Case 2:14-cv-09540-AB-JPR Document 56 Filed 04/22/15 Page 1 of 11 Page ID #:362

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

Case No.: CV 14-09540 AB (JPRx)

Title:

Date:

April 22, 2015

Ellen Catherine Rozario v. Kim Richards; Evolution Film & Tape, Inc.

Present: The Honorable

ANDR BIROTTE JR.

Carla Badirian
Deputy Clerk

N/A
Court Reporter

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None Appearing

None Appearing

Proceedings:

[In Chambers] Order GRANTING Defendants Motion to

Dismiss

Pending before the Court is Defendant Evolution Film & Tape Inc.s Motion to
Dismiss Plaintiff Ellen Catherine Rozarios First Amended Complaint (FAC). (Dkt.
No. 25.) Plaintiff filed an Opposition and Defendant filed a Reply. (Opposition, Dkt.
No. 45; Reply, Dkt. No. 47.) The Court took this matter under submission. (Dkt. No.
52.) Having considered the materials submitted, the Court GRANTS the Motion.

CV-90 (12/02)

CIVIL MINUTES - GENERAL

Initials of Deputy Clerk CB

Case 2:14-cv-09540-AB-JPR Document 56 Filed 04/22/15 Page 2 of 11 Page ID #:363

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff seeks recovery for the injuries she sustained from Defendant Kim
Richardss (Ms. Richards) pit bull named Kingsley. 1 (See FAC.)
A. The Real Housewives of Beverly Hills
Ms. Richards is a cast member on the reality television series The Real
Housewives of Beverly Hills (RHBH). (Id. at 4; Mot., p. 2.) Defendant produces
RHBH. (FAC, 4.) Ms. Richards and her dog appear in certain episodes of the show.
(Id. at 17.) In her complaint, Plaintiff refers to a particular episode that aired on
November 11, 2013 where a dog trainer is hired for Ms. Richardss dog. (Id. at 18.)
During that episode, Ms. Richards explained that she decided to hire a dog trainer
because her dog destroyed thousands of dollars of shoes, sunglasses, and personal
items. (Id.) The episode continued to show Ms. Richards expressing that she did not
want to be that person who has a dog that bites and hurts somebody. (Id. at 95.) It
is of note that Plaintiff has never seen this episode prior to her injuries.
B. The Dog Bite
On March 19, 2014, Plaintiff, Plaintiffs daughter, and Plaintiffs granddaughter
visited Ms. Richards at her residence to spend the evening. (Id. at 12.) Ms.
Richardss pit bull lives with her. (Id. at 14.) Even though Plaintiff has known Ms.
Richards since Ms. Richards was very young, Plaintiff was unaware that Ms. Richards
owned a dog before arriving to Ms. Richardss home. (Id. at 12, 15.) During the
course of the stay, Plaintiff alleges that Ms. Richards proceeded to make statements and
representations to Plaintiff that the dog was a sweet, cuddly dog and encouraged
Plaintiff to scratch the dog behind its ears. (Id. at 15.) Plaintiffs daughter (who
apparently watched the RHBH episode at issue) exhibited a lack of concern about the
dog and did not display any concern about the dog being violent or dangerous. (Id.
at 104; Opp., p. 16.) Plaintiffs daughter did not make any affirmative statements to
Plaintiff about the dogs behavior. According to Plaintiff, her daughters unspoken
conduct (which Plaintiff appears to believe was influenced by the way Defendant
portrayed the dog on RHBH) led Plaintiff to believe that the dog did not possess any
vicious or aggressive tendencies. (FAC, 103-104.)
The next morning Plaintiff and Ms. Richards were having a conversation in Ms.
Richardss bedroom while Ms. Richards laid in bed with her dog. (Id. at 16.) As the
two were conversing, the dog, without provocationjumped up from the bed, moved
across [the bed] andbit [Plaintiff]. (Id.) After the attack and despite Ms.
Richardss reservations, the paramedics were notified. (Id.) According to Plaintiff,
1

Defendant Kim Richards is not a party to this Motion.

