Deportes Media of California, Llc v. Uecker et al

MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim

N.D. Cal.July 12, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO JENNER & BLOCK LLP Todd C. Toral (Cal. Bar No. 197706) Ttoral@jenner.com Benjamin J. Brysacz (Cal. Bar. No. 297886) Bbrysacz@jenner.com 633 West 5th Street, Suite 3600 Los Angeles, CA 90071 Telephone: (213) 239-5100 Facsimile: (213) 239-5199 Attorneys for Defendants Susan L. Uecker, individually and in her capacity as Discharged and Exonerated Receiver for Pappas Radio of California, L.P., and Uecker & Associates, Inc. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DEPORTES MEDIA OF CALIFORNIA, LLC, Plaintiff, v. SUSAN L. UECKER, MEDIA ACQUISITION TRUST LLC, EAST BAY BROADCASTING COMPANY INC., SALEM MEDIA GROUP INC., KALIL & CO. INC., Defendants. Case No. 3:17-cv-3403-WHO DEFENDANTS SUSAN L. UECKER'S AND UECKER & ASSOCIATES, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO RULES 12(B)(1) AND 12(B)(6) OF THE FEDERAL RULES OF CIVIL PROCEDURE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Hearing Date: August 23, 2017 Hearing Time: 2:00 p.m. Judge: Hon. William H. Orrick Courtroom: 2, 17th Floor Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 1 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO TO THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on that on August 23, 2017, at 2 p.m., or as soon thereafter as the matter may be heard in the courtroom of the Honorable William Orrick, United States District Court Judge, Northern District of California, located in Courtroom 2 at 450 Golden Gate Ave., San Francisco, CA 94102, Defendants Susan L. Uecker and Uecker & Associates, Inc. will move, and hereby do move, the Court to dismiss the complaint of plaintiff Deportes Media of California, LLC as to Defendants Susan L. Uecker and Uecker & Associates, Inc. pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that this Court lacks subject matter jurisdiction over plaintiff’s claims and, further, that plaintiff’s complaint fails to state a plausible legal claim because plaintiff’s claims are barred by the doctrines of res judicata and quasi-judicial immunity, because plaintiff failed to seek leave to file this lawsuit from the Superior Court of the County of Santa Clara, and because the complaint fails to state a sufficient factual basis for claims of breach of contract or violations of California’s Unfair Competition Law. This Motion is based on this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the concurrently filed Request for Judicial Notice, Declaration of Todd C. Toral, and all exhibits attached thereto, any additional briefing, and the evidence and arguments that will be presented to the Court at the hearing on this matter. Dated: July 12, 2017 JENNER & BLOCK LLP /s/ Todd C. Toral TODD C. TORAL Attorneys for Defendants Susan L. Uecker, individually and in her capacity as Discharged and Exonerated Receiver for Pappas Radio of California, L.P., and Uecker & Associates, Inc. Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 2 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities CASE NO. 3:17-CV-3403-WHO TABLE OF CONTENTS Page(s) I. INTRODUCTION ....................................................................................................................................1 II. BACKGROUND .....................................................................................................................................3 A. The Receivership.........................................................................................................................3 B. Receiver’s Management of the Receivership Estate ...................................................................4 C. The Deportes LMA Expires Pursuant to its Terms .....................................................................5 D. Receiver’s Sale of KTRB and Deportes’s Notice of Various State Court Proceedings .............5 E. The Superior Court’s Approval of the Receiver’s Final Report and Account, and the Receiver’s Discharge ...................................................................................................................6 III. KEY ALLEGATIONS IN DEPORTES’S COMPLAINT ....................................................................6 IV. LEGAL STANDARD ...........................................................................................................................9 V. ARGUMENT ........................................................................................................................................11 A. Deportes Fails to Demonstrate–Indeed Seeks to Obfuscate–Diversity of Citizenship Thereby Requiring Dismissal of the Complaint Pursuant to Rule 12(b)(1) ..............................11 B. The Court Must Dismiss Deportes’s Complaint Pursuant to Rule 12(b)(6) Because the Claims are Barred by Principles of Res Judicata, Barred by Principles of Quasi-Judicial Immunity, Barred Because Deportes Did Not Seek Leave of the Superior Court to Bring Suit Against Receiver Defendants, and Because Deportes Does Not Allege Sufficient Facts for its Breach of Contract or UCL Claims ......................................................12 1. Deportes’s Claims are Barred by Res Judicata ......................................................12 2. Deportes’s Claims Against the Receiver Defendants are Barred by the Doctrine of Quasi-Judicial Immunity ....................................................................15 3. Deportes’s Claims Are Barred Because it Failed to Seek Leave of the Superior Court to Sue the Receiver .......................................................................17 4. Deportes’s Complaint Fails to Allege a Sufficient Factual Basis for Breach of Contract as to the Receiver Defendants .............................................................17 5. Deportes’s Complaint Fails to Allege a Sufficient Factual Basis for Violations of the UCL ............................................................................................19 C. Deportes’s Prayer for Punitive Damages as to Receiver Must Be Dismissed from the Complaint Because it is Improper as a Matter of California Law .............................................21 IV. CONCLUSION....................................................................................................................................21 Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 3 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities CASE NO. 3:17-CV-3403-WHO TABLE OF AUTHORITIES Page(s) CASES Adams v. Comm. on Judicial Conduct & Disability, 165 F. Supp. 3d 911, 917 (N.D. Cal. 2016) .......................................................................................... 10 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................................................ 10, 18 Assoc. of Am. Med. Coll. v. United States, 217 F.3d 770 (9th Cir. 2000) .................................................................................................................. 9 Associated Gen. Contractors v. Metro Water Dist., 159 F.3d 1178 (9th Cir. 1998) .............................................................................................................. 10 Barton v. Barbour, 104 U.S. 126 (1881) .............................................................................................................................. 17 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .............................................................................................................................. 10 Burns v. Reed, 500 U.S. 478 (1991) .............................................................................................................................. 16 Buschman v. Anesthesia Bus. Consultants LLC, 42 F. Supp. 3d 1244, 1250 (N.D. Cal. 2014) ........................................................................................ 18 CDF Firefighters v. Maldonado, 158 Cal. App. 4th 1226 (Cal. Ct. App. 2008), as modified on denial of reh’g (Feb. 5, 2008) ..................................................................................................................................................... 18 Credit Managers Ass’n of Southern California v. Kennesaw Life & Acc. Ins. Co., 25 F.3d 743 (9th Cir. 1994) .................................................................................................................. 14 Davenport v. Litton Loan Servicing, LP, 725 F. Supp. 2d 862 (N.D. Cal. 2010) .................................................................................................. 10 Elias v. Hewlett-Packard Co., 950 F. Supp. 2d 1123 (N.D. Cal. 2013) ................................................................................................ 20 Forrester v. White, 484 U.S. 219 (1988) .............................................................................................................................. 16 Gibson v. World Savings and Loan Ass’n, 103 Cal. App. 4th 1291 (2002) ............................................................................................................. 