Randhawa v. Skylux, Inc., et al.

Filing 148

ORDER signed by Judge William B. Shubb on 10/24/12 ORDERING Defendants' motion to dismiss for failure to state a claim be, and the same hereby is, GRANTED as to the first, second, third, fifth, and seventh causes of action; Defendants&# 039; motion to dismiss for failure to state a claim be, and the same hereby is, DENIED as to the fourth cause of action; Defendants' motion to dismiss for improper venue be, and the same hereby is, DENIED. Plaintiffs have fourteen days from the date of this Order to file an amended complaint if they can do so consistent with this Order. (Matson, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 ----oo0oo---10 11 12 MOHIT RANDHAWA aka HARPAL SINGH, and SHANNON CALLNET PVT LTD, Case No.: 2:09-CV-02304 WBS DAD 13 Plaintiffs, 14 MEMORANDUM AND ORDER RE: MOTION TO DISMISS v. 15 16 17 SKYLUX INC.; INTERACTIVE INTELLIGENCE, INC.; MUJEEB PUZHAKKARAILLATH; SKYLUX TELELINK PVT LTD; and DOES 1 through 20, inclusive, 18 Defendants. 19 20 21 22 ----oo0oo---This matter is again before the court on defendants’ 23 Skylux, STPL, and Puzhakkaraillath (together, “defendants”) 24 motion to dismiss plaintiffs’ claims against them in the Fourth 25 Amended Complaint pursuant to Rule of Civil Procedure 12(b)(6) 26 and Rule 12(b)(3). 27 28 Shannon Callnet’s causes of action in the Fourth Amended Complaint for breach of contract, breach of implied 1 1 covenant of good faith and fair dealing, and breach of express 2 warranty, are all based on the MOU. 3 agent of Randhawa. 4 standing to bring the claim unless Shannon Callnet alleges facts 5 sufficient to support another theory that would allow it to sue 6 under the MOU. See Berclain Am. Latina v. Baan Co., 74 Cal. App. 7 4th 401, 405 (1st Dist. 1999) (breach of contract claims 8 “generally require[] the party to be a signatory to the contract, 9 or to be an intended third party beneficiary”). 10 (Id. Ex. A.) The MOU is signed by an Thus, only Randhawa has In their opposition brief, plaintiffs fail to argue any 11 theory that would give Shannon Callnet a right to sue under the 12 MOU. 13 “inadvertent mistake” and that “[p]laintiff Randhawa is indeed 14 the correct party to bring contractual causes of action against 15 STPL, since it was Randhawa who executed the MOU.” 16 to Mot. to Dismiss Fourth AC (Docket No. 145) at 4.) 17 plaintiffs voluntarily concede that Shannon Callnet does not have 18 standing to assert its contractual claims, the first, second, and 19 third causes of action will be dismissed. Instead, Shannon Callnet argues that it made an 20 (Pl.’s Opp. Since In its fourth cause of action, Shannon Callnet alleges 21 a breach of implied warranty through the purchase of software 22 from STPL.1 23 warranty at all in its opposition brief, its allegations are 24 sufficient to state a valid claim upon which relief can be 25 granted. Here, while Shannon Callnet does not address implied The plaintiffs allege that STPL was hired to set up the 26 1 27 28 Unlike the cause of action for express warranty, no standing issues arise in this claim because Shannon Callnet’s implied warranty claim is based on an alleged purchase of software, not on the express terms of the MOU. 2 1 call center, which included “obtaining all required licenses” and 2 providing the software. 3 upon STPL’s expertise in choosing that software, STPL had reason 4 to know of this reliance, and yet the “system crashed.” 5 38-44.) 6 (Fourth AC Ex. A.) Callnet was relying (Id. ¶¶ Defendants argue that Shannon Callnet cannot assert a 7 claim for implied warranty because the claim is barred by a 8 disclaimer in a license agreement between Shannon Callnet and 9 Interactive. Defendants request that the court judicially notice 10 a provision of the license agreement because the court previously 11 interpreted it in an order regarding motions to dismiss, to 12 compel arbitration, and to transfer venue. 13 Compel Arbitration (Docket No. 61) at 3-6.) (Order Re: Mot. to 14 In general, a court may not consider items outside the 15 pleadings when deciding a motion to dismiss, but it may consider 16 items of which it can take judicial notice. 17 F.3d 1370, 1377 (9th Cir. 1994). 18 notice of facts “not subject to reasonable dispute” because they 19 are either “(1) generally known within the territorial 20 jurisdiction of the trial court or (2) capable of accurate and 21 ready determination by resort to sources whose accuracy cannot 22 reasonably be questioned.” 