WHAT HAPPENED TO
UNJUST ENRICHMENT IN CALIFORNIA?
THE DETERIORATION OF EQUITY IN THE
Douglas L. Johnson & Neville L. Johnson*
Under common law, the principles of equity have always demanded the
recognition of the right of individuals to seek recovery under the theory
of unjust enrichment. Recovery under this doctrine is so deeply
embedded into Western Society that it continues to be a core element in
legal education and is codified in the Restatement Third of Contracts.
Despite this rich tradition, an alarming divergence in decisions among
California courts is deteriorating unjust enrichment as an independent
cause-of-action, leaving many Californians who have been taken
advantage of, unprotected. This Article examines the historical
underpinnings of unjust enrichment and the confusion among
California courts surrounding the doctrine. To resolve this confusion
and provide a fair sense of justice, the California Supreme Court must
interject in the discussion to solidify unjust enrichment as a stand-alone
* Douglas L. Johnson (J.D., University of the Pacific, McGeorge School of Law, 2000;
B.A., University of Southern California, 1996) specializes in entertainment and complex business
litigation and argued whether California recognizes unjust enrichment as a cause of action in
Walker v. Geico General Insurance Co., 558 F.3d 1025 (9th Cir. 2009), in the U.S. Court of
Appeals for the Ninth Circuit and in Webster v. Allstate Insurance Co., No. B211390, 2010 WL
60642 (Cal. Ct. App. Jan. 11, 2010), in the Second District of the California Court of Appeals.
Neville L. Johnson (J.D., Southwestern School of Law, 1975; B.A., University of
California, Berkeley, 1971) has been practicing for over thirty-five years and is well known for
his California Supreme Court victory, in Sanders v. American Broadcasting Cos., 978 P.2d 67
(Cal. 1999), expanding the right of privacy.
278 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 44:277
TABLE OF CONTENTS
I. INTRODUCTION …………………………………………………………….. 279
II. UNJUST ENRICHMENT HAS LONG BEEN EMBEDDED IN
WESTERN SOCIETY ……………………………………………………….. 279
III. TRADITION GIVES WAY TO CONFUSION………………………………. 280
IV. WALKER V. USAA: A CALIFORNIA FEDERAL DISTRICT
COURT’S DISMISSAL OF A CLAIM FOR UNJUST
ENRICHMENT ………………………………………………………….. 283
A. Prior to Walker, the California Supreme Court
Recognized a Cause of Action for Unjust Enrichment
Under the Restatement (Third)’s Principles……………….. 285
B. Faulty Analysis of Melchior v. New Line Productions,
Inc. Led the Court Astray ………………………………………… 287
1. Opposition Claims That the Court Was Justified in
Its Application ………………………………………………….. 288
2. It Is Wrong to Ignore Ghirardo v. Antonioli ………….. 289
V. CONTINUING CONFUSION IN CALIFORNIA …………………………….. 291
VI. MISHANDLING OF UNJUST ENRICHMENT CLAIMS OUTSIDE OF
CALIFORNIA ………………………………………………………….. 293
VII. CALIFORNIA’S OBLIGATION TO EQUITY SHOULD TRUMP
LABEL NITPICKING …………………………………………………….. 294
VIII. CONCLUSION ……………………………………………………………. 295
Fall 2010] DETERIORATION OF EQUITY 279
“The forms of action we have buried . . .
still rule us from their graves.” 1
It is something hammered into the heads of first-year law
students: a person cannot receive a windfall at the expense of another
without seeing his day in court. The theory is dubbed “unjust
enrichment.” But, while the theory is constantly at the top of law
students’ minds, poised for repetition on an exam, it is all but lost in
the California courts. The doctrine is sometimes no longer
interpreted as a cause of action; rather, it has been rendered a light
echo in remedial analysis. The result leaves many who have been
taken advantage of disenfranchised, scrambling to find other, maybe
non-existent causes of action to which they can tether their desire to
be made right.
The unprecedented diminishment of unjust enrichment has
reverberating effects that are evidenced in cases where plaintiffs
have no other method of relief available to them. This Article will
analyze the intellectual and societal underpinnings of the doctrine of
unjust enrichment to prove its recognition as an independent cause of
action and the necessity that it remains so, despite being convoluted
by the California courts.
II. UNJUST ENRICHMENT HAS LONG BEEN
EMBEDDED IN WESTERN SOCIETY
The concept of unjust enrichment is not a novel one; its origins
can be traced back to Roman law. 2 The Roman jurist Pomponious
wrote, “[T]his by nature is equitable, that no one be made richer
through another’s loss.” 3 Lord Mansfield’s opinion in Moses v.
Macferlan 4 marks the induction of the unjust-enrichment concept
1. FREDERIC WILLIAM MAITLAND, THE FORMS OF ACTION AT COMMON LAW: A COURSE
OF LECTURES 2 (A.H. Chaytor & W.J. Whittaker eds., 1936).
2. See, e.g., JOHN P. DAWSON, UNJUST ENRICHMENT: A COMPARATIVE ANALYSIS 42–63
3. Id. at 3.
4. (1760) 97 Eng. Rep. 676.
