Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BC409392, Anthony J. Mohr, Judge.
Odion L. Okojie for Plaintiff and Appellant.
Reed Smith, Margaret M. Grignon, Wendy S. Albers and Felicia Y. Yu for Defendants and Respondents.
TURNER, P. J.
I. INTRODUCTION
Plaintiff, Raul Ceron, appeals from a judgment after Judge Anthony J. Mohr sustained without leave to amend a demurrer to a purported class action involving the transfer of structured settlement payment rights. Plaintiff sought damages and equitable relief against defendants who are factoring companies, 321 Henderson Receivables, L.P., 321 Henderson Receivables Origination, L.L.C. and J.G. Wentworth, S.S.C. Limited Partnership, for alleged violations of California’s Structured Settlement Transfer Act (the act). (Ins. Code, § 10136 et seq.) Plaintiff’s claims arose from transfers of structured settlement payment rights. The transfers of structured settlement payment rights at issue directly involve two defendants, 321 Henderson Receivables, L.P. and 321 Henderson Receivables Origination, L.L.C. The complaint contains standard agency allegations. Thus, for ease of reference, we will refer to the factoring companies collectively as defendants.
All further statutory references are to the Insurance Code unless otherwise indicated.
Judge Mohr ruled the transfers of structured settlement payment rights were not subject to collateral attack in that they had been approved as fair and consistent with the act in prior final court orders. We affirm that portion of the judgment sustaining defendants’ demurrers to claims predicated upon court approved transfers. But, we reverse the judgment as to the injunctive relief claims which allege continued violations of the act under the Unfair Competition Law. (Bus. & Prof. Code, § 17200 et seq.)
II. BACKGROUND
A. Structured Settlement Payments And The Act
Structured settlements are designed to provide tax advantages for investment income received by a personal injury plaintiff from a lump sum payment. (See § 10134, subd. (j); Western United Life Assur. Co. v. Hayden (3rd Cir. 1995) 64 F.3d 833, 839-841; 321 Henderson Receivables Origination, LLC v. Sioteco (2009) 173 Cal.App.4th 1059, 1064.) Title 26 United States Code section 104(a)(2) excludes as income damages received for personal injury or sickness. (Western United Life Assur. Co. v. Hayden, supra, 64 F.3d at pp. 839-841; 321 Henderson Receivables Origination, LLC v. Sioteco, supra, 173 Cal.App.4th at p. 1064.) With a structured settlement, the party settling with the beneficiary of the payments purchases an annuity contract to provide a source of funds to satisfy the obligation. (Western United Life Assur. Co v. Hayden, supra, 64, F.3d at pp. 839-841; 321 Henderson Receivables Origination LLC v. Ramos (2009) 172 Cal.App.4th 305, 309.) The settling plaintiff receives periodic payments from a third party assignee or structured settlement company. The periodic payments are considered personal injury damages and excluded as income for tax purposes. (Western United Life Assur. Co v. Hayden, supra, 64, F.3d at pp. 839-841; 321 Henderson Receivables Origination, LLC v. Sioteco, supra, 173 Cal.App.4th at p. 1064.)
The act was enacted partially in response to then pending federal legislation which provided favorable tax treatment to court approved structured settlement transfers and imposed a 40 percent excise tax on unapproved transactions. (321 Henderson Receivables Origination LLC v. Sioteco, supra, 173 Cal.App.4th at p. 309; 321 Henderson Receivables Origination LLC v. Ramos, supra, 172 Cal.App.4th 305 at pp. 308-309; see also 26 U.S.C. § 130.) The act regulates the transfer of structured settlement payment rights between individuals and factoring companies. (§ 10136 et seq.) Factoring companies pay individuals with structured settlement payments rights a lump sum. The lump sum is in exchange for value that is less than the face value of the annuity payments. (321 Henderson Receivables Origination LLC v. Ramos, supra, 172 Cal.App.4th at pp. 308-309; 321 Henderson Receivables Origination LLC v. Red Tomahawk (2009) 172 Cal.App.4th 290, 294.) The act requires a factoring company: to make disclosures to the owner (§ 10136); to give notice to the Attorney General (§ 10139); and to obtain court approval of the transfer. (§ 10139.5, subd. (f)(1).)
