1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ADRIAN ALBERTO ZAMORA, Case No.: 24-CV-236 TWR (DEB)
12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. UNOPPOSED MOTION TO DISMISS, GRANTING 14 BRIDGECREST CREDIT COMPANY, DEFENDANT’S REQUEST FOR LLC, an agent and servicer for Carvana 15 JUDICIAL NOTICE, AND LLC, DISMISSING ACTION WITH 16 Defendant. PREJUDICE 17 (ECF No. 4) 18 19 Presently before the Court is Defendant Bridgecrest Credit Company, LLC’s 20 unopposed Motion to Dismiss Complaint (ECF No. 4 (“Mot.”)). Also before the Court is 21 Defendant’s Request for Judicial Notice. (ECF No. 4-1 (“RJN”).) The Court took this 22 matter under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). 23 (See ECF No. 6.) Having carefully considered Plaintiff’s Complaint (ECF No. 1 24 (“Compl.”)), Defendant’s arguments, and the relevant law, the Court GRANTS 25 Defendant’s Motion to Dismiss Plaintiff’s Complaint pursuant to Rule 12(b)(6) and 26 GRANTS Defendant’s Request for Judicial Notice. 27 / / / 28 / / / 1 BACKGROUND 2 I. The Conditional Sale Contract and Security Agreement 3 On September 9, 2022, Plaintiff entered into a “consumer credit transaction” with 4 Bridgecrest Credit Company, LLC (“Bridgecrest”), as agent and servicer for Carvana, 5 LLC, in connection with the purchase of a used 2022 Tesla Model 3 (the “Vehicle”). (See 6 Compl. ¶ 5; ECF No. 1-2, Ex. 2; ECF No. 4-1 at 10–17 (the “Contract”).) Under the terms 7 of the Contract, Plaintiff agreed to make 71 monthly payments, beginning on October 9, 8 2022. (See Contract at 1.2) The “Total Sale Price” to Plaintiff, including his down payment 9 and monthly payments, is $90,481.46. (Id.) Defendant Bridgecrest, the agent and servicer 10 for Carvana, LLC, mandated a down payment at the time of purchase. (See Compl. ¶¶ 2, 11 5.) Plaintiff contends that Defendant violated Section 1605(a) of the Truth in Lending Act 12 (“TILA”) by requiring him to make a down payment. (See id. ¶ 8.) 13 The total “Finance Charge” to Plaintiff under the Contract is $17,908.33. (See 14 Contract at 1; see also Compl. ¶ 9.) The total “Finance Charge” does not include charges 15 related to car insurance, the exclusion of which Plaintiff contends also violated Section 16 1605 of the TILA. (See Compl. ¶¶ 9–10.) Defendant further required Plaintiff to purchase 17 car insurance before it delivered the Vehicle, which Plaintiff likewise contends violated 18 Section 1605(b) of the TILA. (See id. ¶ 10.) Defendant also “willfully and knowingly 19 failed to provide information about the finance charge components and Plaintiff’s federal 20 right to rescind within three days, violating 15 U.S.C. § 1611.” (Id. ¶ 11.) With respect to 21 the right to rescind, Plaintiff explains that “Defendant failed to notify or provide Plaintiff 22 with federally required information regarding the right to rescind from the transaction, as 23
24 25 1 For purposes of the Motion to Dismiss, the Court “must accept as true all material allegations in the complaint, as well as any reasonable inferences to be drawn from them,” and construe the Plaintiffs’ 26 operative pleadings “in the light most favorable to the plaintiff.” See Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). 27 2 Citation to pages in the Contract refer to the pages appearing in the bottom right-hand corner of 28 1 mandated by 15 U.S. Code § 1635 and 12 CFR § 1026.23.” (Id. ¶ 6.) He “was not furnished 2 with the federally required forms for exercising the right to rescind, as required by law.” 3 (Id. ¶ 7.) 4 II. Communications Between Plaintiff and Defendant 5 On September 12, 2022, Plaintiff sent Defendant the first of a series of nine letters.3 6 (See Compl. ¶¶ 13–32.) Plaintiff’s first letter purported to reject the arbitration agreement 7 contained in the Contract, rescind the Contract, revoke power of attorney, and demand that 8 Defendant refund his down payment. (See id. ¶ 13; see also ECF No. 1-2, Ex. 1.) Plaintiff’s 9 second letter, dated September 19, 2022, consisted of a “Cease and Desist” notice and a 10 “Bill of Particulars” purporting to charge Defendant $45,716.66–$1,000 for Defendant’s 11 violation of 15 U.S.C. § 1605; $1,000 for Defendant’s violation of 15 U.S.C. § 1605(b); 12 $1,000 for Defendant’s violation of 15 U.S.C. § 1611; $6,900 for Defendant’s violation of 13 15 U.S.C. § 1635; and $35,816.66 for Defendant’s violation of 15 U.S.C. § 1640. (See 14 Compl. ¶ 16; see also ECF No. 1-2, Ex. 2.) Plaintiff’s third letter, dated September 21, 15 2022, comprised a “Debt Validation Letter” and a further “Cease and Desist” notice. (See 16 Compl. ¶ 18; see also ECF No. 1-2, Ex. 3.) Defendant responded to one of Plaintiff’s 17 letters.4 (See Compl. ¶ 21.) 18 On October 31, 2022, Plaintiff sent Defendant a fourth letter consisting of a “Notice 19 of Fault and Opportunity to Cure.” (Compl. ¶ 22; see also ECF No. 1-2, Ex. 4.) Plaintiff’s 20 fifth letter, dated November 10, 2022, comprised a “Notice of Default and Consent to 21 Judgment,” which purported to find Defendant in default for its failure to pay the 22 $45,716.66 previously demanded in his “Bill of Particulars.” (See Compl. ¶ 25; see also 23 ECF No. 1-2, Ex. 5.) Plaintiff’s sixth letter to Defendant, dated December 14, 2022, 24
25 26 3 Some letters are addressed to “Carvana Legal,” while others are addressed to Defendant Bridgecrest. (See generally ECF No. 1-2.) 27 4 Plaintiff has not provided the Court with a copy of Defendant’s response. (See generally ECF 28 1 purported to contain a “sworn Affidavit of Truth in the form of Notice of Fault and 2 Opportunity to Cure.” (Compl. ¶ 26; see also ECF No. 1-2, Ex. 6.5) Plaintiff’s seventh 3 letter to Defendant, dated December 27, 2022, again contained a “Notice of Default and 4 Consent to Judgment.” (Compl. ¶ 29; see also ECF No. 1-2, Ex. 7.) Plaintiff’s eighth 5 letter, also dated December 27, 2022, comprised a “Notary Certificate of Dishonor and 6 Non-Response.” (Compl. ¶ 30, see also ECF No. 1-2, Ex. 8.) Finally, on January 6, 2023, 7 Plaintiff sent Defendant a ninth and final letter, again, consisting of a “Notary Certificate 8 of Dishonor and Non-Response.” (Compl. ¶ 31; see also ECF No. 1-2, Ex. 9.) 