ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS
SAMUEL CONTI, District Judge.
I.
INTRODUCTION
Now before the Court are two motions to dismiss. Defendants Kenneth Alfred Miller (“Miller”) and Sentinel Investment Management Company (“Sentinel”) (collectively, the “Miller Defendants”) filed a Motion to Dismiss. ECF No. 36 (“Miller MTD”). Plaintiff Concorde Equity II, LLC, (“Plaintiff’) filed an Opposition, and the Miller Defendants submitted a Reply. ECF Nos. 41 (“Opp’n to Miller MTD”), 46 (“Miller Reply”). Defendants Loanvest XIII, L.P. (“Loanvest”), South Bay Real Estate Commerce Group (“South Bay”), Peter Scott Carter, Jr. (“Carter”), and George Cresson (“Cresson”) (collectively, the “Loanvest Defendants”) filed a Motion to Dismiss. ECF No. 40 (“Loanvest MTD”). Plaintiff filed an Opposition, and the Loanvest Defendants submitted a Reply. ECF Nos. 48 (“Opp’n to Loanvest MTD”), 51 (“Loanvest Reply”). For the
reasons stated herein, the Court GRANTS IN PART and DENIES IN PART the Miller MTD, and the Court GRANTS IN PART and DENIES IN PART the Loan-vest MTD.
II.
BACKGROUND
The following allegations are taken from Plaintiffs Second Amended Complaint (“SAC”). ECFNo. 34. Plaintiff is a technology investment company.
Id.
¶ 3. This case focuses on two loan transactions that Plaintiff refers to as “the Bretz Transaction,” and “the Roem Transaction.”
Id.
¶¶ 17, 22.
In the Bretz transaction, Plaintiff loaned $270,000 to nonparty borrowers on or around May 5, 2009.
Id.
¶¶ 17-18, 60. The Miller Defendants acted as real estate brokers for Plaintiff in the Bretz transaction.
Id.
¶ 18. Plaintiff alleges that the Miller Defendants failed to adequately investigate the collateral used to secure the loan, and that they falsely represented they had incurred $15,000 in underwriting and legal expenses.
Id.
¶45. The borrowers in the Bretz transaction made a single loan payment to Plaintiff, never made any further payments, and defaulted on the loan.
Id.
¶ 20. Plaintiff has been unable to recover the principal amount of the loan.
Id.
¶ 21.
In the Roem transaction, Plaintiff alleges that it wired $930,000 into an Old Republic Title Company (“Old Republic”) escrow account, and that the Miller Defendants and the Loanvest Defendants took the money out of escrow and used it to fund a loan from Loanvest to Roem Builders and/or Roem Development Company (“Roem”), but that the Miller Defendants and the Loanvest Defendants have not lived up to their representations to Plaintiff concerning its interest or involvement in this loan to Roem.
Id.
¶¶ 22-42.
More specifically, Plaintiff alleges that between September and November 2009, Miller and Cresson had discussions with Rob Fitzgerald (“Fitzgerald”), Plaintiffs managing partner, and they represented that Plaintiff would be entitled to a return of seventeen percent of its investment, as well as three points for loan origination fees and one point on the total loan amount.
Id.
¶¶23, 27, 31. Both Miller and Cresson represented that Cresson and possibly members of Cresson’s family would be participating pro rata with Plaintiff in the Roem loan.
Id.
¶ 24. On September 16, 2009, Fitzgerald travelled to California to meet with Miller and principals of Roem.
Id.
¶ 25.
On October 7, 2009, Miller forwarded Fitzgerald an email containing documents that would form the basis of the Roem loan, including a promissory note, deed of trust, and stock pledge agreements.
Id.
¶ 26. On October 19, 2009, Miller represented in writing to Plaintiff that “you will go direct on title for your pro-rata percentage of the loan by way of an assignment at close. You will be direct on title, with title insurance, when the loan closes.”
Id.
¶ 27. On or about October 21, 2009, Plaintiff wired $930,000 into an Old Republic escrow account, with the intent that it would represent one-fourth of the total Roem loan.
Id.
¶ 29.
