This matter is before the court on plaintiff's motion for leave to file an amended complaint and defendant's motion for judgment on the pleadings. This matter was decided without a hearing. For the following reasons, plaintiff's motion is granted in part and denied in part and defendant's motion is denied.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff alleges that on July 26, 2009 she received an email advertising a "Google work-at-home opportunity" sent by an affiliate publisher of proposed defendant Bloosky. (Proposed Am. Compl. ¶ 37, ECF 88-1.) She clicked on a message in the email that took her to a fake news article created, published, and hosted by Bloosky's affiliate publisher describing the experience of a woman who used defendant's product to make $5,000 a month. (Id.) When she clicked on an advertisement in the news article, she was directed to defendant's landing page where the Google Business Kit (the Kit) was offered for $1.97. (Id.) Plaintiff authorized defendant to bill her debit card $1.97; however, defendant charged plaintiff an additional $79.90 without her authorization, of which it remitted a portion to proposed defendant Bloosky. (Id. ¶¶ 39-40.) Plaintiff called defendant repeatedly seeking a refund; however, she did not receive a refund and was instead charged recurring amounts of $24.90. (Id. ¶¶ 41-43.) Moreover, plaintiff has not received the Kit. (Id. ¶ 45.)
Plaintiff filed her class action complaint in Solano County Superior Court on November 12, 2009. (Notice of Removal, Ex. A, ECF 1.) Defendant removed the complaint to this court on December 18, 2009. (Notice of Removal, ECF 1.) Defendant filed a motion for summary judgment on August 31, 2010. (ECF 30.) Judge Damrell denied defendant's motion on November 29, 2010. (ECF 58.) Plaintiff filed a motion for leave to file an amended complaint on February 2, 2011. (ECF 63.) Defendant filed a counter-motion for judgment on the pleadings on March 2, 2011. (ECF 69.) The matters were submitted without oral argument on April 1, 2011. (ECF 75.) The parties stipulated to a stay of litigation on May 4, 2011 (ECF 76), which the court granted the same day (ECF 77). Upon requests from the parties, the court extended the stay of litigation on July 7, 2011 (ECF 79) and again on September 6, 2011 (ECF 83). Upon request of the parties, the court lifted the stay on October 11, 2011, and directed the parties to re-notice their motions or submit notification of withdrawal. (ECF 86.)
Defendant re-noticed its motion for judgment on the pleadings on
October 24, 2011. (ECF 87.) Plaintiff filed her opposition on November
16, 2011. (ECF 92.) Plaintiff re-noticed her motion for leave to file
an amended complaint on October 25, 2011. (ECF 88.) *fn1
Defendant filed its opposition, contending that amendment of
all claims but plaintiff's breach of contract claim would be futile,
on November 15, 2011. (ECF 90 at 3.) Plaintiff filed her reply on
November 23, 2011 (ECF 93) and an amended reply on November 24, 2011
A "party seeking to amend [its] pleading after [the] date specified in [the] scheduling order must first show ‗good cause' for amendment under Rule 16(b), then, if ‗good cause' be shown, the party must demonstrate that amendment was proper under Rule 15." Johnson v. Mammoth Recreations, 975 F.2d 604, 608 (9th Cir. 1992) (citing Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C. 1987)).
Federal Rule of Civil Procedure 16(b)(4) states that "[a] schedule may be modified only for good cause and with the judge's consent." "Rule 16(b)'s ‗good cause' standard primarily considers the diligence of the party seeking the amendment. The district court may modify the pretrial schedule ‗if it cannot reasonably be met despite the diligence of the party seeking the extension.'" Johnson, 975 F.2d at 609 (quoting FED. R. CIV. P. 16 advisory committee's notes (1983 amendment)). "Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification. [citation omitted] If the party was not diligent, the inquiry should end." Id.
Federal Rule of Civil Procedure 15(a)(2) states "[t]he court should freely give leave [to amend its pleading] when justice so requires" and the Ninth Circuit has "stressed Rule 15's policy of favoring amendments." Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). "In exercising its discretion [regarding granting or denying leave to amend] ‗a court must be guided by the underlying purpose of Rule 15 -- to facilitate decision on the merits rather than on the pleadings or technicalities.'" DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). However, "the liberality in granting leave to amend is subject to several limitations. Leave need not be granted where the amendment of the complaint would cause the opposing party undue prejudice, is sought in bad faith, constitutes an exercise in futility, or creates undue delay." Ascon Properties, 866 F.2d at 1160 (internal citations omitted). "[A] proposed amendment is futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense." Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). In determining whether a proposed amendment is futile, the court applies the Federal Rule of Civil Procedure 12(b)(6) standard for determining sufficiency of pleadings. Id.
Defendant contends plaintiff fails to plead her fraud-based claims -- violation of the CFLA, the CLRA and the UCL, as well as fraud in the inducement and conspiracy to commit fraud in the inducement -- with specificity as required by Federal Rule of Civil Procedure 9(b). (Def.'s Opp'n at 4.) Defendant supports this contention by maintaining plaintiff should have and has not provided "specific allegations regarding the precise statements, landing pages, solicitations, or misrepresentations that Plaintiff herself claims to have received." (Id. at 5.) Defendant further contends that plaintiff must have and failed to describe defendant's participation in the alleged fraud. (Id. at 7.)
Plaintiff contends that her allegations satisfy Rule 9(b) as she set forth facts describing defendant's fraudulent ...