Terrance D Rutherford et al v. FIA Card Services NA et al
Filing
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ORDER GRANTING DEFENDANTS MOTIONS TO DISMISS 51 , 52 . Plaintiffs SAC is DISMISSED with prejudice by Judge Dean D. Pregerson(MD JS-6. Case Terminated) . (lc). Modified on 9/5/2014 (lc).
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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TERRANCE D. RUTHERFORD,
individually and on behalf
of other similarly situated
individuals,
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Plaintiff,
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v.
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FIA CARD SERVICES, N.A.,
(Bank of America), ALASKA
AIRLINES, INC. and HORIZON
AIR INDUSTRIES, INC.,
Defendants.
___________________________
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Case No. CV 13-02934 DDP (MANx)
ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS
[Dkt. Nos. 51 and 52]
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Presently before the court are two Motions to Dismiss, one
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filed by Defendant FIA Card Services, N.A. (“FIA” or “the Bank”)
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and the other by Defendants Alaska Airlines, Inc. (“Alaska”) and
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Horizon Air Industries, Inc. (together with Alaska, the
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“Airlines”).
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heard oral argument, the court grants the motions and adopts the
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following order.
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Having considered the submissions of the parties and
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I.
Background
As described in detail in this court’s earlier orders,
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Plaintiff works for Alaska.
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card operations.
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partnership, under which FIA agreed to issue “Alaska Airlines”
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brand credit cards and make payments to the Airlines.
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and Bank further agreed to establish an “Incentive Program,” under
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which airline employees would be trained by the airlines and paid
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by the Bank to market the Alaska credit cards to consumers.
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FIA operates Bank of America’s credit
The Airlines and FIA entered into a marketing
The Airlines
Under the Incentive Program, Airlines employees would
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distribute credit card applications, which included a space for the
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employees’ identifying information, to passengers and other third
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parties.
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the distributing Airlines employees or mail the applications
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directly to the Bank.
Applicants could either submit the applications through
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Employees were offered five dollars for each credit card
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application submitted to the Bank, so long as the application
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contained enough information to allow the Bank to accept or reject
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the application.
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applications that were ultimately approved.
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deposit these incentive amounts into employee bank accounts, along
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with wages.
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Airlines also encouraged employee participation in the incentive
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program by offering cash and other prizes to “top performers.”
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(SAC ¶¶ 38-39).
Employees were offered forty-five dollars for
The Airlines would
(Second Amended Complaint (“SAC”) ¶ 40.)1
The
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This allegation notwithstanding, the SAC alleges that the
Bank offered to pay the incentives, “on behalf of itself and the
[A]irlines.” (SAC ¶ 19.)
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The SAC alleges that Plaintiff distributes over 200
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applications per month.
(SAC ¶ 47.)
The SAC lists several dozen
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instances in which, between January and September 2013, Plaintiff
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received credit card applications and forwarded them to the Bank.
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(SAC ¶ 51.)
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people to whom applications are distributed do not return their
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applications to Plaintiff.
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whether the Bank processed any of the applications submitted
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directly by applicants, with his identifying information.
Plaintiff alleges, however, that the vast majority of
(SAC ¶ 48.)
Plaintiff does not know
(SAC ¶¶
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54-55.)
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the relevant period of $5,260.
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alleges that he is ranked as a “top performer” in the incentive
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program.
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Plaintiff has, however, received incentive payments during
(SAC ¶ 56.)2
Plaintiff also
(SAC ¶ 55.)
Plaintiff alleges that he has not been paid the amounts due to
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him under the incentive program.
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causes of action for an accounting, common count for the reasonable
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value of services rendered, and common count for a book account.
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Defendants now move to dismiss the SAC.
(SAC ¶ 61.)
His SAC alleges
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II.
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A complaint will survive a motion to dismiss when it contains
Legal Standard
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“sufficient factual matter, accepted as true, to state a claim to
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relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
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662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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570 (2007)).
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“accept as true all allegations of material fact and must construe
When considering a Rule 12(b)(6) motion, a court must
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Had all 117 of the applications Plaintiff himself submitted
been approved, Plaintiff would have been entitled to $5,265.
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those facts in the light most favorable to the plaintiff.” Resnick
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v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).
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need not include “detailed factual allegations,” it must offer
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“more than an unadorned, the-defendant-unlawfully-harmed-me
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accusation.”
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allegations that are no more than a statement of a legal conclusion
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“are not entitled to the assumption of truth.” Id. at 679.
