Filed 11/15/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

GARY SEPANOSSIAN,

Plaintiff and Appellant,

v.

NATIONAL READY MIX

COMPANY, INC.,

Defendant and Respondent.

 B319260

 (Los Angeles County

 Super. Ct. No. 20STCV13996)

APPEAL from a judgment of the Superior Court of 

Los Angeles County. Amy D. Hogue, Judge. Affirmed in part,

reversed in part, and remanded with directions.

Price Armstrong and Nicholas W. Armstrong for Plaintiff 

and Appellant.

Covington & Burling, Sonya D. Winner, Ashley M. 

Simonsen and Alaxander L. Schultz for Defendant and 

Respondent.

_______________________
2

INTRODUCTION

Gary Sepanossian, dba G.S. Construction (Sepanossian), 

individually and as class representative, filed a class action

against National Ready Mix Concrete Co., Inc. (Ready Mix),

1

alleging Ready Mix charged its customers an “energy” fee and an 

“environmental” fee “wholly untethered to any actual cost for 

‘energy’ or ‘environmental’ issues” that Ready Mix instead 

“recognize[s] as profit.” The complaint alleges causes of action for 

(1) violation of California’s Unfair Competition Law (UCL)

(Bus. & Prof. Code, § 17200 et seq.2) under the fraudulent and 

unfair business practices prongs; (2) breach of contract; and

(3) “unjust enrichment.”

After Ready Mix answered the complaint, Sepanossian filed 

a motion for class certification. The trial court granted class 

certification, but expressed doubts about Sepanossian’s legal

claims and invited the parties to present a motion for judgment

on the pleadings to address the merits before class notice. The 

parties agreed to do so, and Ready Mix subsequently filed a 

motion for judgment on the pleadings, which the trial court 

granted on the UCL and unjust enrichment causes of action. We

reverse because Sepanossian alleged facts sufficient to state a 

cause of action under the UCL, but affirm dismissal of the unjust 

enrichment cause of action.

1 Sepanossian sued Ready Mix as “National Ready Mix 

Company, Inc.,” which Ready Mix’s brief notes was incorrect. 

Ready Mix advances no argument this error affects our analysis

on appeal.

2 Statutory references are to the Business and Professions 

Code unless otherwise indicated.
3

FACTUAL AND PROCEDURAL BACKGROUND3

Ready Mix sells mixed concrete to small businesses for 

construction projects. Sepanossian operates a construction 

business in Encino, California. Sepanossian and the class he

represents are customers of Ready Mix who pay Ready Mix a “set 

rate” for its concrete products. To each sale, Ready Mix adds an 

“energy” fee and an “environmental” fee separate from the set 

rate.

4 These fees are uniform and do not correlate to or fluctuate 

in any way with any actual energy or environmental costs

incurred by Ready Mix or the size of the order. The complaint 

alleges the “energy” fee has no relationship to Ready Mix’s fuel or 

energy costs and the “environmental” fee does not relate to any 

environmental costs incurred by Ready Mix. Sepanossian further 

alleges the fees are recognized by Ready Mix as profit. The

energy and environmental fee amounts are separately itemized 

on invoices and disclosed to customers, but no further 

explanation or information about the nature of the fees is

provided. According to the quotes and invoices judicially noticed 

by the trial court, the environmental fees and energy fees are 

generally approximately $30 each per delivery. The gravamen of 

Sepanossian’s complaint is not that class members did not know 

3 On review from a motion for judgment on the pleadings,

“we accept as true all material allegations in the complaint.”

(National Shooting Sports Foundation, Inc. v. State of California

(2018) 5 Cal.5th 428, 432 (Sports Foundation).)

4 The trial court took judicial notice of four exemplar quotes

and invoices reflecting those fees. The parties agreed such 

judicial notice was proper so Sepanossian did not have to file an 

amended complaint attaching these documents.
4

the amount of these charges, but rather that the terms

environmental fee and energy fee were misleading.

In April 2020 Sepanossian filed a class action complaint 

against Ready Mix on behalf of himself and all others similarly 

situated, seeking restitution, injunctive relief, and damages. 

Sepanossian’s complaint alleges in relevant part that, in 

connection with its sales of concrete, Ready Mix fraudulently, 

deceptively, and unfairly added “energy” and “environmental”

fees above the set rate that are unrelated to Ready Mix’s actual 

energy or environmental costs, and that Ready Mix was unjustly 

enriched by these practices.

