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Case No: 2:16-cv-03382 JAK (SSx) – 1 –
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (FRCP 12(b)(6));
MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF ACTION AS REDUNDANT (FRCP 12(f))
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James L. Sanders (SBN 126291)
Email: jsanders@reedsmith.com
Kathyleen O’Brien (SBN 94218)
Email: kobrien@reedsmith.com
Carla M. Wirtschafter (SBN 292142)
Email: cwirtschafter@reedsmith.com
REED SMITH LLP
1901 Avenue of the Stars, Suite 700
Los Angeles, CA 90067-6078
Telephone: +1 310 734 5200
Facsimile: +1 310 734 5299
Attorneys for Defendants
Arminak & Associates, LLC,
Rieke-Arminak Corporation,
Mark Box and David Pritchett
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
HELGA ARMINAK, an individual; and
ARMIN ARMINAK, an individual,
Plaintiffs,
vs.
ARMINAK & ASSOCIATES, LLC, a
Delaware limited liability company;
RIEKE-ARMINAK CORPORATION a
Delaware corporation; and MARK BOX,
an individual; DAVID PRITCHETT, an
individual, and Does 1 through 10,
inclusive,
Defendants.
Case Number: 2:16-cv-03382 JAK (SSx)
DEFENDANTS ARMINAK &
ASSOCIATES, LLC, RIEKE-
ARMINAK CORPORATION, MARK
BOX AND DAVID PRITCHETT’S
NOTICE OF MOTION AND
MOTION TO DISMISS PLAINTIFFS
HELGA ARMINAK AND ARMIN
ARMINAK’S FIRST AMENDED
COMPLAINT FOR FAILURE TO
STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP
12(b)(6)); MOTION TO STRIKE THE
FIRST AND SECOND CAUSES OF
ACTION IN PLAINTIFFS’ FIRST
AMENDED COMPLAINT AS
REDUNDANT (FRCP 12(F))
[Filed Concurrently With Memorandum
of Points and Authorities in Support;
Request for Judicial Notice; [Proposed]
Order; Notice Of Lodging Exhibits to
Request for Judicial Notice]
Date: April 3, 2017
Time: 8:30 a.m.
Place: Room 10B
FAC Filed: December 21, 2016
Honorable John A. Kronstadt
Case 2:16-cv-03382-JAK-SS Document 53 Filed 01/25/17 Page 1 of 4 Page ID #:1073
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Case No: 2:16-cv-03382 JAK (SSx) – 2 –
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (FRCP 12(b)(6));
MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF ACTION AS REDUNDANT (FRCP 12(f))
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TO THE CLERK OF THE ABOVE-ENTITLED COURT AND TO
PLAINTIFFS HELGA ARMINAK AND ARMIN ARMINAK AND THEIR
ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on April 3, 2017,1 at 8:30 a.m., or as soon as
the matter can be heard in Courtroom 10B of the United States District Court for the
Central District of California, located at 350 W. First Street, Los Angeles, CA 90012,
Defendants Arminak & Associates, LLC (“Arminak”), Rieke-Arminak Corporation
(“Rieke-Arminak”), Mark Box (“Box”) and David Pritchett (“Pritchett”) (collectively,
“Defendants”) will and hereby do move for an Order granting their motion to dismiss
the Plaintiffs Helga Arminak and Armin Arminak’s (“Plaintiffs”) First Amended
Complaint (“FAC”) pursuant to Federal Rules of Civil Procedure, Rule 12(b)(6)
because it fails to state a claim upon which relief can be granted.
Defendants’ motion to dismiss Plaintiffs’ first and second causes of action – for
breach of contract – is made on the grounds that these claims are duplicative of claims
pending in the complaint filed in Case No. 2:16-cv-03519, which remains an active
lawsuit. See Adams v. Cal. Dep't of Health Servs., 487 F.3d 684, 689 (9th Cir. 2007),
overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008)
(“Plaintiffs generally have ‘no right to maintain two separate actions involving the
same subject matter at the same time in the same court and against the same
defendant.”); see also Lacy v. State, No. 15-16930, 2016 WL 5076057, at *1 (9th Cir.
Sept. 20, 2016) (citing to Adams for the proposition that dismissal is appropriate
where “‘the causes of action and relief sought, as well as the parties or privies to the
action, are the same.’”)
Defendants alternatively move to strike the first and second causes of action as
redundant pursuant to Rule 12(f) of the Federal Rules of Civil Procedure.
1 April 3, 2017 is the first available hearing date on the Court’s calendar. However,
Defendants do not object to the Court setting the hearing on this motion on an earlier
date, if the Court elects to do so.
Case 2:16-cv-03382-JAK-SS Document 53 Filed 01/25/17 Page 2 of 4 Page ID #:1074
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Case No: 2:16-cv-03382 JAK (SSx) – 3 –
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (FRCP 12(b)(6));
MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF ACTION AS REDUNDANT (FRCP 12(f))
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“‘Redundant’ allegations are those that are needlessly repetitive or wholly foreign to
the issues involved in the action.” California Dep't of Toxic Substances Control v.
Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002); see also Wilkerson v.
Butler, 229 F.R.D. 166, 170 (E.D. Cal. 2005) (striking causes of action because they
were duplicative of other causes of action).
Defendants’ motion to dismiss Plaintiffs’ third and fourth causes of action – for
slander and intentional infliction of emotional distress – is made on the grounds that
Plaintiffs’ FAC fails to state a claim for relief “that is plausible on its face,” as
required under Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) and Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007), as follows:
Plaintiffs’ Third Cause of Action for Defamation fails as a matter of law
because the alleged statements are non-actionable opinions incapable of sustaining a
defamatory meaning. Cochran v. NYP Holdings, Inc., 58 F. Supp. 2d 1113, 1120
(C.D. Cal. 1998), aff'd, 210 F.3d 1036 (9th Cir. 2000); Steam Press Holdings, Inc. v.
Hawaii Teamsters, Allied Workers Union, Local 996, 302 F.3d 998, 1006 (9th Cir.
2002). Plaintiffs’ first cause of action also fails as a matter of law because the alleged
statements are protected by the common interest and litigation privileges. King v.
United Parcel Service, Inc., 152 Cal.App.4th 426, 440 (2007); Meza v. Meza, 2013
WL 2338126, at *14 (C.D. Cal. May 25, 2013), aff'd, 617 F. App'x 816 (9th Cir.
2015).
Plaintiffs’ Fourth Cause of Action for Intentional Infliction of Emotional
Distress fails as a matter of law because Plaintiffs cannot demonstrate any extreme or
outrageous conduct. Cote v. Henderson, 218 Cal. App. 3d 796, 805-806 (1990). The
alleged statements are opinions incapable of sustaining a defamatory meaning and are
protected by the common interest and litigation privileges. Cochran, 58 F. Supp. 2d at
1120; King, 152 Cal.App.4th at 440; Meza, 2013 WL 2338126, at *14.
Case 2:16-cv-03382-JAK-SS Document 53 Filed 01/25/17 Page 3 of 4 Page ID #:1075
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Case No: 2:16-cv-03382 JAK (SSx) – 4 –
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (FRCP 12(b)(6));
MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF ACTION AS REDUNDANT (FRCP 12(f))
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This motion is made following the conference of counsel pursuant to L.R. 7-3
which took place on January 17, 2017 and January 18, 2017. This motion is based on
this Notice; the Memorandum of Points and Authorities in Support; the Request for
Judicial Notice; the complete files and records in this action; matters that may be
judicially noticed; and any oral or documentary evidence that may be presented at or
before the hearing on this matter.