280 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 44:277
into English common law and subsequently, American common
In Moses, the plaintiff endorsed four promissory notes to the
defendant under an express agreement that Moses would neither be
liable for paying the notes nor suffer in any way because of his
endorsement. 6 But Macferlan sued Moses, compelling him to pay the
notes and breaching the agreement. 7 Moses then sued Macferlan to
recover the money that he paid to Macferlan. 8 Mansfield decided that
“the defendant, upon the circumstances of the case, is obliged by the
ties of natural justice and equity to refund the money.” 9 The decision
is a generalized reference to the doctrine of unjust enrichment in that
it insinuates that there is an intangible element of justice that exists
beyond the realm of codified law. Mansfield articulated a sense of
obligation by natural justice—to make those who have been
unjustifiably harmed right.
Unjust enrichment was first expressed in the Restatement (First)
of Restitution as the doctrine whereby “[a] person who has been
unjustly enriched at the expense of another is required to make
restitution to the other.” 10 Restitution has since evolved into its own
recognized body of law, with unjust enrichment as its guiding
III. TRADITION GIVES WAY TO CONFUSION
The basic principle of unjust enrichment and its remedy
counterpart, restitution, appears simple at first blush. Unjust
enrichment and restitution are both derivative of an instinctual
understanding of societal dealings: if one person receives more than
he bargained for from a deal, at the expense of another, he should be
held accountable for remedying the windfall. 11
5. See id.
7. Id. at 676–77.
9. Id. at 681.
10. RESTATEMENT OF RESTITUTION § 1 (1937).
11. James Steven Rogers, Restitution for Wrongs and the Restatement (Third) of the Law of
Restitution and Unjust Enrichment, 42 WAKE FOREST L. REV. 55, 57 (2007) (“The central
substantive notion is that one must not (unjustifiably) enrich oneself at the expense of another.
The correlative remedial principle might be expressed as ‘a party who unjustifiably enriches
Fall 2010] DETERIORATION OF EQUITY 281
Despite their familiarity with the ethics behind the principle,
scholars, judges, and lawyers remain uncertain about how to
practically apply it. 12 Despite the long-standing tradition of providing
some form of relief to those who have been harmed, courts have
recently refused to recognize unjust enrichment as an independent
cause of action. Rather, they view it as a remedy, incidental to
another claim. 13 As one scholar surmises: “To put it bluntly,
American lawyers today (judges and law professors included) do not
know what restitution is.” 14 This uncertainty exists, all the while
leaving many without any remedy.
The Restatement (Third) adopts the approach that unjust
enrichment is to be viewed as an independent cause of action with
restitution as a corresponding remedy:
A more important misconception is that restitution is
essentially a remedy, available in certain circumstances to
enforce obligations derived from torts, contacts, and other
topics of substantive law. On the contrary, restitution . . . is
itself a source of obligations, analogous in this respect to
tort or contract. A liability in restitution is enforced by
restitution’s own characteristic remedies, just as a liability
in contract is enforced by what we think of as contract
According to the Restatement (Third), unjust enrichment, as part of
the greater body of law of restitution, is thus a stand-alone doctrine,
carrying with it the same force as any other body of contract or tort
law with its own rights and remedies. The Restatement (Third) will,
by nature, overlap with numerous doctrinal subjects, but it may also
himself at the expense of another owes a duty to pay a sum of money that will disgorge the
12. DAWSON, supra note 2, at 8 (“The ideal of preventing enrichment through another’s loss
has a strong appeal to the sense of equal justice but it also has the delusive appearance of
13. George P. Roach, How Restitution and Unjust Enrichment Can Improve Your Corporate
Claim, 26 REV. LITIG. 265, 266–68 (2007).
14. Id. at 266 (2007); see also Andrew Kull, Rationalizing Restitution, 83 CALIF. L. REV.
1191, 1191 (1995) (“Significant uncertainty shrouds the modern law of restitution.”).
15. RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST ENRICHMENT § 1 cmt. h
(Discussion Draft 2000) (emphasis omitted).
282 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 44:277
hold itself as separate and distinct. 16 Professor Kull, the principal
drafter of the Restatement (Third), articulates three main components
of restitution as a body of law: “(1) substantive liability is based on
unjust enrichment, (2) the measure of recovery is based on
defendant’s gain instead of plaintiff’s loss, or (3) the court restores to
plaintiff, in kind, his lost property or its proceeds.” 17
Kull directly reflected those three components in the
Restatement (Third) draft. First, comment a to section 1 of the
Restatement (Third) states, “The source of a liability in restitution is
the receipt of an economic benefit under circumstances such that its
retention without payment would result in the unjust enrichment of
the defendant at the expense of the plaintiff.” 18 The second
component is found in section 2, which states, “Liability in
restitution is based on and measured by the receipt of a
benefit . . . .” 19 However, it is important to remember that the receipt
of a benefit alone does not necessarily induce liability in restitution;
the enrichment must be one the law treats as unjust. 20 Lastly, the
third component is seen in section 4 of the Restatement (Third).
