Blom v. UBS Financial Services Inc.

• Court: District Court, N.D. California
• Decided: December 20, 2022
• Docket: 5:22-cv-03172
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 JAN BLOM, et al., Case No. 22-cv-03172-BLF

8 Plaintiffs, ORDER GRANTING MOTION TO 9 v. DISMISS FIRST AMENDED COMPLAINT 10 UBS BANK USA, et al., [Re: ECF No. 24] 11 Defendants.

12 13 This case arises out of the tragic death of 17-year-old Linus Blom from a drug overdose. 14 Three days after Linus’s father, Plaintiff Jan Blom, called his bank to inform it that his debit card 15 was lost or stolen, he and his wife, Plaintiff Ida Irena Kolankiewicz-Blom, discovered Linus dead 16 in his bed. Police informed them that Linus had withdrawn money with their debit card and used 17 it to buy drugs. The bank had failed to cancel the debit card when Mr. Blom called. Plaintiffs 18 bring causes of action against Defendants UBS Bank USA and UBS Business Solutions LLC 19 (collectively “UBS”) for (1) wrongful death; (2) negligent infliction of emotional distress; and (3) 20 breach of contract. 21 Before this Court is UBS’s Motion to Dismiss Plaintiffs’ First Amended Complaint under 22 Federal Rule of Civil Procedure 12(b)(6). Mot., ECF No. 24. Plaintiffs oppose. Opp’n, ECF No. 23 35. UBS has filed a Reply. Reply, ECF No. 41. For the reasons discussed below, UBS’s Motion 24 to Dismiss is GRANTED WITH LEAVE TO AMEND. 25 I. BACKGROUND 26 Plaintiffs allege the following facts, which the Court accepts as true for the purpose of 27 ruling on UBS’s motion to dismiss. See Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 1 and requested that UBS cancel the card. First Am. Compl. [“FAC”] ¶ 11, ECF No. 16. UBS 2 assured Mr. Blom that it would cancel the card immediately, but it failed to do so. id. ¶¶ 11, 14. 3 Between July 19 and 22, Mr. Blom’s 17-year-old son, Linus Blom, used Mr. Blom’s debit 4 card to make unauthorized withdrawals from various ATM machines and to receive cash back on 5 a purchase. Id. Linus obtained a total of $1,250 cash from these transactions and used the cash to 6 purchase illicit drugs. Id. 7 On July 22, Plaintiffs discovered Linus dead in his bed. Id. ¶ 14. He had died from a drug 8 overdose. Id. The next day, Police informed Plaintiffs that Linus had withdrawn large amounts of 9 money with their card to buy drugs. Id. Plaintiffs contacted UBS, and UBS confirmed that it had 10 not canceled the debit card despite Mr. Blom’s request that it do so four days prior. Id. 11 II. LEGAL STANDARD 12 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 13 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation 14 Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 15 729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts 16 as true all well-pled factual allegations and construes them in the light most favorable to the 17 plaintiff. Reese, 643 F.3d at 690. However, the Court need not “accept as true allegations that 18 contradict matters properly subject to judicial notice” or “allegations that are merely conclusory, 19 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 20 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks and citations omitted). While a 21 complaint need not contain detailed factual allegations, it “must contain sufficient factual matter, 22 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 23 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is 24 facially plausible when it “allows the court to draw the reasonable inference that the defendant is 25 liable for the misconduct alleged.” Id. 26 III. DISCUSSION 27 Plaintiffs assert three causes of action: (1) wrongful death; (2) negligent infliction of 1 of action in turn. 2 A. Wrongful Death 3 “A cause of action for wrongful death is . . . a statutory claim.” Quiroz v. Seventh Ave. 4 Ctr., 140 Cal. App. 4th 1256, 1263 (2006) (citing Cal. Code Civ. P. §§ 377.60-377.62). “Its 5 purpose is to compensate specified persons—heirs—for the loss of companionship and for other 6 losses suffered as a result of a decedent's death.” Id. “The elements of the cause of action for 7 wrongful death are the tort (negligence or other wrongful act), the resulting death, and the 8 damages, consisting of the pecuniary loss suffered by the heirs.” Id. (emphasis removed). Where, 9 as here, plaintiff alleges that the wrongful death resulted from negligence, the complaint must 10 contain allegations as to all the elements of actionable negligence. See Jacoves v. United Merch. 