Camacho v. Cunliffe

Opinion

HLD SU CR CURT

3 .. -

5 IN THE SUPERIOR COURT Of GUAM 6 ) MELISSA P. CAMACHO, ) CIVIL CASE NO.: CV0046-20 8 Plaintiff, ) 9 vs. ) ) DECISION AND ORDER: 10 Defendant’s Partial Motion to Dismiss the F. RANDALL CUNLWFE, as Trustee of ) the Pedro R. Pangelinan Trust, aka the fourth Cause of Action in Plaintiff’s First DONGO TRUST, ) Amended Complaint 12 ) Defendant. ) 13

14 I. INTRODUCTION This matter came before the Honorable Judge Maria T. Cenzon upon Defendant F.

Randall Cunliffe’s (“Defendant”) Partial Motion to Dismiss the fourth Cause of Action in 17

18 Plaintiffs First Amended Complaint (the “Motion”)) Defendant is represented by Attorney Joe

19 Razzano. Attorney Rachel Taimanao Ayuyu represents Plaintiff Melissa P. Camacho 20 (“Plaintiff’). 21 After reviewing the Parties’ written briefs and record on file with the court, and the

applicable statutes and case law, the court now issues this Decision and Order GR4NTING IN

24 PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS THE FOURTh CAUSE Of

25 ACTION N PLAINTIFF’S FIRST AMENDED COMPLAINT.

28 Defendant is named in his capacity as Trustee of the Pedro R. Pangelinan Trust aka the Dongo Trust.

Decision and Order Re. Defendant’s Partial Motion to Dismiss the fourth Cause of Action, Civil Case No. CV0046-20: Page 1 of 12 ‘ II. BACKGROUND 7 Plaintiff filed a Verified Complaint on January 21, 2020 alleging that the Defendant, 3 while acting pursuant to his duties as trustee, breached his duty of good faith, engaged in self- 4 dealing, exerted undue influence, failed to provide an accounting, and acted fraudulently. On

6 March 17, 2020, Defendant brought a Partial Motion to Dismiss the Second, Fifth, Sixth, and

Seventh Causes of Action in Plaintiff’s Verified Complaint, arguing that those causes of action $ failed to state a claim for which relief could granted and failed to plead fraud with particularity

and, as such, should have been dismissed. After the Plaintiff filed an Opposition and the

Defendant filed a Reply to the Plaintiffs Opposition, this Court held a hearing on the matter on

12 December 1, 2020. On March 2, 2021, the Court issued a Decision and Order granting 13 Defendant’s Motion to Dismiss the Second Cause of Action for Self-Dealing, and denying 14 Defendant’s Motion to Dismiss the Fifth, Sixth, and Seventh Causes of Action for Fraud. 15 Decision and Order (Mar. 2, 2021). The Court permitted the Plaintiff to amend her Verified i6 17 Complaint in order to cure the deficiencies therein. Id.

18 Plaintiff filed a first Amended Complaint on March 22, 2021 again alleging that the 19 Defendant, acting pursuant to his duties as trustee, breached his duty of good faith, failed to 20 provide an accounting, exerted undue influence, and acted fraudulently. The First Amended 21 Complaint also alleges that the Defendant, as trustee, breached his duty of loyalty. With regard 22

23 to Plaintiff’s Fourth Cause of Action for Fraud, she alleges that sometime during the first three

24 months of 2019, Defendant informed her that the Dongo Trust owed taxes to the Government

of Guam which required the sale of trust corpus, including extremely valuable property in

Urunao. First Amended compi. at p. 6—7 (Mar. 22, 2021). Plaintiff alleges that Defendant, as 27

28 Dongo’s attorney, knew or should have known that the tax liabilities did not belong to the

Decision and Order Re. Defendant’ Partial Motion to Dismiss the fourth cause ofAction, Civil Case No. CV0046-20: Page 2 of 12 I Dongo Trust, or, alternatively, that monthly payments Defendant received from Guam Music

Inc. for Dongo’s distributions were sufficient to satisfy any taxes validly owed by the trust. Id. 3 Plaintiff further alleges that Defendant represented to her that a trust accounting was being 4 finalized and would be provided to Plaintiff, but that no accounting was ever provided. Id.

