Weston v. Lefiti

• Court: District Court, S.D. California
• Decided: December 5, 2023
• Docket: 3:23-cv-00896
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 Case No. 23-cv-0896-L-DDL GREGORY WESTON, 12 Plaintiff, ORDER GRANTING DEFENDANTS’ 13 v. MOTION TO DISMISS 14 ELIZABETH LEFITI, MINELLA [ECF No. 20] 15 LAW GROUP, APC, and KATHY MINELLA, 16 Defendants. 17 Pending before the Court is Defendant Elizabeth Lefiti, Defendant Minella Law 18 Group, APC, and Defendant Kathy Minella’s (collectively, “Defendants”) motion to 19 dismiss Plaintiff Gregory Weston’s (“Plaintiff”) amended complaint. (ECF No. 20.) 20 Plaintiff opposed, (ECF no. 21), and Defendants replied, (ECF no. 22). The Court has 21 22 jurisdiction pursuant to 28 U.S.C. §1331. The Court decides the matter on the papers 23 submitted without oral argument. See Civ. L.R. 7.1(d.1). For the reasons stated below, 24 Defendants’ motion to dismiss is granted. 25 26 27 28 1 I. BACKGROUND 2 According to the allegations in the complaint, Plaintiff filed a custody action in 3 San Diego against his son’s mother, Hannah Voigt (“Voigt”). (ECF No. 19, at 3.) 4 Voigt retained Defendants to represent her in the custody proceedings. (Id.) On 5 October 23, 2022, Voigt used her iPad to record a phone call with Plaintiff. (Id. at 4) 6 Plaintiff alleges that Defendants instructed Voigt to make the recording. (Id.) Further, 7 Plaintiff alleges that Defendants scripted what Voigt should say, and that Defendants 8 and Voigt did so with the intent to invade Plaintiff’s privacy, to unlawfully extort 9 money from him, to cause Plaintiff emotional distress, and to cause Plaintiff adverse 10 publicity to interfere with current and prospective business relationships. (Id.) 11 Plaintiff originally brought six causes of action under both state and federal law. 12 (ECF No. 1.) The Court previously dismissed the claim brought under the Federal 13 Wiretap Act, 18 U.S.C. § 2510 et seq. (“Federal Wiretap Act”) and declined to 14 exercise supplemental jurisdiction over the remaining state law claims. (ECF No. 18.) 15 Plaintiff now brings a single cause of action in their amended complaint: 16 violation of interception and disclosure of wire, oral, or electronic communications in 17 violation of the Federal Wiretap Act. 18 II. LEGAL STANDARDS 19 A. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6) 20 A 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v. 21 Block, 250 F.3d 729, 732 (9th Cir. 2001).2 A pleading must contain, in part, “a short 22 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 23 Civ. P. 8(a)(2). Therefore, plaintiffs must also plead “enough facts to state a claim to 24

25 1 Reviewing Defendants’ motion to dismiss, the Court accepts as true all facts alleged 26 in the complaint and construes them in the light most favorable to Plaintiff. See Snyder & Assocs. Acquisitions LLC v. United States, 859 F.3d 1152, 1157 (9th Cir. 27 2017). 28 2 Unless stated otherwise, internal ellipses, brackets, citations, and quotation marks 1 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 2 (2007); see also Fed. R. Civ. P. 12(b)(6). The plausibility standard demands more than 3 “a formulaic recitation of the elements of a cause of action,” or “‘naked assertions’ 4 devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 5 (quoting Twombly, 550 U.S. at 557). Instead, the complaint “must contain allegations 6 of underlying facts sufficient to give fair notice and to enable the opposing party to 7 defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 8 In reviewing a 12(b)(6) motion to dismiss, “[a]ll allegations of material fact are 9 taken as true and construed in the light most favorable to the nonmoving party.” 10 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). However, a court 11 need not take legal conclusions as true merely because they are cast in the form of 12 factual allegations. See Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). 13 Similarly, “conclusory allegations of law and unwarranted inferences are not sufficient 14 to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). 