1 "0 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 | VICTORIA ANNUNZIATO P/K/A Cv 20-11592-RSWL-JPRx 13 KING VICTOBER, ORDER re: Plaintiff’s Plaintiff, Motion to Dismiss 14 Counterclaims [14-1] and 15 v- Strike Affirmative 16 | MEGAN GUTHRIE P/K/A Defenses and Damages | MEGNUTTO2, BT AL., Request [14-2]

18 Defendants. 19 20

MEGAN GUTHRIE P/K/A

91 | MEGNUTTO2, ET AL., 22 Counterclaimant, 23 Vv. 24

VICTORIA ANNUNZIATO P/K/A

25 KING VICTOBER, 26 Counter-defendants. 27 WOO... 28 | ///

1 Currently before the Court is a Motion to Dismiss

2 Defendant’s Counterclaim [14-1] and Motion to Strike

3 Affirmative Defenses and Damages Request [14-2] filed by 4 Plaintiff/Counter-Defendant Victoria Annunziato 5 (“Plaintiff”). Having reviewed all papers submitted 6 pertaining to the Motions, the Court NOW FINDS AND RULES 7 AS FOLLOWS: the Court GRANTS Plaintiff’s Motion to 8 Dismiss and GRANTS in part and DENIES in part 9 Plaintiff’s Motion to Strike. 10 I. BACKGROUND 11 A. Factual Background 12 Defendant/Counterclaimant Megan Guthrie 13 (“Defendant”) alleges the following in her 14 Counterclaim1: 15 Defendant was the sole and exclusive owner of the 16 OnlyFans.com2 account (“Account”). Countercl. ¶ 9, ECF 17 No. 13. Plaintiff represented to Defendant, among other 18 things, that she possessed the requisite experience and 19 knowledge to manage the Account. Id. at ¶¶ 10-11. 20 Because of Plaintiff’s representations, Defendant hired 21 Plaintiff to manage the Account. Id. at ¶¶ 12-13. 22 23 1 This action arises from an alleged oral agreement between Plaintiff and Defendant in which Defendant allegedly agreed to 24 pay Plaintiff twenty percent of the income received from her OnlyFans.com account (“Account”) as compensation for Plaintiff’s 25 managerial services. Notice of Removal Ex. B (“Compl.”) ¶ 6, ECF 26 No. 1-2. 2 OnlyFans.com is an internet content subscription service 27 where content creators can earn money from users who subscribe to 28 their content. 1 Plaintiff knowingly misrepresented: (1) her prior

2 management experience; (2) the time she would devote to

3 the Account; (3) that she would stop her own pursuits on 4 social media; (4) her familiarity with the rules and 5 regulations of OnlyFans.com; and (5) that she had the 6 requisite skills to manage and increase the Account 7 revenue. Id. at ¶ 24(a)-(e). 8 Plaintiff also failed to perform her duties, which 9 included: facilitating the posting of all content on the 10 Account and other social media accounts, responding to 11 Defendant’s messages, instructing Defendant on content 12 production, employing personnel if necessary, observing 13 applicable laws related to the Account, and 14 communicating with Defendant about Plaintiff’s 15 management progress. Id. ¶ 32(a)-(h). 16 As a result of Plaintiff’s misrepresentations and 17 failure to perform her managerial services,3 Defendant 18 was harmed. Id. ¶ 34. 19 B. Procedural Background 20 On November 16, 2020, Plaintiff filed her Complaint 21 [1-2] against Defendant, alleging seven causes of 22 action: (1) breach of oral contract; (2) breach of 23 implied contract; (3) quasi-contract/unjust enrichment; 24 3 Defendant argues that Plaintiff failed to: (1) inform 25 Defendant that a third party would provide content and manage the Account for substantially less pay; (2) report the existence of 26 unanswered messages; (3) prevent copyright violations; (4) employ additional staff as needed; (5) answer messages; (6) work 27 adequate hours and hire staff to manage the Account; and (7) 28 notify Defendant of client dissatisfaction. Id. ¶ 33(a)-(e). 1 (4) fraud: false promise; (5) fraud: intentional

2 misrepresentation; (6) fraud: negligent

3 misrepresentation; and (7) conversion. Defendant 4 removed [1] the Action to this Court on December 23, 5 2020. 6 Defendant filed a Motion to Dismiss Plaintiff’s 7 Complaint and Strike Damages Request [6] on December 29, 8 2020. On May 20, 2021, the Court granted in part the 9 Motion [11] and dismissed Plaintiff’s fourth, fifth, 10 sixth, and seventh claims from the Complaint. 11 On June 3, 2021, Defendant filed her Answer and 12 Counterclaim against Plaintiff [12-13], alleging: (1) 13 breach of fiduciary duty; (2) fraudulent 14 misrepresentation; and (3) breach of contract. 15 Plaintiff filed the instant Motion to Dismiss [14-1] and 16 Motion to Strike [14-2] on June 24, 2021. Defendant 17 filed her Opposition to the Motion to Dismiss [17] and 18 Opposition to the Motion to Strike [18] on July 6, 2021, 19 and Plaintiff replied [19, 20] to both Motions on July 20 13, 2021. 21 II. DISCUSSION 22 A. Legal Standard 23 1. Motion to Dismiss 24 Rule 12(b)(6) allows a party to move for dismissal 25 of one or more claims if the pleading fails to state a 26 claim upon which relief can be granted. Fed. R. Civ. P. 27 12(b)(6). A complaint must “contain sufficient factual 28 matter, accepted as true, to state a claim to relief 1 that is plausible on its face.” Ashcroft v. Iqbal, 556

