Filed 11/15/23 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

GAR Y SEPANOSSI A N,

Plaintiff and Appellant,

v.

NATIONAL READY MIX COMPANY, I NC.

,

Defen d ant 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. Affirme d in part

, reversed in part, and r emanded with dire ctions.
Pri c e Armstrong and Nich olas W. Armstr ong for Plain t iff and Appel lant. Covington & Burling , Sonya D. Winner, Ashley M.
Simonsen and Alaxander L. S ch ultz for Defendant and
Res pondent.

_______________________2 INTRODUCTION

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

, ind ividually and as class representative , filed a c lass action against National Ready Mix Concrete Co

. , Inc. ( Read y Mix)

, 1 alleging Rea dy Mi x c harged it s customers a n “ ener g y ” fee and an

“ environmen tal ” fee “ wholly un tethered to any actual cost for

‘ ene rgy ’ o r ‘ environ ment al ’ i ssues ” that Ready Mix instead

“ recognize [s] as profit

. ” The complaint allege s cau se s of action for (1) violation o f California ’ s Unfair C o mpetition Law (UCL) ( Bus

. & Prof

. Code

, § 17200 et seq. 2 ) un der the fraudulent and
unfair business prac tices pro ngs ; (2) breach of contract ; and (3) “ unjust enrichment

. ”
After R ead y Mix answ er ed the complaint

, Sepanossian filed
a motion for class certificati on

. T he tr ial court granted c lass
certif ication , but expresse d doubts about Sepanossian ’ s legal
claims and in vited the parties to present a motion for judgment
on the plead ings to ad dr ess the merits before class notice

. The

par ties agreed to do so , and Ready Mix subsequently fi led a motion for j udgment on the pleadings , which the trial court granted on the U CL a nd unj ust enrichment cause s of actio n

. W e

reverse because Sepanossian alleged facts suffi cient t o state a

cause of action under the UC L

, but affirm dismissal o f the unjust

e nrichment c ause of action

.

1 Sepanossian sued Ready Mix as “ Nati onal Ready Mix Company

, Inc.

, ” wh ich R eady Mix ’ s brief notes was in co rrect

. R e ady Mix advanc e s no argument this error affects ou r analysis on appeal.

2 Statutory references are t o the Busi n ess and Pr ofessions Code unless otherwise indic ated

.3 FA CTUAL AND PROCEDURAL BACKGROUND 3

Ready Mix sel ls mix ed concrete to small busine ss es fo r construction projects

. Sepanossian oper ates a construction
business in Encino , California

. Sepanoss ian and the cl ass he represent s are customers of Ready Mix who pay Ready Mix a “ set

rat e ” for i ts concrete products

. T o e a ch sa le, Ready Mix adds an

“ energy ” fee and an “ envi ronmental ” fee separate from the set

rate

. 4 These fees are un iform and d o n ot correlate to or fluctuate in any w ay with any actual e ner g y or environmental co sts incu rred by Ready Mix or the size o f t he order

. T he complaint

a lleges t he “ energy ” fee has no relat ionship to Ready Mix ’ s fuel or
energ y costs and the “ en vir onmental ” fee does not relate to any environment al costs incurred by Re ady Mix. Sepanossian further alleges t h e fees are rec ogniz ed by Ready Mix as profi t. The energy and environme ntal fee amounts are separately itemized

o n invoices and disclosed to customer s, but no further

exp lanation or information abou t the n ature of the fees is

p rovide d

. A cc ording to the quotes and in voices judicia lly noticed by the t rial court, the env ironme ntal fee s and energ y f e es are generally appr ox imately $3 0 each per delivery. The gravamen of Sepanoss i an ’ s complaint is not that class members d id not know

3 On r e view from a motion for judgme nt on th e pleadings,

“ we accept as t rue all material a llega tions in the complain t

. ” ( National Shoo ting Sports Foundation, I n c

. v

. S t a t e o f C

a l i f o r n i a ( 2 0 1 8 ) 5 Ca l.5th 4 2 8
, 432 ( Sports Foundati on ) .)

4 T he tria l c ourt took judi cial notice o f four e xemplar q uo tes and invoices reflecting t hose fees. The parties agreed such judicial notice was proper so Sep anossian did not have to file an amended complaint attaching these documents.4

the amount of these charges, bu t r ather t hat the terms
environ men tal fee and energy fee were m isl eading.
I n April 2020 Sepanossian filed a class action complaint

aga inst Ready Mix on behalf of h imself and all others similarly
situa te d

, seeking restitution, injunctive relief

, and damages

. Sepano ssian ’ s compla int alle ges in rele vant part t hat , in
connection with its sales of concrete, Ready Mix fraudulently, deceptively, and unfairly add e d “ energy ” and “ environmental ”
fe es abo ve the set rate that are unrelated to Ready M ix ’ s actual

energy or environment al cost s , a nd th at Rea dy Mix was unjustly enriched by these practic es

