                                                                              FILED
                             NOT FOR PUBLICATION                                JUL 17 2014

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


NIKHIL JHAVERI, an individual and                  No. 12-56201
ELA JHAVERI, an individual,
                                                   D.C. No. 2:11-cv-04426-MWF-
               Plaintiffs - Appellants,            PLA

  v.
                                                   MEMORANDUM*
ADT SECURITY SERVICES, INC.,

               Defendant - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                   Michael W. Fitzgerald, District Judge, Presiding

                          Argued and Submitted July 9, 2014
                                Pasadena, California

Before: SILVERMAN, TALLMAN, and RAWLINSON, Circuit Judges.

       Appellants Nikhil Jhaveri and Ela Jhaveri seek review of the district court’s

order granting appellee ADT Security Services, Inc.’s motion for judgment on the

pleadings. Plaintiffs allege that the district court failed to consider relevant state

law precedent, and erred in not granting plaintiffs leave to amend their complaint.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                           -2-
We review the district court’s order de novo. We affirm in part, reverse and

remand.

      In granting ADT’s motion for judgment on the pleadings, the district court

found that plaintiffs alleged a breach only of ADT’s contractual duties, and did not

demonstrate that ADT breached a duty arising outside the parties’ agreement. We

agree with the district court that, to the extent plaintiffs seek a remedy for a breach

of contract, that remedy is limited to the liquidated damages provision in the

parties’ agreements. However, reading the complaint in the light most favorable to

the plaintiffs, they allege negligence independent of the contract, just as a patient

can sue a doctor for negligence even though the patient and doctor also have a

contractual relationship. See Erlich v. Menezes, 21 Cal.4th 543, 551 (1999).

      Even if plaintiffs’ original complaint had not alleged a duty independent of

the contract, plaintiffs sought leave to amend their complaint. We agree with the

plaintiffs that the district court erred in denying this request. A district court

should grant leave to amend even if no request to amend the pleading was made,

unless it determines that the pleading could not possibly be cured by the allegation

of other facts. Lacey v. Maricopa County., 693 F.3d 896, 926 (9th Cir. 2012).

Plaintiffs claim that their proposed amendments allege that ADT violated a duty

independent of the parties’ contract, such as the exercise of reasonable care in
                                          -3-
hiring. We make no determination that plaintiffs’ proposed amendments would

pass muster under Rule 12(b)(6) or survive a motion for summary judgment. We

hold only that, under the particular circumstances of this case, plaintiffs’ proposed

amended complaint is not frivolous and that leave to amend should have been

granted.

      Each party is to bear its own costs.

      AFFIRMED IN PART; REVERSED and REMANDED.