Section 4 states that “[t]he function of remedies in restitution is to
prevent or redress the unjust enrichment of one or more persons at
the expense of the plaintiff.” 21 This may be accomplished by: a
“reformation of instruments”; a monetary judgment that eliminates
any unjust enrichment; or a superior right, conferred on the plaintiff
by the court, to a piece of property, fund, or other item in dispute. 22
Although the foregoing provisions are part of a discussion draft
and are therefore subject to change, in the six tentative drafts
published since the project began in 2000, the introductory sections
(1–4) have yet to change.
16. See Kull, supra note 14, at 1198 (“Legal remedies having the effect of restoring and
returning do not constitute, as does unjust enrichment, an independent basis of liability, and such
remedies bear no essential or even useful relation to the avoidance of unjust enrichment.”).
17. Id. at 1224 (emphasis omitted) (footnote omitted).
18. RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST ENRICHMENT § 1 cmt. a
(Discussion Draft 2000).
19. Id. § 2(1).
20. Id. § 2 cmt. a.
21. Id. § 4(1).
22. Id. § 4(2).
Fall 2010] DETERIORATION OF EQUITY 283
IV. WALKER V. USAA: A CALIFORNIA FEDERAL DISTRICT COURT’S
DISMISSAL OF A CLAIM FOR UNJUST ENRICHMENT
Walker v. USAA Casualty Insurance Co. 23 presents a situation in
which a federal district court applying California law has
misunderstood the history and use of unjust enrichment as a cause of
action. 24 The district court’s opinion (affirmed by the Ninth Circuit 25)
consequentially left the harmed plaintiff and corresponding class in
Walker without any relief. Walker wrongly held that unjust
enrichment was merely an effect and not an independent cause of
The factual background in Walker reveals a multi-faceted
scheme carried out by insurance companies to indirectly steer auto-
body-repair work away from independent California auto-body-
repair shops, like the plaintiff, to direct-repair providers (DRPs). 27
The insurance companies had been admonished for direct steering in
the past, and consequently, insureds have been given the right to go
to auto-body-repair shops of their choice. 28 Undeterred, the insurance
companies conceived of a way to end-run California’s anti-steering
laws and consumer protections in a manner that adversely affects the
plaintiff and an entire class of independent, non-DRP auto-body-
The insurance companies’ scheme starts out by negotiating a
lower-than-average hourly rate for labor charges with DRPs in
exchange for the referral of a high volume of auto-body-repair work
to the DRPs. 29 Once the insurance companies secure these negotiated
deals with the DRPs, they use those lower-than-average rates in
surveys they conduct, which are intended to determine the prevailing
auto-body rate in a given geographic area. 30 However, when the
DRPs’ negotiated rates are used for the survey, the prevailing auto-
23. 474 F. Supp. 2d 1168 (E.D. Cal. 2007), aff’d by Walker v. Geico Gen. Ins. Co., 558 F.3d
1025 (9th Cir. 2009), cert. denied Walker v. Geico Gen. Ins. Co., 130 S. Ct. 400 (2009).
24. See id. at 1174 (authors were counsel in Walker).
25. Walker v. Geico Gen. Ins. Co., 558 F.3d 1025 (9th Cir. 2009).
26. Walker, 474 F. Supp. 2d at 1174.
27. Id. at 1170–71.
28. See CAL. INS. CODE § 758.5 (West 2010); CAL. CODE REGS. tit. 10, § 2695.85 (2010).
29. See Walker, 474 F. Supp. 2d at 1174–75.
30. Tit. 10, § 2698.91.
284 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 44:277
body rate turns out to be artificially low. 31 The insurance companies
then utilize the artificially low prevailing auto-body rate to cap the
amount they are required to pay to have their insureds’ cars repaired
at non-DRP auto-body-repair shops. 32
While California’s Insurance Code 33 allows insurance
companies to rely on their own surveys to settle claims with non-
DRP shops, it does not specifically prohibit insurance companies
from artificially drawing down the prevailing auto-body rate by
including DRP-negotiated rates. 34 In fact, the plaintiff in Walker was
not aware that the insurers were using negotiated rates for their
surveys until he uncovered the scheme while investigating why the
insurer’s prevailing auto-body rate was so much lower than his
posted hourly rate. 35 Insurers have long been successful in strong-
arming plaintiffs and numerous other independent body-repair shops
into unwittingly accepting below-market rates for repairs out of fear
of losing the work to competing DRPs. 36 Not surprisingly, this
scheme has caused plaintiffs and numerous other auto-body shops to
suffer significant financial harm. 37
But what makes matters worse is that the insureds are also
affected if a non-DRP shop refuses to do the work at the
manufactured prevailing auto-body rate. In that instance, either the
insureds are forced to pay the difference between the prevailing auto-
body rate and the non-DRP shop’s rate in order to receive quality
work from shops that they know and trust, or, the insureds, who do
not want to or cannot afford to pay the difference, are indirectly
forced to take their cars to DRPs. 38 Under either scenario, the
insurance companies get exactly what they want—lower rates for
labor charges—even if that means sacrificing quality repair work or
an insured’s choice of body shop.
