United States District Court, S.D. California
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
PLAINTIFF'S FOURTH CAUSE OF ACTION AND REQUEST FOR
PUNITIVE DAMAGES [Doc. Nos. 24, 26]
Cathy Ann Bencivengo United States District Judge
the Court are Defendant Vasquez Marshall Architects' and
Defendant BDS Engineering, Inc.'s (collectively
“Defendants”) motions to dismiss Plaintiff's
fourth cause of action and request for punitive damages.
[Doc. Nos. 24, 26.] The Court deems them suitable for
determination on the papers submitted and without oral
argument. See S.D. Cal. CivLR 7.1(d)(1). For the
reasons set forth below, the Court grants Defendants'
motions to dismiss Plaintiff's fourth cause of action and
request for punitive damages.
September 30, 2014, KOO Construction, Inc.
(“KOO”) entered into a design/build contract (the
“Prime Contract”) with the Navy for the P-888
Close Quarters Dynamic Shooting Facility at Camp Michael
Mansoor in Pine Valley, California (the
“Project”). [Doc. No. 23 at ¶
KOO assigned to Plaintiff Great American Insurance Company
(“GAIC”) all of its claims referenced in
Plaintiff's First Amended Complaint (“FAC”).
[Id. at ¶ 3.]
to the FAC, when KOO prepared its bid for the Prime Contract
it entered into conversations with its architectural and
engineering consultants, Defendant Vasquez Marshall
Architects (“VMA”). [Id. at ¶ 22.]
KOO discussed with VMA that the Project would be a
“balanced site, ” where all the excavated
materials removed from the “cut” areas could be
accommodated after compaction in the “fill”
areas. [Id.] To achieve this, Defendant VMA hired
Defendant BDS Engineering, Inc. (“BDS”) as the
civil engineer. [Id.] Plaintiff relied on
Defendants' representations that no additional borrow
material would be needed to complete the final grading of the
Project and entered into a grading subcontract with Civil
Prime General Engineering (“Civil Prime”) for the
final grading. [Id. at ¶¶ 43-46.] In
February 2018, Civil Prime reported that the fill areas at a
major portion of the project were over 13, 000 cubic yards
short of fill. [Id. at ¶ 50.] Plaintiff
reported this shortage to Defendants and requested an
investigation with regard to the shortage of fill.
[Id. at ¶ 51.] More than three months after
discovery of the shortage, BDS revealed to Plaintiff that no
shrinkage factor was used in their calculations.
[Id. at ¶ 53.] According to Plaintiff,
Defendants deliberately remained silent during the
three-to-four-month investigation period about failing to
apply any shrinkage factor which led to extended delays in
completing critical grading operations and cost Plaintiff
$726, 042.91 in order to bring in additional suitable
material for final grading of the Project. [Id. at
¶¶ 54- 60.]
survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Thus, the Court
“accept[s] factual allegations in the complaint as true
and construe[s] the pleadings in the light most favorable to
the nonmoving party.” Manzarek v. St. Paul Fire
& Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.
2008). On the other hand, the Court is “not bound to
accept as true a legal conclusion couched as a factual
allegation.” Iqbal, 556 U.S. at 678; see
also Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th
Cir. 2001) (“Conclusory allegations of law are
insufficient to defeat a motion to dismiss”). Nor is
the Court “required to accept as true allegations that
contradict exhibits attached to the Complaint or . . .
allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences.”
Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d
992, 998 (9th Cir. 2010).
resolving a motion to dismiss for failure to state a claim,
courts may not generally consider materials outside the
pleadings. See Schneider v. Cal. Dep't of
Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998);
Jacobellis v. State Farm Fire & Cas. Co., 120
F.3d 171, 172 (9th Cir. 1997); Allarcom Pay Television
Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th
Cir. 1995). “The focus of any Rule12(b)(6) dismissal .
. . is the complaint.” Schneider, 151 F.3d at
1197 n.1. “A court may, however, consider certain
materials-documents attached to the complaint, documents
incorporated by reference in the complaint, or matters of
judicial notice-without converting the motion to dismiss into
a motion for summary judgment.” United States v.
Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
when dismissing a complaint for failure to state a claim, the
court should deny opportunity to amend only if amendment
would be futile. See Albrecht v. Lund, 845 F.2d 193,
195 (9th Cir. 1988) (dismissal without leave to amend is
appropriate if amendment “could not possibly cure the
deficiency”), amended, 856 F.2d 111 (9th Cir. 1988).
move to dismiss Plaintiff's fourth cause of action and
request for punitive damages for exceeding the Court's
Order granting leave to amend and for failure to sufficiently
plead a punitive damages claim. In opposition, Plaintiff
contends it modified its fourth cause of action within the
scope of the Court's Order in order to sufficiently plead
Scope of Court's Order Granting Leave to Amend
amended its fourth cause of action to allege
Misrepresentation, Concealment of Superior Information, and
Deceit. [Doc. No. 23 at ¶¶ 82-94.] The Court does
not find Plaintiff's amendment to be outside of the scope
of the Court's Order granting leave to amend as
Defendants suggest. Plaintiff's amendment relates to the
same set of facts and conduct set forth or attempted to be
set forth in Plaintiff's original complaint and the
Court's Order granting leave to amend did not foreclose
amending any cause of action to “sufficiently plead
malice, oppression, or fraud.” [Doc. No. 22 at 8.]
Under the amended cause of action, Plaintiff seeks an award
of punitive damages against Defendants for essentially a
Fraudulent Concealment and Request for ...