Morris v. Wells Fargo & Company

Opinion

1 2 3 6 7 ANTHONY MORRIS, Case No. 23-cv-03277-HSG

8 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART MOTION TO 9 v. DISMISS

10 WELLS FARGO & COMPANY, et al., Re: Dkt. No. 62 11 Defendants.

12 13 Before the Court is Wells Fargo & Company and Wells Fargo Bank, N.A.’s motion to 14 dismiss Plaintiff’s first amended class action complaint, Dkt. No. 62. The Court finds the matter 15 appropriate for disposition without oral argument and deems it submitted. See Civil L.R. 7-1(b). 16 The Court GRANTS IN PART AND DENIES IN PART the motion. 18 On May 23, 2023, Anthony Morris (“Plaintiff”) filed this putative class action against 19 Wells Fargo & Company (“WF & Co.”), Wells Fargo Bank, N.A. (“the Bank”), and Wells Fargo 20 Home Mortgage, Inc., in San Francisco Superior Court. Dkt. No. 1. On June 30, 2023, the 21 defendants removed the case to federal court. Id. 22 Plaintiff’s lawsuit arises from “[Wells Fargo’s] failure to return to its borrowers massive 23 amounts of money Wells Fargo made after it wrongly charged borrowers rate lock extension fees 24 (“RLEFs”) on the borrowers’ respective Wells Fargo mortgage applications.” Dkt. No. 1-1 25 (“Compl.”) ¶ 1. As relevant here, “RLEFs extend the period in which a quoted mortgage interest 26 rate is ‘locked in’ against potential market fluctuations.” Id. Whether the borrower or the lender 27 is responsible for paying the RLEF is a matter of “lender policy,” but generally the party at fault 1 policy during the relevant time period, which purported to “charge borrowers for RLEFs only 2 when the borrowers [were] at fault for delays and [to] absorb[] those fees itself . . . when the fault 3 [was] Wells Fargo’s.” Id. ¶ 21. During the same period, the company allegedly also had a policy 4 of limiting their obligation to refund RLEFs to instances of its own “willful misconduct.” Id. ¶ 22. 5 In his initial complaint, Plaintiff alleged that he applied for a home mortgage with Wells 6 Fargo in early 2005, and that Wells Fargo knowingly misrepresented to him that he owed an 7 RLEF in the amount of $4,087.13, which he paid. Id. ¶¶ 27, 29, 50. Plaintiff only discovered the 8 wrongdoing many years later in 2013 when, unprompted, “Wells Fargo mailed Plaintiff a letter 9 enclosing a purported refund check for the RLEF he was wrongfully charged by Wells Fargo in 10 connection with his mortgage.” Id. ¶ 30. Plaintiff’s original complaint asserted state law claims 11 for unjust enrichment, money had and received, conversion, and civil theft on behalf of Plaintiff 12 and a nationwide class of borrowers who received RLEF refunds. Id. ¶¶ 64–99. 13 The three named defendants moved to dismiss the complaint in its entirety. Dkt. No. 19. 14 The Court rejected their arguments that Plaintiff’s claims were time-barred and that Plaintiff had 15 failed to sufficiently state claims against WF & Co. See Morris v. Wells Fargo & Co., No. 23- 16 CV-03277-HSG, 2024 WL 781036, at *4–5 (N.D. Cal. Feb. 26, 2024) (“Order”).1 But the Court 17 ultimately granted the motion to dismiss with leave to amend on the basis that Plaintiff’s 18 allegations as to the exact nature of the defendants’ misconduct were too vague and conclusory to 19 state a legally cognizable theory for his claims. Id. at 6. Specifically, the Court found that 20 Plaintiff failed to plead with particularity facts about “the parties’ course of conduct during the 21 loan transaction (for example, whether closing was delayed beyond the rate lock period, and what 22 party contributed to that delay), the specific representations made about the length of the 23 application process and why they were misleading, or anything else that demonstrates Defendants' 24 RLEF-related wrongdoing.” Id. at 5. 25 Plaintiff timely filed an amended complaint against WF & Co. and the Bank 26 (“Defendants”). Dkt. No. 56 (“FAC”). The amended complaint contains additional facts about 27 1 Plaintiff’s loan transaction. Id. ¶¶ 30–39. Plaintiff now alleges that at the point he was 2 conditionally approved for his loan with Wells Fargo on April 14, 2005, he elected to “lock in” a 3 particular interest rate for a certain amount of time because he was “confident in his ability to 4 close the loan on time,” and “[had] not been informed of the consequences of the loan not closing 5 within the rate lock period.” Id. ¶ 33. Then, at some point during the loan closure process, Wells 6 Fargo told him that his application lacked certain documentation, and that he would be “required 7 to (re)submit these documents