1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN MILLER, No. 2:25-CV-03032-DJC-DMC 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 GREAT WEST CASUALTY COMPANY, et al., 15 Defendants. 16
17 18 Plaintiff, who is proceeding pro se, brings this civil action. Pending before the 19 Court are Defendant Parke Cox Trucking’s motion to dismiss, ECF No. 20, and Defendant Great 20 West Casualty Company’s motion to dismiss, ECF No. 21. 21 22 I. BACKGROUND 23 Plaintiff initially filed this action in state court and Defendants removed to federal 24 court pursuant to diversity jurisdiction. See ECF No. 1. Plaintiff subsequently filed two first 25 amended complaints, ECF Nos. 9 and 14, motion to file second amended complaint, ECF No. 16, 26 and a second amended complaint, ECF No. 17. Finding no indication of bad faith and in 27 consideration if Plaintiff proceeding pro se, this Court granted the motion to file a second 28 amended complaint and directed Defendants to respond, ECF No. 19. Defendant Parke Cox 1 Trucking filed a motion to dismiss, ECF No. 20, and Defendant Great West Casualty Company 2 filed a motion to dismiss, ECF No. 21. Plaintiff filed an opposition, ECF No. 24, and both 3 Defendants filed replies, ECF Nos. 25 and 26. 4 A. Plaintiff’s Allegations 5 Plaintiff asserts that Defendants engaged in “a coordinated pattern of affirmative 6 misrepresentations and fraudulent conduct . . . [to] knowingly mis[lead] Plaintiff for the 7 purpose of obstructing and extinguishing his lawful right of recovery against the at-fault driver 8 insured by Great West.” ECF No. 17, pg. 2. According to Plaintiff, he was involved in a vehicle 9 crash on December 29, 2021, with a Parke Cox commercial vehicle, that resulted in “serious 10 injury to Plaintiff’s left hand.” Id. at 3. Plaintiff contends he “promptly” reached out to 11 Defendants about claims and liability, and “Defendants coordinated their responses to that all 12 communications to Plaintiff were routed through Beehive.” Id. 13 Plaintiff asserts that Defendants decided together, sometime at the start of 2022, 14 to “implement a uniform claims-handling practice designed to discourage and delay legitimate 15 third-party injury claims.” Id. Plaintiff contends that this was done by providing false 16 statements that “misstat[ed] liability responsibility,” which allowed Defendant Parke Cox to 17 avoid liability for their drivers’ negligence. Id. at 3-4. Plaintiff contends that these false 18 statements were given to Plaintiff from January 2022 through March 2025, specifically that on 19 July 31, 2024, by Beehive (not a named defendant), and Plaintiff was directed to work with 20 Great West’s adjustor. See id. at 4. 21 According to Plaintiff, on March 14, 2025, Great West’s adjustor mailed a letter 22 from Nebraska to Plaintiff in California, that stated that Parke Cox was “not responsible for 23 damages and denied liability for Plaintiff’s injuries.” Id. Plaintiff contends this interstate 24 communication was “wire fraud within the meaning of 18 U.S.C. §§1341 and 1342, undertaken 25 to mislead Plaintiff and suppress a legitimate claim.” Id. Plaintiff asserts that these false 26 statements were made to him from 20231 through 2025 which “prevent[ed] Plaintiff from 27 1 Later in the complaint, Plaintiff asserts that the fraudulent statements were made 28 beginning January 2022. See ECF No. 17, pg. 9. 1 discovering the deception until after the statute of limitations had effectively run.” Id. at 5. 2 Plaintiff contends that his hand injury became worse because his treatment was 3 delayed, Plaintiff “incurred additional medical and rehabilitative expenses, and he lost the 4 economic value of his tort claim. He also suffered emotional distress and disruption of his 5 livelihood.” Id. According to Plaintiff, Defendants’ actions “reflect[] an ongoing pattern by 6 Great West and Beehive in cooperation with the insured carriers such as Parke Cox Trucking to 7 suppress third-party liability claims nationwide,” and such pattern constitutes racketeering in 8 violation of 18 U.S.C. §1961(5). Id. 9 Plaintiff asserts five claims, as follows:
10 Claim 1 Conspiracy to Violate RICO (18 U.S.C. §1962(d)) against Parke Cox Trucking, Inc. 11 Claim 2 State-Law Civil Conspiracy (To Commit Fraud and 12 Conceal Liability) against Parke Cox Trucking, Inc.
13 Claim 3 Fraud and Deceit (18 U.S. C. §1341, §1343, and Cal. Civ. Code §§1709-1710) against Great West Casualty Company 14 Claim 4 Violation of 18 U.S.C. §1962(c) (Racketeer Influenced and 15 Corrupt Organizations Act) against Great West Casualty Company 16 Claim 5 Conspiracy to Violate RICO (18 U.S.C. §1962(d)) against 17 Great West Casualty Company 18 B. Defendant Parke Cox Trucking’s Motion to Dismiss 19 Defendant Parke Cox Trucking (PCT) argues that Plaintiff failed to assert a 20 timely negligence claim within the statute of limitations and “now seeks to avoid the 21 consequences of his failure” by bringing this action. ECF No. 20, pg. 3. Defendant PCT 22 contends that these claims fail because (1) Plaintiff lacks standing; (2) Defendants’ statements 23 “are not actionable fraud under the law; and (3) the statements were not fraudulent. Id. 24 Defendant PCT asserts that because there was no fraud, there can be no civil conspiracy. See id. 25 Accordingly, Defendant PCT requests this action be dismissed with prejudice and without leave 26 to amend. See id. Defendant PCT reiterated these arguments in their reply to Plaintiff’s 27 opposition. See ECF No. 26. Attached to the motion to dismiss is correspondence between 28 Plaintiff and counsel for both Defendants from October 20, 2025, to show Defendants’ efforts 1 to meet and confer with Plaintiff prior to filing the motion to dismiss. See ECF No. 20-1. 