United States District Court, E.D. California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
matter is before the court on defendant's motion to
dismiss. (Doc. No. 5.) On January 23, 2018, a hearing on the
motion was held. Attorney Andrew M. Hutchison appeared
telephonically on behalf of plaintiff Country Fresh Batter,
Inc. Attorney Keith C. Rickelman appeared on behalf of
defendant Lion Raisins, Inc. Having reviewed the parties'
briefing, heard arguments, and for the reasons that follow,
defendant's motion to dismiss will be granted.
complaint, plaintiff alleges as follows. Plaintiff, doing
business as Hope's Cookies, has purchased raisins from
defendants since 2014. (Doc. No. 1 (Compl.) at ¶ 6.) On
or about December 16, 2016, plaintiff and defendant entered
into the 2017 Raisins Contract (hereinafter “the
Contract”), pursuant to which defendant was to supply
plaintiff with 756, 000 pounds of raisins for 2017.
(Id. at ¶¶ 7-8.) From January 2017 through
April 2017, plaintiff submitted purchase orders to defendant
pursuant to the terms of the Contract. (Id. at
¶ 9.) Defendant accepted plaintiff's purchase orders
and fulfilled those orders through August 2017.
(Id.) In August 2017, plaintiff placed purchase
orders 30093, 30094, and 30095 (hereinafter “the
Purchase Orders”), all of which defendant confirmed on
August 25, 2017. (Id. at ¶ 11.) On September
12, 2017, without advance notice or warning, defendant
terminated the Contract as well as the Purchase Orders.
(Id. at ¶ 12.) In so doing, defendant invoked
the “Performance” clause of the Contract,
asserting that plaintiff was in breach by failing to pull
shipments evenly as required under the Contract.
(Id. at ¶ 20.) Plaintiff alleges that
defendant's assertion-that plaintiff had breached the
contract-was “false, wrongful, and without
justification, ” but also that plaintiff knew the
assertion to be false when it was made. (Id. at
¶¶ 22-25.) Because of defendant's breach of the
contract in this way, and because of defendant's false
statement regarding plaintiff's breach, plaintiff alleges
it incurred substantial costs to find alternative sources of
raisins. (Id. at ¶ 26.)
complaint alleges breach of contract and fraud. On December
5, 2017, defendant moved to dismiss both plaintiff's
fraud claim and claim for punitive damages. (Doc. No. 5.) On
January 9, 2018, plaintiff filed its opposition. (Doc. No.
6.) On January 15, 2018, defendant filed its reply. (Doc. No.
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test the legal sufficiency of the complaint. N. Star
Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581
(9th Cir. 1983). “Dismissal can be based on the lack of
a cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory.”
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). A plaintiff is required to allege
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
determining whether a complaint states a claim on which
relief may be granted, the court accepts as true the
allegations in the complaint and construes the allegations in
the light most favorable to the plaintiff. Hishon v. King
& Spalding, 467 U.S. 69, 73 (1984); Love v.
United States, 915 F.2d 1242, 1245 (9th Cir. 1989).
However, the court need not assume the truth of legal
conclusions cast in the form of factual allegations. U.S.
ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th
Cir. 1986). While Rule 8(a) does not require detailed factual
allegations, “it demands more than an unadorned, the
Iqbal, 556 U.S. at 678. A pleading is insufficient
if it offers mere “labels and conclusions” or
“a formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555. See
also Iqbal, 556 U.S. at 676 (“Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”). Moreover, it
is inappropriate to assume that the plaintiff “can
prove facts which it has not alleged or that the defendants
have violated the . . . laws in ways that have not been
alleged.” Associated Gen. Contractors of Cal., Inc.
v. Cal. State Council of Carpenters, 459 U.S. 519, 526
ruling on such a motion, the court is permitted to consider
material which is properly submitted as part of the
complaint, documents that are not physically attached to the
complaint if their authenticity is not contested and the
plaintiff's complaint necessarily relies on them, and
matters of public record. Lee v. City of Los
Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).
indicated above, defendant moves to dismiss the second cause
of action of the complaint, in which plaintiff alleges fraud.
Defendant also moves to dismiss plaintiff's punitive
damages claim. Before turning to the motion to dismiss,
however, the court will first address defendant's request
for judicial notice. (Doc. No. 5-3.)
Request for Judicial Notice
Rule of Evidence 201 provides that the court may take
judicial notice of “a fact that is not subject to
reasonable dispute because it: (1) is generally known within
the trial court's territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.”
Defendant requests that the court take judicial notice of
plaintiff's complaint. (Doc. No. 5-3.) Because the court
does not need to take judicial notice of pleadings before it,
the court construes this as a request for the court to take
judicial notice of the Contract and the Purchase Orders at
issue, which are attached to plaintiff's complaint.
(See Compl. at ¶¶ 7-12.) Accordingly, the
court will take judicial notice of the Contract and the
Purchase Orders because they have been incorporated by
reference into plaintiff's complaint. United States
v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).