1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7

VALENTINA RIFFEL,

8 Case No. 5:19-cv-07489-EJD Plaintiff, 9 ORDER DISMISSING WITHOUT v. LEAVE TO AMEND 10 PLAINTIFF’S COMPLAINT FOR

THE REGENTS OF THE UNIVERSITY OF LACK OF STANDING

11 CALIFORNIA, Re: Dkt. No. 44 12 Defendant. 13 14

15 Plaintiff Valentina Riffel (“Riffel”) sues the Regents of the University of California 16 (“Defendant”) for causes of action arising from the “Varsity Blues” college admissions scandal 17 involving William “Rick” Singer and parents of college applicants conspiring to bribe athletic 18 coaches and administrators to get their children admitted to various universities through fraud. 19 Defendant has filed a motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil 20 Procedure. The Court took this motion under submission without oral argument pursuant to Civil 21 Local Rule 7-1(b). For reasons stated below, the Court holds that Plaintiff lacks standing to 22 pursue her claims. The Court thus lacks jurisdiction and must DISMISS Plaintiff’s claims. 23 I. BACKGROUND 24 A. Factual Background 25 The Court previously detailed the facts related to the “Varsity Blues” college admissions 26 scandal in Tamboura v. Singer; Bendis v. Singer (“Tamboura”), No. 5:19-cv-03411-EJD, 2020 27 Case No.: 5:19-cv-07489-EJD 1 WL 2793371 (N.D. Cal. May 29, 2020).1 Therefore, the Court reviews allegations relevant to 2 Riffel’s action and Defendant’s motion to dismiss below. 3 Riffel asserts claims on behalf of herself and all individuals “who paid, or reimbursed the 4 payment of, an admission application fee” to the University of California, Los Angeles (“UCLA”). 5 Complaint (“Compl.”) ¶ 1, Dkt. No. 1-1. Riffel claims that through its website, UCLA 6 represented that it would consider prospective applicants for admission to the university on their 7 merits. Id. ¶ 17. Specifically, Riffel focuses on the following statement (the “Representation”) 8 found on the admissions page of UCLA’s website:

9 “The goal of the campus’ admissions review process is to single out from a large and growing pool of academically strong applicants those 10 unique individuals who have demonstrated the intellectual curiosity, tenacity, and commitment to community service expected of the 11 UCLA graduate.”

12 “Selection is based on a comprehensive review of all information— both academic and personal—presented in the application. All 13 applications are read twice, in their entirety, by professionally trained readers. After independently reading and analyzing a file, the reader 14 determines a comprehensive score that is the basis upon which the student is ultimately admitted or denied.” 15 16 Id. According to Riffel, UCLA made the Representation through its website “with the intent to 17 induce would-be applicants . . . to rely upon the Representation and pay, or reimburse, an 18 application fee in connection with an application for admission to UCLA. Id. ¶ 23. But she 19 contends the Representation was untrue because UCLA failed to inform prospective applicants 20 that in exchange for payment, UCLA would designate applicants as student-athlete recruits and 21 “thereby afford them a higher likelihood of admission than applicants who are not designated as 22 student-athlete recruits.” Id. ¶ 18. Relatedly, Riffel alleges she was not aware that an applicant 23 could pay money to have her application considered under the “more lenient standard.” Id. ¶ 22. 24

