Hrg 81318 Mil No 1 To Exclude Evidence Re Unjust Enrichment

Motion

Cal. Super. - 6th Dist.December 14, 2016

AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 NOSSAMAN LLP BRENDAN F. MACAULAY (SBN 162313) bmacaulay @nossaman.com 50 California Street, 34th Floor San Francisco, CA 94111 Telephone: 415.398.3600 Facsimile: 415.398.2438 Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/3/2018 4:39 PM Reviewed By: R. Aragon Case #16CV303987 Envelope: 1799936 Attorneys for Cross-Complainants COCO’S RESTAURANTS, LLC, CATALINA RESTAURANT GROUP INC. and FOOD MANAGEMENT PARTNERS SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA LEGACY GOLDEN STATE, LLC, Plaintiff, VS. COCO’S RESTAURANTS, INC., a California corporation; FOOD MANAGEMENT PARTNERS, a Texas corporation; MIZU SUSHI BAR & GRILL, INC., a California corporation, and DOES 1 through 15, Defendants. AND RELATED CROSS-ACTIONS. Case No: 16-CV-303987 Assigned for all purposes to: James L. Stoelker COCO’S RESTAURANTS, LLC’S MOTION IN LIMINE NO. 1 MOTION IN LIMINE TO EXCLUDE EVIDENCE, ARGUMENT, OR REFERENCE TO MIZU SUSHI BAR & GRILL’S “UNJUST ENRICHMENT/ RESTITUTION” CLAIM Date Action Filed: December 14, 2016 Trial Date: August 13, 2018 MOTION IN LIMINE #1 TO EXCLUDE EVIDENCE RE THE UNJUST ENRICHMENT CLAIM 56555405.v1 AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cross-Complainant Coco’s Restaurants, LLC (“Coco’s”) and Catalina Restaurant Group (“Catalina”) (collectively “Cross-Complainants”) request that this Court order the exclusion of any and all evidence, including information, testimony, reference, and documents, and argument related to Cross-Defendant Mizu Sushi Bar & Grill, Inc.’s (“Mizu”) “unjust enrichment/ restitution” claim. Cross-Complainants seek this order on the ground that unjust enrichment/restitution is not a cause of action, it is a remedy. Thus, any evidence related to this purported claim is clearly irrelevant to the underlying issues in this case and unfounded contentions that Cross-Complainants have been “unjustly enriched” creates a substantial danger of undue prejudice. I. LEGAL ARGUMENT A. Motions in Limine Are A Valuable Tool And Are Essential In This Case to Seek To Manage Properly The Evidence And Prevent Undue Prejudice. Motions in limine serve a dual purpose. First, on important evidentiary matters, a motion in limine allows the trial judge to review carefully the issues at hand. (Ladas v. California State Auto Assn. (1993) 19 Cal.App.4th 761, 769 [trial court excluded parol evidence after a three day hearing at which witnesses were called and evidence submitted]). Second, and perhaps more importantly, a motion in limine avoids the necessity of objecting in front of the jury and attempting to unring the bell after a prejudicial reference to inadmissible evidence. “The advantage of such motions is to avoid the obviously futile attempt to ‘unring the bell” in the event a motion to strike is granted in the proceedings before the jury.” (Hyatt v. Sierra Boat Company (1978) 79 Cal.App.3d 325, 337). B. Unjust Enrichment Is Not A Cause Of Action, It Is A Remedy. Mizu’s cross-complaint contains a cause of action called “Unjust Enrichment/ Restitution.” This claim is not a stand-alone cause of action in California. As the Court explained in Levine v. Blue Shield of California (2011) 189 Cal. App. 4th 1117: Although some California courts have suggested the existence of a separate cause of action for unjust enrichment (Peterson v. Cellco Partnership[1] (2008) 164 Cal. App.4th 1583, 1593, [...] [listing elements]), this court has recently held that " '[t]here is no cause of _2- MOTION IN LIMINE #1 TO EXCLUDE EVIDENCE RE THE UNJUST ENRICHMENT CLAIM 56555405.v1 AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 action in California for unjust enrichment.’ [Citations.] Unjust enrichment is synonymous with restitution. [Citation.]" (Durell, supra, 183 Cal. App.4th at p. 1370 [...]) Thus, the Levines' unjust enrichment claim does not properly state a cause of action. Id. at 1138. Similarly, in Durell v. Sharp Healthcare (2010) 183 Cal. App.4th 1350, the Court reiterated: “[T]here is no cause of action in California for unjust enrichment.” (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793 [...]; see McKell v. Washington Mutual, Inc., supra, 142 Cal.App.4th 1457, 1490.) Unjust enrichment is synonymous with restitution. (Dinosaur Development, Inc. v. White (1989) 216 Cal.App.3d 1310, 1314 [...].) Id. at 1370. See also, McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1490 (“there is no cause of action for unjust enrichment. Rather, unjust enrichment is a basis for obtaining restitution based on quasi-contract or imposition of a constructive trust.”). Moreover, “[t]here is no freestanding cause of action for ‘restitution’ in California,” as held in Munoz v. MacMillan (2011) 195 Cal. App.4th 648, 661, citing, Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793. Because a cause of action for “unjust enrichment/restitution” does not exist, all evidence, including information, testimony, reference, and documents, and argument related to this purported claim should be excluded from trial. Cross-Complainants’ counsel meet and conferred with Mizu’s counsel prior to filing this Motion. Cross-Complainants provided the clear authority holding that unjust enrichment and restitution are not causes of action, but Mizu claimed there is a split of authority in California on this issue. Not so. The two cases Mizu relied upon actually support the notion that unjust enrichment is a remedy, not a cause of action. See Dunkin v. Boskey (2000) 82 Cal. App.4th 171, 195-198 and Hernandez v. Lopez (2009) 180 Cal. App.4th 932, 938-939 Dunkin v. Boskey (2000) 82 Cal.App.4th 171 involved a family law dispute. There, the court declined to award contract damages holding that it was a violation of public policy to award damages based on a contract in which a father agreed to care for a child. Id. at 190-191. But, in a section of the opinion titled “The Remedies Available to Appellant,” the court recognized that the father was not without remedy and held that he was entitled to damages -3. MOTION IN LIMINE #1 TO EXCLUDE EVIDENCE RE THE UNJUST ENRICHMENT CLAIM 56555405.v1 AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pursuant to an unjust enrichment theory. Id. at 196 (emphasis added). Similarly, the court in Hernandez v. Lopez (2009) 180 Cal.App.4th 932, 938-939, addressed the availability of unjust enrichment as a remedy in the context of a quasi-contract claim. The court there explained, “[t]he phrase “Unjust Enrichment” does not describe a theory of recovery, but an effect”, i.e., a remedy. Id. at 939. C. Evidence That Is Unduly Prejudicial Should Be Excluded From Trial. Evidence Code section 352 grants the Court discretion to exclude evidence if “its probative value is substantially outweighed by the probability that its admission will ... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” “That balancing process requires consideration of the relationship between the evidence and the relevant inferences to be drawn from it, whether the evidence is relevant to the main or only a collateral issue, and the necessity of the evidence to the proponent’s case.” (Kessler v. Gray (1978) 77 Cal.App.3d 284, 291.) The balancing test the court must apply depends on the unique facts and issues of each case. (/bid.) The “prejudice” Section 352 refers to connotes a sense of unfairness. “In general, evidence is substantially more prejudicial than probative if it creates an intolerable risk to the fairness of the proceedings or the reliability of the outcome.” (Phillips v. Honeywell Intern., Inc. (2017) 9 Cal.App.5th 1061, 1081.) The “ultimate object” of Section 352 is to eliminate prejudice and provide fairness to all parties involved in a lawsuit. (People v. Harris (1998) 60 Cal. App.4th 727, 736.) Here, evidence or argument related to Mizu’s purported unjust enrichment/restitution theory has no relevance to the underlying claims and/or defenses in this case. Thus, any evidence related to that purported claim would only confuse the jury and would distract it from the main issue at hand. Moreover, such evidence or arguments that Cross-Complainants has been unjustly enriched could be used as improper character evidence, unduly prejudicing