DATED: January 25, 2017 REED SMITH LLP
/s/ Carla M. Wirtschafter
By: James L. Sanders
Kathyleen O’Brien
Carla M. Wirtschafter
Attorneys for Defendants
Arminak & Associates, LLC,
Rieke-Arminak Corporation,
Mark Box and David Pritchett
Case 2:16-cv-03382-JAK-SS Document 53 Filed 01/25/17 Page 4 of 4 Page ID #:1076
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Case No: 2:16-cv-03382 JAK (SSx)
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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James L. Sanders (SBN 126291)
Email: jsanders@reedsmith.com
Kathyleen O’Brien (SBN 94218)
Email: kobrien@reedsmith.com
Carla M. Wirtschafter (SBN 292142)
Email: cwirtschafter@reedsmith.com
REED SMITH LLP
1901 Avenue of the Stars, Suite 700
Los Angeles, CA 90067-6078
Telephone: +1 310 734 5200
Facsimile: +1 310 734 5299
Attorneys for Defendants
Arminak & Associates, LLC,
Rieke-Arminak Corporation,
Mark Box and David Pritchett
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
HELGA ARMINAK, an individual; and
ARMIN ARMINAK, an individual,
Plaintiffs,
vs.
ARMINAK & ASSOCIATES, LLC, a
Delaware limited liability company;
RIEKE-ARMINAK CORPORATION a
Delaware corporation; and MARK BOX,
an individual; DAVID PRITCHETT, an
individual, and Does 1 through 10,
inclusive,
Defendants.
Case Number: 2:16-cv-03382 JAK (SSx)
DEFENDANTS ARMINAK &
ASSOCIATES, LLC, RIEKE-
ARMINAK CORPORATION, MARK
BOX AND DAVID PRITCHETT’S
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
THEIR MOTION TO DISMISS
PLAINTIFFS HELGA ARMINAK
AND ARMIN ARMINAK’S FIRST
AMENDED COMPLAINT FOR
FAILURE TO STATE A CLAIM
UPON WHICH RELIEF MAY BE
GRANTED (FRCP 12(b)(6));
MOTION TO STRIKE THE FIRST
AND SECOND CAUSES OF ACTION
IN PLAINTIFFS’ FIRST AMENDED
COMPLAINT AS REDUNDANT
(FRCP 12(f))
[Filed Concurrently With Notice of
Motion; Request for Judicial Notice;
[Proposed] Order; Notice Of Lodging
Exhibits to Request for Judicial Notice]
Date: April 3, 2017
Time: 8:30 a.m.
Place: Room 10B
FAC Filed: December 21, 2016
Honorable John A. Kronstadt
Case 2:16-cv-03382-JAK-SS Document 53-1 Filed 01/25/17 Page 1 of 26 Page ID #:1077
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Case No: 2:16-cv-03382 JAK (SSx) – i –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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TABLE OF CONTENTS
Page
I. INTRODUCTION ................................................................................................ 1
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY ...................... 3
A. The Initial Complaint and Order of Dismissal ........................................... 3
B. The First Amended Complaint ................................................................... 5
C. The Contract Complaint ............................................................................. 7
III. ARGUMENT........................................................................................................ 8
A. The Third Cause of Action For Slander Should Be Dismissed ................. 8
1. The FAC Does Not Contain Facts Sufficient To Raise an
Inference that the Alleged Statements Are Capable of
Sustaining A Defamatory Meaning ............................................... 10
2. The Alleged Statements Are Protected By The Common
Interest Privilege ............................................................................ 13
3. The Alleged Statements Are Subject To the Litigation
Privilege ......................................................................................... 15
B. Plaintiffs’ Fourth Cause of Action for Intentional Infliction of
Emotional Distress Fails As A Matter of Law ......................................... 16
C. Plaintiffs’ First and Second Causes of Action for Breach of
Contract Should Also Be Dismissed ........................................................ 17
1. Plaintiffs’ First Two Causes Of Action Are Duplicative of
Claims Currently Pending in This Court ....................................... 17
2. Alternatively, Plaintiffs’ First Two Causes of Action Should
Be Stricken As Redundant ............................................................. 18
D. Plaintiffs’ FAC Should Be Dismissed With Prejudice ............................ 19
IV. CONCLUSION .................................................................................................. 20
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Case No: 2:16-cv-03382 JAK (SSx) – ii –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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TABLE OF AUTHORITIES
Page(s)
Cases
Abagninin v. AMVAC Chem. Corp.,
545 F.3d 733 (9th Cir. 2008) ................................................................................... 19
Adams v. Cal. Dep’t of Health Servs.,
487 F.3d 684 (9th Cir. 2007) ................................................................................... 17
Arikat v. JP Morgan Chase & Co.,
430 F. Supp. 2d 1013 (N.D. Cal. 2006) ................................................................... 10
Ashcroft v.Iqbal,
556 U.S. 662 (2009)............................................................................................. 8, 15
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007)................................................................................................... 8
California Dep’t of Toxic Substances Control v. Alco Pac., Inc.,
217 F. Supp. 2d 1028 (C.D. Cal. 2002) ................................................................... 18
Cochran v. NYP Holdings, Inc.,
58 F. Supp. 2d 1113 (C.D. Cal. 1998), aff’d, 210 F.3d 1036 (9th Cir.
2000) .................................................................................................................... 9, 12