2 Defendant PCT contends that Plaintiff cannot establish standing because Plaintiff 3 was not insured by Great West and therefore, a third-party claimant, which “may not bring a 4 direct cause of action against an insured’s insurance company relating to coverage or policy 5 benefits unless there has been an assignment of rights by, or final judgment against, the 6 insured.” Id. at 5 (citing Moradi-Shalal v. Fireman’s Fund Ins. Co, 46 Cal.3d 287, 284 (1988); 7 Airborne America Inc. v. Kenway Composites, 554 F. Supp 3d 1066, 1071- 8 1072 (S.D. Cal. Aug. 16, 2021); Reynolds v. Shure, 148 F. Supp. 3d 928, 934-935 (E.D. Cal. 9 2015); Coleman v. Republic Indemnity Ins. Co., 132 Cal.App.4th 403, 409-415 (2005)). 10 According to Defendant PCT, Plaintiff does not assert that rights were assigned by PCT to 11 Plaintiff nor was there a “finding of liability against PCT in relation to the Colorado Accident.” 12 Id. at 6. 13 Next, Defendant PCT argues that the statements Plaintiff alleges are legal 14 opinions and therefore, “are not actionable as fraud, as they do not constitute representations of 15 fact.” Id. (citing Cal. Pharm. Mgmt., LLC v. Zenith Ins. Co., 669 F.Supp.2d 1152, 1161 (C.D. 16 Cal. 2009). Defendant additionally contends that the statements alleged “essentially represent 17 that PCT and Great West are not liable to Plaintiff for the Colorado Accident,” which was true, 18 and therefore insufficient to establish a claim of fraud. Id. Defendant PCT contends that 19 because the accident occurred on December 29, 2021, and the statute of limitation for 20 negligence claims in California is two years, by the time the statements were made to Plaintiff 21 (July 31, 2024, and March 14, 2025), claims against Great West and PCT were barred. See id. 22 (citing Cal. Civ. Proc. Code. § 335.1.). 23 Finally, Defendant PCT asserts that Plaintiff’s claims are insufficiently pled 24 because they lack the particularity necessary to establish a fraud claim, specifically: “the time, 25 place, and specific content of the false representations, how and why the alleged 26 misrepresentation is false, and the facts that support the formation and operation of the 27 conspiracy.” Id. at 7 (citing Valley Nat'l Bank v. JHB Trucking Inc., 2022 U.S. Dist. LEXIS 28 151175 (E.D. Cal. Aug. 13, 2022); Immobiliare, LLC v. Westcor Land Title Ins. Co., 424 F. 1 Supp. 3d 882, 890 (E.D. Cal. 2019); Cisco Systems, 77 F.Supp.3d at 894; Vess, 317 F.3d at 2 1106.). Defendant PCT contends that Plaintiff’s complaint fails to assert who gave the allegedly 3 false statement on July 31, 2024, or provide any facts to show PCT’s involvement in any such 4 statements. See id. at 8. Further, Defendant PCT asserts that Plaintiff’s complaint does not 5 “allege how or why the alleged misrepresentations are false as there are no facts alleged 6 showing that either PCT or Great West were legally responsible for any injury or damage 7 caused by the Colorado Accident.” Id. 8 C. Defendant Great West Casualty Company’s Motion to Dismiss 9 Defendant Great West argues that this matter should be dismissed because 10 Plaintiff’s complaint does not assert a cognizable claim and the deficiencies could not be cured 11 by amendment. See ECF No. 21, pg. 2. Defendant Great West contends that: (1) “Plaintiff has 12 no right to assert any claim against Great West, which is not his insurer;” (2) by the time 13 Plaintiff presented a third-party claim, the statute of limitations barred such claim; (3) the 14 statements made by Great West on March 14, 2025, were legal opinions which cannot 15 constitute fraud; and (4) because Great West’s statements do not constitute fraud, Plaintiff’s 16 allegations do not subject Great West to RICO liability. Id. at 2-3. Defendant Great West asserts 17 that because Plaintiff has had the opportunity to amend his complaint multiple times, and 18 further amendment could not resolve the deficiencies of the claims, the matter should be 19 dismissed without leave to amend. See id. at 10 and 27-28. Defendant Great West reiterated 20 these arguments in their reply to Plaintiff’s opposition. See ECF No. 25. 21 First, Defendant Great West contends that Plaintiff lacks standing to bring these 22 claims because Plaintiff does not allege that there is a direct relationship between Plaintiff and 23 Defendant Great West or any judgment against Defendant Great West. See id. at 10 and 14 24 (citing Shaolian v. Safeco Insurance Company, 71 Cal.App.4th 268, 271 (1999); Reynolds v. 25 Shure, 148 F. Supp. 3d 928, 934-935 (E.D. Cal. 2015); Airborne America Inc. v. Kenway 26 Composites, 554 F. Supp 3d 1066, 1071-1072 (S.D. Cal. 2021); Cal. Ins. Code 27 §11580(b)(2)). 