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MOORE v. NAVARRO

United States District Court, N.D. California


March 31, 2004.

LA VAUGHAN MOORE, individually and dba MMC DOUBLE B&L TRUCKING, Plaintiff,
v.
STEVE NAVARRO, individually and dba S&S TRUCKING, INC., et al., Defendants

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS; VACATING HEARING (Docket No. 77)
Before the Court is the motion to dismiss or, in the alternative, to strike various allegations and for a more definite statement, pursuant to Federal Rules of Civil Procedure 12(b)(6), (e), and (f), filed January 12, 2004 by defendants Steve Navarro, individually ("Navarre") and dba S&S Trucking ("S&S") (collectively "S&S/Navarro"). Having considered the papers filed in support of and in opposition to the motion, the Court finds the matter appropriate for decision on the papers, see Civil L.R. 7-1(b), and hereby VACATES the February 20, 2004 hearing. For the reasons set forth below, the Court GRANTS S&S/Navarro's motion to dismiss. The Court does not reach S&S/Navarro's motions to strike or for a more definite statement.

BACKGROUND

  Plaintiffs La Vaughan Moore, individually ("Moore") and dba Double B&L Trucking Page 2 ("DB&L"), filed the initial complaint in this action on September 6, 2000. Thereafter, on December 11, 2002, Moore filed an amended complaint, which she again titled "Complaint." By order filed February 12, 2003, the Court granted defendant Shank/Balfour Beatty's ("S/BB") motion to dismiss Moore's amended complaint in its entirety and afforded Moore leave to amend. On April 1, 2003, Moore filed another amended complaint, titled "First Amended Complaint." S/BB again moved to dismiss, and on July 3, 2003, the Court granted that motion with leave to amend only as to Moore's eleventh cause of action, in which she raised a claim for breach of contract. Moore filed her "Second Amended Complaint" on August 1, 2003. S/BB again moved to dismiss, and on September 12, 2003, the court granted S/BB's motion and dismissed all claims against S/BB with prejudice. Thereafter, S&S/Navarro filed a motion for judgment on the pleadings with respect to all but Moore's eighth cause of action. By order filed December 3, 2003, the Court granted S&S/Navarro's motion, and afforded Moore leave to amend her complaint only as to her ninth cause of action, for violation of the False Claims Act, 31 U.S.C. § 3729-3733, and her eighth cause of action, for violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961-1968.

  On December 24, 2003, Moore filed an amended complaint titled "Fourth Amended Complaint," in which she has amended her claims for violation of the False Claims Act and RICO.*fn1 Thereafter, S&S/Navarro filed the instant motion, by which S&S/Navarro seek to dismiss Moore's RICO claim on the grounds that it is barred by the doctrine of res judicata and by the statute of limitations, fails to state a claim, and is not alleged with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure. Additionally, S&S/Navarro seeks to dismiss Moore's claim for violation of the False Claims Act, on the ground that it is barred by the statute of limitations. In the alternative, S&S/Navarro move Page 3 to strike from the Fourth Amended Complaint all allegations that are immaterial or impertinent and to require Moore to provide a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure.

  LEGAL STANDARD

  A motion to dismiss under Rule 12(b)(6) cannot be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).

  Generally, a district court, in ruling on a Rule 12(b)(6) motion, may not consider any material beyond the pleadings. See Hal Roach Studios. Inc. v. Richard Feiner And Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990). Material that is property submitted as part of the complaint, however, may be considered. See id. Documents whose contents are alleged in the complaint, and whose authenticity no party questions, but which are not physically attached to the pleading, also may be considered. See Branch v. Tunnel, 14 F.3d 449, 454 (9th Cir. 1994). Finally, the Court may take judicial notice of matters of public record. See Mack v. South Bay Beer Distributors. Inc., 798 F.2d 1279, 1282 (9th Cir. 1986).*fn2

  In analyzing a motion to dismiss, the Court must accept as true all material allegations in the complaint, and construe them in the light most favorable to the nonmoving party. See NL Industries. Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The Court may disregard factual allegations if such allegations are contradicted by the facts established by reference to exhibits attached to the complaint. See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). Conclusory allegations, unsupported by the facts alleged, need not be accepted as true. See Holden v. Hagopian, Page 4 978 F.2d 1115, 1121 (9th Cir. 1992).

