Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from a dispute over a billboard lease.  Plaintiff Rittersbacher Sunset LLC was the owner of the real property located at 8300 West Sunset Boulevard, West Hollywood California (“Property”), which was the previous site of the Hollywood Standard Hotel.  Plaintiff claims Defendants Osik Media LLC (“Osik”) and Nicholas Petralia (“Petralia”, and together with Osik, the “Osik Defendants”) wrongfully possessed and held over a portion of the Property to operate a billboard.  Defendants New Tradition Media, LLC (“New Tradition”), Bret Richheimer and Evan Richheimer (collectively the “Moving Defendants”) sell advertising space on the billboard on behalf of the Osik Defendants in exchange for a portion of the revenue generated from operation of the billboard.   

Plaintiff alleges Defendants engaged in a scheme or conspiracy designed to disrupt and/or cause the termination of Plaintiff’s sale of the Property to 8300 Sunset Owner LLC (the “New Owner”).  Plaintiff claims Defendants were attempting to leverage the unlawful occupation of the Property to extort either a financial windfall in exchange for vacating the Property or a lucrative lease for a billboard that Defendants hoped to convert into digital signage in the future.  Plaintiff alleges it suffered damages in excess of $15 million, as a result of having to reduce the purchase price to close the sale to the New Owner, to account for the continuing unlawful possession of the Osik Defendants. 

The operative Third Amended Complaint (“TAC”) alleges six claims for (1) holdover damages, (2) trespass, (3) intentional interference with prospective economic advantage, (4) intentional interference with prospective economic advantage, (5) intentional interference with contractual relations, (6) unlawful business practices in violation of Cal. Bus. & Prof. Code § 17200. 

Defendant Osik Media, LLC filed a second amended cross-complaint (“SACC”) asserting a single claim for unjust enrichment or restitution.  Osik cross-complains that Plaintiff retained benefits Osik conferred on the Property.  Plaintiff sold the Property for $112.5 million, and of this amount, Osik claims $50 million is attributable in substantial part to signage rights Osik owns by virtue of Osik securing a “Concept Award” from the City of West Hollywood, which would have allowed Osik to install a digital billboard on the Property.       

This hearing is on Plaintiff’s demurrer to the SACC.  Plaintiff argues that there is no cause of action for unjust enrichment, as this Court concluded in its prior order, and on this basis alone, Plaintiff’s demurrer should be granted.  In addition, Plaintiff argues (1) restitution is unavailable where parties confer benefits on others while acting voluntarily and in their own self-interest; (2) any benefit received by Plaintiff was merely incidental to Osik’s agreement with Golden Crest Inc. (“GCI”), and it is well settled that the law will not imply a promise to pay for gain that comes incidentally, and (3) the SACC is devoid of any facts that demonstrate Osik holds a better legal or equitable right in the Concept Award and any financial benefits derived therefrom than Plaintiff or GCI.   

REQUESTS FOR JUDICIAL NOTICE  

Plaintiff' seeks judicial notice of (1) the opinion of the Appellate Division of the Superior Court, County of Los Angeles, issued on June 13, 2023 in 8300 Sunset Owner, LLC v. Osik Media, LLC, Appellate Division Case No. 22APLC00033, (2) a copy of the September 12, 2019 Billboard Lease Amendment effective September 12, 2019, between Osik and GCI, (3) a copy of the Unconditional Surrender of Sunset Property and Termination of Ground Lease between GCI and Plaintiff, (4) a copy of the Design Excellence Screening Application submitted on November 4, 2019, and (5) a copy of a letter from the City of West Hollywood awarding the Property with a Design Excellence Screening Concept Award.  The documents sought to be judicially noticed are unnecessary to the Court’s ultimate ruling, and the Court accordingly declines to rule on the request. 

Osik seeks judicial notice of (1) a July 9, 1959 ground lease, (2) a May 18, 2000 estoppel certificate, (3) an August 25, 2020 Design Excellence Screening Application, (4) a July 11, 2022 Copyright, “The Digital Billboard” No. VA 2-326-025, (5) Plaintiff’s August 29, 2023 third amended complaint, (6) an October 13, 2023 order re Plaintiff’s and Defendant’s Cross-Motions for Partial Summary Judgment, New Tradition Media LLC v. Rittersbacher Sunset LLC Case No. 2:22-cv-08670-WLH-AS, and (7) an October 2021 CBRE Internet Sales Flyer for 8300 Sunset.  As with Plaintiff’s request, the documents sought to be judicially noticed by Osik are unnecessary to the Court’s ruling, and therefore, the Court declines to rule on the request. 

LEGAL STANDARD¿ 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

 

PAGE LIMIT 

Plaintiff’s 11 page reply exceeds the page limit of 10 for replies.  Cal. R. Court Rule 3.1113(d).  The Court will not consider the last page of the reply.   

 

ANALYSIS 

Plaintiff demurs to Osik’s sole claim for unjust enrichment because there is no such cause of action in California.   The Court agrees.   

The Court previously held that there is no such cause of action in California.  (May 11, 2023 Minute Order; see also Reid v. City of San Diego (2018) 24 Cal.App.5th 343, 362; Everett v. Mountains Recreation & Conservation Authority (2015) 239 Cal. App. 4th 541, 553; Jogani v. Superior Court (2008) 165 Cal.App.4th 901, 911; McKell v. Wash. Mut., Inc. (2006) 142 Cal.App.4th 1457, 1490; McBride v. Broughton (2004) 123 Cal.App.4th 379, 387; Melchior v. New Line Prods., Inc. (2003) 106 Cal.App.4th 779, 793)  The Court reaches the same conclusion here. 

Osik points to Professional Tax Appeal v. Kennedy Wilson Holdings, Inc. (2018) 29 Cal.App.5th 230, 233 to argue that California recognizes a claim for unjust enrichment.  Professional Tax, however, recognized a claim for unjust enrichment without acknowledging or explaining prior authorities that held there was no cause of action for unjust enrichment.   

In any event, where appellate decisions are in conflict, the court exercising inferior jurisdiction can and must make a choice between the¿conflicting decisions.  (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County¿(1962) 57 Cal.2d 450, 456.)  The Court chooses to follow the line of cases finding there is no cause of action for unjust enrichment.      

Conclusion 

For the foregoing reasons, the Court SUSTAINS Plaintiff’s demurrer to the second amended cross-complaint, with 20 days’ leave to amend to allow Defendant the opportunity to state another cause of action if possible.   

IT IS SO ORDERED. 

 

DATED: March 14, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court