Laurie Munning v. The Gap, Inc. et al

Filing 69

ORDER Denying Plaintiff's 60 Motion for Clarification. Signed by Judge Thelton E. Henderson on 6/1/17.(tehlc2, COURT STAFF) (Filed on 6/1/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LAURIE MUNNING,

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Plaintiff,
v.

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THE GAP, INC., et al.,

Case No. 16-cv-03804-TEH
ORDER DENYING PLAINTIFF'S
MOTION FOR CLARIFICATION

Defendants.

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This matter came before the Court on May 18, 2017 for a hearing on Plaintiff

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United States District Court
Northern District of California

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Munning’s motion for clarification (ECF No. 60) (“Mot.”). Specifically, Plaintiff seeks

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“an order clarifying that the Court’s ruling on February 24, 2017 does not prevent Plaintiff

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from continuing to seek injunctive relief as part of her claim under the New Jersey

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Consumer Fraud Act.” Mot. at 1:1–4. Defendants timely opposed the motion (ECF No.

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63) (“Opp’n”), and Plaintiff timely replied (ECF No. 64) (“Reply”). After carefully

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considering the parties’ written and oral arguments, the Court hereby DENIES Plaintiffs’

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motion for clarification.

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I. BACKGROUND
As the parties are familiar with the factual background of this case, the Court

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provides only a brief summary of the facts.
Defendants are for-profit entities that sell apparel and other personal items in retail

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stores and online. ECF No. 41 (“FAC”) ¶¶ 11–21. In March 2016, Plaintiff purchased

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three clothing items from the Defendants’ websites: one pair of swim trunks from the Gap

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Factory retail website, and one dress and one sweater from the Banana Republic Factory

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website.1 Id. ¶¶ 47–52. Each of these items was advertised as being on sale.2 Id. For

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example, the price of the swim trunks appeared as follows:

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The Gap Factory and Banana Republic Factory websites (www.gapfactory.com and
www.bananarepublicfactory.com, respectively) allow a consumer to browse and select

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$24.99 32% off

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Now $16.99

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Id. ¶ 48. Plaintiff alleges the prices she paid for the three products remained unchanged for

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the entire week following her purchase. Id. ¶ 55. One month after her purchase, the price

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of the swim trunks slightly increased to $17.99, while the price of the dress still remained

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unchanged.3 Id. ¶ 56. Consequently, the Plaintiff alleged “upon information and belief”

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that the three items she purchased “were never sold or offered for sale at the non-

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discounted, base prices listed on Defendants’ websites . . . . Rather, the items were always

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sold and offered for sale at a price at or near the purported ‘sale’ price that Plaintiff paid.”
Id. ¶ 57. Moreover, Plaintiff alleges these actions were part of a “uniform policy” and

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United States District Court
Northern District of California

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“systematic scheme” which Defendants knowingly implemented to defraud purchasers. Id.

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¶ 62.

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Plaintiff brought this putative class action against Defendants challenging the

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Defendants’ advertising, marketing, and sales practices on the online Gap Factory and

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Banana Republic Factory store websites. Plaintiff initially brought eleven claims for relief

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against the Defendants: (1) Violations of State Consumer Protection Statutes; (2) Violation

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of the California Legal Remedies Act (“CLRA”); (3) Violation of the California Unfair

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Competition Law (“UCL”); (4) Violation of California’s False Advertising Law (“FAL”);

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(5) Violation of the New Jersey Consumer Fraud Act (“NJCFA”); (6) Violation of the New

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Jersey Truth in Consumer Contract, Warranty, and Notice Act (“TCCWNA”); (7) Breach

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of Contract; (8) Breach of Contract under Implied Covenant of Good Faith and Fair

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Dealing; (9) Breach of Express Warranty; (10) Unjust Enrichment; and (11) Negligent

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Misrepresentation. Id. at 15–31.

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Ruling on the Defendants’ first motion to dismiss, this Court dismissed claims 1, 8,
10, and 11 with prejudice. ECF No. 29. In the same Order, the Court also dismissed

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items from both websites and to pay for the products in a single transaction. FAC ¶ 19.
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The swimming trunks were priced at $16.99 (32% off); the sweater was priced at $45.98
(16% off); and the dress was priced at $44.98 (50% off). FAC ¶¶ 48–51.
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Plaintiff did not mention if the price of the sweater changed at this point in time.
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claims 2, 5, 6, and claims for restitution and injunctive relief without prejudice. Id.

