Ice Cream Distributors of Evansville, LLC v. Dreyer’s Grand Ice Cream, Inc.

This disposition is not appropriate for publication and is not precedent except*
as provided by Ninth Circuit Rule 36-3.
The Honorable Betty Binns Fletcher, Senior Circuit Judge for the Ninth**
Circuit Court of Appeals, fully participated in the case and concurred in the judgment
prior to her death.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ICE CREAM DISTRIBUTORS OF
EVANSVILLE, LLC,
Plaintiff - Appellant,
v.
DREYER’S GRAND ICE CREAM, INC.;
DREYER’S GRAND ICE CREAM
HOLDINGS, INC.; EDY’S GRAND ICE
CREAM, INC.; RANDY STATHERS,
Defendants - Appellees.
No. 10-17257
D.C. No. 4:09-cv-05815-CW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, Chief District Judge, Presiding
Argued and Submitted October 15, 2012
San Francisco, California
Before: B. FLETCHER, HAWKINS, and MURGUIA, Circuit Judges.**
FILED
NOV 01 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Though not necessary to the outcome we reach here, we grant Dreyer’s1
Motion to Take Judicial Notice of prior litigation involving the parties.
2
Ice Cream Distributors of Evansville, LLC (“ICD”) appeals the grant of
Dreyer’s Grand Ice Cream, Inc.’s (“Dreyer’s”) Rule 12(b)(6) motion to dismiss ICD’s
Second Amended Complaint. Though the district court dismissed ICD’s claims under
the Racketeer Influenced Corrupt Organizations Act, the Cartwright Act, the Sherman
Act, and California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §
17200, ICD appeals only the dismissal of its UCL claim. We affirm.1
ICD and Dreyer’s had a business relationship through which ICD distributed
Dreyer’s products to grocery and convenience stores. When ICD refused to enter into
an exclusivity agreement with Dreyer’s, Dreyer’s terminated its grocery store accounts
with ICD and began distributing its own products. ICD claims that as a result it lost
much of its business, and that Dreyer’s spread false and disparaging information about
ICD to its customers.
Under California’s UCL, only injunctive and restitutionary relief are available.
Cal. Bus. & Prof. Code § 17203; see also Mass. Mut. Life Ins. Co. v. Superior Court,
97 Cal. App. 4th 1282, 1288 (2002). As a general matter, to state a claim a plaintiff
must plead facts that “plausibly give rise to an entitlement to relief.” Ashcroft v.

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3
Iqbal, 556 U.S. 662, 679 (2009). Though ICD requests an injunction and restitution,
it alleges no facts that would entitle it to either.
ICD does not plead entitlement to injunctive relief, as the alleged misconduct
ended in 2007 and ICD does not allege a threat of continuing misconduct. See Sun
Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1123 (9th Cir. 1999) (no
injunctive relief in the absence of a showing that past conduct will probably recur),
abrogated on other grounds by eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388
(2006).
ICD fails to plead an entitlement to restitution, as well. Restitution, in the
context of the UCL, aims “to restore the status quo by returning to the plaintiff funds
in which he or she has an ownership interest.” Korea Supply Co. v. Lockheed Martin
Corp., 29 Cal. 4th 1134, 1149 (2003); see also In re First Alliance Mortg. Co., 471
F.3d 977, 996–98 (9th Cir. 2006). At argument, ICD represented that it is entitled to
restitution because it lost money as a result of Dreyer’s actions, and Dreyer’s now has
that money. That Dreyer’s business improved as a result of ICD’s collapse does not
entitle ICD to restitution. ICD does not allege that Dreyer’s took money or property
directly from ICD, nor does it claim a vested interest in the money it seeks to recover.

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ICD does allege that, throughout its relationship with Dreyer’s, “ICD2
purchased ice cream products (both directly from [Dreyer’s] and through local third
parties) and purchased equipment to continue servicing the grocery store and
convenience store accounts.” However, ICD fails to allege any connection between
these purchases and Dreyer’s allegedly unlawful business practices, or to allege that
it did not receive the products for which it paid.
ICD’s reliance upon a recent California Supreme Court case for the3
proposition that it need not plead entitlement to restitution is misguided. In Kwikset
Corp. v. Superior Court, 246 P.3d 877, 894–95 (Cal. 2011), the California Supreme
Court held that ineligibility for restitution is not a basis for denying standing to seek
injunctive relief under the UCL. Id. at 337–38; see also Pom Wonderful LLC v. Coca-
Cola Co., 679 F.3d 1170, 1178–79 (9th Cir. 2012). Because ICD does not plead an
entitlement to injunctive relief, Kwikset is of little relevance here.
4
Korea Supply Co., 29 Cal. 4th at 1148–49. The indirect connection between ICD’s2
losses and Dreyer’s gains would entitle ICD, at best, to damages, which are simply not
available under the UCL. ICD’s nominal request for restitution in its prayer for relief
is insufficient to plead entitlement.3
Because we affirm the district court’s conclusion that ICD failed to plead
entitlement to restitution or injunctive relief, we need not reach ICD’s other
arguments.
AFFIRMED.

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