Ellis v. Starbucks Corporation

Northern District of California, cand-4:2015-cv-03451

ORDER by Judge Hamilton granting {{27}} Motion to Dismiss; denying {{29}} Motion for Sanctions; finding as moot {{30}} Motion for Extension of Time to File Response/Reply (pjhlc1, COURT STAFF) (Additional attachment(s) added on 12/9/2015: # {{1}} Certificate/Proof of Service)

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5 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 YOSHA ELLIS, Case No. 15-cv-3451-PJH 9 Plaintiff, 10 v. ORDER GRANTING MOTION TO DISMISS; ORDER DENYING MOTION 11 STARBUCKS CORPORATION, FOR RULE 11 SANCTIONS 12 Defendant. Northern District of California United States District Court 13 14 15 Before the court is the motion of defendant Starbucks Corporation for an order 16 dismissing the first amended complaint ("FAC") pursuant to Federal Rule of Civil 17 Procedure 12(b)(6) for failure to state a claim, and plaintiff's motion for sanctions 18 pursuant to Federal Rule of Civil Procedure 11. Having read the parties' papers and 19 carefully considered their arguments and the relevant legal authority, the court hereby 20 GRANTS the motion to dismiss and DENIES the motion for sanctions. 21 BACKGROUND 22 Pro se plaintiff Yosha Ellis resides in Petaluma, California, where he has worked 23 for a local theater company since March 2012. FAC ¶ 2. He alleges that on June 29, 24 2013, at approximately 9:00 a.m., he was seated with a friend inside a Starbucks located 25 at 125 Petaluma Blvd., but then stepped outside to smoke a cigarette. FAC ¶ 9. While 26 he was outside, he was approached by a man and a woman. Id. 27 The woman allegedly told plaintiff that her daughter was 17 years of age and 28 plaintiff should "leave her alone," and plaintiff allegedly responded that it was 5 1 "inappropriate for her to speak to him that way," because he had done nothing illegal, and 2 "if she spoke to him that way in public again, embarrassing him, . . . he would have to call 3 the [p]olice." Id. The man accompanying her then allegedly "became enraged and 4 began screaming and cussing" at plaintiff. Id. Plaintiff ran to the Petaluma Market to use 5 the phone to call the police. Id. He claims that the police advised him he was banned 6 from Starbucks. Id. 7 Plaintiff also attaches to the FAC as "Exhibit A" a copy of a document labeled 8 "P.P.D. Call Report," dated June 29, 2013, which states that he had advised the reporting 9 officer at the time of the original incident that "he has asked over 60 girls for their phone 10 numbers because he was looking for a [girlfriend and] he accidentally asked a 17 [year 11 old] for her phone number not knowing she was that young [he] was in Starbucks 12 today[;]" and that "the parent and her partner became extremely 415 verb w/her" and "are Northern District of California United States District Court 13 now in the Starbucks downtown dressed in bicycle riding gear w/bicycles outside."1 14 Further, plaintiff "was concerned because he left his belongings inside Starbucks and is 15 afraid to go back and get them w/out an officer going with w/him." The report ends, 16 "Contacted Starbucks and advise subject is not allowed in business." 17 Following the incident, plaintiff went to the Petaluma Police Department to file a 18 complaint against the officers who had responded to his call. FAC ¶ 10. Later, 19 apparently that same day, plaintiff went to a different Starbucks, located at 205 North 20 McDowell, and asked to use the phone to call Starbucks District Manager Jennifer 21 Kruger. FAC ¶ 11. He relayed to Ms. Kruger what had occurred at the Petaluma Blvd. 22 Starbucks, and told her he had filed a complaint against the police. Id. Plaintiff alleges 23 that Ms. Kruger told him that it had been her decision to ban him from the 125 Petaluma 24 Blvd. location, because there had been "too many problems." FAC ¶ 12. However, she 25 did not explain what the "problems" were. Id. 26 Plaintiff speculates that Ms. Kruger might have been referring to one of three 27 1 28 The sentences in the "Call Report" are not punctuated, and the sense of the report is not entirely clear. 