Order granting motion to dismiss SAC with prejudice — Byrnes v. Fountainhead (C.D. Cal.)

Record facts

U.S. District Court, Central District of California · No. 2:20-cv-04149-DDP-RAO · Doc. 49 · 2021-11-24 · Docket on CourtListener

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O
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ELIZABETH M. BYRNES, INC.,
Plaintiff,
v.
FOUNTAINHEAD COMMERCIAL
CAPITAL, LLC,
Defendants.
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Case No. CV 20-04149 DDP (RAOx)
ORDER GRANTING DEFENDANTS’ MOTION
TO DISMISS SECOND AMENDED
COMPLAINT
[Dkt. 40]
Presently before the court is Defendants Fountainhead
Commercial Capital, LLC and Fountainhead SBF LLC (collectively,
“Fountainhead”)’s Motion to Dismiss Plaintiff’s Second Amended
Complaint.  Having considered the submissions of the parties and
heard oral argument, the court grants the motion and adopts the
following Order. 
I.
Background
Beginning in March 2020, public health measures necessitated
by the outbreak of the coronavirus pandemic had “devastating”
effects on small businesses.  Second Amended Complaint (“SAC”) ¶
12.  In response, the federal government enacted the Coronavirus
Aid, Relief, And Economic Security (“CARES”) Act, Pub.L. 116–136,
Case 2:20-cv-04149-DDP-RAO   Document 49   Filed 11/24/21   Page 1 of 13   Page ID #:483
JS-6

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H.R. 748.  SAC ¶ 13.  The CARES Act, among other things,
established the Paycheck Protection Program (“PPP”), a $349 billion
loan program through which small businesses could obtain forgivable
loans backed by the Small Business Administration, but administered
by private lenders.  SAC ¶ 14.
On March 27, the day the CARES Act was signed into law,
Fountainhead advertised that it would “soon be tackling the loan
inquiries lined up in our queue, providing business owners with
capital they need within days.”  SAC ¶ 17.  The next day, Plaintiff
submitted a PPP loan application to Fountainhead for a loan of less
than $25,000.  SAC ¶ 28.  That same day, Fountainhead responded
with an e-mail stating that Plaintiff was “in the queue,” and that
“[h]elp is on the way,” and asking her to gather certain
documentation.  Id.  The next day, Fountainhead told Plaintiff to
expect “an invitation to a secure portal for document upload within
the next 48 business hours.”  SAC ¶ 28.  Fountainhead’s message
indicated that Plaintiff should prepare to upload documents such as
bank statements, payroll reports, rent statements, utility bills,
and a “Completed Application.”  (Declaration of Michael R. Farrell
in Support of Motion; Ex. 2.)  Plaintiff did not receive any
document upload invitation.  SAC ¶ 28. 
Fountainhead continued to promote PPP loans, encouraging
applications and stating that it “hope[d] to make these loans
within days.”  SAC ¶ 20.  Fountainhead executives made statements
touting its advantage over other, bank-based lenders, such as
Fountainhead’s ability to approve loans “within a few hours.”  SAC
¶ 19.  Fountainhead further represented that it “require[d] no[]
prior relationship, no special (money-making) criteria, and [was]
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processing first come, first serve . . . no prioritization.”  SAC ¶
24. 
Approximately two weeks after submitting her application and
being instructed to gather her documentation, Plaintiff followed up
with Fountainhead to confirm the status of her loan.  SAC ¶ 29. 
Fountainhead confirmed that her loan was in the queue and again
indicated that Plaintiff would receive access to a document upload
portal within 24 to 48 hours.  Id.  A few days later, however,
Fountainhead sent an e-mail stating, “We ask for your patience with
us . . . as we process your requests as quickly and responsibly as
we can. Should you feel the need to remove yourself from our loan
queue and join another lender’s list, kindly let us know . . . so
we may continue to prioritize our list.”  SAC ¶ 30.  
Plaintiff gathered the requested documents, waited for the
opportunity to upload them, refrained from submitting a loan
application to other lenders, and made other, related decisions
regarding her small business.  SAC ¶ 31.  Plaintiff never, however,
received PPP funding from Fountainhead.  SAC ¶ 3.  
Plaintiff alleges, on behalf of a putative class of California
businesses that applied for PPP loans, that Fountainhead’s
representations to California businesses were false and misleading. 
