United States District Court, S.D. California
WILLIAM Q. HAYES UNITED STATES DISTRICT JUDGE
matters before the Court are 1) the Motion to Set Aside Entry
of Default Pursuant to Fed.R.Civ.P. 55(c) and Quash Service
of Process filed by Defendant Anjali Levine (ECF No. 19); 2)
the Motion to Strike Portions of First Amended Complaint
filed by Defendants Anjali Levine, Louise Stokes, and Anil
Stokes (ECF No. 22); 3) the Motions to Dismiss First Amended
Complaint for Failure to State a Claim Upon Which Relief Can
Be Granted Pursuant to Fed.R.Civ.P. 12(b)(6) filed by Anjali
Levine (ECF No. 23), Louise Stokes (ECF No. 24), and Anil
Stokes (ECF No. 25); and 4) the Motion Regarding Choice of
Law filed by Plaintiff Jeffrey Roberts (ECF No. 32).
March 28, 2019, Plaintiff initiated this action by filing a
Complaint. (ECF No. 1). Plaintiff filed Proofs of Service as
to Louise Stokes and Anil Stokes on April 6, 2019 (ECF Nos.
3-4), and as to Anjali Levine on April 15, 2019 (ECF No. 5).
Louise Stokes and Anil Stokes filed Motions to Dismiss the
Complaint on April 29, 2019 (ECF Nos. 6-7), but Anjali Levine
never filed a responsive pleading. On May 1, 2019, Plaintiff
filed a Request for Entry of Default as to Anjali Levine.
(ECF No. 9). The Clerk entered default on May 2, 2019. (ECF
filed an Amended Complaint on May 21, 2019. (ECF No. 13).
Plaintiff brings claims against Anjali Levine and Louise
Stokes for 1) intentional infliction of emotional distress
(“IIED”); 2) assault and battery; 3) violation of
the Bane Act, section 52.1 of the California Civil Code; 4)
invasion of privacy; 5) civil harassment; 6) stalking; 7)
fraud; 8) deceit; 9) scheme to defraud and communications
fraud in violation of section 817.034 of the Florida
Statutes; 10) violation of the Racketeering Influenced
Corrupt Organizations Act (“RICO”), 18 U.S.C.
§§ 1961 et seq.; 11) malicious civil conspiracy;
and 12) stalking and harassment. Plaintiff brings claims
against Anil Stokes for 1) malicious civil conspiracy; and 2)
aiding and abetting. Plaintiff seeks damages, including
punitive damages and attorneys' fees and costs.
Id. at 32. Plaintiff also seeks an injunction
against Anjali Levine and Louise Stokes “against
further possession or control of Plaintiff's private
information.” Id. at 33.
23, 2019, Anjali Levine filed a Motion to Set Aside Entry of
Default and Quash Service of Process. (ECF No. 19). Plaintiff
did not file a response.
6, 2019, Defendants filed a Motion to Strike portions of the
Amended Complaint. (ECF No. 22). Defendants each filed a
Motion to Dismiss the Amended Complaint. (ECF Nos. 23-25).
15, 2019, Plaintiff filed a Response in Opposition to
Defendants' Motion to Strike and Motions to Dismiss. (ECF
No. 26). On July 24, 2019, Defendants filed a Reply in
support of their Motion to Strike (ECF No. 28) and Replies in
support of their Motions to Dismiss (ECF Nos. 29-31).
29, 2019, Plaintiff filed a Motion Regarding Choice of Law.
(ECF No. 32). On August 19, 2019, Defendants filed a Response
in Opposition to Plaintiff's Choice of Law Motion. (ECF
No. 34). Plaintiff did not file a reply.
Factual Allegations in the FAC
is a divorced, Orthodox Jewish rabbi with two children,
living in Palm Beach County, Florida. Plaintiff alleges that
in September 2011, he met Anjali Levine on frumster.com, a
dating website for Orthodox Jews. On Plaintiff's
frumster.com profile, he “represented himself . . .
[as] a religious teacher and counselor . . . .” ECF No.
