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Strike, Scott v. Gate Gourmet, No. 2:20-cv-11033 (C.D. Cal.), Doc. 12 (December 28, 2020)

Summary

Defendant Gate Gourmet, Inc.'s notice of motion to strike, with a memorandum of points and authorities, filed December 28, 2020, in the U.S. District Court for the Central District of California in Charles Scott, Brenda McCoy and Dominique Ferdinand v. Gate Gourmet, Inc. It moves to strike the prayer for attorney's fees, arguing that fees are not recoverable for the common law claims or authorized by statute under the UCL. It also moves to strike the prayers for restitution and injunctive relief, arguing that Plaintiffs lack standing to seek disgorgement/restitution of funds Gate Gourmet allegedly obtained from the U.S. Treasury Department under the CARES Act and, as former employees, to seek injunctive relief. The hearing is noticed for January 25, 2021, at 10:00 a.m., and the filing is signed /s/ Jill A. Porcaro.

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“Strike, Scott v. Gate Gourmet, No. 2:20-cv-11033 (C.D. Cal.), Doc. 12 (December 28, 2020).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/strike-scott-v-gate-gourmet-no-2-20-cv-11033-c-d-cal-doc-12-december-2-f326dfd6f5/, SHA-256 6e864e7cf5d6e15263dadfb691b363731fead23e44c08b3c3ab843b4c280b53d.

Full text

     Case 2:20-cv-11033-CAS-JPR Document 12 Filed 12/28/20 Page 1 of 17 Page ID #:102



 1      Diana Tabacopoulos (SBN 128238)
        dtabacopoulos@seyfarth.com
 2      Jill A. Porcaro (SBN 190412)
        jporcaro@seyfarth.com
 3      SEYFARTH SHAW LLP
        2029 Century Park East, Suite 3500
 4      Los Angeles, California 90067-3021
        Telephone: (310) 277-7200
 5      Facsimile: (310) 201-5219
 6      Nolan R Theurer (SBN 323563)
        ntheuer@seyfarth.com
 7      SEYFARTH SHAW LLP
        560 Mission Street, Suite 3100
 8      San Francisco, California 94105-2930
        Telephone: (415) 397-2823
 9      Facsimile: (415) 397-8549
10      Attorneys for Defendant
        GATE GOURMET, INC.
11
12
                                  UNITED STATES DISTRICT COURT
13
                                 CENTRAL DISTRICT OF CALIFORNIA
14
15
        CHARLES SCOTT, an individual;             Case No. 2:20-cv-11033-CAS-JPR
16      BRENDA MCCOY, an individual;
        DOMINIQUE FERDINAND, an                   DEFENDANT GATE GOURMET,
17      individual, on behalf of themselves and   INC.’S NOTICE OF MOTION TO
        all others similarly situated,            STRIKE PURSUANT TO FED. R.
18                                                CIV. PROC. 12(f); MEMORANDUM
                          Plaintiffs,             OF POINTS AND AUTHORITIES IN
19                                                SUPPORT THEREOF
                 v.
20                                                [Filed concurrently herewith Declaration
        GATE GOURMET, INC., a Delaware            of Jill A. Porcaro; [Proposed] Order]
21      Corporation; and DOES 1 through 100,
        inclusive,                                [Los Angeles Superior Court Case No.
22                                                 20STCV41416]
                          Defendants.
23                                                Date:     January 25, 2021
                                                  Time:     10:00 a.m.
24                                                Crtrm:    8D
25                                                Complaint Filed:   October 27, 2020
                                                  Trial Date:        None
26
27
28

                      DEFENDANT GATE GOURMET’S NOTICE OF MOTION TO STRIKE
       67042565v.5
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 1     TO THE CLERK OF THE COURT AND PLAINTIFF:
 2              NOTICE IS HEREBY GIVEN that on January 25, 2021, at 10:00 a.m., in the
 3     United States District Court, Central District of California, Courtroom 8D, located at 350
 4     West First Street, Los Angeles, CA 90012, Defendant Gate Gourmet, Inc. (“Gate
 5     Gourmet” or “Defendant”), pursuant to Fed. R. Civ. Proc. 12(f), hereby moves to strike
 6     the following portions of Plaintiffs Charles Scott, Brenda McCoy, and Dominique
 7     Ferdinand’s (“Plaintiffs”) Complaint:
 8              1.    Defendant moves to strike Plaintiffs’ Prayer for “attorney’s fees” as to each
 9     of their causes of action as follows on the ground that attorney’s fees are not recoverable
10     for Plaintiffs’ common law claims as a matter of law; nor are they authorized by statute
11     under the UCL:
12              - Paragraph 6 from the Complaint’s Prayer for Relief as to the First Cause of
13              Action for Wrongful Termination in Violation of Public Policy (Dkt. 1-1,
14              Complaint page. 10, line 26),
15              - Paragraph 3 from the Prayer as to the Second Cause of Action for Violation of