On November 10, 2009, Cresson advised Fitzgerald that the first disbursement of the Roem loan was being reduced from $4 million to $2 million.
Id.
¶¶ 30-31. In response, Fitzgerald wrote to Cresson, on November 11, 2009, confirming their dis
cussions regarding points, interest, collateral, and amounts.
Id.
¶ 32. Fitzgerald sought to have Plaintiffs participation in the loan cut in half, and asked for the return of $460,000.
Id.
Cresson did not respond to Fitzgerald’s email, and Fitzgerald wrote to Miller on November 13, 2009.
Id.
¶ 33. On November 14, 2009, Fitzgerald wrote to both Miller and Cresson demanding the immediate return of Plaintiffs money.
Id.
¶ 35.
On November 14, 2009, Miller called Fitzgerald to express concern about Fitzgerald’s request for the money to be returned.
Id.
¶ 36. On November 16, 2009, Miller informed Fitzgerald that Plaintiffs money was removed from the escrow account without Fitzgerald’s permission, and that the money was used to fund the loan from Loanvest to Roem, which closed on November 13, 2009.
Id.
¶¶ 37-42. Carter signed the loan documentation, as manager of South Bay, and as Managing General Partner of Loanvest.
Id.
¶ 34. Plaintiff alleges that Carter and South Bay participated in, and took steps in furtherance of, removing Plaintiffs money from the escrow account without Fitzgerald’s permission.
Id.
¶ 38. Miller told Fitzgerald that Plaintiff did not have any interest in the Roem loan, was not secured in any way, and was not going to be direct on title, with title insurance.
Id.
¶ 40. Miller told Fitzgerald, “Let’s pretend it was a personal loan to me.”
Id.
¶ 37.
Plaintiff commenced this action in state court, and the case was removed to federal court on March 11, 2010.
See
Docket No. 1 (“Notice of Removal”). In the SAC, Plaintiff asserts fifteen causes of action against the Miller Defendants, the Loan-vest Defendants, and the Old Republic Title Company, including fraud, negligent misrepresentation, violations of the Racketeer Influenced and Corrupt Organization Act (“RICO”), and breach of contract. SAC ¶¶ 43-135. The Miller Defendants and the Loanvest Defendants move to dismiss Plaintiffs SAC.
III.
LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim.”
Navarro v. Block,
250 F.3d 729, 732 (9th Cir.2001). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.
Balistreri v. Pacifica Police Dep’t,
901 F.2d 696, 699 (9th Cir.1988). Allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.
Cahill v. Liberty Mutual Ins. Co.,
80 F.3d 336, 337-38 (9th Cir.1996). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal,
— U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing
Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”
Iqbal,
129 S.Ct. at 1950. A motion to dismiss should be granted if the plaintiff fails to proffer “enough facts to ... nudge[ ] their claims across the line from conceivable to plausible.”
Twombly,
550 U.S. at 570, 127 S.Ct. 1955.
IV.
DISCUSSION
A. Fraud
Plaintiff accuses Miller, Sentinel, Cresson, Loanvest, Carter, and South Bay of fraud. SAC ¶¶ 43-55. In California, the elements of fraud are: (a) a misrepresentation by the defendant to the plaintiff;
(b) the defendant’s knowledge of its falsity; (c) the defendant’s intent to defraud; (d) the plaintiffs justifiable reliance; and (e) the plaintiffs resulting damage.
Lazar v. Super. Ct.,
12 Cal.4th 631, 638, 49 Cal.Rptr.2d 377, 909 P.2d 981 (1996). Plaintiff “must state with particularity the circumstances constituting fraud .... ” Fed. R.Civ.P. 9(b). Plaintiff must include “the who, what, when, where, and how” of the fraud.
Vess v. Ciba-Geigy Corp. USA,
317 F.3d 1097, 1106 (9th Cir.2003) (citations omitted). “The plaintiff must set forth what is false or misleading about a statement, and why it is false.”
In re GlenFed, Inc. Sec. Litig.,
42 F.3d 1541, 1548 (9th Cir.1994). While there is no requirement that the complaint identify false statements made by each and every defendant, the plaintiff must identify the role of each defendant in the alleged fraudulent scheme.
