(PS) Winters, et al v. Jordan, et al, No. 2:2009cv00522 - Document 145 (E.D. Cal. 2010)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/19/2010 ORDERING that dft Valerie Logsdon's requests for judicial notice are GRANTED. IT IS HEREBY RECOMMENDED that all claims alleged againstdft Valerie Lo gsdon, except for the ninth claim for relief for civil battery as alleged by pltf Christy Winters only, be dismissed with prejudice. The battery claim may proceed against Logsdon, but only with respect to pltf Christy Winters. Referred to Judge John A. Mendez. Objections to F&R due within 14 days. (Zignago, K.)
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(PS) Winters, et al v. Jordan, et al Doc. 145 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BRENT ALLEN WINTERS, et al., 11 Plaintiffs, No. 2:09-cv-00522 JAM KJN PS v. 12 ORDER & FINDINGS AND RECOMMENDATIONS 13 DELORES JORDAN, et al., 14 Defendants. ______________________________/ 15 16 Presently before the court is a special motion to strike plaintiffs’ Third Amended 17 Complaint pursuant to California Code of Civil Procedure § 425.16, a motion to dismiss pursuant 18 to Federal Rule of Civil Procedure 12(b)(6), and related requests for judicial notice, all filed by 19 defendant Valerie Logsdon (“Logsdon”). (Dkt. Nos. 72-76, 97.) The court submitted this matter 20 without oral argument.1 (Dkt. No. 102.) The undersigned has fully considered the parties’ briefs 21 and the record in this case and, for the reasons that follow, will: (1) grant Logsdon’s separately 22 filed requests for judicial notice, and (2) recommend that all of plaintiffs’ claims against 23 Logsdon, except for plaintiff Christy Winters’ civil battery claim, be dismissed with prejudice. 24 25 26 1 This action proceeds before this court pursuant to Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1), and was reassigned by an order entered February 9, 2010 (Dkt. No. 105). Dockets.Justia.com 1 I. BACKGROUND2 Plaintiffs’ operative complaint, the Third Amended Complaint,3 is a wide-ranging, 2 3 25-page complaint that alleges, in eight-point font, 38 claims for relief against 61 defendants. 4 (Dkt. No. 66.) In dismissing plaintiffs’ Second Amended Complaint (Dkt. No. 15), which 5 spanned 163 pages and 607 numbered paragraphs, the court ordered that plaintiffs’ Third 6 Amended Complaint could not exceed 25 pages and must conform to Federal Rule of Civil 7 Procedure 8(a), including the requirement that the pleading contain a short and plain statement of 8 the claims alleged instead of recounting all of the evidence and arguments in support of those 9 claims. (Dkt. No. 56 at 3.) The court had stated that “[t]his will be plaintiffs’ last chance to 10 comply.” (Id.) 11 The claims against Logsdon arise out of an underlying internecine family dispute 12 between the Winters family and defendant Virginia Armstrong. The Third Amended Complaint 13 alleges that in or around the year 2002, plaintiff Susan Winters’ elderly parents, Joe and Virginia 14 Armstrong, encouraged plaintiffs Susan and Brent Winters to sell their house in Illinois and 15 move to Nevada City, California, to live with the Armstrongs. (Third Am. Compl. at 4.) 16 Plaintiffs allege that before plaintiffs returned to California, Joe Armstrong passed away and that 17 Virginia Armstrong eventually transferred properties from the Armstrong Living Trust dated 18 July 29, 1994 to the Virginia Armstrong Living Trust. (Id.) Plaintiffs allege that Virginia 19 20 21 22 2 In an order dated September 24, 2009, the court ordered that all references to the minor plaintiffs in this action—Joy Winters, Clark Winters, and Jill Winters—be stricken from plaintiffs’ Third Amended Complaint because those minors were not represented by an attorney or attorneys. (Dkt. No. 80; see also Dkt. Nos. 68, 89 at 2 n.1.) 3 23 24 25 26 Plaintiffs filed the operative complaint under the title “Amended Complaint,” notwithstanding this court’s order that it be labeled “Third Amended Complaint.” (Compare Dkt. No. 66 with Dkt No. 56 at 4.) The Third Amended Complaint supersedes plaintiffs’ “Second Amended Complaint.” (Dkt. No. 15.) As the court noted in a prior order, the Second Amended Complaint represented plaintiffs’ first amendment of the original complaint (Dkt. No. 56 at 1 n.1), and the operative Third Amended Complaint represents plaintiffs’ second amendment of the original complaint. 2 1 Armstrong took these actions due, in part, to the undue influence of defendants Valerie Logsdon, 2 who was Virginia Armstrong’s attorney, and Michael Armstrong, Virginia Armstrong’s son and 3 an attorney. (Id.) 4 The relationship between Virginia Armstrong and plaintiffs resulted in several 5 proceedings in the Nevada County Superior Court. Relevant here, Logsdon, acting as Virginia 6 Armstrong’s attorney, filed an unlawful detainer action on her client’s behalf seeking to evict 7 members of the Winters family from Ms. Armstrong’s home. (Third Am. Compl. at 5; Req. for 8 Judicial Notice, Ex. 1, Dkt. No. 75.) In connection with the unlawful detainer action, plaintiffs 9 allege that an Assistant United States Attorney from Illinois wrote a letter to Logsdon “offering 10 any aid to help her evict the Winters from their home in Nevada City, California,” and Logsdon 11 filed that letter in the unlawful detainer action.4 (Third Am. Compl. at 6.) Plaintiffs further 12 allege that Logsdon caused declarations or other documents to be filed in connection with the 13 issuance of a restraining order by a judge of the Nevada County Superior Court. (Id.) Plaintiffs 14 also allege that on May 18, 2008, Logsdon physically pushed plaintiff Christy Winters while 15 Logsdon was being served with papers, causing Christy Winters to trip down some stairs. (Id. at 16 16.) Additionally, Logsdon represented Virginia Armstrong in estate planning matters, including 17 the transfer of property to the Virginia Armstrong Living Trust. (Id. at 4.) 18 Plaintiffs’ Third Amended Complaint alleges the following claims against 19 Logsdon: abuse of process (claim 6); battery (claim 9); trespass to chattels (claim 13); violation 20 of 42 U.S.C. § 1983 (claim 14); civil conspiracy in violation of 42 U.S.C. § 1983 (claim 15); 21 civil conspiracy (claim 18); “Slander, Libel, and Slander & Libel Per Se” (claim 21); breach of 22 contract (claim 22); conspiracy to violate the Racketeer Influenced and Corrupt Organizations 23 //// 24 4 25 26 Plaintiffs attached this letter to their Second Amended Complaint, and Logsdon separately requests that the court take judicial notice of this letter in connection with her motion to dismiss. That request is denied, as the letter is not a judicially noticeable document. 