SAC ¶ 16.  Plaintiff alleges, for example, that Fountainhead was
not even licensed to engage in lending activities in California
until April 21 and had not secured any funding prior to that time,
and therefore could not possibly have extended loans “within days.” 
SAC ¶¶ 16, 22.  Plaintiff also alleges that, contrary to its
representations, Fountainhead did prioritize favored customers and
higher-value loans that would yield higher fees to Fountainhead
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than would relatively small loans, such as that sought by
Plaintiff.  SAC ¶ 32.  Plaintiff’s SAC alleges state law claims for
fraudulent concealment, fraudulent deceit, unfair business
practices, and false advertising.  Fountainhead now moves to
dismiss all claims.  
II.
Legal Standard
A complaint will survive a motion to dismiss when it
“contain[s] sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.”  Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). When considering a Rule 12(b)(6) motion, a
court must “accept as true all allegations of material fact and
must construe those facts in the light most favorable to the
plaintiff.”  Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). 
Although a complaint need not include “detailed factual
allegations,” it must offer “more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at
678.  Conclusory allegations or allegations that are no more than a
statement of a legal conclusion “are not entitled to the assumption
of truth.” Id. at 679. In other words, a pleading that merely
offers “labels and conclusions,” a “formulaic recitation of the
elements,” or “naked assertions” will not be sufficient to state a
claim upon which relief can be granted. Id. at 678 (citations and
internal quotation marks omitted).
“When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement of relief.” Iqbal, 556 U.S.
at 679.  Plaintiffs must allege “plausible grounds to infer” that
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their claims rise “above the speculative level.” Twombly, 550 U.S.
at 555-56.  “Determining whether a complaint states a plausible
claim for relief” is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679.
III. Discussion
A.
Fraudulent concealment
“The elements of fraudulent concealment are: (1) the defendant
concealed or suppressed a material fact; (2) the defendant was
under a duty to disclose the fact to the plaintiff; (3) the
defendant intentionally concealed or suppressed the fact with the
intent to defraud the plaintiff; (4) the plaintiff was unaware of
the fact and would not have acted as he did if he had known of the
concealed or suppressed fact; and (5) as a result of the
concealment or suppression of the fact, the plaintiff sustained
damage.”  Burch v. CertainTeed Corp., 34 Cal. App. 5th 341, 348
(2019).  As it did in moving to dismiss Plaintiff’s First Amended
Complaint, Fountainhead argues that Plaintiff has failed to
adequately plead that Fountainhead owed her any duty to disclose. 
As discussed in this Court’s earlier Order, a duty to disclose
may arise in four circumstances: “(1) when the defendant is in a
fiduciary relationship with the plaintiff; (2) when the defendant
had exclusive knowledge of material facts not known to the
plaintiff; (3) when the defendant actively conceals a material fact
from the plaintiff; and (4) when the defendant makes partial
representations but also suppresses some material facts.”  Los
Angeles Mem’l Coliseum Com. v. Insomniac, Inc., 233 Cal. App. 4th
803, 831 (2015).  The latter three of these circumstances, however,
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“presuppose the existence of some other relationship between the
plaintiff and defendant in which a duty to disclose can arise.” 
Burch, 34 Cal.App.5th at 349. “This relationship has been described
as a ‘transaction,’ such as that between seller and buyer, employer
and prospective employee, doctor and patient, or parties entering
into any kind of contractual arrangement.”  Id. at 349-50; see also
LiMandri v. Judkins, 52 Cal. App. 4th 326, 337 (1997) (“[W]here
material facts are known to one party and not to the other, failure
to disclose them is not actionable fraud unless there is some
relationship between the parties . . . .”) 