6 Plaintiff contends that Defendant’s acts and statements were intended to conceal and defraud

her and the other beneficiaries from use and distribution of the trust assets. Id. 8 On March 30, 2021, Defendant brought this Motion pursuant to Guam Rules of Civil

Procedure (“GRCP”) Rules 12(b)(6) and Rule 9(b). He argues that the Fourth Cause of Action io in Plaintiffs First Amended Complaint must be dismissed because Plaintiff has again failed to

12 plead fraud with particularity and because she may not rely on “information and belief’ to meet 13 Rule 9(b) requirements. Mot. at p. 3 (Mar. 30, 2021). Defendant further argues that dismissal 14 should be with prejudice because Plaintiff has now failed twice in pleading fraud. Id. at p. 4. In 15 her April 27, 2021 Opposition to Defendant’s Motion, Plaintiff clarifies that the fraudulent acts 16 17 alleged, i.e., property distribution in violation of the trust, are known only to the Defendant, and

18 that the Defendant’s misrepresentations thereto were intended to induce Plaintiff’s reliance that 19 certain properties and monies would not be distributed for valid trust administration reasons. 20 Opposition at p. 4 (Apr. 27, 2021). In Defendant’s Reply to Plaintiffs Opposition, filed May 21 10, 2021, Defendant reiterates his argument that Plaintiff has not pled enough facts to support 22 23 her fraud claim and additionally argues that Plaintiff may not use her Opposition to supply

24 more facts in an attempt to survive dismissal. Reply to Opp. at p. 2 (May 10, 2021). 25 III. LAW AND ANALYSIS 26 Guam law permits a party to move for dismissal for failure to state a claim upon which 27 relief can be granted. GRCP 12(b)(6). In deciding such a motion, the court must “construe the 28

pleading in the light most favorable to the non-moving party, and resolve all doubts in the non

Decision and Order Re. Defendant’s Partial Motion to Dismiss the Fourth Cause of Action. Civil Case No. CV0046-20: Page 3 of 12 I moving party’s favor.” Taitano v. Calvo Finance Corp. (“Taitano 1”), 2008 Guam 12 ¶ 9

(quoting Ftrst Hawattan Bank v. Manley, 2007 Guam 2 ¶ 9). However, “conclusory allegations 3 of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to 4 state a claim.” Id. (quoting Epstein v. Washington Energy Co., 83 F.3d 1136, 1140 (9th Cir.

6 1996). “Dismissal for failure to state a claim is appropriate only ‘if it appears beyond doubt that

‘

the [non-moving party] can prove no set of facts in support of his claim which would entitle $ him to relief.” Id. (citing Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir. 2007); 9 Zimmenncm v. City’ of Oakland, 255 F.3d 734, 737 (9th Cir. 2001)). 10

Defendant asks the Court to dismiss the Fourth Cause of Action because Plaintiff has

12 failed to meet the heightened particularity standard required to plead claims of fraud. The ‘ elements of fraud are: “(1) a misrepresentation; (2) knowledge of falsity (or scienter); (3) intent 14 to defraud to induce reliance; (4) justifiable reliance; and (5) resulting damages.” Ukau v. 15 Wang, 2016 Guam 26 ¶ 36. Generally, fraud claims are subject to heightened pleading 16

17 standards under GRCP 9(b). See Ukatt, 2016 Guam 26 ¶ 35. Rule 9(b) provides that “[i]n all

1$ averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated i9 with particularity” and that “[m]alice, intent, knowledge, and other conditions of mind of a 20 person may be averred generally.” GRCP 9(b). Rule 9(b) does not require a plaintiff to prove a 21 claim of fraud at the pleading stage. Taitano I, 200$ Guam 12 ¶ 16. “Rather, what is required is 22 23 that a plaintiff set forth his claim with sufficient detail to provide notice to defendants as to

24 what particular fraudulent action is being alleged.” Id. (citing Bly-Magee v. Cal., 236 F.3d 25 1014, 1019 (9th Cir. 1989)). This has been described as a “who, what, when, where, and how” 26 requirement. Ukau, 2016 Guam 26 ¶ 47. 27

Decision and Order Re. Defendant’s Partial Motion to Dismiss the fourth Cause ofAction. Civil Case No. CV0046-20; Page 4 of 12 1 Plaintiffs first Amended Complaint alleges the following in order to establish the