3 1 Act (“RICO”), 18 U.S.C. 1962(d) (claim 31); loss of consortium (claim 36); and intentional 2 infliction of emotional distress (claim 38). 3 In response to the filing of the Third Amended Complaint, Logsdon filed a 4 combined anti-SLAPP special motion to strike and motion to dismiss. (Dkt. No. 72.) Curiously, 5 Logsdon also filed an answer to the Third Amended Complaint on the same day she filed her 6 special motion to strike and motion to dismiss. (Dkt. No. 77.) 7 There are several, separately-filed motions pending before the court. Despite the 8 court’s previous order that plaintiffs file a separate opposition to each pending motion (Dkt. 9 No. 89 at 6), plaintiffs filed a consolidated opposition, which hardly addresses Logsdon’s 10 motions (see Dkt. No. 99). Plaintiffs filed their opposition on January 13, 2010, despite a court- 11 ordered deadline of January 6, 2010. (Compare Dkt. Nos. 89 with 99.) Although plaintiffs’ 12 opposition was untimely and need not be considered, the undersigned has considered that 13 opposition in arriving at the findings and recommendations that follow. 14 II. 15 DISCUSSION A. 16 Logsdon’s Request for Judicial Notice In connection with her special motion to strike, Logsdon filed a request for 17 judicial notice and a supplemental request for judicial notice.5 (Dkt. Nos. 75, 97.) She requests 18 that the court take judicial notice of several documents from the Nevada County Superior Court’s 19 file, including complaints, requests, motions, and declarations filed with the Superior Court. In 20 essence, these documents relate to Logsdon’s representation of Ms. Armstrong before the 21 Superior Court. 22 23 The court may take judicial notice of filings in state court actions where the state court proceedings have a direct relation to the matters at issue. See, e.g., Betker v. U.S. Trust 24 5 25 26 Logsdon makes additional requests for judicial notice scattered throughout her memorandum in support of her motions. The undersigned addresses those requests below, as necessary. 4 1 Corp. (In re Heritage Bond Litig.), 546 F.3d 667, 670 n.1, 673 n.8 (9th Cir. 2008) (citing U.S. 2 ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992)); 3 Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007); Cactus Corner, LLC v. U.S. Dep’t of 4 Agric., 346 F. Supp. 2d 1075, 1092 (E.D. Cal. 2004); see also Reyn’s Pasta Bella, LLC v. Visa 5 USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court filings 6 and other matters of public record.”). Because all of the documents at issue are state court 7 records that directly relate to Logsdon’s interactions with plaintiffs that form the basis of the 8 dispute before this court, the court grants Logsdon’s request for judicial notice and supplemental 9 request for judicial notice. However, the grant of these requests is limited in that the court does 10 not take notice of the truth of any factual findings stated in the noticed documents. See Wyatt v. 11 Terhune, 315 F.3d 1108, 1114 & n.5 (9th Cir. 2003) (“[W]e have held that taking judicial notice 12 of findings of fact from another case exceeds the limits of [Federal Rule of Evidence] 201.”). 13 B. 14 Logsdon’s Anti-SLAPP Special Motion to Strike Logsdon contends that all of the state law claims against her should be dismissed 15 as a result of her special motion to strike, filed pursuant to California’s anti-SLAPP6 statute, 16 California Code of Civil Procedure § 425.16. Generally speaking, a party may bring an anti- 17 SLAPP special motion to strike in federal court.7 Thomas v. Fry’s Elecs., Inc., 400 F. 3d 1206, 18 //// 19 6 20 21 22 23 24 25 26 The acronym “SLAPP” stands for “strategic lawsuit against public participation.” Jarrow Formulas, Inc. v. La Marche, 31 Cal. 4th 728, 732 n.1, 74 P.3d 737, 739 n.1 (2003). 7 A party may seek to specially strike state law claims brought in federal court on the basis of the court’s diversity subject matter jurisdiction and state law claims that are supplemental to federal claims in a federal question jurisdiction matter. See Hilton v. Hallmark Cards, 599 F.3d 894, 900 n.2 (9th Cir. 2010) (stating that “we have long held that the anti-SLAPP statute applies to state law claims that federal courts hear pursuant to their diversity jurisdiction”) (citing United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 970-73 (9th Cir. 1999)); Globetrotter Software, Inc. v. Elan Computer Group, Inc., 63 F. Supp. 2d 1127, 1130 (N.D. Cal. 1999) (“[I]t appears that under the Erie analysis set forth in Lockheed the anti-SLAPP statute may be applied to state law claims which, as in this case, are asserted pendent to federal question claims”). 5 1 1206 (9th Cir. 2005) (per curiam). The Ninth Circuit Court of Appeals has summarized the 2 purpose and general mechanics of California’s anti-SLAPP statute as follows: 3 The anti-SLAPP statute establishes a procedure to expose and dismiss meritless and harassing claims that seek to chill the exercise of petitioning or free speech rights in connection with a public issue. Analysis of an anti-SLAPP motion to strike involves a two-step process. First, the defendant must show that the cause of action arises from any “act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue. . . .” Cal. Code Civ. P. § 425.16(b)(1). 4 5 6 7 If the court determines that the defendant has met this burden, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the merits. To establish a probability of prevailing, the plaintiff must show that “the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” 8 9 10 11 12 Kearny v. Foley & Lardner, LLP, 590 F.3d 638, 648 (9th Cir. 2009) (footnote and citations 13 omitted); accord Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 839-40 (9th Cir. 2001); Jarrow 14 Formulas, Inc. v. La Marche, 31 Cal. 4th 728, 733, 74 P.3d 737, 740 (2003). The anti-SLAPP 15 statute should be construed broadly. Mindys Cosmetics, Inc. v. Dakar, No. 09-55134, -- F.3d --, 16 2010 WL 2652480, at *1 (9th Cir. July 6, 2010) (citing Cal. Code Civ. P. § 425.16(a), and 17 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir. 2003)). 