FINDINGS AND RECOMMENDATIONS
This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Defendant Allstate Insurance Company's moves to dismiss plaintiff's fourth amended complaint and to strike plaintiff's punitive damages claim. Dckt. No. 41. For the reasons stated herein, the undersigned recommends that the motion to dismiss be granted in part and denied in part and that the motion to strike be denied.
In July 2008, plaintiff filed a complaint against defendant Allstate Insurance Company concerning plaintiff's homeowner's insurance policy. Dckt. No. 1. The complaint alleged that defendant violated the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681u ("FCRA"), by failing to provide notice of an adverse action against plaintiff; namely, underwriting plaintiff's homeowner's insurance policy based on information contained in a consumer report and increasing plaintiff's renewal policy premium from $1477 to $2124. Id. ¶¶ 4, 7. The complaint also alleged that defendant violated California Business and Professions Code section 17200 by "willfully/negligently collecting excessive premium[s] from plaintiff." Id. ¶ 4.
Defendant moved to dismiss plaintiff's claims pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). Dckt. Nos. 9, 13. Before the motion was heard, plaintiff filed a first amended complaint which made only de minimis changes. Dckt. No. 14. Plaintiff ultimately filed an opposition to the motion, as well as a motion for leave to file a second amended complaint, which defendant opposed. Dckt. Nos. 22, 23, 24. The proposed second amended complaint alleged that defendant violated the FCRA by making false reports to a credit reporting agency and by failing to notify plaintiff that defendant had reported negative information to a credit reporting agency. Dckt. No. 22.
On September 22, 2009, the undersigned issued an order and findings and recommendations ("F&Rs") recommending that defendant's motion to dismiss the first amended complaint be granted because (1) § 1681m does not provide a private right of action and therefore plaintiff failed to state a claim under FCRA; (2) plaintiff failed to state a claim under California Business and Professions Code section 17200 because that claim was predicated on a violation of FCRA § 1681m; and (3) plaintiff failed to adequately state a claim under the California Consumer Credit Reporting Agencies Act. Dckt. No. 29 at 4-10.
The F&Rs also recommended that plaintiff's motion for leave to file a second amended complaint be granted in part and denied in part. The F&Rs concluded that (1) plaintiff could not state a claim under FCRA § 1681-2(a) because that statute did not provide a private right of action; (2) plaintiff's proposed second amended complaint set forth a prima facie claim pursuant to FCRA § 1681s-2(b); (3) plaintiff's proposed second amended complaint set forth a prima facie claim under California Civil Code section 1785.25(a), based on plaintiff's allegation that defendant furnished to a consumer reporting agency information concerning plaintiff that defendant knew or should have known was inaccurate; (4) plaintiff could not state either a federal or state claim based on defendant's alleged failure to notify plaintiff that it furnished negative information about plaintiff to a consumer reporting agency; (5) plaintiff's proposed second amended complaint set forth a prima facie claim under California Business and Professions Code section 17200 based on plaintiff's prima facie claims under FCRA § 1681s-2(b) and California Civil Code section 1785.25(a); (6) plaintiff failed to state a claim for "Tortious Interference with Credit Expectancy"; (7) plaintiff's proposed second amended complaint stated a prima facie claim for defamation; and (8) plaintiff failed to state a claim for intentional infliction of emotional distress. Id. at 12-25.
Accordingly, the F&Rs recommended that plaintiff be directed to file, within 30 days of the filing date of the district judge's order, a third amended complaint setting forth only those claims identified in the order and F&Rs (claims pursuant to 15 U.S.C. § 1681s-2(b), Cal. Civ. Code § 1785.25(a), Cal. Bus. & Prof. Code § 17200, and Cal. Civ. Code § 45 (defamation)), without the addition of any new claims. Id. at 25-26.