31. See, e.g., Walker, 474 F. Supp. 2d at 1170–71.
32. See, e.g., id.
33. INS. § 758.
34. See id.
35. Walker, 474 F. Supp. 2d at 1170–71, 1174–75.
36. See, e.g., id. at 1171, 1175.
38. E.g., id.
Fall 2010] DETERIORATION OF EQUITY 285
The Walker court evaluated three separate causes of action, only
one of which relates to this Article: (1) whether the plaintiff had
standing to bring a claim for restitution or injunctive relief under
Section 17200 of the California Business and Professions Code; (2)
whether California recognizes a cause of action styled as unjust
enrichment that seeks restitution as its remedy; and (3) whether the
complaint satisfied the pleading requirement for a Cartwright cause
of action. 39
The Walker court dismissed all three causes of action, including
the one for unjust enrichment, by citing Melchior v. New Line
Productions, Inc. 40 as well as McKell v. Washington Mutual Inc. 41:
“There is no cause of action in California for unjust enrichment.” 42
The Walker court went further to say that unjust enrichment is
synonymous with the remedy of restitution, and thus there is no
remedy for unjust enrichment without an alternative, underlying
valid legal claim. 43 Unjust enrichment was viewed merely as a
synonym for restitution and was therefore incapable of standing on
A. Prior to Walker, the California Supreme Court
Recognized a Cause of Action for Unjust Enrichment
Under the Restatement (Third)’s Principles
The trial court in Walker erred in dismissing the unjust-
enrichment claim and, in doing so, wrongfully disregarded important
precedent recognizing unjust enrichment as a stand-alone claim. In
particular, Walker directly contravenes the California Supreme
Court’s decision in Ghirardo v. Antonioli. 44 In Ghirardo, the high
court clearly stated that a plaintiff might be entitled to seek relief
under traditional equitable principles of unjust enrichment. 45 In
expounding on this, the Ghirardo court drew from the Restatement
(First) of Restitution and stated that “[u]nder the law of restitution,
39. Id. at 1170.
40. 131 Cal. Rptr. 2d 347 (Ct. App. 2003).
41. 49 Cal. Rptr. 3d 227 (Ct. App. 2006).
42. Walker, 474 F. Supp. 2d at 1174–75 (emphasis added) (quoting Melchior, 131 Cal. Rptr.
2d at 357); see also McKell, 49 Cal. Rptr. 3d at 254.
43. Walker, 474 F. Supp. 2d at 1174.
44. 924 P.2d 996 (Cal. 1996).
45. Id. at 1002.
286 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 44:277
an individual may be required to make restitution if he is unjustly
enriched at the expense of another.” 46 A person is enriched if he or
she receives a benefit at another’s expense, and the term “benefit”
has been construed to mean any form of advantage. 47 Thus, the
Ghirardo court stated that a “benefit is conferred not only when one
adds to the property of another, but also when one saves the other
from expense or loss.” 48
That California recognizes this equitable doctrine is amplified
by the fact that its reviewing courts have adopted certain portions of
the Restatement (First) of Restitution, including its underlying
principles. 49 Indeed, these courts have noted that when the facts of a
given case do not fall within a certain Restatement (First) provision,
its underlying principles may be invoked. 50
Furthermore, Walker runs afoul of numerous cases in which
California appellate courts have recognized an independent cause of
action for unjust enrichment. 51 Likewise, Ghirardo and the
Restatement (Third) have been recognized and utilized by numerous
federal district and appellate courts, including all four federal
districts in California. 52
46. Id. at 1003 (citing RESTATEMENT OF RESTITUTION § 1 (1937)).
49. See, e.g., First Nationwide Sav. v. Perry, 15 Cal. Rptr. 2d 173, 177, 181 (Ct. App. 1992);
Kossian v. Am. Nat’l Ins. Co., 62 Cal. Rptr. 225, 227 (Ct. App. 1967).
50. See B.E. WITKIN, SUMMARY OF CALIFORNIA LAW 1105 (10th ed. 2005) (“The
Restatement of this Subject deals with situations in which one person is accountable to another on
the ground that otherwise he would unjustly benefit or the other would unjustly suffer loss. . . .
Where the facts do not come within a specific section, a court may base recovery on this
underlying principal or even the opening sentence.” (citation omitted)); see also Kossian, 62 Cal.
Rptr. at 227.
51. See, e.g., Hirsch v. Bank of Am., 132 Cal. Rptr. 2d 220, 229 (Ct. App. 2003) (reversing
lower court’s dismissal of plaintiff’s unjust enrichment claim upon finding that appellants stated a
valid cause of action for unjust enrichment; applying Ghirardo and the Restatement of
Restitution); Lectrodryer v. SeoulBank, 91 Cal Rptr. 2d 881, 883 (Ct. App. 2000) (setting forth
elements of a claim for unjust enrichment); Cnty. of Solano v. Vallego Redevelopment Agency,
90 Cal. Rptr. 2d 41 (Ct. App. 1999) (applying Ghirardo and Restatement of Restitution); Birman
v. Loeb, 75 Cal. Rptr. 2d 294 (Ct. App. 1998) (recognizing but distinguishing Ghirardo); Enter.