Swartz v. KPMG LLP,
476 F.3d 756, 764-65 (9th Cir.2007).
The Court finds that Plaintiffs SAC alleges a plausible fraud claim against the Miller Defendants. With regard to the Bretz transaction, the SAC alleges that Miller and Sentinel acted as real estate brokers for Plaintiff in the transaction. SAC ¶ 18. Miller is the sole owner of Sentinel.
Id.
¶ 5. Plaintiff alleges that they misrepresented that they adequately investigated the collateral used to secure Plaintiffs loan, and they misrepresented that they incurred $15,000 in underwriting and legal expenses.
Id.
¶¶ 45-46. Plaintiff alleges the misrepresentations were made to induce Plaintiff to lend $270,000 to non-party borrowers, who subsequently defaulted on the loans. SAC ¶¶ 20, 46, 60. Whether there is evidence to support these allegations is another matter, but the allegations are sufficient to survive a motion to dismiss.
With regard to the Roem transaction, Plaintiff alleges that it wired $930,000 into an escrow account based on misrepresentations by Miller, including that Plaintiff would be entitled to a return of seventeen percent on the investment.
Id.
¶¶ 27, 29, 47, 48. After the money was removed from escrow without Plaintiffs permission, Miller told Plaintiffs managing partner that Plaintiff had no interest in the loan from Loanvest to Roem, and Miller stated “Let’s pretend it was a personal loan to me.”
Id.
¶¶ 37, 40. The allegations in the SAC state with particularity the circumstances constituting the alleged fraud, and they are sufficient to state plausible fraud claims against Miller and Sentinel with regard to the Roem transaction.
The SAC does not allege that the Loan-vest Defendants were involved in the Bretz transaction. As such, the Loanvest Defendants cannot be held liable for fraud related to the Bretz transaction.
However, the SAC does allege a plausible fraud claim against the Loanvest Defendants with respect to the Roem transaction. Plaintiff alleges that Carter is the owner and operator of South Bay, and the managing general partner of Loanvest.
Id.
¶ 10. Plaintiff alleges that Miller and Cresson are the alter egos of Loanvest, the entity that loaned money to Roem.
Id.
¶ 11, 22. Plaintiff alleges that it wired $930,000 into an escrow account based on misrepresentations by Cresson, including that Plaintiff would be entitled to a return of seventeen percent on the investment.
Id.
¶¶ 23, 24, 26, 29, 47, 49. It is alleged that Carter and South Bay participated in removing Plaintiffs money from the escrow account without Plaintiffs permission.
Id.
¶ 38, 54. These allegations state with particularity the circumstances constituting fraud, and they identify the role of each of the Loanvest Defendants in the alleged fraudulent scheme.
The Loanvest Defendants contend that Plaintiff could not have relied on any representations by Cresson when wiring the
$930,000 into the escrow account because Cresson’s representations concerning his family’s participation in the Roem loan were not material misrepresentations, and Cresson’s November 10 email confirming Plaintiffs participation in the Roem loan occurred after Plaintiff had already wired the money. Loanvest MTD at 4-5. However, the SAC alleges that “[d]iu\ing the course of many telephone conversations [between September and November 2009], CRESSON and MILLER represented to Fitzgerald that CONCORDE EQUITY II’s participation in the ROEM LOAN would entitle it to a return of seventeen percent on the contributed money, as well as three points for loan origination fees plus one point on the total loan amount.” SAC ¶ 23. Construing this allegation in the light most favorable to the nonmoving party, the Court infers that at least some of these telephone conversations between Cresson and Fitzgerald occurred before the money was wired into escrow and that Fitzgerald relied on these conversations when wiring the money.
Without knowing more about the nature of the Roem loan, it is too early for the Court to determine whether Cresson’s alleged representations concerning his family’s participation in the Roem loan were or were not material misrepresentations. Plaintiffs SAC focuses on Cresson’s representation that Plaintiff would receive a return of seventeen percent, as well as points for participation in the Roem loan,
id.
¶ 49, and Plaintiff alleges he relied on these representations when he wired the money into the escrow account,
id.
