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REICKER, PFAU, PYLE & McROY LLP Superior Court of California
1421 State Street, Suite B County of Santa Barbara
Santa Barbara, CA 93101
Tel (805) 966-2440 DarrelE. Parker, Executive Officer
Fax (805) 966-3320 4/1/2021 7:00 PM
Kevin R. Nimmons (State Bar No. 261577) By: Elizabeth Spann, Deputy
knimmo.
Meghan K. ‘Woodsome2 (State
( Bar No. 272459)
Cory T. Baker (StateBar No 315763)
chelean@orppmh.oom com.
Attomeys for Defendants
Andrew Waters and FCP Private, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SANTA BARBARA— ANACAPA DIVISION
11 MARK SCHAUB, an individual; TLG LTD Case No.: 20CV02113
a Hong Kong limited Liability company Assigned to: Hon. Donna D. Geck
12
Plaintiffs, NOTICE OF MOTION AND MOTION
13 TO STRIKE FIRST AMENDED
Vv.
COMPLAINT; MEMORANDUM OF
14
ANDREW WY LES WATERS, an POINTS AND AUTHORITIES
15 individual; FCP CORPORATION LTD., a DECLARATION OF KEVIN R
Hong Kong limited liability company; FCP NIMMONS REGARDING MEET AND
16 PRIVATE, LLC, a Califomia limited CONFER AND EXHIBIT THERETO
liabil: corporation; and DOES 1 through
17 10,i USIVE, [Filed concurrently herewith: Notice of
Denunrer and Denunrer to First Amended.
18 Defendants. Complaint; Memorandum; Dediaration]
19 Date: June4, 2021
Time: 10:00am.
20 Dept:4
21
TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD
NOTICE IS HEREBY GIVEN
that on June 4, 2021, at 10:00 am, or as soon thereafter
as
24 counsel can
be heard, in Department
4 of the above-entitled Court, located at 1100 Anacapa
Street,
25 Santa Barbara, CA 93101, Defendants ANDREW WY LES WATERS, an individual ("Waters") and
26 FCP PRIVATE, LLC, a Califomia limited liability company (erroneously sued as a "corporation")
27 ("FCP Private") (collectively, Defendants"), will move this Court for an order striking the
following parts of the Verified First Amended Complaint ("FAC") filed by Plaintiffs.
MOTION TO STRIKE FIRST AMENDED COMPLAINT: Page 1
1. The following phrase in the Prayer for Relief on page nine of the FAC in item (3):
“equitable relief in the form of an injunction prohibiting the elicit conduct described
herein"; and
2. The following phrases in the Prayer for Relief on page nine of the FAC in item (4):
“reasonable attomey's fees" and. "other expenses of litigation incurred in this action."
This motion is brought pursuant to Code
of Civil Procedure
§§ 435, et seq., on grounds that
the above items are improper and inrelevant. There
is no legal basis for an award of attomey's
fees
in this case, nor for any injunctive relief. The motion is supported by this Notice of Motion and.
Motion to Strike, the attached Memorandum of Points and Authorities in support thereof, the
10 attached Declaration of Kevin R. Nimmons in support thereof, the records and files of this action,
11 and any such further oral and written arguments as may be submitted to the Court at the hearing.
12
13 DATED: Apuil 1, 2021 REICKER, PFAU, PYLE & McROY LLP
14
15 By IL /V—
Kevin R. Nimmons
16 Meghan K. Woodsome
Cory T. Baker
17 Attorneys for Defendants
Andrew Waters, FCP Corporation, Ltd.,
18 and FCP Private, LLC
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MOTION TO STRIKE FIRST AMENDED COMPLAINT: Page 2
MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION
The Plaintiffs' First Amended Verified Complaint ("FAC") requests relief for which
Plaintiffs are not entitled to under Califomia law. This case is for alleged conversion of money from
a bank account. The FAC also alleges fraud and unjust enrichment, against which Defendants
Waters and FCP Private (collectively, Defendants") have concurrently filed a demunrer
to be heard
alongside this motion to strike.
Plaintiffs allege that "by mistake" they transferred funds to Defendants’ accounts, which are
owned and controlled by Defendants, and Defendants allegedly refused to retum the funds. (FAC,
10 3:2-6; 6:7-8; 6:9-10.) Plaintiffs further allege that Defendants lied about whether Defendants could
11 transfer the money back to Plaintiffs. (Id., 4:10-22.)
12 Plaintiffs improperly seek an award of attomey's fees and injunctive relief. Neither are
13 proper in this case. Nevertheless, Plaintiffs refuse to amend their FAC.
14 Injunctive relief is improper because any harm or wrongdoing has already been completed
15 and there is no indication or allegation that future harm will occur. Moreover, damages are an
16 appropriate remedy for conversion of funds, not an injunction.
17 There are no grounds for an attomey's fee award. This case does not concem any contract,
18 let alone a contract for which a contractual attomey's fee provision could apply. Further, this case
19 does not concem any statute giving rise to attomey's fees. Defendants' counsel made Plaintiffs’
20 counsel aware of this through meet and confer efforts, but Plaintiffs' counsel refusedto amend their
21 FAC. (See Declaration of Kevin Nimmons; Ex. 1.)
Therefore, Defendants request that the Court strike this improper matter alleged in the
Prayer for Relief: (1) “equitable relief in the form of an injunction prohibiting the elicit conduct
24 described herein” (Id., 9:12-13); and (2) “reasonable attomey’s fees and. "other expenses of litigation.