Among the disclosures required is notice to the payee about seeking independent professional counsel. (§ 10136, subd. (b).) Prior to 2010, section 10136, subdivision (b) provided: “You should get independent professional advice about whether selling your structured settlement payments is a good idea for you and for your dependents. [¶] You also should get independent professional advice from an accountant or lawyer experienced in tax matters about any income tax consequences from selling your structured settlement payments. We cannot give you the name of anyone to advise you.” (Stats. 2006, ch. 538, § 465.) In 2009, section 10136, subdivision (b) was amended to include advisement that costs for the advice is to be paid by the factoring company. (Stats. 2009, ch. 593, § 3.) Section 10136, subdivision (b) now provides: “You should get independent professional advice about whether selling your structured settlement payments is a good idea for you and for your dependents. [¶] You are advised to seek independent legal or financial advice regarding the transaction and, under the law, the cost of that advice, up to one thousand five hundred dollars ($1,500) will be paid by the transferee, the person or entity to whom you have agreed to transfer and assign the payments in question. The transferee or purchaser’s accountant, counsel, or actuary may not advise you in this transaction. [¶] You also should get independent professional advice from an accountant or lawyer experienced in tax matters about any income tax consequences from selling your structured settlement payments. We cannot give you the name of anyone to advise you.” As can be noted, section 10136, subdivision (b) now requires that the cost of the independent legal or financial advice will be paid by the factoring company. When we are discussing the standing issue, we will be applying the version of section 10136, subdivision (b) in effect in 2007 when an alleged unlawful attorney referral occurred and $1,500 was deducted from plaintiff’s payment by defendants. (See post at pp. 15-18.)
Section 10134, subdivision (f) sets forth requirements for an independent advisor as follows: “‘Independent professional advice’ means advice of an attorney, certified public accountant, actuary, or other licensed professional adviser meeting all of the following requirements: [¶] (1) The adviser is engaged by a claimant or payee to render advice concerning the legal, tax, or financial implications of a structured settlement or a transfer of structured settlement payment rights. (2) The adviser’s compensation for rendering independent professional advice is not affected by occurrence or lack of occurrence of a settlement or transfer. [¶] (3) A particular adviser is not referred to the payee by the transferee or its agent, except that the transferee may refer the payee to a lawyer referral service or agency operated by a state or local bar association.”
Section 10139.5, subdivision (h) identifies the requirements for the timing of the notification concerning counsel and costs. “No later than the time of filing the petition for court approval, the transferee shall advise the payee of the payee’s right to seek independent counsel and financial advice in connection with the transferee’s petition for court approval of the transfer agreement, and shall further advise the payee that if the payee retains counsel, a licensed certified public accountant, or a licensed actuary in connection with a petition for an order approving the transfer agreement, that the transferee shall pay the fees of the payee’s counsel, accountant, or actuary, regardless of whether the transfer agreement is approved, and regardless of whether the attorney, accountant, or actuary files any document or appears at the hearing on the petition for transfer, in an aggregate amount not to exceed one thousand five hundred dollars ($1,500). The transferee’s accountant, counsel, or actuary may not advise the payee.”
