1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DYLAN LLOYD JONES, No. 2:19-cv-02049-MCE-KJN (PS) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS ON DEFENDANTS’ MOTION TO DISMISS 13 v. AND PLAINTIFF’S MOTION FOR LEAVE TO AMEND 14 LIBERTY MUTUAL, et al., (ECF Nos. 15, 16) 15 Defendants. 16 17 This case concerns a dispute between Plaintiff and his insurer, Liberty Mutual, as well as 18 two claims adjusters, Amber Cruz and Stephen Tognetti (collectively, “Defendants”). Plaintiff 19 asserts Defendants failed to pay the full amount owed to him related to a 2014 claim for stolen 20 property (ECF Nos. 7, 12, 13), and then improperly filed a temporary restraining order against 21 him when he attempted to pursue reimbursement (ECF No. 16). Defendants have moved to 22 dismiss the contract claims as time–barred, and assert Plaintiff’s claims concerning a temporary 23 restraining order (“TRO”) are barred by California’s Anti–SLAPP laws.1 24 For the reasons that follow, the Court recommends Defendants’ motion to dismiss (ECF 25 No. 15) be GRANTED. Further, given the futility of the claims asserted in Plaintiff’s proposed 26 second amended complaint (ECF No. 16), Plaintiff’s motion to amend should be DENIED. 27 1 This action proceeds before the undersigned pursuant to Local Rule 302(c)(21). Pursuant to 28 Local Rule 230(g), the Court resolves this motion on the papers without oral argument. 1 Procedural History and Brief Factual Background 2 Plaintiff filed three separate lawsuits against each Defendant in Sacramento County 3 Superior Court, and Defendants removed each action to this Court. (See, generally, ECF No. 1 in 4 Case Nos. 2:19-cv-02049-MCE-KJN (PS), 2:19-cv-02050-MCE-KJN (PS), and 2:19-cv-02051- 5 MCE-KJN (PS).) The District Judge consolidated the cases. (See ECF NO. 9 in Case No. 2:19- 6 cv-02049-MCE-KJN.) On October 29, 2019, Plaintiff filed a first amended complaint (“1AC”) 7 against each Defendant. (ECF Nos. 7, 12, 13.2) On November 12, 2019, Plaintiff moved for 8 leave to file a second amended complaint (“2AC”). (ECF No. 16.) 9 In the 1AC, Plaintiff principally alleges that Liberty Mutual failed to pay him his full 10 policy limit on a 2014 claim for stolen property. (ECF No. 7 at 1:16–19.) He asserts claims for 11 breach of contract, breach of the implied obligation of good faith and fair dealing, failure to 12 properly investigate his claim, and breach of duty to inform insured of rights. (See, generally, 13 ECF No. 7.) Defendants moved to dismiss these claims for failure to state a claim upon which 14 relief may be granted. 15 In his proposed second amended complaint (“2AC”), Plaintiff asserts claims for violation 16 of the Fair Debt Collection Practices Act (“FDCPA”), improper use of judicial proceedings, and 17 violation of his freedom of speech. (See, generally, ECF No. 16.) Plaintiff reiterates his previous 18 allegations regarding Defendants’ failure to pay him his full policy limits on his claim, (Id. at 19 2:10–18.), and also alleges that Defendants obtained a “workplace temporary restraining order” 20 (“TRO”) against him by means of “fraud.” (Id. at 1:19–21.) Specifically, Plaintiff alleges that 21 Defendants lied in their application for the TRO by representing that Plaintiff was “paid in full” 22 for his claim, and that he only continued contacting Defendants to harass them. (Id. at 4:11–18.) 23 Plaintiff also alleges that Defendants submitted to the court certain emails sent by him out of 24 context. (Id. at 4:20–5:1.) Plaintiff is currently serving a ten-year prison sentence for violating 25 the TRO. (ECF No. 1 at 2:4–27.) Defendants oppose amendment, and moved to strike any 26 portion of the 1AC concerning the TRO, per California’s Anti–SLAPP laws. (ECF No. 15.) 27 2 The amended complaints were filed in all three actions prior to the consolidation order, and are 28 identical. For simplicity, the Court will cite to ECF No. 7 in the 19–2049 action only. 1 I. Defendants’ Motion to Dismiss Plaintiff’s Four Contract Claims 2 Legal Standard 3 A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) 4 challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase 5 Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). When a court considers whether a 6 complaint states a claim upon which relief may be granted, all well-pled factual allegations must 7 be accepted as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and the complaint must be 8 construed in the light most favorable to the non–moving party, Corrie v. Caterpillar, Inc., 503 9 F.3d 974, 977 (9th Cir. 2007). The court is not, however, required to accept as true “conclusory 10 [factual] allegations that are contradicted by documents referred to in the complaint,” or “legal 11 conclusions merely because they are cast in the form of factual allegations.” Paulsen v. CNF Inc., 12 559 F.3d 1061, 1071 (9th Cir. 2009). 