13 at 3. Plaintiff alleges that, around this same time,
Anjali Levine's mother, Louise Stokes, reached out to
Plaintiff via Facebook Messenger. Plaintiff alleges that
Louise Stokes sought Plaintiff's counseling and guidance
regarding Louise Stokes' marriage to Anil Stokes, her
plans to divorce Anil Stokes, her desire to convert to
Judaism, her financial difficulties, and her sick mother.
alleges that, after “numerous phone calls over several
months, Anjali Levine requested to meet Plaintiff in
person.” Plaintiff alleges that Anjali Levine planned
to fly from California, where she lived, to visit Plaintiff
in Florida in January 2012. Plaintiff alleges that Anjali
Levine forwarded Plaintiff “an authentic-appearing
paid-for e-ticket flight itinerary.” Shortly before the
flight, Anjali Levine cancelled the visit. Plaintiff alleges
that this cancelled trip was the first of many. Plaintiff
alleges that between 2011 and 2017, Anjali Levine and/or
Louise Stokes would send Plaintiff “authentic-appearing
e-tickets.” These tickets were intended to
“dupe” Plaintiff into believing that Anjali
Levine and/or Louise Stokes were in Florida attempting to
meet him. Plaintiff alleges that Anjali Levine and Louise
Stokes intended to harass Plaintiff, and Anjali Levine had no
intention of ever meeting him. Id. at 4.
alleges that there were approximately fifteen trips between
2011 and 2017 where Anjali Levine
“misrepresented” to Plaintiff that she attempted
to visit Florida but could not board the plane. There were
also six trips where Anjali Levine and Louise Stokes
allegedly told Plaintiff that Anjali Levine was in Florida
but was too scared to meet Plaintiff in person. Id.
at 8. Plaintiff alleges that he saw photos on Facebook of
Anjali Levine in New York or California when she claimed to
be in Florida.
Levine's second failed trip occurred in March 2012.
Plaintiff alleges that he received a booking confirmation
from a Palm Beach hotel showing that Anjali Levine paid $368,
non-refundable, for a room. Anjali Levine did not show up at
the hotel. When Plaintiff pressed Anjali Levine about her
failure to come to Florida, Anjali Levine told Plaintiff that
she was “afraid to meet him in person” because
she was a victim of childhood sexual assault. Id. at
4. Plaintiff alleges that he was genuinely concerned and
cared for Anjali Levine. Plaintiff counseled Anjali Levine
and Louise Stokes on how to deal with Anjali Levine's
trauma. Anjali Levine and Louise Stokes confided to Plaintiff
that Anjali Levine had suffered from an eating disorder,
insomnia, and nervous breakdowns and that Anil Stokes was
suffering from Parkinson's disease. Plaintiff alleges
that Anjali Levine visited a therapist who was “utterly
convinced Anjali was telling the truth.” Id.
¶ 36. Plaintiff alleges that Anjali Levine and Louise
Stokes' representations were false. Anjali Levine, Louise
Stokes, and Anil Stokes' ailments were
“invented” in order to “appeal to
Plaintiff's sympathy as a religious teacher and counselor
to . . . manipulate, control, psychologically abuse, and
defraud Plaintiff.” Id. at 11. Plaintiff
alleges that he became emotionally involved in Anjali
Levine's welfare, pouring “years of counseling,
care, money, and effort” into Anjali Levine's
psychological well-being at the expense of his own health.
Id. at 6. Plaintiff alleges he suffered from 1)
chest pain caused by the stress of Anjali Levine allegedly
planning to visit him; 2) pneumonia; 3) fever and skin
lesions requiring surgery; 4) blackouts from abnormal blood
pressure; and 5) severe emotional distress. Id. at
alleges that Anjali Levine expressed to Plaintiff that she
had “romantic and even sexual fantasies about
him.” Anjali Levine sent Plaintiff and his children
gifts, including a $488 leather briefcase. Plaintiff alleges
that Anil Stokes “was aware of and financially enabled
Anjali's and Louise's interactions with
Plaintiff.” Id. at 7. Plaintiff alleges that
Anjali Levine's claims of romance were insincere, and the
gifts were intended to trick Plaintiff into believing her
alleges that Defendants invited him to visit Anjali Levine on
eight occasions in New York, Irvine, or Washington, D.C.
Plaintiff alleges that when Plaintiff traveled to meet Anjali
Levine, she was either not in the city she had claimed to be
in or she “actively avoided” Plaintiff during his
visit. Plaintiff alleges Anjali Levine “admitted to
Plaintiff that she had stalked Plaintiff, ” and she
appeared in photos on Facebook less than a mile from
Plaintiff's house on dates when she told Plaintiff she
was in California or New York. Id. at 10. Plaintiff
alleges that Anjali Levine and Louise Stokes would
“frantically call, text, and arrange meetings . .
. day after day where they kept him waiting as long as
possible, playing on his sympathy and begging for his counsel
and support.” Id. at 12. Plaintiff alleges
that on “June 27, 2017, Plaintiff suspected fraudulent
intentions on Anjali's and Louise's behalf.”