¶ 51. These allegations are sufficient to state a fraud claim against Cresson, and Plaintiffs allegations that Carter and South Bay participated in removing the money from the escrow account are sufficient to identify them role in the alleged fraudulent scheme. Whether there is evidence to support these allegations is a question for another day, but they are sufficient to survive a motion to dismiss. The Coxrnt DENIES the Loanvest Defendants’ motion to dismiss Plaintiffs first cause of action.
B.
Negligent Misrepresentation
Plaintiffs second cause of action asserts a claim for negligent misrepresentation against Miller, Cresson, Loanvest and Sentinel. The elements of negligent misrepresentation are: (1) misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) -with intent to induce another’s reliance on the misrepresentation, (4) ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed, and (5) resulting damage.
Glenn K. Jackson Inc. v. Roe,
273 F.3d 1192, 1200 n. 2 (9th Cir.2001).
The SAC alleges that Miller and Cresson are the alter egos of Loanvest, and the SAC also alleges that Miller is the sole owner of Sentinel. SAC ¶¶ 5, 11. The SAC alleges misrepresentations by Miller and Sentinel with respect to the Bretz transaction.
Id.
¶¶ 18-19. Plaintiff claims to have suffered losses as a result of its reliance on Miller and Sentinel’s representations concerning the collateral used to secure the loan in the Bretz transaction.
Id.
¶¶ 19-20, 60. As explained above, the SAC also contains numerous allegations that Miller and Cresson misrepresented the terms of Plaintiffs participation in the Roem transaction, and that Plaintiff relied on these misrepresentations when wiring $930,000 into the escrow account.
See id.
¶¶ 22-42. Plaintiff alleges it was deprived of its expected participatory interest in the Roem loan, despite the use of its money, and despite Miller’s and Cresson’s representations to the contrary.
Id.
These factual allegations are sufficient to lend plausibility to Plaintiffs claim for negligent misrepresentation against Miller, Cresson, Loanvest and Sentinel. The Coxxrt DE
NIES the requests to dismiss Plaintiffs second cause of action filed by the Miller Defendants and the Loanvest Defendants.
C.
Violation of RICO
Plaintiffs third cause of action alleges that Miller, Cresson, South Bay and Carter violated RICO. The four elements of a RICO violation are: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.
Jarvis v. Regan,
833 F.2d 149, 151 (9th Cir.1987).
Here, Plaintiff fails to allege a pattern of racketeering activity. There can be no pattern of racketeering under RICO absent the perpetration of at least two predicate acts of racketeering activity within a ten-year period.
H.J. Inc. v. Northwestern Bell Tel. Co.,
492 U.S. 229, 232, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). While allegations of two or more predicate acts are a necessary condition to the establishment of a pattern, they are not sufficient; “it must also be shown that the predicates themselves amount to, or that they otherwise constitute a threat of,
continuing
racketeering activity.”
H.J. Inc.,
492 U.S. at 240, 109 S.Ct. 2893 (emphasis in original).
This continuity requirement may be satisfied by proof of either “elosedended” or “open-ended” continuity.
Id.
at 241, 109 S.Ct. 2893. Closed-ended continuity involves “a closed period of repeated conduct,” while open-ended continuity involves “past conduct that by its nature projects into the future with a threat of repetition.”
Id.
For open-ended continuity. “[t]he circumstances of the case ... must suggest that the predicate acts are indicative of a threat of continuing activity.”
Medallion Television Enters. v. SelecTV of Cal.,
833 F.2d 1360, 1363 (9th Cir.1987).
Here, the predicate acts are “the acts in furtherance of the fraud in the Bretz Transaction and the acts in furtherance of the fraud in the ROEM Transaction.” SAC ¶ 68. The SAC does not allege that the Loanvest Defendants had any involvement in the Bretz transaction. The allegations in the SAC against the Loanvest Defendants are limited to the Roem transaction. As such, the SAC does not even allege two predicate acts against the Loan-vest Defendants. The Court GRANTS the Loanvest Defendants’ motion to dismiss the RICO claim against them.