25 incurred
in this action.” (Id., 9:15-16.)
26 Il. THIS MOTION TO STRIKE IS PROPER.
27 Code of Civil Procedure ("CCP") § 436 provides that, on a motion pursuant
to CCP § 435,
or at its own discretion, a court may strike out irrelevant, false, or improper matter or strike out all
MOTION TO STRIKE FIRST AMENDED COMPLAINT: Page 3
or any part of any pleading not drawn or filed in conformity with statutes, rules, or court orders.
CCP § 437 specifies that the grounds for a motion to strike must appear on the face of the
challenged pleading or from any matter of which the court is required
to take judicial notice.
Califomia Rules of Court, rule 3.1322(a) requires that, “a notice of motion to strike a portion
of a pleading must quote in full the portions sought to be stricken except where the motion is to
strike an entire paragraph, cause
of action, count, or defense.”
A motion to strike is the procedure to attack an improper remedy. (Venice
Town Council,
Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562; Grieves v. Superior
Court (1984) 157 Cal.App.3d 159, 166, fn. 9.)
10 Here, the items to be stricken are in the Prayer for Relief requesting attomey's fees and
11 injunctive relief. Both are improper.!
12 A Attorney's Fees Are Not Available in this Case.
13 Under CCP § 1033.5, a prevailing party may recover attomey's fees only when authorized
14 by law, contract, or statute. The FAC seeks an award of attomey's fees in the Prayer for Relief.
15 However, there are no allegations that identify any law, contract provision, or statute that authorizes
16 the Plaintiffs to recover attomey’s fees, even if they prevail on their claims.
17 No contract is alleged in the FAC. The causes of action are for fraud, conversion, and unjust
18 enrichment. Attomey’'s fees are not recoverable in an action based on fraud, in the absence
of a
19 contract provision encompassing such fees. The rule is well settled that attomeys' fees are not
20 recoverable as damages in actions of conversion. (W.R. Bradshaw & Co. v. Eggers (1915) 27
21 Cal.App. 132, 134; Civil Code§ 3336 [damages for conversion].)
During the parties' meet and confer conference, Plaintiffs' counsel failed to provide any legal
support for an award of attomey's fees in this case. Therefore, the claim for attomey’s fees should be
24 stricken.
25 ///
26 ///
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1 As set forth in the appended declaration of lead counsel for Defendants, Kevin R. Nimmons, this Motion to
Strike is timely because Plaintiffs' counsel extended the deadline for Defendants to file any responsive
pleading until Apmil 1, 2021.
MOTION TO STRIKE FIRST AMENDED COMPLAINT: Page 4
B. Injunctive Relief Is Not Available in This Case.
The FAC's causes of action are for fraud, conversion, and unjust enrichment. Plaintiffs claim
that Defendants stole funds from Plaintiffs when Plaintiffs "by mistake" transferred some $2 million
to Defendants and Defendants refused to retum the funds and made misrepresentations as to the
reasons why they would not retum the funds. Plaintiffs claim monetary damages in an unknown
amount, and they also improperly claim injunctive relief is warranted.
Code of Civil Procedure§ 526 govems when an injunction
may be issued:
"(a) An injunction
may be granted in the following cases:
(1) When it appears by the complaint that the plaintiff is entitled to the
relief demanded, and the relief, or any part thereof, consists in
10 restraining the commission or continuance of the act complained of,
either for a limited period or perpetually.
11
(2) When it appears by the complaint or affidavits that the commission
12 or continuance of some act during the litigation would produce waste,
or great or irreparable injury, to a party to the action.
13
(3) When it appears, during the litigation, that a party to the action is
14 doing, or threatens, or is about to do, or is procuring or suffering to be
done, some act in violation of the rights of another party to the action
15 respecting the subject of the action, and tending to render the judgment
ineffectual.
16
(4) When pecuniary compensation would not afford adequate relief.
17 (5) Where it would be extremely difficult
to ascertain the amount of
compensation which would afford adequate relief.
18
(6) Where the restraint is necessary to prevent a multiplicity of judicial
19 proceedings.
(7) Where
the obligation arises froma trust."
20
21 (CCP § 526(a).) One having an adequate remedy at law may not resort to equity for injunctive
relief. (North Side Property Owners' Ass'n v. Hillside Memorial Park (1945) 70 Cal.App.2d 609,
615.) Where damages can be easily determined, an injunction is not appropriate. (Shabaz v. Polo
24 Ralph Lauren Corp. (C.D. Cal. 2008) 586 F.Supp.2d 1205, 1210.)
25 "[A]Jn injunction lies only to prevent threatened injury and has no application to wrongs
26 which have been completed." (Gold v. Los Angeles Democratic League (1975) 49 Cal.App.3d 365,
27 372.) In order to authorize issuance of injunction, it must appear with reasonable certainty that
wrongful acts will be continued
or repeated. (Ibid.)
