Response in Opposition re 151 Motion for Reconsideration of Dismissal — In re BofA Unemployment Litigation (Dkt. 158)

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U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 158 · 2023-08-28 · Docket on CourtListener

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BANA’S OPPOSITION TO MOTION FOR RECONSIDERATION  
CASE NO. 21-MD-02992-LAB-MSB 
 
  
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JAMES W. MCGARRY (admitted pro hac vice) 
JMcGarry@goodwinlaw.com 
GOODWIN PROCTER LLP 
100 Northern Avenue 
Boston, MA  02210 
Tel.: +1 617 570 1000 
Fax: +1 617 523 1231 
 
YVONNE W. CHAN (admitted pro hac vice) 
YChan@jonesday.com 
JONES DAY 
100 High Street 
Boston, MA  02110 
Tel.: +1 617 960 3939 
Fax: +1 617 449 6999 
Attorneys for Defendant  
BANK OF AMERICA, N.A. 
 
[ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK] 
 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA  
SAN DIEGO DIVISION 
IN RE: BANK OF AMERICA 
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
Case No. 21-MD-02992-LAB-MSB 
DEFENDANT BANK OF 
AMERICA, N.A.’S OPPOSITION 
TO PLAINTIFFS’ MOTION FOR 
RECONSIDERATION OF 
DISMISSAL WITH PREJUDICE 
OF UCL CLAIM 
Date: 
August 28, 2023 
Time: 
11:30 a.m. 
Ctrm: 
14A – 14th Floor 
Judge: 
Hon. Larry A. Burns 
 
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TABLE OF CONTENTS 
Page 
INTRODUCTION ..................................................................................................... 1 
PROCEDURAL HISTORY ...................................................................................... 1 
ARGUMENT ............................................................................................................. 2 
I. 
Reconsideration Requires An Extraordinary Showing. .................................. 2 
II. 
The MTD Order Is Not Clearly Erroneous. .................................................... 3 
A. 
The MTD Order Did Not Overlook Plaintiffs’ Request for 
Prospective Injunctive Relief. ............................................................... 3 
1. 
The MTD Order Considered And Rejected Plaintiffs’ 
Allegations Regarding Irreparable Harm. .................................. 4 
2. 
Plaintiffs Have No Standing To Seek Further Injunctive 
Relief, In Light of BANA’s CFPB Consent Order. ................... 6 
B. 
The MTD Order Did Not Overlook Plaintiffs’ Allegations 
Regarding The Adequacy of Legal Remedies For BANA’s 
Allegedly “Unfair” Practices. ............................................................... 8 
C. 
It Was Not Clear Error To Deny Plaintiffs Leave To Amend 
Their UCL Claims. ................................................................................ 9 
D. 
It Was Not Clear Error To Dismiss Plaintiffs’ UCL Claims With 
Prejudice. ............................................................................................. 10 
CONCLUSION ........................................................................................................ 10 
 
 
 
