1

8 UNITED STATES DISTRICT COURT

9 FOR THE CENTRAL DISTRICT OF CALIFORNIA

10

11 CHARLES EDWARD LINCOLN III, ) CASE NO. SACV 10-1573 AG (PLAx)

)
12 )
Plaintiff, ) [TENTATIVE] ORDER GRANTING IN
13 ) PART MOTION TO DISMISS AND
v. ) DENYING MOTION TO STRIKE AS
14 ) MOOT
)
15 DAYLIGHT CHEMICAL, et al., )
)
16 )
Defendants. )
17 )
)
18 )
_________________________________ )
19

20

21 Plaintiff Charles Edward Lincoln III (“Plaintiff”) filed a complaint against Defendants

22 Daylight Chemical Information Systems, Inc. (“Defendant Daylight Chemical”), Yosef Taitz

23 (“Defendant Yosef Taitz”), Appealing Dentistry (“Defendant Appealing Dentistry”), Orly Taitz,

24 Inc. (“Defendant Orly Taitz, Inc.”), Law Office of Orly Taitz (“Defendant Law Office”), Dr.

25 Orly Taitz, D.D.S., J.D. (“Defendant Orly Taitz”), and Defend Our Freedoms Foundation

26 (“Defendant Defend Our Freedoms”). Defendants Daylight Chemical and Yosef Taitz now

27 bring a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) (“Motion
28 to Dismiss”). All other Defendants join the Motion to Dismiss. (Dkt. # 9, 13.) Defendant Orly
 1 Taitz now also brings a Motion to Strike Plaintiff’s First Claim (“Motion to Strike”). After

2 reviewing all papers and arguments submitted, the Court GRANTS in part and DENIES in part

3 the Motion to Dismiss and DENIES the Motion to Strike as MOOT.

5 BACKGROUND

7 The following facts come from the First Amended Complaint (“FAC”). For purposes of

8 the Motion to Dismiss under Rule 12(b)(6), the Court assumes these facts to be true. Because

9 some of the facts “is/are difficult to decipher,” to borrow a phrase from Plaintiff (FAC ¶ 14), the

10 Court will quote from the FAC.

11 Plaintiff was “hired by Defendant Dr. Orly Taitz to work as law clerk or litigation

12 assistant in her offices in Mission Viejo and Rancho Santa Margarita, California, starting on

13 June 9, 2009 . . . .” (FAC ¶ 5.) “Plaintiff’s original (oral) agreement with Dr. Taitz was to be

14 paid $10,000 to serve as her law clerk or litigation assistant in research, drafting, and support on

15 Dr. Taitz’ defense against a suit by one Philip J. Berg, Lisa Liberi, and Lisa Ostella filed in the

16 Eastern District of Pennsylvania.” (Id. ¶ 6.) “Unilaterally, but after Lincoln had begun to work

17 for her, and in fact after he had already presented himself in California on June 9, 2009, Dr.

18 Taitz took back her agreement and reduced this amount, without Plaintiff’s actual or implied

19 consent or agreement, to $7,500.00, outof [sic] which Plaintiff was expected to pay his hotel

20 bills in Mission Viejo while working with Dr. Taitz.” (Id. ¶ 7.)

21 “By this time [late June 2009], Defendants Dr. Taitz et al. had enlisted Plaintiff in all

22 their litigation projects, for although the monetary compensation was not initially increased, the

23 Plaintiff’s and Defendant’s relationship had begun a surprising (but non-professionaly [sic])

24 evolution which led to Defendant Dr. Orly Taitz’ ultimate infliction of extreme emotional

25 distress on the Plaintiff.” (Id. ¶ 10.)

26 “Even at a very modest paralegal rate such as $40/hour, the Plaintiff Charles Edward

27 Lincoln and Defendant Dr. Orly Taitz had originally agreed reasonable legal support/litigation
28 clerk’s fee of $10,000, although never actually paid, would already have been more than used up

2
 1 and exhausted by the approximately 250+ hours Plaintiff spent working for Dr. Taitz and Defend

2 our Freedoms Foundations, Inc., between June 9 and June 31, 2010 [sic].” (Id. ¶ 12.)

3 “Lincoln continued to work closely and continuously with Dr. Taitz throughout July,

4 2009, and on Saturday, while in Cambridge, Massachusetts, New York City, and Rancho Santa

5 Margarita, August 1, 2009, at 7:02 P.M., Yosef (Yosi) Taitz sent, apparently from his Daylight

6 Chemical Information office, a certain e-mail which was destined to change the relationshp and

7 situation between Plaintiff and Defendants forever, which should be considered the first of the

8 key ‘predicate acts’ on which R.I.C.O. is based, in that it was intended to advance a scheme to

9 defraud, aimed not merely at the Plaintiff but at the United States of America, for purposes or

10 with a state of mind that is/are difficult to decipher.” (Id. ¶ 14.)