13 To avoid dismissal for failure to state a claim, a complaint must contain more than “naked 14 assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of 15 action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). Simply, the complaint “must 16 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 17 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim 18 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 19 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 20 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 & fn.7 21 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is 22 to tell the plaintiff of deficiencies in the complaint and give the plaintiff an opportunity to cure 23 them––if it appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 24 1122, 1130-31 (9th Cir. 2000) (en banc). However, if amendment would be futile, no leave to 25 amend need be given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 26 /// 27 /// 28 /// 1 Analysis 2 Plaintiff’s four claims in the 1AC are rooted in the law of contracts, and Defendant has 3 moved to dismiss Plaintiff’s claims as barred by the statute of limitations. Because these actions 4 are governed by California law, the Court looks to California’s statute of limitations for the 5 applicable time period. See Solomon v. N. Am. Life & Cas. Ins. Co., 151 F.3d 1132, 1137 (9th 6 Cir. 1998) (analyzing the motion to dismiss of a plaintiff’s insurance–related claims under 7 California’s statute of limitations). 8 A. Breach of Contract 9 In California, there is a four-year statute of limitations governing breach of contract 10 actions. See Cal. Code. Civ. Proc. § 337. Further, “[a] cause of action for breach of contract 11 accrues at the time of breach, which then starts the limitations period running.” Bjorklund v. 12 North American Companies for Life and Health Ins., 72 Fed. Appx. 550, 551 (9th Cir. 2003) 13 (citing Cochran v. Cochran, 56 Cal. App. 4th 1115, 1120 (1997)).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DYLAN LLOYD JONES, No. 2:19-cv-02049-MCE-KJN (PS) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS ON DEFENDANTS’ MOTION TO DISMISS 13 v. AND PLAINTIFF’S MOTION FOR LEAVE TO AMEND 14 LIBERTY MUTUAL, et al., (ECF Nos. 15, 16) 15 Defendants. 16 17 This case concerns a dispute between Plaintiff and his insurer, Liberty Mutual, as well as 18 two claims adjusters, Amber Cruz and Stephen Tognetti (collectively, “Defendants”). Plaintiff 19 asserts Defendants failed to pay the full amount owed to him related to a 2014 claim for stolen 20 property (ECF Nos. 7, 12, 13), and then improperly filed a temporary restraining order against 21 him when he attempted to pursue reimbursement (ECF No. 16). Defendants have moved to 22 dismiss the contract claims as time–barred, and assert Plaintiff’s claims concerning a temporary 23 restraining order (“TRO”) are barred by California’s Anti–SLAPP laws.1 24 For the reasons that follow, the Court recommends Defendants’ motion to dismiss (ECF 25 No. 15) be GRANTED. Further, given the futility of the claims asserted in Plaintiff’s proposed 26 second amended complaint (ECF No. 16), Plaintiff’s motion to amend should be DENIED. 27 1 This action proceeds before the undersigned pursuant to Local Rule 302(c)(21). Pursuant to 28 Local Rule 230(g), the Court resolves this motion on the papers without oral argument. 1 Procedural History and Brief Factual Background 2 Plaintiff filed three separate lawsuits against each Defendant in Sacramento County 3 Superior Court, and Defendants removed each action to this Court. (See, generally, ECF No. 1 in 4 Case Nos. 2:19-cv-02049-MCE-KJN (PS), 2:19-cv-02050-MCE-KJN (PS), and 2:19-cv-02051- 5 MCE-KJN (PS).) The District Judge consolidated the cases. (See ECF NO. 9 in Case No. 2:19- 6 cv-02049-MCE-KJN.) On October 29, 2019, Plaintiff filed a first amended complaint (“1AC”) 7 against each Defendant. (ECF Nos. 7, 12, 13.2) On November 12, 2019, Plaintiff moved for 8 leave to file a second amended complaint (“2AC”). (ECF No. 16.) 