Defendant objected to the F&Rs, arguing that plaintiff's proposed second amended complaint did not set forth any valid causes of action and that if plaintiff is permitted to file a second amended complaint, any order allowing such a complaint should expressly require that plaintiff attach a copy of the credit report at issue. Dckt. No. 30. Also, while the F&Rs were pending, plaintiff prematurely filed a "Third Amended Complaint," which defendant moved to dismiss. Dckt. Nos. 32, 33. Plaintiff then acknowledged that the third amended complaint was filed prematurely and moved to withdraw that amended complaint. Dckt. No. 37.
The district judge then issued an order on March 31, 2010 adopting the September 22 F&Rs in full, except as they pertained to plaintiff's California Business and Professions Code section 17200 unfair competition law ("UCL") claim. Dckt. No. 39. The district judge held that "[u]nder California law, the mere presence or absence of a private right of action in a statute does not determine whether a violation of that statute may serve as the predicate of a UCL claim," and therefore declined to adopt the portion of the September 22 F&Rs addressing plaintiff's UCL claim. Id. at 2-3. The district judge added that, nonetheless, plaintiff's UCL claim fails in its entirety. Id. at 3-8. Accordingly, the March 31 order granted defendant's motion to dismiss, dismissed plaintiff's first amended complaint, and granted in part and denied in part plaintiff's motion for leave to file a second amended complaint.*fn1 Id. at 8. The March 31 order directed plaintiff to file a fourth amended complaint setting forth only those claims identified in the F&Rs, without the addition of any new claims, and directed plaintiff to attach to her fourth amended complaint "all reports or documents upon which she relies, including but not limited to all pertinent credit reports, notices of adverse action, insurance premium assessments, and correspondence with defendant Allstate." Id. at 9. The March 31 order also granted plaintiff's motion to withdraw the third amended complaint since that complaint was filed prematurely and denied defendant's motion to dismiss that complaint as moot. Id. at 8-9.
Thereafter, plaintiff filed a fourth amended complaint, alleging that defendant furnished false and negative information about plaintiff to a consumer reporting agency; namely, that plaintiff had filed two loss claims in 2005, and that plaintiff was paid $40,938 to settle her fire claims as opposed to $36,584.97, and "failed to inform all the credit bureaus about the result of its investigation." Dckt. No. 40, ¶ 7. The fourth amended complaint also alleges that plaintiff's homeowner's insurance premium increased as a result. Id. ¶¶ 9-10. Attached to plaintiff's fourth amended complaint are various documents on which the fourth amended complaint relies. Id. at 13-51.
The fourth amended complaint alleges violations of (1) FCRA § 1681s-2(b); (2) the California Credit Reporting Agencies Act, California Civil Code section 1785.25(a); (3) defamation pursuant to California Civil Code section 45 and FCRA § 1681(e); (4) California Business and Professions Code section 17200; (5) negligence; and (6) FCRA § 1681n. Id. Defendant now moves to dismiss and/or strike that complaint, arguing that the complaint should be dismissed for failure to comply with the March 31 order and because independent grounds support the dismissal of each of plaintiff's claims. Dckt. No. 41. Defendant also moves to strike plaintiff's punitive damages claim. Id.
II. Motion to Dismiss A. Standards
To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "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." Id. Dismissal is appropriate based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to support cognizable legal theories. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d at 1388, and matters of public record, including pleadings, orders, and other papers filed with the court. Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers.
Haines v. Kerner, 404 U.S. 519, 520 (1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985). However, the court's liberal interpretation of a pro se litigant's pleading may not supply essential elements of a claim that are not plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Furthermore, "[t]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Neither need the court accept unreasonable inferences, or unwarranted deductions of fact. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). A pro se litigant is, however, entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
B. Failure to Comply with March 31 Order
Defendant argues, as a preliminary matter, that plaintiff's fourth amended complaint should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with the March 31 order. Dckt. No. 41 at 14-16. Specifically, defendant contends that plaintiff's fourth amended complaint was not timely filed; reasserts a claim that the court dismissed with prejudice in the March 31 order; adds new claims, even though such claims were expressly precluded by the ...