1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION

11 ) JOHN W. SIGLER, ) Case No.: SACV 22-02325-CJC (JDEx) 12 ) ) 13 Plaintiff, ) ) ORDER TO SHOW CAUSE WHY 14 ) PLAINITFF’S FEDERAL CLAIMS v. ) SHOULD NOT BE DISMISSED 15 )

JORGE GONZALEZ; USAA )

16 )

CASUALTY INSURANCE COMPANY; )

17 INTERINSURANCE EXCHANGE OF )

AUTOMOBILE CLUB OF )

18 )

SOUTHERN CALIFORNIA; )

19 IMPERIAL BODY SHOP, INC.; and ) DOES 1 to 99, inclusive, ) 20 ) ) 21 Defendants. ) ) 22 ) 23 24 On February 28, 2020, Defendant Jorge Gonzalez rear-ended pro se Plaintiff John 25 W. Sigler’s car while Sigler’s son Alexander was driving it. (Dkt. 1, Ex. A [Complaint] 26 ¶¶ 1, 6.) Gonzalez was at fault. (Id.) In this case, Plaintiff asserts claims against 27 Gonzalez, Interinsurance Exchange of Automobile Club of Southern California (“the 1 (“USAA,” Plaintiff’s insurer), Imperial Body Shop, Inc. (“IBS”), and unnamed Does 2 stemming from the collision, repair, and insurance coverage. (Id. ¶¶ 1–10.) In general, 3 Plaintiff alleges that “[b]oth insurance companies, their employees,” and IBS “have 4 engaged in criminal acts of insurance fraud, wire fraud, mail fraud, extortion, and witness 5 tampering with the common goal to avoid[] payment of legitimate damages resulting 6 from said auto accident.” (Id. ¶ 4.) 7 8 Plaintiff’s fraud allegations mostly rely on his assertion that certain Vehicle 9 Valuation Reports (“VVR”) “were the act of intentional fraud.” (Id. ¶ 48.) Specifically, 10 on March 10, 2020, USAA determined that Plaintiff’s car was totaled and obtained a 11 VVR from IBS. (Id. ¶ 35.) USAA’s VVR did not include equipment Plaintiff’s car had 12 such as a sunroof. (Id. ¶ 36.) On March 23, 2020, the Exchange had IBS create another 13 VVR. (Id. ¶ 44.) The Exchange’s VVR also did not include features of Plaintiff’s car 14 such as a sunroof and metallic paint. (Id.) 15 16 Plaintiff also complains about two rental car quotes he says were “act[s] of 17 insurance fraud.” (Id. ¶¶ 52–55, 139–40.) On April 3, 2020, the Exchange sent Plaintiff 18 a settlement offer including an offer for “loss of use.” (Id. ¶ 51.) The Exchange stated 19 that the cost to rent an equivalent rental based on Enterprise’s price list was $38.99. (Id.) 20 However, because the price list used “did not include auxiliary costs such as taxes, and 21 other mandatory fees,” Plaintiff alleges that the Exchange “intentionally concealed the 22 true rental cost . . . in a deliberate attempt to mislead the Plaintiff into believing her low 23 rental price of an equivalent vehicle was factual.” (Id. ¶¶ 52–53.) And in an April 15, 24 2020 revised loss of use offer of $54.23 per day, the Exchange “depressed the base rate 25 for an equivalent rental car by using a special ‘COVID-19’ discount rate from AVIS.” 26 (Id. ¶¶ 55, 139–40.) 27 1 Plaintiff asserts eighteen claims against Defendants. His federal claims include 2 violations of the civil Racketeer Influenced and Corrupt Organization (“RICO”) Act, wire 3 fraud, mail fraud, extortion, and witness or evidence tampering, and his state law claims 4 include negligence, insurance fraud under the California Penal Code, fraud, and 5 actionable deceit. Now before the Court is the Exchange’s motion to dismiss Plaintiff’s 6 Complaint against it, which includes some of the federal claims, but not all of them. 7 (Dkt. 45.) 8 9 After reviewing the Exchange’s arguments that Plaintiff’s claims against it should 10 be dismissed, the Court has concerns that Plaintiff fails to state a claim on all of his 11 federal claims. Indeed, IBS’s answer asserts as a defense that Plaintiff fails to state any 12 claim against it as well. (Dkt. 12 at 102.) 