Navigation Holdings, LLC v. Molavi ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 NAVIGATION HOLDINGS, LLC, Case No. 19-CV-02644-LHK 13 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART MOTION TO 14 v. DISMISS SECOND AMENDED COMPLAINT 15 ALEX MOLAVI, et al., Re: Dkt. No. 70 16 Defendants. 17 18 Plaintiffs Primrose Alloys, Inc. and Navigation Holdings, LLC d/b/a Xi Dong Partners (“Xi 19 Dong”) (collectively, “Plaintiffs”) sue Defendants Alex Molavi; U.S. Metal Imports, LLC; TSA 20 Tung Shin Industrial Co., Ltd.; TSA Metals, Inc.; Sean Liu; Larry Liao; and unknown “Does” 21 (collectively, “Defendants”) for misappropriation of trade secrets, breach of a confidentiality 22 agreement, breach of fiduciary duty, and breach of an exclusive supply agreement. Before the 23 Court is Defendants’ motion to dismiss Plaintiffs’ Second Amended Complaint (“SAC”), ECF No. 24 67. ECF No. 70. Having considered the submissions of the parties, the relevant law, and the 25 record in this case, the Court GRANTS IN PART and DENIES IN PART Defendants’ motion. 26 27 1 I. BACKGROUND 1 A. Factual Background 2 Plaintiff Primrose Alloys, Inc. (“Primrose”) is a California corporation with its principal 3 place of business in Burlingame, California. Second Amended Complaint ¶ 1, ECF No. 67 4 (“SAC”). Plaintiff Xi Dong, a subsidiary of Primrose, is a Delaware corporation with its principal 5 place of business in Burlingame, California. Id. ¶¶ 2, 18. Primrose and Xi Dong work in the 6 supply of “high quality aluminum alloy products,” id. ¶ 13, and broker between alloy 7 manufacturers and customers. 8 Defendant Alex Molavi was hired by Primrose as a Vice President to establish Xi Dong as 9 a new subsidiary of Primrose. Id. ¶ 18. Molavi eventually served as President for Xi Dong, and, 10 in this capacity, Molavi was charged with negotiating agreements with customers and generating 11 new business. Id. ¶¶ 18, 19. In August 2014, Molavi negotiated an agreement between Xi Dong 12 and Defendant TSA Tung Shin International Co., Ltd. (“Tung Shin”), a Vietnamese corporation. 13 Id. ¶¶ 6, 23. Under the agreement, Tung Shin would be Xi Dong’s exclusive supplier in Vietnam 14 for aluminum products, and Tung Shin would only sell Tung Shin’s aluminum products to Xi 15 Dong in the United States. Id. ¶ 23. 16 Plaintiffs allege that, while Molavi was still employed with Plaintiffs, Molavi began to 17 siphon business away from Plaintiffs and toward Defendant U.S. Metal Imports, LLC (“U.S. 18 Metal”). Id. ¶¶ 5, 27–29. Around September 2017, while Molavi was still employed with 19 Plaintiffs, Molavi allegedly formed U.S. Metal as a California company and listed himself as its 20 Chief Executive Officer. Id. ¶ 29. By March 2018, Molavi terminated his employment with 21 Plaintiffs and began working for Tung Shin. Id. ¶¶ 30, 31. Allegedly working with Defendant 22 Sheng Rui Liu, Export Sales Manager for Tung Shin, id. ¶ 7, and Defendant Chin Ling Liao, 23 owner and President of Tung Shin, id. ¶ 8, Molavi began to secure business based upon 24 confidential information and trade secrets Molavi had taken from Plaintiffs, id. ¶ 36. In August 25 2018, Molavi formed TSA Metals, Inc. (“TSA”) as a California subsidiary of Tung Shin to serve 26 as Tung Shin’s “United States sales arm for customers in the United States.” Id. ¶¶ 37–38. 27 2 B. Procedural History 1 On May 15, 2019, Xi Dong filed suit in this Court. ECF No. 1. On August 29, 2019, the 2 parties stipulated to allow Xi Dong to file the First Amended Complaint and add Primrose as a 3 plaintiff. ECF No. 31. 