1 FILED IN THE 2 EASTER U N . S D . I S D T I R S I T C R T I C O T F C W O A U S R H T I NGTON Jun 26, 2025 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 ZOE GETZELS and QUENTIN No. 2:24-cv-00161-MKD BODIGUEL, 8 Plaintiffs, ORDER GRANTING IN PART AND DENYING IN PART 9 v. DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ SECOND 10 KIRBY AI, an individual; EVIE AMENDED COMPLAINT VAUGHAN, and individual; VAN 11 VENTURE AI, LLC, a dissolved ECF No. 27 Washington Limited Liability Company; 12 and KIRBY AI and EVIE VAUGHAN as members of VAN VENTURE AI, 13 LLC, 14 Defendants.
15 Before the Court is Defendants’ Motion to Dismiss Plaintiffs’ Second 16 Amended Complaint. ECF No. 27. Henry A. Rymer represents Plaintiffs. Caleb 17 Hatch represents Defendants. The Court has reviewed the motion and record and 18 is fully informed. For the reasons explained below, the Court GRANTS in part 19 and DENIES in part the motion. 20 1 BACKGROUND 2 Plaintiffs’ Second Amended Complaint asserts five claims: (1) breach of
3 contract; (2) breach of implied contract; (3) fraudulent Inducement; (4) negligent 4 misrepresentation; and (5) violation of the Washington Consumer Protection Act 5 (CPA). ECF No. 26 at 22-39. First, Plaintiffs allege Defendants have “failed to
6 comply with their contractual obligations . . . caus[ing] Plaintiffs’ damages in an 7 amount to be proven at trial, but at a minimum over $100,000.00.” Id. at 23-24 ¶¶ 8 35-36. Second, Plaintiff pleads “[i]n the alternative to Plaintiffs’ breach of express 9 contract claim, Defendants were unjustly enriched and a contract implied in law is
10 applicable to the instant case.” Id. at 24 ¶ 38. Third, Plaintiffs allege “Defendants 11 Kirby and Van Venture intentionally misrepresented to Plaintiffs that they had the 12 requisite experience and expertise to adequately convert Plaintiffs’ van in February
13 2022.” Id. at 26 ¶ 43. Fourth, Plaintiffs allege “Van Venture, through its publicly 14 accessible website and Defendant Kirby’s representations, negligently 15 misrepresented the then-existing fact attestations of their level of expertise in the 16 field of van conversions to Plaintiffs.” Id. at 31 ¶ 54. Plaintiffs assert they “relied
17 on the false information Van Venture provided them by agreeing to do business 18 with Van Venture” and “[h]ad Plaintiffs known the truth regarding Van Venture’s 19 expertise they would not have done business with them.” Id. at 33 ¶¶ 58-59.
20 Finally, Plaintiffs allege all Defendants violated the CPA by engaging in “unfair 1 and deceptive acts occur[ing] in commerce or trade” that “effect the public 2 interest” and “Plaintiffs suffered injury to their property as a result[.]” Id. at 36 ¶¶
3 66-68. 4 LEGAL STANDARD 5 “To survive a [Fed. R. Civ. P. 12(b)(6)] motion to dismiss, a complaint must
6 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 7 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 8 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the 9 elements of a cause of action, supported by mere conclusory statements, do not
10 suffice.” Id. In considering a motion to dismiss for failure to state a claim, the 11 Court must accept as true the well-pleaded factual allegations and any reasonable 12 inference to be drawn from them, but legal conclusions are not entitled to the same
13 assumption of truth. Id. A complaint must contain either direct or inferential 14 allegations respecting all the material elements necessary to sustain recovery under 15 some viable legal theory. Twombly, 550 U.S. at 562. “Factual allegations must be 16 enough to raise a right to relief above the speculative level.” Id. at 555.