18 Plaintiffs’ state law claims consist of claim 6 (abuse of process), claim 9 (battery), 19 claim 21 (slander and libel), claim 36 (loss of consortium), and claim 38 (intentional infliction of 20 emotional distress). The state law claims asserted by plaintiffs against Logsdon, except for the 21 claim of battery, are the proper subject of a special motion to strike.8 Those claims arise out of 22 Logsdon’s representation of Virginia Armstrong in connection with an unlawful detainer action 23 24 25 26 8 Because, as discussed below, the undersigned construes plaintiffs’ twenty-second claim, for breach of contract, as a claim for legal malpractice premised on the advice provided by Logsdon to Virginia Armstrong, that claim is also addressed below in the portion of this order resolving Logsdon’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). 6 1 before the Nevada County Superior Court.9 In addition, plaintiffs’ abuse of process claim 2 appears to allege that Logsdon filed certain declarations in another Superior Court proceeding. 3 (Third Am. Compl. at 13.) However, plaintiffs’ battery claim arises from alleged physical 4 contact between Logsdon and plaintiff Christy Winters that occurred when Logsdon was being 5 served with papers. (Id. at 16.) As alleged, Logsdon’s contact with Christy Winters was not in 6 furtherance of the her right of petition or free speech and is thus not the proper subject of an anti- 7 SLAPP motion. Accordingly, the undersigned will analyze Logsdon’s anti-SLAPP motion with 8 respect to the state law claims against Logsdon, except for plaintiffs’ battery claim. 9 With respect to the first step of the anti-SLAPP analysis, Logsdon has 10 demonstrated that plaintiffs’ state law claims arise from protected activity, i.e., the acts of which 11 plaintiffs complain were taken in furtherance of her right of petition or free speech under the 12 United States Constitution or the California Constitution in connection with a public issue. See 13 Cal. Code Civ. P. § 425.16(b)(1); see also Jarrow Formulas, Inc., 31 Cal. 4th at 733, 74 P.3d at 14 740. Such protected acts include the following: “(1) any written or oral statement or writing 15 made before a legislative, executive, or judicial proceeding, or any other official proceeding 16 authorized by law; (2) any written or oral statement or writing made in connection with an issue 17 under consideration or review by a legislative, executive, or judicial body, or any other official 18 proceeding authorized by law . . . .”10 Cal. Code Civ. P. § 425.16(e). 19 //// 20 9 21 22 23 To the extent that any of plaintiffs’ state law claims arise from Logsdon’s estate planning representation related to the Virginia Armstrong Living Trust, Logsdon’s activities are intertwined with the unlawful detainer action in that the transfer of property out of an existing trust and into the Virginia Armstrong Living Trust pursuant to Logsdon’s advice is what gave rise to the unlawful detainer action and the eviction of the plaintiffs from the property at issue. 10 24 25 26 A defendant moving to strike a claim arising from a statement made before, or in connection with an issue under consideration by, a legally authorized official proceeding is not required to separately demonstrate that the statement concerned an issue of public significance. See Briggs v. Eden Council for Hope & Opportunity, 19 Cal. 4th 1106, 1123, 969 P.2d 564, 575 (1999). 7 1 The allegations contained in the Third Amended Complaint indicate that 2 Logsdon’s conduct of which plaintiffs complain relates to her legal representation of Virginia 3 Armstrong in an unlawful detainer action before the Nevada County Superior Court and another 4 proceeding before that court. California courts have held that claims against an attorney arising 5 out of that attorney’s representation of his or her client are the proper subject of an anti-SLAPP 6 special motion to strike. See Rusheen v. Cohen, 37 Cal. 4th 1048, 1056, 128 P.3d 713, 717-18 7 (2006) (“A cause of action ‘arising from’ defendant’s litigation activity may appropriately be the 8 subject of a section 425.16 motion to strike” (citation omitted).); Jarrow Formulas, Inc., 31 Cal. 9 4th at 733, 74 P.3d at 740 (holding that malicious prosecution claim arising from attorney’s 10 representation of client was subject to anti-SLAPP statute); see also Zamos v. Stroud, 32 Cal. 4th 11 958, 965, 87 P.3d 802, 806 (2004) (same); Daniels v. Robbins, 182 Cal. App. 4th 204, 214-15, 12 105 Cal. Rptr. 3d 683, 691 (Ct. App. 2010) (noting lack of dispute that attorney’s oral and 13 written statements in prior judicial proceedings that gave rise to claims of malicious prosecution, 14 abuse of process, negligence, and intentional infliction of emotional distress were protected 15 activity under the anti-SLAPP statute); Cabral v. Martins, 177 Cal. App. 4th 471, 479-83, 99 Cal. 16 Rptr. 3d 394, 401-04 (Ct. App. 2009) (claims arising from attorney’s revision of a will, lodging 17 of a will with the probate court, and representation of clients in probate proceedings were subject 18 to anti-SLAPP motion); White v. Lieberman, 103 Cal. App. 4th 210, 221, 126 Cal. Rptr. 2d 608, 19 614-15 (Ct. App. 2002) (holding that malicious prosecution claim against attorney arising from 20 attorney’s representation of clients was subject to anti-SLAPP statute); Dowling v. Zimmerman, 21 85 Cal. App. 4th 1400, 1418-20, 103 Cal. Rptr. 2d 174, 188-90 (Ct. App. 2001) (attorney’s 22 representation of clients in prior unlawful detainer action that gave rise to plaintiff’s claims of 23 defamation, misrepresentation, and intentional and negligent infliction of emotional distress 24 against the attorney constituted protected activity). Accordingly, Logsdon has met the threshold 25 requirement of her special motion to strike. 