1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RESHMA KAMATH, Case No. 23-cv-05153-SVK

8 Plaintiff, ORDER GRANTING 9 v. MOTION TO DISMISS WITHOUT LEAVE TO AMEND 10 ITRIA VENTURES, LLC, et al., Re: Dkt. No. 34 11 Defendants.

12 The Court previously dismissed self-represented Plaintiff Reshma Kamath’s complaint and 13 provided instructions on how she could cure the deficiencies identified in an amended pleading. 14 See Dkt. 22 (the “Prior Order”). Plaintiff evidently did not heed the Court’s instruction—her first 15 amended complaint (the “FAC” at Dkt. 27) suffers from many of the same issues that compelled 16 dismissal the first time around. She also added one new claim in the FAC, but that claim suffers 17 from pleading defects as well (and, in any event, Plaintiff has abandoned it). Defendants now 18 move to dismiss. See Dkt. 34 (the “Motion”). Plaintiff opposes the Motion. See Dkt. 39 (the 19 “Opposition”). Defendants filed a reply. See Dkt. 40. All necessary Parties—Plaintiff and named 20 Defendants—have consented to the jurisdiction of a magistrate judge.1 The Court has determined 21 that the Motion is suitable for resolution without oral argument. See Civil Local Rule 7-1(b). 22 After considering the Parties’ briefing, relevant law and the record in this action, and for the 23 reasons that follow, the Court GRANTS the Motion and DISMISSES the FAC WITHOUT 24

25 1 In addition to named Defendants, Plaintiff also sued 10 Doe defendants. See FAC ¶ 23. These Doe defendants are not “parties” for purposes of assessing whether there is complete consent to 26 magistrate-judge jurisdiction. See Williams v. King,

(9th Cir. 2017) (magistrate-judge jurisdiction vests only after all named parties, whether served or unserved, 27 consent); RingCentral, Inc. v. Nextiva, Inc., No. 19-cv-02626-NC,

, at *1 n.1 1 LEAVE TO AMEND. 2 I. BACKGROUND 3 The following discussion of background facts is based on the allegations contained in the 4 FAC, which remain substantially similar to those contained in the original complaint, and the truth 5 of which the Court accepts for purposes of resolving the Motion. See Boquist v. Courtney, 32

, 772 (9th Cir. 2022). Plaintiff practices law in California through the Law Office of 7 Reshma Kamath, a sole proprietorship. See FAC ¶ 15. In May 2023, she reached out to 8 Defendant Biz2Credit, Inc. (“Biz2Credit”) about obtaining funding for her business after viewing 9 Biz2Credit’s advertisements on television. See id. ¶¶ 25-26. She subsequently entered into a 10 Receivables Sale Agreement with Defendant Itria Ventures, LLC (“Itria”), an affiliate of 11 Biz2Credit. See id. ¶¶ 18, 29; Dkt. 9-2 (the “RSA”).2 12 Under the RSA, Plaintiff agreed to sell her business’s receivables to Itria in exchange for 13 about $50,000 in funding for her business. See RSA at 1; id. § 1. Plaintiff also agreed that Itria’s 14 “obligation to fund [her business wa]s subject to due diligence review of [Plaintiff] or [her] 15 business, at [Itria’s] sole discretion.” See id. § 1. Lastly, Plaintiff “authorize[d Itria] to make any 16 UCC filing and/or recording relating to th[e RSA] (including filing a UCC-1 financing statement) 17 at any time with any governmental agency and/or office (including the office of the Secretary of 18 State), including without limitation to perfect [Itria’s] rights and interests in the” receivables. See 19 id. § 9(a). 20 A couple of weeks after the Parties executed the RSA, Defendants filed a UCC-1 statement 21 with the California Secretary of State. See FAC ¶ 70. A few weeks after that, Biz2Credit 22 informed Plaintiff that it could offer her only $20,000 or $30,000 in funding and not the $50,000 23 2 Plaintiff does not append the RSA to the FAC, and Defendants do not request that the Court 24 judicially notice that agreement in connection with the Motion. However, as Defendants note, the Court did hold in the Prior Order that Plaintiff had incorporated by reference the RSA into her 25 original complaint, because she had expressly referred to that agreement in her pleading and had brought a claim for breach of that agreement. See Prior Order at 5-6; Motion at 8 n.2. For the 26 same reasons, the Court holds that Plaintiff incorporated by reference the RSA into the FAC, and the Court will accordingly consider that document sua sponte in evaluating the Motion. See, e.g., 27 In re Tesla, Inc. Sec. Litig.,