11 Plaintiff now alleges twelve claims against various Defendants. Except where

12 specifically noted, the claims appear to be against all Defendants. The claims are numbered as

13 follows:

14 1) Malicious Prosecution;
2) Breach of Contract for Legal Representation;
15 3) Breach of Contract to Form Real Estate Management and Redemption
16 Management Company as a Partnership, LLP or LLC;
4) Breach of Contract and/or Promissory Estoppel to Provide Office Space;
17 5) Breach of Implied Covenant of Good Faith and Fair Dealing;
6) Defamation Per Se;
18 7) Breach of Contract and Legal Malpractice in relation to 4 Via Corbina
19 Management and Litigation;
8) Tortious Interference with de Leon and Aldana Mortgage Redemption Contracts
20 (against Defendant Orly Taitz only);
9) Tortious Interference with Contract (against Defendants Yosef Taitz and Daylight
21 Chemical only);
22 10) Tortious Interference with Prospective Business Advantage (against Defendants
Yosef Taitz and Daylight Chemical only);
23 11) Intentional Infliction of Emotional Distress;
12) Breach of Employment Contract or, in the alternative, Equitable Action in
24 Quantum Meruit;
25 13) Federal racketeering in violation of 18 U.S.C. §§ 1962(a)-(d) and§ 1964(c)
(“RICO”)
26

27
28

3
 1 PRELIMINARY MATTERS

3 Defendants Daylight Chemical and Yosef Taitz submitted a Request for Judicial Notice in

4 support of the Motion to Dismiss. They ask the Court to take judicial notice of the following

5 document: Civil docket for Case No. 2:10-cv-00615-RGK-PJW (C.D.Cal.) (“RJN No. 1 ”).

6 Defendants Law Office and Orly Taitz also submitted several Requests for Judicial

7 Notice. They ask the Court to take judicial notice of 15 documents from the docket in the matter

8 of Rivernider, et al. v. Us. Bank National Association, USDC, Southern District of Florida, Case

9 No. 9:09-cv-81255-WPD.

10 Under Federal Rule of Evidence 201, “[a] judicially noticed fact must be one not subject

11 to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of

12 the trial court or (2) capable of accurate and ready determination by resort to sources whose

13 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. Courts may take judicial notice

14 of “undisputed matters of public record,” but generally may not take judicial notice of “disputed

15 facts stated in public records.” Lee v. City of Los Angeles , 250 F.3d 668, 690 (9th Cir. 2001)

16 (emphasis in original). Facts subject to judicial notice may be considered on a motion to

17 dismiss. Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987).

18 The Court GRANTS judicial notice of the fact that Plaintiff’s address on the docket in

19 RJN No. 1 is 1928 Fletcher Avenue, South Pasadena, CA 91030, and that the case was filed in

20 January 2010 and terminated in October 2010. The Court does not assume that this is Plaintiff’s

21 true address but simply takes judicial notice of the fact that Plaintiff’s address is listed that way.

22 The Court also GRANTS judicial notice of the fact that the 15 documents from the

23 Southern District of Florida case exist, but not for the truth of any assertions contained within

24 those documents.

25 Defendants Daylight Chemical and Yosef Taitz also submit several evidentiary objections

26 to the exhibits filed by Plaintiff in opposition to the Motion to Dismiss. The Court has reviewed

27 the objections and relies only on admissible evidence. See F.T.C. v. Neovi, Inc., 598 F.Supp.2d

28 1104, 1118 n.5 (S.D.Cal. 2008).

4
 1 ANALYSIS

3 As stated previously, there are two motions currently before the Court. The first is a

4 Motion to Dismiss. The second is a Motion to Strike, which is limited to Claim One. The Court

5 will first address the Motion to Dismiss.

7 1. MOTION TO DISMISS

9 As noted, Defendants Daylight Chemical and Yosef Taitz now bring a Motion to Dismiss

10 under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), which Defendants Orly Taitz,

11 Law Office, Defend Our Freedoms, Orly Taitz, Inc., and Appealing Dentistry join. (Dkt. # 9,

12 13.) Thus, all Defendants are properly deemed joined in the Motion to Dismiss..

13 The Court first considers the Motion to Dismiss under Rule 12(b)(1), and then turns to the

14 Motion to Dismiss under Rule 12(b)(6).

15

16 1.1 Federal Rule of Civil Procedure 12(b)(1)

17

18 Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of a complaint for lack of

19 subject matter jurisdiction. Because federal courts are courts of limited jurisdiction, it is

20 “presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the

21 contrary rests upon the party asserting jurisdiction.” Vacek v. United States Postal Serv., 447

22 F.3d 1248, 1250 (9th Cir. 2006) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

23 375, 377 (1994) (citations omitted)). Dismissal without leave to amend is appropriate only when

24 the Court is satisfied that the deficiencies of the complaint could not possibly be cured by

25 amendment. Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003).

26 Plaintiff only pleads federal question jurisdiction in his Complaint. He does not assert

27 diversity jurisdiction, although Defendants attack diversity jurisdiction in their Motion to

28 Dismiss. Because the Complaint only asserts federal question jurisdiction, the Court addresses

5
 1 that basis for jurisdiction first. And because the Court finds that federal question jurisdiction

2 exists, the Court need not consider Defendants’ alternative challenge to diversity jurisdiction.