26 8 1 Because Logsdon met her initial burden under the anti-SLAPP framework, the 2 burden would ordinarily shift to plaintiffs to demonstrate a probability of prevailing on the 3 merits, i.e., that their complaint is “both legally sufficient and supported by a sufficient prima 4 facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is 5 credited.” Kearny, 590 F.3d at 648. Here, however, plaintiffs are unable to make such a showing 6 as a matter of law because Logsdon’s conduct, insofar as plaintiffs’ state law claims that are 7 properly the subject of an anti-SLAPP motion are concerned, is protected by California’s 8 litigation privilege. That privilege, found at California Civil Code § 47(b), provides, in part, that 9 a publication or broadcast made as part of a judicial proceeding is privileged. See also Action 10 Apartment Ass’n, Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 1241, 163 P.3d 89, 95 (Cal. 11 2007). The California Supreme Court recently summarized this litigation privilege as follows: 12 13 14 15 This privilege is absolute in nature, applying to all publications, irrespective of their maliciousness. The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action. The privilege is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards. 16 17 Id. (citations and internal quotation marks omitted, modification in original). “[W]here the 18 gravamen of the complaint is a privileged communication . . . the privilege extends to necessarily 19 related noncommunicative acts. . . .” Rusheen, 37 Cal. 4th at 1062, 128 P.3d at 722. The 20 California Supreme Court has given this privilege “a broad interpretation” in furtherance of the 21 purpose of the privilege, which is “to afford litigants and witnesses . . . the utmost freedom of 22 access to the courts without fear of being harassed subsequently by derivative tort actions.” 23 Action Apartment Ass’n, Inc., 41 Cal. 4th at 1241, 163 P.3d at 95. Thus, although the privilege 24 was originally enacted with reference to claims of defamation, “‘the privilege is now held 25 applicable to any communication, whether or not it amounts to a publication . . . , and all torts 26 9 1 except malicious prosecution.’” Rusheen, 37 Cal. 4th at 1057, 128 P.3d at 718 (quoting Silberg 2 v. Anderson, 50 Cal. 3d 205, 212, 786 P.2d 365 (1990)). 3 Here, as discussed above, the allegations in the Third Amended Complaint and the 4 judicially noticeable documents reflect that plaintiffs’ state law tort claims, except their battery 5 claim, alleged against Logsdon arise out of Logsdon’s representation of Virginia Armstrong in 6 court proceedings. As a result, plaintiffs cannot demonstrate that they are entitled to a favorable 7 judgment on their state law claims subject to an anti-SLAPP motion. Accordingly, the 8 undersigned will recommend the dismissal with prejudice of all of plaintiffs’ state law claims 9 against Logsdon, except plaintiffs’ claim for battery, because Logsdon is absolutely immune 10 under California’s litigation privilege. 11 C. 12 Logsdon’s Motion to Dismiss for Failure to State a Claim Logsdon has also filed a motion pursuant to Federal Rule of Civil Procedure 13 12(b)(6) to dismiss the claims alleged against her for failure to state a claim on which relief can 14 be granted.11 The motion to dismiss addresses all the claims against Logsdon except for 15 plaintiffs’ slander/libel claim (claim 21). Because the undersigned has already concluded that 16 several of these claims should be dismissed as a result of Logsdon’s special motion to strike and 17 California’s litigation privilege, those claims will not be addressed below. For the reasons that 18 follow, the undersigned will additionally recommend that plaintiffs’ claims premised on federal 19 law (i.e., claims 14, 15, 18, and 31) and plaintiffs’ claim for breach of contract be dismissed with 20 prejudice. However, plaintiffs’ ninth claim for relief, alleging that Logsdon committed battery 21 against Christy Winters, survives Logsdon’s motion to dismiss. 22 //// 23 24 25 26 11 Logsdon simultaneously filed a motion to dismiss for failure to state a claim and an answer to plaintiffs’ Third Amended Complaint. (Dkt. Nos. 72, 77.) By separate order, the undersigned struck Logsdon’s answer subject to refiling, if necessary, after the court fully resolves the pending motions filed by Logsdon. (Dkt. No. 123.) 10 1 A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) 2 challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase 3 Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the “notice pleading” standard 4 of the Federal Rules of Civil Procedure, a plaintiff’s complaint must provide, in part, a “short and 5 plain statement” of plaintiff’s claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see 6 also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). “A complaint may survive a 7 motion to dismiss if, taking all well-pleaded factual allegations as true, it contains ‘enough facts 8 to state a claim to relief that is plausible on its face.’” Coto Settlement v. Eisenberg, 593 F.3d 9 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 10 (2009)). “‘A claim has facial plausibility when the plaintiff pleads factual content that allows the 11 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” 12 Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 13 129 S. Ct. at 1949). 14 The court accepts “all facts alleged as true and construes them in the light most 15 favorable to the plaintiff.” County of Santa Clara v. Astra USA, Inc., 588 F.3d 1237, 1241 n.1 16 (9th Cir. 2009). The court is “not, however, required to accept as true conclusory allegations that 17 are contradicted by documents referred to in the complaint, and [the court does] not necessarily 18 assume the truth of legal conclusions merely because they are cast in the form of factual 19 allegations.” Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted). The court must 20 construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a 21 plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it 22 appears at all possible that the plaintiff can correct the defect.12 See Lopez v. Smith, 203 F.3d 23 24 25 26 12 Although plaintiffs are proceeding without counsel in this action, the undersigned notes that plaintiff Brent Winters is alleged to be a licensed, practicing attorney. (Third Am. Compl. at 21 (referring to Brent Allan Winters as “a licensed attorney”); see also Dkt. No. 89 at 13 (alleging damage to “Brent Allan Winters’s law practice”).) 11 1 1122, 1130-31 (9th Cir. 2000) (en banc). In ruling on a motion to dismiss pursuant to Rule 2 12(b)(6), the court “may generally consider only allegations contained in the pleadings, exhibits 3 attached to the complaint, and matters properly subject to judicial notice.” Outdoor Media 4 Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks 5 omitted). 6 1. 