READ: Kim Richards - Amended Memorandum of Points & Authorities In Opposition To Defendants Motion To Dismiss Complaint

REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

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Michael R. White, State Bar No. 91148 WHITE & REED LLP 5757 W. Century Boulevard, Suite 700 Los Angeles, CA 90045 Email: [email protected] Telephone: (310) 843-9065 Facsimile: (310) 843-9064 Will Parsons, BPR No. 26519 (Admitted Pro Hac Vice) SHACKELFORD, BOWEN, ZUMWALT & HAYES, LLP 47 Music Square East Nashville, TN 37203 Email: [email protected] Telephone: 615-329-4440 Facsimile: 615-329-4485 Attorneys for Defendant EVOLUTION FILM & TAPE, INC.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ELLEN CATHERINE ROZARIO, Plaintiff, vs. KIM RICHARDS; EVOLUTION FILM & TAPE, INC., a California Corporation, and DOES 1 through 5, inclusive, Defendants.

Case No.: 2:14-cv-09540 AB (JPRx) MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO MOTION TO DISMISS FIRST AMENDED COMPLAINT (FED.R.CIV.P. 12(b)(6) Hrg Date: April 6, 2015 Hrg Time: 10:00 a.m. CtRm: 4

In response to Plaintiff’s Amended Memorandum of Points and Authorities in

Opposition to Defendant’s Motion to Dismiss Complaint (Doc. No. 45 on the Court’s

docket; herein referred to as “Amended Opposition”), Defendant Evolution Film &

Tape, Inc. (“Evolution”) hereby submits this Reply Memorandum in support of its

Motion to Dismiss Plaintiff’s First Amended Complaint (Doc. No. 23; herein,

“FAC”), and states as follows:

Case 2:14-cv-09540-AB-JPR Document 47 Filed 03/26/15 Page 1 of 8 Page ID #:314

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I. Plaintiff has conceded that her “indirect deception” claim against

Evolution fails as a matter of law.

Plaintiff admits that she did not see the episode of “The Real Housewives of

Beverly Hills” containing the alleged misrepresentations regarding defendant

Richards’ dog. While she alleges her daughter saw the episode (FAC, ¶ 20), she does

not allege that her daughter told her about the episode and its alleged representations,

or that she learned about the representations from any other source. In fact, Plaintiff

admits that it is “not Plaintiff’s contention” that her daughter repeated the alleged

misrepresentations to her. (Amended Opposition, p. 12.)

Because she admits she never heard the alleged misrepresentations at issue,

Plaintiff cannot establish the actual reliance element of her fraud claim based on

“indirect deception.” Put simply, she could not have relied on statements she neither

heard nor heard about.

As alleged in the FAC, plaintiff’s fraud claim against Evolution arises out of

two (2) alleged misrepresentations on the November 11, 2013, episode of “The Real

Housewives of Beverly Hills” (Episode 402):

• A statement by Defendant Kim Richards that a trainer had been hired for

her dog because it had “eaten thousands of dollars of shoes, sunglasses

and personal items, and I just think he [sic] needs a trainer.”

• A statement by Richards on the same episode that “I don’t want to be that

person who has a dog that bites and hurts somebody. I want to give pit

bulls a good name.”

(FAC ¶¶ 93, 95).1 Plaintiff admittedly did not see this episode of “The Real

Housewives of Beverly Hills,” but alleges that her daughter saw it. (See id. ¶¶

20, 103). Based upon her daughter’s alleged viewing, Plaintiff attempted to

1 Plaintiff obliquely alludes to additional alleged misrepresentations that occurred in “[a] March 17, 2014 [episode] and

other relevant episodes.” (FAC ¶ 20). Plaintiff, however, fails to identify these additional alleged misrepresentations

with any specificity. (See id.) Such oblique allegations are insufficient, as a matter of law, to support a claim for fraud.

See Fed.R.Civ.P. 9(b).


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assert a theory of “indirect deception” against Evolution. (See id. ¶ 103).

