Free Order on Motion to Dismiss - District Court of California - California

Case 3:08-cv-01219-CRB

Document 14

Filed 04/15/2008

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

DAVID KECK, Plaintiff, v. BANK OF AMERICA, et al., Defendants. /

No. C 08-01219 CRB ORDER

Now pending before the Court is the motion to dismiss of defendant Bank of America, N.A. After carefully considering the papers filed by the parties, the Court concludes that oral argument is unnecessary, see Local Rule 7-1(b), and rules as is set forth below. Defendant's motion to dismiss the First Cause of Action for violation of California's Unfair Competition Law is GRANTED with leave to amend. Plaintiff must allege which prong(s) of the statute (unlawful, unfair, or fraudulent) he alleges defendant violated and how defendant allegedly violated each prong. Defendant's motion to dismiss the Second Cause of Action for violation of California Penal Code section 630 et seq. is DENIED. Defendant has not yet met its burden of proving that plaintiff does not state a claim, that is, it has not proved as a matter of law that the afterthe-fact-consent to defendant's taping of the remainder of the telephone conversation applies to the earlier-recorded portion of the conversation. Nor has defendant proved that plaintiff

Case 3:08-cv-01219-CRB

Document 14

Filed 04/15/2008

Page 2 of 3

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

cannot show that he had a reasonable expectation that the conversation would not be taped. The fact that defendant asked permission to record part of the conversation gives rise to an inference of an expectation that the conversation would not be taped absent consent. Defendant's Motion to Dismiss the Third Cause of Action for violation of the CLRA is DENIED in part and GRANTED in part. As to defendant's argument that the CLRA does not apply to financial or insurance transactions, the motion is denied without prejudice to defendant renewing the motion after the California Supreme Court decides Fairbanks v. Superior Court, No. S157001. The motion is also denied as to defendant's argument that the transaction was for business purposes and therefore not covered by the CLRA. The allegations of the complaint raise a reasonable inference that the transaction was a consumer transaction. The motion is granted, however, for failure to state a claim on the ground that plaintiff does not allege facts in the complaint showing how defendant allegedly violated any of the practices forbidden by CLRA section 1770; the complaint's mere recitation of certain CLRA provisions is insufficient. Plaintiff shall be given leave to amend to address this deficiency. Defendant's Motion to Dismiss the Fourth Cause of Action for enhanced remedies for financial elder abuse is GRANTED with leave to amend. Plaintiff alleges that defendant engaged in an "intent to defraud," but the complaint does not satisfy Federal Rule of Civil Procedure 9(b). As the Court has not finally determined that plaintiff cannot state any other causes of action, the Court need not decide at this time whether a claim for financial elder abuse must be tethered to another cause of action or may stand alone. Defendant's Motion to Dismiss the Fifth Cause of Action is DENIED. The allegations of the complaint support a finding of unjust enrichment, that is, "a failure to make restitution under circumstances where it is equitable to do so." Falk v. General Motors Corp., 496 F.Supp.2d 1088, 1099 (N.D. Cal. 2007) (internal quotation marks and citation omitted). As with the elder abuse claim, the Court need not now decide whether unjust enrichment is a separate cause of action under California law.

2

Case 3:08-cv-01219-CRB

Document 14

Filed 04/15/2008

Page 3 of 3

1 2 3 4

Plaintiff shall file his amended complaint, if any, within 20 days of the date of this Order. IT IS SO ORDERED. Dated: April 15, 2008

5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

G:\CRBALL\2008\1219\orderredismiss1.wpd