The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge
[Motion filed on December 8, 2008]
ORDER DENYING MOTION TO DISMISS
The Court has received and considered the papers filed in support of, and in opposition to, Defendant T-Mobile USA, Inc.'s "Motion to Dismiss Under FRCP 9(b)." The matter is appropriate for resolution without hearing pursuant to Local Rule 7-15; the hearing set on February 23, 2009 at 10:00 a.m. is vacated. For the following reasons, the Court DENIES the Motion.
Plaintiff Kevin Ranger ("Plaintiff") registered for cellular telephone service with Defendant T-Mobile USA, Inc. ("Defendant") in 2004. (See Compl. at ¶¶ 23-24.)
In 2008, Plaintiff alleges Defendant placed charges on his monthly billing statement for unwanted and unauthorized mobile content services. (Id. at ¶¶ 26-27.) Plaintiff alleges Defendant has a practice of "cramming," placing unauthorized charges on telephone bills, in its billing system. (Id. at ¶¶ 16, 28-29.) According to Plaintiff, Defendant knows and has known of this billing problem and has failed to provide Plaintiff a refund or change its billing practices to ensure accuracy. (Id. at ¶¶ 22, 30.)
Plaintiff, on behalf of himself and a class of similarly situated individuals, filed a Complaint against Defendant in the California Superior Court, Riverside County. The Complaint contained the following claims:
(1) Breach of Contract; (2) Violation of Consumer Legal Remedies Act; (3) Violation of Unfair Competition Law; and (4) Violation of California Public Utilities Code § 2890.
Defendant removed the case to this Court on October 29, 2008 on the basis of the Class Action Fairness Act, 28 U.S.C. § 1453. (See Not. of Removal at 2.)
On December 8, 2008, Defendant filed a "Motion to Dismiss Under FRCP 9(b)" ("Motion") and the Declaration of James C. Grant ("Grant Declaration"). On January 12, 2009, Plaintiff filed Opposition and the Declaration of Jay Edelson ("Edelson Declaration"). On January 16, 2009, Defendant filed a Reply.
Allegations of fraud must meet the heightened pleading requirements of Federal Rule of Civil Procedure 9(b) ("Rule 9(b)"). See Fed. R. Civ. P. 9(b). Rule 9(b) applies when a complaint specifically alleges fraud as an essential element of a claim. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th Cir. 2003). It also applies when the claim "sounds in fraud," by alleging the defendant engaged in fraudulent conduct, but the claim itself does not contain fraud as an essential element. Id. at 1106. Indeed, even if a complaint does not assert explicitly a claim for fraud and even if ...