Cote v. Henderson,
218 Cal. App. 3d 796 (1990) ................................................................................... 16
Cuenca v. Safeway S.F. Employees Fed Credit Union,
180 Cal. App. 3d 985 (1986) ................................................................................... 14
Dowling v. Zimmerman,
85 Cal. App. 4th 1400 (2001) .................................................................................. 10
Dworkin v. Hustler Magazine, Inc.,
668 F. Supp. 1408 (C.D. Cal. 1987), aff’d, 867 F.2d 1188 (9th Cir.
1989) ........................................................................................................................ 16
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Case No: 2:16-cv-03382 JAK (SSx) – iii –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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Ellis v. Starbucks Corp.,
No. 15-CV-3451-PJH, 2015 WL 8293965 (N.D. Cal. Dec. 9, 2015) ..................... 11
Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp.,
525 F.3d 822 (9th Cir. 2008) ............................................................................. 13, 14
Foman v. Davis,
371 U.S. 178 (1962)................................................................................................. 19
Houston Cas. Co. v. Crum & Forster Ins. Co.,
No. 1:16-CV-535-LJO-EPG, 2016 WL 4494444 (E.D. Cal. Aug. 25,
2016) ........................................................................................................................ 19
Hui v. Sturbaum,
222 Cal. App. 4th 1109 (2014) ................................................................................ 13
Info. Control Corp. v. Genesis One Computer Corp.,
611 F.2d 781 (9th Cir. 1980) ................................................................................... 12
King v. United Parcel Service, Inc.,
152 Cal.App.4th 426 (2007) .................................................................................... 13
Lacy v. State,
No. 15-16930, 2016 WL 5076057 (9th Cir. Sept. 20, 2016)................................... 17
Leadsinger, Inc. v. BMG Music Publ’g,
512 F.3d 522 (9th Cir. 2008) ............................................................................. 19, 20
Lundquist v. Reusser,
7 Cal. 4th 1193 (1994) ....................................................................................... 13, 15
Meza v. Meza,
2013 WL 2338126 (C.D. Cal. May 25, 2013), aff’d, 617 F. App’x 816
(9th Cir. 2015) ......................................................................................................... 10
Nguyen v. CTS Elecs. Mfg. Sols. Inc.,
301 F.R.D. 337 (N.D. Cal. 2014) ............................................................................ 18
Noel v. River Hills Wilsons, Inc.,
113 Cal. App. 4th 1363 (2003) ................................................................................ 14
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Case No: 2:16-cv-03382 JAK (SSx) – iv –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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Norse v. Henry Holt & Co.,
991 F.2d 563 (9th Cir. 1993) ............................................................................... 9, 10
Robomatic, Inc. v. Vetco Offshore,
225 Cal App. 3d 270 (1990) .................................................................................... 15
Rusheen v. Cohen,
37 Cal. 4th 1048 (2006) ........................................................................................... 15
Salameh v. Tarsadia Hotel,
726 F.3d 1124 (9th Cir. 2013) ................................................................................. 19
Sidney– Vinstein v. A.H. Robins Co.,
697 F.2d 880 (9th Cir. 1983) ................................................................................... 18
Smith v. Maldonado,
72 Cal. App. 4th 637 (1999) .................................................................................... 11
Starr v. Baca,
652 F.3d 1202 (9th Cir. 2011) ................................................................................... 8
Steam Press Holdings, Inc. v. Hawaii Teamsters, Allied Workers Union,
Local 996,
302 F.3d 998 (9th Cir. 2002) ................................................................................... 12
Taus v. Loftus,
40 Cal. 4th 683 (2007) ............................................................................................... 8
Taylor v. Sturgell,
553 U.S. 880 (2008)................................................................................................. 17
Underwager v. Channel 9 Australia,
69 F.3d 361 (9th Cir. 1995) ............................................................................... 12, 13
Wilkerson v. Butler,
229 F.R.D. 166 (E.D. Cal. 2005) ............................................................................. 18
Wynn v. Chanos,
75 F. Supp. 3d 1228 (N.D. Cal. 2014) ..................................................................... 15
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Case No: 2:16-cv-03382 JAK (SSx) – v –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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Statutes
Cal. Civ. Code, § 45 ........................................................................................................ 8
Cal. Civ. Code, § 46 ........................................................................................................ 8
Cal. Civ. Code, § 47(b) ................................................................................................. 15
Cal. Civ. Code, § 47(c) ................................................................................................. 13
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Case No: 2:16-cv-03382 JAK (SSx) – 1 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
By decision and order entered on December 7, 2016 (“December 7th Order”)1,
this Court granted Defendants Arminak & Associates, LLC’s (“Arminak”) and Mark
Box’s (“Box”) Motion to Dismiss the Complaint2 in this action,3 which asserted,
among others, claims for slander per se and intentional inflection of emotional
distress. These claims were based upon the allegations that following the resignations
of Plaintiffs Helga Arminak and Armin Arminak (“Plaintiffs”) as officers of Arminak,
Defendants purportedly told Arminak’s employees, customers and manufacturers that:
(1) Plaintiffs were “unreliable and irresponsible”; (2) Plaintiffs were “liars and
cheats”; and (3) they “should not talk to Plaintiffs because Plaintiffs were going to
sue” them. The Initial Complaint also alleged that Defendant Box told Martha
Huiazar, who cleaned Plaintiffs’ home and Arminak’s offices that: (1) “Plaintiffs
could not be trusted”; (2) “Plaintiffs might sue her”; (3) “Plaintiffs defrauded”
Arminak; and (4) “anybody associated with Plaintiff Helga Arminak would be sued.”
This Court dismissed the slander claim as legally deficient because: (i) it could
not “determine whether the challenged statements were facts or opinions” or whether
the statements were “provably false;” (ii) the purported slanderous statements were
“set forth without any context” and did not “identify a speaker;” and (iii) the
allegations were “‘conclusory, unwarranted deductions of fact’ that the Court was not
required to accept as true.” (RJN, Exh. 2, p. 24.) Plaintiffs’ claim for intentional
1 See Order entered December 7, 2016, Defendants’ Request for Judicial Notice
(“RJN”), Exh. 2.) 2 The Complaint dismissed pursuant to the December 7th Order is referred to herein as
the “Initial Complaint.” 3Defendants Rieke-Arminak Corporation and David Pritchett were not named
Defendants in the Initial Complaint. (RJN, Exh. 2, p. 2.) “Defendants” is used herein
to collectively refer to all Defendants named in the First Amended Complaint –
Arminak & Associates, LLC, Rieke-Arminak Corporation, Mark Box and David
Pritchett – and all Defendants named in the Initial Complaint – Arminak &
Associates, LLC and Mark Box.
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Case No: 2:16-cv-03382 JAK (SSx) – 2 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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infliction of emotional distress also was dismissed because it was predicated entirely
on the deficient slander claim. (Id., p. 25.)
Despite the road map provided in the December 7th Order for stating a viable
claim, the First Amended Complaint (“FAC”) fails to rehabilitate any of the
deficiencies in Plaintiffs’ prior pleading. Plaintiffs’ “amended” pleading contains
none of the factual and contextual allegations that this Court already ruled were
required to maintain a claim for slander. Like in the Initial Complaint, the amended
slander claim in the FAC (Third Cause of Action) is based upon the threadbare
allegation that following Plaintiffs’ resignations as officers of Arminak, Defendants
purportedly “told employees, customers and affiliates that Plaintiffs were unreliable,
unethical and dangerous, that Plaintiffs had defrauded Arminak & Associates, LLC,
that Plaintiffs do not respect contracts and that the employees, vendors and customers
should not contact or do business with the Plaintiffs.” (FAC, ¶¶ 22, 41.) Like the
Initial Complaint, the FAC is devoid of allegations sufficient to enable the Court to
determine whether the challenged statements are facts, not opinions, and thus are
“provably false.” Once again, the allegations are conclusory at best, are made without
context, and the alleged statements are not attributed to any particular speaker, and the
persons who allegedly heard them are not identified. (FAC, ¶¶ 21-23, 39-44.) For
these reasons alone, the slander claim should be dismissed. In addition, even if
Plaintiffs’ allegations were sufficiently pled, Plaintiffs’ claim for slander fails because
the allegedly slanderous statements are protected by the common interest privilege
and the litigation privilege.4
The claim for intentional infliction of emotional distress in the FAC (Fourth
Cause of Action) is, again, predicated upon the deficiently pled slander claim and,
thus, also must be dismissed.
4Defendants advanced these arguments in their prior Motion to Dismiss, but they were
not addressed in the Court’s December 7th Order. (RJN, Exh. 1.)
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Case No: 2:16-cv-03382 JAK (SSx) – 3 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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Plaintiffs’ FAC also asserts two new claims, i.e., claims which were not
asserted in the Initial Complaint, for breach of the Plaintiffs’ respective employment
agreements (First and Second Causes of Action). Plaintiffs allege that, following their
resignations from Arminak, they were entitled to salary and benefits through the end
of their employment contract term – March 31, 2016 – and a bonus, which they have
not received. (FAC, ¶¶ 27-29, 34-36.)
Plaintiffs’ breach of contract claims are duplicative of claims Plaintiffs asserted
in their complaint filed in Case No. 2:16-cv-035195 (the “Contract Complaint”).
(RJN, Exh. 3, Fourth and Sixth Causes of Action, ¶¶ 52-57, 64-69.) Like the
allegations in the FAC, Plaintiffs’ Contract Complaint alleges that Defendant Arminak
breached Plaintiffs’ respective employment agreements and failed to pay Plaintiffs
their 2015 bonuses. (RJN, Exh. 3, ¶¶ 56, 68.) Thus, the first two causes of action in
the FAC should be dismissed as duplicative. Alternatively, Defendants request that
these causes of action be stricken as redundant.
