United States District Court, N.D. California
CYNTHIA S. WILLS and CARMEL RESORT SUPPLY, Plaintiffs,
HANSON BRIDGETT, LLP, and FIRST REPUBLIC BANK, Defendants.
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS;
DISMISSING CASE RE: DKT. NOS. 48, 49
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 Hanson
Bridgett LLP and First Republic Bank arising out of two
checks that she alleges were not delivered on time. Dkt. No.
1, Ex. 1. Because Wills fails to allege sufficient facts to
state any claims against Hanson Bridgett or First Republic
Bank, all claims against both defendants are DISMISSED. No.
claims remain, so the case is hereby DISMISSED.
Wills filed this case pro se 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.
Defendants filed motions to dismiss all claims. Dkt. Nos. 7,
10, 14. The Court held a hearing on the motions. Dkt. No. 40.
The Court granted the motions to dismiss, dismissing former
defendant UPS from the case. Dkt. No. 42. The Court dismissed
all of Ms. Wills's claims against Hanson Bridgett and
First Republic Bank, and granted Ms. Wills leave to amend.
Dkt. No. 42.
amended complaint lists “Cynthia S. Wills” and
“Carmel Resort Supply” as plaintiffs. Dkt. No. 42
at 1. She explains that she is “an individual and sole
proprietor, d/b/a Carmel Resort Supply.” Id.
Wills's amended complaint alleges that she entered into
“partly 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. FAC ¶ 9. She alleges that the check was not
received by American Express on time, causing her to miss a
payment. Id. She alleges that she
requested another check from FRB on July 13, 2018, this time
for $800 and for delivery directly to her. FAC ¶ 10.
alleges that sometime between July 13 and July 19, 2018, she
received a call from an attorney at Hanson Bridgett, a law
firm representing FRB. FAC ¶ 11. She expressed concern
in that phone call about the issues with the $10, 000 check.
Id. On July 19, 2018, Wills received a letter from
Hanson Bridgett stating that FRB had retained their firm
“to review [her] accusations and address [her]
harassment of various personnel in offices in San Francisco
and other bank branches, ” and informing her that her
FRB account was being closed. Id. The $800 check was
not enclosed with the letter. Id. Wills found
herself “in banking
hell.” Id. (emphasis in
attaches to her complaint a letter from Hanson Bridgett dated
July 20, 2018, which states that two checks were awaiting
pick-up at the United States Post Office (one for $800, and
one for $3, 571.84). Dkt. No. 43, Ex. 3. The letter states
that “[a]n employee of the United States Postal Service
telephonically confirmed that the check is there waiting for
you to pick it up.” Id. Wills also attaches a
letter that she wrote to Hanson Bridgett on July 24, 2018,
stating that she would not cash the checks and requesting
that they be sent to a different location. Dkt. No. 43, Ex.
4. She received the checks at that new location on July 26,
2018. FAC ¶ 11. Timing was so tight that she had to hand
deliver her next payment to her creditor. Id. Wills
states that her business suffered and that she was forced to
vacate her office space as a result of defendants'
Hanson Bridgett moved to dismiss the entire complaint. Dkt.
Nos. 48, 49. Wills filed an opposition to the motions. Dkt.
No. 52. All parties consented to the jurisdiction of a
magistrate judge under 28 U.S.C. § 636(c). Dkt. Nos. 11,
15, 16, 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). If a 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).
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,