4 On October 7, 2019, Defendants Molavi, U.S. Metal, Tung Shin, and TSA moved to 5 dismiss the First Amended Complaint. ECF No. 38. The Court granted in part and denied in part 6 Defendants’ motion. See Navigation Holdings, LLC v. Molavi, No. 19-CV-02644, 2020 WL 7 1492693, at *1 (N.D. Cal. Mar. 27, 2020), ECF No. 65. Relevant here, the Court dismissed 8 Plaintiffs’ claims for misappropriation of trade secrets under the federal Defend Trade Secrets Act 9 (“DTSA”) (18 U.S.C. § 1836(b)) and California Uniform Trade Secrets Act (“CUTSA”) (Cal. Civ. 10 Code § 3426 et seq.) as to all Defendants other than Molavi with leave to amend. Specifically, 11 Plaintiffs’ First Amended Complaint asserted direct trade secret misappropriation claims under 12 DTSA and CUTSA as to Molavi and indirect trade secret misappropriation claims under those two 13 statutes as to all other Defendants. In dismissing those trade secrets claims, the Court held that 14 Plaintiffs had failed to state a claim for indirect trade secret misappropriation. See id. at *6. A 15 claim of indirect misappropriation, the Court explained, requires factual substantiation of 16 Defendants’ knowledge of direct misappropriation. See id. Plaintiffs failed to provide that 17 substantiation as to any of the Defendants. Moreover, Plaintiffs “consistently lump[ed] together” 18 Defendants Liu and Liao “[d]espite acknowledging that Liu and Liao hold different positions with 19 Tung Shin.” Id. at *7. The Court thus ordered Plaintiffs to “plead distinct facts as to each 20 Defendant that would give rise to trade secret misappropriation” if Plaintiffs were to reassert trade 21 secret misappropriation. Id. The Court dismissed the remaining claims of the First Amended 22 Complaint—tortious interference, breach of the confidentiality agreement as to Xi Dong (but not 23 Primrose), breach of fiduciary duty as to some of Molavi’s conduct, and breach of the exclusivity 24 agreement as to Primrose—without leave to amend. Id. at *11 (summarizing dismissed claims). 25 On April 27, 2020, Plaintiffs filed a Second Amended Complaint, which again asserts that 26 all Defendants misappropriated trade secrets under DTSA and CUTSA. ECF No. 67 at ¶¶ 40–79. 27 3 1 On May 26, 2020, Defendants filed the instant motion. ECF No. 70. Plaintiffs opposed on June 9, 2 2020. ECF No. 71. Defendants replied on June 16, 2020. ECF No. 74. 3 II. LEGAL STANDARD 4 A. Dismissal Under Federal Rule of Civil Procedure 12(b)(6) 5 Rule 8(a) of the Federal Rules of Civil Procedure requires a complaint to include “a short 6 and plain statement of the claim showing that the pleader is entitled to relief.” A complaint that 7 fails to meet this standard may be dismissed under Federal Rule of Civil Procedure 12(b)(6). Rule 8 8(a) requires a plaintiff to plead “enough facts to state a claim to relief that is plausible on its 9 face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility 10 when the plaintiff pleads factual content that allows the court to draw the reasonable inference that 11 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 12 “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer 13 possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted). For 14 purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] factual allegations in the 15 complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving 16 party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 17 The Court, however, need not accept as true allegations contradicted by judicially 18 noticeable facts, see Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and it “may look 19 beyond the plaintiff’s complaint to matters of public record” without converting the Rule 12(b)(6) 20 motion into a motion for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 21 1995). Nor must the Court “assume the truth of legal conclusions merely because they are cast in 22 the form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per 23 curiam) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Mere 24 “conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to 25 dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004). 