Bullion Standard, Inc. v. Bank of America, N.A. et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Bullion Standard, Inc.,
Plaintiff,
v.
Bank of America, N.A., et al.,
Defendants.
Case No.: 25-CV-1299-W-SBC
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS AND DENYING MOTION
TO STRIKE [DOC. 23]
Before the Court is Defendant Bank of America’s motion to dismiss Plaintiff’s
Amended Complaint for failure to state a claim upon which relief may be granted.
(Motion [Doc. 23].) In this removed case, Plaintiff Bullion Standard, Inc. (“Bullion”)
complains that their bank account was wrongfully frozen, their funds were stolen and
withdrawn, and their account was otherwise mishandled by the Bank of America (“BOA”
or the “Bank”), consistent with its historical pattern of defrauding customers and account
holders generally and Plaintiff specifically. The central disputes are (1) whether BOA
wrongfully treated Bullion’s account as holding fraudulent funds, (2) whether BOA
wrongfully conducted or failed to conduct an investigation into Bullion’s account, and (3)
whether BOA wrongfully froze or retained Bullion’s funds.
The Court finds this motion suitable for determination on the papers submitted and
without oral argument. Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). The Court concludes
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that the motion (Doc. 23) is GRANTED IN PART and DENIED IN PART, as
explained here.
I. 	FACTUAL AND PROCEDURAL BACKGROUND
BOA removed this case on July 16, 2025. Bullion filed its first amended
complaint (the “Complaint”) on September 2, 2025. (Compl. [Doc. 21].) BOA moved to
dismiss the complaint in its entirety. (Motion [Doc. 23-1].) Plaintiff responded in
opposition. (Oppo. [Doc. 25].) BOA replied in support. (Reply [Doc. 26].)
Bullion is a California online precious metals retailer that prides itself on a
reputation as “the trusted choice for discerning precious metals investors.”1 (Compl.
¶¶ 1, 5, 11.) Bullion opened a bank account with BOA to receive wire transfers from its
customers buying precious metals. (Id. ¶ 6.) Bullion’s reputation among customers is
vital to its business due to the fierce competition in the bullion retail market. (Id. ¶¶ 13–
14.) Part of Bullion’s strategy to build customer confidence and maintain its strong
reputation was to enact several anti-fraud policies to ensure that customers are not
identity thieves and that they receive their goods when purchased. Bullion’s policies to
this end include “IPQS Enterprise grade fraud software, telephonic order verification,
email verification, tracked shipping, and signature delivery confirmation.” (Id. ¶ 14.)
Bullion contacted BOA before opening its account to confirm whether it needed to
meet additional prerequisites, such as anti-money laundering certifications, in light of its
need for wire transfers as a core component of its precious metals trade. (Id. ¶ 22.) BOA
represented it was more than able to handle Bullion’s business needs and induced Bullion
to open the account based on BOA’s representations. (Id.) Bullion opened a direct
deposit account (the “Account”) with BOA on January 17, 2024, with confidence in
1 The Court assumes the truth of all factual allegations when reviewing this Rule 12(b)(6) motion and
construes the facts in the light most favorable to the nonmoving party, Bullion. See Cahill v. Liberty
Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996); Barrett v. Belleque, 544 F.3d 1060, 1061 (9th Cir.
2008) (per curium).
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BOA’s capabilities. (Compl. ¶ 22.) Bullion only later learned that its confidence was
misplaced because of multiple scams or violations of law BOA committed to deprive
classes of customers of their money. (Id. ¶¶ 16–22.) During the next year of its
commercial banking, there were no problems with BOA, and approximately $4,000,000
was received into the Account during that time. (Id. ¶ 23.)
A. 	BOA’s Historical Scams Against Classes Of Customers Not Alleged To
Include Bullion
Bullion alleged broadly that BOA has a notorious and somewhat recent history of
fraudulent practices and conduct against the interests of its customers in general. (Compl.
¶¶ 16-21.) In support, Bullion alleged BOA committed four historical scams against the
Bank’s customers in defined classes—the credit card scam, the garnishment scam, the
fraud reporting scam, and the theft scam. (Id.) There is no allegation that Bullion was
impacted directly by any of these scams. Rather, Bullion alleges them as relevant to
BOA’s treatment of its customers and alleges that the orders entered in response to those
scams are evidence of BOA’s knowledge of its own wrongdoing.
First, the credit card scam alleged that BOA deceptively marketed their credit card
add-on products and “illegally charged approximately 1.9 million consumer accounts for
credit monitoring and credit reporting services that they were not receiving,” by
misrepresentation and engaged in unfair billing. (Id. ¶ 18.) BOA was ordered, among
other penalties, to pay approximately $268 million to approximately 1.4 million
customers, approximately $459 million to roughly 1.9 million customer accounts who
enrolled in credit monitoring, and a penalty of $20 million in penalty to the Consumer
Fraud Protection Bureau’s (“CFPB”). (Id.) The second alleged historical scam was the
garnishment scam. (Id. ¶ 19.) Bullion alleged that the CFPB described BOA’s
misconduct to include, among other things, false representation regarding rights to have
funds exempted from garnishment, and in response to an adverse finding, BOA paid a
$10 million penalty to the CFPB. (Id.) The third alleged historical scam was the fraud
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reporting scam. (Id. ¶ 20.) The CFPB described the primary wrongdoing as using a
fraud filter, as opposed to reasonable investigation, that automatically imposed an
account freeze to the debit cards of unemployment insurance benefit accounts. (Id.) 	The
final alleged historical scam is the theft scam. (Id. ¶ 21.) Plaintiff alleged that, in 2023,
the CFPB concluded that BOA was liable for wrongfully retaining the money of its
poorest customers, causing customers to be charged wrongful fees and to suff harm on
their credit profiles. (Id.)
B. 	Wrongdoing Alleged to Harm Bullion Specifically
Here, Bullion’s claims arise from BOA’s conduct in early 2025, over the course of
multiple transactions between Bullion and three of its customers. (Compl. ¶ 25.)
1. 	Customers 1 and 2
Between January 8, 2025, and February 13, 2025, Customer 1 purchased
approximately $380,000 of precious metals from Bullion over a series of transactions,
sending multiple wire transfers of money to the Account. (Compl. ¶ 25.) After each
transaction, Bullion transferred the funds to its wholesaler to fulfill Customer 1’s orders.
