LeBrun v. CBS Studios Inc.

Filed 8/25/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JUSTIN LEBRUN et al., B309423
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 20STCV19752)
v.
CBS STUDIOS INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Terry Green, Judge. Affirmed.
Werksman Jackson & Quinn and Caleb E. Mason for Plaintiffs
and Appellants.
Sklar Kirsh, Jessica Pettit and Justin M. Goldstein for Defendant
and Respondent.
Code of Civil Procedure1 section 361 provides (with exceptions not
relevant here) that “[w]hen a cause of action has arisen in another
State, . . . and by the laws thereof an action thereon cannot there be
maintained against a person by reason of the lapse of time, an action
thereon shall not be maintained against him in this State.” In the
present case, plaintiffs Justin LeBrun, Bradford Roublow, and Suleman
Virani, all Louisiana residents at the time of the relevant events, seek
to recover damages in California from defendant CBS Television
Studios, Inc. (CBS), based upon fraudulent representations and/or
omissions that were made to them in Louisiana, and that caused them
harm there. If the lawsuit is deemed to have “arisen” in Louisiana, it is
barred by section 361, because the one-year Louisiana statute of
limitations expired before the filing of the action. Plaintiffs contend,
however, that their causes of action against CBS arose in California,
because the fraud committed in Louisiana allegedly was ratified by
CBS’s conduct in California. Therefore, according to plaintiffs, the more
lenient California limitations period applies, and their action is timely. 2
We hold (as did the trial court) that the causes of action arose in
Louisiana, and that they are barred by the Louisiana statute of
limitations. We also conclude that plaintiffs cannot state a valid claim
1 Further undesignated statutory references are to the California Code of
Civil Procedure.
2 The statute of limitations applicable to fraud claims in California is
three years. (§ 338, subd. (d).) Plaintiffs’ complaint was filed slightly less
than three years after their claims accrued.
2
for unjust enrichment based upon the facts of this case. Therefore, we
affirm the judgment of dismissal.
BACKGROUND
A. Factual Background
The claims alleged in this case are based upon the filming of a
scene depicting an armed robbery of a jewelry store for the CBS
television show, NCIS: New Orleans. The following factual background
is taken from the allegations of the first amended complaint, which
allegations we assume are true under the standard of review applicable
to our review of a trial court’s ruling on a demurrer. (See Zelig v.
County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
Plaintiffs LeBrun and Roublow are actors who were living in New
Orleans, Louisiana at the time of the events at issue; plaintiff Virani is
the owner of a jewelry store in Chalmette, Louisiana, near New
Orleans. In October 2017, Derrick Wells, a producer of NCSI: New
Orleans, spoke to Virani about using his store to film a scene for the
show; he also asked Virani to “play” the store owner in the scene.
Virani agreed to both requests.
The scene was to be filmed about a week later. At that time,
LeBrun and Roublow, who were chosen in a casting call for photograph
models, reported to the show’s set; they expected to model costumes for
still photographs. They met with Wells, who told them that rather than
modeling costumes, they would be acting in a scene depicting an armed
robbery. Wells gave them black costumes, ski masks, and realistic-
looking prop weapons that looked like high-powered automatic assault
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rifles and other firearms. Wells, his crew, and the actors drove in an
unmarked van to Virani’s store, which was located on a busy
commercial block. At the direction of Wells, LeBrun and Roublow
jumped out of the van in their costumes, brandishing the prop weapons,
and stormed into Virani’s store shouting lines Wells had instructed
them to say; those lines included threats and demands for cash and
jewelry. Virani, who was inside the store, played his part by holding up
his hands and complying with the “robbers’” demands. A concealed
camera that was located inside the store filmed the scene.
Unbeknownst to plaintiffs, no one from CBS or the show had
obtained filming permits to shoot the scene, nor had anyone informed
the local authorities or the neighboring businesses that they would be
filming an armed robbery scene for a television show. They also failed
to station a staff member outside the store to reassure neighbors or
passersby that there was no actual robbery taking place. In the words
of the complaint, CBS, through its employees and agents, decided to
shoot the scene “guerilla-style.”
