Russell v. Maman

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA — 9 — STEPHEN RUSSELL, 10 Case No. 18-cv-06691-RS Plaintiff, — 11 — v. ORDER DENYING PARTIAL MOTION 12 FOR SUMMARY JUDGMENT RYAN MICHELETTI, et al., — 13 — Defendants. — 14 — 15 I. INTRODUCTION1 16 Thinking he was in danger as a result of his business dealings in Russia and Ukraine, 17 Plaintiff Stephen Russell (“Plaintiff”) hired various security personnel to ensure his safety. 18 Plaintiff met with Defendant Ryan Micheletti in late 2017 and eventually hired Micheletti and the 19 company he owned, Legion Industries, Inc., d/b/a/ Shield Corps Security (together, “Moving 20 Defendants”) in February of 2018 for security consulting services, which included a security 21 assessment for the client’s protection and risk mitigation, and negotiation for third-party, 22 subcontracted protection services. The contract between Plaintiff and Moving Defendants had a 23 term from February 9, 2018 to February 28, 2018, but would “automatically renew itself” on a 24 weekly basis, subject to termination in writing with 24-hour notice. See Dkt. 288, Exhibit A – 25 Security Consulting Agreement (“SCA”). Plaintiff also hired George Akkelquist, a self-described — 26 — 1 Familiarity with the factual and procedural background, which was set forth in detail in the prior — 27 — Order Granting Motions for Summary Judgment, Dkt. 261, is presumed. As such, only a brief 1 expert in Countering Violent Extremists, and Nir Maman, a former high-ranking Mossad officer 2 who was described as Akkelquist’s right-hand man, after being introduced by Micheletti. 3 Plaintiff eventually became dissatisfied, however, suspecting that he was being 4 bamboozled: over the course of a few months, Plaintiff had spent nearly two million dollars on 5 security services, and a dispute arose between Plaintiff and Defendant Maman regarding an 6 allegedly unauthorized wire transfer of a million dollars. Plaintiff then brought suit against 7 Moving Defendants and the others he had hired—Akkelquist, Maman and the companies they 8 each owned (altogether, “Defendants”)—alleging 10 claims of relief, ranging from RICO to 9 breach of contract to unfair business practices. 10 Of present concern is a motion for summary judgment brought by Moving Defendants on 11 Plaintiff’s first, fifth, sixth, seventh, and ninth claims for relief (RICO, breach of contract, unjust 12 enrichment, common count, and UCL, respectively). For the reasons that follow, the motion for 13 summary judgment on those claims is denied.2 14 II. LEGAL STANDARD 15 Summary judgment is proper “if the movant shows that there is no genuine dispute as to 16 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 17 The purpose of summary judgment “is to isolate and dispose of factually unsupported claims or 18 defenses[.]” Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). The moving party “always bears the 19 initial responsibility of informing the district court of the basis for its motion, and identifying 20 those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, 21 together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of 22 material fact.” Id. at 323 (internal quotation marks omitted). If it meets this burden, the moving — 23 — 24 2 In a repeat offense, the Parties again each provided a table of “undisputed facts” along with their briefs. Both Parties also failed to adhere to Local Rule 3-4(c), regarding the general requirements 25 for any papers presented for filing. Though failure to comply with the Local Rules was waived in the previous motion for summary judgment, such repeated violations will not be entertained, 26 particularly as all Parties in the case were on notice. Accordingly, the tables were not considered in the adjudication of this motion, and counsel are again warned that future violations will not be 27 countenanced, and will be subject to sanction. 1 party is then entitled to judgment as a matter of law when the non-moving party fails to make a 2 sufficient showing on an essential element of the case with respect to which it bears the burden of 3 proof at trial. Id. at 322-23 . 4 To preclude the entry of summary judgment, the non-moving party must bring forth 5 material facts—that is, “facts that might affect the outcome of the suit under the governing law[.]” 6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The opposing party “must do more 7 than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. 