9 In the 1AC, Plaintiff principally alleges that Liberty Mutual failed to pay him his full 10 policy limit on a 2014 claim for stolen property. (ECF No. 7 at 1:16–19.) He asserts claims for 11 breach of contract, breach of the implied obligation of good faith and fair dealing, failure to 12 properly investigate his claim, and breach of duty to inform insured of rights. (See, generally, 13 ECF No. 7.) Defendants moved to dismiss these claims for failure to state a claim upon which 14 relief may be granted. 15 In his proposed second amended complaint (“2AC”), Plaintiff asserts claims for violation 16 of the Fair Debt Collection Practices Act (“FDCPA”), improper use of judicial proceedings, and 17 violation of his freedom of speech. (See, generally, ECF No. 16.) Plaintiff reiterates his previous 18 allegations regarding Defendants’ failure to pay him his full policy limits on his claim, (Id. at 19 2:10–18.), and also alleges that Defendants obtained a “workplace temporary restraining order” 20 (“TRO”) against him by means of “fraud.” (Id. at 1:19–21.) Specifically, Plaintiff alleges that 21 Defendants lied in their application for the TRO by representing that Plaintiff was “paid in full” 22 for his claim, and that he only continued contacting Defendants to harass them. (Id. at 4:11–18.) 23 Plaintiff also alleges that Defendants submitted to the court certain emails sent by him out of 24 context. (Id. at 4:20–5:1.) Plaintiff is currently serving a ten-year prison sentence for violating 25 the TRO. (ECF No. 1 at 2:4–27.) Defendants oppose amendment, and moved to strike any 26 portion of the 1AC concerning the TRO, per California’s Anti–SLAPP laws. (ECF No. 15.) 27 2 The amended complaints were filed in all three actions prior to the consolidation order, and are 28 identical. For simplicity, the Court will cite to ECF No. 7 in the 19–2049 action only. 1 I. Defendants’ Motion to Dismiss Plaintiff’s Four Contract Claims 2 Legal Standard 3 A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) 4 challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase 5 Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). When a court considers whether a 6 complaint states a claim upon which relief may be granted, all well-pled factual allegations must 7 be accepted as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and the complaint must be 8 construed in the light most favorable to the non–moving party, Corrie v. Caterpillar, Inc., 503 9 F.3d 974, 977 (9th Cir. 2007). The court is not, however, required to accept as true “conclusory 10 [factual] allegations that are contradicted by documents referred to in the complaint,” or “legal 11 conclusions merely because they are cast in the form of factual allegations.” Paulsen v. CNF Inc., 12 559 F.3d 1061, 1071 (9th Cir. 2009). 13 To avoid dismissal for failure to state a claim, a complaint must contain more than “naked 14 assertions,” “labels and conclusions,” or “a formulaic recitation of the elements of a cause of 15 action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). Simply, the complaint “must 16 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 17 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim 18 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 19 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 20 Pro se pleadings are to be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 342 & fn.7 21 (9th Cir. 2010) (liberal construction appropriate even post–Iqbal). Prior to dismissal, the court is 22 to tell the plaintiff of deficiencies in the complaint and give the plaintiff an opportunity to cure 23 them––if it appears at all possible the defects can be corrected. See Lopez v. Smith, 203 F.3d 24 1122, 1130-31 (9th Cir. 2000) (en banc). However, if amendment would be futile, no leave to 25 amend need be given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996). 26 /// 27 /// 28 /// 1 Analysis 2 Plaintiff’s four claims in the 1AC are rooted in the law of contracts, and Defendant has 3 moved to dismiss Plaintiff’s claims as barred by the statute of limitations. Because these actions 4 are governed by California law, the Court looks to California’s statute of limitations for the 5 applicable time period. See Solomon v. N. Am. Life & Cas. Ins. Co., 151 F.3d 1132, 1137 (9th 6 Cir. 1998) (analyzing the motion to dismiss of a plaintiff’s insurance–related claims under 7 California’s statute of limitations). 