4 1.1.2 Federal Question Jurisdiction

6 Under 28 U.S.C. § 1331, this Court has “original jurisdiction of all civil actions arising

7 under the Constitution, laws, or treaties of the United States.” Plaintiff alleges jurisdiction under

8 three federal statutes. The FAC states, in pertinent part, “This Court has jurisdiction as

9 authorized by 18 U.S.C. § 1964(c), Civil R.I.C.O., as well as 28 U.S.C. § 1334, and 28 U.S.C. §

10 1367 (Supplemental Jurisdiction over inextricably intertwined California state claims . . .).”

11 (FAC ¶ 2.) The FAC states only one claim arising under federal law, namely Claim Thirteen for

12 RICO violations. The Court considers whether the federal statutes listed by Plaintiff in the FAC

13 could authorize federal jurisdiction here.

14 The first statute cited, 18 U.S.C. § 1964(c), creates a private right of action for

15 racketeering violations: “Any person injured in his business or property by reason of a violation

16 of section 1962 of this chapter may sue therefor in any appropriate United States district

17 court . . . .” This is clearly a federal statute, arising under the laws of the United States.

18 Defendants argue that federal jurisdiction should be defeated because Plaintiff’s sole

19 federal claim, for RICO violations, is not colorable. When considering jurisdiction, the Court

20 questions whether the federal claim “clearly appears to be immaterial and made solely for the

21 purpose of obtaining jurisdiction.” Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429

22 U.S. 274, 279 (1977). If the question is not “wholly insubstantial and frivolous,” then the Court

23 has jurisdiction. Steel Co. v. Citizens for a Better Envir., 523 U.S. 83, 89 (1998). “Jurisdiction,

24 therefore, is not defeated as respondents seem to contend, by the possibility that the averments

25 might fail to state a cause of action on which petitioners could actually recover. For it is well

26 settled that the failure to state a proper cause of action calls for a judgment on the merits and not

27 for a dismissal for want of jurisdiction.” Bell v. Hood, 327 U.S. 678, 682 (1946).

28 Nonetheless, a court may deny jurisdiction if the federal claim is “so insubstantial,

6
 1 implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit

2 as not to involve a federal controversy within the jurisdiction of the District Court.” Oneida

3 Indian Nation of N.Y. v. Oneida County, N.Y., 414 U.S. 661, 666 (1974).

4 As the Court discusses in Section 1.2.13, Plaintiff’s RICO allegations are weak. But for

5 jurisdictional purposes, the Court does not now consider whether Plaintiff’s RICO claims might

6 ultimately fail. Bell, 327 U.S. at 682. Plaintiff spends 25 paragraphs setting forth his RICO

7 violations. Although the allegations are frequently incomprehensible, the federal claim is not

8 insubstantial nor immaterial. Nor are the allegations clearly frivolous. It is possible that

9 Plaintiff has asserted the RICO claim simply to obtain federal jurisdiction, but it’s not obvious

10 that this is the case. A robust consideration of plausibility here would improperly blur the lines

11 between Rule 12(b)(1) and Rule 12(b)(6).

12 For all these reasons, the Court finds that it has jurisdiction at this time because of

13 Plaintiff’s alleged federal claim for violations of 28 U.S.C. § 1962. Accordingly, the Court

14 DENIES the Motion to Dismiss under Rule 12(b)(1). The Court now turns to whether Plaintiff’s

15 claims survive the Motion to Dismiss under Rule 12(b)(6).

16

17 1.2 Federal Rule of Civil Procedure 12(b)(6)

18

19 A court should dismiss a complaint when its allegations fail to state a claim upon which

20 relief can be granted. Fed. R. Civ. P. 12(b)(6). A complaint need only include “a short and plain

21 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

22 “‘[D]etailed factual allegations’ are not required.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1940

23 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007) (stating that “a complaint

24 attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations”)). The

25 Court must accept as true all factual allegations in the complaint and must draw all reasonable

26 inferences from those allegations, construing the complaint in the light most favorable to the

27 plaintiff. Pollard v. Geo Group, Inc., 607 F.3d 583, 585 n.3 (9th Cir. 2010); Westlands Water

28 Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir. 1993).

7
 1 But the complaint must allege “sufficient factual matter, accepted as true, to ‘state a claim

2 to relief that is plausible on its face.’” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at

3 570). “A claim has facial plausibility when the pleaded factual content allows the court to draw

4 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.

5 Ct at 1940 (citing Twombly, 550 U.S. at 556). A court should not accept “threadbare recitals of

6 a cause of action’s elements, supported by mere conclusory statements,” id., or “allegations that

7 are merely conclusory, unwarranted deductions of fact, or unreasonable inferences,” Sprewell v.

8 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). The pleading standard that Rule 8

9 announces does not require “detailed factual allegations,” but demands more than an

10 “unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S.Ct. at 1949 (citing

11 Twombly, 127 S.Ct. at 1955). A pleading that offers “labels and conclusions” or “a formulaic

12 recitation of the elements of a cause of action will not do.” Id. Nor does a complaint suffice if it

13 tenders “naked assertion[s]” devoid of “further factual enhancement.” Id. Where a complaint

14 fails to meet this standard, it may be dismissed with prejudice. See Schmidt v. Herrmann, 614

15 F.2d 1221, 1223 (9th Cir.1980). As stated previously, dismissal without leave to amend is

16 appropriate only when the Court is satisfied that the deficiencies of the complaint could not

17 possibly be cured by amendment. Jackson, 353 F.3d at 758.

