Stephen Yagman v. Ferguson Enterprises, Inc. et al

NOTICE OF MOTION AND MOTION to Dismiss Case Or, In The Alternative, To Quash Service And Strike

C.D. Cal.January 30, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANTS’ MOTION TO DISMISS H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 HOLLAND & KNIGHT LLP Vince Farhat (SBN 183794) vince.farhat@hklaw.com Kristina S. Azlin (SBN 235238) kristina.azlin@hklaw.com 400 South Hope Street, 8th Floor Los Angeles, California 90071 Telephone 213.896.2400 Facsimile 213.896.2450 Attorneys for Defendants Ferguson Enterprises, Inc.; Eric Joachim; Wolsely Investments, Inc.; and BSH Home Appliances Corporation UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA LOS ANGELES DIVISION STEPHEN YAGMAN, an individual, Plaintiff, vs. FERGUSON ENTERPRISES, INC.; ERIC JOACHIM, an individual; WOLSELY INVESTMENTS, INC., BOSCH GmbH; BSH HOME APPLIANCES CORPORATION and DOES 1 through 20, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 16-cv-09536 (FMO) (SSx) DEFENDANTS FERGUSON ENTERPRISES, INC.; ERIC JOACHIM; WOLSELY INVESTMENTS, INC.; AND BSH HOME APPLIANCES CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT OR, IN THE ALTERNATIVE, TO QUASH SERVICE AND STRIKE; MEMORANDUM OF POINTS AND AUTHORITIES; [PROPOSED] ORDER [Declaration of Kristina Azlin; Request For Judicial Notice filed concurrently] Date: March 2, 2017 Time: 10:00 a.m. Dept: 6D Complaint Filed: December 27, 2016 Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 1 of 35 Page ID #:21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE that on March 2, 2017, at 10:00 a.m., or as soon thereafter as the matter may be heard, in Courtroom 6D of the above-entitled Court, located at United States Courthouse, 350 W. 1st Street, 6th Floor, Los Angeles, California 90012, defendants Ferguson Enterprises, Inc., Eric Joachim, Wolseley Investments, Inc., and BSH Home Appliances Corporation1 (collectively the “Defendants” or “Moving Defendants”), by and through their counsel of record, Holland & Knight, will and hereby do move this Court under Federal Rule of Civil Procedure Rules 8, 9(b), 12(b)(5), 12(b)(6) for an Order dismissing the Complaint brought by Plaintiff Stephen Yagman (“Yagman” and/or “Plaintiff”), on the grounds that Yagman has failed to properly serve any Defendant and that the Complaint fails to state any claim upon which relief may be granted. In the alternative, the Court should strike Yagman’s claims for punitive damages and class allegations per Rule 12(f), order that Yagman provide a more definite statement of his claims per Rule 12(e), and quash service, to the extent Yagman claims it is effective, as to the Moving Defendants. Yagman’s First and Second Causes of Action fail to state facts sufficient to constitute a cause of action. Plaintiff appears to have attempted to state claims for breach of warranty but has failed to identify the product at issue, when such product was allegedly purchased, what warranties allegedly apply to such product, or how it purportedly violates any applicable warranty. Indeed, the Complaint alleges no facts regarding the existence or terms of any alleged warranty and it is unclear whether the asserted warranty was express or implied. 1 This Motion is not filed on behalf of the German company identified in the Complaint as “BOSCH GmbH”, which has no known involvement with the type of product at issue in this case, i.e., “kitchen appliances.” Plaintiff does not explain why “BOSCH GmbH” was named or why this Court would have jurisdiction over that foreign company; as such, it is not apparent from the Complaint what connection that company is believed to have to Plaintiff’s claims. (See Complaint ¶ 3) In any event, BSH Home Appliances Corporation has not, and is not authorized to, accept service of any legal papers on behalf of BOSCH GmbH, which is a company located in Germany and, therefore, must be served pursuant to the requirements of the Hague Convention. See., e.g., U.S. ex rel. Walterspiel v. Bayer AG, 639 Fed. Appx. 164 (4th Cir. 2016) (Recognizing Germany as a signatory of the Hague Service Convention and discussing service issues related thereto). Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 2 of 35 Page ID #:22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 Yagman’s Third Cause of Action for what appears to be “misrepresentation” fails to state a cause of action because it fails to state facts with sufficient particularity, as required by Federal Rule of Civil Procedure 9(b). For instance, although the Complaint alleges that there were “material misrepresentations” [Compl. ¶ 18], it sets forth none of the information required to state such a claim. It does not identify the alleged “misrepresentations” that Plaintiff complains of, when they were made, where were they made, who they were made by or to whom they were made, and, critically, it does not explain why any of such (unspecified) representations are allegedly false. The Complaint does not provide any of this detail, which is indispensable to a fraud claim. Yagman’s Fourth Cause of Action for alleged intentional infliction of emotional distress fails to state facts sufficient to constitute such a cause of action; for example, Plaintiff has not alleged any conduct which could be plausibly construed as “so extreme as to exceed all bounds of that usually tolerated in a civilized community,” see Hughes v. Pair, 46 Cal. 4th 1035, 1051 (2009), or that would otherwise cause a reasonable community member, hearing what defendant did, to feel “resentment” and exclaim “Outrageous!” Rest.2d Torts § 46, comm. d; see Cochran v. Cochran 65 Cal. App. 4th 488, 494 (1998). Likewise, Plaintiff has not set forth any facts to support a claim that he is actually suffering from “severe” emotional distress, or that any such distress could have been caused by the Moving Defendants. Yagman’s Fifth Cause of Action fails to state a claim because it fails to allege facts supporting any of the elements of a claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) with sufficient particularity, as required by Federal Rule of Civil Procedure 9(b). Further, to the extent the Court does not summarily dismiss the Complaint, Moving Defendants also move to strike Yagman’s class allegations on the grounds that Yagman is a disbarred lawyer and may not act as class counsel pro se, and also Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 3 of 35 Page ID #:23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 move to strike Yagman’s prayer for punitive damages pursuant to Rule 12(f), on the grounds that the Complaint fails to plead facts sufficient to justify such a recovery. The Motion is based upon this Notice of Motion; the accompanying Memorandum of Points and Authorities; the Request For Judicial Notice (“RJN”); the Declaration of Kristina Azlin (“Azlin Decl.”); the pleadings, papers and records on file in this action; and upon such oral argument and other evidence as the Court may receive at the time of the hearing on the Motion. This motion is made following multiple letters requesting that the parties meet and confer and a telephonic conference between counsel for the Moving Defendants and Yagman pursuant to L.R. 7-3 which took place on Wednesday, January 19, 2017. (Azlin. Decl. ¶¶ 3-8) DATED: January 30, 2017 HOLLAND & KNIGHT LLP By: //S// Vince Farhat and Kristina Azlin Vince Farhat Kristina S. Azlin Attorneys for Defendants Ferguson Enterprises, Inc., Eric Joachim, Wolseley Investments, Inc., and BSH Home Appliances Corporation Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 4 of 35 Page ID #:24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 TABLE OF CONTENTS I. YAGMAN’S COMPLAINT SHOULD BE DISMISSED OR SERVICE SHOULD BE QUASHED BECAUSE THE SUMMONS AND COMPLAINT WERE NOT PROPERLY SERVED. ........................... 3 II. YAGMAN’S COMPLAINT SHOULD BE DISMISSED IN ITS ENTIRETY BECAUSE IT FAILS TO STATE ANY CLAIMS AGAINST THE DEFENDANTS. .................................................................. 5 A. Yagman Fails to State a Factual or Legal Basis for His Breach of Warranty Claims (Claims 1 and 2). ...................................................... 5 B. Yagman Fails to State Any Factual Basis for Fraud (Claim 3). ........... 8 C. Yagman Fails to State a Factual or Legal Basis for Intentional Infliction of Emotional Distress (Claim 4). ........................................ 11 D. Yagman Fails to State Facts Sufficient to Support a RICO Claim (Claim 5). ............................................................................................ 13 III. YAGMAN’S CLASS ALLEGATIONS SHOULD BE STRICKEN BECAUSE YAGMAN HAS INTENTIONALLY DEFIED THE COURT’S REPEATED INSTRUCTION THAT HE MAY NOT SERVE AS CLASS COUNSEL. .................................................................. 18 IV. YAGMAN’S CLAIM FOR PUNITIVE DAMAGES SHOULD BE STRICKEN. .................................................................................................. 19 A. Punitive Damages Are Not Recoverable under the RICO Act. .......... 19 B. Punitive Damages Are Not Recoverable for Breach of Warranty. ..... 20 C. Yagman Has Not Otherwise Sufficiently Stated Any Facts Showing Oppression, Fraud or Malice. .............................................................. 20 V. YAGMAN SHOULD ALSO BE ADMONISHED TO COMPLY WITH RULE 8 AND REFRAIN FROM IMPROPER SHOT-GUN PLEADING ................................................................................................... 