This case was last updated from Los Angeles County Superior Courts on 06/13/2019 at 06:45:58 (UTC).

PIPER CARE MANAGEMENT ET AL VS PACIFIC ALLIANCE MEDICAL CENT

Case Summary

On 10/24/2017 PIPER CARE MANAGEMENT filed a Contract - Other Contract lawsuit against PACIFIC ALLIANCE MEDICAL CENT. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is AMY D. HOGUE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1033

  • Filing Date:

    10/24/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

AMY D. HOGUE

 

Party Details

Petitioner and Plaintiff

PIPER CARE MANAGEMENT

Defendants and Respondents

CANYON STEVE

DOES 1 - 10

BEUTLER GERALDINE

PACIFIC ALLIANCE MEDICAL CENTER

PIPER CASE MANAGEMENT AND CONSULTING INC

EDWARDS JOHN

PAMC LTD. A CALIFORNIA LIMITED PARTNERSHIP

Attorney/Law Firm Details

Petitioner and Plaintiff Attorney

MERCADO DOREEN M. ESQ.

Defendant and Respondent Attorneys

PURITSKY COURTNEY L.

PURITSKY COURTNEY

HUANG YBARRA SINGER & MAY LLP

 

Court Documents

PROOF OF SERVICE SUMMONS

1/22/2018: PROOF OF SERVICE SUMMONS

COMPENDIUM OF DECLARATIONS IN SUPPORT OF DEFENDANT STEVE CANYON?S MOTION TO STRIKE PURSUANT TO CCP ? 425.16 (ANTISLAPP STATUTE)

3/21/2018: COMPENDIUM OF DECLARATIONS IN SUPPORT OF DEFENDANT STEVE CANYON?S MOTION TO STRIKE PURSUANT TO CCP ? 425.16 (ANTISLAPP STATUTE)

PLAINTIFFS' STATEMENT OF NON-OPPOSITION WITH REQUEST FOR APRIL 20, 2018 HEARING DATE RE DEFENDANTS' EX PARTE APPLICATIONS TO ADVANCE DATES OF HEARING ON MOTIONS TO STRIKE PER CCP 425.16

3/23/2018: PLAINTIFFS' STATEMENT OF NON-OPPOSITION WITH REQUEST FOR APRIL 20, 2018 HEARING DATE RE DEFENDANTS' EX PARTE APPLICATIONS TO ADVANCE DATES OF HEARING ON MOTIONS TO STRIKE PER CCP 425.16

Minute Order

4/13/2018: Minute Order

Unknown

4/24/2018: Unknown

OPPOSITION OF DEFENDANT JOHN EDWARDS TO PLAINTIFFS' MOTION TO LIFT DISCOVERY STAY AND ALLOW LIMITED DISCOVERY (C.C.P. 425.16); DECLARATION OF COURTNEY L. PURITSKY IN SUPPORT

4/26/2018: OPPOSITION OF DEFENDANT JOHN EDWARDS TO PLAINTIFFS' MOTION TO LIFT DISCOVERY STAY AND ALLOW LIMITED DISCOVERY (C.C.P. 425.16); DECLARATION OF COURTNEY L. PURITSKY IN SUPPORT

REQUEST FOR DISMISSAL

4/26/2018: REQUEST FOR DISMISSAL

DEFENDANT JOHN EDWARDS? EVIDENTIARY OBJECTIONS TO DECLARATIONS SUBMITTED IN SUPPORT OF PLAINTIFFS? OPPOSITION TO DEFENDANT?S SPECIAL MOTION TO STRIKE PURSUANT TO CICIP. ? 425.16 (ANTI-SLAPP STATUTE)

7/3/2018: DEFENDANT JOHN EDWARDS? EVIDENTIARY OBJECTIONS TO DECLARATIONS SUBMITTED IN SUPPORT OF PLAINTIFFS? OPPOSITION TO DEFENDANT?S SPECIAL MOTION TO STRIKE PURSUANT TO CICIP. ? 425.16 (ANTI-SLAPP STATUTE)

Minute Order

8/20/2018: Minute Order

Motion to Continue Trial Date

10/22/2018: Motion to Continue Trial Date

Notice

5/1/2019: Notice

Notice of Case Reassignment/Vacate Hearings

5/6/2019: Notice of Case Reassignment/Vacate Hearings

Notice of Case Management Conference

5/31/2019: Notice of Case Management Conference

NOTICE OF CASE MANAGEMENT CONFERENCE AND ORDER TO SHOW CAUSE HEARING

12/13/2017: NOTICE OF CASE MANAGEMENT CONFERENCE AND ORDER TO SHOW CAUSE HEARING

1ST. AMENDED SUMMONS

12/13/2017: 1ST. AMENDED SUMMONS

1ST. AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF: 1) BREACH OF CONTRACT (NON-COMPETE AND CONFIDENTIALITY CLAUSES); ETC

12/13/2017: 1ST. AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF: 1) BREACH OF CONTRACT (NON-COMPETE AND CONFIDENTIALITY CLAUSES); ETC

PROOF OF SERVICE SUMMONS

12/13/2017: PROOF OF SERVICE SUMMONS

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER

12/20/2017: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF EX PARTE APPLICATION FOR ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER

55 More Documents Available

 

Docket Entries

  • 06/11/2019
  • Notice ( OF CASE MANAGEMENT CONFERENCE); Filed by Piper Care Management (Plaintiff)

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  • 05/31/2019
  • Notice of Case Management Conference; Filed by Clerk

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  • 05/16/2019
  • Notice (of case reassignment and order for plaintiff to give notice); Filed by Doreen M. Mercado, Esq. (Attorney)

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  • 05/07/2019
  • Notice ( OF OBJECTION TO NOTICE OF RULING BY DEFENDANT RE STATUS CONFERENCE OF MAY 1, 2019); Filed by Doreen M. Mercado, Esq. (Attorney)

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  • 05/06/2019
  • at 11:00 AM in Department 49; Court Order

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  • 05/06/2019
  • Certificate of Mailing for (Minute Order (Court Order) of 05/06/2019); Filed by Clerk

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  • 05/06/2019
  • Notice of Case Reassignment/Vacate Hearings; Filed by Clerk

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  • 05/06/2019
  • Minute Order ( (Court Order)); Filed by Clerk

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  • 05/01/2019
  • at 08:30 AM in Department 49; Status Conference - Held

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  • 05/01/2019
  • Minute Order ( (Status Conference regarding mediation completion)); Filed by Clerk

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114 More Docket Entries
  • 12/13/2017
  • 1ST. AMENDED SUMMONS

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  • 12/13/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE AND ORDER TO SHOW CAUSE HEARING

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  • 11/06/2017
  • ORDER TO SHOW CAUSE HEARING

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  • 11/06/2017
  • OSC-RE Other (Miscellaneous); Filed by Clerk

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  • 11/06/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 11/06/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 10/24/2017
  • COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF: 1) BREACH OF CONTRACT (NONCOMPETE CLAUSE); ETC

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  • 10/24/2017
  • SUMMONS

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  • 10/24/2017
  • Complaint; Filed by Piper Care Management (Plaintiff)

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  • 04/24/2015
  • Case Management Statement; Filed by Defendant/Respondent

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Tentative Rulings

Case Number: BC681033    Hearing Date: April 27, 2021    Dept: 55

PIPER CARE MANAGEMENT v. PACIFIC ALLIANCE MED. CENTER BC681033

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.4th 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.4th 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).

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