2 U.S. 662, 678 (2009) (quotation omitted). Dismissal is

3 warranted for a “lack of a cognizable legal theory or 4 the absence of sufficient facts alleged under a 5 cognizable legal theory.” Balistreri v. Pacifica Police 6 Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (citation 7 omitted). 8 In ruling on a 12(b)(6) motion, a court may 9 generally consider only allegations contained in the 10 pleadings, exhibits attached to the complaint, and 11 matters properly subject to judicial notice. Swartz v. 12 KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). A court 13 must presume all factual allegations of the complaint to 14 be true and draw all reasonable inferences in favor of 15 the non-moving party. Klarfeld v. United States, 944 16 F.2d 583, 585 (9th Cir. 1991). The question is not 17 whether the plaintiff will ultimately prevail, but 18 whether the plaintiff is entitled to present evidence to 19 support the claims. Jackson v. Birmingham Bd. of Educ., 20 544 U.S. 167, 184 (2005) (quoting Scheuer v. Rhodes, 416 21 U.S. 232, 236 (1974)). While a complaint need not 22 contain detailed factual allegations, a plaintiff must 23 provide more than “labels and conclusions” or “a 24 formulaic recitation of the elements of a cause of 25 action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 26 (2007). 27 /// 28 /// 1 2. Motion to Strike

2 Rule 12(f) provides that a court may, by motion or

3 on its own initiative, “strike from a pleading an 4 insufficient defense or any redundant, immaterial, 5 impertinent, or scandalous matter.” Fed. R. Civ. P. 6 12(f). “The function of a 12(f) motion to strike is to 7 avoid the expenditure of time and money that must arise 8 from litigating spurious issues by dispensing with those 9 issues prior to trial.” Whittlestone, Inc. v. Handi- 10 Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting 11 Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 12 1993), rev’d on other grounds, 510 U.S. 517 (1994)). 13 “Motions to strike are generally disfavored.” Leghorn 14 v. Wells Fargo Bank, N.A., 950 F. Supp. 2d 1093, 1122 15 (N.D. Cal. 2013) (citation omitted); see also Sapiro v. 16 Encompass Ins., 221 F.R.D. 513, 518 (N.D. Cal. 2004) 17 (“Courts have long disfavored Rule 12(f) motions, 18 granting them only when necessary to discourage parties 19 from making completely tendentious or spurious 20 allegations.”). 21 “In ruling on a motion to strike under Rule 12(f), 22 the court must view the pleading in the light most 23 favorable to the nonmoving party.” Cholakyan v. 24 Mercedes-Benz USA, LLC, 796 F. Supp. 2d 1220, 1245 (C.D. 25 Cal. 2011). “[B]efore granting such a motion . . . the 26 court must be satisfied that there are no questions of 27 fact, that the [claim or] defense is insufficient as a 28 matter of law, and that under no circumstance could [it] 1 succeed.” Id. (citing Tristar Pictures, Inc. v. Del

2 Taco, Inc., No. CV 99–07655 DDP(Ex), 1999 WL 33260839,

3 at *1 (C.D. Cal. Aug. 31, 1999)). “[C]ourts frequently 4 require the moving party to demonstrate prejudice before 5 granting the requested relief, and ultimately whether to 6 grant a motion to strike falls on the sound discretion 7 of the district court.” Cook v. County of Los Angeles, 8 No. CV 19-2417 JVS (KLSx), 2021 WL 1502704, at *2 (C.D. 9 Cal. Mar. 31, 2021) (internal quotation marks and 10 citation omitted). 11 B. Discussion 12 1. Motion to Dismiss 13 Plaintiff moves to dismiss Defendant’s counterclaims 14 for: (1) breach of fiduciary duty; (2) fraudulent 15 misrepresentation; and (3) breach of contract. See 16 generally Mot. to Dismiss. 17 i. Breach of Fiduciary Duty 18 “In order to plead a claim for breach of fiduciary 19 duty [in California], the claimant must allege (1) the 20 existence of a fiduciary relationship giving rise to a 21 fiduciary duty, (2) breach of that duty, and (3) damage 22 proximately caused by the breach.” Negrete v. Fidelity 23 & Guardian Life Ins. Co., 444 F. Supp. 2d 998, 1003 24 (C.D. Cal. 2006). 25 “[B]efore a person can be charged with a fiduciary 26 obligation, he must either knowingly undertake to act on 27 behalf and for the benefit of another, or must enter 28 into a relationship which imposes that undertaking as a 1 matter of law.” Alvarado Orthopedic Rsch, L.P. v.

2 Linvatec Corp., No. 11-CV-246-IEG RBB, 2011 WL 3703192,

3 at *3 (citations and internal quotation marks omitted). 4 A person “knowingly undertake[s] to act on behalf and 5 for the benefit of another” when they intend to 6 subordinate their interests to another party. EduMoz, 7 LLC v. Republic of Mozambique, No. CV1302309MMMCWX, 2014 8 WL 12802921, at *25 (C.D. Cal. July 21, 2014); cf. City 9 of Hope Nat'l Med. Ctr. v. Genentech, Inc., 43 Cal. 4th 10 375, 386 (2008) (finding that a party did not knowingly 11 undertake fiduciary obligations where there was a 12 mutually beneficial arrangement). Further, “examples of 13 relationships that impose fiduciary duties as a matter 14 of law include a joint venture, a partnership, or an 15 agency.” Alvarado Orthopedic Rsch, 2011 WL 3703192, at 16 *4 (internal quotation marks omitted). 17 Here, Plaintiff argues in part that Defendant’s 18 breach of fiduciary duty counterclaim should be 19 dismissed because it is insufficiently pled. The Court 20 agrees. Defendant has neither alleged facts showing 21 that Plaintiff knowingly undertook fiduciary 22 obligations, nor that Plaintiff owed Defendant a 23 fiduciary duty as a matter of law. As such, Defendant 24 has not pled sufficient facts to establish a fiduciary 25 relationship between the parties. 26 Defendant alleges in her Counterclaim that 27 “[Plaintiff] was duty-bound to act with the utmost good 28 faith for the benefit of [Defendant]” and that 1 [Defendant] placed her confidence in . . . [Plaintiff],