21 VI. CONCLUSION ............................................................................................. 22 Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 5 of 35 Page ID #:25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 TABLE OF AUTHORITIES Page(s) Cases Am. Suzuki Motor Corp. v. Superior Court, 37 Cal. App. 4th 1291 (1995) ................................................................................... 7 American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, 96 Cal. App. 4th 1017 (2002) ................................................................................. 20 Anderson v. District Bd. of Trustees of Cent. Florida Community College, 77 F.3d 364 (11th Cir. 1996) .................................................................................. 21 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................................. 5 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................................................. 5 Bingham v. Zolt, 823 F. Supp. 1126 (S.D.N.Y. 1993), aff’d, 66 F.3d 553 (2d Cir. 1995) ........................................................................... 19 Blake v. Dierdorjf, 856 F.2d 1365 (9th Cir. 1988) ................................................................................ 16 Bly-Magee v. California, 236 F.3d 1014 (9th Cir. 2001) .................................................................................. 8 Boyle v. United States, 556 U.S. 938 (2009) ............................................................................................... 15 Brousseau v. Jarrett, 73 Cal. App. 3d 864 ................................................................................................ 21 Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158 (2001) ............................................................................................... 15 Cholakyan v. Mercedes-Benz USA, LLC, 796 F. Supp. 2d 1220 (C.D. Cal. 2011) .................................................................... 7 Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 6 of 35 Page ID #:26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 Clark v. McClurg, 215 Cal. 279 (1932) ................................................................................................ 20 Cochran v. Cochran 65 Cal. App. 4th 488 (1998) ................................................................................... 12 Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242 (9th Cir. 1990) .................................................................................... 5 Dammon v. Folse, 846 F. Supp. 36 (E.D. La. 1994) ............................................................................ 20 Daugherty v. American Honda Motor Co., Inc., 144 Cal. App. 4th 824 (2006) ................................................................................. 10 Destfino v. Kennedy, Case No. CV-F-08-1269-LJO-DLB, 2008 WL 4810770 (E.D. Cal., Nov. 3, 2008) ........................................................ 21 Fletcher v. Western Life Insurance Co., 10 Cal. App .3d 376, 397 (1970) ............................................................................ 13 Garamendi v. Golden Eagle Ins. Co., 128 Cal. App. 4th 452 (2005) ................................................................................. 13 Garza v. American Home Mortg., 2009 WL 1139594 (E.D. Cal. 2009) ...................................................................... 10 In re Gilead Scis. Secs. Litig., 536 F.3d 1049 (9th Cir. 2008) .................................................................................. 5 In re Glenfed, Inc. Sec. Litig., 42 F.3d 1541 (9th Cir. 1994) .................................................................................... 8 Grimmett v. Brown, 75 F.3d 506 (9th Cir. 1996) .................................................................................... 16 HJ Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229 (1989) ............................................................................................... 16 Howard v. Am. Online Inc., 208 F.3d 741 (2000) ............................................................................................... 17 Hughes v. Pair, 46 Cal. 4th 1035 (2009) .......................................................................................... 12 Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 7 of 35 Page ID #:27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 In re Iphone 4S Consumer Litigation, Case No. C 12-1127 CW, 2014 WL 589388 (N.D. Cal., Feb. 14, 2014) ......................................................... 11 Iron Workers Local Union No. 17 Ins. Fund and its Trustees v. Philip Morris Inc., 29 F. Supp. 2d 801 (N.D. Ohio 1998) .................................................................... 19 Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal. App. 3d 205 .................................................................................. 10 Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353 (9th Cir. 2005) .................................................................................. 15 Long v. Hewlett-Packard Co., Case No. C 06-02816 JW, 2007 WL 2994812 (N.D. Cal., July 27, 2007) ....................................................... 11 Lopez v. Dean Witter Reynolds, Inc., 591 F. Supp. 581 (N.D. Cal. 1984) ......................................................................... 15 Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) ................................................................................ 10 Mintz v. Blue Cross of Calif., 172 Cal. App. 4th 1594 (2009) ............................................................................... 13 Moore v. Kayport Package Exp., Inc., 885 F.2d 531 (9th Cir. 1989) .................................................................................. 17 Morgan v. Harmonix Music Sys., Inc., Case No. C08-5211 BZ, 2009 WL 2031765 (N.D. Cal., July 30, 2009) ....................................................... 11 Natural Resources Defense Council, Inc. v. South Coast Air Quality Management Dist., 2010 WL 939990 (C.D. Cal., Jan. 7, 2010) .............................................................. 5 Neubronner v. Milken, 6 F.3d 666 (9th Cir. 1993) ........................................................................................ 8 New York Mercantile Exchange v. Verrone, No. 96-CV-8988, 1998 WL 811791 (S.D.N.Y. Nov. 19, 1998) ............................ 19 Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 8 of 35 Page ID #:28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 Odom v. Microsoft Corp., 486 F.3d 541 (9th Cir. 2007) (en banc) .................................................................. 16 Palmer v. Ted Stevens Honda, Inc., 193 Cal. App. 3d 530 (1987) .................................................................................. 20 Philippine Nat’l Oil Co. v. Garrett Corp., 724 F.2d 803 (9th Cir. 1984) .................................................................................... 7 Pisano v. American Leasing, 146 Cal. App. 3d 194 (1983) .................................................................................... 5 Resolution Trust Corp. v. S & K Chevrolet, 868 F. Supp. 1047 (C.D. Ill. 1994) ......................................................................... 19 Rivero v. Thomas, 86 Cal. App. 2d 225 (1948) .................................................................................... 20 Sanford v. Member Works, Inc., 625 F.3d 550 (9th Cir. 2010) ...................................................................... 14, 17, 18 Schreiber Distributing Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393 (9th Cir. 1986) .......................................................................... 14, 17 Scott v. Metabolife Int’l, Inc., 115 Cal. App. 4th 404 (2004) ................................................................................... 5 Sedima, SPRL v. Imrex Co., Inc., 473 U.S. 479 (1985) ............................................................................................... 13 Standard Chlorine of Delaware, Inc. v. Sinibaldi, 821 F. Supp. 232 (D. Del. 1992) ............................................................................ 20 Stephan Yagman v. John Owen Brennen, Case No. CV 15-1031, TJH (Ex) Dkt. No. 21 (April 6, 2015 Order) .................... 19 Sw. Marine, Inc. v. Triple A Mach. Shop, Inc., 720 F. Supp. 805 (N.D. Cal. 1989) ......................................................................... 19 Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007) .................................................................................... 8 Tipton v. Zimmer, 2016 WL 3452744 (C.D. Cal., June 23, 2016) ..................................................... 6, 7 Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 9 of 35 Page ID #:29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vi DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 Tomaselli v Transamerica Ins. Co., 25 Cal. App. 4th 1269 (1994) ................................................................................. 21 In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Pracs. & Prods. Liab. Litig., 754 F. Supp. 2d 1145 (C.D. Cal. 2010) .................................................................... 7 Turner v. Cook, 362 F.3d 1219 (9th Cir. 2004) ................................................................................ 