CV-90 (12/02)

CIVIL MINUTES - GENERAL

Initials of Deputy Clerk CB

Case 2:14-cv-09540-AB-JPR Document 56 Filed 04/22/15 Page 3 of 11 Page ID #:364

Ms. Richards begged Plaintiff, not to tell anybody because Ms. Richards was afraid
she could lost her job. (Id.) Defendant was not filming RHBH at any point during
Plaintiffs stay with Ms. Richards.
In light of the events above, on December 12, 2014, Plaintiff initiated this action
against Defendant and Ms. Richards. (Dkt. No. 1.) On January 19, 2015, Defendant
challenged the initial complaint with a motion to dismiss the claims under Federal Rule
of Civil Procedure (Rule) 12(b)(6). (Dkt. No. 18.) On February 9, 2015, Plaintiff
filed her FAC. (See FAC, Dkt. No. 23.) By order dated February 11, 2015, this Court
denied Defendants Motion to Dismiss as moot because of the newly filed FAC. (Dkt.
No. 24.)
In her FAC, Plaintiff claims Defendant is liable under a theory of intentional
misrepresentation and conspiracy to commit intentional misrepresentation. (See FAC.)
Defendant again moves to dismiss the claims under Rule 12(b)(6). (See Mot.)
II. LEGAL STANDARD
A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the
complaint. A complaint survives a motion to dismiss under Rule 12(b)(6) if it contains
a short and plain statement of the claim showing that the pleader is entitled to relief,
which does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556
U.S. 662, 677-78, 129 S. Ct. 1937, 1949 (2009). A Rule 12(b)(6) dismissal is proper
only where there is either a lack of a cognizable legal theory or the absence of
sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police
Dept., 901 F.2d 696, 699 (9th Cir. 1988); accord Gilligan v. Jamco Dev. Corp., 108
F.3d 246, 248 (9th Cir. 1997) (A complaint should not be dismissed unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.). In other words, a complaint must allege facts sufficient
to raise a right to relief that rises above the level of mere speculation and is plausible on
its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965, 1969
(2007).
Allegations of fact are taken as true and construed in the light most favorable to the
nonmoving party. See Newdow v. Lefevre, 598 F.3d 638, 642 (9th Cir. 2010), cert.
denied, 131 S. Ct. 1612 (2011). In analyzing the sufficiency of the complaint, the Court
must first look at the requirements of the causes of action alleged. See Iqbal, 556 U.S.
at 675. The Court may then identify and disregard any legal conclusions, which are not
subject to the requirement that the Court must accept as true all of the allegations
contained in the complaint. Id. at 678.
III. DISCUSSION
CV-90 (12/02)