9 III. Procedural History 10 Plaintiff initiated this action against Defendant on February 5, 2024, asserting seven 11 claims for relief for violations of the TILA, the Fair Credit Reporting Act (“FCRA”), Fair 12 Debt Collection Practices Act (“FDCPA”), and associated regulations as well as various 13 state law claims. (See generally Compl.) Defendant filed the instant Motion to Dismiss 14 on April 8, 2024, and on April 16, 2024, the Court issued a briefing schedule requiring 15 Plaintiff to file his opposition to the Motion on or before July 11, 2024. (See ECF No. 5.) 16 Having failed to receive Plaintiff’s opposition, on July 17, 2024, the Court sua sponte 17 granted Plaintiff an extension of time—until August 8, 2024—to file any opposition and 18 took the Motion under submission on the papers pursuant to Civil Local Rule 7.1(d)(1). 19 (See ECF No. 6.) The Court warned Plaintiff, pursuant to the undersigned’s Standing Order 20 for Civil Cases, that “Plaintiff’s failure to file a timely opposition to the Motion may be 21 construed as ‘consent to the granting of the motion pursuant to Civil Local Rule 22 7.1(f)(3)(c).’ Accordingly, should Plaintiff fail to file an opposition on or before August 23 8, 2024, the Court may grant Defendant’s Motion and dismiss Plaintiff’s Complaint.” (Id. 24
25 26 5 In Exhibits 6–9, Plaintiff signs his communications “Attorney in Fact.” (See ECF No. 1-2, Exs. 6–9.) The Court has no record of an attorney admitted to practice before this District under the name 27 “Adrian Alberto Zamora,” and Plaintiff has not represented to the Court that he is an attorney. Plaintiff is reminded that the unauthorized practice of law is a crime in California. See Cal. Bus. & Prof. Code 28 1 at 2 (emphasis in original).) As of the date of this Order, the Court has not received either 2 a timely or untimely opposition from Plaintiff. (See generally Docket.) 3 LEGAL STANDARDS 4 I. Rule 12(b)(6) 5 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 6 state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” 7 Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro 8 v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). “A district court’s dismissal for failure to 9 state a claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a ‘lack of 10 a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 11 theory.’” Id. at 1242 (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 12 Cir. 1988)). 13 “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and 14 plain statement of the claim showing that the pleader is entitled to relief.’” Ashcroft v. 15 Iqbal, 556 U.S. 662, 677–78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). “[T]he pleading 16 standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands 17 more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678 18 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “[a] 19 pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a 20 cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). 21 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 22 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 23 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads 24 factual content that allows the court to draw the reasonable inference that the defendant is 25 liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[W]here the 26 well-pleaded facts do not permit the court to infer more than the mere possibility of 27 misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is 28 1 entitled to relief.’” Id. at 679 (second alteration in original) (quoting Fed. R. Civ. P. 2 8(a)(2)). 3 “If a complaint is dismissed for failure to state a claim, leave to amend should be 4 granted ‘unless the court determines that the allegation of other facts consistent with the 5 challenged pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight 6 Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well 7 Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). “A district court does not err in 8 denying leave to amend where the amendment would be futile.” Id. (citing Reddy v. Litton 9 Indus., 912 F.2d 291, 296 (9th Cir. 1990), cert. denied, 502 U.S. 921 (1991)). 10 Courts have a duty to construe a pro se litigant’s pleadings liberally. See Karim- 11 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). In giving liberal 12 interpretation to a pro se complaint, however, a court may not “supply essential elements 13 of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 14 F.2d 266, 268 (9th Cir. 1982). 15 II. Rule 9(b) 16 Federal “Rule [of Civil Procedure] 9(b) requires that, when fraud is alleged, ‘a party 17 must state with particularity the circumstances constituting fraud.’” Kearns v. Ford Motor 18 Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (quoting Fed. R. Civ. P. 9(b)). “Rule 9(b) 19 demands that the circumstances constituting the alleged fraud be specific enough to give 20 defendants notice of the particular misconduct . . . so that they can defend against the charge 21 and not just deny that they have done anything wrong.” Id. (alteration in original) (internal 22 quotation mark omitted) (quoting Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 23 2001)). “Averments of fraud must be accompanied by the who, what, when, where, and 24 how of the misconduct charged.” Id. (internal quotation marks omitted) (quoting Vess v. 25 Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003)). 26 / / / / / / 27 / / / 28 / / / 1 DISCUSSION 2 I. Defendant’s Request for Judicial Notice 3 “Judicial notice under Rule 201 permits a court to notice an adjudicative fact if it is 4 ‘not subject to reasonable dispute.’” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 5 999 (9th Cir. 2018) (quoting Fed. R. Evid. 201(b)). “A fact is ‘not subject to reasonable 6 dispute’ if it is ‘generally known,’ or ‘can be accurately and readily determined from 7 sources whose accuracy cannot reasonably be questioned.’” Id. (quoting Fed. R. Evid. 8 201(b)(1)–(2)). “Accordingly, ‘[a] court may take judicial notice of matters of public 9 record without converting a motion to dismiss into a motion for summary judgment.’” Id. 10 (quoting Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001)). “But a court cannot 11 take judicial notice of disputed facts contained in such public records.” Id. (citing Lee, 250 12 F.3d at 689). 