16 U.S. v. Juvenile Male, 118 F.3d 1344 (9th Cir. 1997) .......................................................................... 14, 18 United States v. Persico, 832 F.2d 705 (2d Cir. 1987) ................................................................................... 16 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) .................................................................................. 9 Weisbuch v. Cnty. of Los Angeles, 119 F.3d 778 (9th Cir. 1997) .................................................................................... 5 In re Wellpoint, Inc. Out-Of-Network UCR Rates Litig., 903 F. Supp. 2d 880 (C.D. Cal. 2012) .................................................................... 16 Whitson v. Bumbo, 2009 WL 1515597 (N.D. Cal. 2009) ........................................................................ 9 Yagman v. Bray, Case No. CV 15-5512 FMO (JCx), Dkt. No. 8 (C.D. Cal., July 31, 2015) ............................................................... 12, 18 Yagman v. Gabbert, No. 2:14-cv-06989-FMO-MAN (C.D. Cal., May 14, 2015) .................................. 14 Yagman v. Garcetti, Case No. 14-56223, 2017 WL 242562 (9th Cir. Jan. 20, 2017) ............................ 14 Yan v. Xiong, 2006 WL 3191173 (E.D. Cal., Nov. 2, 2006) ........................................................ 17 Yau v. Santa Margarita Ford, Inc., 229 Cal. App. 4th 144 (2014) ................................................................................. 11 Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 10 of 35 Page ID #:30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vii DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 Yurick v. Sup. Ct., 209 Cal. App. 3d 1116 (1989) ................................................................................ 13 Zazzali v. Swenson, Case No. 1:12-cv-224-EJL-MHW, 2013 WL 6095361 (D. Idaho Jan. 25, 2013) ......................................................................................... 16 Statutes 18 U.S.C. § 1961(4) ................................................................................................................. 15 § 1961(5) ........................................................................................................... 16, 17 § 1962(c) ..................................................................................................... 13, 15, 18 1 White & Summers, Uniform Commercial Code § 9-8 at 523 (4th ed. 1995) ....................................................................................... 8 Cal. Civ. Code § 1791.1 .................................................................................................................... 8 § 3294 ........................................................................................................... 2, 20, 21 Cal. Civ. Proc. Code § 415.10 .................................................................................................................... 4 § 415.20 ............................................................................................................ 2, 3, 4 § 415.30 .................................................................................................................... 4 § 416.10 .................................................................................................................... 3 Cal. Comm. Code § 2313 ................................................................................................................. 5, 10 § 2314 ....................................................................................................................... 7 § 2315 ....................................................................................................................... 7 § 2714 ..................................................................................................................... 10 Other Authorities 4 Witkin, Summary of California Law (10th ed. 2005) Sales, § 51 ............................ 20 CACI 1600 ................................................................................................................... 11 Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 11 of 35 Page ID #:31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 viii DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 Federal Ruls of Civil Procedure Rule 4 ........................................................................................................... 1, 2, 3, 4 Rule 8 ..................................................................................................................... 21 Rule 9(b) ......................................................................................................... passim Rule 12(b)(5) ........................................................................................................... 3 Rule 12(b)(6) ........................................................................................................... 2 Rule 12(e) .............................................................................................................. 22 Rule 12(f) ........................................................................................................... 2, 19 Rest.2d Torts § 46, comm. d ........................................................................................ 12 Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 12 of 35 Page ID #:32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 MEMORANDUM OF POINTS AND AUTHORITIES The Court should summarily dismiss Plaintiff Stephen Yagman’s Complaint. He has failed to serve any of the Defendants properly and has failed to plead any necessary facts supporting his claims. Yagman, who was disbarred from practicing law in California following his convictions on federal money laundering, bankruptcy fraud and tax evasion charges,2 also improperly seeks to certify and represent an expansive class of all “persons who were sold defective or damages[sic] products by defendants.” (Compl. ¶ 67.) Such class allegations should be stricken. As this Court has already held in other cases, Yagman cannot act as counsel or a pro se class representative because he is not permitted to practice law in California and cannot state claims on behalf of anyone other than himself. Yet, Yagman continues to burden the Court with claims like this. Since 2014 alone Yagman has initiated almost 30 actions as a pro se plaintiff in the Federal Courts. (See RJN Exhibits C-E) Most of these actions have included an improper attempt to state RICO claims on behalf of a broad-reaching class. (Id.) (identifying most cases with Code No. 470, the Civil Cover Sheet reference number for RICO claims). The Complaint in this action suffers from a number of fundamental defects. First, Yagman has failed to serve any of the Defendants properly. Yagman has not “delivered” a copy of the Summons and Complaint to any Defendant as required by Fed. R. Civ. Proc. 4 and California law. Nor has he effectuated substitute service. The only indication of service on the entity Defendants is that he may have mailed a copy of the Summons and Complaint to Corporation Service Co. in Sacramento California, with no specification as to who the mailing was directed to or which entity was allegedly being served, and may have mailed another copy to one of the in-state entities. But, such mailings do not comply with Rule 4, nor is it acceptable under California law. Likewise, as to Defendant Eric Joachim, Yagman’s service 2 See Stephen Yagman’s California State Bar profile, located at http://members.calbar.ca.gov/fal/Member/Detail/69737, which includes, specifically, a December 22, 2010, Amended Recommendation of Summary Disbarment. See Request for Judicial Notice, Exhibits A and B. Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 13 of 35 Page ID #:33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 efforts are unclear and he has not effectuated either personal or substitute service as required under Rule 4 or California law. Simply put, none of the Defendants has yet been properly served. In any event, Defendants file this Motion in an attempt to prevent unnecessary costs and expenses related to Yagman improperly seeking default. Second, Yagman’s Complaint should be dismissed because it fails to state any actionable claims. Yagman asserts that he purchased a set of kitchen appliances that he claims were either sold or manufactured by the Defendants and that one of those products “had a defect and/or damage.” (See Compl. at ¶ 6.) Yagman does not identify when the purchase took place, which product was allegedly damaged or defective, or even what the “defect and/or damage” was. Nonetheless, he purports to assert claims for breach of various warranties that are not described with any sort of detail (Claims 1 and 2), a vague claim of “misrepresentation” without identifying any false statements made (Claim 3), a threadbare and preposterous claim of intentional infliction of emotional distress (Claim 4), and allegations that in selling him a product that is “defective and/or damaged,” the distributor, a retail store, and its sales representative have allegedly all collectively - and individually - violated the Racketeer Influenced Corrupt Organizations Act (“RICO”) as purported quasi- criminal enterprises (Claim 5). The Complaint fails to set forth a single fact that would support these serious charges. As such, the Court should dismiss the claims under Rule 12(b)(6). Third, to the extent the Court does not dismiss Yagman’s Complaint in its entirety, it should strike Yagman’s class allegations and request for punitive damages pursuant to Rule 12(f). Yagman is not a lawyer capable of representing a class and the Complaint does not state any facts that could support a finding of oppression, fraud or malice under California Civil Code § 3294. Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 14 of 35 Page ID #:34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 I. YAGMAN’S COMPLAINT SHOULD BE DISMISSED OR SERVICE SHOULD BE QUASHED BECAUSE THE SUMMONS AND COMPLAINT WERE NOT PROPERLY SERVED. Federal Rule of Civil Procedure 4(e) provides that a Plaintiff may serve a Summons and Complaint in accordance with State law or by “(A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.” Yagman has not effectuated service upon any Defendant pursuant to Rule 4. Therefore, the Complaint should be dismissed pursuant to Rule 12(b)(5) because Yagman has not properly served it upon any named Defendant. In the alternative, the Court should quash any attempt by Yagman to assert that the Defendants have been served. As to the corporate entity Defendants, Yagman’s service efforts apparently consisted of mailing one copy of the Summons and Complaint to Corporation Service Co. in Sacramento, with no specification whatsoever as to which entity was purportedly being served, and possibly mailing another copy to one of the entities in- state. This is insufficient. It does not constitute “delivering a copy to an authorized agent” under Rule 4(e)(2)(C), nor does it comport with California law. See Cal. Prac. Guide Fed. Civ. Pro. Before Trial Ch. 5-F. (“The person claiming service by personal delivery must have delivered the papers to defendant personally. Process cannot be left with others to deliver to defendant, even if they agree to do so.”) Indeed, Code of Civil Procedure section 416.10 requires that Yagman either “deliver[] a copy of the summons and of the complaint . . . [t]o the person designated as agent for service of process”, or, if that cannot be done with “reasonable diligence,” section 415.20 allows for substitute service by delivering a copy to the company, leaving it with a qualified person, and thereafter mailing a copy of the Summons and Complaint to the address where it was left. Code of Civ. Proc. § Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 15 of 35 Page ID #:35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 415.20. Service exclusively by mail is permissible under California law only in two circumstances: (1) where it is accompanied by an Acknowledgement of Receipt of Summons form pursuant to Cal. Civ. Proc. Code § 415.30, or (2) where the service is on “a person outside this state” and the mailing is sent out of state with a return- receipt requested. Id. at § 415.40. Yagman did not follow any of these procedures. His mailing of the Summons and Complaint is insufficient to serve any of the four different Moving Defendants under any applicable rule. Similarly, Yagman has not effectuated service on Defendant Joachim. Fed. R. Civ. Proc. 4(e) requires that service be either delivered personally or to an authorized agent, or left at Mr. Joachim’s “usual abode” with a competent individual. Likewise, Section 415.10 of the California Code of Civil Procedure provides that “[a] summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served.” (emphasis added). Yagman did not file a proof of service showing that he delivered a copy of the Summons and Complaint to Mr. Joachim, to an authorized agent, or to his home. Nor has Yagman effectuated substitute service on Mr. Joachim under California Code of Civil Procedure § 415.20, which provides: If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, . . . a summons maybe served by leaving a copy of the summons and complaint at the person’s . . . usual place of business . . . and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing. As such, Mr. Joachim has not been served. The Court should therefore either dismiss the Complaint or quash service and order Yagman to comply with proper service rules. Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 16 of 35 Page ID #:36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 II. YAGMAN’S COMPLAINT SHOULD BE DISMISSED IN ITS ENTIRETY BECAUSE IT FAILS TO STATE ANY CLAIMS AGAINST THE DEFENDANTS. “A motion to dismiss for failure to state a claim is properly granted where the plaintiff fails to plead a cognizable legal theory, or where the plaintiff fails to plead sufficient facts under a cognizable legal theory.” Natural Resources Defense Council, Inc. v. South Coast Air Quality Management Dist., 2010 WL 939990 at *7 (C.D. Cal., Jan. 7, 2010) (dismissing complaint). Thus, to avoid dismissal, a complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, 561-62 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. See Twombly, 550 U.S. at 570; In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). And even where facts are accepted as true, “a plaintiff may plead [him]self out of court” if he “plead[s] facts which establish that he cannot prevail on his . . . claim.” Weisbuch v. Cnty. of Los Angeles, 119 F.3d 778, 783, n.1 (9th Cir. 1997) (quotation marks and citation omitted). A Court need not allow amending a complaint if “it determines that the pleading could not possibly be cured by allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). A. Yagman Fails to State a Factual or Legal Basis for His Breach of Warranty Claims (Claims 1 and 2). An action for breach of warranty requires a showing that there was a sale of goods, that the defendant expressly or impliedly warranted the goods sold, and that there was a breach of that warranty that caused plaintiff to suffer harm. Scott v. Metabolife Int’l, Inc., 115 Cal. App. 4th 404, 415-416 (2004); Pisano v. American Leasing, 146 Cal. App. 3d 194, (1983); Cal. Comm’l Code § 2313 et seq. Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 17 of 35 Page ID #:37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 Yagman’s first and second causes of action should be dismissed because the Complaint wholly fails to set forth even the basic information that the Moving Defendants - and this Court - require in order to evaluate the legal or factual sufficiency of a warranty claim. Yagman does not identify the allegedly non- conforming product, other than to state that it is part of a set of “kitchen appliances,” does not state when he purchased such appliance, does not explain where (or from whom) he allegedly purchased the appliance from (other than the “Defendants”), does not specify the source or terms of the alleged warranties, or whether the warranties he believes were breached were express or implied, does not explain what is purportedly wrong with the appliance (other than to say that “[o]ne of these appliances had a defect and/or damage, so as to render it not suitable for sale or purchase.” [Compl. ¶ 6]), and does not explain how any of the Moving Defendants, much less all of them, purportedly breached a “warranty” by either failing to repair and/or replace the product. (Compl. ¶¶ 5-17) Such failures are fatal to his warranty claims. Further, because of these basic pleading deficiencies, Defendants are prevented from responding with any degree of detail to Yagman’s warranty claims - and are not obligated (or able) to set forth every single possible legal bar that might apply. For example, to the extent that Yagman is claiming that an express warranty was breached, such a claim “requires that a plaintiff identify a specific and unequivocal written statement from the manufacture that demonstrates a guarantee that the manufacture failed to uphold.” Tipton v. Zimmer, 2016 WL 3452744, *5 (C.D. Cal. June 23, 2016) (citing Yastraub v Apple, Inc., 2016 WL 1169424, *7 (N.D. Cal. Mar. 25, 2016)). The Complaint does not describe any written statements or guarantees. Moreover, an express warranty claim would necessarily sound in contract and would therefore be limited to the terms of the express warranty itself and the parties to that contract. To that end, the warranty claims would not lie against all “Defendants,” as Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 18 of 35 Page ID #:38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 is currently plead.3 And such a claim would not lie against any of the Defendants unless those Defendants actually failed to honor the terms of their warranty by, for example, failing to repair or replace the product as promised after Yagman made demands for such repair or replacement pursuant to the terms of the warranty. See, e.g., Philippine Nat’l Oil Co. v. Garrett Corp., 724 F.2d 803, 808 (9th Cir. 1984) (stating that “a repair or replace remedy fails of its essential purpose only if repeated repair attempts are unsuccessful within a reasonable time”) (emphasis omitted); see also In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Pracs. & Prods. Liab. Litig., 754 F. Supp. 2d 1145, 1179 (C.D. Cal. 2010) (stating that “Plaintiffs who neither sought repairs pursuant to the recalls nor sought repairs … may not pursue a claim for breach of express warranty based on the written warranty”). Likewise, to the extent Yagman is attempting to assert a breach of an alleged implied warranty (such as the implied warranty of merchantability or fitness for a particular purpose),4 the Complaint fails to plead any facts showing the contours of such a warranty or a breach thereof. Such implied warranties do not require that products be free from all defects and/or damage, as Yagman seems to claim. Nor do they “impose a general requirement that goods precisely fulfill the expectation of the buyer. Instead, it provides for a minimum level of quality.” Am. Suzuki Motor Corp. v. Superior Court, 37 Cal. App. 4th 1291, 1296 (1995), as modified on denial of reh’g (Sept. 21, 1995). For example, the “basic inquiry” in a breach of an implied warranty of merchantability claim is whether the plaintiff can show that the product “did not possess even the most basic degree of fitness for ordinary use.” Cholakyan v. Mercedes-Benz USA, LLC, 796 F. Supp. 2d 1220, 1241 (C.D. Cal. 2011); see also 3 No warranty claim could lie against Defendant Joachim because the Complaint does not describe how he acted outside the scope of his employment, what his job duties entailed, or even that Defendant Joachim did anything at all with respect to a warranty. See, e.g., Tipton, 2016 WL 3452744 at *5 (rejecting allegations of an individual defendant’s warranty liability). 