7 Plaintiffs allege that Logsdon committed civil battery against plaintiff Christy 8 Winters. In a section entitled “Battery,” plaintiffs allege the following: 9 05/15/08— Assault and Battery of Christy Winters. The Winters served papers upon attorney Valerie Logsdon. As they were walking down the steps to leave, Defendant Logsdon intentionally and voluntarily pushed Christy Winters’s chest, forcing Christy Winters down the steps causing Christy to trip down the steps. 10 11 12 Plaintiffs’ Claim for Battery Under California Law (Third Am. Compl. at 16.) 13 Under California law, “[t]he elements of civil battery are: (1) defendant 14 intentionally performed an act that resulted in a harmful or offensive contact with the plaintiff’s 15 person; (2) plaintiff did not consent to the contact; and (3) the harmful or offensive contact 16 caused injury, damage, loss or harm to plaintiff.” Brown v. Ransweiler, 171 Cal. App. 4th 516, 17 526-27, 89 Cal. Rptr. 3d 801, 811 (Ct. App. 2009); accord Tekle v. United States, 511 F.3d 839, 18 855 (9th Cir. 2007) (same). 19 Plaintiff Christy Winters has sufficiently alleged a claim for civil battery. She 20 alleges that Logsdon intentionally pushed her, which, at least for pleading purposes, can be 21 interpreted as a harmful or offensive contact. The allegations also suggest that the contact was 22 not consented to by Christy Winters and that the contact caused some injury, damage, loss or 23 harm to Christy Winters. Accordingly, Logsdon’s motion to dismiss will be denied insofar as 24 plaintiff Christy Winters is concerned. As to the remaining plaintiffs’, however, this specific 25 //// 26 12 1 claim of battery should be dismissed with prejudice because the alleged contact relates only to a 2 single plaintiff, Christy Winters.13 3 Logsdon requests that the court take judicial notice of allegations contained in the 4 Second Amended Complaint that suggest that this incident occurred while plaintiffs were 5 “intruding on Ms. Logsdon’s privacy and property.” (Dkt. No. 72 at 20.) Logsdon intimates that 6 these facts would support a defense of justification based on an uninvited entry onto Logsdon’s 7 property. (Id. at 20-21.) The undersigned denies Logsdon’s request and will not take judicial 8 notice of the allegations in the Second Amended Complaint for the purpose of construing the 9 Third Amended Complaint because an amended complaint is complete in itself and supersedes 10 previously filed complaints. See, e.g., Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) (“The 11 amended complaint supersedes the original, the latter being treated thereafter as non-existent.”); 12 see also Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (describing as 13 “well-established” the “doctrine that an amended pleading supersedes the original pleading”). As 14 pled in the Third Amended Complaint, plaintiff Christy Winters’ claim for battery survives a 15 motion to dismiss for failure to state a claim. 16 2. Plaintiffs’ Claim for Breach of Contract Under California Law 17 Plaintiffs also allege a claim for breach of contract against Logsdon. This claim 18 alleges that Virginia Armstrong improperly transferred the property at 11318 Via Vista in 19 Nevada City, California, out of an existing trust and into the Virginia Armstrong Living Trust 20 based on “false advice” provided by Logsdon, Virginia Armstrong’s estate planning attorney. 21 (Third Am. Compl. at 22.) The undersigned agrees with Logsdon that although this claim is 22 entitled “Breach of Contract,” it is more accurately a claim for legal malpractice. The claim 23 //// 24 13 25 26 Plaintiffs have alleged other battery claims against numerous defendants in connection with incidents other than the incident involving Logsdon and Christy Winters. Those claims of battery as to other defendants are not at issue here. 13 1 arises from legal advice allegedly provided by Logsdon to Virginia Armstrong, and the complaint 2 does not allege the existence of any contractual obligation between Logsdon and plaintiffs.14 3 Under California law, the elements of a legal malpractice claim are: “(1) the duty 4 of the attorney to use such skill, prudence, and diligence as members of his or her profession 5 commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection 6 between the breach and the resulting injury; and (4) actual loss or damage resulting from the 7 attorney’s negligence.” Wilkinson v. Zelen, 167 Cal. App. 4th 37, 46, 83 Cal. Rptr. 3d 779, 785 8 (Ct. App. 2008) (citing Budd v. Nixen, 6 Cal. 3d 195, 200, 491 P.2d 433 (1971)). Logsdon 9 argues that plaintiffs’ claims should be dismissed with prejudice because plaintiffs cannot 10 establish that Logsdon owed a duty to them, either as parties to an attorney-client relationship or 11 as intended third-party beneficiaries (Dkt. No. 72 at 11-15). See, e.g., Goldberg v. Frye, 217 Cal. 12 App. 3d 1258, 1267, 266 Cal. Rptr. 483, 488 (Ct. App. 1990) (“A key element of any action for 13 professional malpractice is the establishment of a duty by the professional to the claimant. 14 Absent duty there can be no breach and no negligence.”). Whether an attorney sued for 15 malpractice owes a duty to a particular plaintiff is a question of law. See, e.g., Martorana v. 16 Marlin & Saltzman, 175 Cal. App. 4th 685, 693, 96 Cal. Rptr. 3d 172, 178 (Ct. App. 2009) 17 (citing Goodman v. Kennedy, 18 Cal. 3d 335, 342, 556 P.2d 737 (1976)). 18 The California Supreme Court has stated that “[t]o be sure, an attorney will 19 normally be held liable for malpractice only to the client with whom the attorney stands in privity 20 of contract, and not to third parties.” Borissoff v. Taylor & Faust, 33 Cal. 4th 523, 529, 93 P.3d 21 14 22 23 24 25 26 To the extent that plaintiffs would argue that they are pursuing a breach of contract claim, they have failed to state a claim on which relief can be granted. Under California law, “[t]he standard elements of a claim for breach of contract are (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.” See, e.g., Abdelhamid v. Fire Ins. Exch., 182 Cal. App. 4th 990, 999, 106 Cal. Rptr. 3d 26, 32-33 (Ct. App. 2010) (citations and quotation marks omitted). Plaintiffs have alleged none of these elements and, given the number of opportunities plaintiffs have been given to amend their complaint, the undersigned concludes that plaintiffs would be unable to amend their pleading to state a cognizable claim for breach of contract. 