For all of these reasons, Defendants respectfully request that this Court grant
their Motion to Dismiss in its entirety. Moreover, given that Plaintiffs have now had
two opportunities to plead viable claims for slander and intentional infliction of
emotional distress, and any amendment to Plaintiffs’ first and second causes of action
for breach of contract would be futile because their duplicative claims are still pending
in the Contract Case, Defendants respectfully request that any dismissal be with
prejudice and without leave to amend.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. The Initial Complaint and Order of Dismissal
This lawsuit relates to Plaintiffs’ sale of Arminak to Rieke-Arminak in a two
part purchase for a total of $110 million in 2012 and 2014. (FAC, ¶¶ 11-13, 15; RJN
5 Case No. 2:16-cv-03519 is referred to herein as the “Contract Case.”
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Case No: 2:16-cv-03382 JAK (SSx) – 4 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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Exh. 2, pp. 2-7.)
Following the sale of their business, Plaintiffs continued to work at Arminak
until they both resigned in or about February 2016. (FAC, ¶¶ 14, 16, 18-20.) Since
resigning, Plaintiffs and/or their affiliate companies have filed five separate lawsuits –
including this action – against Defendant Arminak, its officers and executives,
including Defendants David Pritchett (“Pritchett”) and Box, and/or related companies,
asserting claims related to the agreements Plaintiffs entered into when they sold
Arminak to Rieke-Arminak. (RJN, Exhs. 3-6.)
The Initial Complaint asserted four causes of action for slander per se, invasion
of privacy – false light, intentional infliction of emotional distress and injunctive relief
against Defendants Arminak and Box. The Initial Complaint alleged that Defendants
Arminak and Box made defamatory statements about Plaintiffs after they resigned
from their positions at Arminak. (RJN, Exh. 2, pp. 2-7.) Plaintiffs’ claims of
wrongdoing were limited to the bare allegations that:
From January 7, 2016 to the present . . . Defendant Arminak and Box,
“made multiple oral statements to employees of [,customers of, and
manufacturers dealing with] Defendant Arminak & Associates, LLC, . . .
that Plaintiffs were unreliable and irresponsible, that Plaintiffs were liars
and cheats, and that the employees should not talk to Plaintiffs because
Plaintiffs were going to sue the employees.”
Plaintiffs also alleged that Defendant Box “orally stated to Martha
Huiazar, who cleans both the premises of Defendant Arminak &
Associates, LLC and Plaintiffs’ residence, that Plaintiffs could not be
trusted, that Plaintiffs might sue her, that Plaintiffs had defrauded
Defendant Arminak & Associates, LLC, and that anybody associated
with Plaintiff Helga Arminak would be sued.” (RJN, Exh. 2, p. 23.)
The slander per se claim was dismissed because this Court determined that
these allegations: (i) were not sufficient to allow the Court to determine whether the
challenged statements were “facts or opinions” or “provably false;” (ii) were set forth
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Case No: 2:16-cv-03382 JAK (SSx) – 5 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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without context; (iii) failed to identify the speaker; and (iv) constituted “conclusory,
unwarranted deductions of fact” that the Court was not required to accept as true.
(RJN, Exh. 2, p. 24)
This Court additionally dismissed Plaintiffs’ related claims for intentional
infliction of emotional distress and injunctive relief because they were predicated
upon the slander claim. The dismissal was without prejudice and with leave to
amend.6 (RJN, Exh. 2, p. 25-6.)
B. The First Amended Complaint
The FAC was filed on December 21, 2016. Significantly, with respect to the
slander claim, the differences between the Initial Complaint and the FAC are minimal.
The FAC relies upon exactly the same type of vague, conclusory and unsubstantiated
allegations that this Court rejected:
Initial Complaint FAC
17., 18., 19. “From January 7, 2016 to the
present, at 1350 Mountain View Circle,
Azusa, California 91702, Defendant
Arminak & Associates, LLC, Defendant
Mark Box, and Does 1-5 have made
multiple oral statements to employees of
Defendant Arminak & Associates, LLC,
with whom Plaintiffs had worked, that
Plaintiffs were unreliable and
irresponsible, that Plaintiffs were liars and
cheats, and that the employees should not
talk to Plaintiffs because Plaintiffs were
going to sue the employees. The
employees included but are not limited to
the following: Sharon Liu; Remlen
Penaflor; Gloria Navegas; Luis Cruz;
Hassina Bengardi; Anthony Luna; and
Hugo Benaleazar. . . . [Defendants] also
22. and 41. “Defendants and each of them
told employees, customers and business
affiliates that Plaintiffs were unreliable,
unethical and dangerous, that Plaintiffs
had defrauded Arminak & Associates,
LLC, that Plaintiffs do not respect
contracts, and that the employees, vendors
and customers should not contact or do
business with the Plaintiffs. These false
and defamatory statements were made by
Defendants Arminak & Associates, LLC
and Rieke-Arminak, by and through their
representatives and employees, including
Defendants Mark Box and David
Pritchett.”
6 Plaintiffs’ cause of action for invasion of privacy was dismissed with prejudice.
(RJN, Exh. 2, pp. 22-26.)
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Case No: 2:16-cv-03382 JAK (SSx) – 6 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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Initial Complaint FAC
made multiple oral statements to . . .
customers of Defendant Arminak &
Associates, LLC . . . includ[ing] . . .: L
Brands; Dial Henkel; Colgate-Palmolive;
Unilever; Conair; Rubbermaid; Apex;
Kimberly Clark; Marietta; Clorox; and
Kao . . . [and] to manufacturers dealing
with Defendant Arminak & Associates,
LLC . . . includ[ing] . . .: Cheming; CL;
and Dong Fang. ”
20. “In or about February, 2016,
Defendant Mark Box orally stated to
Martha Huiazar, who cleans both the
premises of Defendant Arminak &
Associates, LLC and Plaintiffs’ residence,
that Plaintiffs could not be trusted, that
Plaintiffs might sue her, that Plaintiffs had
defrauded Defendant Arminak &
Associates, LLC, and that anybody
associated with Plaintiff Helga Arminak
would be sued.”
23. and 42. “The false and defamatory
statements were made by the Defendants
and each of them to employees, customers
and business affiliates of Plaintiff,
including L Brands, Dial Henkel,
Colomer, Colgate-Palmolive, Unilever,
Conair, Rubbermaid, Apex, Kimberly
Clark, Marietta, Clorox, Kao, Cheming,
CL, Oberk, Mast Global and Dong Fang.”
Notably, the allegations in Plaintiffs’ FAC are even vaguer than those in the
Initial Complaint this Court dismissed because Plaintiffs fail to allege any facts
identifying Plaintiffs or Defendants’ relationship with the entities to which the
defamatory statements were purportedly made. (FAC, ¶¶ 23, 42.) The FAC also fails
to identify any individual who allegedly heard the purported statements. The FAC
only identifies large companies with employees and offices throughout the country,
and in some cases, the world.
Plaintiffs’ claims for breach of contract allege that, notwithstanding Plaintiffs’
resignations in February 2016, Arminak owes Plaintiffs a bonus, and salary and
benefits through March 31, 2016 – the end of the employment contract term. (FAC,
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Case No: 2:16-cv-03382 JAK (SSx) – 7 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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¶¶ 18-20, 27-29, 34-36.) As further discussed below, these clams are duplicative of
the allegations in Plaintiffs’ Contract Complaint.
C. The Contract Complaint
On October 3, 2016, this Court consolidated the present case – Case No. 2:16-
cv-03382 (“the Slander Case”) – with Case No. 2:16-cv-03519 (“the Contract Case”).
At the time of consolidation, there were two separate complaints and five pending
motions on file. (RJN, Exh. 8.)