2 5 1 incidents – an incident in which a Shift Supervisor accused plaintiff of "solicitation" after 2 he had had "a conversation with a young lady about the theater;" an incident in which 3 plaintiff "confronted some baristas at 125 Petaluma Blvd. about what might have been 4 some gossiping about him that made him feel disturbed," specifically, that "there might 5 have been some innuendos in comments made by baristas at this location suggesting 6 that he may 'sleep around a lot;'" and an incident in which the Store Manager 7 "confronted" him, saying that "he was saying things that were making people 8 uncomfortable, although she did not specify what." FAC ¶¶ 12-13. Plaintiff claims that 9 Ms. Krueger was "uninformed" about these matters, or "found them too unresolved in 10 order to reverse her decision" to ban him from Starbucks, but that from that time he was 11 not able to enter the Starbucks at 125 Petaluma Blvd. FAC ¶ 14. 12 Plaintiff asserts further that Ms. Kruger contacted him by telephone on June 3, Northern District of California United States District Court 13 2014, FAC ¶ 15, approximately 11 months after the original incident. He claims this was 14 in response to a request "placed with" a Customer Service Manager in New Mexico that 15 she have Ms. Kruger contact him to discuss the June 29, 2013 incident. Id. Plaintiff 16 alleges that he "had serious concerns in his mind about the reason Ms. Kruger was giving 17 Starbucks employees about [him], as to why he had been banned from Starbucks at 125 18 Petaluma Blvd. South." Id. When he asked Ms. Kruger what she was telling Starbucks 19 employees, she allegedly responded, "Didn't you make sexual advances on a seventeen 20 year old and the Father had to call the police?" Id. 21 Plaintiff asserts that "[t]his is in no way true, is slander per se, and is a cause of 22 damages" to him. FAC ¶ 16. He alleges that the statement "damaged [his] reputation 23 via compelled self publication wherein [he] has had to communicate to several parties the 24 reason that he is not able to go into Starbucks at 125 Petaluma Blvd." Id. He claims that 25 Isabel Squire, a store manager at another Starbucks location, told him that she knew 26 "about it. . . because I occasionally fill in for Jen." Id. Plaintiff alleges that the "it" 27 referred to by Ms. Squire is the "defamatory statement." Id. 28 Plaintiff claims he subsequently contacted the Petaluma Police Department to ask 3 5 1 whether there was any report of a father having called the police to report that plaintiff 2 had made sexual advances to his seventeen-year-old daughter, and the Police 3 Department informed him they had no such record. FAC ¶ 17. 4 Plaintiff alleges that on December 4, 2014 (almost 18 months after the June 2013 5 incident), he and Ms. Kruger met "in regards to the matter of his having been slandered 6 by Ms. Kruger," and that he asked Ms. Kruger, "What is Starbucks doing in order to do 7 the right thing now?" FAC ¶ 18. Ms. Kruger allegedly responded that she had called 8 around to various Starbucks locations, and said that it was okay for plaintiff to be a 9 customer. FAC ¶ 19. Plaintiff claims that when he asked Ms. Kruger why she had stated 10 that plaintiff had made sexual advances on a seventeen-year-old, Ms. Kruger asked, 11 "Wasn't there another incident up in Fort Bragg?" Id. Plaintiff told her she must be 12 referring to an allegation of a "stalking" of a female barrista, which he claimed had been a Northern District of California United States District Court 13 false accusation (although he conceded it resulted in his being escorted from the Fort 14 Bragg Starbucks by two Fort Bragg Police Department officers). FAC ¶ 20. 15 During this conversation with Ms. Kruger, plaintiff requested that he be 16 "readmitted" to the 125 Petaluma Blvd. Starbucks, so that he might "restore and repair his 17 reputation in the City of Petaluma." FAC ¶ 21. Ms. Kruger allegedly promised to confer 18 with the store manager and see what she could do. FAC ¶ 22. After not hearing 19 anything about the matter for two weeks, plaintiff contacted a Regional Supervisor – 20 "Carmen" – to complain that Ms. Kruger had not responded in a timely fashion. FAC 21 ¶ 23. He claims that Carmen did not express any interest in interceding on plaintiff's 22 behalf, although she was allegedly Ms. Kruger's immediate supervisor. Id. 23 Plaintiff alleges that on December 22, 2014, at 7:27 a.m., he contacted Starbucks 24 Customer Service with regard to Ms. Kruger's failure to respond to his request for 25 readmission; and that at approximately 9:57 a.m., Ms. Kruger contacted him to say that 26 he would not be readmitted to the 125 Petaluma Blvd. Starbucks. FAC ¶¶ 24-25. 