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Vaupen v. Branston

United States District Court, N.D. California

May 10, 2018

KIMBERLY VAUPEN, Plaintiff,
v.
PHIL BRANSTON, Defendant.

          ORDER RE DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT RE: DKT. NO. 39

          DONNA M. RYU, UNITED STATES MAGISTRATE JUDGE

         Defendant Phil Branston moves to dismiss Plaintiff Kimberly Vaupen's claims for negligence per se, negligent infliction of emotional distress, and intentional infliction of emotional distress, as well as her request for punitive damages in the First Amended Complaint (“FAC”). [Docket No. 39]. In the alternative, Branston moves for a more definite statement of these claims. Vaupen opposes. [Docket No. 40]. This matter is suitable for resolution without a hearing. Civ. L.R 7-1(b). For the reasons stated below, the court grants Branston's motion to dismiss in part, with leave to amend. The motion for a more definite statement is denied as moot.

         I. BACKGROUND

         Vaupen makes the following allegations in the FAC, all of which are taken as true for purposes of this motion.[1] On March 1, 2016 at 6:00 p.m., Vaupen was running southbound on the right side of the Iron Horse Regional Trail in Danville, California. FAC, ¶ 10 [Docket No. 38]. Branston was riding a bicycle in Vaupen's lane of travel without any bright lights, and on the wrong side of the trail, i.e., the left lane instead of the right lane. He was traveling at a “high and unreasonable rate of speed” when he collided with her, causing her to violently fall face first into the asphalt. FAC, ¶ 10. As a result, Vaupen sustained personal injuries including the loss of her front tooth, deep lacerations and bruises to her face, lip, and hands, and torn ligaments. Id. Vaupen received several stitches to the inside and outside of her upper lip. She also had two cortisone injections in her left hand and underwent several months of physical therapy to retrain her left hand. Id. She still continues to experience pain when she eats, and has stiffness in her left hand when performing basic activities, such as lifting or closing her hand. Id.

         Following the collision, Branston did not call for emergency assistance or notify the police, nor did he provide his name or contact information to Vaupen, the emergency team that arrived to assist her, or any persons that stopped to help. Id., ¶ 12. Vaupen eventually located Branston by posting about the incident on nextdoor.com, a social media website. Id., ¶ 13.

         According to Vaupen, Branston gave a statement to the police about the incident on March 6, 2016, in which he presented conflicting accounts of the collision.[2] Id. He initially stated that he was cycling northbound in the middle of the Iron Horse Trail when his bike light illuminated a jogger on the trail. Id. At that point, he realized that he was going to collide with the jogger, but could not “alter his course.” Id. Branston later stated that he “did not notice the jogger prior to the collision.” Id.

         On September 20, 2017, Vaupen filed this lawsuit alleging claims for negligence and negligence per se. Compl. [Docket No. 1]. Branston moved to dismiss the negligence per se claim, as well as Vaupen's requests for punitive damages and attorneys' fees. [Docket No. 9]. On January 26, 2018, the court granted Branston's motion to dismiss with leave to amend the negligence per se claim only. Order Granting Defendants' Motion to Dismiss with Leave to Amend (“January 26, 2018 Order”) [Docket No. 36].

         Vaupen filed a timely FAC alleging four state law claims: 1) negligence and recklessness; 2) negligence per se; 3) negligent infliction of emotional distress (“NIED”); and 4) intentional infliction of emotional distress (“IIED”).[3] The FAC also contains a request for punitive damages.

         Branston moves to dismiss the claims for negligence per se, NIED, and IIED, as well as the request for punitive damages. [Docket No. 39].

         II. LEGAL STANDARD

         A. Motion to Dismiss

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock Inc., 349 F.3d 1191, 1199-200 (9th Cir. 2003). When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all of the factual allegations contained in the complaint, ” Erickson, 551 U.S. at 94 (citation omitted), and may dismiss the case “only where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citation and quotation marks omitted).

         When a complaint presents a cognizable legal theory, the court may grant the motion if the complaint lacks “sufficient factual matter to state a facially plausible claim to relief.” Id. (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A claim has facial plausibility when a “plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted).

         B. Motion for Definite Statement

         Federal Rule of Civil Procedure 12(e) provides that “a party may move for a more definite statement of a pleading . . . which is so vague or ambiguous that the party cannot reasonably prepare a response.” Motions for a more definite statement are “viewed with disfavor” and are rarely granted. Cellars v. Pac. Coast Packaging, Inc., 189 F.R.D. 575, 578 (N.D. Cal. 1999). However, courts may require a more definite statement “when the pleading is so vague or ambiguous that the opposing party cannot respond, even with a simple denial, in good faith or without prejudice to himself.” Cellars, 189 F.R.D. at 578 (quotation and citation omitted).

         C. Leave to Amend

         Under Federal Rule of Civil Procedure 15(a), leave to amend should be granted as a matter of course, at least until the defendant files a responsive pleading. Fed.R.Civ.P. 15(a)(1). After that point, Rule 15(a) provides generally that leave to amend the pleadings before trial should be given “freely . . . when justice so requires.” Fed.R.Civ.P. 15(a)(2). “This policy is to be applied with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quotation omitted). In the absence of an “apparent” reason, such as undue delay, bad faith or dilatory motive, prejudice to the opposing party, futility of the amendments, or repeated failure to cure deficiencies in the complaint by prior amendment, it is an abuse of discretion for a district court to refuse to grant leave to amend a complaint. Foman v. Davis, 371 U.S. 178, 182 (1962); Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir. 1999).

         III. DISCUSSION

         Branston moves to dismiss the claims for negligence per se, NIED, and IIED, as well ...


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