On 10/01/2021 FABIAN NUNEZ filed a Labor - Other Labor lawsuit against MERCURY PUBLIC AFFAIRS LLC, A DELAWARE LIMITED LIABILITY COMPANY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is BARBARA M. SCHEPER. The case status is Pending - Other Pending.
Pending - Other Pending
BARBARA M. SCHEPER
ACTUM CA OPCP LLC
ACTUM UK OPCO LLC
MERCURY PUBLIC AFFAIRS LLC
REYNOLDS JEREMIAH T. ESQ.
MOHEBBI NIMA HABIB
HAMMEL JEFF G.
KIRSCHNER JUSTIN S.
1/25/2022: Notice of Ruling
1/24/2022: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
1/24/2022: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10);)
1/19/2022: Notice - NOTICE OF REMOTE APPEARANCE AT HEARING ON DEFENDANT'S DEMURRER TO AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT
1/14/2022: Reply - REPLY IN SUPPORT OF DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT
1/14/2022: Reply - REPLY IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS FIRST AMENDED COMPLAINT
1/10/2022: Opposition - OPPOSITION TO MOTION TO STRIKE
1/10/2022: Opposition - OPPOSITION TO MOTION TO DEMURRER
12/15/2021: Notice - NOTICE NOTICE OF ENTRY OF STIPULATION AND PROTECTIVE ORDER-CONFIDENTIAL AND HIGHLY CONFIDENTIAL DESIGNATIONS
Hearing11/17/2022 at 08:30 AM in Department 30 at 111 North Hill Street, Los Angeles, CA 90012; Non-Appearance Case ReviewRead MoreRead Less
Hearing03/01/2022 at 08:30 AM in Department 30 at 111 North Hill Street, Los Angeles, CA 90012; Case Management ConferenceRead MoreRead Less
DocketNotice of Ruling; Filed by FABIAN NUNEZ (Plaintiff); KIRILL GONCHARENKO (Plaintiff); ACTUM CA OPCP LLC (Plaintiff) et al.Read MoreRead Less
Docketat 08:30 AM in Department 30, Barbara M. Scheper, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - HeldRead MoreRead Less
DocketMinute Order ( (Hearing on Demurrer - with Motion to Strike (CCP 430.10);)); Filed by ClerkRead MoreRead Less
DocketOrder Appointing Court Approved Reporter as Official Reporter Pro TemporeRead MoreRead Less
DocketNotice (OF REMOTE APPEARANCE AT HEARING ON DEFENDANT'S DEMURRER TO AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT); Filed by MERCURY PUBLIC AFFAIRS LLC (Defendant)Read MoreRead Less
DocketReply (in Support of Motion To Strike Portions of Plaintiffs First Amended Complaint); Filed by MERCURY PUBLIC AFFAIRS LLC (Defendant)Read MoreRead Less
DocketReply (in Support of Demurrer to Plaintiffs First Amended Complaint); Filed by MERCURY PUBLIC AFFAIRS LLC (Defendant)Read MoreRead Less
DocketOpposition (To Motion To Demurrer); Filed by FABIAN NUNEZ (Plaintiff); KIRILL GONCHARENKO (Plaintiff); ACTUM CA OPCP LLC (Plaintiff) et al.Read MoreRead Less
DocketNotice (of case management conference); Filed by FABIAN NUNEZ (Plaintiff); KIRILL GONCHARENKO (Plaintiff)Read MoreRead Less
DocketProof of Personal Service; Filed by FABIAN NUNEZ (Plaintiff); KIRILL GONCHARENKO (Plaintiff)Read MoreRead Less
DocketProof of Personal Service; Filed by FABIAN NUNEZ (Plaintiff); KIRILL GONCHARENKO (Plaintiff); ACTUM CA OPCP LLC (Plaintiff) et al.Read MoreRead Less
DocketSummons (on Complaint (1st)); Filed by FABIAN NUNEZ (Plaintiff); KIRILL GONCHARENKO (Plaintiff); ACTUM CA OPCP LLC (Plaintiff) et al.Read MoreRead Less
DocketAmended Complaint ( (1st)); Filed by FABIAN NUNEZ (Plaintiff); KIRILL GONCHARENKO (Plaintiff)Read MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by ClerkRead MoreRead Less
DocketSummons (on Complaint); Filed by FABIAN NUNEZ (Plaintiff); KIRILL GONCHARENKO (Plaintiff)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by FABIAN NUNEZ (Plaintiff); KIRILL GONCHARENKO (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by FABIAN NUNEZ (Plaintiff); KIRILL GONCHARENKO (Plaintiff)Read MoreRead Less
Case Number: 21STCV36104 Hearing Date: January 24, 2022 Dept: 30
Nunez, et al. vs. Mercury Public Affairs LLC, et. al., Case No. 21STCV36104
Tentative Ruling re: Defendant’s Demurrer to First Amended Complaint; Motion to Strike
Defendant Mercury Public Affairs, LLC (Defendant) demurs to the second and third causes of action in the First Amended Complaint (FAC) of Plaintiffs Fabian Nunez, Kirill Goncharenko, Actum CA Opco LLC, and Actum UK Opco LLC. The demurrer is sustained, with ten (10) days leave to amend.