The complaint alleges Ready Mix’s practice of charging 

customers for “energy” and “environmental” fees is likely to 

deceive reasonable customers into believing these are legitimate 

charges directly related to actual costs incurred by Ready Mix in 

delivering its orders of ready-mixed concrete. The complaint 

further alleges that Sepanossian and class members were 

induced to purchase the concrete and pay the fees because they 

were misled by the labels.

5 Sepanossian also alleges, “Plaintiff 

5 For example, as to the UCL claim, the complaint alleges 

Ready Mix’s “fraudulent acts” include “(a) Representing, through 

the commonly understood . . . term ‘energy’ and ‘environmental’

fees” that such fees were “implemented, calculated, charged, and 

collected to offset Ready Mix’s actual or increased fuel costs. This 

representation was made uniformly on the form contracts at 

issue and invoices. Plaintiff and class members relied upon this 

understood meaning, as used by Ready Mix, in entering the 

contract and paying the fee. This representation was material as 

Plaintiff and class members would not have paid the ‘energy’ and 

‘environmental’ fees had they known [they were] simply a profitenhancement tool. This representation is false as” such fees are 

“not related to or used to offset Ready Mix’s actual or increased 
5

and class members would not have entered into contracts with 

Ready Mix and would not have paid the fees at issue had they 

known the truth about the ‘energy’ and ‘environmental’ fees and

had not been subject to Ready Mix’s misrepresentations and 

omissions.”

Ready Mix answered the complaint, and the parties 

proceeded to class certification.

In July 2021 the trial court certified the two proposed 

classes (an “energy fee class” and an “environmental fee class”)

but expressed “serious questions regarding the merits of 

Plaintiff’s claims.” At the hearing, the court stated that although 

it could not reach the merits on the motion for class certification,

its ruling “certainly signal[s] pretty strongly that I think [Ready 

Mix is] right.” The court invited the parties to present a 

dispositive motion on the merits before undertaking the expense 

of class notice, and suggested a motion for judgment on the 

pleadings, with the relevant invoices incorporated, as an 

alternative to a summary judgment motion. The parties 

subsequently conferred and stipulated to do so, and in

September 2021 Ready Mix filed a motion for judgment on the 

pleadings and an unopposed request for judicial notice of the

quotes and invoices reflecting the challenged fees.

costs of fuel. Ready Mix made these representations in order to, 

and with the effect of, inducing Plaintiff and class members to 

pay the fee.” The complaint contains substantially similar 

allegations under an omissions theory.
6

In October 2021 the trial court granted Ready Mix’s motion 

for judgment on the pleadings as to the UCL and unjust

enrichment causes of action. The trial court ruled that “the 

terms ‘environmental’ and ‘energy,’ standing alone, are at best

ambiguous and there is no allegation Ready Mix further

promised or represented how it would use the fees,” thus, as a 

matter of law, they were not misleading or deceptive. It further 

ruled that because Ready Mix clearly disclosed the amount of fees 

as part of the total cost, the practice as a matter of law was not

unfair. With regard to unjust enrichment, the court reasoned

that because there was an express contract between the parties

covering the fees (i.e., the form contracts listing the fees), and the 

contract was not procured by fraud or otherwise unenforceable or 

ineffective, Sepanossian could not assert a claim for restitution

based on unjust enrichment.

On December 22, 2021 Sepanossian voluntarily dismissed 

the remaining breach of contract cause of action. On 

December 29, the trial court dismissed the entire action with 

prejudice.

6

Sepanossian timely appealed.

7

6 The trial court issued an “Order re Dismissal,” which is an 

appealable final judgment. (See Daar v. Yellow Cab Co. (1967) 

67 Cal.2d 695, 699 [“‘[A]n order of dismissal is to be treated as a 

judgment for the purposes of taking an appeal when it finally 

disposes of the particular action and prevents further proceedings 

as effectually as would any formal judgment.’”].)

7 Sepanossian does not appeal the dismissal of the contract 

claim.
7

DISCUSSION

A. Standard of Review

“‘A judgment on the pleadings in favor of the defendant is 

appropriate when the complaint fails to allege facts sufficient to

state a cause of action. [Citation.] A motion for judgment on the 

pleadings is equivalent to a demurrer and is governed by the 

same de novo standard of review.’ [Citation.] ‘All properly 

pleaded, material facts are deemed true, but not contentions, 

deductions, or conclusions of fact or law . . . .’ [Citation.] Courts 

may consider judicially noticeable matters in the motion as well.”