A neighboring business owner saw the unmarked van pull up and
men in ski masks brandishing guns jump out and run into the store.
Believing that Virani’s store was being robbed, the neighbor called 911
to report that an armed robbery was taking place. The SWAT team
from the Chalmette Police Department responded to the scene within
minutes. Officers broke down the door to the store and entered with
their weapons drawn. Training their weapons at LeBrun and Roublow,
the officers ordered them to drop their weapons and warned that they
would be shot if they did not comply. LeBrun, Roublow, and Virani
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tried to explain they were filming a scene for a television show, but the
SWAT officers pushed LeBrun and Roublow to the ground, handcuffed
them, and arrested them. Although Roublow ultimately was released at
the scene, LeBrun was transported to jail.
Immediately after the incident, the Chalmette Sheriff demanded
to speak with CBS officials. Wells promptly arranged a conference call
with several people, including a CBS official who was in Los Angeles.
That official, Kevin Berg, was CBS’s head of production for NCIS: New
Orleans. Berg and the others on the call took responsibility for the
incident and asked the Police Department not to press charges against
CBS or anyone else involved in the incident.
Later that day, Wells and other CBS personnel went to the jail
and picked up LeBrun. Wells and other CBS agents told LeBrun and
Roublow that “the network” and “CBS” was instructing the actors not to
tell anyone about what had happened. LeBrun and Roublow did not
follow that instruction, and publicly told what happened to them. Since
then, they have not been able to secure employment on any television
production, and believe that CBS has blackballed them.
Both LeBrun and Roublow were diagnosed with post-traumatic
stress disorder after the incident and continue to experience significant
emotional and psychological trauma. Virani’s store suffered a
significant drop in business after word spread that it had been the site
of an armed robbery.
The robbery scene (without the SWAT officers’ entry into the store
or their arrests of plaintiffs) was aired by CBS in November 2017 as
part of episode 9 of season 4 of NCIS: New Orleans. Editing and
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production for the episode were performed by CBS in Los Angeles, with
Berg overseeing and supervising that process. The episode was viewed
by approximately 8 million people when it aired, with another 3 million
watching on a digital video recorder.
B. Procedural Background
Plaintiffs filed the instant action in May 2020. The original
complaint alleged causes of action for fraud and unjust enrichment
against CBS and Bradford Kern; the complaint alleged that Kern was
the showrunner and executive producer of NCIS: New Orleans, and that
Kern and his employees and agents engaged in the production and
supervision of the show from CBS facilities in Los Angeles. CBS filed a
demurrer to the original complaint, arguing, among other things, that
(1) the complaint failed to plead fraud with the requisite specificity; (2)
section 361 applied and the fraud claim was barred by the Louisiana
statute of limitations; (3) unjust enrichment is not a recognized cause of
action in California; and (4) both causes of action alleged by LeBrun
were barred by res judicata based upon a lawsuit he filed in Louisiana.
After CBS filed its demurrer, but before the deadline to file an
opposition to it, plaintiffs filed the first amended complaint, which is
the complaint at issue in this appeal. The amended complaint deleted
Kern as a defendant and added several details about the events,
including names of alleged agents of CBS, such as Berg.
The fraud cause of action alleged that CBS’s agent Wells disclosed
to plaintiffs that they would be acting out an armed robbery for an
episode of NCIS: New Orleans but concealed from them that the scene
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would be filmed guerilla style, without informing neighboring
businesses, local authorities, or passersby about the filming of the
staged robbery. The complaint alleged that the concealed facts were
material because they created a significant risk of harm to plaintiffs,
and plaintiffs would not have agreed to participate in the filming had
they been aware of the true facts. The cause of action alleged that
Wells and CBS’s agents intentionally failed to disclose the true facts
and prevented plaintiffs from discovering them, and that plaintiffs were
injured physically, emotionally, and/or economically as a result of the
fraudulent conduct. Finally, the complaint alleged that CBS, through
Berg, ratified the fraudulent conduct in Los Angeles by (1) speaking
with the local sheriff after the incident to persuade him not to
prosecute; (2) rewarding and failing to punish or discipline Wells or any
of CBS’s agents involving in the incident; (3) making, approving, and
ratifying the decision to use the fraudulently-obtained footage;
(4) supervising and overseeing production, editing, and distribution of
the episode containing that footage; and (5) receiving compensation for
production of the episode and distributing rewards and bonuses to
individuals who participated in the fraudulent conduct.
