1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Bullion Standard, Inc., Case No.: 25-CV-1299-W-SBC
12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART MOTION TO DISMISS AND DENYING MOTION 14 Bank of America, N.A., et al., TO STRIKE [DOC. 23] 15 Defendants. 16 17 Before the Court is Defendant Bank of America’s motion to dismiss Plaintiff’s 18 Amended Complaint for failure to state a claim upon which relief may be granted. 19 (Motion [Doc. 23].) In this removed case, Plaintiff Bullion Standard, Inc. (“Bullion”) 20 complains that their bank account was wrongfully frozen, their funds were stolen and 21 withdrawn, and their account was otherwise mishandled by the Bank of America (“BOA” 22 or the “Bank”), consistent with its historical pattern of defrauding customers and account 23 holders generally and Plaintiff specifically. The central disputes are (1) whether BOA 24 wrongfully treated Bullion’s account as holding fraudulent funds, (2) whether BOA 25 wrongfully conducted or failed to conduct an investigation into Bullion’s account, and (3) 26 whether BOA wrongfully froze or retained Bullion’s funds. 27 The Court finds this motion suitable for determination on the papers submitted and 28 without oral argument. Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). The Court concludes 1 that the motion (Doc. 23) is GRANTED IN PART and DENIED IN PART, as 2 explained here. 3 4 I. FACTUAL AND PROCEDURAL BACKGROUND 5 BOA removed this case on July 16, 2025. Bullion filed its first amended 6 complaint (the “Complaint”) on September 2, 2025. (Compl. [Doc. 21].) BOA moved to 7 dismiss the complaint in its entirety. (Motion [Doc. 23-1].) Plaintiff responded in 8 opposition. (Oppo. [Doc. 25].) BOA replied in support. (Reply [Doc. 26].) 9 Bullion is a California online precious metals retailer that prides itself on a 10 reputation as “the trusted choice for discerning precious metals investors.”1 (Compl. 11 ¶¶ 1, 5, 11.) Bullion opened a bank account with BOA to receive wire transfers from its 12 customers buying precious metals. (Id. ¶ 6.) Bullion’s reputation among customers is 13 vital to its business due to the fierce competition in the bullion retail market. (Id. ¶¶ 13– 14 14.) Part of Bullion’s strategy to build customer confidence and maintain its strong 15 reputation was to enact several anti-fraud policies to ensure that customers are not 16 identity thieves and that they receive their goods when purchased. Bullion’s policies to 17 this end include “IPQS Enterprise grade fraud software, telephonic order verification, 18 email verification, tracked shipping, and signature delivery confirmation.” (Id. ¶ 14.) 19 Bullion contacted BOA before opening its account to confirm whether it needed to 20 meet additional prerequisites, such as anti-money laundering certifications, in light of its 21 need for wire transfers as a core component of its precious metals trade. (Id. ¶ 22.) BOA 22 represented it was more than able to handle Bullion’s business needs and induced Bullion 23 to open the account based on BOA’s representations. (Id.) Bullion opened a direct 24 deposit account (the “Account”) with BOA on January 17, 2024, with confidence in 25
26 1 The Court assumes the truth of all factual allegations when reviewing this Rule 12(b)(6) motion and 27 construes the facts in the light most favorable to the nonmoving party, Bullion. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996); Barrett v. Belleque, 544 F.3d 1060, 1061 (9th Cir. 28 1 BOA’s capabilities. (Compl. ¶ 22.) Bullion only later learned that its confidence was 2 misplaced because of multiple scams or violations of law BOA committed to deprive 3 classes of customers of their money. (Id. ¶¶ 16–22.) During the next year of its 4 commercial banking, there were no problems with BOA, and approximately $4,000,000 5 was received into the Account during that time. (Id. ¶ 23.) 6 7 A. BOA’s Historical Scams Against Classes Of Customers Not Alleged To Include Bullion 8
9 Bullion alleged broadly that BOA has a notorious and somewhat recent history of 10 fraudulent practices and conduct against the interests of its customers in general. (Compl. 11 ¶¶ 16-21.) In support, Bullion alleged BOA committed four historical scams against the 12 Bank’s customers in defined classes—the credit card scam, the garnishment scam, the 13 fraud reporting scam, and the theft scam. (Id.) There is no allegation that Bullion was 14 impacted directly by any of these scams. Rather, Bullion alleges them as relevant to 15 BOA’s treatment of its customers and alleges that the orders entered in response to those 16 scams are evidence of BOA’s knowledge of its own wrongdoing. 17 First, the credit card scam alleged that BOA deceptively marketed their credit card 18 add-on products and “illegally charged approximately 1.9 million consumer accounts for 19 credit monitoring and credit reporting services that they were not receiving,” by 20 misrepresentation and engaged in unfair billing. (Id. ¶ 18.) BOA was ordered, among 21 other penalties, to pay approximately $268 million to approximately 1.4 million 22 customers, approximately $459 million to roughly 1.9 million customer accounts who 23 enrolled in credit monitoring, and a penalty of $20 million in penalty to the Consumer 24 Fraud Protection Bureau’s (“CFPB”). (Id.) The second alleged historical scam was the 25 garnishment scam. (Id. ¶ 19.) Bullion alleged that the CFPB described BOA’s 26 misconduct to include, among other things, false representation regarding rights to have 27 funds exempted from garnishment, and in response to an adverse finding, BOA paid a 28 $10 million penalty to the CFPB. (Id.) The third alleged historical scam was the fraud 1 reporting scam. (Id. ¶ 20.) The CFPB described the primary wrongdoing as using a 2 fraud filter, as opposed to reasonable investigation, that automatically imposed an 3 account freeze to the debit cards of unemployment insurance benefit accounts. (Id.) The 4 final alleged historical scam is the theft scam. (Id. ¶ 21.) Plaintiff alleged that, in 2023, 5 the CFPB concluded that BOA was liable for wrongfully retaining the money of its 6 poorest customers, causing customers to be charged wrongful fees and to suff harm on 7 their credit profiles. (Id.) 8 9 B. Wrongdoing Alleged to Harm Bullion Specifically 10 Here, Bullion’s claims arise from BOA’s conduct in early 2025, over the course of 11 multiple transactions between Bullion and three of its customers. (Compl. ¶ 25.) 12 13 1. Customers 1 and 2 14 Between January 8, 2025, and February 13, 2025, Customer 1 purchased 15 approximately $380,000 of precious metals from Bullion over a series of transactions, 16 sending multiple wire transfers of money to the Account. (Compl. ¶ 25.) After each 17 transaction, Bullion transferred the funds to its wholesaler to fulfill Customer 1’s orders. 