Reply to Response to Motion re 151 Motion for Reconsideration — In re BofA Unemployment Litigation (Dkt. 161)

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U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 161 · 2023-08-28 · Docket on CourtListener

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Pls.’ Reply ISO Motion for Reconsideration of Dismissal of UCL Claim 
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JOSEPH W. COTCHETT (SBN 36324) 
jcotchett@cpmlegal.com 
BRIAN DANITZ (SBN 247403) 
bdanitz@cpmlegal.com 
KARIN B. SWOPE (Pro Hac Vice) 
kswope@cpmlegal.com 
ANDREW F. KIRTLEY (SBN 328023) 
akirtley@cpmlegal.com 
COTCHETT, PITRE & McCARTHY, LLP 
840 Malcolm Road, Suite 200 
Burlingame, CA 94010 
Telephone: (650) 697-6000 
Fax: (650) 697-0577
MICHAEL RUBIN (SBN 80618) 
mrubin@altber.com 
STACEY M. LEYTON (SBN 203827) 
sleyton@altber.com 
MATTHEW MURRAY (SBN 271461) 
mmurray@altber.com 
CONNIE K. CHAN (SBN 284230) 
cchan@altber.com 
ALTSHULER BERZON LLP 
177 Post Street, Suite 300 
San Francisco, CA 94108 
Telephone: (415) 421-7151 
Fax: (415) 362-8064
 
Co-Lead Counsel for Plaintiffs and the Proposed Class  
(Additional Counsel Listed Below) 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
IN RE BANK OF AMERICA 
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
Case No. 3:21-md-02992-LAB-MSB 
 
PLAINTIFFS’ REPLY IN SUPPORT OF 
MOTION FOR RECONSIDERATION 
OF DISMISSAL WITH PREJUDICE 
OF UCL CLAIM 
 
This Document Relates to All Actions 
 
Date: 
August 28, 2023 
Time: 
11:30 a.m. 
Dept. 
Courtroom 14A, 14th Floor  
Judge: 
Hon. Larry Alan Burns 
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Pls.’ Reply ISO Motion for Reconsideration of Dismissal of UCL Claim 
 
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TABLE OF CONTENTS 
Page 
 
I. 
INTRODUCTION .............................................................................................................. 1 
II. 
ARGUMENT ....................................................................................................................... 2 
A. 
The Court should reconsider dismissal of the UCL claims for injunctive 
relief because damages are inadequate to prevent future harm. ................ 2 
1. 
Reconsideration is appropriate because the Court did not address,  
much less reject, Plaintiffs’ injunctive relief argument...................... 2 
2. 
The Bank’s argument that the CFPB Order deprives Plaintiffs  
of standing to seek injunctive relief is procedurally improper  
and misrepresents the CFPB Order. ................................................... 4 
B. 
There is no adequate legal remedy for the Bank’s conduct that,  
although not “unlawful,” violates the UCL because it is “unfair.” ............ 7 
C. 
It was clear error to deny Plaintiffs leave to amend their UCL claim  
to allege inadequate legal remedies more specifically. .............................. 9 
D. 
It was clear error to dismiss the UCL claim with prejudice for lack  
of equitable jurisdiction. ........................................................................... 10 
III. 
CONCLUSION .................................................................................................................. 10 
 
 
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Pls.’ Reply ISO Motion for Reconsideration of Dismissal of UCL Claim 
 
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TABLE OF AUTHORITIES 
 
Page(s) 
Cases 
Antonyan v. Ford Motor Co., 
No. 21-cv-0945-DMG-RAO, 2022 WL 1299964 (C.D. Cal. Mar. 30, 2022) ............ 4 
In re Bank of Am., N.A., 
No. 2022-CFPB-0004, Dkt. 1 (C.F.P.B. July 14, 2022) ................................. passim 
Bazarganfard v. Club 360 LLC, 
No. 21-cv-02272-CMB-PLA, 2023 WL 2354810 (C.D. Cal. Jan. 26, 2023) ............. 9 
Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tele. Co., 
20 Cal.4th 163 (1999) ............................................................................................... 7 
Elgindy v. AGA Serv. Co., 
No. 20-cv-06304-JST, 2021 WL 1176535 (N.D. Cal. Mar. 29, 2021) .................... 9 
Newmark Realty Cap., Inc. v. BGC Partners, Inc., 
No. 16-CV-01702-BLF, 2017 WL 8294275 (N.D. Cal. Dec. 6, 2017) ................... 5 
Shuman v. SquareTrade Inc., 
No. 20-cv-02725-JCS, 2021 WL 5113182 (N.D. Cal. Nov. 3, 2021) ..................... 8 
Smith v. Premiere Valet Servs., Inc., 
No. 19-cv-09888-CJC-MAA, 2020 WL 7034346 (C.D. Cal. Aug. 4, 2020)........... 5 
Stafford v. Rite Aid Corp., 
No. 17-cv-01340-TWR-JLB, 2023 WL 2876109 (S.D. Cal. Apr. 10, 2023) ...... 3, 4 
Trading Bay Energy Corp. v. Union Oil Co. of California, 
225 F. App'x 428 (9th Cir. 2006) ............................................................................. 4 
Zuniga v. Bank of Am., N.A., 
No. 14-cv-06471-MWF, 2014 WL 7156403 (C.D. Cal. Dec. 9, 2014) ................... 8 
 
