PIPER CARE MANAGEMENT ET AL VS PACIFIC ALLIANCE MEDICAL CENT

Tentative Rulings

Case Number: ****1033 Hearing Date: June 20, 2022 Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff’s unopposed motion for leave to file a fourth amended complaint is granted.

Plaintiffs Piper Care Management aka Piper Case Management and Consulting, Inc. (“Piper” or “Plaintiff”) and Geraldine Beutler (“Beutler”) (collectively, “Plaintiffs”) move for leave to file a Fourth Amended Complaint in this action. Specifically, the Fourth Amended Complaint will make changes to the pleading as set forth in the Addendum to the Notice of Motion. (Notice of Motion.)

Background

This action arises from contracts entered into between Plaintiffs and Defendant Pacific Alliance Medical Center, a California corporation (“PAMC”) to provide would care services for patients at Pacific Inc.’s hospital facility in Los Angeles. On October 24, 2017, Plaintiffs filed this action. On February 23, 2022, while the instant action was assigned to Department 35, the Court granted Plaintiff’s motion for leave to file a third amended complaint (“TAC”), which was thereafter filed on March 4, 2022. A Notice of Errata to the TAC filed on March 14, 2022, corrected caption and PAMC Defendant names. Following the March 18, 2022 peremptory challenge to Hon. Malcolm Mackey filed by Defendant Premier Wound Care of Los Angeles, Inc. (“Premier”), the instant action was reassigned to Department 71 on March 21, 2022. On May 16, 2022, Plaintiffs filed the instant motion. Trial is currently set for February 23, 2023. As of the date of this hearing, Defendants have not filed an opposition.

Motion for Leave to Amend

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” (C.C.P. 473(a)(1).)

“Trial courts are vested with the discretion to allow amendments to pleadings ‘in furtherance of justice.’ That trial courts are to liberally permit such amendments, at any stage of the proceeding, has been established policy in this state since 1901.” (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489.)

CRC Rule 3.1321(a) requires that a motion to amend must: “[i]nclude a copy of the proposed… amended pleading… [and] state what allegations in the previous pleading are proposed to be [deleted and/or added], if any, and where, by page, paragraph, and line number, the [deleted and/or additional] allegations are located…”

CRC Rule 3.1324(b) provides, as follows: “[a] separate declaration must accompany the motion and must specify: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier.”

Plaintiffs’ motion complies with CRC Rule 3.1324(a). The motion includes a copy of the proposed Fourth Amended Complaint, a redline comparison of the TAC and the new pleading, and sets forth the allegations to be added and/or deleted along with the corresponding page and line numbers. (Notice Motion Addendum pgs. i-v; Decl. of Mercado 15, 16, Exhs. A [4AC], B [Redline].)

Plaintiff’s motion also complies with CRC Rule 3.1324(b). Plaintiff specifies the effect of the amendment and explains why the amendment is necessary and proper. Plaintiff asserts the amendment is necessary as a result of a March 26, 2022 document production by Defendant Shuo Stephen Wang, M.D. (“Dr. Wang”) and issues raised during recent meet and confer as to the correct PAMC contracting entity as it relates to the operative complaint and trade secret discovery. (Motion, pgs. 3, 8.) Plaintiff argues the new pleading also incorporates documents produced from Plaintiff’s former counsel which were located during recent discovery. (Motion, pg. 3, 8.) Plaintiff asserts the proposed amendments arise out of the same set of facts as the claims alleged in the original pleading, involve the same injury and the terms of the contract relevant to all causes of action are the same. (Motion, pg. 9.) The Court finds that Defendants will not be substantially prejudiced by the amendment and Plaintiffs are entitled to an order granting leave to amend. The changes to the pleading remain based on the same underlying facts already alleged by Plaintiffs.

Based on the foregoing, Plaintiffs’ unopposed motion for leave to file a Fourth Amended Complaint is granted.

Dated: June , 2022

Hon. Monica Bachner

Judge of the Superior Court

Case Number: ****1033 Hearing Date: February 23, 2022 Dept: 55

PIPER CARE MANAGEMENT v. PACIFIC ALLIANCE MED. CENTER ****1033

Hearing Date: 2/23/22, Dept. 55

#7: MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT.

Notice: Okay

Opposition

MP: Plaintiffs

RP: Defendants

Summary

On 10/24/17, plaintiffs filed a Complaint.

On 12/13/17, plaintiffs filed a First Amended Complaint.