. The complaint alleges Ready Mix ’ s p ractice of charging
customers for “ ener gy ” and “ environmental ” fees is likely to
de ceive reasonable custo m ers into be lieving the se are legitim at e ch arges di r ectly relate d to actual costs incurred by Ready Mix in delivering it s orders of ready

- mixed concre t e. The complaint
f urther alleges that Sepanos s ian and class members were induced to purch ase the concrete and pay the fees because they

were m isl ed by the l abels

. 5 Sepan ossian al so alleges

, “ Plaintiff

5 For example, as t o the UCL c laim, the complai nt alleges R e ady Mix ’s “ fraud ulent acts ” include “ (a) Representing, through the commonly understood

. . . term ‘ energy ’ and ‘ envir onmental ’ fees ” that such fees were “ implemented, calculated, charged, and collected to offs et Ready Mix ’ s actual or increased fuel costs. This representa tion was made uniformly on the form contracts at issue and invoices. Plaintiff and class members rel ied upon this understood meaning, as used by Ready Mix, in entering the contract and paying the fee. This representation was material as Plaintiff and cla ss members would not have paid the ‘ energy ’ and

‘ environmental ’ fees had they known [t hey were] simpl y a profit

enhancemen t tool. This representation is false as ” such fees are

“ not related to or used to offset Ready Mix ’ s act ual or incre ased5

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 be e n subject to Ready Mix’s misrepresentations and
omissions. ” Ready Mix answered the complain t , and the pa rties proceeded to class ce rtification.
In July 2021 the trial c ourt certified the two proposed
clas se s ( an “ en ergy fee cl ass ” and an “ enviro nmental fee class ” )
but express ed “ serious questions regarding the merits of
Plaintiff ’ s claims. ” At t he hearing, the court stated that although
it could not reach the merits on the motion for class cert if ication

, i t s ruling “ cer tainly signal[s ] pretty strongly that I think [ Rea dy
Mix is ] r ight. ” The court invited t he parties to present a disposit ive motion on the merits bef ore undertaking the expense
of class notice

, and suggested a motion f or judgment on t he pleading s , with the rele vant invoices incorporated

, as a n alternative to a summary judgment motion

. The parties subseq uently conferred and stipulat ed to do so , and in September 2021 Read y Mix filed a motion for judgmen t on the pl ea d ings and an unopposed request for j udicial notice of the

quo tes and invoices re flecting t h e challenged f ees

.

costs of fue l. 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 allegation s under a n omissions theory.6 In October 2021 t he trial co urt granted Ready Mix ’ s motion
for judgment on the p leadings as to th e UCL and unjust

enr ichment ca u ses of action

. The trial c ourt ruled that “ the

terms ‘ environmental ’ and ‘ energy, ’ standing alone, are at best ambiguou s and there is no allegation Ready Mix further

pr omised or re presented h ow it would use the fees

, ” thus

, a s a
matter o f l aw , the y were not misleading or deceptive

. It further
ruled that because Ready Mi x clearly disclosed the amount of fees

as pa rt of the to tal cost , t he practice as a matter of law was not

u nfair

. With regard to unju s t enr ichmen t, the court reasoned
that because the re was an express contract between the parties

co vering the fees (i.e.

, the form contracts lis t ing the fees)

, an d th e

con tract was no t procured by fraud or otherwise u ne nforceable or
ineffect ive, Sep anos sian could not ass ert a claim for restitution
based on un

just enrichment

. On December 22, 2021 S epanossian voluntarily dismissed the remaining breach of con trac t cause o f action. O n De cember 29, the tri al court dismissed the entire action with prejudice

. 6 Sepanossian timely appeal ed

. 7

6 T he tri al court issu ed 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 fi nally disposes o f t he particular action and prevents further proceedings as effectually as would any formal judgment

. ’ ”] .)

7 Sepanossian doe s not appeal the dismissal of the contract claim

.7 DISCUSSION

A. Stan dard of Review

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

appr op riate when the c omplaint fails to alle ge facts sufficient to
state a cause of action. [ Citation.] A mot ion for judgment on the pleadings is equivalent to a demurrer and is governed by the

sa me de novo standard of review. ’ [Citation.] ‘ All properly pl ea ded , material fa cts are d eemed true, b ut not conte ntions,
de ductions, or conclusions of fact or la w

. . . . ’ [Citation.] Courts may consider j udicially noticeable matters in the mot ion as w ell. ” ( P eople ex rel. Harris v. Pac Anchor Transportation, Inc. (2 014)
59 Cal.4th 772, 777 ; see genera lly Code Civ. Proc., § 4 38 .) Our
review is de nov o because the trial court ’ s ru ling on a motion for judgment on the plea dings “ resol ves a mixed q uestion of law and fact that is predominantly one of law, viz., whether or not the factual allega tions that t h e pl ain tiff makes are sufficient to
constitute a c ause of ac tio n. ” ( Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515 .)

