Bui Simon v. Angela Scott, et al

Case Number

23CV03184

Case Type

Hearing Date / Time

Wed, 03/13/2024 - 10:00

Nature of Proceedings

Motion of Defendants for Judgment on the Pleadings

Tentative Ruling

For Plaintiff Bui Simon: Patricia L. Glaser, Cynthia E. Organ, Alexander R. Miller, Glaser Weil Fink Howard Jordan & Shapiro LLP                                  

For Defendants Angela Scott, Scott Milden, and Milden, LLC: Bert H. Deixler, Patrick J. Somers, David T. Freenock, Kendall Brill & Kelly LLP

Issue

Motion of Defendants for Judgment on the Pleadings

RULING

For the reasons set forth herein, the motion of Defendants Angela Scott, Scott Milden, and Milden, LLC, for judgment on the pleadings is granted, with leave to amend, as to the second through ninth causes of action of the first amended complaint and is denied as to the first cause of action. Plaintiff Bui Simon shall file and serve her second amended complaint on or before April 12, 2024. (See Code Civ. Proc., § 438, subd. (h)(2).)

Background

(Note: This case is related to Simon v. Scott, case number 23CV02384, in which a motion for judgment on the pleadings is also set for this hearing.)

(1)       Allegations of First Amended Complaint

As alleged in Plaintiff’s first amended complaint (FAC):

Plaintiff Bui Simon (Simon) is a founder and 50 percent owner/ member of The Office of Angela Scott LLC (TOOAS or Company). (FAC, ¶¶ 17-19.) Defendant Angela Scott (Scott) is the other 50 percent owner/ member of TOOAS. (FAC, ¶ 19.) TOOAS is a Texas limited liability company, formed on October 4, 2010, that is now headquartered and operated in Santa Barbara. (FAC, ¶ 17.) Scott was appointed as the original manager of TOOAS. (FAC, exhibit A, § 4.2.) On August 3, 2015, Simon and Scott entered into a Restated Operating Agreement (Operating Agreement) for TOOAS, which is the current operating agreement for the Company. (FAC, ¶ 20 & exhibit A.)

The Operating Agreement includes the following provisions (underscoring omitted):

“1.2     Term. The term of the Company commenced on October 4, 2010, the date on which the Certificate of Formation (‘Certificate’) was filed with the Texas Secretary of State, and shall continue until terminated under Section 9.1.”

“1.4     Business of the Company. Notwithstanding the purpose of the Company which is described in the Certificate, the Company shall not engage in any business other than the following without the approval of all of the Members:

            “(a)      The business of designing, licensing, manufacturing and selling footwear; and

            “(b)      Such other activities incidental to the foregoing business, including, but not limited to, the designing, licensing, manufacturing and selling of apparel, handbags and related fashion accessories.”

“3.5     Payments to Members. Except as specified in this Agreement or pursuant to a transaction permitted by Section 4.7, no Member, Manager, or person or entity controlled by, controlling or under common control with the Member or Manager, or person who is an officer, director, partner or trustee of the Member (each such person or entity is defined as an ‘Affiliate’), is entitled to remuneration for services rendered or goods provided to the Company. However, the Company shall reimburse the Members, Managers and their Affiliates for organizational expenses (including, without limitation, legal and accounting fees and costs) incurred to form the Company, prepare the Articles and this Agreement and, as approved by the Managers, for the actual cost of goods and materials used by the Company.”

“4.2     Appointment and Removal of Managers. The initial Manager or Managers of the Company shall be appointed with the approval of all of the Members and each such Manager shall serve until the earlier of (i) such Manager’s resignation, retirement, death or permanent disability; (ii) such Manager ceasing to be an individual Member or an individual then serving as an officer, manager, director, partner, trustee or other controlling person of a Member which is not an individual; or (iii) such Manager’s removal for cause by the Members. The Members initially appoint Angela Marie Scott as the sole Manager. A Manager may be removed with cause at any time upon the approval of the Members excluding, however, any Voting Interest held by the Manager to be removed for cause. For the purpose of this section, ‘cause’ shall mean the gross negligence or willful misconduct of such Manager in the performance of his or her obligations under this Agreement. If such Manager is also a Member, such removal for cause shall not affect the Manager’s rights as a Member except as provided in this section 4.2 or constitute a withdrawal of a Member. Upon a Manager’s removal for cause by the Members, a new Manager shall be appointed by the approval of the Members excluding, however, any Voting Interest held by the Manager removed for cause. Upon a Manager’s resignation, retirement, death or disability, a new Manager shall be appointed by a majority of the remaining Managers or the sole remaining Manager, as the case may be, or if there is no remaining Manager, by the approval of all of the Members.”