8 Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). The trial court must “draw all justifiable 9 inferences in favor of the nonmoving party, including questions of credibility and of the weight to 10 be accorded particular evidence.” Masson v. New Yorker Mag., Inc., 501 U.S. 496, 520 (1991) 11 (citing Anderson, 477 U.S. at 255 ). “Where the record taken as a whole could not lead a rational 12 trier of fact to find for the non-moving party,” however, “there is no ‘genuine issue for trial.’” 13 Matsushita, 475 U.S. at 587 . 14 III. DISCUSSION 15 A. First Claim for Relief: RICO Claim ( 18 U.S.C. §§ 1961 et seq.) 16 In order to prevail on a RICO claim pursuant to 18 U.S.C. § 1962 (c), a plaintiff must 17 prove: “(1) the conduct of (2) an enterprise that affected interstate commerce (3) through a pattern 18 (4) of racketeering activity or collection of unlawful debt, . . . [and] the conduct must [have] 19 be[en] (5) the proximate cause of harm to the victim.” Eclectic Props. E., LLC v. Marcus & 20 Millichap Co., 751 F.3d 990, 997 (9th Cir. 2014). 21 Moving Defendants argue summary judgment is warranted on Plaintiff’s RICO claim as a 22 result of four deficiencies: (1) Moving Defendants did not have any part in the operation or 23 management of the enterprise itself, thereby failing the first conduct element; (2) Moving 24 Defendants were not a continuing unit with other Defendants, thereby failing to constitute an 25 association-in-fact enterprise; (3) Plaintiff has not proven two predicate acts, thereby failing to 26 satisfy the “pattern of racketeering activity”; and (4) Moving Defendants had no knowledge of any 27 scheme, and therefore could not have agreed to further any such alleged scheme. 1 1. Conduct 2 In order “to conduct or participate, directly or indirectly, in the conduct of such enterprise's 3 affairs” pursuant to § 1962(c), “one must participate in the operation or management of the 4 enterprise itself.” Reves v. Ernst & Young, 507 U.S. 170, 185 (1993). According to Moving 5 Defendants, “Micheletti’s role was limited to logistics” and he had no personal knowledge of the 6 threats against Plaintiff, Dkt. 288 at 8; and Legion was “to provide security consult services only,” 7 but its interactions with Plaintiff were “short-lived” because soon after sub-contracting with 8 CT707, Plaintiff “dealt directly with CT707” and “Legion was not involved.” Id. 9 Reves fails to be dispositive of the issue. Though the case affirmed summary judgment 10 dismissing a RICO claim against an outside accounting firm, the scope of conduct alleged is 11 distinguishable. The accounting firm’s involvement was entirely “limited to the audits” and 12 presentations and explanations of said audits. Arthur Young & Co. v. Reves, 937 F.2d 1310 , 1324 13 (8th Cir. 1991). Defendants’ conduct, however, cannot be said to be so circumscribed. Defendant 14 Micheletti had a role in bringing together the alleged participants of the enterprise—such as 15 Micheletti’s role in referring Plaintiff to Mr. Akkelquist and Mr. Maman, or Legion’s role in 16 subcontracting with CT707. In addition to serving as the alleged “architect” of the enterprise, 17 Plaintiff also claims that all Defendants were required to operate through Legion’s license and 18 insurance, and identifies evidence in the record that Micheletti’s activities expanded beyond mere 19 logistics to investigation and other direction and delegation. See Dkt. 293 at 2-3. Viewing the 20 evidence in the light most favorable to the nonmoving party,3 these would constitute some of the 21 ways in which Moving Defendants might have “exert[ed] control over [the enterprise],” Reves, — 22 — 507 U.S. at 184 , and were “indispensable to achievement of the enterprise's goal.” Walter v. 23 Drayson, 538 F.3d 1244, 1249 (9th Cir. 2008). — 24 — — 25 — 3 The alternate explanations that Moving Defendants proffer—that Micheletti did not convince 26 Plaintiff he was in danger in the first place, or that Micheletti made the referrals only because of his lack of experience and not any nefarious aim, and only relied on other Defendants—are either 27 irrelevant or improper to credit over plausible competing evidence from Plaintiff at this stage. 