Plaintiffs’ Contract Complaint asserts claims for: (1) declaratory relief related
to the Restrictive Covenants; (2) injunctive relief related to the Restrictive Covenants;
(3) violation of California Business and Professions Code Section 17200 related to the
Restrictive Covenants; (4) breach of contract related to Plaintiff Armin Arminak’s
Employment Agreement; (5) breach of contract related to Plaintiff Helga Arminak’s
Amended and Restated Employment Agreement; and (6) intentional infliction of
emotional distress on behalf of Plaintiff Helga Arminak.7 (RJN, Exh. 3.) Prior to
consolidation, Defendants filed a Motion to Transfer Venue in the Contract Case, and
a Motion to Dismiss the complaint filed in the Slander Case. Defendants did not
move to dismiss the Contract Complaint. Instead, Defendants filed an Answer. (See
Case No. 2:16-cv-03519, Docket No. 24.)
On December 7, 2016, this Court granted Defendants’ Motion to Transfer
Venue, and severed and transferred the first three causes of action in the Contract
Complaint to the Southern District of New York. The December 7th Order expressly
states that “[t]he remaining claims will proceed here” – i.e. the Fourth and Sixth
Causes of Action for breach of Plaintiffs’ respective employment agreements and the
Eighth Cause of Action for intentional infliction of emotional distress. The
December 7th Order did not did not dismiss the Contract Complaint, give Plaintiffs
7 Prior to removal, Roger Abadjian dismissed his claims for (5) breach of contract and
(7) intentional infliction of emotional distress. (RJN, Exh. 2, p. 1, fn 1.)
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Case No: 2:16-cv-03382 JAK (SSx) – 8 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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leave to amend the Contract Complaint or instruct Plaintiffs to reassert the remaining
claims from the Contract Complaint in an amended complaint.
III. ARGUMENT
It is well established that, “[a] pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’ Nor does a
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Ashcroft v.Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (alteration in original). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Id. The federal pleading standard “does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-679.
The Ninth Circuit strictly adheres to the Supreme Court’s directives on this
issue, explaining that the plausibility standard “obliges a pleader to amplify a claim
with some factual allegations in those contexts where such amplification is needed to
render the claim plausible.” Id. at 662; Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.
2011) (A properly plead complaint (1) “contain[s] sufficient allegations of underlying
facts to give fair notice and to enable the opposing party to defend itself effectively,”
and (2) “plausibly suggest[s] an entitlement to relief, such that it is not unfair to
require the opposing party to be subjected to the expense of discovery and continued
litigation.”) Here, Plaintiffs offer no new assertions in the FAC to rectify the
otherwise conclusory statements and mere possibilities already rejected by this Court.
Accordingly, the FAC should be dismissed.
A. The Third Cause of Action For Slander Should Be Dismissed
To maintain a claim for slander, Plaintiffs must allege (1) a publication that is
(2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or
cause special damage. Cal. Civ. Code, §§ 45, 46; Taus v. Loftus, 40 Cal. 4th 683, 720
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Case No: 2:16-cv-03382 JAK (SSx) – 9 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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(2007). To defeat a motion to dismiss a slander claim, a Plaintiff must show that the
alleged slanderous statement is “reasonably capable of sustaining a defamatory
meaning.” Cochran v. NYP Holdings, Inc., 58 F. Supp. 2d 1113, 1121 (C.D. Cal.
1998), aff’d, 210 F.3d 1036 (9th Cir. 2000). A statement may sustain a defamatory
meaning only with facts showing that “the allegedly defamatory implications
constituted provably false assertions of fact,” as opposed to “pure opinions,” which
“do not imply facts capable of being proved true or false.” Id. at 1121-25. Courts will
examine the totality of the circumstances in which the alleged slanderous statement is
made to make this determination. In particular, courts examine the broad context in
which the alleged statement is made, including, the subject of the statement and the
setting in which it was made. Courts also examine the specific context and content of
the statements, including the reasonable expectations of the audience. Id. at 1121;
Norse v. Henry Holt & Co., 991 F.2d 563, 567 (9th Cir. 1993) (holding that a
statement in isolation is not discernably defamatory).
Like the Initial Complaint, the FAC fails to include facts, as it must, to enable
the Court to make this determination. In particular, the FAC fails because there are no
contextual allegations which enable the Court to examine whether the alleged
slanderous statements are “facts or opinions” or “provably false.” In addition, the
statements are protected by the common interest and litigation privileges which
protect statements, like those at issue here, made in the course of employment and
business relationships, and statements made about ongoing legal proceedings. For
these reasons, as set forth in detail below, Defendants Motion to Dismiss Plaintiffs’
third cause of action for slander should be granted.
///
///
///
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Case No: 2:16-cv-03382 JAK (SSx) – 10 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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1. The FAC Does Not Contain Facts Sufficient To Raise an
Inference that the Alleged Statements Are Capable of
Sustaining A Defamatory Meaning
To make the determination that an alleged slanderous statement is “reasonably
capable of sustaining a defamatory meaning,” the statement is “interpret[ed] from the
standpoint of the average reader, [] judging the statement not in isolation, but within
the context in which it is made.” Norse, 991 F.2d at 567 (9th Cir. 1993). (citations
omitted.) In addition, if an alleged defamatory statement is susceptible of a harmless
or a defamatory meaning, a plaintiff must state the defamatory meaning or “innuendo”
in which the statement was used and understood. Dowling v. Zimmerman, 85 Cal.
App. 4th 1400, 1421 (2001). This Court dismissed Plaintiffs’ Initial Complaint
precisely because Plaintiffs failed to satisfy these basic pleading requirements. (RJN,
Exh. 2, p. 24.) The allegations in the FAC fare no better.
First, like the Initial Complaint this Court rejected, the FAC does not identify
the speaker of any particular alleged slanderous statement. Instead, the FAC
summarily states that “Defendants” collectively made each of the alleged statements.
Such generalized statements are insufficient to state a viable claim for slander. Arikat
v. JP Morgan Chase & Co., 430 F. Supp. 2d 1013, 1020 (N.D. Cal. 2006) (“As an
initial matter, plaintiffs’ allegations are insufficient in that they are ascribed to
defendants collectively rather than to individual defendants.”) Moreover, the FAC
also does not sufficiently identify who made the purported statements on behalf of
Defendants Arminak and Rieke-Arminak. See Meza v. Meza, 2013 WL 2338126, at
*14 (C.D. Cal. May 25, 2013), aff’d, 617 F. App’x 816 (9th Cir. 2015) (dismissing a
claim for defamation with prejudice because the plaintiff did not sufficiently identify
who made the defamatory statements and thus, “ma[de] no effort to give the
individual Defendants notice of the complained of conduct.”). The FAC only alleges
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Case No: 2:16-cv-03382 JAK (SSx) – 11 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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that “representatives and employees” of “Arminak” and “Rieke-Arminak,” including
Box and Pritchett, made allegedly defamatory statements about Plaintiffs in some
undisclosed location(s) at some unspecified time(s) after Plaintiffs resigned from their
positions.8 (FAC, ¶¶ 22, 41.) The Court has already ruled that these vague allegations
are insufficient and that factual allegations that identify the speaker are necessary to
state a viable slander claim. (RJN, Exh. 2, pp. 22-24.)
Second, like the Initial Complaint, the FAC does not identify the person(s) who
purportedly heard the particular statements, and thus fails to allege facts sufficient to
demonstrate “publication” of the alleged statements. Instead, Plaintiffs allege, in
conclusory terms, that the alleged statements were made to “employees, customers
and business affiliates” of Plaintiffs, including the large companies they identify.
(FAC, ¶¶ 23, 42.) Not a single person who purportedly heard the statements is
identified. To be actionable, Plaintiffs must plead facts showing that the purported
statements were “published” to someone who understood their defamatory meaning.