11 Corp., 9 Cal. App. 4th 88, 105 (1992). The elements of negligence are: (1) the defendant had a 12 legal duty to use due care; (2) the defendant breached such legal duty; (3) the defendant’s breach 13 was the proximate or legal cause of the resulting injury; and (4) damage to the plaintiff. Ladd v. 14 County of San Mateo, 12 Cal. 4th 913, 917 (1996). 15 UBS argues that Plaintiffs’ wrongful death claim must be dismissed because (1) UBS did 16 not owe a legal duty to Linus and (2) its failure to cancel Mr. Blom’s debit card was not the 17 proximate cause of Linus’s death. See Mot. 8-11, 16-19; Reply 2-6. The Court first addresses 18 UBS’s argument regarding duty and then turns to its argument concerning causation. 19 1. Duty 20 The Court first addresses UBS’s argument that Plaintiffs have failed to allege the requisite 21 duty to support a wrongful death claim based on negligence. UBS argues that Plaintiffs’ wrongful 22 death claim must be dismissed because UBS did not owe a duty to Linus Blom. Mot. 8-11; Reply 23 2-6. Plaintiffs do not dispute that UBS did not owe a duty to Linus, but they argue UBS owed a 24 duty to them. Opp’n 1-2. Plaintiffs contend that UBS created this duty when it assured Plaintiffs 25 that it would cancel their debit card. Id. 26 “Negligence involves the violation of a legal duty imposed by statute, contract or 27 otherwise, by the defendant to the person injured, e.g., the deceased in a wrongful death action.” 1 depends upon the foreseeability of the risk and a weighing of policy considerations for and against 2 the imposition of liability.” Id. at 107 (citing Marlene F. v. Affiliated Psychiatric Medical Clinic, 3 Inc., 48 Cal. 3d 583, 588-590 (1989)). 4 The Court finds that Plaintiffs have failed to allege that UBS owed them a duty that would 5 support their wrongful death cause of action. Plaintiffs have not pled facts to show that UBS 6 owed a duty to Linus, and they do not dispute UBS’s contention that no such duty exists. 7 Plaintiffs argue that UBS created a duty to them when it assured Plaintiffs that it would cancel 8 their debit card, but that does not save their claims. Facts pled in the FAC do not support this 9 theory. See Schneider v. California Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“In 10 determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint 11 to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to 12 dismiss.” (emphasis in original)). Accordingly, the Court finds that Plaintiffs have failed to plead 13 facts sufficient to support that UBS owed Linus or them a legal duty. 14 The Court notes that Plaintiffs’ opposition appears to invoke the “negligent undertaking 15 theory” or “Good Samaritan Rule.” See Paz v. State of California, 22 Cal. 4th 550, 553 (2000). 16 This theory “subsumes the well-known elements of any negligence action, viz., duty, breach of 17 duty, proximate cause, and damages.” Id. at 559. To the extent Plaintiffs intend to invoke this 18 theory as the basis for the negligence element underlying a wrongful death claim in an amended 19 pleading, they must allege facts to support each element of the theory. 20 2. Causation 21 The Court next addresses UBS’s argument that Plaintiffs have failed to allege facts to 22 support the requisite causation for their wrongful death claim. UBS argues that its failure to 23 cancel Mr. Blom’s card was not the proximate cause of Linus’s death from a drug overdose 24 because there were too many intervening events. See Mot. 18; Reply 9-11. Plaintiffs argue that 25 any intervening act between the UBS’s failure to cancel their debit card and Linus’s death was 26 foreseeable and therefore does not break the chain of causation between UBS’s failure to cancel 27 Plaintiffs’ debit card and Linus’s death. See Opp’n 2. 1 United States, 17 F.4th 819, 822 (9th Cir. 2021) (quoting S. Coast Framing, Inc. v. Workers' 2 Comp. Appeals Bd., 61 Cal. 4th 291, 298 (2015)). “Although causation often presents a question 3 of fact for the jury, ‘where the facts are such that the only reasonable conclusion is an absence of 4 causation, the question is one of law, not of fact.’” Id. at 822 (quoting State Dep’t of State Hosps. 