With regard to the Miller Defendants, although the SAC alleges their involvement in both the Bretz and Roem transactions, there is no indication of a threat of continuing activity. In
Medallion,
the Ninth Circuit held that plaintiff, an entity which had entered into a joint venture with defendant to acquire and exploit television broadcasting rights to a boxing match, could not allege a pattern of racketeering activity based on defendant’s misrepresentations about the number of licensing agreements it had obtained. 833 F.2d at 1363-64. The Ninth Circuit stated that “Medallion’s allegations concern a single fraudulent inducement to enter a contract. Once the joint venture had acquired the broadcast rights, the fraud, if indeed it was a fraud, was complete ... Medallion was the single victim of the alleged fraud.”
Id.
Similarly, here, the acts in furtherance of the alleged fraud in the Bretz transaction were complete when Plaintiff loaned the $270,000 to the non-party borrowers, and the acts in furtherance of the alleged fraud in the Roem transaction were complete when Plaintiffs $930,000 was removed from the escrow account. In both cases, Plaintiff was the single victim of the alleged fraud. As Plaintiff has not alleged “past conduct that by its nature projects into the future with a threat of repetition,”
H.J. Inc.,
492 U.S. at 242, 109 S.Ct. 2893, Plaintiff has not alleged that the Miller Defendants engaged in a pattern of racketeering activity.
In response, Plaintiff points to the following allegation: “Defendants continue to engage in fraudulent acts and policies with respect to the lending of money to borrowers. Insofar as these Defendants continue to participate in the business of lending money to borrowers, their criminal conduct is specifically threatened to be repeated or to extend indefinitely into the future.” SAC ¶ 68. This statement is a mere legal conclusion, unsupported by factual allegations, and the Court does not accept its truth.
See Iqbal,
129 S.Ct. at 1949 (2009).
Plaintiff also contends that the fraud associated with the Roem transaction continues to this day because Defendants receive regular loan repayments from Roem, and they have failed to deliver any portion of that money to Plaintiff. Opp’n to Miller MTD at 5-6; Opp’n to Loanvest MTD at 5. However, “the fact that Defendants continue to reap the benefits of their alleged illegal activity and/or that ... [Plaintiff] continues to suffer the effects thereof, is of no import to the Court’s ‘continuity’ determination.”
Streamcast Networks, Inc. v. Skype Techs., S.A.,
No. 06-391, 2006 WL 5437323, at *8, 2006 U.S. Dist. LEXIS 97392, at *22 (C.D.Cal. Sept. 14, 2006);
see also Pier Connection v. Lakhani,
907 F.Supp. 72, 76 (S.D.N.Y.1995) (recognizing that defendants’ “continuing to reap such benefits [of a fraudulent scheme] is not itself a predicate act; it is only an effect of the alleged acts .... ”). Having failed to allege a pattern of racketeering activity, the Court GRANTS the Miller Defendants’ motion to dismiss the RICO claim against them.
It is clear to the Court that Plaintiffs RICO claim cannot be saved by amendment. The Court’s discretion to dismiss a claim without leave to amend is particularly broad where the plaintiff has previously filed an amended complaint.
Miller v. Yokohama Tire Corp.,
358 F.3d 616, 622 (9th Cir.2004). Here, the complaint has been amended twice, and Plaintiffs alleged injury is exclusively focused on the loss of money it provided in the Bretz transaction and the Roem transaction.
See
SAC ¶¶ 17-42. The alleged fraud associated with these transactions is complete, and there are no allegations that Plaintiff entered into any other transactions with the Miller Defendants and/or the Loanvest Defendants. Therefore, the Court dismisses the RICO claim WITHOUT LEAVE TO AMEND.
D.
California’s Business and Professions Code, Breach of Fiduciary Duty, and Claim for Money Had and Received
Plaintiffs’ fourth cause of action alleges that the Miller Defendants and the Loan-vest Defendants violated California’s Business and Professions Code. SAC ¶¶ 70-76. The fifth cause of action alleges that the Miller Defendants breached their fiduciary duty to Plaintiff,
id.
¶¶ 77-80, and the sixth cause of action is a claim for money had and received against the Miller Defendants and the Loanvest Defendants,
id.
¶¶ 81-84.