“ A t rial court ’ s determin ati on of a motion for jud gment on the pleadings accepts as true th e factual allegations that the plain tiff makes. [Citations.] In addition, it gives t hem a libe ral

const ruction. [Citations.] [¶] An appellate court ’ s consideration
of the ens uin g determ ina tion by the trial court involves the same acceptance and libe ra l construction of the f actual allega tion s i n

que stion. [Citations.]

. ” ( Gerawan Farmi ng, Inc. v . L yons , supra, 24 Cal.4th at pp. 515

- 5 16 ; acc ord, Aron v. U

- Haul Co. of California (2006) 143 Ca l.App.4th 796, 802 ( Aro n ) .)8

B. The UCL The purpos e of the UCL “ ‘ “ is to p ro tect both consumers and

c ompetitors by promoting fair competition in comme rcial mark ets for goods and ser vices. ” ’ ” ( California Medical Association v. Aetna Health of California Inc. (2023) 14 Cal.5th 1075 , 1085 ( California Medical Associatio n ) ; accord

, McGill v . Cit ibank, N.A. ( 2017) 2 Cal. 5th 945, 954 ; Kasky v. Nike, Inc. (200 2) 27 Cal. 4th 939, 949 .) “ ‘ Through t he UCL a plaintiff may obtain restitution and/or injunctive relief against unfair or unlawful practices. ’ ” ( Korea Supply Co. v. Lo ckheed Martin Corp

. (2003) 29 Cal.4th 1134, 1144 .) The UCL is broad in scope ( Kasky, at p. 949 )

, and
defines “ ‘ unfair competit i on ’ ” to mean and include “ a ny unlawful,
unfa ir or fraudulent bus iness act or pra ctice ” (§ 17200 )

. “ Because
the statute i s framed i n the disjunctive, a b usiness prac tice nee d only meet one of the three criteria to be considere d u nfair competition

, ” and a ca use of action under t he UCL may be
established “ ‘ “ i ndependent o f any contractual relationship between the partie s. ” ’ ” ( McKell v. Washington Mutual, Inc. (2006) 14 2 Cal.App.4th 1457, 1471 ( McKe ll ) .)

“ To state a cau se of acti on under consu m er protection statutes designed to protect the public from fraudu lent or deceptive representations, the plaintiff mus t de mo nstr ate that

‘ “ members of the public are likel y to be dec eived. ” ’ ” ( Aron , sup ra , 143 Ca l.App.4th at p. 806 ; acc o rd, M or g an v. AT&T Wireless Services, Inc. (2009) 177 Cal.App.4 th 1235 , 1255 [ a “ fraudul ent ” business pr acti ce under the UC L “ is on e that is likely to deceive members of the public ” ] .) We appl y the “ reasonable consumer ”
standard t o actions in volving clai m s und er the UCL for deceptive

or unfair business pract ices. ( Klei n v. Chevron U.S.A., Inc. (2012)
202 Cal. App.4th 1342, 13 80 ( Klein ) ; Aron

, at p. 806 ; Consumer9

Advoc ates v. Echostar Satell ite Corp. ( 2003) 1 1 3 Cal.A pp.4th 1351, 1360 .)
Un d er the reason able consu mer standard

, whether a business practice is deceptive under th e “ ‘ fraudulent ’ ” pron g of
the UCL “ ‘ i s based on the likely effect such practice would have
on a reasonable consumer. ’ ” ( Klein , supr a, 202 Cal.App.4th at

p. 13 80 ; accord, L avie v. Pro cter & Gam ble Co. (2003)
105 C al.App.4th 496, 50 8 [ whether an advertiseme nt or business

p ractice violates th e UCL is measured “ by the likely effect on t he normally credulo us consumer ” ]

. ) “ This is determin ed by

c o nsidering a rea sonable consu mer who is neit her the mo st vigilant and suspicious

. . . nor the most unwary and unsoph isticated, but i nstead is ‘ the or di nary consumer within the target popul ation. ’ ” ( Chapman v. Skype Inc. (2013)
220 Cal.App.4th 217, 226 ( Chapm an ) .) ‘ ““ Like ly to deceive ” for

purpose s of the U CL ind icat es “ it is probable that a significan t

p ortion of the ge neral consuming publ ic or of targeted consumers, acting reasonably in the cir cumstances, could b e misled. ’ ” ( I d

. at

p. 226. ) A c laim und er the UCL “ ‘ may be based on representa tion s to the p ubl ic which are untrue, and “ ‘ also those
which ma y be accurate on some level, but will nonethe le ss tend to
mislead or deceive