28 / / / 1 Defendant asserts that Plaintiff’s claims under 18 U.S.C. §§1341, 1343 fail 2 because those statutes do not provide a private cause of action. See id. at 11 and 15-16 (citing 3 Abcarian v.Levine, 972 F.3d 1019, 1026 (2020)). Next, Defendant contends that Plaintiff’s 4 fraud claims under California Civil Code §§1709-1710 fail because Great West’s statement “is 5 not actionable as fraud” because the letter provided a legal opinion, not a representation of fact. 6 See id. at 17. Defendant Great West filed a request for judicial notice, ECF No. 22, providing 7 the letter referenced in Plaintiff’s complaint that was sent by Defendant Great West to Plaintiff 8 on March 14, 2025. According to Defendant Great West, the letter shows the statements made 9 were an opinion about the law and therefore insufficient to be the basis of a fraud claim. See 10 ECF No. 21, pgs. 11 and 17 (citing California Pharmacy Management, LLC v. Zenith Ins. Co., 11 669 F.Supp.2d 1152, 1161 (C.D. Cal. 2009); Gentry v. Ebay, Inc., 99 Cal.App.4th 816, 835 12 (2002)). Additionally, Defendant Great West contends that because Plaintiff does not establish 13 that PCT is liable for Plaintiff’s injuries, Great West disclaiming coverage was factual and 14 therefore, cannot constitute fraud. See id. at 17 (citing Cal. Ins. Code §11580(b)(2)). 15 Defendant Great West asserts that Plaintiff’s complaint does not show justifiable 16 reliance and therefore, the claim of fraud fails. See id. at 18. According to Defendant Great 17 West, because the statute of limitations had expired on December 29, 2023, any statements 18 made after that date could not show that Plaintiff’s reliance on such statements caused Plaintiff 19 any damage with regard to bringing claims. See id. Additionally, Defendant Great West 20 contends that the complaint does not state who Plaintiff spoke to at Beehive nor who at Great 21 West directed the Beehive employee to make false statements to Plaintiff. See id. at 19. 22 Defendant Great West argues that even if such statements were made by Beehive, there is no 23 connection between these statements and Plaintiff’s actions because the complaint does not 24 explain how the statements “justifiably gave him reasons to delay medical treatment and 25 ‘financial planning,’ or to delay bringing suit against PCT.” Id. 26 Defendant Great West argues that the complaint fails to establish any of the 27 elements necessary for a cognizable 18 U.S.C. §1962(c) claim: (1) conduct, defined as 28 operation or management; (2) of an enterprise; (3) through a pattern; (4) of racketeering 1 activity. See id. at 20 (citing Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 2 353, 361 (9th Cir. 2005); Reves v. Ernst & Young, 507 U.S. 170, 179 (1993)). Defendant Great 3 West asserts that the complaint does not show that Great West “occupied a position in the 4 alleged chain of command of a criminal enterprise” necessary to show that Great West operated 5 or managed any alleged enterprise. Id. (citing Walter v. Drayson, 538 6 F.3d 1244, 1249 (9th Cir. 2008)). Defendant contends that Plaintiff’s allegations that 7 Defendants engaged in (2) an enterprise (3) through a pattern are merely conclusory as the 8 complaint provides no facts as to there being an enterprise nor does the complaint allege any 9 other instances of alleged fraud by Great West aside from the March 14, 2025, letter. See id. at 10 21-23. Defendant Great West asserts that because the March 14, 2025, letter did not constitute 11 fraud, because it was a legal opinion, there is no allegation of racketeering, or mail fraud. See 12 id. at 23-24. 13 Next, Defendant Great West argues that Plaintiff fails to allege any agreement to 14 participate in an enterprise or commit acts in furtherance of that enterprise, and therefore the 18 15 U.S.C. §1962(d) conspiracy claim fails. See id. at 24. Again, Defendant Great West contends 16 that Plaintiff’s allegations of any agreement are conclusory and the complaint provides no facts 17 underlying the allegation. See id. Finally, Defendant Great West asserts that Plaintiff’s claim 18 for punitive damages should be stricken because the complaint fails to allege any facts showing 19 oppression, fraud, or malice, which is necessary to recover punitive damages in California. See 20 id. at 25-26 (citing Hilliard v. A.H. Robins Co., 148 Cal.App.3d 374, 391 (1983); Cyrus v. 21 Haveson, 65 Cal.App.3d 306, 316-317 (1976)). 22 D. Plaintiff’s Opposition 23 In response to Defendants’ motions to dismiss, Plaintiff filed an opposition, ECF 24 No. 24. Generally, Plaintiff argues that the operative complaint provides sufficient specificity to 25 survive a motion to dismiss, the motions to dismiss “improperly asks the Court to weigh 26 evidence, resolve factual disputes, and disregard well-pleaded allegations.” Id. at 2. Plaintiff 27 asserts that “Defendants’ misrepresentations began in early 2022 . . . [and] falsely asserted that 28 ‘each vehicle is responsible for its own damages’ and that no liability could be pursued.” Id. at 1 3. Plaintiff contends that this prevented him from timely filing a claim and such fraudulent 2 concealment tolled the statute of limitations until March 2025, when Plaintiff