MOTION TO STRIKE FIRST AMENDED COMPLAINT: Page5
Not one of the specified seven grounds for an injunction listed in CCP § 526 exist in this
case. Plaintiffs alleged that "by mistake" they wired $2 million to Defendants’ accounts and
Defendants refused to retum the funds. The acts complained of in the FAC have already allegedly
occurred (e.g., Plaintiffs’ funds converted). There is no allegation of threatened or future similar
acts. Therefore, the complaint is not of a continuing character.
There is no indication that the legal remedy of damages will not fully compensate Plaintiffs.
Plaintiffs seek damages for alleged conversion of a specific amount of funds. The remedy for
conversion is an award of money damages under Cal. Civil Code § 3336. However, pursuant to
CCP § 526, there are no grounds for an injunction.
10 TI. DEFENDANTS' MEET AND CONFER EFFORTS FAILED TO RESOLVE ISSUES;
11 PLAINTIFFS DID NOT MEANINGFULLY RESPOND TO DEFENDANTS' MEET
12 AND CONFER EFFORTS.
13 Prior to filing this motion to strike and accompanying denumer, lead counsel for
14 Defendants, Mr. Kevin Nimmons, sent to Plaintiffs' counsel a meet and confer letter
by e-mail and
15 mail on March 10, 2021, which is attached hereto as Exhibit 1 to Mr. Nimmons' declaration
16 ("Nimmons Dec."). That letter explained
the deficiencies in the FAC with regard to the requests for
17 attomey's fees and injunctive relief. (Nimmons Dec., 113.)
18 Plaintiffs’ counsel, Ms. Diane Bang, responded to the letter offering to participate in a
19 telephone conference, which occurred on March 16, 2021, at 3:00 pm, and lasted only
20 approximately eight minutes. (Id., {| 4.) At that conference, Mr. Nimmons, expected to hear legal
21 support for Plaintiffs' position and for Plaintiffs' counsel to address the specific issues in the meet
and confer letter. However, Plaintiffs' counsel provided no valid arguments as to why injunctive
relief was proper in this case, other than to state that Defendants performed illegal and wrongful
24 acts. Plaintiffs refused to amend their FAC. (Id., 15.)
25 //1
26 //1
27 //1
//1
MOTION TO STRIKE FIRST AMENDED COMPLAINT: Page 6
1 Iv. CONCLUSION
For the forgoing reasons, Defendants respectfully request that the Court grant this motion to
strike the above referenced portions of Plaintiffs' FAC.
Dated: April 1, 2021 REICKER, PFAU, PYLE AND McROY LLP
By Me (VM
Kevin R. Nimmons
Meghan K. Woodsome
Cory T. Baker
Attorneys for Defendants
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MOTION TO STRIKE FIRST AMENDED COMPLAINT: Page7
DECLARATION OF KEVIN R. NIMMONS
I, KevinR. Nimmons, declare that:
1 I am an attomey at law duly licensed to practice before all Courts of the State of
Califomia. I ama partner of the law firm of Reicker, Pfau, Pyle & McRoy LLP, attomeys of record.
for Andrew Waters and FCP Private, LLC in this action. I have personal knowledge of the matters
stated herein, except as to those matters stated on information and belief, and as to those matters,I
believe
them to be true. If called
to testify, I could and would competently testify to the facts stated
herein.
2. On February 25, 2021, Plaintiffs’ counsel responded to my email communication
10 granting an extension to April 1, 2021 for Defendants to file responsive pleadings to the First
11 Amended Complaint ("FAC"). As such, this motion to strike and accompanying demunrer are
12 timely.
13 3, On March 10, 2021, prior to filing this motion to strike and accompanying demurrer,
14 my office sent by email and mail to Plaintiffs' counsel the meet and confer letter attached hereto as
15 Exhibit 1. That letter explained the deficiencies in the FAC with regard to the requests for
16 attomey’s fees and injunctive relief.
17 4. In response to the letter and to a similar letter regarding Defendants' accompanying
18 denumrer, Plaintiffs' counsel, Ms. Diane Bang, offered to have a meet and confer telephone
19 conference. That conference occurred on March 16, 2021, at 3:00 p.m, and lasted approximately
20 eight minutes.
21 5, At that conference, I expected to hear legal support for Plaintiffs' position and for
Ms. Bang to address the specific issues in the meet and confer letter. However, Plaintiffs' counsel
did not provide
any legal support and merely stated that she believed perhaps fraud could give rise
24 to an award of attomey's fees and that the request for injunctive relief was proper because
25 Defendants had committed wrongful and illegal acts. Plaintiffs cited no legal support for their
26 position and refused to amend the FAC. The telephone conference ended after nearly eight minutes.
27 ///
///
MOTION TO STRIKE FIRST AMENDED COMPLAINT: Page 8
I declare under penalty of perjury
under the laws of the State of Califomia
that the foregoing
is true and correct.