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other words, a pleading that merely offers “labels and
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conclusions,” a “formulaic recitation of the elements,” or “naked
Iqbal, 556 U.S. at 678.
Although a complaint
Conclusory allegations or
In
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assertions” will not be sufficient to state a claim upon which
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relief can be granted.
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quotation marks omitted).
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Id. at 678 (citations and internal
“When there are well-pleaded factual allegations, a court should
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assume their veracity and then determine whether they plausibly
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give rise to an entitlement of relief.” Id. at 679.
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must allege “plausible grounds to infer” that their claims rise
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“above the speculative level.” Twombly, 550 U.S. at 555.
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“Determining whether a complaint states a plausible claim for
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relief” is a “context-specific task that requires the reviewing
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court to draw on its judicial experience and common sense.”
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556 U.S. at 679.
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III.
Plaintiffs
Iqbal,
Discussion
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A.
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Defendants first contend that the SAC must be dismissed
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because it fails to allege facts to support Plaintiff’s contention
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that Defendants owe him any money.
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that the facts alleged, specifically those regarding the number of
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applications he distributed and submitted, and the amount of
Whether the SAC Alleges an Amount Owed
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In response, Plaintiff contends
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compensation he received, are sufficient to give rise to a
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plausible inference that he has been underpaid.
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Defendants highlight the fact that the amount of compensation
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plaintiff received, $5,260, is within five dollars of the amount
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Plaintiff would have received if every single one of the
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applications he submitted had been approved.
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dispute that it is extremely implausible that every application he
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submitted was approved.
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implausible that every application that every one of the 117
Plaintiff does not
Indeed, Defendants argue that it is
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applications contained sufficient information to be processed, let
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alone approved.
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The question, however, is whether these facts could support an
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inference that Plaintiff has been underpaid.
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Plaintiff’s receipt of so much money, given the relatively small
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number of applications Plaintiff himself submitted, indicates that
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Plaintiff must have received payment for some applications
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submitted directly by applicants.
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it may be, is not the only one supported by the facts alleged.
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Defendants argue that
This inference, plausible though
Plaintiff has alleged that fully 90% of customers do not
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return their applications to Plaintiff.
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confirm at this stage that any of those customers, who likely
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exceed 1,000 in number, actually did submit an application,
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Defendants concede that some of them must have.
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Plaintiff’s status as a “top performer” and the possibility that
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Plaintiff’s submissions, comprising only 10% of distributed
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applications, alone could account for almost all of the payments
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While Plaintiff cannot
Considering
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received, the SAC alleges sufficient facts to give rise to an
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inference that Plaintiff has not been fully compensated.3
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1.
Whether Alaska Owes Plaintiff Anything
In addition to the argument discussed above, Alaska contends
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that all claims against Alaska must be dismissed because the SAC
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does not allege that Alaska itself owes Plaintiff any money.
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Though the SAC alleges that Alaska deposits incentive payments into
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employee bank accounts, nowhere does it allege that Alaska actually
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pays employees.
Rather, the SAC alleges that the Bank pays Alaska
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employees.
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does not address this argument.
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Alaska are DISMISSED.
(SAC ¶ 40.)
Plaintiff’s opposition to Alaska’s Motion
Accordingly, all claims against
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B.
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The Bank next asserts that Plaintiff’s claim for an accounting
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must be dismissed because an accounting is a remedy, not a cause of
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action.
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merely an equitable remedy, and therefore cannot be maintained as
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an independent cause of action.”
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7275 GAF, 2011 WL 7637785 at *8 (C.D. Cal. Dec. 2, 2011).
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courts, however, citing Tesselle v. Mcloughlin, 173 Cal.App.4th 156
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(2009), have concluded that an accounting can exist as an
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independent equitable cause of action.
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Inc. v. Hon, No. 11-cv-5835 ODW, 2012 WL 1413681 at * 11 (C.D. Cal.
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Apr. 24, 2012); see also Baidoobonso-Iam v. Bank of Am., No. CV 10-
Accounting Claim
Indeed, some courts have held “that an accounting is
Fradis v. Savebig.com, No. CV 11Other
See, e.g., Dahon North Am.,
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Indeed, if Plaintiff distributed 200 applications a month
and only received a total of 117 back, over 1,500 applications
remain unaccounted for. Even if the majority of those went
unsubmitted, the number is high enough to support an inference that
Plaintiff was underpaid.
