Case 2:20-cv-07872-GW-PVC Document 704 Filed 08/22/24 Page 1 of 5 Page ID
`#:84394
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`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`James R. Asperger (Bar No. 83188)
`jimasperger@quinnemanuel.com
`Rachael McCracken (Bar No. 252660)
`rachaelmccracken@quinnemanuel.com
`865 South Figueroa Street, 10th Floor
`Los Angeles, CA 90017-2543
`Telephone: (213) 443-3000
`Facsimile: (213) 443-3100
`
`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`Kevin P.B. Johnson (Bar No. 177129)
`kevinjohnson@quinnemanuel.com
`Todd M. Briggs (Bar No. 209282)
`toddbriggs@quinnemanuel.com
`Brice C. Lynch (Bar No. 288567)
`bricelynch@quinnemanuel.com
`555 Twin Dolphin Drive, 5th Floor
`Redwood Shores, California 94065
`Telephone: (650) 801-5000
`Facsimile: (650) 801-5100
`
`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`Eric Huang (pro hac vice)
`erichuang@quinnemanuel.com
`51 Madison Avenue, 22nd Floor
`New York, New York 10010
`Telephone: (212) 849-7000
`Facsimile: (212) 849-7100
`
`Attorneys for Plaintiffs
`NANTWORKS, LLC and NANT HOLDINGS IP, LLC
`
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`
` CASE NO. 2:20-cv-7872-GW-PVC
`
`PLAINTIFFS’ SUPPLEMENTAL
`BRIEF REGARDING NOMINAL
`DAMAGES FOR BREACH OF
`CONTRACT PURSUANT TO
`CALIFORNIA LAW
`
`
`NANTWORKS, LLC, a Delaware
`limited liability company, and NANT
`HOLDINGS IP, LLC, a Delaware
`limited liability company,
`
`Plaintiffs,
`
`vs.
`
`BANK OF AMERICA
`CORPORATION, a Delaware
`corporation, and BANK OF
`AMERICA, N.A., a national banking
`association,
`
`
`
`
`Defendants.
`
`
`
`
`
`
`Case No. 2:20-cv-7872-GW-PVC
`PLAINTIFFS’ SUPPLEMENTAL BRIEF REGARDING NOMINAL DAMAGES FOR BREACH OF CONTRACT
`PURSUANT TO CALIFORNIA LAW
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`Case 2:20-cv-07872-GW-PVC Document 704 Filed 08/22/24 Page 2 of 5 Page ID
`#:84395
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`Pursuant to the Court’s August 14, 2024 Supplemental Tentative Ruling on
`Defendants’ Corrected Motion for Summary Judgment as to Plaintiffs’ Breach of
`Contract Claim (“Tentative” at 62), Plaintiffs respectfully submit the following three
`cases in support of Plaintiffs’ position that nominal damages are available for their
`claim that Defendants’ breached the 2011 CRA, which is governed by California law:
`Sweet v. Johnson, 169 Cal. App. 2d 630 (1959), Elation Sys., Inc. v. Fenn Bridge LLC,
`71 Cal. App. 5th 958 (2021), and Palantir Techs. Inc. v. Abramowitz, No. 19-CV-
`06879-BLF, 2022 WL 2952578 (N.D. Cal. July 26, 2022) (which are attached as
`Exhibits 1-3 to the Declaration of Rachael L. McCracken filed in support of this brief
`for the Court’s convenience). Plaintiffs’ Opposition (Dkt. 522, herein the “Opp.”)
`cites to both Sweet v. Johnson, 169 Cal. App. 2d 630 (1959) and Elation Sys., Inc. v.
`Fenn Bridge LLC, 71 Cal. App. 5th 958 (2021) in support of the proposition that
`nominal damages are available for a breach of contract under California law. See Dkt.
`522 (Opp.) at 19. Defendants do not address either case in their reply.
`In Sweet v. Johnson, 169 Cal. App. 2d 630 (1959), the California Court of
`Appeal unequivocally found that “[a] plaintiff is entitled to recover nominal damages
`for the breach of a contract, despite inability to show that actual damage was inflicted
`upon him, since the defendant’s failure to perform a contractual duty is, in itself, a
`legal wrong that is fully distinct from the actual damages.” Id. at 632 (internal citation
`omitted) (noting Cal. Civ. Code § 3360 (“Where a breach of duty has caused no
`appreciable detriment to the party affected, he may yet recover nominal damages.”));
`see also Judicial Council of California Civil Jury Instructions (2024), CACI No. 360
`(Nominal Damages). Sweet v. Johnson has been cited by California courts
`consistently since 1959 in support of the proposition that nominal damages are
`available for a breach of contract pursuant to California law.