14 1 337, 340 (2004). Generally, where a fiduciary hires an attorney to provide advice regarding trust 2 administration, neither the trust nor the beneficiaries are considered to be the attorney’s clients 3 for the purpose of establishing the existence of a duty. Id. 4 Here, none of the plaintiffs is alleged to be Logsdon’s client or in privity of 5 contract with Logsdon. To the contrary, plaintiffs repeatedly allege that Logsdon is Virginia 6 Armstrong’s attorney, not theirs. (See, e.g., Third Am. Compl. at 22.) Accordingly, Logsdon 7 owed no duty to plaintiffs insofar as a privity of contract theory is concerned. 8 9 Additionally, a liberal reading of plaintiffs’ pleadings indicates that only plaintiff Susan Winters is alleged to a beneficiary of any trust at issue in this case and, accordingly, no 10 duty could run to the remaining plaintiffs. (See, Third Am. Compl. at 22.) Thus, claims of legal 11 malpractice by plaintiffs other than Susan Winters fail and should be dismissed. 12 As to Susan Winters, and assuming she is a trust beneficiary, California courts 13 have held that beneficiaries of trusts and estates may not sue an attorney for legal malpractice as 14 a result of advice provided by the attorney regarding administration of the trust or estate unless 15 those beneficiaries are intended third-party beneficiaries. See, e.g., Saks v. Damon Raike & Co., 16 7 Cal. App. 4th 419, 430-31, 8 Cal. Rptr. 2d 869, 877 (Ct. App. 1992) (holding that beneficiaries 17 of a testamentary trust could not sue attorney and real estate broker for negligence related to 18 advice provided to the trustee that caused damage to the trust); Goldberg, 217 Cal. App. 3d at 19 1267-69, 266 Cal. Rptr. at 488-89 (holding that legatees under a will were not intended third 20 party beneficiaries to whom an attorney for the administrator of the estate owed a duty for the 21 purposes of a legal malpractice claim); see also Moore v. Anderson Zeigler Disharoon Gallagher 22 & Gray, 109 Cal. App. 4th 1287, 1307, 135 Cal. Rptr. 2d 888, 902 (Ct. App. 2003) (holding that 23 an attorney does not owe beneficiaries under a will a duty to evaluate and ascertain the 24 testamentary capacity of a client seeking to amend a will or to make a new will, or to preserve 25 //// 26 15 1 evidence of that evaluation).15 Nothing in the Third Amended Complaint suggests that Susan 2 Winters was an intended third-party beneficiary under California law. 3 Under certain circumstances, an intended third-party beneficiary of a contract to 4 provide legal services who is expressly named in the legal services contract may be owed a duty 5 by an attorney. See, e.g., Borissoff, 33 Cal. 4th at 530, 93 P.3d at 341; see also Bily v. Arthur 6 Young & Co., 3 Cal. 4th 370, 406 n.16, 834 P.2d 745, 767 n.16 (1992) (“It is possible the audit 7 engagement contract might expressly identify a particular third party or parties so as to make 8 them express third party beneficiaries of the contract. Third party beneficiaries may under 9 appropriate circumstances possess the rights of parties to the contract.”); B.L.M. v. Sabo & 10 Dietsch, 55 Cal. App. 4th 823, 831-32, 64 Cal. Rptr. 2d 335, 340 (applying the principle from 11 Bily to a legal malpractice claim). However, there is no indication in the Third Amended 12 Complaint or plaintiffs’ written opposition to Logsdon’s motion that plaintiffs were intended 13 third-party beneficiaries named in a contract between Virginia Armstrong and Logsdon for the 14 provision of legal services. 15 Based on the foregoing, the undersigned will recommend that plaintiffs’ breach of 16 contract claim alleged against Logsdon, which the court construes as claim for legal malpractice, 17 be dismissed with prejudice. 18 //// 19 //// 20 21 22 23 24 25 26 15 There is some authority under California law that an intended beneficiary of a trust may potentially sue an attorney for malpractice where that intended beneficiary is expressly named in the trust instrument and the express bequest in that beneficiary’s favor fails as a result of the attorney’s negligence in drafting or executing the instrument. See Chang v. Lederman, 172 Cal. App. 4th 67, 82, 90 Cal. Rptr. 3d 758, 770 (Ct. App. 2009). However, the court in Chang held that “where there is a question about whether the third-party beneficiary was, in fact, the decedent’s intended beneficiary—where intent is placed in issue—the lawyer will not be held accountable to the potential beneficiary.” Id. at 82-83, 90 Cal. Rptr. 3d at 770-71. Based on the allegation in the Third Amended Complaint, Susan Winters is akin to the disappointed potential beneficiary in Chang. 16 1 3. Plaintiffs’ Section 1983 Claims Against Logsdon 2 Plaintiffs have also sued “All Defendants” for violation of 42 U.S.C. § 1983 3 (claim 14), for a conspiracy to violate 42 U.S.C. § 1983 (claim 15), and for “civil conspiracy,” 4 which appears to be an additional claim alleging a conspiracy in violation of Section 1983. (See 5 Third Am. Compl. at 19-20.) Logsdon, a lawyer in private practice, moves to dismiss these 6 claims for failure to state a claim on the grounds that: (1) plaintiffs have not alleged that Logsdon 7 participated in any act that deprived plaintiffs of their constitutional rights, (2) plaintiffs have 8 alleged no specific facts that Logsdon acted under the color of law, and (3) plaintiffs’ allegations 9 regarding violations of Section 1983 and a conspiracy are conclusory. Logsdon’s arguments are 10 11 well-taken. “Section 1983 imposes civil liability upon an individual who ‘under color [of state 12 law]... subjects or causes to be subjected, any citizen of the United States...to the deprivation of 13 any rights, privileges or immunities secured by the Constitution and laws.’” Franklin v. Fox, 14 312 F.3d 423, 444 (9th Cir. 2002) (citing 42 U.S.C. § 1983). “To state a claim under § 1983, a 15 plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of 16 the United States was violated, and (2) that the alleged violation was committed by a person 17 acting under the color of State law.” Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th 18 Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)); accord Nurre v. Whitehead, 580 F.3d 19 1087, 1092 (9th Cir. 2009). Conclusory allegations of a violation of Section 1983 or a 20 conspiracy to violate Section 1983 will not survive a motion to dismiss. See, e.g., Simmons v. 21 Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (affirming dismissal of 22 plaintiff’s second amended complaint as a result of plaintiff’s “conclusory allegations” of a 23 conspiracy to deprive him of his constitutional rights in violation of Section 1983). 