13 Defendant requests that the Court judicially notice the Complaint it filed against 14 Plaintiff in the Superior Court of California, County of San Diego, on January 8, 2024 (the 15 “State Court Complaint”) and the exhibit attached to it. The exhibit to the State Court 16 Complaint is a copy of the full text of the Contract. (See ECF No. 4-1 at 10–17.) First, 17 “[p]roper subjects of judicial notice when ruling on a Rule 12 motion include court 18 documents already in the public record and documents filed in other courts; records of state 19 agencies; and publicly accessible websites.” Minor v. FedEx Off. & Print Servs., Inc., 78 20 F. Supp. 3d 1021, 1027 (N.D. Cal. 2015) (internal citations omitted). Because both the 21 State Court Complaint and its exhibit are already available as documents filed in another 22 court, the Court finds both are properly subject to judicial notice. See id. The Court, 23 therefore, judicially notices the State Court Complaint for the limited purpose of 24 determining the claim that Defendant has filed against Plaintiff in the Superior Court of 25 California, County of San Diego. 26 Second, the Court finds that the full text of the Contract that appears as the exhibit 27 to the State Court Complaint has been incorporated by reference into Plaintiff’s Complaint 28 in this action. “[U]nder the ‘incorporation by reference’ doctrine, [courts may] take into 1 account documents ‘whose contents are alleged in a complaint and whose authenticity no 2 party questions, but which are not physically attached to the [plaintiff's] pleading.’” 3 Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (quoting In re Silicon Graphics Inc. 4 Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999)). “The doctrine prevents plaintiffs from 5 selecting only portions of documents that support their claims, while omitting portions of 6 those very documents that weaken–or doom–their claims.” Khoja, 899 F.3d at 1002 (citing 7 Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998)). Consequently, “a defendant may 8 seek to incorporate a document into the complaint ‘if the plaintiff refers extensively to the 9 document or the document forms the basis of the plaintiff's claim.’” Id. (quoting United 10 States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003)). The Ninth Circuit has “extended the 11 ‘incorporation by reference’ doctrine to situations in which the plaintiff’s claim depends 12 on the contents of a document, the defendant attaches the document to its motion to dismiss, 13 and the parties do not dispute the authenticity of the document, even though the plaintiff 14 does not explicitly allege the contents of that document in the complaint.” Knievel, 183 15 F.3d at 986 (citing Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998)). 16 “However, if the document merely creates a defense to the well-pled allegations in 17 the complaint, then that document did not necessarily form the basis of the complaint.” 18 Khoja, 899 F.3d at 1002. “Otherwise, defendants could use the doctrine to insert their own 19 version of events into the complaint to defeat otherwise cognizable claims.” Id. at 1002– 20 03 (citing Glob. Network Commc’ns, Inc. v. City of N.Y., 458 F.3d 150, 156–57 (2d Cir. 21 2006); In re Immune Response Sec. Litig., 375 F. Supp. 2d 983, 995–96 (S.D. Cal. 2005)). 22 “For this same reason, what inferences a court may draw from an incorporated document 23 should also be approached with caution.” Id. at 1003. Although “a court ‘may assume [an 24 incorporated document’s] contents are true for purposes of a motion to dismiss under Rule 25 12(b)(6),’” id. (alteration in original) (quoting Marder v. Lopez, 450 F.3d 445, 448 (9th 26 Cir. 2006)), “it is improper to assume the truth of an incorporated document if such 27 assumptions only serve to dispute facts stated in a well-pleaded complaint.” Id. 28 1 Here, the Contract forms the basis of Plaintiff’s Complaint, but Plaintiff failed to 2 attach the entirety of the Contract to his Complaint and instead attached only the first page 3 of the Contract.6 (See ECF No. 1-2, Ex. 2.) Because Plaintiff has not filed an opposition 4 and, therefore, does not dispute the authenticity of the Contract attached to the State Court 5 Complaint, the Court properly may consider it as being incorporated by reference into 6 Plaintiff’s Complaint. 7 II. Defendant’s Motion to Dismiss Under Rule 12(b)(6) 8 Defendant moves to dismiss each of the seven claims in Plaintiff’s Complaint for: 9 (1) violation of the TILA; (2) violation of the FCRA; (3) violation of the FDCPA; (4) 10 breach of contract; (5) fraudulent inducement; (6) violation of “Consumer Rights under 15 11 U.S.C. Chapter 41;” and (7) violation of “Notice of Rescission under 15 U.S.C. § 1635.” 12 (See Compl. at 7.) Preliminarily, the Court concludes Plaintiff’s Complaint lacks sufficient 13 factual matter that, accepted as true, would permit him to state a claim for relief that is 14 plausible on its face. See Iqbal, 556 U.S. at 678. Plaintiff offers only vague and conclusory 15 assertions of misconduct that do not raise the right to relief above the speculative. Indeed, 16 even under the most liberal construction, Plaintiff’s Complaint patently seeks title to a 17 vehicle—lien-free—without paying off the loan, as well as $45,716.66, neither of which 18 remedies has any basis in fact or law. (See Compl. ¶¶ 15, 17, 24, 28.) 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 25 6 Plaintiff is reminded that despite his pro se status, pursuant to Federal Rule of Civil Procedure 26 11(b)(3), “[b]y presenting to the court a pleading . . . an unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the 27 circumstances: . . . the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery[.]” 28 1 A. Plaintiff’s First, Sixth, and Seventh Causes of Action Based on the Truth 2 in Lending Act 3 Because Plaintiff’s first, sixth, and seventh claims all appear to sound under the 4 TILA and related regulations, the Court considers these claims together.7 5 1. Plaintiff’s First Cause of Action for Violation of the TILA 6 Plaintiff alleges that Defendant violated 15 U.S.C. § 1605 in three ways: (1) by 7 requiring Plaintiff to make a down payment; (2) by failing to mention the requirement to 8 include car insurance in the Contract’s “finance charge;” and (3) by requiring Plaintiff to 9 purchase car insurance before the car was delivered to him. (See Compl. ¶¶ 8–10.) 