Dated: April 1, 2021
Kevin R. Nimmons
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MOTION TO STRIKE FIRST AMENDED COMPLAINT: Page 9
EXHIBIT 1
REICKER PFAU ATTORNEYS AT LAW
ALAN A. BLAKEBORO 1421 STATE STREET
JOHN G. BUSBY eB
R. MARK CARNEY SANTA BARBARA, CA 93101
ROBERT B. FOROUZANDEH TELEPHONE: (B05) 966-2440
DIANA JESSUP LEE
KEVIN R. NIMMONS FACSIMILE: (805) 966-3320
MICHAEL E. Prau WWW.REICKERPFAU.COM
DANIEL A. REICKER
ANDREW D. SIMONS KNIMMONS@RPPMH.COM
RUSSELL D. TERRY
TIMOTHY J. TRAGER
FERNANDO VELEZ, JR
MEGHAN K. WOODSOME
Cory T. BAKER
NICHOLAS A. BEHRMAN
LAUREN B. WIDEMAN
March 10, 2021
VIA U.S. MAIL
AND E-MAIL
Matthew Umhofer
Spertus, Landes & Umhofer, LLP
1990 S. Bundy Dr, Suite 705
Los Angeles, CA 90025
Re: Meet and Confer Prior to Motion to Strike
Schaub
v. Waters et al., SBSC Case No. 20CV02113
Dear Mr. Umhofer:
As you are aware, we represent defendants Andrew Waters and FCP Private, LLC
(collectively, “Defendants’) in the above referenced lawsuit. I am writingto meet and confer with
you prior to filing a motion to strike to the First Amended Verified Complaint (“Complaint”)
pursuant to Code of Civil Procedure§ 435.5.1 The basis for our motionto strike is set forth below.
I request that, on or before March 19, 2021, you either agree to amend
the Complaint, or otherwise
meaningfully respond to this letter pursuant to Code of Civil Procedure§ 435.5(a)(1), so that we
can hopefully resolve these issues and obviate the need to file a motion
to strike.
We take issue
with the “Prayer for Relief”, namely
that in item (3), you request “equitable
relief in the form of an injunction prohibiting the elicit conduct described herein”, and in item (4),
you request “reasonable attomey’s fees.”
1T have also sent to you a separate letter to meet and confer prior to our intent
to demurrer.
Tel: 805-966-2440 ¢ Fax: 805-966-3320 « knimmons@rppmh.com ¢ www.reickerpfau.com
Mr. Matthew Umhofer
Date: March 10, 2021
Page:2
There is no basis for an injunction in this case. Plaintiffs do not allege that Defendants
are
threatening any illegal conduct or have engaged in any illegal conduct that gives rise to an
injunction. (See, Code Civ. Proc. § 526 [describing
cases when an injunction will issue].) Rather,
Plaintiffs seek damages for alleged conversion of funds. There are no grounds for an injunction.
(Code Civ. Proc. § 526.)
There is no basis for any request for attomey's fees. There is no contract at issue in this
case, and there is no cause of action that gives rise to statutory attomey's fees.
If you have any authority to the contrary to support these two requests in the prayer for
relief, please provide them. Otherwise, the Complaint is subject to a motion to strike these two
items.
Conclusion
I request that, on or before March 19, 2021, you either agree to amend the Complaint or
otherwise meaningfully respond, pursuant to Code of Civil Procedure§ 435.5(a)(1), so that we
can hopefully resolve these issues and obviate the need to file a motion
to strike.
Sincerely,
KL. /Vi_—
Kevin Nimmons
KRNigc
Tel: 805-966-2440 ¢ Fax: 805-966-3320 « knimmons@rppmh.com ¢ www.reickerpfau.com
PROOF OF SERVICE
I, the undersi that I ama citizen of the United States, over 18 years
of age, and not
to the within action. I am employed by the law firm of Reicker, Pfau, Pyle & McRoy LLP,
1421 State Street, Ste. B, Santa Barbara, Califomia 93101
On A 1, 2021, I served the within. NOTICE OF MOTION AND MOTION TO
STRIKE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF KEVIN R NIMMONS
REGARDING MEET AND CONFER on the interested parties listed below, as follows:
Matthew Donald Umhofer
Diane H. Bi
SPERTUS, LANDES & UMHOFER, LLP
1990 South Bundy Dr., Suite 705
Los es, Califomia 90025
Telephone: (310) 826-4700
Facamile: (310) 826-4 711
10 aw.com
Email: diane@spertuslaw.com
11
12 (X) (By Mail) I caused such document to be mailed in a sealed envelope, by first-class mail,
postage ly prepaid. I am “readily familiar” with this firm’s practice of collection and
correspondence for mailing. It is deposited with the U.S. postal serviceon that
13 same day in the ordinary course of business. I am aware that on motion of party served,
service is presumed invalid if the postal cancellation date or meter date is more
14 than one (1) day after the date of deposit for mailing as statedin thi: aration.
15
() (By Personal Service) I caused such document to be delivered by hand.
16
() (By FAX) I caused such document to be sent via facsimile transmission
to the above-listed
addressee(s) and FAX number(s). This transmission was reported as complete and without
17 exror.
18
(X) (By E-MAIL [CCP § 1010.6(a)(2)) On the date indicated
on this Proof of Service, at the
icated on in of my electronic mail, I transmitted the foregoing
19 Gocemmenita) by electronic mail to one or more of the recipients at each firm indicated on
this Proof of Service. I caused the my computer to print or maintain a record of the
20 electronicmail to the recipients named in this Proof of Service, a true and correct
copy of
which has been retained by Reicker, Pfau, le & McRoy LLP in either hard copy or
21 electronic format in the ordinary course of mess and is available for inspection if
necessary.