18 (Id.) Bullion monitored the transactions and confirmed the product was delivered to 19 Customer 1 for each order. (Id.) Customer 1 verified receipt of the product on February 20 17, 2025, and Bullion believed the transaction was complete. (Id.) In fact, without 21 Bullion’s knowledge, Customer 1 gave their product to an unknown third party, 22 according to Bullion’s complaint, “Potential Thief 1.” (Id. ¶¶ 25–26.) According to 23 Bullion, Potential Thief 1 obtained the product under false pretenses, and Customer 1 was 24 a victim of the third party’s fraud. (Id. ¶ 26.) Customer 1 then allegedly went to BOA 25 (there is no allegation that Customer 1 was also a BOA account holder) and reported the 26 product stolen. (Id. ¶ 27.) BOA opened a fraud dispute and debited $381,000 from the 27 Account. (Id. ¶ 28.) Bullion demonstrated to BOA that the wire transfers from Customer 28 1 were legitimate business transactions, and Customer 1 clarified to BOA that Bullion 1 was not the defrauding party. (Id. ¶ 36–39.) Based on that information, BOA closed the 2 investigation and released $381,000 to Bullion. (Id. ¶¶ 36, 39, 41–42.) 3 Just weeks later, at the end of February, Customer 2 purchased approximately 4 $75,000 worth of product from Bullion and wire transferred funds to Bullion’s Account. 5 (Id. ¶ 29.) Bullion transferred funds to its wholesaler and conveyed the product to 6 Customer 2. (Id.) Customer 2 subsequently claimed to have been defrauded into 7 conveying the product to an unknown third party, “Potential Thief 2.” (Id. ¶ 30.) As 8 before, Customer 2 reported to their local BOA (again, there is no allegation that 9 Customer 2 was also a BOA account holder) that their product had been stolen. (Id. 10 ¶ 32.) Without conducting an investigation and without notice to Bullion, BOA debited 11 the Account $75,000 in March 2025. (Id. ¶ 32.) Later, Bullion and Customer 2 notified 12 BOA that Bullion was not the defrauder, and BOA closed its investigation and credited 13 the Account. (Id. ¶¶ 36, 43, 44.) 14 Before alleging facts regarding Bullion’s Customer 3, the Complaint details 15 Bullion’s efforts to correct its Account with BOA after the two initial, wrongful debits of 16 approximately $430,000. (Id. ¶ 33.) BOA failed to notify Bullion of the debits or BOA’s 17 actions with respect to Customers 1 and 2. (Id.) Once Bullion discovered the errors, it 18 undertook to investigate, to pursue information from BOA and Bullion Customers 19 directly, and to show BOA that the transactions were not fraudulent. (Id. ¶ 33, 34.) 20 Bullion visited a BOA branch, where a manager ultimately spoke to BOA’s fraud 21 prevention department. (Id. ¶ 40.) Fraud prevention confirmed that Customer 1 had 22 requested Bullion’s funds be released to Bullion, but BOA did not release the funds 23 connected with those transactions for several days. (Id. ¶¶ 42 –43.) Customer 2 also 24 asked BOA to return Bullion’s funds, and BOA did not immediately return the money. 25 (Id. ¶ 43.) BOA finally credited and unfroze the Account in mid-March 2025. (Id. ¶ 44.) 26 That same day, BOA mailed notice to Bullion of the disputed transactions, and Bullion 27 alleged that this notice contained materially false statements. (Id. ¶ 46.) Bullion later 28 learned that BOA had concluded, as of this same day in March 2025, that 1 Bullion committed fraud on its customers and had flagged Bullion’s Account for fraud 2 without evidence. (Id. ¶ 47.) BOA should have disclosed this conclusion to Bullion. 3 (Id.) About this time, Bullion began to look for a new financial institution to hold its 4 business accounts. (Id. ¶¶ 47, 48.) During this time, Bullion alleged it lost business daily 5 from a lack of access to funds and a loss to its business goodwill. (Id. ¶ 49.) 6 7 2. Customer 3 8 Also in March 2025, Bullion entered a transaction with Customer 3 who purchased 9 about $50,000 of product and sent a wire transfer to Bullion’s Account. (Compl. ¶ 50.) 10 When Bullion attempted to pay its wholesaler, it learned BOA had frozen the Account. 11 (Id. ¶ 51.) Bullion contacted BOA’s fraud prevention line which confirmed the 12 transaction was marked as potentially fraudulent without any complaint from Customer 3. 13 (Id. ¶¶ 52–53.) At Bullion’s request, Customer 3 attempted to contact BOA, and BOA 14 refused to speak with Customer 3. (Id. ¶¶ 52–54.) 15 Confusion between Bullion and BOA continued over the question of how or when 16 funds would be returned to Bullion or Customer 3. (Id. ¶¶ 55–56.) Bullion received 17 various estimations of time to resolve the dispute. (Id. ¶¶ 56 –61.) Bullion alleges that as 18 of the filing of the Complaint, BOA still wrongfully retains Customer 3’s funds wired to 19 the Account. (Id. ¶¶ 60, 61.) 20 21 3. The Biggest Trading Day In History 22 Finally, Bullion alleged the loss of its business, due to the loss of access to the 23 Account, on the “biggest trading day in history” on April 4, 2025. (Compl. at 30.) That 24 day President Trump announced new tariffs that caused the “precious metals industry” to 25 “explode” in response. (Id. ¶¶ 62–66.) “Prices of gold and silver crashed significantly, 26 where volatility fueled mania brought enormous buying pressure into the precious metal 27 sector.” (Id. ¶ 65.) Without access to the Account or funds, Bullion “fielded dozens of 28 calls and emails from potential customers who were unable to purchase through Bullion.” 1 (Id.) As of the filing of its Complaint, Bullion is still working to establish banking 2 relationships and recover from damage caused by BOA. (Id. ¶¶ 67–69.) 3 4 4. The Deposit Agreement Governing Bullion’s Account 5 The Complaint’s allegations depend upon a deposit agreement between BOA and 6 Bullion regarding the Account, but the contract that it agreed to upon opening its Account 7 is not attached to the Complaint or put before the Court with foundation by the Bank’s 8 motion. Bullion opened a BOA direct deposit account and received wire transfers there 9 from its customers. (Compl. ¶¶ 6, 22.) In pursuit of this Account, Bullion submitted an 10 online application and specified the Account would be used as a “precious metals dealer 11 account” on the “bank’s pre-populated data form.” (Id. ¶ 22.) The Complaint alleges 12 that, as part of this Account creation process, BOA represented that it would be able to 13 handle Bullion’s wire transfer business practices. (Id.) Bullion “agreed to open an 14 Account with B.O.A.” (Id.) The allegations necessitate the parties’ agreement to open a 15 direct deposit account.2 The specific terms of that agreement are not included in the 16 Complaint or its attachments or in the moving papers. 17 Also, the deposit agreement between the parties is specifically referenced in letters 18 between counsel and attached to the Complaint. (See id. Exh. 1 (referencing “Bullion’s 19 BOA Account”), Exh. A (a redacted copy of Bullion’s BOA Account statement), Exh. 2 20 (BOA’s counsel’s letter referencing Bullion’s deposit agreement with the bank and 21 stating that Bullion’s “CEO, Kyle Horn, acknowledged [that Bullion] agreed its account 22 would be ‘maintained in the name of the Business with the Bank in accordance with the 23 terms of the applicable Deposit Agreement’”), Exh. 3 (Bullion’s counsel’s letter 24 disputing the accuracy and enforceability of the Deposit Agreement attached to BOA’s 25