2 who voluntarily accepted the confidence, and agreed to

3 act as [Defendant]’s manager.” Countercl. ¶ 13. 4 Additionally, in her Opposition, Defendant claims that 5 she and Plaintiff had a relationship analogous to that 6 of a principal and agent, and that she placed her trust 7 and confidence in Plaintiff. Opp’n to Mot. to Dismiss 8 at 8:9-10; 8:12-20. These allegations, without more, 9 are insufficient to show that Plaintiff knowingly 10 undertook to act as Defendant’s fiduciary. See World 11 Surveillance Grp. Inc. v. La Jolla Cove Invs., Inc., 66 12 F. Supp. 3d 1233, 1235 (N.D. Cal. 2014) (dismissing a 13 breach of fiduciary duty claim where it only alleged 14 “typical arms-length business dealings” and that 15 defendant “would continue to act” in plaintiff’s “best 16 interests”). Just because Plaintiff agreed to manage 17 Defendant does not elevate their relationship to that of 18 principal and agent. See Sonoma Foods, Inc. v. Sonoma 19 Cheese Factory, LLC, 634 F. Supp. 2d 1009, 1021 (N.D. 20 Cal. 2007) (“[Mere] contractual relationships, without 21 more, do not give rise to fiduciary relationships.”); 22 cf. Wiltsee v. California Emp. Commission, 69 Cal.App.2d 23 120, 125, 128 (employment contract entitling an employee 24 to 25 percent of future profits neither created a joint 25 venture nor gave rise to a fiduciary relationship); cf. 26 Dufour v. BE LLC, No. C 09-03770 CRB, 2010 WL 2560409, 27 at *4 (N.D. Cal. June 22, 2010) (dismissing breach of 28 fiduciary duty claim with prejudice where managerial 1 services “did not constitute a true personal

2 representation” and where defendants did not control

3 plaintiff’s property giving rise to a fiduciary duty). 4 That Defendant placed her “trust and confidence” in 5 Plaintiff does not establish a fiduciary relationship 6 either. See City Solutions, Inc. v. Clear Channel 7 Commc’ns, Inc., 201 F. Supp. 2d 1048, 1050 (N.D. Cal. 8 2002) (“The mere fact that in the course of their 9 business relationships the parties reposed trust and 10 confidence in each other does not impose any 11 corresponding fiduciary duty.”). 12 Defendant also has not alleged facts to show that a 13 fiduciary duty was imposed as a matter of law. See 14 generally Countercl. Nowhere in her Counterclaim does 15 she mention that the parties were in a partnership, 16 joint venture, or special relationship.4 Id. In fact, 17 Defendant vehemently denies that a partnership or joint 18 venture was formed between the parties. Opp’n to Mot. 19 to Dismiss at 6:12-14 (“[Plaintiff’s] partnership and/or 20 joint venture commentary are as untrue as they are 21 unpleaded . . . .”). 22 Because Defendant has neither alleged facts showing 23 that Plaintiff knowingly undertook a fiduciary duty, nor

24 4 While Defendant alleges that the parties were in a principal-agent relationship, this allegation is conclusory at 25 best for the reasons discussed above. Interestingly, Plaintiff 26 argues that the parties formed a joint venture/partnership, but this is irrelevant to the inquiry here because the focus is on 27 how well-pled Defendant’s counterclaims are. 28 1 that a fiduciary duty was imposed as a matter of law,

2 the Court GRANTS Plaintiff’s Motion to Dismiss with

3 leave to amend as to this claim. The Court will not 4 address Plaintiff’s arguments regarding the economic 5 loss rule at this time. 6 ii. Fraudulent Misrepresentation 7 Plaintiff argues that Defendant’s fraudulent 8 misrepresentation counterclaim should be dismissed, in 9 part because: (1) it fails to meet the heightened 10 pleading standard under Federal Rule of Civil Procedure 11 “Rule” 9(b); and (2) fraudulent intent is insufficiently 12 alleged. See Mot. to Dismiss at 13:6-14:16. The Court 13 agrees. 14 1. Dismissal Under Rule 9(b) 15 Plaintiff asserts that “Defendant fails to plead 16 any of th[e] [fraudulent misrepresentation] cause of 17 action with the requisite particularity[,] falling 18 silent on the questions of ‘where, when, why, and how.’” 19 Id. at 13:14-16. In opposition, Defendant states that 20 the fraud counterclaim satisfies Rule 9(b) because it is 21 specific enough to give Plaintiff notice of the 22 misconduct so that she can defend against it. Opp’n to 23 Mot. to Dismiss at 7:22-23. 24 “Claims for fraud . . . must meet the heightened 25 pleading requirements of Rule 9(b).” UMG Recordings, 26 Inc. v. Glob. Eagle Ent., Inc., 117 F. Supp. 3d 1092, 27 1106 (C.D. Cal. 2015) (citations omitted). Under Rule 28 9(b), fraud allegations must include the “time, place, 1 and specific content of the false representations as