“4.3.    Management and Powers. Except as provided by Section 4.4 below, the Managers shall have full, complete and exclusive authority, power, and discretion to manage and control the business, property, and affairs of the Company, to make all decisions regarding those matters, and to perform any and all other acts or activities customary or incident to the management of the Company’s business,

property, and affairs, subject in all cases to the other provisions of this Agreement and the requirements of applicable law.”

“4.4     Limitations on Power of Managers. No Manager shall have authority to (i) do any act in contravention of this Agreement, (ii) do any act which would make it impossible to carry on the ordinary business of the Company, or (iii) confess a judgment against the Company. Additionally, no Manager shall have authority to cause the Company to engage in the following transactions without first obtaining the approval of all of the Members:

            “A.       The sale, exchange or other disposition of all, or substantially all of the properties or assets of the Company.

            “B.       The hypothecation or encumbrance of any of the properties

or assets of the Company.

            “C.       The merger of the Company with or the acquisition by the Company of the assets of another limited liability company, general partnership, limited partnership, corporation or other entity.

            “D.       The hiring of employees, accountants and attorneys for the

Company.

            “E.       An alteration of the authorized business of the Company as

set forth in Section 1.4.”

“4.5     Devotion of Time; Compensation. So long as she is a Manager, Angela shall devote full business time to the business and affairs of the Company. Each other Manager shall devote whatever time or effort as such Manager deems appropriate for the furtherance of the Company’s business. Each Manager shall be entitled to compensation for such Manager’s services to the Company as shall be determined by the approval of all of the Members, and to reimbursement for all expenses reasonably incurred by such Manager in the performance of such Manager’s duties under this Agreement.”

“11.6   Amendments. All amendments to this Agreement shall be in writing and signed by all of the Members in order to be valid.”

“11.8   Governing Law. Except as otherwise specified in this Agreement, the parties hereto agree that for as long as Bui is a Member, the laws of the State of California concerning contracts entered into and to be performed wholly within California between residents of California shall govern the validity of this Agreement, the interpretation and enforcement of its terms, and the rights and duties of the parties hereto (whether a cause of action is asserted in contract, in tort, or otherwise).”

In the fall of 2022, Scott approached Simon requesting a $500,000 bonus to make a down payment on a house. (FAC, ¶ 24.) Simon agreed to review the Company’s finances to see if the Company was in a financial position to pay such a bonus. (Ibid.) Instead, Simon discovered that Scott had embezzled more than $2.5 million in undisclosed compensation and personal expenditures in violation of the Operating Agreement. (Ibid.)

For example, as a result of Simon’s investigation, Simon discovered that the Company has been making substantial payments for multiple Porsches being driven by Scott during the years 2015 through 2023 for primarily personal purposes. (FAC, ¶¶ 25-27.) The payment of these expenses with Company funds were never approved by Simon. (Ibid.) Scott used Company expense to pay for unauthorized personal expenses, including retail shopping and personal trips. (FAC, ¶¶ 28, 29.)

Defendant Scott Milden (Milden) is Defendant Scott’s husband. (FAC, ¶ 1.) Defendant Milden, LLC (Milden LLC) is a California limited liability company with Milden as its sole member and manager. (FAC, ¶ 8.) Milden was given multiple Company credit cards by Scott that were used for improper personal expenses. (FAC, ¶ 31.) Simon has identified more than $1 million in payments to Milden. (FAC, ¶ 38.) Milden was paid as an employee of the Company without the approval of Simon. (FAC, ¶¶ 38, 39.) Improper payments were also made to Milden LLC. (FAC, ¶¶ 40-41.)