17 DISCUSSION 18 Defendants move to dismiss Plaintiffs’ Defendants Second Amended 19 Complaint in its entirety, contending Plaintiffs have failed to state a claim for all
20 causes of action asserted. ECF No. 27 at 9-26. 1 1. Breach of Contract 2 To establish breach of contract, Plaintiffs must demonstrate: (1) the
3 existence of a valid contract; (2) breach of that contract; and (3) resulting damages. 4 Nw. Indep. Forest Mfrs. v. Dep’t of Labor & Indus., 899 P.2d 6, 9 (Wash. App. 5 1995). The necessary elements of contract formation are: (1) offer; (2) acceptance;
6 (3) competent parties; (4) legal subject matter; and (5) consideration. Lager v. 7 Berggren, 60 P.2d 99, 101 (Wash. 1936). “Under Washington law, a contract 8 requires mutual assent to its essential terms in order to be binding.” Lee v. Intelius 9 Inc., 737 F.3d 1254, 1259 (9th Cir. 2013). To sufficiently allege Defendants’
10 breach, Plaintiffs must demonstrate Defendants failed to perform a contractual duty 11 as stipulated in the contract. Nw. Indep. Forest Mfrs., 899 P.2d at 9. “Damages 12 are not recoverable for loss beyond an amount that the evidence permits to be
13 established with reasonable certainty.” Columbia Park Golf Course, Inc. v. City of 14 Kennewick, 248 P.3d 1067, 1076 (Wash. App. 2011) (citing Kadiak Fisheries Co. 15 v. Murphy Diesel Co., 422 P.2d 496, 504 (Wash. 1967)). 16 Plaintiffs’ breach of contract claim sufficiently alleges the existence of a
17 valid contract between the parties, see ECF No. 26 at 9-11 ¶¶ 16-18; alleges the 18 contractual terms Defendants breached, see id. at 23 ¶ 35; and identifies “with 19 reasonable certainty” damages that directly resulted from the alleged breach, see
20 1 id. at ¶¶ 34-35. The Court thus DENIES Defendants’ motion with respect to this 2 cause of action.
3 2. Breach of Implied Contract 4 The “elements of a contract implied in law”—or unjust enrichment—“are: 5 (1) the defendant receives a benefit, (2) the received benefit is at the plaintiff’s
6 expense, and (3) the circumstances make it unjust for the defendant to retain the 7 benefit without payment.” Young v. Young, 191 P.3d 1258, 1262 (Wash. 2008) (en 8 banc). A contract implied in fact—or quantum meruit—is based upon “an 9 agreement depending for its existence on some act or conduct of the party sought
10 to be charged and arising by implication from circumstances, which according to 11 common understanding, show a mutual intention on the part of the parties to 12 contract with each other. The services must be rendered under such circumstances
13 as to indicate that the person rendering them expected to be paid therefor, and that 14 the recipient expected, or should have expected, to pay for them.” Id. at 1262-63. 15 “‘[U]njust enrichment’ is founded on notions of justice and equity whereas 16 ‘quantum meruit’ is founded in the law of contracts, a legally significant
17 distinction.” Id. at 1263. If the same subject matter governs both claims, the 18 implied contract claim should be dismissed. Woodard v. Boeing Emps. Credit 19 Union, 2023 WL 4847126, at *5-6 (W.D. Wash. July 28, 2023) (on motion to
20 1 dismiss, dismissing implied contract and unjust enrichment claims where an 2 express contract governed the same subject matter).
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1 FILED IN THE 2 EASTER U N . S D . I S D T I R S I T C R T I C O T F C W O A U S R H T I NGTON Jun 26, 2025 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 ZOE GETZELS and QUENTIN No. 2:24-cv-00161-MKD BODIGUEL, 8 Plaintiffs, ORDER GRANTING IN PART AND DENYING IN PART 9 v. DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ SECOND 10 KIRBY AI, an individual; EVIE AMENDED COMPLAINT VAUGHAN, and individual; VAN 11 VENTURE AI, LLC, a dissolved ECF No. 27 Washington Limited Liability Company; 12 and KIRBY AI and EVIE VAUGHAN as members of VAN VENTURE AI, 13 LLC, 14 Defendants.