26 27 4 B. Leave to Amend 1 If the Court determines that a complaint should be dismissed, it must then decide whether 2 to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to 3 amend “shall be freely given when justice so requires,” bearing in mind “the underlying purpose 4 of Rule 15 to facilitate decisions on the merits, rather than on the pleadings or technicalities.” 5 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and internal quotation 6 marks omitted). When dismissing a complaint for failure to state a claim, “'a district court should 7 grant leave to amend even if no request to amend the pleading was made, unless it determines that 8 the pleading could not possibly be cured by the allegation of other facts.” Id. at 1130 (internal 9 quotation marks omitted). Accordingly, leave to amend generally shall be denied only if allowing 10 amendment would unduly prejudice the opposing party, cause undue delay, or be futile, or if the 11 moving party has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 12 (9th Cir. 2008). 13 III. DISCUSSION 14 The SAC asserts five claims: (1) misappropriation of trade secrets under the DTSA, 15 brought by all Plaintiffs against all Defendants, SAC ¶¶ 40–66; (2) misappropriation of trade 16 secrets under the CUTSA, brought by all Plaintiffs against all Defendants, id. ¶¶ 67–79; (3) breach 17 of a confidentiality agreement, brought by Primrose against Molavi and unknown “Doe” 18 Defendants, id. ¶¶ 80–85; (4) breach of fiduciary duty, brought by all Plaintiffs against Molavi and 19 Doe Defendants, id. ¶¶ 86–92; and (5) breach of an exclusive supply agreement, brought by Xi 20 Dong against Tung Shin and Doe Defendants, id. ¶¶ 93–101. 21 Defendants move on two grounds. First, Defendants move to dismiss the trade secret 22 misappropriation claims (claims one and two) against all Defendants other than Molavi. The 23 parties discuss the trade secret Defendants (i.e., all Defendants other than Molavi) in two groups: 24 corporate Defendants (U.S. Metal, Tung Shin, and TSA Metals); then the entities’ executives (Liu 25 and Liao). Second, Defendants move to strike the second sentence in SAC ¶ 81 (part of claim 26 three), which discusses Xi Dong’s relationship to Primrose and Molavi, for exceeding the scope of 27 5 1 the Court’s prior leave to amend. The Court addresses each ground in turn. 2 A. Claims One and Two: Trade Secret Misappropriation 3 Defendants move to dismiss the DTSA and CUTSA claims against (1) corporate 4 Defendants U.S. Metal, Tung Shin, and TSA Metals; and (2) natural persons Liu and Liao. 5 Plaintiffs argue that the corporate Defendants are liable for Molavi’s misappropriation of trade 6 secrets under the doctrine of respondeat superior. Liu and Liao, by contrast, are allegedly liable 7 under the doctrine of indirect misappropriation. The Court considers the claims against the 8 corporate Defendants first, followed by the claims against Liu and Liao. 9 1. Plaintiffs adequately plead that U.S. Metal, Tung Shin, and TSA Metals are liable for misappropriation of trade secrets under respondeat superior. 10 Defendants argue that Plaintiffs inadequately allege that U.S. Metal, TSA Metals, and Tung 11 Shin are vicariously liable—under the doctrine of respondeat superior—for Molavi’s alleged 12 misappropriation of trade secrets. The Court disagrees. 13 “Defendants do not dispute th[e] general principle” that “an employer may be vicariously 14 liable for an employee’s misappropriation of trade secrets.” Reply at 3 (citing Extreme Reach, Inc. 15 v. Spotgenie Partners, LLC, No. 13-CV-07563, 2013 WL 12081182, at *7 (C.D. Cal. Nov. 22, 16 2013) (collecting cases)). Whether an employer is vicariously liable turns on whether the 17 employee’s trade secret misappropriation “was committed within the scope of employment.” 