Plaintiff’s SAC, unlike the FAC, alleges that “Plaintiff and
Defendant were parties transacting business in order to enter into
a contractual, borrower-lender relationship.”  (SAC ¶ 52.)  As an
initial matter, however, Plaintiff has not pleaded any facts that
support this allegation.  Plaintiff alleges that she “submitted a
PPP loan application” and received a confirmation e-mail stating,
“We’ve received your loan app . . . .”  (SAC ¶ 28.)  The e-mail
Plaintiff received, however, does not say that.  Rather, it states,
“We’ve received your loan request.”  (Farrell Decl., Ex. 1
(emphasis added)).  Furthermore, the document portal “invitation”
Plaintiff received does not refer to any previously-submitted
application.  Rather, the e-mail indicated that the portal would
allow the upload of documents Fountainhead would need to process a
loan.  (Farrell Decl., Ex. 2.)  Those documents included a
“Completed Application SEE ATTACHED.”  (Id.)  The e-mail further
indicated that a PDF of the application would need to be downloaded
“before completing.”  (Id.)  This Court cannot, therefore, assume
the truth of Plaintiff’s allegation that she submitted a loan
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application, let alone her conclusory allegation that the parties
entered into a borrower-lender relationship or engaged in any other
transaction.  
Even assuming Plaintiff had adequately alleged the existence
of a borrower-lender relationship, her fraudulent concealment claim
fails.  “[A]s a general rule, a financial institution owes no duty
of care to a borrower when the institution’s involvement in the
loan transaction does not exceed the scope of its conventional role
as a mere lender of money.”  Nymark v. Heart Fed. Sav. & Loan
Assn., 231 Cal. App. 3d 1089, 1096 (1991).  A duty to a borrower
may arise, however, under certain circumstances.  See Alvarez v.
BAC Home Loans Servicing, L.P., 228 Cal. App. 4th 941, 945-946
(2014).  To determine whether such a duty exists, courts balance
the non-exhaustive factors set forth in Biakanja v. Irving, 49 Cal.
2d 647, 650 (1958).  See, e.g., Welte v. Wells Fargo Bank Nat’l
Ass’n, 189 F. Supp. 3d 965, 973 (C.D. Cal. 2016); Newson v.
Countrywide Home Loans, Inc., No. C 09-5288 SBA, 2010 WL 4939795,
at *5 (N.D. Cal. Nov. 30, 2010); Kemp v. Wells Fargo Bank, N.A.,
No. 17-CV-01259-MEJ, 2017 WL 4805567, at *6 (N.D. Cal. Oct. 25,
2017); Pimentel v. Wells Fargo Bank, N.A., No. 14-CV-05004-EDL,
2016 WL 8902601, at *7 (N.D. Cal. Dec. 6, 2016); Jacobik v. Wells
Fargo Bank, N.A., No. 17-CV-05121-LB, 2017 WL 5665666, at *9 (N.D.
Cal. Nov. 26, 2017).  Those factors include “[1] the extent to
which the transaction was intended to affect the plaintiff, [2] the
foreseeability of harm to him, [3] the degree of certainty that the
plaintiff suffered injury, [4] the closeness of the connection
between the defendant’s conduct and the injury suffered, [5] the
moral blame attached to the defendant’s conduct, and [6] the policy
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of preventing future harm.”  Connor v. Great W. Sav. & Loan Ass’n,
69 Cal. 2d 850, 865 (1968) (quoting Biakanja, 49 Cal. 2d at 650).  
Here, a balancing of the Biakanja factors reveals that
Fountainhead owed no duty to Plaintiff.  The first factor is not
particularly pertinent here, where a direct borrower-lender
relationship exists.  Compare Welte, 189 F. Supp. 3d at 974-975. 
More importantly, the remaining factors tilt strongly against the
existence of a duty.  First, the only specific harms alleged are
“the loss of use of money” and harm Plaintiff suffered “by
refraining from applying elsewhere thereby losing priorty and
further delaying receipt of any monies needed to fund her
business.”  (SAC ¶ 54.)  Plaintiff, of course, was not guaranteed
to have her loan application approved, or otherwise entitled to any
“use of money.”  Furthermore, given the preliminary nature of the
communications between the parties, it was not foreseeable that
Plaintiff would put all of her eggs in the Fountainhead basket on
the basis of her loan “request,” made in response to a tweet
stating that Fountainhead would be “soon be tackling the loan
inquiries lined up in our queue.”1  It is far from certain that
Plaintiff suffered any injury, as she does not allege that she was
unable to obtain a loan from another source or how much of a delay
she suffered as a result of Fountainhead’s conduct.  Nor does
Fountainhead’s alleged conduct seem overly blameworthy.  Although
Fountainhead did allegedly misrepresent that it would allow
1 For similar reasons, even if Fountainhead did owe a duty to
Plaintiff, she has not adequately allege that she justifiably
relied upon Fountainhead’s relatively innocuous non-disclosures. 