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TABLE OF AUTHORITIES 
 
Page(s) 
Federal Cases 
389 Orange St. Partners v. Arnold, 
179 F.3d 656 (9th Cir. 1999) ................................................................................ 2 
Antonyan v. Ford Motor Co., 
No. CV 21-0945-DMG, 2022 WL 1299964 (C.D. Cal. Mar. 30, 
2022) ................................................................................................................. 5, 6 
B.C. v. Plumas Unified Sch. Dist., 
192 F.3d 1260 (9th Cir. 1999) .............................................................................. 6 
Bates v. United Parcel Serv., Inc., 
511 F.3d 974 (9th Cir. 2007) ................................................................................ 6 
Bazarganfard v. Club 360 LLC, 
2023 WL 2354810 (C.D. Cal. Jan. 26, 2023) ....................................................... 8 
Carroll v. Nakatani, 
342 F.3d 934 (9th Cir. 2003) ............................................................................ 2, 3 
Cervantes v. Countrywide Home Loans, Inc., 
656 F.3d 1034 (9th Cir. 2011) .............................................................................. 9 
City of Los Angeles v. Lyons, 
461 U.S. 95 (1983) ............................................................................................... 7 
Elgindy v. AGA Serv. Co., 
No. 20-CV-06304-JST, 2021 WL 1176535 (N.D. Cal. Mar. 29, 
2021) ..................................................................................................................... 9 
Gallagher v. San Diego Unified Port. Dist., 
No. 08CV0886 AJB (WVG), 2011 WL 4014469 (S.D. Cal. Sept. 8, 
2011) ..................................................................................................................... 3 
Goldstein v. General Motors LLC, 
No. 19CV1778-LL-AHG, 2022 WL 484995 (S.D. Cal. Feb. 16, 
2022) ..................................................................................................................... 6 
In re JUUL Labs, Inc., Mktg., Sales Pracs. & Prod. Liab. Litig., 
497 F. Supp. 3d 552 (N.D. Cal. 2020) .............................................................. 8, 9 
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Kona Enter., Inc. v. Estate of Bishop, 
229 F.3d 877 (9th Cir. 2000) ................................................................................ 2 
Polaris Indus. Inc. v. Albright, 
No. 22-987, 2023 WL 3937623 (U.S. June 12, 2023) ....................................... 10 
Shuman v. SquareTrade Inc., 
No. 20-cv-02725-JCS, 2021 WL 5113182 (N.D. Cal. Nov. 3, 2021).............. 8, 9 
Smith v. Clark County School Dist., 
727 F.3d 950 (9th Cir. 2013) ................................................................................ 3 
Sonner v. Premier Nutrition Corp., 
971 F.3d 834 (9th Cir. 2020) ............................................................................ 2, 4 
Stafford v. Rite Aid Corp., 
No. 17-CV-1340 TWR (JLB), 2023 WL 2876109 (S.D. Cal. Apr. 
10, 2023) ........................................................................................................... 4, 5 
 
California Statutes 
California’s Unfair Competition Law (UCL) ................................................... passim 
 
 
 