15 Before the Court is Defendants’ Motion to Dismiss Plaintiffs’ Second 16 Amended Complaint. ECF No. 27. Henry A. Rymer represents Plaintiffs. Caleb 17 Hatch represents Defendants. The Court has reviewed the motion and record and 18 is fully informed. For the reasons explained below, the Court GRANTS in part 19 and DENIES in part the motion. 20 1 BACKGROUND 2 Plaintiffs’ Second Amended Complaint asserts five claims: (1) breach of
3 contract; (2) breach of implied contract; (3) fraudulent Inducement; (4) negligent 4 misrepresentation; and (5) violation of the Washington Consumer Protection Act 5 (CPA). ECF No. 26 at 22-39. First, Plaintiffs allege Defendants have “failed to
6 comply with their contractual obligations . . . caus[ing] Plaintiffs’ damages in an 7 amount to be proven at trial, but at a minimum over $100,000.00.” Id. at 23-24 ¶¶ 8 35-36. Second, Plaintiff pleads “[i]n the alternative to Plaintiffs’ breach of express 9 contract claim, Defendants were unjustly enriched and a contract implied in law is
10 applicable to the instant case.” Id. at 24 ¶ 38. Third, Plaintiffs allege “Defendants 11 Kirby and Van Venture intentionally misrepresented to Plaintiffs that they had the 12 requisite experience and expertise to adequately convert Plaintiffs’ van in February
13 2022.” Id. at 26 ¶ 43. Fourth, Plaintiffs allege “Van Venture, through its publicly 14 accessible website and Defendant Kirby’s representations, negligently 15 misrepresented the then-existing fact attestations of their level of expertise in the 16 field of van conversions to Plaintiffs.” Id. at 31 ¶ 54. Plaintiffs assert they “relied
17 on the false information Van Venture provided them by agreeing to do business 18 with Van Venture” and “[h]ad Plaintiffs known the truth regarding Van Venture’s 19 expertise they would not have done business with them.” Id. at 33 ¶¶ 58-59.
20 Finally, Plaintiffs allege all Defendants violated the CPA by engaging in “unfair 1 and deceptive acts occur[ing] in commerce or trade” that “effect the public 2 interest” and “Plaintiffs suffered injury to their property as a result[.]” Id. at 36 ¶¶
3 66-68. 4 LEGAL STANDARD 5 “To survive a [Fed. R. Civ. P. 12(b)(6)] motion to dismiss, a complaint must
6 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 7 plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 8 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the 9 elements of a cause of action, supported by mere conclusory statements, do not
10 suffice.” Id. In considering a motion to dismiss for failure to state a claim, the 11 Court must accept as true the well-pleaded factual allegations and any reasonable 12 inference to be drawn from them, but legal conclusions are not entitled to the same
13 assumption of truth. Id. A complaint must contain either direct or inferential 14 allegations respecting all the material elements necessary to sustain recovery under 15 some viable legal theory. Twombly, 550 U.S. at 562. “Factual allegations must be 16 enough to raise a right to relief above the speculative level.” Id. at 555.
17 DISCUSSION 18 Defendants move to dismiss Plaintiffs’ Defendants Second Amended 19 Complaint in its entirety, contending Plaintiffs have failed to state a claim for all
20 causes of action asserted. ECF No. 27 at 9-26. 1 1. Breach of Contract 2 To establish breach of contract, Plaintiffs must demonstrate: (1) the
3 existence of a valid contract; (2) breach of that contract; and (3) resulting damages. 4 Nw. Indep. Forest Mfrs. v. Dep’t of Labor & Indus., 899 P.2d 6, 9 (Wash. App. 5 1995). The necessary elements of contract formation are: (1) offer; (2) acceptance;
6 (3) competent parties; (4) legal subject matter; and (5) consideration. Lager v. 7 Berggren, 60 P.2d 99, 101 (Wash. 1936). “Under Washington law, a contract 8 requires mutual assent to its essential terms in order to be binding.” Lee v. Intelius 9 Inc., 737 F.3d 1254, 1259 (9th Cir. 2013). To sufficiently allege Defendants’
10 breach, Plaintiffs must demonstrate Defendants failed to perform a contractual duty 11 as stipulated in the contract. Nw. Indep. Forest Mfrs., 899 P.2d at 9. “Damages 12 are not recoverable for loss beyond an amount that the evidence permits to be
13 established with reasonable certainty.” Columbia Park Golf Course, Inc. v. City of 14 Kennewick, 248 P.3d 1067, 1076 (Wash. App. 2011) (citing Kadiak Fisheries Co. 15 v. Murphy Diesel Co., 422 P.2d 496, 504 (Wash. 1967)). 16 Plaintiffs’ breach of contract claim sufficiently alleges the existence of a
17 valid contract between the parties, see ECF No. 26 at 9-11 ¶¶ 16-18; alleges the 18 contractual terms Defendants breached, see id. at 23 ¶ 35; and identifies “with 19 reasonable certainty” damages that directly resulted from the alleged breach, see
20 1 id. at ¶¶ 34-35. The Court thus DENIES Defendants’ motion with respect to this 2 cause of action.
