Smith v. Wolf

• Court: District Court, S.D. California
• Decided: March 8, 2021
• Docket: 3:20-cv-01409
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 G. SMITH, Case No.: 20cv1409-JAH (JLB)

11 Plaintiff, ORDER: 12 v. (1) GRANTING IN PART AND DISMISSING IN PART 13 DANIEL WOLF and PAUL PLAINTIFF’S FIRST AMENDED BEDINGTON, 14 COMPLAINT [Doc. No. 7]; AND Defendant. (2) GRANTING MOTION TO FILE 15 ELECTRONICALLY [Doc. No. 8] 16 17 INTRODUCTION 18 On July 22, 2020, G. Smith (“Plaintiff”), proceeding pro se, filed a Complaint 19 seeking damages against Daniel Wolf and Paul Bedington (“Defendants”) for seven 20 California state law claims: Breach of Contract, Assault, Trespass, Trespass to Chattels, 21 Conversion, Abuse of Process, and Unjust Enrichment. [Doc. No. 1]. On July 22, 2020, 22 Plaintiff also filed a Motion to Proceed in forma pauperis (“IFP”). [Doc. No.2]. On 23 October 19, 2020, Plaintiff filed a Motion for Extension of Time of Service, Doc. No. 3, 24 and a Motion to File Electronically. [Doc. No. 4]. On October 27, 2020, this Court denied 25 Plaintiff’s Motion for Extension of Time of Service and Motion to File Electronically. 26 [Doc. No. 5]. 27 On October 28, 2020, this Court granted Plaintiff’s Motion to Proceed IFP and 28 dismissed Plaintiff’s Complaint in part without prejudice. [Doc. No. 6]. Presently before 1 the Court is the Plaintiff’s First Amended Complaint (“FAC”). After a careful review of 2 the pleadings, exhibits, and motions, and for the reasons set forth below, the Court (1) 3 GRANTS IN PART and DISMISSES IN PART the FAC [Doc. No. 7]; and (2) 4 GRANTS Plaintiff’s Motion to File Electronically [Doc. No. 8]. 5 DISCUSSION 6 I. Sua Sponte Screening Pursuant to 28 USC § 1915(a) 7 A. Legal Standard 8 When a Plaintiff seeks leave to proceed IFP, the FAC is subject to sua sponte review, 9 and mandatory dismissal, if it is “frivolous, malicious, fail[s] to state a claim upon which 10 relief may be granted, or seek[s] monetary relief from a defendant immune from such 11 relief.” See 28 U.S.C. § 1915(e)(2)(B); Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015) 12 (pursuant to 28 U.S.C. § 1915(e)(2) “the court shall dismiss the case at any time if the court 13 determines that… (B) the action or appeal… (ii) fails to state a claim on which relief may 14 be granted.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“section 15 1915(e) not only permits, but requires, a district court to dismiss an in forma pauperis 16 complaint that fails to state a claim.”). “The standard for determining whether a plaintiff 17 has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the 18 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” 19 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 20 1. Breach of Contract Claim 21 To state a claim for breach of contract under California law, a plaintiff must allege 22 facts sufficient to establish: “(1) the contract, (2) plaintiff's performance or excuse for non- 23 performance, (3) defendant's breach, and (4) the resulting damages to plaintiff.” Reichert 24 v. General Ins. Co., 442 P. 2d 377, 381 (Cal. 1968). Here, the FAC alleges sufficient facts 25 to state a breach of contract claim. The FAC alleges that there was a written contract 26 between Plaintiff and Defendants where Plaintiff would provide legal services to 27 Defendants in exchange for living accommodations. The FAC also alleges that Plaintiff 28 provided his legal services, but Defendants breached the contract by “forcibly [ejecting]” 1 Plaintiff from the guest room he was living in without providing another living 2 accommodation. Therefore, Plaintiff’s breach of contract claim is plausible since Plaintiff 3 plead factual content that allows the Court to draw the reasonable inference that Defendants 4 are liable for their alleged misconduct. 