15 B. Leave to Amend 16 “If a complaint is dismissed for failure to state a claim, leave to amend should be 17 granted ‘unless the court determines that the allegation of other facts consistent with 18 the challenged pleading could not possibly cure the deficiency.’” DeSoto v. Yellow 19 Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. 20 Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). “A district court does 21 not err in denying leave to amend where the amendment would be futile.” Id. “The 22 district court’s decision to deny leave to amend is particularly broad where plaintiff has 23 previously amended the complaint.” City of Los Angeles v. San Pedro Boat Work, 635 24 F.3d 440, 454 (9th Cir. 2011). 25 III. DISCUSSION 26 A. Federal Wiretap Act 27 The Federal Wiretap Act prohibits the unauthorized interception, disclosure, and 28 use of wire, oral, or electronic communications. 18 U.S.C § 2511(1)(a) (emphasis 1 added). Section 2520(a) provides that “any person whose wire, oral, or electronic 2 communication is intercepted, disclosed, or intentionally used in violation of this 3 chapter may in a civil action recover from the person or entity which engaged in that 4 violation.” 18 U.S.C. § 2520(a). This statute allows civil liability for only some of the 5 proscribed activity in the entirety of the Federal Wiretap Act. See 18 U.S.C. § 2510 et 6 seq. 7 Further, Section 2511(2)(d) provides an exception to the blanket prohibition on 8 the unauthorized interception, disclosure, and use of wire, oral, or electronic 9 communications: 10 It shall not be unlawful under this chapter for a person not acting under color 11 of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the 12 communication has given prior consent to such interception unless such 13 communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of 14 any State. 15 18 U.S.C. § 2511(2)(d) (emphasis added). Therefore, if one of the parties to the 16 communication consents to the interception, the interception is lawful unless the 17 interception is for the purpose of committing a criminal or tortious act. 18 B. Plaintiff’s Claims 19 Plaintiff brings both interception and disclosure claims against Defendants. 20 (ECF No. 19 at 9.) Plaintiff alleges that Defendants conspired with Voigt for her to 21 record the conversation with Plaintiff. (Id.) Plaintiff alleges that Defendants 22 conspired with Voigt for her to disclose the contents of the recording to his family and 23 co-worker. (Id. at 6.) Further, Plaintiff alleges that Defendants themselves disclosed 24 the recording amongst themselves and other members of their law firm, such as a 25 paralegal, and disclosed the recording by either filing or lodging the recording with the 26 family court in the underlying action. (Id. at 4-5.) 27 28 1 C. Secondary Liability 2 Defendants argue that the interception of the recording and the disclosure to 3 Plaintiff’s family and co-worker is nonactionable because Section 2520(a) does not 4 authorize secondary liability. According to Plaintiff’s allegations, the recording was 5 made by Voigt, and Voigt distributed the recording to two members of Plaintiff’s 6 family and a co-worker. (ECF No. 19 at 4.) Defendants argue they cannot be liable 7 for Voight’s conduct. (ECF No. 20 at 12-13.) 8 Plaintiff argues that his allegations of conspiracy between Defendants and Voigt 9 are enough to sustain liability against Defendants as a primary offender of the Federal 10 Wiretap Act. (ECF No. 21 at 22.) In support of this argument, Plaintiff relies on Vera 11 v. O’Keefe, 791 F. Supp. 2d 959 (S.D. Cal. 2011). In Vera, this Court analyzed 12 “principal” liability under California state law, finding California law specifically 13 included aider and abettor and conspirator liability in its definition of principal liability 14 absent the statute stating the contrary. Id. at 961. 