3 2. Breach of Implied Contract 4 The “elements of a contract implied in law”—or unjust enrichment—“are: 5 (1) the defendant receives a benefit, (2) the received benefit is at the plaintiff’s
6 expense, and (3) the circumstances make it unjust for the defendant to retain the 7 benefit without payment.” Young v. Young, 191 P.3d 1258, 1262 (Wash. 2008) (en 8 banc). A contract implied in fact—or quantum meruit—is based upon “an 9 agreement depending for its existence on some act or conduct of the party sought
10 to be charged and arising by implication from circumstances, which according to 11 common understanding, show a mutual intention on the part of the parties to 12 contract with each other. The services must be rendered under such circumstances
13 as to indicate that the person rendering them expected to be paid therefor, and that 14 the recipient expected, or should have expected, to pay for them.” Id. at 1262-63. 15 “‘[U]njust enrichment’ is founded on notions of justice and equity whereas 16 ‘quantum meruit’ is founded in the law of contracts, a legally significant
17 distinction.” Id. at 1263. If the same subject matter governs both claims, the 18 implied contract claim should be dismissed. Woodard v. Boeing Emps. Credit 19 Union, 2023 WL 4847126, at *5-6 (W.D. Wash. July 28, 2023) (on motion to
20 1 dismiss, dismissing implied contract and unjust enrichment claims where an 2 express contract governed the same subject matter).
3 Plaintiffs’ Second Amended Complaint sufficiently meets the elements of an 4 unjust enrichment claim: as alleged, Defendants received payment from Plaintiffs 5 in excess of $100,000 and Plaintiffs allege they did not receive a commensurate
6 benefit in exchange. See ECF No. 28 at 7-8 (“As a result of this remittance, 7 Plaintiffs neither have the money they paid Defendants nor the converted van that 8 Defendants promised to deliver – clearly demonstrating that Defendants received 9 the benefit of payment at the expense of Plaintiffs.”). Because some of Plaintiffs’
10 payments predated the execution of the parties’ formal contract, the Court declines 11 to dismiss this claim as duplicative of the breach of contract claim. The Court thus 12 DENIES Defendants’ motion as to this cause of action.
13 3. Fraudulent Inducement 14 “There are nine essential elements of fraud, all of which must be established 15 by clear, cogent, and convincing evidence: (1) a representation of existing fact, (2) 16 its materiality, (3) its falsity, (4) the speaker’s knowledge of its falsity, (5) the
17 speaker’s intent that it be acted upon by the person to whom it is made, (6) 18 ignorance of its falsity on the part of the person to whom the representation is 19 addressed, (7) the latter’s reliance on the truth of the representation, (8) the right to
20 1 rely upon it, and (9) consequent damage.” Elcon Const., Inc. v. E. Washington 2 Univ., 273 P.3d 965, 970 (Wash. 2012) (citation omitted).
3 “To avoid dismissal for inadequacy under Rule 9(b), [Plaintiffs’] complaint 4 would need to ‘state the time, place, and specific content of false representations as 5 well as the identifies of the parties to the misrepresentation.” Edwards v. Marin
6 Park, Inc., 356 F.3d 10158, 1066 (9th Cir. 2004) (citing Alan Neuman Prods., Inc. 7 v. Albright, 862 F.2d 1388, 1392-93 (9th Cir. 1989)). 8 Plaintiffs have sufficiently pleaded the time, place, and content of the 9 alleged misrepresentation, as required under Rule 9(b). See ECF No. 26 at ¶ 43
10 (alleging Defendants, in February 2022, misrepresented they had the “requisite 11 experience and expertise to adequately convert Plaintiffs’ van,” including relaying, 12 in telephonic communications, they had the “requisite skills in the field of
13 electrical, carpentry, plumbing, and related subject matters as they pertain to 14 converting a van, as well as having the requisite experience and expertise to 15 incorporate customized facets, materials, and features in the van.”). Plaintiffs’ 16 allegations, see id. at ¶¶ 43-52, also sufficiently meet the nine elements of fraud, as
17 described above. The Court thus DENIES Defendants’ motion with respect to this 18 cause of action. 19
20 1 4. Negligent Misrepresentation 2 Washington has adopted the Restatement (Second) of Torts, which sets forth
3 the elements of a negligent misrepresentation claim: “One who, in the course of his 4 business, profession or employment . . . supplies false information for the guidance 5 of others in their business transactions, is subject to liability for pecuniary loss
6 caused to them by their justifiable reliance upon the information, if he fails to 7 exercise reasonable care or competence in obtaining or communicating the 8 information.” Havens v. C & D Plastics, Inc., 876 P.2d 435, 447 (Wash. 1994) (en 9 banc). “The proof must be clear, cogent and convincing.” Id. (citation omitted).