She has not, however, alleged a critical element of this claim, namely that her

daughter repeated Evolution’s alleged misrepresentations to her, or that she otherwise

learned of them. As the California Supreme Court has held, actual reliance – a

necessary element for an intentional misrepresentation claim – requires a plaintiff to

“show that the misrepresentation was an immediate cause of the injury-producing

conduct....”Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 120 Cal.Rptr.3d 741, 246

P.3d 877, 888 (Cal. 2011), quoting In re Tobacco II Cases, 46 Cal.4th 298, 93

Cal.Rptr.3d 559, 207 P.3d 20, 39 (Cal. 2009). Thus, an advertisement cannot be an

“immediate cause” of a subsequent purchase if the purchaser never saw the

advertisement. Friedman v. Mercedes Benz USA LLC, 2013 WL 8336127, *5 (C.D.

Cal. June 12, 2013).

Since Plaintiff did not hear, either directly or indirectly, any of Evolution’s

alleged misrepresentations, she could not have relied on them.2 Accordingly, this

claim fails as a matter of law.

II. Plaintiff has failed to plead sufficient facts to state a claim under her

agency theory of fraud.

Having effectively conceded her “indirect deception” claim, Plaintiff focuses on

her agency theory of fraud.3 Plaintiff specifically contends that Evolution is liable

because defendant Richards acted as its agent when she falsely represented that her

2 In her Amended Opposition (p. 11), Plaintiff asserts that it was Richards who “repeated” the alleged misrepresentations

to her. In so doing, Plaintiff is conflating and confusing her “indirect deception” fraud theory with her agency fraud

theory. A claim for “indirect deception” applies when the defendant makes a fraudulent misrepresentation to a third

party with the intention that the misrepresentation be repeated to and acted upon by the plaintiff. See Restatement

(Second) of Torts § 533 (1977). Thus, in the instant case, a claim for “indirect deception” would be that Evolution made

a misrepresentation to Plaintiff’s daughter – a third party – who then repeated that misrepresentation to Plaintiff. But it

makes no sense (in the context of a claim for “indirect deception”) for Plaintiff to say that Richards “repeated” the

alleged misrepresentations to her because Richards is not a “third party” but rather the original maker of the alleged

misrepresentations (allegedly as an agent of Evolution). Thus, the representations about the dog made by Richards were

not the representations allegedly made by Evolution on the show, but were the representations of Richards herself.

3 Despite alleging that Richards was “employed by…Defendant Evolution,” (FAC, ¶ 13), Plaintiff has not responded to

Evolution’s arguments in the Motion to Dismiss that she cannot recover based on respondeat superior, and has

apparently abandoned any attempt to recover under this theory. (See Amended Opposition, pp. 19-22).


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dog was “sweet and cuddly.” (FAC ¶15). But a principal is only liable for the

wrongful acts of its agent committed within the scope of the agent’s agency or

employment. DSPT Int’l, Inc. v. Nahum, 2007 WL 5282563, *3 (C.D. Cal., Aug. 16,

2007), quoting Holley v. Crank, 400 F.3d 667, 673 (9th Cir. 2005) (“[p]rincipals are

[only] liable for the torts of their agents committed within the scope of their agency”).

The scope of an agent’s employment is “work [the agent] was employed to perform,

during his working hours.” Godfrey v. Ross, 2012 WL 507162, *2 (E.D. Cal Feb. 15,

2012), citing 2 Witkin, Summary of California Law § 126, at 121. An agency

relationship cannot just be assumed, but requires facts to be pleaded. Friedman v.

Mercedes Benz USA LLC, 2013 WL 8336127, *6 (C.D. Cal. June 12, 2013). Legal

conclusions framed as factual allegations will not suffice. Id.; Keegan v. Am. Honda

Motor Co., 838 F. Supp. 2d 929, 953 (C.D. Cal. 2012).