On 2/25/20, plaintiffs filed a motion for leave to file a Second Amended Complaint, alleging that plaintiffs entered into written contracts to provide wound care services for patients at Defendant’s hospital, and after a contract terminated on June 30, 2017, defendants acquired possession of all of plaintiffs' trade secrets and confidential information.

The causes of action of the Second Amended Complaint are:

1) BREACH OF CONTRACT (NON-COMPETE AND CONFIDENTIALITY CLAUSES)

2) FRAUD AND DECEIT

3) UNJUST ENRICHMENT

4) DEFAMATION

5) UNFAIR BUSINESS ACTS AND PRACTICES

6) NEGLIGENT MISREPRESENTATION

7) INTENTIONAL MISREPRESENTATION

8) MISUSE AND APPROPRIATION OF TRADE SECRETS AND CONFIDENTIAL INFORMATION

9) CONVERSION.

MP Positions

Moving parties request the Court to enter an order allowing leave to file a Third Amended Complaint, on grounds including the following:

Plaintiffs seek to update the operative complaint, to reflect facts ascertained through recent discovery.

Plaintiffs have not unduly delayed, and have acted in good faith in seeking to amend the operative complaint.

At this deposition, on 12/6/21, Defendant Wang d Dr. Shuo Stephen Wang was unable to provide any information regarding his creation of policies and procedures for his new business Premier Wound Care (motion, ex. B).

John Edwards was unable to provide first-hand knowledge of the bulk of Plaintiff’s property (Exhibit A).

RP Positions

Opposing parties advocate denying, or a continuance of the trial date, and of pre-trial deadlines, including discovery, demurrer, and summary judgment/adjudication, on bases including the following:

Less than three months before a trial, already continued several times, Plaintiffs’ Motion seeks further delay, by adding a new entity defendant, Premier Wound Care of Los Angeles, the medical corporation owned and operated by Defendant Dr. Wang.

Plaintiffs have known about Premier Wound Care’s involvement in this case for at least three and a half years.

Plaintiffs’ Motion fails entirely to comply with Rule of Court 3.1324, which sets forth requirements for parties seeking to amend their pleadings (e.g., why Premier Wound Care was not added sooner, or the effect of the proposed amendment).

The addition of Defendant’s corporation will require him to secure an attorney to represent the entity.

Additional discovery would be required.

Tentative Ruling

The motion is granted.

The proposed Third Amended Complaint may be served and filed, as a separate document, within 10 days.

The opposing requests for a trial continuance and deadline extensions, are granted, to avoid prejudice caused by adding a new party and new theories and facts.

The motion was diligently filed, after knowledge gained from a deposition on 12/6/21, regarding alleged circumstantial evidence of defendants’ misuse of plaintiffs' trade secrets and confidential information.

Even if the new party’s involvement was known, if new claims were pled before obtaining justifying support, via investigating and discovery, complainants could be exposed to liability for malicious prosecution. See Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596

“[T]he court's discretion to impose conditions on leave to amend the complaint extends only to those conditions which are just, i.e., intended to compensate the defendants for any inconvenience belated amendment may cause.” Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4^th 636, 642-43.

In considering whether there was unjustified delay as to a motion for leave to file an amended pleading, the court should consider whether the party, “was not diligent in offering the amendment after knowledge of the facts….” Solit v. Tokai Bank (1999) 68 Cal. App. 4th 1435, 1448 (citing Roemer v. Retail Credit Co. (1975) 44 Cal. App. 3d 926, 940).

A court can deny leave to amend after long, inexcusable delay, if there is cognizable prejudice, such as discovery needed, trial delay, critical evidence lost, or added preparation expense. Solit v. Tokai Bank (1999) 68 Cal. App. 4th 1435, 1448; Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 761; Green v. Rancho Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th 686, 692; Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487. But see Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005) 130 Cal. App. 4th 1078, 1097 (unreasonable delay in making a motion to amend a complaint alone is sufficient grounds to exercise court discretion to deny leave to amend, even absent any prejudice); Leader v. Health Industries of America, Inc. (2d Dist. 2001) 89 Cal. App. 4th 603, 613 (same); Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939-40 (same).

