Opinion
2d Civ. B304058
06-29-2021
JOSEPH J. COMELLA, Plaintiff and Appellant, v. COVENANT TRANSPORT SOLUTIONS, INC., et al. Defendants and Respondents.
Remer, DiVincenzo & Griffith, Joseph P. DiVincenzo, for Plaintiff and Appellant. Snyder Burnett Egerer, Ashley Dorris Egerer, Jessica Farley and Megan McMahon, for Defendants and Respondents.
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 56-2015-00475447-CU-BT-VTA Matthew Guasco, Judge
Remer, DiVincenzo & Griffith, Joseph P. DiVincenzo, for Plaintiff and Appellant.
Snyder Burnett Egerer, Ashley Dorris Egerer, Jessica Farley and Megan McMahon, for Defendants and Respondents.
PERREN, J.
Joseph J. Comella's second amended complaint (SAC) alleged 11 causes of action against defendants Covenant Transport Solutions, Inc. and Covenant Transportation Group (collectively “Covenant”). The trial court sustained Covenant's demurrer to 10 of those causes of action without leave to amend and granted Covenant's motion for summary judgment as to the remaining cause of action for unjust enrichment. Comella appeals the summary judgment ruling, contending Covenant failed to meet its burden of proof under Code of Civil Procedure section 437c. We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
Comella and John Zaverl were co-shareholders in Zavcom, Ltd. (Zavcom). In 2010, Zavcom and Covenant executed a Freight Agency Agreement (FAA) whereby Zavcom procured customer orders for freight transportation and then booked the loads through Covenant's system. Covenant invoiced the customers, paid the hauling fees and assumed responsibility for collections in exchange for a percentage of the booking revenue.
Comella filed this action against Covenant and others, alleging they breached or interfered with the FAA and other unspecified written and oral agreements. The trial court sustained Covenant's demurrers to the original complaint and first amended complaint with leave to amend.
The SAC includes causes of action for (1) conversion, (2) breach of fiduciary duty, (3) breach of contract, (4) intentional interference with contractual relationships, (5) interference with prospective economic advantage, (6) defamation, (7) unfair business practices, (8) unjust enrichment, (9) an accounting, (10) fraud and (11) negligence. The trial court sustained, without leave to amend, Covenant's demurrer to all but the eighth cause of action for unjust enrichment. It stated: “There is some inconsistency in the law with respect to whether ‘unjust enrichment' is really a cause of action, a form of restitution or some sort of relief given in quasi-contract. The court is not persuaded that ‘unjust enrichment' can never be a standalone cause of action. In respect to [Covenant] and the 8th cause of action, this ruling is without prejudice to [Covenant] contesting this cause of action at trial or by different and further pleading under a different legal theory than the one argued in the demurrer.”
Covenant moved for summary judgment on the unjust enrichment cause of action. Comella did not file an opposition to the motion but his attorney was “allow[ed]... to present a brief oral opposition” at the hearing. There is no record of that oral proceeding.
The trial court granted the motion, noting that “[a] quasi-contractual remedy... is not available if there is a binding contract between the parties. [Citation.] It is materially undisputed that a binding agreement exists between Covenant and Comella, thus eliminating the equitable remedy of unjust enrichment arising from an implied, quasi-contract obligation.”
DISCUSSION
Comella contends the trial court erred in granting the summary judgment motion because there is no evidence of a binding express contract between him and Covenant. Covenant argues the judgment must be affirmed because, among other things, California does not recognize a separate cause of action for unjust enrichment.
Standard of Review
A motion for summary judgment is properly granted only when “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) The moving defendant “bears the initial burden of proving the ‘cause of action has no merit' by showing that one or more elements of plaintiff's cause of action cannot be established there is a complete defense. [Citations.] Once the defendant's burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. [Citation.]” (Horn v. Cushman & Wakefield Western (1999) 72 Cal.App.4th 798, 805.) “‘We independently review an order granting summary judgment, viewing the evidence in the light most favorable to the nonmoving party.'” (Huang v. Wells Fargo Bank, N.A. (2020) 48 Cal.App.5th 431, 437.)