(X) (State) I declare under penalty of perjury pursuant to the laws of the State of Califomia
that the foregoingis true and co
24 Executed April 1, 2021, at Santa Barbara, Califomia.
25
26 Coatacne Cagpor
Legal Assistant
27
MOTION TO STRIKE FIRST AMENDED COMPLAINT
Preview
ELECTRONICALLY FILED REICKER, PFAU, PYLE & McROY LLP Superior Court of California 1421 State Street, Suite B County of Santa Barbara Santa Barbara, CA 93101 Tel (805) 966-2440 DarrelE. Parker, Executive Officer Fax (805) 966-3320 4/1/2021 7:00 PM Kevin R. Nimmons (State Bar No. 261577) By: Elizabeth Spann, Deputy knimmo. Meghan K. ‘Woodsome2 (State ( Bar No. 272459) Cory T. Baker (StateBar No 315763) chelean@orppmh.oom com. Attomeys for Defendants Andrew Waters and FCP Private, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SANTA BARBARA— ANACAPA DIVISION 11 MARK SCHAUB, an individual; TLG LTD Case No.: 20CV02113 a Hong Kong limited Liability company Assigned to: Hon. Donna D. Geck 12 Plaintiffs, NOTICE OF MOTION AND MOTION 13 TO STRIKE FIRST AMENDED Vv. COMPLAINT; MEMORANDUM OF 14 ANDREW WY LES WATERS, an POINTS AND AUTHORITIES 15 individual; FCP CORPORATION LTD., a DECLARATION OF KEVIN R Hong Kong limited liability company; FCP NIMMONS REGARDING MEET AND 16 PRIVATE, LLC, a Califomia limited CONFER AND EXHIBIT THERETO liabil: corporation; and DOES 1 through 17 10,i USIVE, [Filed concurrently herewith: Notice of Denunrer and Denunrer to First Amended. 18 Defendants. Complaint; Memorandum; Dediaration] 19 Date: June4, 2021 Time: 10:00am. 20 Dept:4 21 TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD NOTICE IS HEREBY GIVEN that on June 4, 2021, at 10:00 am, or as soon thereafter as 24 counsel can be heard, in Department 4 of the above-entitled Court, located at 1100 Anacapa Street, 25 Santa Barbara, CA 93101, Defendants ANDREW WY LES WATERS, an individual ("Waters") and 26 FCP PRIVATE, LLC, a Califomia limited liability company (erroneously sued as a "corporation") 27 ("FCP Private") (collectively, Defendants"), will move this Court for an order striking the following parts of the Verified First Amended Complaint ("FAC") filed by Plaintiffs. MOTION TO STRIKE FIRST AMENDED COMPLAINT: Page 1 1. The following phrase in the Prayer for Relief on page nine of the FAC in item (3): “equitable relief in the form of an injunction prohibiting the elicit conduct described herein"; and 2. The following phrases in the Prayer for Relief on page nine of the FAC in item (4): “reasonable attomey's fees" and. "other expenses of litigation incurred in this action." This motion is brought pursuant to Code of Civil Procedure §§ 435, et seq., on grounds that the above items are improper and inrelevant. There is no legal basis for an award of attomey's fees in this case, nor for any injunctive relief. The motion is supported by this Notice of Motion and. Motion to Strike, the attached Memorandum of Points and Authorities in support thereof, the 10 attached Declaration of Kevin R. Nimmons in support thereof, the records and files of this action, 11 and any such further oral and written arguments as may be submitted to the Court at the hearing. 12 13 DATED: Apuil 1, 2021 REICKER, PFAU, PYLE & McROY LLP 14 15 By IL /V— Kevin R. Nimmons 16 Meghan K. Woodsome Cory T. Baker 17 Attorneys for Defendants Andrew Waters, FCP Corporation, Ltd., 18 and FCP Private, LLC 19 20 21 24 25 26 27 MOTION TO STRIKE FIRST AMENDED COMPLAINT: Page 2 MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION The Plaintiffs' First Amended Verified Complaint ("FAC") requests relief for which Plaintiffs are not entitled to under Califomia law. This case is for alleged conversion of money from a bank account. The FAC also alleges fraud and unjust enrichment, against which Defendants Waters and FCP Private (collectively, Defendants") have concurrently filed a demunrer to be heard alongside this motion to strike. Plaintiffs allege that "by mistake" they transferred funds to Defendants’ accounts, which are owned and controlled by Defendants, and Defendants allegedly refused to retum the funds. (FAC, 10 3:2-6; 6:7-8; 6:9-10.) Plaintiffs further allege that Defendants lied about whether Defendants could 11 transfer the money back to Plaintiffs. (Id., 4:10-22.) 12 Plaintiffs improperly seek an award of attomey's fees and injunctive relief. Neither are 13 proper in this case. Nevertheless, Plaintiffs refuse to amend their FAC. 14 Injunctive relief is improper because any harm or wrongdoing has already been completed 15 and there is no indication or allegation that future harm will occur. Moreover, damages are an 16 appropriate remedy for conversion of funds, not an injunction. 