  DISCUSSION

  A. Timeliness of Fourth Amended Complaint

  S&S/Navarro first object that the Court should not consider Moore's Fourth Amended Complaint because the complaint was filed after the deadline set by the Court. Pursuant to the Court's December 3, 2003 order, Moore's amended complaint was due "no later than 20 days from the date of [the] order." (See Order, filed December 3, 2003, at 21.) The Court further ordered that if Moore did not file a timely amended complaint, "the claims that have been dismissed with leave to amend will be deemed dismissed with prejudice." (See id.)

  Thus, Moore was required to file her Fourth Amended Complaint no later than December 23, 2003. Moore did not file her Fourth Amended Complaint until December 24, 2003. Her amended complaint thus was untimely.*fn3 As S&S/Navarro do not claim to have been prejudiced by the delay, however, and because the complaint was only one day late, the Court will exercise its discretion to consider Moore's untimely complaint.

  B. False Claims Act

  S&S/Navarro argue that Moore's claim for violation of the False Claims Act should be dismissed as time-barred. Moore opposes the motion, arguing that all of S&S/Navarro's alleged violations of the False Claims Act have occurred within the statutory limitations period.

  Moore alleges that on June 6, 1993, Navarro submitted an association agreement and a Human Rights Commission ("HRC") Form 4 to the City of San Francisco. HRC to obtain $600,000 for dump fees expended for the Richmond Transport Project, a federally funded project. (See id. ¶ 37.) Moore alleges that Navarro knew there were no dump fees Page 5 expended for the project, but nonetheless obtained city and federal funds by submitting false claims. (See id.) Moore also alleges that on December 1, 1993, S&S/Navarro "knowingly submitted a fraudulent purchase order" to S/BB for hauling away and disposing of materials excavated from the Richmond Transport Project. (See id, ¶ 38.) Moore alleges that on March 10, 1995, S/BB "forwarded" to S&S a letter accusing S&S of over-billing the cost of its hauling by $300,000. (See id.) Moore alleges that S&S/Navarro received the sums of $600,000 and $300,000 during the period of July 1993 through December 1995, thereby defrauding the City and County of San Francisco. and the federal government. (See 4AC ¶¶ 39-40.)

  The False Claims Act has a two-pronged statute of limitations. Under the first prong, a civil action may not be brought "more than six years after the date on which the violation . . . is committed." See 31 U.S.C. § 3731 (b)(1). The six-year limitations period begins running upon submission of the allegedly false claim, because a violation of the False Claims Act occurs upon the "knowing presentation of a claim that is either fraudulent or simply false." See United States ex re/. Hopper v. Anton, 91 F.3d 1261, 1266 (9th Cir. 1996). Under the second prong, a civil action may not be brought "more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last." See 31 U.S.C. § 3731 (b)(2). The Ninth Circuit has held that both prongs of the statute of limitations apply to qui tarn Plaintiff's, and that the three-year period begins to run once the qui tarn plaintiff knows or reasonably should know the facts material to his or her right of action. See United States ex re/. Hyatt v. Northrop Corp., 91 F.3d 1211, 1217-18 (9th Cir. 1996).

  Moore alleges that S&S/Navarro presented their allegedly false claims for payment in 1993, more than six years before this action was filed. (See 4AC ¶¶ 37-38.) Thus, Moore cannot rely on the six-year statute of limitations set forth in 31 U.S.C. § 3731 (b)(1).

  Moore does not allege in her Fourth Amended Complaint or in her opposition the Page 6 date on which she learned of the false claims allegedly submitted by S&S/Navarro. Although S&S/Navarro moves for dismissal on the ground that Moore has not alleged any basis for a conclusion that her claim is timely under the three-year statute of limitations set forth in 31 U.S.C. § 3731 (b)(2), Moore has not responded to that argument. In particular, she does not argue that her claim is timely on the ground that she could not reasonably have learned about the submission of the allegedly false claims before September 6, 1997, three years before she filed her complaint. The Court treats this omission as a concession that no such argument could be made. Consequently, the Court finds that Moore cannot rely on the three-year statute of limitations set forth at 31 U.S.C. § 3731 (b)(2).

  Accordingly, the Court finds that Moore's claim under the False Claims Act is time-barred and GRANTS S&S/Navarro's motion to dismiss that claim, with prejudice.