discovered the 3 statements were false. See id. 4 Plaintiff argues that the complaint explains what statements were made, when 5 they were made, how they were transmitted, why they were false, and the corporate 6 relationships between PCT and Great West, and the nature of PCT’s participation in shaping 7 and transmitting the misleading evidence.” See id. at 3-4. According to Plaintiff, an enterprise 8 that gives rise to his claim, does not have to have a formal structure, and the allegation “that 9 PCT, Great West, and Beehive operated collectively to create and advance a misleading 10 narrative about the accident, conceal liability, and reduce exposure,” is sufficient to establish 11 that element. Id. at 6-7. Plaintiff contends that for over three years, there was “a continuous and 12 coordinated association-in-fact in which PCT, Great West, and Beehive jointly pursued the 13 common purpose of suppressing liability exposure . . . PCT supplied the narrative [ ]; Beehive 14 transmitted that information to Great West; and Great West controlled the outward 15 communications to Plaintiff.” Id. at 7. Plaintiff asserts that Defendants’ fraudulent 16 communications caused Plaintiff to incur costs and miss the opportunity to pursue litigation. 17 See id. at 8. Next, Plaintiff argues that reliance is not required to state a cognizable wire fraud 18 charge, and given Plaintiff does allege that he detrimentally relied on Defendants’ statements, 19 Defendant Great West’s argument about reliance is inapplicable. See id. at 9. 20 Plaintiff contends that “the July 21, 2024 and March 14, 2025 statements that 21 ‘each party is responsible for its own damages’ were false because Colorado comparative 22 negligence law requires factual investigation and allocation of fault, not a categorical denial.” 23 Id. at 10. Plaintiff asserts that Defendant PCT can be liable for false statements, even if PCT did 24 not make such statements, pursuant to §1962(d). Id. at 10-11. Next, Plaintiff argues that 25 Defendants’ claim that Plaintiff has no standing as a third party, is inapplicable to §1962(c), 26 §1962(d), and fraud, and would only apply if Plaintiff were bringing state-law bad faith claims. 27 See id. Plaintiff asserts that pro se pleadings are liberally construed and dismissal without leave 28 to amend would be improper. See id. at 12. Plaintiff further contends that the additional facts 1 provided in Plaintiff’s reply can supplement Plaintiff’s complaint, citing Peck v. Hinchey, 2021 2 WL 4316822, at 4 (D. Ariz. Sept. 23, 2021). Id. at 14. 3 Finally, Plaintiff “does not contest judicial notice of the existence” of the letter 4 Defendant Great West provided, dated March 14, 2025, sent to Plaintiff, but does challenge 5 “the truth of any assertions within the documents.” Id. at 13. Plaintiff concedes the letter was 6 sent to Plaintiff and asserts that the letter “corroborate Plaintiff’s allegations,” as they show the 7 false statements Defendants transmitted by interstate mail, “for the purpose of inducing Plaintiff 8 to abandon or delay his claim.” Id. 9 10 II. DISCUSSION 11 The undersigned will recommend granting in part and denying in part 12 Defendants’ motions to dismiss, as described herein. It will be recommended that Defendants’ 13 motions to dismiss be denied as to Plaintiff’s standing. 14 Plaintiff’s 18 U.S. C. §1341, §1343 and Cal. Civ. Code §1710 are not actionable 15 as a matter of law and, therefore, the undersigned will recommend granting Defendant Great 16 West’s motion to dismiss as to those claims, without leave to amend. As currently pleaded, 17 Plaintiff’s Cal. Civ. Code §1709 claim arising from communications starting January 2022 does 18 not meet the pleading standard of Fed. Rule Civ. Pro. 8 and the undersigned will therefore 19 recommend granting Defendant Great West’s motion to dismiss as to that claim, with leave to 20 amend. Plaintiff’s Cal. Civ. Code §1709 claim arising from Defendant Great West’s March 14, 21 2025, letter is not cognizable and because amendment could not cure the deficiency, for the 22 reasons described below, the undersigned will recommend granting Defendant Great West’s 23 motion to dismiss without leave to amend as to that claim. 24 Given the complaint fails to allege a cognizable claim of fraud, Plaintiff’s 25 conspiracy claim is not cognizable and the undersigned will therefore recommend granting 26 Defendants Great West and PCT’s motions to dismiss with leave to amend as to Plaintiff’s state 27 conspiracy claim. Plaintiff’s allegations of alleged July 31, 2024, statements, and all 28 communications aside from the March 14, 2025, letter, lack specificity required and therefore, 1 Plaintiff fails to establish a pattern to support 18 U.S.C. §1962(c) and §1962(d) claims. 2 Accordingly, the undersigned will recommend granting the motions to dismiss as to 18 U.S.C. 3 §1962(c) and §1962(d) claims, with leave to amend. Finally, in light of the undersigned 4 recommending leave to amend, it is not yet appropriate to consider whether Plaintiff’s factual 5 allegations are sufficient to establish punitive damages and the undersigned will therefore 6 recommend denying Defendant Great West’s motion to strike punitive damages. 