Case 2:14-cv-09540-AB-JPR Document 47 Filed 03/26/15 Page 1 of 8 Page ID #:314

3
4
5
6
7
8
9

Will Parsons, BPR No. 26519 (Admitted Pro Hac Vice)

SHACKELFORD, BOWEN, ZUMWALT & HAYES, LLP
47 Music Square East
Nashville, TN 37203
Email: WParsons@shackelfordlaw.net
Telephone: 615-329-4440
Facsimile: 615-329-4485

ea

Michael R. White, State Bar No. 91148

WHITE & REED LLP
5757 W. Century Boulevard, Suite 700
Los Angeles, CA 90045
Email: white@whitereed.com
Telephone: (310) 843-9065
Facsimile: (310) 843-9064

Attorneys for Defendant

EVOLUTION FILM & TAPE, INC.

10
11

he T

UNITED STATES DISTRICT COURT

13

CENTRAL DISTRICT OF CALIFORNIA

14
15

ELLEN CATHERINE ROZARIO,

16

18
19
20
21
22

Case No.: 2:14-cv-09540 AB (JPRx)

MEMORANDUM OF POINTS AND

AUTHORITIES IN REPLY TO
OPPOSITION TO MOTION TO
vs.
DISMISS FIRST AMENDED
KIM RICHARDS; EVOLUTION FILM & COMPLAINT (FED.R.CIV.P. 12(b)(6)
TAPE, INC., a California Corporation,
and DOES 1 through 5, inclusive,
Hrg Date: April 6, 2015
Hrg Time: 10:00 a.m.
Defendants.
CtRm: 4
Plaintiff,

All A
b

17

out T

12

23

In response to Plaintiffs Amended Memorandum of Points and Authorities in

24

Opposition to Defendants Motion to Dismiss Complaint (Doc. No. 45 on the Courts

25

docket; herein referred to as Amended Opposition), Defendant Evolution Film &

26

Tape, Inc. (Evolution) hereby submits this Reply Memorandum in support of its

27

Motion to Dismiss Plaintiffs First Amended Complaint (Doc. No. 23; herein,

28

FAC), and states as follows:

REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

Case 2:14-cv-09540-AB-JPR Document 47 Filed 03/26/15 Page 2 of 8 Page ID #:315

1
2

I.

Plaintiff has conceded that her indirect deception claim against

Evolution fails as a matter of law.
Plaintiff admits that she did not see the episode of The Real Housewives of

Beverly Hills containing the alleged misrepresentations regarding defendant

Richards dog. While she alleges her daughter saw the episode (FAC, 20), she does

not allege that her daughter told her about the episode and its alleged representations,

or that she learned about the representations from any other source. In fact, Plaintiff

admits that it is not Plaintiffs contention that her daughter repeated the alleged

misrepresentations to her. (Amended Opposition, p. 12.)

he T

ea

Because she admits she never heard the alleged misrepresentations at issue,

11

Plaintiff cannot establish the actual reliance element of her fraud claim based on

12

indirect deception. Put simply, she could not have relied on statements she neither

13

heard nor heard about.

out T

10

14

As alleged in the FAC, plaintiffs fraud claim against Evolution arises out of

15

two (2) alleged misrepresentations on the November 11, 2013, episode of The Real

16

Housewives of Beverly Hills (Episode 402):

A statement by Defendant Kim Richards that a trainer had been hired for

18

her dog because it had eaten thousands of dollars of shoes, sunglasses

19

and personal items, and I just think he [sic] needs a trainer.

All A
b

17

20

A statement by Richards on the same episode that I dont want to be that

21

person who has a dog that bites and hurts somebody. I want to give pit

22

bulls a good name.

23

(FAC 93, 95).1 Plaintiff admittedly did not see this episode of The Real

24

Housewives of Beverly Hills, but alleges that her daughter saw it. (See id.

25

20, 103). Based upon her daughters alleged viewing, Plaintiff attempted to

26
27
28

1 Plaintiff obliquely alludes to additional alleged misrepresentations that occurred in [a] March 17, 2014 [episode] and
other relevant episodes. (FAC 20). Plaintiff, however, fails to identify these additional alleged misrepresentations
with any specificity. (See id.) Such oblique allegations are insufficient, as a matter of law, to support a claim for fraud.
See Fed.R.Civ.P. 9(b).