  C. RICO

  Moore alleges that S&S/Navarro violated RICO, 18 U.S.C. § 1962(c), through a pattern of racketeering from 1993 to the present. (See 4AC ¶¶ 8, 10, 26.) Moore's allegations revolve around the activities of the "S.F. Minority Trucker Co-op" ("Co-op"), which Navarro and nine minority business owners allegedly formed in 1993. (See 4AC ¶ 14.) The alleged purpose of the Co-op was to allocate minority set-aside business in the San Francisco. Bay Area among the local minority leaders. (See id. ¶ 14.) Moore alleges that S&S/Navarro is not a minority person or business that can legally qualify as a minority business enterprise (MBE) for the purpose of obtaining minority set-aside construction projects. (See id. ¶¶ 22, 23, 29.) S&S/Navarro fraudulently obtained MBE status, Moore alleges, with the aid of an HRC employee. (See id. ¶ 22.)

  Moore further alleges that in June or July 1994, Jerrold Taylor (Taylor") attached a $10,000 Rogers Trucking check to the application of Phillip and Ralph Rogers for membership in the Co-op, in order to assuage the concerns of Co-op members who objected to the distribution of the majority of MBE projects to Taylor, Navarro, "Lausen,"*fn4 Page 7 Rogers Trucking and Krystal Trucking, and in order to allow Phillip Rogers and Ralph Rogers to participate in the Co-op meetings as new MBE's. (See id, ¶ 15.) Moore alleges that S&S/Navarro conspired with Rogers Trucking, Peak Engineering, Krystal Trucking, Taylor, and Bayview Sand and Gravel to "monopolize and control the Minority and Women Owned Business Enterprise and Disadvantaged Business Enterprise trucking markets for the greater San Francisco. Bay Area with the intent of diverting the profits therefrom into their enterprise, and to commit certain offenses against United States in violation of Title 18, United States Code, Section 1962(c)." (See id, ¶ 25.) Moore alleges that, with the aid of an HRC employee, S&S/Navarro and the Co-Op co-conspirators excluded Moore, DB&L, and others, from the minority set aside business in the San Francisco. Bay Area. (See id. ¶ 15.)

  Moore alleges that she was Secretary of the Co-op, but refused to participate in the "policies, practices, and malicious processes"' of the Co-op and resigned her position. (See id. ¶¶ 16-17.) In retaliation for Moore's having left the Co-op and for having filed a Stop Notice with the City, S&S/Navarro allegedly launched a boycott of Moore's trucking business. (See id. ¶ 18.) On August 10, 1995, S&S/Navarro allegedly filed a false police report and a false claim with the District Attorney's Office, accusing Moore of stealing two $25,000 checks from Navarro. (See id. ¶ 20.) Moore alleges that S&S/Navarro initiated these false charges with the intention of intimidating and humiliating Moore. (See id.) Moore alleges that the effect was to drive Moore out of business. (See id.) Shortly after the dismissal of the charges against Moore, her tractor and trailer were stolen, and were recovered two months later near S&S/Navarro's place of business. (See id. ¶ 21.) Between August 1, 1995 and November 1, 2002, S&S/Navarro and S.N. Sands allegedly published, over Navarro's signature, several defamatory letters about Moore to city officials, city agencies, banks, and other businesses and persons. (See id. ¶ 24.) The letters allegedly stated falsely that Moore had been overpaid by S&S/Navarro and that inquiries should be made of Moore regarding payment of her subhaulers for work performed on the Richmond Transport Project. (See id. ¶ 24.) Moore also alleges that in Page 8 March 1994, as well as from July 26, 1996 through November 1996, and in 2001, S&S/Navarro and Peak Engineering made false and defamatory statements about Moore, through the mails and telephone lines, to several insurance firms and federal regulatory agencies concerning the condition and reliability of Moore's equipment and performance, with the intent of forcing her out of competition for several trucking jobs. (See id. ¶ 28.) Finally, Moore alleges that on June 16, 1997, she obtained a copy of a letter in which S&S/Navarro, as president of the Co-op, informed Evans Bros., Inc., a general contractor, that DB&L was no longer in business and that Moore had taken a secretarial position at Ranger Pipeline Company. (See id. ¶ 19.)*fn5 Moore alleges that she was excluded from participation in the San Francisco. Airport Expansion Project due to the blacklisting and boycott maintained by S&S/Navarro. (See id.)

