read: order granting defendant’s motion to dismiss

CV-90 (12/02) CIVIL MINUTES - GENERAL Initials of Deputy Clerk CB 1

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No.:

CV 14-09540 AB (JPRx) Date: April 22, 2015

Title:

Ellen Catherine Rozario v. Kim Richards; Evolution Film & Tape, Inc.

Present: The Honorable

ANDRÉ BIROTTE JR.

Carla Badirian N/A Deputy Clerk Court Reporter

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

None Appearing None Appearing Proceedings: [In Chambers] Order GRANTING Defendant’s Motion to

Dismiss

Pending before the Court is Defendant Evolution Film & Tape Inc.’s Motion to

Dismiss Plaintiff Ellen Catherine Rozario’s First Amended Complaint (“FAC”). (Dkt. No. 25.) Plaintiff filed an Opposition and Defendant filed a Reply. (Opposition, Dkt. No. 45; Reply, Dkt. No. 47.) The Court took this matter under submission. (Dkt. No. 52.) Having considered the materials submitted, the Court GRANTS the Motion.

Case 2:14-cv-09540-AB-JPR Document 56 Filed 04/22/15 of 11 Page ID #:362


I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff seeks recovery for the injuries she sustained from Defendant Kim Richards’s (“Ms. Richards”) pit bull named Kingsley. 1 (See FAC.)

A. The Real Housewives of Beverly Hills

Ms. Richards is a cast member on the reality television series “The Real Housewives of Beverly Hills” (“RHBH”). (Id. at ¶ 4; Mot., p. 2.) Defendant produces RHBH. (FAC, ¶ 4.) Ms. Richards and her dog appear in certain episodes of the show. (Id. at ¶ 17.) In her complaint, Plaintiff refers to a particular episode that aired on November 11, 2013 where a dog trainer is hired for Ms. Richards’s dog. (Id. at ¶ 18.) During that episode, Ms. Richards explained that she decided to hire a dog trainer because her dog destroyed “thousands of dollars of shoes, sunglasses, and personal items.” (Id.) The episode continued to show Ms. Richards expressing that she did not want to be “that person who has a dog that bites and hurts somebody.” (Id. at ¶ 95.) It is of note that Plaintiff has never seen this episode prior to her injuries.

B. The Dog Bite

On March 19, 2014, Plaintiff, Plaintiff’s daughter, and Plaintiff’s granddaughter visited Ms. Richards at her residence to spend the evening. (Id. at ¶ 12.) Ms. Richards’s pit bull lives with her. (Id. at ¶ 14.) Even though Plaintiff has known Ms. Richards since Ms. Richards was very young, Plaintiff was unaware that Ms. Richards owned a dog before arriving to Ms. Richards’s home. (Id. at ¶¶ 12, 15.) During the course of the stay, Plaintiff alleges that Ms. Richards “proceeded to make statements and representations to Plaintiff that the dog was a ‘sweet, cuddly dog’” and encouraged Plaintiff to scratch the dog behind its ears. (Id. at ¶ 15.) Plaintiff’s daughter (who apparently watched the RHBH episode at issue) exhibited a “lack of concern about the dog” and “did not display any concern about the dog being violent or dangerous.” (Id. at ¶ 104; Opp., p. 16.) Plaintiff’s daughter did not make any affirmative statements to Plaintiff about the dog’s behavior. According to Plaintiff, her daughter’s unspoken conduct (which Plaintiff appears to believe was influenced by the way Defendant portrayed the dog on RHBH) led Plaintiff to believe that the dog did not possess any “vicious” or aggressive tendencies. (FAC, ¶¶ 103-104.)

The next morning Plaintiff and Ms. Richards were having a conversation in Ms. Richards’s bedroom while Ms. Richards laid in bed with her dog. (Id. at ¶ 16.) As the two were conversing, the dog, “without provocation…jumped up from the bed, moved across [the bed] and…bit [Plaintiff].” (Id.) After the attack and despite Ms. Richards’s reservations, the paramedics were notified. (Id.) According to Plaintiff,

1 Defendant Kim Richards is not a party to this Motion.



Ms. Richards “begged Plaintiff, ‘not to tell anybody’” because Ms. Richards was afraid she could lost her job. (Id.) Defendant was not filming RHBH at any point during Plaintiff’s stay with Ms. Richards.