and pay an RLEF due to the resulting delay in closing his loan.” 8 Id. ¶ 35. Plaintiff alleges that he agreed to submit the relevant documentation to avoid an 9 increased interest rate, even though he believed he had previously submitted all the necessary 10 documents, and, as a result of the resubmission, the loan “did not close during the rate lock 11 period.” Id. Then, “[a]ssuming Wells Fargo was applying its stated policy fairly, and not wanting 12 to delay the loan closure even further, Plaintiff subsequently paid an RLEF of $4,087.13.” Id. 13 The amended complaint also includes facts summarizing a Wells Fargo employee- 14 whistleblower’s allegations that Defendants “orchestrated an effort to shift the cost of RLEFs onto 15 borrowers instead of the bank,” which “involved blaming customers for delays in the loan process 16 and improperly charging them RLEFs.” FAC ¶ 41. Additionally, Plaintiff restyled his unjust 17 enrichment claim as a quasi-contract claim and removed the civil theft claim. Id. ¶ 78. 18 Defendants move to dismiss the amended complaint with prejudice. Dkt. No. 62 (“Mot.”) at 3. 20 Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain 21 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 22 defendant may move to dismiss a complaint for failing to state a claim upon which relief can be 23 granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the 24 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 25 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 26 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible 27 on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible 1 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 2 Rule 9(b) imposes a heightened pleading standard where fraud is an essential element of a 3 claim. See Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party must state with particularity 4 the circumstances constituting fraud or mistake.”); see also Vess v. Ciba–Geigy Corp. USA, 317 5 F.3d 1097, 1107 (9th Cir. 2003). A plaintiff must identify “the who, what, when, where, and how” 6 of the alleged conduct, so as to provide defendants with sufficient information to defend against 7 the charge. Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997). However, “[m]alice, intent, 8 knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9 Rule 9(b). 10 In reviewing the plausibility of a complaint, courts “accept factual allegations in the 11 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” 12 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nevertheless, 13 courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of 14 fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 15 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 17 A. Request for Judicial Notice 18 Defendants first argue that Plaintiff’s loan documents, which they ask the Court to 19 incorporate by reference into Plaintiff’s complaint, contradict Plaintiff’s allegations and render 20 them facially implausible. Mot. at 9–10. Defendants assert that the Court “can—and should— 21 consider the actual terms of Plaintiff’s loan documents . . . and dismiss the Amended Complaint 22 because those documents do not plausibly support Plaintiff’s claims.” Dkt. No. 66 (“Reply”) at 7; 23 Dkt. No. 62-9 (Request for Judicial Notice) at 2 (“On a motion to dismiss, judicial notice of the 24 full text of documents referenced in a complaint is proper under the doctrine of ‘incorporation by 25 reference.’”). 26 Plaintiff does not appear to challenge the authenticity of the loan documents or oppose 27 Defendants’ request to incorporate them by reference. See Dkt. No. 65 (“Opp.”) at 13. But as the 1 incorporated document’s] contents are true for purposes of a motion to dismiss . . . it is improper 2 to assume the truth of an incorporated document if such assumptions only serve to dispute facts 3 stated in a well-pleaded complaint.” 899 F.3d 988, 1002 (9th Cir. 2018). Accordingly, the Court 4 may take judicial notice of the loan documents themselves, but may not assume the truth of any 5 statement in them that “‘is subject to varying interpretations, [such that] there is a reasonable 6 dispute as to what the [statement] establishes.’” Sanchez-Martinez v. Freitas, No. 23-CV-02508- 7 HSG, 2024 WL 4309277, at *2 (N.D. Cal. Sept. 26, 2024) (quoting Khoja, 899 F.3d at 1000). 8 Here, Defendants are asking the Court to do precisely what Khoja prohibits. Defendants 9 primarily rely on a document titled “Price Range Protection Confirmation/Rate Lock Agreement” 10 (“the Agreement”) that Plaintiff appears to have signed when his loan closed on August 2, 2005. 