(People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 

59 Cal.4th 772, 777; see generally Code Civ. Proc., § 438.) Our 

review is de novo because the trial court’s ruling on a motion for 

judgment on the pleadings “resolves a mixed question of law and 

fact that is predominantly one of law, viz., whether or not the 

factual allegations that the plaintiff makes are sufficient to 

constitute a cause of action.” (Gerawan Farming, Inc. v. Lyons

(2000) 24 Cal.4th 468, 515.)

“A trial court’s determination of a motion for judgment on 

the pleadings accepts as true the factual allegations that the 

plaintiff makes. [Citations.] In addition, it gives them a liberal

construction. [Citations.] [¶] An appellate court’s consideration 

of the ensuing determination by the trial court involves the same 

acceptance and liberal construction of the factual allegations in 

question. [Citations.].” (Gerawan Farming, Inc. v. Lyons, supra,

24 Cal.4th at pp. 515-516; accord, Aron v. U-Haul Co. of 

California (2006) 143 Cal.App.4th 796, 802 (Aron).)
8

B. The UCL

The purpose of the UCL “‘“is to protect both consumers and 

competitors by promoting fair competition in commercial markets

for goods and services.”’” (California Medical Association v. 

Aetna Health of California Inc. (2023) 14 Cal.5th 1075, 1085

(California Medical Association); accord, McGill v. Citibank, N.A.

(2017) 2 Cal.5th 945, 954; Kasky v. Nike, Inc. (2002) 27 Cal.4th

939, 949.) “‘Through the UCL a plaintiff may obtain restitution 

and/or injunctive relief against unfair or unlawful practices.’” 

(Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 

1134, 1144.) The UCL is broad in scope (Kasky, at p. 949), and

defines “‘unfair competition’” to mean and include “any unlawful, 

unfair or fraudulent business act or practice” (§ 17200). “Because 

the statute is framed in the disjunctive, a business practice need 

only meet one of the three criteria to be considered unfair 

competition,” and a cause of action under the UCL may be 

established “‘“independent of any contractual relationship 

between the parties.”’” (McKell v. Washington Mutual, Inc.

(2006) 142 Cal.App.4th 1457, 1471 (McKell).)

“To state a cause of action under consumer protection 

statutes designed to protect the public from fraudulent or 

deceptive representations, the plaintiff must demonstrate that 

‘“members of the public are likely to be deceived.”’” (Aron, supra, 

143 Cal.App.4th at p. 806; accord, Morgan v. AT&T Wireless 

Services, Inc. (2009) 177 Cal.App.4th 1235, 1255 [a “fraudulent”

business practice under the UCL “is one that is likely to deceive 

members of the public”].) We apply the “reasonable consumer”

standard to actions involving claims under the UCL for deceptive 

or unfair business practices. (Klein v. Chevron U.S.A., Inc. (2012) 

202 Cal.App.4th 1342, 1380 (Klein); Aron, at p. 806; Consumer 
9

Advocates v. Echostar Satellite Corp. (2003) 113 Cal.App.4th 

1351, 1360.)

Under the reasonable consumer standard, whether a 

business practice is deceptive under the “‘fraudulent’” prong of 

the UCL “‘is based on the likely effect such practice would have 

on a reasonable consumer.’” (Klein, supra, 202 Cal.App.4th at

p. 1380; accord, Lavie v. Procter & Gamble Co. (2003) 

105 Cal.App.4th 496, 508 [whether an advertisement or business 

practice violates the UCL is measured “by the likely effect on the 

normally credulous consumer”].) “This is determined by 

considering a reasonable consumer who is neither the most 

vigilant and suspicious . . . nor the most unwary and 

unsophisticated, but instead is ‘the ordinary consumer within the 

target population.’” (Chapman v. Skype Inc. (2013) 

220 Cal.App.4th 217, 226 (Chapman).) ‘““Likely to deceive” for 

purposes of the UCL indicates “it is probable that a significant 

portion of the general consuming public or of targeted consumers, 

acting reasonably in the circumstances, could be misled.’” (Id. at 

p. 226.) A claim under the UCL “‘may be based on 

representations to the public which are untrue, and “‘also those 

which may be accurate on some level, but will nonetheless tend to 

mislead or deceive. . . . A perfectly true statement couched in 

such a manner that it is likely to mislead or deceive the 

consumer, such as by failure to disclose other relevant

information, is actionable under’” the UCL.’” (Klein, at p. 1380; 

accord, McKell, supra, 142 Cal.App.4th at p. 1471.)

