Filed 8/25/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

JUSTIN LEBRUN et al.,

Plaintiffs and Appellants,

v.

CBS STUDIOS INC.,

Defendant and Respondent.

 B309423

 (Los Angeles County

 Super. Ct. No. 20STCV19752)

APPEAL from a judgment of the Superior Court of Los Angeles 

County, Terry Green, Judge. Affirmed.

Werksman Jackson & Quinn and Caleb E. Mason for Plaintiffs 

and Appellants.

Sklar Kirsh, Jessica Pettit and Justin M. Goldstein for Defendant 

and Respondent. 
2

Code of Civil Procedure1 section 361 provides (with exceptions not 

relevant here) that “[w]hen a cause of action has arisen in another 

State, . . . and by the laws thereof an action thereon cannot there be 

maintained against a person by reason of the lapse of time, an action 

thereon shall not be maintained against him in this State.” In the 

present case, plaintiffs Justin LeBrun, Bradford Roublow, and Suleman 

Virani, all Louisiana residents at the time of the relevant events, seek 

to recover damages in California from defendant CBS Television 

Studios, Inc. (CBS), based upon fraudulent representations and/or 

omissions that were made to them in Louisiana, and that caused them 

harm there. If the lawsuit is deemed to have “arisen” in Louisiana, it is 

barred by section 361, because the one-year Louisiana statute of 

limitations expired before the filing of the action. Plaintiffs contend, 

however, that their causes of action against CBS arose in California, 

because the fraud committed in Louisiana allegedly was ratified by 

CBS’s conduct in California. Therefore, according to plaintiffs, the more 

lenient California limitations period applies, and their action is timely.2 

We hold (as did the trial court) that the causes of action arose in 

Louisiana, and that they are barred by the Louisiana statute of 

limitations. We also conclude that plaintiffs cannot state a valid claim 

1 Further undesignated statutory references are to the California Code of 

Civil Procedure.

2 The statute of limitations applicable to fraud claims in California is 

three years. (§ 338, subd. (d).) Plaintiffs’ complaint was filed slightly less 

than three years after their claims accrued.
3

for unjust enrichment based upon the facts of this case. Therefore, we 

affirm the judgment of dismissal.

BACKGROUND

A. Factual Background

The claims alleged in this case are based upon the filming of a 

scene depicting an armed robbery of a jewelry store for the CBS 

television show, NCIS: New Orleans. The following factual background 

is taken from the allegations of the first amended complaint, which 

allegations we assume are true under the standard of review applicable 

to our review of a trial court’s ruling on a demurrer. (See Zelig v. 

County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

Plaintiffs LeBrun and Roublow are actors who were living in New 

Orleans, Louisiana at the time of the events at issue; plaintiff Virani is 

the owner of a jewelry store in Chalmette, Louisiana, near New 

Orleans. In October 2017, Derrick Wells, a producer of NCSI: New 

Orleans, spoke to Virani about using his store to film a scene for the 

show; he also asked Virani to “play” the store owner in the scene. 

Virani agreed to both requests. 

The scene was to be filmed about a week later. At that time, 

LeBrun and Roublow, who were chosen in a casting call for photograph 

models, reported to the show’s set; they expected to model costumes for 

still photographs. They met with Wells, who told them that rather than 

modeling costumes, they would be acting in a scene depicting an armed 

robbery. Wells gave them black costumes, ski masks, and realisticlooking prop weapons that looked like high-powered automatic assault 
4

rifles and other firearms. Wells, his crew, and the actors drove in an 

unmarked van to Virani’s store, which was located on a busy 

commercial block. At the direction of Wells, LeBrun and Roublow 

jumped out of the van in their costumes, brandishing the prop weapons,

and stormed into Virani’s store shouting lines Wells had instructed 

them to say; those lines included threats and demands for cash and 

jewelry. Virani, who was inside the store, played his part by holding up 

his hands and complying with the “robbers’” demands. A concealed 

camera that was located inside the store filmed the scene. 

Unbeknownst to plaintiffs, no one from CBS or the show had 

obtained filming permits to shoot the scene, nor had anyone informed 

the local authorities or the neighboring businesses that they would be 

filming an armed robbery scene for a television show. They also failed 

to station a staff member outside the store to reassure neighbors or 

passersby that there was no actual robbery taking place. In the words 

of the complaint, CBS, through its employees and agents, decided to 

shoot the scene “guerilla-style.” 