11 See Dkt. No. 62-4, RJN, Ex. C. The document states that “the Lender” (presumably Defendants) 12 “received verbal instructions from [Plaintiff] or an authorized agent on 6/01/05 to convert 13 [Plaintiff’s] loan registration from a ‘floating’ (uncommitted rate and discount points) to a price 14 range protection.” Id. Further, it indicates that the “Expiration Date of Rate Lock” was “8/10/05” 15 and that the “Extended Lock Fee” was $4,087.13. Id. According to Defendants, this confirms that 16 Plaintiff paid an “up-front, extended lock fee” that guaranteed him a particular interest rate until 17 August 10, 2005, as opposed to an RLEF, and, that because his loan closed on August 2, 2005, 18 prior to the expiration date, the loan was not delayed. See Mot. at 4–5. Defendants argue that this 19 directly contradicts Plaintiff’s allegations that “(1) his loan closing was delayed beyond his 20 original rate-lock period; and (2) he paid a RLEF,” and that the Court should dismiss the 21 complaint on this basis. Id. at 10. 22 But Plaintiff does not concede that he made any request related to the loan on June 1, 2005, 23 despite what the Agreement says. Moreover, he advances an alternative interpretation of the 24 Agreement: because it was executed on August 2, 2005, the day Plaintiff’s loan closed, it cannot 25 show that Plaintiff was charged an “up-front” fee as Defendants claim. See Opp. at 14. Further, 26 he contends it is evidence that Defendants “sought to conceal [their] wrongfully charged RLEF by 27 retroactively recharacterizing the charge as an up-front fee when it closed [his] loan.” Id. at 15. 1 interpretation of the face of the loan documents would thus require the Court to “resolve 2 competing theories against the complaint,” which is not the purpose or a permissible use of the 3 incorporation-by-reference doctrine. See Khoja, 899 F.3d at 998. While the Agreement certainly 4 raises questions about Plaintiff’s ability to ultimately prove his case, because its implication for 5 Plaintiff’s theory and claims is reasonably subject to dispute at this stage, the Court cannot adopt 6 Defendants’ interpretation as true for purposes of resolving the motion to dismiss. See Sanchez- 7 Martinez, 2024 WL 4309277, at *3 (taking judicial notice of county sheriff press release as a 8 public record that was not subject to reasonable dispute, but declining to treat statements in it 9 purportedly made by correctional officials as evidence of the truth of defendant law enforcement 10 agency’s version of the facts). Cf. Groves v. Kaiser Found. Health Plan Inc., 32 F. Supp. 3d 1074, 11 1079 (N.D. Cal. 2014) (court accepted as true definition of term in pension plan because it plainly 12 contradicted plaintiff’s argument that the plan did not provide any definition at all). So while the 13 Court takes judicial notice of the existence of the documents and what they say on their face under 14 the incorporation by reference doctrine, it does so subject to the limitations discussed above. 15 B. Sufficiency of Plaintiff’s Allegations Under Rule 9(b) 16 Aside from using the loan documents to challenge Plaintiff’s complaint, Defendants argue 17 that Plaintiff’s amended allegations are too vague and conclusory to survive the heightened 18 pleading standard under Rule 9(b).2 Mot. at 12–15. The Court previously held that Plaintiff must 19 plead “with particularity facts about the parties’ course of conduct during the loan transaction (for 20 example, whether closing was delayed beyond the rate lock period, and what party contributed to 21 that delay).” Order at 5. Plaintiff now alleges that at some point during his loan closure between 22 April and August 2005, “he was subsequently informed by Wells Fargo that his loan application 23 ostensibly lacked essential documentation and that he was therefore required to (re)submit these 24 documents and pay an RLEF due to the resulting delay in closing his loan.” FAC ¶ 35. At 25 closing, Plaintiff then paid the RLEF believing that he was at fault and properly owed the fee 26