In the instant case, Plaintiff has failed to allege any facts to establish that

Richards was Evolution’s agent – much less that Richards was acting within the scope

of any alleged agency when she represented to Plaintiff that her dog was “sweet and

cuddly.”4 In her Amended Opposition (p. 21), Plaintiff claims that she “pled facts in

support of the agency relationship.” In support of this claim, Plaintiff cites to

paragraphs 4-8, 13, 30, 56, 65, 73, and 86 of her FAC. These paragraphs, however,

contain nothing but Plaintiff’s repeated conclusory statements that Richards was

Evolution’s agent and was acting at all times with the course and scope of her agency:

• “At all relevant times, [] Richards…was an agent of [] Evolution,” (FAC,

¶ 4);

• “[A]ll of the wrongful acts of [] Richards were committed while acting as

an agent for [] Evolution,” (id. ¶ 5);

• “Evolution exercised control over Richards at all times….” (id. ¶ 6);

4 As Evolution noted in its Motion to Dismiss, this alleged misrepresentation occurred at Richards’ home during a purely

personal visit from Plaintiff, and there is no allegation anywhere in the FAC that it occurred during filming of “The Real

Housewives of Beverly Hills” (it did not) or that anyone from Evolution was present (they were not).


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• “Richards was acting as the agent of [] Evolution and was acting within

the course and scope of such agency….” (id. ¶ 7);

• “At all relevant times, Richards was…an agent of [] Evolution,” (id. ¶

13); and

• “At all times herein material, [] Richards was acting as the agent of []

Evolution and was acting within the course and scope of such agency,”

(id. ¶¶ 30, 56, 65, 73, 86).

The Court is not required to accept as true such “labels and conclusions” and “naked

assertions devoid of further factual enhancement.” Bell Atl. Corp v. Twombly, 550

U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In addition to these “labels and conclusions,” Plaintiff claims that she

adequately pleaded an agency relationship because she alleges that, after the bite

occurred, Richards told her “not to tell anybody” and “promise me you won’t say

anything, I’ll lose my job.” (Amended Opposition, p. 21.) These statements do not

establish nor even suggest that an agency relationship existed. To conclude that these

statements imply an agency relationship between Richards and Evolution would be an

“unwarranted deduction[] of fact” or an “unreasonable inference[],” which the Court

is not required to accept as true. Sprewell v. Golden State Warriors, 266 F.3d 979,

988 (9th Cir. 2001). Moreover, the statements are legally irrelevant, since “an agency

cannot be created by the conduct of the agent alone.” Young v. Horizon W., Inc., 220

Cal. App. 4th 1122, 1133 (2013).

Plaintiff next contends that she has adequately pleaded an agency relationship

by alleging, “[o]n information and belief,” that the contract between Richards and

Evolution requires Richards not to disclose certain information and not to disparage

Evolution. (Amended Opposition, p. 20.) However, these “facts” are not stated in the

FAC and therefore cannot be considered on Evolution’s Motion to Dismiss.

Schneider v. California Dep’t of Corr., 151 F.3d 1194, 1197 (9th Cir. 1998), quoting 2

Moore’s Federal Practice, § 12.34[2] (Matthew Bender 3d ed.): “The court may


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not…take into account additional facts asserted in a memorandum opposing the

motion to dismiss, because such memoranda do not constitute pleadings under Rule

7(a).” (Ellipsis in original.)5

But in any event, these allegations establish nothing more than that Richards

and Evolution were counterparties to a contract. This fact is insufficient, as a matter

of law, to create an agency relationship. See, In re Coupon Clearing Serv., Inc., 113

F.3d 1091, 1100 (9th Cir. 1997) (the right of one party to require the other to perform

a contract does not establish an agency relationship).

Plaintiff’s agency theory is therefore without merit.6

III. Plaintiff’s conspiracy theory fails as a matter of law.

Plaintiff contends that Evolution conspired with Richards to defraud her by

intentionally misrepresenting material facts to her. (FAC, ¶¶ 108-116). As shown in

Evolution’s Motion (pp. 24-25), “before one can be held liable for civil conspiracy, he

must be capable of being individually liable for the underlying wrong as a matter of

substantive tort law.” Chavers v. Gatke Corp., 107 Cal. App. 4th 606, 612 (2003)

(emphasis in original). Since Evolution cannot be held liable for the underlying

alleged misrepresentations, it cannot be held liable for conspiring to make those

misrepresentations.