21 Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 4 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO Goddard v. Google Inc., 640 F.Supp.2d 1193 (N.D. Cal. 2009) .................................................................................................. 13 Grego v. Pacific Western Bank, 551 B.R. 33 (E.D. Cal. 2016) ................................................................................................................ 17 Henrichs v. Valley View Dev., 474 F.3d 609 (9th Cir. 2007) .......................................................................................................... 13, 15 Hexom v. Oregon Dep’t of Transp., 177 F. 3d 1134 (9th Cir. 1999) ............................................................................................................. 11 Hutton v. Fid. Nat’l Title Co., 213 Cal. App. 4th 486 (Cal. Ct. App. 2013), as modified on denial of reh’g (Feb. 22, 2013) ..................................................................................................................................................... 19 In re Castillo, 297 F.3d 940 (9th Cir. 2002), as amended (Sept. 6, 2002) ............................................................. 15, 17 In re Firearm Cases, 126 Cal. App. 4th 959 (Cal. Ct. App. 2005) ......................................................................................... 21 In re Tobacco II Cases, 46 Cal. 4th 298 (Cal. 2009) ................................................................................................................... 20 In re Webkinz Antitrust Litig., No. 08-1987, 2010 WL 4168845 (N.D. Cal. Oct. 20, 2010) ................................................................ 10 Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894 (9th Cir. 2006) .......................................................................................................... 11, 12 Johnson v. Riverside Healthcare Sys., 534 F.3d 1116 (9th Cir. 2008) .............................................................................................................. 10 Jones v. Bock, 549 U.S. 199 (2007) .............................................................................................................................. 13 Kanter v. Warner-Lambert Co., 265 F.3d 853 (9th Cir. 2001) ................................................................................................................ 11 Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) .............................................................................................................. 20 Kermit Constr. v. Banco Credito Y Ahorro Ponceno, 547 F.2d 1 (1st Cir. 1976) ..................................................................................................................... 16 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) ................................................................................................................................ 9 Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 5 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134 (Cal. 2003) ................................................................................................................. 21 Kougasian v. TMSL, Inc., 359 F.3d 1136 (9th Cir. 2004) .............................................................................................................. 13 Linear Tech. Corp. v. Applied Materials, Inc., 152 Cal. App. 4th 115 (Cal. Ct. App. 2007) ......................................................................................... 20 Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014) ................................................................................................................ 9 Neitzke v. Williams, 490 U.S. 319 (1989) .............................................................................................................................. 10 New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298 (9th Cir. 1989) .............................................................................................................. 16 Ostrowski v. Miller, 226 Cal. App. 2d 79 (Cal. Ct. App. 1964) ............................................................................................ 17 Padilla v. Yoo, 678 F.3d 748 (9th Cir. 2012) ................................................................................................................ 10 Poore v. Simpson Paper Co., 566 F.3d 922 (9th Cir. 2009) ................................................................................................................ 19 Rosenbluth International, Inc. v. Superior Court, 101 Cal.App.4th 1073 (Cal. Ct. App. 2002) ......................................................................................... 21 Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004) ................................................................................................................ 9 Sams v. Yahoo! Inc., 713 F.3d 1175 (9th Cir. 2013) .............................................................................................................. 13 Schnall v. Hertz Corp., 78 Cal. App. 4th 1144 (Cal. Ct. App. 2000) ......................................................................................... 21 Smith v. McCullough, 270 U.S. 456 (1926) .............................................................................................................................. 11 Spitzer v. Aljoe, No. 13-05442, 2016 WL 7188007 (N.D. Cal. Dec. 12, 2016) .............................................................. 16 Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221 (9th Cir. 1989) .............................................................................................................. 10 Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 6 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO Case No. 3:17-cv-3403-WHO Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir.2007) (per curiam)............................................................................................. 21 Townsend v. Holman Consulting Corp., 929 F.2d 1358 ......................................................................................................................................... 8 United Energy Trading, LLC v. Pac. Gas & Elec. Co., 146 F. Supp. 3d 1122, 1132 (N.D. Cal. 2015) ...................................................................................... 10 Vitug v. Griffin, 214 Cal.App.3d 488 (Cal. Ct. App. 1989) ...................................................................................... 13, 17 STATUTES 28 U.S.C. § 1332 ............................................................................................................................... 1, 11, 12 28 U.S.C. § 1738 ......................................................................................................................................... 13 Cal. Civil Code § 3294................................................................................................................................ 21 Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 7 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO I. INTRODUCTION Defendant Susan L. Uecker, individually and as the discharged and exonerated receiver of Pappas Radio of California L.P. (“Receiver”), and Defendant Uecker & Associates, Inc. (together, for ease of reference, the “Receiver Defendants”), respectfully submit that this matter does not belong in this Court.1 Plaintiff Deportes Media of California, LLC’s carefully curated factual allegations fail not only to establish that this Court has subject matter jurisdiction but likewise fail to state a claim upon which relief can be granted. Indeed, the Complaint fails to demonstrate complete diversity of citizenship, which is fatal under F.R.C.P 12(b)(1). Without more information, this Court simply cannot determine whether it has subject matter jurisdiction. Then, Deportes misleads this Court by excluding substantial matters of public record that establish that its claims must be dismissed under F.R.C.P. 12(b)(6) because they are barred by the doctrines of res judicata and quasi-judicial immunity, and because Deportes failed to seek leave of the Santa Clara County Superior Court before suing. Last, Deportes’s claims cannot survive because Deportes has not and cannot allege sufficient facts to state a claim for breach of contract or a violation of California’s Unfair Competition Law (UCL). First, Deportes, which is alleged to be a Texas limited liability company, (Compl. ¶ 1), does not reveal the identity and citizenships of its alleged sole members’s members, making it impossible for Receiver Defendants and this Court to determine whether complete diversity of citizenship exists. Subject matter jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332, which is Deportes’s sole basis for such jurisdiction, (Compl. ¶ 7), requires proof of complete diversity, meaning every plaintiff must be a citizen of a different state from every defendant. Limited liability companies (“LLCs”), of course, can be citizens of multiple states because an LLC is a citizen of every state in which its owners/members are citizens. The disclosure of the actual citizenship of every member of an LLC (including members of 1 Deportes’s Complaint does not identify Uecker & Associates, Inc. as a defendant in the caption, and a Summons and Complaint has not been served on that entity’s registered agent for service of process. Substantive allegations in the Complaint, however, appear to identify Uecker & Associates, Inc. as a defendant and, further, appear to allege claims solely against Ms. Uecker in her capacity as Receiver of Pappas Radio of California L.P., though she appears to have been sued in her individual capacity. (See, e.g., Compl. ¶ 11 (breach of contract)). Because of the lack of clarity as to the identity and capacities of the Receiver Defendants, this motion is made on behalf of Ms. Uecker, individually and in her capacity as Receiver of Pappas Radio of California, L.P., as well as on behalf of Uecker & Associates, Inc. Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 8 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO members, when applicable) is crucial for the diversity. Yet, here, Deportes eschews such disclosure, merely averring that its “sole member is Deportes Media LLC, whose members are residents of Dallas, Texas . . . .” (Compl. ¶ 1) (emphasis added). This is clearly insufficient. Second, judicially noticeable material sinks Deportes’s claims under Rule 12(b)(6). For example, Deportes not only fails to attach the Deportes Local Marketing Agreement (the “Deportes LMA”) to the Complaint, (Compl. ¶ 16), an omission Receiver Defendants correct by attaching it as Exhibit A to its concurrently filed Request for Judicial Notice (“RJN”), but it fails to tell this Court that the alleged breach it complains of could not possibly have occurred because the alleged conduct took place after the expiration of the Deportes LMA and, crucially, allegedly occurred between entities not even party to the contract. Deportes also fails to tell this Court that the transactions underlying its suit were brought to the attention of and approved and ratified by the Santa Clara County Superior Court on two occasions. It also fails to mention that it was given notice of and actually opposed a sale hearing in 2015, and that it was given notice of a second sale hearing in 2016 at which it could have –but did not– lodge an objection to the underlying transactions. Worse, it misleads this Court about what the transactions actually were by alleging that the KTRB sale occurred between Receiver and Salem Media Group Inc. (“Salem”) (Compl. ¶ 52), when the sale transaction was actually consummated by and between Receiver and East Bay Broadcasting Company Inc. (“EBB”). (RJN, Exh. K). Deportes then fails to explain how entering into an LMA with one party (Salem),2 (Compl. ¶ 47) (RJN, Exh. G), after the Deportes LMA lapsed, and months later entering into a sale of KTRB with a different and unrelated party (EBB) (which it mischievously mischaracterizes as a sale to Salem), gives rise to actionable claims. But then Deportes also fails to explain to this Court how the Superior Court could exonerate and discharge the Receiver of all duty, obligation, and liability arising out of her activities with regard to the 2016 sale activities if there was any infirmity in 2 Even here, Deportes misleads the Court. The Receiver did not enter into an LMA with Salem. The Receiver entered into a new LMA with third party New Inspiration Broadcasting Company, Inc. (RJN, Exh. G). “Salem” is used herein only because doing so aligns with Deportes’s allegations, which are assumed to be true for purposes of this motion. /// /// Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 9 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO the transactions. (RJN, Exh. N). The fact of the matter is, there is no infirmity, and there is no factual basis for a claim. On the contrary, the facts coalesce to render nugatory all of Deportes’s claims. But there is more. Deportes’s claims cannot survive because the Complaint fails to allege a factual basis for its claims of breach of contract and a violation of the UCL. After all, it is beyond cavil that Receiver Defendants cannot breach a contract if they have fully performed and no executory obligations exist given lapse. Likewise, Receiver Defendants cannot violate the UCL where the claim is based on an alleged contract that has nothing to do with the public or a consumer. Further, Deportes’s prayer for punitive damages is equally feeble and must be stricken because punitive damages are unavailable for the type of claims alleged by Deportes. For all of these reasons, the Court can and should dismiss Deportes’s Complaint without leave to amend. II. BACKGROUND A. The Receivership Pappas Radio of California, L.P. (“Pappas”) entered receivership on September 8, 2010 after defaulting on debts owed to Comerica Bank. (RJN, Exh. B). Receiver was appointed by the Superior Court of the County of Santa Clara. (Id.). To protect the assets under Receivership, the Superior Court explained in its Order Appointing Receiver that it appointed her: for the purpose of assisting the Court in connection with the litigation and protecting, preserving and maximizing the value of the Receivership Estate. As such, the Receiver shall conduct the duties set forth herein and in doing so shall care for, manage, preserve and protect the Receivership Estate as instructed by the Court and in the manner the Receiver believes most beneficial to the Receivership Estate and its creditors. (RJN, Exh. B, ¶ 1). The Receivership Estate contained various assets, including the AM radio station KTRB. (Compl. ¶ 13). Recognizing that the continued operation of KTRB would preserve and protect the estate’s assets, the Court ordered the Receiver to “continue to operate, care for, preserve and maintain the Receivership Estate . . . to preserve its overall value,” and empowered her further to “determine, in her discretion, how best to use, operate, manage, control and lease the Receivership Estate” including through the “entry into Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 10 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO one or more Local Marketing Agreements [(“LMAs”)].” (RJN, Exh. B, ¶ 5(c) & (d)). The Order further authorized Receiver to “sell all or any material portion of the Receivership Estate with the consent of Plaintiff [Comerica Bank] and subject to further order of this Court confirming the terms of such sale,” and to “in her sole and absolute discretion, terminate, renegotiate or reject any contracts or agreements relating to the Receivership Estate.” (Id. ¶ 5(d) & (f)). In the event Receiver incurred debts or liabilities in the performance of her duties, the Superior Court ordered “that no such risk or obligation shall be the personal risk or obligation of the Receiver, but shall be solely the risk and obligation of the receivership.” (Id. ¶ 5(r)). In case there was any doubt about the Receiver’s relationship to the Receivership Estate, the order appointing her states that Receiver: is acting solely in her capacity as Receiver and the debts of the Receiver are solely the debts of the Receivership Estate. In no event shall Susan L. Uecker personally or Uecker & Associates, Inc. have any liability or obligations for the proper debts of the Receiver and/or the Receivership Estate; provided, however, that an action may be brought against the Receiver for actions she takes in her official capacity to the full extent authorized by California law. (Id. ¶ 15) (emphasis added). But that is not all. The order expressly prohibited any “persons or entities” from “[c]ommencing, prosecuting, continuing to enforce, or enforcing any suit or proceeding against the Partnership or any part of the Receivership Estate, except to the extent filed to toll any applicable statute of limitations and thereafter stayed” without first obtaining an order from the Superior Court. (Id. ¶ 23 & 23(b)). B. Receiver’s Management of the Receivership Estate The Receiver managed the Receivership Estate as instructed by the Superior Court for nearly seven years. Relevant here, on May 19, 2011, Receiver and Deportes entered into the Deportes LMA, which granted Deportes a license to operate the KTRB station for a 60-month term while the Receivership retained ownership of the station and its assets. (RJN, Exh. A, ¶ 2). The LMA included a provision granting Deportes an option to purchase the station for an agreed price, though that option likewise expired at the end of the 60-month term along with every other contractual right and obligation. (Id. ¶ 23; Compl. ¶ 25). In 2012, the underlying defaulted debt that led to the Receivership was sold by Comerica to Defendant Media Trust LLC. (Compl. ¶ 32). In 2015, Receiver received an unsolicited offer from a third- Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 11 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO party to purchase KTRB and sought the Superior Court’s approval of the sale. (RJN, Exh. C at 3). Deportes objected to that proposed sale, (RJN, Exh. D), though the Superior Court had little trouble overruling that objection and approving the transaction. (RJN, Exh. E). C. The Deportes LMA Expires Pursuant to its Terms The Deportes LMA expired on June 30, 2016 at the conclusion of its 