Porcu v. Geico General Insurance Company

• Court: District Court, S.D. California
• Decided: August 9, 2024
• Docket: 3:23-cv-02302
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EDMONDO PORCU, Case No.: 23cv2302-LL-BJC

12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. MOTION TO DISMISS WITH LEAVE TO AMEND 14 GEICO GENERAL INSURANCE

COMPANY, 15 [ECF No. 4] Defendant. 16 17 18 Pending before the Court is Defendant Geico General Insurance Company’s Motion 19 to Dismiss Plaintiff Edmondo Porcu’s Putative Class Action Complaint Pursuant to Rules 20 12(b)(1) and 12(b)(6), or in the Alternative for Joinder under Rule 19 and to Strike under 21 Rule 12(f). ECF No. 4. Plaintiff filed an Opposition to Defendant’s Motion, and Defendant 22 filed a Reply. ECF Nos. 7, 8. A request for oral argument and motions for leave to file and 23 comment on supplemental authority were made. ECF Nos. 9, 11, 12. The Court finds this 24 matter suitable for determination on the papers and without oral argument pursuant to Civil 25 Local Rule 7.1. For the reasons set forth below, the Court GRANTS Defendant’s Motion 26 to Dismiss WITH LEAVE TO AMEND and DENIES AS MOOT the remaining requests 27 and motions. 28 // 1 I. BACKGROUND 2 Plaintiff leased a car from BMW Financial Services (“BMW”) in December 2022. 3 ECF No. 1, ¶ 10. Under the lease agreement, Plaintiff agreed to pay BMW an initial 4 payment of $3,000, plus $590.46 per month for 36 months, in exchange for the right to 5 possess and drive the car for three years. ECF No. 1-3, at 3. If and when he elected and 6 completed the necessary steps, Plaintiff also had the option to purchase the car, including 7 at the end of the lease term for an additional $21,270. Id. at 3, 6. As required by the lease 8 agreement, Plaintiff bought a car insurance policy from Defendant that provided physical 9 damage and collision coverage for the car. ECF No. 1, ¶ 10; ECF No. 1-3, at 4. The 10 insurance policy was active when Plaintiff leased the car, and he renewed the policy for 11 the period of January 26, 2023, through July 26, 2023. ECF No. 1, ¶ 10. 12 On February 8, 2023, Plaintiff was in a traffic accident in San Diego, California. Id., 13 ¶ 11. Defendant accepted coverage for the accident and declared the leased car a total loss. 14 Id. Defendant determined it owed $37,099.22 for the totaled car. Id. Plaintiff does not 15 dispute how much Defendant owed for the totaled car. Id. Instead, Plaintiff disputes who 16 was entitled to payment under the insurance policy—him or BMW. Id. 17 At the time of the traffic accident, Plaintiff owed $31,106.82 to BMW under the 18 lease agreement. Id. Plaintiff argues BMW was only entitled to that $31,106.82 amount 19 while he should have been paid the remaining $5,992.50 equity surplus. Id. However, 20 Defendant paid the full $37,099.22 to BMW. Id. So, Plaintiff alleges to have suffered an 21 injury in fact and lost money due to Defendant’s unlawful, unfair, and fraudulent actions. 22 Id., ¶¶ 11, 85. Specifically, Plaintiff sues Defendant for (1) breach of contract; (2) violations 23 of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq.; 24 (3) breach of the implied covenant of good faith and fair dealing; and (4) declaratory relief. 25 Id., ¶¶ 60–106. 26 II. LEGAL STANDARD 27 Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss based 28 on the Court’s lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Plaintiff has the 1 burden of establishing that this Court has subject matter jurisdiction. Kokkonen v. Guardian 2 Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Challenges to subject matter jurisdiction 3 may be facial or factual. Edison v. United States, 822 F.3d 510, 517 (9th Cir. 2016). Facial 4 challenges assert that the allegations are insufficient to invoke federal jurisdiction, while 5 factual challenges dispute the truth of legally sufficient allegations. Id. (citing Safe Air for 6 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). In a facial challenge, the Court 7 accepts a plaintiff’s allegations as true and draws all reasonable inferences in their favor. 