. . . . A perfec tly true statement couched in
such a manner that it i s likely to m islead or deceive the

consumer, suc h a s by failu re to disclose other relevant information, is acti onable under ’ ” the UCL. ’ ” ( Klei n , at p. 1380 ; accord, McKell , supra, 142 Cal.App.4th at p. 1471 .)
W hether cons umers are likely to be deceived is general l y a question of fact that can be decid ed a t the plea din gs stage “ only i f
the f acts alleg ed in the com plaint, and facts judicially noti ce d, compel the conclusion as a matter of law that consumers are not10

likely to be deceived

. ” ( Chapman , supra, 22 0 Cal.App .4th at

p p

. 22 6

- 227 ; acco rd, Klein

, supra, 202 Cal.A pp. 4th at p. 138 1 [ “ ‘ “ [U]nless w e ca n say as a matter of law that contrar y to the compla in t ’ s allegat ions, members of the public were not like ly to
be deceived o r misled by [the defend ant ’ s alleg ed condu ct], we
must hold th at [plaintiffs] stated a cause of ac tion. ” ’ ” ].) With regard to the “ ‘ unf air ’ ” pr ong of the UCL

, “ a business practice is ‘ unf

ai r ’ if (1) the consumer injury is substantial; (2) the injury is not outweighed by any countervailing b enefits to

co nsume rs or competi tion; and (3) the in jury could no t reasonably have been avoided by consumers themselves. ” ( Klein , supra, 202 Cal.App.4 th a t p. 137 6 , quo ting Camacho v. Automobile Club of Southern California (2006) 142 Cal.App.4th 1394, 1403 ; a ccord

, D avis v. Ford Motor C redit Co. LLC (2009) 179 Cal. A pp. 4th 581,
598 ( Davis ) .) “ Whether a practi ce is .

. . unfair is generally a

qu es tion of fact

. . . which usually cannot be [decided] o n demu rrer

. ” ( Linear Technology Corp. v. Applied Materials , Inc. (2007) 152 Cal.Ap p.4th 115, 134

- 135 .)

C. Se panossian Has Stated a Claim Under Both the

“ Fraudulent ” and “ Unfair ” Prongs of the UCL

1. “ Fraudulent ” p rong of the UCL
S epanossian alleg ed that b y a dd ing “ ene rgy ” and

“ envi ronmental ” fees to each order on t o p of th e set rat e for i ts concrete product sales

, Ready Mi x fra ud ulentl y deceived

customers into believing they were being charged fees bearing
some relation to e nergy

- re lated or envir onmental

- related costs borne by Ready Mix. Specifically, Sepan ossian a lleged

, “ [i] n truth, Ready Mix ’ s cha rg es f or ‘ energy ’ a nd ‘ environmental ’ fees were not designed to cover anything related to addition al ‘ energy ’11

costs or any ‘ environ mental ’ f ee. The amount of these ch arges are arbitrary and are simply designe d t o incre a se the a greed base price and genera te extr a profit a t i ts customer ’ s expense

. ” Sepanossian allege d Ready Mix ’ s conduct deceptively and unfairly m isleads consumers b ecau s e the listed fees did not in fact, “ in intent or practice

, ” relate to any fuel

, ene rgy or envi ronmental costs in curred or antici pat ed by Ready Mix , and
there was no wa y for consumers to reasonably a void the injury
because the fees w ere mandatory

. At the pleading stage, we can not conclude

, as a matter of
law , that con sumers are no t likely t o be de ceiv ed in the manner al leg ed

. S epanossian alleged facts which, if true, may reveal that members of the public believed the fe es Ready Mix charge d them
had some nexus to e nergy or environmental costs , when in fact
th e listed fees had no such relation ship and w er e solel y adde d to
in crease profi t s 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 provision s a t issue he re. There the pl aintiff alle ged t hat a

“ f u e ling fee ” imposed by U

- Haul when cus to mer s r eturned a rental truck with less fu e l than originally provided was an unfa ir and misleading designation “ because the fu el is not in fact replaced [before the next truck rental ] and this fact is not
disclosed to the consum er. ” ( Id. at p. 80 6

. ) We re ver sed the trial

court ’ s judgment on the ple adings in U

- Haul ’ s fav or , reject ing
U

- Haul ’ s argument s that “ t here is nothing deceptive about
calli ng the fee charged when a custo mer returns a truck with less fuel than pr ov id ed a ‘ f ueling fe e

. ’ ” Aron furt her r eje cted U

- Haul ’ s arguments that “ it makes no express or implied representations suggesting that it refuels returned vehicles, and that what it does12

with the fuel charges is of no concern to the customer s. ” ( I bi d

. )
Aron determ ined th e facts alle ged w ere s uff icient to show t hat calling a charge a “ fueling fee ” when a t ruck rental cus tomer

returns with less fu el than provided “ would be misleading to a reasonable co nsumer becaus e there is no connection betw een the impos ition of a fee or cost and whe ther the c ust omer has in fact
refueled the v ehicle. ” ( Id