26 2 Also, that BOA and its account holders enter a deposit agreement is further implied by Bullion’s 27 allegations with regard to the alleged historical scams. Those allegations and the attached Consent Orders by the Consumer Financial Protection Bureau identify the deposit agreements between the bank 28 1 counsel’s letter because counsel admitted the agreement was created after Bullion opened 2 its account).) The Complaint and its attachments on their own do not provide the terms 3 of the deposit agreement between the parties. (Id.) Based on the Complaint and the 4 briefing, the parties disagree about the accuracy or applicability of the form direct deposit 5 agreement to Bullion and the enforceability of its terms. 6 7 C. Causes of Action 8 The Complaint identifies seven causes of action, (1) declaratory relief, (2) receipt 9 of stolen property under Cal. Penal Code § 496, (3) indebitatus assumpsit, (4) intentional 10 interference with contractual relationships, (5) intentional interference with prospective 11 economic relations, (6) negligent interference with prospective economic relations, and 12 (7) violation of Cal. Bus. & Prof. Code § 17200. (Compl. ¶¶ 70–126.) All of these 13 claims arise from Bullion’s Account, the Bank’s conduct in freezing (and allegedly 14 stealing) funds from the Account on suspicion of fraud, and the Bank’s alleged pattern of 15 unlawful conduct harming its customers, including Bullion. (See id. ¶¶ 75, 76, 121–26; 16 see also id. at Exh. A (March 2025 Bank Statement [Doc. 21 at 51]).) 17 18 II. LEGAL STANDARDS 19 Federal Rule of Civil Procedure 12(b)(6) allows a defendant to file a motion to 20 dismiss a complaint for failing “to state a claim upon which relief can be granted.” Fed. 21 R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the complaint’s 22 sufficiency. N. Star Int’l v. Ariz. Corp. Comm’n., 720 F.2d 578, 581 (9th Cir. 1983). A 23 complaint may be dismissed as a matter of law either for lack of a cognizable legal theory 24 or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, 25 Inc., 749 F.2d 530, 534 (9th Cir. 1984). In evaluating the motion, the Court must assume 26 the truth of all factual allegations and must “construe them in light most favorable to the 27 nonmoving party.” Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002). 28 1 To survive a motion to dismiss, a complaint must contain “a short and plain 2 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 3 8(a)(2). The Supreme Court has interpreted this rule to mean that “[f]actual allegations 4 must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. 5 Twombly, 550 U.S. 554, 555 (2007). The allegations in the complaint must “contain 6 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 7 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 8 Although well-pled allegations in the complaint are assumed true, a court is not required 9 to accept legal conclusions couched as facts, unwarranted deductions, or unreasonable 10 inferences. Papasan v. Allain, 478 U.S. 265, 286 (1986); Sprewell v. Golden State 11 Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “[O]nly a complaint that states a plausible 12 claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679. 13 14 III. ANALYSIS 15 A. Defenses That Rely on the Deposit Agreement Between the Parties May Not Be Considered At This Stage 16
17 At the outset, the Court addresses the deposit agreement governing Bullion’s 18 Account. The allegations depend upon the existence of some deposit agreement to open 19 Bullion’s Account. The agreement governing the Account underpins the facts and claims 20 alleged throughout the Complaint, primarily, the wire transfers of funds into the Account, 21 BOA’s withdrawal of funds from the Account, and the Bank’s determination to freeze the 22 Account. (Compl. ¶¶ 6, 22.) Plaintiff attaches no deposit agreement governing the 23 Account that forms the basis of its Complaint and allegations. In this circumstance, a 24 defendant might have requested the Court’s consideration of the deposit agreement 25 between the parties by judicial notice or under the doctrine of incorporation by reference. 26 See generally Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018) 27 (“incorporation-by-reference is a judicially created doctrine that treats certain documents 28 1 as though they are part of the complaint itself,” in part to prevent the omission of 2 necessary documents). 3 Here, however, the Court will not review the form deposit agreement BOA 4 attaches to its motion because BOA failed to offer any evidence showing that both parties 5 agreed to the contract and failed to show that the dates of the contract apply to the 6 Account. BOA attaches a copy of a deposit agreement with no signatory page and 7 without any indication of Bullion’s agreement to BOA’s form terms. (McCormick Decl. 8 [Doc. 23-2] at 8–77.) 9 Attached as an exhibit to the motion to dismiss is a July 16, 2025, letter from 10 BOA’s counsel to Bullion’s counsel. (Id.) The letter confirms that Bullion’s Account 11 had been closed, (McCormick Decl. at 4), as alleged by Bullion, and purports to 12 demonstrate that “Plaintiff’s CEO, Kyle Horn, acknowledged on [Plaintiff’s] behalf that 13 [Plaintiff] agreed that its account would be ‘maintained in the name of the Business with 14 the Bank in accordance with the terms of the applicable Deposit Agreement.’ A copy of 15 that acknowledgment is attached.” (Id.) No such acknowledgment by Kyle Horn appears 16 in the McCormick Declaration. (See id. at 5–79.) Instead, the exhibit contains a form 17 copy of Bank of America’s “Deposit Agreement and Disclosures” effective as of 18 February 14, 2025, after the date the Account was opened, that is, January 17, 2024. (See 19 id. at 8; Compl. ¶ 22.) The exhibit also contains four copies of a letter from BOA to 20 Plaintiff on April 9, 2025, confirming that the account is closed and that money would 21 not be returned to the account holder at that time, under the terms of the Deposit 22 agreement, while the review of the transactions and source of the funds proceeded. 23 (McCormick Declaration at 6–7, 78, 79.) Nothing in support of the Bank’s motion to 24 dismiss connects BOA’s Deposit Agreement and Disclosures with either Bullion or Kyle 25 Horn, outside of the statement of BOA’s counsel. (See id. at 4.) Likewise, nothing in 26 support of the Bank’s motion connects Bullion’s agreement to terms effective when the 27 Account was opened. (See id.) 28 1 In relevant part, the Complaint alleges that Plaintiff (1) “submitted an online 2 application and specified that the account would be utilized as a ‘precious metals dealer 3 account’ in accordance with the bank’s pre-populated data form,” (2) opened the Account 4 at BOA, and (3) was dependent solely on that Account to do its business. (Compl. ¶¶ 22– 5 23.) In light of these allegations, it is reasonable to infer that some agreement was 6 entered. (Id. ¶¶ 2, 5–7, 22–23.) However, the Court would be speculating to suggest 7 how the agreement may have been signed or acknowledged or what terms the agreement 8 contained. There are no facts before the Court to permit an interpretation of the terms or 9 acknowledgments that Kyle Horn or Bullion may or may not have agreed to. 10 Although the averments of counsel would also be insufficient to demonstrate the 11 existence of an agreement between the parties, defense counsel’s declaration here is silent 12 about the foundation of the Deposit Agreement’s application to Bullion. (McCormick 13 Decl. at 2 (“I . . . attached a copy of [the Bank’s] deposit agreement.”).) Neither is there 14 any evidence to support that the parties entered the agreement by digital signature or 15 digital acknowledgment. (See id.) In its reply, BOA argues that the deposit agreement is 16 publicly available. (Reply [Doc. 26] at 2, 6.) However, BOA does not point to any 17 publicly available document demonstrating that Bullion agreed to specific terms or a 18 specific contract. 