(Id.) Bullion monitored the transactions and confirmed the product was delivered to
Customer 1 for each order. (Id.) Customer 1 verified receipt of the product on February
17, 2025, and Bullion believed the transaction was complete. (Id.) In fact, without
Bullion’s knowledge, Customer 1 gave their product to an unknown third party,
according to Bullion’s complaint, “Potential Thief 1.” (Id. ¶¶ 25–26.) According to
Bullion, Potential Thief 1 obtained the product under false pretenses, and Customer 1 was
a victim of the third party’s fraud. (Id. ¶ 26.) Customer 1 then allegedly went to BOA
(there is no allegation that Customer 1 was also a BOA account holder) and reported the
product stolen. (Id. ¶ 27.) BOA opened a fraud dispute and debited $381,000 from the
Account. (Id. ¶ 28.) Bullion demonstrated to BOA that the wire transfers from Customer
1 were legitimate business transactions, and Customer 1 clarified to BOA that Bullion
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was not the defrauding party. (Id. ¶ 36–39.) Based on that information, BOA closed the
investigation and released $381,000 to Bullion. (Id. ¶¶ 36, 39, 41–42.)
Just weeks later, at the end of February, Customer 2 purchased approximately
$75,000 worth of product from Bullion and wire transferred funds to Bullion’s Account.
(Id. ¶ 29.) Bullion transferred funds to its wholesaler and conveyed the product to
Customer 2. (Id.) Customer 2 subsequently claimed to have been defrauded into
conveying the product to an unknown third party, “Potential Thief 2.” (Id. ¶ 30.) As
before, Customer 2 reported to their local BOA (again, there is no allegation that
Customer 2 was also a BOA account holder) that their product had been stolen. (Id.
¶ 32.) Without conducting an investigation and without notice to Bullion, BOA debited
the Account $75,000 in March 2025. (Id. ¶ 32.) Later, Bullion and Customer 2 notified
BOA that Bullion was not the defrauder, and BOA closed its investigation and credited
the Account. (Id. ¶¶ 36, 43, 44.)
Before alleging facts regarding Bullion’s Customer 3, the Complaint details
Bullion’s efforts to correct its Account with BOA after the two initial, wrongful debits of
approximately $430,000. (Id. ¶ 33.) BOA failed to notify Bullion of the debits or BOA’s
actions with respect to Customers 1 and 2. (Id.) Once Bullion discovered the errors, it
undertook to investigate, to pursue information from BOA and Bullion Customers
directly, and to show BOA that the transactions were not fraudulent. (Id. ¶ 33, 34.)
Bullion visited a BOA branch, where a manager ultimately spoke to BOA’s fraud
prevention department. (Id. ¶ 40.) Fraud prevention confirmed that Customer 1 had
requested Bullion’s funds be released to Bullion, but BOA did not release the funds
connected with those transactions for several days. (Id. ¶¶ 42 –43.) Customer 2 also
asked BOA to return Bullion’s funds, and BOA did not immediately return the money.
(Id. ¶ 43.) BOA finally credited and unfroze the Account in mid-March 2025. (Id. ¶ 44.)
That same day, BOA mailed notice to Bullion of the disputed transactions, and Bullion
alleged that this notice contained materially false statements. (Id. ¶ 46.) Bullion later
learned that BOA had concluded, as of this same day in March 2025, that
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Bullion committed fraud on its customers and had flagged Bullion’s Account for fraud
without evidence. (Id. ¶ 47.) BOA should have disclosed this conclusion to Bullion.
(Id.) About this time, Bullion began to look for a new financial institution to hold its
business accounts. (Id. ¶¶ 47, 48.) During this time, Bullion alleged it lost business daily
from a lack of access to funds and a loss to its business goodwill. (Id. ¶ 49.)
2. 	Customer 3
Also in March 2025, Bullion entered a transaction with Customer 3 who purchased
about $50,000 of product and sent a wire transfer to Bullion’s Account. (Compl. ¶ 50.)
When Bullion attempted to pay its wholesaler, it learned BOA had frozen the Account.
(Id. ¶ 51.) Bullion contacted BOA’s fraud prevention line which confirmed the
transaction was marked as potentially fraudulent without any complaint from Customer 3.
(Id. ¶¶ 52–53.) At Bullion’s request, Customer 3 attempted to contact BOA, and BOA
refused to speak with Customer 3. (Id. ¶¶ 52–54.)
Confusion between Bullion and BOA continued over the question of how or when
funds would be returned to Bullion or Customer 3. (Id. ¶¶ 55–56.) Bullion received
various estimations of time to resolve the dispute. (Id. ¶¶ 56 –61.) Bullion alleges that as
of the filing of the Complaint, BOA still wrongfully retains Customer 3’s funds wired to
the Account. (Id. ¶¶ 60, 61.)
3. The Biggest Trading Day In History
Finally, Bullion alleged the loss of its business, due to the loss of access to the
Account, on the “biggest trading day in history” on April 4, 2025. (Compl. at 30.) 	That
day President Trump announced new tariffs that caused the “precious metals industry” to
“explode” in response. (Id. ¶¶ 62–66.) “Prices of gold and silver crashed significantly,
where volatility fueled mania brought enormous buying pressure into the precious metal
sector.” (Id. ¶ 65.) Without access to the Account or funds, Bullion “fielded dozens of
calls and emails from potential customers who were unable to purchase through Bullion.”
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(Id.) As of the filing of its Complaint, Bullion is still working to establish banking
relationships and recover from damage caused by BOA. (Id. ¶¶ 67–69.)
4. The Deposit Agreement Governing Bullion’s Account
The Complaint’s allegations depend upon a deposit agreement between BOA and
Bullion regarding the Account, but the contract that it agreed to upon opening its Account
is not attached to the Complaint or put before the Court with foundation by the Bank’s
motion. Bullion opened a BOA direct deposit account and received wire transfers there
from its customers. (Compl. ¶¶ 6, 22.) In pursuit of this Account, Bullion submitted an
online application and specified the Account would be used as a “precious metals dealer
account” on the “bank’s pre-populated data form.” (Id. ¶ 22.) The Complaint alleges
that, as part of this Account creation process, BOA represented that it would be able to
handle Bullion’s wire transfer business practices. (Id.) Bullion “agreed to open an
Account with B.O.A.” (Id.) The allegations necessitate the parties’ agreement to open a
direct deposit account.2 The specific terms of that agreement are not included in the
Complaint or its attachments or in the moving papers.
Also, the deposit agreement between the parties is specifically referenced in letters
between counsel and attached to the Complaint. (See id. Exh. 1 (referencing “Bullion’s
BOA Account”), Exh. A (a redacted copy of Bullion’s BOA Account statement), Exh. 2
(BOA’s counsel’s letter referencing Bullion’s deposit agreement with the bank and
stating that Bullion’s “CEO, Kyle Horn, acknowledged [that Bullion] agreed its account
would be ‘maintained in the name of the Business with the Bank in accordance with the
terms of the applicable Deposit Agreement’”), Exh. 3 (Bullion’s counsel’s letter
disputing the accuracy and enforceability of the Deposit Agreement attached to BOA’s
2 Also, that BOA and its account holders enter a deposit agreement is further implied by Bullion’s
allegations with regard to the alleged historical scams. Those allegations and the attached Consent
Orders by the Consumer Financial Protection Bureau identify the deposit agreements between the bank
and its deposit account holders. 	(Compl. ¶¶ 18, 19; id. at Exh. 3B (Consent Order).)