17 There are no grounds for an attomey's fee award. This case does not concem any contract, 18 let alone a contract for which a contractual attomey's fee provision could apply. Further, this case 19 does not concem any statute giving rise to attomey's fees. Defendants' counsel made Plaintiffs’ 20 counsel aware of this through meet and confer efforts, but Plaintiffs' counsel refusedto amend their 21 FAC. (See Declaration of Kevin Nimmons; Ex. 1.) Therefore, Defendants request that the Court strike this improper matter alleged in the Prayer for Relief: (1) “equitable relief in the form of an injunction prohibiting the elicit conduct 24 described herein” (Id., 9:12-13); and (2) “reasonable attomey’s fees and. "other expenses of litigation. 25 incurred in this action.” (Id., 9:15-16.) 26 Il. THIS MOTION TO STRIKE IS PROPER. 27 Code of Civil Procedure ("CCP") § 436 provides that, on a motion pursuant to CCP § 435, or at its own discretion, a court may strike out irrelevant, false, or improper matter or strike out all MOTION TO STRIKE FIRST AMENDED COMPLAINT: Page 3 or any part of any pleading not drawn or filed in conformity with statutes, rules, or court orders. CCP § 437 specifies that the grounds for a motion to strike must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Califomia Rules of Court, rule 3.1322(a) requires that, “a notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense.” A motion to strike is the procedure to attack an improper remedy. (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, fn. 9.) 10 Here, the items to be stricken are in the Prayer for Relief requesting attomey's fees and 11 injunctive relief. Both are improper.! 12 A Attorney's Fees Are Not Available in this Case. 13 Under CCP § 1033.5, a prevailing party may recover attomey's fees only when authorized 14 by law, contract, or statute. The FAC seeks an award of attomey's fees in the Prayer for Relief. 15 However, there are no allegations that identify any law, contract provision, or statute that authorizes 16 the Plaintiffs to recover attomey’s fees, even if they prevail on their claims. 17 No contract is alleged in the FAC. The causes of action are for fraud, conversion, and unjust 18 enrichment. Attomey’'s fees are not recoverable in an action based on fraud, in the absence of a 19 contract provision encompassing such fees. The rule is well settled that attomeys' fees are not 20 recoverable as damages in actions of conversion. (W.R. Bradshaw & Co. v. Eggers (1915) 27 21 Cal.App. 132, 134; Civil Code§ 3336 [damages for conversion].) During the parties' meet and confer conference, Plaintiffs' counsel failed to provide any legal support for an award of attomey's fees in this case. Therefore, the claim for attomey’s fees should be 24 stricken. 25 /// 26 /// 27 1 As set forth in the appended declaration of lead counsel for Defendants, Kevin R. Nimmons, this Motion to Strike is timely because Plaintiffs' counsel extended the deadline for Defendants to file any responsive pleading until Apmil 1, 2021. MOTION TO STRIKE FIRST AMENDED COMPLAINT: Page 4 B. Injunctive Relief Is Not Available in This Case. The FAC's causes of action are for fraud, conversion, and unjust enrichment. Plaintiffs claim that Defendants stole funds from Plaintiffs when Plaintiffs "by mistake" transferred some $2 million to Defendants and Defendants refused to retum the funds and made misrepresentations as to the reasons why they would not retum the funds. Plaintiffs claim monetary damages in an unknown amount, and they also improperly claim injunctive relief is warranted. Code of Civil Procedure§ 526 govems when an injunction may be issued: "(a) An injunction may be granted in the following cases: (1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in 10 restraining the commission or continuance of the act complained of, either for a limited period or perpetually. 11 (2) When it appears by the complaint or affidavits that the commission 12 or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action. 13 (3) When it appears, during the litigation, that a party to the action is 14 doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action 15 respecting the subject of the action, and tending to render the judgment ineffectual. 16 (4) When pecuniary compensation would not afford adequate relief. 17 (5) Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief. 18 (6) Where the restraint is necessary to prevent a multiplicity of judicial 19 proceedings. (7) Where the obligation arises froma trust." 20 21 (CCP § 526(a).) One having an adequate remedy at law may not resort to equity for injunctive relief. (North Side Property Owners' Ass'n v. Hillside Memorial Park (1945) 70 Cal.App.2d 609, 615.) Where damages can be easily determined, an injunction is not appropriate. (Shabaz v. Polo 24 Ralph Lauren Corp. (C.D. Cal. 2008) 586 F.Supp.2d 1205, 1210.) 