19 Accordingly, BOA’s defenses dependent on the existence or terms of a deposit 20 agreement must fail, until such time as the contract or deposit agreement both parties 21 entered is properly before the Court. For now, these unavailable defenses are: (1) BOA 22 has a right to hold Bullion’s funds based on the parties’ deposit agreement, and (2) 23 Bullion’s claims for relief are limited to those sounding in contract. (See Motion at 6–8, 24 8–9.) 25 To be clear, Bullion’s allegations are dependent upon the existence of the parties’ 26 agreement to open a direct deposit account permitting wire transfers. (Compl. ¶¶ 2, 5–6, 27 22–23.) The parties’ relationship is governed in part by California law. Under California 28 law, “the relationship between a bank and its depositor is not fiduciary in character but, 1 rather, founded on contract, ordinarily memorialized by a signature card that the 2 depositor signs upon opening the account.” Wartell v. Wells Fargo Bank, N.A., 755 F. 3 Supp. 3d 1252, 1257 (N.D. Cal. 2024) (quoting Kurtz-Ahlers, LLC v. Bank of Am., N.A., 4 48 Cal. App. 5th 952, 956 (2020). Moreover, California law provides that “the 5 relationship between a bank and its depositor is one of debtor and creditor.” Crocker- 6 Citizens Nat. Bank v. Control Metals Corp., 566 F.2d 631, 637 (9th Cir. 1977) (overruled 7 in part on other grounds); Kurtz-Ahlers, 48 Cal. App. 5th at 956. 3 However, the Court 8 will not infer the terms of that agreement from a general form contract on BOA’s 9 Website, one which does not demonstrate that both parties agreed to its terms. Next, the 10 Court addresses the sufficiency of Plaintiff’s causes of action. 11 12 B. Declaratory Relief 13 Bullion’s first cause of action for declaratory relief arises from BOA’s wrongful 14 determination that Bullion’s business or transactions were fraudulent after BOA’s 15 investigation into the transactions of Customers 1 and 2. (Compl. ¶ 71.) Bullion alleges 16 that BOA made false statements to other banking institutions about Bullion based upon 17 its wrongful determination of fraud. (Id. ¶ 72.) Bullion seeks a judicial declaration that 18 Bullion did not commit fraud against Customer 1 or 2. (Id. ¶¶ 71, 72.) The Bank moves 19 to dismiss the declaratory relief claim on the grounds that it is duplicative and it fails as a 20 matter of law because it does not seek to redress future harm, as required. 21 22 23 24 3 In response, Bullion argues that the Complaint does not plead the existence of a contract or deposit 25 agreement. The existence of an agreement between the parties is reasonably inferred from the allegations that Bullion opened an account and used the Account as its only means to receive wired 26 transfers from its customers. (Compl. ¶¶ 5–7, 9, 48–49, 114–15.) The crux of the dispute presented by the motion to dismiss is the absence of a controlling contract. Bullion argues, but does not allege, that 27 either a deposit agreement did not exist or is unenforceable. The Bank, presumably the party with the best access to the contract governing Bullion’s Account, has not yet demonstrated the contract or terms 28 1 Under the Declaratory Judgment Act, “any court of the United States . . . may 2 declare the rights and other legal relations of any interested party seeking such 3 declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a); 4 Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007). However, “[a] court may 5 dismiss a claim for declaratory relief if it is duplicative of, substantially similar to, or 6 commensurate with relief sought under another cause of action.” In re Albert-Sheridan, 7 658 B.R. 516, 543 (B.A.P. 9th Cir. 2024) (citation omitted). For example, “[w]here a 8 breach of contract claim resolves all questions regarding contract interpretation, 9 declaratory relief may be duplicative and inappropriate.” Fine v. Kansas City Life Ins. 10 Co., 627 F. Supp. 3d 1153, 1164 (C.D. Cal. 2022) (citations omitted). Ultimately, “[t]he 11 decision to grant declaratory relief is a matter of discretion even when the court is 12 presented with a justiciable controversy.” United States v. Washington, 759 F.2d 1353, 13 1356 (9th Cir. 1985) (citations omitted). 14 Here, the Complaint alleges facts specific to the declaratory relief claim beyond 15 those relevant to the other causes of action. Bullion alleges an ongoing controversy 16 based upon the allegedly wrongful determination that Bullion’s dealings with Customers 17 1 and 2 was fraudulent. (Compl. ¶¶ 71, 72.) Bullion alleges that this wrongdoing 18 impacted its ability to secure another deposit agreement based on “false statements” the 19 Bank made to other financial institutions. (Id. ¶ 71.) Viewed in the light most favorable 20 to Bullion, these allegations are sufficient to allege that the claim for declaratory relief is 21 not wholly duplicative and that it is not limited only to past wrongs. The allegation that 22 the controversy continues as of the date of the Complaint’s filing, while not dispositive, 23 weighs in favor of permitting the declaratory relief claim to survive the pleading stage. 24 Accordingly, the Court denies the motion to dismiss the claim for declaratory relief. 25 26 C. Receipt of Stolen Property under Cal. Penal Code § 496 27 Plaintiff’s second cause of action for receipt of stolen property under California 28 Penal Code § 496 governs the receipt or concealment of stolen property. Subsection (a) 1 provides in relevant part that “[e]very person who [] receives any property that has been 2 stolen or that has been obtained in any manner constituting theft . . ., knowing the 3 property to be so stolen or obtained . . . shall be punished by imprisonment. . . .” Cal. 4 Penal Code § 496(a); ; see also Bell v. Feibush, 212 Cal. App. 4th 1041, 1047 (2013); 5 Siry Inv., LP v. Farkhondehpour, 13 Cal. 5th 333, 349–50 (2022). A civil cause of action 6 lies for any “person who has been injured by a violation of subdivision (a).” Id. at 7 § 496(c). 8 BOA argues that this claim must be dismissed because there is no allegation BOA 9 knew the money was stolen when it was deposited into the Account, and this omission 10 cannot be remedied by amendment because Bullion alleges that each transaction 11 underlying the deposits of Customers 1, 2, and 3 were lawful and the funds deposited into 12 Bullion’s account were not fraudulently obtained. Put another way, BOA argues that 13 Bullion must either lose its receipt of stolen property claim or reverse its factual 14 allegations regarding the lawfulness of the underlying transactions. Bullion’s theory is 15 that BOA violates § 496 by withholding funds from Bullion’s account after stealing those 16 funds from Bullion initially—in other words, the withdrawal by the Bank is the initial 17 stealing and its refusal to return the money on Bullion’s demand is a withholding made 18 actionable by § 496. See Cal. Penal Code § 496(a) (“Every person who . . . withholds, or 19 aids in . . . withholding any property from the owner, knowing the property to be so 20 stolen” is liable); see also Bell v. Feibush, 212 Cal. App. 4th 1041, 1049 (2013) 21 (defendant “violated section 496(a) ... by withholding that property when [plaintiff] asked 22 for it back”). 