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I. 
INTRODUCTION 
In their opening brief, Plaintiffs demonstrated four independent reasons why 
the Court should reconsider its dismissal of Plaintiffs’ UCL claim with prejudice. See 
Dkt. 151-1 (“Mot.”). First, the Court overlooked that the UCL claim sought prospective 
injunctive relief based on future irreparable harms, for which no legal remedies exist. 
See Dkt. 72, Master Consolidated Complaint (“MCC”) ¶¶5, 9–33, 111–13, 285, 584. 
Second, the UCL claim alleged that the Bank’s challenged practices, even if not 
“unlawful,” are independently actionable under the UCL as “unfair” practices, for 
which no legal remedies are available. Third, the Court dismissed the UCL claim 
without leave to amend even though, if amendment were permitted, Plaintiffs could 
allege inadequate legal remedies. Fourth, dismissal of the UCL claim with prejudice 
is contrary to Ninth Circuit precedent governing dismissals for lack of equitable 
jurisdiction. Plaintiffs also showed that the MCC’s allegations amply supported their 
requests for prospective injunctive relief under both prongs of their UCL claim, and 
for equitable restitution under the UCL’s unfairness prong. 
The Bank’s opposition ignores the MCC’s actual allegations and relies on case 
law that supports, rather than undercuts, Plaintiffs’ arguments. See Dkt. 158 (“Opp.”). 
The Bank also attempts improperly to use its opposition brief as a motion seeking, for 
the first time, dismissal of Plaintiffs’ requests for injunctive relief based on the July 
2022 CFPB Order. The Bank argues, in cursory fashion, that unspecified provisions in 
the 48-page CFPB Order have secured all the injunctive relief sought in the MCC, 
depriving Plaintiffs of standing to seek an injunction. The argument is both 
procedurally improper and factually incorrect.  
For the reasons stated in Plaintiffs’ Motion for Reconsideration (“Motion”) and 
below, the Court should grant the Motion and permit Plaintiffs’ UCL unlawful-and-
unfair prong claims for prospective injunctive relief, and their UCL unfair-prong 
claim for restitution, to proceed on the merits. 
 
