Choy v. General Motors LLC

Filing 10

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS; DISMISSING FOURTH AND FIFTH CAUSES OF ACTION, WITH LEAVE TO AMEND; VACATING HEARING. The Fourth and Fifth Causes of Action are dismissed. Should plaintiff wish to amend for purposes of curing the deficiencies identified, plaintiff shall file a First Amended Complaint no later than March 9, 2024. If plaintiff does not file a First Amended Complaint by said deadline, the above-titled action will proceed on the First, Second, and Third Causes of Action asserted in the initial complaint. Signed by Judge Maxine M. Chesney on February 22, 2024. (mmclc1, COURT STAFF) (Filed on 2/22/2024)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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FRANK L. CHOY,
Plaintiff,

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v.

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GENERAL MOTORS LLC,

ORDER GRANTING DEFENDANT'S
MOTION TO DISMISS; DISMISSING
FOURTH AND FIFTH CAUSES OF
ACTION, WITH LEAVE TO AMEND;
VACATING HEARING

Defendant.

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United States District Court
Northern District of California

Case No. 24-cv-00262-MMC

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Before the Court is defendant General Motors LLC's "Motion to Dismiss Plaintiff's

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Complaint for Failure to State a Claim," filed January 22, 2024, whereby defendant seeks

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dismissal of plaintiff Frank L. Choy's Fourth and Fifth Causes of Action. Plaintiff has not

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filed opposition.1

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Having read and considered the papers filed in support of the motion, the Court

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deems the matter appropriate for determination thereon, VACATES the hearing

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scheduled for March 1, 2024, and hereby GRANTS the motion, as follows:

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1. The Fourth Cause of Action, by which plaintiff asserts a claim of fraud, based

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on the theory that defendant made false statements to plaintiff or, alternatively, made

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statements as to which it omitted material information, is hereby DISMISSED. Rule 9(b)

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of the Federal Rules of Civil Procedure requires a party alleging fraud to "state with

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particularity the circumstances constituting fraud," see Fed. R. Civ. P. 9(b), including "the

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time, place, and specific content of the false representations," see Swartz v. KPMG LLP,

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Under the Local Rules of this District, any opposition was due no later than
February 5, 2024. See Civil L.R. 7-3(a) (providing opposition to motion "must be filed and
served not more than 14 days after the motion was filed").

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476 F.3d 756, 764 (9th Cir. 2007). Plaintiff, however, fails to allege when and where he

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heard any of the statements on which he relied, and, with the exception of one statement

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(see Compl. ¶ 24), plaintiff does not allege the specific content of the statements on

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which he assertedly relied, and, at best, alleges paraphrased statements, see Wenger v.

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Lumisys, Inc., 2 Fed. Supp. 2nd 1231, 1246-47 (N.D. Cal. 1998) (holding allegations

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"paraphras[ing]" statements asserted to be fraudulent "lack[ ] the specificity required by

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Rule 9(b)" (citing cases)).
2. The Fifth Cause of Action, by which plaintiff asserts violations of § 17200 of the

United States District Court
Northern District of California

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Business & Professions Code, is hereby DISMISSED. The Fifth Cause of Action is

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based on the alleged false statements and omissions on which the Fourth Cause of

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Action is based (see Compl. ¶¶ 106-07, 117, 120, 124, 131), and, for the reasons stated

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above with respect to the Fourth Cause of Action, is not pleaded in conformity with Rule

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9(b).

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3. Should plaintiff wish to amend for purposes of curing the deficiencies identified

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above, plaintiff shall file a First Amended Complaint no later than March 9, 2024. If

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plaintiff does not file a First Amended Complaint by said deadline, the above-titled action

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will proceed on the First, Second, and Third Causes of Action asserted in the initial

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complaint.

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IT IS SO ORDERED.

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Dated: February 22, 2024
MAXINE M. CHESNEY
United States District Judge

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