The unjust enrichment cause of action alleged that CBS “unjustly
profited from and enriched themselves [sic] based on the fraudulent and
deceptive conduct set forth herein, and on the harms to Plaintiffs set
forth herein.” It alleged that CBS “knew beforehand and/or learned
soon after” the incident about the actions, deceptions, concealments,
and reckless indifference to plaintiffs’ safety committed by Wells and
CBS’s agents, and ratified, supported, adopted, and rewarded that
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conduct by including the robbery sequence in an episode of NCIS: New
Orleans. It alleged that CBS profited from the advertising and
syndication revenue generated by that episode. The complaint then
summed up the cause of action as follows: “In short, CBS profited by
wrongfully and illegally putting Plaintiffs at grave risk.”
In its prayer for relief, the complaint asked for (1) compensatory
and general damages; (2) special damages; (3) punitive damages;
(4) pre- and post-judgment interest; (5) costs; (6) attorney fees under
section 1021.5; and (7) “such other and further relief as the Court deems
just and proper.” It did not ask for restitution or disgorgement of
profits.
CBS filed a demurrer to the amended complaint, again arguing
that (1) section 361 applied and the fraud claim was barred by the
Louisiana statute of limitations; (2) unjust enrichment is not a
recognized cause of action in California; and (3) both causes of action
alleged by LeBrun were barred by res judicata. Arguing that plaintiffs
had been given an opportunity to amend their complaint to state a valid
cause of action and had failed to do so, CBS asked the court to sustain
the demurrer without leave to amend.
Plaintiffs argued in opposition to the demurrer that (1) CBS’s
conduct in Los Angeles ratified the fraud and made CBS liable in
California, therefore section 361 did not apply; (2) unjust enrichment is
a valid equitable claim under California law; and (3) LeBrun’s fraud
and unjust enrichment claims were not precluded because those issues
were not actually litigated and necessarily decided in his Louisiana
lawsuit. Although in their one-sentence conclusion to their opposition
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plaintiffs asked the court to grant them leave to amend in the event the
court sustained the demurrer, they gave no indication of how they
might amend the complaint.
At the hearing on the demurrer, the trial court announced its
tentative decision was to sustain the demurrer without leave to amend
as to all three plaintiffs on statute of limitations grounds, and,
additionally as to LeBrun on res judicata grounds. The court explained
that the facts alleged establish that the cause of action—i.e., the
fraud—took place entirely in Louisiana. The court noted that the only
conduct that allegedly took place in California (which counsel for
plaintiffs agreed took place only “after the fact”) served only to
potentially expand the universe of defendants if the lawsuit was
otherwise viable. Therefore the court tentatively found that the causes
of action arose in Louisiana, and under section 361 the lawsuit was
barred by the Louisiana statute of limitations.
During the arguments of counsel, the court asked whether
plaintiffs could allege a viable cause of action based upon CBS’s alleged
post-fraud conduct. In response, plaintiffs’ counsel stated plaintiffs
could “amend to add with more specificity allegations of post[-fraud]
conduct, direct action by CBS in Los Angeles blackballing these
individuals or preventing them from getting work [as actors].”
However, counsel insisted that that conduct was still part of “a
continuing course of . . . fraudulent conduct.” The court took the matter
under submission and issued a written order later that day.
With respect to the fraud cause of action, the court found that
“[t]he wrong for which Plaintiffs are suing (the fraud and their
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subsequent arrest) occurred in Louisiana in October of 2017.” The court
rejected plaintiffs’ assertion that CBS’s alleged ratification of the fraud
affects the section 361 analysis. Therefore, it found that the cause of
action arose in Louisiana and section 361 applied. Since it was
undisputed that the applicable Louisiana statute of limitations is a one-
year statute, plaintiffs’ claim, filed in May 2020, was time-barred. The
court therefore sustained the demurrer to the fraud cause of action
without leave to amend.