23 The Complaint alleges that BOA “falsely and wrongfully stole approximately 24 $49,526.90 of Bullion’s money related to Customer 3’s deposit which was to be utilized 25 to purchase five bars of Platinum [] as well as an additional $741.01 which was already in 26 the account. (Compl. ¶ 75.) Bullion alleges two “theft-based schemes” by Defendant as 27 alternate or joint theories to satisfy the statute’s requirement that the property “has been 28 obtained in any manner constituting theft,” Cal. Penal Code § 496(a). (Id. § 76.) 1 First, Bullion alleged a “theft through false pretenses” scheme committed by BOA 2 as one basis for demonstrating the stolen element of its § 496 claim. (Id. ¶¶ 76-77.) To 3 support theft by false pretenses, a plaintiff must show that “the defendant made a false 4 pretense or representation with intent to defraud the owner of its property, and that the 5 owner was in fact defrauded. It is unnecessary to prove that the defendant benefitted 6 personally . . . . The false pretense or representation must have materially influenced the 7 owner to party with its property, but the false pretense need not be the sole inducing 8 cause.” Sina v. Schwartz Inv. Co, LLC, 2025 Cal. Super. LEXIS 57490, at *5 (Sep. 30, 9 2025) (citing People v. Ashley, 42 Cal.2d 246, 259 (1954); People v. Hartley, 248 Cal. 10 App. 4th 620 (2016); People v. Miller, 81 Cal. App. 4th 1427 (2000). 11 Here, the “theft by false pretenses” allegedly occurred when BOA “lured Bullion 12 into making additional deposits which B.O.A. would then ‘Freeze’—aka steal—without 13 performing an adequate investigation.” (Id.) Bullion states that (1) it has produced 14 evidence that the Account is not “subject to fraud” and (2) that based upon this 15 information, agents of the Bank’s fraud prevention department closed fraud 16 investigations into transactions with Customers 1 and 2. (Id. ¶¶ 77–78.) Finally, Bullion 17 alleged that BOA has no good faith basis to withhold the money demanded and that its 18 illegal intent is consistent with historic violations of law against customers not allegedly 19 including or related to Bullion, including a theft of more than $727,000,000 in historical 20 credit card and garnishment scams. (Id. ¶ 78.) 21 Second, Plaintiff alleged an embezzlement scheme as an additional or alternative 22 basis for demonstrating the stolen element of this claim. Under the embezzlement 23 scheme, BOA decided during the process of closing Bullion’s account that it never needs 24 to return the money taken from the Account. (Id. ¶ 78.) Bullion has not consented to 25 this taking and instead demands the money. (Id.) Despite this demand, according to the 26 Complaint, BOA falsely and fraudulently claims it is entitled to hold the money as long 27 as it believes the Account was “subject to fraud” or other improper conduct, similarly to 28 its conduct in the alleged, historical credit card scam and garnishment scam. (Id.) BOA 1 never had a legitimate basis to believe the Account was “subject to fraud” or improper 2 conduct because BOA never properly investigated such conduct. (Id. ¶ 78.) Bullion 3 further alleges that BOA’s theft has “been authorized, ratified, and consented to” by 4 BOA’s “highest levels as demonstrated by the statements made by its counsel” in the 5 letters attached to the Complaint. (Id. ¶ 81.) 6 To state a claim for receipt of stolen property, a plaintiff must plead three 7 elements: “(a) the property was stolen, and (b) the defendant was in possession of it, (c) 8 knowing it was stolen.” Verdugo-Gonzalez v. Holder, 581 F.3d 1059, 1061 (9th Cir. 9 2009) (citing People v. Anderson, 210 Cal. App. 3d 414, 420 (1989)). The Bank argues 10 the claim must be dismissed because Bullion must allege, and it has not, that BOA knew 11 that the funds (the “approximately $49,526.90 [] related to Customer 3’s deposit 12 [“Customer 3’s Deposit”] . . . as well as an additional $741.01 which was already in the 13 [A]ccount”) were stolen when they were deposited. “A necessary element of receipt of 14 stolen property is the defendant’s actual knowledge at the time of receipt that the property 15 was stolen.” La Tech. & Consulting, LLC v. Am. Express Co., 2023 U.S. App. LEXIS 16 31225, at *2, 2023 WL 8166780 (9th Cir. Nov. 24, 2023) (citing People v. Tessman, 223 17 Cal. App. 4th 1293 (Cal. Ct. App. 2014)). Bullion provides legal authority for the 18 sufficiency of its § 496 claim, but it does not respond to the challenge that it must plead 19 the fact that BOA actually knew the funds were stolen at the time they were received, that 20 is, deposited. 21 The Complaint does not allege that BOA knew the stolen nature of the funds at the 22 time that it received them. (Compl. ¶¶ 74–81.) Rather, Bullion attempts to plead BOA’s 23 wrongful intent prior to Customer 3’s Deposit through one or both of two schemes of 24 theft through false pretenses or embezzlement. (Id.) Bullion makes no allegation 25 regarding BOA’s knowledge of the stolen nature of the $741.01 already in the Account at 26 the time of Customer 3’s Deposit. (See id.) Under California law, Bullion failed to plead 27 sufficient factual allegations to state a claim under § 496 regarding Customer 3’s Deposit 28 1 and the additional $741.01. However, the Court will grant leave to amend as it is 2 conceivable that these pleading deficiencies could be cured by amendment. 3 4 D. Indebitatus Assumpsit 5 Bullion’s third cause of action is for Indebitatus Assumpsit, or a California 6 common law cause of action for money had and received. See Gutierrez v. Girardi, 194 7 Cal. App. 4th 925, 937 (2011) (a claim for money had and received is stated when “the 8 defendant is indebted to the plaintiff in a certain sum ‘for money had and received by the 9 defendant for the use of the plaintiff’”) (quoting (Schultz v. Harney, 27 Cal. App. 4th 10 1611, 1623 (1994)); see also Philpott v. Superior Ct. in & for Los Angeles Cnty., 1 Cal. 11 2d 512, 517 (1934) (stating “one of the common counts for money had and received, to 12 wit, indebitatus assumpsit”). The Bank moves to dismiss this cause of action on grounds 13 that the contract between the parties permits the Bank to withhold the money, and 14 accordingly Bullion can have no claim that it be returned. (Motion at 8–9.) As explained 15 above, the Bank failed to put before the Court a deposit agreement or other governing 16 contract agreed to by both the Bank and Bullion. On this record, the Court denies the 17 motion to dismiss the third cause of action. 18 19 E. Intentional Interference Claims 20 Bullion’s fourth cause of action is for intentional interference with contractual 21 relationships, and its fifth cause of action is for intentional interference with prospective 22 economic relations (the “intentional interference claims”). According to BOA, both 23 causes of action should be dismissed for two reasons. First, BOA argues the claims fail 24 because Plaintiff failed to allege that BOA possessed the requisite knowledge of 25 Bullion’s relationships with its customers. Second, BOA argues both claims fail because 26 Bullion insufficiently alleged that either BOA desired to interfere or that interference was 27 substantially certain to occur with both claims. 