18 Brain Injury Ass’n of California v. Yari, No. 19-CV-5912, 2020 WL 3643482, at *6 (C.D. Cal. Apr. 19 30, 2020). As relevant here, misappropriation is “within the scope of employment when it is 20 performed, at least in part, to benefit the employer, though the employer may forbid it.” Id. at *5 21 (quoting SolarCity Corp. v. Pure Solar Co., No. 16-CV-01814, 2016 WL 11019989, at *5 (C.D. 22 Cal. Dec. 27, 2016)). 23 Defendants argue that Plaintiffs do not even allege respondeat superior liability in the 24 Second Amended Complaint, let alone a factual basis for such liability. See Reply at 2. In other 25 words, Plaintiffs’ SAC is supposedly “boilerplate.” Id. To support that characterization, 26 Defendants cite Arikat v. JP Morgan Chase & Co., 430 F. Supp. 2d 1013, 1025 (N.D. Cal. 2006). 27 6 1 In Arikat, the court noted as an aside that “[p]laintiffs’ introductory allegation that all defendants 2 are each agents and employees of the other is conclusory and similarly unavailing.” Id. 3 Defendants’ argument is unpersuasive. Arikat is far afield from the law and facts here. 4 The Arikat court dismissed a Fair Credit Reporting Act claim because plaintiffs did not even allege 5 that defendants were regulated by the Act. See id. at 1024–25. Moreover, the Arikat plaintiffs’ 6 conclusory allegation of agency and employment comprised one sentence devoid of specific facts. 7 See Compl. ¶ 5, Arikat v. JP Morgan Chase & Co., No. 3:06-CV-00330, 2006 WL 526684 (N.D. 8 Cal. Jan. 18, 2006), ECF No. 1. Specifically, the Arikat complaint’s respondeat superior allegation 9 consisted solely of the following conclusory sentence: “Plaintiff is informed and believes, and 10 thereon alleges, that at all times herein mentioned each of the defendants were the agent and 11 employee of each of the remaining defendants and, in doing the things hereinafter alleged, were 12 acting within the course and scope of such agency and employment.” Id. 13 By contrast, the SAC pleads specific facts that Molavi misappropriated trade secrets for the 14 benefit of U.S. Metal, Tung Shin, and TSA Metals, and Defendants have not moved to dismiss 15 Plaintiffs’ trade secret misappropriation claims against Molavi. See, e.g., Bombardier Inc. v. 16 Mitsubishi Aircraft Corp., 383 F. Supp. 3d 1169, 1188 (W.D. Wash. 2019) (“infer[ring]” 17 respondeat superior liability and denying motion to dismiss trade secret misappropriation claims); 18 Brain Injury Ass’n, 2020 WL 3643482, at *6 (same where employee’s use of plaintiff’s customer 19 list was allegedly “at least in part for the benefit of” employer-defendant); see also Navigation 20 Holdings, 2020 WL 1492693, at *6 (noting that Defendants did not move to dismiss the trade 21 secret claims against Molavi). Accordingly, for the purpose of resolving the instant motion to 22 dismiss, the Court assumes Molavi misappropriated trade secrets from Plaintiffs. 23 Specifically, Plaintiffs allege the following specific acts of trade secret misappropriation as 24 to each corporate Defendant. First, Plaintiffs claim that Molavi formed U.S. Metal and appointed 25 himself Chief Executive Officer. SAC ¶ 29. Molavi then allegedly used proprietary client and 26 pricing information to place anodized tubing orders under U.S. Metal’s name. SAC ¶¶ 28, 49, 56. 27 7 1 The tubing orders are alleged with factual specificity. The tubing orders allegedly were placed on 2 four specific dates (two of which were after the formation of U.S. Metal under California law) and 3 amounted to four different, precise dollar amounts. SAC ¶ 28. 4 Second, Plaintiffs claim that Molavi “became Tung Shin’s CEO for its United States 5 operations” immediately after resigning from Xi Dong. SAC ¶ 31. Molavi then allegedly used 6 trade secrets “to submit quotes directly to Xi Dong customers and prospective customers to 7 provide aluminum products at prices below what they had previously bid for such products to Xi 8 Dong.” SAC ¶ 59. Specifically, Molavi allegedly diverted a $3 million order from a prospective 9 customer of Plaintiffs’ to Tung Shin. See SAC ¶¶ 33, 36, 63, 76. 