16              California’s Unfair Competition Law, Cal. Bus. And Prof. Code ¶¶ 17200 et al.
17              (the “UCL”) (Dkt 1-1, Complaint page 11, line 10), and
18              - Paragraph 7 from the Prayer as to the Third Cause of Action for Breach of
19              Fiduciary Duty (Dkt. 1-1, Complaint page 11, line 22).
20              2.    Defendant further moves to strike Plaintiffs’ Prayer for restitution in
21     Paragraph 1 of the Complaint’s Prayer as to the Second Cause of Action for Violation of
22     the UCL (Dkt. 1-1, Complaint, page 11, lines 3-6) and corresponding Paragraphs 41-42
23     of the Complaint (Dkt. 1-1, Complaint page 9, lines 7-11), because Plaintiffs lack
24     standing to seek disgorgement/restitution of funds that Gate Gourmet allegedly obtained
25     from the U.S. Treasury Department pursuant to the Coronavirus Aid, Relief and
26     Economic Security Act (CARES Act). Also, insofar as Plaintiffs seek to recover back
27     pay, any wage losses suffered by Plaintiffs that are attributable to their terminations are
28     damages that do not qualify as restitution as a matter of law.
                                             1
                     DEFENDANT GATE GOURMET’S NOTICE OF MOTION TO STRIKE
       67042565v.5
     Case 2:20-cv-11033-CAS-JPR Document 12 Filed 12/28/20 Page 3 of 17 Page ID #:104



 1              3.     Defendant further moves to strike Plaintiffs’ Prayer for injunctive relief in
 2     Paragraph 2 of the Complaint’s Prayer on the Second Cause of Action for violation of the
 3     UCL (Dkt. 1-1, Complaint, page 11, lines 7-9), corresponding Paragraphs 28(g) (Dkt. 1-
 4     1, Complaint, page 11, lines 7-9) and 41-42 (Dkt. 1-1, Complaint page 9, lines, 3-6 and 7-
 5     11) of the Complaint, and Paragraph 6 of the Complaint’s Prayer as to the Third Cause of
 6     Action for Breach of Fiduciary Duty (Dkt. 1-1, Complaint page 11, lines 20-21) because
 7     Plaintiffs — all of whom are former employees of Gate Gourmet — lack standing to seek
 8     injunctive relief. Further, Plaintiffs have not shown that they will suffer irreparable harm
 9     in the absence of injunctive relief or that an award of damages is insufficient to remedy
10     their claims.
11              This Motion is made following the conference of counsel pursuant to L.R. 7-3
12     which took place on December 3rd and 11, 2020. See concurrently-filed Declaration of
13     Jill A. Porcaro in Support of Motion to Dismiss and Motion to Strike Plaintiffs’
14     Complaint, ¶¶ 4-5, Exhibits A-B.
15              This Motion is based on this Notice, the attached Memorandum of Points and
16     Authorities, the Declaration of Jill A. Porcaro, the Proposed Order, the pleadings in the
17     Court’s file and any reply papers and oral argument to be presented to the Court at the
18     hearing.
19
       DATED: December 28, 2020                           SEYFARTH SHAW LLP
20
21
                                                          By: /s/ Jill A. Porcaro
22                                                           Diana Tabacopoulos
                                                             Jill A. Porcaro
23                                                           Nolan R Theurer
                                                             Attorneys for Defendant
24                                                           GATE GOURMET, INC.
25
26
27
28
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                     DEFENDANT GATE GOURMET’S NOTICE OF MOTION TO STRIKE
       67042565v.5
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 1                                                  TABLE OF CONTENTS
 2                                                                                                                               Page
 3     I.       INTRODUCTION ..................................................................................................... 1
 4     II.      PROCEDURAL HISTORY ...................................................................................... 2
 5     III.     LEGAL STANDARD ............................................................................................... 3
 6     IV.      ARGUMENT ............................................................................................................. 3
 7              A.       This Court Should Strike The Complaint’s Prayer For Attorney’s Fees
                         Because Attorney’s Fees Are Not Recoverable For Plaintiffs’ Claims .......... 3
 8
                B.       This Court Should Strike The Complaint’s Prayer For Injunctive
 9                       Relief Because Damages Are Adequate to Address Plaintiffs’ Alleged
                         Injuries and Plaintiffs Are At No Risk Of Irreparable Harm .......................... 6
10
                C.       Plaintiffs Cannot Recover Restitution/Disgorgement As to Their UCL
11                       Claim Because they Lack Standing to Seek Disgorgement of Funds
                         Gate Gourmet Obtained from the U.S. Treasury and Back Pay is
12                       Damages — Not Restitution ........................................................................... 8
13     V.       CONCLUSION........................................................................................................ 10
14
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                                                                     i
                       DEFENDANT GATE GOURMET’S NOTICE OF MOTION TO STRIKE
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 1                                                  TABLE OF AUTHORITIES
 2                                                                                                                                  Page(s)
 3     Federal Cases
 4     Alyeska Pipeline Serv. Co. v. Wilderness Soc'y,
          421 U.S. 240 (1975) ........................................................................................................ 3
 5
       Delodder v. Aerotek, Inc.,
 6       2009 WL 3770670 (C.D. Cal. Nov. 9, 2009) ................................................................. 8
 7     Fantasy, Inc. v. Fogerty,