28 1 In California, the intentional interference claims are “related but distinct.” Ixchel 2 Pharma, LLC v. Biogen, Inc., 9 Cal. 5th 1130, 1141 (2020) (addressing at-will contracts). 3 Both claims require a plaintiff plead and prove a defendant’s knowledge of the object of 4 the claim—that is, knowledge of the contract for contractual relationships, on the one 5 hand, and knowledge of the prospective economic relationship, on the other. See id.; 6 Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1153 (2003). Also, both 7 intentional interference claims require a plaintiff to plead and prove a defendant’s intent. 8 “It is not necessary to prove that the defendant acted with the specific intent, or purpose, 9 of disrupting the plaintiff’s prospective economic advantage [or contractual 10 relationship]”; rather, a plaintiff may plead “the defendant knew that the interference was 11 certain or substantially certain to occur as a result of its action.” See San Jose Constr., 12 Inc. v. S.B.C.C., Inc., 155 Cal. App. 4th 1528, 1544–45 (Cal. Ct. App. 2007) (quoting 13 Korea Supply Co., 29 Cal. 4th at 1155–57). 14 First, a claim for intentional interference with contractual relationships “requires 15 allegations of the following elements: ‘(1) a valid contract between plaintiff and a third 16 party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts 17 designed to induce a breach or disruption of the contractual relationship; (4) actual breach 18 or disruption of the contractual relationship; and (5) resulting damage.’” CRST Van 19 Expedited, Inc. v. Werner Enters., Inc., 479 F.3d 1099, 1105 (9th Cir. 2007) (quoting 20 Quelimane Co. v. Stewart Title Guar. Co., 19 Cal.4th 26 (1998)); Ixchel Pharma, 9 21 Cal.5th 1130. A plaintiff must allege the defendant’s “specific knowledge of contracts 22 with third parties.” Sarafan Mobile Ltd. v. Apple, Inc., No. 24-cv-2698-JSW, 2025 U.S. 23 Dist. LEXIS 178530 at *17 (N.D. Cal. July 30, 2025) (citing World Fin. Grp. Ins. Agency 24 v. Olson, No. 24-cv-480-EDJ, 2024 U.S. Dist. LEXIS 127975, 2024 WL 3498490, at 25 *10–11 (N.D. Cal. July 19, 2024)). However, a plaintiff is not required to allege that “the 26 defendant have the specific intent to interfere with a contract. A plaintiff states a claim 27 so long as it alleges the defendant knew that interference was ‘certain or substantially 28 1 certain to occur as a result of [defendant’s] action.’” Ixchel Pharma, 9 Cal. 5th at 675–76 2 (quoting Quelimane Co., 19 Cal. 4th at 56). 3 Second, a claim for intentional interference with prospective economic relations 4 requires a plaintiff “plead and prove (1) an economic relationship between the plaintiff 5 and some third party, with the probability of future economic benefit to the plaintiff; (2) 6 the defendant's knowledge of the relationship; (3) the defendant's intentional acts 7 designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) 8 economic harm to the plaintiff proximately caused by the defendant's acts.” Reeves v. 9 Hanlon, 33 Cal. 4th 1140, 1152, n.6 (2004) (citing Youst v. Longo, 43 Cal.3d 64, 71, n. 6 10 (1987).) 11 In its motion, BOA challenges the sufficiency of both intentional interference 12 claims on the grounds that Bullion insufficiently alleged the Bank’s knowledge of (1) the 13 contract between Bullion and Customer 3 and (2) the Bank’s knowledge of Bullion’s 14 prospective economic relations. 15 With respect to the contractual relationship claim, Bullion alleges that it entered 16 into a contract, on or about March 27, 2025, with Customer 3 for the purchase of 17 approximately $50,000 worth of precious metals. (Compl. ¶ 87.) Bullion alleges without 18 explanation: “Defendant knew of Plaintiff’s contract with Customer 3 by virtue of the 19 facts alleged above.” (Id. ¶ 88.) There is no further factual allegation regarding the 20 Bank’s knowledge of Customer, of Bullion’s contract with any customer on or about that 21 date, or of the sale of precious metals for approximately $50,000. The Complaint alleges 22 that the Bank was aware of (1) the nature of its business as a precious metals dealer, (2) 23 Bullion’s use of wire transfers as part of its business; and (3) Bullion’s transactions with 24 Customers 1 and 2, and of the parties’ dispute about whether any part of those 25 transactions was fraudulent. (Compl. ¶¶ 22, 25–47, 93.) None of these facts, however, 26 permit the plausible inference that BOA was aware of Bullion’s future transaction with 27 Customer 3, beyond the general presumption that Bullion’s business model would 28 continue. 1 “Generalized knowledge that a party has contracts with others is not sufficient to 2 support a claim for intentional interference with contractual relationships.” Trinidade v. 3 Reach Media Grp., LLC, No. 12-cv-4759-PSG, 2013 U.S. Dist. LEXIS 107707, 2013 4 WL 3977034, at *15 (N.D. Cal. July 31, 2013); Winchester Mystery House, LLC v. 5 Global Asylum, Inc., 210 Cal. App. 4th 579, 596–97 (Cal. Ct. App. 2012). Bullion’s 6 position is that the Bank’s knowledge of Customers 1 and 2, combined with its 7 knowledge of Bullion’s business and its need for wire transfers sufficiently demonstrate 8 that the Bank knew “Customer 3’s identity.” (Oppo. at 16, ll. 1–15.) However, there is 9 nothing alleged about the identities of Customers 1 or 2 that identify either Customer 3 to 10 BOA or the terms or nature of Customer 3’s contract with Bullion. The allegations 11 support only that the Bank knew Bullion likely had contractual relationships with third 12 parties, not that it knew the parties’ identities or the terms of those contracts beyond 13 generalized transactions for precious metals. These allegations are insufficiently specific 14 to allege the requisite knowledge element. Viewing the pleading in the light most 15 favorable to Bullion and considering all allegations that precede its statement of the 16 Bank’s knowledge in paragraph 88, there appears no fact supporting the inference that the 17 Bank knew of Customer 3 or Customer 3’s transaction. Although the Court is skeptical 18 that Bullion can allege sufficient facts to satisfy the knowledge element, the Court cannot 19 say that amendment would be futile. Accordingly, leave will be granted for Bullion to 20 amend its allegations regarding the Bank’s knowledge of the contract between Bullion 21 and Customer 3, before the March 27, 2025, transaction. Because the claim for 22 intentional interference with contractual relationship must be dismissed for failure to 23 sufficiently allege a necessary element, the Court need not reach BOA’s other grounds 24 for dismissal. 25 Turning to BOA’s knowledge regarding Bullion’s prospective economic 26 advantage, the Complaint alleges that over $4,000,000 were handled through its BOA 27 Account, and the Bank knew of these transactions. (Compl. ¶ 94–96.) Bullion 28 anticipated at least $4,000,000 in sales per year for the next several years of business and 1 expected between one and two million dollars in sales on March 27, 2025. (Id. ¶ 96–97.) 2 According to the Complaint, the Bank’s knowledge of Bullion’s March 27, 2025, 3 transaction with Customer 3 was based upon, (1) its knowledge of past sales expected to 4 continue, (2) facts arising from the Bank’s investigations into the transactions with 5 Customers 1 and 2, and (3) the fact that Bullion told the Bank that withholding or 6 freezing of funds would have a devastating effect on its business. (Id. ¶¶ 99–100.) 