Leasing Corp. v. Shugard Corp., 282 Cal. Rptr. 620, 626–27 (Ct. App. 1991) (recognizing claim);
Marina Tenants Ass’n v. Deauville Marina Dev. Co., 226 Cal. Rptr. 321 (Ct. App. 1986)
(discussing Restatement of Restitution).
52. See, e.g., Shum v. Intel Corp., 499 F.3d 1272 (Fed. Cir. 2007); In re Atkinson, 14 F.
App’x 960, 962 (9th Cir. 2001); Gonzales Commc’ns, Inc. v. Titan Wireless, Inc., No. 04cv147
WQH (WMc), 2007 WL 1994057, at *2 (S.D. Cal. Apr. 18, 2007); ViChip Corp. v. Lee, 438 F.
Supp. 2d 1087, 1097 (N.D. Cal. 2006); Villager Franchise Sys. v. Dhami, Dhami & Virk, No.
Fall 2010] DETERIORATION OF EQUITY 287
B. Faulty Analysis of Melchior v.
New Line Productions, Inc. Led the Court Astray
The divergence in understanding the principle of unjust
enrichment as a cause of action sparked from a blatant
misunderstanding of case law. Despite recognizing ample authority
from California state and federal courts to the contrary, the trial court
in Walker was led astray by a series of California appellate decisions
that held there is no cause of action for unjust enrichment. The trial
court expressed that it felt it had no choice but to follow the “binding
authority” from two decisions out of Division One of the Second
District of the California Court of Appeal: Melchior v. New Line
Productions, Inc. and McKell v. Washington Mutual, Inc.
Regrettably, these cases have caused a great deal of confusion
and an apparent conflict among California appellate courts, even
leading the Walker court to issue an opinion that contradicts the
decision of the California Supreme Court in Ghirardo. Specifically,
the Walker court, primarily relying on Melchior, held that a cause of
action for unjust enrichment does not exist. 53 The problem is that,
rather than applying supreme court precedent from Ghirardo, the
Melchior court relied on two decisions out of the First District of the
California Court of Appeal, Dinosaur Development, Inc. v. White 54
and Lauriedale Associates, Ltd. v. Wilson, 55 both of which predated
In Dinosaur Development, the First District of the California
Court of Appeal did not emphatically hold that there is no cause of
action for unjust enrichment, but instead concluded that “unjust
enrichment . . . is synonymous with restitution.” 57 The Dinosaur
Development court reached this result by deferring, not to principles
of California law, but rather to the musings of a legal commentator
who conflated a circumstance that gives rise to recovery with the
CVF046393RECSMS, 2006 WL 224425, at *7 (E.D. Cal. Jan. 26, 2006) (“California law
recognizes a cause of action for unjust enrichment.”) (citing Ghirardo v. Antonioli, 924 P.2d 996
(Cal. 1996)); MV Transp., Inc. v. Omne Staff Leasing, Inc., 378 F. Supp. 2d 1200, 1207 (E.D.
Cal. 2005); Westways World Travel v. AMR Corp., 182 F. Supp. 2d 952, 964 (C.D. Cal. 2001).
53. Walker v. USAA Cas. Ins. Co., 474 F. Supp. 2d 1168, 1174 (E.D. Cal. 2007).
54. 265 Cal. Rptr. 525 (Ct. App. 1989).
55. 9 Cal. Rptr. 2d 774 (Ct. App. 1992).
56. See Melchior v. New Line Prods., Inc., 131 Cal. Rptr. 2d 347, 357 (Ct. App. 2003).
57. Dinosaur Dev., 265 Cal. Rptr. at 527.
288 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 44:277
recovery itself. 58 The two are not the same: unjust enrichment
focuses on the individual who received a benefit, whereas restitution
focuses on the provider of the benefit. Moreover, the commentator
ignored the temporal aspect of these two terms. An individual cannot
make restitution unless he or she has first been unjustly enriched.
This principle does not work in reverse. To make matters worse, the
Lauriedale Associates court also relied on the flawed analysis of
Dinosaur Development, which is cited in Walker. 59 The Lauriedale
Associates court, however, did recognize that the plaintiffs were
essentially seeking restitution. 60
The bottom line is that the court in Melchior appears to have
over-extrapolated from the holdings of Dinosaur Development and
Lauriedale Associates, causing it to produce a holding that has no
basis in California law. The fact that the Melchior court failed to
discuss Ghirardo (and that other divisions in the Second District of
the California Court of Appeal have reached contrary results) 61 leads
to only one conclusion: if Melchior foreclosed a cause of action for
unjust enrichment that seeks restitution as its remedy, it was wrongly
1. Opposition Claims That the
Court Was Justified in Its Application
Opponents to this theory claim that it is justifiable to rely on the
court’s holdings in Melchior and McKell because of further citation
to Melchior in Jogani v. Superior Court. 62 In Jogani, the court once
again stated that “unjust enrichment is not a cause of action,” but it
did so only by reiterating the plaintiff’s concession without further
Courts that have addressed Ghirardo have attempted to skirt its
holding by arguing that Ghirardo does not stand for the proposition
59. See Lauriedale Assocs., 9 Cal. Rptr. 2d at 780.
61. See, e.g., supra notes 52–52(listing examples of California federal district and state
courts that have recognized that California has a claim for unjust enrichment).
62. 81 Cal. Rptr. 3d 503, 511 (Ct. App. 2008).
63. Id. at 511.
Fall 2010] DETERIORATION OF EQUITY 289
that unjust enrichment is a stand-alone claim. 64 As discussed in
Vincent Consolidated Commodities, Inc. v. American Trading &
Transfer, LLC, 65 the court in Ghirardo “merely mentioned ‘a cause
of action for unjust enrichment’ in passing while discussing the
remedy of restitution.” 66 The Ghirardo court’s mention of
“traditional equitable principles of unjust enrichment” was in
reference to the specific remedy of restitution for the unpaid portion
of a note secured by a deed of trust when the creditor inadvertently
understated the obligation in his payoff demand. 67 The conclusion
drawn is that unjust enrichment was not a stand-alone cause of action
and that Ghirardo addressed the concept only when discussing the
remedy of restitution.
2. It Is Wrong to Ignore Ghirardo v. Antonioli
Those who attempt to narrowly construe Ghirardo have been
unable or unwilling to delve into California’s adoption of the
Restatement (Third), as discussed in Ghirardo. Instead, courts have
too quickly relied on cases like Melchior and McKell to dismiss
claims for unjust enrichment. In doing so, courts have done little to
advance the analysis within the greater context of the history of
unjust enrichment and of the equitable remedy of restitution. Courts
have been too easily transfixed on the label of the claim rather than
the gravamen of the claim.
In Ghirardo, the only viable claim was a claim for unjust
enrichment. The high court upheld the appellate court’s
determination that the plaintiff, Antonioli, could not obtain a
deficiency judgment because he did not first proceed by judicial
foreclosure, and that he could not obtain relief under Civil Code
§ 2943 because the statute was enacted only after the action was filed
and did not apply to the underlying transactions. 68 Notwithstanding
the plaintiff’s inability to obtain relief pursuant to either of these
routes, the Ghirardo court determined that Antonioli could proceed
64. See, e.g., Vincent Consol. Commodities, Inc. v. Am. Trading and Transfer, LLC, No. 07-
CV-20 W, 2007 U.S. Dist. LEXIS 53680, at *8 (S.D. Cal. July 24, 2007).
66. Id. at *8 (quoting Ghirardo v. Antonioli, 924 P.2d 996, 1002 (Cal. 1996)).
67. Ghirardo, 924 P.2d at 1002–03.
68. Id. at 1002.
290 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 44:277
on a theory of unjust enrichment. 69 The facts of Ghirardo confirm
that unjust enrichment can proceed as a stand-alone claim.
As proof that the principles and holding in Ghirardo should be
respected, the First District of the California Court of Appeal relied
on Ghirardo in Hirsch v. Bank of America 70 in upholding a claim for
unjust enrichment based on restitution principles. 71 Hirsch
specifically held that the unjust-enrichment claim survived demurrer
without determining whether the practices complained of were illegal
under federal law. 72
Interestingly, the court decided Hirsch a month after the Second
District of the California Court of Appeal decided Melchior.
Consequently, Melchior did not have the opportunity to discuss
Hirsch, but more importantly, Melchior did not discuss the holding
Frankly, no court should rely on Melchior (or the cases that
follow it) because Melchior’s discussion of the unjust-enrichment
claim is dicta. The actual holding of Melchior was that the Copyright
Act preempted the unjust-enrichment claim. 73 Unfortunately, the
Melchior court decided to reiterate the alternate holding of the trial
court, which mistakenly concluded that there was no cause of action
for unjust enrichment. 74 In any event, the cases cited in Melchior do
70. 132 Cal. Rptr. 2d 220 (Ct. App. 2003).
71. Id. at 229–30.
72. Hirsch states:
We conclude that appellants’ unjust enrichment cause with respect to the alleged
overcharges survives demurrer without deciding whether the practices described in the
SAC—namely, extension of benefits to title companies through earnings’ credits and
MRCF’s—were illegal under federal law. This equitable claim of unjust enrichment
applies regardless of the mechanisms employed by Banks to attract escrow accounts
from title companies.
73. Melchior v. New Line Prods., Inc., 131 Cal. Rptr. 2d 347, 356 (Ct. App. 2003).
74. Melchior states:
In addition, as the trial court observed, there is no cause of action in California for
unjust enrichment. “The phrase ‘Unjust Enrichment’ does not describe a theory of
recovery, but an effect: the result of a failure to make restitution under circumstances
where it is equitable to do so.” Unjust enrichment is “‘a general principle, underlying
various legal doctrines and remedies,’” rather than a remedy itself. It is synonymous
Id. at 357 (citations omitted) (citing Lauriedale Assocs. v. Wilson, 9 Cal. Rptr. 2d 774 (Ct. App.
1992); Dinosaur Dev., Inc. v. White, 265 Cal. Rptr. 525 (Ct. App. 1989)).
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not stand for the proposition that there is “no cause of action in
California for unjust enrichment.” 75 Yet, ever since Melchior was
decided, courts have relied on Melchior to come to the conclusion
that no cause of action for unjust enrichment exists. The dicta in
Melchior has single-handedly invalidated a cause of action that has
existed for hundreds of years and has been recognized in every single
California needs to clarify and/or criticize Melchior so that other
courts will stop relying on it for the wrong reason. Neither Ghirardo
nor Hirsch required a separate, viable legal claim to serve as the
basis for a claim styled as unjust enrichment. In fact, neither case
stated any other legal basis for relief. If other decisions required
some additional legal basis in order to state an unjust-enrichment
claim, they were, unfortunately, wrongly decided.
V. CONTINUING CONFUSION IN CALIFORNIA
The court’s treatment of unjust enrichment in Walker is merely
symptomatic of the continuing confusion surrounding the cause of
action for unjust enrichment. New cases coming through the
California courts show that the schizophrenic treatment of unjust
enrichment has yet to be resolved. As one scholar notes, “The
technical competence of published opinions in straightforward
restitution cases has noticeably declined; judges and lawyers
sometimes fail to grasp the rudiments of the doctrine even when they
know where to find it.” 76
In the recent unpublished decision Webster v. Allstate Insurance
Co., 77 the Second District of the California Court of Appeal once
again followed the Melchior and McKell approach. The corner-
cutting decision simply repeats the court’s faulty understanding of
unjust enrichment in California from Walker, contradicting
established precedent and the Restatement (Third), without
furthering the analysis. 78
75. Melchior, 131 Cal. Rptr. 2d at 357; see also McKell v. Wash. Mut., Inc., 49 Cal. Rptr. 3d
227, 254 (Ct. App. 2006).
76. Roach, supra note 13, at 266.
77. No. B211390, 2010 WL 60642 (Cal. Ct. App. Jan. 11, 2010).
78. Id. at *6–*7.
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Just days before Webster was decided, the Fourth District of the
California Court of Appeal, in Hernandez v. Lopez, 79 reaffirmed the
belief that unjust enrichment is its own independent cause of action
that seeks restitution as its remedy. The Hernandez court reversed
the trial court’s decision, which held that the plaintiff could not
proceed under a theory of unjust enrichment where the plaintiff’s
cause of action was labeled as “breach of contract.” 80 According to
the modified opinion:
The trial court’s holding provides a textbook example for
application of the equitable doctrine of unjust enrichment.
The doctrine applies where plaintiffs, while having no
enforceable contract, nonetheless have conferred a benefit
on defendant which defendant has knowingly accepted
under circumstances that make it inequitable for the
defendant to retain the benefit without paying for its
Relying on Dunkin v. Boskey, 82 the Hernandez court explained:
[T]he measure of damages . . . for unjust enrichment is
synonymous with restitution. In modern legal usage, its
meaning has frequently been extended to include not only
the restoration or giving back of something to its rightful
owner, but also compensation, reimbursement, indem-
nification, or reparation for benefits derived from, or for
loss or injury caused to another. . . . The phrase “Unjust
Enrichment” does not describe a theory of recovery, but an
effect: the result of a failure to make restitution under
circumstances where it is equitable to do so. In any
event, . . . there is no particular form of pleading necessary
to invoke the doctrine of restitution. 83
Surprisingly, Webster did not discuss Hernandez or Dunkin.
California courts have not been entirely consistent with the
terminology, but it does not matter whether the claim is styled as
79. 103 Cal. Rptr. 3d 376 (Ct. App. 2009).
80. Id. at 381.
81. Id. at 380.
82. 98 Cal. Rptr. 2d 44 (Ct. App. 2000).
83. Hernandez, 103 Cal. Rptr. 3d at 380–81 (emphasis added) (citations omitted) (quoting
Dunkin, 98 Cal. Rptr. 2d at 62–63) (internal quotation marks omitted).
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unjust enrichment, restitution, quasi-contract, or quantum meruit;
California law “respects form less than substance.” 84
VI. MISHANDLING OF UNJUST ENRICHMENT
CLAIMS OUTSIDE OF CALIFORNIA
Courts have not handled restitution with a consistent hand. 85 In
fact, one commentator complains that one court’s handling of
restitution and unjust enrichment was “little short of gibberish.” 86
California is not the only state falling victim to confusion by
disregarding the Restatement (Third)—a surprising number of courts
handle claims for restitution incorrectly. For example, the Alaska
Supreme Court wrote in Reeves v. Alyeska Pipeline Service Co. 87:
“Unjust enrichment is not itself a theory of recovery. ‘Rather, it is a
prerequisite for the enforcement of the doctrine of restitution; that is,
if there is no unjust enrichment, there is no basis for restitution.’” 88
At first, the statement appears to fall in line with the Restatement
(Third); however, the court goes on to say, “Restitution also is not a
cause of action; it is a remedy for various causes of action.” 89 The
misconception that restitution is merely a remedy is a common one
that needs to be set straight. 90
New York blurred the lines between unjust enrichment as an
independent cause of action and contract law in its decision in
Allstate Insurance Co. v. Administratia Asigurarilor De Stat. 91
“[U]njust enrichment and quantum meruit . . . ‘are related theories
that are best addressed as a whole[,] since the latter is merely the
means by which the former is remedied.’” 92
84. CAL. CIV. CODE § 3528 (Deering 2009).
85. See Kull, supra note 14, at 1222–26.
86. Rogers, supra note 11, at 56.
87. 926 P.2d 1130 (Alaska 1996).
88. Id. at 1143 n.17 (citing Alaska Sales & Serv., Inc. v. Millet, 735 P.2d 743, 746 (Alaska
89. Id. (citing Alaska Sales & Serv., Inc., 735 P.2d at 746).
90. See Kull, supra note 14, at 1196 (noting that if restitution continues to be negated, unjust
enrichment will return to its pre-Restatement status when it was only a remedy).
91. 948 F. Supp. 285 (S.D.N.Y. 1996).
92. Id. at 312; see also Artie’s Autobody, Inc. v. Hartford Fire Ins. Co., No.
X08CV030196141S, 2006 WL 2730143 (Conn. Super. Ct. Aug. 30, 2006) (acknowledging
Connecticut’s recognition of unjust enrichment claims when the complained-of conduct is similar
to that in Walker v. Geico and Webster v. Allstate).
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This inconsistent application of unjust enrichment and
restitution throughout the states gives reason to heed Professor Kull’s
Unless the means are found to revive it, restitution in this
country may effectively revert to its pre-Restatement status,
in which problems of unjust enrichment were treated in
isolation, classified only by transactional or remedial
setting: Mistake, Indemnity, Trustees, Subrogation. The
loss to American law, measured in terms of its ability to
yield coherent and reasoned adjudication, has already been
very great, and the outlook is not encouraging. 93
VII. CALIFORNIA’S OBLIGATION TO EQUITY
SHOULD TRUMP LABEL NITPICKING
Regardless of how a court phrases the cause of action, California
has an obligation to protect those who come before its courts from
harm under principles of equity. Virtually all courts recognize a
traditional equitable theory under which an aggrieved party may
recover the value of a benefit that has been conferred on another in a
manner that stings the conscience. California is no exception. In
Cassinos v. Union Oil Co., 94 the court stated:
California recognizes that: “Equity does not wait upon
precedent which exactly squares with the facts in
controversy, but will assert itself in those situations where
right and justice would be defeated but for its intervention.”
In the same spirit it is said . . . “Living as we do in a world
of change, equitable remedies have necessarily and steadily
been expanded to meet increasing complexities of such
changing times, and no inflexible rule has been permitted to
circumscribe the power of equity to do justice. As has been
well said, equity has contrived its remedies ‘so that they
shall correspond both to the primary right of the injured
party, and to the wrong by which that right has been
violated,’ and ‘has always preserved the elements of
flexibility and expansiveness, so that new ones may be
93. See Kull, supra note 14, at 1196.
94. 18 Cal. Rptr. 2d 574 (Ct. App. 1993).
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invented, or old ones modified, in order to meet the
requirement of every case, and to satisfy the needs of a
progressive social condition, in which new primary rights
and duties are constantly arising, and new kinds of wrong
are constantly committed.’” 95
These principles were recently affirmed in Nordberg v.
Trilegiant Corp. 96 After discussing the muddy waters surrounding
unjust-enrichment claims, the court rejected trifling semantic
distinctions and held that the plaintiffs could properly “assert a claim
for restitution based on a theory of unjust enrichment.” 97 Regardless
of how a claimant labels a cause of action, the trial court has a duty
to examine the factual allegations of the complaint “to determine
whether they state a cause of action on any available legal theory.” 98
Is the common law dead? Unjust enrichment is the weapon of
courts to protect the people. The human mind can be ingeniously
dishonest; that is why the common law, and unjust enrichment in
particular, exist—to identify, catch, and mete out fair justice when
this occurs. Statutory law is often impotent. Forty-nine other states
and half the courts in California do recognize and give effect to
unjust enrichment. The California Supreme Court needs to set the
record straight and return unjust enrichment to the place it belongs in
the pantheon of the common law.
95. Id. at 583 (citations omitted).
96. 445 F. Supp. 2d 1082 (N.D. Cal. 2006).
97. Id. at 1100–01.
98. Adelman v. Associated Int’l Ins. Co., 108 Cal. Rptr. 2d 788, 792 (Ct. App. 2001)
(emphasis omitted) (quoting Ellenberger v. Espinosa, 36 Cal. Rptr. 2d 360 (Ct. App. 1994)).
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