As to the unjust enrichment claim, the court rejected CBS’s
argument that unjust enrichment is not a valid cause of action.
Nevertheless, it sustained without leave to amend the demurrer to that
claim, finding that “unjust enrichment is not the type of theory that
properly applies to facts like these.” The court observed that unjust
enrichment applies where plaintiffs have conferred a benefit on a
defendant and it would be inequitable for defendant to retain that
benefit without paying for its value. But the court noted that the
benefit CBS received in this case was the acting work of LeBrun and
Roublow and the use of Virani’s store, for which plaintiffs were paid.
Therefore, the court found that plaintiffs could not allege a claim for
unjust enrichment.
In addition to sustaining the demurrer as to all plaintiffs, the trial
court also sustained the demurrer as to both causes of action against
LeBrun on res judicata grounds based upon a lawsuit he filed in
Louisiana against CBS and others that was premised on the same facts
and was dismissed on summary judgment.
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Finally, the trial court addressed plaintiffs’ request for leave to
amend. The court observed that when plaintiffs were asked how they
might amend the complaint to allege viable causes of action, they stated
only that they could allege facts with more particularity and “did not
offer to the court any new legal theory which could be based on post-
incident allegations. They simply argued that post-incident allegations
showed ratification of the original fraud.” Therefore, the court
concluded it “has no basis to believe that a viable claim could be stated
here and will not grant leave to amend.”
The trial court entered a judgment of dismissal with prejudice,
from which plaintiffs timely filed a notice of appeal.
DISCUSSION
Plaintiffs make the same arguments on appeal as they made in
the trial court. They contend that (1) section 361 does not apply to their
claims against CBS because those claims are based upon the
ratification conduct that took place in Los Angeles; (2) their unjust
enrichment claim is a valid equitable claim that is separate from their
fraud claim; and (3) LeBrun’s claims are not precluded by res judicata
because the claims he alleges here were not litigated or adjudicated in
his Louisiana lawsuit. We address the first two arguments below; we
need not address plaintiffs’ third argument because we conclude the
trial court correctly sustained the demurrer as to both causes of action
and all plaintiffs.
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A. Standard of Review
On review of a judgment of dismissal following the sustaining of a
demurrer, “our standard of review is clear: ‘“We treat the demurrer as
admitting all material facts properly pleaded, but not contentions,
deductions or conclusions of fact or law. [Citation.] We also consider
matters which may be judicially noticed.” [Citation.] Further, we give
the complaint a reasonable interpretation, reading it as a whole and its
parts in their context. [Citation.] When a demurrer is sustained, we
determine whether the complaint states facts sufficient to constitute a
cause of action. [Citation.] And when it is sustained without leave to
amend, we decide whether there is a reasonable possibility that the
defect can be cured by amendment: if it can be, the trial court has
abused its discretion and we reverse; if not, there has been no abuse of
discretion and we affirm. [Citations.] The burden of proving such
reasonable possibility is squarely on the plaintiff.’” (Zelig v. County of
Los Angeles, supra, 27 Cal.4th at p. 1126.) “Plaintiff must show in what
manner he can amend his complaint and how that amendment will
change the legal effect of his pleading.” (Cooper v. Leslie Salt Co. (1969)
70 Cal.2d 627, 636.)
B. Applicability of Section 361
By its express language, section 361 applies (with exceptions not
applicable here) “[w]hen a cause of action has arisen in another State.”
Thus, the question presented here is: Where did plaintiffs’ causes of
action arise?
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Plaintiffs argue that their claims arose in California because they
are based upon CBS’s conduct in California, which ratified the
fraudulent conduct that took place in Louisiana. They contend that this
ratification created separate and independent tort liability in
California. From this premise, they reason that the ratification
constituted a separate tort, and that tort arose in California, not
Louisiana. Plaintiffs’ reasoning is faulty.