  Moore also alleges that, from late 1998 to March 2002, as another part of the Co-op's conspiracy, S&S/Navarro, S.N. Sands Trucking Corporation, and Rogers Trucking falsely claimed to be Disadvantaged Businesses under 49 C.F.R. part 46 and knowingly submitted false records and statements, through Tutor Saliba Corporation, in order to induce the federal government to approve and pay false and fraudulent claims for the San Francisco. BART Extension Project. (See id. ¶ 29.)

  Additionally, Moore alleges that S&S/Navarro engaged in unlawful acts with respect to two other minority truckers. Moore alleges that S&S/Navarro photographed the out-of-commission equipment of P&K Trucking Company ("P&K") and then mailed the photographs to P&K's insurance company, along with false statements as to P&K's insurability. (See ¶ 17.) According to Moore, P&K's insurance was canceled, and its business was disrupted, eventually causing the closing of their business of 40 years. (See id.) Moore further alleges that S&S/Navarro threatened the life of Ace Washington, a minority trucking consultant, in February 1998, with the intent of eliminating him as a consultant to MBE competitors in the Bay Area. (See id. ¶ 30.) Page 9

  S&S/Navarro argue that Moore's RICO claim should be dismissed on numerous grounds. The Court will begin its analysis with S&S/Navarro's argument that Moore's RICO claim is barred by the doctrine of res judicata.

  1. Res Judicata

  S&S/Navarro argue that Moore's RICO cause of action is barred by the doctrine of res judicata because Moore alleged in a prior state court action that S&S/Navarro conspired to control the minority set aside business in order to deprive Moore of business, and judgment in that action was entered in favor of S&S/Navarro.

  Moore's state court action was filed on April 16, 1998. (See Request for Judicial Notice, filed January 12, 2004 ("RJN"), Ex A.) The sole cause of action alleged was a claim against S&S/Navarro for "conspiracy to restrain trade and create a trust" in violation of the Cartwright Act, Cal. Bus. & Prof. Code § 16720. (See id. ¶ 1-15.) In that action, Moore alleged that, beginning in 1993, S&S/Navarro conspired with certain of their competitors in the San Francisco. trucking business to "allocate the minority set aside business among themselves to the exclusion of plaintiff, allocate bids among themselves, operate under the auspices of a `co-op' to control the bidding and securing of minority set aside business, and boycott and exclude plaintiff and other non-members of the co-op from the minority set aside trucking business in San Francisco." (See id. Ex. D ¶ 9.) According to Moore, "[a] further purpose and effect of this conspiracy was and is to drive plaintiff out of business and secure all of Plaintiff's trucking business for themselves." (See id.) Although Moore alleged that no governmental entity was involved in the co-op, she also alleged that one of the organizational meetings of the co-op was held in a room at the HRC, and "[a]t least one person working for the Human Rights Commission stated to one or more general contractors doing business with the City of San Francisco. that the co-op represented the minority truckers in San Francisco." (See id. ¶ 10a.) She also alleged that "[t]he way in which the co-op worked was that all of the contractors doing governmental business were informed [by] members of the co-op and the Human Rights Commission that for their trucking needs they should deal with the co-op." (See id. ¶ 10-) Thus, Moore Page 10 alleged, general contractors were forced to join defendants' boycott of Moore and other non-members of the co-op. (See id.) S&S/Navarro allegedly "successfully convinced the general contractors that they [had] to look to the co-op for their minority trucking and then used the weakness of the other co-op members to allocate the trucking business to themselves." (See id. ¶ 11.) According to Moore, S&S/Navarro "and their co-conspirators . . . eliminated plaintiff from competition on numerous public contracts because plaintiff was not a member of the co-op." (See id. ¶ 12.)

  On September 28, 1999, the state court sustained a demurrer to Moore's complaint, without leave to amend, on the ground that the Cartwright Act claim was barred under the Noerr-Pennington doctrine.*fn6 (See id. Ex. E at 2, 3 (citing Eastern R. Conf. v. Noerr Motors, 365 U.S. 127 (1961) and Mine Workers v. Pennington, 381 U.S. 657 (1965)). On March 26, 2001, the California Court of Appeal affirmed. (See id. at 7.)