Case Number: ****1033    Hearing Date: April 27, 2021    Dept: 55

PIPER CARE MANAGEMENT v. PACIFIC ALLIANCE MED. CENTER ****1033

Hearing Date: 4/27/21, Dept. 55

#7:

1. MOTION FOR SUMMARY ADJUDICATION.

2. MOTION TO CONTINUE TRIAL, FINAL STATUS CONFERENCE, AND ALL “STATUTORY DEADLINES.”

Notice: Okay

Opposition

MP:

1. Defendants

2. Plaintiffs

RP:

1. Plaintiffs

2. Defendants (by qualified non-opposition to trial continuance).

Summary

On 10/24/17, plaintiffs filed a Complaint.

On 12/13/17, plaintiffs filed a First Amended Complaint.

On 2/25/20, plaintiffs filed a motion for leave to file a Second Amended Complaint, alleging that plaintiffs entered into written contracts to provide wound care services for patients at Defendant’s hospital, and after a contract terminated on June 30, 2017, defendants acquired possession of all of plaintiffs' trade secrets and confidential information.

The causes of action of the Second Amended Complaint are:

1) BREACH OF CONTRACT (NON-COMPETE AND CONFIDENTIALITY CLAUSES)

2) FRAUD AND DECEIT

3) UNJUST ENRICHMENT

4) DEFAMATION

5) UNFAIR BUSINESS ACTS AND PRACTICES

6) NEGLIGENT MISREPRESENTATION

7) INTENTIONAL MISREPRESENTATION

8) MISUSE AND APPROPRIATION OF TRADE SECRETS AND CONFIDENTIAL INFORMATION

9) CONVERSION.

MP Positions

Moving parties request the Court to grant summary adjudication, on grounds including the following:

· Duty Issues:

o PAMC owed no duty not to compete under the alleged agreements.

o PAMC had no duty not to compete under the Hyperbaric Department Agreements, because the agreements do not contain a non-compete provision.

o PAMC had no duty not to compete under the Wound Care Agreements, because non-compete provisions are void and unenforceable by law.

· Ninth Cause of Action for violation of the California Uniform Trade Secrets Act (“CUTSA”):

o Plaintiffs cannot carry their burden of establishing the existence of valid trade secrets because they have failed to identify their claimed trade secrets with reasonable particularity as required by C.C.P. Section 2019.210; recent case law makes clear that this disclosure must happen before a defendant files for summary judgment.

o The CUTSA claim is barred by the equitable doctrines of laches and waiver. The first two iterations of Plaintiffs’ complaint did not assert a CUTSA claim. Instead, Plaintiffs spent 2 years and 8 months participating in discovery, and later amended their complaint to assert a CUSTA claim. This inequitable conduct is precisely what C.C.P. Section 2019.210 was designed to prevent.

o The claim is barred by CUTSA’s three-year statute of limitations. Plaintiffs contend the allegedly improper “disclosure” began in 2008, and Plaintiffs cannot carry their burden of showing they were unaware of this disclosure prior to October 2014 (three years before filing this action).

· As to most of the remaining non-CUTSA claims (the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth causes of action), these claims are superseded and barred by Civil Code Section 3426.7 because all of these claims are based on the same “nucleus of facts” as the CUTSA claim.

· Plaintiff’s Third Cause of Action for unjust enrichment fails because there is no cause of action in California for unjust enrichment.

RP Positions

Opposing parties advocate denying, on bases including the following:

· There are triable issues of material facts as to the operative contract, as well as interpretation. The issue of whether the addendum in 2008 is separate and distinct from the parties' underlying Wound Care Agreement, will be decided by a jury.

· Defendants' Answer to the Second Amended Complaint does not plead an affirmative defense that it owed no duty not to compete under the 2008 Addendum as a separate contract.

· The argument that the non-compete provision is unenforceable, also fails, because it ignores the trade secret exception to Bus.& Prof. Code ; 16600.

· The declaration of Dr. Roger B. Schechter, with 21 years of experience as a wound care specialist and 17 years as a hyperbaric medicine specialist, opines that Piper has specifically designated various trade secrets, as set forth in PIPER's Further Response to PAMC's 2d set of Special Interrogatories, dated January 11, 2021.

· Regarding laches, there is no evidence that Plaintiffs garnered any unlawful benefit from discovery prior to Plaintiffs', assertion of the CUTSA claim.

· As for the Statute of Limitations, Defendants seek to utilize Plaintiffs’ response to Special Interrogatory No. 15, to show when Plaintiffs discovered the disclosure of Plaintiffs' trade secrets, when the interrogatory asks only the dates that each disclosure occurred, not when Plaintiffs’ discovered the misappropriation, which occurred after 6/13/17, when the contract was terminated.

