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Hoffman v. Cingular Wireless

September 4, 2008

ALICIA HOFFMAN, ET AL., PLAINTIFFS,
v.
CINGULAR WIRELESS, LLC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER (1) GRANTING IN-PART AND DENYING IN-PART DEFENDANT'S MOTION TO (2) DENYING DEFENDANTS' DISMISS (Doc. No. 58), AND MOTION TO STRIKE (Doc. No. 57)

Plaintiffs Alicia Hoffman and Market Trading, Inc. ("Plaintiffs") are suing Defendant Cingular Wireless, LLC, for breach of contract, violation of California Civil Code §§ 1750 et seq., and violation of California Business and Professions Code §§ 17200, et seq. Pending before this Court is Cingular's motion to dismiss Plaintiffs' complaint for failure to state a claim, and motion to strike certain factual and damage allegations.

The Court decides the matter on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d.1). For the reasons stated below, the Court GRANTS Cingular's motion to dismiss (Doc. No. 58) and DENIES as moot the motion to strike (Doc. No. 57).

I. BACKGROUND

The factual background of this case is well known to the parties and has been discussed extensively in this Court's prior orders. It need not be repeated in full here.

According to the complaint, in February 2004, Plaintiff Alicia Hoffman entered into a Wireless Service Agreement (the "Agreement") with Cingular for cellular telephone service. (Compl., ¶10.) Hoffman's service plan provided 850 "anytime minutes" and included Cingular's "rollover" feature that allowed unused anytime minutes to roll over to the next month. (Id., ¶¶2, 10.) The monthly service fee was $59.99. (Id., ¶10.) Hoffman alleges that under the Agreement, rollover minutes would only expire under three well-defined circumstances: (1) after twelve months; (2) upon default; or (3) if she switched to a non-rollover plan. (Id., ¶11.)

Plaintiff alleges that on October 7, 2004, she added Plaintiff Market Trading, Inc. to the account. (Id., ¶12.) By October 2005, Plaintiffs had accumulated more than 10,000 rollover minutes. (Id.)

Sometime in October 2005, Hoffman contacted Cingular to switch to a service plan with fewer anytime minutes so she could begin to use her accumulated rollover minutes. (Id., ¶13.) According to Hoffman, Cingular's customer service representative stated that Hoffman would not be allowed to keep all of the unused minutes if she switched to a service plan with fewer anytime minutes. (Id.) Instead, Hoffman would be allowed to transfer only the number of rollover minutes equal to her new service plan's monthly anytime-minute allowance. (Id.) In other words, if Hoffman's new plan provided only 500 monthly anytime minutes, she would only be allowed to transfer 500 of her 10,000 unused rollover minutes.

On April 6, 2006, Plaintiffs filed this class-action lawsuit in the San Diego Superior Court. The complaint includes three causes of action for (1) breach of contract, (2) violation of California Civil Code §§ 1750, et. seq, (the Consumers Legal Remedies Act or "CLRA"), and (3) violation of California Business and Professions Code §§ 17200, et. seq (the "UCL"). Defendant's motion seeks to dismiss all causes of action for failure to state a claim. Additionally, Defendant's seeks to strike certain factual and damage allegations.

II. LEGAL STANDARD

A. Motions to Dismiss Under Rule 12(b)(6)

The court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See North Star Int'l. v. Arizona Corp. Comm'n., 720 F.2d 578, 581 (9th Cir. 1983). All material allegations in the complaint, "even if doubtful in fact," are assumed to be true. Id. The court must assume the truth of all factual allegations and must "construe them in the light most favorable to the nonmoving party." Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002); see also Walleri v. Fed. Home Loan Bank of Seattle, 83 F.3d 1575, 1580 (9th Cir. 1996).

As the Supreme Court recently explained, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007). Instead, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 1964--65. A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

Generally, the court may not consider material outside the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). However, the court may consider any documents specifically identified in the complaint whose authenticity is not questioned by the parties. Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995). Moreover, the court may consider the full text of those documents, even when the complaint quotes only selected portions. Id. The court may also consider material properly subject to judicial notice without converting the motion into a motion for summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994) ...


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