A neighboring business owner saw the unmarked van pull up and 

men in ski masks brandishing guns jump out and run into the store. 

Believing that Virani’s store was being robbed, the neighbor called 911 

to report that an armed robbery was taking place. The SWAT team 

from the Chalmette Police Department responded to the scene within 

minutes. Officers broke down the door to the store and entered with 

their weapons drawn. Training their weapons at LeBrun and Roublow, 

the officers ordered them to drop their weapons and warned that they 

would be shot if they did not comply. LeBrun, Roublow, and Virani 
5

tried to explain they were filming a scene for a television show, but the 

SWAT officers pushed LeBrun and Roublow to the ground, handcuffed 

them, and arrested them. Although Roublow ultimately was released at 

the scene, LeBrun was transported to jail. 

Immediately after the incident, the Chalmette Sheriff demanded 

to speak with CBS officials. Wells promptly arranged a conference call 

with several people, including a CBS official who was in Los Angeles. 

That official, Kevin Berg, was CBS’s head of production for NCIS: New 

Orleans. Berg and the others on the call took responsibility for the 

incident and asked the Police Department not to press charges against 

CBS or anyone else involved in the incident. 

Later that day, Wells and other CBS personnel went to the jail 

and picked up LeBrun. Wells and other CBS agents told LeBrun and 

Roublow that “the network” and “CBS” was instructing the actors not to 

tell anyone about what had happened. LeBrun and Roublow did not 

follow that instruction, and publicly told what happened to them. Since 

then, they have not been able to secure employment on any television 

production, and believe that CBS has blackballed them. 

Both LeBrun and Roublow were diagnosed with post-traumatic 

stress disorder after the incident and continue to experience significant 

emotional and psychological trauma. Virani’s store suffered a 

significant drop in business after word spread that it had been the site 

of an armed robbery. 

The robbery scene (without the SWAT officers’ entry into the store 

or their arrests of plaintiffs) was aired by CBS in November 2017 as 

part of episode 9 of season 4 of NCIS: New Orleans. Editing and 
6

production for the episode were performed by CBS in Los Angeles, with 

Berg overseeing and supervising that process. The episode was viewed 

by approximately 8 million people when it aired, with another 3 million 

watching on a digital video recorder. 

B. Procedural Background

Plaintiffs filed the instant action in May 2020. The original 

complaint alleged causes of action for fraud and unjust enrichment 

against CBS and Bradford Kern; the complaint alleged that Kern was 

the showrunner and executive producer of NCIS: New Orleans, and that 

Kern and his employees and agents engaged in the production and 

supervision of the show from CBS facilities in Los Angeles. CBS filed a 

demurrer to the original complaint, arguing, among other things, that 

(1) the complaint failed to plead fraud with the requisite specificity; (2) 

section 361 applied and the fraud claim was barred by the Louisiana 

statute of limitations; (3) unjust enrichment is not a recognized cause of 

action in California; and (4) both causes of action alleged by LeBrun 

were barred by res judicata based upon a lawsuit he filed in Louisiana. 

After CBS filed its demurrer, but before the deadline to file an 

opposition to it, plaintiffs filed the first amended complaint, which is 

the complaint at issue in this appeal. The amended complaint deleted 

Kern as a defendant and added several details about the events, 

including names of alleged agents of CBS, such as Berg. 

The fraud cause of action alleged that CBS’s agent Wells disclosed 

to plaintiffs that they would be acting out an armed robbery for an 

episode of NCIS: New Orleans but concealed from them that the scene 
7

would be filmed guerilla style, without informing neighboring 

businesses, local authorities, or passersby about the filming of the 

staged robbery. The complaint alleged that the concealed facts were 

material because they created a significant risk of harm to plaintiffs, 

and plaintiffs would not have agreed to participate in the filming had 

they been aware of the true facts. The cause of action alleged that 

Wells and CBS’s agents intentionally failed to disclose the true facts 

and prevented plaintiffs from discovering them, and that plaintiffs were 

injured physically, emotionally, and/or economically as a result of the 

fraudulent conduct. Finally, the complaint alleged that CBS, through 

Berg, ratified the fraudulent conduct in Los Angeles by (1) speaking 

with the local sheriff after the incident to persuade him not to 

prosecute; (2) rewarding and failing to punish or discipline Wells or any 

of CBS’s agents involving in the incident; (3) making, approving, and 

ratifying the decision to use the fraudulently-obtained footage; 

(4) supervising and overseeing production, editing, and distribution of 

the episode containing that footage; and (5) receiving compensation for 

production of the episode and distributing rewards and bonuses to 

individuals who participated in the fraudulent conduct.