We agree that the conduct plaintiffs allege took place in California
could constitute ratification by CBS of the alleged fraudulent conduct in
Louisiana. (See, e.g., StreetScenes v. ITC Entertainment Group, Inc.
(2002) 103 Cal.App.4th 233, 242 [affirming jury finding that a movie
production company that failed to repudiate the fraudulent conduct of
its agent ratified the wrongful conduct].) We also agree that ratification
of a wrongful act creates tort liability in the ratifier for that wrongful
act. (Ibid.) Further, we agree that a person who engages in conduct in
California to ratify the fraudulent conduct by an agent in a different
state may be sued in California for damages resulting from that fraud
(ibid.), unless, of course, the claim is time-barred in the jurisdiction in
which the cause of action arose.
Where plaintiffs’ argument falters is their assertion that the
ratification of fraudulent conduct by another constitutes a separate and
independent tort. Plaintiffs rely on PMC, Inc. v. Kadisha (2000) 78
Cal.App.4th 1368 (PMC) for this assertion. But PMC does not stand for
this proposition. PMC simply held that an officer or director of a
corporation could be held personally liable for intentional torts based
upon the corporation’s founders’ misappropriation of trade secrets if the
13
officer or director purchased or invested in the corporation and took
control of its operation with knowledge, or reason to know, of the
wrongful conduct. (Id. at p. 1372.) To be sure, the court in PMC also
held that the liability of the officers and directors in that case was not
vicarious and was instead premised on their own tortious conduct. (Id.
at p. 1389.) But that part of the court’s holding was not based upon a
ratification theory. Instead, it was based upon the law governing
misappropriation of trade secrets. As the PMC court explained, under
the Uniform Trade Secrets Act, misappropriation includes the “‘use of a
trade secret of another . . . by a person who . . . [a]t the time of
disclosure or use, knew or had reason to know that his or her knowledge
of the trade secret was . . . [d]erived from or through a person who had
utilized improper means to acquire it; . . . or . . . [d]erived from or
through a person who owed a duty to the person seeking relief to
maintain its secrecy or limit its use.’” (Id. at p. 1382, quoting Civ. Code,
§ 3426.1, subd. (b), italics omitted.) Thus, even though the officers and
directors at issue in PMC had not participated in the initial
misappropriation, they nevertheless participated, with knowledge, in
the continuing use of the misappropriated trade secrets and therefore
engaged in separate acts of misappropriation under trade secret law.
Contrary to plaintiffs’ suggestion, the PMC court did not hold that
any defendant who ratifies the wrongful conduct of another commits a
separate and independent tort. Instead, the principle of ratification
merely holds the ratifying party liable for the tort committed by another
party. No new tort is committed. This is because “[r]atification is an
agency doctrine. ‘Ratification is the voluntary election by a person to
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adopt in some manner as his own an act which was purportedly done on
his behalf by another person, the effect of which, as to some or all
persons, is to treat the act as if originally authorized by him.’” (City of
Brentwood v. Department of Finance (2020) 54 Cal.App.5th 418, 436.)
As the leading treatise on California law explains, “[a]n agent, at the
time he or she does an act, may be without authority, actual or
ostensible; but the act may be rendered valid and binding on the
principal, as of the time the unauthorized act was done, if the principal
ratifies and thus gives effect to it.” (3 Witkin, Summary of Cal. Law
(11th ed. 2017) Agency and Employment, § 149, pp. 203–204.)
In this case, the acts for which plaintiffs seek damages are the
fraudulent misrepresentations and omissions made by Wells. Those
acts occurred in Louisiana, to residents of Louisiana, resulting in
injuries sustained in Louisiana. CBS’s alleged ratification simply
rendered CBS liable for Wells’ acts; it was not independently wrongful
and did not cause any separate injuries. That the ratification took place
in California is irrelevant to determining where the causes of action
arose. They arose in Louisiana. As such, section 361 applies.
Since plaintiffs do not dispute that under Louisiana law the
statute of limitations for fraud claims is one year and their complaint
was filed almost three years after the fraud took place, we conclude the
trial court did not err in sustaining the demurrer to plaintiffs’ fraud
claim.