Cross- Complainants. Thus, introduction of such evidence or argument is not warranted under Evidence Code section 352. I" 4 MOTION IN LIMINE #1 TO EXCLUDE EVIDENCE RE THE UNJUST ENRICHMENT CLAIM 56555405.v1 II. CONCLUSION For all of the above reasons, Cross-Complainants respectfully ask this Court to order the exclusion of any and all evidence, including information, testimony, reference, and documents, and argument related to Mizu’s purported “unjust enrichment/restitution” claim. AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: August 3, 2018 NOSSAMAN LLP BRENDAN F. MACAULAY By: /s/ Brendan F. Macaulay Brendan F. Macaulay Attorneys for Cross-Complainants COCO’S RESTAURANTS, LLC, CATALINA RESTAURANT GROUP INC. and FOOD MANAGEMENT PARTNERS -5- MOTION IN LIMINE #1 TO EXCLUDE EVIDENCE RE THE UNJUST ENRICHMENT CLAIM 56555405.v1 AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Electronically filed by Superior Court of CA, County of Santa Clara, on 8/3/2018 4:39 PM PROOF OF SERVICE Reviewed By:R. Aragon Case #16CV303987 The undersigned declares: Env #1799936 I am employed in the County of San Francisco, State of California. I am over the age of 18 and am not a party to the within action; my business address is c/o Nossaman LLP, 50 California Street, 34th Floor, San Francisco, CA 94111. On August 3, 2018, I served the foregoing COCO’S RESTAURANTS, LLC'S MOTION IN LIMINE NO. 1 on parties to the within action as follows: [] (By U.S. Mail) On the same date, at my said place of business, Copy enclosed in a sealed envelope, addressed as shown on the attached service list was placed for collection and mailing following the usual business practice of my said employer. I am readily familiar with my said employer's business practice for collection and processing of correspondence for mailing with the United States Postal Service, and, pursuant to that practice, the correspondence would be deposited with the United States Postal Service, with postage thereon fully prepaid, on the same date at San Francisco, California. [] (By Facsimile) I served a true and correct copy by facsimile pursuant to C.C.P. 1013(e), to the number(s) listed on the attached sheet. Said transmission was reported complete and without error. A transmission report was properly issued by the transmitting facsimile machine, which report states the time and date of sending and the telephone number of the sending facsimile machine. A copy of that transmission report is attached hereto. [] (By Overnight Service) I served a true and correct copy by overnight delivery service for delivery on the next business day. Each copy was enclosed in an envelope or package designated by the express service carrier; deposited in a facility regularly maintained by the express service carrier or delivered to a courier or driver authorized to receive documents on its behalf; with delivery fees paid or provided for; addressed as shown on the accompanying service list. “ (By Electronic Service) Pursuant to California Rules of Court, rules 2.251(a)(2) and 2.251(a)(3), by submitting an electronic version of the document(s) to One Legal, through the user interface at www.onelegal.com, I caused the document(s) to be sent to the person(s) listed on the attached service list. [] (By Electronic Service) By emailing true and correct copies to the persons at the electronic notification address(es) shown on the accompanying service list. The document(s) was/were served electronically and the transmission was reported as complete and without error. Executed on August 3, 2018. M (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. /s/ Anthony Levintow Anthony Levintow 1 PROOF OF SERVICE 47969197.v1 AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Christian E. Picone Michael J. Cheng Debra Troy Donna Olson Nicole Packer BERLINER COHEN, LLP Ten Almaden Boulevard Eleventh Floor San Jose, CA 95113-2233 Tel.: 408-286-5800 Fax: 408-998-5388 christian.picone @berliner.com michael.cheng@berliner.com debra.troy @berliner.com donna.olson @berliner.com nicole.packer @berliner.com Attorneys for Defendant Mizu Sushi Bar & Grill, Inc. SERVICE LIST i. 47969197.v1 PROOF OF SERVICE