  A federal court must give a state court judgment the same preclusive effect that would be given to that judgment under the law of the state in which judgment was rendered. See Mir v. Little Co. of Mary Hospital, 844 F.2d 646, 651 (9th Cir. 1988). Under California law, the doctrine of res judicata "precludes a plaintiff from litigating a claim if the claim relates to the same `primary right' as a claim in a prior action, the prior judgment was final and on the merits, and the plaintiff was a party or in privity with a party in the prior action." See id. (quoting Trujillo v. County of Santa Clara, 775 F.2d 1359, 1366 (9th Cir. 1985)). If "two actions involve the same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake even if in the second suit the plaintiff pleads different theories of recovery, seeks different forms of relief, and/or adds new facts supporting recovery." Tensor Group v. City of Glendale, 14 Cal.App.4th 154, 160 (1993). Moreover, "[i]f the matter was within the scope of the action, related to the subject matter Page 11 and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not expressly pleaded or otherwise urged. " See id. (quoting Sutphin v. Speik, 15 Cal.2d 195, 202 (1940)): see also Monterey Plaza Hotel Ltd. Partnership v. Local 483 of the Hotel Employees and Restaurant Employees Union, 215 F.3d 923, 928 (9th Cir. 2000) ("[Res judicata] also operates to bar any claims that could have been raised, not just those that actually were made.").

  A judgment resulting from the sustaining of a general demurrer on the merits of a claim, rather than on a procedural ground, is a judgment on the merits. See Palomar Mobilehome Park Ass'n v. San Marcos, 989 F.2d 362, 364 (9th Cir. 1993); see also Goddard v. Security Title Ins. & Guarantee Co., 14 Cal.2d 47, 52 (1939) (noting that a judgment based on "the sustaining of a general demurrer on a ground of substance . . . may be deemed a judgment on the merits, and conclusive in a subsequent suit; and the same is true where the demurrer sets up the failure of the facts alleged to establish a cause of action, and the same facts are pleaded in the second action"). A judgment "based upon the sustaining of a special demurrer for technical or formal defects is clearly not on the merits and is not a bar to the filing of a new action," however. See Goddard, 14 Cal.2d at 52. Here, the judgment sustaining the demurrer to Moore's state court action was a judgment on the merits because it was an adjudication that the facts alleged could not state a cause of action. See Palomar, 989 F.2d at 364; Goddard, 14 Cal.2d at 52. Thus, any claim in Moore's current complaint that is based on the same primary rights asserted in the state action is barred by the doctrine of res judicata.*fn7 Page 12

  The violation of a single primary right gives rise to but a single cause of action," Crowley v. Katleman, 8 Cal.4th 666, 681 (1994). "[T]he primary right is simply the Plaintiff's right to be free from the particular injury suffered." See id. "It must therefore be distinguished from the legal theory on which liability for that injury is premised: `Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief.' "See id. (quoting Slater v. Blackwood, 15 Cal.3d 791, 795 (1975)). "When there is only one primary right an adverse judgment in the first suit is a bar even though the second suit is based on a different theory or seeks a different remedy." See id. (citations omitted). Thus, "the significant factor is the harm suffered; that the same facts are involved in both suits is not conclusive." See Agarwal v. Johnson, 25 Cal.3d 932, 954 (1979), overruled on other grounds. White v. Ultramar. Inc., 21 Cal.4th 563 (1999)).

  In the present action, as in Moore's state court action, Moore alleges that S&S/Navarro and others committed a wrong by conspiring to allocating minority set aside trucking business among themselves, thereby causing injury to Moore in the form of a loss of business. (See 4AC ¶¶ 8, 10, 15, 18-20, 22, 25, 27-28.) Moore cannot challenge that injury again by asserting a different legal theory, or by adding new facts in support of her claim. See Crowley v. Katleman, 8 Cal.4th at 681: Tensor Group. 14 Cal.App.4th at 160.

  Accordingly, the Court finds that Moore's RICO claim is barred by the doctrine of res judicata to the extent it is based on an injury to Moore's business caused by an alleged conspiracy by S&S/Navarro and others to allocate minority set aside trucking business among themselves and to exclude Moore from that business.*fn8