See Smith v. Maldonado, 72 Cal. App. 4th 637, 645-6 (1999) (“[T]he plaintiff must
also allege the extrinsic circumstances which show the third person reasonably
understood [the alleged statement] in its derogatory sense (the ‘inducement’).”);
accord Ellis v. Starbucks Corp., No. 15-CV-3451-PJH, 2015 WL 8293965, at *5
(N.D. Cal. Dec. 9, 2015). Again, the absence of these required contextual allegations
is fatal to Plaintiffs’ claim as it leaves Defendants without fair notice of the statements
which they are accused of making.
Third, like the Initial Complaint, the FAC does not allege any contextual facts
demonstrating that the challenged statements are “provably false,” and thus,
actionable. A statement “is not provably true or false [where] there is no core of
8 Plaintiffs allege that Box and Pritchett also made the purported statements.
However, to the extent Plaintiffs are alleging that “representatives and employees”
other than Box or Pritchett made these alleged statements on behalf of Arminak and
Rieke-Arminak, the FAC fails to identify any such individual.
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Case No: 2:16-cv-03382 JAK (SSx) – 12 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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objective evidence upon which this Court could verify the allegation.” Cochran, 58 F.
Supp. 2d at 1125. The Ninth Circuit instructs courts to consider the “setting, subject
matter, format, and tenor” – i.e., the specific and broad context in which the
statements are made – when evaluating whether a plaintiff has alleged statements that
are actionable. Steam Press Holdings, Inc. v. Hawaii Teamsters, Allied Workers
Union, Local 996, 302 F.3d 998, 1006 (9th Cir. 2002). No such facts are alleged here.
Like in the Initial Complaint, the only “context” alleged in the FAC is that the
statements generally were made after Plaintiffs’ employment with Arminak ended.
(FAC, ¶¶ 21, 40.)
The absence of any such facts is particularly troubling in light of the fact that
Plaintiffs’ slander claim arises in the context of broader disputes concerning the
purchase of Arminak, including the pendency of five lawsuits between the parties
brought by Plaintiffs in several state and federal jurisdictions. With this backdrop,
there is no basis for this Court to conclude that the statements at issue are provably
false. (RJN, Exhs. 3-6.) Indeed, in situations like this, where alleged statements arise
out of contentious legal proceedings, even seemingly “factual” statements are
insufficient to state a claim for slander.9 Moreover, colorfully expressed and
seemingly exaggerated statements, such as those alleged here, including statements
that Plaintiffs are “unreliable, unethical and dangerous,” typically are categorized as
non-actionable “rhetorical hyperbole,” not slander. Cochran, 58 F. Supp. 2d at
9 See Steam Press Holdings, Inc., 302 F.3d at 1006 (finding that statements made
during a labor dispute were opinions given the “heated and volatile setting”); Info.
Control Corp. v. Genesis One Computer Corp., 611 F.2d 781, 784 (9th Cir. 1980)
(Particularly when there is an ongoing legal dispute, one “may anticipate efforts by the
parties to persuade others to their position by use of epithets, fiery rhetoric or
hyperbole, [and thus] language which generally might be considered as statements of
fact may well assume the character of statements of opinion.”); Underwager v.
Channel 9 Australia, 69 F.3d 361, 367 (9th Cir. 1995) (finding that statements made
in a heated debate were more like opinions despite potentially factual interpretations).
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Case No: 2:16-cv-03382 JAK (SSx) – 13 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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1123-4.10 The FAC offers no allegations which support concluding otherwise. Simply
put, the alleged statements are non-actionable opinions. As such, Plaintiffs’ third
cause of action for slander should be dismissed with prejudice.
2. The Alleged Statements Are Protected By The Common
Interest Privilege
Even if Plaintiffs’ slander allegations were sufficiently stated, the slander claim
additionally fails because the statements are protected by the common interest
privilege. The common interest privilege is codified in California in Civil Code
section 47, subdivision (c) and provides that “a defendant who makes a statement to
others on a matter of common interest is immunized from liability for defamation so
long as the statement is made ‘without malice.’” Lundquist v. Reusser, 7 Cal. 4th
1193, 1196 (1994). Pursuant to Civil Code Section 47(c), a statement is protected if it
is made during a communication, without malice, to a person interested therein, by
one who is also interested. See Cal. Civ. Code §47(c).
The common interest privilege applies when a party is protecting its own
pecuniary or proprietary interest, the parties to the communication are in a contractual,
business or similar relationship, and the communication is made in the context of that
business or professional relationship. See Hui v. Sturbaum, 222 Cal. App. 4th 1109,
1119 (2014). Indeed, it is well-settled that “[p]arties in a business or contractual
relationship have the requisite ‘common interest’ for the privilege to apply.” King v.
United Parcel Service, Inc., 152 Cal.App.4th 426, 440 (2007). A statement is
protected by the common interest privilege where “the communicator and the
recipient have a common interest and the communication is of a kind reasonably
10 See also, e.g., Underwager, 69 F.3d at 367 (“[T]he term “lying” applies to a
spectrum of untruths including “white lies,” “partial truths,” “misinterpretation,” and
“deception.” As a result, the statement is no more than non-actionable “rhetorical
hyperbole, a vigorous epithet used by those who considered [the appellant’s] position
extremely unreasonable.”)
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Case No: 2:16-cv-03382 JAK (SSx) – 14 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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calculated to protect or further that interest.” Family Home & Fin. Ctr., Inc. v. Fed.
Home Loan Mortg. Corp., 525 F.3d 822, 826–27 (9th Cir. 2008)
Here, the alleged slanderous statements purportedly were made to customers,
employees and vendors of Arminak and reasonably may be interpreted to relate to the
disputes concerning the sale of Arminak to Rieke-Arminak, including Plaintiffs’
subsequent employment by Arminak and their efforts to invalidate the restrictions on
their ability to engage in competitive business endeavors as set forth in the purchase
and sale agreements between the parties. (RJN, Exh. 3-6.) If Plaintiffs were engaging
or attempting to engage in prohibited competitive business activities, Defendants had
a direct and immediate interest in protecting themselves from unlawful and
unauthorized competition. Thus, to the extent that any of the alleged statements were
made to customers, employees or vendors and concern Plaintiffs’ efforts to avoid the
restrictions on competition, they were made by Defendants to protect its ongoing
business relationships and Arminak’s competitive position in the packaging industry
as well as its customers, vendors and employees who are at risk of unwittingly being
embroiled in the dispute.
The common interest privilege also applies in the employment context to
protect an employer’s statement concerning an employee’s performance. Noel v.
River Hills Wilsons, Inc., 113 Cal. App. 4th 1363, 1369 (2003) (citation omitted).
Thus, an employer’s statement accusing an employee of “poor performance” is
protected. Cuenca v. Safeway S.F. Employees Fed Credit Union, 180 Cal. App. 3d
985, 995 (1986). (“Communications . . . relating to the conduct of an employee have
been held to fall squarely within the qualified privilege for communications to
interested persons”).
Here, each of the alleged slanderous statements is also reasonably interpreted as
relating to Plaintiffs’ performance in their respective roles as executives of Arminak.
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Case No: 2:16-cv-03382 JAK (SSx) – 15 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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For this reason, they constitute non-actionable statements protected by the common
interest privilege.11
3. The Alleged Statements Are Subject To the Litigation Privilege
Plaintiffs’ third cause of action also fails as a matter of law because it is barred
by the litigation privilege. California Civil Code section 47(b) provides that
protection for a publication made in any legislative, judicial or other official
proceeding and applies “to any publication required or permitted by law in the course
of a judicial proceeding to achieve the objects of the litigation, even though the
publication is made outside the courtroom and no function of the court or its officers
is involved.” Rusheen v. Cohen, 37 Cal. 4th 1048, 1057 (2006). Significantly, the
litigation privilege “is not limited to statements made during a trial or other
proceedings, but may extend to steps taken prior thereto, or afterwards.” Id.
