Case Name: Mill Lane Productions, LLC v. Apple, Inc.
Case No.: 18-CV-340236

Currently before the Court are the demurrer and motion to strike by defendant Apple, Inc. (“Defendant”).

Factual and Procedural Background

This is an action for fraud and violation of Business and Professions Code section 17200, et seq. (“UCL”).

Plaintiff Mill Lane Productions, LLC (“Plaintiff”) is the developer of Konverti, “a Peer to Peer Currency Exchange application.” (First Amended Complaint (“FAC”), ¶ 5.) “Konverti facilitates exchanges of small amounts of currency.” (Ibid.) “These transactions typically involve small amounts that someone would need coming into a country or would want to get rid of going out of a country.” (Ibid.) The identities of Konverti users are vetted through Defendant’s identity management system. (Id. at ¶ 6.) “Konverti users are tracked with their Apple IDs while using Konverti.” (Ibid.) Plaintiff alleges that Konverti is “low risk from a cash flow perspective and to [its] knowledge do[es] not trigger any legal or reporting requirements.” (Id. at ¶¶ 5-6.)

“Konverti was developed in the Apple Developer environment commencing Spring 2016 … .” (FAC, ¶ 6.) “Plaintiff invested a significant amount of time, effort, expense, and resources into Konverti’s development and business plan.” (Id. at ¶ 7.) While Konverti was being developed, “Plaintiff provided full transparency that Konverti facilitates exchanges of small amounts of cash among international travelers in airports.” (Ibid.) “Defendant was aware of the app and the purpose and intent of the app.” (Id. at ¶ 13.) Plaintiff “worked closely with [Defendant] in the development process and at no point during its development did [Defendant] indicate that the … concept was a violation of a policy or even risked being excluded from the Apple App Store.” (Id. at ¶ 8.) “Based on [Defendant’s] positive feedback, [Plaintiff] continued to invest in the development of [Konverti]” and “invested over $150,000 developing and marketing Konverti.” (Ibid.)

Konverti “was approved and included in the Apple App Store on or about June 2017.” (FAC, ¶¶ 6, 9, & 13.)

Shortly thereafter, Konverti was removed from the store. (FAC, ¶ 9.) Plaintiff received the following reason for the removal:

Guideline 5.0 – Legal
We continue to find your app still facilitates individuals meeting in person for currency exchange, which is not an appropriate concept for the App Store. It would be appropriate to review your app concept and remove all content and features that are illegal in the locations where your app is available.

(Ibid.) Guideline 5.0 allegedly states:

Apps must comply with all legal requirements in any location where you make them available (if you’re not sure, check with a lawyer). We know this stuff is complicated, but it is your responsibility to understand and make sure your app conforms with all local laws, not just the guidelines below. And of course, apps that solicit, promote, or encourage criminal or clearly reckless behavior will be rejected. In extreme cases, such as apps that are found to facilitate human trafficking and/or the exploitation of children, appropriate authorities will be notified.

(FAC, ¶ 10.)

Defendant allegedly “represented to Plaintiff that [Konverti] was in compliance with all Apple App Store policies and did not violate legal guidelines … .” (FAC, ¶ 12.) “If[ ] [Defendant’s] reason for removing Konverti is correct, then when [Defendant] made its express representations and warranties …, it had no sufficient or reasonable grounds for believing them to be true … .” (Id. at ¶ 13.) Additionally, “[i]f [Konverti was] not in compliance, [Defendant] was under a duty to disclose the above material facts at the inception.” (Id. at ¶¶ 12-13.) “Instead, [Defendant] either intentionally or negligently failed to do so, thus, inducing Plaintiff to spend over $150k developing and marketing Konverti for over 2 years.” (Id. at ¶¶ 12-14.) “Had Plaintiff been aware, it would not have expended time and resources in developing the product.” (Id. at ¶¶ 12-13 & 15.)

Based on the foregoing allegations, Plaintiff filed the operative FAC against Defendant, alleging causes of action for: (1) negligent misrepresentation; and (2) violation of the UCL.