  Moore alleges injuries in her current complaint that were not alleged in her prior Page 13 state court complaint, however. In particular, Moore alleges that S&S/Navarro filed a false police report against her with the intention of humiliating and intimating her (see 4AC ¶ 20), and that S&S/Navarro and S.N. Sands published defamatory letters about her and thereby subjected her to "hatred, contempt, ridicule and shame[.]" (See 4AC ¶ 24.) These alleged personal injuries cannot be considered to be part of the same primary right as the business injuries that Moore alleged in her prior state court complaint. Cf. Agarwal, 25 Cal.3d at 72 (finding injuries suffered as a result of defamation and intentional infliction of emotional distress to be distinct from injuries suffered from employment discrimination, for purposes of res judicata "primary rights" analysis); Craig v. Johnson, 221 Cal.App.3d 1294 (1990) (holding prior action seeking writ to force defendant to comply with administrative order requiring defendant to hire plaintiff did not bar subsequent action for emotional distress resulting from failure to obey said administrative order). Accordingly, the Court finds that Moore's RICO claim is not barred by the doctrine of res judicata to the extent it is based on emotional distress she allegedly suffered as a result of defendants' having filed a false police report and having published defamatory letters about her.

  Moore's complaint also contains several paragraphs in which she alleges that S&S/Navarro's alleged conspiracy injured others. In particular, she alleges that S&S/Navarro committed various acts to "destroy" P&K Trucking Company, threatened the life of Ace Washington, defrauded the federal government by filing false claims, and overbilled S/BB. (See 4AC ¶¶ 17, 29-31.) These claims involve different primary rights than the injury to Moore's business that she alleged in her prior state court action. Accordingly, these claims also are not barred by the doctrine of res judicata.

  In sum, Moore's RICO claim is barred by the doctrine of res judicata to the extent she bases her claim on injury to her business caused by an alleged conspiracy by S&S/Navarro and others to allocate minority set aside trucking business among themselves and to exclude Moore from that business. Moore's RICO claim is not barred by the doctrine of res judicata to the extent it is based on emotional distress she allegedly suffered as a result of defendants' having filed a false police report and having published Page 14 defamatory letters about her, as set forth in paragraphs 20 and 24 only of her Fourth Amended Complaint. The RICO claim also is not barred by res judicata to the extent Moore contends that S&S/Navarro caused injuries to persons and entities other than Moore.

  2. Failure to State a Claim

  a. S&S/Navarro

  S&S/Navarro also move to dismiss Moore's RICO claim for failure to state a claim. RICO provides: "It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." 18 U.S.C. § 1962(c). In order to state a claim under Section 1962(c), a plaintiff must allege that a person was involved in "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." See Sedima, S.P.R.L v. Imrex Co., Inc., 473 U.S. 479, 496 (1985). A civil RICO plaintiff also must show that her injury was proximately caused by the prohibited conduct and that she has suffered "a concrete financial loss." See Chaset v. Fleer/Skybox Int'l, 300 F.3d 1083, 1086 (9th Cir. 2002); see also 18 U.S.C. § 1964(c) ("Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor. . . .") (emphasis added).

  Moore cannot state a RICO claim based solely on injuries to P&K, Ace Washington, the federal government or S/BB because Moore does not, and cannot, allege that she has suffered any concrete financial loss as a result of these alleged injuries to third parties. See id. The remaining portions of Moore's RICO claim do not allege a concrete financial loss, but rather are based on Moore's suffering emotional distress. Such allegations cannot state a claim under RICO. See Oscar v. University Students Cooperative Association, 965 F.2d 783, 787 (9th Cir. 1990) (en bane) (holding that "personal injuries are not actionable under RICO").

  Accordingly, Moore's RICO claim against S&S/Navarro fails to state a claim. Page 15

  b. S.N. Sands

  As noted above, there is no indication that defendant S.N. Sands has been served, and it has not appeared in this action. There are no allegations against S.N. Sands that differ from those against S&S/Navarro, however. Indeed, S.N. Sands is alleged to be in "some particular, the successor in interest to S&S/Navarro." (See 4AC ¶ 3.) For the same reasons as set forth above, the Court finds that Moore cannot state a claim against S.N. Sands.

  Accordingly, the Court will dismiss Moore's RICO claim in its entirety.

  CONCLUSION

  For the reasons set forth above, defendants' motion to dismiss is GRANTED, and the above-titled action is DISMISSED, with prejudice.

  The Clerk shall close the file.

  IT IS SO ORDERED. Page 1

 [EDITORS' NOTE: THIS PAGE CONTAINED CERTIFICATE OF SERVICES] Page 1

  JUDGEMENT IN A CIVIL CASE

 ___Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

 XX Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

  IT IS ORDERED AND ADJUDGED defendants' motion to dismiss is GRANTED, and the above-titled action is DISMISSED, with prejudice.


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