10 Lastly, Molavi allegedly formed TSA Metals as a Tung Shin subsidiary and became TSA’s 11 President, CEO, and a director. See SAC ¶¶ 4, 6, 37, 60. TSA Metals’ alleged purpose was to 12 poach Plaintiffs’ customers in the United States using trade secrets Molavi had misappropriated. 13 SAC ¶ 37. TSA’s website allegedly states that it is the “US branch” and “US division of Tung 14 Shin Industrial Co. Ltd.” SAC ¶ 38. Indeed, just before Molavi left Xi Dong for TSA, Molavi 15 allegedly asked Tung Shin to acquire equipment that could produce Plaintiffs’ proprietary products 16 for the U.S. market. SAC ¶ 26. 17 In sum, Plaintiffs adequately plead that Molavi’s alleged misappropriation of trade secrets 18 benefited his employers U.S. Metal, Tung Shin, and TSA Metals. See, e.g., Brain Injury Ass’n, 19 2020 WL 3643482, at *5 (finding respondeat superior liability when tort is committed, at least in 20 part, to benefit the employer). Plaintiffs thus plead that U.S. Metal, Tung Shin, and TSA Metal are 21 vicariously liable for Molavi’s misappropriation under respondeat superior. Accordingly, the 22 Court DENIES Defendant’s motion to dismiss Plaintiffs’ DTSA and CUTSA trade secret 23 misappropriation claims against U.S. Metal, Tung Shin, and TSA Metals. 24 2. Plaintiffs do not adequately plead that Liu and Liao indirectly misappropriated trade secrets. 25 The parties do not dispute that for Defendants Liu and Liao, the “central issue” is whether 26 the SAC adequately pleads that Liu and Liao indirectly misappropriated trade secrets through 27 8 1 Molavi. ECF Nos. 71, 74. Defendants argue the SAC inadequately pleads indirect 2 misappropriation. The Court agrees. 3 As the Court held when dismissing the misappropriation claims against Liu and Liao for 4 the first time, Plaintiffs had to “plead additional facts to substantiate” Liu and Liao’s knowledge of 5 Molavi’s wrongful conduct. Navigation Holdings, 2020 WL 1492693, at *7. Here, Plaintiffs 6 again fail to substantiate Liu and Liao’s knowledge of Molavi’s direct misappropriation of trade 7 secrets. Plaintiffs’ threadbare contrary argument comprises one sentence that cites four allegations 8 from the SAC. See Opp. 5 (citing SAC ¶¶ 52–54, 56). None of the allegations shows that Liu and 9 Liao plausibly had reason to know that Molavi misappropriated trade secrets. 10 The first allegation is that Liu and Liao knew that Molavi served as Xi Dong’s president 11 before they hired Molavi. SAC ¶ 52. This allegation at most suggests that Liu and Liao knew that 12 Molavi had access to trade secrets. It does not plausibly claim that Liu and Liu had reason to 13 believe that Molavi would misappropriate those secrets. See, e.g., SPS Techs., LLC v. Briles 14 Aerospace, Inc., No. 18-CV-9536, 2019 WL 1974902, at *13 (C.D. Cal. Mar. 11, 2019) (rejecting 15 the argument that “detailed knowledge of trade secrets necessarily implies some disclosure”). 16 The second allegation is that when Molavi was President of Xi Dong, he negotiated a 17 supply agreement (the Tung Shin Exclusive) with Liu and Liao. SAC ¶ 53. This allegation again 18 says nothing about Liu and Liao’s knowledge of Molavi’s alleged misappropriation. 19 The third allegation is that the Tung Shin Exclusive supply agreement’s terms state that Xi 20 Dong and Tung Shin “may gain access to ‘confidential information regarding the other party’s 21 business.’” SAC ¶ 54. Making this allegation relevant to Liu and Liao’s liability demands several 22 leaps of logic. The Court would have to assume that Molavi gained access to confidential 23 information through the Exclusive supply agreement; that Molavi misappropriated that 24 information after he left Xi Dong; and that Liu and Liao had reason to believe that Molavi had 25 misappropriated the information. 