24 25 Plaintiffs’ allegations in support of their Section 1983 claims are conclusory and, on this basis alone, claims 14, 15 and 18 should be dismissed as to Logsdon. For example, 26 17 1 plaintiffs do not allege which of their specific constitutional rights were violated. Nevertheless, 2 the undersigned will address additional grounds why plaintiffs’ claims fail as alleged against 3 Logsdon. 4 5 As to claim 14, alleging that all defendants, including Logsdon, individually violated plaintiffs’ constitutional rights, plaintiffs allege: 6 Paragraphs above incorporated by reference. Defendants, by their actions and acting under the color of law, subjected Plaintiffs, and caused Plaintiffs to be subjected, to the deprivations of their rights, privileges, and immunities secured by the Constitution and laws of the State of California and of the United States of America, Plaintiffs claim damages under 42 U.S.C. § 1983 for their injuries set forth above. 7 8 9 10 (Third Am. Compl. at 19.)16 In addition to the conclusory nature of plaintiffs’ allegations, any 11 claim by plaintiffs that Logsdon, as an individual, violated plaintiffs’ rights fails because 12 Logsdon is a private actor and thus was not acting under color of state law. See, e.g., Simmons, 13 318 F.3d at 1161 (holding that, under settled law, “Plaintiff cannot sue Mirante’s counsel under 14 § 1983, because he is a lawyer in private practice who was not acting under color of state law”); 15 accord Briley v. California, 564 F.2d 849, 855 (9th Cir. 1977) (“We have repeatedly held that a 16 privately-retained attorney does not act under color of state law for purposes of actions brought 17 under the Civil Rights Act.”); cf., Miranda v. Clark County, Nev., 319 F.3d 465, 468 (9th Cir. 18 2003) (holding that a public defender was not a state actor within the meaning of 42 U.S.C. 19 § 1983) (citing Polk County v. Dodson, 454 U.S. 312, 324-25 (1981)). Regarding Logsdon’s 20 individual conduct relative to plaintiffs, plaintiffs allege that Logsdon pursued an unlawful 21 detainer action in state court as an attorney retained by Virginia Armstrong, filed a declaration or 22 other papers in another proceeding in state court, and provided estate planning advice to Virginia 23 //// 24 16 25 26 Although plaintiffs incorporate the remainder of their complaint by reference, the rest of the Third Amended Complaint and plaintiffs’ opposition to Logsdon’s motion do not suggest exactly how Logsdon individually violated plaintiffs’ civil rights. 18 1 Armstrong. These are the acts of an attorney in private practice, not a state actor. Accordingly, 2 plaintiffs’ fourteenth claim should be dismissed with prejudice as to Logsdon. 3 Plaintiffs’ Section 1983 conspiracy claims, claims 15 and 18, are also fatally 4 flawed. In their fifteenth claim, plaintiffs allege that “Defendants Logsdon, Michael Armstrong, 5 Jordan, Wade, Harpainter, and Ford worked in concert with Defendants from the Nevada County 6 Superior Court, Sheriff’s Department, Adult Protective Services, and other agencies.” (Third 7 Am. Compl. at 20.) They allege that a state court judge entered a restraining order “on his own 8 motion.” (Id.) Additionally, plaintiffs allege that defendants Logsdon and Harpainter “worked in 9 concert with” with defendants Chelsey and Frooman. (Id.) Elsewhere in the Third Amended 10 Complaint, defendant Harpainter is alleged to have been an attorney that the Nevada County 11 Superior Court appointed for Virginia Armstrong in connection with certain restraining order 12 proceedings before that court. (Id. at 7.) Defendants Chelsey and Frooman are alleged to be 13 Assistant United States Attorneys in Illinois who were prosecuting plaintiff Brent Winters, an 14 attorney, on criminal charges and wrote a letter to Logsdon offering assistance with the unlawful 15 detainer action. (Id. at 6, 24.) Plaintiffs’ eighteenth claim is largely redundant of the fifteenth 16 claim, at least as it relates to allegations against Logsdon. 17 “A private individual may be liable under § 1983 if she conspired or entered joint 18 action with a state actor.” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002); see also Kirtley v. 19 Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (“While generally not applicable to private parties, a 20 § 1983 action can lie against a private party when he is a willful participant in joint action with 21 the State or its agents” (citation and quotation marks omitted).). “To establish liability for a 22 conspiracy in a § 1983 case, a plaintiff must demonstrate the existence of an agreement or 23 meeting of the minds” to violate constitutional rights.” Crowe v. County of San Diego, 593 F.3d 24 841, 875 (9th Cir. 2010) (citation and quotation marks omitted). Although the Supreme Court 25 has articulated several alternative tests for determining whether a private individual’s actions 26 19 1 amount to state action, Franklin, 312 F.3d at 445, the “joint action” test is relevant here. The 2 joint action test applies where, as here, state officials and private parties are alleged to have acted 3 in concert to effectuate a particular deprivation of constitutional rights and “focuses on whether 4 the state has so far insinuated itself into a position of interdependence with the private actor that 5 it must be recognized as a joint participant in the challenged activity.” Id. (citation, quotation 6 marks, and modifications omitted). “The plaintiff must show ‘an agreement or meeting of the 7 minds to violate constitutional rights,’ and ‘[t]o be liable, each participant in the conspiracy need 8 not know the exact details of the plan, but each participant must at least share the common 9 objective of the conspiracy.’” Crowe, 593 F.3d at 875 (quoting Franklin, 312 F.3d at 441). 