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counsel’s letter because counsel admitted the agreement was created after Bullion opened
its account).) The Complaint and its attachments on their own do not provide the terms
of the deposit agreement between the parties. (Id.) Based on the Complaint and the
briefing, the parties disagree about the accuracy or applicability of the form direct deposit
agreement to Bullion and the enforceability of its terms.
C. 	Causes of Action
The Complaint identifies seven causes of action, (1) declaratory relief, (2) receipt
of stolen property under Cal. Penal Code § 496, (3) indebitatus assumpsit, (4) intentional
interference with contractual relationships, (5) intentional interference with prospective
economic relations, (6) negligent interference with prospective economic relations, and
(7) violation of Cal. Bus. & Prof. Code § 17200. (Compl. ¶¶ 70–126.) All of these
claims arise from Bullion’s Account, the Bank’s conduct in freezing (and allegedly
stealing) funds from the Account on suspicion of fraud, and the Bank’s alleged pattern of
unlawful conduct harming its customers, including Bullion. (See id. ¶¶ 75, 76, 121–26;
see also id. at Exh. A (March 2025 Bank Statement [Doc. 21 at 51]).)
II. 	LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b)(6) allows a defendant to file a motion to
dismiss a complaint for failing “to state a claim upon which relief can be granted.” Fed.
R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the complaint’s
sufficiency. N. Star Int’l v. Ariz. Corp. Comm’n., 720 F.2d 578, 581 (9th Cir. 1983). A
complaint may be dismissed as a matter of law either for lack of a cognizable legal theory
or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds,
Inc., 749 F.2d 530, 534 (9th Cir. 1984). In evaluating the motion, the Court must assume
the truth of all factual allegations and must “construe them in light most favorable to the
nonmoving party.” Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002).
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To survive a motion to dismiss, 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). The Supreme Court has interpreted this rule to mean that “[f]actual allegations
must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 555 (2007). The allegations in the complaint must “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) (quoting Twombly, 550 U.S. at 570).
Although well-pled allegations in the complaint are assumed true, a court is not required
to accept legal conclusions couched as facts, unwarranted deductions, or unreasonable
inferences. Papasan v. Allain, 478 U.S. 265, 286 (1986); Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “[O]nly a complaint that states a plausible
claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679.
III. 	ANALYSIS
A. 	Defenses That Rely on the Deposit Agreement Between the Parties May
Not Be Considered At This Stage
At the outset, the Court addresses the deposit agreement governing Bullion’s
Account. The allegations depend upon the existence of some deposit agreement to open
Bullion’s Account. The agreement governing the Account underpins the facts and claims
alleged throughout the Complaint, primarily, the wire transfers of funds into the Account,
BOA’s withdrawal of funds from the Account, and the Bank’s determination to freeze the
Account. (Compl. ¶¶ 6, 22.) Plaintiff attaches no deposit agreement governing the
Account that forms the basis of its Complaint and allegations. In this circumstance, a
defendant might have requested the Court’s consideration of the deposit agreement
between the parties by judicial notice or under the doctrine of incorporation by reference.
See generally Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018)
(“incorporation-by-reference is a judicially created doctrine that treats certain documents
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as though they are part of the complaint itself,” in part to prevent the omission of
necessary documents).
Here, however, the Court will not review the form deposit agreement BOA
attaches to its motion because BOA failed to offer any evidence showing that both parties
agreed to the contract and failed to show that the dates of the contract apply to the
Account. BOA attaches a copy of a deposit agreement with no signatory page and
without any indication of Bullion’s agreement to BOA’s form terms. (McCormick Decl.
[Doc. 23-2] at 8–77.)
Attached as an exhibit to the motion to dismiss is a July 16, 2025, letter from
BOA’s counsel to Bullion’s counsel. (Id.) The letter confirms that Bullion’s Account
had been closed, (McCormick Decl. at 4), as alleged by Bullion, and purports to
demonstrate that “Plaintiff’s CEO, Kyle Horn, acknowledged on [Plaintiff’s] behalf that
[Plaintiff] agreed that its account would be ‘maintained in the name of the Business with
the Bank in accordance with the terms of the applicable Deposit Agreement.’ A copy of
that acknowledgment is attached.” (Id.) No such acknowledgment by Kyle Horn appears
in the McCormick Declaration. (See id. at 5–79.) Instead, the exhibit contains a form
copy of Bank of America’s “Deposit Agreement and Disclosures” effective as of
February 14, 2025, after the date the Account was opened, that is, January 17, 2024. (See
id. at 8; Compl. ¶ 22.) The exhibit also contains four copies of a letter from BOA to
Plaintiff on April 9, 2025, confirming that the account is closed and that money would
not be returned to the account holder at that time, under the terms of the Deposit
agreement, while the review of the transactions and source of the funds proceeded.
(McCormick Declaration at 6–7, 78, 79.) Nothing in support of the Bank’s motion to
dismiss connects BOA’s Deposit Agreement and Disclosures with either Bullion or Kyle
Horn, outside of the statement of BOA’s counsel. (See id. at 4.) Likewise, nothing in
support of the Bank’s motion connects Bullion’s agreement to terms effective when the
Account was opened. (See id.)
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In relevant part, the Complaint alleges that Plaintiff (1) “submitted an online
application and specified that the account would be utilized as a ‘precious metals dealer
account’ in accordance with the bank’s pre-populated data form,” (2) opened the Account
at BOA, and (3) was dependent solely on that Account to do its business. (Compl. ¶¶ 22–
23.) In light of these allegations, it is reasonable to infer that some agreement was
entered. (Id. ¶¶ 2, 5–7, 22–23.) However, the Court would be speculating to suggest
how the agreement may have been signed or acknowledged or what terms the agreement
contained. There are no facts before the Court to permit an interpretation of the terms or
acknowledgments that Kyle Horn or Bullion may or may not have agreed to.
Although the averments of counsel would also be insufficient to demonstrate the
existence of an agreement between the parties, defense counsel’s declaration here is silent
about the foundation of the Deposit Agreement’s application to Bullion. (McCormick
Decl. at 2 (“I . . . attached a copy of [the Bank’s] deposit agreement.”).) Neither is there
any evidence to support that the parties entered the agreement by digital signature or
digital acknowledgment. (See id.) In its reply, BOA argues that the deposit agreement is
publicly available. (Reply [Doc. 26] at 2, 6.) However, BOA does not point to any
publicly available document demonstrating that Bullion agreed to specific terms or a
specific contract.
