1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 SALLY HA, Case No. 24-cv-00135-VKD

9 Plaintiff,

ORDER GRANTING DEFENDANT’S

10 v. MOTION TO DISMISS PLAINTIFF’S

AMENDED COMPLAINT

11 NEW CINGULAR WIRELESS PCS, LLC, Re: Dkt. No. 16 Defendant. 12

13 14 Plaintiff Sally Ha, who is representing herself, sues her cell phone service provider, 15 defendant New Cingular Wireless PCS, LLC dba AT&T Mobility (“AT&T”), for breach of 16 contract. Ms. Ha filed her original complaint on January 8, 2024. Dkt. No. 1. AT&T moved to 17 dismiss for failure to state a claim (Dkt. No. 8) and on March 6, 2024, the Court granted the 18 motion and dismissed Ms. Ha’s original complaint with leave to amend (Dkt. No. 13). Ms. Ha has 19 now filed an amended complaint. Dkt. No. 15. AT&T again moves to dismiss for failure to state 20 a claim. Dkt. No. 16. Ms. Ha opposes this motion. Dkt. No. 17. 21 The Court finds the motion to dismiss suitable for decision without oral argument. See 22 Civil L.R. 7-1(b). Upon consideration of the moving papers and the applicable law, the Court 23 grants AT&T’s motion and dismisses Ms. Ha’s complaint, without leave to amend.1 24 I. BACKGROUND 25 The factual allegations in Ms. Ha’s amended complaint are substantially the same as those 26