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II. 
ARGUMENT 
A. 
The Court should reconsider dismissal of the UCL claims for 
injunctive relief because damages are inadequate to prevent 
future harm. 
In their Motion, Plaintiffs showed that “retrospective damages are not an 
adequate remedy for the prospective harm that injunctions are designed to prevent.” 
Mot. at 5–6 (collecting cases, including Graham, Warren, Dekker, Souter, Brooks, and 
Andino). The Bank does not dispute this controlling principle. Instead, it falsely asserts 
that the MCC contains only boilerplate allegations of irreparable harm, when in fact the 
MCC alleges detailed and extensive facts—including by incorporating the Preliminary 
Injunction’s factual findings based on evidence—demonstrating that Plaintiffs have 
suffered and will continue to suffer irreparable harm unless the Bank is permanently 
enjoined. Mot. at 4–5 (citing MCC ¶¶5, 9–33, 109, 285 & Ex. A at 2). While the Bank 
also falsely asserts that the CFPB Consent Order (entered nearly one year after the MCC 
was filed) will provide Plaintiffs all the injunctive relief they need, that argument is both 
procedurally improper and factually incorrect. 
1. Reconsideration is appropriate because the Court did not 
address, much less reject, Plaintiffs’ injunctive relief argument. 
The Bank provides no response to Plaintiffs’ point that damages are necessarily 
inadequate to prevent future harm. See Opp. at 4–7. Instead, it asserts generic arguments 
that ignore the record and the MCC’s allegations.  
The Bank asserts that reconsideration is unwarranted because the Court “plainly 
understood that Plaintiffs’ UCL claims sought … a forward-looking injunction” when 
it dismissed the UCL claim. Opp. at 1:7–10 (citing MTD Order at 33). But the cited 
portion of the MTD Order makes no mention of injunctive relief, and the Bank’s 
argument ignores the Court’s express acknowledgment that “the May 25 Order didn’t 
adequately address … the distinction between the prospective injunctive relief sought 
by the MCC and the ‘equitable restitution for past harm’ sought in Sonner.” Dkt. 148 
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(Order Granting Leave to File) at 3. The issue addressed in the May 25 MTD Order 
was limited to whether Plaintiffs had pleaded inadequate legal remedies with respect 
to their UCL unlawful-prong claim for restitution; it did not address Plaintiffs’ 
separate request for prospective injunctive relief. See MTD Order at 31–33.  
Next, the Bank asserts that the MCC contains only “conclusory allegations,” and 
that it lacks “factual allegations … demonstrating that legal remedies are inadequate, 
and Plaintiffs do not (and cannot) direct the Court to any.” Opp. at 5:3, 5:13–15. That is 
plainly wrong. The MCC includes detailed allegations that the Bank continues to engage 
in specifically designated unlawful and unfair practices that will cause future harm if not 
enjoined. See, e.g., Mot. at 2 n.1 (citing MCC ¶¶ 51, 56, 107, 111–12, 542, 584); see 
also FAMCC ¶¶285, 575 (alleging “the Bank’s unlawful and unfair conduct … is or 
would be ongoing but for the preliminary injunction”). 
Curiously, the Bank also asserts that the MCC fails to specify which of the 
Bank’s practices are allegedly unfair or unlawful, Opp. at 7 (citing ¶584), even though 
the MCC includes lengthy paragraphs making those precise allegations in detail. See, 
e.g., MCC ¶577(a)–(o) (alleging that 15 specific Bank practices are “unfair”); ¶¶579–
82 (alleging specific Bank practices that are “unlawful”); see also Dkt. 90 (MTD MCC 
Opp.) at 40 n.41 (summarizing the Bank practices the MCC alleges are “unfair”). 
Instead of addressing those detailed allegations, the Bank focuses exclusively on the 
final summary paragraph of the UCL claim (MCC ¶584), as if that were the only 
paragraph containing charging allegations. See Opp. at 7:7 (complaining that MCC 
¶584 seeks to enjoin “unspecified business practices”). This is not a proper argument. 
The Bank’s case citations are similarly misleading. For example, the Bank cites 
Stafford v. Rite Aid Corp., No. 17-cv-01340-TWR-JLB, 2023 WL 2876109, at *4 
(S.D. Cal. Apr. 10, 2023), for the proposition that a claim for relief under the UCL 
must be dismissed if there is no express allegation that plaintiffs have an “inadequate 
remedy at law.” Opp. at 5:1–2. That is not what the court held, which was that 
plaintiffs could not proceed on their “equitable claims for alleged past harm” (i.e., 
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restitution) because they had not established an inadequate remedy at law for that form 
of relief. The court denied defendants’ motion to dismiss the UCL with respect to 
plaintiffs’ “claims for future equitable relief” (and even as to the restitution claim, the 
court granted plaintiffs leave to amend). See Stafford, 2023 WL 2876109, at *5, *6.  
The Bank also cites Antonyan v. Ford Motor Co., No. 21-cv-0945-DMG-RAO, 
2022 WL 1299964, at *6 (C.D. Cal. Mar. 30, 2022). See Opp. at 5–6. But the fact-
specific ruling in that case focused almost entirely on the implausibility of the 
plaintiff’s inadequate-relief theory. The plaintiff in Antonyan was a car owner whose 
vehicle broke down while under warranty; the defendant manufacturer repaired the 
car free of charge. 2022 WL 1299962, at *1. After the plaintiff sued seeking damages 
as well as restitution, the court concluded there was no basis for awarding restitution 
because the complaint contains “nothing … to suggest that damages would fail to 
make [the plaintiff] whole.” Id. at *6. Further, there was no basis for injunctive relief 
