the intention of causing, or

27

reckless disregard of the probability of causing, emotional distress; (2) suffering severe

28

or extreme emotional distress; and (3) actual and proximate causation of the emotional
9

1

distress by the defendant’s outrageous conduct.” Ess v. Eskaton Props., Inc., 97 Cal.

2

App. 4th 120, 129 (2002). Conduct is outrageous when it is “so extreme as to exceed

3

all bounds of that usually tolerated in a civilized community.” Id. Moreover, the conduct

4

must be intentional such that it is calculated to cause mental distress to a very serious

5

degree. Id. at 130.

6

Despite Defendant’s arguments to the contrary, the Complaint sufficiently alleges

7

a claim for IIED. It alleges that Defendant willfully withheld knowledge of his condition

8

from Plaintiff while the two engaged in a sexually active relationship, and alleges that

9

Defendant’s conduct caused Plaintiff to suffer extreme emotional distress. (Dkt. no 1 at

10

¶¶ 24, 26.) It is certainly plausible that Defendant’s decision to knowingly withhold

11

information about his STD, and then to engage in sexual intercourse with Plaintiff and

12

ultimately transmit the STD to Plaintiff, could cause her to suffer extreme emotional

13

distress.

14

acceptable by society. See Ess, 97 Cal. App. 4th at 129. Plaintiff has pled the elements

15

necessary to support her cause of action, and this claim survives Defendant’s Motion.

Such conduct, if true, is outside the boundaries of decency deemed

16

E.

Fraudulent Misrepresentation and Punitive Damages

17

To assert a claim of fraudulent misrepresentation in California, a plaintiff must

18

show: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b)

19

knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d)

20

justifiable reliance; and (e) resulting damage.” Lovejoy v. AT & T Corp., 92 Cal. App. 4th

21

85, 93 (2001) (citations omitted).

22

Fraud claims must meet a heightened pleading standard under Federal Rule of

23

Civil Procedure 9(b), which requires a party to “state with particularity the circumstances

24

constituting fraud.” The plaintiff must plead with particularity “the who, what, when,

25

where, and how of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d

26

1097, 1106 (9th Cir. 2003) (internal quotation marks omitted). However, when a plaintiff

27

fails to plead fraud with particularity, “leave to amend should be granted if it appears at

28

all possible that the plaintiff can correct the defect.” Balistreri v. Pacifica Police Dep’t,
10

1

901 F.2d 696, 701 (9th Cir. 1988). If allegations concerning fraud do not comply with

2

Rule 9(b), the court should “‘disregard’ those averments, or ‘strip’ them from the claim.”

3

Vess, 317 F.3d at 1105.

4

Plaintiff alleges that Defendant informed her that he was not infected with any

5

sexually transmitted diseases and that he was regularly tested in order to induce

6

Plaintiff to have sex. (Dkt. no. 1 at ¶ 30.) Plaintiff further alleges that Defendant “at all

7

material times” knew that he was infected with HSV II. (Dkt. no. 1 at ¶ 8).

8

Complaint also alleges that Plaintiff contracted HSV II as a result of Defendant’s

9

inducement. But while Plaintiff has sufficiently pled the elements of fraud as well as the

10

content of the misrepresentations, Plaintiff has not identified the time or place the

11

misrepresentations occurred. For example, the Complaint does not allege precisely

12

when Defendant told Plaintiff he did not have HSV II. Thus, Plaintiff’s allegations fail to

13

meet the heightened pleading standards of Rule 9(b). This cause of action is

14

accordingly dismissed without prejudice.

The

15

Moreover, Plaintiff’s request for punitive damages, which she seeks in

16

connection only with her claim for fraudulent misrepresentation (dkt. no. 1 at ¶ 33), must

17

be dismissed without prejudice as well.

18
19

V.

DEFENDANT’S MOTION TO POSTPONE ALL DISCOVERY AND INITIAL
DISCOVERY PLANNING PROCEEDING PENDING MOTION TO DISMISS

20

Defendants asks the Court to postpone discovery until after deciding the Motion

21

to Dismiss, and if the case is not dismissed, until a reasonable time after the Court’s

22

decision. Defendant argues that good cause exists because he is a working father, has

23

no insurance to cover this claim, and has little money to cover his legal fees.
This Order disposes of Defendant’s pending motion. Therefore, Defendant’s

24
25

request is largely mooted.

26

VI.

CONCLUSION

27

IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss (dkt. no. 25)

28

is GRANTED in part and DENIED in part. The fraudulent misrepresentation claim and
11

1

related request for punitive damages are DISMISSED WITHOUT PREJUDICE. The

2

Motion is DENIED in all other respects.

3
4
5
6

IT IS FURTHER ORDERED that Defendant’s Motion to Stay Discovery (dkt. no.
28) is DENIED as moot.
DATED THIS 25th day of April 2013.

7
8

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12