10 As before, the parties dispute whether this claim falls under Rule 9(b). Compare 11 ECF No. 27 at 21 (arguing 9(b) is applicable given negligent misrepresentation is 12 “grounded in fraud”) (citing Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-
13 04, 1107 (9th Cir. 2003)), with ECF No. 28 at 13-14 (Arguing “negligent 14 misrepresentation is not fraud and Rule 9(b) is inapplicable.”) (emphasis in 15 original). 16 As discussed above, however, because Plaintiffs have sufficiently pleaded a
17 fraudulent inducement claim—one that falls under Rule 9(b)’s stricter standard and 18 involves an intentional misrepresentation—Plaintiffs have also necessarily 19 sufficiently plead a negligent misrepresentation claim—one that involves a failure
20 to exercise reasonable care in communicating false information. Given the 1 overlapping allegations attendant to both causes of action, the Court DENIES 2 Defendants’ motion with respect to this cause of action.
3 5. CPA 4 The CPA provides that “[u]nfair methods of competition and unfair or 5 deceptive acts or practices in the conduct of any trade or commerce” are unlawful.
6 RCW 19.86.020. Washington courts use a five-part test to assess private actions 7 brought under the CPA. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. 8 Co., 719 P.2d 531, 535 (Wash. 1986). Plaintiffs must demonstrate (1) an unfair or 9 deceptive practice or act; (2) in commerce or trade; (3) that affects the public
10 interest; (4) injury to the plaintiffs’ business or property; and (5) a causal link 11 between the unfair or deceptive practice or act and the injury suffered. Id. 12 Defendants contend Plaintiffs have failed to satisfy the first, third, and fourth
13 elements. ECF No. 27 at 24-26. The Court agrees, though only as to the third 14 element. The Second Amended Complaint lacks facts demonstrating a public 15 interest impact, such as a pattern of deceptive practices or harm to other 16 consumers. See Hangman Ridge, 719 P.2d at 538 (“Factors indicating public
17 interest in this context include: (1) Were the alleged acts committed in the course 18 of defendant's business? (2) Did defendant advertise to the public in general? (3) 19 Did defendant actively solicit this particular plaintiff, indicating potential
20 solicitation of others? (4) Did plaintiff and defendant occupy unequal bargaining 1 positions? As with the factors applied to essentially consumer transactions, not 2 one of these factors is dispositive, nor is it necessary that all be present. The
3 factors in both the ‘consumer’ and ‘private dispute’ contexts represent indicia of an 4 effect on public interest from which a trier of fact could reasonably find public 5 interest impact.”). Accordingly, Plaintiffs have failed to state a viable CPA claim
6 and the Court GRANTS Defendants’ motion with respect to this cause of action. 7 CONCLUSION 8 For the reasons discussed above, Plaintiffs’ Second Amended Complaint is 9 dismissed in its entirety.
10 Accordingly, IT IS HEREBY ORDERED: 11 1. Defendants’ Motion to Dismiss, ECF No. 27, is GRANTED in part and 12 DENIED in part.
13 IT IS SO ORDERED. The District Court Clerk is hereby directed to enter 14 this Order and provide copies to counsel. 15 DATED June 26, 2025.
16 s/Mary K. Dimke MARY K. DIMKE 17 UNITED STATES DISTRICT JUDGE
18 19 20