, 934 n.12 (N.D. Cal. 2020) (sua sponte 1 referenced in the RSA. See id. ¶¶ 41-42. It does not appear that Plaintiff accepted this smaller 2 amount of funding. See id. ¶ 39. Then, on August 30, 2023, Plaintiff learned of the filed UCC-1 3 statement (which she terms a “UCC lien”). See id. ¶¶ 36-37. Plaintiff immediately contacted 4 Defendants, informed them that the “defamatory false lien was fraudulently and maliciously filed 5 against her and must be terminated immediately.” See id. ¶ 49. Defendants complied. See id. ¶ 6 50. 7 A little over a month later, Plaintiff commenced this action to recover for Defendants’ 8 failure to provide her with $50,000 in funding and Defendants’ filing of the UCC lien as well as 9 Defendants’ alleged fraud and false advertising that led her to enter into the RSA. See Dkt. 1. 10 After the Court dismissed the original complaint with leave to amend, Plaintiff filed the FAC. 11 II. LEGAL STANDARD 12 Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a complaint if it 13 “fail[s] to state a claim upon which relief can be granted.” To survive a Rule 12(b)(6) motion, a 14 plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” See Bell 15 Atl. Corp. v. Twombly,

(2007). This facial-plausibility standard requires a 16 plaintiff to allege facts resulting in “more than a sheer possibility that a defendant has acted 17 unlawfully.” See Ashcroft v. Iqbal,

(2009) (citation omitted). 18 Where a plaintiff alleges that a defendant engaged in fraudulent conduct, Rule 9(b) 19 imposes a greater burden than does Rule 12(b)(6) and requires that the plaintiff “state with 20 particularity the circumstances constituting fraud.” To satisfy this heightened pleading standard, a 21 plaintiff must allege facts “specific enough to [notify the defendants] of the particular misconduct 22 [constituting fraud] so that they can defend against the charge and not just deny that they have 23 done anything wrong.” Kearns v. Ford Motor Co.,

(9th Cir. 2009) (citation 24 omitted). Thus, claims sounding in fraud must allege “an account of the ‘time, place, and specific 25 content of the false representations as well as the identities of the parties to the 26 misrepresentations.’” See Swartz v. KPMG LLP,

(9th Cir. 2007) (citation 27 omitted). In other words, “[a]verments of fraud must be accompanied by ‘the who, what, when, 1 plaintiff “must [also] set forth what is false or misleading about a statement, and why it is false.” 2 See Ebeid ex rel. United States v. Lungwitz,

(9th Cir. 2010) (citation omitted). 3 In ruling on a motion to dismiss, a court may consider only “the complaint, materials 4 incorporated into the complaint by reference, and matters [subject to] judicial notice.” See UFCW 5 Loc. 1500 Pension Fund v. Mayer,

(9th Cir. 2018) (citation omitted). A court 6 must also presume the truth of a plaintiff’s allegations and draw all reasonable inferences in their 7 favor. See Boquist, 32 F.4th at 773. However, a court need not accept as true “allegations that are 8 merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” See Khoja v. 9 Orexigen Therapeutics, Inc.,

(9th Cir. 2018) (citation omitted). 10 If a court grants a motion to dismiss, it may exercise discretion to grant or deny leave to 11 amend the complaint, and it “acts within its discretion to deny leave to amend when amendment 12 would be futile, when it would cause undue prejudice to the defendant, or when it is sought in bad 13 faith.” Nat’l Funding, Inc. v. Com. Credit Counseling Servs., Inc.,