 
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INTRODUCTION 
Plaintiffs seek the extraordinary remedy of reconsideration because, they say, 
the Court committed “clear error” when it dismissed with prejudice their claims under 
California’s Unfair Competition Law (“UCL”).  But Plaintiffs’ Motion for 
Reconsideration (“Motion” or “Mot.”) (Dkt. No. 151-1) identifies no clear error.  It 
simply rehashes the same arguments Plaintiffs made in opposition to Bank of 
America, N.A.’s (“BANA”) motion to dismiss.  The Court plainly understood that 
Plaintiffs’ UCL claims sought the equitable remedy of a forward-looking injunction.  
See Order Granting in Part and Denying in Part BANA’s Motion to Dismiss (“MTD 
Order”) (Dkt. No. 126) at 33.  But the Court found—correctly—that Plaintiffs had 
not plausibly alleged entitlement to that relief because their Master Consolidated 
Complaint (“MCC”) (Dkt. No. 72) included neither a boilerplate allegation that legal 
remedies are inadequate nor facts to support such an allegation.  See MTD Order at 
33.  Plaintiffs’ Motion offers nothing to support a different result.  It should be denied.   
PROCEDURAL HISTORY 
Plaintiffs’ MCC included a UCL claim alleging that BANA engaged in 
“unfair” and “unlawful” business practices.  MCC ¶¶ 575–584.  In redress, Plaintiffs 
sought, among other things, “injunctive relief (a) prohibiting the Bank from 
continuing its unfair and unlawful business practices, and (b) requiring the Bank to 
take reasonable measures to prevent future unauthorized use of EDD Debit Cards and 
Accounts, and (c) requiring the Bank to ensure timely and adequate processing of 
Cardholders’ claims regarding unauthorized or fraudulent use of their Cards or 
Accounts.”  Id. ¶ 584.  The MCC said nothing more about the UCL injunction, but it 
did request “an order making the existing Preliminary Injunction permanent” in the 
Prayer for Relief.  Id. at Prayer for Relief ¶ 2. 
BANA moved to dismissed Plaintiffs’ UCL claims on the basis that the UCL 
provides only for equitable remedies, not money damages, and Plaintiffs had not pled 
facts that would entitle them to any equitable remedy.  BANA’s Motion to Dismiss 
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(“MTD”) (Dkt. No. 84-1) at 44; see also BANA’s Reply In Further Support of 
Motion to Dismiss (“MTD Reply”) (Dkt. No. 92) at 28.  BANA acknowledged that 
Plaintiffs’ UCL claims sought an “injunction prohibiting unspecified practices and 
requiring unspecified measures,” but BANA argued that Plaintiffs’ vague request did 
not plausibly allege either the inadequacy of legal remedies or Plaintiffs’ standing to  
seek injunctive relief based on the hypothetical risk that Plaintiffs’ accounts will be 
compromised in the future.  See MTD at 44; MTD Reply at 28.  In response, Plaintiffs 
asserted that they had alleged both “unfair” and “unlawful” acts or practices, that it 
was “premature” to conclude that they had an adequate legal remedy, and that “the 
request for injunctive relief seeks to prevent future harm.”  Plaintiffs’ Opposition to 
BANA’s Motion to Dismiss (Dkt. No. 90) at 57–58. 
The Court’s May 25, 2023 Order on BANA’s motion to dismiss held that 
although “the MCC pleads claims for equitable relief under the UCL,” it “doesn’t 
allege inadequate legal remedies,” and therefore “fails to state a UCL claim under 
Sonner [v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020)].”  MTD Order 
at 33.  Plaintiffs now move for reconsideration of that decision.  
ARGUMENT 
I. 
RECONSIDERATION REQUIRES AN EXTRAORDINARY SHOWING. 
Reconsideration is an “extraordinary remedy, to be used sparingly in the 
interests of finality and conservation of judicial resources.”  Carroll v. Nakatani, 
342 F.3d 934, 945 (9th Cir. 2003); see also 389 Orange St. Partners v. Arnold, 
179 F.3d 656, 665 (9th Cir. 1999).  Due to the exceptional nature of reconsideration, 
it is only appropriate in limited circumstances, and this Court’s Standing Order 
expressly disfavors such requests, providing for their summary denial in the absence 
of (1) new evidence, (2) a change in controlling law, or (3) clear error.  See S.D. Cal. 
Judge Larry Alan Burns, “Standing Order in Civil Cases” § 3(e); see also Kona 
Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).  Plaintiffs concede 
there is no newly discovered evidence or change of law here.  Plaintiffs argue only 
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that the Court’s decision to dismiss Plaintiffs’ UCL claims with prejudice was clear 
error.  Mot. at 6. 
“Clear error occurs when ‘the reviewing court on the entire record is left with 
the definite and firm conviction that a mistake has been committed.’”  Smith v. Clark 
County School Dist., 727 F.3d 950, 955 (9th Cir. 2013), citing U.S. v. U.S. Gypsum 
Co., 333 U.S. 364, 395 (1948).  “Mere disagreement with a court’s analysis in a 
previous order is not a sufficient basis for reconsideration.  Nor does reassertion of 
arguments already extended and rejected provide an appropriate justification for 
reconsidering the Court’s Order.”  Gallagher v. San Diego Unified Port. Dist., 