Accordingly, BOA’s defenses dependent on the existence or terms of a deposit
agreement must fail, until such time as the contract or deposit agreement both parties
entered is properly before the Court. For now, these unavailable defenses are: (1) BOA
has a right to hold Bullion’s funds based on the parties’ deposit agreement, and (2)
Bullion’s claims for relief are limited to those sounding in contract. (See Motion at 6–8,
8–9.)
To be clear, Bullion’s allegations are dependent upon the existence of the parties’
agreement to open a direct deposit account permitting wire transfers. (Compl. ¶¶ 2, 5–6,
22–23.) The parties’ relationship is governed in part by California law. Under California
law, “the relationship between a bank and its depositor is not fiduciary in character but,
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rather, founded on contract, ordinarily memorialized by a signature card that the
depositor signs upon opening the account.” Wartell v. Wells Fargo Bank, N.A., 755 F.
Supp. 3d 1252, 1257 (N.D. Cal. 2024) (quoting Kurtz-Ahlers, LLC v. Bank of Am., N.A.,
48 Cal. App. 5th 952, 956 (2020). Moreover, California law provides that “the
relationship between a bank and its depositor is one of debtor and creditor.” Crocker-
Citizens Nat. Bank v. Control Metals Corp., 566 F.2d 631, 637 (9th Cir. 1977) (overruled
in part on other grounds); Kurtz-Ahlers, 48 Cal. App. 5th at 956. 3 However, the Court
will not infer the terms of that agreement from a general form contract on BOA’s
Website, one which does not demonstrate that both parties agreed to its terms. Next, the
Court addresses the sufficiency of Plaintiff’s causes of action.
B. 	Declaratory Relief
Bullion’s first cause of action for declaratory relief arises from BOA’s wrongful
determination that Bullion’s business or transactions were fraudulent after BOA’s
investigation into the transactions of Customers 1 and 2. (Compl. ¶ 71.) Bullion alleges
that BOA made false statements to other banking institutions about Bullion based upon
its wrongful determination of fraud. (Id. ¶ 72.) Bullion seeks a judicial declaration that
Bullion did not commit fraud against Customer 1 or 2. (Id. ¶¶ 71, 72.) The Bank moves
to dismiss the declaratory relief claim on the grounds that it is duplicative and it fails as a
matter of law because it does not seek to redress future harm, as required.
3 	In response, Bullion argues that the Complaint does not plead the existence of a contract or deposit
agreement. The existence of an agreement between the parties is reasonably inferred from the
allegations that Bullion opened an account and used the Account as its only means to receive wired
transfers from its customers. (Compl. ¶¶ 5–7, 9, 48–49, 114–15.) The crux of the dispute presented by
the motion to dismiss is the absence of a controlling contract. Bullion argues, but does not allege, that
either a deposit agreement did not exist or is unenforceable. The Bank, presumably the party with the
best access to the contract governing Bullion’s Account, has not yet demonstrated the contract or terms
Bullion agreed to in creating or using its Account.
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Under the Declaratory Judgment Act, “any court of the United States . . . may
declare the rights and other legal relations of any interested party seeking such
declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a);
Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007). However, “[a] court may
dismiss a claim for declaratory relief if it is duplicative of, substantially similar to, or
commensurate with relief sought under another cause of action.” In re Albert-Sheridan,
658 B.R. 516, 543 (B.A.P. 9th Cir. 2024) (citation omitted). For example, “[w]here a
breach of contract claim resolves all questions regarding contract interpretation,
declaratory relief may be duplicative and inappropriate.” Fine v. Kansas City Life Ins.
Co., 627 F. Supp. 3d 1153, 1164 (C.D. Cal. 2022) (citations omitted). Ultimately, “[t]he
decision to grant declaratory relief is a matter of discretion even when the court is
presented with a justiciable controversy.” United States v. Washington, 759 F.2d 1353,
1356 (9th Cir. 1985) (citations omitted).
Here, the Complaint alleges facts specific to the declaratory relief claim beyond
those relevant to the other causes of action. Bullion alleges an ongoing controversy
based upon the allegedly wrongful determination that Bullion’s dealings with Customers
1 and 2 was fraudulent. (Compl. ¶¶ 71, 72.) Bullion alleges that this wrongdoing
impacted its ability to secure another deposit agreement based on “false statements” the
Bank made to other financial institutions. (Id. ¶ 71.) Viewed in the light most favorable
to Bullion, these allegations are sufficient to allege that the claim for declaratory relief is
not wholly duplicative and that it is not limited only to past wrongs. The allegation that
the controversy continues as of the date of the Complaint’s filing, while not dispositive,
weighs in favor of permitting the declaratory relief claim to survive the pleading stage.
Accordingly, the Court denies the motion to dismiss the claim for declaratory relief.
C. Receipt of Stolen Property under Cal. Penal Code § 496
Plaintiff’s second cause of action for receipt of stolen property under California
Penal Code § 496 governs the receipt or concealment of stolen property. Subsection (a)
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provides in relevant part that “[e]very person who [] receives any property that has been
stolen or that has been obtained in any manner constituting theft . . ., knowing the
property to be so stolen or obtained . . . shall be punished by imprisonment. . . .” Cal.
Penal Code § 496(a); ; see also Bell v. Feibush, 212 Cal. App. 4th 1041, 1047 (2013);
Siry Inv., LP v. Farkhondehpour, 13 Cal. 5th 333, 349–50 (2022). A civil cause of action
lies for any “person who has been injured by a violation of subdivision (a).” Id. at
§ 496(c).
BOA argues that this claim must be dismissed because there is no allegation BOA
knew the money was stolen when it was deposited into the Account, and this omission
cannot be remedied by amendment because Bullion alleges that each transaction
underlying the deposits of Customers 1, 2, and 3 were lawful and the funds deposited into
Bullion’s account were not fraudulently obtained. Put another way, BOA argues that
Bullion must either lose its receipt of stolen property claim or reverse its factual
allegations regarding the lawfulness of the underlying transactions. Bullion’s theory is
that BOA violates § 496 by withholding funds from Bullion’s account after stealing those
funds from Bullion initially—in other words, the withdrawal by the Bank is the initial
stealing and its refusal to return the money on Bullion’s demand is a withholding made
actionable by § 496. See Cal. Penal Code § 496(a) (“Every person who . . . withholds, or
aids in . . . withholding any property from the owner, knowing the property to be so
stolen” is liable); see also Bell v. Feibush, 212 Cal. App. 4th 1041, 1049 (2013)
(defendant “violated section 496(a) ... by withholding that property when [plaintiff] asked
for it back”).