Plaintiff “told Anjali he did not want to live knowing
she had deceived him in order to test Anjali's
reactions.” Anjali Levine “urged [Plaintiff] to
kill himself immediately.” Id. at 14.
alleges that between 2011 and 2017, he sent Anjali Levine
approximately $8, 000 in gifts and cash, based on false
representations from Anjali Levine and Louise Stokes that
they needed money to pay for Anjali Levine's therapy,
travel expenses, and school. Anjali Levine “regularly
expressed her desire to receive gold jewelry.”
Id. at 21. Plaintiff alleges that Anjali Levine
“bragged” to Plaintiff that she conducted schemes
to obtain gifts and money from other Orthodox Jewish men,
whom she contacted via Facebook or frumster.com. Id.
MOTION TO SET ASIDE DEFAULT AND QUASH SERVICE
Levine contends that the Court should set aside entry of
default and quash service of process because service of
process was defective. (ECF No. 19-1 at 8). Anjali Levine
contends that no one served her personally on April 9, 2019,
or any other day. Instead, an envelope with Anjali
Levine's name was left at the front desk of her office on
April 16, 2019. Id. at 14.
to Federal Rule of Civil Procedure 55(c), a court may set
aside an entry of default for good cause. “Failure to
properly serve a defendant with process pursuant to
Fed.R.Civ.P. 4 constitutes good cause to set aside an entry
of default.” Koninklijke Philips Elecs. N.V. v. KXD
Tech., Inc., 245 F.R.D. 470, 472 (D. Nev. 2007).
Rule of Civil Procedure 4(e) governs service of process on
individuals within a judicial district of the United States.
Rule 4(e) provides that a plaintiff may serve an individual
following state law for serving a summons in an action
brought in the courts of general jurisdiction in the state
where the district court is located or where service is made;
doing any of the following:
(a) delivering a copy of the summons and of the complaint to
the individual personally;
(b) leaving a copy of each at the individual's dwelling
or usual place of abode with someone of suitable age and
discretion who resides there; or
(c) delivering a copy of each to an agent authorized by
appointment or by law to accept service.
California state law allows for service upon an individual by
1) delivering a copy of the summons and complaint by
“personal delivery . . . to the person to be
served;” 2) substitute service combined with mailing
after a good faith effort at personal service has been
attempted; or 3) service by publication. Cal. Code Civ. Proc.
§§ 415.10, 415.20, 415.30, 415.50. Manners of
substitute service include “leaving a copy of the
summons and complaint during usual office hours in his or her
office” or “leaving a copy of the summons and
complaint at the person's . . . usual place of business .
. . in the presence of . . . a person apparently in charge of
his or her office.” Cal. Code Civ. Proc. §
Plaintiff bears the burden of establishing that service of
process was proper, because default judgment has not been
entered. Brockmeyer, 383 F.3d at 801. Plaintiff
fails to meet his burden. See SEC v. Internet Solutions
for Bus., Inc., 509 F.3d 1161, 1163 (9th Cir. 2007)
(“[A] signed return of service constitutes prima facie
evidence of valid service . . . .”). Anjali Levine has
submitted Declarations and Exhibits that call the Proof of
Service into question, and Plaintiff has not submitted
additional evidence of proper service. Plaintiff's
failure to show Anjali Levine was properly served constitutes
good cause to set aside the entry of default, even though the
Complaint is no longer the operative complaint in this
matter. Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th
Cir. 2010) (“[W]hen a plaintiff files an amended
complaint, the amended complaint supersedes the original, the
latter being treated thereafter as non-existent.”)
(quotation omitted). Anjali Levine's Motion to Set Aside
Default and Quash Service of Process (ECF No. 19) is GRANTED.
CHOICE OF LAW MOTION
contends that the Court should apply Florida substantive law
to Counts Nine and Ten of the Amended Complaint, which
Plaintiff has brought for violations of the Florida
Communications Fraud Act (“FCFA”), section
817.034 of the Florida Statutes. Plaintiff contends that
there is “no California equivalent” to the FCFA.
(ECF No. 32 at 1). Plaintiff contends that the FCFA is
different from both California common law fraud and
California's codified tort of deceit, because “each
of the California [laws] only address liability for specific
actions, whereas the very purpose of Florida Statutes §
817.034 is to address ‘a systematic, ongoing course of
conduct . . . .'” Id. at 2 (quoting Fla.