See 625 3rd St. Assocs., L.P. v. Alliant Credit Union, 633 F. Supp.
2d 1040, 1050 (N.D. Cal. 2009).
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Plaintiff to upload documents, including a loan application, it
also acknowledged that it was “somewhat overwhelmed” and was
experiencing delays in implementing a novel loan program, and
specifically raised the possibility that Plaintiff might want to
pursue a loan with another lender.  (Farrell Decl., Ex. 3.)  And,
in light of the expiration of the PPP program, there is no danger
of future harm.  Thus, even assuming the existence of a borrower-
lender relationship between Plaintiff and Fountainhead, the latter
owed Plaintiff no duty of disclosure.  Accordingly, Plaintiff’s
fraudulent concealment claim is dismissed, with prejudice.  
B.
Fraudulent Deceit
The SAC, unlike the FAC, includes a cause of action for
fraudulent deceit.  Fountainhead contends that this claim must be
dismissed because it is premised upon allegations made upon
information and belief, and therefore cannot satisfy the heightened
pleading requirements of Rule 9(b).2  “In order to plead fraud with
particularity, the complaint must allege the time, place, and
content of the fraudulent representation; conclusory allegations do
not suffice.”  Shroyer v. New Cingular Wireless Servs., Inc., 622
F.3d 1035, 1042 (9th Cir. 2010).  “Claims made on information and
belief are not usually sufficiently particular, unless they
accompany a statement of facts on which the belief is founded.” 
Id.; see also McFarland v. Memorex Corp., 493 F. Supp. 631, 639
(N.D. Cal. 1980) (“Even though this standard permits
information-and-belief pleading, it requires that a plaintiff
2  “In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake.” 
Fed. R. Civ. P. 9(b).  
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allege sufficient detail to demonstrate that his complaint is
grounded in some facts.”).  
Here, there is no factual foundation for Plaintiff’s
allegations, made upon information and belief, that Fountainhead
(1) prioritized large loans that would yield high fees, and (2) did
not have adequate funding.  (SAC ¶ 59.)  At least one of
Plaintiff’s fraudulent deceit allegations, however, is accompanied
by factual details.  Plaintiff’s allegation, made on information
and belief, that Fountainhead was initially not licensed to make
loans is supported by a factual allegation that Fountainhead’s
license had been revoked in 2019, and was not reinstated until
April 21, 2020.  (SAC ¶ 16.)  The lack of license claim, therefore,
is alleged with sufficient particularity.
Fountain also argues, however, that Plaintiff fails to allege
several elements of a fraudulent deceit claim.  The court agrees.
“The elements of fraud, which give rise to the tort action for
deceit, are (a) misrepresentation (false representation,
concealment, or nondisclosure); (b) knowledge of falsity (or
‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d)
justifiable reliance; and (e) resulting damage.”  Lazar v. Superior
Ct., 12 Cal. 4th 631, 638, 909 P.2d 981, 984–85 (1996) (quoting 5
Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 676, p. 778). 
Even assuming the first two elements are met, Plaintiff does not
adequately allege that Fountainhead intended to defraud Plaintiff. 
“[A] plaintiff must point to facts which show that defendant
harbored an intention not to be bound by terms of the contract at
formation.”  Hsu v. OZ Optics Ltd., 211 F.R.D. 615, 620 (N.D. Cal.
2002) (discussing promissory fraud claim) (emphasis original).  “A
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suit for fraud and deceit will only lie when one makes a promise of
future conduct with no intention, at the time of the promise, of
actually performing that promise.”  Cedars Sinai Med. Ctr. v.
Mid-W. Nat. Life Ins. Co., 118 F. Supp. 2d 1002, 1013 (C.D. Cal.
2000).  “The non-performance of a promise alone will not support a
finding of promissory fraud.”  UMG Recordings, Inc. v. Glob. Eagle
Ent., Inc., No. CV143466MMMJPRX, 2015 WL 12746208, at *14 (C.D.
Cal. Oct. 30, 2015).  Plaintiff makes almost no attempt to argue
that the intent element is satisfied here, asserting only that
intent can be inferred because Fountainhead represented “that it
would take certain actions and then actually act[ed] in the
complete opposite.”  (Opp. at 13:18-19.)  As discussed above,
Plaintiff has not adequately alleged that Fountainhead, which
acknowledged that it was overwhelmed, prioritized large loans.  The
fact that Fountainhead did not process Plaintiff’s request does not
suggest an intent not to do so, as opposed to an inability to do
so.  