On April 10, 2019, Defendant filed the instant demurrer and motion to strike. Plaintiff filed papers in opposition to both matters on May 29, 2019. On June 4, 2019, Defendant filed reply papers in support of its demurrer and motion to strike.

Discussion

I. Procedural Issue

Preliminarily, Defendant argues that Plaintiff’s opposition papers were untimely filed and, therefore, should not be considered.

A stipulation and order regarding the briefing scheduled on Defendant’s demurrer and motion to strike was filed on April 23, 2019. According to the stipulation and order, any opposition to the demurrer and motion to strike was due on May 14, 2019. Plaintiff filed its opposition papers approximately two weeks late on May 29, 2019.

The Court has discretion under California Rules of Court, rule 3.1300(d) to refuse to consider late-filed papers. (Cal. Rules Ct., rule 3.1300(d); Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.)

Here, Defendant does not appear to have been prejudiced by the late filing of Plaintiff’s opposition papers as Defendant filed a substantive reply addressing Plaintiff’s arguments. Thus, in deference to the policy that matters should be decided on their merits, the Court, in its discretion, will consider the opposition papers despite the aforementioned defect. However, Plaintiff is admonished that failure to abide by California Rules of Court in the future may result in the Court’s refusal to consider its papers.

II. Demurrer

Defendant demurs to the first and second causes of action of the FAC on the ground of failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).)

A. Request for Judicial Notice

Defendant asks the Court to take judicial notice of the Apple App Store Review Guidelines (“Guidelines”) and the Konverti “About Konverti Currency Exchange” website, which are attached as Exhibits A and B to the declaration of Margaret E. Mayo (“Mayo”).

“Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 364; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)

Here, Defendant fails to establish that the Guidelines are a proper subject of judicial notice. “ ‘There is … a precondition to the taking of judicial notice in either its mandatory or permissive form—any matter to be judicially noticed must be relevant to a material issue.’ [Citations.]” (Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.) Defendant does not demonstrate that the particular version of the Guidelines of which it seeks judicial notice is the version that was in effect during the relevant time period (i.e., Spring 2016 to June 2017). Mayo simply declares that she “accessed this document from [Defendant’s] website on April 10, 2019.” (Mayo Dec., ¶ 11.) Furthermore, the Guidelines submitted by Defendant state that the document was “Last Updated: 19 December 2018.” (Mayo Dec., Ex. A, p. 24.) Consequently, Defendant has not established that the particular version of the Guidelines of which it seeks judicial notice is relevant to a material issue.
Next, Defendant also fails to demonstrate that Konverti’s website is a proper subject of judicial notice. Defendant asserts that the Court may take judicial notice of the website under Evidence Code section 452, subdivision (h) because: (1) “it is a publicly-available website, and therefore its contents are not reasonably subject to dispute and are capable of accurate determination”; (2) “[it] is Plaintiff’s own website, [and] Plaintiff cannot reasonably dispute the contents thereof”; and (3) “[it] explains how the Konverti App works, which is directly implicated by Plaintiff’s allegations in the Amended Complaint regarding the appropriateness of its app for the App Store.” (RJN, p. 3:20-26.)

Evidence Code section 452, subdivision (h) authorizes judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” “These include, for example, facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter.” (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.)

Konverti’s website and its contents do not fall within this subdivision as a general matter or under the particular circumstances presented here. Although Defendant insists that the subject website is Plaintiff’s, there is no evidence in the record conclusively establishing that Plaintiff owns the website in question. Additionally, the website is not incorporated into Plaintiff’s FAC, Plaintiff does not quote from the website, and there is no objective evidence by which the Court can determine the accuracy of the statements set forth on the website. Notably, the mere fact that the website and its contents are publicly available does not demonstrate that the material is not reasonably subject to dispute. (See Huitt v. Southern Cal. Gas Co. (2010) 188 Cal.App.4th 1586, 1604, fn. 10 [a court may not rely on the mere fact information is published on a website for the proposition that the information is not reasonably subject to dispute].) While it might be appropriate in some circumstances to take judicial notice of the existence of the website itself, the same is not true of its factual content especially since Defendant does not establish that the content is not reasonably subject to dispute. (See Searles Valley Minerals Operations, Inc. v. State Bd. of Equalization (2008) 160 Cal.App.4th 514, 519 [declining to take judicial notice of materials contained on the website pages of the American Coal Foundation and the U.S. Department of Energy]; see also Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 737 [declining to take judicial notice of general information on “Nurse Practitioner Practice” posted on the California Board of Registered Nursing website].)

