ORDER RE: MOTION TO DISMISS AMENDED COMPLAINT
Defendant Humana, Inc. (hereinafter "Defendant") has filed a motion to dismiss the first, second and fourth through seventh causes of action in the second amended complaint of plaintiff Karima Ali (hereinafter "Plaintiff") pursuant to Federal Rule of Civil Procedure 12(b)(6) or for a more definite statement in the alternative pursuant to Federal Rule of Civil Procedure 12(e). For reasons discussed below, the motion to dismiss shall be granted in part and denied in part.
II. FACTS AND PROCEDURAL BACKGROUND
The Court refers the parties to previous orders for a complete chronology of the proceedings. On August 24, 2012, Plaintiff filed her second amended complaint (SAC) against Defendant asserting causes of action for (1) breach of written contract, (2) conversion, (3) defamation, (4) negligence, (5) fraud and deceit by intentional conversion, (6) unfair competition and (7) loss of opportunity. On September 10, 2012, Defendant filed its motion to dismiss the first, second and fourth through seventh causes of action in the SAC pursuant to Rule 12(b)(6) or for a more definite statement in the alternative pursuant to Rule 12(e). Plaintiff did not file a written opposition to Defendant's motion.
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Where the plaintiff fails to allege "enough facts to state a claim to relief that is plausible on its face," the complaint may be dismissed for failure to allege facts sufficient to state a claim upon which relief may be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007); see Fed. R. Civ. P. 12(b)(6). "A claim has facial plausibility," and thus survives a motion to dismiss, "when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009). On a Rule 12(b)(6) motion to dismiss, the court accepts all material facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). However, the court need not accept conclusory allegations, allegations contradicted by exhibits attached to the complaint or matters properly subject to judicial notice, unwarranted deductions of fact or unreasonable inferences. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . the complaint could not be saved by amendment." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). "If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant [may also] move for a more definite statement under [Federal] Rule [of Civil Procedure] 12(e) before responding." Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).
Plaintiff's first cause of action (breach of written contract) -- Plaintiff first asserts a cause of action against Defendant for breach of written contract. In California, the elements of a cause of action for breach of contract are (1) the existence of a contract, (2) the plaintiff's performance or excuse for nonperformance, (3) the defendant's breach and (4) resulting damages to the plaintiff. Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811, 821, 124 Cal.Rptr.3d 256, 250 P.3d 1115 (2011). "If the action is based on alleged breach of a written contract," as in this case, "the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference." Harris v. Rudin, Richman & Appel, 74 Cal.App.4th 299, 307, 87 Cal.Rptr.2d 822 (1999). In the body of the SAC, Plaintiff alleges as follows:
"On or about December 2009, Plaintiff and Defendant, and each of them, entered into a written and verbal agreement (APPENDIX I) wherein Plaintiff was to solicit applications for the Medicare Plans, through its agents, sell, market and promote the Medicare Advantage Plans sold by Defendant. Defendant Humana, Inc. was to pay the plaintiff a set sum for each application her agents submitted as well as an Override commission on every application submitted, and commence renewal payment for the next four years. Plaintiff preformed [sic] her part of the agreement." Plaintiff further alleges:
"Defendant Humana Inc. failed to keep its part of the Group Producing Agent or Agency agreement that was signed and executed Dec. 9, 2009. Contract Item number 4 calls for Defendant to pay Plaintiff override commission on every enrollment that her agents submit. Plaintiff Agents [sic] submitted 400 Enrolment [sic] on 2011 Annual Enrollment Period. Plaintiff earned $40,000.00 Commission according to the agreement. Defendant did not pay the amount on 2011 and 2012. Defendant owes Plaintiff $80,000.00 for 2011 and 2012."
Ordinarily, the Court would be inclined to agree the foregoing allegations are sufficient to state a claim for breach of contract. But Plaintiff has also attached as an exhibit to the SAC a copy of the contract she contends is the agreement she entered into with Defendant. Problematically for Plaintiff, the contractual terms alleged in the body of the SAC are not consistent with the terms and conditions stated in the attached exhibit. "Contract Item number 4" of the exhibit, labeled Appendix I and entitled "Group Producing Agent or Agency contract," provides in pertinent part as follows:
"As full compensation for services performed hereunder, the Company will pay to the GPA [Group Producing Agent] commissions set forth in the applicable Producer Partnership Plan or other applicable written documents provided to the GPA by the Company, which are made a part of this Contract. The Company will pay a Medicare referral fee, hereinafter referred to as 'commissions,' for purposes of this Contract only and shall not be deemed commissions by the GPA or the Company for any other purpose or in any other manner. The GPA shall receive Medicare referral fees according to the terms and rules of the Medicare referral fee program."
There are clearly material differences between Plaintiff's allegations and the terms of Appendix I. First, while Plaintiff contends the agreement between the parties required Defendant to pay her a commission and an override commission*fn1 for every application submitted by her agents, the copy of the purported contract only required Defendant to pay Plaintiff a commission and a Medicare Referral fee. Second, while Plaintiff appears to contend the agreement required Defendant to pay her $100 for every application submitted by her agents ($40,000 400 = $100), the copy of the purported contract required Defendant to pay amounts in accordance with a separate Producer Partnership Plan and the Medicare referral fee program, neither of which has been alleged by Plaintiff. "Under the doctrine of truthful pleading, the courts 'will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents . . . .
[A]llegations of fact, inconsistent with annexed documentary exhibits . . . may be disregarded[.]' " Hoffman v. Smithwoods RV Park, LLC, 179 Cal.App.4th 390, 400, 102 Cal.Rptr.3d 72 (2009) (internal citations omitted); accord Perkins v. Silverstein, 939 F.2d 463, 469 n. 4 (7th Cir. 1991); see Ott v. Home Sav. & Loan Association, 265 F.2d 643, 646 (9th Cir. 1958). That the SAC contains factual allegations inconsistent with an attached exhibit Plaintiff contends is ...