60-month term. As the Deportes LMA makes plain, Deportes was neither entitled to an extension of the Deportes LMA beyond its initial term, nor was it entitled to retain any rights under the Deportes LMA after its expiry date. (RJN, Exh. A, ¶ 2). On May 27, 2016, Receiver delivered notice of the Deportes LMA’s expiration to Deportes. (RJN, Exh. F). D. Receiver’s Sale of KTRB and Deportes’s Notice of Various State Court Proceedings After the Deportes LMA expired and after Receiver told Deportes that the LMA had expired, Receiver entered into a new LMA with Salem. (Compl. ¶ 47). In August 2016, months after the Deportes LMA expired, the Receiver “reviewed an unsolicited offer and entered into negotiations with East Bay Broadcasting, LLC (EBB) for the KTRB assets.” (RJN, Exh. L [August 2016 Report at 3]). Then, on September 23, 2016, Receiver filed a notice of motion and motion seeking approval by the Superior Court of the sale of “substantially all the assets of the Receivership Estate” to EBB pursuant to an Asset Purchase Agreement dated September 16, 2016. (RJN, Exh. H). The Proof of Service establishes that this motion was served on “Interested Party Deportes Media of California, LLC.” (RJN, Exh. J). Objections to the proposed sale were due by October 6, 2016. None were filed. (RJN, Exh. O). On October 20, 2016, the Superior Court entered an order after hearing granting the motion. (RJN, Exh. K). These public events establish that Deportes knew about the Receiver’s sale of KTRB to EBB and had the opportunity to participate in the sale approval process. Yet, it did nothing. The reason is obvious: It had no right to do anything because it had no rights under the Deportes LMA to protect, and it had no other legal basis to interfere with the Receiver’s sanctioned and ratified transaction with EBB. /// /// /// Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 12 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO E. The Superior Court’s Approval of the Receiver’s Final Report and Account, and the Receiver’s Discharge There is more. The Receiver returned to the Superior Court again on December 19, 2016 with a Notice of Hearing and Motion for Approval of the Receiver’s Final Report and Account for the Period January 2016 Through November 2016. (RJN, Exh. L). That motion was likewise served on Deportes. (RJN, Exh. M). On January 31, 2017, the Superior Court entered an order granting the final report and account. (RJN, Exh. N). That order specifically states that: All actions taken, contracts made, debts incurred or other transactions entered into by the Receiver shall be and hereby are ratified and approved; . . . [t]hat the Receiver is exonerated and released of all liabilities arising out of or in connection with the receivership and the property; . . . [and [t]hat the receivership is terminated, the Receiver’s bond is exonerated and the Receiver is hereby discharged of all duties, liabilities or obligations related to this action. (Id. ¶¶ 1, 3, 7). Deportes did not object to this motion let alone challenge the Superior Court’s Order exonerating and discharging the Receiver. III. Key Allegations in Deportes’s Complaint Ignoring these crucial underlying facts, Deportes hews to a blinkered set of general allegations about its own intentions and desires. Deportes alleges, for example, that it “did not view [the Deportes LMA transaction] … as a short-term project/investment” and wanted to purchase the radio station and its assets. (Compl. ¶ 24). According to Deportes, “Uecker was aware of Plaintiff’s intentions and supportive of same.” (Id.). Whatever the merit and utility of those allegations, Deportes next zeroes in on two provisions of the expired Deportes LMA’s “Right of First Refusal” clause, (RJN, Exh. A, ¶ 24; Compl. ¶¶ 27-31), to advance its claims against Receiver Defendants: “Licensee [Susan L. Uecker as Receiver] shall not solicit or encourage offers from any third party or parties for the acquisition or lease of the Assets of the station, but it shall be entitled to consider any unsolicited offer.” (LMA ¶ 24).3 In the event the Licensee (Receiver) received an offer “[d]uring the Term of this Agreement,” the LMA gave Deportes 90- days to match it. (Id.). 3 Receiver was the “Licensee” and Deportes was the “Programmer” pursuant to rules and regulations promulgated by the Federal Communications Commission. Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 13 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO Deportes then alleges that “[d]espite the No-Shop provision and Right of First Refusal, Media Trust engaged Kalil & Company, a well-known broker of radio stations and similar assets, to shop KTRB and look for the highest possible bidder.” (Compl. ¶ 33) (emphasis added). Media Trust and Kalil & Company were not, of course, parties to the Deportes LMA, and Receiver Defendants did not, of course, control either entity. Media Trust merely had rights as the purchaser of the underlying indebtedness from Comerica, the entity that had applied for and received the Order Appointing Receiver, (Compl. ¶ 32), and there is no restriction in law or equity preventing it from conferring with a broker, here Kalil & Company, to maximize the value associated with its acquired debt. Apparently recognizing the infirmity of its legal position, Deportes does not deign to allege how or why Media Trust or Kalil & Company were bound by the terms of the Deportes LMA. Nor does Deportes deign to allege how Receiver violated some contractual obligation to Deportes when she was expressly permitted by the terms of the Superior Court’s Order appointing her and the Deportes LMA to not only enter into LMAs without court approval, but to consider unsolicited offers to lease or purchase KTRB during the term of the Deportes LMA and after, and to seek court approval of any sale should it prove in the best interests of the Receivership Estate to do so. (RJN, Exh. A, ¶ 24, and Exh. B). Any hint that a colorable claim has been stated evaporates when Deportes alleges that Salem –rather than EBB– acquired KTRB. Throughout its Complaint, Deportes strings together scurrilous allegations based solely on “information and belief,” (Compl. ¶ 10), that Receiver entered into or executed a purchase agreement for “Salem to acquire KTRB outright . . . ,” which Deportes alleges was part of some shadowy and “sham” step-transaction with Salem involving its LMA. (Compl. ¶¶ 47, 50, 51, 52, 54) (emphasis added). The falsity of these information and belief averments is laid bare by RJN Exhibit I (containing the 2016 Asset Purchase Agreement, “Exhibit E” to Ms. Uecker’s Declaration in Support of Receiver’s Motion for Sale) and Exhibit G (Salem LMA). These judicially noticeable documents establish that the Asset Purchase Agreement complained of (see, e.g., Compl. ¶ 52) was actually entered into by and between Receiver and EBB, not Receiver and Salem, and that Salem was merely a new programmer under a new LMA entered into with the Receiver after the Deportes LMA lapsed. (See also Compl. ¶¶ 44, 45, & 47). Had Deportes bothered to pause and attach the actual Asset Purchase Agreement and the actual Salem Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 14 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO (New Inspiration Broadcasting)4 LMA to its Complaint, it may have apprehended that every single allegation referring to not only a putative buy/sell transaction between Receiver and Salem but also a “sham” step-transaction based on the alleged association between that putative sale transaction and the Salem LMA simply is not true.5 At best, all Deportes can muster are gossamer thin allegations that, as the end of the term of the Deportes LMA neared in mid-2016, it made attempts to purchase KTRB, including by submitting letters of intent. (Compl. ¶¶ 38, 39.). Naturally, Deportes fails to attach any of these LOIs to the Complaint. Likewise, Deportes does not allege that its alleged efforts to purchase the station through these putative LOIs actually complied with the option requirements set forth in the Deportes LMA, which, for example, required it to match the prices set forth therein. (RJN, Exh. A, ¶ 23). What is more, Deportes does not allege that it was entitled to any extension of the Deportes LMA or that its Purchase Option or ROFR applied to any third party purchase offer, unsolicited or otherwise, after the LMA expired. Despite these incurable disabilities, Deportes alleges a specific claim against Receiver Defendants for breach of contract. But Deportes merely conclusorily alleges that there was a “valid contract in place” in the form of the Deportes LMA, (Compl. ¶ 62), that Receiver breached because she allegedly “actively market[ed] the station for sale in violation of the no-shop clause, and failing to honor the right of first refusal clause.” (Compl. ¶ 64). But it is absurd to superficially allege breach while, on the one hand, also alleging that Deportes had been presented with a competing offer in 2015, (Compl. ¶ 35), and when it could not match it, filed objections with the Superior Court in an attempt to prevent the sale (the objections were overruled) (RJN, Exh. E), and, on the other hand, received both notice of the proposed sale to EBB and the Receiver’ motion for discharge in 2016 (RJN, Exhs. I & L), but did not object or otherwise 4 Although Deportes repeatedly refers to a new LMA with Salem, the new agreement was made with New Inspiration Broadcasting Company. (RJN, Ex. G). 