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C. Unjust Enrichment Cause of Action
Plaintiffs contend the trial court erred by sustaining CBS’s
demurrer to the unjust enrichment cause of action on the ground that
unjust enrichment is not a cause of action but is instead a remedy.
They misunderstand the court’s ruling. In fact, the trial court rejected
that ground, which was asserted by CBS in its demurrer, stating:
“[CBS] challenges this claim on the grounds that unjust enrichment is
not a cause of action. That is incorrect.” (Italics added.) Instead, the
court found that under the facts alleged by plaintiffs, the equitable
doctrine of unjust enrichment did not apply.
The court explained, “‘[t]he doctrine applies where plaintiffs,
having no enforceable contract, nevertheless have conferred a benefit on
defendant which defendant has knowingly accepted under
circumstances which make it inequitable for the defendant to retain the
benefit without paying for its value.’” (Quoting Hernandez v. Lopez
(2009) 180 Cal.App.4th 932, 938 (Hernandez).) The court found that the
benefit conferred on CBS by plaintiffs was their acting work and the use
of Virani’s store, and that CBS paid for that benefit. Therefore, the
court concluded there was no unjust enrichment.
Plaintiffs assert a more expansive application of the unjust
enrichment doctrine, essentially arguing it applies and can be alleged
as a separate and independent cause of action whenever a party profits
from a wrongful act against another. In making this assertion,
plaintiffs rely on passages from two cases, without taking into account
the context in which they arose. In both of those cases, American
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Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451(American Master Lease) and Hernandez, supra, 180 Cal.App.4th 932,
the courts addressed the doctrine of unjust enrichment in discussing the
remedy for a validly pleaded cause of action.
In American Master Lease, the plaintiff (a corporation that
invested in real estate) alleged that the defendant (a venture capital
firm) had aided and abetted the breach of fiduciary duty by managers of
the corporation. (American Master Lease, supra, 225 Cal.App.4th at p.
1458.) The breach occurred when, after the controlling member of the
plaintiff rejected the defendant’s investment proposal, two of the
plaintiff’s managers formed a separate corporation with the defendant
venture capital firm as a co-owner, to operate a real estate investment
business using the plaintiff’s proprietary business method. (Id. at pp.
1462–1463.) The plaintiff filed a lawsuit against the defendant alleging
causes of action for aiding and abetting a breach of fiduciary duty,
interference with contract, unfair competition, and unjust enrichment.
(Id. at p. 1467.) The trial court sustained without leave to amend the
demurrer to the causes of action for unjust enrichment and unfair
competition, and the case went to trial on the aiding and abetting
breach of fiduciary duty and interference with contract claims. (Id. at
pp. 1467–1468.) At trial, the plaintiff presented evidence to show the
value of the benefit the defendant received from the sale of stock in the
newly formed corporation, and the jury was instructed on the elements
of unjust enrichment, restitution, disgorgement, and constructive trust.
(Id. at pp. 1468–1469.) The jury found in favor of the defendant on the
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aiding and abetting claim, and awarded the plaintiff “damages” in the
amount the defendant had received from the sale of stock. (Id. at p.
1471.)
On appeal, the defendant contended that the equitable remedies of
unjust enrichment, disgorgement, and constructive trust were not
available for aiding and abetting a breach of fiduciary duty. (American
Master Lease, supra, 225 Cal.App.4th at p. 1481.) The appellate court
disagreed. In discussing the remedy of disgorgement, the court
observed that “[t]here are two types of disgorgement: restitutionary
disgorgement, which focuses on the plaintiff’s loss, and
nonrestitutionary disgorgement, which focuses on the defendant’s
unjust enrichment.” (Id. at p. 1482.) It explained that “‘[w]here “a
benefit has been received by the defendant but the plaintiff has not
suffered a corresponding loss or, in some cases, any loss, but
nevertheless the enrichment of the defendant would be unjust . . . the
defendant may be under a duty to give to the plaintiff the amount by
which [the defendant] has been enriched.” [Citation.]’” (Id. at p. 1482.)