8 Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (citing Pride v. Correa, 719 F.3d 9 1130, 1133 (9th Cir. 2013)) (noting that facial attacks are resolved using the same standard 10 as a Rule 12(b)(6) motion to dismiss). However, if a defendant brings a factual challenge, 11 usually by introducing evidence outside the pleadings, the plaintiff must support their 12 jurisdictional allegations with competent proof under the same evidentiary standard that 13 governs summary judgment evidence. Id. (citations omitted). 14 If the Court has jurisdiction to address the merits, a complaint may be dismissed 15 under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Fed. R. 16 Civ. P. 12(b)(6). The Court evaluates whether a complaint states a cognizable legal theory 17 and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a “short 18 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. 19 P. 8(a)(2). To survive a Rule 12(b)(6) motion, a complaint must plead “enough facts to 20 state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 21 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content 22 that allows the court to draw the reasonable inference that the defendant is liable for the 23 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 24 U.S. at 555). In reviewing the plausibility of a complaint, courts “accept factual allegations 25 in the complaint as true and construe the pleadings in the light most favorable to the 26 nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th 27 Cir. 2008) (citation omitted). Nonetheless, courts are not required to “accept as true 28 allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 1 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting 2 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 3 III. DISCUSSION 4 Defendant’s Motion to Dismiss, brought under Rules 12(b)(1) and 12(b)(6), argues 5 that Plaintiff has not sufficiently alleged the causes of action for all four claims and that 6 Plaintiff lacks standing to seek injunctive relief. ECF No. 4, at 2. 7 A. Claim 1: Breach of Contract 8 Defendant argues that since Plaintiff did not have an equity interest in the totaled 9 car, it was required to pay the car’s actual cash value to the one with the controlling interest, 10 which the insurance policy permits. ECF No. 4-1, at 11–18; ECF No. 8, at 2–5. 11 A claim for breach of contract under California law requires the (i) existence of a 12 contract; (ii) plaintiff’s performance of the contract or excuse from non-performance; (iii) 13 defendant’s breach of the contract; and (iv) plaintiff incurring damage. D’Arrigo Bros. of 14 California v. United Farmworkers of Am., 224 Cal.App.4th 790, 800 (2014) (citations 15 omitted). A plaintiff must plead “appreciable and actual damage” in relation to their breach 16 of contract claim. Low v. LinkedIn Corp., 900 F. Supp. 2d 1010, 1028 (N.D. Cal. 2012) 17 (citing Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1015 (9th Cir. 2000)). 18 “Nominal damages, speculative harm, or threat of future harm do not suffice to show 19 legally cognizable injury.” Id. “In an action for breach of a written contract, a plaintiff must 20 allege the specific provisions in the contract creating the obligation the defendant is said to 21 have breached.” Young v. Facebook, Inc., 790 F. Supp. 2d 1110, 1117 (N.D. Cal. 2011). 22 Plaintiff references several parts from his insurance policy with Defendant, but 23 primarily relies on the Loss Payable Clause as the relevant provision creating the obligation 24 Defendant allegedly breached. ECF No. 1, ¶¶ 33–34, 90; ECF No. 1-2, at 24. It reads in 25 part: “Any claim under the Physical Damage Coverages of the policy will be paid jointly 26 to the insured and the Lienholder in the Declarations”; “Whenever we pay the Lienholder, 27 we shall be subrogated to the Lienholder’s rights of recovery to the extent of the payment”; 28 and “We may settle a claim at our option by separate payment to the insured and the 1 Lienholder.” ECF No. 1-2, at 24 (emphasis in original). Plaintiff argues that only he is 2 listed in the Declarations as a named insured while BMW is only listed as a lienholder. 