5 Receiver Defendants reserve the right to bring whatever motion they deem necessary and appropriate to recover their expenses for having to respond to Deportes’s frivolous Complaint, including a motion under Federal Rule of Civil Procedure 11 for their attorneys’ fees and costs. See Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1362-67 (upholding district court’s imposition of Rule 11 sanctions where plaintiff’s attorney “conducted absolutely no inquiry” prior to filing frivolous complaint against attorney defendant who had no relationship to the underlying dispute). Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 15 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO challenge the sale or the Receiver’s discharge and exoneration before the Superior Court. (Compl. ¶¶ 53- 55) (RJN, Exh. O). That these allegations do not and cannot suffice to state a claim for breach is obvious. Deportes’s only other claim against Receiver Defendants is the UCL claim. It, too, is fatally flawed. Deportes once again merely and conclusorily alleges that “Defendants engaged in a pattern of unfair business conduct/practices, including repeated and systematic breach of the governing contracts here at issue by using unlawful, tortious, fraudulent, and/or unfair means as described herein.” (Compl. ¶ 94). Yet, aside from the internally moribund, inconsistent, and contradictory breach of contract allegations, Deportes fails to allege a single unlawful, tortious, fraudulent, or unfair practice on the part of any of the Defendants, let alone the Receiver. Last, despite clear law in California that punitive damages are unavailable for claims for breach of contract or violations of the UCL, Deportes seeks punitive damages for each of its causes of action. (Compl. ¶ 98). IV. LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for “lack of subject matter jurisdiction.” See Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion can challenge the sufficiency of the pleadings to establish jurisdiction (facial attack), or a lack of any factual support for subject matter jurisdiction despite the pleading’s sufficiency (factual attack). See Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). For a facial attack, all allegations are accepted as true. Id.; see also Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (“In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.”) (citation omitted). For a factual attack, evidence outside the pleadings needed to resolve factual disputes as to jurisdiction may be considered. See ASssoc. of Am. Med. Coll. v. United States, 217 F.3d 770, 778 (9th Cir. 2000). The plaintiff has the burden of establishing jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). Rule 12(b)(6), in turn, permits dismissal of a pleading “based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory.” In re Webkinz Antitrust Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 16 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO Litig., No. 08-1987, 2010 WL 4168845, at *1 (N.D. Cal. Oct. 20, 2010) (citing Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008)). For a 12(b)(6) motion, “all well-pleaded allegations of material fact [are accepted as true] and construe[d] in the light most favorable to the non-moving party.” Padilla v. Yoo, 678 F.3d 748, 757 (9th Cir. 2012). “[C]onclusory allegations of law and unwarranted inference” are insufficient. Associated Gen. Contractors v. Metro Water Dist., 159 F.3d 1178, 1181 (9th Cir. 1998). “‘Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To survive a Rule 12(b)(6) motion to dismiss, “a complaint must have sufficient factual allegations to ‘state a claim to relief that is plausible on its face.’” United Energy Trading, LLC v. Pac. Gas & Elec. Co., 146 F. Supp. 3d 1122, 1132 (N.D. Cal. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[W]here the well-pleaded facts do not permit the court to infer more than a mere possibility of misconduct, the complaint has not shown the pleader is entitled to relief.” Davenport v. Litton Loan Servicing, LP, 725 F. Supp. 2d 862, 872 (N.D. Cal. 2010). Rather, the pleader must “allege more by way of factual content to ‘nudg[e]’ his claim” of unlawful action “‘across the line from conceivable to plausible.’” Iqbal, 556 U.S. at 683 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[D]ismissal may be based on either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008) (internal quotations and citations omitted); see also Neitzke v. Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”). Where, as here, a defendant simultaneously challenges both the complaint’s jurisdictional basis and its legal sufficiency, “the Court looks to the jurisdictional issues first.” Adams v. Comm. on Judicial Conduct & Disability, 165 F. Supp. 3d 911, 917 (N.D. Cal. 2016) (citation omitted). Here, Deportes’s claims must be dismissed under either or both Rule 12(b)(1) and Rule 12(b)(6). /// /// /// /// Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 17 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO V. ARGUMENT A. Deportes Fails to Demonstrate–Indeed Seeks to Obfuscate–Diversity of Citizenship Thereby Requiring Dismissal of the Complaint Pursuant to Rule 12(b)(1) The Complaint does not demonstrate complete diversity of citizenship. Deportes, an LLC, does not reveal the identity of its member’s members, making it impossible for Receiver Defendants and this Court to determine whether complete diversity of citizenship exists. Without proof of complete diversity, the Complaint must be dismissed. “It is the burden of Plaintiffs to persuade the federal courts that subject matter jurisdiction does exist.” Hexom v. Oregon Dep’t of Transp., 177 F. 3d 1134, 1135 (9th Cir. 1999). Accordingly, “[a] plaintiff suing in a federal court must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so, the court, on having the defect called to its attention or on discovering the same, must dismiss the case.” Smith v. McCullough, 270 U.S. 456, 459 (1926). Subject matter jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332 requires proof of complete diversity of citizenship, meaning every plaintiff must be a citizen of a different state from every defendant. “Absent unusual circumstances, a party seeking to invoke diversity jurisdiction should be able to allege affirmatively the actual citizenship of the relevant parties.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). Limited liability companies can be citizens of multiple states. Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) (“an LLC is a citizen of every state of which its owners/members are citizens”). Here, Deportes claims that subject matter jurisdiction exists on the basis of the diversity of the parties pursuant to 28 U.S.C. § 1332. (Compl. ¶ 7). Deportes, however, provides only limited information about its citizenship and that of its sole member, and provides no information about the citizenship of its sole member’s members. The Complaint merely explains that Deportes’s “sole member is Deportes Media LLC, whose members are residents of Dallas, Texas for purposes of jurisdiction and venue.” (Compl. ¶ 1.) But whether Deportes LLC’s members are “residents” of Texas is irrelevant. Federal law in the diversity jurisdiction realm looks to the citizenship of those members, which includes the citizenship of their respective members if any of them are LLCs or partnerships. See Kanter, 265 F.3d at 857 (observing that a complaint that states plaintiffs are “residents” of a state is insufficient because “the diversity jurisdiction Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 18 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO statute, 28 U.S.C. § 1332, speaks of citizenship, not of residency” and because ‘a natural person’s state citizenship is then determined by her state of domicile, not her state of residence”); Johnson, 437 F.3d at 899. Deportes must affirmatively disclose the identity and citizenship –not simply the residency– of each member of Deportes Media LLC to establish subject matter jurisdiction. Deportes does not even try to meet this burden. What it does do is intentionally obfuscate the matter in its pleadings and, worse, fails to make proper disclosures under the Northern District’s local rules so that Receiver Defendants can make appropriate inquiry and verify the facts. In fact, Deportes was required to “disclose any persons, associations of persons, firms, partnerships, corporations (including parent corporations), or other entities other than the parties themselves known by the party to have either: (i) a financial interest of any kind in the subject matter in controversy or in a party to the proceeding; or (ii) any other kind of interest that could be substantially affected by the outcome of the proceeding.” Northern District of California Local Rule 3-15(a)(1). This disclosure must be filed as a separate document “[u]pon making a first appearance in any proceeding in this Court,” yet, to date, Deportes has not filed this disclosure. Id. Until Deportes reveals the identity of its members in a legitimate pleading and makes proper disclosure pursuant to this Court’s rules, Deportes has not met and cannot demonstrate that complete diversity exists. Accordingly, the Complaint must be dismissed pursuant to Rule 12(b)(1). This is just the first fatal flaw requiring dismissal. In addition to infirmities under Rule 12(b)(1), the Complaint must be dismissed under Rule 12(b)(6). B. The Court Must Dismiss Deportes’s Complaint Pursuant to Rule 12(b)(6) Because the Claims are Barred by Principles of Res Judicata, Barred by Principles of Quasi-Judicial Immunity, Barred Because Deportes Did Not Seek Leave of the Superior Court to Bring Suit Against Receiver Defendants, and Because Deportes Does Not Allege Sufficient Facts for its Breach of Contract or UCL Claims 1. Deportes’s Claims are Barred by Res Judicata Deportes’s claims are barred by res judicata because, under California law, claims against a receiver in his or her official capacity must be brought to the court overseeing the receiver before discharge. In the Ninth Circuit, affirmative defenses such as res judicata or immunity “may be considered properly on a motion to dismiss where the ‘allegations in the complaint suffice to establish’ the defense. Sams v. Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 19 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013) (quoting Jones v. Bock, 549 U.S. 199, 215 (2007); see also Goddard v. Google Inc., 640 F.Supp.2d 1193, 1199 n. 5 (N.D. Cal. 2009) (explaining that “affirmative defenses routinely serve as a basis for granting Rule 12(b)(6) motions where the defense is apparent from the face of the [c]omplaint”). Federal courts exercising diversity jurisdiction follow “the general rule that the law of the judgment state controls the preclusion effects of a state-court judgment.” 18B Fed. Prac. & Proc. Juris. § 4469 (2d ed.); see also 28 U.S.C. § 1738 (judicial proceedings of every state shall have the same full faith and credit in every court within the United States”); Henrichs v. Valley View Dev., 474 F.3d 609, 615 (9th Cir. 2007) (“To determine the preclusive effect of a state court judgment, we look to state law.”); Kougasian v. TMSL, Inc., 359 F.3d 1136, 1143 (9th Cir. 2004) (“A federal court is required under 28 U.S.C. § 1738 to look to the preclusion law of the state court that rendered the earlier judgment or judgments to determine whether subsequent federal litigation is precluded.”). Under California preclusion law, “[a]s a general proposition, a receiver has no official duties and is not a proper party to any action after being discharged by the court. The discharge order operates as res judicata as to any claims of liability against the receiver in his or her official capacity.” 55 Cal. Jur. 3d Receivers § 90 (citing Vitug v. Griffin, 214 Cal.App.3d 488 (Cal. Ct. App. 1989)). Only in situations where “plaintiffs are not parties to the receivership and have no notice of the proceedings and where their claim is not accounted for in the receiver's final account” will res judicata not act as a bar to a potential claim against a receiver after discharge. (Id.). Claims that could have been raised as objections to a receiver’s final report cannot be collaterally attacked in a different proceeding. In Aviation Brake Systems, Ltd. v. Voorhis, for example, the California Court of Appeals grappled with whether to overturn a superior court dismissal of plaintiff’s claim that the receiver violated his duties in winding up a defunct corporation. 133 Cal. App. 3d 230, 234 (Cal. Ct. App. 1982). The court declined to do so, concluding that “the matters sought to be litigated in the present action were, could have been, or should have been litigated at the time the receiver’s final report and account was approved, and that the court's order in the prior case approving the account, which has become final, may not be collaterally attacked in this proceeding.” Id. The court also rejected the argument that res judicata Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 20 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO would only bar claims related to the receiver’s official liability, but that claims based on the receiver’s personal liability should go forward. Id. In so doing, the court observed that: [U]pon the receiver's final report and account, the receiver in his personal capacity may be surcharged for losses to the receivership estate based upon his misconduct or mismanagement. Notice of the receiver's final report and account is given to all interested parties. (Cal. Rules of Court, rule 240(d).) In this case the questions now sought to be raised about the propriety of various expenditures and the adequacy of the inventory of property could and should have been raised as objections to the receiver's final report and account. Id. at 235. Although plaintiff alleged the facts underlying these claims could not have been discovered until later, the court disagreed, observing that they were discoverable when the receiver filed his final report. Id. Federal courts have applied these same principles when reviewing claims against California court-appointed receivers. See Credit Managers Ass’n of Southern California v. Kennesaw Life & Acc. Ins. Co., 25 F.3d 743, 750-52 (9th Cir. 1994) (noting that a receiver’s personal liability was a matter for the state court that appointed the receiver, not a matter to be reviewed pursuant to a federal writ of execution). Here, Deportes knew how to object to a motion to sell KTRB because it had done so before in the context of the failed sale to U.S. International Radio LLC. (RJN, Exh. D). Yet, despite having had at least two opportunities to object to the actions underlying its Complaint, it did nothing. (RJN, Exh. O). The Receiver properly disclosed the proposed sale of KTRB to EBB to the Superior Court and Deportes when it filed its motion in October 2016, several months after the Deportes LMA expired, (RJN, Exh. H), Deportes was served notice of that motion, (RJN, Exh. J), and the Superior Court entered an order approving that motion, (RJN, Exh. K). Then, in December 2016, after the sale was consummated, the Receiver returned yet again to the Superior Court, this time submitting her monthly reports from the prior year, which described negotiations with Deportes and her receipt of numerous unsolicited offers from other interested parties. (RJN, Exh. L). On the basis of these reports, the Receiver sought the Superior Court’s approval of her account and a release from her receivership duties and liabilities. (Id.). Again, Deportes received notice of this motion and did not object. (RJN, Exh. M). And, again, the Superior Court entered an order approving her discharge. (RJN, Exh. N). As the Superior Court put it, approval of the final account meant the Receiver was “discharged of all duties, liabilities or obligations related to this action.” (RJN, Exh. N, ¶ 7). Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 21 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO Based on the foregoing, Deportes cannot now complain of being denied a full and fair opportunity to bring its claims against the Receiver in the Superior Court that appointed her. These matters “could have been, or should have been litigated at the time the receiver's final report and account was approved, [and] may not be collaterally attacked in this proceeding.” Aviation Brake Systems, Ltd., 133 Cal. App. 3d at 234. Accordingly, the Court can and should dismiss this matter based on California principles of res judicata as applied in receivership proceedings.6 2. Deportes’s Claims Against the Receiver Defendants are Barred by the Doctrine of Quasi- Judicial Immunity Deportes’s claims against the Receiver Defendants may also be dismissed under Rule 12(b)(6) because the Receiver is immune based on the doctrine of quasi-judicial immunity. Judicial immunity has been described by the Ninth Circuit as a “‘sweeping form of immunity’ for acts performed by judges that relate to the ‘judicial process.’” In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002), as amended (Sept. 6, 2002) (quoting Forrester v. White, 484 U.S. 219, 225 (1988)). “This absolute immunity insulates judges from charges of erroneous acts or irregular action, even when it is alleged that such action was driven by malicious or corrupt motives, or when the exercise of judicial authority is flawed by the commission of grave procedural errors.” Id. (internal citations and quotation marks omitted). “Absolute judicial immunity is not reserved solely for judges, but extends to nonjudicial officers for ‘all claims relating to the exercise of judicial functions.’” Id. (quoting Burns v. Reed, 500 U.S. 478, 499 (1991) (Scalia, J., concurring in part and dissenting in part). Historically, federal courts have had little problem applying the concept of quasi-judicial immunity to receivers. See New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1303 (9th Cir. 1989) (noting that “cases from other circuits have held uniformly that state court-appointed receivers are entitled to absolute 6 To the extent Deportes is not merely alleging injuries that could have been raised in the Superior Court, but is actively attacking the Superior Court’s approval of the sale to EBB and discharge of Defendant Uecker, its claims are barred by the Rooker-Feldman Doctrine. Henrichs, 474 F.3d at 613 (“The Rooker– Feldman doctrine provides that federal district courts lack jurisdiction to exercise appellate review over final state court judgments. Essentially, the doctrine bars state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced from asking district courts to review and reject those judgments.”) (internal citations omitted). Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 22 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO immunity” based on “the premise that ‘receivers are court officers who share the immunity awarded to judges.’”) (quoting Kermit Constr. v. Banco Credito Y Ahorro Ponceno, 547 F.2d 1, 2 (1st Cir. 1976)). This quasi-judicial immunity applies to receiver’s management and operation of businesses in receivership, because “the receiver functions as an arm of the court by making decisions about the operation of a business that the judge otherwise would have to make. A receiver operates a business only because the court has directed him to do so in connection with a case pending before the court.” Id. at 1303 n.6. Without “broad immunity, receivers would be a lightning rod for harassing litigation aimed at judicial orders.” Id. (quotation marks omitted). According to the Ninth Circuit, only those acts that are not “intimately connected with his receivership duties” lack immunity. Id. at 1304. A plaintiff trying to overcome the “presumption of judicial immunity is therefore ‘required to allege’ plausible facts demonstrating ‘the absence of judicial immunity.’” Spitzer v. Aljoe, No. 13-05442, 2016 WL 7188007, at *3 (N.D. Cal. Dec. 12, 2016) (quoting New Alaska Dev. Corp., 869 F.2d at 1303). Even then, federal courts—just like California courts—insist that allegations of personal negligence and other misdeeds, as long as they were known at the time, are “matters that [plaintiffs] should have pursued before [state court judge who appointed receiver].” Id. Here, Deportes’s claims against the Receiver are barred by quasi-judicial immunity because they are aimed at actions she took pursuant to the duties and powers bestowed on her by the Superior Court. In other words, it is fatal to Deportes’s claims that the Superior Court reviewed and expressly approved her decision to allow the Deportes LMA to lapse at the end of June 2016 and to sell KTRB to EBB later that same year. (RJN, Exh. K). These decisions were candidly disclosed by the Receiver in her motions and in her monthly reports, and they were approved and ratified by the Superior Court. (RJN, Exh. N). Deportes has not alleged a single plausible fact demonstrating the “absence of judicial immunity” for these actions. Spitzer, 2016 WL 7188007, at *3. In fact, it would be legally impossible for Deportes to allege such facts given the Superior Court not only approved every transaction but likewise ratified each action and exonerated the Receiver for those actions. (RJN, Exh. N, ¶ 1) (ratifying and approving “all actions taken, contracts made . . . or other transactions entered into by the Receiver”)). Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 23 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO 3. Deportes’s Claims Are Barred Because it Failed to Seek Leave of the Superior Court to Sue the Receiver Deportes’s claims against the Receiver Defendants are likewise barred by California’s rule requiring plaintiffs to seek leave of court before suing a court-appointed receiver. See Ostrowski v. Miller, 226 Cal. App. 2d 79, 84 (Cal. Ct. App. 1964) (“A receiver is a court appointed official who can be sued only by permission of the court appointing him.”). Courts have discretion about whether to grant or deny leave to sue, but “permission may be denied where full relief can be granted by intervention in the original proceeding. The more common practice, and the one generally recommended, is to hear and determine all rights of action and demands against a receiver by petition in the cause in which he was appointed.” Id. This rule applies when California court-appointed receivers are sued in federal court. See, e.g., Grego v. Pacific Western Bank, 551 B.R. 33, 35, 37-38 (E.D. Cal. 2016) (“[A] receiver is an officer of the appointing court and may not be sued without that court’s permission.”) (citing Vitug v. Griffin, 214 Cal.App.3d 488, 492 (Cal. Ct. App. 1989) and Cal. Code Civ. P. § 568). Federal courts apply a nearly identical federal rule requiring leave of the appointing court before suing a bankruptcy trustee or receiver. “The requirement of obtaining leave from the appointing court to sue a trustee is long-standing.” In re Castillo, 297 F.3d at 945 (citing Barton v. Barbour, 104 U.S. 126, 129 (1881)). Here, Deportes has not alleged that it sought or obtained leave of the Santa Clara County Superior Court to sue the Receiver based on her activities as receiver for the Pappas receivership. Failure to seek leave likewise bars Deportes’s claims. Ostrowski, 226 Cal. App. 2d at 84. 4. Deportes’s Complaint Fails to Allege a Sufficient Factual Basis for Breach of Contract as to the Receiver Defendants Putting aside the fact that Deportes’s claims are precluded by res judicata, quasi-judicial immunity, and because it failed to seek leave of the Superior Court before suing, Deportes’s Complaint fails to allege sufficient facts showing that it performed under the Deportes LMA let alone that Receiver breached the agreement. “The elements for a breach of contract action under California law are: (1) the existence of a contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) damages to plaintiff as a result of the breach.” Buschman v. Anesthesia Bus. Consultants LLC, 42 F. Supp. 3d 1244, Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 24 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO 1250 (N.D. Cal. 2014) (citing CDF Firefighters v. Maldonado, 158 Cal. App. 4th 1226, 1239 (Cal. Ct. App. 2008), as modified on denial of reh'g (Feb. 5, 2008)). Here, Deportes alleges two violations of the Deportes LMA: “active[] marketing [of] the station for sale in violation of the no-shop clause, and failing to honor the right of first refusal clause.” (Compl. ¶ 64.) Nowhere in the Complaint, however, does Deportes allege that the Receiver “solicit[ed] or encourage[ed] offers from any third party or parties for the acquisition of the Assets of the station” as prohibited by the Deportes LMA. (RJN, Exh. A, ¶ 24). Rather, the Complaint contains facts contradicting such a claim when it illustrates that the Receiver merely “consider[ed] . . . unsolicited offer[s]” as she was empowered to do under the Deportes LMA. (Id.). The only facts in the Complaint describing efforts to solicit or encourage offers describe alleged actions of Defendants Media Acquisition Trust and Kalil & Company, (Compl. ¶¶ 33, 34, 35, 37), two entities that were not parties to the Deportes LMA. Deportes’s later conclusory allegation that the Receiver “actively market[ed] the station for sale in violation of the no-shop clause” without any supporting factual allegations demonstrating that the Receiver undertook any marketing efforts is a “naked legal conclusion” that cannot survive a motion to dismiss. Ashcroft, 556 U.S. at 696. Further, Deportes fails to allege facts that would demonstrate it performed its obligations under the Deportes LMA sufficient to exercise its option to purchase the station. To be sure, Deportes alleges that it undertook efforts to purchase the station, for example, by submitting letters of intent. (Compl. ¶¶ 38, 39). However, the option to purchase was tied to specific, predetermined prices. (RJN, Exh. A, ¶ 23(a)-(c) (describing the price of the option increasing from $9,000,000 to $12,000,000 over the course of the Deportes LMA term)). Deportes does not allege that it made any monetary offers let alone offers bringing it within the ambit of these provisions. Finally, Deportes cannot plead a claim for breach of contract because the alleged breach it complains of allegedly occurred well after June 2016 when the agreement had already expired. As the Receiver informed the Superior Court in her reports, EBB first submitted an unsolicited offer in August 2016, after the expiry date of the Deportes LMA. (RJN, Exh. L, August 2016 Report at 3). Deportes acknowledges this fact (as it must) in its Complaint. (Compl. ¶ 52). Thus, the fact that the Receiver was approached with an unsolicited offer after June of 2016 cannot form the basis for a breach because Receiver Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 25 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO no longer had any obligations to breach and Deportes no longer had any rights under the LMA to enforce. “As a general rule, where the contract at issue has expired, the parties are ‘released . . . from their respective contractual obligations’ and any dispute between them cannot be said to arise under the contract.” Poore v. Simpson Paper Co., 566 F.3d 922, 927 (9th Cir. 2009) (quoting Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 206 (1991)). Therefore, even if Deportes’s factual allegations are assumed to be true, Deportes has not and cannot allege facts that could conceivably constitute a breach of contract claim with respect to the Purchase Option or ROFR. 5. Deportes’s Complaint Fails to Allege a Sufficient Factual Basis for Violations of the UCL As a threshold matter, Deportes pleads its claim under the UCL without identifying whether its claims arise under the unlawful, unfair, or fraudulent “prongs” of that statute. Plaintiffs suing under more than one prong of the UCL must specify those prongs in their complaint. See Hutton v. Fid. Nat'l Title Co., 213 Cal. App. 4th 486, 498 (Cal. Ct. App. 2013), as modified on denial of reh'g (Feb. 22, 2013) (“In an effort to persuade us that these theories were somehow pled, plaintiff notes that the first cause of action included a statement that defendant's conduct was ‘unlawful, unfair or fraudulent.’ But that was a bare conclusion, not the factual basis of a cause of action.”). To the extent Deportes’s claim under the UCL sounds in fraud, the heightened pleading requirements of Rule 9(b) apply. See Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009). UCL “claims sounding in fraud must allege ‘an account of the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.’” Elias v. Hewlett-Packard Co., 950 F. Supp. 2d 1123, 1127 (N.D. Cal. 2013) (quoting Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir.2007) (per curiam)) (internal quotation marks and citation omitted). Further, under the UCL, “[r]eliance is an essential element of . . . fraud . . . [and must be] proved by showing that the defendant's misrepresentation or nondisclosure was an immediate cause of the plaintiff's injury-producing conduct. In re Tobacco II Cases, 46 Cal. 4th 298, 326 (Cal. 2009) (internal quotation marks omitted). Here, Deportes alleges none of these required elements. Deportes does not specify a theory of liability under the UCL, nor does it allege specific fraudulent representations, why those representations were false, or how Deportes relied on those misrepresentations to its detriment. Deportes repeatedly Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 26 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO characterizes Defendants’ actions as “fraudulent” and a “sham.” (Compl. ¶¶ 36, 48, 50, 92, 94). Deportes’s claims sound in fraud, but Deportes has not pleaded fraud with the requisite particularity. Kearn, 567 F.3d at 1127 (holding that district court did not need to separately analyze plaintiff’s claims under “unfair” prong because the complaint was “grounded in fraud” thereby requiring the “entire complaint” to “be pleaded with particularity” under Rule 9(b)). Moreover, Deportes, as an entity that used to be in contract with the Receiver, cannot sufficiently plead a claim under the UCL because it is, at best, an allegedly aggrieved contract party. “In these circumstances, where a UCL action is based on contracts not involving either the public in general or individual consumers who are parties to the contract, a corporate plaintiff may not rely on the UCL for the relief it seeks.” Linear Tech. Corp. v. Applied Materials, Inc., 152 Cal. App. 4th 115, 135 (Cal. Ct. App. 2007) (upholding a trial court’s order sustaining defendant’s demurrer to plaintiff’s UCL claims) (citing Rosenbluth International, Inc. v. Superior Court, 101 Cal.App.4th 1073, 1077-79 (Cal. Ct. App. 2002)).7 Deportes is nothing more than an entity that was in a contractual relationship with the Receiver. It cannot rely on a statute that was designed to protect consumers and members of the public in order to repackage its deficient breach of contract claim. The UCL is not a catch-all. See, e.g., Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1157 (Cal. 2003) (holding that the UCL is not an “all-purpose substitute for a tort or contract action”); In re Firearm Cases, 126 Cal. App. 4th 959, 979 (Cal. Ct. App. 2005) (“Although the unfair competition law's scope is sweeping, it is not unlimited. Courts may not simply impose their own notions of the day as to what is fair or unfair.”) (internal citation omitted). Finally, it is unclear what remedies Deportes could obtain from its UCL claim. Nonrestitutionary damages are not available under the statute. Korea Supply Co., 29 Cal. 4th at 1150 (“While any member 7 Deportes’s citation to Gibson v. World Savings and Loan Association, 103 Cal. App. 4th 1291 (2002), is inapposite. Deportes suggests that Gibson stands for the proposition that unfair practices “can be based upon systematic breaches of a governing agreement.” (Compl. at 15 n.3). This is not what Gibson says. On the contrary, Gibson’s holding answers a much narrower question of whether federal lending regulations preempted claims under the UCL. In answering that question, the Gibson court held that “the duties to comply with contracts and the laws governing them and to refrain from misrepresentation, together with the more general provisions of the UCL, are principles of general application” which only incidentally impacted federal lending regulations, and were thus, not preempted. Gibson, 103 Cal. App. 4th at 1303. Further, the plaintiffs in that case were a class of individual borrowers, not, as here, a single, corporate entity. Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 27 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 Defendants Susan L. Uecker’s and Uecker & Associate’s Notice of Motion and Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b(6) of the Federal Rules of Civil Procedure; Memorandum Of Points And Authorities Case No. 3:17-cv-3403-WHO of the public can bring suit under the act to enjoin a business from engaging in unfair competition, it is well established that individuals may not recover damages.”). Although Deportes prays for restitution in addition to damages, it is unclear what could be restored to Deportes at this point after the sale has been finalized and the Receiver discharged. C. Deportes’s Prayer for Punitive Damages as to Receiver Must Be Dismissed from the Complaint Because it is Improper as a Matter of California Law Punitive damages are unavailable in actions for breach of contract or violations of the UCL. See Cal. Civil Code § 3294 (punitive damages are available “[i]n an action for the breach of an obligation not arising from contract”) (emphasis added); Korea Supply Co., 29 Cal. 4th at 1148 (noting that “attorney fees and damages, including punitive damages, are not available under the UCL”); see also Schnall v. Hertz Corp., 78 Cal. App. 4th 1144, 1153 (Cal. Ct. App. 2000) (the only remedies under the UCL are “generally limited to injunctive relief and restitution.”). Here, Deportes’s only claims against the Receiver are for breach of contract and violations of the UCL. (Compl. ¶¶ 60-66 and 91-96). Accordingly, punitive damages are unavailable to Deportes and must be stricken from the Complaint. VI. CONCLUSION For the foregoing reasons, Receiver Defendants respectfully request that the Court dismiss the Complaint in its entirety without leave to amend. Dated: July 12, 2017 JENNER & BLOCK LLP /s/ Todd C. Toral TODD C. TORAL Attorneys for Defendants Susan L. Uecker, individually and in her capacity as Discharged and Exonerated Receiver for Pappas Radio of California, L.P., and Uecker & Associates, Inc. Case 3:17-cv-03403-WHO Document 10 Filed 07/12/17 Page 28 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 [Proposed] Order Granting Defendants’ Motion to Dismiss Case No. 3:17-cv-3403-WHO JENNER & BLOCK LLP Todd C. Toral (Cal. Bar No. 197706) Ttoral@jenner.com Benjamin J. Brysacz (Cal. Bar. No. 297886) Bbrysacz@jenner.com 633 West 5th Street, Suite 3600 Los Angeles, CA 90071 Telephone: (213) 239-5100 Facsimile: (213) 239-5199 Attorneys for Defendants Susan L. Uecker, individually and in her capacity as Discharged and Exonerated Receiver for Pappas Radio of California, L.P., and Uecker & Associates, Inc. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DEPORTES MEDIA OF CALIFORNIA, LLC, Plaintiff, v. SUSAN L. UECKER, MEDIA ACQUISITION TRUST LLC, EAST BAY BROADCASTING COMPANY INC., SALEM MEDIA GROUP INC., KALIL & CO. INC., Defendants. Case No. 3:17-cv-3403-WHO [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Hearing Date: August 23, 2017 Hearing Time: 2:00 p.m. Judge: Hon. William H. Orrick Courtroom: 2, 17th Floor Having considered Defendants Susan L. Uecker’s and Uecker & Associates, Inc.’s Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and all Case 3:17-cv-03403-WHO Document 10-1 Filed 07/12/17 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 [Proposed] Order Granting Defendants’ Motion to Dismiss Case No. 3:17-cv-3403-WHO of the other papers and argument presented, and good cause appearing, the Court hereby GRANTS Defendants’ Motion to Dismiss. Plaintiff’s Complaint shall be dismissed with prejudice. IT IS SO ORDERED. Dated: ______________, 2017 ____________________________________ The Honorable William H. Orrick United States District Judge Case 3:17-cv-03403-WHO Document 10-1 Filed 07/12/17 Page 2 of 2