2 well as the identities of the parties to the

3 misrepresentations.” Id. at 1106 (citations omitted); 4 see also Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 5 964 (9th Cir. 2018) (“To properly plead fraud with 6 particularity under Rule 9(b), ‘a pleading must identify 7 the who, what, when, where, and how of the misconduct 8 charged, as well as what is false or misleading about 9 the purportedly fraudulent statement, and why it is 10 false.’”) (quoting Cafasso, U.S. ex rel v. Gen. Dynamics 11 C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011). 12 Here, Defendant fails to adequately allege “when” and 13 “where” the fraud occurred, in addition to “what” was 14 fraudulent and “why” it was fraudulent.5 15 Rule 9(b) requires that the dates of fraudulent 16 misconduct be alleged with specificity. See Pegasus 17 Trucking, LLC v. Asset Redeployment Grp., Inc., 2021 18 U.S. Dist. LEXIS 68881, at *15 (C.D. Cal. Feb. 16, 2021) 19 (“Plaintiffs state the transaction . . . commenced in 20 5 Plaintiff also argues that Defendant “fall[s] silent” in 21 pleading “how” the alleged misrepresentations were false. Mot. to Dismiss at 13:15-16. In her Counterclaim, Defendant alleges 22 that Plaintiff “knew . . . the statements w[ere] false when . . . made . . .” and that “[i]n making the false statements, 23 [Plaintiff] intended that [Defendant] would rely on [them].” 24 Countercl. at 4:15-17. Contrary to Plaintiff’s argument, these allegations are sufficient to show “how” the alleged 25 misrepresentations were false. See Fitzpatrick v. Fitzpatrick, No. 2:12-CV-2938 GEB AC, 2014 WL 2197610, at *6 (E.D. Cal. May 26 27, 2014); Tyco Industries, Inc. v. Superior Court, 164 Cal. App. 3d 148, 156 (1985) (“[T]he falsity of that promise is 27 sufficiently pled with a general allegation the promise was made 28 without an intention of performance.”). 1 late December 2018 or early January 2019 . . . but

2 Plaintiffs do not allege specific instances on specific

3 dates where the purported promises were made.”). 4 General allegations of the month and year in which the 5 purported fraudulent misconduct occurred do not suffice. 6 See Glen Holly Entm't, Inc. v. Tektronix, Inc., 100 F. 7 Supp. 2d 1086, 1094 (C.D. Cal. 1999) (“[A]llegations 8 such as ‘during the course of discussions in 1986 and 9 1978,’ and ‘in or about May through December 1987’ do 10 not make the grade under Rule 9(b).”) (quoting U.S. 11 Concord, Inc. v. Harris Graphics Corp., 757 F. Supp. 12 1053, 1057 (N.D. Cal. 1991))). Here, Defendant alleges 13 that Plaintiff’s misrepresentations were made “on or 14 about October 2020.” Countercl. ¶ 24. Because merely 15 alleging the month and year “do[es] not make the grade 16 under Rule 9(b),” Defendant’s fraudulent 17 misrepresentation claim does not meet Rule 9(b)’s 18 standard. 19 Rule 9(b) additionally requires that the location 20 of alleged fraudulent misconduct be specified. See U.S. 21 ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 22 1051-52 (9th Cir. 2001) (finding that a plaintiff’s 23 claim had no factual support where it did not specify 24 the places where the alleged fraudulent misconduct 25 occurred). Here, Defendant does not mention in her 26 Counterclaim where Plaintiff’s alleged 27 misrepresentations were made. See generally Countercl. 28 Defendant’s Opposition is similarly devoid of a 1 discussion as to where the misrepresentations occurred.

2 See generally Opp’n to Mot. to Dismiss. Therefore,

3 Defendant’s fraudulent misrepresentation claim fails to 4 meet Rule 9(b) for this additional reason. 5 Moreover, “[a] pleading is sufficient under Rule 6 9(b) if it identifies the circumstances constituting 7 fraud so that a defendant can prepare an adequate answer 8 to the allegations. Moore v. Kayport Package Exp., 9 Inc., 885 F.2d 531, 540 (9th Cir. 1989) (citation 10 omitted). Broad allegations lacking particularized 11 supporting detail are insufficient. Bly-Magee v. 12 California, 236 F.3d 1014, 1019 (9th Cir. 2001); see 13 also SmithKline Beecham, 245 F.3d at 1051 (finding that 14 a complaint was not specific enough under Rule 9(b) 15 where it alleged that a defendant “knowingly” falsified 16 laboratory results). Here, Defendant’s allegations lack 17 particularized supporting detail. Defendant broadly 18 claims that Plaintiff misrepresented her management 19 experience and the time she would devote to the Account, 20 in addition to other allegedly false statements. 21 Countercl. ¶ 24. Defendant does not detail what was 22 fraudulent about Plaintiff’s statements and does not 23 attempt to explain why they were false. See generally 24 id.; see generally also Opp’n to Mot. to Dismiss. 25 Without more, these allegations are not “specific enough 26 to give [Plaintiff] notice of the particular 27 [fraudulent] misconduct . . . so that [she] can defend 28 against [it] and not just deny that [she] ha[s] done 1 anything wrong.” Bly-Magee, 236 F.3d at 1019 (citation

2 omitted); see also Houston v. Medtronic, Inc., 957 F.

3 Supp. 2d 1166, 1180 (C.D. Cal. 2013) (dismissing 4 fraudulent misrepresentation because plaintiff “fail[ed] 5 to allege the specific contents of [defendants] 6 representations . . . and why they were false”). As 7 such, Defendant’s fraudulent misrepresentation claim 8 fails to satisfy Rule 9(b) on these additional grounds. 9 2. Dismissal for Failure to Sufficiently 10 Allege Fraudulent Intent 11 Plaintiff asserts that “Defendant . . . makes the 12 conclusory statement that ‘[Plaintiff] intended that 13 [Defendant] would rely on the false statements,’ which 14 is insufficient [to allege intent within a fraudulent 15 misrepresentation counterclaim].” Mot. to Dismiss at 16 14:10-16. Defendant is silent as to this argument in 17 her Opposition. See generally Opp’n to Mot. to Dismiss. 18 The Court agrees with Plaintiff here. 19 In California, a fraud claim requires: (1) 20 misrepresentation; (2) knowledge of falsity; (3) intent 21 to defraud; (4) justifiable reliance; and (5) resulting 22 damage. EduMoz, LLC, 2014 WL 12802921, at *26. While 23 Rule 9(b) requires that circumstances constituting fraud 24 be stated with particularity, intent may be alleged 25 generally under Rule 8(a). Fed. R. Civ. Proc. 9(b); see 26 also R Power Biofuels, 2017 WL 1164296, at *10 27 (“[A]llegations of intent must still satisfy the 28 plausibility requirements of Rule 8(a).”). 1 Merely pleading that “representations and promises