The unjust enrichment cause of action alleged that CBS “unjustly 

profited from and enriched themselves [sic] based on the fraudulent and 

deceptive conduct set forth herein, and on the harms to Plaintiffs set 

forth herein.” It alleged that CBS “knew beforehand and/or learned 

soon after” the incident about the actions, deceptions, concealments, 

and reckless indifference to plaintiffs’ safety committed by Wells and 

CBS’s agents, and ratified, supported, adopted, and rewarded that 
8

conduct by including the robbery sequence in an episode of NCIS: New 

Orleans. It alleged that CBS profited from the advertising and 

syndication revenue generated by that episode. The complaint then 

summed up the cause of action as follows: “In short, CBS profited by 

wrongfully and illegally putting Plaintiffs at grave risk.” 

In its prayer for relief, the complaint asked for (1) compensatory 

and general damages; (2) special damages; (3) punitive damages; 

(4) pre- and post-judgment interest; (5) costs; (6) attorney fees under 

section 1021.5; and (7) “such other and further relief as the Court deems 

just and proper.” It did not ask for restitution or disgorgement of 

profits. 

CBS filed a demurrer to the amended complaint, again arguing 

that (1) section 361 applied and the fraud claim was barred by the 

Louisiana statute of limitations; (2) unjust enrichment is not a 

recognized cause of action in California; and (3) both causes of action 

alleged by LeBrun were barred by res judicata. Arguing that plaintiffs 

had been given an opportunity to amend their complaint to state a valid 

cause of action and had failed to do so, CBS asked the court to sustain 

the demurrer without leave to amend. 

Plaintiffs argued in opposition to the demurrer that (1) CBS’s 

conduct in Los Angeles ratified the fraud and made CBS liable in 

California, therefore section 361 did not apply; (2) unjust enrichment is 

a valid equitable claim under California law; and (3) LeBrun’s fraud 

and unjust enrichment claims were not precluded because those issues 

were not actually litigated and necessarily decided in his Louisiana 

lawsuit. Although in their one-sentence conclusion to their opposition 
9

plaintiffs asked the court to grant them leave to amend in the event the 

court sustained the demurrer, they gave no indication of how they 

might amend the complaint. 

At the hearing on the demurrer, the trial court announced its 

tentative decision was to sustain the demurrer without leave to amend 

as to all three plaintiffs on statute of limitations grounds, and, 

additionally as to LeBrun on res judicata grounds. The court explained 

that the facts alleged establish that the cause of action—i.e., the 

fraud—took place entirely in Louisiana. The court noted that the only 

conduct that allegedly took place in California (which counsel for 

plaintiffs agreed took place only “after the fact”) served only to 

potentially expand the universe of defendants if the lawsuit was 

otherwise viable. Therefore the court tentatively found that the causes 

of action arose in Louisiana, and under section 361 the lawsuit was 

barred by the Louisiana statute of limitations. 

During the arguments of counsel, the court asked whether 

plaintiffs could allege a viable cause of action based upon CBS’s alleged 

post-fraud conduct. In response, plaintiffs’ counsel stated plaintiffs 

could “amend to add with more specificity allegations of post[-fraud] 

conduct, direct action by CBS in Los Angeles blackballing these 

individuals or preventing them from getting work [as actors].” 

However, counsel insisted that that conduct was still part of “a 

continuing course of . . . fraudulent conduct.” The court took the matter 

under submission and issued a written order later that day. 

With respect to the fraud cause of action, the court found that 

“[t]he wrong for which Plaintiffs are suing (the fraud and their 
10

subsequent arrest) occurred in Louisiana in October of 2017.” The court 

rejected plaintiffs’ assertion that CBS’s alleged ratification of the fraud 

affects the section 361 analysis. Therefore, it found that the cause of 

action arose in Louisiana and section 361 applied. Since it was 

undisputed that the applicable Louisiana statute of limitations is a oneyear statute, plaintiffs’ claim, filed in May 2020, was time-barred. The 

court therefore sustained the demurrer to the fraud cause of action 

without leave to amend. 

