The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATION
Presently before the court is defendant Virginia Armstrong's ("Virginia Armstrong" or "Armstrong") motion to dismiss plaintiffs' Third Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 84.) The court submitted this matter without oral argument.*fn1 (Dkt. No. 102.) The undersigned has fully considered the parties' briefs and the record in this case and, for the reasons that follow, will recommend that: (1) Armstrong's motion be granted in part; (2) the civil battery claim alleged on Joy Winters's behalf be dismissed without prejudice; and (3) all of plaintiffs' remaining claims alleged against Armstrong, except for plaintiff Christy Winters's civil battery claim (claim 9) and plaintiffs' breach of contract claim (claim 22), be dismissed with prejudice.
Plaintiffs' operative complaint, the Third Amended Complaint,*fn3 is a wide-ranging, 25-page complaint that alleges, in eight-point font, 38 claims for relief against 61 defendants. (Dkt. No. 66.) In dismissing plaintiffs' Second Amended Complaint (Dkt. No. 15), which spanned 163 pages and 607 numbered paragraphs, the court ordered that plaintiffs' Third Amended Complaint could not exceed 25 pages and must conform to Federal Rule of Civil Procedure 8(a), including the requirement that the pleading contain a short and plain statement of the claims alleged instead of recounting all of the evidence and arguments in support of those claims. (Dkt. No. 56 at 3.) The court had stated that "[t]his will be plaintiffs' last chance to comply." (Id.)
The claims alleged in the Third Amended Complaint arise from an underlying family dispute between plaintiffs, who are part of the Winters family, and defendant Virginia Armstrong. Virginia Armstrong is the mother of plaintiff Susan Winters.
The Third Amended Complaint alleges that in or around the year 2002, plaintiff Susan Winters's elderly parents, Joe and Virginia Armstrong, encouraged plaintiffs Susan and Brent Winters to sell their house in Illinois and move to Nevada City, California to live with the Armstrongs. (Third Am. Compl. at 4.) Plaintiffs allege that before plaintiffs returned to California, Joe Armstrong passed away and that Virginia Armstrong eventually transferred properties, including the residence at 11318 Via Vista in Nevada City, California, from the Armstrong Living Trust dated July 29, 1994 to the Virginia Armstrong Living Trust. (Id.) Plaintiffs allege that Virginia Armstrong took these actions due, in part, to the undue influence of defendants Valerie Logsdon, who was Virginia Armstrong's attorney, and Michael Armstrong, Virginia Armstrong's son, who is also an attorney. (Id.) They further allege that these actions violated the terms of a trust indenture and the California Probate Code. (Id.)
The relationship between Armstrong and plaintiffs resulted in several proceedings in the Nevada County Superior Court. Relevant here, Logsdon, acting as Armstrong's attorney, filed an unlawful detainer action on her client's behalf seeking to evict members of the Winters family from Armstrong's home. (Third Am. Compl. at 5.) In connection with the unlawful detainer action, and relevant to claims alleged against Virginia Armstrong, plaintiffs allege that an Assistant United States Attorney from Illinois wrote a letter to Logsdon "offering any aid to help her evict the Winters from their home in Nevada City, California." (Id. at 6, 21.) Plaintiffs further allege that Virginia Armstrong caused declarations or other documents to be filed in connection with the issuance of a restraining order by a Nevada County Superior Court judge that was favorable to the Winters family, and that her attorney improperly sought a separate, ex parte restraining order against members of the Winters family from the Superior Court. (See id. at 6, 13-14.)
Plaintiffs' Third Amended Complaint alleges the following claims against Virginia Armstrong: abuse of process (claim 6); violation of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution (claim 7); civil battery (claim 9); trespass to chattels (claim 13); violation of 42 U.S.C. § 1983 (claim 14); civil conspiracy in violation of 42 U.S.C. § 1983 (claim 15); civil conspiracy (claim 18); "Slander, Libel, and Slander & Libel Per Se" (claim 21); breach of contract (claim 22); violation of the First Amendment of the U.S. Constitution (claim 26); conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. 1962(d) (claim 31); loss of consortium (claim 36); and intentional infliction of emotional distress (claim 38). In response to the filing of the Third Amended Complaint, Virginia Armstrong filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 84.)