10 Defendant argues that Plaintiff has failed to allege facts showing that Defendant has 11 violated § 1605. (See Mot. at 4–5.) The Court agrees with Defendant. 12 As a preliminary matter, it appears that the TILA does not apply under the facts of 13 this case. Section 1603 provides, “[t]his subchapter does not apply to the following: . . . 14 (3) Credit transactions, other than those in which a security interest is or will be acquired 15 in real property, or in personal property used or expected to be used as the principal 16 dwelling of the consumer and other than private education loans . . ., in which the total 17 amount financed exceeds $50,000.” 15 U.S.C. § 1603(3). Here, the Contract shows that 18 the total “Amount Financed” to purchase the used Tesla is $65,673.13. (See Contract at 1; 19 Compl., Ex. 2.) Because the amount financed exceeds $50,000 and does not relate to 20 private education loans, a security interest in real property, or a security interest in personal 21 property to be used as the consumer’s principal dwelling, the TILA is inapplicable. See 15 22 U.S.C. § 1603(3); see also, e.g., Mims v. Capital One Auto Fin., No. 23-cv-1567, 2024 WL 23
24 25 7 Plaintiff’s first claim for “Violation of Truth in Lending Act (TILA)” and sixth claim for “Violation of Consumer Rights” are broadly identified as arising under “15 U.S.C. Chapter 41.” (See 26 Compl. § III.) Chapter 41 encompasses six subchapters spanning 15 U.S.C. §§ 1601–1693r. The Court, accordingly, assumes as Defendant did, that Plaintiff’s first and sixth claims are being brought pursuant 27 to the specific statutory provisions of the TILA identified in the Complaint. Plaintiff’s seventh claim for “Violation of Notice of Rescission,” by contrast, is identified clearly as arising under 15 U.S.C. § 1635 28 1 758928, at *8 (N.D. Tex. Jan. 25, 2024), report and recommendation adopted, 2024 WL 2 758536 (N.D. Tex. Feb. 22, 2024) (recommending plaintiff be denied leave to amend 3 where amount plaintiff financed to purchase car was $52,648.30 because the TILA does 4 not apply where the amount financed exceeds $50,000 and the transaction did not fit into 5 specified categories) (collecting cases)). 6 Regardless, Plaintiff’s TILA claims fail on the merits. Congress enacted the TILA 7 “to assure a meaningful disclosure of credit terms” and “to protect the consumer against 8 inaccurate and unfair credit billing and credit card practices.” 15 U.S.C. § 1601(a). 9 Pursuant to 15 U.S.C. § 1632, a creditor must disclose the amount of any “finance charge” 10 clearly and conspicuously to the consumer. See 15 U.S.C. § 1632(a). Section 1605 defines 11 a “finance charge” as “the sum of all charges, payable directly or indirectly by the person 12 to whom the credit is extended, and imposed directly or indirectly by the creditor as an 13 incident to the extension of credit.” 15 U.S.C. § 1605(a). Section 1605(a) continues by 14 providing “[e]xamples of charges which are included in the finance charge,” including 15 “[b]orrower-paid mortgage broker fees paid directly to the broker or the lender (for delivery 16 to the broker) whether such fees are paid in cash or financed.” Id. § 1605(a)(6). 17 As to the down payment, the TILA expressly contemplates that a down payment 18 may be made and requires lenders to disclose accurately the “amount financed,” which is 19 calculated first by “tak[ing] the principal amount of the loan or the cash price less 20 downpayment and trade-in[.]” 15 U.S.C. § 1638(a)(2)(A)(i). Plaintiff fails to allege any 21 facts from which the Court could discern how Defendant violated any disclosure 22 obligations imposed by Section 1605 by requiring a down payment. See Wepsic v. 23 Josephson, 231 B.R. 768, 771 (Bankr. S.D. Cal. 1998) (explaining that the TILA is “a 24 disclosure statute . . . requiring the accurate and uniformly computed disclosures of the 25 critical elements” of a consumer loan); see also Marshall v. Mechanics Bank Auto Fin., 26 No. 22-cv-6973, 2023 WL 2628674, at *4 (C.D. Cal. Feb. 15, 2023) (“No set of facts would 27 support Plaintiff’s claim that down payments are per se illegal under the Truth in Lending 28 Act.”); Butler v. Global Lending Servs., No. 22-cv-1938, 2023 WL 4948312, at *6 (D. Md. 1 Aug. 3, 2023) (“Plaintiff points to no law or facts to support her view that Global Lending 2 could not impose a finance charge on her auto loan, because she made a cash down payment 3 to purchase her vehicle.”); Washington v. Pac. Credit Exchange, No. 21-cv-2374, 2021 4 WL 5868981, at *4 (N.D. Cal. Nov. 17, 2021), report and recommendation adopted, 2021 5 WL 5865531 (N.D. Cal. Dec. 10, 2021) (dismissing with prejudice claim brought pursuant 6 to Section 1605 because plaintiff, who was party to car loan, “misconstrue[ed] a statute 7 that merely defines the term ‘finance charge,’ 15 U.S.C. § 1605(a), as instead imposing 8 substantive obligations to return a down payment and provide insurance”); Parker v. 9 Bridgecrest Credit Co., LLC, No. 21-cv-1628, 2021 WL 4137581, at *3 (D. S.C. Sept. 10, 10 2021) (dismissing claim under §1605 based on defendants’ alleged taking of cash in a 11 consumer credit transaction “with a finance charge involved” where plaintiff had entered 12 into retail installment sales contract to finance purchase of an automobile); Clark v. 13 Carvana, No. 21-cv-1113, 2021 WL 2478570, at *3 (N.D. Ga. Apr. 28, 2021) (“[A]s for 14 Clark’s claim based on § 1605 that defendants took cash in a consumer credit transaction 15 in which a finance charge was involved, he does not elaborate on this claim or provide any 16 facts in support, and his allegation is therefore insufficient to state a plausible claim for 17 relief[.]” (cleaned up)). 