· Defendant's argument that the Second, Third, Fifth, Sixth, Seventh, Eighth and Tenth Causes of Action are all barred and superseded by CUTSA, also fails, for purposes of summary adjudication. Defendant's tortious conduct as pled in these causes of actions, are separate and distinct from Defendant's trade secret misappropriation, and not based on the same nucleus of facts.

· There is a division of opinion in California as to whether a cause of action for unjust enrichment remains valid.

Tentative Ruling

The motion for summary adjudication is denied, as to all issues.

The motion to continue trial is granted, to allow discovery completion.

(1) Whether PAMC owed no duty not to compete under the Hyperbaric Department Agreements.

In response to proof referenced in the moving separate statement, there is evidence supporting triable issues of material fact, as to whether there was a governing non-compete provision (e.g., opp., Geraldine Beutler decl., ¶¶ 3-9).

“[I]t is a question of fact whether the contracts are intended to be elements of a singular transaction.” BMP Property Development v. Melvin (1988) 198 Cal.App.3d 526, 531.

As for summary-judgment procedure, and the issue whether parties intended a contract integration, “when there are conflicting inferences about the actions of the parties, i.e., what happened, … a question of fact is presented.” FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 391.

Where contract interpretation is an issue, and parol evidence is admissible and in conflict, summary judgment must be denied. Wolf v. Sup. Ct. (2004) 114 Cal.App.4th 1343, 1359 n. 27; Fischer v. First Internat. Bank (2003) 109 Cal.App.4th 1433, 1443; Byrne v. Laura (1997) 52 Cal. App. 4th 1054, 1066; Money Store Inv. Corp. v. S. Cal. Bank (2002) 98 Cal. App. 4th 722, 730; Rogers v. Prudential Ins. Co. (1990) 218 Cal.App.3d 1132, 1136-37 (policy was ambiguous where there was no copy of the policy in the record showing its terms); Butler v. Vons Companies, Inc. (2006) 140 Cal.App.4th 943, 949-50 (triable issues existed based upon parol testimony as to scope of release agreement).

(2) Whether PAMC owed no duty not to compete under the Wound Care Agreements.

As addressed immediately above, there are triable issues regarding contract interpretation based on separate documents.

Additionally, there are triable issues of material fact as to whether trade secrets or confidential information are involved (e.g., opp., Roger K Schechter Md decl.), and hence whether an exception applies to the validity of non-compete agreements.

Restrictions on use of trade secrets, or proprietary or confidential information, may justify noncompetition agreements amounting to restraints on trade. Alliant Ins. Services, Inc. v. Gaddy  (2008) 159 Cal.App.4th 1292, 1306.

(3) Whether Plaintiffs’ ninth cause of action under CUTSA has no merit because an element cannot be established, and there are three complete defenses to the claim.

C.C.P. Section 2019.210

There are triable issues as to whether opposing parties sufficiently described trade secrets (e.g., opp., Roger K Schechter Md decl.).

For purposes of pretrial motions, parties advocating the existence of trade secrets must “‘describe the subject matter of the trade secret with sufficient particularity to separate it from matters of general knowledge in the trade or of special knowledge of those persons who are skilled in the trade, and to permit the defendant to ascertain at least the boundaries within which the secret lies.’" Whyte v. Schlage Lock Co. (2002) 101 Cal. App. 4th 1443, 1453 (quoting Diodes, Inc. v. Franzen (1968) 260 Cal. App. 2d 244, 253).

In discovery, “absolute precision” is not required in describing trade secrets, but instead "reasonable particularity." Advanced Modular Sputtering, Inc. v. Sup. Ct. (2005) 132 Cal. App. 4th 826, 836. As to Code of Civil Procedure Section 2019.210, the identification of trade secrets only must be reasonable under the circumstances, and is to be liberally construed, such that reasonable doubts about sufficiency are resolved in favor of allowing the commencement of discovery. Brescia v. Angelin (2009) 172 Cal.App.4th 133, 152. As to discovery matters, judges have discretion in determining whether a trade secret statement is reasonably particular under the circumstances. Perlan Therapeutics, Inc. v. Sup. Ct. (2009) 178 Cal.App.4th 1333, 1349. The requirement of Code of Civil Procedure Section 2019.210, to identify trade secrets with sufficient particularity, does not require complainants’ proving the elements of actual trade secrets, or judges determinations of the merits, and contrary evidence is immaterial. Perlan Therapeutics, Inc. v. Sup. Ct. (2009) 178 Cal. App. 4th 1333, 1351.