18 Plaintiff alleges thirteen claims against various Defendants, as listed in the Background

19 section. The majority of these claims appear to be against all Defendants. The Court now looks

20 at each claim.

21

22 1.2.1 Claim One, for Malicious Prosecution

23

24 This claim appears to be against all Defendants. Plaintiff alleges that “Defendant Dr.

25 Orly Taitz, acting individually and/or as agent for Yosef Taitz and Daylight Chemical

26 Information, falsely charged Plaintiff of forging her signature (or signing without permission) on

27 certain motions filed in the United States District Court for the Southern District of Florida in

28 the Court of Judge William P. Dimitrouleas.” (FAC ¶ 24.)

8
 1 As stated in Casa Herrera, Inc. v. Beydoun, 32 Cal.4th 336, 341 (2004), “[I]n order to

2 establish a cause of action for malicious prosecution of either a criminal or civil proceeding, a

3 plaintiff must demonstrate ‘that the prior action (1) was commenced by or at the direction of the

4 defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was

5 brought without probable cause [citations]; and (3) was initiated with malice [citations].’”

6 Plaintiff fails to state a claim because he has not alleged that Defendant Orly Taitz

7 commenced an action against him for the alleged false charge of forgery. Rather, Plaintiff

8 alleges that the forgery matter was addressed through an Order to Show Cause in the Florida

9 case. (FAC ¶ 24.) Plaintiff attempts to argue in his Opposition to the Motion to Dismiss that the

10 hearing on the Order to Show Cause “became the exact sort of proceeding upon which plaintiff

11 could base a malicious prosecution action.” (Opposition to Motion to Dismiss at 13:18-19.) In

12 support of this argument, Plaintiff cites only Twyford v. Twyford, 63 Cal. App. 3d 916 (1976).

13 But in Twyford, the court found that a request for admissions was not a separate action that could

14 support a claim for malicious prosecution. Id. at 922. Likewise, there is no support for

15 Plaintiff’s argument that an Order to Show Cause is a separate proceeding sufficient to support a

16 malicious prosecution claim.

17 Because Plaintiff fails to allege the first requirement of a claim for malicious prosecution,

18 the Court need not consider arguments about the other two requirements.

19 The Court GRANTS the Motion to Dismiss Claim One as to all Defendants.

20

21 1.2.2 Claim Two, for Breach of Contract for Legal Representation

22

23 Plaintiff attaches the alleged contract as Exhibit A to the FAC. As attached, the

24 agreement is unsigned. He also attaches an alleged “Alternative ‘New Agreement’ between Orly

25 Taitz and Charles Edward Lincoln” as Exhibit B to the FAC, which he acknowledges was never

26 signed. Plaintiff alleges – in a footnote – that “Dr. [Orly] Taitz had both final and executed

27 copies [and] Plaintiff has not possessed either of the signed originals since he signed them in

28 early October.” (FAC, fn.1.)

9
 1 Regarding the substance of the alleged contract, Plaintiff alleges that he “hired, retained,

2 and entered into a formal agreement with Dr. Orly Taitz to represent him in litigation in at least

3 five states.” (Id. ¶ 30.) Defendant Orly Taitz allegedly breached this contract by “never

4 perform[ing] any meaningful legal services.” (Id. ¶ 31.)

5 A breach of contract claim has four elements: (1) existence of a valid contract; (2)

6 plaintiff’s performance or excuse for non-performance; (3) defendant’s breach; and (4) resulting

7 damage. E.g., McDonald v. John P. Scripps Newspaper, 210 Cal. App. 3d 100, 104 (1989).

8 Without a valid contract, there can be no claim for a breach of contract.

9 Here, Plaintiff alleges that Defendant Orly Taitz “was prevented from complying or

10 implementing the contract by Yosef Taitz.” (FAC ¶ 28.) Other than this brief reference,

11 Plaintiff presents no allegations in this claim about any defendants other than Orly Taitz. And

12 the one allegation against Defendant Yosef Taitz does not show that there was any sort of

13 contract with him. Nor does Plaintiff allege anything about the other Defendants for this claim.

14 Therefore, Plaintiff fails to state a claim against Defendants Daylight Chemical, Yosef Taitz,

15 Orly Taitz, Inc., Appealing Dentistry, Law Office, and Defend Our Freedoms.

16 Plaintiff also fails to state a claim against Defendant Orly Taitz. The threshold

17 requirement for a breach of contract claim is the existence of a valid contract. The documents

18 Plaintiff attaches to the FAC are insufficient to show that there was a contract or that Exhibit A

19 reflects the actual terms of the alleged contract. Even if Plaintiff’s single cursory allegation in a

20 footnote that the contract was signed were sufficient to establish the existence of a contract,

21 Plaintiff fails to allege that he performed under the terms of the contract. Therefore, Plaintiff

22 fails to state a claim against Defendant Orly Taitz.