18 Plaintiff’s allegations that Defendant violated the TILA by failing to include car 19 insurance in the “finance charge,” (Compl. ¶ 9), and by requiring him to obtain car 20 insurance, (id. ¶ 10), fare no better.8 Section 1605 provides that examples of charges 21 included in the finance charge include, among other things, “premium or other charge for 22 any guarantee or insurance protecting the creditor against the obligor’s default or other 23 credit loss.” 15 U.S.C. § 1605(a)(5). Section 1605(a)(5), however, “relates to credit 24 insurance protecting Defendant against credit loss, not to car insurance.” Johnson v. Local 25 26 27 8 Plaintiff only identifies one provision of the TILA that Defendant allegedly has violated, 15 U.S.C. § 1605(b). (See Compl. ¶¶ 9–10.) Out of an abundance of caution, the Court considers other provisions 28 1 Gov’t Fed. Credit Union, No. 22-cv-010, 2022 WL 1228216, at *2 (W.D.N.C. Apr. 26, 2 2022); see also McMillan v. Templin, No. 22-cv-1675, 2023 WL 3996477, at *9 (D. Md. 3 June 14, 2023) (explaining that Section 1605(a)(5) “does not pertain to ‘auto insurance,’ 4 which protects against property loss or damage”); Smith v. Fussell, No. 21-cv-3773, 2021 5 WL 9598413, at *2 (N.D. Ga. Sept. 22, 2021) (“Plaintiff’s citation to the TILA’s definition 6 of a finance charge is perplexing because it is unclear how making a down payment and 7 paying automobile insurance violates the Act.”). Any reliance on this provision, 8 accordingly, is misplaced. 9 Section 1605(b), which Plaintiff does cite, deals with “[c]harges or premiums for 10 credit life, accident, or health insurance” included in a finance charge. 15 U.S.C. § 1605(b). 11 Plaintiff, however, does not allege that Defendant improperly charged him for accident 12 insurance in connection with his loan agreement. (See generally Compl.) Although 13 Plaintiff alleges that he was required to obtain car insurance for the Tesla, he does not 14 allege, and the Contract does not show, that he was required to purchase car insurance from 15 Defendant. (See Compl. ¶¶ 9–10; Contract at 3, 5.) Nor does Plaintiff allege, or the 16 Contract show, that Plaintiff actually obtained such insurance from Defendant. (See 17 Compl. ¶¶ 9–10; Contract at 3, 5.) Indeed, the Contract indicates that Plaintiff elected not 18 to obtain insurance from Carvana and that the price of the Tesla did not include any 19 insurance options, let alone the type to which Section 1605(b) applies. (See Contract at 3 20 (indicating “N/A” as to offered insurance options)); see also Ishmael v. GM Fin., Inc., No. 21 22-cv-1095, 2022 WL 2073821, at *4 (E.D. Pa. June 9, 2022) (concluding plaintiff failed 22 to state a claim for violation of § 1605(b) where plaintiff alleged that defendant should 23 have disclosed that insurance should have been included in finance charge); McCoy v. 24 Merck Sharp & Dohme Fed. Credit Union, No. 21-cv-4550, 2022 WL 138071 (E.D. Pa. 25 Jan. 14, 2022) (rejecting plaintiff’s § 1605(b) claim where complaint did not allege plaintiff 26 purchased insurance from defendant or that defendant charged plaintiff for insurance 27 improperly). As such, Plaintiff cannot sustain a claim for violation of § 1605(b). 28 1 The Court infers, rather, that Plaintiff meant to bring a claim under § 1605(c), which 2 concerns property insurance. Section 1605(c) provides that any insurance “against loss of 3 or damage to property”—car insurance—must be included in the finance charge “unless a 4 clear and specific statement in writing is furnished by the creditor . . . setting forth the cost 5 of the insurance if obtained from or through the creditor, and stating that the person to 6 whom the credit is extended may choose the person through which the insurance is 7 obtained.” 15 U.S.C. § 1605(c). Federal regulations expounding on the TILA clarify that 8 “premiums for insurance against loss of or damage to property, or against liability arising 9 out of the ownership or use of property[,] may be excluded from the finance charge if the 10 insurance coverage may be obtained from a person of the consumer’s choice, and this fact 11 is disclosed.” Pickett v. All In Credit Union, No. 22-cv-75, 2022 WL 18276701, at *4 12 (S.D. Ala. Dec. 13, 2022) (citing 12 C.F.R. § 226.4(d)(2)) (collecting cases), report and 13 recommendation adopted, 2023 WL 173620 (S.D. Ala. Jan. 12, 2023); see also 12 C.F.R. 14 § 1026.4(d)(2). Additionally, “a creditor may reserve the right to refuse to accept, for 15 reasonable cause, an insurer offered by the consumer.” Id. Here, the Contract expressly 16 provides that: 17 NOTICE. No person is required as a condition precedent to financing the purchase of an automobile that any insurance be negotiated or purchased 18 through a particular insurance agent or broker. 19 You must insure the vehicle and other property securing this Contract. . . . 20 UNLESS A CHARGE IS INCLUDED IN THIS AGREEMENT FOR 21 PUBLIC LIABILTIY OR PROPERTY DAMAGE INSURANCE, PAYMENT FOR SUCH COVERAGE IS NOT PROVIDED BY THIS 22 AGREEMENT. 23 . . . You may buy the required Property Insurance from any company reasonably 24 acceptable to us. 25 26 (Contract at 3; see also Contract at 5 (“You may purchase or provide the [property] 27 insurance through any insurance company reasonably acceptable to us.”).) Plaintiff, who 28 expressly elected not to obtain insurance through Carvana (see Contract at 3, 5), fails to 1 allege specifically how this provision—or any other provision—of the Contract violates 2 Section 1605(c) and its related regulations. (See generally Complaint.) As such, the Court 3 concludes that Plaintiff has not plausibly alleged a violation of Sections 1605(a)(5), 4 1605(b), or 1605(c). See, e.g., McMillan, 2023 WL 3996477, at *9; Pickett, 2022 WL 5 18276701, at *4 (“Because the contract here allowed Plaintiff to furnish the insurance 6 through anyone he chose, the premium was properly excluded from the finance charge.”); 7 Redmond v. Calavan Chrysler Dodge Jeep Ram, No. 21-cv-180, 2021 WL 7708418, at *3 8 (N.D. Ga. Oct. 4, 2021), report and recommendation adopted, 2021 WL 7708535 (N.D. 9 Ga. Oct. 27, 2021) (“[I]t is unclear how defendant’s request that plaintiff prove he 10 maintains automobile insurance before purchasing the vehicle or its limitation on the 11 amount of down payment accepted via credit card violates the Act.”). 12 Finally, the Court notes that a plain reading of the Contract makes clear that Carvana 13 disclosed all credit terms for Plaintiff’s auto loan, including the finance charge, when 14 Plaintiff executed the Contract. (See Contract at 1; see also Compl., Ex. 2.) The Contract 15 discloses under the “Truth-in-Lending Disclosure” heading a finance charge, “The dollar 16 amount the credit will cost you,” of $17,908.33. (See Contract at 1; see also Compl., Ex. 17 2.) Given this further evidence, Plaintiff has not stated a plausible claim under the TILA. 18 The Court, therefore, DISMISSES Plaintiff’s first cause of action. 