ORDER RE: MOTION TO DISMISS Document #8
Plaintiff Karima Ali entered into a written agreement with Defendant Humana, Inc. on November 4, 2009. Plaintiff agreed to become an independent contractor and solicit applications for Defendant's health and life insurance plans. Plaintiff also agreed to solicit applications for Medicare Advantage Plans that are sold by Defendant. In return, Defendant agreed to compensate Plaintiff with a commission from each insurance plan, and pay a separate Medicare referral fee for each Medicare Advantage Plan. The complaint alleges that Defendant terminated the contract, causing difficulties for Plaintiff.
Plaintiff filed her complaint on March 6, 2012 in Fresno County Superior Court, alleging seven causes of action against Defendant, claiming breach of contract, conversion, defamation, negligence, fraud, unfair competition and loss of opportunity. Defendant removed the case to this court on April 3, 2012. Pursuant to Federal Rule of Civil Procedure 12(b)(6) Defendant moved to dismiss Plaintiff's causes of action, excluding the breach of contract claim, on April 10, 2012. Plaintiff did not file a response.
Under Federal Rule of Civil Procedure 12(b)(6), a claim must be dismissed if a plaintiff fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
In reviewing a complaint under Rule 12(b)(6), all of the complaint's material allegations of fact are taken as true, and the facts are construed in the light most favorable to the non-moving party. Marceau v. Balckfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). The court must also assume that general allegations embrace the necessary, specific facts to support the claim. Smith v. Pac. Prop. and Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004). However, the court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Although they may provide the framework of a complaint, legal conclusions are not accepted as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). See also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). As the Supreme Court has recently explained:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, "a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.
"In sum, for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
The issue before the court is whether Plaintiff adequately states claims for conversion, defamation, negligence, fraud, unfair competition and loss of opportunity. Defendant contends that all of Plaintiff's allegations are unclear and insufficient. Plaintiff did not respond.
The complaint alleges that Defendant refused to pay Plaintiff $40,000 that she earned on January 1, 2011, and instead Defendant used the funds as its own. Defendant contends that Plaintiff's allegations are unintelligible, rendering a response virtually impossible. Under California law, to sufficiently state a claim for conversion, the plaintiff must establish: (1) plaintiff's ownership or right to possession of the property at the time of the conversion; (2) defendant's conversion by wrongful act; and (3) damages. Haro v. Ibarra, 180 Cal. App. 4th 823, 835 (2009). A cause of action for conversion of money may be stated where a defendant interferes with a plaintiff's possessory interest in a specific, identifiable sum. Kim v. Westmoore Partners, Inc., 201 Cal. App. 4th 267, 284 (2011).
To sustain her conversion action, Plaintiff need not establish absolute ownership over the funds, rather she need only to show that she was entitled to possession at time of the conversion. Irving Nelking & Co. v. South Beverly Hills Wilshire Jewelry & Loan, 129 Cal. App. 4th 692, 699 (2005) . Plaintiff's only support for her right to possession of the funds is her assertions that she earned the $40,000 on January 1, 2011, and that "United States Medicare paid the funds to be transferred immediately to Plaintiff." Plaintiff refers to the funds as an override commission, but does not clarify whether she earned the $40,000 as an override or commission. Plaintiff fails to sufficiently explain why she was entitled to possession of the $40,000 and the Court is not required to accept her conclusory ...