         984 F.2d 1524 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517
 8       (1994) .............................................................................................................................. 3
 9     Heffelfinger v. Elec. Data Sys. Corp.,
         2008 U.S. Dist. LEXIS 5296 (C.D. Cal. Jan. 7, 2008) ................................................... 8
10
       Henry v. Radio One, Inc., No. CV 08-2717 PSG (CTX),
11       2008 WL 11338294 (C.D. Cal. June 18, 2008) .......................................................... 4, 5
12     Lee Myles Associates Corp. v. Paul Rubke Enterprises, Inc.,
          557 F. Supp. 2d 1134 (S.D. Cal. 2008)........................................................................... 9
13
       O'Shea v. Littleton,
14        414 U.S. 488 (1974) ........................................................................................................ 6
15     Susilo v. Wells Fargo Bank, N.A.,
          796 F. Supp. 2d 1177 (C.D. Cal. 2011) .......................................................................... 3
16
       Thomas v. Kent, No. CV148013FMOAGRX,
17       2019 WL 2590170 (C.D. Cal. May 30, 2019) ................................................................ 4
18     Walsh v. Nevada Dept. of Human Resources,
         471 F. 3d 1033 (9th Cir. 2006) ....................................................................................... 7
19
       Whittlestone, Inc. v. Handi-Craft Co.,
20       618 F.3d 970 (9th Cir. 2010) .......................................................................................... 3
21     State Cases
22     Abouab v. City and County of San Francisco,
         141 Cal. App. 4th 643 (2006) ......................................................................................... 4
23
       c.f. Cortez v. Purolator Air Filtration Products Co.,
24         23 Cal. 4th 163 (2000) .............................................................................................. 9, 10
25     C.f. Sundance v. Municipal Court,
          192 Cal. App. 3d 268 (1987) .......................................................................................... 5
26
       People ex rel. City of Santa Monica v. Gabriel,
27       186 Cal. App. 4th 882 (2010) ......................................................................................... 4
28
                                                                         ii
                         DEFENDANT GATE GOURMET’S NOTICE OF MOTION TO STRIKE
       67042565v.5
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 1     Daniels v. McKinney,
         146 Cal. App. 3d 42 (1983) ............................................................................................ 5
 2
       Dipirro v. Bondo Corp.,
 3        153 Cal. App. 4th 150 (2007) ..................................................................................... 4, 6
 4     East Bay Mun. Utility Dist. v. Department of Forestry & Fire Protection,
         43 Cal. App. 4th 1113 (1996) ......................................................................................... 6
 5
       Korea Supply Co. v. Lockheed Martin Corp.,
 6       29 Cal. 4th 1134 (2003) .................................................................................................. 9
 7     Korean Philadelphia Presbyterian Church v. California Presbytery,
         77 Cal. App. 4th 1069 (2000) ......................................................................................... 7
 8
       Kwikset Corp. v. Superior Court,
 9       51 Cal. 4th 310 (2011) .................................................................................................... 8
10     Lisec v. United Airlines, Inc.,
          10 Cal. App. 4th 1500 ................................................................................................... 10
11
       Morrison v. Land,
12       169 Cal. 580 (1915) ........................................................................................................ 7
13     Pineda v. Bank of America, N.A.,
          50 Cal. 4th 1389 (2010) .................................................................................................. 9
14
       Ryan v. California Interscholastic Fed'n,
15       94 Cal. App. 4th 1033 (2001) ......................................................................................... 5
16     Trope v. Katz,
          1 Cal. 4th 274 (1995) ...................................................................................................... 3
17
       Zhang v. Superior Court,
18       57 Cal. 4th 364 (2013) .................................................................................................... 4
19     Federal Statutes
20     Coronavirus Aid, Relief and Economic Security Act .................................................. 1, 2, 5
21     State Statutes
22     Cal. Bus. & Prof. Code §§ 17200 .................................................................................... 1, 5
23     Cal. Civ. Proc. Code § 526(a)(2-5) ...................................................................................... 6
24     Cal. Code Civ. P. § 1021.................................................................................................. 3, 5
25     Cal. Code Civ. P. § 1021.5............................................................................................... 4, 6
26     Rules
27     Fed. R. Civ. Proc. ¶¶ 12(b)(6) .............................................................................................. 2
28     Fed. R. of Civ. Proc. § 12(f) ................................................................................................ 3
                                                            iii
                        DEFENDANT GATE GOURMET’S NOTICE OF MOTION TO STRIKE
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                     DEFENDANT GATE GOURMET’S NOTICE OF MOTION TO STRIKE
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 1                        MEMORANDUM OF POINTS AND AUTHORITIES
 2     I.       INTRODUCTION
 3              Plaintiffs Charles Scott, Brenda McCoy, and Dominique Ferdinand (“Plaintiffs”)
 4     bring this putative class action lawsuit against their former employer, Gate Gourmet, Inc.