CIVIL MINUTES - GENERAL

Initials of Deputy Clerk CB

Case 2:14-cv-09540-AB-JPR Document 56 Filed 04/22/15 Page 4 of 11 Page ID #:365

Before discussing the pending Motion, the Court addresses the issue of considering
Defendants exhibit as part of Plaintiffs complaint.
A. The Court Considers the RHBH DVD Copy of Episode Two of Season Four
As Part of the Complaint
Defendant seeks the Courts consideration of an attached DVD copy of Episode Two
of RHBH because Plaintiff frequently references this particular episode in her complaint.
(Mot., p. 8.) Although in her Opposition Plaintiff is silent regarding the authenticity of
the proposed exhibit, she does inform the Court that other episodes are referenced in her
FAC. (FAC, 20 (misrepresentations by Defendants in the broadcasts of [RHBH]on
November 11, 2013, and on March 17, 2014, and other relevant episodes.).)2
In ruling on a 12(b)(6) motion, a court generally cannot consider material outside of
the complaint, but when the plaintiff fails to introduce a pertinent document as part of
her pleading, [] [case law makes] it clear that the defendant may introduce the document
as an exhibit to a motion attacking the sufficiency of the pleading. Wright & Miller,
5A Federal Practice & Procedure (3d. 2014 update); Branch v. Tunnell, 14 F.3d 449, 453
(9th Cir. 1994), overruled by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.
2002). Moreover, it is proper for the court to consider matters subject to judicial notice
pursuant to Federal Rule of Evidence 201.
The Court GRANTS Defendants request to consider RHBH Episode Two of Season
Four as part of the complaint. (Mot., p. 8, 2; Exs. A, B.) Plaintiff alleges that
Defendant intentionally misrepresented the danger Ms. Richardss dog posed on RHBH.
On numerous instances, Plaintiffs complaint references this RHBH episode that involved
Ms. Richardss dog being introduced to a dog trainer. (FAC, 18-20, 93-95, 97, 99,
103, 111.) It is not uncommon for courts to consider DVD exhibits in deciding a motion
to dismiss. Zella v. E.W. Scripps Co., 529 F.Supp.2d 1124, 1128 (C.D. Cal. 2007)
(considering DVD copies in determining a motion to dismiss for copyright infringement).
Because Plaintiffs claim against Defendant is predominantly based on the
representations portrayed on that episode, the Court considers this exhibit as part of the
complaint and assumes that all contents therein as true for purposes of this Motion. U.S.
v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (When a document is the basis of a
plaintiffs complaint, [t]he defendant may offer such a document, and the district court
may treat such a document as part of the complaint, and thus may assume that its contents
are true for purposes of a motion to dismiss under Rule 12(b)(6).).
B. Plaintiffs Complaint Fails to Plead An Element of Intentional
Misrepresentation
2

The Court notes that Plaintiff has referenced an additional episode (one that is not cited in the FAC) in
her Opposition. (Opp., p. 1 ([Plaintiffs daughter]watched RHBH shows [on] November 4,
2013.).)
CV-90 (12/02)

CIVIL MINUTES - GENERAL

Initials of Deputy Clerk CB

Case 2:14-cv-09540-AB-JPR Document 56 Filed 04/22/15 Page 5 of 11 Page ID #:366

Apart from the alleged representations about the dogs behavior on RHBH, the
complaint falls short in alleging a viable claim for intentional misrepresentation.
To state a claim for intentional misrepresentation, a plaintiff must allege (1) a
misrepresentation (including a false representation, concealment or nondisclosure), (2)
defendants knowledge of falsity of the representation, (3) defendants intent to defraud
or induce plaintiff to rely on the representation, (4) plaintiffs justifiable reliance on the
representation, and (5) resulting damage.3 Rice v. Charles Schwab, No. SACV
10-00398-CJC (MLGx), 2010 WL 5156654, at *2 (citing 5 WITKIN, SUMM. CAL. LAW TORTS
772(1) (10th ed.2005); Conrad v. Bank of America, 45 Cal. App. 4th 133, 155, 53
Cal.Rptr.2d 336 (Cal. App. 1996). Plaintiff must plead each element of intentional
misrepresentation with particularity under Rule 9(b). See Rice v. Charles Schwab, No.
SACV 10-00398-CJC (MLGx), 2010 WL 5156654, at *2 (C.D. Cal. 2010)
(citing Neilson v. Union Bank of California, N.A., 290 F.Supp.2d 1101, 1141 (C.D. Cal.
2003); Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 583 (2d Cir. 2005).
1.