As to the unjust enrichment claim, the court rejected CBS’s 

argument that unjust enrichment is not a valid cause of action. 

Nevertheless, it sustained without leave to amend the demurrer to that 

claim, finding that “unjust enrichment is not the type of theory that 

properly applies to facts like these.” The court observed that unjust 

enrichment applies where plaintiffs have conferred a benefit on a 

defendant and it would be inequitable for defendant to retain that 

benefit without paying for its value. But the court noted that the 

benefit CBS received in this case was the acting work of LeBrun and 

Roublow and the use of Virani’s store, for which plaintiffs were paid. 

Therefore, the court found that plaintiffs could not allege a claim for 

unjust enrichment. 

In addition to sustaining the demurrer as to all plaintiffs, the trial 

court also sustained the demurrer as to both causes of action against 

LeBrun on res judicata grounds based upon a lawsuit he filed in 

Louisiana against CBS and others that was premised on the same facts 

and was dismissed on summary judgment. 
11

Finally, the trial court addressed plaintiffs’ request for leave to 

amend. The court observed that when plaintiffs were asked how they 

might amend the complaint to allege viable causes of action, they stated

only that they could allege facts with more particularity and “did not 

offer to the court any new legal theory which could be based on postincident allegations. They simply argued that post-incident allegations 

showed ratification of the original fraud.” Therefore, the court 

concluded it “has no basis to believe that a viable claim could be stated 

here and will not grant leave to amend.” 

The trial court entered a judgment of dismissal with prejudice, 

from which plaintiffs timely filed a notice of appeal. 

DISCUSSION

Plaintiffs make the same arguments on appeal as they made in 

the trial court. They contend that (1) section 361 does not apply to their 

claims against CBS because those claims are based upon the 

ratification conduct that took place in Los Angeles; (2) their unjust 

enrichment claim is a valid equitable claim that is separate from their 

fraud claim; and (3) LeBrun’s claims are not precluded by res judicata 

because the claims he alleges here were not litigated or adjudicated in 

his Louisiana lawsuit. We address the first two arguments below; we 

need not address plaintiffs’ third argument because we conclude the 

trial court correctly sustained the demurrer as to both causes of action 

and all plaintiffs.
12

A. Standard of Review

On review of a judgment of dismissal following the sustaining of a 

demurrer, “our standard of review is clear: ‘“We treat the demurrer as 

admitting all material facts properly pleaded, but not contentions, 

deductions or conclusions of fact or law. [Citation.] We also consider 

matters which may be judicially noticed.” [Citation.] Further, we give 

the complaint a reasonable interpretation, reading it as a whole and its 

parts in their context. [Citation.] When a demurrer is sustained, we 

determine whether the complaint states facts sufficient to constitute a 

cause of action. [Citation.] And when it is sustained without leave to 

amend, we decide whether there is a reasonable possibility that the 

defect can be cured by amendment: if it can be, the trial court has 

abused its discretion and we reverse; if not, there has been no abuse of 

discretion and we affirm. [Citations.] The burden of proving such 

reasonable possibility is squarely on the plaintiff.’” (Zelig v. County of 

Los Angeles, supra, 27 Cal.4th at p. 1126.) “Plaintiff must show in what 

manner he can amend his complaint and how that amendment will 

change the legal effect of his pleading.” (Cooper v. Leslie Salt Co. (1969) 

70 Cal.2d 627, 636.)

B. Applicability of Section 361

By its express language, section 361 applies (with exceptions not 

applicable here) “[w]hen a cause of action has arisen in another State.” 

Thus, the question presented here is: Where did plaintiffs’ causes of 

action arise?
13

Plaintiffs argue that their claims arose in California because they 

are based upon CBS’s conduct in California, which ratified the 

fraudulent conduct that took place in Louisiana. They contend that this 

ratification created separate and independent tort liability in 

California. From this premise, they reason that the ratification 

constituted a separate tort, and that tort arose in California, not 

Louisiana. Plaintiffs’ reasoning is faulty. 

