Wills v. United Parcel Service (UPS)

[6] 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA [9] 10 CYNTHIA S. WILLS and CARMEL RESORT SUPPLY, Case No. 19-cv-01819-NC [11] Plaintiffs, ORDER GRANTING 12 DEFENDANTS’ MOTIONS TO v. DISMISS; DISMISSING CASE [13] HANSON BRIDGETT, LLP, and FIRST Re: Dkt. Nos. 48, 49 14 REPUBLIC BANK, 15 Defendants. 16 Pro se plaintiff Cynthia Wills brings claims for breach of contract, negligent infliction 17 of emotional distress, and intentional infliction of emotional distress against defendants 18 Hanson Bridgett LLP and First Republic Bank arising out of two checks that she alleges 19 were not delivered on time. Dkt. No. 1, Ex. 1. Because Wills fails to allege sufficient 20 facts to state any claims against Hanson Bridgett or First Republic Bank, all claims against 21 both defendants are DISMISSED. No claims remain, so the case is hereby DISMISSED. 22 I. BACKGROUND 23 Cynthia Wills filed this case pro se in state court against defendants United Postal 24 Service, Hanson Bridgett LLP, and First Republic Bank. Dkt. No. 1, Ex. 1 (Complaint). 25 Defendants removed the case to federal court. Dkt. No. 1. This Court denied Wills’s 26 motion to remand. Dkt. No. 39. Defendants filed motions to dismiss all claims. Dkt. Nos. 27 7, 10, 14. The Court held a hearing on the motions. Dkt. No. 40. The Court granted the 1 Court dismissed all of Ms. Wills’s claims against Hanson Bridgett and First Republic 2 Bank, and granted Ms. Wills leave to amend. Dkt. No. 42. 3 The amended complaint lists “Cynthia S. Wills” and “Carmel Resort Supply” as 4 plaintiffs. Dkt. No. 42 at 1. She explains that she is “an individual and sole proprietor, 5 d/b/a Carmel Resort Supply.” Id. Wills’s amended complaint alleges that she entered into 6 “partly written . . . oral and implied in fact contract/s” with First Republic Bank on May 7 10, 2018, that obligated the bank “to secure timely delivery of a $10,000 check to 8 American Express” for payment on her account. FAC ¶ 9. She alleges that the check was 9 not received by American Express on time, causing her to miss a payment.1 Id. She 10 alleges that she requested another check from FRB on July 13, 2018, this time for $800 11 and for delivery directly to her. FAC ¶ 10. 12 Wills alleges that sometime between July 13 and July 19, 2018, she received a call 13 from an attorney at Hanson Bridgett, a law firm representing FRB. FAC ¶ 11. She 14 expressed concern in that phone call about the issues with the $10,000 check. Id. On July 15 19, 2018, Wills received a letter from Hanson Bridgett stating that FRB had retained their 16 firm “to review [her] accusations and address [her] harassment of various personnel in 17 offices in San Francisco and other bank branches,” and informing her that her FRB 18 account was being closed. Id. The $800 check was not enclosed with the letter. Id. Wills 19 found herself “in banking hell.” Id. (emphasis in original). 20 Wills attaches to her complaint a letter from Hanson Bridgett dated July 20, 2018, 21 which states that two checks were awaiting pick-up at the United States Post Office (one 22 for $800, and one for $3,571.84). Dkt. No. 43, Ex. 3. The letter states that “[a]n employee 23 of the United States Postal Service telephonically confirmed that the check is there waiting [24] 1 The amended complaint is not clear as to when the $10,000 check was eventually [25] delivered. Wills states that “[later] AE then informed Wills that the $10,000 check received bounced,” which appears to indicate that the check was delivered at some point. [26] FAC ¶ 9. She sent a letter to FRB concerning the $10,000 check on July 10, 2018, so the amended complaint seems to suggest that it was delivered before that date. FAC ¶ 10. She [27] later states that she “worked extensively with American Express to resolve the nightmare 1 for you to pick it up.” Id. Wills also attaches a letter that she wrote to Hanson Bridgett on 2 July 24, 2018, stating that she would not cash the checks and requesting that they be sent 3 to a different location. Dkt. No. 43, Ex. 4. She received the checks at that new location on 4 July 26, 2018. FAC ¶ 11. Timing was so tight that she had to hand deliver her next 5 payment to her creditor. Id. Wills states that her business suffered and that she was forced 6 to vacate her office space as a result of defendants’ actions. Id. 7 FRB and Hanson Bridgett moved to dismiss the entire complaint. Dkt. Nos. 48, 49. 8 Wills filed an opposition to the motions. Dkt. No. 52. All parties consented to the 9 jurisdiction of a magistrate judge under 28 U.S.C. § 636 (c). Dkt. Nos. 11, 15, 16, 30. 10 II. LEGAL STANDARD 11 A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal 12 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). On a 13 motion to dismiss, all allegations of material fact are taken as true and construed in the 14 light most favorable to the non-movant. