Opinion
No. C-10-3368 MMC.
January 3, 2011
Before the Court is defendant Standard Insurance Company's "Motion to Dismiss Plaintiff's Third Cause of Action," filed November 24, 2010. Plaintiff Christopher Murray has filed opposition, to which defendant has replied. Having read and considered the papers filed in support of and in opposition to the motion, the Court deems the matter suitable for decision on the parties' respective written submissions, VACATES the January 7, 2011 hearing, and rules as follows.
By order filed October 21, 2010, the Court dismissed the Third Cause of Action, titled "Fraud," as alleged in plaintiff's initial complaint, for the reason that plaintiff had not pleaded the claim in conformity with Rule 9(b) of the Federal Rules of Civil Procedure, and afforded plaintiff leave to amend to plead a fraud claim in conformity therewith. Plaintiff thereafter filed a First Amended Complaint ("FAC") in which he amended the Third Cause of Action. By the instant motion, defendant argues that plaintiff has, again, failed to plead the Third Cause of Action with the requisite particularity. The Court agrees.
First, although the Court afforded plaintiff leave to allege the identity of the speaker(s) of the assertedly false statements, and to allege when the statements were made, plaintiff has failed to cure such deficiencies. Specifically, the amended Third Cause of Action again fails to allege the identity of any of the speaker(s) or the time(s) at which any of the challenged statements were made. Consequently, the Third Cause of Action is subject to dismissal. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) ("Averments of fraud must be accompanied by `the who, what, when, where, and how' of the misconduct alleged.")
Second, and of equal or greater significance, plaintiff, despite having been afforded leave to allege with particularity facts showing any such statements were false when made, has failed to cure the noted deficiency. For example, although plaintiff adequately alleges defendant failed to comply with its obligations under an insurance policy, the amended Third Cause of Action fails to allege with particularity facts to support a finding that defendant, in essence, knew at the time it entered the subject insurance contract that it would not comply with the terms of the policy. See Tenzer v. Superscope, Inc., 39 Cal. 3d 18, 30 (1985) (rejecting argument that "subsequent failure to perform as promised [under contract] warrants the inference that defendant did not intend to perform when she made the promise"; finding California law instead requires "something more than nonperformance" to establish fraud claim based on failure to perform contractual promise). Consequently, the Third Cause of Action is subject to dismissal for this additional reason. See Fecht v. Price Co., 70 F.3d 1078, 1083 (9th Cir. 1995) (holding Rule 9(b) requires plaintiff to allege "sufficient evidentiary facts" to support finding challenged "statements were false when made"), cert. denied, 517 U.S. 1136 (1996).
The Court has diversity jurisdiction over plaintiff's claims (see FAC ¶ 3), and plaintiff seeks relief under California law.
Because the Court previously afforded plaintiff leave to cure the above-referenced deficiencies, which deficiencies plaintiff has failed to cure, the Court declines to afford plaintiff further leave to amend. See Soliman v. Philip Morris Inc., 311 F.3d 966, 970, 976 (9th Cir. 2002) (holding, where district court dismissed complaint with leave to amend to cure stated deficiency and amended complaint failed to cure stated deficiency, district court properly denied plaintiff further leave to amend).
The Court further notes that the scope of relief available under plaintiff's Second Cause of Action, alleging a claim for breach of the implied covenant of good faith and fair dealing, appears either to equal or exceed the scope of relief available under a fraud claim. See, e.g., Major v. Western Home Ins. Co., 169 Cal. App. 4th 1197 (2009) (affirming judgment awarding plaintiff, on claim against insurer for breach of implied covenant of good faith and fair dealing, economic damages, noneconomic damages, and punitive damages, as well as attorney's fees incurred to obtain benefits due under policy).
Accordingly, defendant's motion to dismiss the Third Cause of Action will be granted, and the Third Cause of Action will be dismissed without further leave to amend.
CONCLUSION
For the reasons stated above, defendant's motion is hereby GRANTED, and the Third Cause of Action is hereby DISMISSED without leave to amend.
IT IS SO ORDERED.
Dated: January 3, 2011