Furthermore, as discussed above, Plaintiff has not adequately
alleged that her reliance upon Fountainhead’s alleged
misrepresentations was justifiable.3  Fountainhead’s tweets and
representations, such as that Fountainhead would “soon be tackling
the loan inquiries lined up in our queue,” were innocuous or, at
most, promises of future performance.  Fountainhead never
represented that it had received or was processing a loan
application, but rather only that it had received Plaintiff’s “loan
request.”  Any decision to forego other loan options was simply not
3 See note 1, above.  
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reasonable under the circumstances.  Although reasonableness is
often a question of fact, “whether a party’s reliance was justified
may be decided as a matter of law if reasonable minds can come to
only one conclusion based on the facts.”  Guido v. Koopman, 1 Cal.
App. 4th 837, 843 (1991).  Such is the case here.  
C.
Remaining Claims
Plaintiff’s Third and Fourth Causes of action allege claims
under California’s Unfair Competition Law (“UCL”), Cal. Bus. &
Prof. Code § 17200 et seq., and False Advertising Law (“FAL”), Cal.
Bus. & Prof. Code § 17500 et seq., respectively. Claims under both
the UCL and FAL are equitable in nature. Nationwide Biweekly
Admin., Inc. v. Superior Court of Alameda Cty., 9 Cal. 5th 279,
326, 462 P.3d 461, 488 (2020); see also Munning v. Gap, Inc., 238
F. Supp. 3d 1195, 1203 (N.D. Cal. 2017). Fountainhead contends
that, under the Ninth Circuit’s decision in Sonner v.
Premier Nutrition Corp., 971 F.3d 834, 837 (9th Cir. 2020),
Plaintiff cannot bring these equitable claims because she has not
sufficiently alleged that she lacks an adequate remedy at law.
In Sonner, the Ninth Circuit held that, regardless of state
law, a federal court sitting in diversity is bound by traditional
federal equitable principles. Id. at 842, 845. The court further
held that among those principles, consistent with California
doctrine, is the requirement that a plaintiff establish that she
lacks an adequate remedy at law before pursuing equitable
restitution. Id. at 844.  
Plaintiff’s SAC, unlike the FAC, alleges, in the alternative,
that she lacks an adequate remedy at law.  (SAC ¶¶ 72, 79.)  Beyond
that, however, Plaintiff makes no effort to allege, or explain in
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her Opposition, why her legal remedies are or may be inadequate. 
Several courts have dismissed equitable claims pursuant to Sonner
under similar circumstances.  As one court explained, “[t]he issue
is not whether a pleading may seek distinct forms of relief in the
alternative, but rather whether a prayer for equitable relief
states a claim if the pleading does not demonstrate the inadequacy
of a legal remedy.  On that point, Sonner holds that it does not.” 
Sharma v. Volkswagen AG, 524 F. Supp. 3d 891, 907 (N.D. Cal. 2021);
see also Anderson v. Apple Inc., 500 F. Supp. 3d 993, 1009 (N.D.
Cal. 2020); In re California Gasoline Spot Mkt. Antitrust Litig.,
No. 20-CV-03131-JSC, 2021 WL 1176645, at *8 (N.D. Cal. Mar. 29,
2021); Shay v. Apple Inc., No. 20CV1629-GPC(BLM), 2021 WL 1733385,
at *5 (S.D. Cal. May 3, 2021); Watkins v. MGA Ent., Inc., No.
21-CV-00617-JCS, 2021 WL 3141218, at *17 (N.D. Cal. July 26, 2021).
Here, absent any indication in the SAC or Plaintiff’s arguments how
Plaintiff’s legal arguments are or may be inadequate, Plaintiff’s
equitable claims must be dismissed. 
IV. Conclusion
For the reasons stated above, Fountainhead’s Motion to Dismiss
is GRANTED.  Plaintiff’s Second Amended Complaint is DISMISSED,
with prejudice.  
IT IS SO ORDERED.
Dated:
DEAN D. PREGERSON
United States District Judge
13
November 24, 2021
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