because plaintiff’s “car has been fixed, and there is no allegation that it will break 
down again.” Id. The allegations and claims in Antonyan bear little resemblance to 
those at issue here. 
2. The Bank’s argument that the CFPB Order deprives Plaintiffs 
of standing to seek injunctive relief is procedurally improper 
and misrepresents the CFPB Order. 
The Bank next argues that Plaintiffs lack standing to seek reconsideration 
because in July 2022—nearly a year after the August 2021 MCC—the Bank entered 
into a Consent Order with the CFPB, in which the Bank agreed to some forms of 
injunctive relief. Opp. at 6–7, referring to In re Bank of Am., N.A., No. 2022-CFPB-
0004, Dkt. 1 (C.F.P.B. July 14, 2022) (“CFPB Order”).  
First, the Bank’s argument is procedurally improper. This is a motion for 
reconsideration based on the Court’s dismissal of allegations filed long before the 
CFPB Order; new arguments based on post-complaint facts and entirely new legal 
theories are not appropriately considered. See, e.g., Trading Bay Energy Corp. v. 
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Union Oil Co. of California, 225 F. App’x 428, 430 (9th Cir. 2006); Newmark Realty 
Cap., Inc. v. BGC Partners, Inc., No. 16-CV-01702-BLF, 2017 WL 8294275, at *2 
(N.D. Cal. Dec. 6, 2017). Not only is the CFPB Order neither attached to, nor 
referenced in, the MCC (nor could it have been, since it didn’t exist at the time), but 
even now, the Bank has not cited or quoted any of the CFPB Order’s relevant 
provisions. Nor has it sought leave to submit the CFPB Order or to file supplemental 
briefing regarding its contents. 
Of course, the Bank could have cited specific provisions in the CFPB Order to 
the Court, and could have preserved its argument that the CFPB Order precludes 
injunctive relief in this case—either by seeking leave to file supplemental briefing in 
connection with its first motion to dismiss the MCC before that motion was decided, 
or by raising the argument in its recent motion to dismiss the FAMCC (Dkt. 146), 
which the Bank filed a month before filing its Opposition (Dkt. 158) to the present 
Motion. After all, there are claims for prospective injunctive relief that survived 
dismissal in the FAMCC. See, e.g., MTD Order at 44–46. But the Bank failed to 
include this argument as part of either of its motions to dismiss and should not be 
allowed to assert it for the first time here in an opposition brief to Plaintiffs’ Motion. 
See, e.g., Smith v. Premiere Valet Servs., Inc., No. 19-cv-09888-CJC-MAA, 2020 WL 
7034346, at *14 (C.D. Cal. Aug. 4, 2020) (collecting cases ruling that “a request for 
affirmative relief is not proper when raised for the first time in an opposition”). 
Even if the Court were to ignore all of these procedural improprieties and 
consider the Bank’s argument based on the CFPB Order, the Bank is simply wrong 
on the facts. The Bank argues, without citation, that Plaintiffs lack standing to seek to 
enjoin any of “the business practices complained about in the MCC” because all those 
business practices are the exact same business practices as those at issue in, and 
“already permanently enjoin[ed]” by, the CFPB Order. Opp. at 7:14–15; see also Opp. 
at 7:21–24 (arguing, also without citations, that “Plaintiffs do not seek to require 
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BANA to do anything beyond what it has been ordered to do by its federal 
regulators”). But this is demonstrably false.  
The CFPB Order concerns only five specific business practices that violate the 
letter or spirit of EFTA and its Regulation E, and is thus much narrower in scope than 
the MCC. Compare CFPB Order at pp. 1–2 (listing the five business practices at issue 
as the Bank denying EFTA claims and freezing accounts “based solely on the results 
of [BofA’s] automated Fraud Filter,” “fail[ing] to conduct reasonable investigations” 
of EFTA claims, “retroactively applying its automated Fraud Filter to reverse 
permanent credits” for EFTA claims, “impeding … cardholders’ efforts to file” EFTA 
claims, and “fail[ing] to timely investigate and resolve” cardholders’ EFTA claims), 
with, e.g., MCC ¶577 (alleging 15 “unfair” practices that go far beyond EFTA-related 
misconduct, including failure to secure personal information, issuance of debit cards 
without industry-standard EMV chips, false representations to cardholders about fraud 
protection, and failure to take reasonable steps to monitor for and prevent unauthorized 
transactions), ¶¶579–82 (alleging “unlawful” practices that include all those practices 
that are the subject of Plaintiffs’ other claims for relief, as well as data-security 
violations under the GLBA and CFIPA), ¶584 (seeking to enjoin the Bank’s unfair 
and unlawful practices, including by requiring the Bank to take reasonable steps “to 
prevent future unauthorized use of … Cards and Accounts”), and MCC Prayer ¶2 & 
Ex. B (seeking an order making permanent the Preliminary Injunction, which includes 
detailed customer service provisions at ¶¶8–10 that go far beyond what is required 
under the CFPB Order). Additionally, the MCC’s proposed class includes several 
groups of EDD benefits recipients (such as those who receive disability insurance 
benefits, MCC ¶¶38, 527–28), who are not among the narrower category of “Affected 
Consumers” covered by CFPB Order (which is limited to recipients of 
“unemployment insurance benefit[s],” CFPB Order ¶3(a)(1)).  
In sum, the Bank’s argument based on the CFPB Order is procedurally 
improper, unsupported, and should not be considered. And even if considered, the 