There are several, separately-filed motions pending before the court. Despite the court's previous order that plaintiffs file a separate opposition to each pending motion (Dkt. No. 89 at 6), plaintiffs filed a consolidated opposition. (See Dkt. No. 99.) Plaintiffs filed their opposition on January 13, 2010, despite a court-ordered deadline of January 6, 2010. (Compare Dkt. Nos. 89 with 99.) Although plaintiffs' opposition was untimely and need not be considered, the undersigned has considered that opposition in arriving at the findings and recommendations that follow.
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1949).
The court accepts "all facts alleged as true and construes them in the light most favorable to the plaintiff." County of Santa Clara v. Astra USA, Inc., 588 F.3d 1237, 1241 n.1 (9th Cir. 2009). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted). The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect.*fn4 See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted).
A. Plaintiffs' Section 1983 Claims Against Armstrong
Plaintiffs have alleged five claims against Virginia Armstrong that constitute claims brought pursuant to 42 U.S.C. § 1983. First, plaintiffs allege that Virginia Armstrong violated plaintiffs' Fourteenth Amendment rights of equal protection under the law (claim 7), and allege that: "Without any notice or opportunity to be heard allowed to Plaintiffs, Judge Anderson and attorney David Silber, together, by ex parte agreement, imposed a restraining order against Susan Winters, Cacey Winters, and Christy Winters." (Third Am. Compl. at 14.) Second, plaintiffs allege generalized, non-specific claims against "All Defendants" for violation of 42 U.S.C. § 1983 (claim 14), for engaging in a conspiracy to violate 42 U.S.C. § 1983 (claim 15), and for "civil conspiracy," which appears to be an additional claim alleging a conspiracy to violate Section 1983. (See id. at 19-20.) Finally, plaintiffs allege that Virginia Armstrong violated plaintiffs' First Amendment right to petition for the redress of grievances insofar as plaintiffs were prevented from responding to "false statements" in proceedings before the Nevada County Superior Court. (See id. at 23.)
Virginia Armstrong challenges all of these claims as failing to state a claim on which relief can be granted. The undersigned will first address plaintiffs' generalized Section 1983 claims and then address the more specifically alleged constitutional violations.
1. Express Section 1983 Claims (Claims 14, 15 and 18)
Virginia Armstrong moves to dismiss claims 14, 15, and 18, which expressly allege violations of Section 1983, for failure to state a claim on the grounds that: (1) plaintiffs have not alleged that she participated in any act that deprived plaintiffs of their constitutional or statutory rights, and (2) plaintiffs have alleged no specific facts that she acted under the color of law. Her arguments, although tersely stated, are persuasive.
"Section 1983 imposes civil liability upon an individual who 'under color [of state law] . . . subjects or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges or immunities secured by the Constitution and laws.'" Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002) (quoting 42 U.S.C. § 1983). "To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law." Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)); accord Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009). Conclusory allegations of a violation of Section 1983 or a conspiracy to violate Section 1983 will not survive a motion to dismiss. See, e.g., Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (affirming dismissal of plaintiff's second amended complaint as a result of plaintiff's "conclusory allegations" of a conspiracy to deprive him of his constitutional rights in violation of Section 1983).
Plaintiffs' allegations in support of their Section 1983 claims alleged in claims 14, 15, and 18 are conclusory and, on this basis alone, these claims should be dismissed as to Virginia Armstrong. For example, plaintiffs do not allege which of their specific constitutional rights were violated and specifically how Virginia Armstrong participated in such alleged violations. Nevertheless, the undersigned will address additional grounds why plaintiffs' claims fail as alleged against Armstrong.
As to claim 14, alleging that "All Defendants," including Virginia Armstrong, individually violated plaintiffs' constitutional rights, plaintiffs allege:
Paragraphs above incorporated by reference. Defendants, by their actions and acting under the color of law, subjected Plaintiffs, and caused Plaintiffs to be subjected, to the deprivations of their rights, privileges, and immunities secured by the Constitution and laws of the State of California and of the United States of America. Plaintiffs claim damages under 42 U.S.C. § 1983 for their injuries set forth above.