, 383 (9th 14 Cir. 2020) (citation omitted). 15 III. DISCUSSION 16 Plaintiff asserts seven causes of action in the FAC: 17  Breach of the RSA. 18  Fraud. 19  False and misleading advertising. 20  Breach of fiduciary duty. 21  Filing a fraudulent lien and UCC filing. 22  Defamation. 23  Violation of the False Claims Act (the “FCA”). 24 None of these claims survives scrutiny under Rules 12(b)(6) or 9(b). 25 /// 26 /// 27 /// A. Plaintiff Does Not Sufficiently Allege That Defendants Breached The RSA 1 In the Prior Order, the Court explained that Plaintiff could not state a claim for breach of 2 the RSA based on Defendants’ (1) failure to loan her $50,000 or (2) filing of the UCC lien. See 3 Prior Order at 6-7. The Court accordingly instructed Plaintiff to identify in an amended pleading 4 “an obligation imposed on Defendants in the RSA with which Defendants failed to comply.” See 5 id. at 7. Plaintiff now alleges that Defendants breached the RSA when they “altered a material key 6 term of the contract” by reducing the “loan term” from “$50,000 to $20,000-30,000.” See FAC ¶ 7 66 (emphasis omitted). 8 However, as explained in the Prior Order, and as discussed above, the RSA did not require 9 Defendants to provide $50,000 in funding to Plaintiff, as it expressly conditioned Defendants’ 10 obligation to pay on a due-diligence review at Itria’s “sole discretion.” See Prior Order at 7. 11 Plaintiff appears to attempt to counter this contractual provision by alleging that “the due diligence 12 and review period was in May and June 2023 [i.e., before the Parties executed the RSA], not in 13 July and August 2023,” and so no further due diligence following the execution of the RSA could 14 alter Defendants’ obligation to pay Plaintiff $50,000. See FAC ¶ 65. But the RSA contradicts this 15 conclusory allegation; that agreement bears a “Contract Date” of June 21, 2023 (see RSA at 1), 16 and so the due-diligence period expressly contemplated therein necessarily could not begin prior 17 to that date. See Steckman v. Hart Brewing, Inc.,

(9th Cir. 1998) (“[W]e 18 are not required to accept as true conclusory allegations which are contradicted by documents 19 referred to in the complaint.” (citation omitted)). The RSA also contains no reference to any 20 temporal limits purportedly imposed on the due-diligence period, which refutes any conclusory 21 assertion that the due-diligence period could not extend past June 2023. 22 Thus, as before, Plaintiff has failed to identify any provision of the RSA with which 23 Defendants allegedly failed to comply. The Court will therefore dismiss the breach-of-contract 24 claim. 25 /// 26 /// 27 /// B. Plaintiff Does Not Sufficiently Allege That Defendants Engaged In Fraud 1 The Court previously dismissed Plaintiff’s fraud claim for failure to satisfy Rule 9(b)’s 2 heightened pleading standard. See Prior Order at 7. It then instructed Plaintiff to allege “specific 3 facts supporting her claim of fraud” in an amended pleading. See

Plaintiff again fails to do so. 4 As a preliminary matter, Defendants argue that New York law governs because of the 5 RSA’s choice-of-law clause. See Motion at 12, 14; RSA § 15(a). Plaintiff does not expressly 6 dispute that New York law applies to her fraud claim, but in opposing dismissal of her fraud 7 claim, she cites to a decision of the California Supreme Court. See Opposition at 8-9. Because 8 “[t]he elements of fraud in New York and California are materially identical,” the Court will 9 evaluate Plaintiff’s fraud claim under California law. See Woodard v. Labrada, No. 16-cv-00189- 10 JGB,

, at *16 (C.D. Cal. Aug. 31, 2021). 11 “The elements of a cause of action for fraud in California are: ‘(a) misrepresentation (false 12 representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent 13 to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’” Kearns, 14