3 ECF No. 7, at 15; ECF No. 1-2, at 8. Plaintiff then argues that in the event of a total loss 4 payout, BMW’s rights to recovery as the lienholder are limited to the amount it is owed 5 under the lease agreement rather than the appreciated actual cash value of the car it owns. 6 ECF No. 1, ¶¶ 33–34. 7 Plaintiff is mistaken. Payment to BMW under the Loss Payable Clause was 8 permissible. BMW is both a lienholder and an additional insured. ECF 1-2, at 8, 54. 9 Another policy provision states that Defendant “may settle claims for loss either with the 10 insured or the owner of the property.” ECF 1-2, at 34 (emphasis in original). Most 11 importantly, Plaintiff fails to allege any facts that he has an equity interest in the totaled 12 car and was therefore entitled to the equity surplus of the total loss payout. See ECF No. 1. 13 In fact, while Plaintiff’s lease agreement with BMW provides for a purchase option, he 14 does not allege exercising that option. See id; ECF No. 1-3, at 6. Just because “Plaintiff 15 had a contract for insurance of a lease vehicle does not lead to the conclusion that he was 16 entitled to the benefit of all proceeds on a vehicle he did not own.” Kumar v. Ally Fin. Inc., 17 No. 22-cv-05184-SVW-MRW, 2022 WL 16962283, at *3 (C.D. Cal. Oct. 17, 2022); see 18 also Tarkett v. USAA Gen. Indem. Co., No. 3:23-cv-01724-H-BLM, 2024 WL 2925325, at 19 *4 (S.D. Cal. Jun. 10, 2024) (dismissing the plaintiff’s breach of contract claim against his 20 insurer when he “fails to allege any facts in his amended complaint that he has an equity 21 interest in the totaled vehicle and thus, was entitled to the equity surplus of the total loss 22 payout”). 23 Because Plaintiff has not sufficiently alleged a claim for Defendant breaching its 24 insurance policy with him, the first claim is DISMISSED. 25 B. Claim 2: California’s Unfair Competition Law 26 Defendant argues the UCL claim should be dismissed because Plaintiff fails to plead 27 the equitable prerequisite of lack of an alternative remedy; seeks unrecoverable damages; 28 lacks standing to pursue injunctive relief; and fails to plausibly allege an unlawful, unfair, 1 or fraudulent business act or practice. ECF No. 4-1, at 18; ECF No. 8, at 6–8. 2 To bring a claim for a violation of California’s UCL, “a plaintiff must show either 3 an (1) ‘unlawful, unfair, or fraudulent business act or practice,’ or (2) ‘unfair, deceptive, 4 untrue or misleading advertising.’” Lippitt v. Raymond James Fin. Servs., 340 F.3d 1033, 5 1043 (9th Cir. 2003) (quoting Cal. Bus. & Prof. Code § 17200). The UCL’s coverage is 6 “sweeping,” and its standard for wrongful business conduct is “intentionally broad.” In re 7 First Alliance Mortg. Co., 471 F.3d 977, 995 (9th Cir. 2006) (citation omitted). An 8 “unlawful” practice under the UCL is a business practice that “is forbidden by law.” Cel- 9 Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999). 10 An “unfair” practice is a business practice that “offends an established public policy” 11 or is “unethical, oppressive, unscrupulous or substantially injurious to consumers.” Id.; see 12 also Day v. AT&T Corp., 63 Cal. App. 4th 325, 332 (1998) (“An ‘unfair’ practice under 13 section 17200 is one ‘whose harm to the victim outweighs it benefits.’” (citation omitted)). 14 “A fraudulent business practice is one that is likely to deceive members of the public.” 15 Boschma v. Home Loan Ctr., Inc., 198 Cal. App. 4th 230, 252 (2011) (citation omitted). 16 “The challenged conduct ‘is judged by the effect it would have on a reasonable consumer.’” 