(Third Am. Compl. at 19.) In addition to the conclusory nature of plaintiffs' allegations, their claim that Virginia Armstrong, as an individual, violated plaintiffs' rights fails because plaintiffs have not alleged any constitutional right that was purportedly violated.*fn5 Moreover, dismissal is warranted because Armstrong is a private actor and thus was not acting under color of state law. To determine whether a private actor acts under color of state law, the court must evaluate whether the alleged infringement of federal rights is "fairly attributable" to the government even though it is alleged to have been committed by private actors. See Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003). The Supreme Court has explained that "state action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself." Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (citation and quotation marks omitted)). Nothing in the Third Amended Complaint or plaintiffs' written opposition suggests as much. Accordingly, plaintiffs' fourteenth claim should be dismissed with prejudice as to Virginia Armstrong.
Plaintiffs' Section 1983 conspiracy claims, claims 15 and 18, are also fatally flawed. In their fifteenth claim, plaintiffs allege that "Defendants Logsdon, Michael Armstrong, Jordan, Wade, Harpainter, and Ford worked in concert with Defendants from the Nevada County Superior Court, Sheriff's Department, Adult Protective Services, and other agencies." (Third Am. Compl. at 20.) These claims make no specific reference to Virginia Armstrong. Moreover, they allege that a state court judge, Judge Anderson, entered a restraining order "on his own motion." (Id.; see also id. at 7) Additionally, plaintiffs allege that defendants Logsdon and Harpainter "worked in concert with" with defendants Chelsey and Frooman. (Id.) Elsewhere in the Third Amended Complaint, defendant Harpainter is alleged to be an attorney that the Nevada County Superior Court appointed for Virginia Armstrong in connection with certain restraining order proceedings before that court. (Id. at 7.) Defendants Chelsey and Frooman are alleged to be Assistant United States Attorneys in Illinois who were prosecuting plaintiff Brent Winters, an attorney, on criminal charges and wrote a letter to defendant Logsdon offering assistance with the unlawful detainer action. (Id. at 6, 24.) Plaintiffs' eighteenth claim is largely redundant of the fifteenth claim, at least as it relates to allegations against Virginia Armstrong.
"A private individual may be liable under § 1983 if [he] conspired or entered joint action with a state actor." Franklin, 312 F.3d at 441; see also Kirtley, 326 F.3d at 1092 ("While generally not applicable to private parties, a § 1983 action can lie against a private party when he is a willful participant in joint action with the State or its agents." (citation and quotation marks omitted)). "To establish liability for a conspiracy in a § 1983 case, a plaintiff must 'demonstrate the existence of an agreement or meeting of the minds' to violate constitutional rights." Crowe v. County of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (quoting Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1301 (9th Cir. 1999)). Although the Supreme Court has articulated several alternative tests for determining whether a private individual's actions amount to state action, Franklin, 312 F.3d at 445, the "joint action" test is relevant here. The joint action test applies where, as here, state officials and private parties are alleged to have acted in concert to effectuate a particular deprivation of constitutional rights and "focuses on whether the state has so far insinuated itself into a position of interdependence with the private actor that it must be recognized as a joint participant in the challenged activity." Id. (citation, quotation marks, and modifications omitted). "The plaintiff must show 'an agreement or meeting of the minds to violate constitutional rights,' and '[t]o be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy.'" Crowe, 608 F.3d at 440 (modification in original) (quoting Franklin, 312 F.3d at 441).
As an initial matter, it bears repeating that plaintiffs' allegations regarding a conspiracy between state actors and private actors are vague and conclusory and, for that reason alone, cannot survive the motion to dismiss. See Simmons, 318 F.3d at 1161 ("Plaintiff's conclusory allegations that the lawyer was conspiring with state officers to deprive him of due process are insufficient."); Degrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000) (stating that "a bare allegation of . . . joint action will not overcome a motion to dismiss" (citation and quotation marks omitted)); Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991) (stating that "[c]onclusionary allegations, unsupported by facts, [will be] rejected as insufficient to state a claim under the Civil Rights Act" (citation and quotation marks ...