2
REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

Case 2:14-cv-09540-AB-JPR Document 47 Filed 03/26/15 Page 3 of 8 Page ID #:316

assert a theory of indirect deception against Evolution. (See id. 103).

She has not, however, alleged a critical element of this claim, namely that her

daughter repeated Evolutions alleged misrepresentations to her, or that she otherwise

learned of them. As the California Supreme Court has held, actual reliance a

necessary element for an intentional misrepresentation claim requires a plaintiff to

show that the misrepresentation was an immediate cause of the injury-producing

conduct....Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 120 Cal.Rptr.3d 741, 246

P.3d 877, 888 (Cal. 2011), quoting In re Tobacco II Cases, 46 Cal.4th 298, 93

Cal.Rptr.3d 559, 207 P.3d 20, 39 (Cal. 2009). Thus, an advertisement cannot be an

10

immediate cause of a subsequent purchase if the purchaser never saw the

11

advertisement. Friedman v. Mercedes Benz USA LLC, 2013 WL 8336127, *5 (C.D.

12

Cal. June 12, 2013).

out T

he T

ea

13

Since Plaintiff did not hear, either directly or indirectly, any of Evolutions

14

alleged misrepresentations, she could not have relied on them.2 Accordingly, this

15

claim fails as a matter of law.

17

II.

Plaintiff has failed to plead sufficient facts to state a claim under her
agency theory of fraud.

All A
b

16

18

Having effectively conceded her indirect deception claim, Plaintiff focuses on

19

her agency theory of fraud.3 Plaintiff specifically contends that Evolution is liable

20

because defendant Richards acted as its agent when she falsely represented that her

21
22
23
24
25
26
27
28

2 In her Amended Opposition (p. 11), Plaintiff asserts that it was Richards who repeated the alleged misrepresentations
to her. In so doing, Plaintiff is conflating and confusing her indirect deception fraud theory with her agency fraud
theory. A claim for indirect deception applies when the defendant makes a fraudulent misrepresentation to a third
party with the intention that the misrepresentation be repeated to and acted upon by the plaintiff. See Restatement
(Second) of Torts 533 (1977). Thus, in the instant case, a claim for indirect deception would be that Evolution made
a misrepresentation to Plaintiffs daughter a third party who then repeated that misrepresentation to Plaintiff. But it
makes no sense (in the context of a claim for indirect deception) for Plaintiff to say that Richards repeated the
alleged misrepresentations to her because Richards is not a third party but rather the original maker of the alleged
misrepresentations (allegedly as an agent of Evolution). Thus, the representations about the dog made by Richards were
not the representations allegedly made by Evolution on the show, but were the representations of Richards herself.
3 Despite alleging that Richards was employed byDefendant Evolution, (FAC, 13), Plaintiff has not responded to
Evolutions arguments in the Motion to Dismiss that she cannot recover based on respondeat superior, and has
apparently abandoned any attempt to recover under this theory. (See Amended Opposition, pp. 19-22).

3
REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

Case 2:14-cv-09540-AB-JPR Document 47 Filed 03/26/15 Page 4 of 8 Page ID #:317

dog was sweet and cuddly. (FAC 15). But a principal is only liable for the

wrongful acts of its agent committed within the scope of the agents agency or

employment. DSPT Intl, Inc. v. Nahum, 2007 WL 5282563, *3 (C.D. Cal., Aug. 16,

2007), quoting Holley v. Crank, 400 F.3d 667, 673 (9th Cir. 2005) ([p]rincipals are

[only] liable for the torts of their agents committed within the scope of their agency).

The scope of an agents employment is work [the agent] was employed to perform,

during his working hours. Godfrey v. Ross, 2012 WL 507162, *2 (E.D. Cal Feb. 15,

2012), citing 2 Witkin, Summary of California Law 126, at 121.

relationship cannot just be assumed, but requires facts to be pleaded. Friedman v.

10

Mercedes Benz USA LLC, 2013 WL 8336127, *6 (C.D. Cal. June 12, 2013). Legal

11

conclusions framed as factual allegations will not suffice. Id.; Keegan v. Am. Honda

12

Motor Co., 838 F. Supp. 2d 929, 953 (C.D. Cal. 2012).

An agency

out T

he T

ea

13

In the instant case, Plaintiff has failed to allege any facts to establish that

14

Richards was Evolutions agent much less that Richards was acting within the scope

15

of any alleged agency when she represented to Plaintiff that her dog was sweet and

16

cuddly.4 In her Amended Opposition (p. 21), Plaintiff claims that she pled facts in

17

support of the agency relationship.