25 1 Although Riffel’s complaint does not reference “Varsity Blues” or the college admissions 26 scandal generally, the Court finds that Riffel’s allegations relate directly to William “Rick” Singer’s scheme to conspire with the parents of college applicants to bribe officials to have their 27 children admitted to various universities through fraud. Case No.: 5:19-cv-07489-EJD 1 Riffel adds that had she known that UCLA was a participant in the college admission scandal, 2 “[she] would not have paid or reimbursed an application fee in connection with an application for 3 admission to UCLA.” Id. ¶ 32. Finally, she alleges that as a result of their reliance, she along 4 with each member of the putative class suffered a “loss of property—the fees [the] Class Members 5 paid or reimbursed in connection with an application for admission to UCLA.” Id. ¶¶ 19, 24. 6 B. Procedural Background 7 On May 29, 2020, the Court dismissed the Bendis and Tamboura actions after the plaintiffs 8 were unable to plead an adequate cognizable injury-in-fact, and therefore, lacked standing to 9 pursue their claims. Tamboura, 2020 WL 2793371, at *4. Following the dismissal, the Court held 10 a status conference to see how Riffel and Defendant wanted to proceed in light of the Court’s 11 ruling. After the parties were unable to reach a resolution, Defendant filed a motion to dismiss 12 Riffel’s complaint for lack of standing. (‘Mot.”), Dkt. No. 44. Thereafter, Riffel filed an 13 opposition in response to the motions to dismiss (“Opp’n”), see Dkt. No. 47, to which Defendant 14 filed a reply (“Reply iso Mot.”). See Dkt. No. 48. 15 II. LEGAL STANDARD 16 Federal courts are courts of limited jurisdiction; they are authorized only to exercise 17 jurisdiction pursuant to Article III of the U.S. Constitution and federal laws enacted thereunder. 18 Gregory Vill. Partners, L.P. v. Chevron U.S.A., Inc., 805 F. Supp. 2d 888, 896 (N.D. Cal. 2011); 19 see also Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) (“[F]ederal courts 20 have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, 21 and therefore they must raise and decide jurisdictional questions that the parties either overlook or 22 elect not to press.”). Hence, an Article III federal court must ask whether a plaintiff has suffered 23 sufficient injury to satisfy the “case or controversy” requirement of Article III of the U.S. 24 Constitution. In re LinkedIn User Priv. Litig., 932 F. Supp. 2d 1089, 1092 (N.D. Cal. 2013). 25 To satisfy Article III standing, a plaintiff must allege: (1) an injury-in-fact that is concrete 26 and particularized, as well as actual or imminent; (2) that the injury is fairly traceable to the 27 Case No.: 5:19-cv-07489-EJD 1 challenged action of the defendant; and (3) that it is likely (not merely speculative) that injury will 2 be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), 3 Inc., 528 U.S. 167, 180–81 (2000); Lujan v. Defs. of Wildlife, 504 U.S. 555, 561–62 (1992). To 4 establish an injury-in-fact, a plaintiff must show that he or she suffered “an invasion of a legally 5 protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or 6 hypothetical.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quotation marks and citation 7 omitted). To establish a traceable injury, there must be “a causal connection between the injury 8 and the conduct complained of—the injury has to be fairly traceable to the challenged action of the 9 defendant, and not the result of the independent action of some third party not before the court.” 10 Lujan, 504 U.S. at 560 (quotation marks and citation omitted) (alteration omitted). It must also be 11 “likely” as opposed to merely “speculative” that the injury will be “redressed by a favorable 12 decision.” Id. at 561 (quotation marks and citation omitted). And if a plaintiff is seeking 13 injunctive or declaratory relief, the plaintiff must demonstrate “a sufficient likelihood that [they] 14 will again be wronged in a similar way.” City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). 15 If a plaintiff cannot allege Article III standing, then the federal court lacks jurisdiction over 16 the case and must dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(1). 17 Spencer Enterprises, Inc. v. United States, 345 F.3d 683, 687 (9th Cir. 2003); Steel Co. v. Citizens 18 for a Better Env’t, 523 U.S. 83, 101, 109-10 (1998). Indeed, “[a]t the pleading stage, the plaintiff 19 must clearly allege facts demonstrating each element.” In re Apple Processor Litig., 366 F. Supp. 20 3d 1103, 1107 (N.D. Cal. 2019) (quoting Spokeo, 136 S. Ct. at 1547). “When ‘[s]peculative 21 inferences’ are necessary . . . to establish either injury or the connection between the alleged injury 22 and the act challenged, standing will not be found.” Johnson v. Weinberger, 851 F.2d 233, 235 23 (9th Cir. 1988) (quoting Simon v. E. Kentucky Welfare Rts. Org., 426 U.S. 26, 45 (1976)). 24 III. DISCUSSION 25 Defendant contends that Riffel’s alleged harm is identical to the economic loss harm plead 26 in Tamboura and Bendis, which the Court found was insufficient to establish Article III standing. 27 Case No.: 5:19-cv-07489-EJD 1 In Tamboura and Bendis, the argument raised by the plaintiffs was compared to a “bargain-for- 2 exchange” scenario. Tamboura, 2020 WL 2793371, at * 3. The plaintiffs stated that when they 3 applied for admission to the defendant universities, they applied based on the universities’ alleged 4 misrepresentations and omissions about the equity of their merits-based admissions process. They 5 argued that the admissions process was neither fair nor objective because of the universities’ 6 involvement in the college admissions scandal. The plaintiffs also believed they had suffered the 7 economic harm of not receiving what they agreed to pay for. Id. Despite the parallels, Riffel does 8 not attempt to differentiate her alleged harm from the economic harm at issue in Tamboura and 9 Bendis. See generally Opp’n. But given the similarities between the actions, the Court finds no 10 reason to conclude that Riffel has plead a concrete, particularized economic injury sufficient to 11 establish Article III standing. 