In light of the events above, on December 12, 2014, Plaintiff initiated this action against Defendant and Ms. Richards. (Dkt. No. 1.) On January 19, 2015, Defendant challenged the initial complaint with a motion to dismiss the claims under Federal Rule of Civil Procedure (“Rule”) 12(b)(6). (Dkt. No. 18.) On February 9, 2015, Plaintiff filed her FAC. (See FAC, Dkt. No. 23.) By order dated February 11, 2015, this Court denied Defendant’s Motion to Dismiss as moot because of the newly filed FAC. (Dkt. No. 24.)

In her FAC, Plaintiff claims Defendant is liable under a theory of intentional misrepresentation and conspiracy to commit intentional misrepresentation. (See FAC.) Defendant again moves to dismiss the claims under Rule 12(b)(6). (See Mot.)

II. LEGAL STANDARD

A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. A complaint survives a motion to dismiss under Rule 12(b)(6) if it contains a “short and plain statement of the claim showing that the pleader is entitled to relief,” which does not require “detailed factual allegations,” but it “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S. Ct. 1937, 1949 (2009). A Rule 12(b)(6) dismissal is proper only where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988); accord Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 248 (9th Cir. 1997) (“A complaint should not be dismissed ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’”). In other words, a complaint must allege facts sufficient to raise a right to relief that rises above the level of mere speculation and is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965, 1969 (2007).

Allegations of fact are taken as true and construed in the light most favorable to the nonmoving party. See Newdow v. Lefevre, 598 F.3d 638, 642 (9th Cir. 2010), cert. denied, 131 S. Ct. 1612 (2011). In analyzing the sufficiency of the complaint, the Court must first look at the requirements of the causes of action alleged. See Iqbal, 556 U.S. at 675. The Court may then identify and disregard any legal conclusions, which are not subject to the requirement that the Court must accept as true all of the allegations contained in the complaint. Id. at 678.

III. DISCUSSION



Before discussing the pending Motion, the Court addresses the issue of considering Defendant’s exhibit as part of Plaintiff’s complaint.

A. The Court Considers the RHBH DVD Copy of Episode Two of Season Four As Part of the Complaint

Defendant seeks the Court’s consideration of an attached DVD copy of Episode Two of RHBH because Plaintiff frequently references this particular episode in her complaint. (Mot., p. 8.) Although in her Opposition Plaintiff is silent regarding the authenticity of the proposed exhibit, she does inform the Court that other episodes are referenced in her FAC. (FAC, ¶ 20 (“misrepresentations by Defendants in the broadcasts of [RHBH]…on November 11, 2013, and on March 17, 2014, and other relevant episodes.”).)2

In ruling on a 12(b)(6) motion, a court generally cannot consider material outside of the complaint, but “when the plaintiff fails to introduce a pertinent document as part of her pleading, [] [case law makes] it clear that the defendant may introduce the document as an exhibit to a motion attacking the sufficiency of the pleading.” Wright & Miller, 5A Federal Practice & Procedure (3d. 2014 update); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994), overruled by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). Moreover, it is proper for the court to consider matters subject to judicial notice pursuant to Federal Rule of Evidence 201.

The Court GRANTS Defendant’s request to consider RHBH Episode Two of Season Four as part of the complaint. (Mot., p. 8, ¶ 2; Exs. A, B.) Plaintiff alleges that Defendant intentionally misrepresented the danger Ms. Richards’s dog posed on RHBH. On numerous instances, Plaintiff’s complaint references this RHBH episode that involved Ms. Richards’s dog being introduced to a dog trainer. (FAC, ¶¶ 18-20, 93-95, 97, 99, 103, 111.) It is not uncommon for courts to consider DVD exhibits in deciding a motion to dismiss. Zella v. E.W. Scripps Co., 529 F.Supp.2d 1124, 1128 (C.D. Cal. 2007) (considering DVD copies in determining a motion to dismiss for copyright infringement).