(citation omitted). The Court evaluates each element as follows: 15 Misrepresentation. Plaintiff does not describe what, if anything, Defendants 16 misrepresented to her. To the extent that Plaintiff’s charging allegations imply that Defendants 17 misrepresented their intention to pay Plaintiff $50,000 (see FAC ¶¶ 75-90), Plaintiff herself refutes 18 that suggestion; in her Opposition, she expressly states that she “never alleged any such 19 requirement to pay in the amended complaint.” See Opposition at 4. She otherwise refers only to 20 unspecified “(mis-)representations.” See FAC ¶ 87. 21 Knowledge Of Falsity. Plaintiff conclusorily alleges that “Defendants, particularly 22 Defendant Mishra, had the scienter because they intended to collect accounts receivables from 23 Plaintiff months later even when Defendants had not provided a loan.” See id. ¶ 78. Conclusory 24 allegations of knowledge do not satisfy the requirements of Rules 12(b)(6) and 9(b), and Plaintiff 25 does not explain how any other Defendant satisfied the knowledge requirement. 26 Intent To Defraud. Plaintiff conclusorily alleges that “Defendants intended for Plaintiffs 27 to rely thereon [i.e., on Defendants’ unspecified ‘(mis-)representations’] to induce them to provide 1 a sum of over $50,000.” See id. ¶ 88. Again, however, conclusory allegations do not satisfy the 2 requirements of Rules 12(b)(6) and 9(b). 3 Justifiable Reliance. Plaintiff does not allege that she justifiably relied on Defendants’ 4 misrepresentations. 5 Resulting Damage. Plaintiff does not offer any non-conclusory explanation of how 6 Defendants’ alleged fraud damaged her. 7 Thus, Plaintiff fails to sufficiently allege that Defendants defrauded her, and the Court will 8 dismiss her fraud claim. 9 C. Plaintiff Does Not Sufficiently Allege That Defendants Engaged In False And Misleading Advertising 10 As the Court explained in the Prior Order, for Plaintiff to state a claim for false and 11 misleading advertising under the statutes in question, she must describe the advertisements that 12 she viewed and explain why those advertisements were false or misleading. See Prior Order at 8- 13 9. Plaintiff does not do so in the FAC. She alleges that Defendants “advertised on local South 14 Asian and Indian television channels,” “made several false and misleading advertising statements” 15 on television and “misled that they would lend to law firms.” See FAC ¶¶ 90, 92. Thus, as before, 16 she has failed to describe any advertisements that she viewed or explain with specificity why those 17 advertisements were false or misleading. The Court will therefore dismiss her claim for false and 18 misleading advertising. 19 D. Plaintiff Does Not Sufficiently Allege 20 That Defendants Breached A Fiduciary Duty 21 As the Court explained in the Prior Order, Plaintiff cannot base her breach-of-fiduciary- 22 duty claim on either (1) her contractual, buyer-seller relationship with Defendants or (2) acts of 23 Defendants that do not constitute breaches of the RSA (e.g., failure to pay Plaintiff $50,000, filing 24 of a UCC-1 statement). See Prior Order at 9-10. Yet Plaintiff again attempts to do so in the FAC. 25 See FAC ¶¶ 100-08. Accordingly, the Court will dismiss this claim.3 26 3 Defendants argue that New York law governs the breach-of-fiduciary-duty claim (see Motion at 27 16-18), and Plaintiff does not expressly address her breach-of-fiduciary-duty claim in her E. Plaintiff Does Not Sufficiently Allege That 1 Defendants Filed A Fraudulent Lien Or UCC Filing 2 Plaintiff alleges that Defendants violated California Commercial Code Sections 9518 and 3 9625 by filing “a bogus false lien against” her.4 See id. ¶ 111. But, as explained in the Prior 4 Order, Section 9518 “does not create a cause of action and does not prohibit fraudulent filings.” 5 See Prior Order at 10. As for Section 9625, the Court explained that that Section “does create a 6 cause of action for failing to comply with the filing requirements of the Commercial Code.” See 7 id. Plaintiff, however, does not sufficiently allege that Defendants violated any provisions of the 8 California Commercial Code. She does claim that Defendants filed their UCC lien without 9 satisfying the requirements for creating a security interest. See FAC ¶¶ 112-18. But, as explained 10 above, the RSA authorized Defendants to file that UCC lien, and the California Commercial Code 11 permits filing a UCC lien even “before a security agreement is made or a security interest 12 otherwise attaches.” See