Here, the parties have been engaged in extensive litigation concerning the sale
of Arminak. (RJN, Exhs. 3, 4, 6.) On November 10, 2016, in an action pending in the
New York Supreme Court, Helga Arminak, et. al. vs. TriMas Corp., et. al., Index
No. 61784/2016, the Honorable Shirley Werner Kornreich issued a temporary
restraining order (“TRO”) prohibiting Plaintiffs from directly or indirectly engaging in
a Competing Business as defined in the Purchase Agreement, dated February 24,
2012, between Plaintiffs and Defendants Arminak and Rieke-Arminak. (RJN,
Exh. 7.) Thus, even if Defendants told “employees, vendors and customers [that they]
11The FAC fails to allege any facts demonstrating that Defendants’ purported conduct
was done with malice. See Lundquist, 7 Cal. 4th at 1208 (When alleged slanderous
statements fall within the purview of the common interest privilege, “the plaintiff
[bares] the burden of proving that defendant [] made the statement with malice.” The
FAC asserts a conclusory statement of malice, see FAC ¶ 44, which the Court is not
required to accept as true. See Iqbal, 556 U.S. at 664; see also Wynn v. Chanos, 75 F.
Supp. 3d 1228, 1239 (N.D. Cal. 2014) (finding that malice was not sufficiently
alleged because the Complaint did “not provide any specific allegations that would
support a finding that [the defendant] harbored serious subjective doubts as to the
validity of his assertions.”); Robomatic, Inc. v. Vetco Offshore, 225 Cal App. 3d 270,
276 (1990) (“A general allegation of malice will not suffice; plaintiff must allege
detailed facts showing defendant’s ill will towards him.”)
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Case No: 2:16-cv-03382 JAK (SSx) – 16 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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should not contact or do business with [] Plaintiffs,” as alleged, that is a true statement
which directly notifies Defendants’ “employees, vendors and customers” of the
content, force and effect of the TRO.
Moreover, because the FAC fails to include any factual context for the alleged
statements, it fails to exclude the possibility that each of the alleged communications
could reasonably relate to the TRO or to Plaintiffs’ three lawsuits challenging the
enforceability of the contract provisions restricting their ability to engage in a
competing business. As such, the Complaint fails to exclude the possibility that the
purported statements are protected by the litigation privilege, and thus, not actionable.
B. Plaintiffs’ Fourth Cause of Action for Intentional Infliction of Emotional
Distress Fails As A Matter of Law
To state a cause of action for intentional infliction of emotional distress,
Plaintiffs must allege: (1) outrageous conduct by defendants, (2) the defendants’
intention of causing or reckless disregard of the probability of causing emotional
distress, (3) the plaintiffs suffering severe or extreme emotional distress, and (4) actual
and proximate causation of the emotional distress by the defendant’s outrageous
conduct. Cote v. Henderson, 218 Cal. App. 3d 796, 805-806 (1990). Plaintiffs’ fourth
cause of action for intentional infliction of emotional distress is predicated on their
third cause of action for slander, and should be dismissed for all of the reasons stated
above. (FAC, ¶ 46.)
Moreover, Plaintiffs “cannot maintain a separate cause of action for mental and
emotional distress where the gravamen is defamation.” Dworkin v. Hustler Magazine,
Inc., 668 F. Supp. 1408, 1421 (C.D. Cal. 1987), aff’d, 867 F.2d 1188 (9th Cir. 1989).
Thus, Plaintiffs’ fourth cause of action suffers the same infirmities as their third cause
of action and should be dismissed with prejudice.
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Case No: 2:16-cv-03382 JAK (SSx) – 17 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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C. Plaintiffs’ First and Second Causes of Action for Breach of Contract
Should Also Be Dismissed
1. Plaintiffs’ First Two Causes Of Action Are Duplicative of
Claims Currently Pending in This Court
Plaintiffs’ claims for breach of their respective employment contracts should
also be dismissed because they are duplicative of claims asserted in the Contract
Complaint. The December 7th Order did not grant Plaintiffs leave to amend their
Contract Complaint, and Defendants did not challenge the sufficiency of the claims
asserted in the Contract Complaint. Plaintiffs’ fourth and sixth causes of action for
breach of their respective employment agreements in the Contract Complaint are
active claims, pending before this Court. (RJN, Exh. 2, pp. 7-13.)
Pursuant to the December 7th Order, which granted Plaintiffs leave amend their
Slander Complaint, the FAC asserts amended claims for slander and intentional
infliction of emotional distress. The FAC also adds two new causes of action for
breach of Plaintiffs’ respective employment contracts. These newly asserted causes of
action are duplicative of the claims remaining in the Contract Complaint. (RJN,
Exh. 2, pp. 7-13.) “Plaintiffs generally have ‘no right to maintain two separate actions
involving the same subject matter at the same time in the same court and against the
same defendant.” Adams v. Cal. Dep't of Health Servs., 487 F.3d 684, 689 (9th Cir.
2007), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008);
see also Lacy v. State, No. 15-16930, 2016 WL 5076057, at *1 (9th Cir. Sept. 20,
2016) (citing to Adams for the proposition that dismissal is appropriate where “‘the
causes of action and relief sought, as well as the parties or privies to the action, are the
same.’”)
Here, both versions of Plaintiffs’ breach of contract claims allege that:
(1) Defendant Arminak breached Plaintiffs’ respective employment agreements; and
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Case No: 2:16-cv-03382 JAK (SSx) – 18 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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(2) Plaintiffs are entitled to bonuses pursuant to section 4(b) of the employment
agreements, which they have not received. (FAC, ¶¶ 28, 35; RJN, Exh. 3, ¶¶ 56, 68.)
Thus, Plaintiffs have two active complaints, asserting the same causes of action, about
the same agreements, against the same Defendant, pending in the same court, before
the same judge. (RJN, Exh. 2, pp. 13, 26-7.)12
Because the first and second causes of action in the FAC are duplicative of the
first-filed Contract Complaint, they should be dismissed.
2. Alternatively, Plaintiffs’ First Two Causes of Action Should Be
Stricken As Redundant
Alternatively, Plaintiffs’ first two causes of action should be stricken as
redundant. “Under Rule 12(f), a court ‘may strike from a pleading . . . any
redundant . . . matter.’” Nguyen v. CTS Elecs. Mfg. Sols. Inc., 301 F.R.D. 337, 342
(N.D. Cal. 2014). The “function of a 12(f) motion to strike is to avoid the expenditure
of time and money that must arise from litigating spurious issues by dispensing with
those issues prior to trial.” Sidney– Vinstein v. A.H. Robins Co., 697 F.2d 880, 885
(9th Cir. 1983). “‘Redundant’ allegations are those that are needlessly repetitive or
wholly foreign to the issues involved in the action.” California Dep't of Toxic
Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002);
see also Wilkerson v. Butler, 229 F.R.D. 166, 170 (E.D. Cal. 2005) (striking causes of
action because they were duplicative of other causes of action).
Arminak will be unfairly burdened and prejudiced if it is forced to defend itself
against two versions of the same claims. In addition, the lack of clarity about the
12 Notably, Plaintiffs’ counsel has represented on multiple occasions via email that
Plaintiffs intend the FAC to be the sole operative complaint going forward. Thus,
Defendants requested that Plaintiffs stipulate that the FAC supersedes the Contract
Complaint to avoid the need to challenge these causes of action in this motion and to
avoid any confusion about the pending allegations and operative pleadings in this
matter. Plaintiffs summarily refused, and they have not dismissed the Contract
Complaint.