 5     (“Gate Gourmet” or “Defendant”). The crux of Plaintiffs’ Complaint is their contention
 6     that Gate Gourmet terminated their employment (and the employment of “similarly
 7     situated” employees in California) in violation of the Coronavirus Aid, Relief and
 8     Economic Security Act (CARES Act). Based on these allegations, Plaintiffs purport to
 9     allege common law claims for Wrongful Termination in Violation of Public Policy (1st
10     Cause of Action (“COA”)) and Breach of Fiduciary Duty (3rd COA); as well as a
11     companion statutory claim for violation of California’s Unfair Competition Law, codified
12     at Cal. Bus. & Prof. Code §§ 17200 et al. (the “UCL”). Gate Gourmet now brings this
13     Motion to Strike portions of Plaintiffs’ Prayer, and corresponding paragraphs of the
14     Complaint, that seek relief that is unavailable for the claims they purport to allege.
15              First, Gate Gourmet seeks to strike Plaintiffs’ prayer for recovery of attorney’s fees
16     as to each of their COAs. Attorney’s fees are not recoverable for Plaintiffs’ common law
17     claims or for violation of the UCL. No exceptions apply.
18              Second, Plaintiffs’ Prayer for injunctive relief for alleged violation of the UCL and
19     Breach of Fiduciary Duty must be stricken. Plaintiffs cannot show they would suffer
20     irreparable injury in the absence of injunctive relief or that damages are insufficient to
21     remedy their claims Also, it is well established that former employees lack standing to
22     pursue injunctive relief under the UCL.
23              Third, Plaintiffs’ Prayer for “restitution of all profits and gains resulting from
24     Defendant’s unfair, unlawful, and/or fraudulent business acts and/or practices” must be
25     stricken because Plaintiffs’ allegations do not suggest that Gate Gourmet has obtained
26     anything from Plaintiffs to be disgorged. Restitution occurs only where one party
27     disgorges funds that rightfully belong to the other party. Plaintiffs have not shown and
28
                                             1
             DEFENDANT GATE GOURMET’S MEMORANDUM OF POINTS AND AUTHORITIES
                              IN SUPPORT OF MOTION TO STRIKE
       67042565v.5
     Case 2:20-cv-11033-CAS-JPR Document 12 Filed 12/28/20 Page 9 of 17 Page ID #:110



 1     cannot show that they have any ownership interest in the CARES Act funds allegedly
 2     received by Gate Gourmet. Also, post-termination wage losses (i.e., back pay) are
 3     compensatory damages; they are not restitution.
 4              Accordingly, the Court should strike from the Complaint all of the unavailable
 5     relief sought by Plaintiffs.
 6     II.      PROCEDURAL HISTORY
 7              On October 27, 2020, Plaintiffs filed their Complaint in the Los Angeles Superior
 8     Court, Case No. 20STCV41416 entitled CHARLES SCOTT et al. v. GATE GOURMET,
 9     INC., et al. purporting to allege COAs for Wrongful Termination in Violation of Public
10     Policy (1st COA), violation of the UCL (2nd COA) and Breach of Fiduciary Duty (3rd
11     COA) premised upon Plaintiffs’ allegation that Gate Gourmet violated the CARES Act
12     by subjecting Plaintiffs and similarly-situated employees to a layoff during the period of
13     March 28, 2020 through the present.
14              Gate Gourmet’s Counsel, Jill Porcaro, conferred with Plaintiffs’ counsel to inform
15     them that the Complaint fails to state a cause of action against Gate Gourmet, and that
16     Plaintiffs’ claims were meritless and should be dismissed. Porcaro Decl., ¶¶ 2-3, Exhibit
17     A.1 Ms. Porcaro also conferred with Plaintiffs’ counsel regarding Plaintiffs’ claims for
18     non-recoverable attorney’s fees and restitution that are the subject of this motion. Id. The
19     Parties were unable to reach a resolution through the meet and confer process.
20              On December 4, 2020, before filing any responsive pleading, Gate Gourmet filed a
21     Notice of Removal with this Court pursuant to jurisdiction under the Class Action
22     Fairness Act and federal question jurisdiction.
23              The parties then entered into a Stipulation extending Gate Gourmet’s time to
24     respond to the Complaint through and including December 28, 2020 and filed the
25     Stipulation with the Court on December 7, 2020. Id. ¶ 4, Exhibit B.
26
       1
27      Gate Gourmet moves concurrently to dismiss each of Plaintiffs’ COAs in the Complaint
       pursuant to Fed. R. Civ. Proc. ¶¶ 12(b)(6).