No. 08CV0886 AJB (WVG), 2011 WL 4014469, at *2 (S.D. Cal. Sept. 8, 2011).   
II. 
THE MTD ORDER IS NOT CLEARLY ERRONEOUS. 
With respect to the UCL claim, the MTD Order is correct and contains no 
error, let alone clear error justifying the “extraordinary remedy” of reconsideration.  
See Carroll, 342 F.3d at 945.  Plaintiffs’ Motion identifies four purported “clear 
errors of law,” asserting that the Court “overlook[ed]” that (A) Plaintiffs’ UCL claim 
sought “prospective injunctive relief” and (B) challenged “unfair” business practices, 
for which no legal remedies are available, and that Plaintiffs should have been 
(C) given leave to amend their UCL allegations in this action or (D) permitted to re-
file their UCL claims in state court.  Mot. at 6.  None of these arguments justify 
reconsideration.     
A. 
The MTD Order Did Not Overlook Plaintiffs’ Request for 
Prospective Injunctive Relief. 
Plaintiffs’ first argument for reconsideration of the MTD Order is that the 
Court committed clear error by failing to consider that Plaintiffs said in the MCC that 
they were continuing to suffer “irreparable harm” and “irreparable injury” (Mot. at 
9) and that Plaintiffs’ UCL claims sought “injunctive relief to prevent future harm” 
(id. at 11).  Not so.  First, the Court did consider Plaintiffs’ request “for equitable 
relief under the UCL,” but nonetheless found that the MCC lacked the plausible 
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allegations of “inadequate legal remedies” required to state a UCL claim based on 
the standard set by the Ninth Circuit in Sonner.  MTD Order at 33.  Second, Plaintiffs 
have no standing to seek a further prospective injunction against BANA, as BANA’s 
July 2022 consent order with the CFPB already permanently enjoins the business 
practices Plaintiffs complain about.   
1. 
The MTD Order Considered And Rejected Plaintiffs’ 
Allegations Regarding Irreparable Harm.   
The MTD Order correctly held that, under Sonner, a complaint does not state 
a claim under the UCL “if the pleading does not demonstrate the inadequacy of a 
legal remedy.”  MTD Order at 33 (emphasis added), quoting Sharma v. Volkswagen 
AG, 524 F. Supp. 3d 891, 907 (N.D. Cal. 2021).  Plaintiffs concede that the MCC 
“did not contain” any allegation that legal remedies were inadequate.  Mot. at 9.  They 
nonetheless argue that the MCC “fully satisfied Sonner by repeatedly alleging that 
Plaintiffs were continuing to suffer ‘irreparable harm’ (MCC ¶¶5, 285) and 
‘irreparable injury’ (MCC ¶¶9–33)” (Mot. at 9) and by requesting injunctive relief 
(id. at 11).  Plaintiffs’ arguments are without merit. 
Sonner requires a UCL plaintiff to “plausibly allege ‘an inadequate remedy at 
law’ before pursuing equitable relief in the form of restitution or an injunction.”  
Stafford v. Rite Aid Corp., No. 17-CV-1340 TWR (JLB), 2023 WL 2876109 (S.D. 
Cal. Apr. 10, 2023) (emphasis added), quoting Shay v. Apple Inc., No. 20CV1629-
GPC (BLM), 2021 WL 1733385, at *5 (S.D. Cal. May 3, 2021).  As a threshold 
matter, Plaintiffs’ failure to include any allegation—not even a “boilerplate 
allegation”—that legal remedies were inadequate renders the MCC facially deficient.  
On this point, Sonner is clear.  The Ninth Circuit found the UCL claim insufficient 
because “the operative complaint does not allege that [the plaintiff] lacks an adequate 
legal remedy.”  Sonner, 971 F.3d at 844.  Courts in this district have followed suit.  
For example, in Stafford, the court dismissed the UCL claim as “facially deficient” 
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because the operative complaint “[did] not even contain the phrase ‘inadequate 
remedy at law.’”  Stafford, 2023 WL 2876109, at *4 (emphasis added).1 
Plaintiffs’ conclusory allegations in the MCC of “irreparable injury” and 
“irreparable harm” do not plausibly allege an inadequate remedy at law.  Plaintiffs 
specifically point to MCC paragraphs 5, 9–33, and 285, but none of these allegations 
are adequate—merely repeating the words “irreparable harm” or “irreparable injury” 
does not alone suffice to plausibly plead that no legal remedy exists.  The MCC 
paragraphs Plaintiffs cite do no more than generally allege that Plaintiffs have 
suffered “irreparable” harm without any indication as to why a legal remedy cannot 
address that harm.2  As Plaintiffs concede, “[w]hat matters is . . . whether they ‘allege 
facts suggesting that damages are insufficient.’”  Mot. at 9 (emphasis added), citing 
Antonyan v. Ford Motor Co., No. CV 21-0945-DMG (RAOx), 2022 WL 1299964 
(C.D. Cal. Mar. 30, 2022).  There are no factual allegations in the MCC 
demonstrating that legal remedies are inadequate, and Plaintiffs do not (and cannot) 
direct the Court to any.   
Plaintiffs’ cited case, Antonyan, proves the point.  The complaint in that case, 
like the MCC, merely alleged irreparable harm in a conclusory and vague manner, 
and sought to enjoin future violations of the UCL.  See Antonyan Complaint, 
No. CV 21-0945-DMG (RAOx) (Dkt. No. 17) ¶ 131 (“Plaintiff requests that this 
 