2 were false when they were made,” and that a defendant

3 “knew . . . representations were false when they were 4 made,” is insufficient to allege intent even under Rule 5 8(a). UMG Recordings, 117 F.Supp.3d at 1109 (“Although 6 allegations of scienter need not meet rule 9(b)’s 7 specificity requirement, these allegations are 8 insufficient even to satisfy Rule 8(a).”). While intent 9 can be averred generally, “a plaintiff must [still] 10 point to facts which show that [a] defendant harbored an 11 intention not to be bound by [the] terms of [a] contract 12 at formation.” Id. at 1109-10. 13 Here, Defendant has not adequately alleged intent. 14 In her Counterclaim, Defendant only alleges that “[i]n 15 making the false statements, Plaintiff intended that 16 [Defendant] would rely on the false statements.” 17 Countercl. ¶ 26. Defendant has not pointed to any facts 18 showing that Plaintiff had an intention not to be bound 19 by the parties’ agreement at formation. See generally 20 id.; Opp’n to Mot. to Dismiss. Thus, it appears that 21 Defendant alleges intent based only on Plaintiff’s 22 nonperformance of her managerial duties, which is 23 insufficient. See R Power Biofuels, 2017 WL 1164296, at 24 *11 (“It is insufficient to allege intent based purely 25 on [a] [d]efendant’s failure to perform its promises.”); 26 see also Tenzer v. Superscope, Inc., 39 Cal.3d 18, 30 27 (1985) (“[S]omething more than nonperformance is 28 required to prove [a] defendant's intent not to perform 1 his promise.”). On this additional basis, the Court

2 GRANTS Plaintiff’s Motion to Dismiss Defendant’s

3 fraudulent misrepresentation claim with leave to amend. 4 The Court will not address Plaintiff’s arguments 5 regarding the economic loss rule at this time. 6 iii. Breach of Contract Counterclaim 7 Plaintiff argues that Defendant’s breach of 8 contract counterclaim should be dismissed because it 9 fails to allege consideration and whether Defendant 10 performed or was otherwise excused from performance 11 under the contract. Mot. to Dismiss at 15:5-9. 12 Defendant asserts that, on the contrary, she has pled 13 the requisite elements for a breach of contract claim. 14 Opp’n to Mot. to Dismiss at 11:1-4. The Court agrees 15 with Plaintiff. 16 In California, “the elements of a viable breach of 17 contract claim are: (1) the existence of a contract, (2) 18 plaintiff’s performance or excuse for nonperformance, 19 (3) defendant’s breach, and (4) damages . . . as a 20 result of the breach.” Alpha GRP, Inc. v. Subaru of 21 Am., Inc., No. CV182133MWFMRWX, 2018 WL 5986989, at *10 22 (C.D. Cal. June 8, 2018) (citations and internal 23 quotation marks omitted). “Under California law, 24 consideration is an essential element of a contract.” 25 VasoNova, Inc. v. Grunwald, No. C 12-02422 WHA, 2012 WL 26 6161041, at *5 (N.D. Cal. Dec. 11, 2012) (citation 27 omitted); see also Cal. Civ. Code § 1150 (“It is 28 essential to the existence of a contract that there 1 should be: (1) parties capable of contracting; (2) their

2 consent; (3) a lawful object; and (4) a sufficient cause

3 or consideration.”). 4 Here, Defendant has not alleged consideration in 5 her breach of contract counterclaim. See generally 6 Countercl. Further, in her Opposition, Defendant merely 7 restates the allegations in her Counterclaim without 8 addressing the arguments raised by Plaintiff. See 9 generally Opp’n to Mot. to Dismiss. Because Defendant 10 has not alleged consideration whatsoever, the Court 11 dismisses Defendant’s breach of contract counterclaim. 12 Cf. VasoNova, 2012 WL 6161041, at *5 (dismissing breach 13 of contract claim for failure to “plead any 14 consideration”). 15 Defendant also has not alleged that she performed 16 under the contract or was otherwise excused from 17 performing. See generally Countercl. In her 18 Counterclaim, Defendant merely states that “[Defendant] 19 and [Plaintiff] entered into a contract in which 20 [Plaintiff] agreed to manage [Defendant]’s 21 Only[F]ans.com account.” Id. ¶ 31. Defendant alleges 22 Plaintiff’s obligations under the contract but is silent 23 as to her own. See generally id. Without more, the 24 Court cannot “determine the nature of the parties’ 25 obligations . . . .” See Alpha GRP, 2018 WL 5986989, at 26 *10. Therefore, the Court dismisses Defendant’s breach 27 of contract counterclaim on this additional ground. Id. 28 (holding that failure to plead “what [defendant] 1 precisely promised . . . , the effective date of the

