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Mark A. Grant v. United States of America

June 8, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently before the court*fn1 is a motion to dismiss plaintiff's fifth and sixth claims for relief pursuant to Federal Rule of Civil Procedure 12(b)(6), which was filed by defendants Mary Pickett and Mercury Casualty Company ("Mercury").*fn2 Ms. Pickett and Mercury (collectively, the "Mercury Defendants") contend that plaintiff's complaint fails to state claims for invasion of privacy under California law.

The court heard this matter on its law and motion calendar on April 7, 2011. (Minutes, Dkt. No. 24.) Attorney Kristina L. Velarde appeared on behalf of the Mercury Defendants. Plaintiff, who is proceeding without counsel, failed to appear at the hearing.

Following the hearing, the undersigned ordered the Mercury Defendants to file a supplemental brief addressing concerns raised by comments made at the hearing, and also permitted plaintiff to file a response to the Mercury Defendants' supplemental brief. (Order, Apr. 8, 2011, Dkt. No. 26.) The Mercury Defendants filed a supplemental brief, and plaintiff filed a supplemental opposition. (Dkt. Nos. 27-28.) Although clearly not provided for by the court's April 8, 2011 order, the Mercury Defendants filed a "surrebuttal" to plaintiff's supplemental filing. (Dkt. No. 29.) Although the undersigned has considered the Mercury Defendants' "surrebuttal" out of an abundance of caution, counsel for the Mercury Defendants are advised to closely read the court's orders in the future and act in conformity therewith.

The undersigned has fully considered the parties' submissions, oral arguments, and appropriate portions of the record in this case and, for the reasons that follow, recommends that the Mercury Defendants' motion to dismiss be granted and that plaintiff's fifth and sixth claims for relief be dismissed with prejudice.


Plaintiff alleges that he is a disabled veteran "with a Department of Veterans

Affairs disability rating of 100 percent." (Compl. ¶ 14.) Plaintiff's claims arise from a traffic collision involving plaintiff and Mercury's insured driver, Robert Williams, which plaintiff alleges occurred on May 7, 2006, and resulted in plaintiff suffering "major injuries." (See id. ¶¶ 12, 77.) Plaintiff alleges that he received his initial treatment for these injuries at "the University of California Davis Medical Facility and there after . . . sought treatment from the defendant Department of Veterans Affairs; Veterans Administration San Francisco Veterans Administration Medical Center." (Id. ¶ 13 (emphasis omitted).) He alleges that the "Department of Veterans Affairs; Veterans Administration San Francisco Veterans Administration Medical Center is a medical facility operating under defendant United States of America, Department of Veterans Affairs" in San Francisco, California. (Id. ¶ 7.)

Relevant to the alleged disclosures that give rise to plaintiff's claims against the Mercury Defendants, plaintiff alleges that defendant Mary Pickett was, during the relevant period, a "Litigation Specialist and/or employee/agent for" Mercury. (Compl. ¶ 11.) Additionally, plaintiff alleges that during the relevant period, defendant Darrell M. McDonald was, or was acting as, an employee, paralegal, or agent for the "Department of Veterans Affairs; Veterans Affairs Administration San Francisco Veterans Administration Medical Center." (Id. ¶ 8 (emphasis omitted).)

Plaintiff alleges that on or about August 5, 2009, Mercury and Ms. Pickett contacted Mr. McDonald and requested that Mr. McDonald "provide defendant with plaintiff's personal, confidential and individually identifiable health information without authorization." (Compl. ¶ 78.) He alleges that defendants including Mr. McDonald "complied with said request without objection." (Id.) Specifically, plaintiff alleges that on or about August 5, 2009, Mr. McDonald "knowingly obtained and/or intentionally or willfully disclosed [plaintiff's] individually identifiable health information." (Id. ¶ 25.) He further alleges that Mr. McDonald "intentionally or willfully transferred [plaintiff's] personal, confidential and individually identifiable health information to" Mercury and Ms. Pickett, and did so without plaintiff's written consent or "any other lawful process." (See id. ¶¶ 26-27, 47-49, 63.) Plaintiff alleges that at least some of the disclosed health information was unrelated to his treatment for injuries suffered as a result of the May 2006 traffic collision. (Id. ¶¶ 37, 47-49, 63.) Moreover, plaintiff alleges that this information was obtained from a state agency or a system of records maintained by a federal government agency, ostensibly the Department of Veterans Affairs. (See id. ¶ 47.)