17 Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1169 (9th Cir. 2012). However, “[u]nlike 18 common law fraud, a [UCL] violation can be shown even without allegations of actual 19 deception, reasonable reliance and damage.” Daugherty v. Am. Honda Motor Co., Inc., 144 20 Cal. App. 4th 824, 838 (2006). “Absent a duty to disclose, the failure to do so does not 21 support a claim under the fraudulent prong of the UCL.” Berryman v. Merit Prop. Mgmt., 22 Inc., 152 Cal. App. 4th 1544, 1557 (2007). 23 Here, the UCL claim seeks equitable relief by way of restitution and injunctive relief. 24 ECF No. 1, ¶ 85. “[E]quitable relief is not appropriate where an adequate remedy exists at 25 law.” Schroeder v. U.S., 569 F.3d 956, 963 (9th Cir 2009). A plaintiff “must establish that 26 []he lacks an adequate remedy at law before securing equitable restitution for past harm 27 under the UCL.” Sonner v. Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020) 28 (citations omitted); see also Martinez v. Ford Motor Co., No. 22-cv-01082-MMA, 2022 1 WL 14118926, at *8 (S.D. Cal. Oct. 24, 2022) (“[A] party seeking equitable relief must 2 specifically plead the inadequacy of monetary damages in federal court.”) (citations 3 omitted). Plaintiff, however, failed to do so here. See ECF No. 1. 4 Plaintiff argues his claim for equitable relief is pled in the alternative and as such 5 permissible. ECF No. 7, at 19–20, 26. Claims for equitable relief may be pled in the 6 alternative at the pleading stage. See Johnson-Jack v. Health-Ade LLC, 587 F. Supp. 3d 7 957, 976 (N.D. Cal. 2022). Still, a “plaintiff must, at a minimum, plead that []he lacks 8 adequate remedies at law if []he seeks equitable relief.” Guthrie v. Transamerica Life Ins. 9 Co., 561 F. Supp. 3d 869, 875 (N.D. Cal. 2021) (emphasis removed) (citations omitted); 10 see also Martinez, 2022 WL 14118926, at *8. Plaintiff, again, failed to do so here. See ECF 11 No. 1. The UCL claim is therefore dismissed on this ground. See, e.g., Tarkett, 2024 WL 12 2925325, at *6 (dismissing the plaintiff’s UCL claim because the “complaint contains no 13 allegations establishing that Plaintiff’s legal remedies are inadequate”); Sonner, 971 F.3d 14 at 844; Freund v. HP, Inc., No. 22-cv-03794-BLF, 2023 WL 187506, at *6 (N.D. Cal. Jan. 15 13, 2023) (dismissing claims for equitable relief because the plaintiffs failed to plead they 16 lack an adequate remedy at law); Clark v. Am. Honda Motor Co., No. 20-cv-03147-AB- 17 MRWx, 2021 WL 1186338, at *8 (C.D. Cal. Mar. 25, 2021) (“Plaintiffs have not pointed 18 to any allegation in the Complaint pleading that they lack an adequate remedy at law.”). 19 Defendant also argues that Plaintiff lacks standing to pursue injunctive relief under 20 the UCL. ECF No. 4-1, at 24–25; ECF No. 8, at 6–7. Prospective injunctive relief under 21 the UCL requires a plaintiff to show a “a real or immediate threat of an irreparable injury.” 22 Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1021 (9th Cir. 2004) (quoting 23 Clark v. City of Lakewood, 259 F.3d 996, 1007 (9th Cir. 2001)) (emphasis removed). “In 24 other words, the ‘threatened injury must be certainly impending to constitute injury in fact’ 25 and ‘allegations of possible future injury are not sufficient.’” Davidson, 889 F.3d at 967 26 (quoting Clapper, 568 U.S. at 409) (emphasis removed). Plaintiff here fails to plead any 27 facts showing an immediate threat of a future injury that is certainly impending. See ECF 28 No. 1. Plaintiff’s future harm is thus “conjectural or hypothetical” and not “actual and 1 imminent.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). The UCL claim is 2 therefore dismissed on this ground as well. See, e.g., Tarkett, 2024 WL 2925325, at *6 3 (dismissing the plaintiff’s UCL claim because the plaintiff “fails to plead any facts showing 4 an immediate threat of a future injury that is certainly impending”); Small v. Allianz Life 5 Ins. Co. of N. Am., No. CV2001944TJHKESX, 2022 WL 17080169, at *1 (C.D. Cal. Mar. 6 29, 2022) (reasoning that because the plaintiff “did not allege that she has another 7 [defendant] life insurance policy that could be at risk of termination for nonpayment of 8 premiums,” “she lacks standing to seek injunctive relief for her alleged UCL violations”). 