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Court should find that the business practices and injunctive relief at issue in the MCC 
are broader than the practices and relief at issue in the CFPB Order. Accordingly, the 
CFPB Order does not moot Plaintiffs’ well-pleaded request for injunctive relief. 
B. 
There is no adequate legal remedy for the Bank’s conduct that, 
although not “unlawful,” violates the UCL because it is “unfair.” 
Plaintiffs’ MCC challenged the Bank’s conduct as not only “unlawful” under 
the UCL but also as “unfair”—a separate violation. See MCC ¶¶577–78. Should the 
Court conclude later in this case that Plaintiffs failed to prove that the Bank’s 
challenged conduct is unlawful, it could still conclude that Plaintiffs proved that the 
Bank’s conduct was unfair and thus actionable under the UCL—and no legal remedy 
would be available to remediate the resulting harm. See Mot. at 6–9. Thus, 
reconsideration is also appropriate with respect to the dismissal of Plaintiffs’ UCL 
“unfair” claim for restitution. 
The Bank does not dispute that when conduct is found to be unfair under the 
UCL, the only remedies available are equitable—namely, restitution and an 
injunction. The Bank also does not dispute that conduct that is alleged to be both 
unfair and unlawful can be judicially determined to be unfair even if not unlawful. 
After all, conduct may be actionable as “unfair” under the UCL “even if not 
specifically proscribed by some other law.” Cel-Tech Commc’ns, Inc. v. L.A. Cellular 
Tele. Co., 20 Cal.4th 163, 180 (1999); see also Mot. at 7 (collecting cases). 
The Bank contends that to state a claim for restitution under the UCL’s 
unfairness prong, Plaintiffs must plead “a different [legal] theory” and a “[different] 
factual predicate” than those underlying “the complaint’s legal claims.” Opp. at 8–9 
(citing Shuman v. SquareTrade Inc., No. 20-cv-02725-JCS, 2021 WL 5113182 (N.D. 
Cal. Nov. 3, 2021). But the Schuman case is readily distinguishable, and besides, 
Plaintiffs have alleged ample facts demonstrating why the Bank’s various challenged 
actions and inactions in this case could be found independently actionable under the 
UCL’s unfair prong even if the core conduct at issue were found not to be unlawful. 
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In Shuman, there was no daylight between the plaintiff’s breach-of-contract 
claim and his UCL “unfair” claim, both of which claimed that the defendant accounted 
for depreciation in a way that resulted in “systematic underpayment of customer 
claims by 14.2%.” Id. at *9. Either the challenged underpayments breached the parties’ 
contract or they did not. If there was no breach (i.e., if the parties’ contract permitted 
the alleged underpayments), the plaintiff would not be entitled to money damages or an 
equitable remedy. Id. at *9–10. 
Here, by contrast, Plaintiffs’ MCC (and FAMCC) pleaded 15 separate “unfair” 
acts and practices, each of which was tethered to a well-established public policy, and 
each of which Plaintiffs allege is unfair even if they do not rise to the level of 
unlawfulness. See, e.g., MCC ¶577(c) (“failing to respond to the rise in demand for 
EDD benefits caused by or related to the COVID-19 pandemic by issuing chip cards”]; 
¶577(h) (“establishing ‘customer service’ procedures designed to frustrate and 
obstruct efforts by Plaintiffs and Class Members to file their fraud claims”); ¶577(n) 
(“freezing and/or blocking EDD Debit Card Accounts not to protect the Cardholders 
but to protect the Bank’s own interests”). Plaintiffs’ MCC (and FAMCC) also 
expressly pleaded a theory of unfairness that was independent of their theory of 
unlawfulness. See MCC ¶578 (alleging the actions and inactions pleaded in ¶577 
“offend public policy and constitute immoral, unethical, oppressive, and unscrupulous 
activities that caused substantial injury [and that] outweighs any potential benefits 
attributable to such conduct [notwithstanding] reasonably available alternatives to 
further the Bank’s legitimate business interests ....”). 
The present case is therefore indistinguishable from the unfair-prong cases cited 
by Plaintiffs (and ignored by the Bank), in which the courts permitted a plaintiff’s 
claims to proceed under the UCL’s unfairness prong if plaintiffs’ legal claim failed on 
its merits. See Mot. at 7–8, citing Epic Games, Inc. v. Apple, Inc., 67 F.4th 946, 1001 
(9th Cir. 2023); Zuniga v. Bank of Am., N.A., No. 14-cv-06471-MWF, 2014 WL 
7156403, at *4–5, *7 (C.D. Cal. Dec. 9, 2014) (customer whose fraud claim was 
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dismissed could proceed on UCL unfair-prong claim alleging Bank foreclosed on her 
home despite having promised her a loan modification); Elgindy v. AGA Serv. Co., 
No. 20-cv-06304-JST, 2021 WL 1176535 at *7–10 (N.D. Cal. Mar. 29, 2021) 
(applying alternative tests to conclude the same factual allegations supported both 
“unlawful” and “unfair” prong claims).1 It was clear error to deny Plaintiffs leave to 
amend their UCL claim to allege inadequate legal remedies more specifically. 
C. 
It was clear error to deny Plaintiffs leave to amend their UCL 
claim to allege inadequate legal remedies more specifically. 
Moreover, Plaintiffs showed that courts routinely grant leave to amend UCL 
claims that they dismiss under Sonner, especially on the first motion. Mot. at 9–10. 
Basic procedural fairness requires that “Plaintiffs should be permitted to amend their 
UCL claim to address whatever concerns the Court expresses with respect to those 
allegations, so that Plaintiffs can attempt to cure whatever remaining defects the Court 
identifies.” Mot. at 10:21–24.  
 