Because Plaintiff’s claim against Defendant is predominantly based on the representations portrayed on that episode, the Court considers this exhibit as part of the complaint and assumes that all contents therein as true for purposes of this Motion. U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“When a document is the basis of a plaintiff’s complaint, ‘[t]he defendant may offer such a document, and the district court may treat such a document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).’”).

B. Plaintiff’s Complaint Fails to Plead An Element of Intentional Misrepresentation

2 The Court notes that Plaintiff has referenced an additional episode (one that is not cited in the FAC) in her Opposition. (Opp., p. 1 (“[Plaintiff’s daughter]…watched RHBH shows [on]… November 4, 2013….”).)



Apart from the alleged representations about the dog’s behavior on RHBH, the complaint falls short in alleging a viable claim for intentional misrepresentation.

To state a claim for intentional misrepresentation, “a plaintiff must allege (1) a misrepresentation (including a false representation, concealment or nondisclosure), (2) defendant’s knowledge of falsity of the representation, (3) defendant’s intent to defraud or induce plaintiff to rely on the representation, (4) plaintiff’s justifiable reliance on the representation, and (5) resulting damage.”3 Rice v. Charles Schwab, No. SACV 10-00398-CJC (MLGx), 2010 WL 5156654, at *2 (citing 5 WITKIN, SUMM. CAL. LAW TORTS § 772(1) (10th ed.2005); Conrad v. Bank of America, 45 Cal. App. 4th 133, 155, 53 Cal.Rptr.2d 336 (Cal. App. 1996). Plaintiff must plead each element of intentional misrepresentation with particularity under Rule 9(b). See Rice v. Charles Schwab, No. SACV 10-00398-CJC (MLGx), 2010 WL 5156654, at *2 (C.D. Cal. 2010) (citing Neilson v. Union Bank of California, N.A., 290 F.Supp.2d 1101, 1141 (C.D. Cal. 2003); Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 583 (2d Cir. 2005).

1. Plaintiff Has Not Sufficiently Pleaded Justifiable Reliance

In every claim for intentional misrepresentation, a litigant must plead the element of justifiable reliance, but Plaintiff fails to do that here.

To satisfy this element, Plaintiff first “must plead that…she actually relied on the misrepresentation” in the RHBH episode. See also Mirkin v. Wasserman, 5 Cal. 4th 1082, 1096, 23 Cal. Rptr. 2d 101, 858 P.2d 568 (Cal. 1993). Plaintiff can also plead reliance through an indirect misrepresentation. In order to plead reliance based on a representation made to a third party or indirect reliance, Plaintiff must show “an individual to whom the defendant did not directly misrepresent any important fact…[and] [the defendant] ‘intends or has reason to expect to have [the misrepresentation] repeated to a particular class of persons and the person relying upon it is one of that class.’” Countrywide Home Loans, Inc. v. America’s Wholesale Lender, Inc., No. SACV 12-00242-CJC (ANx), 2014 WL 545841, at *3 (C.D. Cal. 2014) (citing Varwig v. Anderson Behel Porsche/Audi, Inc., 74 Cal. App. 3d 578, 580, 141 Cal. Rptr. 539 (Cal.

3 A portion of Defendant’s arguments assert that Plaintiff’s claim for intentional misrepresentation is a disguise, and she is actually bringing an action for fraudulent concealment. (Mot., pp. 11-14.) Considering this argument would not change the Court’s position on its rulings or its analysis. Regardless, Plaintiff is still the master of her complaint. See Romo v. Teva Pharmaceuticals USA, Inc., 731 F.3d 918, 922 (9th Cir. 2013). She seeks recovery under a claim for intentional misrepresentation, not fraudulent concealment. Although the claims of fraudulent concealment and intentional misrepresentation have similar elements of fraud, namely reliance, the Court discusses Plaintiff’s complaint as it is pleaded. 625 3rd Associates, L.P. v. Alliant Credit Union, 633 F.Supp.2d 1040, 1050-51 (N.D. Cal. 2009) (“A claim for fraudulent concealment in California requires knowing concealment or non-disclosure by a defendant with the intent to defraud, which induces justifiable reliance and causes injury to the plaintiff.”) (citation omitted).