(d). Her claims under the California Commercial 13 Code therefore fail. 14 Plaintiff counters that she told Biz2Credit on June 22, 2023, that she no longer needed the 15 requested funding, rendering the RSA (and its authorization to file the UCC-1 statement) void 16 before Defendants filed the UCC-1 statement on July 5, 2023. See FAC ¶¶ 20, 30-31. That 17 allegation contradicts her original complaint, in which she alleged that she told Biz2Credit on June 18 22 that she did not require funding until July 12 (as opposed to not at all). See Dkt. 1 ¶ 15. The 19 Court need not accept allegations in an amended complaint that contradict allegations in a prior 20 complaint. See Kennedy Funding, Inc. v. Chapman, No. 09-cv-01957-RS,

, at 21 *4 (N.D. Cal. June 18, 2010). Accordingly, the Court rejects Plaintiff’s assertion that she 22 repudiated the RSA on June 22, thereby rendering it void. Thus, the RSA remained in effect on 23

24 California law applies.” Callan v. Merrill Lynch & Co., Inc., No. 09-cv-00566-BEN,

, at *4 n.1. (S.D. Cal. Jan. 22, 2010). 25 4 Plaintiff also alleges violations of parallel provisions of the Delaware Commercial Code, while 26 Defendants argue that the New York Commercial Code applies. See FAC at 19; Motion at 18-20. Because the relevant provisions of the three state’s commercial codes do not differ in any respect 27 material here, the Court will analyze Plaintiff’s claim under California law. See Cal. Com. Code 1 July 5 at the time Defendants filed the UCC-1 statement. 2 F. Plaintiff Does Not Sufficiently Allege That Defendants Defamed Her 3 Plaintiff alleges that Defendants defamed her by filing the UCC lien. See FAC ¶ 147. But 4 Plaintiff does not describe any false language contained in that document, and because she 5 authorized Defendants to file the UCC lien in the RSA, the mere filing of that document does not 6 render its content false. These pleading deficiencies defeated the defamation claim of her original 7 complaint, and they do so here as well.5 See Prior Order at 10-11. The Court instructed Plaintiff 8 to predicate any renewed defamation claim on a publication other than the UCC lien, and she has 9 not done so. See id. at 11. The Court will therefore dismiss Plaintiff’s defamation claim. 10 G. Plaintiff Does Not Sufficiently Allege That Defendants Violated The FCA 11 Plaintiff alleges that Defendants violated the FCA. See FAC ¶ 161. But in her Opposition, 12 Plaintiff does not address her FCA claim or oppose any arguments raised in the Motion supporting 13 dismissal of her FCA claim. The Court, therefore, holds that Plaintiff has abandoned her FCA 14 claim. See, e.g., Jenkins v. Cnty. of Riverside,

, 1095 n.4 (9th Cir. 2005); Tapia 15 Carmona v. Cnty. of San Mateo, No. 18-cv-05232-LHK,

, at *7 (N.D. Cal. 16 Sept. 12, 2019); but see Johnson v. Meta Platforms, Inc., No. 22-cv-05691-BLF,

5021784, at *3 (N.D. Cal. Aug. 4, 2023) (declining to deem claims abandoned where plaintiff did 18 not oppose motion to dismiss).6 19

20 5 Defendants argue that New York law governs the defamation claim, and Plaintiff does not address this issue in her Opposition. See Motion at 20-21. The Court need not decide whether 21 California law or New York law applies to the defamation claim, because the law of both states requires that a plaintiff plead falsity, and Plaintiff has failed to do so here. See Taus v. Loftus, 40