8 A. Breach of Contract 9 In California, there is a four-year statute of limitations governing breach of contract 10 actions. See Cal. Code. Civ. Proc. § 337. Further, “[a] cause of action for breach of contract 11 accrues at the time of breach, which then starts the limitations period running.” Bjorklund v. 12 North American Companies for Life and Health Ins., 72 Fed. Appx. 550, 551 (9th Cir. 2003) 13 (citing Cochran v. Cochran, 56 Cal. App. 4th 1115, 1120 (1997)). 14 Here, Plaintiff alleges that Defendants “thoroughly investigated and concluded” his claim 15 for stolen property in 2014, and that the investigator determined Plaintiff was entitled to recover 16 his “full policy limits.” (ECF No. 7 at 3:4–6.) He further alleges that in August 2014, he 17 received a final check for his claim that was $29,000 short of what he was owed. (Id. at 3:6–8.) 18 Therefore, Defendants’ alleged breach—the failure to pay Plaintiff his full policy limits— 19 occurred in August 2014. See Solomon, 151 F.3d at 1138 (finding the date of accrual for 20 California’s statute of limitations to be the day plaintiff “knew the facts underlying his cause of 21 action.”) Here, Plaintiff filed these actions against Defendants in the summer of 2019—nearly 22 five years after the breach. (ECF No. 1 at 3:14–15; 4:3.) Therefore, Plaintiff’s breach of contract 23 claim is time-barred and should be dismissed with prejudice. Chang v. Citigroup Inc., 2010 WL 24 520511, at *5 (N.D. Cal. Feb. 6, 2010) (dismissing time-barred action with prejudice because 25 “[g]ranting defendants’ motion with leave to amend would be futile.”); Joseph v. Kaye, 2016 WL 26 3677142, at *9–10 (C.D. Cal. July 7, 2016), (dismissing without leave to amend because action 27 barred by, among other things, statute of limitations) (aff'd, 692 F. App'x 370 (9th Cir. 2017)). 28 /// 1 B. Plaintiff’s Three Remaining Contract Claims 2 All contracts contain an implied covenant of good faith and fair dealing. Love v. Fire Ins. 3 Exchange, 221 Cal. App. 3d 1136, 1147 (1990). In insurance contracts, this covenant includes a 4 duty to properly investigate a claim and a duty to inform the insured of his or her rights under the 5 policy. See Egan v. Mutual of Omaha Ins. Co., 24 Cal. 3d 809, 817 (1979) (holding “that an 6 insurer may breach the covenant of good faith and fair dealing when it fails to properly 7 investigate its insured’s claim”); Chase v. Blue Cross of California, 42 Cal. App. 4th 1142, 1151– 8 52 (1996) (“Part of [the covenant of good faith and fair dealing] is the duty to reasonably inform 9 an insured of the insured’s rights and obligations under the insurance policy.” (quotation marks 10 and citation omitted)). Thus, Plaintiffs third and fourth claims are subsumed by his action for 11 breach of the implied covenant of good faith and fair dealing. 12 In California, there is a two-year statute of limitations that governs actions for breach of 13 the implied covenant of good faith and fair dealing. See Cal. Code Civ. Proc. § 339(1); IV 14 Solutions, Inc. v. United Healthcare, 2015 WL 4127823, at * 2 (C.D. Cal. July 5, 2015) (“[c]laims 15 for . . . breach of the covenant of good faith and fair dealing . . . must be filed within two years of 16 the time of accrual”); Blue Shield of California Life & Health Ins. Co. v. Superior Court, 192 Cal. 17 App. 4th 727, 737 (2011) (“Tort actions for breach of the implied covenant are now considered to 18 be on the policy so long as their essential aim is the recovery of benefits that were owed under the 19 policy.”). Here, Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing 20 reiterates previous allegations about “the delay of payment” of the remainder of Plaintiff’s policy 21 limits. (ECF No. 7 at 4:3–10.) His claim for failure to properly investigate his claim also 22 concerns Defendant’s “9 month investigation [of his claim] which was unfair” because Plaintiff 23 allegedly complied with Defendant’s requests during the investigation. (Id. at 4:23–27.) 