7 However, general and conclusory allegations regarding lost future sales, damage to the 8 relationships between Plaintiff and its customers, or the Bank’s knowledge of the prior 9 fraud investigation and the closure of that investigation in Bullion’s interest do not satisfy 10 the pleading requirements of the knowledge element of this claim. See Sybersound 11 Records v. UAV Corp., 517 F.3d 1137, 1151 (9th Cir. 2008); Vascular Imaging Prof’ls, 12 Inc. v. Digirad Corp., 401 F. Supp. 3d 1005, 1013 (S.D. Cal. 2019). 13 Bullion starts with the conclusions that (1) BOA’s withdrawal of funds from the 14 Account prevented Bullion’s transaction with Customer 3, (2) BOA’s closure of the 15 Account shut down Bullion’s business, which was expected to result in millions of 16 dollars of sales, and (3) the Bank’s closure of the Account cost Bullion then and future 17 business in the form of lost goodwill and being delisted from various industry listings. 18 (Compl. ¶¶ 95–104.) But Bullion has failed to plead facts that demonstrate BOA’s 19 knowledge of the Customer 3 sale or, indeed, of any future customer or specific contract. 20 Iqbal, 556 U.S. at 678 (“[t]hread bare recitations of the elements of a cause of action, 21 supported by mere conclusory statements ... do not suffice” to state a claim). Aside from 22 a cursory reference that “Defendant knew of these [future] sales by virtue of the facts 23 outlined above,” the Complaint lacks any specific factual allegations related to the second 24 element, namely the Bank’s knowledge of any relationship between Bullion and 25 Customer 3 or even of the Bank’s knowledge of any relationship between Bullion and 26 any specific future customer or contract. It is insufficient that Bullion alleges BOA’s 27 knowledge of Bullion’s sales business, knowledge of Bullion’s intent to continue in that 28 sales business, and knowledge based on Bullion’s warning that the loss of its Account 1 would cause devastating harm. Because the claim for intentional interference with 2 prospective economic advantage must be dismissed for failure to sufficiently allege a 3 necessary element, the Court need not reach BOA’s other grounds for dismissal. 4 Although the Court may be skeptical of Bullion’s ability to sufficiently allege BOA’s 5 knowledge of its future economic advantage, it is not clear that amendment would be 6 futile. The Court dismisses the fifth cause of action and will grant leave to amend as it is 7 not clear that Bullion cannot cure the deficiencies. 8 9 F. Negligent Interference With Prospective Economic Relations 10 Bullion’s sixth cause of action is for negligent interference with prospective 11 economic relations. The elements of negligent interference are similar to those of the 12 intentional interference claims, with the critical difference being the requisite mental state 13 of defendants. See Venhaus v. Shultz, 155 Cal. App. 4th 1072, 1077–78 (Cal. Ct. App. 14 2007) (addressing the jury instruction for the tort of negligent interference with 15 prospective economic advantage). 16 “The tort of negligent interference with prospective economic advantage is established where a plaintiff demonstrates that (1) an economic relationship 17 existed between the plaintiff and a third party which contained a reasonably 18 probable future economic benefit or advantage to plaintiff; (2) the defendant knew of the existence of the relationship and was aware or should have been 19 aware that if it did not act with due care its actions would interfere with this 20 relationship and cause plaintiff to lose in whole or in part the probable future economic benefit or advantage of the relationship; (3) the defendant was 21 negligent; and (4) such negligence caused damage to plaintiff in that the 22 relationship was actually interfered with or disrupted and plaintiff lost in whole or in part the economic benefits or advantage reasonably expected 23 from the relationship.” 24 25 Id. at 1078 (quoting N. Am. Chem. Co. v. Superior Court, 59 Cal. App. 4th 764, 786 (Cal. 26 Ct. App. 1997)). 27 As explained with regard to the intentional interference claims above, Bullion may 28 not satisfy its pleading requirement with respect to the knowledge element of negligent 1 interference with general or conclusory allegations. Iqbal, 556 U.S. at 678 (“[t]hread 2 bare recitations of the elements of a cause of action, supported by mere conclusory 3 statements ... do not suffice” to state a claim). It is insufficient to merely allege that BOA 4 knew “of the existence of the [economic relationship between plaintiff and a third party 5 which contained a reasonably probable future economic benefit or advantage to plaintiff] 6 and was aware or should have been aware that if it did not act with due care its actions 7 would interfere with this relationship and cause plaintiff to lose in whole or in part the 8 probable future economic benefit or advantage of the relationship.” Venhaus, 155 Cal. 9 App. 4th at 1078; Iqbal, 556 U.S. at 678. 10 However, Bullion’s allegation with respect to knowledge is sparser than this 11 standard: “Defendant knew of [approximately $4 million in sales which were handled 12 through Plaintiff’s Account over the last year] by virtue of the facts outlined above.” 13 (Compl. ¶¶ 106–107.) As with the intentional interference claims, Bullion alleges that it 14 “repeatedly advised” BOA “of the nature of its business” and of “the devastating effects 15 Defendant’s conduct would have on Plaintiff’s business.” (Id. ¶¶ 110–113.) Bullion also 16 alleged Defendant’s knowledge arising from the prior fraud investigation related to 17 Customers 1 and 2, and of its prior wrongful conduct, determined by prior regulatory 18 findings arising from the alleged historic scams. (Id. ¶ 111, 113.) 19 Bullion failed to allege sufficient facts to support the knowledge element of 20 negligent interference with prospective economic relationships. Having so concluded, 21 the Court need not address BOA’s other grounds for dismissal and grants the motion to 22 dismiss the sixth cause of action. As with the intentional interference claims, however, it 23 cannot be said that amendment would certainly be futile. Accordingly, the Court will 24 grant leave to amend the negligent interference claim. 25 26 G. UCL Claim 27 Bullion’s seventh cause of action is an Unfair Competition Law (“UCL”) claim, or 28 a violation of California Business and Professions Code § 17200. Under the UCL, a 1 business practice is deemed “unfair competition,” and is thus prohibited, if it constitutes 2 either: (1) an unlawful business practice; (2) an unfair business practice; or (3) a 3 fraudulent business practice. See Cal. Bus. & Prof. Code § 17200. Each of these three 4 prongs is a separate and independent cause of action.4 Martinez v. Wells Fargo Home 5 Mrtg., Inc., 598 F.3d 549, 554 (9th Cir. 2010) (citing Cel-Tech Commc’ns, Inc. v. Los 6 Angeles Cellular Tel. Co., 20 Cal.4th 163 (1999)). Furthermore, a “UCL action is 7 equitable in nature; damages cannot be recovered. Korea Supply Co. v. Lockheed Martin 8 Corp., 29 Cal.4th 1134, 943, 1152 (2003) (holding that nonrestitutionary disgorgement of 9 profits is not an available remedy” in a UCL action). “Prevailing plaintiffs are generally 10 limited to injunctive relief and restitution.” Cel-Tech, 20 Cal.4th at 179; see also Korea 11 Supply, 29 Cal.4th at 943, 947, 1152. 