, 720 (2007); Davis v. Boeheim,

(2014). 23 6 In Jenkins, the Ninth Circuit held that a plaintiff’s failure to address two of her claims in opposing a motion for summary judgment constituted abandonment of those claims. See Jenkins, 24

n.4. Relying on Jenkins, some courts in this district have applied that principle in the context of motions to dismiss. See, e.g., Liu v. Kaiser Permanente Emps. Pension Plan for 25 Permanente Med. Grp., Inc., No. 23-cv-03109-AMO,

, at *7 n.4 (N.D. Cal. June 20, 2024); Drevaleva v. Ng, No. 22-cv-01984-EMC,

, at *2 (N.D. Cal. 26 Aug. 31, 2022); Tapia,

, at *7. Other courts have declined to follow suit: “[N]othing in Jenkins suggests that a plaintiff’s failure to oppose a motion to dismiss constitutes 27 abandonment.” Johnson,

, at *3 (citation omitted). Having considered these 1 Even if Plaintiff had not abandoned her FCA claim, it would still fail. “[A] successful 2 False Claims Act claim requires: ‘(1) a false statement or fraudulent course of conduct, (2) made 3 with scienter, (3) that was material, causing (4) the government to pay out money or forfeit 4 moneys due.’” United States ex rel. Rose v. Stephens Inst.,

(9th Cir. 2018) 5 (citation omitted). Plaintiff does not offer any non-conclusory allegations that the government 6 “pa[id] out money or forfeited moneys due” based on any knowingly false statements or 7 fraudulent course of conduct of Defendants, as she instead alleges only that Defendants engaged in 8 a “ploy to evade taxes.” See FAC ¶ 159. That will not do. The Court will therefore dismiss the 9 FCA claim. 10 H. Plaintiff May Not Amend The FAC 11 The Court described Plaintiff’s pleading deficiencies in the Prior Order concerning her 12 non-FCA claims and provided specific instructions on how Plaintiff should address those 13 shortcomings in an amended pleading. But the shortcomings remain, as Plaintiff’s claims fail for 14 the same reasons as before. Further amendment, therefore, would be futile. See, e.g., Snapkeys, 15 Ltd. v. Google LLC, No. 19-cv-02658-LHK,

, at *7 (N.D. Cal. Oct. 30, 2020) 16 (dismissing claim without leave to amend where, inter alia, plaintiff “has already failed multiple 17 times to adequately allege a . . . claim”); Martin v. CSAA Ins. Exch., No. 17-cv-04066-MEJ, 2018

, at *4 (N.D. Cal. Mar. 8, 2018) (denying request for leave to amend where, inter 19 alia, “Plaintiffs repeatedly failed to cure deficiencies in their pleading”). With respect to 20 Plaintiff’s FCA claim, Plaintiff has abandoned that claim, and the Court need not provide leave to 21 amend an abandoned claim. See, e.g., In re TFT-LCD (Flat Panel) Antitrust Litig.,

2d 1109, 1131 (N.D. Cal. 2008); Clark v. Amazon.com, Inc., No. 23-cv-00500-JWH,

11053617, at *5 (C.D. Cal. Aug. 10, 2023). 24 /// 25 decision suggest that the Ninth Circuit intended to limit its holding to the summary-judgment 26 context. In this Court’s view, the abandonment principle of Jenkins applies equally well at the pleading stage; where a plaintiff does not oppose an attempt to dismiss one of their claims but 27 simultaneously does oppose an attempt to dismiss their other claims, a court may infer that the IV. CONCLUSION For the foregoing reasons, the Court GRANTS the Motion and DISMISSES the FAC 2 WITHOUT LEAVE TO AMEND. 3 SO ORDERED. 4 Dated: July 11, 2024 5 Seaton yer 7 SUSAN VAN KEULEN g United States Magistrate Judge 9 10 1] 12

16 Z 18 19 20 21 22 23 24 25 26 27 28