For these reasons, Defendant’s request for judicial notice is DENIED.

B. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “ ‘[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice’ [citation].” (Hilltop Properties, Inc. v. State (1965) 233 Cal.App.2d 349, 353; see Code Civ. Proc., § 430.30, subd. (a).) “ ‘It is not the ordinary function of a demurrer to test the truth of the … allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. … .’ [Citation.] Thus, … ‘the facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation.]’ [Citations.]” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958.)

C. First Cause of Action

In the first cause of action, Plaintiff alleges that Defendant “represented to [it] that [Konverti] was in compliance with all Apple App Store policies and did not violate legal guidelines … .” (FAC, ¶ 12.) Plaintiff further alleges that “[i]f[ ] [Defendant’s] reason for removing Konverti is correct, then when [Defendant] made its express representations and warranties …, it had no sufficient or reasonable grounds for believing them to be true … .” (Id. at ¶ 13.) “[I]f [Konverti was] not in compliance, [Defendant] was [allegedly] under a duty to disclose the above material facts at the inception.” (Id. at ¶¶ 12-13.) Plaintiff alleges that “[Defendant] either intentionally or negligently failed to do so, thus, inducing Plaintiff to spend over $150k developing and marketing Konverti for over 2 years.” (Id. at ¶¶ 12-14.) Finally, Plaintiff alleges that if it “[h]ad … been aware [of the true facts], it would not have expended time and resources in developing the product.” (Id. at ¶¶ 12-13 & 15.)

Based on the foregoing allegations, it appears that Plaintiff attempts to allege a claim for negligent misrepresentation and a claim for nondisclosure.

The elements of negligent misrepresentation are: (1) a misrepresentation of a past or existing material fact; (2) made without reasonable ground for believing it to be true; (3) made with the intent to induce another’s reliance on the fact misrepresented; (4) justifiable reliance on the misrepresentation; and (5) resulting damage. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 196; Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184 [“The elements of negligent misrepresentation are similar to intentional fraud except for the requirement of scienter; in a claim for negligent misrepresentation, the plaintiff need not allege the defendant made an intentionally false statement, but simply one as to which he or she lacked any reasonable ground for believing the statement to be true.”].)

The elements of nondisclosure are: (1) the defendant had a duty to disclose the concealed or suppressed fact to the plaintiff; (2) the defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; and (3) the plaintiff was damaged as a result. (Jones v. ConocoPhillips (2011) 198 Cal.App.4th 1187, 1198.)

As Defendant persuasively argues, Plaintiff fails to plead sufficient facts to state a claim for negligent misrepresentation. The first cause of action is based, in large, part on Defendant’s alleged failure to disclose the fact that Konverti was not in compliance with various policies, guidelines, rules, and/or laws. But “[a] negligent misrepresentation claim ‘requires a positive assertion,’ not merely an omission.” (See Lopez v. Nissan N. Am., Inc. (2011) 201 Cal.App.4th 572, 596; Diediker v. Peelle Fin. Corp. (1998) 60 Cal.App.4th 288, 297.) Thus, Defendant’s alleged failure to disclose facts cannot form the basis of Plaintiff’s claim for negligent misrepresentation.