23 The Court GRANTS the Motion to Dismiss Claim Two as to all Defendants.

24

25

26

27

28

10
 1 1.2.3 Claim Three, for Breach of Contract to Form Real Estate Management and

2 Redemption Management Company as a Partnership, LLP or LLC

4 Plaintiff alleges that Defendant Orly Taitz “agreed to assist Plaintiff Charles Edward

5 Lincoln in managing several distinct real properties in California, Florida, Idaho, Massachusetts,

6 and Texas, but Dr. Orly Taitz made these promises with no intention ever meaningfully to do

7 so.” (FAC ¶ 37.) Plaintiff attempts to implicate several other Defendants by alleging that “Dr.

8 Taitz did all these things either at the behest of or while acting as agent of and for Yosef Taitz

9 and Daylight Chemical Information . . . .” (Id. ¶ 39.)

10 As stated previously, a breach of contract claim requires the existence of a valid contract.

11 Plaintiff has not alleged that there was a contract. Plaintiff’s bare-bones allegation here that a

12 defendant “agreed” to do something isn’t sufficient to show a contract. Plaintiff also fails to

13 allege a specific breach of any contract. Further, Plaintiff’s cursory allegations of agency – or

14 acting “at the behest” – between Defendant Orly Taitz and two other Defendants are insufficient

15 to state a claim based on vicarious liability. As to the other Defendants, Plaintiff does not

16 mention Defendants Orly Taitz, Inc., Law Office, Appealing Dentistry, or Defend Our

17 Freedoms.

18 The Court GRANTS the Motion to Dismiss Claim Three as to all Defendants.

19

20 1.2.4 Claim Four, for Breach of Contract and/or Promissory Estoppel to Provide

21 Office Space

22

23 Plaintiff alleges this claim against all Defendants, but notes that “in connection with this

24 count . . . Orly Taitz, Inc., may be most directly implicated.” (FAC ¶ 40.) Oddly, Plaintiff

25 includes citations to caselaw in the sections of the FAC supporting this claim. (E.g., id. ¶¶ 45-

26 47.)

27 First and foremost, Plaintiff yet again fails to allege a specific contract. He doesn’t say

28 whether the supposed contract was written or oral, or express or implied. He merely alleges that

11
 1 “[i]n September and October 2009, Defendant Dr. Orly Taitz offered . . . several rooms of space

2 in and adjacent to her Dental and Law Offices . . . for a term of 1-2 years to use as [a] personal

3 office . . . .” (Id. ¶ 41.) This is not a sufficient allegation of a contract.

4 In addition, Plaintiff’s alternative allegation of promissory estoppel also fails. To

5 establish promissory estoppel, a litigant must prove: “(1) the existence of a promise, (2) which

6 the promisor reasonably should have expected to induce the promisee’s reliance, (3) that the

7 promisee actually induce[d] such reliance, (4) that such reliance is reasonable, and (5) that

8 injustice can only be avoided by the enforcement of the promise.” Aguilar v. Int’l

9 Longshoremen’s Union Local #10, 966 F.2d 443, 445 (9th Cir. 1992).

10 Plaintiff alleges none of these elements. Although Plaintiff alleges generally what

11 Defendant Orly Taitz offered, he provides no specifics about the nature of the supposed promise.

12 He also fails, among other shortcomings, to allege whether or not the rooms were ever made

13 available to him, whether his reliance was reasonable, or whether the promise should now be

14 enforced.

15 The Court GRANTS the Motion to Dismiss Claim Four as to all Defendants.

16

17 1.2.5 Claim Five, for Breach of Implied Covenant of Good Faith and Fair

18 Dealing

19

20 Plaintiff bases this claim on the alleged contract for legal representation, attached as

21 Exhibit A to the Complaint and addressed in Section 1.2.2. Plaintiff alleges this claim against all

22 Defendants on various conspiracy and agency theories. In vague terms, Plaintiff alleges that

23 “Defendant Dr. Orly Taitz breached the implied covenant of good faith and fair dealing by

24 interfering with or failing to cooperate with the plaintiff in the performance of the contract.”

25 (FAC ¶ 50.)

26 First, Plaintiff fails to allege conspiracy or agency liability. Mere conclusory allegations

27 are not sufficient. Iqbal, 129 S. Ct at 1940. Therefore, Plaintiff fails to state a claim against

28 Defendants Daylight Chemical, Yosef Taitz, Appealing Dentistry, Defend Our Freedoms, Law

12
 1 Office, or Orly Taitz, Inc.

2 Second, the Court already concluded in Section 1.2.2 that Plaintiff had not sufficiently

3 alleged a valid contract for legal representation between Plaintiff and Defendant Orly Taitz.

4 Without a contract, there can be no claim for breach of the implied covenant.

5 The Court GRANTS the Motion to Dismiss Claim Five as to all Defendants.

7 1.2.6 Claim Six, for Defamation Per Se

9 To state a claim for defamation, Plaintiffs must allege “(a) a publication that is (b) false,

10 (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes

11 special damage.” 5 Witkin 10th Torts § 529 (2005). There can be no defamation without a

12 falsehood. Seelig v. Infinity Broad. Corp., 97 Cal. App. 4th 798, 809 (2002).