App. 1977)); see also Bullock v. Philip Morris USA, Inc., 159 Cal. App. 4th 655, 676, 71 Cal. Rptr. 3d 775 (Cal. App. 2008).

With respect to the alleged misrepresentation of the dog on RHBH, it is undisputed that Plaintiff has never seen the RHBH episode she references or any other episode for that matter. (See FAC, ¶¶ 99, 101-105.) Instead, Plaintiff contends that she relied on Defendant’s RHBH representation of the dog’s “sweet and cuddly” behavior “through [her daughter].” (FAC, ¶¶ 20;104.) This allegation comes despite the fact that there are no facts in the complaint that Plaintiff’s daughter said anything to her about RHBH generally or specifically as to any particular episode.

Since Plaintiff alleges that her daughter purportedly saw RHBH Episode Two, (FAC ¶ 103), Plaintiff’s daughter would have to make some affirmative representation to Plaintiff in order for Plaintiff to properly plead reliance. Furthermore, the daughter’s affirmative representation would have to reflect the dog as not being dangerous because of the RHBH episode’s depiction of the dog. However, Plaintiff does not allege any facts that her daughter told her anything about the dog or the way Defendant portrayed the dog on RHBH. (See FAC.) Rather, “the fact that [her daughter] did not display any concern about the dog being violent or dangerous…[,]” Plaintiff takes the position that she indirectly relied on her daughter’s lack of concern as an indicator “to believe that the dog was not dangerous.” (FAC, ¶ 104.) Plaintiff contends that it was reasonable for her to rely on her daughter’s unspoken conduct (and Ms. Richards’s conduct)4 to not fear the dog or be aware of the dog’s propensity to bite people.

The Court understands justifiable reliance is normally a question of fact. See Cutler v. Rancher Energy Corp., No. SACV 13-00906-DOC (JPRx), 2014 WL 1153054, at *9 (C.D. Cal. 2014) (“‘reasonableness of reliance on a misrepresentation is ordinarily a question of fact….’”) (citation omitted). However, the question becomes a matter of law when “reasonable minds can come to only one conclusion based on the [alleged] facts.” Anschutz Corp. v. Merrill Lynch and Co. In., 785 F.Supp.2d 799, 827 (N.D. Cal. 2011) (citation omitted). Here, Plaintiff’s own allegations make it is implausible for Plaintiff to justifiably rely on her daughter since her daughter never actually communicated anything to Plaintiff about RHBH prior to the dog bite. See Restatement 2d of Torts § 533 (“The maker of a fraudulent misrepresentation is subject to liability... to another who acts in justifiable reliance upon it if the misrepresentation, although not made directly to the other, is made to a third person and the maker intends or has reason to expect that its terms will be repeated or its substance communicated to the other, and that it will influence his conduct....”). Even if the show was the reason for her daughter’s comfort level with the dog, her daughter’s reliance cannot be imputed to Plaintiff. Jones v. AIG Risk Management, Inc., 726 F.Supp.2d 1049, 1058 (N.D. Cal. 4 In her opposition, Plaintiff centered her claim of justifiable reliance on both her daughter and Ms. Richards. (Opp., p. 9.) Replying on Ms. Richards’s misrepresentations of her dog is a separate argument that is discussed in the agency subsection. (See Section III.B.2.)



2010) (dismissing the fraud claim because plaintiff could not provide a basis to impute reliance on her from a third party); Friedman v. Mercedes Benz USA LLC, 2013 WL 8336127, at *6 (C.D. Cal. 2013) (dismissing plaintiff’s misrepresentation claim because his actual reliance was based on advertisements he never saw).

