Brooks v. Tarsadia Hotels, 2019 U.S. Dist. LEXIS 98166, *42-43. The plaintiff did not dispute that scienter was required under Section 10(b) and Judge Curiel therefore granted the defendant's motion to dismiss under that statute.
Despite ruling for the plaintiff on the question of scienter under Section 25401, Judge Curiel nonetheless dismissed the plaintiff's state securities claims on the basis that he had failed to allege sufficiently the existence of a security. This should be no surprise an issue already addressed by the Ninth Circuit Court of Appeals in Salameh v. Tarsadia Hotel, 726 F.3d 1124 (9th Cir. 2013). See Your Condo May Be Secure, But Not A Security.