27 2 Here, the Court is only addressing Defendants’ general argument that Plaintiff’s overall theory of 1 according to Defendants’ misrepresentations. See id. 2 Accepting these allegations as true and making all factual inferences in Plaintiff’s favor, 3 the Court finds that Plaintiff’s amended complaint meets the Rule 9(b) standard. Plaintiff does not 4 provide extensive details about his course of dealing with Defendants, but he does allege several 5 details that he did not plead in his prior complaint, including the purportedly false statement 6 Defendants allegedly made to him, the circumstances and approximate timing of the 7 misrepresentation, and the reasons for Plaintiff’s reliance on it. These facts provide Defendants 8 with enough information to adequately defend against Plaintiff’s claims, which satisfies Rule 9(b). 9 See Cooper, 137 F.3d at 627 (complaint meets Rule 9(b) standard if it “identifies the 10 circumstances of the alleged fraud so that defendants can prepare an adequate answer”). 11 Defendants insist that the allegations are too vague because Plaintiff only presents a 12 “loosely paraphrased version” of Defendants’ alleged misrepresentation. Mot. at 13 (citing 13 Johnson v. Maker Ecosystem Growth Holdings, Inc., No. 20-CV-02569-MMC, 2023 WL 14 2191214, at *3 (N.D. Cal. Feb. 22, 2023)). But the Ninth Circuit has held that Rule 9(b) “does not 15 require absolute particularity or a recital of the evidence.” United States v. United Healthcare Ins. 16 Co., 848 F.3d 1161, 1180 (9th Cir. 2016). Instead, it is sufficient if a plaintiff identifies the 17 “specific content of any false or misleading statement,” Johnson, 2023 WL 2191214, at *3, which 18 Plaintiff does here. See FAC ¶ 35 (alleging specifically that Defendants “informed” him that “his 19 loan application ostensibly lacked essential documentation and that he was therefore required to 20 (re)submit these documents and pay an RLEF due to the resulting delay in closing his loan”). Cf. 21 Wenger v. Lumisys, Inc., 2 F. Supp. 2d 1231, 1246 (N.D. Cal. 1998) (complaint dismissed under 22 Rule 9(b) because it “repackage[d] defendants’ actual oral statements in vague and impressionistic 23 terms” and failed to allege what they “actually said”). While the Court has some doubt as to 24 whether Plaintiff’s theory of misrepresentation will prove to be substantively meritorious, he has 25 cured the vagueness issue the Court previously identified such that his allegations are sufficiently 26 pled at this stage. Accordingly, the Court DENIES Defendants’ motion to dismiss on this basis. 27 1 A. Claims against WF & Co. 2 Defendants argue that Plaintiff’s “conclusory allegations against Defendant WF & Co., 3 made with zero factual support, are insufficient as a matter of law.” Reply at 12. Specifically, 4 Defendants point to the “serial, generalized allegations against ‘Wells Fargo’” in Plaintiff’s 5 amended complaint that fail to explain “how WF & Co., a bank holding company that does not 6 make loans or engage with customers, would have been involved in his loan transaction or how it 7 would have made any ‘misrepresentations’ to [Plaintiff].” Id. at 10. 8 This argument retreads ground that the Court already covered in its prior Order, which 9 found that Plaintiff’s allegations that WF & Co. “made policy decisions bearing on RLEF charges 10 and refunds” were “minimally adequate” to state a claim against WF & Co. by connecting it to the 11 misconduct involving RLEFs. Order at 5 (citing FAC ¶ 43). Plaintiff’s amended complaint 12 additionally alleges that WF & Co. “provides” mortgage-lending services to consumers, and that it 13 “operate[s]” these and other services through the Bank, its wholly owned subsidiary. See FAC ¶¶ 14 13–15. Viewing these facts in Plaintiff’s favor, the Court’s understanding of Plaintiff’s theory of 15 WF & Co’s liability still stands: WF & Co. officers made high-level policy decisions regarding 16 RLEFs while the Bank implemented those decisions at the consumer level. See Order at 5, fn. 2. 17 These allegations are enough to give both Defendants “a clear statement about what [they] 18 allegedly did wrong” and allow the claims against WF & Co. to proceed. See Sollberger v. 19 Wachovia Sec., LLC, No. SACV 09-0766AGANX, 2010 WL 2674456, at *4 (C.D. Cal. June 30, 20 2010). Defendants may raise arguments about the merits of Plaintiff’s claims against WF & Co. 21 on summary judgment or at trial. The Court thus DENIES Defendants’ motion to dismiss the 22 complaint on this basis. 