5 v. Super. Ct., 61 Cal. 4th 339, 353 (2015) (internal quotation marks omitted)). A defendant’s act 6 is not the proximate cause of a harm, as a matter of law, where a chain of intervening events 7 renders the connection between defendant’s act and the harm too remote. Id. 8 The Court agrees with UBS that Plaintiffs have failed to show that UBS’s failure to cancel 9 their debit card was the proximate cause of Linus’s death. As UBS notes, and Plaintiffs do not 10 dispute, the intervening events between UBS’s failure to cancel Plaintiffs’ debit card and Linus’s 11 death were: (1) Linus obtained the debit card without Plaintiffs’ authorization; (2) he obtained 12 Plaintiffs’ PIN for the card; (3) he used the card on multiple occasions to withdraw cash from an 13 ATM and make a purchase with cash back; (4) he purchased drugs from an illegal drug dealer; and 14 (5) he ingested a fatal quantity of illicit drugs. This long chain of events renders Linus’s death too 15 attenuated from UBS’s failure to cancel Plaintiffs’ debit card for liability to be imposed. See 16 Steinle, 17 F.4th at 822 (act of leaving loaded pistol in car too attenuated from death of person 17 killed by bullet from that pistol where intervening acts included “at least one criminal act (the theft 18 [of the pistol from the car]) and at least one accident (the bullet ricocheting after [a third party] 19 discharged the pistol)”). Plaintiffs have offered no case law to support their argument otherwise. 20 Accordingly, the Court finds that Plaintiffs have failed to allege sufficient facts to plausibly show 21 that UBS’s failure to cancel their debit card proximately caused Linus’s death. 22 3. Conclusion 23 As discussed above, Plaintiffs have failed to plausibly allege that UBS owed Linus or them 24 a duty or that UBS’s actions were the proximate cause of Linus’s death. Plaintiffs have therefore 25 failed to plausibly allege facts to support the negligence element of their wrongful death claim. 26 Accordingly, Plaintiffs’ wrongful death claim is DISMISSED WITH LEAVE TO AMEND. 27 B. Negligent Infliction of Emotional Distress 1 by reference to two ‘theories’ of recovery: the ‘bystander’ theory and the ‘direct victim’ theory.” 2 Burgess v. Superior Court, 2 Cal. 4th 1064, 1071 (1992). “The distinction between the 3 ‘bystander’ and ‘direct victim’ cases is found in the source of the duty owed by the defendant to 4 the plaintiff.” Id. at 1272. “Bystander” cases are those in which the plaintiff’s claim of emotional 5 distress “is premised upon a defendant’s violation of a duty not to negligently cause emotional 6 distress to people who observe conduct which causes harm to another.” Id. “‘Direct victim’ cases 7 are cases in which the plaintiff’s claim of emotional distress is not based upon witnessing an 8 injury to someone else, but rather is based upon the violation of a duty owed directly to the 9 plaintiff.’” Ragland v. U.S. Bank Nat'l Assn., 209 Cal. App. 4th 182, 205 (2012). 10 Plaintiffs do not specify the theory under which they bring their claim for negligent 11 infliction of emotional distress in their complaint or in their briefing. UBS argues that Plaintiffs 12 fail to state a claim under either theory. The Court first addresses the sufficiency of Plaintiffs’ 13 pleadings under a bystander theory and then under a direct victim theory. 14 1. Bystander Theory 15 UBS argues that Plaintiffs fail to state a claim for negligent infliction of emotional distress 16 under a bystander theory because Plaintiffs fail to allege that they had a sensory and 17 contemporaneous observance of the death of their son. Mot. 19-21; Reply 11. Plaintiffs argue 18 that sensory and contemporaneous observance of the death of their son is not a requirement of 19 their claim. Opp’n 2. 20 The Court agrees with UBS. “In the absence of physical injury or impact to the plaintiff 21 himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely 22 related to the injury victim; (2) is present at the scene of the injury-producing event at the time it 23 occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional 24 distress beyond that which would be anticipated in a disinterested witness.” Thing v. La Chusa, 48 25 Cal. 3d 644, 647 (1989); see also CACI 1621. “[T]o satisfy the second Thing requirement the 26 plaintiff must experience a contemporaneous sensory awareness of the causal connection between 27 the defendant's infliction of harm and the injuries suffered by the close relative.” Fortman v. 1 “discovered Linus Blom dead in his bed” and learned the next day that he had used their debit to 2 withdraw money after UBS had failed to cancel the card upon their request. 