The court approval process is accomplished by a special proceeding in which the court must make express written findings of a number of factors. (§ 10139.5, subd. (a).) Section 10137 identifies the mandatory judicial findings that must be made before a transfer petition may be approved: “A transfer of structured settlement payment rights is void unless a court reviews and approves the transfer and finds the following conditions are met: [¶] (a) The transfer of the structured settlement payment rights is fair and reasonable and in the best interest of the payee, taking into account the welfare and support of his or her dependents. [¶] (b) The transfer complies with the requirements of this article, will not contravene other applicable law, and the court has reviewed and approved the transfer as provided in Section 10139.5.” Section 10139.5, subdivision (a)(2) requires the court to make express written findings, “The payee has been advised in writing by the transferee to seek independent professional advice regarding the transfer and has either received that advice or knowingly waived, in writing, the opportunity to receive the advice.” The court must also find: the transfer is in the best interest of the payee considering the welfare and support of her or his dependents; the transferee has complied with the notification and disclosure requirements of section 10136; the transfer agreement complies with sections 10136 and 10138; the transfer does not contravene any applicable statute or court order; the payee understands the terms of the transfer agreement including section 10136 disclosure requirements; and the payee understands his or her right to cancel the transfer. (§ 10139.5, subd. (a)(1), (3)-(6); see also 321 Henderson Receivables Originations LLC v. Sioteco, supra, 173 Cal.App.4th at p. 1066.) Before approving the transfer, the court is required to find, given the totality of the circumstances, the transfer is fair, reasonable and in the payee’s best interest. (§ 10139.5, subd. (b)(1)-(15).)
The act provides that no “transfer of structured settlement payment rights” is effective unless all the provisions of section 10136 are satisfied. Violations of the act constitute unfair business practices within the meaning of Business and Professions Code section 17200. (§ 10139.4.) The requirements of the act are not subject to waiver by the payee. (§§ 10138, 10139.3, subd. (a).)
B. The Complaint
In reviewing an order after a demurrer is sustained without leave to amend, all well-pleaded factual allegations must be assumed as true. (Naegele v. R. J. Reynolds Tobacco Co. (2002) 28 Cal.4th 856, 864-865; Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 946; Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 495-496; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiff alleged that he settled a workplace injury to his left hand, which resulted in a structured settlement. Plaintiff received an annuity payable at the following times: $1,000 per month from March 25, 2001 to February 25, 2031; $5,000 per year from August 1, 1009 to August 1, 2012; $5,000 per year from August 1, 2016 to August 2019; $40,000 due on February 21, 2012; $60,000 due on February 21, 2017; and $111,792.95 due on February 21, 2022.
From May 6, 2002, through the present, plaintiff and others sold structured settlement payment rights to defendants which are factoring companies. The transfers were approved by courts pursuant to section 10139.5. In making the transfers, defendants engaged in an illegal scheme of directing individuals towards specific attorneys. This violated section 10134, subdivision (f)(3). It was alleged defendants required the individuals to pay up to $1,500 for the purported independent advice but the act requires the factoring companies to pay the cost. The complaint further alleged defendants concealed the facts they made attorney referrals and that individuals paid up to $1,500 for the referrals in violation of the act. We will describe the allegations concerning the unlawful attorney referral process in greater detail while discussing the plaintiff’s injunctive relief and unfair competition claims. (See post at pp. 15-18.)
The complaint contains claims for: declaratory relief (first); unjust enrichment (second); conversion (third); unfair business practices in violation of Business and Professions Code section 17200 (fourth); injunctive relief (fifth); and an accounting (sixth). The complaint requested damages and equitable relief including: declarations defendants’ conduct violated the act and the prior court orders approving the transfers were void; determinations defendants’ conduct constitutes an unfair business practice; restitution; disgorgement; an accounting; and an injunction against future unlawful, unfair or fraudulent acts.
C. The Demurrers
Defendants demurred to the complaint. Defendants sought judicial notice of plaintiff’s declaration setting forth the reasons for the transfer filed in connection with his 2004 petition. Defendants noted plaintiff’s allegations he had not received notices and disclosures in paragraph 45 of the complaint were inconsistent with exhibits attached to the complaint and his 2004 declaration. According to defendants, some of the exhibits attached to the complaint showed that plaintiff was given notices and disclosures regarding the right to seek independent counsel for the proposed transfer and the 2004 and 2007 petitions. Plaintiff was advised that defendants would pay up to $1,500 for an attorney to provide legal advice concerning the transfer petition. Plaintiff was also advised no referrals to any specific adviser could be made by defendants. In 2007, plaintiff consulted with an attorney, Roman Ferd, who is a codefendant. The 2004 petition was approved by Judge David Minning on June 8, 2004. The 2007 petition was approved by Judge Patricia Collins on September 20, 2007.