27 Plaintiff filed the present action in the Superior Court of California, County of 28 Sonoma, on May 29, 2015, alleging a single cause of action of defamation per se, and 4 5 1 seeking injunctive relief and damages, including punitive damages. Starbucks removed 2 the case to this court on August 3, 2015, alleging diversity jurisdiction. 3 Starbucks moved to dismiss the complaint for failure to state a claim. The court 4 issued an order on September 8, 2015, granting the motion to dismiss. The court found 5 that plaintiff had failed to state a claim for defamation because he had alleged no facts 6 showing that Ms. Kruger did not use reasonable care in determining the truth or falsity of 7 her alleged statement. Further, the court found that plaintiff had failed to allege facts 8 showing that the alleged defamatory statement was published in a manner sufficient to 9 constitute defamation. The court noted that plaintiff alleged he had asked Ms. Kruger on 10 the phone "what it was that she was telling everyone," and that her response was, "Well, 11 didn't you make sexual advances on a seventeen year old and the Father had to call the 12 Police?" However, he alleged no facts showing that she made a particular statement to Northern District of California United States District Court 13 any third person. Finally, the court found, while he referred to a claim that he made 14 "sexual advances on a seventeen year old," he did not allege facts sufficient to show that 15 Ms. Kruger accused him of engaging in criminal behavior. The court granted leave to 16 amend to plead facts supporting the elements of the claim. 17 Plaintiff filed the FAC on October 15, 2015. The allegations in the FAC are 18 substantially identical to those in the original complaint. The sole differences between 19 the two versions of the complaint are (a) plaintiff modified the allegations of jurisdiction 20 and venue in the FAC; (b) plaintiff added allegations to the FAC regarding asserted 21 misconduct by Starbucks' counsel in connection with the briefing of Starbucks' motion to 22 dismiss the original complaint; (c) plaintiff added Exhibit B to the FAC, consisting of a 23 single page from Starbucks' memorandum of points and authorities in support of the 24 motion to dismiss the original complaint, which also includes several lines of illegible 25 hand-written notations in the left-side margin; and (d) plaintiff increased the amount of 26 damages sought in the prayer for relief, from $425,000 plus "[a]ny punitive damages as 27 the court sees fit" in the original complaint, to $500,000 plus $500,000 in punitive 28 damages in the FAC. Most notably, however, the FAC alleges no new facts. 5 5 1 DISCUSSION 2 A. Motion to Dismiss 3 1. Legal Standard 4 A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims 5 alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). 6 Review is generally limited to the contents of the complaint, although the court can 7 consider a document on which the complaint relies if the document is central to the 8 claims asserted, and no party questions the authenticity of the document. See Sanders 9 v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). 10 To survive a motion to dismiss for failure to state a claim, a complaint generally 11 must satisfy only the minimal notice pleading requirements of Federal Rule of Civil 12 Procedure 8, which requires that a complaint include a "short and plain statement of the Northern District of California United States District Court 13 claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While the 14 court is to accept as true all the factual allegations in the complaint, legally conclusory 15 statements, not supported by actual factual allegations, need not be accepted. Ashcroft 16 v. Iqbal, 556 U.S. 662, 678-79 (2009); see also In re Gilead Scis. Sec. Litig., 536 F.3d 17 1049, 1055 (9th Cir. 2008). 