The Complaint alleges that BOA “falsely and wrongfully stole approximately
$49,526.90 of Bullion’s money related to Customer 3’s deposit which was to be utilized
to purchase five bars of Platinum [] as well as an additional $741.01 which was already in
the account. (Compl. ¶ 75.) Bullion alleges two “theft-based schemes” by Defendant as
alternate or joint theories to satisfy the statute’s requirement that the property “has been
obtained in any manner constituting theft,” Cal. Penal Code § 496(a). (Id. § 76.)
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First, Bullion alleged a “theft through false pretenses” scheme committed by BOA
as one basis for demonstrating the stolen element of its § 496 claim. (Id. ¶¶ 76-77.) To
support theft by false pretenses, a plaintiff must show that “the defendant made a false
pretense or representation with intent to defraud the owner of its property, and that the
owner was in fact defrauded. It is unnecessary to prove that the defendant benefitted
personally . . . . The false pretense or representation must have materially influenced the
owner to party with its property, but the false pretense need not be the sole inducing
cause.” Sina v. Schwartz Inv. Co, LLC, 2025 Cal. Super. LEXIS 57490, at *5 (Sep. 30,
2025) (citing People v. Ashley, 42 Cal.2d 246, 259 (1954); People v. Hartley, 248 Cal.
App. 4th 620 (2016); People v. Miller, 81 Cal. App. 4th 1427 (2000).
Here, the “theft by false pretenses” allegedly occurred when BOA “lured Bullion
into making additional deposits which B.O.A. would then ‘Freeze’—aka steal—without
performing an adequate investigation.” (Id.) Bullion states that (1) it has produced
evidence that the Account is not “subject to fraud” and (2) that based upon this
information, agents of the Bank’s fraud prevention department closed fraud
investigations into transactions with Customers 1 and 2. (Id. ¶¶ 77–78.) Finally, Bullion
alleged that BOA has no good faith basis to withhold the money demanded and that its
illegal intent is consistent with historic violations of law against customers not allegedly
including or related to Bullion, including a theft of more than $727,000,000 in historical
credit card and garnishment scams. (Id. ¶ 78.)
Second, Plaintiff alleged an embezzlement scheme as an additional or alternative
basis for demonstrating the stolen element of this claim. Under the embezzlement
scheme, BOA decided during the process of closing Bullion’s account that it never needs
to return the money taken from the Account. (Id. ¶ 78.) Bullion has not consented to
this taking and instead demands the money. (Id.) Despite this demand, according to the
Complaint, BOA falsely and fraudulently claims it is entitled to hold the money as long
as it believes the Account was “subject to fraud” or other improper conduct, similarly to
its conduct in the alleged, historical credit card scam and garnishment scam. (Id.) BOA
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never had a legitimate basis to believe the Account was “subject to fraud” or improper
conduct because BOA never properly investigated such conduct. (Id. ¶ 78.) Bullion
further alleges that BOA’s theft has “been authorized, ratified, and consented to” by
BOA’s “highest levels as demonstrated by the statements made by its counsel” in the
letters attached to the Complaint. (Id. ¶ 81.)
To state a claim for receipt of stolen property, a plaintiff must plead three
elements: “(a) the property was stolen, and (b) the defendant was in possession of it, (c)
knowing it was stolen.” Verdugo-Gonzalez v. Holder, 581 F.3d 1059, 1061 (9th Cir.
2009) (citing People v. Anderson, 210 Cal. App. 3d 414, 420 (1989)). The Bank argues
the claim must be dismissed because Bullion must allege, and it has not, that BOA knew
that the funds (the “approximately $49,526.90 [] related to Customer 3’s deposit
[“Customer 3’s Deposit”] . . . as well as an additional $741.01 which was already in the
[A]ccount”) were stolen when they were deposited. “A necessary element of receipt of
stolen property is the defendant’s actual knowledge at the time of receipt that the property
was stolen.” La Tech. & Consulting, LLC v. Am. Express Co., 2023 U.S. App. LEXIS
31225, at *2, 2023 WL 8166780 (9th Cir. Nov. 24, 2023) (citing People v. Tessman, 223
Cal. App. 4th 1293 (Cal. Ct. App. 2014)). Bullion provides legal authority for the
sufficiency of its § 496 claim, but it does not respond to the challenge that it must plead
the fact that BOA actually knew the funds were stolen at the time they were received, that
is, deposited.
The Complaint does not allege that BOA knew the stolen nature of the funds at the
time that it received them. (Compl. ¶¶ 74–81.) Rather, Bullion attempts to plead BOA’s
wrongful intent prior to Customer 3’s Deposit through one or both of two schemes of
theft through false pretenses or embezzlement. (Id.) Bullion makes no allegation
regarding BOA’s knowledge of the stolen nature of the $741.01 already in the Account at
the time of Customer 3’s Deposit. (See id.) Under California law, Bullion failed to plead
sufficient factual allegations to state a claim under § 496 regarding Customer 3’s Deposit
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and the additional $741.01. However, the Court will grant leave to amend as it is
conceivable that these pleading deficiencies could be cured by amendment.
D. 	Indebitatus Assumpsit
Bullion’s third cause of action is for Indebitatus Assumpsit, or a California
common law cause of action for money had and received. See Gutierrez v. Girardi, 194
Cal. App. 4th 925, 937 (2011) (a claim for money had and received is stated when “the
defendant is indebted to the plaintiff in a certain sum ‘for money had and received by the
defendant for the use of the plaintiff’”) (quoting (Schultz v. Harney, 27 Cal. App. 4th
1611, 1623 (1994)); see also Philpott v. Superior Ct. in & for Los Angeles Cnty., 1 Cal.
2d 512, 517 (1934) (stating “one of the common counts for money had and received, to
wit, indebitatus assumpsit”). The Bank moves to dismiss this cause of action on grounds
that the contract between the parties permits the Bank to withhold the money, and
accordingly Bullion can have no claim that it be returned. (Motion at 8–9.) As explained
above, the Bank failed to put before the Court a deposit agreement or other governing
contract agreed to by both the Bank and Bullion. On this record, the Court denies the
motion to dismiss the third cause of action.
E. 	Intentional Interference Claims
Bullion’s fourth cause of action is for intentional interference with contractual
relationships, and its fifth cause of action is for intentional interference with prospective
economic relations (the “intentional interference claims”). According to BOA, both
causes of action should be dismissed for two reasons. First, BOA argues the claims fail
because Plaintiff failed to allege that BOA possessed the requisite knowledge of
Bullion’s relationships with its customers. Second, BOA argues both claims fail because
Bullion insufficiently alleged that either BOA desired to interfere or that interference was
substantially certain to occur with both claims.