5 2. Assault Claim 6 Under California civil law, a claim for assault must allege: “(1) that Defendants 7 intended to cause harmful or offensive contact, or the imminent apprehension of such 8 contact, and (2) that Plaintiff was put in imminent apprehension of such contact.” Brooks 9 v. United States, 29 F. Supp. 2d 613, 617 (N.D. Cal. 1998) (citing Restatement (Second) 10 of Torts § 21 (1965)). “The tort of assault is complete when the anticipation of harm 11 occurs.” Kiseskey v. Carpenters’ Trust for So. California, 192 Cal. Rptr. 492, 498 (Cal. 12 Ct. App. Dist. 1983). Physical injury need not be present for either a claim of assault or 13 battery. Id. Specific intent to commit an assault is not required, only an intentional act 14 coupled with “actual knowledge of the facts sufficient to establish that the defendant's act 15 by its nature will probably and directly result in injury to another.” People v. Williams, 29 16 P. 3d 197, 199 (Cal. 2001). In Steel v. City of San Diego, the Court found that mere words, 17 without an overt act, is not considered assault: 18 Mere words, unaccompanied by some act apparently intended to carry the 19 threat into execution do not put the other in apprehension of an imminent 20 bodily contact, and so cannot make the actor liable for assault. For this reason, 21 it is commonly said in the decisions that mere words do not constitute an 22 assault, or that some overt act is required. 23 Steel v. City of San Diego, 726 F. Supp. 2d 1172, 1190 (S.D. Cal. 2010) (citing Restatement 24 (Second) of Torts § 31 cmt. a). 25 Here, the FAC fails to allege sufficient facts to state an assault claim. Plaintiff 26 alleges that Defendant Wolf “threaten[ed] Plaintiff with immediate bodily harm” and 27 “Defendant assaulted Plaintiff.” Plaintiff asserts that Defendant Wolf is substantially 28 larger in frame than Plaintiff. Plaintiff states that Defendant Wolf is “approximately 6’2” 1 and 190 pounds” and the Plaintiff is “5’4” and under 120 pounds.” However, the FAC 2 fails to show how Plaintiff was put in imminent apprehension of a harmful or offensive 3 contact. Plaintiff alleges that Defendant Wolf told Plaintiff, “I will pick you up myself and 4 throw you out of this house if the cops don’t get here fast enough to do it themselves.” The 5 alleged statement by Defendant Wolf does not amount to an intentional “imminent” threat 6 because “if the cops don’t get here fast enough…” is conditional and refers to a situation 7 in the future. The FAC also fails to allege any sufficient facts that Defendant Wolf 8 committed an “overt act” when making the statement. 9 Therefore, based on the facts alleged in the FAC, the Court cannot draw a reasonable 10 inference that Defendant Wolf may be liable for his alleged misconduct. 11 3. Trespass Claim 12 Trespass is “an unlawful interference with possession of property.” Staples v. 13 Hoefke, 189 Cal. App. 3d 1397, 1406 (1987). The elements of trespass are: “(1) the 14 plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or 15 negligent entry onto the property; (3) lack of permission for the entry or acts in excess of 16 permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing 17 the harm.” Ralphs Grocery Co. v. Victory Consultants, Inc., 225 Cal. Rptr. 3d 305, 317 18 (Cal. Ct. App. 2017). The interference with possession “need not take the form of a 19 personal entry onto the property by the wrongdoer. Instead, it may be accomplished by the 20 casting of substances or objects upon the plaintiff’s property from without its boundaries.” 21 Elton v. Anheuser-Busch Beverage Grp. Inc., 58 Cal. Rptr. 2d 303, 306 (Cal. Ct. App. 22 1996). 23 Here, the FAC alleges a plausible trespass claim. The FAC alleges that Plaintiff had 24 possessory interest over his suite and Defendants intentionally entered his suite without 25 Plaintiff’s permission before the court-ordered eviction. Plaintiff was harmed by 26 Defendants’ conduct since he was no longer able to enter the premises and collect his 27 personal belongings. Based on the facts alleged in the FAC, the Court can draw a 28 reasonable inference that Defendants may be liable for their alleged misconduct. 