18 The complaint must allege facts sufficient "to raise a right to relief above the 19 speculative level[,]" and a motion to dismiss should be granted if the complaint does not 20 proffer enough facts to state a claim for relief that is plausible on its face. Bell Atlantic 21 Corp. v. Twombly, 550 U.S. 544, 555, 558-59 (2007) (citations and quotations omitted). 22 A claim has facial plausibility when the plaintiff pleads facts sufficient to allow the court to 23 "draw the reasonable inference that the defendant is liable for the misconduct alleged." 24 Iqbal, 556 U.S. at 678 (citation omitted). "[W]here the well-pleaded facts do not permit 25 the court to infer more than the mere possibility of misconduct, the complaint has alleged 26 – but it has not 'show[n]' – 'that the pleader is entitled to relief.'" Id. at 679. Where 27 dismissal is warranted, it is generally without prejudice, unless it is clear the complaint 28 cannot be saved by any amendment. Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir. 6 5 1 2005). 2 2. Defendant's Motion 3 Starbucks argues that the FAC should be dismissed because plaintiff has failed to 4 allege facts sufficient to state a claim for defamation per se. Starbucks asserts further 5 that the dismissal should be with prejudice because the plaintiff has failed to correct the 6 pleading deficiencies identified by the court in the September 8, 2015 order dismissing 7 the original complaint for failure to state a claim. 8 "Defamation is an invasion of the interest in reputation." Smith v. Maldonado, 72 9 Cal. App. 4th 637, 645 (1999). A defamatory statement may be either written (libel) or 10 oral (slander). Cal. Civ. Code §§ 44, 45, 46. Here, plaintiff alleges only the oral 11 statement by Ms. Krueger, which he asserts was in the form of a question to him – "Well, 12 didn't you make sexual advances on a seventeen year old and the Father had to call the Northern District of California United States District Court 13 police?" 14 Slander per se is "a false and unprivileged publication, orally uttered," which either 15 charges a person with crime or with having been indicted, convicted, or punished for 16 crime; or imputes in him the presence of an infectious, contagious, or loathsome disease; 17 or tends directly to injure him with respect to his profession, trade, or business; or 18 imputes to him impotence or want of chastity; or "by natural consequence, causes actual 19 damage." Cal. Civ. Code § 46. A claim of slander per se "requires a showing that the 20 defendant made a factual assertion, as opposed to an opinion, that was false." Wynn v. 21 Chanos, 75 F.Supp. 3d 1228, 1233 (N.D. Cal. 2014). "The question whether a statement 22 constitutes an actionable factual assertion is a question of law for the court to decide." Id. 23 Additionally, to succeed on a claim of defamation per se, a plaintiff must allege 24 facts showing that the defendant published the statement, that the statement was about 25 the plaintiff, that the statement was false, and that the defendant failed to use reasonable 26 care to determine the truth or falsity of the statement. Hecimovich v. Encinal Sch. Parent 27 Teacher Org., 203 Cal. App. 4th 450, 471 (2012); see also Lucky Kim Int'l Inc. v. Seo In 28 Corp., 2011 WL 2939172 at *2 (C.D. Cal. July 21, 2011). 7 5 1 Starbucks asserts that the FAC fails to plead facts sufficient to state a claim for 2 defamation per se. First, Starbucks contends, the alleged defamatory statement does 3 not amount to a factual assertion because it was made in the form of a question. Thus, 4 rather than being a factual assertion, it was designed to elicit further information. 5 Starbucks argues that because plaintiff fails to allege that Ms. Kruger made a factual 6 assertion, he cannot state a claim for defamation per se against Starbucks. 