19 2. Plaintiff’s Sixth Cause of Action for Violation of the TILA 20 Plaintiff next alleges that “Defendant willfully and knowingly failed to provide 21 information about the finance charge components and Plaintiff’s federal right to rescind 22 within three days, violating 15 U.S. Code § 1611.” (Compl. ¶ 11.) Defendant argues that 23 Section 1611 does not provide consumers with a private right of action. (Mot. at 5–6.) The 24 Court agrees with Defendant. 25 Section 1611 imposes criminal penalties for “willful[] and knowing[]” TILA 26 violations but does not provide a private right of action. See 15 U.S.C. § 1611; see also 27 McDonald v. JP Morgan Chase Bank N.A., No. 12-cv-860, 2012 WL 1714168, at *3 (S.D. 28 1 Cal. May 15, 2012) (“TILA section 1611 is a criminal provision, which does not provide a 2 private right of action.”). Plaintiff’s sixth cause of action is, accordingly, DISMISSED. 3 3. Plaintiff’s Seventh Cause of Action for Violation of 15 U.S.C. § 1635 4 of the TILA 5 Plaintiff alleges that Defendant violated 15 U.S.C. § 1635 and 12 C.F.R. § 1026.23 6 by failing to notify or provide Plaintiff with information or forms related to his right to 7 rescind the Contract. (See Compl. ¶¶ 6–7.) Defendant argues that Plaintiff has failed to 8 state a claim pursuant to either provision because those provisions apply only to residential 9 mortgages, not to auto loans. (See Mot. at 4.) The Court, again, agrees with Defendant. 10 Section 1635 facially applies only to loans where a security interest “is or will be retained 11 or acquired in any property which is used as the principal dwelling of the person to whom 12 credit is extended” and does not apply to the car loan at issue. 15 U.S.C. § 1635(a) 13 (emphasis added); see also 12 C.F.R. § 1026.23(a)(1) (“In a credit transaction in which a 14 security interest is or will be retained or acquired in a consumer’s principal dwelling, each 15 consumer whose ownership interest is or will be subject to the security interest shall have 16 the right to rescind the transaction[.]” (emphasis added)). Because the consumer 17 transaction Plaintiff seeks to rescind is an automobile financing contract with no alleged 18 connection to his principal dwelling, he cannot state a claim for relief under either §1635 19 or 12 C.F.R. § 1026.23. See, e.g., West v. Wells Fargo Auto, No. 22-cv-4405, 2023 WL 20 199676, at *3 (E.D. Pa. Jan. 17, 2023) (“Courts routinely hold that the right to rescind 21 under § 1635(a) does not apply to the purchase of motor vehicles.”); Amezcuz v. GM Fin., 22 No. 21-cv-1081, 2022 WL 1843993, at *2 (C.D. Cal. Feb. 24, 2022) (explaining that 23 § 1635 “does not apply to the automobile finance contract to which [the plaintiff] is a 24 party”); Washington, 2021 WL 58689, at *4 (“His reliance on 15 U.S.C. § 1635 as requiring 25 disclosure of rescission is similarly misguided, as that statute by its terms applies only to 26 loans where a security interest is ‘acquired in any property which is used as the principal 27 dwelling of the person to whom credit is extended,’ which does not apply to the car loan at 28 1 issue.” (quoting 15 U.S.C. § 1635(a)). In fact, the Contract explicitly provides that there 2 is no right of rescission, as required by California law: 3 THERE IS NO COOLING OFF PERIOD UNLESS YOU OBTAIN A CONTRACT CANCELLATION OPTION. 4
5 California law does not provide for a “cooling off” or other cancellation period for vehicle sales. Therefore, you cannot later cancel this contract simply 6 because you change your mind, decide the vehicle costs too much, or you wish 7 you had acquired a different vehicle.
8 (Contract at 8); see also Cal. Civ. Code § 2982(r) (mandating the inclusion of this language 9 in automobile sales finance contracts). 10 Accordingly, Defendant’s Motion to dismiss Plaintiff’s seventh cause of action is 11 GRANTED. 12 B. Plaintiff’s Second Cause of Action Based on the Fair Credit Reporting 13 Act 14 Plaintiff purports to bring a claim pursuant to the FCRA, 15 U.S.C. § 1681, et seq., 15 but fails to allege clearly any facts pertaining to that claim. (See Compl. ¶ 3, § III.) As 16 Defendant did, the Court instead considers the exhibits attached to Plaintiff’s Complaint in 17 analyzing whether Plaintiff has stated a claim for relief. 18 Congress enacted the FCRA “to ensure fair and accurate credit reporting, promote 19 efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. 20 v. Burr, 551 U.S. 47, 52 (2007). “[T]o this end, the [FCRA] sought to make ‘consumer 21 reporting agencies exercise their grave responsibilities [in assembling and evaluating 22 consumers’ credit, and disseminating information about consumers’ credit] with fairness, 23 impartiality, and a respect for the consumer’s right to privacy.” Gorman v. Wolpoff & 24 Abramson, LLP, 584 F.3d 1147, 1153 (9th Cir. 2009) (quoting 15 U.S.C. § 1681(a)(4) 25 (alteration in original)). Consumer reporting agencies collect data from “furnishers”—the 26 sources of the credit information. See id. The FCRA imposes additional duties on the 27 furnishers. See id. “Section 1681s-2 sets forth ‘[r]esponsibilities of furnishers of 28 1 information to consumer reporting agencies’ delineating two categories of 2 responsibilities.” Id. at 1154 (quoting 15 U.S.C. § 1681s-2). The first category of 3 responsibilities concerns the duty “to provide accurate information,” 15 U.S.C. § 1681s- 4 2(a), but is enforceable only by federal or state agencies. Gorman, 584 F.3d at 1154 (citing 5 15 U.S.C. § 1681s-2(d)). The second category of responsibilities concerns the furnisher’s 6 duties upon notice of a dispute—“that is, when a person who furnished the information to 7 a [consumer reporting agency] receives notice from the [consumer reporting agency] that 8 the consumer disputes the information.” Id. (citing 15 U.S.C. § 1681i(a)(2)). “These duties 9 arise only after the furnisher receives notice of dispute from a [consumer reporting agency]; 10 notice of a dispute received directly from the consumer does not trigger furnishers’ duties 11 under subsection (b).” Id. (citing 15 U.S.C. § 1681s-2(b)(1)). “The FCRA expressly 12 creates a private right of action for willful or negligent noncompliance with its 13 requirements.” Id. “However, § 1681s-2 limits this private right of action to claims 14 arising under subsection (b), the duties triggered upon notice of a dispute from a [consumer 15 reporting agency].” Id. (citing 15 U.S.C. § 1681s-2(c)). 