District Court (Cal.) Denies UCL Injunctive Relief at the Pleadings Stage Due to Adequate Remedy at Law and Plaintiff’s Lack of Standing

In NAOMI WEIZMAN, Plaintiff, v. TALKSPACE, INC., Defendant., No. 23-CV-00912-PCP, 2023 WL 8461173, at *1 (N.D. Cal. Dec. 6, 2023), Judge Pitts denied a class representative the ability to bring a claim for injunctive relief under the UCL.  The facts were as follows:

Talkspace is an online mental health services platform. Weizman is a consumer who allegedly purchased therapy sessions from Talkspace in October 2022 but was not matched with a suitable therapist thereafter. After discovering that Talkspace had entered her into an automatically renewing subscription plan, meaning that she would be charged for Talkspace’s services each month even though she did not affirmatively consent to such renewal, Weizman allegedly cancelled her Talkspace subscription on October 13, 2022. Weizman alleges that she was nonetheless charged $396 by Talkspace on November 10, 2022. Weizman contends that she would not have purchased any therapy sessions at all from Talkspace had she known that Talkspace was going to enter her into an automatically renewing subscription plan. Weizman filed this class action lawsuit against Talkspace on March 1, 2023, alleging that Talkspace unlawfully enrolled patients in automatically renewing subscription plans. Weizman asserts a claim under California’s Unfair Competition Law (UCL), alleging that Talkspace’s practices are “unlawful” within the meaning of the UCL because they violate California’s Automatic Renewal Law (ARL). The ARL makes it unlawful to (1) “[f]ail to present the automatic renewal offer terms or continuous service offer terms in a clear and conspicuous manner before the subscription or purchasing agreement is fulfilled” and to (2) “[c]harge the consumer’s credit or debit card … for an automatic renewal or continuous service without first obtaining the consumer’s affirmative consent.” Cal. Bus. & Prof. Code § 17602(1)–(2). In her complaint, Weizman requests class certification, declaratory relief, injunctive relief prohibiting Talkspace from continuing to engage in the alleged unfair and unlawful business practice, a monetary award (including disgorgement and restitution), and attorney’s fees. Talkspace now moves to dismiss Weizman’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Specifically, Talkspace argues that Weizman does not have standing to bring her UCL claim because she allegedly reactivated her account on November 4, 2022. Talkspace also moves to strike Weizman’s class claims and other purportedly inflammatory allegations in the complaint pursuant to Federal Rule of Civil Procedure 12(f). In support of its motion to strike class allegations, Talkspace introduces its Terms of Use containing a purported class waiver, and argues that Weizman consented to the Terms of Use when she created a Talkspace account.

Judge Pitts found that Plaintiff failed to allege an inadequate remedy and lacked standing

Talkspace also argues that Weizman’s UCL claim should be dismissed because she does not “plausibly allege an inadequate remedy at law.” Dkt. No. 27, at 19. Remedies under the UCL are equitable in nature and legal damages cannot be recovered. Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 1144 (Cal. 2003). UCL remedies are thus generally limited to restitution and prospective declaratory or injunctive relief. In re Vioxx Class Cases, 180 Cal. App. 4th 116, 130 (Cal. 2009). The Ninth Circuit has held that plaintiffs seeking equitable relief under the UCL in a federal court sitting under diversity jurisdiction must establish that they lack an adequate remedy at law. Sonner v. Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020).
*4 Weizman concedes that she does not explicitly allege an inadequate remedy at law in her complaint, but argues that “it is apparent from the face of the complaint that [she] lacks an adequate remedy at law” because she does not expressly bring a Consumer Legal Remedies Act (CLRA) claim—something plaintiffs often pursue alongside their UCL claim in order to seek damages. Dkt. No. 38, at 7. Weizman contends that by bringing only a UCL cause of action for equitable relief, she implicitly establishes that she lacks an adequate remedy at law. In so arguing, Weizman distinguishes her case from Sonner, which initially involved not only UCL claims but also CLRA claims that the plaintiff dropped shortly before trial in order to strengthen their claims for UCL relief. See Nacarino v. Chobani LLC, 2022 WL 344966, at *9 (N.D. Cal. Feb. 4, 2022) (“Sonner teaches that a plaintiff, on the eve of trial, cannot create an inadequacy of a legal remedy by eliminating its availability by taking volitional action.”). Nonetheless, courts in this District have generally required that plaintiffs at least allege the lack of a remedy at law when asserting a UCL claim. See, e.g., Guthrie v. Transamerica Life Ins. Co., 561 F.Supp.3d 869, 875 (N.D. Cal. 2021) (“I and many other district judges applying Sonner have understood it to require that a plaintiff must, at a minimum, plead that she lacks adequate remedies at law if she seeks equitable relief.”); In re JUUL Labs, Inc., Mktg., Sales Pracs., & Prod. Liab. Litig., 497 F.Supp.3d 552, 638 (N.D. Cal. 2020) (granting plaintiffs “leave to amend to expressly allege that their remedies at law are inadequate and to support their claim to equitable restitution under the UCL”). The Court agrees with this approach. After all, “it is the burden of the party who seeks the exercise of jurisdiction in his favor [to] clearly allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute,” and jurisdiction cannot be “inferred argumentatively from averments in the pleadings, but rather must affirmatively appear in the record.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). The Court therefore grants Talkspace’s motion to dismiss Weizman’s UCL claim for failure to allege an inadequate remedy at law, while also granting Weizman leave to include such an allegation in an amended complaint should she be able to do so.

III. Weizman Lacks Standing To Seek Injunctive Relief.

A plaintiff must have Article III standing for each element of relief sought. See City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (rejecting the argument that constitutional standing in a pending damages suit affords the plaintiff Article III standing to seek a distinct equitable remedy). A plaintiff who has been wronged is only entitled to injunctive relief if they can show that they face “real or immediate threat that [they] will again be wronged in a similar way.” Mayfield v. United States, 599 F.3d 964, 970 (9th Cir. 2010). “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief … if unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974).
*5 Here, Weizman seeks injunctive relief barring Talkspace from continuing to implement its allegedly unlawful subscription plan. Talkspace contends, however, that Weizman does not allege any intention to use Talkspace’s platform or services in the future, and that she thus lacks standing to seek such relief. Dkt. No. 27, at 20. Weizman responds that she can pursue injunctive relief because the allegations in her complaint do not definitively rule out the possibility that she will purchase a subscription to Talkspace in the future. Dkt. No. 38, at 10. Weizman misunderstands the applicable standard. That she “has not definitively ruled out [a] future subscription” to Talkspace is not dispositive. Id. Rather, “[w]here standing is premised entirely on the threat of repeated injury, a plaintiff must show ‘a sufficient likelihood that [she] will again be wronged in a similar way.’ ” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 969– 70 (9th Cir. 2018) (citing Lyons, 461 U.S. at 102). Because Weizman’s complaint fails to show a likelihood that she will use Talkspace’s services in the future, she has not pleaded facts establishing her entitlement to injunctive relief. To be certain, the fact that Weizman has knowledge of the alleged unlawful subscription plan does not necessarily bar her claim for injunctive relief. See, e.g., Davidson, 889 F.3d at 969– 70 (9th Cir. 2018). But Weizman’s existing complaint does not plead circumstances under which such relief might be available notwithstanding both her knowledge of Talkspace’s automatic subscription renewal and her failure to plead a likelihood of future injury. The Court thus grants, with leave to amend, Talkspace’s motion to dismiss Weizman’s request for injunctive relief.