Whether consumers are likely to be deceived is generally a 

question of fact that can be decided at the pleadings stage “only if 

the facts alleged in the complaint, and facts judicially noticed, 

compel the conclusion as a matter of law that consumers are not 
10

likely to be deceived.” (Chapman, supra, 220 Cal.App.4th at 

pp. 226-227; accord, Klein, supra, 202 Cal.App.4th at p. 1381

[“‘“[U]nless we can say as a matter of law that contrary to the 

complaint’s allegations, members of the public were not likely to 

be deceived or misled by [the defendant’s alleged conduct], we

must hold that [plaintiffs] stated a cause of action.”’”].)

With regard to the “‘unfair’” prong of the UCL, “a business 

practice is ‘unfair’ if (1) the consumer injury is substantial; (2) the 

injury is not outweighed by any countervailing benefits to 

consumers or competition; and (3) the injury could not reasonably 

have been avoided by consumers themselves.” (Klein, supra,

202 Cal.App.4th at p. 1376, quoting Camacho v. Automobile Club 

of Southern California (2006) 142 Cal.App.4th 1394, 1403; accord, 

Davis v. Ford Motor Credit Co. LLC (2009) 179 Cal.App.4th 581,

598 (Davis).) “Whether a practice is . . . unfair is generally a 

question of fact . . . which usually cannot be [decided] on 

demurrer.” (Linear Technology Corp. v. Applied Materials, Inc.

(2007) 152 Cal.App.4th 115, 134-135.)

C. Sepanossian Has Stated a Claim Under Both the 

“Fraudulent” and “Unfair” Prongs of the UCL

1. “Fraudulent” prong of the UCL

Sepanossian alleged that by adding “energy” and 

“environmental” fees to each order on top of the set rate for its 

concrete product sales, Ready Mix fraudulently deceived 

customers into believing they were being charged fees bearing 

some relation to energy-related or environmental-related costs 

borne by Ready Mix. Specifically, Sepanossian alleged, “[i]n 

truth, Ready Mix’s charges for ‘energy’ and ‘environmental’ fees 

were not designed to cover anything related to additional ‘energy’
11

costs or any ‘environmental’ fee. The amount of these charges are 

arbitrary and are simply designed to increase the agreed base 

price and generate extra profit at its customer’s expense.”

Sepanossian alleged Ready Mix’s conduct deceptively and 

unfairly misleads consumers because the listed fees did not in 

fact, “in intent or practice,” relate to any fuel, energy or 

environmental costs incurred or anticipated by Ready Mix, and 

there was no way for consumers to reasonably avoid the injury 

because the fees were mandatory.

At the pleading stage, we cannot conclude, as a matter of 

law, that consumers are not likely to be deceived in the manner 

alleged. Sepanossian alleged facts which, if true, may reveal that 

members of the public believed the fees Ready Mix charged them 

had some nexus to energy or environmental costs, when in fact 

the listed fees had no such relationship and were solely added to

increase profits to Ready Mix.

Aron, supra, 143 Cal.App.4th 796, a case this court decided 

that was not cited by either party, dealt with the same UCL 

provisions at issue here. There the plaintiff alleged that a

“fueling fee” imposed by U-Haul when customers returned a 

rental truck with less fuel than originally provided was an unfair 

and misleading designation “because the fuel is not in fact 

replaced [before the next truck rental] and this fact is not 

disclosed to the consumer.” (Id. at p. 806.) We reversed the trial 

court’s judgment on the pleadings in U-Haul’s favor, rejecting

U-Haul’s arguments that “there is nothing deceptive about

calling the fee charged when a customer returns a truck with less

fuel than provided a ‘fueling fee.’” Aron further rejected U-Haul’s 

arguments that “it makes no express or implied representations 

suggesting that it refuels returned vehicles, and that what it does 
12

with the fuel charges is of no concern to the customers.” (Ibid.) 