12 In Tamboura and Bendis, the alleged economic harm could not form the basis for Article 13 III standing. Like Riffel, the plaintiffs in Tamboura and Bendis did not allege that they applied 14 for, were being considered for, or were denied an athletic spot. See Tamboura, 2020 WL 15 2793371, at *3. Therefore, they could not show they were “particularly” affected by the college 16 admissions scandal. Id. (emphasis in original). This Court explained that an injury-in-fact cannot 17 just be based on some morally irreprehensible act. Id. (discussing Allen v. Wright, 468 U.S. 737, 18 739-40 (1984), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, 19 Inc., 572 U.S. 118 (2014)). Some link between the bad act and the plaintiff is needed. Id. 20 Although the Bendis and Tamboura plaintiffs argued that they had plead an injury-in-fact because 21 they alleged they would not have applied to the universities had they known about the ongoing 22 fraud, the Court explained that this was “no different than the type of generalized grievance that 23 courts have routinely rejected.” Id. at *4 (citing Birdsong v, Apple, Inc., 590 F.3d 955, 960-61 24 (9th Cir. 2009) (“At most, the plaintiffs plead a potential risk of hearing loss not to themselves, but 25 to other unidentified iPod users who might choose to use their iPods in an unsafe manner. The risk 26 of injury the plaintiffs allege is not concrete and particularized as to themselves.”); Lujan, 504 27 Case No.: 5:19-cv-07489-EJD 1 U.S. at 563–67 (holding that the plaintiffs fear of harm to endangered species, without some 2 showing of particular injury, was insufficient)). 3 Here, Riffel’s alleged economic harm is foundationally no different from the economic 4 harm alleged in Tamboura and Bendis. Riffel contends that had she been aware that UCLA had a 5 system by which prospective applicants could pay a sum certain of money to receive preferential 6 treatment in UCLA’s admissions process, she would never have applied or paid UCLA’s 7 application fee for admission to the university. Opp’n at 5-8. She argues that she has plead an 8 injury-in-fact because UCLA, through its “advertising,” misled and failed to disclose material 9 information “which in turn caused [Riffel] to rely on the misrepresentation or material omissions 10 which resulted in [Riffel] spending her money and submitting an application for admission.” 11 Opp’n at 5-6 (citing Pirozzi v. Apple Inc., 913 F. Supp. 2d 840, 847 (N.D. Cal. 2012)). Like the 12 plaintiffs in Tamboura and Bendis, Riffel does not allege that she sought admission as a student 13 athlete or that the college admissions scandal prevented her application from being evaluated on 14 its merits. Thus, without some link between her application and UCLA’s alleged bad acts, Riffel 15 has simply plead the type of generalized grievance routinely disallowed by courts and already 16 rejected in Tamboura and Bendis. 17 Riffel’s reliance on cases such as Maya v. Centex Corp., 658 F.3d 1060 (9th Cir. 2011) and 18 Chavez v. Blue Sky Nat. Beverage Co., 340 F. App’x. 359 (9th Cir. 2009) to support her economic 19 harm argument is also misplaced. In each of those cases, unlike in the present matter, the 20 plaintiffs alleged individual economic harm directly created by the defendants’ representations 21 that the property at issue had features or value that the property ultimately did not have. And 22 therefore, the plaintiffs did not receive the benefit of their bargain. See Maya, 658 F.3d at 1069 23 (explaining that plaintiffs’ “claim that, as a result of defendants’ actions, they paid more for their 24 homes than the homes were worth at the time of sale,” and “claim that they would not have 25 purchased their homes had defendants made the disclosures allegedly required by law” constituted 26 “a quintessential injury-in-fact”); Chavez, 340 F. App’x. at 360-61 (finding that plaintiff “lost the 27 Case No.: 5:19-cv-07489-EJD 1 purchase price” of the beverage because “he did not know the geographic origin of the products” 2 and consequently “lost money . . . in that he did not receive what he had paid for.”). 3 Riffel fails to allege how the college admissions scandal affected her personally or how the 4 alleged misrepresentations and omissions caused her to not receive what she bargained for when 5 she paid her admissions application fee. She has not plausibly alleged that she was “deprived of 6 an agreed-upon benefit” which UCLA represented but did not deliver. McGee v. S-L Snacks Nat., 7 982 F.3d 700, 705-06 (9th Cir. 2020) (quoting Birdsong, 590 F.3d at 961). Instead, Riffel asserts 8 only the conclusory allegation that she “would not have paid, or reimbursed the payment of, an 9 application fee.” FAC ¶¶ 24, 39. Without more, the Court must reject Riffel’s economic harm 10 argument. See In re Apple Processor Litigation, 366 F. Supp. 3d at 1110.2 11 In sum, Riffel has failed to establish that she suffered from an injury-in-fact.3 Because 12 Riffel cannot show a judicially cognizable harm, she lacks standing and the Court therefore 13 GRANTS Defendant’s motion to dismiss on jurisdictional grounds. 14 IV. LEAVE TO AMEND 15 In determining whether leave to amend is appropriate, the district court considers “the 16 presence of any of four factors: bad faith, undue delay, prejudice to the opposing party, and/or 17 futility.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (noting 18 amendments should be granted with “extreme liberality”); Fed. R. Civ. Pro. 15(a)(2) (court should 19