25 "[A]Jn injunction lies only to prevent threatened injury and has no application to wrongs 26 which have been completed." (Gold v. Los Angeles Democratic League (1975) 49 Cal.App.3d 365, 27 372.) In order to authorize issuance of injunction, it must appear with reasonable certainty that wrongful acts will be continued or repeated. (Ibid.) MOTION TO STRIKE FIRST AMENDED COMPLAINT: Page5 Not one of the specified seven grounds for an injunction listed in CCP § 526 exist in this case. Plaintiffs alleged that "by mistake" they wired $2 million to Defendants’ accounts and Defendants refused to retum the funds. The acts complained of in the FAC have already allegedly occurred (e.g., Plaintiffs’ funds converted). There is no allegation of threatened or future similar acts. Therefore, the complaint is not of a continuing character. There is no indication that the legal remedy of damages will not fully compensate Plaintiffs. Plaintiffs seek damages for alleged conversion of a specific amount of funds. The remedy for conversion is an award of money damages under Cal. Civil Code § 3336. However, pursuant to CCP § 526, there are no grounds for an injunction. 10 TI. DEFENDANTS' MEET AND CONFER EFFORTS FAILED TO RESOLVE ISSUES; 11 PLAINTIFFS DID NOT MEANINGFULLY RESPOND TO DEFENDANTS' MEET 12 AND CONFER EFFORTS. 13 Prior to filing this motion to strike and accompanying denumer, lead counsel for 14 Defendants, Mr. Kevin Nimmons, sent to Plaintiffs' counsel a meet and confer letter by e-mail and 15 mail on March 10, 2021, which is attached hereto as Exhibit 1 to Mr. Nimmons' declaration 16 ("Nimmons Dec."). That letter explained the deficiencies in the FAC with regard to the requests for 17 attomey's fees and injunctive relief. (Nimmons Dec., 113.) 18 Plaintiffs’ counsel, Ms. Diane Bang, responded to the letter offering to participate in a 19 telephone conference, which occurred on March 16, 2021, at 3:00 pm, and lasted only 20 approximately eight minutes. (Id., {| 4.) At that conference, Mr. Nimmons, expected to hear legal 21 support for Plaintiffs' position and for Plaintiffs' counsel to address the specific issues in the meet and confer letter. However, Plaintiffs' counsel provided no valid arguments as to why injunctive relief was proper in this case, other than to state that Defendants performed illegal and wrongful 24 acts. Plaintiffs refused to amend their FAC. (Id., 15.) 25 //1 26 //1 27 //1 //1 MOTION TO STRIKE FIRST AMENDED COMPLAINT: Page 6 1 Iv. CONCLUSION For the forgoing reasons, Defendants respectfully request that the Court grant this motion to strike the above referenced portions of Plaintiffs' FAC. Dated: April 1, 2021 REICKER, PFAU, PYLE AND McROY LLP By Me (VM Kevin R. Nimmons Meghan K. Woodsome Cory T. Baker Attorneys for Defendants 10 11 12 13 14 15 16 17 18 19 20 21 24 25 26 27 MOTION TO STRIKE FIRST AMENDED COMPLAINT: Page7 DECLARATION OF KEVIN R. NIMMONS I, KevinR. Nimmons, declare that: 1 I am an attomey at law duly licensed to practice before all Courts of the State of Califomia. I ama partner of the law firm of Reicker, Pfau, Pyle & McRoy LLP, attomeys of record. for Andrew Waters and FCP Private, LLC in this action. I have personal knowledge of the matters stated herein, except as to those matters stated on information and belief, and as to those matters,I believe them to be true. If called to testify, I could and would competently testify to the facts stated herein. 2. On February 25, 2021, Plaintiffs’ counsel responded to my email communication 10 granting an extension to April 1, 2021 for Defendants to file responsive pleadings to the First 11 Amended Complaint ("FAC"). As such, this motion to strike and accompanying demunrer are 12 timely. 13 3, On March 10, 2021, prior to filing this motion to strike and accompanying demurrer, 14 my office sent by email and mail to Plaintiffs' counsel the meet and confer letter attached hereto as 15 Exhibit 1. That letter explained the deficiencies in the FAC with regard to the requests for 16 attomey’s fees and injunctive relief. 17 4. In response to the letter and to a similar letter regarding Defendants' accompanying 18 denumrer, Plaintiffs' counsel, Ms. Diane Bang, offered to have a meet and confer telephone 19 conference. That conference occurred on March 16, 2021, at 3:00 p.m, and lasted approximately 20 eight minutes. 21 5, At that conference, I expected to hear legal support for Plaintiffs' position and for Ms. Bang to address the specific issues in the meet and confer letter. However, Plaintiffs' counsel did not provide any legal support and merely stated that she believed perhaps fraud could give rise 24 to an award of attomey's fees and that the request for injunctive relief was proper because 25 Defendants had committed wrongful and illegal acts. Plaintiffs cited no legal support for their 26 position and refused to amend the FAC. The telephone conference ended after nearly eight minutes. 