We agree that the conduct plaintiffs allege took place in California 

could constitute ratification by CBS of the alleged fraudulent conduct in 

Louisiana. (See, e.g., StreetScenes v. ITC Entertainment Group, Inc.

(2002) 103 Cal.App.4th 233, 242 [affirming jury finding that a movie 

production company that failed to repudiate the fraudulent conduct of 

its agent ratified the wrongful conduct].) We also agree that ratification

of a wrongful act creates tort liability in the ratifier for that wrongful 

act. (Ibid.) Further, we agree that a person who engages in conduct in 

California to ratify the fraudulent conduct by an agent in a different 

state may be sued in California for damages resulting from that fraud

(ibid.), unless, of course, the claim is time-barred in the jurisdiction in 

which the cause of action arose. 

Where plaintiffs’ argument falters is their assertion that the 

ratification of fraudulent conduct by another constitutes a separate and 

independent tort. Plaintiffs rely on PMC, Inc. v. Kadisha (2000) 78 

Cal.App.4th 1368 (PMC) for this assertion. But PMC does not stand for 

this proposition. PMC simply held that an officer or director of a 

corporation could be held personally liable for intentional torts based 

upon the corporation’s founders’ misappropriation of trade secrets if the 
14

officer or director purchased or invested in the corporation and took 

control of its operation with knowledge, or reason to know, of the 

wrongful conduct. (Id. at p. 1372.) To be sure, the court in PMC also 

held that the liability of the officers and directors in that case was not 

vicarious and was instead premised on their own tortious conduct. (Id.

at p. 1389.) But that part of the court’s holding was not based upon a 

ratification theory. Instead, it was based upon the law governing 

misappropriation of trade secrets. As the PMC court explained, under 

the Uniform Trade Secrets Act, misappropriation includes the “‘use of a 

trade secret of another . . . by a person who . . . [a]t the time of 

disclosure or use, knew or had reason to know that his or her knowledge 

of the trade secret was . . . [d]erived from or through a person who had 

utilized improper means to acquire it; . . . or . . . [d]erived from or 

through a person who owed a duty to the person seeking relief to 

maintain its secrecy or limit its use.’” (Id. at p. 1382, quoting Civ. Code, 

§ 3426.1, subd. (b), italics omitted.) Thus, even though the officers and 

directors at issue in PMC had not participated in the initial 

misappropriation, they nevertheless participated, with knowledge, in 

the continuing use of the misappropriated trade secrets and therefore 

engaged in separate acts of misappropriation under trade secret law. 

Contrary to plaintiffs’ suggestion, the PMC court did not hold that 

any defendant who ratifies the wrongful conduct of another commits a 

separate and independent tort. Instead, the principle of ratification 

merely holds the ratifying party liable for the tort committed by another 

party. No new tort is committed. This is because “[r]atification is an 

agency doctrine. ‘Ratification is the voluntary election by a person to 
15

adopt in some manner as his own an act which was purportedly done on 

his behalf by another person, the effect of which, as to some or all 

persons, is to treat the act as if originally authorized by him.’” (City of 

Brentwood v. Department of Finance (2020) 54 Cal.App.5th 418, 436.) 

As the leading treatise on California law explains, “[a]n agent, at the 

time he or she does an act, may be without authority, actual or 

ostensible; but the act may be rendered valid and binding on the 

principal, as of the time the unauthorized act was done, if the principal 

ratifies and thus gives effect to it.” (3 Witkin, Summary of Cal. Law 

(11th ed. 2017) Agency and Employment, § 149, pp. 203–204.)

In this case, the acts for which plaintiffs seek damages are the 

fraudulent misrepresentations and omissions made by Wells. Those 

acts occurred in Louisiana, to residents of Louisiana, resulting in 

injuries sustained in Louisiana. CBS’s alleged ratification simply 

rendered CBS liable for Wells’ acts; it was not independently wrongful 

and did not cause any separate injuries. That the ratification took place 

in California is irrelevant to determining where the causes of action 

arose. They arose in Louisiana. As such, section 361 applies. 

Since plaintiffs do not dispute that under Louisiana law the 

statute of limitations for fraud claims is one year and their complaint 

was filed almost three years after the fraud took place, we conclude the 

trial court did not err in sustaining the demurrer to plaintiffs’ fraud 

claim.
16

C. Unjust Enrichment Cause of Action

Plaintiffs contend the trial court erred by sustaining CBS’s 

demurrer to the unjust enrichment cause of action on the ground that 

unjust enrichment is not a cause of action but is instead a remedy. 

