`#:84428
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`George C. Lombardi (pro hac vice)
`glombardi@winston.com
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601-9703
`Telephone: (312) 558-5600
`Facsimile:
`(312) 558-5700
`E. Danielle T. Williams (pro hac vice)
`dwilliams@winston.com
`WINSTON & STRAWN LLP
`300 South Tryon Street, 16th Floor
`Charlotte, NC 28202
`Telephone: (704) 350-7700
`Facsimile:
`(704) 350-7800
`
`Dustin J. Edwards (pro hac vice)
`dedwards@winston.com
`WINSTON & STRAWN LLP
`800 Capitol St., Suite 2400
`Houston, TX 77002-2925
`Telephone: (713) 651-2600
`Facsimile:
`(713) 651-2700
`Diana Hughes Leiden (SBN: 267606)
`dhleiden@winston.com
`WINSTON & STRAWN LLP
`333 S. Grand Avenue, 38th Floor
`Los Angeles, CA 90071-1543
`Telephone: (213) 615-1700
`Facsimile:
`(213) 615-1750
`Attorneys for Defendants
`BANK OF AMERICA CORPORATION
`and BANK OF AMERICA, N.A.
`
`UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`
`
`
`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-07872-GW-PVC
`DEFENDANTS’ SUPPLEMENT IN
`SUPPORT OF DEFENDANTS’
`MOTION FOR SUMMARY
`JUDGMENT AS TO PLAINTIFFS’
`BREACH OF CONTRACT CLAIM
`
`Judge: Honorable George H. Wu
`
`REDACTED VERSION OF DOCUMENT PROPOSED
`TO BE FILED UNDER SEAL IN ITS ENTIRETY
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`Case 2:20-cv-07872-GW-PVC Document 705 Filed 08/22/24 Page 2 of 2 Page ID
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`Pursuant to the Court’s Supplemented Omnibus Tentative Rulings, Defendants’
`respectfully submit the following supplement listing three cases that establish Plaintiffs
`should not be permitted a do-over and sixth shot at damages to proceed on a new
`nominal damages theory raised for the first time at oral argument. Dkt. 666 at 62.
`The Court’s Omnibus Tentative Ruling accurately notes that “[i]t does not appear
`that either party cites any California authority answering [the nominal damages]
`question in their briefing.” Id. The simple reason for this is that until oral argument,
`Plaintiffs never pled nominal damages, never asserted entitlement to nominal damages,
`and never sought nominal damages. Indeed, Plaintiffs never mention nominal damages
`in Plaintiffs’: (1) Original Complaint (Dkt. 1); (2) Amended Complaint (Dkt. 40), (3)
`Interrogatory Responses (Dkt. 427-5 at 129-30, 158-60), (4) Objections and Responses
`to Defendants’ 30(b)(6) Deposition Notice (Dkt. 533-2 at 95-96), or (5) Opposition to
`Defendants’ Motion, wherein Plaintiffs doubled-down and claim “Plaintiffs can and
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`will prove restitution damages under California law.” Dkt. 522 at § E.2. (emphasis
`added). The Court should grant summary judgment on Plaintiffs’ breach of contract
`claim.
`1. Copenbarger v. Morris Cerullo World Evangelism, Inc., 29 Cal. App. 5th 1,
`15-16 (2018).
`First, Plaintiffs are not entitled to proceed on a nominal damages theory because
`they failed to plead or argue for nominal damages in their briefing as noted above. See
`Copenbarger v. Morris Cerullo World Evangelism, Inc., 29 Cal. App. 5th 1, 15-16
`(2018) (noting that “a plaintiff might recover nominal damages for breach of contract,”
`but directing entry of judgment in favor of the defendant where plaintiff did not plead
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`or argue it was entitled to nominal damages. (emphasis added).
`2. Race Winning Brands, Inc. v. Gearhart, No. SACV 22-1446-FWS-DFM,
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`2023 WL 4681539, at *8-9, n. 10 (C.D. Cal. Apr. 21, 2023).
`Second, in addressing an alleged breach of confidentiality agreement and
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`-1-
`DEFENDANTS’ SUPPLEMENT IN SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO
`PLAINTIFF’S BREACH OF CONTRACT CLAIM, CASE NO. 2:20-CV-07872-GW-PVC
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