An accounting must show that there is some relationship between the parties requiring an accounting, and that the plaintiff is entitled to a balance that can only be ascertained by such relief. Teselle v. McLoughlin, 173 CaL App. 4th 156, 179 80 (2009). Plaintiffs fail to show, or even allege, such a relationship exists. Furthermore, they specifically allege the right to recovcr a certain sum or a sum that can be made certain by calculation. For these rcasons, the Accounting claim (Count XI) fails and is dismissed.
Plaintiffs' failure to adequately allege valid causes of action as claimed in Counts I, II, III, IV, V, VI, VII, X, and XI is fatal to the remaining claims in Count VIII (Penguin Liable as Principlc), Count XII (Class Action), and Count IX (Punitive Damages).
In short, the Complaint fails and is deficient on several fronts. The RICO, fraud, and deceit claims are not pled with the requisite level of particularity. Plaintiffs fail to satisfy causal elements of RICO, do not identify each Defendant's role in the frauds, present highly questionable enterprise theories, do not adequately identify the alleged racketeering activity, and fail to identify the specific representations and materiality ofsuch representations relied upon. An express contract is not pleaded. An implied contract is not found, as consent and consideration are missing. In the absence 0 radequate allegations of reliance, cognizable injury, and misconduct against the Defendants, the remaining claims fail.
The question remains as to whether Plaintiffs should be allowed leave to amend. Five factors are to be, and have been, considered: "(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether the plaintiff has previously amended his complaint." J\unes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004)(citing Bonin v. Calderon, 59 F.3d 815, 845 (9th CiL 1995). "Futility alone can justify the denial of a motion for leave to amend."
The case has been pending for almost a year. The Complaint before the Court is the fifth pleading filed. PlaintitIs have been accorded every opportunity to adequately plead a case, if one exists. Moreover, the imprecise, in part flimsy, and speculative nature of the claims and theories advanced underscore the necessary conclusion that further amendment would be futile. This case will be dismissed with prejudice.
1. Defendants' Motions to Dismiss are GRANTED.
2. The Complaint" is DISMISSED WITH PREJUDICE.
3. All other pending motions are DENIED as moot. DATED this 30th day of April 2012.