Statute of Limitations

There is a triable issue as to when misappropriation was or should have been discovered (e.g., Geraldine Beutler decl., ¶ 20).

“ ‘An action for misappropriation must be brought within three years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered.’ ” Cypress Semiconductor Corp. v. Sup. Ct. (2008) 163 Cal. App. 4th 575, 582.

Laches

There is a triable issue as to whether delay in claiming trade secret misappropriation caused cognizable prejudice (e.g., separate statements, facts 21, 22, and proof referenced thereat).

The elements of laches are:

1. Failure to assert a right;
2. unreasonable delay; and
3. resulting prejudice to the adverse party.

In re Marriage of Powers (1990) 218 Cal. App. 3d 626, 642. See also Barndt v. County of L.A. (1989) 211 Cal.App.3d 397, 403 n.1 (“ ‘If the complaint merely discloses the lapse of a long period of time without affirmatively showing or necessarily implying any injury to the defendant therefrom, it does not show laches on its face, and a demurrer should not be sustained.’ ”); Golden Gate Water Ski Club v. County of Contra Costa (2008) 165 Cal.App.4th 249, 263 (laches involves a fact question, but may be decided as a matter of law where relevant facts are not disputed).

Waiver

There are triable issues of material fact as to whether litigation delays were so inconsistent with intent to enforce rights as to induce a reasonable believe of relinquishment (e.g., separate statements, facts 22-26).

“‘California courts will find waiver when a party intentionally relinquishes a right or when that party's acts are so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.’" Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal. 4th 1, 33-34. Accord Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 598.

(4) Whether Plaintiffs’ second, third, fourth, fifth, sixth, seventh, eighth, and tenth causes of action have no merit, because they are superseded by the CUTSA claim.

Defendants have not shown CUTSA preemption, because trade secrets do not constitute a whole common nucleus of the claims. In avoidance of preemption, plaintiffs may assert trade secret-based claims, if they also advance theories that are not necessarily dependent upon trade secrets.

Here, the pleading alleges that not everything sued upon is trade secrets (e.g., Second Amended Complaint, ¶¶ 24 (“materials in Defendant's possession and/or control, and includes but is not limited to the following:…”), 30 (“utilizing all of PIPER's property to operate its own specialty program at the same location, without PIPER's consent and without payment to PIPER, in violation of the Contract's non-compete clause.”), 41 (“utilizing all of PIPER's property to operate its own specialty program, without PIPER's consent and without payment to PIPER, while it negotiated with third parties to open a new specialty program involving PIPER's wound care and HBO services with a third party, including Shuo Stephen Wang, M.D., which includes disclosure and dissemination of confidential information in violation of the Confidentiality clause in the Contract.), 65 (“utilizing all of PIPER's property to operate its own specialty program,…”), 74 (“Plaintiffs could have immediately taken possession of their property and taken steps to move and relocate….”), 92 (“all materials in any form, including goods, services….”)).

Civil Code Section 3426.7(b) preempts common law claims based on the same nucleus of facts as a claim for misappropriation of trade secrets, and, depending on the particular allegations, may preempt claims for breach of confidence, interference with contract, and unfair competition. K.C. Multimedia, Inc. v. Bank of Amer. Technology & Operations, Inc. (2009) 171 Cal. App. 4th 939, 959. “If the only arguable property identified in the complaint is a trade secret, and the only basis for any property right is trade secrets law, then a conversion claim predicated on the theft of that property is unquestionably “based upon misappropriation of a trade secret” (; 3426.7, subd. (b)) and the conversion claim is preempted. “ Silvaco Data Systems v. Intel Corp. (2010) 184 Cal. App. 4th 210, 238.