7 Second, Starbucks contends that plaintiff alleges no facts showing that it published 8 an allegedly defamatory statement to any third person. "'Publication'" by the defendant to 9 a third party is ordinarily an essential element of a claim for slander." Live Oak Publ'g 10 Co. v. Cohagan, 234 Cal. App. 3d 1277, 1286 (1991). "Publication means 11 communication to some third person who understands the defamatory meaning of the 12 statement and its application to the person to whom reference is made." Smith, 72 Cal. Northern District of California United States District Court 13 App. 4th at 645. "Publication need not be to the 'public' at large; communication to a 14 single individual is sufficient." Id. Starbucks asserts that there are no facts pled in the 15 FAC showing publication. 16 Starbucks adds that to the extent plaintiff is relying on the compelled self- 17 publication argument asserted in the FAC – which plaintiff also included in the original 18 complaint – such an argument is misplaced. "Compelled self-publication" provides a 19 narrow exception to the rule that a plaintiff alleging a claim of slander must show 20 communication to a third party. Davis v. Consol. Freightways, 29 Cal. App. 4th 354, 373 21 (1994). Normally, when the defamed person voluntarily repeats a defamatory 22 communication to others, the originator of the defamatory statement is not liable for any 23 ensuing damage. Shoemaker v. Friedberg, 80 Cal. App. 2d 911, 916 (1947). However, 24 under the "compelled self-publication" exception, self-publication (publication by the 25 person demeaned) may be imputed to the originator of the statement if the person 26 demeaned is "operating under a strong compulsion to republish the defamatory 27 statement and the circumstances that create the strong compulsion are known to the 28 originator of the alleged defamatory statement at the time it was made. Davis, 29 Cal. 8 5 1 App. 4th at 373. 2 Here, plaintiff claims that he has had to "communicate to several parties the 3 reason that he is not able to go into the Starbucks at 125 Petaluma Blvd." FAC ¶ 16. 4 However, Starbucks asserts, this cannot logically constitute "compelled self-publication" 5 because by plaintiff's own allegation, he did not learn about the allegedly defamatory 6 statement until more than 11 months after the June 2013 incident that gave rise to his 7 ban from the Starbucks store, see FAC ¶ 15, and he alleges no facts showing why he 8 would be under any "compulsion" to explain to others why he was banned from the store 9 nearly one year after the fact. 10 Starbucks also argues that the allegations in the FAC are insufficient to support a 11 finding that it failed to use reasonable care in determining the truth or falsity of the 12 statement. Starbucks argues that the conclusory allegation (in the nearly illegible hand- Northern District of California United States District Court 13 written comments on Exh. B to the FAC) that it "had been told the truth of what 14 happened" does not demonstrate that Starbucks failed to use reasonable care in 15 determining the truth or falsity of the allegedly defamatory statement. Starbucks asserts 16 in addition that to the extent that plaintiff is attempting to allege that Ms. Kruger failed to 17 use reasonable care to determine the truth or falsity of the allegedly defamatory 18 statement, this assertion is contradicted by the allegation that the "statement" was made 19 in the form of a question posed to him by Ms. Kruger regarding what had happened at the 20 store in question. 21 Finally, Starbucks contends that the allegedly defamatory statement does not 22 accuse plaintiff of engaging in criminal behavior. Again, Starbucks notes, plaintiff does 23 not explain how an interrogatory can be interpreted as a factual assertion accusing him of 24 criminal behavior. 25 As for plaintiffs' allegations regarding the statements in the "Call Report," and the 26 suggestion that Starbucks' counsel attempted to create a false impression of the facts by 27 removing words from the statement and inserting elipses in their place, Starbucks asserts 28 that these allegations are irrelevant to plaintiff's claim for defamation per se. Starbucks 9 5 1 also notes that plaintiff filed a non-redacted version of the exhibit with the court, and to 2 the extent that Starbucks' quotation of the "Call Report" created any ambiguity, an 3 examination of the full exhibit would clear up that ambiguity. 