1 4. Trespass to Chattels Claim 2 Under California law, one is only liable of the tort of trespass to chattel if his 3 “intermeddling is harmful to the possessor’s materially valuable interest in the physical 4 condition, quality, or value of the chattel, or if the possessor is deprived of the use of the 5 chattel for a substantial time, or some other legally protected interest of the possessor is 6 affected....” Intel Corp. v. Hamidi, 71 P. 3d 296, 302-303 (Cal. 2003). 7 Here, the FAC states that “Defendants intentionally, illegally entered into 8 [P]laintiff’s suite and converted all of [P]laintiff’s possessions….” A deeper dive into 9 Plaintiff’s allegations reflects Defendants’ knowledge that Plaintiff had no alternative 10 means to immediately secure alternative housing, yet Defendants confiscated his 11 belongings. Plaintiff asserts that the alleged intermeddling by Defendants was harmful to 12 Plaintiff’s material valuable interest in the condition, quality, or value of his “plants, 13 personal papers, and clothes.” Therefore, the FAC alleges a plausible trespass to chattels 14 claim because the facts alleged allow the Court to draw a reasonable inference to determine 15 whether the Defendants are liable for their alleged misconduct. 16 5. Conversion Claim 17 Conversion is “the wrongful exercise of dominion over the property of another.” 18 Oakdale Village Group. v. Fong, 50 Cal. Rptr. 2d 810, 812 (Cal. Ct. App. 1996). To state 19 a claim for conversion, a plaintiff must allege that (1) he had ownership or rights to possess 20 the property at issue at the time of the conversion; (2) the defendant converted the property 21 by wrongful act; and (3) the plaintiff suffered damages as a result. Id. 22 Here, the FAC alleges sufficient facts to state a conversion claim. The FAC alleges 23 that Defendants entered Plaintiff’s suite without his consent and took his possessions. 24 Specifically, the FAC alleges that Defendant took “a box of legal paperwork, re-packing 25 and removing part of its contents,” which interfered with Plaintiff’s use and possession of 26 those items. Therefore, Plaintiff’s conversion claim is plausible since Plaintiff plead 27 sufficient facts to allow the Court to draw the reasonable inference that Defendants are 28 liable for their alleged misconduct. 1 6. Abuse of Process Claim 2 The California abuse of process tort has two elements: “(1) an ulterior motive; and 3 (2) a willful act in the use of process not proper in the regular conduct of the proceedings.” 4 Drum v. Bleau, Fox & Assocs., 132 Cal. Rptr. 2d 602, 608 (Cal. Ct. App. 2003). Simply 5 filing or maintaining a lawsuit—even with an improper motive—is not actionable. Silver 6 v. Gold, 259 Cal. Rptr. 185, 189 (Cal. Ct. App. 1989). The tort must involve a misuse of 7 the power of the court, or “an act done under the authority of the court for the purpose of 8 perpetrating an injustice.” Younger v. Solomon, 113 Cal. Rptr. 113, 118 (Cal. Ct. App. 9 1974). “[T]here must be subsequent abuse, by a misuse of the judicial process for a purpose 10 other than that which it was intended to serve. The gist of the tort is the improper use of 11 the process after it is issued.” Adams v. Superior Court, 3 Cal. Rptr. 2d 49, 53-54 (Cal. Ct. 12 App. 1992). 13 The FAC alleges that one of the Defendants “falsely alleg[ed] the Plaintiff was 14 abusing him as an elderly person” and Defendant “Wolf skipped statutory due process” to 15 obtain a Temporary Restraining Order (“TRO”), as an ulterior motive to forcibly remove 16 Plaintiff from the premises. Plaintiff has proven ulterior motive, but the FAC fails to allege 17 any facts from which a reasonable inference may be drawn that Defendants partook in 18 subsequent abuse. 