Stat. § 817.034(3)(d)). Plaintiff contends that Florida
and California's fraud and deceit laws exist to protect
persons in their states. Plaintiff's location during the
underlying events should, therefore, determine which law
governs. Plaintiff contends that the Court should also apply
Florida substantive law to Count Twelve for malicious civil
conspiracy, because Florida and California civil conspiracy
laws are designed to protect the citizens of their respective
states. “Defendants should be held accountable under
Florida law for actions directed at a Plaintiff in
Florida.” (ECF No. 32 at 2).
contend that Plaintiff fails to meet his burden to show the
Court should apply Florida law. (ECF No. 34 at 5). Defendants
contend that the FCFA “is not applicable to the facts
alleged in the matter and thus there is no conflicting law to
choose from.” Id. at 10. Defendants contend
that the FCFA does not apply because Defendants did not
conceal their names or attempt to sell Plaintiff any service
or product. Id. at 11. Defendants contend that, if
the FCFA does apply, there is no conflict with California
law, because the FCFA is a restatement of the federal wire
and mail fraud laws. California courts “employ those
same federal wire and mail fraud statutes.”
Id. at 13-14. Defendants contend that California
state law addresses schemes to defraud, not only specific,
discrete acts. Id. at 15. Finally, Defendants
contend that California has the greater interest in applying
its law, because California was where the alleged wrongs were
committed. Id. at 16. Defendants contend that
Florida and California conspiracy law is virtually identical,
so there is no conflict between the two laws. Id. at
courts sitting in diversity “must apply the forum
state's choice of law rules to determine the controlling
substantive law.” Fields v. Legacy Health
Sys., 413 F.3d 943, 950 (9th Cir. 2005) (quotation
omitted). The foreign law proponent has the burden to show
that foreign law, rather than California law, should apply to
the plaintiff's claims. In re Hyundai v. Kia
Fuel Econ. Litig., 926 F.3d 539, 561 (9th Cir. 2019). To
meet their burden, the foreign law proponent must satisfy
California's three-step “governmental
interest” test. Id.
Under the first step of the governmental interest approach,
the foreign law proponent must identify the applicable rule
of law in each potentially concerned state and must show it
materially differs from the law of California . . . . If . .
. the trial court finds the laws are materially different, it
must proceed to the second step and determine what interest,
if any, each state has in having its own law applied to the
case . . . . Only if the trial court determines that the laws
are materially different and that each state has an interest
in having its own law applied, thus reflecting an actual
conflict, must the court take the final step and select the
law of the state whose interests would be ‘more
impaired' if its law were not applied.
Wash. Mut. Bank v. Sup. Ct., 15 P.3d 1071, 1080
(Cal. 2001) (citations omitted). The preference is to apply
California law, rather than choose the foreign law.
Strassberg v. New England Mut. Life Ins. Co., 575
F.2d 1262, 1264 (9th Cir. 1978).
Plaintiff's Ninth and Tenth Counts, Plaintiff fails to
make any argument regarding step three of the governmental
interest test. Even if Plaintiff meets his burden at steps
one and two of the governmental interest test, Plaintiff
fails to show Florida's interest would be more impaired
if the Court applies California law than California's
interest would be if the Court applies Florida law. See
Coufal Abogados v. AT&T, Inc., 223 F.3d 932, 936
(9th Cir. 2000) (“[W]ith respect to regulating or
affecting conduct within its borders, the place of the wrong
has the predominant interest.”). Plaintiff fails to
meet his burden to demonstrate that the Court should apply
Florida law, rather than California law, to Plaintiff's
Ninth and Tenth Counts.
Plaintiff's Twelfth Count, Plaintiff makes no effort to
“identify the applicable rule of law in each
potentially concerned state and  show it materially differs
from the law of California.” Wash. Mut. Bank,
15 P.3d at 1080. Plaintiff has not met his burden to show the
Court should apply Florida law. The Court applies California
law to Counts Nine, Ten, and Twelve. Plaintiff's Motion
Regarding Choice of Law (ECF No. 32) is DENIED.
MOTIONS TO DISMISS
move to dismiss Plaintiff's Amended Complaint on the
grounds it fails to state a claim upon which relief can be
granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
(ECF No. 23-1 at 2).
Rule of Civil Procedure 12(b)(6) permits dismissal for
“failure to state a claim upon which relief can be
granted.” In order to state a claim for relief, a
pleading “must contain . . . a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Dismissal under Rule
12(b)(6) “is proper only where there is no cognizable
legal theory or an absence of sufficient facts alleged to
support a ...