More importantly, even assuming arguendo that Plaintiff’s daughter conveyed any concerns about Ms. Richards’s dog to Plaintiff, the claim still fails as a matter of law. Plaintiff alleges no facts to suggest Defendant “intend[ed] or ha[d] reason to expect that” the substance of the episode would “be repeated or its substance communicated to” someone like Plaintiff and “and that it will influence [Plaintiff’s] conduct” around the dog. See Restatement 2d of Torts § 533 (“The maker of a fraudulent misrepresentation is subject to liability... to another who acts in justifiable reliance upon it if the misrepresentation, although not made directly to the other, is made to a third person and the maker intends or has reason to expect that its terms will be repeated or its substance communicated to the other, and that it will influence his conduct....”); accord Mirkin v. Wasserman, supra, 5 Cal. 4th at 1096.

No factual scenario properly alleges justifiable reliance, and for those forgoing reasons, Plaintiff fails to allege justifiable reliance.5

2. Plaintiff Has Not Sufficiently Pleaded the Existence of An Agency Relationship

Plaintiff also rests her intentional misrepresentation claim under an agency theory. (See FAC.)

The respondeat superior doctrine makes an employer vicariously liable for torts of its employee committed within the “scope of the employment.” Bolbol v. Feld Entertainment, Inc., No. C 11-5539 PSG, 2013 WL 257133, at *4 (N.D. Cal. 2013) (citations omitted). The doctrine imputes liability to the employer for the employee’s 5 In an effort to plead the remaining elements of intentional misrepresentation, knowledge and benefit of the falsity, Plaintiff claims “Defendant [] had prior knowledge the dog was dangerous and that the dog had previously bitten and attacked a person or persons. On information and belief, the dog had attacked a person or persons on the set of [RHBH] prior to the broadcast of Episode 2 of Season 4.” (FAC, ¶ 97.) Plaintiff attached a Thirty Mile Zone (“TMZ”) interview of the dog trainer from RHBH episode in question to illustrate Defendant’s knowledge of the dog’s viciousness. (Opp., Ex. 1.) To demonstrate Defendant’s benefit from the dog’s on-air persona, Plaintiff attached screenshots from various blog websites that highlight the dog’s public appeal. (Id. at Ex. 2-4; p. 18.) Because Plaintiff fails to plead the essential element of justifiable reliance, it is immaterial whether Plaintiff has adequately pleaded the other elements of intentional misrepresentation. Robinson Helicopter Co., Inc. v. Dana Corp., 34 Cal. 4th 979, 990, 22 Cal. Rptr. 3d 352 (Cal. 2004) (“A fundamental element of a fraud claim is that a person justifiably relied on a misrepresentation.”). The Court does not discuss the remaining elements because properly pleading the remaining elements does not cure the deficiencies in Plaintiff’s complaint.



tortious act that injures a third party. Id. “To come within the scope of employment, the action must be ‘typical of or broadly incidental to the employer’s enterprise.’” Id. “The employee’s activities must be inherent in, typical of or created by the work so that it is a foreseeable risk of the particular employment.” Sunderland v. Lockheed Martin Aeonautical Sys. Support Co., 130 Cal. App. 4th 1, 9, 29 Cal. Rptr. 3d 665 (Cal. App. 2005).

Defendant moves to dismiss this action based on the nonexistence of an agency relationship between Defendant and Ms. Richards. (Mot., p. 22.) Defendant claims that Plaintiff’s allegations solely involve Ms. Richards’s representations that were “purely personal” and outside the scope of her employment with Defendant. (Id.) Plaintiff argues that her complaint alleges that Ms. Richards was Defendant’s agent at the time of the incident because Ms. Richards’s statements to Plaintiff at the residence were made to further Defendant’s business interests and to maintain the RHBH storyline portrayal of the dog being playful and not dangerous. (Opp., pp. 19-22.) Plaintiff contends such allegations should be taken as true and her agency theory is normally a question of fact that should be presented to a jury.6 (Id.) Plaintiff’s arguments do not persuade the Court.

