United States District Court, C.D. California
ORDER Re: DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 
RONALD S.W. LEW, Senior District Judge.
Currently before the Court is Defendant South Beach Skin Care, Inc.'s ("Defendant"), Motion to Dismiss for Failure to State a Claim . Defendant filed its Motion on February 4, 2014 . Plaintiff Deidre Hall ("Plaintiff") filed her Opposition on March 4, 2014 . Defendant filed its Reply on March 11, 2014 . Plaintiff's Motion was set for hearing on March 25, 2014 . This matter was taken under submission on March 19, 2014 . Having reviewed all papers and arguments submitted pertaining to this Motion, THE COURT NOW RULES AS FOLLOWS:
The Court hereby DENIES Defendant's Motion to Dismiss.
Plaintiff is an actress who is known for her role as Dr. Marlena Evans on the NBC daytime soap opera Days of our Lives. Compl. ¶ 1. Plaintiff has played this role for over 30 years. Id . Consequently, Plaintiff has derived considerable commercial value from her likeness, such as through endorsement deals with Hallmark and Dexatrim and through her jewelry line. Id . Plaintiff also has a cosmetic skin care line under the name of "Deidre Cosmetics." Id.
Defendant is a Florida corporation which operates out of Hollywood, Florida. Id. at ¶ 10. Defendant operates websites including www.lifeskin.com, on which it sells its LifeCell skin product. Id. at ¶ 2. Defendant has a registered trademark for LIFECELL and sells products under the LifeCell brand. Id. at ¶ 11. Since May 2009, Defendant has used Plaintiff's likeness and name to advertise its skin care products. Id. at ¶ 3. For example, there are images of and quotes attributed to Plaintiff contained throughout www.lifecellskin.com and on other sites such as www.youtube.com. Id . Plaintiff did not and does not authorize use of her name and likeness in this manner. Id.
Defendant has taken down some, but not all, of the images of and quotes attributed to Plaintiff from Defendant's websites and other marketing materials. Id. at ¶ 4. Defendant has refused to compensate Plaintiff. Id.
Plaintiff filed her Complaint against Defendant on December 3, 2013 .
II. LEGAL STANDARD
A. Motion to Dismiss Pursuant to Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of one or more claims if the pleading fails to state a claim upon which relief can be granted. Dismissal can be based on a lack of cognizable legal theory or lack of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990). However, a party is not required to state the legal basis for its claim, only the facts underlying it. McCalden v. Cal. Library Ass'n , 955 F.2d 1214, 1223 (9th Cir. 1990). In a Rule 12(b)(6) motion to dismiss, a court must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the non-moving party. Klarfeld v. United States , 944 F.2d 583, 585 (9th Cir. 1991). In fact, "[w]hen ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an opportunity to respond." United States v. Ritchie , 342 F.3d 903, 907 (9th Cir. 2003) (citing Fed.R.Civ.P. 12(b); Parrino v. FHP, Inc. , 146 F.3d 699, 706 n.4 (9th Cir. 1998)).
The question presented by a motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of its claim. Swierkiewica v. Sorema N.A. , 534 U.S. 506, 511 (2002). "While 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 entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (internal citation omitted). Although specific facts are not necessary if the complaint gives the defendant fair notice of the claim and the grounds upon which the claim rests, a complaint must nevertheless "contain 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) (internal quotation marks omitted).
If dismissed, a court must then decide whether to grant leave to amend. The Ninth Circuit has repeatedly held that a district court should grant leave to amend even if no request to amend the pleadings was made, unless it determines that the pleading could not possibly be cured by the ...