20 2 The Court also finds that Riffel lacks standing to seek injunctive relief for the separate and 21 independent reason that she has not alleged any future harm to herself that an injunction would redress. “To have Article III standing to seek injunctive relief in a federal court, a plaintiff must 22 demonstrate ‘a sufficient likelihood that [s]he will again be wronged in a similar way.’” Letizia v. Facebook Inc., 267 F. Supp. 3d 1235, 1247-48 (N.D. Cal. 2017). Because the underlying basis for 23 her alleged “harm”—the college admissions scandal—has ceased, Riffel is not able to show there is a sufficient likelihood that she would be wronged in a similar way. See RJN, Ex. C. 24 3 Riffel asserts a claim under California’s Unfair Competition Law (“UCL”). But to have standing 25 under California’s UCL, a plaintiff must establish in part that they (1) suffered an injury-in-fact and (2) lost money or property as a result of the unfair competition. See Birdsong, 590 F.3d at 959 26 (citations omitted). Because Riffel has not alleged the requisite injury-in-fact, the Court also concludes that she lacks standing to bring her California UCL claim. 27 Case No.: 5:19-cv-07489-EJD 1 freely allow amendment when “justice so requires”). If leave to amend would be futile, however, 2 || the court may deny leave. See Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990) (“Tt 3 is not an abuse of discretion to deny leave to amend when any proposed amendment would be 4 |} futile.”). 5 Here, the Court finds that leave to amend would be futile. Similar to the student plaintiffs 6 || in Tamboura and Bendis, Riffel would have to show some connection between the college 7 admissions scandal and her admissions review. For the reasons discussed above and in Tamboura, 8 the Court does not believe that Riffel will be able to plead facts connecting the scheme to defraud 9 || to UCLA’s general admissions process. Accordingly, the Court determines that amendment 10 || would be futile. 11 Vv. CONCLUSION 12 For the foregoing reasons, Defendant’s motion to dismiss is GRANTED on jurisdictional 5 13 grounds without leave to amend.

IT IS SO ORDERED.

3 15 Dated: August 17, 2021

EDWARD J. DAVILA

17 United States District Judge 18 19 20 21 22 23 24 25 26 Case No.: 5:19-cv-07489-EJD 2g || ORDER DISMISSING WITHOUT LEAVE TO AMEND PLAINTIFF’S COMPLAINT FOR

LACK OF STANDING