                                                                             FILED
                             NOT FOR PUBLICATION
                                                                              OCT 28 2015

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


                              FOR THE NINTH CIRCUIT



CHARLES BRISSETTE and SANDRA                      No. 13-16393
BRISSETTE,
                                                  D.C. No. 3:12-cv-03959-WHA
              Plaintiffs - Appellants,

 v.                                               MEMORANDUM*

ENTRUST GROUP, INC.; et al.,

              Defendants - Appellees.



                     Appeal from the United States District Court
                       for the Northern District of California
                     William H. Alsup, District Judge, Presiding

                             Submitted October 21, 2015**
                               San Francisco, California

Before: SILVERMAN and CHRISTEN, Circuit Judges and DUFFY,*** District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
              The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Kevin Thomas Duffy, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
       Plaintiffs Charles and Sandra Brissette appeal from the district court’s denial of

their motion for leave to file a second amended complaint and the district court’s

subsequent entry of judgment against them.1 We have jurisdiction pursuant to 28

U.S.C. § 1291, and we AFFIRM.

       We review the denial of a motion for leave to amend a complaint for abuse of

discretion. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004); see also Chodos

v. W. Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (“[W]hen a district court has

already granted a plaintiff leave to amend, its discretion in deciding subsequent

motions to amend is ‘particularly broad.’” (quoting Griggs v. Pace Am. Grp., Inc., 170

F.3d 877, 879 (9th Cir. 1999))). In dismissing Plaintiffs’ first amended complaint, the

district court identified several deficiencies in Plaintiffs’ allegations and properly

concluded that Plaintiffs had failed to state a viable claim for intentional fraud.

Plaintiffs’ proposed second amended complaint failed to cure those deficiencies.

       Under California law, “[t]he elements of intentional misrepresentation, or actual

fraud, are: ‘(1) misrepresentation (false representation, concealment, or nondisclosure);

(2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4)

       1
          Plaintiff Stanley Levine was included in Plaintiffs’ notice of appeal. On December 30,
2013, we granted Levine’s motion to voluntarily dismiss his appeal. Therefore, Charles and Sandra
Brissette remain as the only Plaintiffs-Appellants in this case. Moreover, Levine was the only
plaintiff who asserted claims against Defendant Entrust Arizona, LLC n/k/a Vantage Retirement
Plans LLC. Accordingly, Entrust Arizona is no longer a defendant in this action.

                                                2
justifiable reliance; and (5) resulting damage.’” Anderson v. Deloitte & Touche LLP,

66 Cal. Rptr. 2d 512, 515 (Cal. App. 1997) (quoting Molko v. Holy Spirit Ass’n., 762

P.2d 46, 53 (Cal. 1988)). Further, “[a] fraud claim based upon the suppression or

concealment of a material fact must involve a defendant who had a legal duty to

disclose the fact.’” Hoffman v. 162 N. Wolfe LLC, 175 Cal. Rptr. 3d 820, 826 (Cal.

App. 2014) (citing Cal. Civ. Code § 1710(3)). Plaintiffs’ proposed second amended

complaint still failed to adequately allege the elements of knowledge of falsity, duty to

disclose, and reliance. It therefore failed to state a viable claim for intentional fraud.

Accordingly, the district court reasonably concluded that further amendment would be

futile and did not abuse its discretion in denying Plaintiffs’ motion to amend. See, e.g.,

Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987) (finding

district court reasonably concluded further amendment would be futile where second

amended complaint did not cure deficiencies identified in first amended complaint).

       AFFIRMED.2




       2
         Plaintiffs’ motion for judicial notice filed December 23, 2013 (Docket Entry No. 36) is
GRANTED as to Documents 1 -7 and DENIED as to Document 8. See Fed. R. Evid. 201; Lee v.
City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

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