1 2. Enterprise 2 Responding to Plaintiff’s allegation of an “association-in-fact” enterprise that includes 3 “Maman, Akkelquist, Micheletti, CT 707, DFW MTA, Shield, and Legion,” Dkt. 93 at 18, 4 Moving Defendants next argue that Plaintiff has failed to show an enterprise, the second required 5 element of a RICO claim, as Akkelquist, Maman, and Micheletti “did not function as a continuing 6 unit.” Dkt. 288 at 9. In support, they claim Plaintiff ceased working with Micheletti in late March 7 2018, when Plaintiff contracted directly with Maman, over which Moving Defendants had no 8 control or involvement. 9 An association-in-fact enterprise is established where a plaintiff alleges (1) a common 10 purpose of engaging in a course of conduct; (2) an ongoing organization, either formal or 11 informal; and (3) facts that the associates function as a continuing unit. Odom v. Microsoft Corp., — 12 — 486 F.3d 541, 552-53 (9th Cir. 2007). As Plaintiff correctly notes, the relevant question for the 13 third requirement of a “continuing unit” is “whether the associates’ behavior was ‘ongoing’ rather 14 than isolated activity,” Odom, 486 F.3d at 553 (citation omitted), and whether there was sufficient 15 “longevity necessary to accomplish the purpose.” Eclectic Props., 751 F.3d at 997 (citation 16 omitted). As a result, “[c]ourts often look to the length of time that the associates have interacted 17 to determine whether they functioned as a continuing unit.” Hopkins v. Am. Home Mortg. 18 Servicing, Inc., No. 13-4447 RS, 2014 WL 580769 , at *5 (N.D. Cal. Feb. 13, 2014); see also 19 Boyle v. United States, 556 U.S. 938, 946 (2009) (“[A]n ‘enterprise’ must have some longevity, 20 since the . . . provision demands proof that the enterprise had ‘affairs’ of sufficient duration to 21 permit an associate to ‘participate’ in those affairs through ‘a pattern of racketeering activity.’”). 22 Although Moving Defendants insist that each of the individual Defendants had their own 23 independent contracts with Plaintiff, Micheletti himself explains that “even though [Maman and 24 Akkelquist] had separate agreements with [Plaintiff] later on, . . . we really saw this as a team 25 effort.” Micheletti Dep. Tr. at 182:20-22; see also Akkelquist Dep. Tr. 189:13-15 (agreeing that 26 one of Akkelquist’s “goals from the beginning was to operate as a team”); id. at 187:20-189:9 27 (testimony that Micheletti contacted Akkelquist after Plaintiff fired him in order to “try to make 1 things not fall apart to the betterment of everyone . . .” and arguing that “we [Akkelquist, Maman, 2 and Micheletti] shouldn’t leave [Plaintiff] hanging”); id. at 23:9-13 (noting that Micheletti 3 “wanted to be . . . a mediator” and try to resolve the dispute between Defendants and Plaintiff). 4 Further circumstantial evidence also shows that, rather than operating independently, Micheletti 5 would frequently communicate and work together with Akkelquist and Maman on specific issues. 6 See Maman Dep. Tr. at 114:18-25 (“February 1st I received panicked calls from, I believe, both 7 George and Ryan telling me that Russel just fired – terminated his protection detail. We’re not 8 starting tomorrow; we’re starting today. Get your detail on him right now. So we raced to get that 9 done.”). 10 Moreover, as to the timing, there is evidence that Micheletti was involved not only for the 11 three-month period (“from late January 2018 to approximately April 1, 2018”) that Moving 12 Defendants acknowledge they officially worked for Plaintiff, Dkt. 288 at 9, but also in various 13 meetings that extended past the beginning of April. Though not as long as the two years of 14 conduct alleged in Odom, 486 F.3d at 553 , a period of some months is sufficient to withstand 15 summary judgment on the issue, and Moving Defendants cite no authority to the contrary. Cf. 16 Young v. Schultz, No. 22-CV-05203-TSH, 2023 WL 1784758 , at *4 (N.D. Cal. Feb. 6, 2023) 17 (dismissing RICO claim because “one week of arguable collective action cannot plausibly support 18 an ongoing organization”). In light of this evidence, Moving Defendants’ arguments that they 19 were not aware of the specifics of others’ tasks is insufficient to meet their burden. 