26 The last allegation is “that Liu and Liao, in their respective roles at Tung Shin, knew 27 9 1 Molavi” routed orders to Xi Dong’s customers though U.S. Metal. SAC ¶ 56. This allegation 2 merely conclusorily asserts Liu and Liao’s knowledge. See, e.g., Iqbal, 556 U.S. at 678 3 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 4 statements, do not suffice.”). Nor is it clear whether Liu and Liao had distinct knowledge about 5 Molavi’s misappropriation. Rather, the SAC “consistently lump[s] together Liu and Liao . . . 6 [d]espite acknowledging that Liu and Liao hold different positions with Tung Shin.” Navigation 7 Holdings, 2020 WL 1492693, at *7. 8 All told, the SAC failed to cure the deficiencies identified by the Court months ago. As the 9 Court warned, “failure to cure deficiencies identified [in the order] will result in dismissal of the 10 deficient claims with prejudice.” Id. at *11. The Court thus finds that amendment would be futile, 11 cause undue delay, and unduly prejudice Defendants. See Leadsinger, 512 F.3d at 532. The Court 12 dismisses with prejudice Plaintiffs’ trade secret misappropriation claims against Liu and Liao.1 13 B. Claim Three: The Court strikes the second sentence in Paragraph 81 of the Second Amended Complaint. 14 Paragraph 81 of the SAC adds a new sentence to Plaintiff’s claim for breach of a 15 confidentiality agreement: “Primrose is Xi Dong’s corporate parent, and Molavi understood that 16 the Confidentiality Agreement applied to his role as President of Xi Dong.” Defendants argue that 17 this sentence should be struck because the sentence tries to resurrect Xi Dong’s breach of 18 confidentiality agreement claim, which the Court had dismissed without leave to amend. Plaintiffs 19 respond by asserting, without explanation, that the sentence “pertains” to “Plaintiffs’ breach of 20 contract claim against Molavi.” Opp. 10. The Court agrees with Defendants. 21 In its prior decision, the Court held that “Xi Dong does not have standing to assert a breach 22 of the confidentiality agreement,” because only Primrose and Molavi—not Xi Dong—are named 23 in the agreement. Navigation Holdings, 2020 WL 1492693, at *9 (citing Jones v. Aetna Cas. & 24 25 26 1 Because Plaintiffs fail to state a claim against Liu and Liao, the Court need not address Defendants’ argument that the Court lacks personal jurisdiction over Liu and Liao. See Motion 8. 27 10 1 Sur. Co., 26 Cal. App. 4th 1717, 1724 (Ct. App. 1994)). The Court thus “dismiss[ed] this claim 2 || with respect to Xi Dong” without leave to amend. /d. (citing Leadsinger, 512 F.3d at 532). 3 The new sentence in SAC § 81 disregarded the Court’s ruling. The sentence’s only 4 || discernable purpose is to suggest that Xi Dong was a third-party beneficiary of the confidentiality 5 agreement—the very theory the Court rejected. The sentence “exceed[s] the scope of the Court’s 6 leave and [is] ordered stricken.” Brum v. MarketSource, Inc., No. 2:17-CV-00241, 2017 WL 7 |} 4883376, at *4 (E.D. Cal. Oct. 27, 2017). 8 || IV. CONCLUSION 9 For the foregoing reasons, the Court rules as follows: 10 || © Defendants’ motion to dismiss Plaintiffs’ first and second claims for trade secret 11 misappropriation under DTSA and CUTSA as to Defendants U.S. Metal, Tung Shin, and TSA 12 Metals is DENIED. 13 e Defendants’ motion to dismiss Plaintiffs’ first and second claims for trade secret 14 misappropriation under DTSA and CUTSA as to Defendants Liu and Liao is GRANTED with 3 15 prejudice. a 16 || © Defendants’ motion to strike the second sentence of paragraph 81 of the Second Amended 3 17 Complaint, which is new and exceeds the scope of the Court’s prior leave to amend, is 18 GRANTED. 19 || ITISSO ORDERED. 20 21 Dated: August 25, 2020 22 fucy te ' □□ \ LUCY @ KOH 23 United States District Judge 24 25 26 11 28 Case No. 19-CV-02644-LHK ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS SECOND AMENDED