4AC ¶ 14. These 3 allegations suggest that Plaintiffs were neither at the scene of an injury-producing event at the time 4 that it happened nor aware that Linus was being injured by any such event. Plaintiffs’ allegations 5 therefore do not satisfy the second Thing element and fail to state a claim for negligent infliction 6 of emotional distress under a bystander theory. 7 2. Direct Victim Theory 8 “In its decisions addressing the direct victim theory, the California Supreme Court has 9 emphasized that there is no independent tort of negligent infliction of emotional distress.” Gu v. 10 BMW of N. Am., LLC, 132 Cal. App. 4th 195, 204 (2005) (quotations omitted) (collecting cases). 11 Instead, “the tort is negligence, a cause of action in which duty to the plaintiff is an essential 12 element.” Id. (quoting Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 984 (1993)). 13 UBS argues that Plaintiffs fail to state a claim for negligent infliction of emotional distress 14 under a direct victim theory because they do not allege facts that plausibly suggest that UBS owed 15 them a duty to protect them from harm arising from their son’s use of their debit card to purchase illicit 16 drugs. Reply 6-8. UBS further argues that even if such a duty does exist, the Court should dismiss 17 Plaintiffs’ claims because the factors recited in Rowland v. Christian, 69 Cal. 2d 108 (1968), counsel 18 in favor of excepting UBS from that duty. Mot. 11-14; Reply 8-9. Finally, UBS argues Plaintiffs’ 19 claim for negligent infliction of emotional distress also fails because Plaintiffs have not alleged facts 20 showing that UBS’s failure to cancel their debit card was the proximate cause of their emotional 21 distress from Linus’s death. Mot. 16-19, 25. 22 Although Plaintiffs’ briefing is not clear, Plaintiffs appear to rely on the same duty argument 23 they advanced to support their wrongful death claim. Plaintiffs appear to argue that UBS created a 24 duty to them to protect Linus when UBS assured them it would cancel their debit card. See Opp’n 25 1-2. Plaintiffs further argue that, if given the opportunity to amend their pleadings, they can allege 26 additional facts to show that Plaintiffs’ injuries were a foreseeable result of UBS’s failure to 27 cancel Plaintiffs’ debit card. Id. at 4-6. Finally, Plaintiffs dispute UBS’s contention that the 1 As explained above in the Court’s analysis of Plaintiffs’ wrongful death claim, Plaintiffs 2 argue in their briefing that UBS created a duty to them when it assured Plaintiffs that it would 3 cancel their debit card, but they have not pled factual allegations to support this theory in their 4 operative complaint. Plaintiffs have therefore not alleged facts to show UBS owed them the 5 requisite duty to state a claim for negligent infliction of emotional distress. As the Court finds 6 Plaintiffs have not alleged sufficient facts to establish UBS’s duty to them, the Court does not 7 reach UBS’s alternative argument based on the Rowland factors; however, Plaintiffs should 8 address those factors in an amended complaint. 9 Also as explained in the Court’s analysis of Plaintiffs’ wrongful death claim, Plaintiffs 10 have not alleged facts to support that UBS’s failure to cancel their debit card was the proximate 11 cause Linus’s death. The Court therefore finds that Plaintiffs have likewise not alleged facts to 12 support that UBS’s failure to cancel their debit card was the proximate cause of their emotional 13 distress. Plaintiffs’ claim for negligent infliction of emotional distress therefore fails for this 14 reason as well. 15 The Court notes that Plaintiffs have argued and provided a declaration stating that they can 16 allege additional facts to support their theory of UBS’s duty to them. See Opp’n 4-6. Plaintiffs 17 have stated, for example, that they believe that Mr. Blom told UBS on July 19, 2020, when he 18 called to cancel his debit card that “his son has mental problems and might be using the card for 19 improper purposes, e.g., self-abuse and purchasing illegal drugs.” Id. at 5. Although the Court is 20 skeptical that such information would create the necessary duty in this case, it is not prepared at 21 this point to say that amendment of the complaint would be futile. Accordingly, the Court will 22 dismiss Plaintiffs’ claims without prejudice to filing a second amended complaint. 