`In Elation Sys., Inc. v. Fenn Bridge LLC, 71 Cal. App. 5th 958 (2021), the Court
`of Appeal followed Sweet v. Johnson and Cal. Civ. Code § 3360, and distinguished
`Ninth Circuit cases that it found were not controlling or persuasive on whether
`
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`Case 2:20-cv-07872-GW-PVC Document 704 Filed 08/22/24 Page 3 of 5 Page ID
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`nominal damages were available for a breach of contract claim. Elation Sys., 71 Cal.
`App. 5th at 966-67. The Court of Appeal found that an employer could recover
`nominal damages for breach of a non-disclosure agreement by a former employee
`where the employer was otherwise unable to establish lost profit damages. Id. at 965-
`66. At trial, a jury found the employee breached the non-disclosure agreement and
`awarded the plaintiff $10,000. Id. at 962. The trial court granted defendant’s motion
`for judgment notwithstanding the verdict finding that “there was no evidence
`supporting the $10,000 damages award.” Id. The Court of Appeal reversed this
`decision and found that “the trial court should have awarded nominal damages in light
`of the jury’s unchallenged finding of breach,” and concluded that “the failure to award
`nominal damages here is sufficient grounds for reversal of the judgment,” citing both
`Sweet v. Johnson and Cal. Civ. Code § 3360. Elation Sys., 71 Cal. App. 5th at 965-
`67. In so finding, the Court in Elation explicitly rejected the reasoning of two Ninth
`Circuit cases that had been cited by the defendants for the proposition that breach of
`contract claims “are not actionable in California without a showing of appreciable and
`actual damage.” Id. at 966-67 (distinguishing Ruiz v. Gap, Inc., 380 F. App’x 689
`(9th Cir. 2010) and Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010 (9th Cir.
`2000)).
`Courts in the Ninth Circuit have recognized and relied on Elation for the
`proposition that nominal damages are available for a breach of contract under
`California law.1 For example, in Palantir Techs. Inc. v. Abramowitz, No. 19-CV-
`06879-BLF, 2022 WL 2952578 (N.D. Cal. July 26, 2022), the court denied
`defendant’s motion for summary judgment on a breach of contract claim arising from
`
`
`1 When interpreting state law, the “duty as a federal court is to ascertain and apply
`the existing California law . . . [c]ircuit precedent interpreting state law, therefore, is
`only binding in the absence of any subsequent indication from the California courts
`that our interpretation was incorrect.” AGK Sierra De Montserrat, L.P. v. Comerica
`Bank, 109 F.4th 1132, 1136 (9th Cir. 2024) (internal citations and quotations omitted).
`
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`Case 2:20-cv-07872-GW-PVC Document 704 Filed 08/22/24 Page 4 of 5 Page ID
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`a non-disclosure agreement. Id. at *3. As here, the defendant moved for summary
`judgment on the grounds that plaintiff had no evidence of damages from its alleged
`breach of the non-disclosure agreement. Id. at *1. The court rejected this argument
`and denied summary judgment because “there are genuine disputes of material fact
`regarding whether [plaintiff] suffered damages from [defendant]’s alleged breach of
`contract” including that “recent California Court of Appeal authority confirms that
`nominal damages are available as a matter of law where a contract has been
`breached.” Id. at *3.
`Like in Palantir Techs. Inc. v. Abramowitz, Plaintiffs respectfully submit that
`Defendants’ motion for summary judgment should be denied because nominal
`damages are available for a breach of contract claim as a matter of California law.
`
`DATED: August 22, 2024
`
`Respectfully submitted,
`
`QUINN EMANUEL URQUHART &
`SULLIVAN, LLP
`
`By /s/ Rachael L. McCracken
`James R. Asperger
`Kevin P.B. Johnson
`Todd M. Briggs
`Eric Huang
`Rachael L. McCracken
`Brice C. Lynch
`
`Attorneys for Plaintiff, NANTWORKS,
`LLC and NANT HOLDINGS IP, LLC
`
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`Case 2:20-cv-07872-GW-PVC Document 704 Filed 08/22/24 Page 5 of 5 Page ID
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`CERTIFICATE OF COMPLIANCE
`The undersigned, counsel of record for NantWorks, certifies that this brief is
`under 7000 words, which complies with the word limit of L.R. 11-6.1.
`
`DATED: August 22, 2024
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`By
`
`/s/ Rachael L. McCracken
`
`
`Rachael L. McCracken
`
`
`Attorneys for Plaintiff, NANTWORKS,
`LLC and NANT HOLDINGS IP, LLC
`
`
`
`
`
`
`
`-1-
`Case No. 2:20-cv-7872-GW-PVC
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`PURSUANT TO CALIFORNIA LAW
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