24 Plaintiff’s claim for breach of duty to inform insured of insured’s rights under the policy similarly 25 concerns Defendant’s failure to pay him his full policy limits at the close of the 2014 26 investigation. (Id. at 5:2–13.) As previously discussed, the alleged breach of these duties 27 occurred in August 2014 when Defendants declined to pay Plaintiff his full policy limits on a 28 claim for stolen property. Therefore, when Plaintiff brought suit in 2019, his claim for breach of 1 the implied covenant of good faith and fair dealing was nearly three years late. Accordingly, 2 Plaintiff’s claims for breach of the implied covenant of good faith and fair dealing are time barred 3 and should be dismissed with prejudice. See Chang, 2010 WL 520511, at *5; Joseph, 2016 WL 4 3677142, at *9–10. 5 C. Potential Remaining Claims in the First Amended Complaint 6 At times in the 1AC, Plaintiff refers to Defendants’ actions taken in applying for and 7 enforcing a TRO against him. Given liberal construction the Court affords pro se plaintiffs and 8 the fact that Defendants move to strike any mention of the TRO in the instant filing (ECF No. 9 15), the Court will address the issue. However, the Court believes it is more expedient to treat 10 this issue under Plaintiff’s motion to amend, as the proposed 2AC more clearly asserts the issue. 11 II. Plaintiff’s Motion for Leave to File a Second Amended Complaint 12 On November 12, 2019, Plaintiff filed a motion to file a second amended complaint. 13 (ECF No. 16.) After Plaintiff properly noticed the motion for a hearing pursuant to Local Rule 14 230(b), the Court took Plaintiff’s motion under submission without a hearing.3 (ECF No. 23.) 15 After the first amended pleading of right, “a party may amend its pleading only with the 16 opposing party's written consent or the court's leave.” Fed. R. Civ. P. 15(a)(2). Leave to amend 17 “shall be freely given when justice so requires.” AmerisourceBergen Corp. v. Dialysist West, 18 Inc., 465 F.3d 946, 951 (9th Cir. 2006). However, leave to amend may be denied when any of the 19 following factors are at play: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, 20 (4) futility of amendment, and (5) whether there has been previous amendment. See also United 21 States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011). 22 A plaintiff’s proposed amendments are futile if the amended complaint would be subject 23 to dismissal. Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007); see also Unispec Dev. 24 Corp. v. Harwood K. Smith & Partners, 124 F.R.D. 211, 213 (D. Ariz. 1988) (“If the proposed 25 amendment would eventually be subject to . . . a motion to strike[] under Rule 12(f), it would be 26
27 3 Plaintiff subsequently appealed the Court’s decision to take the motion under submission. (ECF No. 26.) The Ninth Circuit dismissed this appeal for lack of a final appealable order. (ECF No. 28 31.) 1 an empty gesture for a court to allow such an amendment when the objecting party could 2 eventually make a formal motion . . . strike after leave to amend was granted.” (citing Gabrielson 3 v. Montgomery Ward & Co., 785 F.2d 762, 766 (9th Cir. 1986); Franchise Realty Interstate Corp. 4 v. San Francisco Local Joint Executive Bd. of Culinary Workers, 542 F.2d 1076, 1085 (9th Cir. 5 1976). “The test for futility is identical to the one used when considering the sufficiency of a 6 pleading challenged under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Karol v. Med- 7 Trans, 2012 WL 3862148, at *4 (E.D. Cal. Sept. 5, 2012) (citing Miller v. Rykoff-Sexton, Inc., 8 845 F.2d 209, 214 (9th Cir. 1988)). Therefore, “a proposed amendment is futile only if no set of 9 facts can be proved under the amendment to the pleading that would constitute a valid and 10 sufficient claim.” Id. 11 For the reasons that follow, the Court finds: (A) Plaintiff’s claims for improper use of 12 judicial proceedings and violation of first amendment rights would be subject to strike under 13 California’s Anti–SLAPP laws;4 and (B) his FDCPA claim would be subject to dismissal. 14 Therefore, amendment of Plaintiff’s complaint to add these claims would be futile.
