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Valencia v. Merck & Co.

October 16, 2009

ABARCA R AUL VALENCIA, ET AL. , PLAINTIFFS,
v.
MERCK & CO., INC., ET AL. DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER CLAIM FOR FRAUD AND TO DISMISS AND STRIKE CONSPIRACY TO COMMIT FRAUD ALLEGATIONS OF PLAINTIFFS' SIXTH AMENDED COMPLAINT (DOC. 486)

INTRODUCTION

Defendants Merck & Co., Inc., Amsted Industries, Inc., Baltimore Aircoil Co., Inc., and Track Four, Inc. (collectively "the BAC Defendants") move to dismiss the eighteenth claim for relief, entitled "Fraud and Deceit," in Plaintiffs' sixth amended complaint ("SAC"). The BAC Defendants also move to dismiss Plaintiffs' nineteenth claim for conspiracy to the extent it is based on fraud or concealment and to strike from Plaintiffs' conspiracy claims paragraphs 280 and 281, which allege fraud and concealment.

The BAC Defendants argue:

(1) That the fraud claims in the eighteenth and nineteenth causes of action fail to satisfy the pleading requirements of Federal Rule of Civil Procedure 9(b) because the SAC fails to allege:

(a) that any individual Plaintiff read or heard any of the allegedly fraudulent statements; or

(b) that he or she took any specific action in reliance on the allegedly fraudulent statements; and

(2) That Plaintiffs have not alleged facts sufficient to demonstrate a duty of disclosure owed by the BAC to any Plaintiff.

II. STANDARD OF DECISION

Rule 9(b) requires that, in all averments of fraud, the circumstances constituting fraud be stated with particularity. One of the purposes behind Rule 9(b)'s heightened pleading requirement is to put defendants on notice of the specific fraudulent conduct in order to enable them to adequately defend against such allegations. See In re Stac Elec. Litig ., 89 F.3d 1399, 1405 (9th Cir. 1996). Further, Rule 9(b) serves "to deter the filing of complaints as a pretext for the discovery of unknown wrongs, to protect [defendants] from the harm that comes from being subject to fraud charges, and to prohibit plaintiffs from unilaterally imposing upon the court, the parties and society enormous social and economic costs absent some factual basis." Id (internal citations and quotations omitted).

As a general rule, fraud allegations must state "the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentation." Schreiber Distrib. v. Serv-Well Furniture Co.., 806 F.2d 1393, 1401 (9th Cir. 1986). In other words, an allegation of fraud must describe the "who, what, when, where, and how" of the alleged misconduct." Cooper v. Picket , 137 F.3d 616, 627 (9th Cir. 1997).

III. ANALYSIS

A. Duty to Disclose

The twenty-third claim in Plaintiffs' fifth amended complaint "FAC," entitled "Civil Conspiracy," was dismissed with leave to amend on May 18, 2009. Doc. 419. Acknowledging "[a] long line of cases establishes that there is no independent cause of action for civil conspiracy under California Law," the ruling held that "Plaintiffs may maintain a separate civil conspiracy count based upon [] incorporated allegations of nuisance and trespass." Id . at 12-14.

In addition, Plaintiffs attempted to base their conspiracy claim on allegedly fraudulent conduct. Id . at 14. Specifically, the FAC alleged that BAC Defendants conspired to "conceal and/or misrepresent the nature and extent of ... contamination emanating from the former BAC facility." FAC ¶295. Whether such an allegation raises fraudulent misrepresentation or fraudulent concealment, Plaintiffs must comply with the requirements of Federal Rule of Civil Procedure 9(b). Doc. 419 at 14. Because Plaintiffs "appear[ed] to restrict their argument to fraudulent concealment," Plaintiffs "must allege that the BAC Defendants had a duty to disclose the allegedly concealed facts to the plaintiffs." Id . at 14-15 (citing Hahn v. Mirda , 147 Cal. App. 4th Cal. App. 4th 740, 745 (2007)).

Plaintiffs cited no authority for their claims that because "the BAC Defendants had a duty to disclose to the Regional Water Quality Control Board ('Regional Board') all relevant factual information necessary for the Regional Board to adequately oversee the remediation of this contamination site," this duty "reasonably extends" to Plaintiffs." Doc. 419 at 19-21. Plaintiffs' alternative contention was also rejected, namely "that a special relationship existed between the residents located within a mile of the BAC facility (of which plaintiffs' herein are included) and the BAC defendants ... demonstrated [by] the fact that the Regional Board instructed the BAC defendants to send out 'Fact Sheets' related to the contamination and designated that [these] be sent out to ...


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