. at p. 807

. ) Aron concluded th e plaintiff alleged s ufficient facts to state a cause of acti on for fraudulent business practices u nder the UCL. ( I bi d. ) Here, similar to Aron

, Sep ano ssian alle ged facts s uff ici ent

to show Ready Mix ’ s fees are misleading to a reasonable
consumer bec ause there is no connection between the imposition
of R e ad y Mix ’ s “ energy ” or “ environ mental ” fee s an d whether
R eady Mix is in f

act charging it s customers for energ y or

en vironmen ta l c osts

. “ ‘ “ ‘ A perfectl y true statement couched in

s u ch a manner that it is likely to misle ad or deceive the consumer, such as by fail ur e to disclose other relevant information, is actionab le. ’ ” ’ ” ( Klein

, supra, 202 Cal.App.4th at

p. 1380 .) Th e invoices cl e arly list the “ energy ” and

“ environmental ” fee s and accurately reflect th e dollar amount

c harged

, but the fees are presented to a consumer in such a wa y that it is pr obabl e a cons umer would be misle d or deceived in to believin g it was b e ing c h arged bona fi de fees for energy or envi ronmental costs borne by Ready Mix

. In other words

, a reasonable consu mer would likel y 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 pu rchase

, had no actual
rela tionship of any kind to Ready Mix ’ s energy or environmental

costs and was pure profit

.13 Ready Mix maintains that Sepanossian failed t o state a

c laim under the fraudulent prong of t he UCL bec ause “ the t erms

‘ en ergy fee ’ and ‘ envi ron mental fee, ’ standing alo ne, do not
constitute affirmative representations that the amo unts charge d are (or are not) exclusive of profit. ” Ready Mix contends th ere is no actionable misrepresentat ion because “ a reasonable c on s ume r is not likely to construe [Ready Mix ] ’ s fee labels, standing alone, as unequivocal representations that the amount s charged were wholly tethered to [it s] costs and not the so urce of any profit

. ” A s noted a bove, Aron rejected a similar argu ment by U

- H aul at

p age s 806 to 807.
In all event s , Ready Mix relies on Wayne v. Staples, Inc

. (2006) 135 Cal.A pp.4th 466 ( Wayne ) , a case this court decided on summary judgment. I n Wayne , the plaintiff in a putativ e class
action alleged Staples ’ s parcel shippin g o r de r form w a s deceptive
under the False Advertising Act (§ 17500 et seq. ) 8 because t he
form fail ed to properly disclose Staples ’ s 100 percent profit or markup on the sale o f optional “ declared value coverag e

. ” ( Id

. at p. 473.) The form indicated such cove ra ge would be provided through the carr i er ( UPS) , not Staples

, and inform ed customers
th ey could instead use an ind ependent company

. I t further
stated

, “ ‘ Please note that we may surcharge the cost of this produc t as an administrative expense, for services s uch as

p roc essing of potential claims and related s ervices. ’ ” ( Id. at

8 The UCL incorporates by reference the False Adverti si n g Ac t. ( S ee § 17 200 [ UC L p rohibits “ any un lawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue

o r misleading adve rtis ing and any act prohibited by Chapter 1 (com mencin g with Section 17500) of Part 3 of Division 7 o f the B us i ness and Professi ons Cod e. ” ].)14

p. 483 .) Sta pl es did not dispute it automatically marked up the cost of the coverage on each purc hase without regard to actual
admi nis trati ve expense

. ( I bi d. ) The tri al co urt gran t ed Sta ples ’ s motion for summary judgment

, and this court affirmed,

conc lud in g that “ [i] n light of Staples ’ s clear disclosur e of the actual price it would charge its customers for declared value

cov erage prior to any purcha se, the trial court properl y conc l ud ed

any a mbi guity in the order form as to whet her the amount charged inclu de s a ‘ surcharge ’ or profit for Staples was not misleading or deceptive. ” ( I d. at p. 4 84

. )
Rea dy M ix also reli es on Searle v. Wyndham Int e rn at ional

, In c. (2002 ) 102 Cal. Ap p.4th 1327, 1334 ( Searle ) , which affir m ed a demurrer to plaintiff

’ s UCL claims brought against a hotel

. Searle rul ed it was not decept iv e or unfair for the hotel not to specify that a cl early stated 17 percent hotel “ serv ice charge ” on

ro om service orders was paid directly t o servers

. ( Searle , at

p. 1334.) According to Searle

, gu est s h ad no legitimate interest
in how this charge was distributed and were “ given both cle ar notice the [ ro om] service being offered comes at a hef ty pre mium

an d the freedom to decline the service

. ” ( Ibid. ) Wayne and Searle are dis tinguishable fr om the facts
al leged in Sepanossian ’ s compla int