5 See also, e.g., Sarpy v. Pulido, 2013 WL 2898068, *3 (C.D. Cal. June 11, 2013) (“[T]he court may

not consider additional facts alleged in a memorandum in opposition to a defendant’s motion to

dismiss to determine the propriety of a Rule 12(b)(6) motion”).

6 The baselessness of Plaintiff’s agency claim is highlighted by the self-reinforcing and tautological

arguments that Plaintiff offers in her Amended Opposition. For instance, Plaintiff claims that she

adequately pleaded an agency claim because she alleged that “when [] Richards was acting as the

agent of [] Evolution, she misrepresented to Plaintiff that the dog was cuddly and sweet…..” and that

“Richards, while acting in her agency and coconspirator relationship with [] Evolution, made the

fraudulent statements to Plaintiff.” (Amended Opposition, p. 21). Such circular and conclusory

allegations – essentially that Richards acted as an agent of Evolution and, therefore, is an agent of

Evolution – are not “well-pleaded” facts entitled to be given any weight by the Court. See Twombly,

550 U.S. at 555; Iqbal, 556 U.S. at 678.


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IV. There is no basis to allow Plaintiff to again amend her Complaint.

Plaintiff has requested that, if the Court dismisses her FAC, she be permitted to

amend her Complaint yet again. (Amended Opposition, p. 25). In addressing a

plaintiff’s request to amend its complaint, courts consider the following factors: bad

faith, undue delay, prejudice to the opposing party, futility of amendment, and

whether the plaintiff has previously amended the complaint. Johnson v. Buckley, 356

F.3d 1067, 1077 (9th Cir. 2004).

The most important factor in the instant case is bad faith. As set forth in

Evolution’s Motion to Dismiss, the FAC is based upon numerous allegations that are

without a good faith basis in fact. (Motion to Dismiss, pp. 4-5). Plaintiff’s allegation

that Evolution “misrepresented to the public the dangerousness and viciousness of the

dog” is directly contradicted by the very scene of “The Real Housewives of Beverly

Hills” that Plaintiff cites to support her claim. (See id.) Upon being advised of this

fact, which establishes that the allegations in the FAC were false, Plaintiff made no

attempt to withdraw her FAC or otherwise strike the baseless allegations contained

therein. Instead, Plaintiff accused Evolution of “improperly argu[ing] the facts”

because it had submitted for the Court’s independent review a copy of the relevant

episode, which had been incorporated by reference into the FAC. (Amended

Opposition, p. 4). Moreover, Plaintiff now admits that she asserted a fraud claim

against Evolution based upon two alleged misrepresentations that she never even

heard (either directly or indirectly). (See Amended Opposition, p. 12).

As shown above, these admissions make it impossible for Plaintiff to amend her

Complaint to state a cause of action based on those misrepresentations. Therefore,

Plaintiff should not be permitted to file another amended Complaint, presumably to

plead yet more false “facts” and subjecting Evolution to the expense of filing yet

another motion to dismiss. Permitting further amendment would cause prejudice to

Evolution, which has already expended considerable resources defending against

Plaintiff’s original Complaint – which she withdrew in the face of Evolution’s first


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Motion to Dismiss – and her FAC – which Evolution respectfully contends is without

merit.

V. Conclusion

For the foregoing reasons, Evolution respectfully requests that the Court

dismiss Plaintiff’s First Amended Complaint with prejudice.

DATED: March 26, 2015 WHITE & REED LLP

By: __/s/____________________________ Michael R. White Attorneys for Defendant EVOLUTION FILM & TAPE, INC.


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Documents

READ: Kim Richards - Amended Memorandum of Points & Authorities In Opposition To Defendants Motion To Dismiss Complaint