19 Plaintiff alleges Defendants “procured sheriffs, who without any notice to Plaintiff, 20 forcibly entered and immediately removed Plaintiff from the premises.” Plaintiff has failed 21 to show how the Defendants improperly used the TRO after issuance. The TRO was 22 granted by a San Diego Superior Court and Defendants used the TRO to evict Plaintiff, i.e. 23 one of the protections it was intended to provide. The manner to which the TRO was 24 enforced is not sufficient to establish improper use. Since the TRO was used for the 25 purpose it was intended to serve, the FAC fails to supply facts that would show there was 26 improper use of the TRO after it was issued. Therefore, the Court cannot draw a reasonable 27 inference that Defendants may be liable for their alleged misconduct. 28 /// 1 7. Unjust Enrichment Claim 2 The Ninth Circuit recently clarified the law regarding unjust enrichment in 3 California, holding that while “there is not a stand alone cause of action for unjust 4 enrichment, which is synonymous with restitution ... [w]hen a plaintiff alleges unjust 5 enrichment, a court may construe the cause of action as a quasi-contract claim seeking 6 restitution.” Astiana v. Hain Celestial Group, Inc., 783 F.3d 753, 762 (9th Cir. 2015). The 7 elements for a claim of unjust enrichment are “receipt of a benefit and unjust retention of 8 the benefit at the expense of another.” Lectrodryer v. SeoulBank, 91 Cal. Rptr. 2d 881, 883 9 (Cal. Ct. App. 2000). “The theory of unjust enrichment requires one who acquires a benefit 10 which may not justly be retained, to return either the thing or its equivalent to the aggrieved 11 party so as not to be unjustly enriched.” Otworth v. Southern Pac. Transportation Co., 212 12 Cal. Rptr. 743, 748 (Cal. Ct. App. 1985). It is not, strictly speaking, a theory of recovery, 13 “but an effect: the result of a failure to make restitution under circumstances where it is 14 equitable to do so.” Lauriedale Associates, Ltd. v. Wilson, 9 Cal. Rptr. 2d 774, 780 (Cal. 15 Ct. App. 1992). 16 Here, the FAC alleges sufficient facts to state an unjust enrichment claim. The FAC 17 alleges that Defendants received a benefit that was provided through the services of 18 Plaintiff. Plaintiff provided these services based upon reliance by Defendants that he 19 would receive housing. After providing his services to Defendants, the FAC alleges that 20 Plaintiff was forcibly removed from the premises and thus was not able to enjoy “the 21 agreement’s most valuable benefit.” Therefore, Plaintiff’s unjust enrichment claim is 22 plausible since Plaintiff plead factual content that allows the Court to draw the reasonable 23 inference that Defendants are liable for their alleged misconduct. 24 Therefore, because Plaintiff’s FAC lacks short and plain statements factually 25 supporting his Assault and Abuse of Process claims, the Court finds that those claims must 26 be DISMISSED, sua sponte, for failing to state a claim upon which relief can be granted. 27 See 28 U.S.C. § 1915(e)(2)(B)(ii); Lopez, 203 F.3d at 1130. 28 /// 1 B. Leave to Amend 2 Because the Court has determined that Plaintiff’s Breach of Contract, Trespass, 3 Trespass to Chattels, Conversion, and Unjust Enrichment claims survive the sua sponte 4 screening process, the Court will give Plaintiff the opportunity to either: (1) notify the 5 Court of the intent to proceed with only his Breach of Contract, Trespass, Trespass to 6 Chattels, Conversion, and Unjust Enrichment claims against Defendants; or (2) file an 7 amended pleading correcting all the deficiencies of pleading identified by the Court in this 8 Order. Plaintiff must choose one of these options within forty-five (45) days from the date 9 this Order is filed. If Plaintiff chooses to proceed as to his surviving claims against 10 Defendants, the Court will issue an Order directing the U.S. Marshal to effect service of 11 his FAC and dismiss the claims and defendants that fail to survive sua sponte review. 