Plaintiff’s complaint contains no allegations that, if proved, would show that Ms. Richards was Defendant’s agent at the time of the incident. The facts Plaintiff alleges demonstrate Ms. Richards’s conduct was purely personal. Sunderland, 130 Cal. App. 4th at 11 (“If an employee’s act is purely personal, it is not ‘typical of or broadly incidental to the employer’s enterprise.’”) (citation and quotation omitted). The complaint specifically states that Plaintiff and her daughter visited Ms. Richards as overnight guests, and Plaintiff and her daughter have a pre-existing relationship with Ms. Richards. (FAC, ¶¶ 12, 101.) These allegations suggest that the overnight stay was a personal visit and not related to RHBH. Neither the visit nor the dog bite occurred during the taping of RHBH. In fact, there are no allegations of RHBH crew members being present at any point during the visit. Aside from referring to Ms. Richards as Defendant’s “agent” and concluding that Ms. Richards furthered a scheme to misrepresent her dog, Plaintiff’s conclusory allegations do nothing more than assert naked claims “devoid of further factual enhancement” and make no affirmative showing that Defendant should be liable for Ms. Richards’s conduct. See Twombly, 550 U.S. at 555.

The Court will not assume agency relationships, instead the facts must be pleaded. Hawkins v. First Horizon Home Loans, Civ. No. S-10-1876 FCD/GGH, 2010 WL 4823808, at *9 (E.D. Cal. 2010) (“[P]laintiffs do not allege any facts to show how

6 Plaintiff also believes that, during discovery, she will seek copies of the contracts between Ms. Richards and Defendant that contain contractual provisions that Ms. Richards (and apparently her dog) was going to be portrayed in a “false light.” (Opp., p. 20 ¶ 1.)



Defendant authorized any other defendant to represent and/or bind it. Plaintiffs must allege such facts to sufficiently apprise defendants of the nature of the agency relationship.”) (citations omitted). Without such a showing, Ms. Richards’s alleged conduct cannot be imputed to Defendant, and Plaintiff’s agency theory fails. First v. Allstate Ins.Co., 222 F.Supp.2d 1165, 1172 (C.D. Cal. 2002) (“The burden of proving agency, as well as the scope of the agent’s authority, rests upon the party asserting the existence of agency and seeking to charge the principal with the representation of the agent.”) (citing Inglewood Teachers Ass’n v. Public Employment Relations Bd., 227 Cal. App. 3d 767, 780, 278 Cal. Rptr. 228 (Cal. App. 1991)).

C. Because Plaintiff’s Conspiracy Claim is Based on Her Intentional Misrepresentation Claim, Plaintiff Has Not Sufficiently Pleaded a Conspiracy Claim

“[I]n a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy.” Neilson v. Union Bank of California, N.A., 290 F.Supp.2d 1101, 1134 (C.D. Cal. 2003) (citing Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 551, 28 Cal. Rptr. 2d 475 (Cal. 1994)). Joint tortfeasors can be held liable for the ensuing damages of their coconspirators, “irrespective of whether or not [they were] direct actor[s] and regardless of the degree of [their] activity.” Doctors’ Co. v. Superior Court, 49 Cal. 3d 39, 44 (1989). display

The claim that is subject of the conspiracy is the intentional misrepresentation. (See FAC.) Thus, Plaintiff’s conspiracy claim fails for the same reason—a lack of justifiable reliance. (Id. at ¶¶ 108-116.) Plaintiff cannot use the representations of RHBH as a basis of her claim if the show’s representations were never effectively communicated to her. Wallack v. Idez Laboratories, Inc., No. 11CV2996-GPC (KSC), 2014 WL 1455872, at *8 (S.D. Cal. 2014) (“The ‘wrongful conduct’ [alleged under a claim of conspiracy] must satisfy all elements of a cause of action for some other tort or wrong.”) (citing Gen. Am. Life Ins. Co. v. Rana, 769 F.Supp. 1121, 1125 (N.D. Cal. 1991)). Plaintiff attempts to hold Defendant liable for conspiring to “intentionally misrepresent [to her daughter], that the dog was not vicious and dangerous” on Episode Two of RHBH. (FAC, ¶¶ 108-111.) Plaintiff maintains that this representation harmed her; yet, avoids acknowledging the fact that neither Defendant nor Plaintiff’s daughter overtly communicated these alleged RHBH representations to Plaintiff. In her opposition, Plaintiff argues that Defendant conspired with Ms. Richards and it was Ms. Richards that represented the dog as “sweet” and “cuddly.” (Opp., pp. 11-12.) Plaintiff contends that Defendant and Ms. Richards jointly engaged in a scheme for Ms. Richards to misrepresent her dog as sweet and cuddly to a class of people that not only watch RHBH but also visit Ms. Richards’ home. This inconceivable conjecture does not pass the Iqbal-Twombly threshold and cannot support a claim for civil conspiracy. Iqbal,



129 S.Ct. at 1950 (“a court should assume [the] veracity [of the facts] and then determine whether they plausibly give rise to an entitlement to relief.”).