28                                                 2
             DEFENDANT GATE GOURMET’S MEMORANDUM OF POINTS AND AUTHORITIES
                              IN SUPPORT OF MOTION TO STRIKE
       67042565v.5
     Case 2:20-cv-11033-CAS-JPR Document 12 Filed 12/28/20 Page 10 of 17 Page ID #:111



 1     III.     LEGAL STANDARD
 2              Under Fed. R. of Civ. Proc. § 12(f) a party may move to strike any “insufficient
 3     defense or any redundant, immaterial, impertinent or scandalous matter.” The essential
 4     function of a motion to strike is to “avoid the expenditure of time and money that must
 5     arise from litigating spurious issues by dispensing with those issues prior to trial.”
 6     Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds,
 7     510 U.S. 517 (1994). Also see Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973-
 8     974 (9th Cir. 2010). Rule 12(f) permits a Court to strike a prayer for relief which is not
 9     available as a matter of law. Susilo v. Wells Fargo Bank, N.A., 796 F. Supp. 2d 1177,
10     1196 (C.D. Cal. 2011).
11     IV.      ARGUMENT
12              A.    This Court Should Strike The Complaint’s Prayer For Attorney’s Fees
13                    Because Attorney’s Fees Are Not Recoverable For Plaintiffs’ Claims
14              Plaintiffs’ improper Prayer for attorney’s fees cannot survive this Motion to Strike.
15     Plaintiffs seek to recover attorney’s fees as to each of their COAs in the Complaint. (See
16     Complaint, Prayer on the 1st COA ¶ 3, Prayer on the 2nd COA ¶ 3, and Prayer on the 3rd
17     COA ¶ 3.) However, none of Plaintiffs’ COAs are amenable to recovery of attorney’s
18     fees.
19              The American rule provides that “[e]xcept as attorney's fees are specifically
20     provided for by statute, the measure and mode of compensation of attorneys and
21     counselors at law is left to the agreement, express or implied, of the parties[.]” Cal. Code
22     Civ. P. § 1021; see also Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240,
23     247 (1975) (“In the United States, the prevailing litigant is ordinarily not entitled to
24     collect a reasonable attorneys' fee from the loser”); Trope v. Katz, 1 Cal. 4th 274, 278-
25     279 (1995) (stating that “California follows what is commonly referred to as the
26     American rule, which provides that each party to a lawsuit must ordinarily pay his own
27     attorney fees”). Likewise, where a cause of action is based in “common law tort theory”
28                                                   3
              DEFENDANT GATE GOURMET’S MEMORANDUM OF POINTS AND AUTHORITIES
                               IN SUPPORT OF MOTION TO STRIKE
       67042565v.5
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 1     (such as Plaintiffs’ 1st and 3rd COAs) and the plaintiff “provides no statutory basis for
 2     [his or] her request for attorney’s fees,” it is appropriate to strike the request for
 3     attorney’s fees “because it is immaterial.” Henry v. Radio One, Inc., No. CV 08-2717
 4     PSG (CTX), 2008 WL 11338294, at *3 (C.D. Cal. June 18, 2008).
 5              There is one exception to the application of the American rule — attorney’s fees
 6     may be available in the absence of statutory authority where the suit at issue has resulted
 7     “in the enforcement of an important right affecting the public interest” if a “significant
 8     benefit . . . has been conferred on the general public or a large class of persons.” Cal.
 9     Code Civ. P. § 1021.5; see also Abouab v. City and County of San Francisco, 141 Cal.
10     App. 4th 643, 663 (2006); Dipirro v. Bondo Corp., 153 Cal. App. 4th 150 at 197 (2007).
11              Where a plaintiff brings claims on behalf of a class, that is not sufficient by itself to
12     qualify for the exception to the American rule. The size of the class of persons who
13     benefit from a decision affecting an important right affecting the public interest is the
14     primary consideration in the evaluation of whether attorney’s fees are available. Merely
15     asserting a class action does not demonstrate benefit to a “large class of persons”. See
16     Cal. Code Civ. P. § 1021.5; Thomas v. Kent, No. CV148013FMOAGRX, 2019 WL
17     2590170, at *9 (C.D. Cal. May 30, 2019). In addition, the primary purpose of the lawsuit
18     must be to address the public policy violation as a whole, rather than for pecuniary
19     benefit to plaintiffs. DiPirro v. Bondo Corp., 153 Cal. App. 4th 150, 199 (2007), as
20     modified (Aug. 8, 2007) (“Where the enforcement or advancement of any public interest
21     … was secondary and incidental to achieving personal business goals, an award of fees
22     under Code of Civil Procedure section 1021.5 is not warranted”).