2 contract, [and] the duration of the contract . . .” was

3 “fatal to the breach of contract claim”). 4 For the foregoing reasons, the Court GRANTS 5 Plaintiff’s Motion to Dismiss Defendant’s Counterclaims 6 in its entirety with leave to amend each claim. 7 2. Motion to Strike 8 Plaintiff moves to strike Defendant’s damages 9 requests and affirmative defenses. See generally Mot. 10 to Strike. 11 i. Damages Requests 12 In tandem with her Counterclaim, Defendant 13 requested: (1) punitive and exemplary damages; (2) 14 attorney’s fees and costs; and (3) consequential and 15 incidental damages. See Mot. to Strike at 1:1-12. 16 In her Opposition to Plaintiff’s Motion to Strike, 17 Defendant withdrew her request for attorney’s fees and 18 costs. Opp’n to Mot. to Strike at 2:9-11. Accordingly, 19 the Court DENIES as moot Plaintiff’s Motion to Strike 20 Defendant’s request for attorney’s fees and costs. 21 Further, given that the Court GRANTS Plaintiff’s 22 Motion to Dismiss for the reasons outlined above, 23 Plaintiff’s Motion to Strike Defendant’s requests for: 24 (1) punitive and exemplary damages; and (2) 25 consequential and incidental damages are additionally 26 DENIED as moot. 27 /// 28 /// 1 ii. Affirmative Defenses

2 Rule 8(b)(1) requires a party to “state in short

3 and plain terms its defenses to each claim asserted 4 against it.” Fed. R. Civ. P. 8(b)(1). Rule 12(f) 5 permits a court to “strike from a pleading an 6 insufficient defense or any redundant, immaterial, 7 impertinent, or scandalous matter.” Fed. R. Civ. P. 8 12(f). “A defense may be stricken as insufficient if it 9 fails to give plaintiff ‘fair notice’ of the defense.” 10 Perez v. Gordon & Wong L. Grp., P.C., No. 11-CV-03323- 11 LHK, 2012 WL 1029425, at *5 (N.D. Cal. Mar. 26, 2012) 12 (quoting Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 13 (9th Cir.1979)); see also Schwarz v. Meinberg, No. 14 CV1300356BROPLAX, 2016 WL 4011716, at *4 (C.D. Cal. July 15 15, 2016) (noting that the majority of courts within the 16 Central District of California apply the fair notice 17 standard when addressing the sufficiency of affirmative 18 defenses). “Fair notice” requires that affirmative 19 defenses “be supported by at least some facts indicating 20 the grounds on which the defense is based, but need not 21 include facts sufficient to demonstrate plausible 22 entitlement to relief.” Rosen v. Masterpiece Marketing 23 Group, LLC, 222 F. Supp. 3d 793, 802 (C.D. Cal. 2016). 24 “A court may also strike from an answer matter that 25 is immaterial, i.e., ‘that which has no essential or 26 important relationship to the claim for relief or the 27 defenses being plead,’ or matter that is impertinent, 28 i.e., that which does not pertain, and is not necessary, 1 to the issues in question.” Id. (quoting Fantasy, Inc.

2 v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd

3 on other grounds, 510 U.S. 517(1994)). 4 a. Affirmative Defense #1: Failure to 5 State a Claim 6 Defendant withdraws her “failure to state a claim” 7 defense. Opp’n to Mot. to Strike at 3:11-12. 8 Accordingly, the Court DENIES as moot Plaintiff’s Motion 9 to Strike Defendant’s first affirmative defense. 10 b. Affirmative Defense #2: Offset 11 Defendant contends that she “is entitled to an 12 offset against any award in the amount of the damages 13 caused by [Plaintiff].” Answer ¶ 41, ECF No. 12. 14 Plaintiff attacks the sufficiency of Defendant’s offset 15 defense and argues that it is redundant in light of 16 Defendant’s breach of contract counterclaim, which would 17 “naturally entail an offset. . . .” Mot. to Strike at 18 8:2-5; Reply to Mot. to Strike Opp’n at 1:23-25. 19 Plaintiff does not provide legal support for its 20 argument, however. See generally id. In fact, 21 California district courts have denied motions to strike 22 where movants have similarly argued that an offset 23 defense is repetitive of counterclaims. See, e.g., 24 Snap! Mobile, Inc. v. Croghan, No. 18-CV-04686-LHK, 2019 25 WL 884177, at *2 (N.D. Cal. Feb. 22, 2019) (denying 26 motion to strike offset defense even though it repeated 27 allegations in a counterclaim). 28 Still, Defendant’s offset defense will be stricken 1 because it is insufficient. “Under the fair notice

2 standard, even defenses that are pled in a conclusory

3 manner may provide fair notice so long as they are 4 ‘potentially viable affirmative defenses, the nature of 5 the defenses is well known, and [the] [p]laintiff can 6 seek discovery regarding the purported factual basis for 7 the[] defenses.’” Schwarz, 2016 WL 4011716, at *4 8 (citation omitted). Here, Defendant requests that 9 Plaintiff’s recovery be offset by the amount of damages 10 caused to Defendant. Answer ¶ 41. However, Defendant 11 does not specify a damages amount or otherwise indicate 12 how much the offset would be. See generally Answer. As 13 such, Defendant’s offset defense is too conclusory and 14 does not provide Plaintiff with notice of the amount of 15 damages allegedly caused to Defendant. Cf. Jacobson v. 16 Persolve, LLC, No. 14-CV-00735-LHK, 2014 WL 4090809, at 17 *9 (N.D. Cal. Aug. 19, 2014) (holding that an offset 18 defense was sufficient because plaintiff had notice of 19 the amount potentially owed to defendant based on the 20 context of the dispute.) 21 Accordingly, the Court GRANTS Plaintiff’s Motion to 22 Strike Defendant’s offset defense, with leave to amend 23 to add a more specified offset amount. See Wyshak v. 24 City Nat. Bank, 607 F.2d 824, 826 (9th Cir. 1979) (“In 25 the absence of prejudice to the opposing party, leave to 26 amend [affirmative defenses] should be freely given.”). 27 /// 28 /// 1 c. Affirmative Defense #3: Vagueness as