Defendants asserted the demurrer should be sustained without leave to amend as to the first, third, fifth and sixth causes of action because Judge Minning and Judge Collins approved transfers under the act. Citing 321 Henderson Receivables Origination LLC v. Ramos, supra, 172 Cal.App.4th at pages 312-313, defendants argued the prior court approvals could not be set aside absent direct and affirmative evidence of fraud; something plaintiff could not prove. Defendants reasoned the judicially noticeable documents established plaintiff acknowledged he had been given disclosure documents about his right to legal representation. The judicially noticeable documents disclosed that defendants would pay up to $1,500 in attorney fees to plaintiff in connection with the transfer petition.
Defendants asserted the unjust enrichment claim (second) had no merit because plaintiff did not allege that he paid any attorney fees in connection with the petitions. According to defendants, plaintiff had confused the duty to notify the payee of the right to seek independent professional advice before entering into the purchase agreement (§ 10136, subd. (b)) with the obligation to pay fees of up to $1,500 in connection with the petition proceedings. (§ 10139.5, subd. (e).) Exhibit 10 to the complaint showed that plaintiff engaged Mr. Ferd in connection with the purchase agreement, not the petition proceeding. Defendants asserted they had no obligation to pay any fees for independent professional advice regarding the purchase agreement.
Defendants argued the unfair competition claim had no merit because plaintiff did not allege he suffered any injury from the improper referral. Also, defendants asserted some of plaintiff’s claims were time barred. Finally, defendants argued the class allegations should be stricken.
D. Opposition to the Demurrers
In opposition, plaintiff argued 2004 and 2007 court orders were subject to collateral attack because: they were obtained through extrinsic fraud; the discussion in 321 Henderson Receivables Origination LLC v. Ramos, supra, 172 Cal.App.4th at pages 312-313 is dictum; this is because the issue in Ramos was whether a trial court could, on its own motion, void the transfers; here, Judge Minning and Judge Collins were unaware defendants were violating the act; and even so, this case is consistent with Ramos because the alleged fraudulent conduct arose in the context of a confidential relationship. As to the unjust enrichment claim, plaintiff asserted even if he voluntarily paid any attorney fees, section 10139.3, subdivision (a) prohibits a payee from waiving any of the provisions of the act. Also, any payments were made under fraudulent circumstances. Further, plaintiff argued the unfair business practice cause of action is adequately pled. Plaintiff reasoned section 10139.4 provides that a violation of the act constitutes an unfair business practice. The complaint alleged two unfair business practices-the lawyer referral scheme and the deduction of attorney fees from the payee’s payment. Also, plaintiff argued the statute of limitations argument applied to only part of his claims and there is no time limit for attacking a void order. Finally, plaintiff argued the class allegations must be resolved by noticed motion.
F. The Judgment
Judge Mohr sustained defendants’ demurrers to the complaint without leave to amend. At the hearing, the Judge Mohr ruled: the approval petitions had been litigated to decision where potential class members had received hearings; he could not set aside decisions of other judges in the absence of extrinsic fraud; and, to the extent that plaintiff alleged fraud in the complaint, it was only intrinsic fraud which did not provide a basis for relief. Finally, Judge Mohr ruled that factoring companies were not fiduciaries such that they should be held to a greater standard of care. Plaintiff filed a timely notice of appeal from the order dismissing the complaint.