On July 19, 2023, Simon took the step of removing Scott as manager of the Company “for cause” under the Operating Agreement. (FAC, ¶¶ 46-49.) Simon then appointed Gene Montesano as Manager. (FAC, ¶ 49.) Montesano was succeeded by Todd Steele. (FAC, ¶ 59.) Scott has disputed whether she has been removed as manager. (FAC, ¶¶ 51-53, 60.)

(2)       Procedural History

On June 2, 2023, Simon filed the original complaint in the related action, Simon etc. v. Scott, et al., case number 23CV02376 (the Derivative Action). The Derivative Action makes allegations and asserts causes of action against Scott, Milden, and Milden LLC derivatively on behalf of TOOAS based upon the same underlying transactions as in this action.

On July 24, 2023, Simon filed the original complaint in this action (sometimes, Direct Action). On September 12, 2023, without any answer or other response having been filed in this action, Simon filed the FAC. The FAC asserts nine causes of action: (1) declaratory relief; (2) breach of contract; (3) inducing breach of contract; (4) intentional interference with contractual relations; (5) breach of fiduciary duty; (6) aiding and abetting breach of fiduciary duty; (7) fraud; (8) aiding and abetting fraud; and (9) injunctive relief. These claims are all asserted by Simon directly.

On October 12, 2023, Defendants Scott, Milden, and Milden LLC (collectively, Defendants) filed their answer to the FAC, generally denying the allegations thereof and asserting 29 affirmative defenses.

On December 29, 2023, Defendants filed this motion for judgment on the pleadings. Defendants argue that all of Plaintiffs’ claims fail because they are derivative claims of TOOAS and cannot be asserted directly. Defendants also argue that the declaratory relief claim is duplicative of the same claim in the Derivative Action and that the ninth cause of action fails because there is not cause of action for injunctive relief.

The motion is opposed by Simon.

Analysis

“A party may move for judgment on the pleadings.” (Code Civ. Proc., § 438, subd. (b)(1).) “The motion provided for in this section may only be made on one of the following grounds: [¶] … [¶] (B) If the moving party is a Defendant, that either of the following conditions exist: [¶] (i) The Court has no jurisdiction of the subject of the cause of action alleged in the complaint. [¶] (ii) The complaint does not state facts sufficient to constitute a cause of action against that Defendant.” (Code Civ. Proc., § 438, subd. (c)(1)(B).)

“The grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the Court is required to take judicial notice.” (Code Civ. Proc., § 438, subd. (d).)

“The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. [Citations.] [¶] Judgment on the pleadings does not depend upon a resolution of questions of witness credibility or evidentiary conflicts. In fact, judgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution.” (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216, fn. omitted.)

The Court notes that Defendants’ notice of motion states that the parties met and conferred regarding the motion as required by Code of Civil Procedure section 439 but were unable to reach an agreement. (Notice, at p. 2.) This statement does not comply with section 439 in that the “moving party shall file and serve with the motion for judgment on the pleadings a declaration ….” (Code Civ. Proc., § 439, subd. (a)(3).) No declaration is attached to the motion. The opposition includes a declaration stating that some, but not all, of the arguments raised in the motion were discussed at this meet and confer. To avoid further delay, the Court will address the merits of the motion, but the Court reminds counsel of their obligation to follow all procedural requirements under the Code of Civil Procedure and California Rules of Court.

(1)       Request for Judicial Notice

Defendants request that the Court take judicial notice of Simon’s original and first amended complaints in the Derivative Action. Simon opposes the request on the grounds that a motion for judgment on the pleadings is generally limited to the allegations of the complaint making the Derivative Action complaints irrelevant, and that judicial notice does not extend to the truth of factual matters set forth in Court documents.