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In California, the intentional interference claims are “related but distinct.” Ixchel
Pharma, LLC v. Biogen, Inc., 9 Cal. 5th 1130, 1141 (2020) (addressing at-will contracts).
Both claims require a plaintiff plead and prove a defendant’s knowledge of the object of
the claim—that is, knowledge of the contract for contractual relationships, on the one
hand, and knowledge of the prospective economic relationship, on the other. See id.;
Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1153 (2003). Also, both
intentional interference claims require a plaintiff to plead and prove a defendant’s intent.
“It is not necessary to prove that the defendant acted with the specific intent, or purpose,
of disrupting the plaintiff’s prospective economic advantage [or contractual
relationship]”; rather, a plaintiff may plead “the defendant knew that the interference was
certain or substantially certain to occur as a result of its action.” See San Jose Constr.,
Inc. v. S.B.C.C., Inc., 155 Cal. App. 4th 1528, 1544–45 (Cal. Ct. App. 2007) (quoting
Korea Supply Co., 29 Cal. 4th at 1155–57).
First, a claim for intentional interference with contractual relationships “requires
allegations of the following elements: ‘(1) a valid contract between plaintiff and a third
party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts
designed to induce a breach or disruption of the contractual relationship; (4) actual breach
or disruption of the contractual relationship; and (5) resulting damage.’” CRST Van
Expedited, Inc. v. Werner Enters., Inc., 479 F.3d 1099, 1105 (9th Cir. 2007) (quoting
Quelimane Co. v. Stewart Title Guar. Co., 19 Cal.4th 26 (1998)); Ixchel Pharma, 9
Cal.5th 1130. A plaintiff must allege the defendant’s “specific knowledge of contracts
with third parties.” Sarafan Mobile Ltd. v. Apple, Inc., No. 24-cv-2698-JSW, 2025 U.S.
Dist. LEXIS 178530 at *17 (N.D. Cal. July 30, 2025) (citing World Fin. Grp. Ins. Agency
v. Olson, No. 24-cv-480-EDJ, 2024 U.S. Dist. LEXIS 127975, 2024 WL 3498490, at
*10–11 (N.D. Cal. July 19, 2024)). However, a plaintiff is not required to allege that “the
defendant have the specific intent to interfere with a contract. A plaintiff states a claim
so long as it alleges the defendant knew that interference was ‘certain or substantially
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certain to occur as a result of [defendant’s] action.’” Ixchel Pharma, 9 Cal. 5th at 675–76
(quoting Quelimane Co., 19 Cal. 4th at 56).
Second, a claim for intentional interference with prospective economic relations
requires a plaintiff “plead and prove (1) an economic relationship between the plaintiff
and some third party, with the probability of future economic benefit to the plaintiff; (2)
the defendant's knowledge of the relationship; (3) the defendant's intentional acts
designed to disrupt the relationship; (4) actual disruption of the relationship; and (5)
economic harm to the plaintiff proximately caused by the defendant's acts.” Reeves v.
Hanlon, 33 Cal. 4th 1140, 1152, n.6 (2004) (citing Youst v. Longo, 43 Cal.3d 64, 71, n. 6
(1987).)
In its motion, BOA challenges the sufficiency of both intentional interference
claims on the grounds that Bullion insufficiently alleged the Bank’s knowledge of (1) the
contract between Bullion and Customer 3 and (2) the Bank’s knowledge of Bullion’s
prospective economic relations.
With respect to the contractual relationship claim, Bullion alleges that it entered
into a contract, on or about March 27, 2025, with Customer 3 for the purchase of
approximately $50,000 worth of precious metals. (Compl. ¶ 87.) Bullion alleges without
explanation: “Defendant knew of Plaintiff’s contract with Customer 3 by virtue of the
facts alleged above.” (Id. ¶ 88.) There is no further factual allegation regarding the
Bank’s knowledge of Customer, of Bullion’s contract with any customer on or about that
date, or of the sale of precious metals for approximately $50,000. The Complaint alleges
that the Bank was aware of (1) the nature of its business as a precious metals dealer, (2)
Bullion’s use of wire transfers as part of its business; and (3) Bullion’s transactions with
Customers 1 and 2, and of the parties’ dispute about whether any part of those
transactions was fraudulent. (Compl. ¶¶ 22, 25–47, 93.) None of these facts, however,
permit the plausible inference that BOA was aware of Bullion’s future transaction with
Customer 3, beyond the general presumption that Bullion’s business model would
continue.
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“Generalized knowledge that a party has contracts with others is not sufficient to
support a claim for intentional interference with contractual relationships.” Trinidade v.
Reach Media Grp., LLC, No. 12-cv-4759-PSG, 2013 U.S. Dist. LEXIS 107707, 2013
WL 3977034, at *15 (N.D. Cal. July 31, 2013); Winchester Mystery House, LLC v.
Global Asylum, Inc., 210 Cal. App. 4th 579, 596–97 (Cal. Ct. App. 2012). Bullion’s
position is that the Bank’s knowledge of Customers 1 and 2, combined with its
knowledge of Bullion’s business and its need for wire transfers sufficiently demonstrate
that the Bank knew “Customer 3’s identity.” (Oppo. at 16, ll. 1–15.) However, there is
nothing alleged about the identities of Customers 1 or 2 that identify either Customer 3 to
BOA or the terms or nature of Customer 3’s contract with Bullion. The allegations
support only that the Bank knew Bullion likely had contractual relationships with third
parties, not that it knew the parties’ identities or the terms of those contracts beyond
generalized transactions for precious metals. These allegations are insufficiently specific
to allege the requisite knowledge element. Viewing the pleading in the light most
favorable to Bullion and considering all allegations that precede its statement of the
Bank’s knowledge in paragraph 88, there appears no fact supporting the inference that the
Bank knew of Customer 3 or Customer 3’s transaction. Although the Court is skeptical
that Bullion can allege sufficient facts to satisfy the knowledge element, the Court cannot
say that amendment would be futile. Accordingly, leave will be granted for Bullion to
amend its allegations regarding the Bank’s knowledge of the contract between Bullion
and Customer 3, before the March 27, 2025, transaction. Because the claim for
intentional interference with contractual relationship must be dismissed for failure to
sufficiently allege a necessary element, the Court need not reach BOA’s other grounds
for dismissal.
Turning to BOA’s knowledge regarding Bullion’s prospective economic
advantage, the Complaint alleges that over $4,000,000 were handled through its BOA
Account, and the Bank knew of these transactions. (Compl. ¶ 94–96.) Bullion
anticipated at least $4,000,000 in sales per year for the next several years of business and
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expected between one and two million dollars in sales on March 27, 2025. (Id. ¶ 96–97.)