Plaintiff Has Not Sufficiently Pleaded Justifiable Reliance

In every claim for intentional misrepresentation, a litigant must plead the element
of justifiable reliance, but Plaintiff fails to do that here.
To satisfy this element, Plaintiff first must plead thatshe actually relied on the
misrepresentation in the RHBH episode. See also Mirkin v. Wasserman, 5 Cal. 4th
1082, 1096, 23 Cal. Rptr. 2d 101, 858 P.2d 568 (Cal. 1993). Plaintiff can also plead
reliance through an indirect misrepresentation. In order to plead reliance based on a
representation made to a third party or indirect reliance, Plaintiff must show an
individual to whom the defendant did not directly misrepresent any important fact[and]
[the defendant] intends or has reason to expect to have [the misrepresentation] repeated
to a particular class of persons and the person relying upon it is one of that class.
Countrywide Home Loans, Inc. v. Americas Wholesale Lender, Inc., No. SACV
12-00242-CJC (ANx), 2014 WL 545841, at *3 (C.D. Cal. 2014) (citing Varwig v.
Anderson Behel Porsche/Audi, Inc., 74 Cal. App. 3d 578, 580, 141 Cal. Rptr. 539 (Cal.

A portion of Defendants arguments assert that Plaintiffs claim for intentional misrepresentation is a
disguise, and she is actually bringing an action for fraudulent concealment. (Mot., pp. 11-14.)
Considering this argument would not change the Courts position on its rulings or its analysis.
Regardless, Plaintiff is still the master of her complaint. See Romo v. Teva Pharmaceuticals USA, Inc.,
731 F.3d 918, 922 (9th Cir. 2013). She seeks recovery under a claim for intentional misrepresentation,
not fraudulent concealment. Although the claims of fraudulent concealment and intentional
misrepresentation have similar elements of fraud, namely reliance, the Court discusses Plaintiffs
complaint as it is pleaded. 625 3rd Associates, L.P. v. Alliant Credit Union, 633 F.Supp.2d 1040,
1050-51 (N.D. Cal. 2009) (A claim for fraudulent concealment in California requires knowing
concealment or non-disclosure by a defendant with the intent to defraud, which induces justifiable
reliance and causes injury to the plaintiff.) (citation omitted).
CV-90 (12/02)

CIVIL MINUTES - GENERAL

Initials of Deputy Clerk CB

Case 2:14-cv-09540-AB-JPR Document 56 Filed 04/22/15 Page 6 of 11 Page ID #:367

App. 1977)); see also Bullock v. Philip Morris USA, Inc., 159 Cal. App. 4th 655, 676, 71
Cal. Rptr. 3d 775 (Cal. App. 2008).
With respect to the alleged misrepresentation of the dog on RHBH, it is undisputed
that Plaintiff has never seen the RHBH episode she references or any other episode for
that matter. (See FAC, 99, 101-105.) Instead, Plaintiff contends that she relied on
Defendants RHBH representation of the dogs sweet and cuddly behavior through
[her daughter]. (FAC, 20;104.) This allegation comes despite the fact that there
are no facts in the complaint that Plaintiffs daughter said anything to her about RHBH
generally or specifically as to any particular episode.
Since Plaintiff alleges that her daughter purportedly saw RHBH Episode Two,
(FAC 103), Plaintiffs daughter would have to make some affirmative representation to
Plaintiff in order for Plaintiff to properly plead reliance. Furthermore, the daughters
affirmative representation would have to reflect the dog as not being dangerous because
of the RHBH episodes depiction of the dog. However, Plaintiff does not allege any
facts that her daughter told her anything about the dog or the way Defendant portrayed
the dog on RHBH. (See FAC.) Rather, the fact that [her daughter] did not display
any concern about the dog being violent or dangerous[,] Plaintiff takes the position
that she indirectly relied on her daughters lack of concern as an indicator to believe that
the dog was not dangerous. (FAC, 104.) Plaintiff contends that it was reasonable
for her to rely on her daughters unspoken conduct (and Ms. Richardss conduct)4 to not
fear the dog or be aware of the dogs propensity to bite people.
The Court understands justifiable reliance is normally a question of fact. See
Cutler v. Rancher Energy Corp., No. SACV 13-00906-DOC (JPRx), 2014 WL 1153054,
at *9 (C.D. Cal. 2014) (reasonableness of reliance on a misrepresentation is ordinarily a
question of fact.) (citation omitted). However, the question becomes a matter of
law when reasonable minds can come to only one conclusion based on the [alleged]
facts. Anschutz Corp. v. Merrill Lynch and Co. In., 785 F.Supp.2d 799, 827 (N.D. Cal.
2011) (citation omitted). Here, Plaintiffs own allegations make it is implausible for
Plaintiff to justifiably rely on her daughter since her daughter never actually
communicated anything to Plaintiff about RHBH prior to the dog bite. See Restatement
2d of Torts 533 (The maker of a fraudulent misrepresentation is subject to liability... to
another who acts in justifiable reliance upon it if the misrepresentation, although not
made directly to the other, is made to a third person and the maker intends or has reason
to expect that its terms will be repeated or its substance communicated to the other, and
that it will influence his conduct....). Even if the show was the reason for her
daughters comfort level with the dog, her daughters reliance cannot be imputed to
Plaintiff. Jones v. AIG Risk Management, Inc., 726 F.Supp.2d 1049, 1058 (N.D. Cal.
4