III. DISCUSSION
A. Standard Of Review
The Supreme Court has defined our task as follows, “‘Our only task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action.’” (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300; Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) We assume the truth of allegations in the complaint which have been properly pleaded and give them a reasonable interpretation by reading the complaint as a whole and with all its parts in their context. (Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 558; People ex rel. Lungren v. Superior Court, supra, 14 Cal.4th at p. 300; Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at p. 967.) However, the assumption of truth does not apply to contentions, deductions, or conclusions of law and fact. (People ex rel. Lungren v. Superior Court, supra, 14 Cal.4th at pp. 300-301; Moore v. Regents of University of California, supra, 51 Cal.3d at p. 125.) Furthermore, any allegations that are contrary to the law or to a fact of which judicial notice may be taken will be treated as a nullity. (Interinsurance Exchange v. Narula (1995) 33 Cal.App.4th 1140, 1143; Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955.) Our Supreme Court has held: “On appeal from a judgment of dismissal entered after a demurrer has been sustained without leave to amend, unless failure to grant leave to amend was an abuse of discretion, the appellate court must affirm the judgment if it is correct on any theory. [Citations.] If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend. [Citation.] The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended. [Citation.]” (Hendy v. Losse (1991) 54 Cal.3d 723, 742; Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
B. The Demurrers
1. Judge Mohr correctly sustained the demurrers to the claims which sought to set aside the prior court approvals.
The claims resting on allegations the prior court orders are void include: declaratory relief (first); conversion (third); injunctive relief from continuing to collect settlement payments obtained through void judgments (fifth); and an accounting (sixth) for payments made under the alleged void transfers. Plaintiff argues Judge Mohr erred in sustaining demurrers to the complaint because the prior court orders were obtained in violation of the act and through extrinsic fraud. According to plaintiff, the prior orders are void and, as such, are subject to collateral attack at any time.
A final judgment has preclusive effects on subsequent litigation between the same parties and is not subject to collateral attack once the time for a direct appeal has passed. (See Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1327; Aerojet-General Corp. v. American Excess Ins. Co. (2002) 97 Cal.App.4th 387, 398, fn. 3.) However, this rule does not apply to void judgments which are subject to collateral attack at any time. (Sindler v. Brennan (2003) 105 Cal.App.4th 1350, 1353; Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1239.) A void judgment is one where a court lacks or acts in excess of jurisdiction or is obtained as a result of extrinsic fraud. (Aerojet-General Corp. v. American Excess Ins. Co., supra, 97 Cal.App.4th at p. 398, fn. 3; Rochin v. Pat Johnson Manufacturing Co., supra, 67 Cal.App.4th at pp. 1239-1240.)
There is no assertion here that the courts approving the transfers under the act lacked jurisdiction. Rather, plaintiff argues the orders approving the transfers are void because defendants failed to comply with the act. However, the issue of whether defendants complied with the act has been previously litigated. The complaint alleges the transfers at issue were previously approved by a number of superior courts. The complaint alleges plaintiff had orders approved in 2004 and 2007 transferring structured settlement payment rights to defendants. Similarly, the purported class member allegations relate to court approved transfers as to the first, third, fifth and six causes of action. But, prior to approving any transfer, section 10139.5, subdivision (a) required the courts to make express written findings of numerous factors including: the payees had been advised in writing about the need to seek independent counsel; the payees had received the disclosure forms; the transfer complied with sections 10136 and 10138; the transfer did not contravene any applicable statute or court order; and the payees reasonably understood the terms of the transfer agreements and disclosure forms. These allegations are not subject to collateral attack. This result is consistent with the discussion in 321 Henderson Receivables Origination LLC v. Ramos, supra, 172 Cal.App.4th at page 316 which held one judge may not set aside the order of another. Rather, once a transfer of structured settlement payments has occurred through the detailed court approval process, it cannot be collaterally attacked as void by any party as a violation of statute, absent direct and affirmative evidence of fraud. (Id. at p. 318.)