4 California recognizes two types of implied warranties: An implied warranty of merchantability that the goods “shall be merchantable” and fit for their ordinary purpose. [Comm’l C. § 2314]; and an implied warranty of fitness that the goods will be fit for a particular purpose [Comm’l C. § 2315]. Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 19 of 35 Page ID #:39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 1 White & Summers, Uniform Commercial Code, § 9-8 at 523 (4th ed. 1995) (“An item can ‘pass without objection’ and yet be considerably short of perfection”). Here, as noted above, the Complaint alleges no facts whatsoever about the subject appliance, its intended purpose, relative degree of fitness, or any functionality of the product at all.5 Yagman vaguely alleges that one out of a set of products that he received was “defective and/or damaged.” This is simply not enough to state any plausible warranty claim, whether express or implied. B. Yagman Fails to State Any Factual Basis for Fraud (Claim 3). Where a complaint includes allegations of fraud, Federal Rule of Civil Procedure 9(b) requires that those allegations be pled with particularity. Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.”); see also Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) (“allegations of fraud must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong.”)(emphasis added). To comply with 9(b)’s particularity requirement, the complaint must set out the “time, place and specific content of the false representations as well as the identities of the parties to the misrepresentations,” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007), and “must set forth what is false or misleading about a statement, and why it is false.” In re Glenfed, Inc. Sec. Litig., 42 F.3d 1541, 1547-48 (9th Cir. 1994); Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993) (same). “Moreover, where a plaintiff pleads allegations of fraud against more than one defendant, Rule 9(b) ‘requires that a plaintiff plead with sufficient particularity attribution of the alleged misrepresentations or omissions to 5 Further, “[t]he duration of the implied warranty of merchantability and where present the implied warranty of fitness shall be coextensive with an express warranty which accompanies the consumer goods[, but] ... in no event shall such implied warranty have a duration of less than 60 days nor more than one year[.]” Cal. Civ. Code § 1791.1. Here, Yagman fails to identify the product that is the subject of his Complaint or the date that he allegedly purchased such product. As such, Defendants - and the Court - are unable to discern from the pleadings what the applicable warranty period(s) are. For this reason alone, Plaintiff’s warranty claims should be dismissed. Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 20 of 35 Page ID #:40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 each defendant.’ Whitson v. Bumbo, 2009 WL 1515597,* 7 (N.D.Cal. 2009) (quoting In re Silicon Graphics, Inc. Sec. Litig., 970 F.Supp. 746, 752 (N.D.Cal. 1997)) Here, despite the clear strictures of Rule 9(b), Yagman’s third cause of action for alleged “material misrepresentations” [Compl. ¶ 18] sets forth none of the required information. Indeed, the Complaint raises more questions than answers: What are the alleged “misrepresentations”? When were they made? Where were they made? Who were they made by and to whom were they made? And critically, why are any of such (unspecified) representations allegedly false? The Complaint does not provide any of this detail, which is “indispensable” to a fraud claim. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1105 (9th Cir. 2003) (The “indispensable elements of a fraud claim include a false representation, knowledge of its falsity, intent to defraud, justifiable reliance, and damages.”) Yagman’s only attempt at identifying an alleged “misrepresentation” is the following threadbare allegation: “The misrepresentations were that the appliance was not defective and/or damaged and was free from defects of which defendants knew at the time it was sold.” (Compl. ¶ 19.; see also ¶ 13 (“Defendants represented that the appliance was fit for use and was without defect or damage, and this representation was false.”)) But this allegation is not even a coherent sentence, much less a statement sufficient to meet the heightened pleading standard of Rule 9(b). It does not identify who said what, when, to whom, what was said, why it was allegedly false, or how any particular Defendant could be held accountable. Indeed, as set forth above, Yagman has not even bothered to identify the appliance that is the subject of this lawsuit, other than to state that it was part of a “matching set” of “kitchen appliances” (Compl. ¶ 5), and has not otherwise set forth any of the other basic facts about the underlying transaction, such as where he purchased the appliance, when the purchase took place, or how such appliance was purportedly “defective and/or damaged.” Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 21 of 35 Page ID #:41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 Likewise, Yagman’s attempts to allege the other elements of fraud are nothing more than legal conclusions that cannot meet his pleading obligations. (See Compl. ¶¶ 21-24 (containing only bald assertions of alleged intent, reliance, harm and concealment.6)); Garza v. American Home Mortg., 2009 WL 1139594 (E.D. Cal. 2009) (The Court may “ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations.”). For these reasons, Yagman has failed to plead any of the required elements of a fraud claim with particularity and, as such, his fraud claim should be dismissed. Moreover, Yagman’s fraud claim should be dismissed without leave to amend because he could not state an actionable claim even if he were to add more factual detail. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (“Courts are not required to grant leave to amend if a complaint lacks merit entirely.”). Here, the crux of Yagman’s claim is that the Defendants allegedly manufactured and/or offered products for sale that consumers (like Yagman) expected would “not [be] defective and/or damaged” and would instead be “free from defect.” (See, e.g., Compl. ¶¶ 19, 22 (alleging that the “public” relied on these qualities)). However, not only can Yagman not truthfully identify any facts in support of such a purported catch-all guarantee of perfection from any Defendant, the assertion itself is contrary to well- established law which recognizes that a manufacturer can limit its liability, even for known defects, by disclaiming a warranty.7 6 Tellingly, the Complaint attempts to assert materiality by including a cookie-cutter recitation of law that Yagman appears to have cut and pasted from another irrelevant complaint. (Compl. ¶ 20 (asserting that “if the true fact, that the appliance was defective and/or damaged was known the vehicle would not have been purchased.”))(emphasis added). 7 “The law governing express warranties is clear. A warranty is a contractual promise from the seller that the goods conform to the promise. If they do not, the buyer is entitled to recover the difference between the value of the goods accepted by the buyer and the value of the goods had they been as warranted. (Cal.U.Com.Code, §§ 2313, subd. (a) & 2714, subd. (2).) A seller may limit its liability for defective goods by disclaiming or modifying a warranty. (Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 212-213, 285 Cal.Rptr. 717.)” Daugherty v. American Honda Motor Co., Inc., 144 Cal. App. 4th 824, 830 (2006)(emphasis added). Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 22 of 35 Page ID #:42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 For this reason, where there are no allegations of physical harm, safety issues, or specific claims about a product’s quality or reliability, Courts have consistently rejected attempts like Yagman’s to “shoe-horn” warranty and product liability claims into different theories of liability, including claims for alleged affirmative misrepresentation. See, e.g., In re Iphone 4S Consumer Litigation, No. C 12-1127 CW, 2014 WL 589388, at *6-7 (N.D.Cal. Feb. 14, 2014) (rejecting plaintiffs’ fraud claim against Apple regarding the Siri feature on its iPhone in part because they failed to point to “any specific statement by Apple that expressly indicates that Siri would be able to answer every question, or do so consistently.”); see also Morgan v. Harmonix Music Sys., Inc., No. C08-5211 BZ, 2009 WL 2031765, at *3 (N.D.Cal. July 30, 2009) (stating that “plaintiffs have alleged no specific representations about the durability of the foot pedal” on the drum set); Long v. Hewlett-Packard Co., No. C 06-02816 JW, 2007 WL 2994812, at *7 (N.D.Cal. July 27, 2007) (stating that “[t]he word ‘notebook’ describes the type of product being sold; it does not constitute a representation regarding the quality of the computer’s parts, nor a representation regarding the consistency or longevity of the computer’s operation”). As such, even assuming that Yagman can point in an amended pleading to any general statement by a Defendant relating to the existence (or alleged non-existence) of defects or “damage” in any particular product, his claim would sound under the warranty applicable to that product, not in fraud. C. Yagman Fails to State a Factual or Legal Basis for Intentional Infliction of Emotional Distress (Claim 4). To state a claim for intentional infliction of emotional distress, a plaintiff is required to show: (1) That the Defendants’ conduct was outrageous; (2) That the Defendants intended to cause Plaintiff emotional distress or acted with reckless disregard of such distress; (3) That Plaintiff suffered severe emotional distress; and (4) That Defendants’ conduct was, in fact, a substantial factor in causing Plaintiff’s severe emotional distress. See CACI 1600; see also Yau v. Santa Margarita Ford, Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 23 of 35 Page ID #:43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 Inc., 229 Cal. App. 4th 144, 160-161 (2014) (to avoid demurrer, plaintiff must allege such acts with great specificity). Yagman’s emotional distress claim is manifestly deficient. First, he purports to allege this claim on behalf of “anyone, including plaintiff, who would purchase the product.” Such an allegation fails because (1) the Complaint does not show that anyone else has suffered the same type of injury that Yagman alleges (to wit, severe emotional distress) due to the same reason claimed here (i.e., receipt of an allegedly defective and/or damaged kitchen appliance), and (2) Plaintiff is expressly prohibited from suing on behalf of anyone but himself. See Yagman v. Bray, No. CV 15-5512 FMO (JCx) (C.D. Cal. July 31, 2015) (Dkt. No. 8) (“Counsel needs to represent the class from the outset. Moreover, the court observes that Yagman is well aware that he may not pursue a class action without an attorney at the outset. See Stephan Yagman v. John Owen Brennen, CV 15-1031, TJH (Ex) Dkt. No. 21 (dismissing case filed by Yagman because attorney had not entered an appearance).”) Second, Yagman includes no facts from which the Court could find that any of the required elements of an intentional infliction of emotional distress claim are plausible. There is nothing from which a Court could infer that any Defendant had an intent to cause emotional harm to Yagman, that Yagman actually suffered such harm, or that anything a Defendant did with respect to selling him a kitchen appliance could have caused such harm. As noted above, the Complaint does not even identify the product at issue, what was wrong with it, or what any particular Defendant did, much less articulate how any action described could be considered “outrageous.” Indeed, the law in this area is clear. To be actionable, a defendant’s conduct must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” See Hughes v. Pair, 46 Cal. 4th 1035, 1051 (2009). The test is whether a reasonable community member, hearing what defendant did, would feel resentment and exclaim “Outrageous!” Rest.2d Torts § 46, comm. d; see Cochran v. Cochran 65 Cal. App. Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 24 of 35 Page ID #:44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 4th 488, 494 (1998). Here, nowhere near the required level of conduct, Yagman alleges only that he was sold a kitchen appliance that was “defective and/or damaged.” While unfortunate, if true, this simply is not the type of circumstance that would cause any reasonable person to feel resentment and exclaim “Outrageous!” See., e.g., Mintz v. Blue Cross of Calif., 172 Cal. App. 4th 1594, 1608-1609 (2009) (Insurer’s denial of coverage for cancer treatment and failure to advise terminally ill patient of right to independent review held not to be outrageous); Garamendi v. Golden Eagle Ins. Co., 128 Cal. App. 4th 452 (2005) (directive to plaintiff employee to keep quiet about employer’s fraud held not to be outrageous). Further, Yagman’s bald assertion that he “suffered emotional distress as a result of Defendants’ outrageous conduct” is insufficient to plead qualifying harm or the required causation. “Severe emotional distress is emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” Fletcher v. Western Life Insurance Co., 10 Cal. App .3d 376, 397 (1970); Yurick v. Sup. Ct., 209 Cal. App. 3d 1116, 1129 (1989) (finding no IIED where, “[d]epending on the idiosyncrasies of the plaintiff…offensive conduct…may be irritating, insulting or even distressing but it is not actionable.”). The Complaint does not identify what the “outrageous conduct” was, how his alleged emotional distress manifested itself, or how being delivered a “defective and/or damaged” kitchen appliance could have caused emotional distress. For all of these reasons, Yagman’s Fourth Cause of Action for intentional infliction of emotional distress fails and should be dismissed. D. Yagman Fails to State Facts Sufficient to Support a RICO Claim (Claim 5). Yagman has not and cannot state a claim under the RICO Act. To state a claim under 18 U.S.C. § 1962(c), a plaintiff must allege: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima, SPRL v. Imrex Co., Inc., 473 U.S. 479, 496 (1985). Further, a RICO claim requires that the Plaintiff show an Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 25 of 35 Page ID #:45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 effect on interstate commerce. U.S. v. Juvenile Male, 118 F.3d 1344, 1348 (9th Cir. 1997) (predicate acts must have at least “a de minimis impact on interstate commerce” for RICO liability). Because RICO involves allegations of criminal conduct and Yagman’s claims sound in fraud, the factual predicates must meet the heightened pleading requirements of Rule 9(b). See, e.g., Schreiber Distributing Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1399-1401 (9th Cir. 1986) (Rule 9(b) applies to RICO claims based on fraud); Sanford v. Member Works, Inc., 625 F.3d 550, 557-68 (9th Cir. 2010) (same). Yagman has burdened courts and the public with frivolous RICO claims for years, which the Courts have properly and consistently rejected.8 As the Ninth Circuit recently held on nearly-identical allegations by Plaintiff against the Mayor and 33 other city employees for requiring that he post a $63 bond prior to a full administrative review of a parking ticket dispute: Yagman next argues that he adequately pled facts establishing a RICO claim. But the Complaint contains nothing more than the following conclusory allegations regarding the required RICO predicates: “The bad acts described in the matters enumerated herein above . . . evidence civil RICO predicates, including at least fraud, wire fraud, mail fraud, extortion, and civil rights violations.” There is no RICO predicate based on allegations of unspecified “civil rights violations.” See Jennings v. Emry, 910 F.2d 1434, 1438 (7th Cir. 1990). And Yagman pled no facts on which this court could infer the City engaged in “fraud, mail fraud, wire fraud, or extortion.” Yagman v. Garcetti, No. 14-56223, 2017 WL 242562, at *5 (9th Cir. Jan. 20, 2017). Yagman’s RICO claim should be dismissed with prejudice here, too, since Yagman fails once again to properly plead any RICO element. 8 See, e.g., Yagman v. Garcetti, No. CV 14-2330-GHK EX, 2014 WL 3687279, at *4 (C.D. Cal. July 9, 2014), aff'd, No. 14-56223, 2017 WL 242562 (9th Cir. Jan. 20, 2017) (dismissing Yagman’s RICO claims regarding enforcement of a parking ticket without leave to amend); Yagman v. Gabbert, No. 2:14-cv-06989-FMO-MAN (C.D. Cal. May 14, 2015) (Dkt. 73) (dismissing Yagman’s RICO claims against attorney without leave to amend); Yagman v. Garcetti, No. CV 14- 5963-GHK (Ex) (C.D. Cal. Feb. 18, 2015) (Dkt. 51) (dismissing Yagman’s RICO and other claims without leave to amend). Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 26 of 35 Page ID #:46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 1. The Complaint Fails to Allege a RICO Enterprise. A RICO “enterprise” is “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). “[A]n association-in-fact enterprise must have at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s purpose.” Boyle v. United States, 556 U.S. 938, 946 (2009). Yagman fails to allege this element of a RICO claim for two distinct reasons. First, the Complaint improperly (and impossibly) claims that “[t]he defendants all together constitute an enterprise, within the meaning of l8 U.S.C. 1961(4), and each defendant, except Joachim by himself, is a RICO [sic] separate RICO enterprise.” (Compl. at ¶ 42.) In other words, Yagman alleges that at least five separate associated-in-fact enterprises were formed for the purpose of selling him a defective or damaged kitchen appliance: (1) all Defendants combined and (2-5) each entity Defendant separately. The allegations that each Defendant is its own RICO enterprise make no sense as a matter of common sense or law. A defendant cannot conspire with itself and the law is clear that an associated-in-fact enterprise must be conceptually “distinct” from the RICO persons identified as conducting the RICO enterprise. Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161 (2001) (“[T]o establish liability under § 1962(c) one must allege and prove the existence of two distinct entities: (1) a ‘person’; and (2) an ‘enterprise’ that is not simply the same ‘person’ referred to by a different name.”) (quoting 18 U.S.C. § 1962(c)); accord Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 361 (9th Cir. 2005). This means that “the person and the tool[] are different entities, not the same.” Cedric Kushner, 533 U.S. at 162; see also Lopez v. Dean Witter Reynolds, Inc., 591 F. Supp. 581, 585 (N.D. Cal. 1984) (“[I]f an entity is the ‘enterprise,’ it cannot also be the RICO defendant.”). Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 27 of 35 Page ID #:47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 Second, to the extent the Complaint attempts to state a claim based on an alleged enterprise consisting of “the defendants all together,” this also fails. In the Ninth Circuit, “[t]o establish the existence of such an enterprise, a plaintiff must provide both evidence of an ongoing organization, formal or informal, and evidence that the various associates function as a continuing unit.” Odom v. Microsoft Corp., 486 F.3d 541, 552 (9th Cir. 2007) (en banc). Here, there are no facts alleged from which the Court could conclude that Defendant Joachim and the entity Defendants were any sort of unit, much less a unit designed to sell Plaintiff a defective product. 2. The Complaint Fails to Allege a Pattern of Racketeering Activity. Yagman also has not pled and cannot adequately plead a “pattern of racketeering activity.” See Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir. 1996). To plead a pattern of racketeering activity, Yagman must allege facts sufficient to show that the Defendants committed at least two of the statutorily enumerated predicate acts in furtherance of an unlawful goal. 18 U.S.C. § 1961(5); Turner v. Cook, 362 F.3d 1219, 1229 (9th Cir. 2004) (noting that, while at least two acts of racketeering activity are required under RICO to establish a pattern, the pleading of two such acts is not necessarily sufficient to do so). A “pattern” may only occur where the plaintiff can show that the “racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.” HJ Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989). The “pattern” element of a RICO claim is evaluated as to each individual Defendant and predicate acts must be tied to each individual Defendant. See Blake v. Dierdorjf, 856 F.2d 1365, 1371 (9th Cir. 1988). Further, where RICO claims are asserted against multiple defendants, a plaintiff must allege at least two predicate acts by each defendant. In re Wellpoint, Inc. Out-Of-Network UCR Rates Litig., 903 F. Supp. 2d 880, 914 (C.D. Cal. 2012); Zazzali v. Swenson, No. 1:12-cv-224-EJL- Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 28 of 35 Page ID #:48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 MHW, 2013 WL 6095361, at *7 (D. Idaho Jan. 25, 2013); see also United States v. Persico, 832 F.2d 705, 721 (2d Cir. 1987). In this case, Yagman has not plead sufficient facts to support the conclusion that any Defendant, much less all of them, engaged in a racketeering activity even once and, as such, there is nothing in the Complaint to suggest any such “pattern” of activity. Defendants cannot be held liable under RICO for merely performing their jobs; they need to engage in multiple specific criminal acts outside the scope of their employment. See, e.g., 18 U.S.C. § 1961(5) (requiring “at least two acts of racketeering activity”); Howard v. Am. Online Inc., 208 F.3d 741, 746 (2000) (“Two acts are necessary but not sufficient, for finding a violation.”). Plaintiff has not and cannot establish this. 3. The Complaint Fails to Allege any Predicate Acts. The Complaint baldly attempts to state a claim under every possible RICO predicate act. (See Compl. at ¶ 47 (alleging “activities, including any potential civil RICO predicates, set forth in the RICO predicate statutes, including extortion, mail fraud, wire fraud, fraudulent concealment, obstruction of justice, and bankruptcy fraud.”) (emphasis added). This is clearly improper because predicate acts must be plead with particularity, including pleading “the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.” Schreiber Distributing Co., 806 F.2d at 1401. Yagman must also allege the “role of each defendant in each scheme.” Yan v. Xiong, 2006 WL 3191173 at *1 (E.D. Cal., Nov. 2, 2006). Yagman’s reliance on “the bad acts described in the matters enumerated hereinabove,” which are not in fact described anywhere in the Complaint, is insufficient. (Compl. at ¶ 49.) As are Yagman’s conclusory, and wholly unsupported and unexplained, assertions of “mail fraud” that are sprinkled throughout the Complaint. (Compl. ¶¶ 11, 18, 47, 49) See generally Sanford v. MemberWorks, Inc., 625 F.3d 550, 558 (9th Cir. 2010)(holding that to allege mail or wire fraud with particularity under Rule 9(b), plaintiffs must identify Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 29 of 35 Page ID #:49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 the parties to alleged misrepresentations); see also Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 541 (9th Cir. 1989) (finding that plaintiffs had failed to allege mail fraud with particularity under Rule 9(b) because they “[did] not attribute specific conduct to individual defendants,” or “specify either the time or the place of the alleged wrongful conduct”). 4. The Complaint Fails to Allege an Impact on Interstate Commerce. Yagman further fails to allege that the purported racketeering activity involved or affected interstate or foreign commerce. See 18 U.S.C. § 1962(c); U.S. v. Juvenile Male, 118 F.3d 1344, 1348 (9th Cir. 1997) (predicate acts must have at least “a de minimis impact on interstate commerce” for RICO liability); Stanford v. MemberWorks, Inc., 625 F.3d 550, 557 (9th Cir. 2010). The Complaint makes no attempt to link Defendants’ alleged actions to interstate commerce. Rather, the Complaint makes clear that all the allegedly unlawful acts took place in California, and affect only Yagman’s enjoyment of his kitchen in Venice, California. III. YAGMAN’S CLASS ALLEGATIONS SHOULD BE STRICKEN BECAUSE YAGMAN HAS INTENTIONALLY DEFIED THE COURT’S REPEATED INSTRUCTION THAT HE MAY NOT SERVE AS CLASS COUNSEL. This Court has already made clear to Yagman that he cannot make class allegations while purporting to serve as his own attorney. See Yagman v. Bray, No. CV 15-5512 FMO (JCx) (C.D. Cal. July 31, 2015) (Dkt. No. 8) (“Counsel needs to represent the class from the outset. Moreover, the court observes that Yagman is well aware that he may not pursue a class action without an attorney at the outset. See Stephan Yagman v. John Owen Brennen, CV 15-1031, TJH (Ex) Dkt. No. 21 (dismissing case filed by Yagman because attorney had not entered an appearance).”) Indeed, as made clear by Judge Hatter, Yagman has no authority to represent anyone other than himself: Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 30 of 35 Page ID #:50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 The privilege to represent oneself pro se is personal to the litigant and does not extend to other parties. Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008). The complaint contains class action allegations. Plaintiff claims to represent the class, protect the interest of all class members, and will do so vigorously and zealously. The Plaintiff, appearing pro se, has no authority to represent anyone other than himself. Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962). See Stephan Yagman v. John Owen Brennen, CV 15-1031, TJH (Ex) Dkt. No. 21 (April 6, 2015 Order). In filing this case, Yagman has once again blatantly disregarded this Court’s clear and repeated instruction. The class allegations cannot be cured and should be stricken. IV. YAGMAN’S CLAIM FOR PUNITIVE DAMAGES SHOULD BE STRICKEN. Yagman’s Complaint does not adequately state a claim for punitive damages and his request for such a recovery should be stricken. See Fed. R. Civ. Proc. 12(f) (“The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”). A. Punitive Damages Are Not Recoverable under the RICO Act. Punitive damages are not permitted based on a RICO claim. See, e.g., Sw. Marine, Inc. v. Triple A Mach. Shop, Inc., 720 F. Supp. 805, 810 (N.D. Cal. 1989) (“The civil remedy provision of RICO, 18 U.S.C. § 1964, provides for treble damages which are themselves punitive in character. Punitive damages in addition to these treble damages are not appropriate.”); see also Iron Workers Local Union No. 17 Ins. Fund and its Trustees v. Philip Morris Inc., 29 F. Supp. 2d 801, 819 (N.D. Ohio 1998) (granting defendant’s summary judgment motion on punitive damages issue because federal RICO statute provides for treble damages not punitive damages); New York Mercantile Exchange v. Verrone, No. 96-CV-8988, 1998 WL 811791, at *1-2 (S.D.N.Y. Nov. 19, 1998) (declining to adopt magistrate’s recommendation of punitive damages because damages were trebled under RICO); Resolution Trust Corp. v. S & K Chevrolet, 868 F. Supp. 1047, 1062 (C.D. Ill. 1994) Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 31 of 35 Page ID #:51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 (“Where treble damages are mandatory under civil RICO provisions, punitive damages are disfavored in the law.”); Bingham v. Zolt, 823 F. Supp. 1126, 1135 (S.D.N.Y. 1993), aff’d, 66 F.3d 553 (2d Cir. 1995); Dammon v. Folse, 846 F. Supp. 36, 38 (E.D. La. 1994); Standard Chlorine of Delaware, Inc. v. Sinibaldi, 821 F. Supp. 232, 252-253 (D. Del. 1992). B. Punitive Damages Are Not Recoverable for Breach of Warranty. “A warranty is a contractual term concerning some aspect of the sale, such as title to the goods, or their quality or quantity.” 