27 1 All named parties have expressly consented that all proceedings in this matter may be heard and 1 in her original complaint. See Dkt. No. 13 at 1-3. As relevant to the present motion to dismiss, 2 she alleges the following: 3 Ms. Ha opened an account with AT&T on December 6, 2017. Dkt. No. 15 ¶ 6. On July 5, 4 2023, she entered into an “installment agreement” with the company to finance the purchase of a 5 new cell phone. Id. ¶¶ 7-8; see also id. at ECF 34-38 (agreement). 6 On August 22, 2023, Ms. Ha sent AT&T an “Indorsed [sic] bill of exchange for account 7 #436148411568,” a “Tender of payment titled ‘Letter of Credit Claim,’” and a “Certified copy of 8 Durable Power of Attorney.” Id. ¶ 12. According to Ms. Ha, these documents “performed her 9 contractual obligation to the account that was created with her security collateral.” Id. Ms. Ha 10 sent similar mailings to AT&T on September 11, 2023 and September 25, 2023. Id. ¶¶ 13-14. 11 AT&T did not accept these documents as payment and responded to Ms. Ha’s mailings 12 with a November 20, 2023 letter stating that it “respectfully dispute[s] all your claims and 13 decline[s] all demands.” Id. ¶ 15. Ms. Ha claims that she was then “forced to donate . . . cash 14 payment[s]” of $919.74 and $422.22 to AT&T on December 13, 2023 and December 20, 2023 “in 15 order to protect the account from any unlawful closures done by defendant.” Id. ¶¶ 16-17. 16 II. LEGAL STANDARD 17 A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal 18 sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is 19 appropriate where there is no cognizable legal theory or an absence of sufficient facts alleged to 20 support a cognizable legal theory. Id. (citing Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 21 699 (9th Cir. 1990)). At the motion to dismiss stage, all material allegations in the complaint must 22 be taken as true and construed in the light most favorable to the claimant. Id. 23 The factual allegations in the complaint “must be enough to raise a right to relief above the 24 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned up). 25 Implausible claims for relief will not survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 26 679 (2009). A claim is plausible if its factual content permits the court to draw a reasonable 27 inference that the defendant is liable for the alleged misconduct. Id. 1 pleader is entitled to relief.” Fed. R. Civ. P. 8(a). However, “[t]hreadbare recitals of the elements 2 of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 3 678. “The court is not required to accept legal conclusions cast in the form of factual allegations if 4 those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness 5 Network, 18 F.3d 752, 754-55 (9th Cir. 1994). 6 Pro se pleadings are liberally construed and held to a less stringent standard than those 7 drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007). This is particularly true with 8 respect to the factual allegations in a pro se complaint. Chambers v. C. Herrera, 78 F.4th 1100, 9 1108 (9th Cir. 2023). “[A] district court should not dismiss a pro se complaint without leave to 10 amend unless it is absolutely clear that the deficiencies of the complaint could not be cured by 11 amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (cleaned up). 12 III. DISCUSSION 13 To state a claim for breach of contract under California law, a plaintiff must plead (1) the 14 existence of a contract with the defendant, (2) plaintiff’s performance or excuse for 15 nonperformance, (3) defendant’s breach, and (4) resulting damages to plaintiff. Oasis W. Realty, 16 LLC v. Goldman, 51 Cal. 4th 811, 821 (2011). 17 In its order dismissing Ms. Ha’s original complaint, the Court concluded that, while Ms. 18 Ha plausibly alleged the existence of a contract between herself and AT&T, she “[did] not 19 plausibly allege any of the other elements of a breach of contract claim.” Dkt. No. 13 at 4. In 20 particular, the Court rejected Ms. Ha’s contention that AT&T breached its contractual obligations 21 to her by refusing to accept her “bill of exchange” and the documents that accompanied it as 22 payment for the amount due on her account. Id. The Court also observed that “the materials 23 attached to the complaint do not appear to constitute or evidence payment of any kind to AT&T, 24 with the exception of the payments Ms. Ha made in December 2023.” Id. . 25 Ms. Ha’s amended complaint relies on the same documents and virtually identical legal 26 theories as her original complaint. She asserts that the installment agreement “grant[ed] her all the 27 rights associated with being a private investor of [AT&T] while granting [AT&T] a security 1 of remittance coupons (another form of security) each month to plaintiff for investing in the 2 company.” Id. ¶ 10. With respect to the AT&T billing statements for her account, Ms. Ha claims 3 that she had two options: she could “donate cash” to AT&T, or she would “receive credits every 4 30 days by [AT&T] in the form of monthly coupons, which may be utilized to transfer to the due 5 account.” Id. ¶ 11. She then asserts that she “performed her obligation [under the contract] by 6 sending in notices with her restrictively indorsed [sic] bill of exchange” and that AT&T “failed to 7 perform by disregarding all notices.” Id. ¶ 18. 8 As in her original complaint, Ms. Ha fails to plausibly allege that she performed all her 9 obligations under the installment agreement with AT&T or that AT&T breached its obligations to 10 her under the same agreement. No provision of the installment agreement requires AT&T to 11 accept Ms. Ha’s “notices” and their attachments as payment, nor is there any support for Ms. Ha’s 12 claim that the agreement requires AT&T to “utilize the security interest and proceeds accrued 13 from the security collateral” that she claims to have provided to AT&T. 14 None of the other arguments in Ms. Ha’s opposition address these fundamental problems 15 with her breach of contract claim. Seizing on a reference to the District of Columbia Municipal 16 Regulations in the installment agreement, she argues that AT&T was required to accept her “bill 17 of exchange” under those regulations. Dkt. No. 17 at 3; Dkt. No. 15 at ECF 36. Nothing in the 18 agreement or in the regulations supports her contention. Ms. Ha also argues that AT&T violated 19 provisions of the Uniform Commercial Code by failing to honor her “bill of exchange,” which she 20 asserts is a “negotiable instrument” and “recognized as a form of payment.” Dkt. No 17 at 5. 21 However, nothing in the UCC provides that such a document must be accepted as payment. See, 22 e.g., Matchynski v. Ocwen Loan Servicing, No. 13-cv-1915-BEN WMC, 2014 WL 202625, at *3- 23 4 (S.D. Cal. Jan. 16, 2014) (collecting cases). 24 IV. CONCLUSION 25 The facts alleged in Ms. Ha’s amended complaint do not support a cognizable legal theory 26 under which AT&T could be liable for breach of contract. “[L]acking an arguable basis either in 27 law or in fact,” her breach of contract claim is frivolous. Neitzke v. Williams, 490 U.S. 319, 325 1 clear” that further amendment would be futile, see Chambers, 78 F.4th at 1107, the Court 2 || dismisses the amended complaint without leave to amend. 3 The Clerk of Court is directed to close the file. 4 IT IS SO ORDERED. 5 Dated: May 10, 2024 6 «8 7

VIRGINIA K. DEMARCHI

8 United States Magistrate Judge 9 10 11 a 12

13 14 © 15 16

= 17 6 18 19 20 21 22 23 24 25 26 27 28