13 14 First, it appears that Plaintiff fails to sufficiently allege a pattern of racketeering 15 activity in both his seventh and thirteenth claims. The civil RICO statute makes it 16 “unlawful for any person employed by or associated with any enterprise engaged in, or 17 the activities of which affect, interstate or foreign commerce, to conduct or participate, 18 directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of 19 racketeering activity.” 18 U.S.C. § 1962(c). To state a civil RICO claim, a plaintiff must 20 allege facts showing “(1) conduct (2) of an enterprise (3) through a pattern (4) of 21 racketeering activity (known as ‘predicate acts’) (5) causing injury to plaintiff’s ‘business 22 or property.’” Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 361 23 (9th Cir. 2005). A “pattern of racketeering activity” requires at least two predicate acts, 24 though two is not always sufficient because “in common parlance two of anything do not 25 generally form a ‘pattern.’” Sun Sav. & Loan Ass’n v. Dierdorff, 825 F.2d 187, 191 (9th 26 Cir. 1987) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n.14 (1985)). The 27 predicate criminal acts must be both “related” and “continuous.” Allwaste, Inc. v. Hecht, 1 threat of continuing activity.” Sun Sav. & Loan, 825 F.2d at 193. These requirements 2 ensure that the RICO statute is not applied “to the perpetrators of isolated or sporadic 3 criminal acts,” since “Congress was concerned in RICO with long-term criminal 4 conduct.” Id. at 192; H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 242 (1989). For this 5 reason, “[p]redicate acts extending over a few weeks or months and threatening no future 6 criminal conduct” are not enough to state a civil RICO claim. H.J. Inc., 492 U.S. at 229. 7 The Court has doubts that Plaintiff has alleged sufficient facts reflecting a pattern of 8 racketeering activity in either his seventh or thirteenth claims. 9 10 Second, it appears that Plaintiff does not have standing to assert his wire fraud, 11 Hobbs Act extortion, and evidence tampering claims (his eighth through twelfth, 12 fourteenth, fifteenth, seventeenth, and eighteenth claims) under the United States Code. 13 Though these criminal offenses “may serve as predicate offenses for a civil RICO cause 14 of action,” their prosecution “has been entrusted solely to the federal government.” Lin v. 15 City of Perris, 2020 WL 5289931, at *5 (C.D. Cal. Apr. 17, 2020), aff’d, 2022 WL 16 2355507 (9th Cir. June 30, 2022) (dismissing with prejudice a plaintiff’s asserted 17 standalone claims for mail and wire fraud “for lack of a private right of action”); see also 18 Cobb v. Brede, 2012 WL 33242, at *2 (N.D. Cal. Jan. 6, 2012), aff’d, 517 F. App’x 556 19 (9th Cir. 2013) (“[M]ail and wire fraud do not, standing alone, result in the right to file a 20 federal lawsuit.”); Hacker v. Hacker, 2015 WL 8780561, at *3 (E.D. Cal. Dec. 15, 2015), 21 report and recommendation adopted, 2016 WL 4254108 (E.D. Cal. Aug. 12, 2016) 22 (“[C]ourts have consistently found that mail and wire fraud statutes do not confer a 23 private right of action. . . . Since Plaintiff cannot state a claim directly under the wire 24 fraud statute, his first claim for relief must be dismissed.”) (collecting cases). 25 26 Accordingly, Plaintiff is ORDERED TO SHOW CAUSE in writing by August 27 28, 2023 why all of his federal claims should not be dismissed for failure to state a claim. 1 || may also file a response by that date. Plaintiff may file a reply by September 12, 2023. 2 |} The Court will hold a hearing on these issues on September 25, 2023, at 1:30 p.m. 3 || The Court also CONTINUES the hearing on the Exchange’s motion to dismiss [45] to 4 ||the same date and time. 5 6 DATED: August 14, 2023 jem ge 7 I—— f(T 8 CORMAC J. CARNEY 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28