1 Plaintiffs’ addition of the “boilerplate allegation” to their First Amended Master 
Consolidated Complaint that “legal remedies are inadequate to prevent future harm 
from the Bank’s unlawful and unfair conduct” (First Amended Master Consolidated 
Complaint (“FAMCC”) (Dkt. No. 136) ¶ 285) is still insufficient because Plaintiffs 
must plausibly allege with facts why money damages are inadequate.   
2 See, e.g., MCC ¶ 5 (Defendant’s “acts and omissions have caused substantial 
financial and other harm to Plaintiffs and Class Members, and unless promptly 
enjoined will cause them and the public to suffer immediate and irreparable harm.”); 
¶¶ 9–33 (Defendant “failed to comply with its legal obligations as alleged herein, 
causing [class representative plaintiff] to suffer immediate and irreparable injury.”); 
and ¶ 285 (“Plaintiffs and Class Members have been deprived of unemployment 
benefits and other public benefits to which they are entitled by law, for weeks or 
months, causing them great, immediate, and irreparable harm.”).  
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Court . . . enjoin Defendant from continuing these unfair practices in violation of the 
UCL in the future.  Otherwise, Plaintiff and the broader general public will be 
irreparably harmed and/or denied an effective and complete remedy.”).  The court 
found that there was “nothing in [the complaint] to suggest that damages would fail 
to make [plaintiff] whole” and dismissed the UCL claims.  Antonyan, 2022 WL 
1299964, at *6 (emphasis added).  Similarly, here, Plaintiffs allege no facts to suggest 
that damages would not make them whole—particularly where the crux of their 
complaint is that they were deprived of money. 
On this record, the Court’s decision to dismiss the UCL claims was not clear 
error, and Plaintiffs’ request to reconsider that decision should be denied.   
2. 
Plaintiffs Have No Standing To Seek Further Injunctive 
Relief, In Light of BANA’s CFPB Consent Order. 
Finally, even assuming, arguendo, that Plaintiffs’ conclusory allegations about 
“irreparable harm” and “irreparable injury” and request for a vague, unspecified UCL 
“injunction” are sufficient to plausibly allege that Plaintiffs lack an adequate legal 
remedy (they are not), that would not be the end of the inquiry.  Plaintiffs “must also 
have standing to assert injunctive relief premised on future harm.”  Goldstein v. 
General Motors LLC, No. 19CV1778-LL-AHG, 2022 WL 484995, at *7 (S.D. Cal. 
Feb. 16, 2022); see also B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th 
Cir. 1999).  The MCC does not plausibly allege that Plaintiffs have standing to seek 
further injunctive relief, and Plaintiffs have no such standing as a matter of fact. 
To establish standing, among other requirements, “[t]he plaintiff must 
demonstrate that he has suffered or is threatened with a ‘concrete and particularized’ 
legal harm coupled with ‘a sufficient likelihood that he will again be wronged in a 
similar way,’” and that the plaintiff’s alleged “injury is ‘likely’ to be ‘redressed by a 
favorable decision.’”  Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 
2007) (emphasis added), quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 
(1992).  Further, “[p]ast exposure to illegal conduct does not in itself show a present 
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case or controversy regarding injunctive relief . . . if unaccompanied by any 
continuing, present adverse effects.”  City of Los Angeles v. Lyons, 461 U.S. 95, 102 
(1983), quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974).   
As explained above, the UCL injunction sought by the MCC would enjoin 
BANA from a number of unspecified business practices, see MCC at ¶ 584, that 
Plaintiffs still have not identified—not even in their latest FAMCC.  Indeed, the only 
specificity about the prospective injunction that Plaintiffs seek is their request in the 
Prayer for Relief for “an order making the existing Preliminary Injunction 
permanent.”  Id. at Prayer for Relief ¶ 2.  However, Plaintiffs cannot plausibly allege 
a threat of future harm that could possibly be remedied by making the existing 
Preliminary Injunction permanent.  As Plaintiffs know, and even themselves brought 
to the attention of the Court (see Plaintiffs’ Notice of Request for Status Conference 
(Dkt. No. 106)), since July 2022, BANA has been subject to a regulatory Consent 
Order with the CFPB that already permanently enjoins the business practices 
complained about in the MCC and addressed by the Preliminary Injunction.  For 
example, the Preliminary Injunction precludes BANA from using the fraud filter to 
deny EDD cardholders’ unauthorized transaction claims or freeze EDD cardholders’ 
accounts, and it further requires BANA to take steps to ensure adequate customer 
service for EDD cardholder accounts.  See Preliminary Injunction (Dkt. No. 72) 
Ex. A.  The Consent Order imposes these same requirements, among others.  See 
Consent Order (Dkt. No. 106) Ex. 1).3  Plaintiffs do not seek to require BANA to do 
anything beyond what it has been ordered to do by its federal regulators, and in any 
event, neither the MCC nor the FAMCC contains any plausible allegations to support 
such a request.   
 