20 3. Pattern of Racketeering Activity 21 Moving Defendants next argue Plaintiff’s RICO claim fails for a failure to establish a 22 “pattern of racketeering activity”—which requires “at least two acts of racketeering activity” as 23 defined in 18 U.S.C. § 1961 (1) within a span of 10 years, 18 U.S.C. § 1961 (5)—because they 24 “have not engaged in any conduct that could be viewed as a threat of future criminal action.” Dkt. 25 288 at 10. In support, they repeat their allegations that Micheletti’s role was limited to logistics, 26 Micheletti did not have personal knowledge of the threats against Plaintiff, nor did he work with 27 other Defendants in the case prior to 2018 or since October 2018. On these facts, Moving 1 Defendants also argue that Plaintiff cannot prove they knowingly agreed to facilitate a RICO 2 scheme, and are being unjustly associated with the crimes of others. 3 These arguments fail to persuade. First, Plaintiff’s Complaint alleges five predicate acts 4 against all Defendants in the case, only two of which Moving Defendants dispute.4 Having thereby 5 waived their argument about the other three, summary judgment on the RICO claim for failure to 6 allege sufficient predicate acts necessarily fails. 7 Second, with respect to Moving Defendants’ arguments about the two predicate acts 8 actually challenged, they have not proven that Plaintiff has failed to advance either extortion or 9 wire fraud. 18 U.S.C. § 1951 makes it a crime for anyone who “obstructs, delays, or affects 10 commerce […] by robbery or extortion,” where extortion means to obtain property from another 11 individual with their consent, “induced by wrongful use of actual or threatened force, violence, or 12 fear, or under color of official right.” 18 U.S.C. § 1951 (b)(2). Moving Defendants argue that they 13 cannot be guilty of extortion, since Plaintiff’s fears and belief in the threat preexisted their 14 involvement. 15 Though Defendants may not have created Plaintiff’s fear in the first instance, their 16 entertainment of that fear—especially notwithstanding their admitted, complete ignorance of any 17 actual threats facing Plaintiff—wrongfully capitalizes on, and uses, that fear. As Plaintiff argues, 18 “[d]espite having no basis whatsoever to conclude that there were threats against [Plaintiff] . . . , 19 defendants continued to reinforce in [Plaintiff’s] mind that the threats were real”—including, by 20 example, changing a text message from “solid information confirming the threat” to read “We 21 continue to receive alarming reports through the intelligence network about the characters we’ve 22 been investigating.” Dkt. 293 at 8; Micheletti Dep. Tr. at 24:19-25:8; 26:4-17. There are ample 23 examples of Micheletti’s conduct that, further bolstered by evidence about Defendants’ secretive 24 operations and their knowledge of Plaintiff’s wealth and personal background, see Akkelquist — 25 — — 26 — 4 Defendants contest only the claims of Interference of Commerce by Extortion under 18 U.S.C. 27 § 1951 and Wire Fraud under 18 U.S.C. § 1343 . 1 Dep. Tr. at 58:21-59:5 (Micheletti texting Akkelquist that “it turns out [Plaintiff] was one of the 2 first investors in Uber and has made a good amount of money”), raise genuine disputes about 3 material facts relevant to the claim. Contrary to Moving Defendants’ argument, preying on an 4 existing fear is not grounds for exoneration, see, e.g., United States v. Lisinski, 728 F.2d 887 , 891 5 (7th Cir. 1984) (“[T]he exploitation of the victim's reasonable fear constitutes extortion regardless 6 of whether or not the defendant was responsible for creating that fear and despite the absence of 7 any direct threats.”) (citations omitted), and movants are not entitled to judgment as a matter of 8 law on the extortion claim. 9 With respect to mail and wire fraud,5 the elements are “(1) the existence of a scheme to 10 defraud; (2) the use of wire, radio, or television to further the scheme; and (3) a specific intent to 11 defraud.” United States v. Jinian, 725 F.3d 954, 960 (9th Cir. 2013). Moving Defendants argue 12 Plaintiff is unable to show the third—a specific intent to defraud. In particular, they reiterate the 13 claim that Micheletti did not have a background in security services—and therefore “had no 14 reason to doubt” Akkelquist and Maman, to whom he referred Plaintiff on account of the “high 15 praise by mutual connections he trusted,” and on whom he relied. Dkt. 288 at 12-13. 