13 In the FAC, Plaintiff alleges no specific statements that were allegedly defamatory. As

14 noted previously, an “unadorned, the-defendant-unlawfully-harmed-me accusation” is

15 insufficient to state a claim. Iqbal, 129 S.Ct. at 1949. Plaintiff provides the web addresses for

16 several websites, but does not identify any particular statements on those sites that were

17 allegedly defamatory. In his Opposition to the Motion to Dismiss, Plaintiff asserts that a certain

18 press release, attached to the FAC as Exhibit C, contains defamatory statements. He argues that

19 “[t]hough the press release/letter to the UN did not name Lincoln by name, Levy, in his

20 interview with Levy ‘points out the shady background of Taitz’s former associates who have

21 become enemies, such as convicted forger Lucas Smith and disbarred attorney Charles Edward

22 Lincoln III.’” (Opposition to Motion to Dismiss at 19:5-9.) Of course, Plaintiff actually is a

23 disbarred attorney, and one of the elements of a claim for defamation is that the statement must

24 be false. Nonetheless, because a Rule 12(b)(6) motion to dismiss looks primarily at the

25 sufficiency of the pleadings, any clarifications that Plaintiff tries to make in his Opposition can’t

26 bolster his claim.

27 The Court GRANTS the Motion to Dismiss Claim Six as to all Defendants.

28

13
 1 1.2.7 Claim Seven, for Breach of Contract and Legal Malpractice in relation to 4

2 Via Corbina Management and Litigation

4
While Plaintiff styles this is a claim for breach of contract and legal malpractice, the only
5
(barely) coherent allegation is for breach of fiduciary duty. (FAC ¶ 60.) Plaintiff instead
6
includes several rambling paragraphs about an alleged romantic relationship between himself
7
and Defendant Orly Taitz. (E.g., id. ¶¶ 61, 62.)
8
Plaintiff has an obligation under Federal Rule of Civil Procedure 8(a) to present a plain
9
and short statement showing that Plaintiff is entitled to relief. Here, Plaintiff has done no such
10
thing.
11

12 The Court GRANTS the Motion to Dismiss Claim Seven as to all Defendants.

13

14 1.2.8 Claim Eight, for Tortious Interference with de Leon and Aldana Mortgage
15 Redemption Contracts (against Defendant Orly Taitz only)
16

17
Plaintiff alleges that Dennis and Milenne de Leon and Herman and Olga Aldana were
18
“prospective property management/mortgage redemption clients.” (FAC ¶ 68.) It is unclear
19
from the allegations whether the de Leons and Aldanas were prospective clients only (Id. ¶ 75)
20
or whether there was a contract with them (Id. ¶ 76). It is also unclear from the allegations how
21
Defendant Orly Taitz interfered with either the prospective business relationship or a contract.
22
For example, Plaintiff alleges:
23

24 As a direct and proximate result of Dr. Taitz’ breach of contract and

breach of the covenant of good faith and fair dealing with Lincoln,
25 Dr. Taitz tortiously (intentionally, with gross negligence, and
recklessly), interfered with Lincoln’s contract and advantageous
26 prospective business relationship with the de Leon and Aldana
families, who were also subjected to extreme emotional distress and
27 otherwise injured and oppressed by Taitz false and malicious
prosecution and defamation of Lincoln in the months of November
28 2009-February 2010 (and Dennis and Milenne de Leon in fact paid all

14
 1 of Philip J. Berg’s legal fees and travel expenses, along with
Lincoln’s and certain witnesses’ travel expenses, to Florida in January
2 2010).
FAC ¶ 75.
3

4 There are an awful lot of words in that one sentence, but the Court cannot decipher the

5 meaning. Nor is the meaning made clear by any of the other allegations supporting this claim.

6 Accordingly, the Court GRANTS the Motion to Dismiss Claim Eight as to Defendant
7 Orly Taitz, who is the only defendant subject to this claim.
8

9
1.2.9 Claim Nine, for Tortious Interference with Contract (against Defendants
10
Yosef Taitz and Daylight Chemical only)
11

12

13 As the Court concluded already, Plaintiff has not sufficiently alleged a valid contract

14 between Plaintiff and Defendant Orly Taitz (or anyone else). Without a contract, there can be no

15 tortious interference with a contract.

16 The Court GRANTS the Motion to Dismiss Claim Nine as to Defendants Yosef Taitz and
17 Daylight Chemical, who are the only defendants subject to this claim.
18

19
1.2.10 Claim Ten, for Tortious Interference with Prospective Business Advantage
20
(against Defendants Yosef Taitz and Daylight Chemical only)
21

22

23 Plaintiff’s allegations supporting Claim Ten are identical to those supporting Claim Nine.

24 (Compare FAC ¶¶ 81-82 with ¶¶ 85-86.) Plaintiff fails to identify what specific prospective

25 business advantage Defendants have allegedly interfered with. Plaintiff also fails to identify

26 specifically how Defendants Yosef Taitz and Daylight Chemical interfered. The only allegation

27 of interference is that “Defendant [Orly] Taitz revealed to Lincoln that Yosef Taitz had ordered