In her opposition, Plaintiff centered her claim of justifiable reliance on both her daughter and Ms.
Richards. (Opp., p. 9.) Replying on Ms. Richardss misrepresentations of her dog is a separate
argument that is discussed in the agency subsection. (See Section III.B.2.)

CV-90 (12/02)

CIVIL MINUTES - GENERAL

Initials of Deputy Clerk CB

Case 2:14-cv-09540-AB-JPR Document 56 Filed 04/22/15 Page 7 of 11 Page ID #:368

2010) (dismissing the fraud claim because plaintiff could not provide a basis to impute
reliance on her from a third party); Friedman v. Mercedes Benz USA LLC, 2013 WL
8336127, at *6 (C.D. Cal. 2013) (dismissing plaintiffs misrepresentation claim because
his actual reliance was based on advertisements he never saw).
More importantly, even assuming arguendo that Plaintiffs daughter conveyed any
concerns about Ms. Richardss dog to Plaintiff, the claim still fails as a matter of law.
Plaintiff alleges no facts to suggest Defendant intend[ed] or ha[d] reason to expect that
the substance of the episode would be repeated or its substance communicated to
someone like Plaintiff and and that it will influence [Plaintiffs] conduct around the
dog. See Restatement 2d of Torts 533 (The maker of a fraudulent misrepresentation
is subject to liability... to another who acts in justifiable reliance upon it if the
misrepresentation, although not made directly to the other, is made to a third person and
the maker intends or has reason to expect that its terms will be repeated or its substance
communicated to the other, and that it will influence his conduct....); accord Mirkin v.
Wasserman, supra, 5 Cal. 4th at 1096.
No factual scenario properly alleges justifiable reliance, and for those forgoing
reasons, Plaintiff fails to allege justifiable reliance.5
2.

Plaintiff Has Not Sufficiently Pleaded the Existence of An

Agency Relationship

Plaintiff also rests her intentional misrepresentation claim under an agency theory.
(See FAC.)
The respondeat superior doctrine makes an employer vicariously liable for torts of
its employee committed within the scope of the employment. Bolbol v. Feld
Entertainment, Inc., No. C 11-5539 PSG, 2013 WL 257133, at *4 (N.D. Cal. 2013)
(citations omitted). The doctrine imputes liability to the employer for the employees
5

In an effort to plead the remaining elements of intentional misrepresentation, knowledge and benefit of
the falsity, Plaintiff claims Defendant [] had prior knowledge the dog was dangerous and that the dog
had previously bitten and attacked a person or persons. On information and belief, the dog had
attacked a person or persons on the set of [RHBH] prior to the broadcast of Episode 2 of Season 4.
(FAC, 97.) Plaintiff attached a Thirty Mile Zone (TMZ) interview of the dog trainer from RHBH
episode in question to illustrate Defendants knowledge of the dogs viciousness. (Opp., Ex. 1.) To
demonstrate Defendants benefit from the dogs on-air persona, Plaintiff attached screenshots from
various blog websites that highlight the dogs public appeal. (Id. at Ex. 2-4; p. 18.)