27 /// /// MOTION TO STRIKE FIRST AMENDED COMPLAINT: Page 8 I declare under penalty of perjury under the laws of the State of Califomia that the foregoing is true and correct. Dated: April 1, 2021 Kevin R. Nimmons 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION TO STRIKE FIRST AMENDED COMPLAINT: Page 9 EXHIBIT 1 REICKER PFAU ATTORNEYS AT LAW ALAN A. BLAKEBORO 1421 STATE STREET JOHN G. BUSBY eB R. MARK CARNEY SANTA BARBARA, CA 93101 ROBERT B. FOROUZANDEH TELEPHONE: (B05) 966-2440 DIANA JESSUP LEE KEVIN R. NIMMONS FACSIMILE: (805) 966-3320 MICHAEL E. Prau WWW.REICKERPFAU.COM DANIEL A. REICKER ANDREW D. SIMONS KNIMMONS@RPPMH.COM RUSSELL D. TERRY TIMOTHY J. TRAGER FERNANDO VELEZ, JR MEGHAN K. WOODSOME Cory T. BAKER NICHOLAS A. BEHRMAN LAUREN B. WIDEMAN March 10, 2021 VIA U.S. MAIL AND E-MAIL Matthew Umhofer Spertus, Landes & Umhofer, LLP 1990 S. Bundy Dr, Suite 705 Los Angeles, CA 90025 Re: Meet and Confer Prior to Motion to Strike Schaub v. Waters et al., SBSC Case No. 20CV02113 Dear Mr. Umhofer: As you are aware, we represent defendants Andrew Waters and FCP Private, LLC (collectively, “Defendants’) in the above referenced lawsuit. I am writingto meet and confer with you prior to filing a motion to strike to the First Amended Verified Complaint (“Complaint”) pursuant to Code of Civil Procedure§ 435.5.1 The basis for our motionto strike is set forth below. I request that, on or before March 19, 2021, you either agree to amend the Complaint, or otherwise meaningfully respond to this letter pursuant to Code of Civil Procedure§ 435.5(a)(1), so that we can hopefully resolve these issues and obviate the need to file a motion to strike. We take issue with the “Prayer for Relief”, namely that in item (3), you request “equitable relief in the form of an injunction prohibiting the elicit conduct described herein”, and in item (4), you request “reasonable attomey’s fees.” 1T have also sent to you a separate letter to meet and confer prior to our intent to demurrer. Tel: 805-966-2440 ¢ Fax: 805-966-3320 « knimmons@rppmh.com ¢ www.reickerpfau.com Mr. Matthew Umhofer Date: March 10, 2021 Page:2 There is no basis for an injunction in this case. Plaintiffs do not allege that Defendants are threatening any illegal conduct or have engaged in any illegal conduct that gives rise to an injunction. (See, Code Civ. Proc. § 526 [describing cases when an injunction will issue].) Rather, Plaintiffs seek damages for alleged conversion of funds. There are no grounds for an injunction. (Code Civ. Proc. § 526.) There is no basis for any request for attomey's fees. There is no contract at issue in this case, and there is no cause of action that gives rise to statutory attomey's fees. If you have any authority to the contrary to support these two requests in the prayer for relief, please provide them. Otherwise, the Complaint is subject to a motion to strike these two items. Conclusion I request that, on or before March 19, 2021, you either agree to amend the Complaint or otherwise meaningfully respond, pursuant to Code of Civil Procedure§ 435.5(a)(1), so that we can hopefully resolve these issues and obviate the need to file a motion to strike. Sincerely, KL. /Vi_— Kevin Nimmons KRNigc Tel: 805-966-2440 ¢ Fax: 805-966-3320 « knimmons@rppmh.com ¢ www.reickerpfau.com PROOF OF SERVICE I, the undersi that I ama citizen of the United States, over 18 years of age, and not to the within action. I am employed by the law firm of Reicker, Pfau, Pyle & McRoy LLP, 1421 State Street, Ste. B, Santa Barbara, Califomia 93101 On A 1, 2021, I served the within. NOTICE OF MOTION AND MOTION TO STRIKE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF KEVIN R NIMMONS REGARDING MEET AND CONFER on the interested parties listed below, as follows: Matthew Donald Umhofer Diane H. Bi SPERTUS, LANDES & UMHOFER, LLP 1990 South Bundy Dr., Suite 705 Los es, Califomia 90025 Telephone: (310) 826-4700 Facamile: (310) 826-4 711 10 aw.com Email: diane@spertuslaw.com 11 12 (X) (By Mail) I caused such document to be mailed in a sealed envelope, by first-class mail, postage ly prepaid. I am “readily familiar” with this firm’s practice of collection and correspondence for mailing. It is deposited with the U.S. postal serviceon that 13 same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if the postal cancellation date or meter date is more 14 than one (1) day after the date of deposit for mailing as statedin thi: aration. 15 () (By Personal Service) I caused such document to be delivered by hand. 16 () (By FAX) I caused such document to be sent via facsimile transmission to the above-listed addressee(s) and FAX number(s). This transmission was reported as complete and without 17 exror. 18 (X) (By E-MAIL [CCP § 1010.6(a)(2)) On the date indicated on this Proof of Service, at the icated on in of my electronic mail, I transmitted the foregoing 19 Gocemmenita) by electronic mail to one or more of the recipients at each firm indicated on this Proof of Service. I caused the my computer to print or maintain a record of the 20 electronicmail to the recipients named in this Proof of Service, a true and correct copy of which has been retained by Reicker, Pfau, le & McRoy LLP in either hard copy or 21 electronic format in the ordinary course of mess and is available for inspection if necessary. (X) (State) I declare under penalty of perjury pursuant to the laws of the State of Califomia that the foregoingis true and co 24 Executed April 1, 2021, at Santa Barbara, Califomia. 25 26 Coatacne Cagpor Legal Assistant 27 MOTION TO STRIKE FIRST AMENDED COMPLAINT