1 The Bank errs in asserting that Plaintiffs miscited Elgindy for the proposition that 
violations of the UCL’s different prongs may be pleaded in the alternative, even when 
the underlying factual allegations are the same. See Opp. at 9. In Elgindy, plaintiff 
consumers brought a UCL claim against a company that sold travel-and-event 
insurance, alleging the company’s pricing had a hidden service fee. 2021 WL 
1176535, at *1. The plaintiffs asserted separate arguments as to why that fee was 
unlawful, unfair, and fraudulent. Crediting the complaint’s allegation that the 
challenged practice would be unfair even if not found to be unlawful, the court 
concluded that “at the pleading stage, Plaintiffs have plausibly alleged a practice 
injurious to consumers and contrary to California’s public policy [and have thus] 
stated a claim for a violation of the UCL’s unfairness prong.” Id. at *10. 
The Bank’s citation to Bazarganfard v. Club 360 LLC, No. 21-cv-02272-CMB-
PLA, 2023 WL 2354810 (C.D. Cal. Jan. 26, 2023), cuts against its position because 
that decision expressly rejected an argument similar to one the Bank advances here. 
See id. at *13 (rejecting argument that an unfair prong claim necessarily fails if it is 
based on allegations that “overlap” with dismissed claims under the UCL’s unlawful 
and fraudulent prongs); see also id. at *13–14 (holding plaintiff pled a UCL unfair-
prong claim by alleging facts stating an EFTA claim). 
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D. 
It was clear error to dismiss the UCL claim with prejudice 
for lack of equitable jurisdiction. 
Finally, Plaintiffs argued that controlling Ninth Circuit precedent requires that 
dismissals for lack of federal equitable jurisdiction be without prejudice. Mot. at 10–11 
(citing, primarily, 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)). The Bank offers no response, other than to point to their 
arguments in their motion to dismiss that there are other grounds for dismissal than 
lack of federal equitable jurisdiction. See Opp. at 10, citing Dkt. 84 (MTD MCC) at 
43–47. Those arguments fail for the reasons previously argued by Plaintiffs. See Dkt. 
90 (MTD MCC Opp.) at 39–44. 
III. 
CONCLUSION 
For the foregoing reasons, Plaintiffs respectfully request that the Court vacate 
its dismissal with prejudice of the UCL claim, and deny the Bank’s motion to dismiss 
the UCL claim. 
Respectfully submitted, 
Dated:  August 21, 2023 
COTCHETT, PITRE & McCARTHY, LLP 
 