4 Starbucks contends that the dismissal should be with prejudice because, having 5 been afforded an opportunity to correct the deficiencies identified by the court in the prior 6 order dismissing the original complaint, plaintiff nonetheless failed to amend the 7 complaint to cure those deficiencies. Thus, Starbucks asserts, amendment would be 8 futile. 9 Plaintiff's opposition consists of four and a half pages of text, plus Exhibits A and B 10 to the FAC ("Call Report" and single-page excerpt from defendants' motion to dismiss the 11 original complaint). Plaintiff devotes two of the four and a half pages to a repetition of the 12 argument he makes in his motion for Rule 11 sanctions – that defendant's counsel Northern District of California United States District Court 13 misrepresented the contents of the "Call Report" by omitting the words "RP was" before 14 the phrase "in Starbucks today," when describing the alleged incident, making it appear 15 that the 17-year-old girl was in Starbucks that day. 16 In the remaining portion of his opposition, plaintiff argues, first, that in asking him 17 whether he had made sexual advances on a 17-year-old, and whether the father had 18 called the police, Ms. Kruger was stating that plaintiff had engaged in the criminal act of 19 "lewd and lascivious conduct with a minor." Second, plaintiff contends that when Ms. 20 Squire responded to his question about whether she had "heard anything about a 21 possible defamation lawsuit regarding something Jen Kruger said about me having made 22 sexual advances on a 17 year old over at Petaluma Blvd. Starbucks," by stating to him, "I 23 know about it because I occasionally fill in for Jen," Ms. Squire was stating that she had 24 heard the alleged defamatory statement, which plaintiff claims indicates that "Ms. Kruger 25 or someone with Starbucks broadcast the defamatory statement to Isabel Squire." 26 Plaintiff asserts that he has pled sufficient facts to show that Ms. Kruger failed to 27 use reasonable care in determining the truth or falsity of the statement. He also alleges 28 that he has adequately pled that the false statement was published to a third party (Ms. 10 5 1 Squire); that Ms. Kruger accused him of engaging in criminal behavior (lewd and 2 lascivious conduct with a minor); that the false statement was published to plaintiff by Ms. 3 Kruger and he was then compelled to publish it to others; and that the issue of 4 defendants' counsel omitting the words "RP was" from his "version" of the "Call Report" is 5 relevant because the court also omitted those words from its description of the incident in 6 the order granting the motion to dismiss the original complaint. 7 The court finds that the motion must be GRANTED. First, the allegedly 8 defamatory statement took the form of question from Ms. Kruger to plaintiff on June 3, 9 2014 – "Well, didn't you make sexual advances on a 17 year old and the Father called 10 the Police?" – and thus was not, strictly speaking, a statement at all. The only real 11 statement that plaintiff alleges Kruger made to him on this subject was in response to his 12 June 29, 2013, telephone call to her to tell her he had been banned from the 125 Northern District of California United States District Court 13 Petaluma Blvd. Starbucks, at which time Ms. Kruger stated that it had been her decision 14 to ban him from that Starbucks location, and that "there had been too many problems." 15 Second, even assuming for the sake of argument that Ms. Kruger's June 3, 2014 16 question can be viewed as a statement, and that it was false, plaintiff has not alleged 17 facts sufficient to show that the statement was published by Ms. Kruger or by Starbucks. 18 Plaintiff asserts that he asked Ms. Kruger on the phone "what it was that she was telling 19 everyone," and her response was, "Well, didn't you make sexual advances on a 20 seventeen year old and the Father had to call the Police?" FAC ¶ 15. He does not allege 21 any facts showing that she made a particular statement to any third person. 