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336 , 337– 15 38 (9th Cir. 1996). The Court, however, need not accept as true “allegations that are 16 merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 17 Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint need 18 not allege detailed factual allegations, it must contain sufficient factual matter, accepted as 19 true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, [20] 550 U.S. 544, 570 (2007). A claim is facially plausible when it “allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft 22 v. Iqbal, 556 U.S. 662, 678 (2009). If a court grants a motion to dismiss, leave to amend 23 should be granted unless the pleading could not possibly be cured by the allegation of 24 other facts. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 25 III. DISCUSSION 26 A. Breach of Contract 27 To plead a claim for breach of contract, a plaintiff must allege: (1) the existence of a 1 and (4) resulting damages to the plaintiff. Oasis W. Realty, LLC v. Goldman, 51 Cal. 4th 2 811, 821 (2011). A contract can be created orally, in writing, or through conduct. Cal. 3 Civ. Code §§ 1620–1622. An implied-in-fact contract can be inferred from the parties’ 4 conduct. Division of Labor Law Enforcement v. Transpacific Transportation Co., 69 Cal. 5 App. 3d 268, 275 (1977). 6 1. First Republic Bank 7 Wills alleges that she entered into written, oral, and implied in fact contract(s) with 8 First Republic Bank in May and July, 2018, for the bank to send a $10,000 check to 9 American Express and then for the bank to send an $800 check to her. FAC ¶¶ 9–10. In 10 its previous order granting FRB’s motion to dismiss the original complaint, the Court 11 found that Wills had not pleaded facts to establish that a contract existed between herself 12 and FRB in the first place. Dkt. No. 42 at 3. The Court stated that “Wills must describe 13 what the offer was, how it was accepted, and what consideration was exchanged” in order 14 to allege that a contract existed to state a claim for breach. Id. 15 Wills has not cured this deficiency in the amended complaint. She calls the contract 16 between herself and FRB “a valid a binding contract,” “valid and enforceable,” and “in full 17 force and effect.” FAC ¶ 13, 15. But the Court cannot determine what contract ever 18 existed. As the Court pointed out in its previous order, Wills does not attach copies of ay 19 alleged written contracts, nor does she describe their terms. Wills alleges that she spoke 20 on the phone with an FRB employee but not that any contract was formed on any call. 21 FAC ¶ 9. In a section of the amended complaint titled “Contract Overview and Breach,” 22 Wills states that she sent an Unfair Trade Practices Act letter to FRB’s corporate office but 23 again describes no contract between her and any FRB representative. 24 Instead of facts, Wills’s breach of contract claim consists of legal conclusions. 25 Therefore, the Court finds that Wills has not cured the deficiencies identified in its prior 26 order. Wills’s amended complaint fails to allege sufficient facts to state a facially 27 plausible claim for breach of contract against FRB. The breach of contract claim against 1 having failed to do so, the Court finds that further amendment would be futile. 2 2. Hanson Bridgett, LLP 3 Wills alleges “the 2018 Agreement/s between Wills and Hanson Bridgett LLP was a 4 valid and binding contract.” FAC ¶ 26. It is unclear what agreement(s) this refers to, 5 except possibly a 2018 IRA Withdrawal Authorization form that Wills attaches to the 6 complaint. Dkt. No. 43, Ex. 2. This form is not a contract between Wills and Hanson 7 Bridgett. Hanson Bridgett did not sign the form, is not mentioned on the form, and Wills 8 does not allege that anyone from Hanson Bridgett ever saw, read, or had knowledge of the 9 form. Wills does not allege the existence of any other “2018 Agreement/s” between 10 herself and the law firm. Wills alleges vaguely that Hanson Bridgett was obligated to 11 “honor” any contract between herself and FRB. FAC ¶ 2. However, as the Court found 12 above, Wills has not alleged the existence of any contract between herself and FRB and, 13 further, has not shown why any such contract would obligate Hanson Bridgett. 14 The Court’s order granting the defendants’ previous motion to dismiss stated: 15 “[b]ecause Hanson Bridgett is the Bank’s legal counsel and otherwise had no relationship 16 with Wills, the Court is skeptical that Wills will be able to state any claim against Hanson 17 Bridgett for breach of contract.” Dkt. No. 42. Indeed, the Court finds that Wills has not 18 alleged sufficient facts to state a facially plausible claim for breach of contract against 19 Hanson Bridgett. The breach of contract claim against Hanson Bridgett is DISMISSED. 20 Having already had an opportunity to allege additional facts and having failed to do so, the 21 Court finds that further amendment would be futile. 22 B. Negligent Infliction of Emotional Distress and Negligence 23 To plead a claim for negligent infliction of emotional distress, a plaintiff must 24 allege an underlying tort—NIED is not a standalone cause of action. Ragland v. U.S. Bank 25 Nat’l Assn., 209 Cal. App. 4th 182, 205 (2012). In the event that Wills intends to plead a 26 claim for negligence to underly her claim of NIED, the Court analyzes the complaint for a 27 claim of negligence. A claim of negligence requires a duty of care owed by the defendant 1 Cal. 4th 965, 984 (1993). The plaintiff bears the burden of alleging that a duty is owed. 2 Laico v. Chevron USA, Inc., 123 Cal. App. 4th 649 (2004). The plaintiff may allege facts 3 to show that a special relationship or other circumstances create an affirmative duty of 4 care. Douri v. Spring Val. Water Co., 8 Cal. App. 588 (1908). 