                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 01 2012

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

ICE CREAM DISTRIBUTORS OF                        No. 10-17257
EVANSVILLE, LLC,
                                                 D.C. No. 4:09-cv-05815-CW
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

DREYER’S GRAND ICE CREAM, INC.;
DREYER’S GRAND ICE CREAM
HOLDINGS, INC.; EDY’S GRAND ICE
CREAM, INC.; RANDY STATHERS,

              Defendants - Appellees.



                   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.




       *
        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.
      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.




      1
       Though not necessary to the outcome we reach here, we grant Dreyer’s
Motion to Take Judicial Notice of prior litigation involving the parties.

                                          2
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.




                                             3
Korea Supply Co., 29 Cal. 4th at 1148–49.2 The indirect connection between ICD’s

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.




      2
         ICD does allege that, throughout its relationship with Dreyer’s, “ICD
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.
      3
         ICD’s reliance upon a recent California Supreme Court case for the
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