The Miller Defendants contend these three causes of action should fail because Plaintiffs fraud claim fails. Miller MTD at 9. Similarly, the Loanvest Defendants contend that the fourth and sixth causes of action fail because Plaintiffs fraud claim fails. Loanvest MTD at 9. The Court has denied the motions to dismiss Plaintiffs fraud claim,
see
Part IV.A,
supra,
and hence the Court must also DENY the Miller Defendants’ request to dismiss Plaintiffs fourth, fifth and sixth causes of action, and the Loanvest Defendants’ request to dismiss the fourth and sixth causes of action.
Furthermore, an action for money had and received aims to recover money paid on a contract whose consideration has
failed,
Bank of Am. Nat’l Trust and Savings Ass’n v. Hayden,
231 F.2d 595, 601 (9th Cir.1956). As explained below,
see
Part IV.E, Plaintiff adequately states a claim for breach of contract, and therefore the Court finds that the claim for money had and received remains viable at this early stage of the proceedings.
E.
Breach of Written and/or Oral Contract and Implied Covenant of Good Faith
Plaintiffs seventh and eighth causes of action allege that Miller, Sentinel, Cresson, and Loanvest breached a written and/or oral contract with Plaintiff. SAC ¶¶ 85-98. “A cause of action for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.”
Careau & Co. v. Sec. Pac. Bus. Credit, Inc.,
222 Cal.App.3d 1371, 272 Cal.Rptr. 387, 395 (1990).
The SAC alleges as follows:
On or about October 19, 2009, Defendant MILLER, on behalf of himself and LOANVEST XIII and his and its alter egos, made the written offer set forth in his e-mail of that date. The terms of the written offer were that in exchange for CONCORDE’S delivery of money into an escrow account ... these Defendants and each of them would pay CONCORDE 17% return on the money delivered, plus 4 points at close. Additionally, each of the Defendants agreed that although the loan document reflected only Loanvest as the lender, CONCORDE would “go direct on title” for its pro-rata share of the ROEM loan by way of assignment at close of the loan. The offer confirmed that each of these Defendants would provide title insurance for CONCORDE’S position when the loan closed.
SAC ¶ 86. Plaintiff alleges this offer was made in relation to a $4 million loan, but the amount was later modified by mutual agreement and confirmed in writing.
Id.
¶ 87. Plaintiff alleges it accepted the offer, wired $930,000 into the escrow account, but that Miller, Sentinel, Cresson, and Loanvest failed to perform their obligations by “failing to ensure that CONCORDE’S interest in the loan was properly documented, failing to ensure that CONCORDE’S interest was placed directly on title, failure to ensure that CONCORDE received title insurance at close of the loan, and failure to deliver any form of written confirmation of CONCORDE’S position in the completed ROEM transaction.”
Id.
¶¶ 88-89.
These allegations are clearly sufficient to state a claim for breach of contract against the Miller Defendants. It is alleged that the October 19, 2009 email set forth specific contract terms, and that Plaintiff accepted the offer and performed under the contract by wiring the money into the escrow account.
Id.
¶¶ 86-88. It is alleged that the Miller Defendants breached the contract by not living up to its terms, and that Plaintiff has been harmed as a result.
Id.
¶¶ 89-91. As such, the Court DENIES the Miller Defendants’ motion to dismiss Plaintiffs seventh and eighth causes of action.
Whether these allegations are sufficient to state claims for breach of written and oral contract against Cresson and Loan-vest is a closer call. Plaintiffs claim for breach of written contract is based on an October 19, 2009 email sent from
Miller
to Fitzgerald.
See
SAC ¶¶27, 86. Plaintiff ties this claim to Cresson and Loanvest by alleging that Miller was acting “on behalf of himself and LOANVEST XIII and his and its alter egos.”
Id.
¶ 86. Plaintiff alleges that both Miller and Cresson are the alter egos of Loanvest,
id.
¶ 11. Based
on these allegations concerning the relationship between Miller, Cresson, and Loanvest, the Court finds it is premature to dismiss Plaintiffs claim for breach of written contract against Cresson and Loan-vest.
The SAC also alleges that Cresson engaged in telephone conversations with Plaintiff concerning the terms of Plaintiffs participation in the Roem loan.