22 Plaintiff speculates that Ms. Kruger, or someone with Starbucks, published the 23 allegedly defamatory statement to Ms. Squire. However, Ms. Squire, according to the 24 allegations in the FAC, stated, "I know about it because I occasionally fill in for Jen." This 25 vague and ambiguous statement is insufficient to show that Ms. Kruger (a) made a 26 defamatory statement about plaintiff and (b) published that statement to Ms. Squire. 27 Plaintiff apparently interpreted the word "it" to mean "defamatory statement," but at most, 28 Ms. Squire's statement simply indicates some knowledge on her part of the fact that 11 5 1 plaintiff had had a dispute with Starbucks' store management and/or that he had been 2 banned from Starbucks. 3 Nor is the "compelled self-publication" exception to the publication requirement 4 applicable under the facts alleged here. Plaintiff has pled no facts showing that he was in 5 fact compelled to repeat the alleged defamatory statement. Moreover, any claim that he 6 felt "compelled" to repeat the statement is vitiated by the allegations that he was banned 7 from the Petaluma Blvd. Starbucks on or about June 29, 2013, and that Ms. Kruger did 8 not ask whether it was true that he had made sexual advances on a 17-year-old until 9 June 3, 2014. 10 In addition, the application of the "compelled self-publication" exception has been 11 limited to a narrow class of cases, as set forth above. See Davis, 29 Cal. App. 4th at 12 373; see also Live Oak, 234 Cal. App. 3d at 1285. The originator of the statement must Northern District of California United States District Court 13 foresee the likelihood of compelled republication when the statement is originally made, 14 as where the plaintiff is terminated by an employer and is under some compulsion to 15 explain to a prospective employer the stated reason for the termination (assuming such 16 statement was defamatory). See McKinney v. Cnty. of Santa Clara, 110 Cal. App. 3d 17 787, 797 (1980). Plaintiff alleges no facts sufficient to support application of the 18 "compelled self-publication" exception to the publication requirement for a claim of 19 defamation. 20 Third, plaintiff has not alleged facts showing that Ms. Kruger or Starbucks failed to 21 use reasonable care in determining the truth or falsity of the alleged statement. Plaintiff 22 alleges only that he informed Starbucks "of the true and correct information concerning 23 [his] conduct, that Starbucks "did broadcast to a third party the false statement, and 24 possibly the Police," that the false statement "is of such a nature that it makes the 25 [p]laintiff appear contemptible and criminal to a reasonable person." FAC ¶¶ 29-31. 26 These conclusory allegations do not include any facts showing a failure to use 27 reasonable care in determining the truth or falsity of the alleged defamatory question that 28 Ms. Kruger asked plaintiff. 12 5 1 Fourth, plaintiff alleges no facts showing that Ms. Kruger accused plaintiff of 2 engaging in criminal behavior. In the FAC, he asserts only that Ms. Kruger asked him 3 about whether he had made sexual advances on a 17-year old. In his opposition to the 4 motion, he defines "sexual advances" as "lewd and lascivious conduct with a minor – a 5 criminal act." The term "sexual advances" is not defined anywhere in the California Penal 6 Code. While certain sexual acts or conduct will be charged as a criminal offenses if the 7 victim is under the age of 18 is involved, the statute that prohibits "lewd and lascivious" 8 conduct with a minor pertains to a crime that involves physical touching of a child under 9 16 years of age, with sexual intent. See Cal. Penal Code § 288. There are no facts pled 10 in the FAC showing that Ms. Kruger or anyone at Starbucks falsely accused plaintiff of 11 having committed a crime. 12 Finally, the court finds that further amendment would be futile. The order granting Northern District of California United States District Court 13 the motion to dismiss the original complaint set forth the standard for pleading a claim of 14 defamation per se, and instructed plaintiff with regard to the deficiencies in the original 15 complaint. The court allowed plaintiff leave to amend to correct those deficiencies. 16 Plaintiff alleged no new facts, and has not pled the claim in accordance with the 17 applicable standards. For this reason, the dismissal of the FAC is WITH PREJUDICE. 