7 In considering a motion to dismiss, the Court must accept all allegations of 8 material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The 9 Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer 10 v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 11 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All 12 ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 13 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual 14 factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). 15 In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. 16 See Haines v. Kerner, 404 U.S. 519, 520 (1972). 17 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 18 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 19 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 20 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order 21 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain 22 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual 23 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The 24 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 25 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 26 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 27 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but 28 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting 1 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a 2 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement 3 to relief.” Id. (quoting Twombly, 550 U.S. at 557). 4 In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials 5 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 6 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1) 7 documents whose contents are alleged in or attached to the complaint and whose authenticity no 8 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 9 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 10 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 11 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 12 1994). 13 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no 14 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 15 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 16 A. Standing 17 Defendants argue that Plaintiff lacks standing to bring claims against Defendant 18 Great West. See ECF Nos. 20, pgs. 5-6, and 21, pgs. 14-15. However, the case law Defendants 19 cite in support of that argument all address standing in the context of recovering from insurance 20 coverage or contract. See Reynolds v. Shure, 148 F. Supp. 3d 928, 934-935 (E.D. Cal. 2015); 21 Airborne America Inc. v. Kenway Composites, 554 F. Supp 3d 1066, 1071-1072 (S.D. Cal. 22 2021); Coleman v. Republic Indemnity Ins. Co., 132 Cal.App.4th 403, 409-415 (2005); 23 Shaolian v. Safeco Insurance Company, 71 Cal.App.4th 268, 271 (1999). Though this dispute 24 arises from a vehicle accident and the elements of the claims asserted may require a showing of 25 standing to prove underlying liability, Plaintiff has satisfied the required showing to bring the 26 asserted claims of alleged wrongs occurring independently of the insurance contract terms at 27 issue. Thus, the undersigned finds Plaintiff has standing and will recommend denying the 28 motions to dismiss as to Plaintiff’s standing to bring claims, without prejudice. 1 B. 18 U.S. C. §1341, §1343, and Cal. Civ. Code §§1709-1710 Claims 2 Plaintiff’s 18 U.S. C. §1341, §1343 and Cal. Civ. Code §1710 are not actionable 3 as a matter of law and, therefore, the undersigned will recommend granting the motion to 4 dismiss as to those claims, without leave to amend. 5 As currently pleaded, Plaintiff’s Cal. Civ. Code §1709 claim arising from 6 communications starting January 2022 does not meet the pleading standard of Fed. Rule Civ. 7 Pro. 8 and the undersigned will therefore recommend granting the motion to dismiss as to that 8 claim, with leave to amend. Plaintiff’s Cal. Civ. Code §1709 claim arising from Defendant 9 Great West’s March 14, 2025, letter is not cognizable and because amendment could not cure 10 the deficiency, for the reasons described below, the undersigned will recommend granting the 11 motion to dismiss without leave to amend as to those claims specifically seeking recovery on 12 that claim. 13 1. 18 U.S. C. §1341 and §1343 14 Plaintiff asserts a claim pursuant to 18 U.S. C. §1341 and §1343 against 15 Defendant Great West. See ECF No. 17, pgs. 8-14. Defendant Great West argues that Plaintiff 16 cannot assert a private claim under those statutes. This Court agrees. 18 U.S. C. §1341 and 17 §1343 are criminal statutes that do not provide a cause of action for individuals. See Ateser v. 18 Bopp, No. 92-36869, No. 92-36964, 1994 U.S. App. LEXIS 18014, at *6 (9th Cir. July 19, 19 1994) (holding “[c]ourts have consistently found that the mail and wire fraud statutes do not 20 confer private rights of action”). Given there is no cause of action available to Plaintiff under 21 these statutes, amendment could not cure this deficiency. Thus, the undersigned will 22 recommend granting the motion to dismiss without leave to amend as to Plaintiff’s 18 U.S. C. 23 §1341 and §1343 claims. 