They misunderstand the court’s ruling. In fact, the trial court rejected

that ground, which was asserted by CBS in its demurrer, stating: 

“[CBS] challenges this claim on the grounds that unjust enrichment is 

not a cause of action. That is incorrect.” (Italics added.) Instead, the 

court found that under the facts alleged by plaintiffs, the equitable 

doctrine of unjust enrichment did not apply.

The court explained, “‘[t]he doctrine applies where plaintiffs, 

having no enforceable contract, nevertheless have conferred a benefit on 

defendant which defendant has knowingly accepted under 

circumstances which make it inequitable for the defendant to retain the 

benefit without paying for its value.’” (Quoting Hernandez v. Lopez

(2009) 180 Cal.App.4th 932, 938 (Hernandez).) The court found that the 

benefit conferred on CBS by plaintiffs was their acting work and the use 

of Virani’s store, and that CBS paid for that benefit. Therefore, the 

court concluded there was no unjust enrichment.

Plaintiffs assert a more expansive application of the unjust 

enrichment doctrine, essentially arguing it applies and can be alleged 

as a separate and independent cause of action whenever a party profits 

from a wrongful act against another. In making this assertion, 

plaintiffs rely on passages from two cases, without taking into account 

the context in which they arose. In both of those cases, American 
17

Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451

(American Master Lease) and Hernandez, supra, 180 Cal.App.4th 932, 

the courts addressed the doctrine of unjust enrichment in discussing the 

remedy for a validly pleaded cause of action. 

In American Master Lease, the plaintiff (a corporation that 

invested in real estate) alleged that the defendant (a venture capital 

firm) had aided and abetted the breach of fiduciary duty by managers of 

the corporation. (American Master Lease, supra, 225 Cal.App.4th at p. 

1458.) The breach occurred when, after the controlling member of the 

plaintiff rejected the defendant’s investment proposal, two of the 

plaintiff’s managers formed a separate corporation with the defendant 

venture capital firm as a co-owner, to operate a real estate investment 

business using the plaintiff’s proprietary business method. (Id. at pp. 

1462–1463.) The plaintiff filed a lawsuit against the defendant alleging 

causes of action for aiding and abetting a breach of fiduciary duty, 

interference with contract, unfair competition, and unjust enrichment. 

(Id. at p. 1467.) The trial court sustained without leave to amend the 

demurrer to the causes of action for unjust enrichment and unfair 

competition, and the case went to trial on the aiding and abetting 

breach of fiduciary duty and interference with contract claims. (Id. at 

pp. 1467–1468.) At trial, the plaintiff presented evidence to show the 

value of the benefit the defendant received from the sale of stock in the 

newly formed corporation, and the jury was instructed on the elements 

of unjust enrichment, restitution, disgorgement, and constructive trust. 

(Id. at pp. 1468–1469.) The jury found in favor of the defendant on the 
18

aiding and abetting claim, and awarded the plaintiff “damages” in the 

amount the defendant had received from the sale of stock. (Id. at p. 

1471.) 

On appeal, the defendant contended that the equitable remedies of 

unjust enrichment, disgorgement, and constructive trust were not 

available for aiding and abetting a breach of fiduciary duty. (American 

Master Lease, supra, 225 Cal.App.4th at p. 1481.) The appellate court 

disagreed. In discussing the remedy of disgorgement, the court 

observed that “[t]here are two types of disgorgement: restitutionary 

disgorgement, which focuses on the plaintiff’s loss, and 

nonrestitutionary disgorgement, which focuses on the defendant’s 

unjust enrichment.” (Id. at p. 1482.) It explained that “‘[w]here “a 

benefit has been received by the defendant but the plaintiff has not 

suffered a corresponding loss or, in some cases, any loss, but 

nevertheless the enrichment of the defendant would be unjust . . . the 

defendant may be under a duty to give to the plaintiff the amount by 

which [the defendant] has been enriched.” [Citation.]’” (Id. at p. 1482.) 