In reviewing the legal sufficiency of a complaint against a demurrer, a court will treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled that a “demurrer lies only for defects appearing on the face of the complaint[.]” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Guclimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes omitted).) For purposes of ruling on a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)
When ruling on a demurrer, the Court may only consider the complaint’s allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at p. 318.) The Court may not consider any other extrinsic evidence or judge the credibility of the allegations plead or the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint, liberally construed, fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578.)
Second Cause of Action for Unfair Competition (Bus. & Prof. Code 17200)
Defendant argues that Plaintiffs lack standing under the UCL The Court agrees.
California’s Unfair Competition Law (UCL) prohibits unlawful, unfair, or fraudulent business acts or practices. (Bus. & Prof. Code, 17200 et seq.) “An ‘unlawful business activity’ includes ‘anything that can properly be called a business practice and that at the same time is forbidden by law.’” (People v. McKale (1979) 25 Cal.3d 626, 632 [quoting Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 113].) “Virtually any law or regulation—federal or state, statutory or common law, can serve as a predicate for a Business and Professions Code section 17200 ‘unlawful’ violation. [Citation.]” (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 681 [internal quotations omitted].)
An individual has standing for a 17200 claim only if they have “suffered injury in fact” and have “lost money or property as a result of the unfair competition.” (Bus. & Prof. Code, 17204.) To establish standing, a plaintiff must “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” (Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 332 [emphasis in original].) The UCL incorporates the meaning of an “injury in fact” under federal law, which defines the term as “an invasion of a legally protected interest which is (a) concrete and particularized, [citations]; and (b) ‘actual or imminent, not “conjectural” or “hypothetical.”’ [citations].” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322 [quoting Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 560]; see Van Patten v. Vertical Fitness Group, LLC (9th Cir. 2017) 847 F.3d 1037, 1049.)” [A] plaintiff suffers an injury in fact for purposes of standing under the UCL when he or she has: (1) expended money due to the defendant's acts of unfair competition [Citations.] . . . (2) lost money or property [Citation.] . . . or (3) been denied money to which he or she has a cognizable claim [Citations.].” (Hall v. Time Inc. (2008) 158 Cal.App.4th 847, 854-55.)
The Court finds that Plaintiffs have failed to allege an injury-in-fact. There are no allegations that Plaintiffs have expended money, lost money, or property, or been denied money to which they have a claim as a result of the alleged unfair competition. The damages described are conjectural or hypothetical, rather than actual or imminent. (Kwikset Corp., supra, 51 Cal.4th at 853.) The FAC alleges, “Mercury’s efforts to enforce the Agreements against Nunez and Goncharenko, and therefore restrain them from competing with Mercury . . . will greatly injure the Newcos, which will lose substantial revenue if Nunez and Goncharenko are no longer able to continue generating business for the Newcos.” (FAC 45 [emphasis added].) The use of the future tense indicates that Plaintiffs’ alleged damages have not yet occurred. Furthermore, Plaintiffs’ allegation that “they have been harmed and will continue to lose money and property as a result of Mercury’s conduct” is conclusory. (FAC 47.)
Therefore, the demurrer to the second cause of action is sustained.
Third Cause of Action for Permanent Injunction
Defendant demurs to the third cause of action on the basis that “Permanent Injunction” is not a cause of action under California law.
“An injunction is a remedy, not a cause of action. Therefore, it may not be issued if the underlying causes of action are not established.” (Venice Coalition to Preserve Unique Community Character v. City of Los Angeles (2019) 31 Cal.App.5th 42, 54.) Courts have permitted a request for injunctive relief framed as a cause of action to proceed when other claims provide a basis for such relief. (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 585 [denying summary adjudication of “claim for injunctive relief” after holding that other causes of action may be established]; compare Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 65-66 [“Although the order sustaining the demurrer was proper because an injunction is not a cause of action, plaintiffs may still obtain injunctive relief if they prevail on a cause of action”].)
Since the demurrer is sustained as to the UCL cause of action, which could provide a basis for injunctive relief, the demurrer is likewise sustained as to the claim for a permanent injunction.
Motion to Strike
Here, Defendant moves to strike portions of the FAC under the second cause of action, and the request for restitution made pursuant to that claim. Because the Court sustains the demurrer to the second cause of action, the motion to strike is moot.
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