Moreover, we disagree with plaintiff that the court approvals can be collaterally attacked in this case because defendants fraudulently misrepresented the facts in the petition process. Extrinsic fraud is demonstrated by showing that a party has been deprived of a fair opportunity to present a claim or defense in court. (Estate of Sanders (1985) 40 Cal.3d 607, 614; City and County of San Francisco v. Cartagena (1995) 35 Cal.App.4th 1061, 1067.) In Estate of Sanders, supra, 40 Cal.3d at pages 614-615, our Supreme Court explained: “The seminal definition of extrinsic fraud is found in United States v. Throckmorton (1878) 98 U.S. 61, 65-66: ‘Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practi[c]ed on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff, or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side, these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and fair hearing. [Citations.] [¶] In all these cases, and many others which have been examined, relief has been granted, on the ground that, by some fraud practi[c]ed directly upon the party seeking relief against the judgment or decree, that party has been prevented from presenting all of his case to the court.’ [¶] We recently observed that ‘[extrinsic] fraud is a broad concept that “tend[s] to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.”’ [Citations.] The clearest examples of extrinsic fraud cases in which the aggrieved party is kept in ignorance of the proceeding or is in some other way induced not to appear. [Citation.] In both situations the party is ‘fraudulently prevented from presenting his claim or defense.’ [Citations.]” Thus, the essence of an extrinsic fraud claim is that one party has deliberately prevented the other party from having his or her day in court either by concealment, failure to give notice of the action, or convincing the other party to refrain from presenting a claim or defense. (Estate of Sanders, supra, 40 Cal.3d at pp. 614-615; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1300; Groves v. Peterson (2002) 100 Cal.App.4th 659, 665.)
While extrinsic fraud provides a basis for relief, the same is not true in the case of intrinsic fraud. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 10-11; La Salle v. Peterson (1934) 220 Cal. 739, 740-742.) The difference between extrinsic and intrinsic fraud is as follows: “‘By contrast, fraud is intrinsic and not a valid ground for setting aside a judgment when the party has been given notice of the action and has had an opportunity to present his case and to protect himself from any mistake or fraud of his adversary but has unreasonably neglected to do so. [Citation.]’ [Citation.]” (Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 844; see Cedars-Sinai Medical Center v. Superior Court, supra, 18 Cal.4th at pp. 10-11; La Salle v. Peterson, supra, 220 Cal. at pp. 740-742.) Thus, intrinsic fraud occurs during the course of the proceedings through fraudulently suppressed, concealed or falsified evidence and does not provide a basis for equitable relief. (Cedars-Sinai Medical Center v. Superior Court, supra, 18 Cal.4th at pp. 10-11; La Salle v. Peterson, supra, 220 Cal. at pp. 740-742.)
The only claims of fraud in this case are that defendants misrepresented they had complied with the act during the court approval process. However, such evidence and falsification only amount to intrinsic fraud, which does not entitle plaintiff or potential class members to collaterally attack any of the court approvals. (Cedars-Sinai Medical Center v. Superior Court, supra, 18 Cal.4th at pp. 10-11; La Salle v. Peterson, supra, 220 Cal. at pp. 740-742.) Moreover, plaintiff does not allege he was denied a fair hearing or prevented from presenting any evidence as a result of his legal representation. Furthermore, there may be an exception to the extrinsic versus intrinsic fraud rule in some cases where the party concealing material evidence has a fiduciary relationship with the other litigant. (Jorgensen v. Jorgensen (1948) 32 Cal.2d 13, 19-20; In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1060-1072.) However, Judge Mohr correctly ruled the complaint does not allege sufficient facts to show defendants had a fiduciary relationship with plaintiff or any possible class members. (See 321 Henderson Receivables Origination LLC v. Sioteco, supra, 173 Cal.App.4th at p. 1078.) Accordingly, Judge Mohr properly sustained the demurrers to the first, third, fifth and sixth causes of action which required setting aside prior approvals of transfers as void.