16 Here, Plaintiff has not alleged that Defendant is a consumer reporting agency, so the 17 Court assumes he is pursuing a claim against Defendant as a furnisher. (See generally 18 Compl.) To state a plausible claim under the FCRA against a furnisher of credit 19 information, a plaintiff must allege the following: 20 (1) a credit reporting inaccuracy existed on plaintiff’s credit report; (2) plaintiff notified the consumer reporting agency that plaintiff disputed the 21 reporting as inaccurate; (3) the consumer reporting agency notified the 22 furnisher of the alleged inaccurate information of the dispute; and (4) the furnisher failed to investigate the inaccuracies or further failed to comply with 23 the requirements in 15 U.S.C. 1681s-2(b) (1)(A)-(E). 24 25 Horvath v. JP Morgan Chase & Co., No. 21-cv-1665, 2022 WL 80474, at *6 (S.D. 26 Cal. Jan. 7, 2022) (quoting Hughes v. IQ Data Int’l Inc., No. 15-cv-5118, 2016 WL 27 7406993, at *2 (N.D. Cal. Dec. 22, 2016)). 28 1 Here, Plaintiff fails to include any facts supporting the elements of his FCRA claim 2 in his Complaint. (See generally Compl.) He does attach a letter to his Complaint in which 3 he states: 4 At this time, I will also inform you that if your offices have reported invalidated information to any of the 3 major credit bureaus (Equifax, 5 Experian, or Transunion) this action may constitute fraud under both Federal 6 and State Laws. Due to this fact, if any negative mark is found on any of my credit reports by your company or the company you represent, I will not 7 hesitate in bringing legal action against you and your client following: 8 Violation of the Fair Credit Reporting Act, Violation of the Fair Debt Collection Practices Act, and Defamation of Character. 9 10 (ECF No. 1-2, Ex. 3.) He also encloses an “Identity Theft Report” he submitted to the 11 Federal Trade Commission. (Id.) However, nowhere does Plaintiff claim to have 12 submitted a notice of dispute to a consumer reporting agency. See Gens v. Colonial 13 Savings, F.A., No. 11-cv-5526, 2013 WL 4730283, at *6 (N.D. Cal. Sept. 3, 2013) (“The 14 Federal Trade Commission is not a consumer reporting agency.” (citing 15 U.S.C. § 15 1681a(p)); Ollestad v. Kelley, 573 F.2d 1109, 1111 (9th Cir. 1978) (“[T]he Federal Trade 16 Commission, the agency charged with administering the FCRA, has concluded that federal 17 agencies are not consumer reporting agencies within the meaning of the act.”). Nor does 18 Plaintiff claim that Defendant received notice of the dispute from a consumer reporting 19 agency. (See generally Compl.; ECF No. 1-2, Ex. 3.) Because Defendant’s duties under 20 15 U.S.C. § 1681s-2(b) are only triggered “after the furnisher receives notice of dispute 21 from a [consumer reporting agency],” Plaintiff has failed to supply the Court with any facts 22 that would support the inference that Defendant’s duties were triggered. See Gorman, 584 23 F.3d at 1154 (“[N]otice of a dispute received directly from the consumer does not trigger 24 furnishers’ duties under subsection (b).”). 25 Accordingly, Defendant’s Motion to dismiss Plaintiff’s second cause of action for 26 violation of the FCRA is GRANTED. 27 / / / 28 / / / 1 C. Plaintiff’s Third Cause of Action Based on the Fair Debt Collection 2 Practices Act 3 As with his Fair Credit Reporting Act claim, Plaintiff purports to bring a claim 4 pursuant to the FDCPA, 15 U.S.C. § 1692, et seq., but fails to allege clearly any facts 5 pertaining to that claim. (See Compl. ¶ 3, § III.) The Court again considers the exhibits 6 attached to Plaintiff’s Complaint in analyzing whether Plaintiff has stated a claim for relief. 7 The FDCPA was enacted to “eliminate abusive debt collection practices by debt 8 collectors . . . and to promote consistent state action to protect consumers against debt 9 collection abuses.” 15 U.S.C. § 1692. To state a claim under the FDCPA, “a plaintiff must 10 establish that (1) the plaintiff is a consumer, (2) who was the object of a collection activity 11 arising from a debt, (3) the defendant is a debt collector, and (4) the defendant violated a 12 provision of the FDCPA.” Marshall, 2023 WL 2628674, at *3 (quoting Munoz v. Cal. Bus. 13 Bureau, Inc., No. 15-cv-1345, 2016 WL 6517655, at *4 (E.D. Cal. Nov. 1, 2016)). The 14 FDCPA defines “consumer” as “any natural person obligated or allegedly obligated to pay 15 any debt.” 15 U.S.C. § 1692a(3). Broadly, a “debt collector” is “any person who uses any 16 instrumentality of interstate commerce or the mails in any business the principal purpose 17 of which is the collection of any debts, or who regularly collects or attempts to collect, 18 directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. 19 § 1692a(6). A defendant must “attempt to collect debts owed another before [the 20 defendant] can ever qualify as a debt collector” under the FDCPA. Henson v. Santander 21 Consumer USA Inc., 582 U.S. 79, 87 (2017) (emphasis in original). 22 Here, Defendant assumes that Plaintiff’s purported “Debt Validation Letter,” which 23 he attached to the Complaint, forms the basis of his FDCPA claim. (See Mot. at 7–8; ECF 24 No. 1-2, Ex. 3.) In the Debt Validation Letter, Plaintiff advises Defendant that he is 25 disputing the claim appearing on his credit report and seeks evidence of any debt owed to 26 Defendant. (See ECF No. 1-2, Ex. 3.) The Court notes that Plaintiff references the FDCPA 27 in several other exhibits to his Complaint, including in two notices to cease and desist (ECF 28 No. 1- 2, Exs. 2, 3) and a “Notice of Fault and Opportunity to Cure” (ECF No. 1-2, Ex. 6). 