23 Barron v. Reich, 13 A court may take judicial Fed. R. Evid. 201. Here, the license agreement was submitted by 24 Interactive in a previous motion to compel arbitration. Since 25 the defendants wish to rely on the substance of the license 26 agreement, not merely its existence, the court declines to take 27 judicial notice of it. 28 LJO SMS, 2007 WL 2758040, at *9 (holding that “the assertions set See Garcia v. Almieda, Civ. No. 03-06658 3 1 forth in the [previously filed motion for reconsideration], along 2 with supporting exhibits, are inappropriate for judicial notice 3 as being subject to dispute” (emphasis added)). 4 therefore not take judicial notice of the license agreement. 5 The court will In plaintiffs’ fifth cause of action, both Randhawa and 6 Shannon Callnet allege that STPL violated California’s Unfair 7 Competition Law (“UCL”). 8 9 California Business and Professions Code Section 17200 et seq. prohibits unfair competition, which is defined to include 10 “any unlawful, unfair, or fraudulent business act or practice.” 11 Cal. Bus. & Prof. Code § 17200. 12 separate and distinct theory of liability . . . .” 13 Ford Motor Co., 567 F.3d 1120, 1127 (9th Cir. 2009) (citing South 14 Bay Chevrolet v. Gen. Motors Acceptance Corp., 72 Cal. App. 4th 15 861, 886 (4th Dist. 1999)). 16 “Each prong of the UCL is a Kearns v. Plaintiffs do not clearly state which prong of the UCL 17 they are relying upon. They simply allege that defendants were 18 engaged in “unfair practices,” 19 alleging that defendants “induced” and “defraud[ed]” them, 20 (Fourth AC ¶¶ 47, 49). 21 discerning what prong to proceed under because neither party 22 cites, nor can this court find, any UCL cause of action that 23 resembles the facts before the court. 24 plaintiffs’ UCL claims will accordingly be granted. (Fourth AC ¶ 47), while also The court has further difficulty The motion to dismiss In plaintiffs’ seventh2 cause of action, both 25 26 27 28 2 The sixth and eighth causes of action are against Interactive and are not addressed in this motion to dismiss. Judgment in those claims was entered pursuant to an arbitration 4 1 plaintiffs allege that STPL was unjustly enriched through its 2 actions. 3 enrichment.” 4 4th 779, 793 (2d Dist. 2003). 5 “general principle, underlying various legal doctrines and 6 remedies” and is “synonymous with restitution.” 7 Boughton, 123 Cal. App. 4th 379, 387 (1st Dist. 2004). 8 Plaintiffs neither explain the theory nor the facts that would 9 give rise to a restitution cause of action. “There is no cause of action in California for unjust Melchiro v. New Line Prods., Inc., 106 Cal. App. Unjust enrichment is instead a McBride v. See Rosal v. First 10 Fed. Bank of Cal., 671 F. Supp. 2d 1111, 1133 (N.D. Cal. 2009) 11 (dismissing an unjust enrichment claim where “plaintiff fail[ed] 12 to adequately explain the theory on which his unjust enrichment 13 claim [was] based” and relied on conclusory allegations). 14 Therefore, the court will dismiss plaintiffs’ seventh cause of 15 action.3 16 Plaintiffs have now been permitted to amend their 17 complaint three times. The court cannot permit them to amend 18 indefinitely. 19 court is not required to permit futile amendments. 20 Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992); 21 Reddy v. Litton Indus., Inc., 912 F.2d 291, 296-97 (9th Cir. 22 1990); Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 23 (9th Cir. 1987); Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. While leave to amend must be freely given, the See DeSoto v. 24 25 26 27 28 proceeding between Interactive and the plaintiffs. 131.) 3 (Docket No. Defendants attempt to revive their argument, addressed in the court’s prior order, that the court should enforce the forum selection clause of the MOU and dismiss plaintiffs’ claims for lack of venue. Defendants do not present any new facts to cause the court to change its previous order. 5 1 Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983). 2 The court will permit plaintiffs to amend their 3 complaint one more final time. 4 is still deficient, the court will have to assume plaintiffs can 5 do no better, and any order dismissing that complaint or any of 6 the claims in it will be without leave to amend. 7 IT IS THEREFORE ORDERED that: 8 (1) Defendants’ motion to dismiss for failure to state 9 10 If their Fifth Amended Complaint a claim be, and the same hereby is, GRANTED as to the first, second, third, fifth, and seventh causes of action; 11 (2) Defendants’ motion to dismiss for failure to state 12 a claim be, and the same hereby is, DENIED as to the fourth cause 13 of action; 14 15 (3) Defendants’ motion to dismiss for improper venue be, and the same hereby is, DENIED. 16 Plaintiffs have fourteen days from the date of this 17 Order to file an amended complaint if they can do so consistent 18 with this Order. 19 DATED: October 24, 2012 20 21 22 23 24 25 26 27 28 6

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