- factual basis for her Fourth Cause of Action for fraud: 3 43. Plaintiff repeats and realleges all above paragraphs. 4

44. On or about the first three months of 2019, during the pendency of Superior Court Probate Case No. PRO 124-18, Defendant informed Plaintiff that the Dongo Trust owed 6 taxes to the government of Guam which required trust corpus to be sold and that he would proceed to sell properties, including extremely valuable property in Urunao. 7

$ 45. Defendant, as Dongo’s attorney, knew or should have known that the tax liabilities did not belong to the Dongo Trust. 9 46. Upon information and belief, Defendant received monthly payments from Guam 10 Music, Inc. for Dongo’s distributions which were sufficient to pay taxes, if they were validly owed by the Trust.

12 47. On or about April 2019, Defendant represented that a trust accounting was being finalized and would be provided to Plaintiff shortly. An accounting was never provided 13 to Plaintiff since. 14 48. Defendant’s acts and statements to Plaintiff and the other beneficiaries were 15 intended to conceal and defraud the beneficiaries from use and distribution of trust assets to them. 16

17 49. Defendant’s actions have damaged Plaintiff in an amount to be determined at trial, but no less than One Million Dollars ($1,000,000). 18 First Amended Compi. ¶it 43—49. Plaintiffs First Amended Complaint also includes an

20 allegation, absent in her Verified Complaint, that “[u]pon information and belief, two or more

21 of Dongo’s properties have been sold to Attorney David Lujan for below market value.” Id. at ¶ 19. 23 In her Opposition to Defendant’s Motion to Dismiss, Plaintiff likens the allegations of 24

25 fraud in her first Amended Complaint to those in the Fifth Cause of Action contained in her

26 original complaint. She argues that she has cured what the Court found to be defective in that

27 original pleading. See Opposition at p. 3. However, apart from the allegation that unknown 28 properties have been sold to Attorney David Lujan and the more specific statement of the

Decision and Order Re. Defendant’s Partial Motion to Dismissthe Fourth cause ofAction, Civil Case No. CV0046-20; PageS of 12 1 timing of Defendant’s alleged misrepresentation, none of the allegations in Plaintiff’s Fourth 7 Cause of Action for fraud provide any new facts that were absent in her original Verified 3 Complaint. In fact, Plaintiff omits in her First Amended Complaint her initial claim that she 4 relied on Defendant’s minimal disclosure of information. See Verified Coinpi. ¶ 47.

6 Plaintiff alleges in her Opposition to Defendant’s Motion to Dismiss that “Defendant’s

misrepresentation was intended to reduce [sic] Plaintiff’s reliance that certain properties and $ monies would not be distributed to herself and the other beneficiaries because of valid trust

administration” and that she was “damaged by the misrepresentation in that she is still left in

the dark about certain transactions such as any payments to tax liabilities in 2019.” Opposition

12 at p. 4. Plaintiff also states more concisely that the fraudulent actions she is alleging Defendant 13 performed was “property distribution in violation of the trust.” Id. Defendant characterizes the 14 inclusion of these averments as an attempt to survive dismissal by supplying additional facts is not included in her First Amended Complaint. See Reply to Opp. at p. 5. 16

17 a. Supplying Additional Facts in Opposition in an Attempt to Avoid Dismissal

18 Defendant argues that the Plaintiff may not use her opposition brief to provide new facts 19 to supplement the allegations in her First Amended Complaint in order to avoid dismissal. 20 Reply Brief at p. 5. “It is axiomatic that a complaint may not be amended by the briefs in 21 opposition to a motion to dismiss.” Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 22

23 (7th Cir. 1984) (citations omitted); Morgan Distributing Co., Inc. v. Unidynamic Corp., 86$

24 F.2d 992, 995 (8th Cir. 1989). A contrary approach would allow a party to unilaterally amend a 25 complaint at will by simply raising a point in a brief. See Morgan Distributing Co., Inc. v. 26 Unidynamic Corp., 86$ F.2d 992, 995 (8th Cir. 1989) (citing Friedman v. Village of Skokie, 27

28 763 F.2d 236, 239 (7th Cir. 1985)). “The proper means of raising claims that have inadvertently