23              Here, Plaintiffs do not cite (nor could they) any statutory authority for their request
24     for attorney’s fees. With respect to Plaintiffs’ claims under the UCL, the UCL does not
25     provide for attorney’s fees. Zhang v. Superior Court, 57 Cal. 4th 364, (2013) (prevailing
26     plaintiffs are generally limited to injunctive relief and restitution under the UCL; they
27     may not receive damages or attorney fees); People ex rel. City of Santa Monica v.
28                                                     4
             DEFENDANT GATE GOURMET’S MEMORANDUM OF POINTS AND AUTHORITIES
                              IN SUPPORT OF MOTION TO STRIKE
       67042565v.5
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 1     Gabriel, 186 Cal. App. 4th 882, 889-891 (2010) (attorney fee awards are not available in
 2     actions alleging violations of § 17200 unless plaintiff alleges and proves a violation of a
 3     separate statute that allows recovery of such fees.)
 4              Further, Plaintiffs’ Prayer for attorney’s fees with respect to their common law
 5     claims for Wrongful Termination in Violation of Public Policy and Breach of Fiduciary
 6     Duty also fail. Not only do Plaintiffs fail to identify any important public policy which
 7     they intend to assuage through this litigation, but they fail to show any significant benefit
 8     to the public or any large class of persons were their claims to succeed. See Ryan v.
 9     California Interscholastic Fed'n, 94 Cal. App. 4th 1033, 1044 (2001) (“Regarding the
10     nature of the public right, it must be important and cannot involve trivial or peripheral
11     public policies. The significance of the benefit conferred is determined from a realistic
12     assessment of all the relevant surrounding circumstances”). The Complaint alleges only
13     that the putative class “is estimated be greater than one hundred (100) individuals” and
14     consists of “Defendant’s former employees working in the state of California who were
15     involved in a layoff after March 27, 2020…”. (Complaint ¶¶ 25-26.)
16              Further, similar to the allegations in Henry v. Radio One, Inc., Plaintiffs’ putative
17     class allegations include only those Gate Gourmet employees in California who were laid
18     off or furloughed after Gate Gourmet applied for CARES Act funds. (Complaint ¶¶ 20-
19     21.) Plaintiffs do not allege that any other, larger group of people will stand to benefit
20     from a decision in their favor. (C.f. Sundance v. Municipal Court, 192 Cal. App. 3d 268,
21     272 (1987) (finding that a class of approximately 60,000 persons was sufficient to
22     constitute a “large class of people”; Daniels v. McKinney, 146 Cal. App. 3d 42 at 50
23     (1983) (population of a jail was a “large class of persons” under the meaning of Cal.
24     Code Civ. P. § 1021 when approximately 20,000 persons were incarcerated there for
25     varying lengths of time each year).
26              Further, even if Plaintiffs were to later identify some public policy which might
27     benefit a very large class of persons or the general public, the fact that their Complaint
28                                                    5
             DEFENDANT GATE GOURMET’S MEMORANDUM OF POINTS AND AUTHORITIES
                              IN SUPPORT OF MOTION TO STRIKE
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 1     fails to do so is evidence that Plaintiffs’ primary intention in this lawsuit is for their own
 2     pecuniary benefit. DiPirro, 153 Cal. App. 4th at 199 (attorney’s fees are not recoverable
 3     under Section 1021.5 where “the essence and fundamental outcome …was the
 4     advancement of …[a party’s] own economic interests.). Plaintiffs seek monetary benefits
 5     for themselves (including back pay and emotional distress damages), and have failed to
 6     allege any facts supporting an inference that resolution of the present case in their favor
 7     would result in the enforcement of an important right affecting the public interest.
 8              Therefore, this Court should strike Plaintiffs’ Prayer for attorney’s fees (See
 9     Complaint, Prayer on the 1st COA ¶ 3, Prayer on the 2nd COA¶ 3, and Prayer on the 3rd
10     COA ¶ 3), as well as any allegations pertaining thereto.
11              B.    This Court Should Strike The Complaint’s Prayer For Injunctive Relief
12                    Because Damages Are Adequate to Address Plaintiffs’ Alleged Injuries
13                    and Plaintiffs Are At No Risk Of Irreparable Harm
14              Plaintiffs may not obtain injunctive relief (which they seek in their Prayer as to the
15     2nd COA for violation of the UCL and 3rd COA for Breach of Fiduciary Duty).
16              It is well settled law that an injunctive relief may be granted only where the party
17     seeking an injunction alleges an injury unsuited to a legal remedy (such as monetary
18     damages), and where that party stands to suffer irreparable harm if an injunction does not
19     issue. See Cal. Civ. Proc. Code § 526(a)(2-5); O'Shea v. Littleton, 414 U.S. 488, 502
20     (1974) (plaintiff, in seeking an injunction, must show a likelihood of substantial and
21     immediate irreparable injury and the inadequacy of remedies at law); East Bay Mun.
22     Utility Dist. v. Department of Forestry & Fire Protection, 43 Cal. App. 4th 1113, 1126
23     (1996) (“An injunction properly issues only where the right to be protected is clear,
24     injury is impending and so immediately likely as only to be avoided by issuance of the
25     injunction. [Citation]”).