18

paragraphs 4-8, 13, 30, 56, 65, 73, and 86 of her FAC. These paragraphs, however,

19

contain nothing but Plaintiffs repeated conclusory statements that Richards was

20

Evolutions agent and was acting at all times with the course and scope of her agency:

22
23
24
25

All A
b

21

In support of this claim, Plaintiff cites to

At all relevant times, [] Richardswas an agent of [] Evolution, (FAC,

4);

[A]ll of the wrongful acts of [] Richards were committed while acting as

an agent for [] Evolution, (id. 5);
Evolution exercised control over Richards at all times. (id. 6);

26
27
28

4 As Evolution noted in its Motion to Dismiss, this alleged misrepresentation occurred at Richards home during a purely
personal visit from Plaintiff, and there is no allegation anywhere in the FAC that it occurred during filming of The Real
Housewives of Beverly Hills (it did not) or that anyone from Evolution was present (they were not).

4
REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

Case 2:14-cv-09540-AB-JPR Document 47 Filed 03/26/15 Page 5 of 8 Page ID #:318

1
2
3
4

Richards was acting as the agent of [] Evolution and was acting within
the course and scope of such agency. (id. 7);
At all relevant times, Richards wasan agent of [] Evolution, (id.
13); and
At all times herein material, [] Richards was acting as the agent of []

Evolution and was acting within the course and scope of such agency,

(id. 30, 56, 65, 73, 86).

ea

The Court is not required to accept as true such labels and conclusions and naked

assertions devoid of further factual enhancement. Bell Atl. Corp v. Twombly, 550

10

he T

U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In addition to these labels and conclusions, Plaintiff claims that she

12

adequately pleaded an agency relationship because she alleges that, after the bite

13

occurred, Richards told her not to tell anybody and promise me you wont say

14

anything, Ill lose my job. (Amended Opposition, p. 21.) These statements do not

15

establish nor even suggest that an agency relationship existed. To conclude that these

16

statements imply an agency relationship between Richards and Evolution would be an

17

unwarranted deduction[] of fact or an unreasonable inference[], which the Court

18

is not required to accept as true. Sprewell v. Golden State Warriors, 266 F.3d 979,

19

988 (9th Cir. 2001). Moreover, the statements are legally irrelevant, since an agency

20

cannot be created by the conduct of the agent alone. Young v. Horizon W., Inc., 220

21

Cal. App. 4th 1122, 1133 (2013).

All A
b

out T

11

22

Plaintiff next contends that she has adequately pleaded an agency relationship

23

by alleging, [o]n information and belief, that the contract between Richards and

24

Evolution requires Richards not to disclose certain information and not to disparage

25

Evolution. (Amended Opposition, p. 20.) However, these facts are not stated in the

26

FAC and therefore cannot be considered on Evolutions Motion to Dismiss.

27

Schneider v. California Dept of Corr., 151 F.3d 1194, 1197 (9th Cir. 1998), quoting 2

28

Moores Federal Practice, 12.34[2] (Matthew Bender 3d ed.): The court may
5
REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

Case 2:14-cv-09540-AB-JPR Document 47 Filed 03/26/15 Page 6 of 8 Page ID #:319

nottake into account additional facts asserted in a memorandum opposing the

motion to dismiss, because such memoranda do not constitute pleadings under Rule

7(a). (Ellipsis in original.)5

But in any event, these allegations establish nothing more than that Richards

and Evolution were counterparties to a contract. This fact is insufficient, as a matter

of law, to create an agency relationship. See, In re Coupon Clearing Serv., Inc., 113

F.3d 1091, 1100 (9th Cir. 1997) (the right of one party to require the other to perform

a contract does not establish an agency relationship).

10

he T

ea

Plaintiffs agency theory is therefore without merit.6

III.

Plaintiffs conspiracy theory fails as a matter of law.

Plaintiff contends that Evolution conspired with Richards to defraud her by

12

intentionally misrepresenting material facts to her. (FAC, 108-116). As shown in

13

Evolutions Motion (pp. 24-25), before one can be held liable for civil conspiracy, he

14

must be capable of being individually liable for the underlying wrong as a matter of

15

substantive tort law. Chavers v. Gatke Corp., 107 Cal. App. 4th 606, 612 (2003)

16

(emphasis in original). Since Evolution cannot be held liable for the underlying

17

alleged misrepresentations, it cannot be held liable for conspiring to make those

18

misrepresentations.