Id.
¶ 23. This factual allegation, coupled with the allegation that Loanvest and Cresson are one and the same, supports Plaintiffs claim for breach of oral contract against Cresson and Loanvest. If discovery reveals that the nature of the relationship between Miller, Cresson, and Loanvest is other than as alleged, then the Court can revisit the question of whether Cresson and Loanvest breached a written and/or oral contract with Plaintiff at a later stage of these proceedings. The Court DENIES the Loanvest Defendants’ motion to dismiss the seventh and eighth causes of action.
As the SAC states a claim for breach of written and/or oral contract against the Loanvest Defendants, the Court also DENIES their request for the Court to dismiss Plaintiffs ninth cause of action for breach of the implied covenant of good faith and fair dealing. This is also an issue that the Court can revisit once the parties have had an opportunity to conduct discovery.
F.
Unjust Enrichment! Quasi-Contract
The Miller Defendants contend that Plaintiffs claim for unjust enrichment is a remedy, and as such, the tenth cause of action should be dismissed. Miller MTD at 10. There is a split of authority in California as to whether a claim for unjust enrichment is recognized as an independent cause of action. Some courts have affirmatively stated that “unjust enrichment is not a cause of action.”
Jogani v. Super. Ct.,
165 Cal.App.4th 901, 911, 81 Cal.Rptr.3d 503 (2008) (citing
Melchior v. New Line Prods., Inc.,
106 Cal.App.4th 779, 793, 131 Cal.Rptr.2d 347 (2003)). Other courts allow an independent claim of unjust enrichment.
See, e.g., Lectrodryer v. Seoulbank,
77 Cal.App.4th 723, 726, 91 Cal.Rptr.2d 881 (2000) (to state claim for unjust enrichment, Plaintiff must plead “receipt of a benefit and the unjust retention of the benefit at the expense of another.”) However, California courts agree that “unjust enrichment” is an effect, “the result of a failure to make restitution under circumstances where it is equitable to do so.”
Melchior,
106 Cal.App.4th at 793, 131 Cal.Rptr.2d 347;
see also McBride v. Boughton,
123 Cal.App.4th 379, 388, 20 Cal.Rptr.3d 115 (2004) (construing purported cause of action for unjust enrichment as attempt to plead cause of action giving rise to right to restitution).
Here, Plaintiffs tenth cause of action is labeled “Quasi-Contract,” and Plaintiff alleges that the Miller Defendants and the Loanvest Defendants are benefiting from money that Plaintiff placed in escrow because they used that money to fund a loan but, contrary to their representations to Plaintiff, they have denied Plaintiff any participatory interest in that loan. SAC ¶¶ 22-42, 105-07. Under these circumstances, Plaintiff is entitled to seek restitution of its money, and hence the Court will not dismiss Plaintiffs quasi-contract claim.
The Loanvest Defendants’ only argument against the tenth cause of action is that an unjust enrichment claim must fail if the underlying fraud claim fails. Loan-vest MTD at 9. Having denied the motions to dismiss Plaintiffs fraud claim,
see
Part IV.A,
supra,
the Court is not persuaded by this argument.
G.
Resulting Trust
Plaintiffs twelfth cause of action is entitled “Resulting Trust.” Both the Miller Defendants and the Loanvest Defendants contend that a resulting trust is a remedy, not a cause of action. Miller MTD at 10; Loanvest MTD at 11. While the court in
Stansfield v. Starkey
stated that a resulting trust as a remedy, not a cause of action, 220 Cal.App.3d 59, 76, 269 Cal.Rptr. 337 (Ct.App.1990), other California courts have entertained causes of action that seek to impose a resulting trust.
See, e.g., Fidelity Nat’l Title Ins. Co. v. Schroeder,
179 Cal.App.4th 834, 850, 101 Cal.Rptr.3d 854 (2009) (allowing judgment creditor to maintain resulting trust cause of action). “A resulting trust arises by operation of law from a transfer of property under circumstances showing that the transferee was not intended to take the beneficial interest.”