15 Vera is inapplicable here, as Plaintiffs do not assert any claims under California 16 law. Moreover, unlike the California statute, “when Congress enacts a statute under 17 which a person may sue and recover damages from a private defendant for the 18 defendant’s violation of some statutory norm, there is no general presumption that the 19 plaintiff may also sue aiders and abetters.” Central Bank of Denver, N.A. v. First 20 Interstate Bank of Denver, N.A., 511 U.S. 164, 182 (1994). This is because “Congress 21 has not enacted a general civil aiding and abetting statute.” Id. 22 The language of Section 2520(a) restricts proper defendants in a civil action for 23 violations of Section 2511 to “the person or entity which engaged in that violation [of 24 interception, disclosing, or using a communication].” Plaintiff does not allege that 25 Defendants intercepted the communication, nor that they disclosed the 26 communications to Plaintiff’s family or co-worker. Therefore, Defendants cannot be 27 liable under Section 2520(a) for the interception of the recording and the disclosure to 28 Plaintiff’s family and co-worker. 1 D. Unlawful or Tortious Purpose 2 Plaintiff’s amended complaint also fails for the reason this Court dismissed the 3 initial complaint: Plaintiff failed to properly allege an independent criminal or tortious 4 purpose for the recording. It is undisputed that Voigt, as the recorder, gave prior 5 consent to the recording. Thus, Defendants can only be held liable if the recording was 6 made “for the purpose of committing any criminal or tortious act.” 18 U.S.C. § 7 2511(2)(d). 8 Previously, Plaintiff alleged that Defendants, in instructing Voigt to make the 9 recording, “told Voigt specifically what to try to get Plaintiff to say in the wiretapped 10 call in order to use the call against him in subsequent child support and custody 11 proceedings.” (ECF No. 1, at 4.) This Court previously held that using a recording in 12 child custody proceedings is not a criminal or tortious act, and so the exception to the 13 one-party consent rule did not apply. (ECF No. 18, at 3). 14 In the amended complaint, Plaintiff added allegations of additional purposes for 15 Voigt making the recording. Plaintiff alleged that Voigt made the recording with the 16 intent to “invade Plaintiff’s privacy, unlawfully extort money from him, to cause 17 Plaintiff emotional distress, and to cause Plaintiff adverse publicity to interfere with 18 current and prospective business relationships.” (ECF No. 19, at 4.) Further, Plaintiff 19 alleged that the recording had the criminal intent of violating Cal. Penal Code §§ 632 20 and 637, which prohibit recording or disclosing communications without the consent 21 of all parties. (Id.) 22 To show that a recording was made with tortious or criminal purpose, Plaintiff 23 must allege that the recorder of the conversation (here, Voigt), at the time of the 24 recording had an independent prohibited purpose outside of the act of recording itself. 25 Sussman v. Am. Broad. Companies, Inc., 186 F.3d 1200, 1202 (9th Cir. 1999). Under 26 Section 2511, “the focus is not upon whether the interception itself violated another 27 law; it is upon whether the purpose for the interception—its intended use—was 28 criminal or tortious.” Payne v. Norwest Corp., 911 F.Supp. 1299, 1304 (D.Mont. 1 1995), aff’d in part and rev’d in part on other grounds, 113 F.3d 1079 (9th Cir. 1997). 2 “A recording has a criminal or tortious purpose under § 2511(1) when done for the 3 purpose of facilitating some further impropriety, such as blackmail.” Planned 4 Parenthood Fed’n of Am., Inc. v. Newman, 51 F.4th 1125, 1135 (9th Cir. 2022). 5 The allegations that the purpose of the recording was for the “extortion of 6 money” and “adverse publicity to interfere with current and prospective business 7 relationships” are not sufficient to allow the claim to proceed. While a well-plead 8 claim of extortion of money or intentional interference with business relationships 9 would be independent criminal or tortious purposes sufficient to sustain a civil action 10 under § 2520(a), Plaintiff’s conclusory allegations are insufficient. Other than the bare 11 assertion that Voigt made the recording for the extortion of money and to cause 12 adverse publicity, Plaintiff provides no facts or explanation beyond the recitation of the 13 name of the torts. See Ashcroft, 556 U.S. at 678 (“a formulaic recitation of the 14 elements of a cause of action,” or “naked assertions’ devoid of further factual 15 enhancement” insufficient to state a claim.). For example, Plaintiff does not allege that 16 Voigt or Defendants asked Plaintiff for money in exchange for non-disclosure, or that 17 any of them attempted to publicize the recording. While the Court accepts as true all 18 well-plead allegations, the Court need not accept bare recitations of law or conclusory 19 statements. See Pareto, 139 F.3d at 699. 