As to the first ground, the Court may rely upon judicially noticed matter in ruling on a motion for judgment on the pleadings. (Code Civ. Proc., § 438, subd. (d).) As to the second ground, Defendants make two arguments in their moving papers regarding the Derivative Action complaints. Defendants predominantly argue that the claims in this action are properly derivative claims that cannot be asserted directly. This argument does not depend upon whether Simon has actually asserted those claims in the Derivative Action. Simon may assert claims under alternative legal theories and, whether or not correct, the claims in the Derivative Action do not determine whether or not the claims asserted in this action are appropriate. On the other hand, Defendants also argue that the declaratory relief claim in this action is duplicative of the declaratory relief claim in the Derivative Action. The Derivative Action FAC, which is the only complaint in the Derivative Action asserting the declaratory relief cause of action, is relevant to that issue. The Court will therefore grant the request for judicial notice as to the Derivative Action FAC (exhibit B). Exhibit A does not contain that claim and, in any case, erroneously is the original complaint in this action rather than the original complaint in the Derivative Action. “Although a Court may judicially notice a variety of matters [citation], only relevant material may be noticed. ‘But judicial notice, since it is a substitute for proof [citation], is always confined to those matters which are relevant to the issue at hand.’ [Citation.]” (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.) The Court will deny the request for judicial notice as to exhibit A.

(2)       Direct Claims

            (A)       Claims for Monetary Relief

Defendants principally argue that Simon’s causes of action are derivative and owned by the Company, and thus cannot be brought directly by Simon individually.

“ ‘Because a corporation exists as a separate legal entity, the shareholders have no direct cause of action or right of recovery against those who have harmed it. The shareholders may, however, bring a derivative suit to enforce the corporation’s rights and redress its injuries when the [corporation] fails or refuses to do so.’ [Citation.] ‘An action is deemed derivative “ ‘if the gravamen of the complaint is injury to the corporation, or to the whole body of its stock and property without any severance or distribution among individual holders, or it seeks to recover assets for the corporation or to prevent the dissipation of its assets.’ ” [Citation.]’ [Citation.] ‘A personal claim, in contrast, asserts a right against the corporation which the shareholder possesses as an individual apart from the corporate entity: “If the injury is not incidental to an injury to the corporation, an individual cause of action exists.” [Citation.]’ [Citation.] ‘[T]he principles of derivative lawsuits applicable to corporations likewise apply to a limited liability compan[ies].’ [Citation.]” (Sprengel v. Zbylut (2019) 40 Cal.App.5th 1028, 1040.)

“Under California law, ‘a shareholder cannot bring a direct action for damages against management on the theory their alleged wrongdoing decreased the value of his or her stock (e.g., by reducing corporate assets and net worth). The corporation itself must bring such an action, or a derivative suit may be brought on the corporation’s behalf.’ [Citations.]” (Schuster v. Gardner (2005) 127 Cal.App.4th 305, 312.) “Shareholders may bring a derivative suit to, for example, enjoin or recover damages for breaches of fiduciary duty directors and officers owe the corporation. [Citation.] An individual cause of action exists only if damages to the shareholders were not incidental to damages to the corporation. [Citation.] Examples of direct shareholder actions include suits brought to compel the declaration of a dividend, or the payment of lawfully declared or mandatory dividends, or to enjoin a threatened ultra vires act or enforce shareholder voting rights.” (Id. at pp. 312–313.)

The nature of the right sued upon and the damage suffered determine whether the action is derivative or direct, or both. “[I]t is settled that one who has suffered injury both as an owner of a corporate entity and in an individual capacity is entitled to pursue remedies in both capacities.” (Denevi v. LGCC, LLC (2004) 121 Cal.App.4th 1211, 1221.) Thus, the Court must consider whether the harms alleged by Simon are different from the harms to the Company. Simon argues that Simon has suffered individualized harm. However, the allegations of the FAC do not align with Simon’s arguments.

In Simon’s second cause of action for breach of contract, the specific breaches of the Operating Agreement are “(1) paying herself and her husband Defendant Milden and his company Defendant Milden, LLC compensation from the Company without authorization; (2) improperly reimbursing Defendant Scott’s personal expenses without authorization; and (3) hiring employees and attorneys for the Company without authorization. Most recently, Defendant Scott hired Brownstein to represent the Company in the Derivative Action despite Plaintiff repeatedly expressing that she did not approve the hiring of Brownstein.” (FAC, ¶ 65.) All of these breaches demonstrate harm to the Company, i.e., damage that would be repaid to the Company, and do not allege harm specific to Simon as an individual.