Aron determined the facts alleged were sufficient to show that 

calling a charge a “fueling fee” when a truck rental customer 

returns with less fuel than provided “would be misleading to a

reasonable consumer because there is no connection between the 

imposition of a fee or cost and whether the customer has in fact 

refueled the vehicle.” (Id. at p. 807.) Aron concluded the plaintiff

alleged sufficient facts to state a cause of action for fraudulent 

business practices under the UCL. (Ibid.)

Here, similar to Aron, Sepanossian alleged facts sufficient 

to show Ready Mix’s fees are misleading to a reasonable 

consumer because there is no connection between the imposition 

of Ready Mix’s “energy” or “environmental” fees and whether 

Ready Mix is in fact charging its customers for energy or

environmental costs. “‘“‘A perfectly true statement couched in 

such a manner that it is likely to mislead or deceive the 

consumer, such as by failure to disclose other relevant 

information, is actionable.’”’” (Klein, supra, 202 Cal.App.4th at

p. 1380.) The invoices clearly list the “energy” and

“environmental” fees and accurately reflect the dollar amount 

charged, but the fees are presented to a consumer in such a way 

that it is probable a consumer would be misled or deceived into 

believing it was being charged bona fide fees for energy or 

environmental costs borne by Ready Mix. In other words, a 

reasonable consumer would likely be surprised to learn that a 

charge expressly identified as an “energy” or “environmental” fee, 

added on top of the set rate for a concrete purchase, had no actual 

relationship of any kind to Ready Mix’s energy or environmental 

costs and was pure profit.
13

Ready Mix maintains that Sepanossian failed to state a 

claim under the fraudulent prong of the UCL because “the terms

‘energy fee’ and ‘environmental fee,’ standing alone, do not

constitute affirmative representations that the amounts charged

are (or are not) exclusive of profit.” Ready Mix contends there is 

no actionable misrepresentation because “a reasonable consumer 

is not likely to construe [Ready Mix]’s fee labels, standing alone, 

as unequivocal representations that the amounts charged were 

wholly tethered to [its] costs and not the source of any profit.” As

noted above, Aron rejected a similar argument by U-Haul at 

pages 806 to 807.

In all events, Ready Mix relies on Wayne v. Staples, Inc.

(2006) 135 Cal.App.4th 466 (Wayne), a case this court decided on 

summary judgment. In Wayne, the plaintiff in a putative class

action alleged Staples’s parcel shipping order form was deceptive 

under the False Advertising Act (§ 17500 et seq.)

8 because the

form failed to properly disclose Staples’s 100 percent profit or 

markup on the sale of optional “declared value coverage.” (Id. at 

p. 473.) The form indicated such coverage would be provided 

through the carrier (UPS), not Staples, and informed customers 

they could instead use an independent company. It further 

stated, “‘Please note that we may surcharge the cost of this 

product as an administrative expense, for services such as 

processing of potential claims and related services.’” (Id. at 

8 The UCL incorporates by reference the False Advertising 

Act. (See § 17200 [UCL prohibits “any unlawful, unfair or 

fraudulent business act or practice and unfair, deceptive, untrue 

or misleading advertising and any act prohibited by Chapter 1 

(commencing with Section 17500) of Part 3 of Division 7 of the 

Business and Professions Code.”].)
14

p. 483.) Staples did not dispute it automatically marked up the 

cost of the coverage on each purchase without regard to actual

administrative expense. (Ibid.) The trial court granted Staples’s

motion for summary judgment, and this court affirmed,

concluding that “[i]n light of Staples’s clear disclosure of the 

actual price it would charge its customers for declared value 

coverage prior to any purchase, the trial court properly concluded 

any ambiguity in the order form as to whether the amount 

charged includes a ‘surcharge’ or profit for Staples was not 

misleading or deceptive.” (Id. at p. 484.)

Ready Mix also relies on Searle v. Wyndham International, 

Inc. (2002) 102 Cal.App.4th 1327, 1334 (Searle), which affirmed a

demurrer to plaintiff’s UCL claims brought against a hotel. 

Searle ruled it was not deceptive or unfair for the hotel not to 

specify that a clearly stated 17 percent hotel “service charge” on

room service orders was paid directly to servers. (Searle, at 

p. 1334.) According to Searle, guests had no legitimate interest

in how this charge was distributed and were “given both clear 

notice the [room] service being offered comes at a hefty premium

and the freedom to decline the service.” (Ibid.)