10 As an initial matter, it bears repeating that plaintiffs’ allegations regarding a 11 conspiracy between state actors and private actors are vague and conclusory and, for that reason 12 alone, cannot survive the motion to dismiss. See Simmons, 318 F.3d at 1161 (“Plaintiff’s 13 conclusory allegations that the lawyer was conspiring with state officers to deprive him of due 14 process are insufficient.”); Degrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000) 15 (stating that “a bare allegation of . . . joint action will not overcome a motion to dismiss” (citation 16 and quotation marks omitted)); Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991) (stating 17 that “[c]onclusionary allegations, unsupported by facts, [will be] rejected as insufficient to state a 18 claim under the Civil Rights Act” (citation and quotation marks omitted, modifications in 19 original).). It also bears repeating that plaintiffs have not alleged which of their constitutional 20 rights has been violated. 21 Plaintiffs have not alleged facts constituting a plausible claim of a conspiracy 22 between Logsdon and state actors to deprive them of their constitutional rights. Although, 23 plaintiffs vaguely allege that Logsdon conspired with others, the allegations in the Third 24 Amended Complaint indicate a lack of interdependence between state and private actors. As far 25 as the unlawful detainer action is concerned, plaintiffs only allege that Assistant United States 26 20 1 Attorneys Frooman and Chelsey offered aid to Logsdon. An offer of assistance does not suggest 2 the level of interdependence that will support a Section 1983 conspiracy under a joint action 3 theory. In terms of joint action related to the entry of certain restraining orders, plaintiffs allege 4 joint action, but also that Judge Anderson of the Nevada County Superior Court acted on his 5 “own motion.” None of plaintiffs’ allegations suggest a common goal of depriving plaintiffs of 6 their rights, or any interdependence among the alleged members of the conspiracy. Taken 7 together with the conclusory and vague allegations in the Third Amended Complaint, plaintiffs’ 8 conspiracy claims alleged against Logsdon should be dismissed with prejudice. 9 4. 10 Plaintiffs’ RICO conspiracy claim Finally, Logsdon moves to dismiss plaintiffs’ thirty-first claim for relief, which 11 alleges that “All Defendants”—over sixty defendants including private actors, state court judges 12 and employees, law enforcement, and local agencies—conspired to commit racketeering activity 13 in violation of the RICO statute, see 18 U.S.C. §§ 1962(d), 1964(c). (See Third Am. Compl. at 14 24.) Plaintiffs allege all defendants in this case conspired to “maintain a federal prosecution 15 against Plaintiff Brent Winters in Illinois.” (Id.) They further allege that on July 9, 2002, 16 defendant Jan Paul Miller agreed with an individual named Michael McCuskey and defendant 17 Assistant United States Attorney Frooman “to investigate and prosecute Brent Winters on false 18 charges” knowing that the presiding judge was biased. (Id.) They also allege that “Agent 19 Pogue,” who is not a defendant here, contributed to the conspiracy by testifying based on 20 “conjecture” at Brent Winters’ sentencing hearing. (Id.) In addition, they vaguely allege an 21 undefined “pattern of misrepresentation” intended to “defraud the Winters of their rights and 22 their property.” (Id.) Moreover, plaintiffs allege the “concealment of critical data,” including a 23 memorandum drafted by Judge Anderson of the Nevada County Superior Court. (Id.) Plaintiffs 24 do not allege any specific facts with respect to Logsdon. 25 //// 26 21 1 “The elements of a civil RICO claim are as follows: (1) conduct (2) of an 2 enterprise (3) through a pattern (4) of racketeering activity (known as ‘predicate acts’) 3 (5) causing injury to plaintiff’s ‘business or property.’” Living Designs, Inc., E.I. Dupont de 4 Nemours & Co., 431 F.3d 353, 361 (9th Cir. 2005) (citation and quotation marks omitted). “To 5 state a RICO claim, one must allege a ‘pattern’ of racketeering activity, which requires at least 6 two predicate acts.” Clark v. Time Warner Cable, 523 F.3d 1110, 1116 (9th Cir. 2008) (citations 7 omitted). Furthermore, a plaintiff must also show that the injury to his business or property was 8 proximately caused by the prohibited conduct and that he has suffered a concrete financial loss. 9 Chaset v. Fleer/Skybox Int’l, L.P., 300 F.3d 1083, 1086 (9th Cir. 2002). 10 Plaintiffs’ RICO conspiracy claim should be dismissed for several reasons. First, 11 the allegations are of such a vague and conclusory nature such that they do not state a plausible 12 claim for relief under the RICO statute. Second, plaintiffs have not pled two predicate acts of 13 “racketeering activity,” as that term is defined in 18 U.S.C. § 1961(1). Third, plaintiffs have not 14 alleged a “concrete financial loss” or injury to business or property proximately caused by the 15 conspiracy. At most, plaintiffs’ opposition to Logsdon’s motion to dismiss alleges that the 16 purported RICO conspiracy damaged plaintiff Brent Winters’ law practice, but provides no 17 information about the nature of the injury or a concrete financial loss. Nothing contained in 18 plaintiffs’ Third Amended Complaint or opposition brief suggests that they can amend their 19 pleading to state a plausible claim for relief. Accordingly, plaintiffs’ thirty-first claim for relief 20 should be dismissed with prejudice. 21 IV. 22 23 CONCLUSION For the foregoing reasons, IT IS HEREBY ORDERED that defendant Valerie Logsdon’s requests for judicial notice, except as otherwise noted above, are granted. 24 Furthermore, it is HEREBY RECOMMENDED that all claims alleged against 25 defendant Valerie Logsdon, except for the ninth claim for relief for civil battery as alleged by 26 22 1 plaintiff Christy Winters only, be dismissed with prejudice. The battery claim may proceed 2 against Logsdon, but only with respect to plaintiff Christy Winters. 3 These findings and recommendations are submitted to the United States District 4 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 5 days after being served with these findings and recommendations, any party may file written 6 objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a 7 document should be captioned “Objections to Magistrate Judge’s Findings and 8 Recommendations.” Any response to the objections shall be filed with the court and served on 9 all parties within fourteen days after service of the objections. Local Rule 304(d). Failure to file 10 objections within the specified time may waive the right to appeal the District Court’s order. 11 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 12 (9th Cir. 1991). 13 14 IT IS SO ORDERED AND RECOMMENDED. DATED: July 19, 2010 15 16 17 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 23