12 Here, Bullion alleges the Bank violated the UCL by wrongfully obtaining more 13 than $50,000 from Bullion’s Account, exclusive of fees and other charges, based on the 14 Bank’s “fraudulent, deceptive, and unfair conduct.” (Compl. ¶¶ 119–20.) Bullion alleges 15 that BOA’s historical wrongful or unlawful conduct, as evidenced in the alleged 16 historical scams, demonstrates that BOA has recently been punished and ordered to 17 disgorge similarly wrongfully obtained monies and fees. (Id. ¶¶ 17–21, 89, Compl. at 18 Exh. 3 (letter from Bullion’s counsel to BOA’s counsel).) Bullion prays for 19 “disgorgement of B.O.A.’s ill-gotten gains” and an order enjoining the Bank from 20 continuing to conduct business through fraudulent, deceptive or unfair acts. (Compl. 21 ¶ 120.) 22 First, BOA argues that the Complaint fails to state which of the three prongs of 23 unfair competition is alleged. This is incorrect. The Complaint attempts to allege a claim 24 25
26 4 UCL allegations based on the fraud prong are subject to the pleading requirements of Fed. R. Civ. P. 9. 27 See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009); NJOY, LLC v. Imiracle (HK) Ltd., 760 F. Supp. 3d 1084, 1117 (S.D. Cal. 2024). The Court need not address Rule 9’s application here as 28 1 under all three, as quoted above. (Id. ¶ 120.) The challenge for Bullion’s Complaint is 2 whether its allegations under each prong are sufficient. 3 Second, BOA objects to the generality of Bullion’s factual allegations with respect 4 to unfair competition. The Court agrees. Bullion’s allegations are merely a statement of 5 the three UCL prongs and an allegation that the Bank’s “bad conduct,” which viewing the 6 Complaint in the light most favorable to Bullion includes all preceding allegations of 7 wrongdoing, harmed Bullion by depriving it of more than $50,000 of its Account funds. 8 This allegation of merely “prior bad acts” is insufficient to state a UCL claim, even if it 9 were true that it is remotely possible to connect one of the prior factual allegations of the 10 Bank’s wrongful conduct to Bullion’s loss of some $50,000. See Iqbal, 556 U.S. at 678 11 (“[t]hread bare recitations of the elements of a cause of action, supported by mere 12 conclusory statements ... do not suffice” to state a claim). This failure to adequately 13 plead the connection of BOA’s conduct to each of the prongs of unfair competition, 14 unlawful, unfair, and fraudulent is fatal to Bullion’s UCL claim. A UCL “plaintiff must 15 establish that the practice is either unlawful (i.e., is forbidden by law), unfair (i.e., harm 16 to victim outweighs any benefit) or fraudulent (i.e., is likely to deceive members of the 17 public).” Albillo v. Intermodal Container Servs., Inc., 114 Cal. App. 4th 190, 206 (2003) 18 (citing Olsen v. Breeze, 48 Cal.App.4th 608, 617–618 (1996); Saunders v. Superior 19 Court, 27 Cal.App.4th 832, 839 (1994)). Or, in this case, Bullion must establish which 20 business practice is unlawful, which is unfair, and which is fraudulent, if it chooses to 21 pursue each UCL prong. 22 Finally, BOA argues that the UCL claim must be dismissed in its entirety because, 23 as a claim in equity, it may not be brought in addition to legal claims seeking 24 substantially similar remedies. In BOA’s view, Bullion both fails to allege it lacks an 25 adequate remedy at law and also prays for a remedy at law, disgorgement, as part of its 26 equitable UCL claim. (Motion at 19.) The Court agrees that Bullion has not alleged the 27 absence of an adequate remedy at law and also that the summary prayer for 28 “disgorgement of B.O.A.’s ill-gotten gains” falls within the remedies at law that are 1 unavailable under the UCL. See Korea Supply Co., 29 Cal.4th at 1150–52 (discussing the 2 UCL’s legislative scheme of limiting available remedies). However, Bullion also prays 3 for injunctive relief in the form of an order limiting the Bank’s future conduct. (Compl. 4 ¶ 120.) Neither party addresses the equitable remedy alleged in the Complaint as a basis 5 for the UCL claim to survive dismissal. Having failed to adequately allege the particular 6 BOA business activity that underpins the unfair competition claim, the Complaint’s UCL 7 claim will be dismissed. Because Bullion requests leave to amend, and amendment of the 8 UCL claim is not futile on this record, the Court grants leave to amend the UCL claim. 9 10 H. Jury Trial Demand 11 Bullion did not demand a jury trial in its state court complaint. (Doc. 1-2.) Bullion 12 did not file a separate notice of jury demand after removal. When Bullion filed its 13 operative Complaint pursuant to this Court’s order, it did not include a jury trial demand 14 anywhere in the caption or text of the Complaint itself. Instead, when electronically 15 filing the Complaint, counsel named the docket entry, “AMENDED COMPLAINT with 16 Jury Demand against All Defendants.” (No. 3:25-cv-01299-W-SBC, Bullion Standard, 17 Inc. v. Bank of America, N.A. et al, CM/ECF Docket Report at Doc. 21 (S.D. Cal. Sep. 2, 18 2025).) 19 BOA moves to strike Bullion’s invocation of a jury trial on the docket report. 20 (Motion at 16.) BOA argues the demand for jury trial is waived. BOA provides no 21 citation to Rule 12(f) (governing motions to strike pleadings) and no discussion of Rule 22 12(f)’s application to the jury demand that in this case appears on the CM/ECF docket 23 but not in the caption or text of the Complaint. For these reasons, the Court denies 24 without prejudice the motion to strike. Moreover, even if a jury trial is waived, a “court 25 may, in its discretion upon just terms, allow a trial by jury.” Fed. R. Civ. P. 39(b)–(c), 26 81(c)(3). The resolution of this issue is better addressed at a later stage in the 27 proceedings. 28 I IV. CONCLUSION 2 For the foregoing reasons, the Court denies the motion to dismiss Bullion’s claims 3 || for declaratory relief and indebitatus assumpsit (Claims | and 3). 4 The Court grants the motion to dismiss Bullion’s claims for receipt of stolen 5 || property under Cal. Penal Code § 496, interference with contract or prospective economic 6 relations, and violation of California Business & Professions Code § 17200 (Claims 2, 4— 7 Plaintiff requests leave to amend and 1s granted such leave with respect to the claims 8 || for receipt of stolen property under § 496, interference with contract or prospective 9 || economic relations, and violation of California Business & Professions Code § 17200 10 ||(Claims 2, 4-7). Any amended complaint must be filed on or before March 9, 2026. If 11 || Bullion opts to amend its Complaint, the factual allegations in its second amended 12 complaint must be “consistent with” and may “not contradict the allegations in the 13 original complaint.” United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 14 2011). 15 The Court denies without prejudice the Bank’s motion to strike Bullion’s jury trial 16 || demand. 17 It is so Ordered. 18 Dated: February 17, 2026 \ 19 pe Lor 20 Hn. 1 omas J. Whelan 1 United States District Judge 22 23 24 25 26 27 28