Wayne and Searle are distinguishable from the facts 

alleged in Sepanossian’s complaint. Sepanossian’s central

allegation is that the energy and environmental fees charged by 

Ready Mix are misleadingly named, have no relation “in intent or 

practice” to any actual energy or environmental costs, and are 

wholly profit for which customers receive nothing in return

(since, as the complaint alleges, customers pay for the concrete 

with the agreed-upon “set rate”). By contrast, in Searle, the 

plaintiffs did not allege the service charge was misleadingly 

labeled, and there was no allegation or contention the “service
15

charge” for room service was unrelated to the service actually 

received. The Searle plaintiffs only complained that the hotel did 

not disclose how it allocated the service charge, and, in those 

circumstances, the court properly concluded that a customer “has 

no legitimate interest in what the hotel does with the service 

charge.” (Searle, supra, 102 Cal.App.4th at p. 1334.) In Searle, 

the service charge was not fraudulent (or unfair) because it was a 

bona fide service charge for which plaintiffs received something 

in return.

Similarly, in Wayne, the core allegation was essentially

that customers paid a steep markup for shipping insurance

coverage and that the size of the markup was undisclosed, not 

that the “declared value coverage” charge was misleadingly 

labeled or unrelated to actual insurance coverage. Further, the 

order form in Wayne disclosed that the “declared value coverage”

charge could be surcharged to cover administrative expenses. 

That is, it expressly disclosed the charge for coverage could be 

surcharged and that such surcharge was intended to cover (but

not limited to) anticipated expenses for processing potential 

claims and related services. By contrast, Ready Mix’s quotes and 

invoices—attached to its motion for judgment on the pleadings—

do not contain comparable disclosures regarding the 

environmental and energy fees it charges. Wayne also was 

decided on summary judgment, not judgment on the pleadings,

with discovery regarding the nature of the charges and their 

relation to actual expenses.

9

9 Ready Mix relies on several federal cases applying 

California law. “We, of course, are not bound by federal decisions 

on matters of state law.” (Haynes v. EMC Mortgage Corp. (2012) 

205 Cal.App.4th 329, 335; accord, Bank of Italy National Trust & 
16

More fundamentally, Ready Mix’s framing ignores that 

clear disclosure of the amount of a particular charge on a 

customer’s invoices does not foreclose the possibility that the

label attached to that charge—which is fully within its control—

could mislead a reasonable consumer. Reasonable consumers are

entitled to infer that the descriptive name attached to a 

particular fee they are being charged has some connection to the

fee unless otherwise indicated. If the terms “energy” and 

“environmental” had been defined, or their function and intent 

described in the quotes and invoices, a UCL cause of action under 

the fraudulent prong may have failed at the pleadings stage. But

here, where we accept as true Sepanossian’s allegations that 

consumers are not informed the fees they pay have nothing to do 

with actual energy or environmental costs, consumers receive

nothing in return for payment of those fees, and the fees are 

instead solely intended for Ready Mix to increase its profit from 

the transaction above the set rate, the complaint properly stated 

a claim. Under these circumstances, we cannot “‘“say as a matter 

of law that contrary to the complaint’s allegations, members of 

the public were not likely to be deceived or misled by”’” Ready 

Mix’s alleged conduct. (Klein, supra, 202 Cal.App.4th at p. 1381.)

Savings Association v. Bentley (1933) 217 Cal. 644, 653 [noting a

holding of federal court on California law “would not be binding 

or conclusive on the courts of this state”].) Similarly, we are not 

bound by federal court decisions decided under the consumer 

protection statutes of other states that Sepanossian cites.
17

2. “Unfairness” prong of the UCL

Sepanossian has also adequately alleged Ready Mix’s

energy and environmental fees are unfair under the UCL. The 

complaint alleges and we must accept as true that (1) such fees 

are automatically added to every concrete purchase, thus causing 

substantial injury to customers; (2) the fees provide no 

countervailing benefit to customers; and (3) the fees were 

mandatory and unavoidable, thus there was no way for 

customers to reasonably avoid the injury because if they wanted 

to purchase concrete from Ready Mix, they had to pay the fees. 