The first cause of action is also based on Defendant’s alleged approval of Konverti and its placement of Konverti in its store. (FAC, ¶¶ 6, 9, & 13.) However, the approval of Konverti and placement of Konverti in Defendant’s store do not constitute express representations that “[Konverti] was in compliance with all Apple App Store policies and did not violate legal guidelines … .” (FAC, ¶ 12.) At best, Defendant’s alleged approval of Konverti and its placement of Konverti in its store arguably constitute implied representations that Konverti complied with the store’s policies and legal guidelines. “Since the tort [of negligent misrepresentation] requires a ‘positive assertion,’ the doctrine does not apply to implied representations. [Citation.]” (Yanase v. Automobile Club of So. Cal. (1989) 212 Cal.App.3d 468, 473.) Thus, Defendant’s alleged approval of Konverti and its placement of Konverti in its store cannot form the basis of Plaintiff’s claim for negligent misrepresentation.

Finally, the negligent misrepresentation claim incorporates allegations that Plaintiff “worked closely with [Defendant]” and Defendant provided “positive feedback” to Plaintiff. (FAC, ¶ 8.) But the fact that Plaintiff worked closely with Defendant is not a representation of fact. To the extent Plaintiff contends the “positive feedback” provided by Defendant constitutes a misrepresentation of fact, the alleged misrepresentation is not pleaded with the requisite specificity. (See Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216 (Committee) [“Fraud actions are subject to strict requirements of particularity in pleading. … Accordingly, the rule is everywhere followed that fraud must be specifically pleaded.”].) Plaintiff does not describe the specific content of the positive feedback provided or state how, when, where, to whom, and by what means the positive feedback was provided. (See Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 638 [“[T]his particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ A plaintiff’s burden in asserting a claim against a corporate employer is even greater. In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.”].)

Furthermore, as Defendant persuasively argues, Plaintiff fails to plead sufficient facts to state a claim for nondisclosure. There are four scenarios “in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts.” (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336 (LiMandri); OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 859.)

Here, Plaintiff does not allege, and it does not otherwise appear, that Plaintiff and Defendant were in a fiduciary relationship. “Each of the other three circumstances in which nondisclosure may be actionable presupposes the existence of some other relationship between the plaintiff and defendant in which a duty to disclose can arise.” (LiMandri, supra, 52 Cal.App.4th at p. 336.) “As a matter of common sense, such a relationship can only come into being as a result of some sort of transaction between the parties.” (Id. at p. 337.) “Thus, a duty to disclose may arise from the relationship between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement.” (Ibid.) Plaintiff alleges no such transaction or relationship with Defendant. The only “transaction” underlying Plaintiff’s nondisclosure claim is the approval of Konverti and the placement of Konverti in Defendant’s store. Plaintiff alleges no existing or anticipated contractual relationship or any other relationship with Defendant that would give rise to a duty to disclose. Thus, Plaintiff has not alleged sufficient facts demonstrating that Defendant had a duty to disclose.

Accordingly, Defendant’s demurrer to the first cause of action on the ground of failure to allege facts sufficient to constitute a cause of action is SUSTAINED, with 10 days’ leave to amend.

D. Second Cause of Action

In the second cause of action, Plaintiff alleges that Defendant’s alleged conduct constitutes unlawful, unfair, and fraudulent conduct under the UCL. (FAC, ¶ 19.) Specifically, Plaintiff alleges that “Defendant has deceptively and unfairly: failed to implement policies and procedures that would prevent deceptive relief; induced Plaintiff to develop an application by making false representations and then arbitrarily removing it from the App Store based on information that was available to Defendant since the beginning of the relationship.” (Ibid.)

The UCL “prohibits ‘unfair competition,’ which it defines as ‘any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [Section 17500].” (Hansen v. Newegg.com Americas, Inc. (2018) 25 Cal.App.5th 714, 722 (Hansen), quoting Bus. & Prof. Code, § 17200.) “ ‘ “Because … section 17200 is written in the disjunctive, it establishes three varieties of unfair competition—acts or practices which are unlawful, or unfair, or fraudulent. ‘In other words, a practice is prohibited as “unfair” or “deceptive” even if not “unlawful” and vice versa.’ ” ’ ” [Citation.]” (Puentes v. Wells Fargo Home Mortgage, Inc. (2008) 160 Cal.App.4th 638, 644.) “ ‘The UCL’s purpose is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services.’ ” (Hansen, supra, 25 Cal.App.5th at p. 722, quoting Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949.)