By: /s/ Brian Danitz  
 
 
JOSEPH W. COTCHETT  
BRIAN DANITZ  
KARIN B. SWOPE  
ANDREW F. KIRTLEY 
 
Dated:  August 21, 2023 
ALTSHULER BERZON LLP 
 
By: /s/ Michael Rubin 
 
 
 
 
 
 
  
 
 
MICHAEL RUBIN  
STACEY M. LEYTON  
MATTHEW MURRAY  
CONNIE K. CHAN 
 
Co-Lead Counsel for Plaintiffs and the 
Proposed Class 
 
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DAVID S. CASEY, JR. (SBN 060768) 
dcasey@cglaw.com 
GAYLE M. BLATT (SBN 122048) 
gmb@cglaw.com 
JEREMY ROBINSON (SBN 188325) 
jrobinson@cglaw.com 
P. CAMILLE GUERRA (SBN 326546)
camille@cglaw.com 
CATHERINE McBAIN (SBN 303911) 
kmcbain@cglaw.com 
CASEY GERRY SCHENK 
FRANCAVILLA BLATT & 
PENFIELD, LLP 
110 Laurel Street 
San Diego, CA 92101 
Telephone: (619) 238-1811 
Fax: (619) 544-9232 
 
Liaison Counsel for Class Plaintiffs 
JOSHUA B. SWIGART (SBN 225557) 
josh@swigartlawgroup.com 
JULIANA G. BLAHA (SBN 331066) 
juliana@swigartlawgroup.com 
SWIGART LAW GROUP, APC 
2221 Camino Del Rio South. Suite 308 
San Diego, CA 92108 
Telephone: (866) 219-3343 
Fax: (866) 219-8344 
DANIEL G. SHAY (SBN 250548) 
danielshay@tcpafdcpa.com 
LAW OFFICE OF DANIEL G. SHAY 
2221 Camino Del Rio South, Suite 308 
San Diego, CA 92108 
Telephone: (619) 222-7429 
Fax: (866) 431-3292 
Liaison Counsel for Individual Plaintiffs 
 
 
DANIEL L. WARSHAW (SBN 185365)
dwarshaw@pswlaw.com 
BOBBY POUYA (SBN 245527) 
bpouya@pswlaw.com 
PEARSON, SIMON & WARSHAW, LLP
15165 Ventura Boulevard, Suite 400 
Sherman Oaks, CA 91403 
Telephone: (818) 788-8300 
Fax: (818) 788-8104 
 
RAYMOND P. BOUCHER (SBN 115364)
ray@boucher.la 
BOUCHER LLP 
21600 Oxnard Street, Suite 600 
Woodland Hills, CA 91367 
Telephone: (818) 340-5400 
Fax: (818) 340-5401 
Attorneys for Plaintiffs Jonathan Smith, 
Alex Yuan, and the Proposed Class
 
 
FRANCIS A. BOTTINI, JR. (SBN 175783) 
fbottini@bottinilaw.com 
ANNE B. BESTE (SBN 326881) 
abeste@bottinilaw.com 
ALBERT Y. CHANG (SBN 296065) 
achang@bottinilaw.com 
YURY A. KOLESNIKOV (SBN 271173) 
ykolesnikov@bottinilaw.com 
BOTTINI & BOTTINI, INC. 
7817 Ivanhoe Avenue, Suite 102 
La Jolla, CA 92037 
Telephone: (858) 914-2001 
Fax: (858) 914-2002 
 
Attorneys for Plaintiff Lindsay McClure 
and the Proposed Class 
 
 
 
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THOMAS E. FRAYSSE (SBN 104436)
tef@knoxricksen.com 
MAISIE C. SOKOLOVE (SBN 239665)
mcs@knoxricksen.com 
AMANDA M. PLOWMAN (SBN 317462)
amp@knoxricksen.com 
KNOX RICKSEN LLP 
2033 N. Main Street, Suite 340 
Walnut Creek, CA 94596 
Telephone: (925) 433-2500 
Fax: (925) 433-2505 
Attorneys for Plaintiff Robert L. Wilson 
and the Proposed Class 
 