15 A. “Improper Use of Judicial Proceedings” and “First Amendment” Claims 16 The California Legislature enacted its anti-SLAPP5 statute due to “a disturbing increase in 17 lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of 18 speech.” Cal. Code. Civ. Proc. § 425.16(a). The statute provides that any claim “against a person 19 arising from an act of that person in furtherance of the person’s right of petition or free speech . . . 20 in connection with a public issue shall be subject to a special motion to strike.” Cal. Code. Civ. 21 Proc. § 425.16(b)(1). “Generally, a party may bring an anti-SLAPP special motion to strike in 22 federal court.” Planned Parenthood v Center for Medical Progress, 890 F.3d 828, 834 (9th Cir. 23 2018) (“[W]hen an anti-SLAPP motion to strike challenges only the legal sufficiency of a claim, 24 a district court should apply the Federal Rule of Civil Procedure 12(b)(6) standard and consider 25
4 In prior versions of his complaint, Plaintiff raised similar claims based on the same set of facts. 26 Defendants filed motions to strike each of these claims. (See ECF Nos. 4, 15.) 27 5 “SLAPP” stands for “Strategic Lawsuit Against Public Participation.” See Mindy’s Cosmetics, 28 Inc. v. Dakar, 611 F.3d 590, 595 (9th Cir. 2010). 1 whether a claim is properly stated.”); see also Berman v. McManus, 2011 WL 2144411, at *8 2 (E.D. Cal. May 31, 2011) (citing Thomas v. Fry’s Elecs., Inc., 400 F.3d 1206 (9th Cir. 2005)). 3 A defendant will thus succeed on an anti-SLAPP motion if (1) the defendant shows that 4 the lawsuit arises from an action taken “in furtherance of the defendant’s rights of petition or free 5 speech”; and (2) the plaintiff fails to show that there is a probability he will prevail on his claim. 6 Vess v. Ciba-Geigy Corp., 317 F.3d 1097, 1110 (9th Cir. 2003) (citations omitted). 7 1. Act in Furtherance of Rights of Petition or Free Speech 8 A successful anti-SLAPP motion first requires “a prima facie showing that the plaintiff’s 9 suit arises from an act in furtherance of the defendant’s constitutional right to free speech.” 10 Makaeff v. Trump University, LLC, 715 F.3d 254, 261 (9th Cir. 2013). Such an act may include 11 “any written or oral statement made before a . . . judicial proceeding,” or “in connection with an 12 issue under consideration or review by a . . . judicial body.” Cal. Civ. Proc. § 425.16(e)(1)–(2). 13 Civil harassment restraining orders and “workplace violence petitions . . . are subject to motions 14 to strike” under California’s anti-SLAPP statute. City of Los Angeles v. Animal Defense League, 15 135 Cal. App. 4th 606, 617 (2006) (disapproved of on other grounds in City of Montebello v. 16 Vasquez, 1 Cal. 5th 409 (2016)). 17 Here, Plaintiff alleges claims for improper use of judicial proceedings and violation of his 18 right to free speech. (See generally ECF No. 16.) He essentially argues that Defendants misled 19 the California superior court in filing the TRO. Specifically, he alleges that Defendants falsely 20 represented that Plaintiff was paid in full for his insurance claim, and presented Plaintiff’s emails 21 and social media posts out of context. (See, e.g., Id. at 4:3–5:1;7:5–25.) Therefore, the act 22 primarily contested by Plaintiff is Defendants’ filing of the TRO. See United Tactical Systems, 23 LLC v. Real Action Paintball, Inc., 143 F. Supp. 3d 982, 1109–10 (N.D. Cal. 2015) (holding that 24 lawsuit alleging defendants “committed wrongdoing by (a) ‘purposefully fil[ing] . . . motions for 25 a TRO and preliminary injunction’” arose from defendants’ participation in protected activities. 26 (citation omitted)); Paiva v. Nichols, 168 Cal. App. 4th 1007, 1011, 1017 (2008) (holding that “it 27 is beyond question that the initiation and prosecution” of TRO and preliminary injunction for 28 trespass is protected activity); see also Medina Puerta v. Feinberg, Mindel & Kline, LLP, 2005 1 WL 981661 at *4 (Cal. App. April 28, 2005) (finding plaintiff could not “defeat the anti-SLAPP 2 statute” because complaint was “‘based on’ [defendant’s] protected activity of obtaining the TRO 3 and stipulation. (citation omitted)). Therefore, Defendants have satisfied the first element, as 4 their act is firmly rooted in their right to petition the courts.6 5 2. Probability of Plaintiff’s Success 6 After a defendant shows that the plaintiff’s claim concerns “an act in furtherance of 7 protected expression . . . the plaintiff must show a ‘reasonable probability’ of prevailing in its 8 claims.” Metabolife Intern., Inc. v. Wornick, 264 F.3d 832, 840 (9th Cir. 2001). To meet this 9 burden, “the plaintiff must demonstrate that ‘the complaint is legally sufficient and supported by a 10 prima facie showing of facts to sustain a favorable judgment.” Id. (quotation marks and citation 11 omitted). An “anti-SLAPP motion should be granted when a plaintiff presents an insufficient 12 legal basis for his or her claims.” Id.; see also Appel v. Wolf, 2018 WL 6726797, at *2 (S.D. Cal. 13 Dec. 20, 2018). Defendants argue that California’s litigation privilege prevents Plaintiff from 14 ultimately prevailing on his claims. (ECF No. 15-1 at 9.) 