As a preliminary matter, specificity is not required when pleading a claim under the UCL. Courts historically applied the ordinary fact-pleading standard to UCL claims. (See Committee, supra, 35 Cal.3d at pp. 209–212, superseded by statute on another ground as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) And, although courts have stated “[a] plaintiff alleging unfair business practices under [Section 17200] must state with reasonable particularity the facts supporting the statutory elements of the violation” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619), reasonable particularity “is a more lenient pleading standard than is applied to common law fraud claims” (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1261). Thus, to the extent Defendant seeks to have the Court impose a higher pleading standard, its argument is not well-taken.

With respect to the fraudulent prong of the UCL, “[a] fraudulent business practice [under the UCL] is one which is likely to deceive the public.” (McKell v. Wash. Mut., Inc. (2006) 142 Cal.App.4th 1457, 1471, citing Mass. Mut. Life Ins. Co. v. Super. Ct. (2002) 97 Cal.App.4th 1282, 1290.) “The determination as to whether a business practice is deceptive is based on the likely effect such practice would have on a reasonable consumer.” (Ibid. citing Lavie v. Proctor & Gamble Co. (2003) 105 Cal.App.4th 496, 507.) “[T]he question of ‘[w]hether a practice is deceptive or fraudulent ‘cannot be mechanistically determined under the relatively rigid legal rules applicable to the sustaining or overruling of a demurrer.” [Citation.] Rather, the determination is one question of fact, requiring consideration and weighing of evidence from both sides before it can be resolved.’ [Citation.] ‘[U]nless we can say as a matter of law that contrary to the complaint’s allegations, members of the public were not likely to be deceived or misled by [the defendant’s alleged conduct], we must hold that [plaintiffs] stated a cause of action.’ [Citation.]” (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1380–1381.) At this time, the Court is not prepared to say, as a matter of law, that members of the public were not likely to be deceived or misled by Defendant’s alleged approval of Konverti and its placement of Konverti in its store.

Regarding the unfair prong, “[a] business practice is unfair within the meaning of the UCL if it violates established public policy or if it is immoral, unethical, oppressive or unscrupulous and causes injury to consumers which outweighs its benefits. [Citations.] The determination whether a business practice is unfair ‘ “ ‘involves an examination of [that practice’s] impact on its alleged victim, balanced against the reasons, justifications and motives of the alleged wrongdoer. In brief, the court must weigh the utility of the defendant’s conduct against the gravity of the harm to the alleged victim…. [Citations.]’ [Citation.]” ’ [Citation.] As with the determination whether a practice is fraudulent, the determination whether it is unfair is one of fact which requires a review of the evidence from both parties. [Citation.] It thus cannot usually be made on demurrer. [Citations]” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1473.) At this time, the Court is not prepared to say, as a matter of law, that Defendant’s alleged approval of Konverti and its placement of Konverti in its store was not unfair.

Accordingly, Defendant’s demurrer to the second cause of action on the ground of failure to allege facts sufficient to constitute a cause of action is OVERRULED.

III. Motion to Strike

Defendant moves to strike the following portions of the FAC: paragraphs 21 and 23-25, which seek injunctive relief under the UCL; paragraph 22, which seeks “actual damages” under the UCL; paragraph 25, which seeks “attorney’s fees” under the UCL; paragraph 1 of the Prayer for Relief, which seeks “an Injunction against Defendants to reinstate Konverti to the App Store”; paragraph 2 of the Prayer for Relief, to the extent it seeks “compensatory, special and general damages in an amount according to proof at trial, but not less than $150,000, against all Defendants” under the UCL; and paragraph 3 of the Prayer for Relief, which seeks “reasonable attorney’s fees and costs.”