. S epanossian ’ s central alleg ation is that the energy a nd environmental f ees charged by
Re ady Mix are mi sleading l y nam e d

, have no relation “ in intent or

prac tice ” to any act ual energy or enviro nmental co sts
, and are wholly profit for which cu stomer s receive nothing in return (since, as the complaint alleges , customers p ay for the con crete with the agreed

- upo n “ set rat e ” )

. B y contrast, i n Se arle

, the plaintiffs di d not allege the service charge was misleading l y labeled, and the re was no allegation or co ntention the “ service15

charge ” for room service was unrelate d to the service actually

rec eived . The Searle p laintiffs only co mplained that the hotel did
not disclose h ow it allocated the service charge

, and , in th o se circumstances, the court properly concluded that a customer “ has
no l egitimate interest in what the hotel do es with the service

c harge

. ” ( Searle, supra, 102 Cal .Ap p.4th a t p. 1334. ) In Searle

, t he serv ic e charge was not fraud ulent (or unfair) because it was a
bona fide service charge for whic h plaintiff s received somethin g in return

. Similarly, i n Wayne , the core allegation w as essentially
that cus tomers paid a ste ep markup for shipping insurance

co ve rage and that the size of the markup was undisc l osed , not that the “ declared value coverage ” cha rge was misleadingly
lab eled or unrelated to actual insurance cover ag e

. Further, t he
order form in Wayne disclosed that th e “ declared value coverage ” charge co uld be surcharged to cover administrative expen s e s. That is, it expressly disclosed the charg e for coverage could be

su rcharged and that suc h surcharge was intended to cover (but not limited to) antici pated expenses fo r processing potential
claims and rel ated se rvices. By contrast, Ready Mix ’ s quotes and
invoic e s

— attached to its motion for judgment on the pleadings

— do not contain comparable disclosures regarding t he
environ mental and energy fees it cha rges

. Way ne a lso was decided on s ummary judgment

, not judgment on the pleadings

, with disco v ery regardin g the nature of the charges and their relation to actual expenses

. 9

9 Ready Mix relies on several federal case s applying California law

. “ W e, of course, are not bo und by federal dec isions

on m atters of state law. ” ( Haynes v. EMC Mort gage Corp. (2012) 205 Cal.App. 4th 329, 335 ; accord, Ba nk of Italy National Trust &16 More fundamentally, Ready Mix ’ s framing i gnores that

c lear d isclosure o f the amoun t o f a particular charge on a
customer ’ s invoices does not foreclose the possibility that the
l abel attached t o that charge

— which is fully within its contro l

— could misl e ad a reasonable co nsumer

. R easonable consum e r s are entitled to infer that t he descript ive na me a ttached to a partic ular fee they are being charged has some connection to the
fee unless otherwise indicated

. If the terms “ energy ” and

“ environmental ” had been defi ned, or their f unction and intent
described in the quotes and invoice s, a UCL ca use of act ion under
the fraudulent prong may have failed at the pleadings stage

. But
here

, wh ere we accept as true Sepanoss ian ’ s allegations that
consumers are not informed the fees they pay have nothing t o do
with actual energy or environmenta l costs , co nsu mer s re ceive nothing in return for paym ent of those fees

, and the fees are instead solely intended for Ready M ix to increase its p rofit from
the transaction above the set rate
, the compla int pro perly stated
a claim

. Under the se circumstances , w e cannot “ ‘ “ sa y as a matt er of law that contrar y to the complaint ’ s allegations, members of the public were not li kely to be deceived or misle d by ” ’ ” Ready
Mix ’ s alleged conduc t

. ( Klein

, supra, 202 Cal.App.4th at p. 138 1

. )

S av ings Association v. Bentley (1933) 217 Cal. 644, 653 [ noting a holding of federal court on Californ ia law “ would not be binding

or conclusi ve on the courts of this state ” ].) Simi larly, we are not bo und by federal cou rt decisions decid ed und er the con sum er protection statutes of other states that Sepa nossian cites.17 2. “ Unfairness ” p rong of the UCL Sepanos s ia n h as a lso adequately alleged Rea dy Mix ’ s

energy a n d envi ronmental fees are unfair under the UCL. The complaint alleges and we must accept as tru e that (1) such fees

are automa tically add ed to every con crete purchase

, thus causing
substantia l injury to cu sto mers; (2) the fees pr ovide no
countervai ling benefit to customers ; and (3) the fees were

m andatory and unavoidable, thus there was no wa y for

c usto mers to reasonably a voi d the injury because if they w anted

to p urchase concret e from Ready M ix, they ha d t o p ay t he fees

. (See Davis , supr a, 179 Ca l. App. 4th at pp. 59 7

- 59 8 [ t o adequately allege unfairness, “ (1) the consumer injury must be substantial; (2) the injury must not be outwe ighed by any counte rvailing
benefi ts t o consumers or competitio n; a nd (3) it mus t be an injury
that consumers themselve s 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 giv en the freedom to avoid the fee