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Plaintiff amended her complaint, see ECF No. 41, and Defendants filed a second motion to

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dismiss, see ECF No. 44, seeking to dismiss claims 2, 5, 6, and Plaintiff’s claims for

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restitution and injunctive relief.4 In ruling on Defendants’ second motion to dismiss, the

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Court denied Defendants’ motion to dismiss claims 2, 5, and 6, but the Court granted

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Defendants’ motion to dismiss Plaintiff’s claims for equitable relief, which included

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Plaintiff’s UCL and FAL claims.5 ECF No. 56 (“Order”) at 10. More specifically, the

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Court found Plaintiff had sufficiently pled a violation of the NJCFA, but the Court also

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dismissed plaintiff’s claims for equitable relief based on the recognized principle in this
district that a plaintiff seeking equitable relief must establish that there is no adequate

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United States District Court
Northern District of California

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remedy at law available. Order at 4–5, 9–10.

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During a recent Case Management Conference, the parties raised the current

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dispute: whether the Court’s prior February 24, 2017 Order dismissed Plaintiff’s claim for

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injunctive relief under the NJCFA. The Court instructed the parties to submit briefing on

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the matter.

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II. DISCUSSION
1. Plaintiff’s Motion is Procedurally Proper

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As an initial matter, the Court shall address Defendants’ procedural arguments.

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Defendants oppose Plaintiff’s motion as an improper motion for reconsideration. See

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Opp’n at 3–4. However, as mentioned above, during the parties’ case management

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conference on March 20, 2017, the Court expressly instructed the Plaintiff to submit her

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motion and for the parties to brief the matter. Accordingly, Plaintiff’s motion is proper.

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Defendants’ motion to dismiss sought dismissal of Plaintiff’s “requests for restitution and
injunctive relief, as well as Plaintiff’s claims under the California [UCL] and [FAL]
(which only allow for equitable remedies), and [Plaintiff’s] request for injunctive relief
under the NJCFA.” ECF No. 44-1 at 3:1–4.
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These claims were dismissed because a plaintiff can only recover equitable relief under
the UCL and FAL. See Duttweiler v. Triumph Motorcycles (Am.) Ltd., No. 14-cv-04809HSG, 2015 WL 4941780, at *8 (N.D. Cal. Aug. 18, 2015).
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2. Plaintiff Fails to Distinguish the NJCFA from other California Consumer

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Protection Statutes

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The crux of the parties’ dispute is whether the Court’s February 24, 2017 Order
(“Order”) precludes Plaintiff from seeking injunctive relief under the NJCFA. In that

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Order, the Court denied Defendants’ motion to dismiss Plaintiff’s NJCFA claim. Order at

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4–7. This was because the Court found Plaintiff has sufficiently pled the elements of an

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NJCFA claim: 1) unlawful conduct; 2) an ascertainable loss, under the out-of-pocket

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method; and 3) causation. Id. However, at the same time, the Court also granted

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“Defendants’ motion to dismiss Plaintiff’s claims for equitable relief, including Plaintiff’s

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UCL and FAL claims.” Order at 10:9–10. This was based on the legal principle – which

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United States District Court
Northern District of California

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has been widely recognized in this District – that “[a] plaintiff seeking equitable relief in

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California must establish that there is no adequate remedy at law available.” Philips v.

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Ford Motor Co., 2015 WL 4111448, at *16. In dismissing Plaintiff’s claims for injunctive

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relief, the Court relied on several cases in this district which have dismissed claims for

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equitable relief under the CLRA, UCL, and FAL, when a plaintiff had an adequate remedy

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at law – i.e., monetary damages. See Order at 9.6
Plaintiff argues the Court’s Order should not preclude her from seeking injunctive

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relief under the NJCFA. This is because the Court recognized that Plaintiff had pleaded a

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viable claim under the NJCFA, which included a claim for injunctive relief. Mot. at 3:4–

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26 (citing First Amended Complaint ¶¶ 160–61).7 Plaintiffs also support their position by