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Case No: 2:16-cv-03382 JAK (SSx) – 19 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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operative pleadings will unnecessarily complicate discovery, motions for summary
judgment and the trial. “The possibility that issues will be unnecessarily complicated
or that superfluous pleadings will cause the trier of fact to draw ‘unwarranted’
inferences at trial is the type of prejudice that is sufficient to support the granting of a
motion to strike.” Houston Cas. Co. v. Crum & Forster Ins. Co., No. 1:16-CV-535-
LJO-EPG, 2016 WL 4494444, at *3 (E.D. Cal. Aug. 25, 2016).
Therefore, Defendants alternatively request this Court to strike the first and
second causes of action in Plaintiffs’ FAC on the grounds that they are redundant of
claims asserted in the active and pending Contract Complaint.
D. Plaintiffs’ FAC Should Be Dismissed With Prejudice
As stated above, Plaintiffs’ FAC failed to cure the deficiencies this Court found
in their Initial Complaint with respect to the third and fourth causes of action.
Plaintiffs’ failure to correct these deficiencies is grounds for dismissing the amended
causes of action with prejudice. “A district court’s discretion to deny leave to amend
is ‘particularly broad’ where the plaintiff has previously amended.” Salameh v.
Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013); see also Abagninin v. AMVAC
Chem. Corp., 545 F.3d 733, 742 (9th Cir. 2008) (“Leave to amend may also be denied
for repeated failure to cure deficiencies by previous amendment.”) (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)). Thus, Defendants respectfully request this Court to
grant their motion and dismiss Plaintiffs’ third cause of action for slander and fourth
cause of action for intentional infliction of emotional distress with prejudice.
With respect to Plaintiffs’ first two causes of action for breach of contract,
granting leave to amend would be futile because it would not resolve the issue of
Plaintiffs’ duplicative claims in the Contract Case. Thus, Plaintiffs’ first and second
causes of action for breach of their respective employment contracts should also be
dismissed, or alternatively stricken, with prejudice. See Leadsinger, Inc. v. BMG
Case 2:16-cv-03382-JAK-SS Document 53-1 Filed 01/25/17 Page 25 of 26 Page ID
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Case No: 2:16-cv-03382 JAK (SSx) – 20 –
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO
DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP 12(b)(6)); MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF
ACTION AS REDUNDANT (FRCP 12(f))
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Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008) (Leave to amend should be denied
when allowing an amendment would be futile.)
IV. CONCLUSION
For the foregoing reasons, Defendants respectfully request the Court to grant
this Motion to Dismiss Plaintiffs’ FAC in its entirety, or alternatively to dismiss
Plaintiffs’ third and fourth causes of action and grant Defendants’ Motion to Strike the
first and second causes of action in its entirety. Defendants further request that their
Motion be granted with prejudice and without leave to amend.13
DATED: Janaury 25, 2017 REED SMITH LLP
By: /s/ Carla M. Wirtschafter
James L. Sanders
Kathyleen O’Brien
Carla M. Wirtschafter
Attorneys for Defendants
Arminak & Associates, LLC,
Rieke-Arminak Corporation,
Mark Box, and David Pritchett
13If the Court grants Plaintiffs leave to amend, Defendants respectfully request
30 days to respond to any amended complaint that is filed.
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Case No: 2:16-cv-03382 JAK (SSx) – 1 –
[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (FRCP 12(b)(6));
MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF ACTION AS REDUNDANT (FRCP 12(f))
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James L. Sanders (SBN 126291)
Email: jsanders@reedsmith.com
Kathyleen O’Brien (SBN 94218)
Email: kobrien@reedsmith.com
Carla M. Wirtschafter (SBN 292142)
Email: cwirtschafter@reedsmith.com
REED SMITH LLP
1901 Avenue of the Stars, Suite 700
Los Angeles, CA 90067-6078
Telephone: +1 310 734 5200
Facsimile: +1 310 734 5299
Attorneys for Defendants
Arminak & Associates, LLC,
Rieke-Arminak Corporation,
Mark Box and David Pritchett
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
HELGA ARMINAK, an individual; and
ARMIN ARMINAK, an individual,
Plaintiffs,
vs.
ARMINAK & ASSOCIATES, LLC, a
Delaware limited liability company;
RIEKE-ARMINAK CORPORATION a
Delaware corporation; and MARK BOX,
an individual; DAVID PRITCHETT, an
individual, and Does 1 through 10,
inclusive,
Defendants.
Case Number: 2:16-cv-03382 JAK
(SSx)
[PROPOSED] ORDER GRANTING
DEFENDANTS ARMINAK &
ASSOCIATES, LLC, RIEKE-
ARMINAK CORPORATION, MARK
BOX AND DAVID PRITCHETT’S
MOTION TO DISMISS PLAINTIFFS
HELGA ARMINAK AND ARMIN
ARMINAK’S FIRST AMENDED
COMPLAINT FOR FAILURE TO
STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED (FRCP
12(b)(6)); MOTION TO STRIKE THE
FIRST AND SECOND CAUSES OF
ACTION IN PLAINTIFFS’ FIRST
AMENDED COMPLAINT AS
REDUNDANT (FRCP 12(f))
[Filed Concurrently With Notice of
Motion; Memorandum of Points and
Authorities in Support; Request for
Judicial Notice; Notice Of Lodging
Exhibits to Request for Judicial Notice]
Date: April 3, 2017
Time: 8:30 a.m.
Place: Room 10B
FAC Filed: December 21, 2016
Honorable John A. Kronstadt
Case 2:16-cv-03382-JAK-SS Document 53-2 Filed 01/25/17 Page 1 of 2 Page ID #:1103
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Case No: 2:16-cv-03382 JAK (SSx) – 2 –
[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED
COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (FRCP 12(b)(6));
MOTION TO STRIKE THE FIRST AND SECOND CAUSES OF ACTION AS REDUNDANT (FRCP 12(f))
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[PROPOSED] ORDER
Defendants Arminak & Associates, LLC, Rieke-Arminak Corporation, Mark
Box and David Pritchett’s (collectively, “Defendants”) Motion to Dismiss Plaintiffs
Helga Arminak and Armin Arminak’s (“Plaintiffs”) First Amended Complaint
pursuant to Federal Rule of Civil Procedure, Rule 12(b)(6), and Motion to Strike
Plaintiffs’ First and Second Causes of Action as redundant pursuant to Federal Rule of
Civil Procedure, Rule 12(f), came on for hearing on April 3, 2017 at 8:30 a.m. before
this Court. The Court, having considered the papers and arguments submitted by the
parties, and good cause appearing HEREBY ORDERS THAT:
Defendants’ Motion to Dismiss is GRANTED. The Court finds that Plaintiffs’
First and Second Causes of Action are duplicative of claims pending in this action in
the complaint filed in Case No. 2:16-cv-03519 prior to consolidation. Because
granting leave to amend would be futile, Plaintiffs’ First and Second Causes of Action
are dismissed with prejudice.
The Court further finds that Plaintiffs’ Third and Fourth Causes of Action fail to
state a claim upon which relief can be granted. Furthermore, because both of these
claims are not cognizable under California law and Plaintiffs have already had one
opportunity to amend these claims, they are dismissed with prejudice.
IT IS FURTHER ORDERED THAT Defendants Request for Judicial Notice
in Support of their motion to dismiss is GRANTED.
IT SO ORDERED.
DATED: ____________________
Honorable John A. Kronstadt
United States District Court Judge
Case 2:16-cv-03382-JAK-SS Document 53-2 Filed 01/25/17 Page 2 of 2 Page ID #:1104