23 3. Conclusion 24 As noted above, the Court finds that Plaintiffs have failed to state a claim for negligent 25 infliction of emotional distress under either a “bystander” or “direct victim” theory. Accordingly, 26 Plaintiffs’ claim for negligent infliction of emotional distress is DISMISSED WITH LEAVE TO 27 AMEND. If Plaintiffs file an amended complaint in which they assert a claim for negligent 1 and allege facts to plausibly support the elements of that theory. 2 C. Breach of Contract 3 Plaintiffs allege that UBS was “contractually obligated” to immediately cancel Mr. Blom’s 4 debit card upon notification that the card was lost or stolen, that UBS represented that it would 5 cancel the card when Mr. Blom reported the card lost or stolen, that UBS “breached the contract 6 by not immediately canceling the card, and that Plaintiffs suffered consequential damages as a 7 result. FAC ¶ 19. 8 Plaintiffs do not identify the agreements upon which they base their claims. But UBS 9 identifies two agreements between Plaintiff Mr. Blom and UBS Bank USA: the UBS Client 10 Relationship Agreement and an Agreements and Disclosures booklet (collectively, the 11 “Agreements”). See Mot. 5; Decl. of Kenneth G. Crowley (“Crowley Decl.”) Ex. 3 (“Client 12 Relationship Agreement”) and Ex. 4 (“Agreements and Disclosures booklet”), ECF No. 24-2. 13 UBS also identifies an Account Update Document that purports to update the Agreements and 14 Disclosures booklet. See Crowley Decl. Ex. 5 (“Account Update Document”). Plaintiffs do not 15 dispute that these are the only written agreements between the parties. 16 UBS contends that Utah law governs Plaintiffs’ breach of contract claim because the 17 Agreements have a Utah choice-of-law provision. Plaintiffs do not dispute UBS’s contention, 18 though they rely on both California and Utah caselaw in their argument. Accordingly, the Court 19 will apply Utah law. 20 UBS contends Plaintiffs have failed to state a claim for breach of contract because (1) 21 Plaintiffs have failed to identify a provision in the Agreements that requires UBS to cancel Mr. 22 Blom’s card upon request; (2) Plaintiffs have waived consequential damages; and (3) Plaintiffs 23 cannot establish that the consequential damages they seek were foreseeable when the parties 24 entered the Agreements. Mot. 21-25; Reply 12-14. UBS further argues that Plaintiffs cannot state 25 a claim for breach of contract against UBS Business Solutions US LLC because it is not a party to 26 the Agreements. Id. at 22. 27 The Court agrees with UBS that Plaintiffs have failed to state a claim for breach of contract 1 claim for breach of contract, a plaintiff must allege, among other things, the essential terms of the 2 contract. Am. W. Bank Members, L.C. v. State, 342 P.3d 224, 231 (Utah 2014). Here, Plaintiffs 3 have failed to identify the terms upon which they are relying as the basis for their claim. Plaintiffs 4 allegations therefore fail to give UBS fair notice of the basis of their claim. See id. Accordingly, 5 the Court finds that Plaintiffs have failed to state a claim for breach of contract. 6 The Court also agrees with UBS that the terms of the contract provide that Plaintiffs have 7 waived consequential damages and therefore fail to state a claim for breach of contract, as 8 currently pled. Damages is an essential element of a claim for breach of contract. See id. at 230- 9 31. Plaintiffs allege that they suffered “consequential damages” as a result of UBS’s failure to 10 immediately cancel their card. FAC ¶ 19. But the agreements Plaintiffs entered into with UBS 11 preclude UBS’s liability for consequential damages. See Agreements and Disclosures booklet 9 12 (“UBS . . . shall not be liable to you for any reason for consequential damages arising out of your 13 Agreement with us and/or any services we provide to you.”); Account Update Document 2 (“In no 14 event shall UBS . . . be liable to you for any reason for . . . any indirect, consequential, punitive or 15 exemplary losses or damages arising out of your agreements with us and/or any services we 16 provide to you[.]”). 