26              Whether Plaintiffs have suffered harm is immaterial to their request for injunctive
27     relief. Rather, the key considerations are whether that harm can be adequately addressed
28                                                    6
             DEFENDANT GATE GOURMET’S MEMORANDUM OF POINTS AND AUTHORITIES
                              IN SUPPORT OF MOTION TO STRIKE
       67042565v.5
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 1     through a legal remedy (such as damages), and whether Plaintiffs are in imminent danger
 2     of further irreparable harm in the absence of an injunction. Both considerations weigh
 3     against Plaintiffs’ ability to seek injunctive relief in the present lawsuit.
 4              Courts may not grant equitable relief, such as an injunction, if the law affords a
 5     legal remedy which adequately redresses the requesting party’s injuries. Morrison v.
 6     Land, 169 Cal. 580, 586 (1915) (“No principle of equitable jurisprudence is more firmly
 7     established than” the concept that courts do not grant “equitable relief in any case where
 8     the legal remedy is full and adequate and does complete justice”). Generally, where
 9     damages afford an adequate remedy, equitable relief will be denied. Id. Here, Plaintiffs’
10     alleged injury is that they were terminated from employment, and thus, suffered a loss of
11     wages and emotional distress post-termination. These alleged damages can be adequately
12     addressed through economic relief. Further, if an injunction were to issue, such would
13     offer no relief to the Plaintiffs because, as former employees, they are no longer affected
14     by Gate Gourmet’s employment practices. Walsh v. Nevada Dept. of Human Resources,
15     471 F. 3d 1033, 1037 (9th Cir. 2006) (holding that because former employee “would not
16     stand to benefit from an injunction,” she “lacked standing to sue for injunctive relief from
17     which she would not likely benefit”).
18              Hand-in-hand with the above considerations, courts will only grant injunctive relief
19     if the requesting party stands to suffer imminent irreparable harm should the injunction
20     not issue. Korean Philadelphia Presbyterian Church v. California Presbytery, 77 Cal.
21     App. 4th 1069, 1084 (2000), as modified (Feb. 9, 2000) (“An injunction cannot issue in a
22     vacuum based on the proponents' fears about something that may happen in the future. It
23     must be supported by actual evidence that there is a realistic prospect that the party
24     enjoined intends to engage in the prohibited activity”). As former employees, Plaintiffs
25     cannot show an imminent danger of irreparable harm, and thus lack standing to pursue
26     injunctive relief for purported breach of fiduciary duty or under the UCL. It is well
27     established that former employees are unable to demonstrate “a real or immediate threat
28                                                    7
             DEFENDANT GATE GOURMET’S MEMORANDUM OF POINTS AND AUTHORITIES
                              IN SUPPORT OF MOTION TO STRIKE
       67042565v.5
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 1     of irreparable injury” based on their former employer’s employment practices. Delodder
 2     v. Aerotek, Inc., 2009 WL 3770670 (C.D. Cal. Nov. 9, 2009) (striking former employees’
 3     claims for injunctive relief because “plaintiffs do not dispute that they are no longer
 4     employees of defendant, and thus, they cannot demonstrate ‘a real or immediate threat of
 5     irreparable injury’ by defendant's employment practices”).
 6              Here, as in Delodder, Plaintiffs are no longer employed by Gate Gourmet, and thus
 7     are in no danger of immediate and irreparable harm should this Court refuse to issue an
 8     injunction. As former employees, Plaintiffs’ are no longer affected by Gate Gourmet’s
 9     employment practices at all, and thus Gate Gourmet’s continued conduct offers no risk of
10     harm to the Plaintiffs. See Heffelfinger v. Elec. Data Sys. Corp., 2008 U.S. Dist. LEXIS
11     5296 (C.D. Cal. Jan. 7, 2008) (“Because plaintiffs are no longer employed by EDS, they
12     lack standing to seek prospective injunctive relief under the UCL.”).
13              Thus, Plaintiffs’ prayer for injunctive relief on their UCL claim (Prayer on the 2nd
14     COA, ¶ 2) and on their claim for breach of fiduciary duty (Prayer on the 3rd COA, ¶ 6) is
15     improper and should be stricken, as should any other allegations in the Complaint
16     pertaining to injunctive relief. (See Complaint ¶¶ 41-42.)
