United States District Court, N.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL
SUMMARY JUDGMENT; VACATING HEARING Re: Dkt. Nos. 131,
M. CHESNEY UNITED STATES DISTRICT JUDGE
the Court is plaintiff LegalForce RAPC Worldwide P.C.'s
"Motion for Partial Summary Judgment on Its Third Claim
for Relief for California Unfair Competition," filed
November 22, 2019. Defendant TTC Business Solutions, LLC has
not filed an opposition or other response to the motion.
Having read and considered the papers filed in support of the
motion, the Court finds the matter appropriate for
determination thereon, VACATES the hearing scheduled for
December 27, 2019, and rules as follows.
operative complaint, the Second Amended Complaint
("SAC"), plaintiff alleges defendant, a company
with offices located in North Carolina (see SAC
¶ 11), has engaged in the "unauthorized practice of
law" (see SAC ¶ 29), in violation of
§ 6125 of the California Business & Professions
Code, which provides that "[n]o person shall practice
law in California unless the person is an active member of
the State Bar," see Cal. Bus. & Prof. Code
§ 6125, and in violation of § 6126, pursuant to
which a violation of § 6125 is a
"misdemeanor," see Cal. Bus. & Prof.
Code § 6126(a). Plaintiff further alleges that, by
violating § 6125 and § 6126, defendant has, in
turn, "violated the unlawful prong" of § 17200
of the California Business & Professions Code.
(See SAC ¶ 75.)
instant motion, plaintiff seeks summary judgment on its claim
that defendant engaged in unlawful conduct in violation of
§ 17200. In particular, plaintiff argues,
defendant's "preparing substantive responses to
office actions" constitutes the unauthorized practice of
law (see Pl.'s Mem. of P. & A. at 6:12-14),
and that, consequently, plaintiff is entitled to an
injunction that would permanently enjoin defendant from
engaging in said activity (see id. at 7:12-13).
to Rule 56 of the Federal Rules of Civil Procedure, a
"court shall grant summary judgment if the movant shows
that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of
law." See Fed.R.Civ.P. 56(a); see also
Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir.
2003) (holding movant must make such showing "regardless
of whether" non-movant files opposition). Where, as
here, the moving party "bears the burden of proof at
trial, [it] must come forward with evidence which would
entitle [it] to a directed verdict if the evidence went
uncontroverted at trial." See Houghton v.
South, 965 F.2d 1532, 1536 (9th Cir. 1992) (internal
citation and quotation omitted); see also Fontenot v.
Upjohn, 780 F.2d 1190, 1194 (5th Cir. 1986) (holding
where plaintiff moves for summary judgment on issue upon
which it bears burden of proof, it "must establish
beyond peradventure all of the essential elements of
the claim") (emphasis in original).
entitled to injunctive relief under § 17200, a plaintiff
must show the defendant has engaged in an "unlawful,
unfair, or fraudulent business act or practice,"
see Cal. Bus. & Prof. Code § 17200, and
that the plaintiff "has suffered injury in fact and has
lost money or property as a result of the unfair
competition," see Cal. Bus. & Prof. Code
assuming defendant has prepared substantive responses to
office actions and further assuming said activity constitutes
the unauthorized practice of law, plaintiff's claim
nonetheless fails as plaintiff has offered no evidence to
support a finding that any of defendant's officers or
employees engaged in such activity in California, or that any
of them prepared such responses for California residents.
See Birbrower, Montalbano, Condon & Frank v. Superior
Court, 17 Cal.4th 119, 128 (1998) (holding, for purposes
of § 6126, "the practice of law 'in
California' entails sufficient contact with [a]
California client to render the nature of the legal service a
clear legal representation"; noting "primary
inquiry is whether the unlicensed lawyer engaged in
sufficient activities in the state, or created a continuing
relationship with the California client that included legal
duties and obligations"); see also Norwest Mortgage,
Inc. v. Superior Court, 72 Cal.App.4th 214, 222 (1999)
(holding § 17200 "was not intended to regulate
conduct unconnected to California").
motion, plaintiff asserts that, in addition to alleged
violations of § 6125 and § 6126, its § 17200
claim is based on defendant's alleged violations of 37
C.F.R. § 11.14, which provides that "[i]ndividuals
who are not attorneys are not recognized to practice before
the [USPTO] in trademark and other non-patent matters."
See 37 C.F.R. § 11.14(b). A claim based on
§ 11.14, however, is not pleaded in the SAC. Moreover,
to the extent plaintiff may be arguing such claim is
implicitly included therein, plaintiff offers no evidence to
support a finding that defendant's preparation of
substantive responses to office actions has any connection to
California, and, as noted, § 17200 does not regulate
conduct "unconnected to California." See
Norwest, 72 Cal.App.4th at 222.
addition, even assuming defendant has engaged in conduct
subject to regulation under California law, specifically, the
unauthorized practice of law in a manner connected to
California, plaintiff has failed to offer evidence to
demonstrate it has lost money or property as a result
thereof, and, consequently, has failed to show it is entitled
to relief under § 17200.
even assuming defendant has engaged in an unlawful practice
connected to California that has caused plaintiff to lose
money or property, plaintiff has failed to explain why
issuance of a permanent injunction is warranted, let alone
offer evidence in support thereof. See eBay, Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (holding
plaintiff seeking permanent injunction must show, inter
alia, that it "suffered an irreparable
injury," that other remedies are "inadequate,"
and that, "considering the balance of hardships between
the plaintiff and defendant, a remedy in equity is
plaintiff's motion is hereby DENIED.
IS SO ORDERED.