3 Simultaneous with the CFPB Consent Order, the OCC also ordered BANA to 
provide remediation to EDD cardholders.  See Plaintiffs’ Notice of Request for Status 
Conference (Dkt. No. 106) at 2.  Plaintiffs acknowledge that, like the CFPB Consent 
Order, the OCC Order also “substantially overlaps with many of the claims and 
requests for relief at issue in this Multi-District Litigation.”  Id. 
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B. 
The MTD Order Did Not Overlook Plaintiffs’ Allegations 
Regarding The Adequacy of Legal Remedies For BANA’s 
Allegedly “Unfair” Practices. 
Plaintiffs’ next argument for reconsideration is that the Court committed clear 
error by failing to consider whether they alleged an inadequate legal remedy for the 
allegedly “unfair” business practices challenged in the MCC (as there is quite 
obviously an adequate legal remedy for the allegedly “unlawful” challenged business 
practices).  Mot. at 11–14.  Plaintiffs are also wrong under this argument. 
In order to obtain leave to file this motion, Plaintiffs cited Shuman v. 
SquareTrade Inc., No. 20-cv-02725-JCS, 2021 WL 5113182 (N.D. Cal. Nov. 3, 
2021) and In re JUUL Labs, Inc., Mktg., Sales Pracs. & Prod. Liab. Litig., 
497 F. Supp. 3d 552, 639 (N.D. Cal. 2020) for the general rule that where a claim for 
restitution under the UCL is based on a different theory than the complaint’s legal 
claims, the UCL claim is not barred.  Application for Leave to File Motion for 
Reconsideration (Dkt. No. 141) at 5.  This undermines—not supports—Plaintiffs’ 
argument.  Plaintiffs point to nothing in the MCC to demonstrate that their UCL 
claims relying on “unfair” conduct are based on a different theory than the MCC’s 
many other claims seeking monetary damages, nor do they identify any different 
theory for their “unfair” claim.  Indeed, they concede that the challenged practices 
underlying both the “unlawful” and “unfair” prongs of the UCL are the same.  Mot. 
at 13 (arguing that MCC asks the Court to find the same business practices to be 
either “unlawful” and/or “unfair”).   
A plaintiff cannot maintain a UCL “unfair” claim simply as a back-up in the 
event that their legal claims based on the same facts and theories of liability fail.  
Shuman rejected the argument that a UCL claim can be maintained in these 
circumstances, dismissing the plaintiff’s “unfair” UCL claim because it was based 
on the same factual predicate and theory as the plaintiff’s breach of contract claim.  
Shuman, 2021 WL 5113182, at *11; see also Bazarganfard v. Club 360 LLC, 
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2023 WL 2354810, at *13 (C.D. Cal. Jan. 26, 2023) (plaintiff failed to demonstrate 
he had no adequate remedy at law where his UCL claims under the unlawful and 
unfair prongs were based on the same theory underlying his claim for damages).  
Plaintiffs’ other cited case, In re JUUL Labs, also confirms that allegations regarding 
“unfair” conduct cannot be “coextensive with plaintiffs’ legal claims.”  In re JUUL 
Labs, 497 F. Supp. 3d at 639.   
Perhaps realizing that it runs counter to their position, Plaintiffs abandon 
Shuman in their Motion, relying instead on Elgindy v. AGA Serv. Co., No. 20-CV-
06304-JST, 2021 WL 1176535 (N.D. Cal. Mar. 29, 2021), which Shuman itself cites.  
But Elgindy offers no help to Plaintiffs.  First, the quote from Elgindy that Plaintiffs 
cite is from the court’s discussion of the “fraudulent prong” of the UCL, which is not 
at issue here.  Mot. at 13, quoting Elgindy, 2021 WL 1176535, at *15.  Second, the 
reason the Elgindy court found that the plaintiffs lacked an adequate legal remedy 
was because the legal claims “rooted in the same theory” as the “fraudulent” UCL 
claims, had been dismissed for failure to state a claim.  2021 WL 1176535, at *15.  
Plaintiffs misleadingly suggest that the Elgindy court allowed “unfair” UCL claims 
to proceed alongside legal claims “rooted in the same theory,” (Mot. at 13), but it did 
no such thing.   
C. 
It Was Not Clear Error To Deny Plaintiffs Leave To Amend Their 
UCL Claims. 
Next, Plaintiffs argue that it was clear error for the Court to deny them leave 
to amend their UCL claims.  Mot. at 14–15.  Again, Plaintiffs are incorrect.  Although 
it is true that leave to amend should be given freely, dismissal without leave is 
appropriate “where a plaintiff’s proposed amendments would fail to cure the pleading 
deficiencies and amendment would be futile.”  Cervantes v. Countrywide Home 
Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011).   
Plaintiffs say—without support—that they “could amend their UCL claims to 
allege the inadequacy of legal remedies.”  Mot. at 15.  But the only amendment that 
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Plaintiffs could (and did) make on this point in the FAMCC was to add the boilerplate 
allegation that “legal remedies are inadequate to prevent future harm.”  FAMCC 
¶ 285.  This is not enough.  Neither the FAMCC nor Plaintiffs’ Motion contain any 
additional facts to explain why legal remedies are inadequate or describe the nature 
of the alleged irreparable harm Plaintiffs face as a result of alleged UCL violations.  
As discussed above, Plaintiffs must allege facts that plausibly suggest their 
entitlement to the relief they seek.  They have now had two opportunities to identify 
any such facts to support their conclusory allegations (once in the FAMCC and once 
in the Motion), and failed to do so both times.  The Court’s decision to dismiss the 
UCL claims without leave to amend in the MTD Order was not clear error, and 
Plaintiffs fail to provide a reason to reconsider that decision now.  
D. 
It Was Not Clear Error To Dismiss Plaintiffs’ UCL Claims With 
Prejudice.   
Finally, Plaintiffs argue that “binding Ninth Circuit precedent” requires that 
the Court dismiss the UCL claims “without prejudice to refiling the same claim in 
state court.”  Mot. at 16 (emphasis in original), quoting Guzman v. Polaris Indus. 
Inc., 49 F.4th 1308, 1314 (9th Cir. 2022), cert. denied sub nom. Polaris Indus. Inc. 
v. Albright, No. 22-987, 2023 WL 3937623 (U.S. June 12, 2023).  For the reasons 
stated above, and in BANA’s motion to dismiss (see generally MTD at 43–47), 
Plaintiffs have not and cannot adequately plead their claims for a violation of the 
UCL, and therefore the Court’s decision to dismiss those claims with prejudice was 
not clear error.   
CONCLUSION 
For the foregoing reasons, BANA respectfully requests that the Court deny 
Plaintiffs’ Motion. 
 