17              C.    Plaintiffs Cannot Recover Restitution/Disgorgement As to Their UCL
18                    Claim Because they Lack Standing to Seek Disgorgement of Funds Gate
19                    Gourmet Obtained from the U.S. Treasury and Back Pay is Damages —
20                    Not Restitution
21              Plaintiffs’ Prayer for restitution is incompatible with Plaintiffs’ COA for relief
22     under the UCL. Restitution under the UCL generally requires a disgorgement of funds
23     improperly obtained from plaintiffs. Kwikset Corp. v. Superior Court, 51 Cal. 4th 310,
24     336 (2011) (“[r]estitution under [Business and Professions Code] section 17203 [of the
25     UCL] is confined to restoration of any interest in ‘money or property, real or personal,
26     which may have been acquired by means of such unfair competition.) Further, California
27     jurisprudence is substantial that plaintiffs do not have standing to seek disgorgement of
28                                                    8
             DEFENDANT GATE GOURMET’S MEMORANDUM OF POINTS AND AUTHORITIES
                              IN SUPPORT OF MOTION TO STRIKE
       67042565v.5
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 1     funds obtained from a third party—in this case, the U.S. Treasury. See Korea Supply Co.
 2     v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1141-1152 (2003) (disgorgement of profits
 3     earned by defendants as result of allegedly unfair practices is not authorized by the UCL
 4     where money sought to be disgorged was not taken from plaintiff and plaintiff did not
 5     have ownership interest in money); Lee Myles Associates Corp. v. Paul Rubke
 6     Enterprises, Inc., 557 F. Supp. 2d 1134 (S.D. Cal. 2008).
 7              In Korea Supply Co. v. Lockheed Martin Corp., plaintiff was a defense
 8     manufacturing firm that bid on a contract to supply goods to a foreign national power. 29
 9     Cal. 4th at 1140-41. Due to the unfair business practices of a competing firm (defendant),
10     plaintiff was not awarded the contract. Id. Plaintiff filed suit against defendant, claiming
11     violation of UCL and including a prayer for restitution. The Court found that despite the
12     fact that plaintiff may have received the funds ultimately received by defendant if not for
13     the defendant’s unfair business practices, restitution was an improper remedy to acquire
14     those funds because Plaintiff never had any ownership interest in the funds themselves.
15     Id. at 1148.
16              The facts in the present matter are analogous to those in Korea Supply Co.
17     Although Plaintiffs may have received some of the funds allegedly acquired by Gate
18     Gourmet through the CARES Act had they remained employees, they do not have an
19     ownership interest in said funds. The expectation of receipt is not a vested interest
20     capable of giving rise to a prayer for restitution. Id. at 1149-1150; c.f. Cortez v. Purolator
21     Air Filtration Products Co., 23 Cal. 4th 163, 178 (2000) (finding that employees have a
22     vested ownership interest in wages already earned).
23              In addition, Plaintiffs cannot recover unearned back pay as restitution. See Korea
24     Supply Co., 29 Cal. 4th at 1147 (“the Legislature did not intend section 17203 [of the
25     UCL] to provide courts with unlimited equitable powers,” to award money to a plaintiff
26     who has no “ownership interest” in that money); Pineda v. Bank of America, N.A., 50
27     Cal. 4th 1389, 1402 (2010) (“compensatory damages are not recoverable as restitution”).
28                                                   9
             DEFENDANT GATE GOURMET’S MEMORANDUM OF POINTS AND AUTHORITIES
                              IN SUPPORT OF MOTION TO STRIKE
       67042565v.5
     Case 2:20-cv-11033-CAS-JPR Document 12 Filed 12/28/20 Page 17 of 17 Page ID #:118



 1     Unlike in Cortez, Plaintiffs here do not seek payment of wages they had already earned.
 2     They seek payment of post-termination wages they would have earned had they remained
 3     employed. The loss of future economic benefit as the result of a termination is not
 4     considered “wages” to which a plaintiff is entitled restitution. See Lisec v. United
 5     Airlines, Inc., 10 Cal. App. 4th 1500, 1507 (finding that damages based on potential
 6     future earnings were not wages where “[n]one of the components of the damages award
 7     were to redress deprivation of wages earned or due for services already performed”).
 8              Thus, Plaintiffs have not presented a cognizable claim for restitution and this Court
 9     should strike Plaintiffs’ claims for such from its Prayer for Relief (See Complaint, Prayer
10     on the Second Cause of Action, ¶ 1) as well as any allegations pertaining thereto. (See
11     Complaint, ¶¶ 1, 28, 41-42.)
12     V.       CONCLUSION
13              Based on the foregoing, Gate Gourmet respectfully requests that the Court strike
14     Plaintiffs’ improper prayer for attorney’s fees, allegations and prayer for injunctive relief,
15     and allegations and prayer for restitution as is set forth in the Notice of Motion.
16
       DATED: December 28, 2020                           SEYFARTH SHAW LLP
17
18
                                                          By: /s/ Jill A. Porcaro
19                                                           Diana Tabacopoulos
                                                             Jill A. Porcaro
20                                                           Nolan R Theurer
                                                             Attorneys for Defendant
21                                                           GATE GOURMET, INC.
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             DEFENDANT GATE GOURMET’S MEMORANDUM OF POINTS AND AUTHORITIES
                              IN SUPPORT OF MOTION TO STRIKE
       67042565v.5


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