24 2. Cal. Civ. Code §§1709-1710 25 Plaintiff seeks to assert a claim pursuant to Cal. Civ. Code §§1709-1710 against 26 Defendant Great West Casualty. As a preliminary matter, Cal. Civ. Code §1709 provides a 27 cause of action while §1710 defines the term deceit as it applies to that cause of action. See Cal. 28 Civ. Code §1710 (“A deceit, within the meaning of the last section, is either. . .”). Thus, the 1 undersigned will recommend dismissing any claims arising from Cal. Civ. Code §1710 without 2 leave to amend, as that statute does not provide a cause of action. 3 Plaintiff asserts that communications by “Beehive representatives” between 4 January 2022 and March 2025 to Plaintiff give rise to a Cal. Civ. Code §1709 claim. ECF No. 5 17, pg. 9. Plaintiff contends that “all statements and omissions by Beehive’s representatives are 6 therefore imputed to Great West under principles of agency and respondeat superior.” Id. 7 Defendant Great West argues that such allegations must be pleaded with particularity, Great 8 West’s statements in the March 14, 2025, letter are not actionable as fraud, and Plaintiff fails to 9 show justifiable reliance to sustain such a claim. See ECF No. 21, pgs. 17-19. 10 Defendant seeks to impose Rule 9(b) pleading standards on this claim. See id. at 11 16 (citing Odom v. Microsoft Corp., 486 F.3d 541, 553 (9th Cir. 2007) and Vess v. Ciba-Geigy 12 Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003)). However, the Court does not need to 13 consider Rule 9(b) pleading standards because this Court is persuaded that these claims lack 14 sufficient facts to give notice, as required by Rule 8, to the Defendant as to what the underlying 15 communications are that give rise to this claim. 16 The Federal Rules of Civil Procedure require that complaints contain a “. . . short 17 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 18 8(a)(2). This means that claims must be stated simply, concisely, and directly. See McHenry v. 19 Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are 20 satisfied if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds 21 upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff 22 must allege with at least some degree of particularity overt acts by specific defendants which 23 support the claims, vague and conclusory allegations fail to satisfy this standard. 24 Aside from Great West’s March 14, 2025, letter, Plaintiff’s allegations of 25 “intentional misrepresentations of law and fact designed to mislead [Plaintiff] and obstruct 26 lawful recovery from the at-fault driver,” are conclusory as currently pleaded. ECF No. 17, pg. 27 9. Plaintiff must allege with at least some degree of particularity overt acts by specific individuals 28 which support the claim, and the operative complaint fails to do so. While the Court does not 1 address Plaintiff’s claim that statements by Beehive can be imputed to Defendant Great West, 2 the charge that the alleged statements were made by Beehive, and not Great West, further 3 underscores that Defendant Great West would not through these pleadings have sufficient 4 notice of what communications Plaintiff is referring to given the vague assertion of 5 communications “[b]etween January 2022 and March 2025.” Earlier in the complaint, Plaintiff 6 states that the communications began in 2023, ECF No. 17, pg. 5, further obscuring what 7 specific communications Plaintiff is referring to and when they occurred. The only 8 communication that Plaintiff provides sufficient specificity for is the March 14, 2025, letter, 9 because Plaintiff identifies the day the correspondence was sent, who sent it, and alleges what 10 was said in the letter. See ECF No. 17, pg. 10. Given this pleading deficiency may be cured by 11 amendment, the undersigned will recommend granting the motion to dismiss as to Plaintiff’s 12 Cal. Civ. Code §1709 arising from communications that began January 2022 with leave to 13 amend. 14 However, the scope of that leave to amend is limited as follows. The undersigned 15 finds that the March 14, 2025, letter cannot give rise to a Cal. Civ. Code §1709 claim. Cal. Civ. 16 Code §1709 provides: “[o]ne who willfully deceives another with intent to induce him to alter 17 his position to his injury or risk, is liable for any damage which he thereby suffers.” Plaintiff 18 concedes that the statute of limitations was two years, ECF No. 24, pg. 3, and given that the 19 vehicle accident occurred around December 29, 2021, ECF Nos. 17, pg. 3, any claims would be 20 barred well before March 2025. As such, to the extent Plaintiff grounds the Section 1709 claim 21 in the March 14, 2025, letter, that specific correspondence could not have been intended to 22 induce Plaintiff to alter his position (i.e. whether to file a lawsuit to seek damages for the 23 vehicle accident), because the statute of limitations had already expired. Thus, the March 14, 24 2025, letter does not give rise to a Cal. Civ. Code §1709 claim, and amendment could not cure 25 that deficiency. Accordingly, the undersigned will recommend granting the motion to dismiss 26 as to Plaintiff’s Cal. Civ. Code §1709 claim insofar as that claim arises from the March 14, 27 2025, letter without leave to amend. 