23 B. Statute of Limitations 24 Defendants also reassert their contention that Plaintiff’s claims are time-barred, this time 25 arguing that Plaintiff has essentially pled himself out of court. According to Defendants, 26 Plaintiff’s allegation in the amended complaint that he had “submitted all necessary documents” as 27 part of his loan application amounts to an “admission” that he suspected the falsity of Wells 1 in 2005. Mot. at 1 (citing FAC ¶ 35). The Court disagrees and has already explained why. 2 As stated in the prior Order, at the motion to dismiss stage, the Court “must assume to be 3 true any specific allegations explaining that the plaintiff did not discover, nor suspect, nor was 4 there any means through which her reasonable diligence would have revealed, or through which 5 she would have suspected the defendant’s action as a cause of her injury.” Jaeger v. Howmedica 6 Osteonics Corp., No. 15-CV-00164-HSG, 2016 WL 520985 (N.D. Cal. Feb. 10, 2016), at *10. 7 Here, Plaintiff alleges that although he made “diligent efforts” to gather all the necessary 8 documents for his application, he eventually paid the RLEF because he “[a]summe[d] Wells Fargo 9 was applying its state policy fairly” to only charge borrowers a fee only if they caused the delay. 10 FAC ¶ 35. Further, Plaintiff alleges that at the time his loan closed, he “never suspected that a 11 sophisticated financial institution like Wells Fargo would purposefully misrepresent that he had 12 failed to submit proper documentation.” Id. ¶ 38. 13 Like the prior version of the complaint, these allegations similarly do not provide a 14 sufficient basis for the Court to conclude that Plaintiff necessarily would have known that Wells 15 Fargo was at fault for the delayed closing such that tolling is not available to Plaintiff as a matter 16 of law. Viewing the facts pled and making all inferences in Plaintiff’s favor, it is plausible that 17 although Plaintiff believed that he had submitted all of the proper loan documents, he nonetheless 18 trusted Defendants’ representation that there was a problem with his paperwork and that he was at 19 fault. As before, Plaintiff’s minimally adequate pleading still leaves enough ambiguity in the facts 20 pled such that he conceivably could be entitled to tolling after evidentiary development—for 21 example, if he believed he had submitted the proper paperwork the first time but had no way of 22 confirming that belief. See Order at 4. Again, the Court DENIES Defendants’ motion to dismiss 23 Plaintiff’s complaint as time-barred. See Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th 24 Cir. 1980) (“When a motion to dismiss is based on the running of a statute of limitations, it can be 25 granted only if the assertions of the complaint, read with the required liberality, would not permit 26 the plaintiff to prove that the statute was tolled.”). 27 // 1 C. Claims for Quasi-Contract, Money Had and Received, and Conversion 2 Finally, Defendants argue that each of Plaintiff’s claims fails separately as a matter of 3 law. 4 i. Quasi-contract 5 First, Defendants argue that Plaintiff’s quasi-contract claim should be dismissed because is 6 it not available where, as here, the parties had “‘actual, express agreement,’ e.g. the Rate Lock 7 Agreement.” Mot. at 17–18. More specifically, Defendants argue that the Agreement has the 8 “preclusive effect” of completely barring Plaintiff’s quasi-contract claim because it shows “as a 9 matter of law” that Plaintiff’s loan closing was not delayed and that he did not pay an RLEF. 10 Reply at 16–17. Plaintiff counters that his quasi-contract claim is viable because he has pled that 11 his agreement to pay the RLEF was induced by Defendants’ misrepresentations, and thus any 12 express contract underlying the agreement is void. Opp. at 25. Alternatively, Plaintiff argues that 13 the Agreement, even if not void as fraudulent, does not govern the fee at issue in his suit (the 14 RLEF) because it pertains to a different type of fee (the up-front Extended Lock Fee). Id. at 26. 15 The Court finds that it is premature at this stage to determine whether the Agreement 16 precludes Plaintiff from bringing a quasi-contract claim. To be clear, the Court is skeptical of the 17 merits of Plaintiff’s quasi-contract theory given that his complaint refers to representations 18 Defendants allegedly made in Plaintiff’s mortgage loan documents (presumably part of an express, 19 enforceable contract between the parties) as evidence of Defendants’ misconduct. See FAC ¶ 83. 20 But viewing Plaintiff’s pleading in the light most favorable to him, Plaintiff has sufficiently 21 alleged that his RLEF payment claim is not based on any valid express contract, and the Court 22 cannot conclude at this stage that any quasi-contract claim necessarily fails as a matter of law. See 23 Ellis v. J.P. Morgan Chase & Co., 950 F. Supp. 2d 1062, 1091 (N.D. Cal. 2013). Further, the 24 question of whether the Agreement specifically governs the conduct at issue, and the 25 determination of the parties’ understanding of the Agreement’s terms, cannot be resolved without 26 further factual development. See TSI USA LLC v. Uber Techs., Inc., No. 17-CV-03536-HSG, 27 2018 WL 4638726, at *5 (N.D. Cal. Sept. 25, 2018) (quasi-contract claim survived motion to 1 Court DENIES Defendants’ motion to dismiss Plaintiff’s quasi-contract claim. 