According to the Complaint, the Bank’s knowledge of Bullion’s March 27, 2025,
transaction with Customer 3 was based upon, (1) its knowledge of past sales expected to
continue, (2) facts arising from the Bank’s investigations into the transactions with
Customers 1 and 2, and (3) the fact that Bullion told the Bank that withholding or
freezing of funds would have a devastating effect on its business. (Id. ¶¶ 99–100.)
However, general and conclusory allegations regarding lost future sales, damage to the
relationships between Plaintiff and its customers, or the Bank’s knowledge of the prior
fraud investigation and the closure of that investigation in Bullion’s interest do not satisfy
the pleading requirements of the knowledge element of this claim. See Sybersound
Records v. UAV Corp., 517 F.3d 1137, 1151 (9th Cir. 2008); Vascular Imaging Prof’ls,
Inc. v. Digirad Corp., 401 F. Supp. 3d 1005, 1013 (S.D. Cal. 2019).
Bullion starts with the conclusions that (1) BOA’s withdrawal of funds from the
Account prevented Bullion’s transaction with Customer 3, (2) BOA’s closure of the
Account shut down Bullion’s business, which was expected to result in millions of
dollars of sales, and (3) the Bank’s closure of the Account cost Bullion then and future
business in the form of lost goodwill and being delisted from various industry listings.
(Compl. ¶¶ 95–104.) But Bullion has failed to plead facts that demonstrate BOA’s
knowledge of the Customer 3 sale or, indeed, of any future customer or specific contract.
Iqbal, 556 U.S. at 678 (“[t]hread bare recitations of the elements of a cause of action,
supported by mere conclusory statements ... do not suffice” to state a claim). Aside from
a cursory reference that “Defendant knew of these [future] sales by virtue of the facts
outlined above,” the Complaint lacks any specific factual allegations related to the second
element, namely the Bank’s knowledge of any relationship between Bullion and
Customer 3 or even of the Bank’s knowledge of any relationship between Bullion and
any specific future customer or contract. It is insufficient that Bullion alleges BOA’s
knowledge of Bullion’s sales business, knowledge of Bullion’s intent to continue in that
sales business, and knowledge based on Bullion’s warning that the loss of its Account
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would cause devastating harm. Because the claim for intentional interference with
prospective economic advantage must be dismissed for failure to sufficiently allege a
necessary element, the Court need not reach BOA’s other grounds for dismissal.
Although the Court may be skeptical of Bullion’s ability to sufficiently allege BOA’s
knowledge of its future economic advantage, it is not clear that amendment would be
futile. The Court dismisses the fifth cause of action and will grant leave to amend as it is
not clear that Bullion cannot cure the deficiencies.
F. Negligent Interference With Prospective Economic Relations
Bullion’s sixth cause of action is for negligent interference with prospective
economic relations. The elements of negligent interference are similar to those of the
intentional interference claims, with the critical difference being the requisite mental state
of defendants. See Venhaus v. Shultz, 155 Cal. App. 4th 1072, 1077–78 (Cal. Ct. App.
2007) (addressing the jury instruction for the tort of negligent interference with
prospective economic advantage).
“The tort of negligent interference with prospective economic advantage is
established where a plaintiff demonstrates that (1) an economic relationship
existed between the plaintiff and a third party which contained a reasonably
probable future economic benefit or advantage to plaintiff; (2) the defendant
knew of the existence of the relationship and was aware or should have been
aware that if it did not act with due care its actions would interfere with this
relationship and cause plaintiff to lose in whole or in part the probable future
economic benefit or advantage of the relationship; (3) the defendant was
negligent; and (4) such negligence caused damage to plaintiff in that the
relationship was actually interfered with or disrupted and plaintiff lost in
whole or in part the economic benefits or advantage reasonably expected
from the relationship.”
Id. at 1078 (quoting N. Am. Chem. Co. v. Superior Court, 59 Cal. App. 4th 764, 786 (Cal.
Ct. App. 1997)).
As explained with regard to the intentional interference claims above, Bullion may
not satisfy its pleading requirement with respect to the knowledge element of negligent
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interference with general or conclusory allegations. Iqbal, 556 U.S. at 678 (“[t]hread
bare recitations of the elements of a cause of action, supported by mere conclusory
statements ... do not suffice” to state a claim). It is insufficient to merely allege that BOA
knew “of the existence of the [economic relationship between plaintiff and a third party
which contained a reasonably probable future economic benefit or advantage to plaintiff]
and was aware or should have been aware that if it did not act with due care its actions
would interfere with this relationship and cause plaintiff to lose in whole or in part the
probable future economic benefit or advantage of the relationship.” Venhaus, 155 Cal.
App. 4th at 1078; Iqbal, 556 U.S. at 678.
However, Bullion’s allegation with respect to knowledge is sparser than this
standard: “Defendant knew of [approximately $4 million in sales which were handled
through Plaintiff’s Account over the last year] by virtue of the facts outlined above.”
(Compl. ¶¶ 106–107.) As with the intentional interference claims, Bullion alleges that it
“repeatedly advised” BOA “of the nature of its business” and of “the devastating effects
Defendant’s conduct would have on Plaintiff’s business.” (Id. ¶¶ 110–113.) Bullion also
alleged Defendant’s knowledge arising from the prior fraud investigation related to
Customers 1 and 2, and of its prior wrongful conduct, determined by prior regulatory
findings arising from the alleged historic scams. (Id. ¶ 111, 113.)
Bullion failed to allege sufficient facts to support the knowledge element of
negligent interference with prospective economic relationships. Having so concluded,
the Court need not address BOA’s other grounds for dismissal and grants the motion to
dismiss the sixth cause of action. As with the intentional interference claims, however, it
cannot be said that amendment would certainly be futile. Accordingly, the Court will
grant leave to amend the negligent interference claim.
G. UCL Claim
Bullion’s seventh cause of action is an Unfair Competition Law (“UCL”) claim, or
a violation of California Business and Professions Code § 17200. Under the UCL, a
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business practice is deemed “unfair competition,” and is thus prohibited, if it constitutes
either: (1) an unlawful business practice; (2) an unfair business practice; or (3) a
fraudulent business practice. See Cal. Bus. & Prof. Code § 17200. Each of these three
prongs is a separate and independent cause of action.4 Martinez v. Wells Fargo Home
Mrtg., Inc., 598 F.3d 549, 554 (9th Cir. 2010) (citing Cel-Tech Commc’ns, Inc. v. Los
Angeles Cellular Tel. Co., 20 Cal.4th 163 (1999)). Furthermore, a “UCL action is
equitable in nature; damages cannot be recovered. Korea Supply Co. v. Lockheed Martin
Corp., 29 Cal.4th 1134, 943, 1152 (2003) (holding that nonrestitutionary disgorgement of
profits is not an available remedy” in a UCL action). “Prevailing plaintiffs are generally
limited to injunctive relief and restitution.” Cel-Tech, 20 Cal.4th at 179; see also Korea
Supply, 29 Cal.4th at 943, 947, 1152.