1 First, none of these exhibits evidence that Defendant engaged in any debt collection efforts 2 related to Plaintiff’s debt under the Contract because the communications all are from 3 Plaintiff to Defendant. Plaintiff neither identifies any alleged communication from 4 Defendant in the Complaint nor attaches any such communication for the Court’s 5 consideration. (See generally Compl., ECF No. 1-2.) Second, Plaintiff has not alleged 6 sufficient facts from which the Court could infer that Defendant is a “debt collector” within 7 the meaning of the FDCPA. See Mims, 2024 WL 758928, at *9 (rejecting FDCPA claim 8 where plaintiff alleged “insufficient (if any) facts in the complaint to plausibly allege that 9 any defendant undertook the role of ‘debt collector’—which ‘is fatal to [the] FDCPA 10 claims.’” (quoting Bent v. Mackie Wolfe Zientz & Mann, P.C., No. 13-cv-2038, 2013 WL 11 4551614, at *3 (N.D. Tex. Aug. 28, 2013)). Moreover, to the extent Defendant is a creditor 12 collecting its own debt, Defendant would not qualify as a “debt collector” for purposes of 13 the FDCPA. See Henson, 582 U.S. at 87; see also Parker, 2021 WL 4137581, at *2 14 (adopting magistrate judge’s report and recommendation to dismiss plaintiff’s FDCPA 15 claim because Bridgecrest was creditor collecting its own debts and, thus, was not a “debt 16 collector” under the FDCPA); Clark, 2021 WL 2481893, at *3 (recommending dismissal 17 of FDCPA claim where plaintiff “totally omit[ted] any factual content that would enable 18 the [c]ourt to infer that [Carvana and Bridgecrest] qualify as debt collectors”); Tu v. 19 Camino Real Chevrolet, No. 12-cv-9456, 2013 WL 140278, at *2 (C.D. Cal. Jan. 9, 2013) 20 (concluding defendant in the business of accepting assignments of installment sales 21 contracts from automobile dealerships was not a debt collector under the FDCPA); Marlin 22 v. Chase Cardmember Servs., No. 09-cv-192, 2009 WL 2043014, at *2 (E.D. Cal. July 13, 23 2009) (“[C]reditors who collect on their own debt and in their own name are not ‘debt 24 collectors’ and are not subject to the FDCPA.”). Finally, Plaintiff fails to identify a single 25 specific provision of the FDCPA that Defendant allegedly violated. (See generally 26 Compl.) 27 Accordingly, Defendant’s Motion to dismiss Plaintiff’s third claim for violation of 28 the FDCPA is GRANTED. 1 D. Plaintiff’s Fourth Cause of Action for Breach of Contract 2 Defendant argues that Plaintiff’s breach of contract claim suffers from the same 3 defect as his FCRA and FDCPA claim—namely, that he fails to plead any factual 4 allegations related to this claim. (See Mot. at 8; Compl. § III.) As before, the Court agrees. 5 In California, to state a claim for breach of contract, a plaintiff must allege: “(1) the 6 existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) 7 defendant’s breach, and (4) the resulting damages to the plaintiff.” Oasis W. Realty, LLC 8 v. Goldman, 51 Cal. 4th 811, 821 (2011). While the Court presumes that Plaintiff intends 9 to state a claim based on the Contract, the attachments to the Complaint do not elucidate 10 Plaintiff’s grounds for bringing a breach of contract claim. (See generally ECF No. 1-2.) 11 As the Court cannot “supply essential elements of claims that were not initially pled,” Ivey, 12 673 F.2d at 268, Plaintiff’s fourth cause of action for breach of contract is DISMISSED. 13 E. Plaintiff’s Fifth Cause of Action for Fraudulent Inducement 14 Defendant argues that Plaintiff likewise fails to allege any facts in support of his 15 fraudulent inducement claim. (See Mot. at 8–9.) The Court once again agrees. 16 “The elements of fraud are (a) a misrepresentation (false representation, 17 concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce 18 reliance; (d) justifiable reliance; and (e) resulting damage.” Hinesley v. Oakshade Town 19 Ctr., 135 Cal. App. 4th 289, 294 (2005). Fraud in the inducement is a “subset of the tort 20 of fraud” that “occurs when the promisor knows what he is signing but his consent is 21 induced by fraud, mutual assent is present and a contract is formed, which, by reason of 22 the fraud, is voidable.” Id. (internal quotation marks omitted) (quoting Rosenthal v. Great 23 W. Fin. Securities Corp., 14 Cal. 4th 394, 415 (1996)). 24 Here, Plaintiff claims that on September 19, 2022, he sent “a Copy of the Fraudulent 25 TILA Security Agreement Page, and a Bill of Particulars in the amount of $45,716.66 to 26 the Defendant[.]” (Compl. ¶ 16.) He does not, however, allege any facts that would permit 27 the Court to infer that Plaintiff’s consent to the Contract was procured by fraud. (See 28 generally Compl.) Nor do the attachments to the Complaint elucidate Plaintiff’s grounds 1 for bringing a fraudulent inducement claim. (See generally ECF No. 1-2.) As such, 2 Plaintiff’s fraudulent inducement claim fails to state a claim as a matter of law and fails to 3 satisfy Federal Rule of Civil Procedure 9(b), which requires that Plaintiff plead fraud “with 4 particularity”—i.e., “the who, what, when, where, and how of the misconduct charged,” 5 Kearns, 567 F.3d at 1124. 6 Accordingly, Plaintiff’s fifth cause of action for fraudulent inducement is 7 DISMISSED. 8 III. Leave to Amend 9 The district court should grant leave to amend if it appears “at all possible that the 10 plaintiff can correct the defect,” unless the court determines that “the pleading could not 11 possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130– 12 31 (9th Cir. 2000) (en banc) (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995); 13 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 701 (9th Cir. 1990)). 14 Because Plaintiff’s claims are legally frivolous—a fact he apparently concedes by 15 failing to oppose the instant Motion—the Court will not allow Plaintiff leave to amend. 16 See Lopez, 203 F.3d at 1130–31; see also, e.g., Mims, 2024 WL 758928, at *7–9 17 (recommending dismissal with prejudice where amendment of TILA and FDCPA claims 18 would be futile); Butler, 2023 WL 4948312, at *6–7 (dismissing TILA and FDCPA claims 19 without leave to amend); McMillan, 2023 WL 3996477, at *11 (dismissing TILA, FDCPA, 20 and FCRA claims without leave to amend); Amezcuz, 2022 WL 1843993, at *3 (dismissing 21 without leave to amend TILA and FDCPA claims as “both factually and legally deficient”); 22 Redmond, 2021 WL 7708418, at *3 (dismissing with prejudice legally frivolous TILA 23 claims); Pickett, 2022 WL 18276701, at *5 (recommending dismissal with prejudice of 24 similar TILA claims). 25 / / / 26 / / / 27 / / / 28 / / / 1 CONCLUSION 2 For the reasons set forth above, the Court GRANTS Defendant’s Motion to Dismiss 3 || WITH PREJUDICE. The Clerk of Court SHALL close the file. 4 IT IS SO ORDERED. 5 ||Dated: September 5, 2024 —_—— 6 dd) (2 D (oe 7 Honorable Todd W. Robinson United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28