A. Legal Standard

Under Code of Civil Procedure section 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).) In ruling on a motion to strike, the court reads the pleading as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, citing Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

B. Monetary Damages

Defendant moves to strike paragraph 22 in its entirety and paragraph 2 of the Prayer for Relief, to the extent it seeks monetary damages under the UCL, arguing that monetary damages are not permitted under the UCL.

In opposition, Plaintiff does not address Defendant’s argument regarding monetary damages sought in connection with its UCL claim.

“While private individuals can sue under the UCL [citation], courts can issue orders only to prevent unfair competition practices and ‘to restore to any person in interest any money or property … which may have been acquired by means of such unfair competition’ [citation]. Thus, a private plaintiff’s ‘remedies are “ ‘generally limited to injunctive relief and restitution.’ ” [Citations.]’ ” (Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1401.) Under the UCL, an order for “restitution” is one “ ‘compelling a UCL defendant to return money obtained through an unfair business practice to those persons in interest from whom the property was taken, that is, to persons who had an ownership interest in the property or those claiming through that person.’ [Citation.]” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144–1145.) “In fact, ‘restitution is the only monetary remedy expressly authorized by section 17203.’ [Citation.]” (Ibid.)

Here, Plaintiff does not allege that Defendant acquired any money or property as the result of the alleged unfair business act or practice. Therefore, Plaintiff does not seek restitution. Because Plaintiff is not entitled to any other monetary remedy under the UCL, Plaintiff’s request for monetary damages is improper.

Accordingly, Defendant’s motion to strike paragraph 22 in its entirety and paragraph 2 of the Prayer for Relief, to the extent it seeks monetary damages under the UCL, is GRANTED, without leave to amend. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [a plaintiff has the burden to show in what manner the complaint can be amended and how that amendment will change the legal effect of the pleading].)

C. Attorney Fees

Defendant states that Plaintiff’s request for attorney fees should be stricken from the FAC because Plaintiff has not pleaded any basis for the recovery of attorney fees.

“Under California law, ‘each party to a lawsuit must pay its own attorney fees unless a contract or statute or other law authorizes a fee award.’ [Citations.] Thus, unless specifically provided by statute or agreement, attorney fees are not recoverable.” (K.I. v. Wagner (2014) 225 Cal.App.4th 1412, 1420-21.) The contractual or statutory basis for such fees, where requested, are to be alleged within the body of the complaint. (Wiley v. Rhodes (1990) 223 Cal.App.3d 1470, 1474.)

Upon review of the FAC, it is readily apparent that a contractual or statutory basis for the request for attorney fees has not been alleged. Thus, the request for attorney fees is not adequately pleaded.

In opposition, Plaintiff contends that it is entitled to seek attorney fees under Code of Civil Procedure section 1021.5. But, as currently pleaded, the FAC makes no reference to that statute.

Accordingly, Defendant’s motion to strike paragraph 3 of the Prayer for Relief and paragraph 25, to the extent it seeks to recover attorney fees, is GRANTED, with 10 days’ leave to amend.

D. Injunctive Relief

Defendant argues that the request for injunctive relief should be stricken. Defendant points out that Plaintiff seeks monetary damages in connection with its first cause of action, and concludes that those monetary damages would be sufficient to remedy the alleged harm. Defendant cites Prudential Home Mortgage Co. v. Superior Court (1998) 66 Cal.App.4th 1236, 1249 (Prudential) for the general proposition that the availability of injunctive relief “is subject to fundamental equitable principles, including inadequacy of the legal remedy.”

Defendant’s argument is not well-taken. In Prudential, equitable relief was deemed unnecessary because statutory relief (title insurance recording release of obligation) provided the same relief being sought by equitable means (reconveyance of deed). Here, Defendant has not affirmatively demonstrated how the remedy at law (i.e., monetary damages sought in connection with the first cause of action) will provide the same relief being sought by injunction.

Accordingly, Defendant’s motion to strike paragraphs 21 and 23 in their entirety and paragraph 25, to the extent it seeks injunctive relief, is DENIED.