Finally, in terms of referrals of attorneys, the complaint does not allege the lawyers provided to plaintiff or other class members gave incorrect advice. There is no allegation plaintiff was misadvised about the propriety of entering into the transfers. Nor has plaintiff sought leave to amend to set forth such allegations.
2. The unjust enrichment claim was properly dismissed.
An unjust enrichment claim requires proof the defendant received a benefit and unjustly retained the benefit 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.) There is no separate cause of action for unjust enrichment because it is merely a claim for restitution. (See Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1138; Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370.) However, in an unjust enrichment claim, the mere fact that a party has received a benefit is insufficient to require restitution if a plaintiff received the benefit of the bargain. (Peterson v. Cellco Partnership, supra, 164 Cal.App.4th at p. 1593; Marina Tenants Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d 122, 134.)
Plaintiff’s unjust enrichment claim for past court approved transfers suffers from the same infirmities as the first, third, fifth and sixth causes of action. The transfers have been adjudicated to be fair, reasonable and lawful through the court approval process and may not now be collaterally attacked. Judge Mohr properly sustained the demurrer to the restitution claims for unjust enrichment.
3. The complaint sufficiently alleges a claim for injunctive relief against unfair business practices.
Section 10139.4 provides that a violation of the act is an unfair business practice within the meaning of the Business and Professions Code section 17200. The complaint alleged that, since March 2002 and continuing to the present time, defendants have engaged in conduct which violates the act. Plaintiff sought injunctive relief against the alleged continued violations of the unfair competition law.
The complaint contains several allegations concerning defendants’ attorney referral process which allegedly violated section 10136, subdivision (b) as it was in effect in 2007. The complaint identifies a subclass: “The Class includes a subclass initially defined as: [¶] [] All Class Members who paid up to $1,500.00 to any lawyer referred to them, either directly or indirectly, by [defendants].” According to the complaint, all class members between May 6, 2002 to “the present” were referred to lawyers by defendants “and/or” their agents. Also, plaintiff alleges: “Further, the representative Plaintiff, like all subclass members paid up to $1,500.00 to a lawyer referred to him by [defendants]. The representative Plaintiff, like all Class Members has been harmed by the misconduct of [defendants] in that the [defendants] have collected and continue to collect his structured settlement payments and charged him up to $1.500.00 for the purported independent professional advice.”
Later, the complaint alleges on information and belief, “Prior to court approval of the sales by Plaintiff and the Class Members... [defendants] instructed Plaintiff and the Class Members to meet with a lawyer regarding the propriety of selling their future structured settlement payment rights.” The complaint continues: “[P]rior to June 8, 2004, Plaintiff was harboring some doubt as to the propriety of selling his future structured settlement payments. Thereafter, [defendants] instructed Plaintiff to meet with a lawyer regarding the propriety of selling his future structured settlement payment rights. [¶]... [Defendants] referred Plaintiff and the Class Members to Does I through 1000, who are or were California lawyers. After meeting with these lawyers, Plaintiff and the Class Members decided to go forward with their transactions.” There is no allegation that in 2004, plaintiff was referred to a specific lawyer.
The complaint continues: in 2007, defendants referred plaintiff to Mr. Ferd in connection with the approval ultimately approved by Judge Collins; after speaking to Mr. Ferd, plaintiff agreed to proceed with the proposed transaction; Mr. Ferd’s letter to defendants was attached to the application reviewed by Judge Collins; and this was done to create the false impression plaintiff had received the ‘“independent professional advice’” contemplated by the act. Mr. Ferd’s letter authorized his attorney fees to be deducted from the payment ultimately approved by Judge Collins. The complaint alleges: “This was done in violation of the [act] which provides that [defendants] were to pay those fees up to $1,500.00. Plaintiff is informed and believes... [defendants] likewise deducted up to $1,500.00 from the purchase prices of other Class Members in order pay for the “‘independent professional advice.”’ Finally, the fourth cause of action alleges that the misconduct has occurred and is being threatened to continue to occur.
