The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge
Order Dismissing Complaint for Failure to State a Claim and Lack of Standing and Denying as Moot Motion to Direct Marshal to Serve [Doc. Nos. 1 and 14]
On July 21, 2011, the Plaintiff, Mel M. Marin, a non prisoner proceeding pro se, filed a complaint against approximately twenty-four Defendants. In the instant Complaint, the Plaintiff alleges causes of action for conversion, fraud and deceit, intentional infliction of emotional distress, assault and battery, personal injury, deceptive trade practices, financial abuse, false representation, breach of fiduciary duty, violation of the civil rights act and wrongful death. The Plaintiff also filed a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1) and Local Civil Rule 3.2(a). On September 29, 2011, this Court denied Plaintiff's motion to proceed in forma pauperis because his motion failed to state an inability to pay costs or give security with particularity, definiteness, and certainty. Plaintiff was granted 30 days leave to pay the $350.00 filing fee or to submit additional documentation regarding his economic status. On October 6, 2011, Plaintiff submitted additional documentation regarding his economic status and the Court granted his motion to proceed in forma pauperis on December 12, 2011. On May 21, 2012, Plaintiff filed a motion to direct Marshal to serve.
A court may dismiss, sua sponte, the case at any time if it determines the plaintiff failed to state a claim on whichrelief may be granted pursuant to § 1915(e)(2). Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). "A plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights." Id. A court will deny any motion that fails to present a legal and factual basis. Id.
Plaintiff's First Cause of Action
Plaintiff's first cause of action alleges fraud was committed by Defendants, Escondido Care Center, MEK Escondido L.L.C., Edward Keh, Lawrence Keh, Martha Keh, and Donald Wheeler. Plaintiff alleges fraud on behalf of his deceased mother and himself. Plaintiff asks for relief in the amount of $84.8 million dollars from each Defendant on behalf of his deceased mother. Plaintiff also seeks $12 million dollars from each Defendant on his own behalf.
As a preliminary matter, the Court will first address whether Plaintiff has standing to sue on behalf of his deceased mother. Capacity to sue is governed by Federal Rule of Civil Procedure 17(b), which provides that, for an individual acting in a representative capacity, "capacity to sue or be sued shall be determined by the law of the state in which the district court is held." See Fed. R. Civ. P. 17(b). Under California law, only a decedent's personal representative or successor in interest may bring an action on the decedant's behalf. See Cal. Civ. Proc. § 377.30. A person who seeks to commence an action as the decedant's successor in interest must, under California law, file an affidavit or a declaration under penalty of perjury under the laws of California. See Cal. Civ. Proc. § 377.32. The affidavit or declaration must state the decedant's name, time and place of death, and must aver that no proceeding is now pending in California for administration of the decedent's estate. Id. The affidavit or declaration must also state that the declarant is the decedent's successor in interest and succeeds to the decedent's interest in the action or proceeding and that no other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding. Id. A certified copy of the death certificate must be attached to the affidavit. Id. "The party seeking to bring a survival action bears the burden of demonstrating that a particular state's law authorizes a survival action and that the plaintiff meets that state's requirements for bringing a survival action." Moreland v. Las Vegas Metropolitan Police Dept., 159 F.3d 365, 369 (9th Cir. 1998) (quoting Byrd v. Guess, 137 F.3d 1126, 1131 (9th Cir. 1998)). Here, Plaintiff's complaint fails to address the state law requirements or whether they have been fulfilled in this action. Plaintiff has also failed to include an affidavit or declaration containing any of the statements required by California law or include a certified copy of the death certificate. Accordingly, Plaintiff has no standing to sue on behalf of his deceased mother.
The Plaintiff also asserts claims on his own behalf. Under Federal Rule of Civil Procedure 9(b), allegations of fraud must be plead with particularity. See Fed.R.Civ.P. 9(b). Rule 9(b) requires that, when fraud is alleged, "a party must state with particularity the circumstances constituting fraud. . ." Id.. Any averments which do not meet that standard should be "disregarded," or "stripped" from the claim for failure to satisfy Rule 9(b). Id. "Averments of fraud must be accompanied by 'the who, what, when, where, and how' of the misconduct charged." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir.1997)).
In Plaintiff's allegations for fraud against the Defendants he claims that Escondido Care Center "committed deliberate fraud against Mother and Son by telling them Mother would be allowed acupuncture treatments whenever son wanted them, when they knew they would stop allowing that care whenever they felt like it." Pl. 's Compl. 23, Doc. No. 1. In his allegations Plaintiff has failed to give the who, what, when, where and how, of the misconduct charged. Plaintiff has failed to state with particularity the circumstances constituting fraud. He fails to state the circumstances surrounding any promises made by Escondido Care Center, who gave him these promises, how the promises were given, when the promises were given, and where the promises were given. Accordingly, this Court finds that Plaintiff lacks standing and fails to state a claim in his first cause of action.
Plaintiff's Second and Third Causes of Action
Plaintiff's second cause of action asserts intentional infliction of emotional distress, personal injury, assault and battery against Escondido Care Center, MEK Escondido, L.L.C., Edward Keh, Lawrence Keh, and Donald Wheeler. Pl. 's Compl. 28, Doc. No. 1. Plaintiff's third cause of action asserts financial abuse, deceptive practice against senior citizens, and conspiracy against the same Defendants. Id. at 31. Plaintiff sues on behalf of his mother and asks for $94.8 million in relief from each Defendant for the second cause of action and $9,000 from each Defendant for the third cause of action. Id. at 28, 31.
As stated above, the Plaintiff has failed to demonstrate standing to sue on behalf of his deceased mother. Plaintiff's complaint fails to address the state law requirements and include an affidavit containing any of the statements required by California law or a certified copy of the death certificate. Accordingly, this Court finds that Plaintiff has no standing to sue on behalf of his deceased mother.
Plaintiff's Fourth, Fifth, Sixth and Seventh Causes of Action
Plaintiff's fourth cause of action alleges battery, breach of fiduciary duty and violation of the Civil Rights Act against Defendants: Dr. Raymond Dann and Palomar Hospital on behalf of his deceased mother. Pl. 's Compl. 32-33, Doc. No 1. Plaintiff's fifth, sixth, and seventh causes of action assert the tort of conversion against numerous Defendants. Id. at 34. Plaintiff seeks relief in the amount of $94.8 million dollars, plus interest, from each Defendant on each cause of action on behalf of his deceased ...