Decision and Order Re. Defendant’s Partial Motion to Dismiss the Fourth Cause ofAction. Civil Case No. CV0046-20: Page 6 of 12 not been raised in the complaint is an amended complaint, not a brief in opposition to a motion 2 to dismiss.” Sansom Committee v. Lynn, 366 F.Supp. 1271, 1278 (ED. Pa. 1973). 3 The Court agrees that the additional facts set forth in Plaintiff’s Opposition may not 4 bootstrap her fraud claim and bootstrap an otherwise deficient complaint. Because of these

6 failures, the Court need not consider those additional facts in considering Defendant’s Motion

to Dismiss and her opposition thereto. 8 b. failure to Plead Fraud with Particularity

Plaintiff’s failure to plead facts alleging reliance on Defendant’s misrepresentations is

dispositive. Because Plaintiff has failed to plead at least one essential element of fraud in her

12 First Amended Complaint, she cannot meet the particularity requirements of Rule 9(b). Even if 13 Plaintiff had properly amended her complaint to include the averments she makes in her 14 Opposition, however, she would still fail to meet the particularity requirements of Rule 9(b). 15 Defendant argues in both his Motion to Dismiss and his Reply to Plaintiffs Opposition 16 17 that Plaintiff has failed to notify Defendant of the what, when, or how for any “acts or

18 statements” made by Defendant that Plaintiff alleges constitute fraud. See Mot. at p. 3; Reply to 19 Opp. at p. 3. This Court agrees with Defendant and notes that, even when considering the 20 averments in her Opposition, Plaintiff has not provided enough facts regarding the 21 circumstances surrounding the fraud. 22

23 For instance, Plaintiff argues in her Opposition that Defendant’s “misrepresentation was

24 intended to reduce [sic] Plaintiff’s reliance that certain properties and monies would not be

distributed to her and the other beneficiaries because of valid trust administration.” Opposition

at p. 4. While this sufficiently pleads the Defendant’s intent to defraud, which need only be 27

28 averred generally, it does not sufficiently describe how the misrepresentation was fraudulent.

Decision and Order Re. Defendant’s Partial Motion to Dismiss the Fourth cause of Action, Civil Case No. CV0046-20; Page 7 of 12 e 1 Plaintiff does not aver what properties and monies were not distributed or what was done with

the undistributed properties and monies. Plaintiff does aver, in her First Cause of Action for 3 breach of good faith, that “[uJpon information and belief, [Defendant] has paid others, from the 4 trust,” First Amend. Compi. ¶ 29, but this pleading also fails to notify Defendant who he is

6 alleged to have paid, when he is alleged to have paid others, and how much he is alleged to

have paid. 8 Further, Plaintiff states in her Opposition that the fraudulent act in which Defendant

engaged was a property distribution puiortedly in violation of the trust. Opposition at p. 4.

Again, however, she fails to make any allegations concerning which properties were distributed

12 or how the distribution of those properties violated the trust. Though she does allege in her 13 amended complaint that “[u]pon information and belief, two or more of Dongo’s properties 14 have been sold to Attorney David Lujan for below market value,” First Amend. CompL ¶ 19, 15 she does not allege when or how the sale was made. Regardless of these failures, this Court 16

17 noted in its prior Decision and Order that “the private sale of trust property for less than fair-

18 market value does not, in and of itself, establish that Defendant has engaged in self-dealing or 19 that he has acted fraudulently.” Decision and Order, dated March 2, 2021, at p. 9. 20 Defendant also argues in his Motion to Dismiss that Plaintiff may not rely upon 21 information and belief to meet the requirements of Rule 9(b). Mot. at p. 3. In response, Plaintiff 22

23 points to this Court’s acknowledgment in its previous Decision and Order that, while claims

24 based on information and belief generally do not meet the heightened standard of particularity 25 required under Rule 9(b), “in instances where there are relevant facts which are known only to 26 the defendant, the pleading standard is slightly relaxed.” Decision and Order at p. $ (Mar. 2, 27

28 2021) (citing Taitano I, 200$ Guam 12 ¶ 15; Concha v. London, 62 F.3d 1493, 1503 (9th Cir.