28 / / / 1 C. State-Law Civil Conspiracy to Commit Fraud and Conceal Liability 2 Plaintiff asserts a state-law claim of conspiracy against Defendants arising from 3 their alleged “agreement to commit the unlawful acts of fraud and concealment of material facts 4 concerning liability for Plaintiff’s injuries.” ECF No. 17, pg. 7. In California, “‘a civil 5 conspiracy does not give rise to a cause of action unless an independent civil wrong has been 6 committed,’” therefore, if a complaint fails to specifically allege an underlying tort, a 7 conspiracy claim is not cognizable. Liberty City Movie, Ltd. Liab. Co. v. U.S. Bank, N.A., 824 8 F. App'x 505, 508 (9th Cir. 2020) (quoting Rusheen v. Cohen, 37 Cal. 4th 1048, 1062, 39 Cal. 9 Rptr. 3d 516, 128 P.3d 713 (2006)). As previously addressed, Plaintiff’s underlying claim of 10 fraud is not cognizable as currently pleaded, and therefore, Plaintiff’s conspiracy claim 11 similarly is not cognizable. Given leave to amend could remedy this deficiency, the 12 undersigned will recommend granting the motions to dismiss as to Plaintiff’s state civil 13 conspiracy claim, with leave to amend. 14 D. 18 U.S.C. §1962(c) and §1962(d) Claims 15 18 U.S.C. §1962(c) and §1962(d), commonly referred to as the civil RICO 16 statute allows individuals to file suit and recover treble damages against individuals who, 17 through a “pattern of racketeering activity,” acquire an interest in, or conduct the business of, 18 an enterprise engaged in interstate or foreign commerce. 18 U.S.C. §§ 1962(b), 1962(c), 19 1964(d). The RICO statute defines “racketeering activity” as any act indictable under several 20 provisions of Title 18 of the United States Code, including the predicate acts of wire fraud 21 under § 1343, mail fraud under § 1341, and extortion under § 1951. See 18 U.S.C. § 1961(1). 22 Defendants argue that their statements do not constitute fraud and therefore, 23 these claims are not cognizable. However, this Court finds Plaintiff’s allegations are too vague 24 and therefore does not reach the determination of whether the statements that were made can 25 constitute fraud. As currently pleaded, Plaintiff’s allegations of predicate acts, aside from the 26 March 14, 2025, letter do not meet Rule 9 pleading standards and therefore, Plaintiff fails to 27 allege a pattern as necessary for actionable 18 U.S.C. §1962(c) and §1962(d) claims. Given 28 amendment could cure such deficiency, the undersigned will recommend granting the motions 1 to dismiss as to 18 U.S.C. §1962(c) and §1962(d) Claims, with leave to amend. 2 1. Heightened Pleading Standard of Rule 9(b) 3 To make out a claim for the predicate acts of wire or mail fraud, a plaintiff must 4 allege: (i) a scheme or artifice devised with (ii) the specific intent to defraud and (iii) use of the 5 United States mail or interstate telephone wires in furtherance thereof. See Orr v. Bank of Am., 6 NT & SA, 285 F.3d 764, 782 (9th Cir. 2002). Where a plaintiff alleges racketeering by means 7 of mail and wire fraud, the heightened pleading requirements of Federal Rule of Civil 8 Procedure 9(b) apply to those predicate acts. See Edwards v. Marin Park, Inc., 356 F.3d 1058, 9 1066 (9th Cir. 2004); Moore v. Kayport Package Express, 885 F.2d 531, 540 (9th Cir. 1989). 10 The fraud allegations must be “specific enough to give defendants notice of the particular 11 misconduct,” thereby enabling them to “defend against the charge and not just deny that they 12 have done anything wrong.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 13 2003). Therefore, allegations of fraud must be “accompanied by the who, what, when, where, 14 and how of the misconduct charged.” Id. The complaint must “detail with particularity the time, 15 place, and manner of each act of fraud, plus the role of each defendant in each scheme.” 16 Lancaster Cmty. Hosp., 940 F.2d at 405; see also Schreiber Distrib. Co. v. Serv-Well Furniture 17 Co. Inc., 806 F.2d 1393, 1401 (9th Cir. 1986) (“We have interpreted Rule 9(b) to mean that the 18 pleader must state the time, place, and specific content of the false representations as well as the 19 identities of the parties to the misrepresentation.”). 20 Here, Plaintiff accuses Defendants of generally committing predicate acts of mail 21 fraud and wire fraud. See ECF No. 17, pgs. 8-17. Defendants argue that Plaintiff makes 22 conclusory allegations of fraud which do not satisfy the heightened pleading requirements of 23 Rule 9(b). See ECF Nos. 20, pgs. 7-8 and 21, pgs. 20-25. The undersigned agrees that most of 24 Plaintiff’s allegations are conclusory as to any false statements made, aside from the March 14, 25 2025, letter. As to the March 14, 2025, letter, Plaintiff clearly identified when the letter was 26 sent, who sent it, and makes representations as to the content of the letter. See ECF No. 17, pg. 27 4. Thus, the undersigned will recommend denying the motion to dismiss as to the March 14, 28 2025, letter for failure to meet Rule 9(b) standards. 