Defendants asserts that plaintiff cannot allege injury so as to pursue the unfair business practice claim. This is because any alleged past injury has been adjudicated as lawful so that plaintiff cannot establish standing as a private party to sue under the unfair competition law. We disagree.
Our Supreme Court explained the standing requirement under the unfair competition law in Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 788: “‘The purpose of a standing requirement is to ensure that the courts will decide only actual controversies between parties with a sufficient interest in the subject matter of the dispute to press their case with vigor.’ (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 439.) In 2004, the electorate substantially revised the [unfair competition law’s] standing requirement; where once private suits could be brought by ‘any person acting for the interests of itself, its members or the general public’ (former [Bus. & Prof. Code, ] § 17204, as amended by Stats. 1993, ch. 926, § 2, p. 5198), now private standing is limited to any ‘person who has suffered injury in fact and has lost money or property’ as a result of unfair competition ([Bus. & Prof. Code, ] § 17204, as amended by Prop. 64, as amended by voters, Gen. Elec. (Nov. 2, 2004) § 3; see Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 227-228.) The intent of this change was to confine standing to those actually injured by a defendant’s business practices and to curtail the prior practice of filing suits on behalf of ‘“clients who have not used the defendant’s product or service, viewed the defendant’s advertising, or had any other business dealing with the defendant....”’ (Californians for Disability Rights, at p. 228, quoting Prop. 64, § 1, subd. (b)(3).) [¶] While the voters clearly intended to restrict UCL standing, they just as plainly preserved standing for those who had had business dealings with a defendant and had lost money or property as a result of the defendant’s unfair business practices. (Prop. 64, § 1, subds. (b), (d); see § 17204.)”
The complaint alleges that the costs of the independent professional advisor must be borne by defendants. In the past, defendants deducted the costs of counsel. And the complaint alleges defendants continue to deduct those costs. The complaint alleges that plaintiff has had business dealings with defendants and paid money which he should not have paid as a result of their unfair business practices. The complaint alleges defendants continue to violate the act by asserting the independent costs may be collected from payees. The complaint specifically alleges plaintiff was damaged when Mr. Ferd was unlawfully referred by defendants in violation of section 10136, subdivision (b) as it was in effect in 2007. The financial damage arose because defendants then paid Mr. Ferd, who was unlawfully referred, out of plaintiff’s proceeds. The complaint alleges a sufficient nexus between the unlawful act, referral of Mr. Ferd, and a financial loss. As a result of the referral, Mr. Ferd was allegedly compensated out of the agreed to compensation that was to be paid to plaintiff. The alleged unlawful referral has led plaintiff, according to the complaint, to sustain financial loss as have potential class members. While the claims which were previously the subject of prior court approvals may not be set aside, no such hindrance lies against claims of continuing violations of the act. These claims are not subject to any existing court order approving the alleged violations as in compliance with state law. Thus, we reverse the dismissal as it relates to the fourth cause of action.
4. The remaining issues should be resolved after the remittitur issues.
We do not address the statute of limitations and class certification issues which are more appropriately resolved once the remittitur issues. (See In re BCBG Overtime Cases (2008) 163 Cal.App.4th 1293, 1298; Rose v. Medtronics, Inc. (1980) 107 Cal.App.3d 150, 154.) Our views relate only to the issue of the sufficiency of the complaint’s allegations. We express no opinion as to the extent of plaintiff’s standing to pursue post-2009 claims for payments by defendants made to unlawfully referred attorneys. As to these and other legal questions, we leave these issues in the good hands of Judge Mohr.
IV. DISPOSITION
The judgment is reversed as to the fourth cause of action which seeks injunctive relief against unfair business practices. In all other respects, the judgment is affirmed. Each side is to bear its own costs on appeal.
We concur: ARMSTRONG, J., MOSK, J.