17 Plaintiffs’ argument that the consequential damages waiver is inapplicable is 18 unconvincing. Plaintiffs argue that the Agreements and Account Update Document are 19 inapplicable because they “list losses for which UBS is not liable” but “do not expressly limit 20 liability for personal injury claims.” Opp’n 8-9. Plaintiffs misread the documents. They are right 21 that it lists losses for which UBS is not liable, but the first loss listed in the Account Update 22 Document is “any indirect special, indirect, consequential, punitive or exemplary losses or 23 damages arising out of your agreements with us and/or any services we provide to you.” See Ex. 24 5, at 2. The Court finds that the terms of the provision preclude certain types of damages, 25 including consequential damages, without limitation to any particular type of claim. 26 Plaintiffs also argue that the consequential damages waiver in the Agreements is 27 unenforceable because it is unconscionable. Plaintiffs argue that the consequential damages 1 Uniform Commercial Code (“UCC”), which states that “[l]imitation of consequential damages for 2 injury to the person in the case of consumer goods is prima facie unconscionable.” Opp’n 9. 3 Plaintiffs contend that UBS’s “debit/credit card and appurtenant services constitute consumer 4 goods.” Id. 5 The Court disagrees. “Goods” is defined in Chapter 2 of Utah’s UCC as “all things . . . 6 which are movable at the time of identification to the contract for sale other than the money in 7 which the price is to be paid, investment securities . . . and things in action.” Utah Code § 70A-2- 8 105. Neither party has provided legal support for their contention that Plaintiffs’ debit card is or is 9 not a “good” under Chapter 2 of Utah’s UCC. The Court finds that it need not address the 10 question because even if the debit card itself were a good, the Agreements would still be 11 predominantly for banking services, and therefore are not governed by Article 2 of Utah’s UCC. 12 See Legal Tender Servs. PLLC v. Bank of Am. Fork, 506 P.3d 1211, 1220-21 (Utah Ct. App. 2022) 13 (applying “predominant purpose” test to determine whether an agreement involving use of an 14 online payment portal was an agreement for a good or a service). Indeed, the Agreements make 15 clear that the debit card is a feature for using a client’s account, not a good that is sold to a client. 16 See Agreements and Disclosures booklet 27 (debit cards are “issued in connection with [client’s] 17 account”). 18 Finally, the Court agrees with UBS that even if the consequential damages waiver were 19 unenforceable, Plaintiffs have not alleged facts that would establish the requisite foreseeability to 20 entitle Plaintiffs to consequential damages. “To recover consequential damages, a non-breaching 21 party must prove (1) that consequential damages were caused by the contract breach; (2) that 22 consequential damages ought to be allowed because they were foreseeable at the time the parties 23 contracted; and (3) the amount of consequential damages within a reasonable certainty.” 24 Mahmood v. Ross, 990 P.2d 933, 938 (Utah 1999). Plaintiffs have not alleged that damages 25 arising from the death of their son were foreseeable at the time they and UBS contracted. 26 Plaintiffs have therefore failed to allege an essential element of their claim for consequential 27 damages. 1 breach of contract. Although unlikely, the Court will allow Plaintiffs the opportunity to plead 2 || around the consequential damages bar in the contract. Accordingly, Plaintiffs’ claim for breach of 3 || contract is DISMISSED WITH LEAVE TO AMEND. 4 || IV. ORDER 5 For the foregoing reasons, IT IS HEREBY ORDERED that UBS’s Motion to Dismiss 6 (ECF No. 24) is GRANTED WITH LEAVE TO AMEND. If Plaintiffs choose to file a second 7 amended complaint, they shall do so by no later than February 20, 2023. 8 9 Dated: December 20, 2022 10 BETH LABSON FREEMAN 11 United States District Judge 12

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