A California decision as to preemption under the California Uniform Trade Secrets Act (CUTSA) summarily rejected a preemption argument, as follows: "The UTSA, specifically section 3426.7, subdivision (a), expressly provides that the Act "does not supersede any statute relating to misappropriation of a trade secret, or any statute otherwise regulating trade secrets." Courtesy Temporary Service, Inc. v. Camacho (1990) 222 Cal.App.3d 1278, 1291.Courtesy held that a Section 17200 claim could be based on a former employee's misuse of confidential information in violation of CUTSA (CC ; 3426), in order to facilitate taking clients. Courtesy, supra, at 1292. Further, Courtesy, and out-of-jurisdiction cases have applied the test of preemption by considering the entire pleading, and not by looking at claims, or evidence, in isolation. The California decision in Balboa Ins. Co. v. Trans Global Equities (1990) 218 Cal.App.3d 1327, is somewhat helpful by analogy to copyright law. That case involved a trial (ibid. at 1337), and the question whether the Copyright Act preempted tort claims where it regulated duplication of authors' works (ibid. at 1338). The case is instructive to show that the prescribed procedure is to evaluate the complaint's causes of action to ascertain preemption, as questions of law (see, e.g., id. at 1340), as distinguished from including for consideration extrinsic evidentiary disputes as to motions for summary judgment.

Further, confidential business information does not necessarily meet the requirements of a trade secret (see, e.g., Second Amended Complaint, ¶ 81 (“Plaintiffs property included both trade secret and confidential information….”)).

(5) Whether Plaintiffs’ third cause of action for unjust enrichment fails because it is not a cognizable claim.

There is a split of authority as to whether unjust enrichment is a cause of action, having the elements:

1. Receipt of a benefit;
2. unjust or wrongful retention of the benefit; and
3. at the expense of another.

Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593; Lectrodryer v. SeoulBank (2000) 77 Cal. App. 4th 723, 726; Marina Tenants Assn. v. Deauville Marina Development Co. (1986) 181 Cal. App. 3d 122, 134; Hirsch v. Bank of Amer. (2003) 107 Cal.App.4^th 708, 716, 722. See also Ghirardo v. Antonioli (1996) 14 Cal. 4th 39, 51 (receipt of a benefit includes being saved from an expense or loss); Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 346 (“a cause of action for unjust enrichment is not based on … a written contract.”); Cal. Medical Ass'n v. Aetna U. S. Healthcare of Cal. (2001) 94 Cal. App. 4th 151, 172 (“unjust enrichment does not lie where … express binding agreements exist and define the parties' rights.”); McBride v. Boughton (2004) 123 Cal. App. 4th 379, 388 (“restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it … is unenforceable or ineffective for some reason” and may be available based upon torts); Nibbi Bros. v. Home Fed. Sav. & Loan Ass'n (1988) 205 Cal. App. 3d 1415, 1422 (for enrichment to be unjust, a benefit ordinarily must have been conferred by mistake, fraud, coercion or request, and not officiously); Jones v. Wells Fargo Bank (2003) 112 Cal. App. 4th 1527, 1541 ("Defendants will not be unjustly enriched by receiving contingent interest to which they are legally entitled."). But see Jogani v. Sup. Ct. (2008) 165 Cal.App.4th 901, 911 (“[U]njust enrichment is not a cause of action.”); Melchior v. New Line Prods., Inc. (2003) 106 Cal.App.4^th 779, 794 (defining it as a remedy); McBride v. Boughton (2004) 123 Cal.App.4th 379, 387 (“Unjust enrichment is not a cause of action … or even a remedy….” ).

Courts have construed pled unjust enrichment as being actually a cause of action for quasi-contract seeking restitution. Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231.

Where there is a split of authority, trial courts have discretion to choose between the decisions. Auto Equity Sales, Inc. v. Sup. Ct. (1962) 57 Cal.2d 450, 456. Where there is a split of authority, “[a]s a practical matter, a superior court ordinarily will follow an appellate opinion emanating from its own district even though it is not bound to do so.” McCallum v. McCallum (1987) 190 Cal.App.3d 308, 316 n.4.

Additionally, the motion for summary adjudication improperly attacks sufficiency of pleading allegations, whereas the issues are the burden to address even poorly pled ones, and for the Court to consider granting leave to amend.

A reference to the complaint as evidence may indicate the inappropriate use of motions for summary judgment as disguised motions for judgment on the pleadings, seeking to test the sufficiency of allegations. Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 535; Taylor v. Lockheed Martin Corp. (2000) 78 Cal. App. 4th 472, 479; Bostrom v. County of San Bernardino (1995) 35 Cal. App. 4th 1654, 1662 (summary judgment motions properly include testing sufficiency of complaints, and leave to amend should be allowed if reasonable possibility of successful amendment appears from opposing papers); Hansra v. Sup. Ct. (1992) 7 Cal. App. 4th 630, 639 (summary judgment motions properly treated as motion for judgment on the pleadings).