20
21
22
23
24
25
26
27
28

All A
b

19

out T

11

5 See also, e.g., Sarpy v. Pulido, 2013 WL 2898068, *3 (C.D. Cal. June 11, 2013) ([T]he court may
not consider additional facts alleged in a memorandum in opposition to a defendants motion to
dismiss to determine the propriety of a Rule 12(b)(6) motion).
6 The baselessness of Plaintiffs agency claim is highlighted by the self-reinforcing and tautological
arguments that Plaintiff offers in her Amended Opposition. For instance, Plaintiff claims that she
adequately pleaded an agency claim because she alleged that when [] Richards was acting as the
agent of [] Evolution, she misrepresented to Plaintiff that the dog was cuddly and sweet.. and that
Richards, while acting in her agency and coconspirator relationship with [] Evolution, made the
fraudulent statements to Plaintiff. (Amended Opposition, p. 21). Such circular and conclusory
allegations essentially that Richards acted as an agent of Evolution and, therefore, is an agent of
Evolution are not well-pleaded facts entitled to be given any weight by the Court. See Twombly,
550 U.S. at 555; Iqbal, 556 U.S. at 678.

6
REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

Case 2:14-cv-09540-AB-JPR Document 47 Filed 03/26/15 Page 7 of 8 Page ID #:320

IV.

There is no basis to allow Plaintiff to again amend her Complaint.

Plaintiff has requested that, if the Court dismisses her FAC, she be permitted to

amend her Complaint yet again. (Amended Opposition, p. 25). In addressing a

plaintiffs request to amend its complaint, courts consider the following factors: bad

faith, undue delay, prejudice to the opposing party, futility of amendment, and

whether the plaintiff has previously amended the complaint. Johnson v. Buckley, 356

F.3d 1067, 1077 (9th Cir. 2004).

ea

The most important factor in the instant case is bad faith. As set forth in

Evolutions Motion to Dismiss, the FAC is based upon numerous allegations that are

10

without a good faith basis in fact. (Motion to Dismiss, pp. 4-5). Plaintiffs allegation

11

that Evolution misrepresented to the public the dangerousness and viciousness of the

12

dog is directly contradicted by the very scene of The Real Housewives of Beverly

13

Hills that Plaintiff cites to support her claim. (See id.) Upon being advised of this

14

fact, which establishes that the allegations in the FAC were false, Plaintiff made no

15

attempt to withdraw her FAC or otherwise strike the baseless allegations contained

16

therein.

17

because it had submitted for the Courts independent review a copy of the relevant

18

episode, which had been incorporated by reference into the FAC.

19

Opposition, p. 4). Moreover, Plaintiff now admits that she asserted a fraud claim

20

against Evolution based upon two alleged misrepresentations that she never even

21

heard (either directly or indirectly). (See Amended Opposition, p. 12).

out T

he T

All A
b

Instead, Plaintiff accused Evolution of improperly argu[ing] the facts

(Amended

22

As shown above, these admissions make it impossible for Plaintiff to amend her

23

Complaint to state a cause of action based on those misrepresentations. Therefore,

24

Plaintiff should not be permitted to file another amended Complaint, presumably to

25

plead yet more false facts and subjecting Evolution to the expense of filing yet

26

another motion to dismiss. Permitting further amendment would cause prejudice to

27

Evolution, which has already expended considerable resources defending against

28

Plaintiffs original Complaint which she withdrew in the face of Evolutions first
7
REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

Case 2:14-cv-09540-AB-JPR Document 47 Filed 03/26/15 Page 8 of 8 Page ID #:321

Motion to Dismiss and her FAC which Evolution respectfully contends is without

merit.

V.

Conclusion
For the foregoing reasons, Evolution respectfully requests that the Court

dismiss Plaintiffs First Amended Complaint with prejudice.

DATED: March 26, 2015

ea

WHITE & REED LLP

11
12
13
14
15
16
17
18
19
20
21
22
23

he T

10

out T

By: __/s/____________________________
Michael R. White
Attorneys for Defendant
EVOLUTION FILM & TAPE, INC.

All A
b

24
25
26
27
28
8
REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS