NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT OZERAN, an individual, 

Plaintiff-Appellant, 

 v. 

ROBIN JACOBS, an individual, DBA 

The Law Offices of Robin Jacobs, Inc., a 

California Company; et al., 

Defendants-Appellees.

No. 18-55675 

D.C. No. 2:17-cv-07965-DOC-JDE 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Submitted November 15, 2019**

Pasadena, California

Before: M. SMITH, MILLER, and COLLINS, Circuit Judges.

Robert Ozeran appeals the district court’s decision dismissing with prejudice

his claims under the Racketeer Influenced and Corrupt Organizations Act 

(“RICO”) and California’s Unfair Competition Law (“UCL”) and dismissing 

* This disposition is not appropriate for publication and is not precedent except as 

provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes that this case is suitable for decision without 

oral argument. See FED. R. APP. P. 34(a)(2)(C).

FILED

FEB 18 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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without prejudice his common-law negligence claim. “‘We review de novo the 

district court’s grant of a motion to dismiss under Rule 12(b)(6), accepting all 

factual allegations in the complaint as true and construing them in the light most 

favorable to the nonmoving party.’” Ebner v. Fresh, Inc., 838 F.3d 958, 962 (9th 

Cir. 2016). We affirm. 

1. Ozeran’s RICO claim was based on the theory that, as a workers’

compensation attorney competing in the same geographic market as the attorney 

Defendants, he was injured by Defendants’ operation of an unlawful referral 

scheme under which they would pay “cappers” a monthly fee in exchange for the 

referral of “an agreed upon minimum number of retained clients per month.” This 

scheme, according to Ozeran, constituted an enterprise that, together with other 

related enterprises, was operated by Defendants through a pattern of mail and wire 

fraud. We conclude that the district court properly dismissed this claim on the 

ground that, as a matter of law, Ozeran could not satisfy the proximate causation 

standards for civil RICO claims.

In order to establish proximate causation, a civil RICO plaintiff must plead 

and prove that there is “‘some direct relation between the injury asserted and the 

injurious conduct alleged.’” Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 457

(2006) (emphasis added). In Anza, the Supreme Court addressed a comparable 

RICO theory under which the plaintiff steel-supply company alleged that its 
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principal competitor obtained increased market share by failing to collect state 

sales tax on cash transactions (thereby unfairly lowering its effective prices) and 

then submitting false tax returns to the state. Id. at 454. The Court held that, as a 

matter of law, this claim was too indirect to establish proximate causation. Id. at 

456–61. As the Court explained, the state was the direct victim of the predicate 

acts of mail and wire fraud, and the plaintiff competitor was injured only indirectly

by virtue of the collateral impact of the defendants’ sales-tax cheating on the steelsupply market. Id. at 460–61. The fact that the defendant carried out the scheme 

in order to injure the plaintiff did not cure the lack of a direct connection between 

the alleged RICO violation and the plaintiff’s injuries: “A RICO plaintiff cannot 

circumvent the proximate-cause requirement simply by claiming that the 

defendant’s aim was to increase market share at a competitor’s expense.” Id. at 

460.

Ozeran’s RICO claim fails as a matter of law under Anza. Ozeran does not, 

and could not, contend that he was the direct victim of the alleged predicate acts of 

mail and wire fraud on which his RICO claim is based; rather, the direct victims of 

those fraudulent acts were the recruited clients and the insurance companies from 

whom the capping scheme was hidden. Like the plaintiff in Anza, Ozeran cannot 

avoid his inability to allege proximate causation by alleging that Defendants’ “aim 

was to increase market share at a competitor’s expense.” Anza, 547 U.S. at 460.
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2. The district court correctly dismissed Ozeran’s UCL claim with prejudice

on the ground that no relief could be granted to Ozeran under that statute as a 

matter of law. 

The only remedies available to a private plaintiff under California’s UCL are

the equitable remedies of injunction and restitution. CAL. BUS. & PROF. CODE

§ 17203; Zhang v. Superior Court, 304 P.3d 163, 167–68 (Cal. 2013). Here, 

Ozeran did not request injunctive relief, and so the only question is whether he 

stated a claim for restitution under the UCL. The monetary remedies sought in 

Ozeran’s operative complaint were “disgorgement of all the illegally obtained 

proceeds,” “general and compensatory damages,” “treble actual damages under 

RICO,” and punitive damages. Neither compensatory nor punitive damages are 

available under the UCL, see Korea Supply Co. v. Lockheed Martin Corp., 63 P.3d 

937, 946 (Cal. 2003), and disgorgement is permitted only if it is “restitutionary,” 

id. at 947. To qualify as “restitutionary,” the proceeds Ozeran sought to have

disgorged must be “money . . . that was once in [his] possession” or money in 

which he “has an ownership interest” or “vested interest.” Id. But the “proceeds” 

Defendants obtained here came from their clients, not from Ozeran, and Ozeran 

has no “ownership” or “vested” interest in such funds. Ozeran’s allegation that he 

experienced a “drop in clients that otherwise would have been represented by 

[him] absent Defendants’ misconduct” constitutes the sort of “contingent 
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expectancy of payment” that is not recoverable under the UCL as a matter of law. 

Id. at 948. 

Ozeran’s reliance on Law Offices of Mathew Higbee v. Expungement 

Assistance Servs., 153 Cal. Rptr. 3d 865 (Cal. Ct. App. 2013), is unavailing. The 

only issue in that appeal was whether the plaintiff met the UCL standing

requirements set forth in Business and Professions Code section 17204, see id. at 

878–79, and “the standards for establishing standing under section 17204 and 

eligibility for restitution under section 17203 are wholly distinct,” Kwikset Corp. v. 

Superior Court, 246 P.3d 877, 894 (Cal. 2011) (citation omitted). Although 

Ozeran had statutory standing to bring this UCL suit, he is not entitled to 

restitution under the UCL as a matter of law. Because Ozeran does not argue in 

this appeal that he is entitled to any other form of relief, the district court properly 

dismissed the UCL claim with prejudice.

3. The district court did not err in dismissing Ozeran’s negligence claim

without prejudice and remanding that claim for repleading in state court.

1

To establish a negligence claim, the plaintiff must allege (inter alia) that the 

defendant owed a duty of care to the plaintiff, but under California law, the

“general rule” is that there is no duty of care to avoid causing “purely economic 

1 Certain Appellees have filed a motion to take judicial notice of documents related 

to the proceedings that occurred in the state court after remand, but in view of our 

disposition of this case, we deny that motion as moot.
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losses” to third parties. Southern Cal. Gas Leak Cases, 441 P.3d 881, 886–87 

(Cal. 2019). California courts have recognized an exception to that general rule 

based on a consideration of the six-factor duty test set forth in Biakanja v. Irving, 

320 P.2d 16, 19 (Cal. 1958). See Southern Cal. Gas Leak Cases, 441 P.3d at 887;

see also Centinela Freeman Emergency Med. Assocs. v. Health Net of Cal., Inc., 

382 P.3d 1116, 1128–31 (Cal. 2016) (applying the Biakanja factors). But Ozeran 

does not rest his negligence claim on any such Biakanja theory. Instead, he asserts 

that the statutory prohibitions against capping and improper solicitation gave rise 

to a duty of care towards other attorneys (such as Ozeran). See, e.g., CAL. BUS. &

PROF. CODE § 6152; CAL. INS. CODE § 750. The district court generously construed 

Ozeran’s complaint as asserting a claim for negligence per se, and the court then 

correctly dismissed that claim as inadequately pleaded.

To succeed under a theory of negligence per se, a plaintiff must show, inter 

alia, that he or she is a member “of the class of persons for whose protection the 

[allegedly violated] statute, ordinance, or regulation was adopted.” CAL. EVID.

CODE § 669(a)(4); see also Elsner v. Uveges, 102 P.3d 915, 927 (Cal. 2004) (§ 669 

“codifies the common law doctrine of negligence per se, pursuant to which statutes 

and regulations may be used to establish duties and standards of care in negligence 

actions”); Resolution Trust Corp. v. Rossmoor Corp., 40 Cal. Rptr. 2d 328, 335 

(Cal. Ct. App. 1995) (“statute or regulation creates duty only as [to] those it was 
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intended to protect”) (citing Haft v. Lone Palm Hotel, 478 P.2d 465, 468 (Cal. 

1970)). The anti-capping and anti-solicitation statutes invoked by Ozeran focus on 

the improper recruitment of clients and on the use of improper schemes in the 

presentation of “claims under policies of insurance” to insurers. CAL. INS. CODE

§ 750; see also, e.g., CAL. BUS. & PROF. CODE § 6152. Even if such statutes can 

also be said to rest on the broader interest in avoiding “debasing the legal 

profession,” cf. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 461 (1978), the 

persons that these statutes aim to protect from such debasement are the directly 

affected clients or insurers. To the extent that Ozeran contends that a duty should 

extend beyond the direct victims of these practices to others that suffer economic 

effects from such conduct, any such broader argument would have to be evaluated 

under Biakanja, but no such Biakanja-based duty has been asserted here. The 

district court did not err in dismissing this claim without prejudice.2

The judgment of the district court is AFFIRMED. 

2 Because we conclude that Ozeran did not adequately allege a duty, we do not 

address the further issue of whether, if he had alleged such a duty owed to him, a 

breach of such a duty could be said to have proximately caused his alleged injuries.