Plaintiff alleges that once Mr. McDonald transferred plaintiff's health information to Mercury and Ms. Pickett, Ms. Pickett further disclosed that information on Mercury's behalf to Mercury's legal counsel, John P. Hallisy, "who later gave copies to plaintiff Mark A. Grant." (Compl. ¶ 79; see also id. ¶¶ 89, 92.) Plaintiff alleges that the Mercury Defendants "illegally invaded [plaintiff's] privacy, with the purpose of using plaintiff's personal, confidential and individually identifiable health information to defeat plaintiff's claim for compensation against their insured and to force settlement of plaintiff's personal injury claim for their insured's policy limit of $15,000.00 which was a fraction of the damages suffered by plaintiff and claimed by plaintiff." (Id. ¶ 80.) It appears from the complaint that plaintiff had been pursuing a personal injury claim in the Superior Court of California, County of Sacramento, which proceeded under case number "34-2008-00002729." (See id. ¶ 22; see also id. ¶¶ 85, 93.)

Plaintiff alleges that on September 17, 2009, he learned of Mr. McDonald's disclosure of plaintiff's medical records and, that same evening, faxed a letter to Mr. McDonald complaining about Mr. McDonald's acts. (See Compl. ¶ 98.) He further alleges that on September 18, 2009, he called Mr. McDonald about the disclosure, and Mr. McDonald sent plaintiff a reply letter that same day. (Id. ¶ 99.) The contents of those communications are not material to the Mercury Defendants' pending motion to dismiss. Plaintiff alleges that on or about September 18, 2009, he signed a document called "Release of All Claims," which was presented to plaintiff by Mercury and apparently settled plaintiff's accident-related claim against Mercury's insured driver, Mr. Williams. (See id. ¶ 16.) Attached as Exhibit A to plaintiff's complaint is a notice of settlement and request for dismissal filed by plaintiff on September 18, 2009, in Sacramento Superior Court case number 34-2008-00002729. (Compl., Ex. A.)

On February 9, 2011, plaintiff filed his complaint in this court, alleging six express claims for relief. (Compl., Dkt. No. 1.) The Mercury Defendants are only named in the fifth and/or sixth claims for relief. Plaintiff's fifth claim for relief is a claim of "Invasion of Privacy" and is alleged against both Ms. Pickett and Mercury. (See Compl. ¶¶ 74-85.) Generally, it alleges that the Mercury Defendants "intentionally or willfully intruded upon plaintiff Mark A. Grant's solitude, seclusion or private affairs and concerns without lawful process or plaintiff's consent expressed or implied." (Id. ¶ 76.) Plaintiff's sixth claim for relief is alleged only against Ms. Pickett and alleges a statutory claim for "Invasion of Privacy" pursuant to California Civil Code § 1798.53. (See id. ¶¶ 86-95.) As to each claim, plaintiff seeks $10,000,000 in general damages, $22,661.87 in special damages, and costs. (See id. at 25-26.) In regards to his sixth claim for relief, plaintiff also seeks statutorily authorized exemplary or punitive damages against Ms. Pickett in an amount of $100,000,000, but not less than $2,500.*fn3

(Id. at 26.)

On March 7, 2011, the Mercury Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), seeking to dismiss plaintiff's fifth and sixth claims for relief. (Dkt. No. 8.) On March 21, 2011, plaintiff filed a timely written opposition. (Pl.'s Opp'n to Mot. to Dismiss, Dkt. No. 17.) And as noted above, the court held a hearing on the Mercury Defendants' motion and subsequently ordered additional briefing.


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), cert. denied, 130 S. Ct. 1053 (2010). "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 of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). 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. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (stating that "pro se pleadings are liberally construed, particularly where civil rights claims are involved").

In ruling on a motion to dismiss pursuant to Rule 12(b), 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). Although the court may not consider a memorandum in opposition to a defendant's motion to dismiss to determine the propriety of a Rule 12(b)(6) motion, see, e.g., Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding whether to grant leave to amend, see, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003) ("Facts raised for the first time in plaintiff's opposition papers should be considered ...

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