ORDER Granting 141 Leave to File Motion for Reconsideration; and Setting Briefing… — Bofa Ca Unemployment (Dkt. 148)

Summary

An order by Hon. Larry Alan Burns in In re: Bank of America California Unemployment Benefits Litigation, Case No. 21-md-2992-LAB-MSB in the Southern District of California, dated August 1, 2023 and filed 08/01/23 as Document 148, granting plaintiffs leave to file a motion for reconsideration and setting a briefing schedule. Plaintiffs sought reconsideration of the Court's May 25, 2023 Order dismissing with prejudice their claims under California's Unfair Competition Law, which had applied the Ninth Circuit's decision in Sonner v. Premier Nutrition Corp. The Court found the May 25 Order did not adequately address the difference between prospective injunctive relief and equitable restitution for past harm, or whether the dismissal should have been with leave to amend or without prejudice. Plaintiffs' motion was due by August 7, 2023, with a hearing set for August 28, 2023.

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
IN RE: BANK OF AMERICA 
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
 
 
Case No.: 21-md-2992-LAB-MSB 
 
ORDER: 
 
1) GRANTING LEAVE TO FILE 
MOTION FOR 
RECONSIDERATION, 
(Dkt. 141); and 
 
2) SETTING BRIEFING 
SCHEDULE 
 
Plaintiffs filed an Ex Parte Application for Leave to File a Motion for 
Reconsideration (“Application”). (Dkt. 141). Plaintiffs seek leave to file a motion 
for reconsideration of the Court’s May 25, 2023 Order dismissing with prejudice 
their claims under California’s Unfair Competition Law (“UCL”), Bus. & Prof. Code 
§§ 17200 et seq. (Dkt. 126 at 31–33). Plaintiffs’ Application is unopposed.  
The Court’s May 25 Order relied on the Ninth Circuit’s decision in Sonner v. 
Premier Nutrition Corp., which held that a plaintiff “must establish that she lacks 
an adequate remedy at law before securing equitable restitution for past harm 
under the UCL.” 971 F.3d 834, 844 (9th Cir. 2020). Applying Sonner to Plaintiffs’ 
claims, the Court found that Plaintiffs failed to state a claim under the UCL 
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because they “plead[ed] claims for equitable relief under the UCL but [didn’t] 
allege inadequate legal remedies.” (See Dkt. 126 at 33). The Court dismissed 
Plaintiffs’ UCL claims with prejudice. (Id.).  
Before a party may file a motion for reconsideration, the party must first 
obtain leave of Court. See Standing Order in Civil Cases 3(e). The Court will grant 
leave to file a motion for reconsideration only if the moving party can show: 
“(1) there is new evidence; or (2) a change in controlling law; or (3) the Court 
committed clear error in making the earlier ruling.”1 Id.  
Plaintiffs argue the Court made four clear errors of law when dismissing their 
UCL claims with prejudice: 
(1) overlooking that Plaintiffs’ UCL claim sought 
prospective injunctive relief based on future irreparable 
harms for which no legal remedies exist; (2) overlooking 
that Plaintiffs’ UCL claim alleged that the Bank’s 
challenged 
practices, 
even 
if 
not 
“unlawful,” are 
nonetheless actionable under the UCL as “unfair” 
practices, for which no legal remedies are available; 
(3) dismissing the UCL claim without leave to amend even 
though, if amendment were permitted, Plaintiffs could 
allege inadequate legal remedies; and (4) dismissing the 
UCL claim with prejudice to Plaintiffs’ ability to refile that 
claim in state court, which is contrary to Ninth Circuit 
precedent governing dismissals for lack of equitable 
jurisdiction. 
(Dkt. 141 at 1 (emphasis in original) (internal citations omitted)).  
// 
// 
// 
 
1 The undersigned judge’s Standing Order in Civil Cases also requires the moving 
party to file their application for leave within 28 days of the order sought to be 
reconsidered and to file a declaration with any such application, as required by 
Civil Local Rule 7.1(i). Plaintiffs’ Application satisfies both requirements.  
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The Court has carefully read its May 25 Order, (Dkt. 126), and Plaintiffs’ 
Application, (Dkt. 141), and finds the May 25 Order didn’t adequately address: 
(1) the distinction between the prospective injunctive relief sought by the MCC 
and the “equitable restitution for past harm” sought in Sonner, 971 F.3d at 844; 
(2) the availability of legal remedies for Defendant Bank of America, N.A.’s 
(“BANA”) allegedly “unfair” practices; (3) whether the MCC’s UCL claim should 
have been dismissed with leave to amend; and (4) whether Ninth Circuit 
precedent requires dismissals for lack of equitable jurisdiction be without 
prejudice.  
Plaintiffs’ Application is GRANTED, and the Court ORDERS as follows: 
1) 
Plaintiffs may file their motion for reconsideration on or before 
August 7, 2023. Plaintiffs’ brief supporting their motion must not 
exceed 20 pages.  
2) 
BANA may file an opposition to Plaintiffs’ motion on or before August 
14, 2023. BANA’s opposition must not exceed 20 pages. 
3) 
Plaintiffs may file a reply to any opposition on or before August 21, 
2023. Plaintiffs’ reply must not exceed 10 pages.  
4) 
The Court sets August 28, 2023 at 11:30 a.m. as a hearing date for 
Plaintiffs’ motion for reconsideration.  
IT IS SO ORDERED. 
Dated:  August 1, 2023 
Hon. Larry Alan Burns 
United States District Judge 
 
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