Ha v. New Cingular Wireless PCS, LLC

Filing 18

ORDER granting 16 Defendant's Motion to Dismiss 15 Plaintiff's Amended Complaint. Signed by Magistrate Judge Virginia K. DeMarchi on 5/10/2024. (vkdlc1, COURT STAFF) (Filed on 5/10/2024)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF) Modified on 5/10/2024 (vkdlc1, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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SALLY HA,

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Plaintiff,

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v.

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NEW CINGULAR WIRELESS PCS, LLC,

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United States District Court
Northern District of California

Case No. 24-cv-00135-VKD

Defendant.

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ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS PLAINTIFF’S
AMENDED COMPLAINT
Re: Dkt. No. 16

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Plaintiff Sally Ha, who is representing herself, sues her cell phone service provider,

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defendant New Cingular Wireless PCS, LLC dba AT&T Mobility (“AT&T”), for breach of

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contract. Ms. Ha filed her original complaint on January 8, 2024. Dkt. No. 1. AT&T moved to

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dismiss for failure to state a claim (Dkt. No. 8) and on March 6, 2024, the Court granted the

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motion and dismissed Ms. Ha’s original complaint with leave to amend (Dkt. No. 13). Ms. Ha has

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now filed an amended complaint. Dkt. No. 15. AT&T again moves to dismiss for failure to state

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a claim. Dkt. No. 16. Ms. Ha opposes this motion. Dkt. No. 17.

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The Court finds the motion to dismiss suitable for decision without oral argument. See

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Civil L.R. 7-1(b). Upon consideration of the moving papers and the applicable law, the Court

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grants AT&T’s motion and dismisses Ms. Ha’s complaint, without leave to amend.1

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I.

BACKGROUND
The factual allegations in Ms. Ha’s amended complaint are substantially the same as those

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All named parties have expressly consented that all proceedings in this matter may be heard and
finally adjudicated by a magistrate judge. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; Dkt. Nos. 6, 11.

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in her original complaint. See Dkt. No. 13 at 1-3. As relevant to the present motion to dismiss,

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she alleges the following:
Ms. Ha opened an account with AT&T on December 6, 2017. Dkt. No. 15 ¶ 6. On July 5,

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2023, she entered into an “installment agreement” with the company to finance the purchase of a

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new cell phone. Id. ¶¶ 7-8; see also id. at ECF 34-38 (agreement).
On August 22, 2023, Ms. Ha sent AT&T an “Indorsed [sic] bill of exchange for account

United States District Court
Northern District of California

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#436148411568,” a “Tender of payment titled ‘Letter of Credit Claim,’” and a “Certified copy of

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Durable Power of Attorney.” Id. ¶ 12. According to Ms. Ha, these documents “performed her

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contractual obligation to the account that was created with her security collateral.” Id. Ms. Ha

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sent similar mailings to AT&T on September 11, 2023 and September 25, 2023. Id. ¶¶ 13-14.

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AT&T did not accept these documents as payment and responded to Ms. Ha’s mailings

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with a November 20, 2023 letter stating that it “respectfully dispute[s] all your claims and

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decline[s] all demands.” Id. ¶ 15. Ms. Ha claims that she was then “forced to donate . . . cash

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payment[s]” of $919.74 and $422.22 to AT&T on December 13, 2023 and December 20, 2023 “in

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order to protect the account from any unlawful closures done by defendant.” Id. ¶¶ 16-17.

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II.

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LEGAL STANDARD
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal

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sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is

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appropriate where there is no cognizable legal theory or an absence of sufficient facts alleged to

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support a cognizable legal theory. Id. (citing Balistreri v. Pacifica Police Dep’t, 901 F.2d 696,

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699 (9th Cir. 1990)). At the motion to dismiss stage, all material allegations in the complaint must

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be taken as true and construed in the light most favorable to the claimant. Id.

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The factual allegations in the complaint “must be enough to raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned up).

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Implausible claims for relief will not survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662,

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679 (2009). A claim is plausible if its factual content permits the court to draw a reasonable

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inference that the defendant is liable for the alleged misconduct. Id.

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Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the
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United States District Court
Northern District of California

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a). However, “[t]hreadbare recitals of the elements

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of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at

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678. “The court is not required to accept legal conclusions cast in the form of factual allegations if

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those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness

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Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

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Pro se pleadings are liberally construed and held to a less stringent standard than those

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drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007). This is particularly true with

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respect to the factual allegations in a pro se complaint. Chambers v. C. Herrera, 78 F.4th 1100,

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1108 (9th Cir. 2023). “[A] district court should not dismiss a pro se complaint without leave to

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amend unless it is absolutely clear that the deficiencies of the complaint could not be cured by

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amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (cleaned up).