5 In its previous order granting the defendants’ motion to dismiss this claim, the 6 Court found that Wills had not alleged the first element of negligence: that FRB or Hanson 7 Bridgett owed her a duty of care. Dkt. No. 42 at 6. Neither did Wills allege that a special 8 relationship existed between herself and either defendant to create an affirmative duty of 9 care. Id. Again, Wills’s amended complaint fails on these grounds. The amended 10 complaint states the legal conclusion that “[t]he Defendant engaged in negligent conduct 11 and had a legal duty to use reasonable care to avoid causing the Plaintiff harm and owed a 12 duty of care to protect Wills from reasonably foreseeable negative consequences.” FAC ¶ 13 35. But Wills states no factual grounds for this alleged “duty” as to either defendant. As 14 with the original complaint, without establishing that the Bank or Hanson Bridgett owed 15 her a duty of care, Wills cannot plead a negligence claim based on a breach of that duty. 16 The Court finds that Wills has not alleged sufficient facts to state a facially 17 plausible claim for negligence or negligent infliction of emotional distress against FRB or 18 Hanson Bridgett. The NIED claim as to both defendants is DISMISSED. Having already 19 had an opportunity to allege additional facts and having failed to do so, the Court finds that 20 further amendment would be futile. 21 C. Intentional Infliction of Emotional Distress 22 To plead a claim for intentional infliction of emotional distress, a plaintiff must 23 allege (1) extreme and outrageous conduct by the defendant; (2) intention to cause, or 24 reckless disregard of the probability of causing, emotional distress; (3) severe emotional 25 suffering; and (4) actual and proximate causation of the emotional distress. Hughes v. 26 Pair, 46 Cal. 4th 1035, 1050 (2009). Conduct is “outrageous” when it is so “extreme as to 27 exceed all bounds of that usually tolerated in a civilized community.” Id. at 1050–1051. 1 that no reasonable [person] in civilized society should be expected to endure it.” Potter, 6 2 Cal. 4th at 1004. 3 The Court previously found that Wills’s original complaint failed to state a claim 4 for IIED because she did not allege extreme or outrageous conduct. Dkt. No. 42 at 7. The 5 conduct alleged in the amended complaint is the same as in the first, with minor additional 6 details. The amended complaint is still based on two checks that did not arrive in the mail 7 on time. As the Court previously stated, “not only is this conduct not outrageous, it is 8 rather ordinary.” Id. Wills further fails to allege that any defendant caused her distress 9 intentionally or with reckless disregard. She only states legal conclusions, such as 10 “Hanson Bridgett LLPs’ [sic] intentional and reckless failure and refusal to secure timely 11 delivery” of her check “was extreme and outrageous.” FAC ¶ 40. This conclusory 12 language does not include facts that go toward stating a claim. 13 Moreover, Wills still fails to allege that she endured substantial or enduring 14 emotional distress. Wills states that her business suffered and that she was forced to vacate 15 her office space as a result of defendants’ actions. FAC ¶ 11. The Court still appreciates 16 Wills’s suffering, but, as alleged, it does not rise to the level of distress beyond what a 17 person in a civilized society should be expected to ever endure. Potter, 6 Cal. 4th at 1004. 18 Wills has not alleged sufficient facts to state a facially plausible claim for 19 intentional infliction of emotional distress against FRB or Hanson Bridgett. The IIED 20 claim against both defendants is DISMISSED. Having already had an opportunity to 21 allege additional facts and having failed to do so, the Court finds that further amendment 22 would be futile. 23 D. Claims by Carmel Resort Supply 24 Finally, the Court considers whether plaintiff “Carmel Resort Supply” has any 25 claims that are independent of Wills. The amended complaint alleges on page one that 26 Wills is a “sole proprietor, d/b/a Carmel Resort Supply.” She does not allege that Carmel 27 Resort Supply entered into any contract or suffered any damages separate and apart from 1 || dismissed for the same reasons as the claims asserted by Wills. As a consequence, the 2 || defendants’ motions to dismiss are granted as to Carmel Resort Supply. 3 || IV. CONCLUSION 4 Plaintiffs’ claims for breach of contract, negligent infliction of emotional distress 5 || (and underlying negligence), and intentional infliction of emotional distress against 6 || defendants First Republic Bank and Hanson Bridgett LLP are DISMISSED. The Court 7 || finds that further opportunity to amend would be futile. Accordingly, this case is hereby 8 || DISMISSED. [9] 10 IT IS SO ORDERED. [11] 12 || Dated: September 13, 2019 hte —> _ NATHANAEL M. COUSINS 13 United States Magistrate Judge [15] A 16 © 17 1g Zz