In opposition, Simon argues for other “various harms Plaintiff has personally incurred,” identifying only “the expenses Plaintiff incurred when she was required to engage forensic accounting consultants to uncover Defendants’ wrongdoing … and in being induced by Defendant Scott to make further investments in the Company when, unbeknownst to Plaintiff, Defendants were actively embezzling from it.” (Opposition, at pp. 11-12.) Simon has not alleged how Simon’s costs of investigation are not incidental to damages to the Company. At the same time, while fraudulent inducement is a type of claim that may give rise a direct claim (see Denevi v. LGCC, LLC (2004) 121 Cal.App.4th 1211, 1222), Simon has not alleged damages from being induced to make further investments in the Company. The only investment alleged in the FAC occurred before the Operating Agreement was entered into. (See FAC, ¶¶ 19, 20.)

The breach of contract claim does not now plead damage to Simon upon which a direct claim may be stated. The motion for judgment on the pleadings will therefore be granted as to the second cause of action. For the same reason, the motion for judgment on the pleadings will be granted as to the third cause of action for inducing breach of contract and as to the fourth cause of action for interference with contractual relations.

Simon’s fifth cause of action is for breach of fiduciary duty. Simon alleges: “Defendant Scott breached these duties as described herein, including but not limited to by improperly taking funds from the Company, wrongfully seeking reimbursement of personal expenses from the Company, operating the Company in contravention of the Operating Agreement, concealing her wrongdoing from Plaintiff as the only other member of TOOAS LLC, and acting with the intent to violate applicable laws as set forth in this Complaint.” (FAC, ¶ 81.) As with the breach of contract cause of action, these allegations are harms to the Company rather than harms to Simon directly. For the same reasons, the motion for judgment on the pleadings will be granted as to the fifth cause of action and as to the sixth cause of action for aiding and abetting those breaches of fiduciary duty.

Simon’s seventh cause of action is for fraud. Simon alleges: “On information and belief, Defendant Scott and Defendant Milden made knowingly false representations and/or concealed and omitted and did not disclose to Plaintiff as the only other member of TOOAS that Defendant Scott, Defendant Milden, and Defendant Milden, LLC were improperly taking funds from the Company, wrongfully seeking reimbursement of personal expenses from the Company, and/or operating the Company in contravention of the Operating Agreement. This includes by providing Plaintiff with false and/or misleading monthly financial reports, and by failing to report to Plaintiff that Defendant Scott, Defendant Milden, and Defendant Milden, LLC were improperly taking compensation from the Company and seeking reimbursement for unauthorized personal expenses.” (FAC, ¶ 91.) Simon does not, however, allege how these misrepresentation or concealments caused individual harm, alleging only that “Plaintiff was injured by her reasonable and foreseeable reliance on Defendant Scott’s and Defendant Milden’s fraudulent representations and omissions.” (FAC, ¶ 98.)

Again, fraud is a type of claim that is more obviously suited to a direct claim, but the allegations of the FAC do not connect fraud directed at Simon with Simon’s individual harm. The motion for judgment on the pleadings will be granted as to the seventh cause of action. For the same reason, the motion for judgment on the pleadings will be granted as to the eighth cause of action for aiding and abetting that fraud.

As this discussion demonstrates, Simon has not now adequately alleged harm for which a direct action is permitted. The record does not show that amendment is not possible and Simon requests leave to amend. Leave to amend will be granted.

(3)       Non-Monetary Relief

            (A)       Declaratory Relief

With respect to the first cause of action for declaratory relief, Simon alleges individualized harm based upon Simon’s exercise of her own powers under the Operating Agreement that are disputed by Scott. (FAC, ¶ 59.) While this issue affects the management of the Company, the harm asserted by Scott exercising powers as manager after having been removed is direct harm to Simon and not uniquely a harm to the Company. The direct declaratory relief claim is therefore not precluded on that basis.

