Opinion
2:22-cv-00504-KJM-AC
11-03-2022
Boris Antl, Plaintiff, v. AGA Service Co. & Jefferson Insurance Co., Defendants.
ORDER
For the second time, defendants AGA Service Company and Jefferson Insurance Company move to dismiss plaintiff Boris Anti's fraud and California Unfair Competition Law (UCL) claims. For the reasons below, the court now grants defendants' motion without leave to amend.
I. BACKGROUND
The court previously granted defendants' motion to dismiss Antl's fraud and UCL claims because he did not allege “what led him to buy insurance from [defendants].” Prev. Order at 3-4, ECF No. 15. Antl now adds the following allegations. Before his trip to Chile, Antl visited AGA's website because he was interested in purchasing a travel insurance plan with emergency healthcare coverage. Second Am. Compl. (SAC) ¶¶ 16, 60, ECF No. 20. He “does not recall the exact language of the website,” but it represented AGA's policy would provide emergency healthcare coverage. Id. ¶ 17. Based on this representation, Antl purchased AGA's policy underwritten by Jefferson. Id. ¶ 18. But defendants “made that representation . . . knowing [ ] it was false, or never intended to perform when it was made,” id. ¶¶62, 64; their untimely payment for Antl's emergency surgery in Chile caused permanent damage to his heart, id. ¶¶30-33.
As noted, defendants move to dismiss Antl's fraud and UCL Claims. Mot., ECF No. 21. Antl opposes. Opp'n, ECF No. 22. Defendants have replied. Reply, ECF No. 25. The court submitted the matter without a hearing. Min. Order, ECF No. 26.
II. LEGAL STANDARD
A party may move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The motion may be granted only if the complaint lacks a “cognizable legal theory” or if its factual allegations do not support a cognizable legal theory. Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). The court assumes all factual allegations are true and construes “them in the light most favorable to the nonmoving party.” Steinle v. City & County of San Francisco, 919 F.3d 1154, 1160 (9th Cir. 2019) (citation omitted). If the complaint's allegations do not “plausibly give rise to an entitlement to relief,” the motion must be granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
A complaint ordinarily needs contain only a “short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), not “detailed factual allegations,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). But when a plaintiff claims to have been defrauded, the complaint “must state with particularity the circumstances constituting fraud.” Fed.R.Civ.P. 9(b). Here, Antl's fraud and UCL claims are subject to this pleading standard. See Kearns v. Ford Motor Co., 567 F.3d 1120, 1127 (9th Cir. 2009).
“Particularity,” as that word is used in Rule 9(b), means the complaint must explain the circumstances of the alleged fraud specifically enough to give the defendants “notice of the particular misconduct” so “they can defend against the charge and not just deny that they have done anything wrong.” Id. at 1124 (quoting Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001)). A common gloss on this standard explains that a complaint must detail “the who, what, when, where, and how” of the alleged fraud. See, e.g., Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)).
III. ANALYSIS
Antl's fraud and UCL claims cannot proceed because he has insufficiently pled defendants' intent to defraud.
An intent to defraud is an element of a fraud claim. See In re Estate of Young, 160 Cal.App.4th 62, 79 (2008). The same is true for Antl's UCL claim, which is based on his fraud claim. See Prev. Order at 4; Cel-Tech Comm., Inc. v. Los Angeles Cellular Tel. Co., 20 Cal.4th 163, 180 (1999) (“[UCL] ‘borrows' violations of other laws and treats them as unlawful practices . . .). “Although intent can be averred generally under Rule 9(b), a plaintiff must point to facts which show that defendant harbored an intention not to be bound by terms of the contract at formation.” Hsu v. OZ Optics Ltd., 211 F.R.D. 615, 620 (N.D. Cal. 2002) (emphasis in original). “In so differentiating a false promise from the great bulk of broken promises, the allegations necessary to show contemporaneous intention not to perform should be clear, specific, and unequivocal.” Hill Transp. Co. v. Sw. Forest Indus, Inc., 266 Cal.App. 2d 702, 708 (1968). Such allegations require “something more” than mere non-performance of a contract. Wright v. Ocwen Loan Servicing, LLC, 2010 WL 11556696, at *7 (C.D. Cal. Sept. 22, 2010).
Here, Antl does not plead “something more” than defendants' breach of contact. He merely alleges defendants untimely paid for his emergency surgery, in violation of the terms of the policy. SAC ¶¶ 30-33, 64. These kind of allegations do not show “defendants] harbored an intention not to be bound by terms of the contract at formation.” Hsu, 211 F.R.D. at 620 (emphasis added). Although Antl alleges defendants never intended to perform their promise, see SAC ¶ 62, this conclusory recitation of the element is insufficient to survive defendants' motion to dismiss, see Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Antl may instead attempt to prove defendants' broken promises through his contract claim.
Because it is now clear Antl does not possess facts sufficient to support his fraud and UCL claims, the court grants defendants' motion to dismiss these two claims without leave to amend. See DCD Programs, Ltd. V. Leighton, 833 F.2d 183, 186 n.3 (9th Cir. 1987) (“[A] district court's discretion over amendments is especially broad ‘where the court has already given a plaintiff one or more opportunities to amend his complaint . . . .'” (quoting Mir v. Fosburg, 646 F.2d 342, 347 (9th Cir. 1980)).
IV. CONCLUSION
For the reasons above, the court grants defendants' motion to dismiss plaintiff's claims four and seven without leave to amend.
This order resolves ECF No. 21.
IT IS SO ORDERED.