16 As the Ninth Circuit has explained: “Generally, scienter should not be resolved by 17 summary judgment.” Provenz v. Miller, 102 F.3d 1478, 1489 (9th Cir. 1996). Indeed, “[c]ases 18 where intent is a primary issue generally are inappropriate for summary judgment unless all 19 reasonable inferences that could be drawn from the evidence defeat the plaintiff's claim.” Id. 20 (citation omitted). In light of all the evidence discussed above, Moving Defendants are far from 21 meeting this burden of showing that there could be no reasonable inference that they made false 22 statements to Plaintiff with the intent to defraud him. Without even needing to delve into 23 Plaintiff’s argument that Moving Defendants might be vicariously liable for wire fraud for the — 24 — — 25 — 5 Though Defendants only explicitly attack wire fraud, rather than mail fraud, because Plaintiff’s 26 Complaint alleged mail and wire fraud together, and the argument that there was no specific intent to defraud can be equally applied to mail fraud, Defendants’ argument will be construed as 27 applying its argument to both 18 U.S.C. § 1341 and 18 U.S.C. § 1343 . 1 other Defendants’ actions, therefore, summary judgment on Plaintiff’s claims of mail and wire 2 fraud is denied. 3 Finally, Plaintiff correctly notes that the agreement to facilitate the RICO scheme is a 4 requirement under § 1962(d), and Moving Defendants have both misinterpreted and thereby 5 misrepresented the cases they cite. See, e.g., United States v. Fernandez, 388 F.3d 1199, 1230 (9th 6 Cir. 2004) (“Under this test, a defendant is guilty of conspiracy to violate § 1962(c) if the evidence 7 showed that she ‘knowingly agree[d] to facilitate a scheme which includes the operation or 8 management of a RICO enterprise.’”) (quoting Smith v. Berg, 247 F.3d 532 , 538 (3d Cir. 2001)). 9 Accordingly, the motion for summary judgment on Plaintiff’s RICO claim is denied. 10 B. Fifth Claim for Relief: Breach of Contract 11 Moving Defendants claim that Plaintiff: (1) has failed to produce evidence of breach, as 12 they fulfilled their obligations; (2) cannot identify any damages in connection with the agreement; 13 and (3) cannot defeat the limitation of liability included in the contract. 14 Moving Defendants claim they performed according to the contract by providing security15 consulting services, a security assessment, and negotiations for third-party, subcontracted 16 protection services. Plaintiff’s claim is, however, that such services were rendered in name only— 17 that the security assessment provided, for example, was actually worthless on account of Moving 18 Defendants’ admitted total ignorance of the actual facts underlying the credibility of the threat. In 19 response to Plaintiff’s argument that Moving Defendants’ actions thereby violated the duty of 20 good faith and fair dealing—inherent in every contract—their only response is that they did not act 21 in bad faith, because they had a reasonable basis to believe the information they received. 22 A doctrine that is “aimed at making effective the agreement's promises,” the duty of good 23 faith and fair dealing “imposes upon each party the obligation to do everything that the contract 24 presupposes they will do to accomplish its purpose.” Careau & Co. v. Sec. Pac. Bus. Credit, Inc., — 25 — 222 Cal. App. 3d 1371, 1393 (1990) (cleaned up). Whether Moving Defendants’ contractual 26 obligation to provide services, such as a security assessment, necessitated at least some bare 27 minimum of verification of the supposed threat is an issue on which there is genuine dispute. 1 Given the evidence in the record, summary judgment on this claim is inappropriate. This is also 2 true of Moving Defendants’ claim that Plaintiff is unable to identify damages, in light of the 3 considerable sum of money that Plaintiff paid for the services described in the contract. 4 Their remaining argument, that Plaintiff’s claim is precluded by the Limitation of Liability 5 for Loss provision, also fails to persuade. That section reads as follows: 6 6.1 The parties acknowledge that LEGION INDUSTRIES has been retained to provide consulting services to Client as a deterrent against loss and/or damage from 7 criminal and/or other prohibited acts and not as an insurer against all or any such loss or damage. — 8 — 6.2 Client acknowledges and agrees that LEGION INDUSTRIES is making no 9 guarantee or warranty – either expressed or implied – that its consulting services will absolutely avert and/or prevent all or any loss or damage. — 10 — 6.3 Client agrees that it will hold harmless and indemnify LEGION INDUSTRIES, 11 its employees, officers, subcontractors, agents and assignees, against all losses and damages to the suffered by Client [sic] or any third party as the result of ordinary 12 