15 California’s litigation privilege “‘applies to any communication (1) made in judicial or 16 quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve 17 the objects of the litigation; and (4) that [has] some connection or logical relation to the action.’” 18 Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 1241 (2007) (quoting 19 Silberg v. Anderson, 50 Cal. 3d 205, 216 (1990)). The privilege “immunize[s] defendants from 20 tort liability based on theories of [e.g.] abuse of process . . . and fraud.” Id.; see also Loop Al 21 Labs Inc v. Gatti, 2015 WL 5158458, at *3 (N.D. Cal. Sept. 2, 2015) (“Courts have applied the 22 litigation privilege to all tort claims, with the exception of malicious prosecution.”) (citing 23 Edwards v. Centex, 53 Cal. App. 4th 15, 29 (1997)). Moreover, the privilege “‘encompasses not 24 only testimony in court and statements made in pleadings, but also statements made prior to the
25 6 Defendants need not demonstrate that their protected speech activity was made in connection with the public interest. See Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 26 1123 (1999) (holding that anti-SLAPP motions brought “to strike a cause of action arising from a 27 statement made before, or in connection with an issue under consideration by, a legally authorized official proceeding need not separately demonstrate that the statement concerned an 28 issue of public significance.” (emphasis original)). 1 filing of a lawsuit,’” including “‘preparation for anticipated litigation.’” March v. Twin Cities 2 Police Authority, 2014 WL 3725931, at *11 (N.D. Cal. July 25, 2014) (citing Silberg, 50 Cal. 3d 3 at 212). “The litigation privilege is also relevant to the second step in the anti-SLAPP analysis in 4 that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of 5 prevailing.” Flatley v. Mauro, 39 Cal. 4th 299, 323 (2006) (citing Kashian v. Harriman, 98 Cal. 6 App. 4th 892, 926–27 (2002); Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, 47 Cal. App. 4th 7 777, 783–85 (1996)). 8 As discussed above, Plaintiff’s claims for improper use of judicial proceedings and 9 violation of his right to free speech hinge on representations that Defendants made in pursuing the 10 TRO. (See ECF No. 16.) Therefore, Plaintiff’s claims are barred by California’s litigation 11 privilege. See March, 2014 WL 3725931, at *11 (holding that plaintiff’s claims, which were 12 “based on [defendants’] . . . preparation, initiation, and prosecution of a work place violence 13 restraining order against plaintiff” were barred by litigation privilege). Thus, Plaintiff has failed 14 to meet his burden under the second prong of California’s anti-SLAPP statute, and so his claims 15 are subject to a special motion to strike. See Cal. Code. Civ. Proc. § 425.16 (b)(1). 16 Given this context, granting Plaintiff leave to assert these claims in an amended complaint 17 would be futile. See Flores v. Emerich & Fike, 2006 WL 2536615, at *10 (E.D. Cal. Aug. 31, 18 2006) (“To allow amendment after an anti-SLAPP motion to strike has been granted eviscerates 19 the purpose of the anti-SLAPP statute”). Accordingly, the Court recommends denying Plaintiff’s 20 motion to amend his complaint to include claims for improper use of judicial proceedings and 21 violation of Plaintiff’s right to free speech. 22 B. Claim under the Fair Debt Collection Practices Act (“FDCPA”) 23 The FDCPA was passed “to eliminate abusive debt collection practices by debt 24 collectors.” 15 U.S.C. § 1692(e) (emphasis added). The FDCPA further defines debt collectors 25 as “any person who uses any instrumentality of interstate commerce or the mails in any business 26 the principal purpose of which is the collection of any debts, or who regularly collects or attempts 27 to collect . . . debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). 