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9171 CAS, 2011 WL 3103165 at *6 (C.D. Cal. Jul. 25, 2011) (“An
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accounting may take the form of either a legal remedy or an
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equitable claim.”).
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This court agrees with the latter approach.
A cause of action for an accounting requires that “a
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relationship exist[] between the plaintiff and defendant that
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requires an accounting, and that some balance is due the plaintiff
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that can only be ascertained by an accounting.”
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relationship giving rise to an accounting claim need not
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necessarily be a fiduciary one, courts typically require that it
Though the
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reflect some degree of confidentiality or closeness.
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Cal.App.4th at 179.; Dahon, 2012 WL 1413681 at *13; Fradis, 2011 WL
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7637785 at *9; Canales v. Fed. Home Loan Mortgage Corp., No. CV 11-
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2819 PSG, 2011 WL 3320478 at * 8 (C.D. Cal. Aug. 1, 2011).
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Tesselle, 173
Here, the SAC conclusorily alleges that both the Airlines and
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the Bank owe Plaintiff a fiduciary duty (SAC ¶¶ 79-80).
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makes no further factual allegations regarding this supposed
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fiduciary relationship, nor do Plaintiff’s Oppositions make any
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attempt to argue that such a duty exists beyond a single statement
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that “present circumstances, where Defendant holds all the books
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and records necessary to calculate proper payment [are] one of
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‘trust and repose.’” (Opp. at 11-12.)
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are insufficient to establish Plaintiff and the Bank shared the
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type of relationship that would give rise to an independent
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accounting claim.4
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C.
The SAC
The allegations of the SAC
Common Count for Reasonable Value of Services Rendered
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Though Plaintiff’s opposition makes some reference to an
agent-principal relationship, the SAC contains no allegations to
that effect, nor do the facts alleged appear to support any such
relationship.
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“[I]t is well settled that there is no equitable basis for an
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implied-in-law promise to pay reasonable value when the parties
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have an actual agreement covering compensation.”
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Inc. v. First Alliance Mortgage Co.. 41 Cal.App.4th 1410, 1419
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(1996).
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Plaintiff precise amounts for various types of submitted
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applications.
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Cause of Action for Common Count for Reasonable Value of Services
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Rendered is adequately pled because Federal Rule of Civil Procedure
Hedging Concepts,
The SAC alleges the existence of an agreement to pay
Nevertheless, Plaintiff contends that the Second
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8(d)(3) allows inconsistent claims to be pled.
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however, allow a plaintiff to circumvent state law by stating a
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claim for both express and quasi contract.
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Privacy Litigation, 761 F.Supp.2d 705, 718 (N.D. Cal. 2011)
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(“Although Rule 8 . . . allows a party to state multiple, even
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inconsistent claims, the rule does not allow a party invoking state
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law to assert an unjust enrichment claim while also alleging an
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express contract.”); Custom LED, LLC v. eBay, Inc., No. C 12-350
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SI, 2012 WL 1909333 at *5 (N.D. Cal. 2012).
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Cause of Action is DISMISSED with prejudice.
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D.
Rule 8 does not,
See In re Facebook
Plaintiff’s Second
Common Count for A Book Account
“A book account is a detailed statement of debit/credit
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transactions kept by a creditor in the regular course of business,
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and in a reasonably permanent manner.”
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Cal.4th 574, 579 n.5 (2007).
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agreement or conduct of the parties in a commercial transaction.
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Nonetheless, the mere recording . . . or the incidental keeping of
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accounts under an express contract does not of itself create a book
Reigelsperger v. Siller. 40
“A book account is created by the
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account.”
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Cocal Cola Bottling Corp., 99 Cal.App.3d 711, 728 (1979).
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H. Russell Taylor’s Fire Preverntion Serv., Inc. v.
Here, the SAC alleges only that “a book account was created .
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. . as a result of Plaintiff’s . . . participation in the Incentive
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program for Defendants’ benefit.”
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assertion is insufficient to sustain a common count for a book
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account.
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prejudice.
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IV.
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(SAC ¶ 106.)
This naked
Plaintiff’s Third Cause of Action is DISMISSED, with
Conclusion
For the reasons stated above, Defendants’ Motions to Dismiss
are GRANTED.
Plaintifss’ SAC is DISMISSED with prejudice.
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IT IS SO ORDERED.
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Dated: September 5, 2014
DEAN D. PREGERSON
United States District Judge
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