20 Violation of Plaintiff’s right of privacy and infliction of emotional distress are 21 not independent criminal or tortious purposes separate from the act of recording. In 22 Sussman, despite the recording possibly being a tortious invasion of privacy under 23 state law, the Court declined to find an independent criminal or tortious purpose. 186 24 F.3d at 1203. As the “criminal or tortious purpose must be separate and independent 25 from the act of the recording,” even if the act of recording itself is tortious, it cannot 26 sustain the separate and independent purpose required under § 2511(2)(d). See Planned 27 Parenthood Fed’n of Am., Inc., 51 F.4th at 1136. Plaintiff’s contention that the 28 making of the recording was for the purpose of causing him emotional distress fails for 1 the same reason: even accepting this allegation as true, it is not a separate and 2 independent purpose as required under § 2511(2)(d), if the making of the recording is 3 what caused him emotional distress. 4 Plaintiff contends also that the creation of the recording was made with criminal 5 intent due to it being in violation of Cal. Penal Code §§ 632 and 637. Section 632 6 prohibits those who “intentionally and without the consent of all parties to a 7 confidential communication, by means of any electronic amplifying or recording 8 device, eavesdrops upon or records the confidential communication.” Section 637 9 prohibits the disclosure of a telegraphic or telephonic communication by any person 10 not a party to the communication. These statutes cannot make up the criminal intent 11 required by § 2511(2)(d), as they proscribe the same conduct that is prohibited under 12 the Federal Wire Tap Act. Despite the conduct potentially violating a mirroring State 13 law, this is not an appropriate criminal purpose, as “the focus is not upon whether the 14 interception itself violated another law,” see Sussman, 186 F.3d at 1203. 15 All of Plaintiff’s proffered criminal or tortious purpose allegations fail. Plaintiff 16 therefore does not meet the exception to the one-party consent rule. Thus, his 17 interception claim under 18 U.S.C. § 2511(1)(a) fails. 18 E. Intentional Disclosure of Recording 19 Title 18 U.S.C. § 2511 also makes it illegal to: 20 “intentionally disclose[] . . . to any other person the contents of any wire, 21 oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or 22 electronic communication in violation of this subsection.” 23 § 2511(1)(c). A valid claim under § 2511(1)(c) is contingent on the original 24 interception being unlawful. Noel v. Hall, 568 F.3d 743, 751 (9th Cir. 2009). Because 25 Plaintiff has not stated a claim for illegal interception, he cannot state a claim for 26 illegal disclosure. 27 28 | F. Leave to Amend 2 Plaintiff's request for leave to amend is denied. While “[l]eave to amend should 311 be granted unless the district court determines that the pleading could not possibly be 41 cured by the allegation of other facts,” the Court does not need to do so when leave 5 | would be futile. See Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009). The Court already gave Plaintiff leave to amend to allege a criminal or tortious intent, and he has again failed to adequately do so.? See City of Los Angeles, 635 F.3d at 454. (“The district court’s decision to deny leave to amend is particularly broad || where plaintiff has previously amended the complaint.”). 10] v. CONCLUSION I] For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss without leave to amend. Defendants’ request for judicial notice is denied as moot. IT IS SO ORDERED. 14 15 Dated: December 5, 2023

16 H . James Lorenz, 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 > Here Plaintiff is proceeding pro se. However, Plaintiff is himself an attorney and 28 therefore is not afforded the leniency in pleadings that is otherwise given to pro se parties. See Huffman v. Lindgren, 81 F.4th 1016, 1020 (9th Cir. 2023). _9O_