28 or instructed or threatened Taitz that she would have to surrender all her rights to marital estate

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 1 or property if she honored her several agreements or continued her relationship with Plaintiff

2 Charles Edward Lincoln.” (Id. ¶ 86.) But this is insufficient.

3 The Court GRANTS the Motion to Dismiss Claim Ten as to Defendants Yosef Taitz and
4 Daylight Chemical, who are the only defendants subject to this claim.
5

6
1.2.11 Claim Eleven, for Intentional Infliction of Emotional Distress (“IIED”)
7

9 To state a claim for IIED, a plaintiff must allege: (1) extreme and outrageous conduct by
10 the defendant with the intention of causing, or reckless disregard of the probability of causing,
11 emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3)
12 actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.
13 Cervantes v. J.C. Penny, 24 Cal. 3d 579, 593 (1979). The conduct must be “so extreme as to
14 exceed all bounds of that usually tolerated in a civilized community.” Davidson v. City of
15 Westminister, 32 Cal. 3d. 197, 210 (1982).
16 Plaintiff alleges the following relevant facts to support his IIED claim:
17
• Plaintiff and Defendant Orly Taitz engaged in an “oppressive and exploitative”
18
sexual relationship (FAC ¶ 89);
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• Defendant Orly Taitz “badger[ed] him to move to live . . . within 5 minutes of her
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office” so they could maintain their relationship (Id.);
21

22 • Plaintiff “refus[ed] to completely subordinate himself to the Defendant [Orly

23 Taitz]” (Id. ¶ 91);

24 • Defendant Orly Taitz “promised Lincoln a long list of benefits including

25 comprehensive dental care, special medical care and a ‘holistic’ program of
26 therapy for which Defendant Dr. Orly Taitz would pay, plus all sorts of bizarre
27 promises about buying the Plaintiff fine furniture and a new stylish and expensive
28 wardrobe, complete with exotic items such as Vicuna jackets, none of which ever

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 1 materialized, needless to say.” (Id. ¶ 92);

2 • Defendant Orly Taitz “either directly and/or indirectly placed or caused to be

3 placed a series of harassing and intimidating telephone calls to a number of people

4 in late December 2009 and Early January 2010, including at least 130 calls placed

5 to Plaintiff’s estranged wife” (Id. ¶ 95).

6 Plaintiff has not sufficiently alleged behavior that “exceed[s] all bounds” of tolerated

7 behavior. Davidson, 32 Cal.3d. at 210. Even taken as a whole, the Court cannot conclude that

8 these allegations support a claim for IIED against any Defendant. In particular, the Court is hard

9 pressed to see how the alleged promise of buying Plaintiff a nice jacket could constitute extreme

10 behavior.

11 The Court GRANTS the Motion to Dismiss Claim Eleven as to all Defendants.

12

13 1.2.12 Claim Twelve, for Breach of Employment Contract or, in the alternative,

14 Equitable Action in Quantum Meruit

15

16 As stated previously, Plaintiff has not sufficiently alleged the existence of any valid

17 contract. Accordingly, his claim for breach of employment contract fails.

18 Plaintiff alleges an alternative claim, seeking quantum meruit. Quantum meruit “refers to

19 the well-established principle that ‘the law implies a promise to pay for services performed

20 under circumstances disclosing that they were not gratuitously rendered.’” Id. (quoting Long v.

21 Rumsey, 12 Cal. 2d 334, 342 (1938)); Spires v. American Bus Lines, 158 Cal. App. 3d 211, 217

22 (1984) (Quantum meruit recovery for services is justified “where services were performed by a

23 party at the request of another under circumstances in which compensation for such services

24 would be expected”). To recover in quantum meruit, a party need not prove the existence of a

25 contract, but must show the circumstances were such that “the services were rendered under

26 some understanding or expectation of both parties that compensation therefor was to be made.”

27 Huskinson & Brown v. Wolf, 32 Cal. 4th 453, 458 (2004) (internal citations omitted).

28 Plaintiff has not sufficiently alleged that Defendants Yosef Taitz, Daylight Chemical,

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 1 Orly Taitz, Inc., Appealing Dentistry, Law Office, or Defend Our Freedoms owe him anything

2 here under a theory of quantum meruit.

3 But Plaintiff does state a claim for quantum meruit against Defendant Orly Taitz. Taking

4 Plaintiff’s allegations as true, Plaintiff worked somewhere between 60 and 120 hours per week

5 from June 2009 through November 2009. (FAC ¶¶ 102, 103, 107.) Plaintiff alleges that he was

6 not paid for any of this work. (Id. ¶ 101.) The circumstances alleged are such that Plaintiff and

7 Defendant Orly Taitz allegedly both understood that some compensation would be due for

8 Plaintiff’s work.

9 Plaintiff includes a specific prayer for relief for this claim, asking that “Defendants be

10 ordered to pay for one year of health and dental coverage for the Plaintiff as well in addition to

11 back pay/in quantum meruit and Robert J. Ponte’s Lexis-Nexis bill of ca. $7,200.00.” (Id. ¶

12 108.) At this stage, the Court finds only that Plaintiff has stated a claim in quantum meruit

13 against Defendant Orly Taitz and makes no determination about what, if any, relief might

14 ultimately be appropriate.

