Berger

ORDER GRANTING MOTION TO DISMISS FIFTH CAUSE OF ACTION OF THE SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

In his Second Amended Complaint (“SAC”), Benjamin Berger (“Plaintiff’) sues for breach of contract in his Fifth Cause of Action, which here will be called a Claim for Relief. Defendant Home Depot U.S.A., Inc. (“Defendant”) has performed all express terms of the contract. The Fifth Claim for Relief boldly takes contract law where it has not gone before. This Court will not go there, and grants Defendant’s Motion to Dismiss.

BACKGROUND

Plaintiff alleges that Defendant is a home improvement retailer (SAC ¶ 4) whose business includes tool and equipment rentals (SAC ¶ 5). Plaintiff alleges that Défendant operates 814 Tool Rental Centers in stores across the United States; including 79 in California. (SAC ¶ 13.)

Plaintiff alleges that Plaintiff rented a compound miter saw and other tools from Defendant. (SAC ¶ 14.) Plaintiff alleges that Defendant gave him a “standard rental agreement,” which included a “Damage Waiver” charge. (SAC ¶ 15.) Plaintiff alleges that Defendant automatically included a ten-percent “Damage Waiver” charge for…