 
 
 
 
 
 
 
 
Dated:  August 14, 2023 
Respectfully submitted, 
 
 
 
 
By: s/ James W. McGarry 
 
 
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JAMES W. MCGARRY (pro hac vice) 
JMcGarry@goodwinlaw.com 
GOODWIN PROCTER LLP 
100 Northern Avenue 
Boston, MA  02210 
Tel.: +1 617 570 1000 
Fax: +1 617 523 1231 
 
THOMAS M. HEFFERON (pro hac vice) 
THefferon@goodwinlaw.com 
GOODWIN PROCTER LLP 
1900 N St. NW  
Washington, DC 20036  
Tel: +1 202 346 4000  
Fax: +1 202 346 4444 
 
YVONNE W. CHAN (pro hac vice) 
YChan@jonesday.com 
JONES DAY 
100 High Street 
Boston, MA  02110 
Tel.: +1 617 960 3939 
Fax: +1 617 449 6999 
 
JANICE P. BROWN (SBN 114433) 
jbrown@myersnave.com 
MATTHEW B. NAZARETH (SBN 278405) 
mnazareth@myersnave.com 
MEYERS NAVE 
600 B Street, Suite 1650 
San Diego, CA 92101 
 
Attorneys for Defendant 
BANK OF AMERICA, N.A. 
 
 
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CERTIFICATE OF SERVICE 
I hereby certify that I electronically filed the foregoing with the clerk of the 
court for the United States District Court for the Southern District of California by 
using the CM/ECF system on August 14, 2023.  I further certify that all participants 
in the case are registered CM/ECF users and that service will be accomplished by the 
CM/ECF system.  I certify under penalty of perjury that the foregoing is true and 
correct. 
 
 
Executed: 
August 14, 2023 
 
s/James W. McGarry  
 
 
 
JAMES W. McGARRY 
 
 
 
 
 
  
 
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