The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the Motion to Dismiss (Doc. # 7) filed by Defendant Blossom Valley Inn.
On November 21, 2007, Plaintiff William A. Hogue, by and through his guardian ad litem Cassi DePaoli, filed the Complaint against the City of Holtville, individual police officers of the City of Holtville, the Blossom Valley Inn, individual employees of the Blossom Valley Inn,*fn1 and Does 1-100.
The Complaint alleges that Plaintiff is 80 years old and suffers from Alzheimer's disease. Complaint, ¶ 13. The Complaint alleges that Blossom Valley represented to Plaintiff and his family that Blossom Valley and its staff were "fully trained and 'set up' to care for residents suffering from Alzheimer's." Id. The Complaint alleges that on January 10, 2007, Plaintiff and Blossom Valley entered into a written contract whereby Blossom Valley "represented and agreed that its facility was appropriate for patients with dementia," "agreed that plaintiff would be properly secured and maintained within a 24 hour facility," and "agreed to provide and monitor plaintiff within a secure environment with alarms and cameras to monitor plaintiff's movements and condition." Id. at¶ 44. Plaintiff alleges that on January 10, 2007, he took up residence at the Blossom Valley Inn due to his "mental incapacity resulting from Alzheimer's disease." Id. at ¶ 13.
Plaintiff alleges that on January 10, 2007, at 10:30 p.m., while Plaintiff was under the care of Blossom Valley, Plaintiff walked out the front door, setting off the alarm. Id. at ¶ 14. Plaintiff alleges that after hearing the alarm, Blossom Valley employees followed Plaintiff outside the facility and down the street in an attempt to get him to voluntarily return. Plaintiff alleges that the employees' efforts failed and an unknown employee called the Holtville City Police Department to assist Plaintiff in returning to the facility. Id. Plaintiff alleges that he had already turned back to the facility when two police officers arrived, one of whom "immediately confronted [Plaintiff] in a hostile manner" and demanded Plaintiff to "tell his name and stop where he was." Id. at ¶ 15. Plaintiff alleges that he failed to "immediately respond" to officers' commands, and that the officers "brutally assaulted [him] by grabbing him on either side and slamming him face down on the ground, and while kneeling on his back, forcefully [handcuffing] him behind his back." Id. Plaintiff alleges that both officers then lifted him up by the handcuffs, which caused a "severe fracture" of Plaintiff's left arm. Id.
Plaintiff alleges that Blossom Valley never attempted "to intervene on Plaintiff's behalf, or make any attempt whatsoever to protect Plaintiff from the brutality of [the officers], or subsequently attempt to render emergency aid and comfort to Plaintiff." Id. at ¶ 17. Plaintiff alleges that after he was arrested, he was transported to the hospital for medical care. Id. at ¶ 18. Plaintiff alleges that his injuries were so severe that surgery could not be performed to repair the injuries, and he was subsequently released to Blossom Valley. Id. at ¶ 19.
On December 28, 2007, Blossom Valley filed the Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. # 7). Blossom Valley moves to dismiss the following causes of action for failure to state a claim: (1) the fifth cause of action for breach of written contract; (2) the sixth cause of action for breach of implied covenant of good faith and fair dealing; (3) the eighth cause of action for general negligence; (4) the ninth cause of action for elder neglect and abuse; (5) the tenth cause of action for fraudulent misrepresentation; and (6) the eleventh cause of action for negligent misrepresentation. Id. at 2. On January 22, 2008, Plaintiff filed an opposition to the motion to dismiss. (Doc. # 15). On January 28, 2008, Blossom filed a reply. (Doc. # 17).
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the pleadings. See De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978). A complaint may be dismissed for failure to state a claim under Rule 12(b)(6) where the factual allegations do not raise the right to relief above the speculative level. See Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1965 (2007). Conversely, a complaint may not be dismissed for failure to state a claim where the allegations plausibly show that the pleader is entitled to relief. See id. (citing Fed R. Civ. P. 8(a)(2)). In ruling on a motion pursuant to Rule 12(b)(6), a court must construe the pleadings in the light most favorable to the plaintiff, and must accept as true all material allegations in the complaint, as well as any reasonable inferences to be drawn therefrom. See Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003); see also Chang v. Chen, 80 F.3d 1293 (9th Cir. 1996).
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." FED R. CIV. P. 8(a)(2). The complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic, 127 S.Ct. at 1964 (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)).
I. Breach of Written Contract
Blossom Valley contends that the Complaint fails to state a claim for breach of written contract because Plaintiff failed to set forth the exact language of the alleged contract between Plaintiff and Blossom Valley, and failed to attach the contract to the Complaint. Blossom Valley also contends that Plaintiff failed to set ...