2 to Term

3 Plaintiff argues that Defendant’s “vagueness as to 4 term” defense is redundant and not an affirmative 5 defense because it overlaps with Defendant’s breach of 6 contract counterclaim. Mot. to Strike 8:9-18. 7 Defendant asserts that it is valid because “contract 8 terms must be ascertainable (or not vague) for a 9 contract to be enforceable.” Opp’n to Mot. to Strike 10 4:2-7. Defendant’s argument is unavailing. 11 “Affirmative defenses plead matters extraneous to 12 [a] plaintiff's prima facie case, which deny plaintiff's 13 right to recover, even if the allegations of the 14 complaint are true.” Schwarz, 2016 WL 4011716, at *5 15 (citation and internal quotation marks omitted). “In 16 contrast, denials of the allegations in [a] [c]omplaint 17 or allegations that [a] [p]laintiff cannot prove the 18 elements of his claims are not affirmative defenses.” 19 Id. “Therefore, defenses that deny or seek to disprove 20 elements of a [p]laintiff's claim[] are not affirmative 21 defenses and should be stricken.” Id. 22 Here, Defendant’s vagueness as to term defense 23 serves to attack an element of Plaintiff’s breach of 24 contract claim—that an enforceable contract existed 25 during the period for which Plaintiff seeks recovery. 26 As such, vagueness as to term is not an affirmative 27 defense and will be stricken. See Zivkovic v. S. Cal. 28 Edison Co., 302 F. 3d 1080, 1088 (9th Cir. 2002) (“A 1 defense which demonstrates that plaintiff has not met

2 its burden of proof is not an affirmative defense.”);

3 see also Dairy Emps. Union Loc. No. 17 v. Dairy, No. 4 5:14-CV-01295-RSWL-M, 2015 WL 505934, at *4 (C.D. Cal. 5 Feb. 16, 2015) (striking an affirmative defense 6 challenging an element of plaintiffs’ prima facie case 7 as improper). The Court therefore GRANTS Plaintiff’s 8 Motion to Strike Defendant’s third affirmative defense 9 with prejudice. See id. (denying leave to amend because 10 “[d]efendant may assert this allegation in any other 11 proper manner, but not as an affirmative defense”). 12 d. Affirmative Defense #4: Breach of 13 Implied Covenant of Good Faith and 14 Fair Dealing 15 Defendant argues that Plaintiff “breached her 16 contract by failing to provide the service agreed upon 17 and by breaching the implied covenant of good faith and 18 fair dealing.” Answer ¶ 43. Defendant counters that 19 this defense is duplicative of Plaintiff’s breach of 20 contract counterclaim and fails to state an independent 21 claim for breach of the implied covenant. Mot. to 22 Strike 8:22-9:21. 23 The Court does not agree that Defendant’s fourth 24 affirmative defense should be stricken as duplicative of 25 her breach of contract claim. Though similar, the two 26 claims consist of different elements and are therefore 27 separate legal theories. See Rosenfeld v. JPMorgan 28 Chase Bank, N.A., 732 F. Supp. 2d 952, 968 (N.D. Cal. 1 2010) (listing the elements for a cause of action for

2 breach of the implied covenant of good faith and fair

3 dealing under California law); Body Jewelz, Inc. v. 4 Valley Forge Ins. Co., 241 F. Supp. 3d 1084, 1090 (C.D. 5 Cal. 2017) (listing the elements for a breach of 6 contract claim under California law). 7 However, the Court nevertheless finds that this 8 defense is insufficiently pled. The elements required 9 to prove breach of the implied covenant of good faith 10 and fair dealing are: “(1) the parties entered into a 11 contract; (2) [Defendant] fulfilled [her] obligations 12 under the contract; (3) any conditions precedent to 13 [Plaintiff’s] performance occurred; (4) [Plaintiff] 14 unfairly interfered with [Defendant’s] rights to receive 15 the benefits of the contract; and (5) [Defendant] was 16 harmed by [Plaintiff’s] conduct.” Rosenfeld, 732 F. 17 Supp. 2d at 968. In alleging this affirmative defense, 18 however, Defendant simply states that Plaintiff “failed 19 to provide the service agreed upon” and breached the 20 implied covenant. Answer ¶ 43. 21 Though acknowledging the existence of a contract, 22 Defendant provides no facts indicating that she 23 fulfilled her obligations under it. Defendant similarly 24 fails to describe which benefits under the contract 25 Plaintiff interfered with, and how her conduct amounted 26 to a failure to perform under the terms of the 27 agreement. While Defendant need not meet the 28 Iqbal/Twombly standard of plausibility in pleading 1 affirmative defenses, Defendant must provide “some facts

2 indicating the grounds on which the defense is based.”

3 See Rosen, 222 F. Supp. at 802 (emphasis added). Merely 4 adding a conclusory statement that Plaintiff breached 5 the implied covenant is insufficient. See Microsoft 6 Corp. v. Hon Hai Precision Indus. Co., No. 19-CV-01279- 7 LHK, 2020 WL 836712, at *13 (N.D. Cal. Feb. 20, 2020) 8 (striking the affirmative defense of breach of the 9 implied covenant of good faith and fair dealing because 10 it was insufficiently pled and recited a mere legal 11 conclusion). Furthermore, Defendant’s failure to 12 adequately plead the existence of a contract in the 13 first place makes this affirmative defense especially 14 questionable. 15 The Court accordingly GRANTS Plaintiff’s Motion to 16 Strike the fourth affirmative defense with leave to 17 amend. See Wyshak, 607 F.2d at 826. 18 e. Affirmative Defense #5: Breach of 19 Material Term Excusing Performance 20 In her fifth affirmative defense, Defendant asserts 21 that Plaintiff “breached material provisions of any oral 22 or implied contract and thereby damaged [Defendant] and 23 is prohibited from recovery.” Answer ¶ 44. Plaintiff 24 argues this claim is redundant because it is the same as 25 Defendant’s counterclaim for breach of contract. Mot. 26 to Strike 9:25-28. 27 Under California law, the elements of a cause of 28 action for breach of contract are: “(1) existence of a 1 contract; (2) plaintiff's performance or excuse for