Here, Bullion alleges the Bank violated the UCL by wrongfully obtaining more
than $50,000 from Bullion’s Account, exclusive of fees and other charges, based on the
Bank’s “fraudulent, deceptive, and unfair conduct.” (Compl. ¶¶ 119–20.) Bullion alleges
that BOA’s historical wrongful or unlawful conduct, as evidenced in the alleged
historical scams, demonstrates that BOA has recently been punished and ordered to
disgorge similarly wrongfully obtained monies and fees. (Id. ¶¶ 17–21, 89, Compl. at
Exh. 3 (letter from Bullion’s counsel to BOA’s counsel).) Bullion prays for
“disgorgement of B.O.A.’s ill-gotten gains” and an order enjoining the Bank from
continuing to conduct business through fraudulent, deceptive or unfair acts. (Compl.
¶ 120.)
First, BOA argues that the Complaint fails to state which of the three prongs of
unfair competition is alleged. This is incorrect. The Complaint attempts to allege a claim
4 UCL allegations based on the fraud prong are subject to the pleading requirements of Fed. R. Civ. P. 9.
See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009); NJOY, LLC v. Imiracle (HK) Ltd.,
760 F. Supp. 3d 1084, 1117 (S.D. Cal. 2024). The Court need not address Rule 9’s application here as
explained next.
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under all three, as quoted above. (Id. ¶ 120.) The challenge for Bullion’s Complaint is
whether its allegations under each prong are sufficient.
Second, BOA objects to the generality of Bullion’s factual allegations with respect
to unfair competition. The Court agrees. Bullion’s allegations are merely a statement of
the three UCL prongs and an allegation that the Bank’s “bad conduct,” which viewing the
Complaint in the light most favorable to Bullion includes all preceding allegations of
wrongdoing, harmed Bullion by depriving it of more than $50,000 of its Account funds.
This allegation of merely “prior bad acts” is insufficient to state a UCL claim, even if it
were true that it is remotely possible to connect one of the prior factual allegations of the
Bank’s wrongful conduct to Bullion’s loss of some $50,000. See Iqbal, 556 U.S. at 678
(“[t]hread bare recitations of the elements of a cause of action, supported by mere
conclusory statements ... do not suffice” to state a claim). This failure to adequately
plead the connection of BOA’s conduct to each of the prongs of unfair competition,
unlawful, unfair, and fraudulent is fatal to Bullion’s UCL claim. A UCL “plaintiff must
establish that the practice is either unlawful (i.e., is forbidden by law), unfair (i.e., harm
to victim outweighs any benefit) or fraudulent (i.e., is likely to deceive members of the
public).” Albillo v. Intermodal Container Servs., Inc., 114 Cal. App. 4th 190, 206 (2003)
(citing Olsen v. Breeze, 48 Cal.App.4th 608, 617–618 (1996); Saunders v. Superior
Court, 27 Cal.App.4th 832, 839 (1994)). Or, in this case, Bullion must establish which
business practice is unlawful, which is unfair, and which is fraudulent, if it chooses to
pursue each UCL prong.
Finally, BOA argues that the UCL claim must be dismissed in its entirety because,
as a claim in equity, it may not be brought in addition to legal claims seeking
substantially similar remedies. In BOA’s view, Bullion both fails to allege it lacks an
adequate remedy at law and also prays for a remedy at law, disgorgement, as part of its
equitable UCL claim. (Motion at 19.) The Court agrees that Bullion has not alleged the
absence of an adequate remedy at law and also that the summary prayer for
“disgorgement of B.O.A.’s ill-gotten gains” falls within the remedies at law that are
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unavailable under the UCL. See Korea Supply Co., 29 Cal.4th at 1150–52 (discussing the
UCL’s legislative scheme of limiting available remedies). However, Bullion also prays
for injunctive relief in the form of an order limiting the Bank’s future conduct. (Compl.
¶ 120.) Neither party addresses the equitable remedy alleged in the Complaint as a basis
for the UCL claim to survive dismissal. Having failed to adequately allege the particular
BOA business activity that underpins the unfair competition claim, the Complaint’s UCL
claim will be dismissed. Because Bullion requests leave to amend, and amendment of the
UCL claim is not futile on this record, the Court grants leave to amend the UCL claim.
H. Jury Trial Demand
Bullion did not demand a jury trial in its state court complaint. (Doc. 1-2.) Bullion
did not file a separate notice of jury demand after removal. When Bullion filed its
operative Complaint pursuant to this Court’s order, it did not include a jury trial demand
anywhere in the caption or text of the Complaint itself. Instead, when electronically
filing the Complaint, counsel named the docket entry, “AMENDED COMPLAINT with
Jury Demand against All Defendants.” (No. 3:25-cv-01299-W-SBC, Bullion Standard,
Inc. v. Bank of America, N.A. et al, CM/ECF Docket Report at Doc. 21 (S.D. Cal. Sep. 2,
2025).)
BOA moves to strike Bullion’s invocation of a jury trial on the docket report.
(Motion at 16.) BOA argues the demand for jury trial is waived. BOA provides no
citation to Rule 12(f) (governing motions to strike pleadings) and no discussion of Rule
12(f)’s application to the jury demand that in this case appears on the CM/ECF docket
but not in the caption or text of the Complaint. For these reasons, the Court denies
without prejudice the motion to strike. Moreover, even if a jury trial is waived, a “court
may, in its discretion upon just terms, allow a trial by jury.” Fed. R. Civ. P. 39(b)–(c),
81(c)(3). The resolution of this issue is better addressed at a later stage in the
proceedings.
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IV. CONCLUSION
For the foregoing reasons, the Court denies the motion to dismiss Bullion’s claims
for declaratory relief and indebitatus assumpsit (Claims 1 and 3).
The Court grants the motion to dismiss Bullion’s claims for receipt of stolen
property under Cal. Penal Code § 496, interference with contract or prospective economic
relations, and violation of California Business & Professions Code § 17200 (Claims 2, 4–
7). Plaintiff requests leave to amend and is granted such leave with respect to the claims
for receipt of stolen property under § 496, interference with contract or prospective
economic relations, and violation of California Business & Professions Code § 17200
(Claims 2, 4–7). Any amended complaint must be filed on or before March 9, 2026. If
Bullion opts to amend its Complaint, the factual allegations in its second amended
complaint must be “consistent with” and may “not contradict the allegations in the
original complaint.” United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir.
2011).
The Court denies without prejudice the Bank’s motion to strike Bullion’s jury trial
demand.
It is so Ordered.
Dated: February 17, 2026
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