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III.

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DISCUSSION
To state a claim for breach of contract under California law, a plaintiff must plead (1) the

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existence of a contract with the defendant, (2) plaintiff’s performance or excuse for

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nonperformance, (3) defendant’s breach, and (4) resulting damages to plaintiff. Oasis W. Realty,

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LLC v. Goldman, 51 Cal. 4th 811, 821 (2011).

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In its order dismissing Ms. Ha’s original complaint, the Court concluded that, while Ms.

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Ha plausibly alleged the existence of a contract between herself and AT&T, she “[did] not

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plausibly allege any of the other elements of a breach of contract claim.” Dkt. No. 13 at 4. In

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particular, the Court rejected Ms. Ha’s contention that AT&T breached its contractual obligations

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to her by refusing to accept her “bill of exchange” and the documents that accompanied it as

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payment for the amount due on her account. Id. The Court also observed that “the materials

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attached to the complaint do not appear to constitute or evidence payment of any kind to AT&T,

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with the exception of the payments Ms. Ha made in December 2023.” Id. .

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Ms. Ha’s amended complaint relies on the same documents and virtually identical legal

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theories as her original complaint. She asserts that the installment agreement “grant[ed] her all the

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rights associated with being a private investor of [AT&T] while granting [AT&T] a security

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interest.” Dkt. No. 15 ¶ 8. She also claims that AT&T “provides dividend payments in the form
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of remittance coupons (another form of security) each month to plaintiff for investing in the

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company.” Id. ¶ 10. With respect to the AT&T billing statements for her account, Ms. Ha claims

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that she had two options: she could “donate cash” to AT&T, or she would “receive credits every

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30 days by [AT&T] in the form of monthly coupons, which may be utilized to transfer to the due

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account.” Id. ¶ 11. She then asserts that she “performed her obligation [under the contract] by

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sending in notices with her restrictively indorsed [sic] bill of exchange” and that AT&T “failed to

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perform by disregarding all notices.” Id. ¶ 18.
As in her original complaint, Ms. Ha fails to plausibly allege that she performed all her

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United States District Court
Northern District of California

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obligations under the installment agreement with AT&T or that AT&T breached its obligations to

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her under the same agreement. No provision of the installment agreement requires AT&T to

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accept Ms. Ha’s “notices” and their attachments as payment, nor is there any support for Ms. Ha’s

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claim that the agreement requires AT&T to “utilize the security interest and proceeds accrued

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from the security collateral” that she claims to have provided to AT&T.
None of the other arguments in Ms. Ha’s opposition address these fundamental problems

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with her breach of contract claim. Seizing on a reference to the District of Columbia Municipal

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Regulations in the installment agreement, she argues that AT&T was required to accept her “bill

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of exchange” under those regulations. Dkt. No. 17 at 3; Dkt. No. 15 at ECF 36. Nothing in the

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agreement or in the regulations supports her contention. Ms. Ha also argues that AT&T violated

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provisions of the Uniform Commercial Code by failing to honor her “bill of exchange,” which she

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asserts is a “negotiable instrument” and “recognized as a form of payment.” Dkt. No 17 at 5.

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However, nothing in the UCC provides that such a document must be accepted as payment. See,

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e.g., Matchynski v. Ocwen Loan Servicing, No. 13-cv-1915-BEN WMC, 2014 WL 202625, at *3-

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4 (S.D. Cal. Jan. 16, 2014) (collecting cases).

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IV.

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CONCLUSION
The facts alleged in Ms. Ha’s amended complaint do not support a cognizable legal theory

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under which AT&T could be liable for breach of contract. “[L]acking an arguable basis either in

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law or in fact,” her breach of contract claim is frivolous. Neitzke v. Williams, 490 U.S. 319, 325

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(1989). Accordingly, the Court grants AT&T’s motion to dismiss. Because it is now “absolutely
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clear” that further amendment would be futile, see Chambers, 78 F.4th at 1107, the Court

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dismisses the amended complaint without leave to amend.

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The Clerk of Court is directed to close the file.

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IT IS SO ORDERED.

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Dated: May 10, 2024

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VIRGINIA K. DEMARCHI
United States Magistrate Judge

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United States District Court
Northern District of California

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