negligence and/or any and all occurrences beyond LEGION INDUSTRIES’s reasonable control. — 13 — 14 SCA, Section 6. Moving Defendants explain that Plaintiff accepted the fact that there were no 15 guarantees that consulting services would avert damage; Plaintiff’s claims sounding in negligence 16 beyond Legion’s reasonable control are barred; and Plaintiff must indemnify and hold Defendants 17 harmless for claimed damages. Yet these arguments misapprehend the limitations as written. The 18 thrust of Sections 6.1 and 6.2 is the limitation on liability arising from any damage that might arise 19 from the threat against which Defendants were hired to detect, assess, and protect against, not 20 Defendants themselves. 21 As for Section 6.3, Plaintiff’s allegations are that the harm suffered from Defendants were 22 within their control. Moving Defendants’ arguments about their own ignorance does not clearly 23 establish that their reliance on other Defendants, as well as failure to engage in verification on 24 their own, was “beyond [their] reasonable control.” Plaintiff, moreover, also argues certain 25 provisions of the section are unconscionable. With no argument refuting this charge—and given 26 that California law renders limitations provisions unenforceable against claims for fraud or willful 27 injury, see Cal. Civ. Code § 1668 (“All contracts which have for their object, directly or indirectly, 1 to exempt anyone from responsibility for his own fraud, or willful injury to the person or property 2 of another, or violation of law, whether willful or negligent, are against the policy of the law.”)— 3 Plaintiff is not incorrect as a matter of law. See also City of Santa Barbara v. Superior Ct., 41 Cal. 4 4th 747, 763 (2007) (“Any exculpatory clause (even one releasing liability for future ordinary 5 negligence) is unenforceable if it relates to a transaction that adequately . . . ‘affects the public 6 interest.’”). Plaintiff’s claim for breach of contract therefore survives Moving Defendants’ 7 summary judgment motion. 8 C. Sixth Claim for Relief: Unjust Enrichment 9 Moving Defendants seek summary judgment on Plaintiff’s unjust enrichment claim on the 10 grounds that California law does not recognize a standalone claim for unjust enrichment, and the 11 claim therefore falls with Plaintiff’s breach of contract claim. As noted above, however, Plaintiff’s 12 contract claim survives. Moreover, while it is true that “in California, there is not a standalone 13 cause of action for ‘unjust enrichment,’” Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753 , 762 14 (9th Cir. 2015), “[w]hen a plaintiff alleges unjust enrichment, a court may ‘construe the cause of 15 action as a quasi-contract claim seeking restitution.’” Id. (quoting Rutherford Holdings, LLC v. 16 Plaza Del Rey, 223 Cal. App. 4th 221, 231 (2014)). As Moving Defendants here do not address 17 the substance of the unjust enrichment claim itself, they have no answer for the evidence in the 18 record that could lead to a conclusion that they “received and unjustly retained a benefit at the 19 plaintiff's expense.” ESG Cap. Partners, LP v. Stratos, 828 F.3d 1023, 1038 (9th Cir. 2016). 20 Accordingly, Moving Defendants have failed to meet their burden on summary judgment and the 21 claim may proceed, “subject to being folded into other substantive claims upon being further 22 refined.” Effinger v. Ancient Organics LLC, No. 22-CV-03596-RS, 2023 WL 2214168 , at *7 23 (N.D. Cal. Feb. 24, 2023). 24 D. Seventh Claim for Relief: Common Count 25 Under California law, “[a] common count is not a specific cause of action . . . rather, it is a 26 simplified form of pleading normally used to aver the existence of various forms of monetary 27 indebtedness[.]” McBride v. Boughton, 123 Cal. App. 4th 379, 394 (2004). To plead a common 1 count, a plaintiff must allege: (1) the statement of indebtedness in a certain sum, (2) the 2 consideration (i.e., goods sold, work done, etc.), and (3) nonpayment. Farmers Ins. Exch. v. Zerin, — 3 — 53 Cal. App. 4th 445, 460 (1997). A cause of action for money had and received is stated if it is 4 alleged the defendant is indebted to the plaintiff in a certain sum for money had and received by 5 the defendant for the use of the plaintiff. Id. For example, a California court found a complaint to 6 have effectively stated a cause of action for money had and received where it alleged that 7 plaintiff's contingent fee agreement between his attorney and himself was void for illegality. 