“On review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the trial court.” (Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 230.) “‘As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed.'” (Ibid.)
Comella Has Not Met His Burden of Affirmatively Demonstrating Error
As the trial court correctly observed, California courts are split on whether a separate cause of action for unjust enrichment exists. (See Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1138 (Levine).) Some courts have recognized a separate cause of action (see Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593), while others have concluded there is no such cause of action. (Levine, at p. 1138). But they generally agree “‘unjust enrichment'” is synonymous with restitution and often treat it as a “quasi-contract claim seeking restitution.” (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231; McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1490.)
Even so, an unjust enrichment claim does not lie “where... express binding agreements exist and define the parties' rights.” (California Medical Assn, Inc. v. Aetna U.S. Healthcare of California, Inc. (2001) 94 Cal.App.4th 151, 172; Hedging Concepts, Inc. v. First Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1420 [“When parties have an actual contract covering a subject, a court cannot -- not even under the guise of equity jurisprudence -- substitute the court's own concepts of fairness regarding that subject in place of the parties' own contract”].)
Here, the trial court determined that “a binding agreement exists between Covenant and Comella, thus eliminating the equitable remedy of unjust enrichment arising from an implied, quasi-contract obligation.” Comella contends the trial court erred because the FAA, which is the only agreement referenced in Covenant's moving papers, does not define his rights because he is not a party to the agreement. That agreement is between Covenant and Viacom.
Covenant argues Comella waived this argument by failing to raise it in the trial court. “‘[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.'” (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11, fn. omitted.) In Bank of America N.A. v. Roberts (2013) 217 Cal.App.4th 1386, the defendant asserted an argument that was not raised in opposition to the summary judgment motion. (Id. at p. 1399.) The Court of Appeal declined to “consider this new argument as it was waived by failure to raise it below.” (Ibid., fn. omitted.) We reach the same conclusion.
Even if Comella had preserved this argument for review, he still would not prevail. As Covenant points out, a quasi-contract claim seeking restitution is unavailable where, as here, the plaintiff has not sufficiently alleged remedies at law, such as contract or tort causes of action. Comella's unjust enrichment claim - his only remaining cause of action - is premised entirely upon factual allegations in the contract and tort claims that were dismissed on demurrer. Comella chose not to amend those causes of action.
In Tindell v. Murphy (2018) 22 Cal.App.5th 1239, the trial court determined the plaintiffs had failed to “adequately [plead] a cause of action for unjust enrichment, rescission, or restitution” because those claims “‘are derivative theories of recovery for other causes of action[] which [p]laintiffs failed to plead on an appropriate factual basis.'” (Id. at p. 1250.) The Court of Appeal affirmed, agreeing “[t]hese causes of action are based on the same facts as the [other] causes of action, which we also find deficient.” (Ibid.)
Similarly, in Levine, the plaintiffs alleged it was unjust for the defendant “to retain premiums collected through ‘fraud, negligent misrepresentation, and violation of California's [Unfair Competition Law].'” (Levine, supra, 189 Cal.App.4th at p. 1138.) After upholding the order sustaining the demurrer to those causes of action, the Court of Appeal concluded the plaintiffs “have not demonstrated any basis on which they would be entitled to restitution pursuant to a theory of unjust enrichment.” (Ibid.; see De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 870 [“Because [the plaintiff's] right of publicity and false light claims fail, her unjust enrichment claim fails as well”].
Thus, in the absence of allegations or evidence of an “actionable wrong, ” Comella has failed to demonstrate a triable issue of material fact regarding his unjust enrichment claim. (Hill v. Roll Internat. Corp. (2011) 195 Cal.App.4th 1295, 1307.) We conclude the motion for summary judgment was properly granted.
DISPOSITION
The judgment is affirmed. Covenant shall recover its costs on appeal.
We concur: GILBERT, P. J. YEGAN, J.