Defendants argue that the declaratory relief claim is “wholly derivative” of the other claims in the FAC. The declaratory relief claim arises from Simon’s removal of Scott as manager and Scott’s disputing the lawfulness of that removal. (FAC, ¶ 59.) Overlapping proof of the underlying misconduct so as to constitute “cause” for removal does not make the declaratory relief claim derivative of other claims. The issue of the lawfulness of Scott’s removal is fundamentally different from the allegations of improper payment of Company funds to Scott that forms the central basis of the other claims.

Defendants also argue that because Simon asserts the same cause of action in the Derivative Action, declaratory relief is neither necessary nor proper in this action. (See Code Civ. Proc., § 1061.) The Court may or may not ultimately determine to issue declaratory relief when the matter is decided on the merits. In this challenge to the pleadings, the only issue is whether, as a matter of law, the Court would not issue declaratory relief. The Court does not so determine. The fact that the same claim is brought in the Derivative Action is neither here nor there. As Defendants repeatedly remind, the Operating Agreement may also be enforced by the Company. (Corp. Code, § 17701.11, subd. (a).) There is no rule that because one Plaintiff asserts a breach of the Operating Agreement, another Plaintiff is thereby precluded from enforcing the Operating Agreement on the same basis. Moreover, because Defendants challenge Simon’s ability to bring the Derivative Action, there is an even stronger need for Simon to assert an otherwise properly alleged claim in this action as an alternative.

The motion for judgment on the pleadings will be denied as to the first cause of action.

            (B)       Injunctive Relief

Simon designates her ninth cause of action as “injunctive relief.” Defendants argue that injunctive relief is a remedy and not a cause of action. In opposition, Simon concedes that injunction is a remedy but that the pleading is appropriate because the remedy is contingent upon other causes of action. This same argument is raised in the Derivative Action; the Court analyzes the issue in the same way here but with a different resolution.

The parties agree that a claim for injunctive relief is not a standalone cause of action. At the same time, allegations relating to an injunction are both appropriate and, in some cases, necessary. (See Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 527 [preliminary injunction may be based on allegations of a verified complaint]; Dennis v. Overholtzer (1957) 149 Cal.App.2d 101, 104 [“if a preliminary injunction is sought upon a complaint rather than upon affidavits the complaint must state a cause of action for such relief”]; see also Classis of Central California v. Miraloma Community Church (2009) 177 Cal.App.4th 750, 754, 759 [affirming grant of permanent injunction based on summary judgment of “cause of action” for injunction incorporating other causes of action.) The cases cited by Defendants in reply affirm a trial Court’s sustaining of a demurrer and grant of summary adjudication as to “causes of action” for injunction relief. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 65; Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 985.) However, there was no practical effect to these determinations as both cases expressly stated that injunctive relief was not precluded by those rulings:

“Although the order sustaining the demurrer was proper because an injunction is not a cause of action, Plaintiffs may still obtain injunctive relief if they prevail on a cause of action.” (Allen v. City of Sacramento, supra, 234 Cal.App.4th at pp. 65–66.)

“Correctly, the respondents state that a request for injunctive relief is not a cause of action. [Citation.] Therefore, we cannot let this ‘cause of action’ stand. However, that said, on remand the trial Court shall permit the appellants to amend their nuisance cause of action to include their request for injunctive relief.” (Shamsian v. Atlantic Richfield Co., supra, 107 Cal.App.4th at pp. 984–985.)

In the present instance, Simon has alleged a sufficient cause of action for declaratory relief. The declaratory relief claim is itself sufficient to support allegations for injunctive relief. (See City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293–1294.) This leads the Court to conclude that the only problem with Plaintiff’s FAC as to the ninth “cause of action” is the use of the words “cause of action” in the title on page 21.

“If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

Because, unlike the motion for judgment on the pleadings in the Derivative Action, the Court is granting the motion for judgment on the pleadings in this action with leave to amend on other grounds, the Court will grant the motion for judgment on the pleadings to the ninth cause of action with leave to amend. By this leave to amend, Simon may restate all of the allegations of the ninth “cause of action” omitting the title “Ninth Cause of Action” and replacing it with a suitable title that indicates that those allegations are additional allegations in support the remedy of injunctive relief as to one or more causes of action for which injunctive relief is sought and not a standalone cause of action.