8 Schultz v. Harney, 27 Cal. App. 4th 1611, 1623 (1994). When a common count is used as an 9 alternative way of seeking the same recovery demanded in a specific claim, and is based on the 10 same facts, it stands or falls with the underlying claim. McBride, 123 Cal. App. 4th at 394-95 ; see 11 also Fed. R. Civ. P. 8(d)(2). 12 Moving Defendants argue Russell has failed to plead an indebtedness for a certain sum 13 sought, as Plaintiff alleges only that he lost over $1.8 million to Defendants, but fails to furnish 14 specifics as to how much each Defendant was paid, and what such payments were for. These 15 arguments are not persuasive, particularly considering Moving Defendants’ contentions in the 16 record about the services they rendered, and the evidence that certain Defendants refused to 17 provide a more detailed accounting for the sums they received from Plaintiff. As the common 18 count could serve as an alternative cause of action for the breach of contract or unjust enrichment 19 claims, and Moving Defendants have not explained how their arrangement with Plaintiff qualifies 20 as an open book account that would preclude recovery under Martini E Ricci Iamino S.P.A. - 21 Consortile Societa Agricola v. Trinity Fruit Sales Co., 30 F. Supp. 3d 954, 976 (E.D. Cal. 2014); 22 see also Cal. Civ. Proc. Code § 337a (defining “book account”), the motion for summary 23 judgment on the common count fails. 24 E. Ninth Claim for Relief: Unfair Competition Law (“UCL”) 25 Moving Defendants argue they are entitled to summary judgment on Plaintiff’s UCL claim 26 because Plaintiff “has not and cannot cite to any unfair, deceptive, untrue, or misleading 27 statement,” Dkt. 288 at 17, and because Plaintiff cannot prove he has sustained a pecuniary injury, 1 as the contract governing the Parties’ relationship releases liability precluding Plaintiff from 2 recovering damages. 3 The UCL “bars ‘unfair competition’ and defines the term as a ‘business act or practice’ 4 that is (1) ‘fraudulent,’ (2) ‘unlawful,’ or (3) ‘unfair.’ ” Shaeffer v. Califia Farms, LLC, 44 Cal. 5 App. 5th 1125, 1135 (2020). “Each is its own independent ground for liability under the unfair 6 competition law, but their unifying and underlying purpose is to protect both consumers and 7 competitors by promoting fair competition in commercial markets for goods and services.” Id. 8 (internal quotation marks and citations omitted). To bring a claim under the UCL, a plaintiff must 9 “(1) establish a loss or deprivation of money or property sufficient to quantify as injury in fact, 10 i.e., economic injury, and (2) show that the economic injury was the result of, i.e., caused by, the 11 unfair business practice.” Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 322 (2011); see 12 also Cal. Bus. & Prof. Code § 17204 . 13 Moving Defendants’ general attacks on Plaintiff’s UCL claim are ineffective. The evidence 14 sustaining Plaintiff’s other claims for relief, including but not limited to the claims of extortion 15 and fraud, undoubtedly raise a genuine dispute of material fact as to whether Defendants have 16 engaged in conduct that was unfair, deceptive, untrue, or misleading, and could sustain Plaintiff’s 17 UCL claim. As to the economic injury, there are “innumerable ways in which economic injury 18 from unfair competition may be shown,” and the evidence in the record discussed thus far could 19 support, for example, the theory that Plaintiff might have “surrender[ed] in a transaction more, or 20 acquire in a transaction less, than he or she otherwise would have,” or was “required to enter into a 21 transaction, costing money or property, that would otherwise have been unnecessary.” Kwikset, 51 22 Cal. 4th at 323. Moving Defendants fail to show, as a matter of law, that no reasonable factfinder 23 could find liability under the UCL from the facts in the record—and therefore summary judgment 24 on this claim is also denied. 25 IV. CONCLUSION 26 For the reasons discussed above, the motion for summary judgment is denied. — 27 — 1 IT IS SO ORDERED. — 2 — 3 Dated: March 23, 2023 — 4 — RICHARD SEEBORG 5 Chief United States District Judge — 6 — — 7 — — 8 — — 9 — — 10 — — 11 — — 12 — — 13 — © — 15 — — 16 — = 17 Z 18 — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — 28 ORDER DENYING PARTIAL MOTION FOR SUMMARY JUDGMENT CASE No. 18-cv-06691-RS