28 To properly state a claim under the FDCPA, a plaintiff must allege: 1 (1) the plaintiff is a ‘consumer’ under 15 U.S.C. § 1692a(3); (2) the debt arises out of a transaction entered into for personal 2 purposes; (3) the defendant is a ‘debt collector’ under 15 U.S.C. § 1692a(6); 3 and (4) the defendant violated one of the provisions contained in 15 4 U.S.C. §§ 1692a-1692o. 5 Wheeler v. Premiere Credit of North America, LLC, 80 F. Supp. 3d 1108, 1112 (S.D. Cal. 2015) 6 (emphasis added) (citing Turner v. Cook, 362 F.3d 1219, 1226–27 (9th Cir. 2004)). 7 In his motion to file the 2AC, Plaintiff includes a claim for violation of the FDCPA. (ECF 8 No. 16 at 3:1–20.) As far as the Court can tell, Plaintiff solely alleges that Defendants owe him a 9 “debt,” as defined by the FDCPA, which renders him a “debt collector.” (Id.) However, the 10 FDCPA does not provide causes of action for debt collectors; rather, it provides an avenue for 11 consumers, i.e., those who owe a debt, to sue their debt collectors. See 15 U.S.C. § 1692a(3); 12 Wheeler, 80 F. Supp. 3d at 1112. Further, Plaintiff’s entire action is based on Defendants’ 13 alleged failure to pay him his full policy limit on an insurance claim. Thus, the court can envision 14 no amendment that would render Plaintiff a consumer or Defendants debt collectors under the 15 FDCPA. 16 Plaintiff also cites to California’s version of the FDCPA, Cal. Civ. Code § 1788.2(c), to 17 support this “debt collection” claim. (ECF No. 16 at 3:14–20.) Although California’s version of 18 the statute “require[s] debtors to act fairly in entering into and honoring . . . debts,” and sets forth 19 certain debtor responsibilities, it does not provide debt collectors a right of action against debtors. 20 § 1788.1(b); see also §§ 1788.20–22. Instead, California’s FDCPA provides debt collectors an 21 affirmative defense when a plaintiff debtor engages in “intentional violation of the provisions of 22 this title.” Cal. Civ. Code. § 1788.30. Therefore, Plaintiff’s claim under Section 1788.2 is 23 similarly defunct. See Izenberg v. ETS Services, LLC, 589 F. Supp. 2d 1193, 1199 (C.D. Cal. 24 2008) (dismissing Plaintiffs’ claim for violation of California’s FDCPA because “plaintiffs do not 25 allege that [defendant] is a debt collector or that [defendant] was in fact attempting to collect a 26 debt”). 27 Accordingly, amendment of Plaintiff’s complaint to include a FDCPA claim under either 28 federal or state law would be futile, and so Plaintiff’s motion to amend should be denied. 1 RECOMMENDATIONS 2 Accordingly, IT IS HEREBY RECOMMENDED that: 3 1. Defendants’ Motion to Dismiss Plaintiff's First Amended Complaint be GRANTED, 4 Plaintiff's Contract claims in the First Amended Complaint be DISMISSED WITH 5 PREJUDICE, and to the extent the First Amended Complaint asserts claims regarding 6 the Superior—Court-TRO, Defendants’ Motion to Strike be GRANTED (ECF No. 15); 7 2. Plaintiff's Motion(s) to Amend his Complaint (ECF Nos. 16, 18) be DENIED; and 8 3. The Clerk of the Court be directed to CLOSE this case. 9 ORDER 10 In light of the above recommendations, it is also ORDERED that: 11 1. All pending hearing dates are VACATED; 12 2. All pleading, discovery, and motion practice in this action are STAYED pending 13 resolution of these findings and recommendations (other than objections to the 14 findings and recommendations or non-frivolous motions for emergency relief, the 15 Court will not entertain or respond to any pleadings or motions until the findings and 16 recommendations are resolved). 17 These findings and recommendations are submitted to the United States District Judge 18 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)d). Within fourteen (14) 19 | days after being served with these findings and recommendations, any party may file written 20 | objections with the court and serve a copy on all parties. Such a document should be captioned 21 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 22 | shall be served on all parties and filed with the court within fourteen (14) days after service of the 23 | objections. The parties are advised that failure to file objections within the specified time may 24 | waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 25 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 26 | Dated: January 30, 2020 Fens Arn 28 KENDALL J. NE \ UNITED STATES MAGISTRATE JUDGE