Opinion
20cv1085-JO-MDD
12-05-2022
NANCY SUSSMAN, MICHAEL SUSSMAN ESTATE THEREOF BY AND THRU HIS SPECIAL ADMINISTER FOR THE ESTATE, Plaintiff, v. SAN DIEGO POLICE DEPARTMENT, et. al., Defendants.
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
Jinsook Ohta United States District Judge
I. BACKGROUND
Pro se Plaintiff Nancy Sussman originally filed a lawsuit alleging that various judges, attorneys, government entities, and private parties conspired to harm her and her son and violate their civil rights. On March 29, 2022, the Court dismissed Plaintiff's second amended complaint (the “SAC”) in full and granted her leave to amend certain claims. Dkt. 139. On May 11, 2022, Plaintiff filed a third amended complaint (the “TAC”) alleging only the following two claims: (1) abuse of process against Assistant District Attorney Wendy Patrick (“ADA Patrick”); and (2) violation of the implied covenant of good faith and fair dealing against her prior insurer, Allstate Northbrook Indemnity Company (“Allstate”). Allstate and ADA Patrick, the two remaining Defendants, moved to dismiss Plaintiff's TAC for failure to state a claim. Dkts. 142, 146. For the reasons stated below, the Court grants Defendants' motions to dismiss.
II. DISCUSSION
A. Plaintiff's Abuse of Process Claim is Dismissed
Plaintiff's TAC realleges the same abuse of process claim against ADA Patrick that the Court dismissed in its March 29, 2022 order. See Dkt. 139 at 12-13. Because it is unclear from Plaintiff's pleading whether she brings this claim under § 1983 or state tort law, the Court will address each of these possible claims in turn.
First, Plaintiff fails to state an abuse of process claim against ADA Patrick under § 1983 because Plaintiff has again failed to plead a constitutional violation, despite being alerted to this deficiency in the Court's prior order. See id. To state a claim under § 1983, Plaintiff “must allege the violation of a right secured by the Constitution.” West v. Atkins, 487 U.S. 42, 48 (1988). Here, Plaintiff continues to allege that ADA Patrick made untrue statements to the press that Plaintiff evaded the police, but does not identify a constitutional right that ADA Patrick violated. TAC ¶¶ 21-40. Although Plaintiff states that ADA Patrick's press statements caused Plaintiff reputational harm and emotional distress, “having one's reputation damaged does not constitute a due process deprivation within the meaning of § 1983.” Johnstone v. Just, 956 F.2d 1167 (9th Cir. 1992); Naliielua v. State of Hawaii, 940 F.2d 1535 (9th Cir. 1991) (holding emotional distress not a cognizable harm under § 1983 absent a violation of federal law). Thus, because Plaintiff's abuse of process claim does not allege violation of a constitutional right, it does not state a claim under § 1983.
Second, to the extent Plaintiff's abuse of process claim is brought under state tort law, it remains insufficient for failure to plead compliance with the California Tort Claims Act. Under the CTCA, Plaintiff must plead “timely presentation of a written claim and [] rejection” or “circumstances excusing compliance” before she can bring a tort claim against a government official. Mangold v. California Pub. Utilities Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995); Cal. Gov. Code §§ 911.2, 945.4. Plaintiff has not pleaded any facts indicating that she has complied with the CTCA prior to bringing a tort claim against ADA Patrick. Nor has Plaintiff pleaded that there are circumstances which excuse compliance with the CTCA. Accordingly, Plaintiff's abuse of process claim against ADA Patrick is dismissed.
The Court denies Plaintiff's request to amend her abuse of process claim for the fifth time because amendment in this case would be futile. A district court has “particularly broad” discretion in denying amendment when it has previously given leave to amend. Gonzalez v. Planned Parenthood, 759 F.3d 112, 116 (9th Cir. 2014) (citations omitted). “Futility of amendment can, by itself, justify the denial of . . . leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). While Plaintiff has had four opportunities to file a complaint, she has not been able to cure the deficiencies identified by opposing counsel and the Court. After ADA Patrick moved to dismiss Plaintiff's abuse of process claim on the same grounds the Court now rules on here, Plaintiff sought leave to amend her complaint. See Dkts. 62, 68-69. The Court granted leave to amend, but Plaintiff failed to address the deficiencies identified by opposing counsel. See Dkt. 70. When the Court dismissed Plaintiff's SAC, it explicitly informed Plaintiff that she had not stated an abuse of process claim for the same reasons described in this opinion. See Dkt. 139. Nevertheless, Plaintiff again chose not to address the deficiencies identified above. Plaintiff's repeated failure to cure deficiencies, despite multiple opportunities to do so, indicates that further leave to amend would be futile. The Court therefore denies Plaintiff's request for leave to amend.
B. Plaintiff's Implied Covenant of Good Faith and Fair Dealing Claim is Dismissed
Plaintiff fails to state a claim for violation of the implied covenant of good faith and fair dealing against Allstate because she has not alleged that she was denied any insurance benefits. In order to adequately plead a violation of the implied covenant of good faith and fair dealing against her prior insurance company, Plaintiff must plausibly allege that “(1) benefits due under the policy were withheld; and (2) the reason for withholding benefits was unreasonable or without proper cause.” Guebara v. Allstate Ins. Co., 237 F.3d 987, 992 (9th Cir. 2001). In the TAC, Plaintiff alleges that after she was in a car accident, Allstate wrongfully found her to be the party at fault and paid the other driver over $75,000. TAC ¶¶ 16-20. These facts do not sufficiently plead that Allstate withheld any benefits due to Plaintiff, let alone unreasonably or without proper cause. In fact, Plaintiff's primary complaint appears to be that Allstate wrongfully paid a claim to the other driver, not that Allstate withheld any benefits from her. Because Plaintiff has not pleaded the elements of an implied covenant violation, her claim against Allstate must be dismissed under Rule 12(b)(6).
At this time, the Court grants Plaintiff's request to amend her implied covenant of good faith and fair dealing claim against Allstate. Although the Court has broad discretion to deny Plaintiff's request to file a fifth complaint, see Gonzalez, 759 F.3d at 116, the Court notes that it previously dismissed Plaintiff's claim against Allstate on jurisdictional grounds. See Dkt. 139. Thus, although opposing counsel has identified the ways that Plaintiff's claim is deficient under Rule 12(b)(6) through multiple rounds of motions to dismiss, this is the first time the Court is doing so. Accordingly, the Court will give Plaintiff an opportunity to amend her implied covenant of good faith and fair dealing claim against Allstate with specific instruction to address the deficiencies identified in this opinion.
III. CONCLUSION
For the reasons set forth above, the Court GRANTS Defendant ADA Patrick's and Defendant Allstate's motions to dismiss the TAC [Dkts. 142, 146]. The remaining motions to dismiss are DENIED as moot. [Dkts. 144-45, 148, 150]. All Defendants aside from Allstate are dismissed from this action. Plaintiff may file an amended complaint against Allstate within 45 days of the date of this order.
IT IS SO ORDERED.