Because Plaintiff fails to plead the essential element of justifiable reliance, it is immaterial whether
Plaintiff has adequately pleaded the other elements of intentional misrepresentation. Robinson
Helicopter Co., Inc. v. Dana Corp., 34 Cal. 4th 979, 990, 22 Cal. Rptr. 3d 352 (Cal. 2004) (A
fundamental element of a fraud claim is that a person justifiably relied on a misrepresentation.). The
Court does not discuss the remaining elements because properly pleading the remaining elements does
not cure the deficiencies in Plaintiffs complaint.
CV-90 (12/02)

CIVIL MINUTES - GENERAL

Initials of Deputy Clerk CB

Case 2:14-cv-09540-AB-JPR Document 56 Filed 04/22/15 Page 8 of 11 Page ID #:369

tortious act that injures a third party. Id. To come within the scope of employment,
the action must be typical of or broadly incidental to the employers enterprise. Id.
The employees activities must be inherent in, typical of or created by the work so that it
is a foreseeable risk of the particular employment. Sunderland v. Lockheed Martin
Aeonautical Sys. Support Co., 130 Cal. App. 4th 1, 9, 29 Cal. Rptr. 3d 665 (Cal. App.
2005).
Defendant moves to dismiss this action based on the nonexistence of an agency
relationship between Defendant and Ms. Richards. (Mot., p. 22.) Defendant claims
that Plaintiffs allegations solely involve Ms. Richardss representations that were
purely personal and outside the scope of her employment with Defendant. (Id.)
Plaintiff argues that her complaint alleges that Ms. Richards was Defendants agent at the
time of the incident because Ms. Richardss statements to Plaintiff at the residence were
made to further Defendants business interests and to maintain the RHBH storyline
portrayal of the dog being playful and not dangerous. (Opp., pp. 19-22.) Plaintiff
contends such allegations should be taken as true and her agency theory is normally a
question of fact that should be presented to a jury.6 (Id.) Plaintiffs arguments do not
persuade the Court.
Plaintiffs complaint contains no allegations that, if proved, would show that Ms.
Richards was Defendants agent at the time of the incident. The facts Plaintiff alleges
demonstrate Ms. Richardss conduct was purely personal. Sunderland, 130 Cal. App.
4th at 11 (If an employees act is purely personal, it is not typical of or broadly
incidental to the employers enterprise.) (citation and quotation omitted). The
complaint specifically states that Plaintiff and her daughter visited Ms. Richards as
overnight guests, and Plaintiff and her daughter have a pre-existing relationship with Ms.
Richards. (FAC, 12, 101.) These allegations suggest that the overnight stay was a
personal visit and not related to RHBH. Neither the visit nor the dog bite occurred
during the taping of RHBH. In fact, there are no allegations of RHBH crew members
being present at any point during the visit. Aside from referring to Ms. Richards as
Defendants agent and concluding that Ms. Richards furthered a scheme to
misrepresent her dog, Plaintiffs conclusory allegations do nothing more than assert
naked claims devoid of further factual enhancement and make no affirmative showing
that Defendant should be liable for Ms. Richardss conduct. See Twombly, 550 U.S. at
555.
The Court will not assume agency relationships, instead the facts must be pleaded.
Hawkins v. First Horizon Home Loans, Civ. No. S-10-1876 FCD/GGH, 2010 WL
4823808, at *9 (E.D. Cal. 2010) ([P]laintiffs do not allege any facts to show how
6

Plaintiff also believes that, during discovery, she will seek copies of the contracts between Ms.
Richards and Defendant that contain contractual provisions that Ms. Richards (and apparently her dog)
was going to be portrayed in a false light. (Opp., p. 20 1.)
CV-90 (12/02)