 
MARY E. ALEXANDER (SBN 104173)
malexander@maryalexanderlaw.com 
BRENDAN D.S. WAY (SBN 261705) 
bway@maryalexanderlaw.com 
ARIN R. SCAPA (SBN 283400) 
ascapa@maryalexanderlaw.com 
CATALINA S. MUÑOZ (SBN 317856)
cmunoz@maryalexanderlaw.com 
MARY ALEXANDER & 
ASSOCIATES, P.C. 
44 Montgomery Street, Suite 1303 
San Francisco, CA 94104 
Telephone: (415) 433-4440 
Fax: (415) 433-5440 
 
Attorneys for Plaintiff Clara Cajas  
and the Proposed Class 
 
 
ADAM MCNEILE (SBN 280296) 
adam@kbklegal.com 
KRISTIN KEMNITZER (SBN 278946) 
kristin@kbklegal.com 
KEMNITZER, BARRON & KRIEG, LLP 
42 Miller Avenue, 3rd Floor 
Mill Valley, CA 94941 
Telephone: (415) 632-1900 
Fax: (415) 632-1901 
 
Attorneys for Plaintiffs Roland Oosthuizen, 
Rosemary Mathews, and the Proposed 
Class 
 
 
 
CHRISTOPHER J. HAMNER (SBN 197117)
chamner@hamnerlaw.com 
EVELINA M. SERAFINI (SBN 187137) 
eserafini@hamnerlaw.com 
HAMNER LAW OFFICES, APLC 
26565 West Agoura Road, Suite 200 
Calabasas, CA 91302 
Telephone: (888) 416-6654 
 
Attorneys for Plaintiffs Jory Zoelle, Cindy 
Baker, Ursula Auburn, and the Proposed 
Class 
 
 
 
 
 
 
 
 
 
 
 
 
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JAMES V. NOLAN (SBN 84239) 
jvnolan@yololaw.com 
ROBERT P. NAKKEN (SBN 77550) 
rnakken@yololaw.com 
DAVID W. JANES (SBN 71334) 
dwjanes@yololaw.com 
GARDNER, JANES, NAKKEN, 
HUGO & NOLAN LAWYERS 
429 First Street 
Woodland, CA 95695 
Telephone: (530) 662-7367 
Fax: (530) 666-9116 
Attorneys for Plaintiff Brian Wiggins 
and the Proposed Class 
 
 
 
 
THOMAS MARTIN III (SBN 218456) 
tom@mblawapc.com 
NICHOLAS J. BONTRAGER (SBN 252114)
nick@mblawapc.com 
MARTIN & BONTRAGER, APC 
4605 Lankershim Blvd., Suite 535 
Toluca Lake, CA 91602 
Telephone: (323) 940-1700 
Fax: (323) 328-8095 
 
Attorneys for Plaintiff Steven Hart 
BENJAMIN GUBERNICK (SBN 321883) 
ben@gubernicklaw.com 
GUBERNICK LAW, P.L.L.C. 
10720 W. Indian School Rd., Suite 19 
Phoenix, AZ 85037 
Telephone: (734) 678-5169 
 
DAVID N. LAKE (SBN 180775) 
david@lakelawpc.com 
LAW OFFICES OF DAVID N. LAKE 
16130 Ventura Boulevard, Suite 650 
Encino, CA 91436 
Telephone: (818) 788-5100 
Fax: (818) 479-9990 
 
Attorneys for Plaintiffs Julie Hicks, Kuang 
Ting Chong, Stephanie Moore, and the 
Proposed Class 
 
 
ANDRE L. VERDUN (SBN 365436) 
Andre@VerdunLaw.com 
LAW OFFICES OF ANDRE L. VERDUN
1777 N. Ventura Avenue 
Ventura, CA 93001 
Telephone: (619) 880-0110 
Fax: (866) 786-6993 
 
Attorneys for Plaintiffs Rosa Alvarez, 
Elana Martina Rojas de Charolet, and 
Jessie Verdun 
 
 
 
 
 
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SIGNATURE CERTIFICATION 
Pursuant to Section 2(f)(4) of the Electronic Case Filing Administrative Policies 
and Procedures Manual, I, Brian Danitz, hereby certify that the content of this 
document is acceptable to all the signatories herein and that I have obtained counsel’s 
authorization to affix their electronic signatures to this document. 
 
 
 
 
 
 
 
 
/s/ Brian Danitz 
 
 
 
 
 
 
 
 
         
BRIAN DANITZ 
 
 
 
 
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