4 Witkin, Summary of California Law (10th ed. 2005) Sales, § 51; id. at § 55 (“The warranty is contractual, and breach gives rise to an action ordinarily subject to venue, limitations, and attachment rules applicable to contract actions.”) Thus, Yagman’s first and second causes of action for breach of warranty are essentially contract claims for which punitive damages are unavailable. See Cal. Civ. Code § 3294 (providing for punitive damages for “breach of an obligation not arising from contract”); Palmer v. Ted Stevens Honda, Inc., 193 Cal. App. 3d 530, 536 (1987) (“[A] punitive damages theory cannot be predicated on the breach of contract cause of action without an underlying tort.”) (internal citations omitted.) C. Yagman Has Not Otherwise Sufficiently Stated Any Facts Showing Oppression, Fraud or Malice. Yagman’s remaining causes of action for fraud and intentional infliction of emotional distress have not been properly alleged and, therefore, cannot independently support a claim for punitive damages. Cal. Civ. Code § 3294. But even assuming that he had properly alleged his intentional tort claims, Yagman’s request for punitive damages should still be stricken because punitive damages “may be awarded only under evidence of fraud, malice, or oppression.” Clark v. McClurg, 215 Cal. 279 (1932); Rivero v. Thomas, 86 Cal. App. 2d 225 (1948) (accord). “Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 32 of 35 Page ID #:52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 have to tolerate.” American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, 96 Cal. App. 4th 1017 (2002). Such extreme indifference requires “the character of outrage frequently associated with crime.” Tomaselli v Transamerica Ins. Co., 25 Cal. App. 4th 1269, 1287 (1994) (quoting Taylor v. Superior Court, 24 Cal. 3d 890, 894 (1979)). Moreover, “conclusory characterization of the defendant’s conduct as intentional willful, and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice implied’ within the meaning of section 3294.” Brousseau v. Jarrett, 73 Cal. App. 3d 864. 872 (1977). Yagman alleges that he purchased kitchen appliances and that one of them was delivered in a defective or damaged state. He does not provide any facts at all from which the trier of fact could find that the Defendants, in manufacturing or selling him that product, had such fraudulent, malicious or oppressive intent that they should be associated with criminals. Yagman does nothing but parrot the statutory language, offering no factual support. Such allegations do not establish a cause of action on which punitive damages could be based. V. YAGMAN SHOULD ALSO BE ADMONISHED TO COMPLY WITH RULE 8 AND REFRAIN FROM IMPROPER SHOT-GUN PLEADING In addition to all of the deficiencies noted above, all of Yagman’s claims are improperly pleaded in a “shotgun” fashion, incorporating the entire Complaint into each Count, including all of the proceeding paragraphs. (Compl. ¶ 4). This is not permitted. See Destfino v. Kennedy, Case No. CV-F-08-1269-LJO-DLB, 2008 WL 4810770, *3 (E.D. Cal. Nov. 3, 2008) (“Allegations . . . which incorporate each preceding paragraph, regardless of relevancy, are not permitted. This practice has been harshly criticized as a form of ‘shotgun pleading’ that violates Rule 8’s requirement of a ‘short and plain statement’ and interferes with the court’s ability to administer justice.”) (citing Byrne v. Nezhat, 261 F.3d 1075, 1129-1130 (11th Cir. 2001)). Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 33 of 35 Page ID #:53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 “In attacking such pleading, defendant has an obligation to move for a more definitive statement.” Id.; Anderson v. District Bd. of Trustees of Cent. Florida Community College, 77 F.3d 364, 366 (11th Cir.1996) (a defendant “faced with a complaint which incorporates each preceding paragraph, whether relevant or not, is not expected to frame a responsive pleading. Rather, the defendant is expected to move the court, pursuant to Rule 12(e), to require the plaintiff to file a more definite statement.”). Accordingly, even if this Court determines that a claim may be stated against some or all of the Moving Defendants, as pleaded, Yagman’s Complaint is vague, confusing and untenable; the Court should, at minimum, require that the Complaint be amended to provide a more definite statement as to the claims being asserted against each Defendant, and the facts supporting those claims. VI. CONCLUSION For the reasons stated above, the Court should issue an Order dismissing the Complaint without leave to amend, or, in the alternative quashing service as to all Defendants and strike the Complaint’s class allegations and prayer for punitive damages. DATED: January 30, 2017 HOLLAND & KNIGHT LLP By: //S// Vince Farhat and Kristina Azlin Vince Farhat Kristina S. Azlin Attorneys for Defendants Ferguson Enterprises, Inc., Eric Joachim, Wolseley Investments, Inc., and BSH Home Appliances Corporation Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 34 of 35 Page ID #:54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE TO QUASH SERVICE AND STRIKE H ol la nd & K ni gh t L LP 40 0 So ut h H op e St re et , 8 th F lo or Lo s A ng el es , C A 9 00 71 Te l: 21 3. 89 6. 24 00 F ax : 2 13 .8 96 .2 45 0 PROOF OF SERVICE State of California ) ) ss. County of Los Angeles ) I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 400 S. Hope Street, 8th Floor, Los Angeles, California 90071. On January 30, 2017, I served the document(s) described as DEFENDANTS FERGUSON ENTERPRISES, INC.; ERIC JOACHIM; WOLSELY INVESTMENTS, INC.; AND BSH HOME APPLIANCES CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT OR, IN THE ALTERNATIVE, TO QUASH SERVICE AND STRIKE; MEMORANDUM OF POINTS AND AUTHORITIES; [PROPOSED] ORDER on the interested parties in this action, enclosed in a sealed envelope, addressed as follows: MR. STEPHEN YAGMAN 475 Washington Boulevard Venice Beach, California 90292-5287 [ X ] (BY MAIL) Following ordinary business practices, I placed the document for collection and mailing at the offices of Holland & Knight LLP, 400 S. Hope Street, 8th Floor, Los Angeles, California 90071, in a sealed envelope. I am readily familiar with the business’s practice for collection and processing of correspondence for mailing with the United States Postal Service, and, in the ordinary course of business, such correspondence would be deposited with the United States Postal Service on the day on which it is collected at the business. [ ] (BY PERSONAL SERVICE) I delivered such envelope by hand to the addressee stated above. [ X ] I declare under penalty of perjury under the laws of the State of California and the United States of America that the above is true and correct. Executed on January 30, 2017, Los Angeles, California. Kristina S. Azlin Case 2:16-cv-09536-FMO-SS Document 8 Filed 01/30/17 Page 35 of 35 Page ID #:55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA LOS ANGELES DIVISION STEPHEN YAGMAN, an individual, Plaintiff, vs. FERGUSON ENTERPRISES, INC.; ERIC JOACHIM, an individual; WOLSELY INVESTMENTS, INC., BOSCH GmbH; BSH HOME APPLIANCES CORPORATION and DOES 1 through 20, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 16-cv-09536 (FMO) (SSx) [PROPOSED] ORDER GRANTING DEFENDANTS FERGUSON ENTERPRISES, INC.; ERIC JOACHIM; WOLSELY INVESTMENTS, INC.; AND BSH HOME APPLIANCES CORPORATION’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT OR, IN THE ALTERNATIVE, TO QUASH SERVICE AND STRIKE [Notice of Motion and Motion; Memorandum of Points and Authorities; Declaration of Kristina Azlin; and Request For Judicial Notice filed concurrently] Date: March 2, 2017 Time: 10:00 a.m. Dept: 6D Complaint Filed: December 27, 2016 Case 2:16-cv-09536-FMO-SS Document 8-1 Filed 01/30/17 Page 1 of 2 Page ID #:56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER Having considered Defendants Ferguson Enterprises, Inc., Eric Joachim, Wolseley Investments, Inc., and BSH Home Appliances Corporation’s Motion to Dismiss or Strike the Complaint, and all opposition, reply and other papers and argument submitted by the parties in relation thereto, and finding good cause appearing: IT IS HEREBY ORDERED AS FOLLOWS: [ ] Plaintiff’s Complaint is dismissed with prejudice. [OR, IN THE ALTERNATIVE]: [ ] Plaintiff’s prayer for punitive damages and class allegations are stricken with prejudice. The remainder of Plaintiff’s Complaint is dismissed with leave to amend. An amended Complaint must be filed within 10 days of this Order. SO ORDERED. Dated: _____________________________ Hon. Fernando M. Olguin United States District Judge Case 2:16-cv-09536-FMO-SS Document 8-1 Filed 01/30/17 Page 2 of 2 Page ID #:57