12 II. Plaintiff’s Motion to File Electronically 13 Generally, “[e]xcept as prescribed by local rule, order, or other procedure, the 14 Court has designated all cases to be assigned to the Electronic Filing System.” CivLR 15 5.4(a). With respect to pro se litigants, however, “[u]nless otherwise authorized by the 16 court, all documents submitted for filing to the Clerk’s Office . . . must be in legible, 17 paper form.” Office of the Clerk, United States District Court for the Southern District of 18 California, Electronic Case Filing Administrative Policies and Procedures Manual § 2(b) 19 (2020). A pro se party seeking leave to electronically file documents must file a motion 20 and demonstrate the means to do so properly by stating their equipment and software 21 capabilities in addition to agreeing to follow all rules and policies in the CM/ECF 22 Administrative Policies and Procedures Manual. Id. The manual refers to the court’s 23 official website for CM/ECF technical specifications, Id. at § 1(i), which include a 24 “computer running Windows or Macintosh”; “[s]oftware to convert documents from a 25 word processor format to [PDF],” such as Adobe Acrobat PDF Writer (“Adobe Acrobat 26 7.0 and higher meet the CM/ECF filing requirements”); “PDF compatible word processor 27 like WordPerfect or Word”; “Internet access supporting a transfer rate of 56kb or 28 higher”; a compatible browser, such as Firefox 15, Internet Explorer 9, and Safari 5.1/6; 1 and a “[s]canner to image non-computerized documents.” United States District Court, 2 Southern District of California, CM/ECF: General Info, https://www.casd.uscourts.gov/ 3 cmecf (last visited January 13, 2021). 4 In the present motion, Plaintiff has provided information establishing that his 5 computer and software are sufficient to electronically file documents with the court. 6 Plaintiff has stated that he owns a “Mac” computer and “has access to Adobe Acrobat 7.0 7 software.” Plaintiff has also stated that he has the ability “to convert Word documents to 8 PDF,” “Internet access supporting a transfer rate of 56kb or higher,” and “Firefox 15 and 9 Internet Explorer 9.” Additionally, Plaintiff has stated that he has access to “a scanner to 10 image non-computerized documents 400 pixels per inch.” Plaintiff has also agreed to 11 follow the rules and policies of the CM/ECF Administrative Policies and Procedures 12 Manual. 13 Accordingly, the Court GRANTS Plaintiff’s motion to file electronically. 14 CONCLUSION AND ORDER 15 For all the reasons discussed above, IT IS HEREBY ORDERED: 16 1. The Breach of Contract, Trespass, Trespass to Chattels, Conversion, and Unjust 17 Enrichment claims survive sua sponte review. 18 2. The Assault and Abuse of Process claims [Doc. No. 7] are DISMISSED without 19 prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); and 20 3. The Court GRANTS Plaintiff forty-five (45) days leave from the date of this 21 Order in which to either: (1) notify the Court of the intention only to proceed with 22 the claims surviving sua sponte review; or (2) file a Second Amended Complaint 23 (“SAC”) which cures all the noted deficiencies of pleading. Plaintiff’s SAC must 24 be complete in itself, without reference to his original pleading. Defendants not 25 named and any claims not re-alleged in the SAC will be considered waived. See 26 CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 27 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); 28 Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 1 dismissed with leave to amend which are not re-alleged in an amended pleading 2 may be “considered waived if not repled.”). 3 4. In the event Plaintiff elects to only proceed with his Breach of Contract, Trespass, 4 Trespass to Chattels, Conversion, and Unjust Enrichment claims or fails to elect 5 either option by the date such election is due, the Court will issue an Order 6 dismissing all claims (and defendants) that have failed to survive sua sponte 7 review and direct the U.S. Marshall to effect service of this FAC. 8 5. The Court GRANTS Plaintiff’s Motion to File Electronically. 9 IT IS SO ORDERED. 10 11 DATED: March 8, 2021 12 i se 14 JGHN A. HOUSTON JNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28