9 Because Plaintiff fails to state a claim for equitable relief and lacks standing to 10 pursue injunctive relief under the UCL, the second claim is DISMISSED and the Court 11 declines to address Defendant’s remaining arguments under this claim. 12 C. Claim 3: Breach of the Implied Covenant of Good Faith and Fair Dealing 13 Defendant argues the claim for breach of the implied covenant of good faith and fair 14 dealing should be dismissed because it is duplicative of the claim for breach of contract. 15 ECF No. 4-1, at 26–27; ECF No. 8, at 8–9. 16 “Every contract imposes upon each party a duty of good faith and fair dealing in its 17 performance and its enforcement.” Foley v. Interactive Data Corp., 47 Cal. 3d 654, 683 18 (1988) (citing Rest. 2d Contracts § 205). The implied covenant of good faith and fair 19 dealing in every contract obligates “that neither party will do anything which will injure 20 the right of the other to receive the benefits of the agreement.” Comunale v. Traders & 21 Gen. Ins. Co., 50 Cal. 2d 654, 658 (1958); see also Thrifty Payless, Inc. v. The Americana 22 at Brand, LLC, 218 Cal. App. 4th 1230, 1244 (2013) (“The covenant is read into contract 23 and functions ‘as a supplement to the express contractual covenants, to prevent a 24 contracting party from engaging in conduct which (while not technically transgressing the 25 express covenants) frustrates the other party's rights to the benefits of the contract.’” 26 (citation omitted) (emphasis removed)). 27 To assert a claim for breach of the covenant of good faith and fair dealing, a plaintiff 28 “must show that the conduct of the defendant, whether or not it also constitutes a breach of 1 a consensual contract term, demonstrates a failure or refusal to discharge contractual 2 responsibilities, prompted not by an honest mistake, bad judgement or negligence but 3 rather by a conscious and deliberate act.” Careau & Co. v. Sec. Pac. Bus. Credit, Inc., 222 4 Cal. App. 3d 1371, 1395 (1990). Such conduct must “unfairly frustrate[] the agreed 5 common purposes and disappoint[] the reasonable expectations of the other party thereby 6 depriving that party of the benefits of the agreement.” Id. Importantly, “[i]f the allegations 7 do not go beyond the statement of a mere contract and, relying on the same alleged acts, 8 simply seek the same damages or other relief already claimed in a companion contract 9 cause of action, they may be disregarded as superfluous as no additional claim is actually 10 stated.” Id. 11 Here, Plaintiff argues that Defendant breached its implied covenant of good faith 12 and fair dealing by its “decision to pay the entire loss payout to the leasing companies 13 instead of Plaintiff and other Class Members.” ECF No. 1, ¶ 99. This is the same 14 foundational premise as his claim for breach of contract. As such, the claim for breach of 15 the implied covenant of good faith and fair dealing “must give way to the breach of contract 16 claim.” Evanston Ins. Co. v. Harrison, No. 20-cv-01672-WBS-KJN, 2021 WL 260011, at 17 *3 (E.D. Cal. Jan. 26, 2021); see also Tarkett, 2024 WL 2925325, at *7 (dismissing the 18 plaintiff’s claim for breach of the implied covenant of good faith and fair dealing when he 19 uses “the same factual predicate” as his “breach of contract claim”). 20 Because Plaintiff’s breach of the implied covenant of good faith and fair dealing 21 claim is superfluous, the third claim is DISMISSED. 