15 The Court GRANTS the Motion to Dismiss Claim Twelve as to Defendants Yosef Taitz,

16 Daylight Chemical, Orly Taitz, Inc., Appealing Dentistry, Law Office, and Defend Our

17 Freedoms. The Court DENIES the Motion as to Defendant Orly Taitz.

18

19 1.2.13 Claim Thirteen, for Federal racketeering in violation of 18 U.S.C.

20 §§ 1962(a)-(d) and§ 1964(c).

21

22 Plaintiff has alleged violations of the federal racketeering laws (“RICO”). In particular,

23 Plaintiff has alleged violations of all subsections of 18 U.S.C. § 1962. Section 1961 sets forth

24 definitions of relevant terms, including racketeering activity, enterprise, pattern of racketeering

25 activity, among others. The four subsections of § 1962 make unlawful various activities relating

26 to a pattern of racketeering, which is defined as at least two acts of racketeering activity. §

27 1961(6).

28 The racketeering statute includes an exhaustive list of predicate acts. § 1961(1). While

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 1 Plaintiff alleges several predicate acts (For example, FAC ¶¶ 113, 115, 120, 121, 125) he does

2 not identify what statute those acts violate and whether those statutes are racketeering predicate

3 acts. It is also unclear whether the alleged predicate acts could be considered racketeering

4 activity under § 1961. One alleged predicate act is that Defendant Orly Taitz used “the

5 telephonic wires to solicit, albeit in a call initiated by Charles Edward Lincoln, further perjured

6 testimony against himself as a condition for any sort of professional reconciliation and future

7 attorney-client cooperation between Lincoln and Taitz.” (Id. ¶ 125.) Plaintiff doesn’t identify

8 what statute this action, or any other alleged predicate act, might violate.

9 His other RICO allegations are largely conclusory and implausible. For example,

10 Plaintiff alleges that “Defendants Orly Taitz, Yosef Taitz, Appealing Dentistry, Defend Our

11 Freedoms Foundation, and Daylight Chemical Information Corporation all agreed and conspired

12 together to violate the terms of §§ 1962(a), 1962(b), and 1962(c), in particular, by agreeing to

13 each of the predicate acts committed within the one year period between August 1, 2009, and

14 July 4, 2010, and by further agreeing to inflict wrongful and malicious injury on the Plaintiff

15 Charles Edward Lincoln, at all times using the electronic wire telephonic facilities of interstate

16 commerce and communication.” (Id. ¶ 133.)

17 The Court GRANTS the Motion to Dismiss Claim Thirteen as to all Defendants.

18

19 1.3 Plaintiff’s Request for Conversion to Motion for Summary Judgment

20

21 In his Opposition to the Motion to Dismiss, Plaintiff argues that “the barrage of judicial

22 notices filed by the Defendants in this case constitutes evidence and matters outside of the

23 pleadings.” (Opposition to Motion to Dismiss at 20:9-10.) Accordingly, Plaintiff asks the Court

24 to deem the Motion to Dismiss to be a motion for summary judgment, and to allow discovery

25 before ruling on the motion. But there has not, in fact, been a “barrage” of documents submitted

26 for judicial notice. The Court notes that only one single document was submitted by Defendants,

27 and that while the Court granted judicial notice, it did not address that document in this Order.

28 The Court finds that there is no reason to convert the Motion to Dismiss to a motion for

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 1 summary judgment. Plaintiff’s request is DENIED.

3 1.4 Conclusion

5 The Court GRANTS in part and DENIES in part the Motion to Dismiss.

7 2. MOTION TO STRIKE

9 Defendants Law Office and Orly Taitz filed a Motion to Strike Plaintiff’s first claim, for

10 malicious prosecution. Defendants Defend Our Freedoms, Orly Taitz, Inc., and Appealing

11 Dentistry joined in the Motion to Strike.

12 Because the Court grants the Motion to Dismiss Claim One, the Motion to Strike is

13 DENIED as MOOT.

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 1 DISPOSITION

3 The Court DENIES the Motion to Dismiss under Rule 12(b)(1). The Court GRANTS in

4 part and DENIES in part the Motion to Dismiss under Rule 12(b)(6). The Court GRANTS the

5 Motion to Dismiss in their entirety Claims One, Two, Three, Four, Five, Six, Seven, Eight, Nine,

6 Ten, Eleven, and Thirteen. The Court GRANTS the Motion to Dismiss Claim Twelve as to

7 Defendants Yosef Taitz, Daylight Chemical, Orly Taitz, Inc., Appealing Dentistry, Law Office,

8 and Defend Our Freedoms. The Court DENIES the Motion to Dismiss Claim Twelve as to

9 Defendant Orly Taitz. The Court DENIES the Motion to Strike as MOOT. Dismissal is with

10 leave to amend. Plaintiff may file any amended complaint within 14 days of this Order.

11

12 IT IS SO ORDERED.

13 DATED: February 14, 2011

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15 _______________________________
16
Andrew J. Guilford
17
United States District Judge
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