1 As to the July 31, 2024, statements, Plaintiff states that “[o]n or about July 31, 2 2024, Beehive communicated these false statements to Plaintiff by telephone and email from 3 Utah to California, repeating that each vehicle would be responsible for its own damages and 4 that Great West would not process the claim as a third-party liability matter.” ECF No. 17, pg. 5 4. Aside from naming the company, Beehive, who is not a named defendant in this action, 6 Plaintiff does not identify who made the statements to Plaintiff and the allegation lacks 7 particularity as it is not clear which statements were made by telephone versus email, and 8 whether the calls and emails were actually on July 31, 2024, or some other date. Thus, 9 Plaintiff’s allegations as to the alleged July 31, 2024, statements, do not provide cognizable 10 claims under 18 U.S.C. §1962(c) and §1962(d). 11 Plaintiff’s remaining allegations of fraudulent statements are entirely conclusory. 12 For example, in the complaint, Plaintiff generally asserts that Beehive provided false statements 13 to Plaintiff “between January 2022 and March 2025 . . . made by telephone directly to Plaintiff 14 and were also relayed to Plaintiff’s own insurance company . . . ” ECF No. 17, pg. 9. Plaintiff’s 15 reply provides similarly conclusory allegations, such as: “fraudulent misrepresentations before 16 the statute of limitations expired” and “deceptive statements and concealment practices began 17 in January 2022, immediately following the collision, and continued through 2023.” ECF No. 18 24, pg. 10. However, Plaintiff never alleges when those statements were made, who made them, 19 what those statements were, and how they were communicated to Plaintiff. Given these 20 deficiencies may be remedied with amendment, the undersigned will recommend granting the 21 motions to dismiss as directed to all communications aside from the March 14, 2025, letter, 22 with leave to amend. 23 2. Pattern of Racketeering Activity 24 18 U.S.C. § 1962(c) prohibits conducting the affairs of an enterprise engaged in 25 interstate or foreign commerce through a pattern of racketeering activities and 18 U.S.C. § 26 1962(d) makes it “illegal for any person to conspire to do so.” Canyon Cty. v. Syngenta Seeds, 27 Inc., 519 F.3d 969, 972 (9th Cir. 2008). “A ‘pattern of racketeering activity’ requires at least 28 two predicate acts of racketeering activity, as defined in 18 U.S.C. § 1961(1), within a period of 1 ten years. Id. (citing 18 U.S.C. § 1961(5)). 2 As previously addressed, the undersigned finds that Plaintiff’s allegations as to 3 any communications, aside from the March 14, 2025, letter, are insufficiently pled and 4 therefore, the complaint only alleges a single act. Thus, the undersigned finds that the complaint 5 fails to assert a pattern of conduct, as required for 18 U.S.C. §§ 1962(c) and 1964(d) claims. 6 Given amendment could cure this deficiency, the undersigned will recommend granting the 7 motions to dismiss as to Plaintiff’s 18 U.S.C. §§ 1962(c) and 1964(d) claims with leave to 8 amend. 9 E. Punitive Damages 10 Defendant Great West seeks to strike Plaintiff’s claim for punitive damages 11 because “Plaintiff’s SAC is devoid of any factual allegations supporting his conclusions that 12 Great West purportedly acted with malice, oppression and fraud under California Civil Code 13 section 3294(a).” ECF No. 21, pg. 27. However, in light of the undersigned recommending 14 leave to amend, it is not yet appropriate to consider whether Plaintiff’s factual allegations are 15 sufficient to establish punitive damages. Thus, the undersigned will recommend denying 16 Defendant Great West’s motion to strike punitive damages, ECF No. 21. 17 18 III. CONCLUSION 19 Based on the foregoing, the undersigned recommends: 20 1. It is RECOMMENDED that Defendants motions to dismiss, ECF Nos. 20 21 and 21, be GRANTED IN PART and DENIED IN PART; 22 2. It is RECOMMENDED that Defendants motions to dismiss be DENIED as 23 to Plaintiff’s standing and Plaintiff’s 18 U.S.C. §1962(c) and §1962(d) 24 claims Rule 9(b) deficiencies with regard to the March 14, 2025, letter; 25 3. It is RECOMMENDED that Defendant Great West’s motion to strike 26 punitive damages, ECF No. 21, be DENIED; 27 4. It is RECOMMENDED that Defendant Great West’s motion to dismiss, 28 ECF No. 21, be GRANTED without leave to amend as to Plaintiff’s 18 ] US. C. §1341, §1343 and Cal. Civ. Code §1710 claims and Plaintiff’ □ 2 Cal. Civ. Code §1709 claim arising from Defendant Great West’s March 3 14, 2025, letter; 4 5. It is RECOMMENDED that Defendant Great West’s motion to dismiss, 5 ECF No. 21 be GRANTED with leave to amend as to Plaintiff's Cal. Civ. 6 Code §1709 claim arising from communications starting January 2022; 7 6. It is RECOMMENDED that Defendants motions to dismiss, ECF Nos. 20 8 and 21, be GRANTED with leave to amend as to Plaintiff’s state 9 conspiracy claim, and 18 U.S.C. §1962(c) and §1962(d) claims. 10 These findings and recommendations are submitted to the United States District 11 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 12 | after being served with these findings and recommendations, any party may file written objections 13 || with the Court. Responses to objections shall be filed within 14 days after service of objections. 14 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 15 Yist, 951 F.2d 1153 (9th Cir. 1991). 16 17 18 | Dated: January 16, 2026 Co 19 DENNIS M. COTA 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 19