CIVIL MINUTES - GENERAL

Initials of Deputy Clerk CB

Case 2:14-cv-09540-AB-JPR Document 56 Filed 04/22/15 Page 9 of 11 Page ID #:370

Defendant authorized any other defendant to represent and/or bind it. Plaintiffs must
allege such facts to sufficiently apprise defendants of the nature of the agency
relationship.) (citations omitted). Without such a showing, Ms. Richardss alleged
conduct cannot be imputed to Defendant, and Plaintiffs agency theory fails. First v.
Allstate Ins.Co., 222 F.Supp.2d 1165, 1172 (C.D. Cal. 2002) (The burden of proving
agency, as well as the scope of the agents authority, rests upon the party asserting the
existence of agency and seeking to charge the principal with the representation of the
agent.) (citing Inglewood Teachers Assn v. Public Employment Relations Bd., 227 Cal.
App. 3d 767, 780, 278 Cal. Rptr. 228 (Cal. App. 1991)).
C. Because Plaintiffs Conspiracy Claim is Based on Her Intentional
Misrepresentation Claim, Plaintiff Has Not Sufficiently Pleaded a
Conspiracy Claim
[I]n a civil conspiracy, a coconspirator effectively adopts as his or her own the
torts of other coconspirators within the ambit of the conspiracy. Neilson v. Union Bank
of California, N.A., 290 F.Supp.2d 1101, 1134 (C.D. Cal. 2003) (citing Applied
Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 551, 28 Cal. Rptr. 2d 475
(Cal. 1994)). Joint tortfeasors can be held liable for the ensuing damages of their
coconspirators, irrespective of whether or not [they were] direct actor[s] and regardless
of the degree of [their] activity. Doctors Co. v. Superior Court, 49 Cal. 3d 39, 44
(1989). display
The claim that is subject of the conspiracy is the intentional misrepresentation.
(See FAC.) Thus, Plaintiffs conspiracy claim fails for the same reasona lack of
justifiable reliance. (Id. at 108-116.) Plaintiff cannot use the representations of
RHBH as a basis of her claim if the shows representations were never effectively
communicated to her. Wallack v. Idez Laboratories, Inc., No. 11CV2996-GPC (KSC),
2014 WL 1455872, at *8 (S.D. Cal. 2014) (The wrongful conduct [alleged under a
claim of conspiracy] must satisfy all elements of a cause of action for some other tort or
wrong.) (citing Gen. Am. Life Ins. Co. v. Rana, 769 F.Supp. 1121, 1125 (N.D. Cal.
1991)). Plaintiff attempts to hold Defendant liable for conspiring to intentionally
misrepresent [to her daughter], that the dog was not vicious and dangerous on Episode
Two of RHBH. (FAC, 108-111.) Plaintiff maintains that this representation
harmed her; yet, avoids acknowledging the fact that neither Defendant nor Plaintiffs
daughter overtly communicated these alleged RHBH representations to Plaintiff. In her
opposition, Plaintiff argues that Defendant conspired with Ms. Richards and it was Ms.
Richards that represented the dog as sweet and cuddly. (Opp., pp. 11-12.)
Plaintiff contends that Defendant and Ms. Richards jointly engaged in a scheme for Ms.
Richards to misrepresent her dog as sweet and cuddly to a class of people that not only
watch RHBH but also visit Ms. Richards home. This inconceivable conjecture does not
pass the Iqbal-Twombly threshold and cannot support a claim for civil conspiracy. Iqbal,
CV-90 (12/02)