2 ii. Money Had and Received 3 Second, Defendants argue that Plaintiff has not sufficiently stated a claim for money had 4 and received, and the Court agrees. “The elements of a money had and received claim are: (1) the 5 statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., 6 and (3) nonpayment.” Lopez v. Bank of Am., N.A., 505 F. Supp. 3d 961, 975 (N.D. Cal. 2020) 7 (citations and quotations omitted). In addition, “to recover on a claim for money had and 8 received, a plaintiff must prove that the defendant received money that was intended to be used for 9 the benefit of the plaintiff.” Id. Defendants contend that Plaintiff’s claim must be dismissed 10 because Plaintiff cannot allege that the money Plaintiff seeks—the profits and/or interest Wells 11 Fargo earned on the RLEFs—was intended to be used for the benefit of Plaintiff. Mot. at 19. 12 Plaintiff counters that he had adequately pled the elements of the claim by alleging that he paid the 13 RLEF “for the purpose of a receiving a rate lock extension,” that the money was not used for that 14 purpose, and that Defendants still “withhold [their] earnings” on the RLEFs. Opp. at 26–27. 15 Plaintiff’s response confirms that his claim for money had and received cannot provide a 16 basis for him to recover any amount beyond the RLEF charge itself. Plaintiff’s theory is that 17 Defendants’ fraudulent receipt of the RLEF fee (which was plainly was intended for Plaintiff’s 18 benefit) entitles him to any money Defendants may have earned in retaining it. But Plaintiff fails 19 to cite any legal support for this theory in the context of a claim for money had and received, and 20 instead makes a general argument that disgorgement of profits may be a proper remedy for an 21 unjust enrichment claim. See Opp. at 28. The Court finds Plaintiff’s argument unpersuasive in the 22 context of a money had and received claim, for which “the measure of the liability is the amount 23 received” by the defendant. Rotea v. Izuel, 14 Cal. 2d 605, 611 (1939) (emphasis added). See 24 Zumbrun v. Univ. of S. California, 25 Cal. App. 3d 1, 14 (1972) (claim for money had and 25 received seeks relief that is “something in the nature of a constructive trust and . . . [o]ne cannot be 26 held to be a constructive trustee of something he has not acquired”); see also Util. Audit Co. v. 27 City of Los Angeles, 112 Cal. App. 4th 950, 958 (2003) (“a claim for money had and received can 1 acquired from Plaintiff was the RLEF charge, which Plaintiff does not appear to dispute he has 2 been refunded, and which Plaintiff’s claim for money had and received does not seek to obtain as 3 relief. See FAC ¶¶ 93 (claim seeks “entire amount of profits Defendants earned”). A different 4 theory of liability might allow Plaintiff to recover the profits Defendants earned on the money he 5 alleges that they unlawfully acquired from him, but it is not available as a remedy for a claim for 6 money had or received. Accordingly, the Court GRANTS Defendants’ motion to dismiss 7 Plaintiff’s claim for money had and received without leave to amend. 8 iii. Conversion 9 Third, Defendants argue that Plaintiff’s conversion claim fails because Plaintiff has not 10 pled a definite sum to which he and the class would be entitled. Mot. at 18, 19. Specifically, 11 Defendants assert that it is not sufficient for Plaintiff to generally seek “all profits” earned on the 12 wrongfully obtained RLEFs—he must also allege “how that amount might be determined.” 13 Id. at 19. In a similar vein, Defendants also argue that disgorgement of profits is not an available 14 remedy for conversion under the circumstances here because Plaintiff cannot allege ownership or 15 right to possession of Defendants’ profits on the RLEFs. Mot. at 20.3 16 Under California law, “at the motion to dismiss stage of litigation plaintiffs are only 17 required to allege a sum that is capable of identification.” Natomas Gardens Inv. Grp., LLC v. 18 Sinadinos, 710 F. Supp. 2d 1008, 1023 (E.D. Cal. 2010) (citing California authority). See Haas v. 19 Travelex Ins. Servs. Inc., 555 F. Supp. 3d 970, 982 (C.D. Cal. 2021) (“The law does not require 20 plaintiffs to plead the exact dollar amount of a sum certain at the pleading phase. Instead, it is 21 sufficient to plead facts showing that the amount sought is capable of being reduced to a sum 22 certain.”). Defendants cite no authority for their assertion that in order for Plaintiff to allege a sum 23 that is “capable of identification,” he must guess at how that sum might be calculated, before any 24 evidentiary record has been developed. Likewise, Defendants provide no authority for their 25 argument that the profits Plaintiff seeks are incalculable as a matter of law, or that Plaintiff cannot 26