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The Court cited the following cases: Zapata Fonseca v. Goya Foods Inc., No. 16-cv02559-LHK, 2016 WL 4698942, at *7 (N.D. Cal. Sept. 8, 2016) (dismissing claims for
unjust enrichment and equitable relief under the CLRA, UCL,and FAL because plaintiff
pled five other claims which presented her an adequate remedy at law); Moss v. Infinity
Ins. Co., No. 15-cv-03456-JSC, 2016 WL 3753109, at *7 (N.D. Cal. July 14, 2016)
(dismissing UCL claim where plaintiff had an adequate remedy at law in her other claims,
including a breach of contract claim); Gardner v. Safeco Ins. Co. of Am., No. 14-cv-02024,
2014 WL 2568895, at *7–8 (N.D. Cal. June 6, 2014) (dismissing UCL claim where
plaintiff had an adequate remedy at law in two contract claims).
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These paragraphs state the following:
160. Plaintiff would purchase items from Defendants’ website in the future if she
could be confident that the purported % “off” discounts and purported price
comparisons listed on that website were truthful and accurate.
161. Pursuant to N.J.S.A. 56:8-19 of the NJCFA, Plaintiffs seeks [sic], inter alia,
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citing to New Jersey courts, which have recognized that the NJCFA allows a plaintiff to

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recover both monetary damages and injunctive relief in the same action. Mot. at 2:2–3:3

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(citing D’Agostino v. Maldonado, 78 A.3d 527, 537 (N.J. 2013) and Laufer v. U.S. Life

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Ins. Co. in City of N.Y., 896 A.2d 1101, 1109 (N.J. Super. Ct. App. Div. 2006)). Lastly,

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Plaintiff argues that the cases the Court relied on to “interpret[] the requirements of

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injunctive relief under the FAL, the UCL and the CLRA, do not apply to claims under the

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NJCFA,” because “[c]ontrary to these California statutes and the cases interpreting those

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statutes, a litigant bringing a NJCFA claim is allowed to seek and obtain both injunctive

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relief and monetary damages in the same action.” Mot. at 5:3–8.

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However, as Plaintiff acknowledges, and as the Court’s prior order reflects, this

United States District Court
Northern District of California

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principle has also been applied to bar claims for injunctive relief under the CLRA when a

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plaintiff has also sought to recover monetary damages. See, e.g., Philips, 2015 WL

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4111448, at *16 (“To the extent California Plaintiffs assert a claim for injunctive relief in

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addition to damages under the CLRA . . . that too is dismissed for the same reasons.”);

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Nguyen v. Nissan N. Am., Inc., No. 16-cv-05591-LHK, 2017 WL 1330602, at *5 (N.D.

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Cal. Apr. 11, 2017) (dismissing Plaintiff’s claim for injunctive relief under the CLRA

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when Plaintiff also sought damages under the CLRA and other California statutes). And,

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like the NJCFA, which has been recognized as allowing a plaintiff to recover both

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damages and equitable remedies, the CLRA has also been recognized as allowing a

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plaintiff to recover both monetary damages and equitable relief. See, e.g., Gonzales v. Car

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Max Auto Superstores, LLC, 845 F.3d 916, 918 (9th Cir. 2017) (“In addition to actual and

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punitive damages, the CLRA explicitly authorizes injunctive relief, restitution, and any

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other relief that the court deems proper.”) (brackets and internal quotation marks omitted);

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Zapata Fonseca v. Goya Foods Inc., No. 16-cv-02559-LHK, 2016 WL 4698942, at *8

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(same); California Grocers Ass’n v. Bank of Am., 22 Cal. App. 4th 205, 217 (1994) (same).

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Thus, the fact that New Jersey courts have recognized that a plaintiff can seek both

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actual damages, treble damages and injunctive relief for herself and the New Jersey
sub-classes.
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monetary damages and injunctive relief under the NJCFA does not sufficiently distinguish

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it from the CLRA – the principle has been applied to preclude injunctive relief under the

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CLRA which also allows a plaintiff to recovery both monetary damages and injunctive

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relief. Moreover, this principle is in keeping with the Ninth Circuit’s instruction that

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“equitable relief is not appropriate where an adequate remedy exists at law. Schroeder v.

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United States, 569 F.3d 956, 963 (9th Cir. 2009); see also Mort v. United States, 86 F.3d

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890, 892 (9th Cir. 1996) (“It is a basic doctrine if equity jurisprudence that courts of equity

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should not act . . . when the moving party has an adequate remedy at law.”). In sum,

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Plaintiff’s attempts to distinguish the NJCFA from other California consumer protection
statutes are simply unpersuasive.

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United States District Court
Northern District of California

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III. CONCLUSION

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For the foregoing reasons, the Court DENIES Plaintiff’s motion for an order
clarifying that she may seek injunctive relief under her NJCFA claim.

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IT IS SO ORDERED.

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Dated: 6/1/2017

_____________________________________
THELTON E. HENDERSON
United States District Judge

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