22 D. Claim 4: Declaratory Relief 23 Plaintiff seeks a “judicial determination of his rights and duties, and the rights and 24 duties of absent Class Members, and a declaration as to whether [Defendant’s] insurance 25 benefit payout practice is illegal or a breach of contract.” ECF No. 1, at ¶ 106. Defendant 26 argues the claim for declaratory relief is entirely duplicative of the claim for breach of 27 contract and therefore should be dismissed. ECF No. 4-1, at 27–28; ECF No. 8, at 9. 28 // 1 Under the Declaratory Judgment Act, “[a]ny court of the United States, upon the 2 filing of an appropriate pleading, may declare the rights and other legal relations of any 3 interested party seeking such declaration, whether or not further relief is or could be 4 sought.” 28 U.S.C. § 2201. “Courts deny requests for declaratory relief when it is 5 duplicative of other claims because ‘[a] claim for declaratory relief is unnecessary where 6 an adequate remedy exists under some other cause of action.’” Glendora Courtyard, LLC 7 v. BBVA Compass Bancshares Inc., No. 16-cv-01189-JLS-KSC, 2017 WL 960431, at *8 8 (S.D. Cal. Mar. 13, 2017) (quoting Mangindin v. Wash. Mut. Bank, 637 F. Supp. 2d 700, 9 707–08 (N.D. Cal. 2009)); see also Permpoon v. Wells Fargo Bank Nat. Ass’n, No. 09-cv- 10 01140-H-BLM, 2009 WL 3214321, at *5 (S.D. Cal. Sept. 29, 2009) (holding declaratory 11 relief was “duplicative and unnecessary” when “the declaratory relief Plaintiffs seek is 12 entirely commensurate with the relief sought through their other causes of action”). 13 Here, the declaratory relief Plaintiff seeks is entirely commensurate with the relief 14 sought through his breach of contract claim. See Tarkett, 2024 WL 2925325, at *7 15 (dismissing the plaintiff’s claim for “‘a declaration as to whether [Defendant’s] insurance 16 benefit payout practice is illegal or a breach of contract’” because it was “entirely 17 commensurate with the relief sought through his breach of contract claim”). 18 Because Plaintiff’s declaratory relief claim is duplicative, the fourth claim is 19 DISMISSED. 20 IV. LEAVE TO AMEND 21 Courts have discretion to grant leave to amend a complaint “when justice so 22 requires.” Fed. R. Civ. P. 15(a)(2). This discretion is guided by the strong federal policy 23 favoring dispositions on the merits and permitting amendments with “extreme liberality.” 24 DCD Programs Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). In deciding whether 25 to grant such leave, courts consider five factors: (1) “undue delay,” (2) “bad faith or dilatory 26 motive on the part of the movant,” (3) “repeated failure to cure deficiencies by amendments 27 previously allowed,” (4) “undue prejudice to the opposing party,” and (5) “futility of 28 amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). 1 Plaintiff seeks leave to amend for any dismissed claims, and Defendant cursorily 2 || opposes that request. ECF No. 7, at 32; ECF No. 8, at 8. Because it is conceivable that 3 || Plaintiff may cure the original pleading’s deficiencies, the Court grants him leave to amend 4 this early stage of litigation. See Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) 5 district court should grant leave to amend . . . unless it determines that the pleading 6 || could not possibly be cured by the allegation of other facts.”’). 7 Any amended complaint must be complete by itself without reference to the original 8 pleading. Any claim not re-alleged in an amended complaint will be considered waived. 9 || See S.D. Cal. CivLR 15.1; Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) 10 || (noting that claims dismissed with leave to amend which are not re-alleged in an amended 11 || pleading may be “considered waived if not repled.”). 12 ||V. CONCLUSION 13 For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss 14 || WITH LEAVE TO AMEND and DENIES AS MOOT the remaining requests and 15 || motions. Within thirty (30) days of this Order, Plaintiff may file a first amended complaint 16 cure the original complaint’s deficiencies, if he can. 17 IT IS SO ORDERED. 18 || Dated: August 9, 2024 NO 19 QF | 20 Honorable Linda Lopez 5 United States District Judge 22 23 24 25 26 27 28