United States District Court, N.D. California
CYNTHIA S. WILLS, Plaintiff,
UNITED PARCEL SERVICE (UPS), HANSON BRIDGETT, LLP, and FIRST REPUBLIC BANK, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTIONS TO DISMISS; DISMISSING UPS FROM THIS
CASE RE: DKT. NOS. 7, 10, 14
NATHANAEL M. COUSINS UNITED STATES MAGISTRATE JUDGE.
plaintiff Cynthia Wills brings claims for breach of contract,
negligent infliction of emotional distress, and intentional
infliction of emotional distress against defendants United
Postal Service, Hanson Bridgett LLP, and First Republic Bank
arising out of two checks that she alleges were not
delivered. Dkt. No. 1, Ex. 1. Because all claims against UPS
are preempted by the Federal Aviation Administration
Authorization Act, they are DISMISSED without leave to amend
and UPS is DISMISSED from this case. Because Wills fails to
allege sufficient facts to state any claims against Hanson
Bridgett or First Republic Bank, all claims against these
defendants are DISMISSED with leave to amend.
Wills filed this case in state court against defendants
United Postal Service, Hanson Bridgett LLP, and First
Republic Bank. Dkt. No. 1, Ex. 1 (Complaint). Defendants
removed the case to federal court. Dkt. No. 1. This Court
denied Wills's motion to remand. Dkt. No. 39.
complaint alleges that she entered into “written, oral
and implied in fact contract(s)” with First Republic
Bank on May 10, 2018, that obligated the bank “to
secure timely delivery of a $10, 000 check to American
Express” for payment on her account. Compl at 6. She
alleges that the Bank failed to “secure timely
delivery” of the check. Id. She also alleges
that she and the Bank entered into another “written,
oral and implied in fact contract” on July 13, 2018,
for the Bank to deliver an $800 check to her. Compl. at 7.
She alleges that on July 24, 2018, the Bank failed to deliver
her that check. Id. Wills alleges that between July
13 and July 17, 2018, the Bank retained its counsel Hanson
Bridgett LLP for a “nuts and sluts” defense
against her. Compl. at 10, 14. She sent a fax to Hanson
Bridgett's managing partner on July 24, 2018,
“putting the law firm on notice with regard to secure
timely delivery of the $800 check.” Id. She
alleges that Hanson Bridgett intentionally refused to deliver
the $800 check. Id. Wills brings claims for breach
of contract, intentional infliction of emotional distress,
and negligent infliction of emotional distress against all
defendants. Id. at 10-17. Wills seeks compensatory,
punitive, and exemplary damages. Id. at 14.
three defendants moved to dismiss the entire complaint. Dkt.
Nos. 7, 10, 14. Wills filed her opposition to the motions to
dismiss five days past the Court's extended deadline.
Dkt. No. 32. The Court nonetheless considers her opposition
in deciding this Order. Additionally, the Court held a
hearing on the motions to dismiss. Dkt. Nos. 27, 40.
parties consented to magistrate judge jurisdiction under 28
U.S.C. § 636(c). Dkt. Nos. 11, 15, 16, 20, 30.
motion to dismiss for failure to state a claim under Rule
12(b)(6) tests the legal sufficiency of a complaint.
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
On a motion to dismiss, all allegations of material fact are
taken as true and construed in the light most favorable to
the non-movant. Cahill v. Liberty Mut. Ins. Co., 80
F.3d 336, 337- 38 (9th Cir. 1996). The Court, however, need
not accept as true “allegations that are merely
conclusory, unwarranted deductions of fact, or unreasonable
inferences.” In re Gilead Scis. Secs. Litig.,
536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint
need not allege detailed factual allegations, it must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim is facially plausible when it “allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
court grants a motion to dismiss, leave to amend should be
granted unless the pleading could not possibly be cured by
the allegation of other facts. Lopez v. Smith, 203
F.3d 1122, 1127 (9th Cir. 2000). Leave to amend should be
granted liberally to pro se plaintiffs. Id. at 1128.
Breach of Contract
plead a claim for breach of contract, a plaintiff must
allege: (1) the existence of a contract, (2) plaintiff's
performance or excuse for nonperformance; (3) defendant's
breach; and (4) resulting damages to the plaintiff. Oasis
W. Realty, LLC v. Goldman, 51 Cal.4th 811, 821 (2011). A
contract can be created orally, in writing, or through
conduct. Cal. Civ. Code §§ 1620-1622. An
implied-in-fact contract can be inferred from the
parties' conduct. Division of Labor Law Enforcement
v. Transpacific Transportation Co., 69 Cal.App.3d 268,
275 (1977). To establish third-party beneficiary status in
relation to a contract, the plaintiff must demonstrate that
“[t]he contracting parties . . . intended to confer a
benefit on the third party.” Neverkovec v.
Fredericks, 74 Cal.App.4th 337, 348 (1999).