The court continued, “‘“‘[i]t is not essential that money be paid directly 

to the recipient by the party seeking restitution. . . .’” [Citations.] The 

emphasis is on the wrongdoer’s enrichment, not the victim’s loss. In 

particular, a person acting in conscious disregard of the rights of 

another should be required to disgorge all profit because disgorgement 

both benefits the injured parties and deters the perpetrator from 

committing the same unlawful actions again.’” (Ibid.) 

In the present case, plaintiffs rely upon the last quoted sentence to 

argue that they have alleged a valid cause of action for unjust 
19

enrichment independent of their fraud claim because they alleged that 

CBS profited from its conscious disregard of their rights. But as is clear 

from the context in which the American Master Lease court made that 

statement, the duty to disgorge such profits arises only as a remedy for 

a validly asserted cause of action. Moreover, plaintiffs’ own complaint 

belies their assertion that their unjust enrichment cause of action is 

independent of their fraud claim, inasmuch as they allege in the second 

paragraph of that cause of action: “As set forth herein, CBS unjustly 

profited from and enriched themselves based on the fraudulent and 

deceptive conduct set forth herein, and on the harms to Plaintiffs set 

forth herein.” In other words, plaintiffs seek the remedy of 

nonrestitutionary disgorgement based upon their fraud claim, which as 

discussed above, is barred under section 361.

The other case plaintiffs rely upon, Hernandez, supra, 180 

Cal.App.4th 932, similarly does not assist them. In that case, the trial 

court had dismissed the plaintiffs’ breach of contract claim on the 

ground that their complaint did not allege a breach of any of the terms 

in the written contract, although the court observed that the defendants 

“‘might be liable for a conversion or trespass, or on a theory of unjust 

enrichment, but not a breach of contract.’” (Id. at p. 937.) The plaintiffs 

then filed a new lawsuit alleging claims for unjust enrichment and 

conversion, but that lawsuit “ran afoul of the doctrines of merger and 

bar.” (Ibid.) The plaintiffs then appealed from the dismissal of their 

original lawsuit. (Ibid.) 

The appellate court held that the trial court in the original lawsuit

“focused unduly on labels” in dismissing the breach of contract cause of 
20

action. (Hernandez, supra, 180 Cal.App.4th at p. 938.) It held that the 

plaintiffs’ “detailed cause of action for breach of contract fully raised all 

the facts and circumstances in which equity could contemplate a quasicontractual remedy to prevent [the defendants] from being unjustly 

enriched at the expense of the [plaintiffs].” (Id. at p. 939.) It is in this 

context that the court included the passage upon which plaintiffs rely in 

this case: “‘The spirit behind the law of unjust enrichment is to apply 

the law “outside of the box” and fill in the cracks where common civil 

law and statutes fail to achieve “justice.”’” (Ibid.) 

In the present case, the common civil law and statutes already 

provided a method to achieve justice for the wrongs allegedly 

committed: a cause of action for fraud. Plaintiffs’ inability to maintain 

that cause of action was not due to the absence of law to support it but 

rather to their failure to timely assert it. In such a case, “justice” does 

not require the application of the unjust enrichment doctrine. 

Therefore, we affirm the trial court’s ruling sustaining CBS’s demurrer 

to the unjust enrichment cause of action. 

D. Denial of Leave to Amend

As noted, the trial court denied plaintiffs leave to amend their 

complaint, finding that they failed to demonstrate how they could 

amend the complaint to allege valid causes of action. Plaintiffs do not 

address in their appellate briefs the court’s denial of leave to amend and 

do not suggest how they could amend the complaint. 

As noted, although we are required to decide “‘whether there is a 

reasonable possibility that the defect [in the complaint] can be cured by 
21

amendment[,] . . . [t]he burden of proving such reasonable possibility is 

squarely on the plaintiff’” (Zelig v. County of Los Angeles, supra, 27 

Cal.4th at p. 1126) by “show[ing] in what manner he can amend his 

complaint and how that amendment will change the legal effect of his 

pleading.” (Cooper v. Leslie Salt Co., supra, 70 Cal.2d at p. 636.) The

plaintiffs in this case have not done so. Accordingly, we affirm the trial 

court’s denial of leave to amend.

DISPOSITION

The judgment is affirmed. CBS shall recover its costs on appeal.

CERTIFIED FOR PUBLICATION

WILLHITE, J.

We concur:

MANELLA, P. J.

CURREY, J.