. R elying on Shvar ts v. Budg et Group, Inc. (2000) 81 C al.App.4 th 1153, 1159

- 1160
, Ready Mix argues Sepanossian could have avoided the injury alleged be cause the f ees at issue were disclosed before contracting

. S h varts h eld that a car rental agency ’ s per

- g al lon charges for re placing fuel were “ avoidable ” and d id not violate the
UCL whe re three payment options and the agency ’ s dollar

- per

gallon rate were “ clearly printed ” in the rental agreement and statutory law pr o tec te d rental compa nies ’ ab ility to “ ‘ char ge for
an item or service pr ovided in connection with a particular rental

transac tion if the renter could have avoided incurring the charge by choosing not to obtain or utilize the optio n al item or service

. ’ ” ( I d

. at p. 1158 [affirming o rde r of dismissal af ter sustaining18

d emurrer with o ut leave to amend] .) Ho wever, the fees in that

ca se were bot h clearly disclosed and optional for the company ’ s
customers : Budget customers could rent a car from Budget yet avoid its alleged ly i nflated per

- gal lon ra te by s im pl y buying replace ment fuel elsewhere

. Here, Ready Mix customer s cannot buy concrete fro m it
while avoid ing being charged the energy and environmental fees.
O n a motion for judgment on the pleadings we must acce pt a s
tr ue Sepanossian ’ s alle gation the fees w ere unavoidab le for customers who wished to purchase con crete from Ready Mix. ( See Sports Foundation, supra , 5 Ca l.5th at p. 432 [ “ we accept as true all material allegatio ns in the complai n t ” ]; see also Aron

, sup ra, 143 Cal. App.4 t h at p. 805 [ where plai nt iff “ specificall y pleads t hat customers must pay a c harge one way or the other

, ”
such allegations support a claim under the unfairness prong of
th e UCL that a customer cannot av oid the charge ].) Ready Mix als o cites Searle, supra, 10 2 Ca l.Ap p.4 th at

pa ge 1334, for the p r opo sition that “ clear notice ” and “ the
freedom to decline the service ” defeat a claim of unfairness under
the UCL

. But with regard to the imposit ion of the mi slea dingly
l abeled fees here, “ [ a] s [Se panossi an] has adequately alle ge d that [such fees are] no t, in fact , avoidable, Searle provid es no protection for [Ready Mix ’ s] imposition of a charge for a service it does not provide. ” (

Aron , sup ra, 143 C al.App.4 th at p p. 805

- 80 6 [rejecting U

- H aul ’ s assertion t hat “ th e fact that i t incurs no
refuel ing charges is irrelevant to the unfairness analysis ” ] .)
A ccordingly, t he complai nt stated a cause for violat ion of
the UCL under both the fraud ulent and unfair ness prongs

.19

D. Judgment o n the Pleadings o n the Unj ust Enri chment Cause of A ct ion W

as Appropriate Sepano ssian ’ s co mplaint states the thir d c ause of action for

“ unjust enrichment ” is pleaded “ in the alter native ” and “ [t]o th e
exten t nece ssary

. ” T he cause of action incorporates all preceding
al legations b y reference an d f ur ther alleges: “ By charging and
coll ecting ‘ energy ’ and ‘ environmental ’ fees which it knew to not
be justified by any fuel cost in incurred, by supp ressing and misrepres enting material facts (including that it woul d charge

‘ energ y ’ and ‘ environmental ’ fe es that were unrelated to its actual

o r increase d fuel costs ), and by enga ging in other wrongful a nd
unlawful conduct as set out herei n, Ready Mix ob tained a ben efit,
in t he form of money, which properly belongs to t he putative
class. The benefit confe rre d by the putative class was non

gratui tous and Ready Mix realized value from this benefi t. . . . [ ¶ ] Due to Ready Mix ’ s conduct, it would be unjus t for R eady Mix

to reta in the benefit bestowed by Plaintiff and the class members

a t the ex penses of P l a i nti ff and the class members. ”
As an init ial matter

, “ [t] here is no cause of action in
California labeled ‘ unjust enrichment. ’ ” ( City of Oa kland v