The court continued, “‘“‘[i]t is not essential that money be paid directly
to the recipient by the party seeking restitution. . . .’” [Citations.] The
emphasis is on the wrongdoer’s enrichment, not the victim’s loss. In
particular, a person acting in conscious disregard of the rights of
another should be required to disgorge all profit because disgorgement
both benefits the injured parties and deters the perpetrator from
committing the same unlawful actions again.’” (Ibid.)
In the present case, plaintiffs rely upon the last quoted sentence to
argue that they have alleged a valid cause of action for unjust
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enrichment independent of their fraud claim because they alleged that
CBS profited from its conscious disregard of their rights. But as is clear
from the context in which the American Master Lease court made that
statement, the duty to disgorge such profits arises only as a remedy for
a validly asserted cause of action. Moreover, plaintiffs’ own complaint
belies their assertion that their unjust enrichment cause of action is
independent of their fraud claim, inasmuch as they allege in the second
paragraph of that cause of action: “As set forth herein, CBS unjustly
profited from and enriched themselves based on the fraudulent and
deceptive conduct set forth herein, and on the harms to Plaintiffs set
forth herein.” In other words, plaintiffs seek the remedy of
nonrestitutionary disgorgement based upon their fraud claim, which as
discussed above, is barred under section 361.
The other case plaintiffs rely upon, Hernandez, supra, 180
Cal.App.4th 932, similarly does not assist them. In that case, the trial
court had dismissed the plaintiffs’ breach of contract claim on the
ground that their complaint did not allege a breach of any of the terms
in the written contract, although the court observed that the defendants
“‘might be liable for a conversion or trespass, or on a theory of unjust
enrichment, but not a breach of contract.’” (Id. at p. 937.) The plaintiffs
then filed a new lawsuit alleging claims for unjust enrichment and
conversion, but that lawsuit “ran afoul of the doctrines of merger and
bar.” (Ibid.) The plaintiffs then appealed from the dismissal of their
original lawsuit. (Ibid.)
The appellate court held that the trial court in the original lawsuit
“focused unduly on labels” in dismissing the breach of contract cause of
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action. (Hernandez, supra, 180 Cal.App.4th at p. 938.) It held that the
plaintiffs’ “detailed cause of action for breach of contract fully raised all
the facts and circumstances in which equity could contemplate a quasi-
contractual remedy to prevent [the defendants] from being unjustly
enriched at the expense of the [plaintiffs].” (Id. at p. 939.) It is in this
context that the court included the passage upon which plaintiffs rely in
this case: “‘The spirit behind the law of unjust enrichment is to apply
the law “outside of the box” and fill in the cracks where common civil
law and statutes fail to achieve “justice.”’” (Ibid.)
In the present case, the common civil law and statutes already
provided a method to achieve justice for the wrongs allegedly
committed: a cause of action for fraud. Plaintiffs’ inability to maintain
that cause of action was not due to the absence of law to support it but
rather to their failure to timely assert it. In such a case, “justice” does
not require the application of the unjust enrichment doctrine.
Therefore, we affirm the trial court’s ruling sustaining CBS’s demurrer
to the unjust enrichment cause of action.
D. Denial of Leave to Amend
As noted, the trial court denied plaintiffs leave to amend their
complaint, finding that they failed to demonstrate how they could
amend the complaint to allege valid causes of action. Plaintiffs do not
address in their appellate briefs the court’s denial of leave to amend and
do not suggest how they could amend the complaint.
As noted, although we are required to decide “‘whether there is a
reasonable possibility that the defect [in the complaint] can be cured by
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amendment[,] . . . [t]he burden of proving such reasonable possibility is
squarely on the plaintiff’” (Zelig v. County of Los Angeles, supra, 27
Cal.4th at p. 1126) by “show[ing] in what manner he can amend his
complaint and how that amendment will change the legal effect of his
pleading.” (Cooper v. Leslie Salt Co., supra, 70 Cal.2d at p. 636.) The
plaintiffs in this case have not done so. Accordingly, we affirm the trial
court’s denial of leave to amend.
DISPOSITION
The judgment is affirmed. CBS shall recover its costs on appeal.
CERTIFIED FOR PUBLICATION
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.
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