Since Defendant cannot be held liable for intentional misrepresentation, then it cannot be held liable for conspiracy to misrepresent.

D. Plaintiff’s Request for Leave to Amend Is Denied

Dismissal of a claim under Rule 12(b)(6) is appropriate only where “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Leave to amend is appropriate unless it is clear that the complaint cannot be cured in alleging different facts. Silva v. Di Vittorio, 658 F.3d 1090, 1105 (9th Cir. 2011). In ruling on a request for leave to amend, courts consider bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint. See Nunes v. Ashcroft, 348 F.3d 815, 818 (9th Cir. 2003); see also Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004).

Defendant contends that the bad faith factor weighs in favor of denying Plaintiff’s request for leave to amend, but because amending this would be futile, the Court believes the futility factor better suits this analysis.7 Ashcroft, 348 F.3d at 818 (“Futility alone can justify the denial of a motion to amend.”). It is evident that Plaintiff’s own factual allegations defeat her claims. By her own allegations, Plaintiff has never seen the RHBH episode she allegedly relies on (or any other RHBH episode) and Plaintiff’s daughter never affirmatively communicated the alleged RHBH representations to her. Nor does Plaintiff contend that she is capable of alleging such facts in her request for leave to amend. (Opp., p. 25.) Absent such allegations or any indication that Plaintiff

7 Having viewed the DVD, Episode Two does not appear to support Plaintiff’s misrepresentation claim. Plaintiff contends that, during the episode, Defendant displayed Ms. Richards hiring a dog trainer to address her dog’s habit of “eat[ing] thousands of dollars of shoes, sunglasses, and personal items” and because Ms. Richards did not want to be “that person who has a dog that bites and hurts somebody.” (Mot., Exs. 1, 2; FAC, ¶ 94.) Plaintiff states that the episode represented the dog as “playful and loving but shy and scared around strangers,” despite the actual viciousness of the dog. (FAC, ¶ 94.) However, the RHBH depictions Plaintiff points to actually display an aggressive dog. (Mot., Exs. 1, 2.) Plaintiff should keep in mind that a falsity or deceit within the context of an intentional misrepresentation is an “assertion, as a fact, of that which is not true.” Cal. Civ. Code § 1710 (emphasis added). Plaintiff’s misrepresentation claims are predominantly based on an episode that portrays Ms. Richards’s dog attempting to attack the dog trainer during the first encounter between the trainer and the dog. (Mot., Exs. 1, 2.) The trainer eventually subdues the dog’s charge, but it is evident that the dog has the ability to exhibit aggressive behavior. Plaintiff’s complaint focuses on Ms. Richards’s statements during the episode, instead of focusing on the dog’s actions. The Court questions how Plaintiff can assert a claim for misrepresentation in depicting the dog as “playful and loving” when the very episode cited in the complaint shows the dog attacking someone.



is capable of making them, Plaintiff cannot cure the hurdles of justifiable reliance and indirect deception, and leave to amend will be futile.

Accordingly, the Court DENIES Plaintiff’s request for leave to amend.

IV. CONCLUSION

Based on the reasons articulated above, the Court GRANTS Defendant Evolution Film & Tape, Inc.’s Motion to Dismiss WITH PREJUDICE. The Court strikes the recently filed Joint Rule 26 Report, (Dkt. No. 53), and vacates the April 27, 2015 Scheduling Conference.

Defendant Kim Richards shall remain a party to this litigation. IT IS SO ORDERED.


read: order granting defendant’s motion to dismiss

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