(See Davis, supra, 179 Cal.App.4th at pp. 597-598 [to adequately 

allege unfairness, “(1) the consumer injury must be substantial; 

(2) the injury must not be outweighed by any countervailing 

benefits to consumers or competition; and (3) it must be an injury 

that consumers themselves could not reasonably have avoided”].)

Ready Mix contends that businesses do not engage in 

unfair conduct under the UCL by charging a fee when a 

consumer is given the freedom to avoid the fee. Relying on

Shvarts v. Budget Group, Inc. (2000) 81 Cal.App.4th 1153, 1159-

1160, Ready Mix argues Sepanossian could have avoided the 

injury alleged because the fees at issue were disclosed before

contracting. Shvarts held that a car rental agency’s per-gallon 

charges for replacing fuel were “avoidable” and did not violate the 

UCL where three payment options and the agency’s dollar-pergallon rate were “clearly printed” in the rental agreement and 

statutory law protected rental companies’ ability to “‘charge for 

an item or service provided in connection with a particular rental 

transaction if the renter could have avoided incurring the charge 

by choosing not to obtain or utilize the optional item or service.’”

(Id. at p. 1158 [affirming order of dismissal after sustaining 
18

demurrer without leave to amend].) However, the fees in that 

case were both clearly disclosed and optional for the company’s 

customers: Budget customers could rent a car from Budget yet

avoid its allegedly inflated per-gallon rate by simply buying 

replacement fuel elsewhere.

Here, Ready Mix customers cannot buy concrete from it 

while avoiding being charged the energy and environmental fees.

On a motion for judgment on the pleadings we must accept as 

true Sepanossian’s allegation the fees were unavoidable for 

customers who wished to purchase concrete from Ready Mix. 

(See Sports Foundation, supra, 5 Cal.5th at p. 432 [“we accept as 

true all material allegations in the complaint”]; see also Aron, 

supra, 143 Cal.App.4th at p. 805 [where plaintiff “specifically 

pleads that customers must pay a charge one way or the other,”

such allegations support a claim under the unfairness prong of 

the UCL that a customer cannot avoid the charge].) 

Ready Mix also cites Searle, supra, 102 Cal.App.4th at 

page 1334, for the proposition that “clear notice” and “the 

freedom to decline the service” defeat a claim of unfairness under 

the UCL. But with regard to the imposition of the misleadingly

labeled fees here, “[a]s [Sepanossian] has adequately alleged that 

[such fees are] not, in fact, avoidable, Searle provides no 

protection for [Ready Mix’s] imposition of a charge for a service it 

does not provide.” (Aron, supra, 143 Cal.App.4th at pp. 805-806

[rejecting U-Haul’s assertion that “the fact that it incurs no 

refueling charges is irrelevant to the unfairness analysis”].)

Accordingly, the complaint stated a cause for violation of

the UCL under both the fraudulent and unfairness prongs.
19

D. Judgment on the Pleadings on the Unjust Enrichment 

Cause of Action Was Appropriate

Sepanossian’s complaint states the third cause of action for 

“unjust enrichment” is pleaded “in the alternative” and “[t]o the 

extent necessary.” The cause of action incorporates all preceding 

allegations by reference and further alleges: “By charging and 

collecting ‘energy’ and ‘environmental’ fees which it knew to not 

be justified by any fuel cost in incurred, by suppressing and 

misrepresenting material facts (including that it would charge 

‘energy’ and ‘environmental’ fees that were unrelated to its actual 

or increased fuel costs), and by engaging in other wrongful and 

unlawful conduct as set out herein, Ready Mix obtained a benefit, 

in the form of money, which properly belongs to the putative 

class. The benefit conferred by the putative class was nongratuitous and Ready Mix realized value from this benefit. . . . 

[¶] Due to Ready Mix’s conduct, it would be unjust for Ready Mix 

to retain the benefit bestowed by Plaintiff and the class members 

at the expenses of Plaintiff and the class members.”

As an initial matter, “[t]here is no cause of action in 

California labeled ‘unjust enrichment.’” (City of Oakland v. 

Oakland Raiders (2022) 83 Cal.App.5th 458, 477 (Oakland).) 