Decision and Order Re. Defendants Partial Motion to Dismiss the Fourth Cause ofAction. Civil Case No. CV0046-20: Page 8 of 12 1 1995)). Plaintiff misinterprets the Court’s acknowledgement of such limited flexibility as 2 inviting the lower threshold in the instant case. Without addressing the Court’s subsequent 3 statement that “even where allegations concern facts particularly within a defendant’s 4 knowledge, the plaintiffs must still state a factual basis for their belief,” Decision and Order at

6 p. $ (Mar. 2, 2021) (citing Taitano I, 2008 Guam 12 ¶ 15; Nettbronner v. Milken, 6 F.3d 666,

672 (9th Cir. 1993)), Plaintiff argues that because Rule 9(b)’s requirements may be relaxed as 8 to matters that are exclusively within the opposing party’s knowledge, the Court “must apply a

lower threshold of whether Defendant is given sufficient notice of his alleged fraud—i.e., the

11 misrepresentation that the trust was liable and would use trust property to pay for tax liabilities

12 in the first quarter of 2019 and that properties needed to be sold to satisfy those liabilities.” 13 Opposition at p. 4. The Court disagrees that such lowering of this standard is warranted here. 14 Plaintiff relies on Rubenstein v. Neiman Marcus Grottp LLC, 687 Fed.Appx. 564 (9th 15 Cir. 2017), for the proposition that even in jurisdictions applying a heightened Twombly test or 16 17 plausibility test, complaints are not dismissed “where there are enough facts to raise a

18 reasonable expectation that discovery will reveal evidence to support the claims.” Opposition at 19 p. 4. However, the facts of Rubenstein are distinguishable from those in Plaintiff’s case. In 20 Rttbenstein, the 9th Circuit held that the plaintiff’s allegations regarding the fictitious nature of 21 “compared to” prices attached to goods were properly based on information and belief prior to 22

23 discovery where the plaintiff otherwise pled with sufficient particularity the “who, what, when,

24 where, and how” of the defendant’s alleged misconduct. Rubenstein v. Neiman Marcus Group

LLC, 687 Fed.Appx. 564, 567-568 (9th Cir. 2017). Significantly, the plaintiff alleged that she

actually purchased products containing the “compared to” price tags from a specific store on a 27

28 specific date. The plaintiff in Rubenstein pled actual reliance and economic injury.

Decision and Order Re. Defendant’s Partial Motion to Dismiss the fourth cause ofAction, Civil Case No. CV0046-20; Page 9 of 12 Even if the Court considers the averments in her Opposition to supplement the fraud 2 claim (which the Court does not), Plaintiff here has failed to plead justifiable reliance on 3 Defendant’s alleged misrepresentations and any damages resulting from that reliance with 4 sufficient particularity. While discovery may reveal that the trust did not actually owe any

6 taxes, or that trust property did not have to be sold to pay any validly owed taxes, or that

Defendant actually has sold trust property, discovery will not help Plaintiff plead with more 8 particularity the reliance element of her fraud claim. Indeed, it appears that the Plaintiff would

find herself in the same position regardless of the truth of Defendant’s “acts and statements.”

In her Opposition, Plaintiff claims that she “relied on Defendant’s misrepresentation

12 because of his position of trust as a trustee and lawyer for her father” and that she was 13 “damaged by the misrepresentation in that she is still left in the dark about certain transactions 14 such as any payments to tax liabilities in 2019.” Opposition at p. 4. However, Plaintiff fails to 15 describe with particularity what her reliance was or how she would have responded any 16

17 differently had Defendant not made any such alleged misrepresentation. Moreover, she fails to

1$ allege facts which establish Defendant’s intent to defraud in order to induce such reliance. 19 Thus, she falls to satisfy the third and fourth prongs of the elements of fraud as defined in 20 Hemlani v. Flaherty, 2003 Guam 17 ¶9 (“The elements of fraud are: “(1) a misrepresentation; 21 (2) knowledge of falsity (or scienter); (3) intent to defraud to induce reliance; (4) justifiable 22

23 reliance; and (5) resulting damages.”)(citing Transpacific Export Co. v. Oka Towers Corp.,

24 2000 Guam 3 ¶ 23)). Consequently, this Court finds that Plaintiff has failed to plead facts

sufficient to allege a viable claim for fraud, specifically failing to aver facts establishing

justifiable reliance on Defendant’s misrepresentations and an intent by Defendant to induce 27

28 such justifiable reliance.

Decision and Order Re. Defendant’s Partial Motion to Dismiss the fourth Cause of Action, Civil Case No. CV0046-20: Page 10 of 12 . . 1 c. Dismissal With or Without Prejudice. 2 Having found that the Fourth Cause of Action in Plaintiff’s First Amended Complaint 3 was not properly pleaded even when considering the averments improperly made in Plaintiffs 4 Opposition, the Court must now determine whether dismissal with prejudice is appropriate.

6 Under Guam law, leave to amend should be liberally granted. Arashi & Co. v.

Nakashima Enterprises, Inc., 2005 Guam 21 ¶ 16 (citing Fornan v. Davis, 371 U.S. 178, $3 S. $ Ct. 227 (1962)). However, Foman directs courts to review whether certain factors are present 9 which may mitigate against leave to amend, including: “undue delay, bad faith or dilatory 10

motive on the part of the movant, repeated failure to cure deficiencies by amendments

12 previously allowed, undue prejudice to the opposing party by virtue of allowance of the 13 amendment, [or] futility of amendment.” Arashi & Co. v. Nakashirna Enterprises, Inc., 2005 14 Guam 21 ¶ 16. “[T]he court has particularly broad discretion to deny leave to amend if a 15 plaintiff has previously amended the complaint.” Hardinan v. Gov ‘t of Gitam, No. CIV. 10- 16 17 00010, 2011 WL 4901162, at *3 (D. Guam Oct. 14, 2011).

18 In arguing that the Fourth Cause of Action for fraud should be dismissed with prejudice, 19 Defendant emphasizes that “Plaintiffs repeated failure in asserting her fraud claim 20 demonstrates that she does not have any facts that could support any claim for fraud.” Mot. p. 21

22 • However, Plaintiff’s rationale for such failure is that, without an accounting of the trust

23 assets (which she submits Defendant has repeatedly refused her demands to provide), she is

24 only able to allege such facts “upon information and belief.” In support of its motion to dismiss 25 the Amended Complaint with prejudice, Detendant cites to the unreported California case of 26 Yottng v. World Savings Bank, FSB, 2011 WL 3298957 (S.D. Ca. 2011). However, assuming 27

Decision and Order Re. Defendant’s Partial il’Iotion to Dis,niss the fourth Cause ofAction. Civil Case No. CV0046-20; Page 11 of 12 I the Court found that case to be instructive, the court therein dismissed the complaint at issue 2 without prejudice. 3 It is important to note that the Court has analyzed Defendant’s motion to dismiss 4 Plaintiff’s fraud claim under the law governing pleading fraud, in general, with particularity.

6 However, as this Court recognized in its earlier Decision and Order, “under 1$ GCA § 65307,

any violation of the Trustee’s duties as articulated by [Chapter 65, Title 1$, Guam Code 8 Annotated] constztute[s] afraud on behalf of the Trustee.” Decision and Order at p. $ (March

2, 202 l)(emphasis added). Thus, while this Court finds that Plaintiff has failed to plead fraud,

in general, with the requisite particularity, it has not addressed any claim of fraud pursuant to

12 this statute as Plaintiff has advanced no claim in its first Amended Complaint pursuant to 18 13 GCA65207. 14 IV. CONCLUSION 15 For the reasons set forth herein, the Court hereby GRANTS Defendant’s Partial Motion 16 17 to Dismiss the Fourth Cause of Action in Plaintiff’s First Amended Complaint, but DENIES

18 dismissing such claim with prejudice and dismisses Plaintiff’s Fifth Cause of Action in her 19 Amended Complaint WITHOUT PREJUDICE.2 20 SO ORDERED this________________________ 5 2021

atan — copy at tte onginat was emaie a. HO BLE sRIA T. CENZON 74 JUDGE SUPERIOR COURT OF GUAM 3il1 25 Time: Date __—

2 28 Plaintiff has not sought leave to further amend the Complaint and, therefore, the Court does not permit any such amendment absent consideration of such a request by a duly noticed motion to permit such amendment which complies with the Guam Rules of Civil Procedure.

Decision and Order Re. Defendant’s Partial Motion to Dismiss the Fourth C’ause of Action, Civil Case No. CV0046-20: Page 12 of 12