Nikhil Jhaveri, an individual and ELA JHAVERI, an individual v. Adt Security Services, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NIKHIL JHAVERI, an individual and
ELA JHAVERI, an individual,
Plaintiffs - Appellants,
v.
ADT SECURITY SERVICES, INC.,
Defendant - Appellee.
No. 12-56201
D.C. No. 2:11-cv-04426-MWF-
PLA
MEMORANDUM*
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.
FILED
JUL 17 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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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

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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.

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