. Oakla nd Raiders (2022) 83 Cal.App.5th 45 8, 477 ( Oakland ) .)
Rather

, a n unjust enric hment claim is gr ou nded 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
enric hment is sy nonymo u s with r estitution. ” ] .) U nju st enrichment is sometimes considered “ ‘ “ a general pr inciple, underlyi ng variou s legal doctrines and remedies, ” ’ rather than a

r emedy itself. ” ( Melchi or v. N ew Line P roductio ns, Inc. (2003) 106 Cal.App.4th 779, 793 .)20 U njust enrichme nt is generally a n in applicable b asis for
restitution where the parties have an enforceabl e express
contract
, however

, “ r estitution may be awarded in lieu of breach
of contra ct dama ges w hen the par ties had an express contract

, but it was procured b y fraud or is unenforceab l e or ineffective for

some reason , ” or “ where t he defenda nt obtained a benefit from the plaintiff by fraud, duress, conversion , or similar conduct. ” ( Durell , s upra, 183 Cal.App.4th at p. 1370 .) “ Commo n law princi ples o f restitu tion req uire a party to retur n a benefit when
the retention of such benefit would unjustly enrich the recipie nt; a typical cause of action involving such remedy is ‘ qu asi

con tract. ’ ” ( Mun oz v. MacMilla n (2011) 195 Cal.App.4th 64 8, 661; se e Ghirar do v. Ant oniol i ( 1996) 14 Cal.4th 39, 51 [ “ Under the law of restitution, an individu al may be required to make
restituti on if he is unjustly enriched at the expense of another. ” ]. ) Thus, Se pano s sian ’ s “ unjust enrichment ” claim “ does no t properly s tate a c ause of action

. ” ( Levine v. Blue Shie ld of California (2010) 189 Cal.App.4th 1117, 1138 .) Because Sepanossian does n ot dispute there were express form contract s in th is case

, he can not assert a quasi

- contract cla im for
restitut ion based o n unjus t enrichment. “ A lthough a plaintiff

m ay plead inconsistent claims that allege both the exist ence of an
enfo rceable agreement and the absen ce of an enforceable agreement, that is not what occu rr ed here. Ins tead, [Sep an ossian ’ s] breach of contract claim pl eaded the exist en ce of

. . . enforceab le agreemen t[s] and [his] unjust enrichment claim
did n ot deny the existence or enf orceability of [those]

agre ement [s]

. [Sepanossian is] therefore precluded from

ass erting a quasi

- contract claim under the theo ry of un just
enrichment. ” (

Klein, supra, 202 Cal.App.4 th at p p. 1389

- 1390.)21 More fundamentally

, “ [ b] ecause w e have fo und tha t [ Se panos sian ’ s ] remedies at la w are adequate ” ( i .e. , his count alleged un der the UC L ) , a separate claim for restitution is

unnecessary. ( Collins v. eMa chines, Inc. (2011) 2 02 Cal.App.4th 249, 260 ( Collins ) [ on review of a succe ssful motion for jud gment

o n the pleadings, where appellat e cou rt determined plaintiffs
stated valid claims under th e UCL, Consume rs Legal Remedies
Act

, an d fraud

, “ a claim for res titution, alleging th at [defendant] has been unjust ly enriched by its fraud, is unnece ssary ” ] .) “ This
conclusio n follows from t he general principle of equity that equitable rel ief (such as resti tution) will not be given when the plaintiff ’ s remedi es at la w are adequate

. ” ( I d

. at p. 260. )
H ere, t he gravamen of Sepanossian ’ s un just enrichm ent claim is that Ready M ix was unjust ly enriched by custom ers

pay ing fee s that were fra ud ulent and unfair under the UCL, and
that such custome r s are e ntitled to recove r those fees from Rea dy
Mix

. The unjust enrichment claim merely incorporate s the
alle ga tions, derivative of the UCL claim, that Ready Mix received a financial advantage

— money o b tained from misleadingly n amed
fees ch arged to its customers

— which it unjustly reta ined at t he ir

ex pense. Restitution is al ready a n available remedy unde r the
UCL ca use of action , within the b r o ad equitable discretion of the
trial court

. (See § 17203 [ r estitution is available “ to restore to any person in i nterest any money or prop erty

. . . which may have been acquired by means of such unfair competition ” ] ; see als o I n re Tobacco Cases II ( 20 15) 240 Cal.App.4th 779, 790

. ) T hus

, a separate claim is unn ec essary for Sepanossian to recover restitution

. “ In light of th e adequate legal remedies, we c onclud e the complaint does not state a claim for resti tution based on unjust enrichment. ” ( Collins , supra , 202 Cal.App.4th at p. 260 .)22 D ISPOSITION

The or der of dismissal is r evers ed

. T he order granting the motion for judgment on the pleadings is also reverse d , and the
trial court is directed to enter a new order denying th e motion on
the UCL cause of action and granting it on the unjust enrich ment cause of act ion

. The parties are to bear their own costs on appeal.

MARTINEZ, J.

We concur:

PERLUSS, P. J.

SEGAL, J.