Lloyds Bank California v. Wells Fargo Bank,
187 Cal.App.3d 1038, 1042, 232 Cal.Rptr. 339 (1986). Whether labeled as a cause of action, or a remedy, the Court’s focus is the gravamen of Plaintiffs complaint based on the alleged facts. If the Miller Defendants and the Loanvest Defendants took Plaintiffs money out of the escrow account and used that money to fund a loan from Loanvest to Roem, then Plaintiff may have an equitable or beneficial interest in the property used to secure that loan. The Court DENIES the request to dismiss Plaintiffs twelfth cause of action.
H.
Quia Timet
Plaintiffs fifteenth cause of action is labeled “Quia Timet.” “Quia timet (literal translation, ‘because he fears’), is an action for equitable relief against an anticipated injury.”
Escrow Agents’ Fidelity Corp. v. Super. Ct.,
4 Cal.App.4th 491, 494, 5 Cal.Rptr.2d 698 (1992). Bills quia timet are ordinarily applied to prevent anticipated mischief, not to redress wrongs after they have occurred.
Id.
Bills quia timet are most often filed in surety cases, where a surety, after the debt for which he is liable has become due, seeks to compel the principal to pay the debt.
Id.
In this case, the Court has already denied Plaintiffs request for injunctive relief seeking to compel Defendants to cooperate with a receiver.
See
Docket No. 39 (“June 9, 2010 Order, 2010 WL 2354189”). Plaintiff primarily seeks redress for alleged wrongs that have already occurred associated with the Bretz transaction and the Roem transaction. The allegations in this case do not support Plaintiffs statement that it “has no adequate remedy at law for the injury that would be caused by the defendants’ sale of their beneficial interests in the ROEM Transaction.” SAC ¶ 133. As noted in the Court’s previous order, there is nothing to suggest that any of the Defendants in this case are of doubtful financial standing, and nothing to suggest that Defendants would not be able to satisfy a monetary judgment against them. June 9, 2010 Order at 5-7. Because Plaintiff seeks the return of its money, the Court DISMISSES Plaintiffs quia timet cause of action WITHOUT LEAVE TO AMEND.
I.Declaratory Relief
Plaintiffs eleventh cause of action seeks a judicial determination of the rights and liabilities of the parties with regard to the Roem transaction. SAC ¶¶ 108-111. This cause of action is ultimately a request for relief.
Weiner v. Klais and Co., Inc.,
108 F.3d 86, 92 (6th Cir.1997). Declaratory relief may be unnecessary where an adequate remedy exists under some other cause of action.
Mangindin v. Wash. Mut. Bank,
637 F.Supp.2d 700, 707 (N.D.Cal.2009). Likewise, “[declaratory relief should be denied when it will neither serve a useful purpose in clarifying and settling the legal relations
in issue nor terminate the proceedings and afford relief from the uncertainty and controversy faced by the parties.”
United States v. Washington,
759 F.2d 1353, 1356-57 (9th Cir.1985) (en banc) (per curiam) (citations omitted).
In the present case, Plaintiffs request for declaratory relief is redundant and duplicative of Plaintiffs other claims. Plaintiffs request is identical to the relief sought in the other viable causes of action, and the resolution of those causes of action would afford Plaintiff the exact relief sought in the cause of action for declaratory relief. Accordingly, the Court DISMISSES the eleventh cause of action for declaratory relief WITHOUT LEAVE TO AMEND.
V.
CONCLUSION
For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART the motions to dismiss filed by Defendants Kenneth Alfred Miller, Sentinel Investment Management Company, Loan-vest XIII, L.P., South Bay Real Estate Commerce Group, Peter Scott Carter, Jr., and George Cresson. The Court DISMISSES WITH PREJUDICE Plaintiffs claim that there was a violation of the Racketeer Influenced and Corrupt Organization Act. The Court DISMISSES WITH PREJUDICE Plaintiffs claims for declaratory relief and quia timet. In all other respects, the Court DENIES the motions to dismiss filed by Kenneth Alfred Miller, Sentinel Investment Management Company, Loanvest XIII, L.P., South Bay Real Estate Commerce Group, Peter Scott Carter, Jr., and George Cresson.
IT IS SO ORDERED.