Rather, an unjust enrichment claim is grounded in equitable 

principles of restitution. (See Hirsch v. Bank of America (2003) 

107 Cal.App.4th 708, 721 (Hirsch); see also Durell v. Sharp 

Healthcare (2010) 183 Cal.App.4th 1350, 1370 (Durell) [“Unjust 

enrichment is synonymous with restitution.”].) Unjust 

enrichment is sometimes considered “‘“a general principle, 

underlying various legal doctrines and remedies,”’ rather than a 

remedy itself.” (Melchior v. New Line Productions, Inc. (2003) 

106 Cal.App.4th 779, 793.) 
20

Unjust enrichment is generally an inapplicable basis for 

restitution where the parties have an enforceable express 

contract, however, “restitution may be awarded in lieu of breach 

of contract damages when the parties had an express contract,

but it was procured by fraud or is unenforceable or ineffective for 

some reason,” or “where the defendant obtained a benefit from

the plaintiff by fraud, duress, conversion, or similar conduct.” 

(Durell, supra, 183 Cal.App.4th at p. 1370.) “Common law 

principles of restitution require a party to return a benefit when 

the retention of such benefit would unjustly enrich the recipient; 

a typical cause of action involving such remedy is ‘quasicontract.’” (Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 

661; see Ghirardo v. Antonioli (1996) 14 Cal.4th 39, 51 [“Under 

the law of restitution, an individual may be required to make 

restitution if he is unjustly enriched at the expense of another.”].)

Thus, Sepanossian’s “unjust enrichment” claim “does not 

properly state a cause of action.” (Levine v. Blue Shield of 

California (2010) 189 Cal.App.4th 1117, 1138.) Because 

Sepanossian does not dispute there were express form contracts

in this case, he cannot assert a quasi-contract claim for

restitution based on unjust enrichment. “Although a plaintiff 

may plead inconsistent claims that allege both the existence of an

enforceable agreement and the absence of an enforceable 

agreement, that is not what occurred here. Instead, 

[Sepanossian’s] breach of contract claim pleaded the existence 

of . . . enforceable agreement[s] and [his] unjust enrichment claim 

did not deny the existence or enforceability of [those]

agreement[s]. [Sepanossian is] therefore precluded from 

asserting a quasi-contract claim under the theory of unjust 

enrichment.” (Klein, supra, 202 Cal.App.4th at pp. 1389-1390.)
21

More fundamentally, “[b]ecause we have found that 

[Sepanossian’s] remedies at law are adequate” (i.e., his count

alleged under the UCL), a separate claim for restitution is 

unnecessary. (Collins v. eMachines, Inc. (2011) 202 Cal.App.4th 

249, 260 (Collins) [on review of a successful motion for judgment 

on the pleadings, where appellate court determined plaintiffs

stated valid claims under the UCL, Consumers Legal Remedies 

Act, and fraud, “a claim for restitution, alleging that [defendant]

has been unjustly enriched by its fraud, is unnecessary”].) “This 

conclusion follows from the general principle of equity that 

equitable relief (such as restitution) will not be given when the 

plaintiff’s remedies at law are adequate.” (Id. at p. 260.)

Here, the gravamen of Sepanossian’s unjust enrichment 

claim is that Ready Mix was unjustly enriched by customers

paying fees that were fraudulent and unfair under the UCL, and 

that such customers are entitled to recover those fees from Ready 

Mix. The unjust enrichment claim merely incorporates the

allegations, derivative of the UCL claim, that Ready Mix received 

a financial advantage—money obtained from misleadingly named 

fees charged to its customers—which it unjustly retained at their 

expense. Restitution is already an available remedy under the

UCL cause of action, within the broad equitable discretion of the 

trial court. (See § 17203 [restitution is available “to restore to 

any person in interest any money or property . . . which may have 

been acquired by means of such unfair competition”]; see also

In re Tobacco Cases II (2015) 240 Cal.App.4th 779, 790.) Thus, a 

separate claim is unnecessary for Sepanossian to recover 

restitution. “In light of the adequate legal remedies, we conclude 

the complaint does not state a claim for restitution based on 

unjust enrichment.” (Collins, supra, 202 Cal.App.4th at p. 260.)
22

DISPOSITION

The order of dismissal is reversed. The order granting the 

motion for judgment on the pleadings is also reversed, and the 

trial court is directed to enter a new order denying the motion on 

the UCL cause of action and granting it on the unjust enrichment 

cause of action. The parties are to bear their own costs on appeal.

MARTINEZ, J.

We concur:

PERLUSS, P. J.

SEGAL, J.