CIVIL MINUTES - GENERAL

Initials of Deputy Clerk CB

Case 2:14-cv-09540-AB-JPR Document 56 Filed 04/22/15 Page 10 of 11 Page ID #:371

129 S.Ct. at 1950 (a court should assume [the] veracity [of the facts] and then determine
whether they plausibly give rise to an entitlement to relief.).
Since Defendant cannot be held liable for intentional misrepresentation, then it
cannot be held liable for conspiracy to misrepresent.
D. Plaintiffs Request for Leave to Amend Is Denied
Dismissal of a claim under Rule 12(b)(6) is appropriate only where it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957). Leave to amend is appropriate unless it is clear that the complaint
cannot be cured in alleging different facts. Silva v. Di Vittorio, 658 F.3d 1090, 1105 (9th
Cir. 2011). In ruling on a request for leave to amend, courts consider bad faith, undue
delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff
has previously amended the complaint. See Nunes v. Ashcroft, 348 F.3d 815, 818 (9th
Cir. 2003); see also Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004).
Defendant contends that the bad faith factor weighs in favor of denying Plaintiffs
request for leave to amend, but because amending this would be futile, the Court believes
the futility factor better suits this analysis.7 Ashcroft, 348 F.3d at 818 (Futility alone
can justify the denial of a motion to amend.). It is evident that Plaintiffs own factual
allegations defeat her claims. By her own allegations, Plaintiff has never seen the
RHBH episode she allegedly relies on (or any other RHBH episode) and Plaintiffs
daughter never affirmatively communicated the alleged RHBH representations to her.
Nor does Plaintiff contend that she is capable of alleging such facts in her request for
leave to amend. (Opp., p. 25.) Absent such allegations or any indication that Plaintiff
7

Having viewed the DVD, Episode Two does not appear to support Plaintiffs misrepresentation claim.
Plaintiff contends that, during the episode, Defendant displayed Ms. Richards hiring a dog trainer to
address her dogs habit of eat[ing] thousands of dollars of shoes, sunglasses, and personal items and
because Ms. Richards did not want to be that person who has a dog that bites and hurts somebody.
(Mot., Exs. 1, 2; FAC, 94.) Plaintiff states that the episode represented the dog as playful and loving
but shy and scared around strangers, despite the actual viciousness of the dog. (FAC, 94.)
However, the RHBH depictions Plaintiff points to actually display an aggressive dog. (Mot., Exs. 1,
2.)
Plaintiff should keep in mind that a falsity or deceit within the context of an intentional
misrepresentation is an assertion, as a fact, of that which is not true. Cal. Civ. Code 1710
(emphasis added). Plaintiffs misrepresentation claims are predominantly based on an episode that
portrays Ms. Richardss dog attempting to attack the dog trainer during the first encounter between the
trainer and the dog. (Mot., Exs. 1, 2.) The trainer eventually subdues the dogs charge, but it is
evident that the dog has the ability to exhibit aggressive behavior. Plaintiffs complaint focuses on Ms.
Richardss statements during the episode, instead of focusing on the dogs actions. The Court
questions how Plaintiff can assert a claim for misrepresentation in depicting the dog as playful and
loving when the very episode cited in the complaint shows the dog attacking someone.
CV-90 (12/02)

CIVIL MINUTES - GENERAL

10

Initials of Deputy Clerk CB

Case 2:14-cv-09540-AB-JPR Document 56 Filed 04/22/15 Page 11 of 11 Page ID #:372

is capable of making them, Plaintiff cannot cure the hurdles of justifiable reliance and
indirect deception, and leave to amend will be futile.
Accordingly, the Court DENIES Plaintiffs request for leave to amend.
IV.

CONCLUSION

Based on the reasons articulated above, the Court GRANTS Defendant Evolution
Film & Tape, Inc.s Motion to Dismiss WITH PREJUDICE. The Court strikes the
recently filed Joint Rule 26 Report, (Dkt. No. 53), and vacates the April 27, 2015
Scheduling Conference.
Defendant Kim Richards shall remain a party to this litigation.
IT IS SO ORDERED.

CV-90 (12/02)

CIVIL MINUTES - GENERAL

11

Initials of Deputy Clerk CB