27 3 Defendants do not appear to specifically challenge the part of Plaintiff’s conversion claim that 1 allege a right to disgorgement of profits as a matter of law.4 By contrast, the cited cases confirm 2 that disgorgement may be available as a remedy for conversion if the plaintiff can show an amount 3 of profits that is specific and identifiable. See Second Measure, Inc. v. Kim, 143 F. Supp. 3d 961, 4 981 (N.D. Cal. 2015) (court found that business profits were proper subject of conversion claim 5 because plaintiff alleged he was entitled to them); Carrey v. Boyes Hot Springs Resort, Inc., 245 6 Cal. App. 2d 618, 622 (1966) (disgorgement of defendants’ profits available to plaintiffs whose 7 property was converted by defendants and used to service plaintiffs’ customers). Further, 8 California law recognizes that a plaintiff may have an interest in the benefit unjustly received by a 9 defendant even if the plaintiff has not suffered a corresponding loss. See Cnty. of San Bernardino 10 v. Walsh, 158 Cal. App. 4th 533, 542 (2007). 11 Here, Plaintiff seeks all profits Defendants earned on the RLEFs it allegedly unlawfully 12 charged to Plaintiff and putative class members. See FAC ¶¶ 93, 102. Plaintiff alleges that he and 13 the class have suffered damages in the form of profits and/or interest they would have earned on 14 the unlawfully converted RLEFs. See id. at 104. The Court finds that Plaintiff has sufficiently 15 met his burden at this stage to allege that the sum he seeks is “capable of identification.” See 16 Brock v. Concord Auto. Dealership LLC, No. 14-CV-01889-HSG, 2015 WL 3466543, at *6 (N.D. 17 Cal. June 1, 2015). Whether he can actually identify the profits Defendants earned on the RLEFs 18 is a question better reserved for summary judgment. See PCO, Inc. v. Christensen, 150 Cal. App. 19 4th 384, 397 (2007) (affirming summary judgment on conversion claim because evidence in the 20 record of the allegedly converted sum was “varying by millions of dollars” and too uncertain to be 21 identifiable). The Court thus DENIES Defendants’ motion to dismiss Plaintiff’s conversion 22

23 4 In the cases Defendants rely on, plaintiffs failed to adequately plead an identifiable sum because they could not sufficiently allege an interest in the money at issue. That is not the case here. See 24 Walter v. Hughes Commc’ns, Inc., 682 F. Supp. 2d 1031, 1048 (N.D. Cal. 2010) (plaintiff failed to state claim for money had and received seeking termination fees paid to communications company 25 because court already determined that termination provision of relevant contract did not provide cause of action to recover the fees); Lopez v. Bank of Am., N.A., 505 F. Supp. 3d 961, 975 (N.D. 26 Cal. 2020) (no conversion claim or money had and received claim because court already determined plaintiff did not have a right to the possession of the money at issue); Sundance Image 27 Tech., Inc. v. Inkjetmall.com, Ltd., No. 02CV2258-B (AJB), 2005 WL 8173280, at *10 (S.D. Cal. 1 claim. 2 || IV. CONCLUSION 3 The Court GRANTS IN PART AND DENIES IN PART Defendants’ motion to dismiss, 4 || Dkt. No. 62. The Court DISMISSES without leave to amend Plaintiffs claim for money had and 5 || received. 6 The Court further SETS case a case management conference on January 14, 2025, at 2:00 7 p.m. The hearing will be held by Public Zoom Webinar. All counsel, members of the public, and 8 || media may access the webinar information at https://www.cand.uscourts.gov/hsg. All attorneys 9 and pro se litigants appearing for the case management conference are required to join at least 15 10 || minutes before the hearing to check in with the courtroom deputy and test internet, video, and 11 audio capabilities. The parties are further DIRECTED to file a joint case management statement 12 || by January 7, 2024. || Dated: 12/18/2024 Abeer 5 ML □□□□ HAYWOOD S. GILLIAM, JR. = 16 United States District Judge

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