18 B. Motion for Sanctions 19 1. Legal Standard 20 Under Rule 11, sanctions may be imposed "when a filing is frivolous, legally 21 unreasonable, or without factual foundation, or is brought for an improper purpose." 22 Estate of Blue v. Cnty. of L.A., 120 F.3d 982, 985 (9th Cir. 1997). "Rule 11 imposes a 23 duty on attorneys to certify by their signature that (1) they have read the pleadings or 24 motions they file and (2) the pleading or motion is 'well-grounded in fact,' has a colorable 25 basis in law, and is not filed for an improper purpose." Smith v. Ricks, 31 F.3d 1478, 26 1488 (9th Cir. 1994) (citing Fed. R. Civ. P. 11). 27 The "central purpose of Rule 11 is to deter baseless filings in district court" by 28 requiring attorneys to certify that "they have conducted a reasonable inquiry and have 13 5 1 determined that any papers filed with the court are well grounded in fact, legally tenable, 2 and 'not interposed for any improper purpose.'" Cooter & Gell v. Hartmarx Corp., 496 3 U.S. 384, 393 (1990)). The cases warranting imposition of sanctions are "rare and 4 exceptional." Operating Eng'rs Pension Tr. v. A-C Co., 859 F.2d 1336, 1344 (9th Cir. 5 1988). 6 2. Plaintiff's Motion 7 As described above, the court issued an order granting Starbucks' motion to 8 dismiss the complaint on September 8, 2015. The dismissal was with leave to amend, 9 and plaintiff filed the FAC on October 15, 2015. Starbucks filed a motion to dismiss the 10 FAC on October 29, 2015. A week later, on November 5, 2015, plaintiff filed a motion for 11 Rule 11 sanctions, asserting that Starbucks' counsel Paul Caleo had "misrepresented" 12 the Petaluma Police Department "Call Report" that plaintiff had attached as an exhibit to Northern District of California United States District Court 13 the original complaint (and also to the FAC). Specifically, plaintiff argues that by inserting 14 elipses in place of the words "RP [Reporting Party] was" when quoting one part of the 15 report in the motion to dismiss the original complaint, Mr. Caleo had suggested that the 16 17-year-old was present at Starbucks the day of the incident (June 29, 2013), when in 17 fact (according to plaintiff), she was not. 18 Starbucks opposes the motion. First, Starbucks asserts that the motion was filed 19 in violation of Rule 11(c)(2) – the "safe harbor rule" – because plaintiff did not wait 21 20 days between the time he served Starbucks with the motion and the time he filed the 21 motion with the court. Second, Starbucks argues that even apart from the procedural 22 violation, the motion lacks merit, because plaintiff does not claim that Mr. Caleo engaged 23 in any sanctionable behavior, but only that he used elipses when quoting a portion of a 24 police report that plaintiff had attached as an exhibit to the complaint and subsequently to 25 the FAC. Starbucks notes that a non-redacted version of the police report was attached 26 as an exhibit, and that the court was certainly able to consider Starbucks' motion in light 27 of the full version of the complaint and the FAC, including the attached exhibits. 28 The court finds that the motion must be DENIED. First, plaintiff has failed to 14 5 1 comply with the "safe harbor rule," because he failed to wait 21 days between serving the 2 motion on Starbucks and serving it on the court. See Fed. R. Civ. P. 11(c)(2). Second, 3 the motion is entirely lacking in merit. Starbucks has quoted a portion of a police report 4 that is attached in full to the complaint and the FAC. The court is fully capable of reading 5 the entire exhibit, and has in fact done so. 6 CONCLUSION 7 In accordance with the foregoing, the motion to dismiss is GRANTED. Because 8 plaintiff failed to comply with the directive in the September 8, 2015 order to plead facts 9 sufficient to state a claim for defamation per se, the dismissal is WITH PREJUDICE. The 10 motion for sanctions is DENIED. 11 12 IT IS SO ORDERED. Northern District of California United States District Court 13 Dated: December 9, 2015 14 __________________________________ PHYLLIS J. HAMILTON 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 15