2 nonperformance; (3) defendant's breach; and (4) damages

3 to plaintiff as a result of the breach.” Body Jewelz, 4 Inc., 241 F. Supp. 3d at 1090. Thus, Defendant’s 5 assertion that Plaintiff breached material terms of the 6 agreement serves to negate a prima facie element of 7 Plaintiff’s breach of contract claim—that Plaintiff 8 fully performed her obligations under the contract. 9 This claim is therefore not an affirmative defense and 10 is stricken. See Zivkovic, 302 F. 3d at 1088; Cathay 11 Logistics, LLC v. Gerber Plumbing Fixtures, LLC, No. 12 2:15-cv-02926-ODW(RAO), 2016 WL 3912011, at *5 (C.D. 13 Cal. July 19, 2016) (“[D]emonstrating performance and/or 14 an excuse for non-performance under the contract is part 15 of [Plaintiff]'s prima facie case; it is not an 16 affirmative defense.”). 17 The Court therefore GRANTS Plaintiff’s Motion to 18 Strike the fifth affirmative defense with prejudice. 19 See Zody v. Microsoft Corp., No. C–12–00942–YGR, 2013 WL 20 2468250, at *8 (N.D. Cal. 2013) (striking defendant’s 21 breach-of-contract affirmative defense without leave to 22 amend because it addressed plaintiff’s affirmative 23 case). 24 f. Affirmative Defense #6: Fraud 25 Defendant asserts that any agreement between 26 herself and Plaintiff is invalid because it was based on 27 fraudulent misrepresentations by Plaintiff. Answer ¶ 28 45. Plaintiff asserts that this defense should be 1 stricken because it fails to meet the heightened

2 pleading standard under Rule 9(b), is redundant, and is

3 nevertheless barred by the economic loss rule. Mot. to 4 Strike 10:5-11:5. 5 In all averments of fraud, including affirmative 6 defenses, the circumstances constituting the fraud must 7 be stated with particularity. ADP Comm. Leasing, Inc. 8 v. M.G. Santos, Inc., No. CV F 13–0587 LJO SKO, 2013 WL 9 3863897, at *9 (E.D. Cal. July 24, 2013) (citing 10 Multimedia Patent Trust v. Microsoft Corp., 525 F. Supp. 11 2d 1200, 1210–1211 (S.D. Cal. 2007)). Despite 12 Defendant’s inclusion of Plaintiff’s alleged 13 misrepresentations, the pleading of this affirmative 14 defense is insufficient for the same reasons that 15 Defendant’s fraud counterclaim fails to survive a motion 16 to dismiss. Defendant again fails to allege when and 17 where the fraudulent statements took place and does not 18 include particularized supporting detail. 19 Accordingly, the Court GRANTS Plaintiff’s Motion to 20 Strike Defendant’s sixth affirmative defense with leave 21 to amend to plead the circumstances of fraud with 22 greater specificity. See Wyshak, 607 F.2d at 826. 23 g. Affirmative Defense #7: Unclean Hands 24 Defendant asserts that Plaintiff’s claims are 25 barred “by virtue of Plaintiff’s unclean hands in the 26 matters giving rise to the agreement and Plaintiff’s 27 intentional withholding of material information from 28 Defendant.” Answer ¶ 50. Defendant argues that this 1 defense should be stricken because it relies on

2 Defendant’s allegations of fraud, and Defendant has

3 therefore “failed to provide Plaintiff fair notice of 4 the grounds upon which the defense rests.” Mot. to 5 Strike 11:9-15. 6 Here, because Defendant’s unclean hands defense 7 depends upon the allegations of fraud, this affirmative 8 defense must be held to the same heightened pleading 9 standard. See Intel Corp. v. Hyundai Electronics Am., 10 Inc., 692 F. Supp. 1113, 1117 (N.D. Cal. 1987). Thus, 11 the Court GRANTS the Motion to Strike as to the seventh 12 affirmative defense because Defendant fails to state the 13 circumstances of the fraudulent activity with sufficient 14 particularity.6 See id. (striking defendant’s unclean 15 hands affirmative defense because it referred to 16 allegations of fraud but failed to allege specific facts 17 to support those allegations). However, the Court grants 18 Defendant leave to amend to plead the circumstances of 19 fraud with greater specificity. See Wyshak, 607 F.2d at 20 826. 21 /// 22 6 Defendant relies on Gen-Probe Inc. v. Becton Dickinson & 23 Co., No. 09-cv-2319 BEN (NLS), 2010 WL 4442731, at *1 (S.D. Cal. 24 Nov. 1, 2010), for the proposition that “a mere statement that a defendant intends to assert the [unclean hands] defense is 25 sufficient under the Rules.” Opp’n to Mot. to Strike 5:10-11. However, the assertion of unclean hands there did not involve 26 allegations of fraudulent conduct and therefore did not invoke the heightened pleading standard under Rule 9(b). See Gen-Probe 27 Inc., 2010 WL 4442731, at *1. Thus, its reasoning is 28 inapplicable here. 1 III. CONCLUSION 2 Based on the foregoing, the Court GRANTS

3 Plaintiff’s Motion to Dismiss. With respect to 4 Plaintiff’s Motion to Strike, the Court DENIES as moot 5 the motion to strike damages requests and Defendant’s 6 first affirmative defense; GRANTS with leave to amend 7 the motion to strike Defendant’s second, fourth, sixth, 8 and seventh affirmative defenses; and GRANTS with 9 prejudice the motion to strike Defendant’s third, fifth 10 affirmative defenses. 11

IT IS SO ORDERED.

12 13 14 DATED: October 26, 2021 _______/s_/ R_o_n_al_d _S_.W_. _Le_w_________

HONORABLE RONALD S.W. LEW

15 Senior U.S. District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28