Judge Ronald F. Frank, Case 21TRCV00617 2023-02-10 Tentative Ruling

Judge: Ronald F. Frank, Case: 21TRCV00617, Date: 2023-02-10 Tentative Ruling

Case Number: 21TRCV00617 Hearing Date: February 10, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: February 10, 2023¿¿

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CASE NUMBER: 22TRCV00617

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CASE NAME: DTI Services, Inc. V. Shinichi Kakefu, et al .¿¿¿

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MOVING PARTY: Cross-Defendant/Plaintiff, DTI Services, Inc., Cross-Defendant, Eita Asama

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RESPONDING PARTY: Cross-Complainant, Shinichi Kakefu

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TRIAL DATE: November 13, 2023

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MOTION:¿ (1) Demurrer¿to First Amended Cross-Complaint

(2) Motion to Strike

Tentative Rulings: (1) Cross-Defendant’s Demurrer is sustained as to the trade libel cause of action under the one-year statute of limitations, the Court will entertain oral argument as to the new “restitution” allegation in the 17200 cause of action, but is otherwise overruled

(2) Defendant’s Motion to Strike is denied, subject to argument over the restitution issue

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I. BACKGROUND¿¿

This is the second demurrer to Mr. Kakefu’s pleading of ¿a Cross-Complaint in this complex commercial litigation case arising from the on-line pornography industry, the first having been sustained with leave to amend the first and fourth causes of action. The Court overruled the statute of limitations arguments asserted by the original demurrer and identified the vagueness and remedy shortcomings as to the defamation and B&P Code §17200 causes of action. The promptly amended pleading adds new allegations including a trade libel claim instead of a defamation claim, deleted a problematic allegation as to the 17200 cause of action, and uses the word “restitution” but it is not clear to the Court that the 17200 claim is not still seeking monetary damages rather than true restitution. For the reasons discussed below, the motion to strike is denied, Demurrer to the First Amended Cross-Complaint is sustained as to the first cause of action for trade libel and the Court needs further argument on the restitution allegation, but the demurrer is otherwise overruled. If Kakefu believes he can further amend to address the statute of limitations as to the first cause of action, the Court will grant leave to amend.

A. Factual¿¿

On August 16, 2021, Plaintiff DTI Services, Inc. filed a Complaint for: (1) Fraud; (2) Theft by False Pretenses; (3) Unlawful Business Practices; and (4) Commercial Bribery against Shinichi Kakefu and DOES 1 through 10. On January 14, 2022, Shinichi Kakefu filed a cross-complaint against DTI Services, Inc. and Eita Asama. After his original Cross Complaint was the subject of a demurrer, on November 20, 2022, Cross-complainant Kakefu filed a first amended cross-complaint (“FACC”) alleging causes of action for (1) Trade Libel; (2) Intentional Interference with Prospective Economic Advantage; (3) Intentional Interference with Contract; and (4) Violation of Business and Professions Code § 17200, et seq. The original Cross-Complaint’s first cause of action had been for defamation, which has been deleted in the FACC and replaced by a trade libel cause of action instead.

Kakefu’s FACC alleges that Kakefu was a DTI employee from 2002 to May 2019. (FACC, at ¶ 15.) Kakefu claims that after his employment was terminated, DTI and Mr. Asama “interfered in Mr. Kakefu’s legitimate business operations by disparaging and spreading false information about him and his businesses, contacting his clients and affiliates in an attempt to get them to work directly with DTI, and otherwise harming his legitimate business interests.” (FACC, at ¶ 21.) Kakefu further alleges that Mr. Asama accused Kakefu of “improper, immoral, and/or illegal conduct” (id.), which the FACC adds more specific allegations that Kakefu “illegally siphoned money paid by DTI” and “embezzling money from DTI” (id. ¶¶ 22, 24.)

Plaintiff/Cross-Defendants now demur to the FACC, as they did to the original Cross-Complaint.

B. Procedural¿¿

On December 30, 2022, Plaintiff/Cross-Defendants filed its demurrer and motion to strike. On January 30, 2023, Cross-Complainant filed an opposition to the demurrer and motion to strike. On February 6, 2023, Plaintiff/Cross-Defendants filed its reply briefs.

¿II. MOVING PARTY’S GROUNDS

Plaintiffs/Cross-Defendants demurs to the First, Second, Third, and Fourth Causes of Action because they assert they are all barred by the applicable statute of limitations, and all fail to state facts sufficient to constitute a cause of action. The Court previously overruled the statute of limitations ground raised in the original demurrer.

Plaintiffs/Cross-Defendants also filed a Motion to Strike portions of the FACC that it claims occurred beyond the applicable statute of limitations, a prayer about DTI’s business which are irrelevant to any claim, and other specifically identified allegations.

¿III. REQUEST FOR JUDICIAL NOTICE

Plaintiffs/Cross-Defendants have requested that this Court take judicial notice of:

1. Shinichi Kakefu's Cross-Complaint filed on January 14, 2022, a true and correct copy of which is attached hereto as Exhibit 1.

2. This Court's Tentative Ruling on Plaintiff and Cross-Defendant DTI Services, Inc. and Cross-Defendant Eita Asama's Demurrer to the Cross-Complaint, dated November 10, 2022, a true and correct copy of which is attached hereto as Exhibit 2.

Pursuant to Plaintiffs/Cross-Defendants request, this Court grants their request and takes judicial notice of the above.

IV. ANALYSIS¿

A. Legal Standard

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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) Motions to strike can be used to excise allegations that are not drawn in conformity with law, or are irrelevant, false or improper. (Code of Civil Procedure § 431.10(b), 436.) The Court will not re-state the familiar and more detailed legal standards that it outlined in the tentative ruling as to the original demurrer.

B. Discussion

Trade Libel

Cross-Defendant alleges that the FACC shows on its face that the first, second, and third causes of action are barred by the applicable statute of limitations. “ ‘A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows the action may be barred.’ [Citation.]” (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) (Emphasis added.)

The Cross-Complaint’s first cause of action is for Trade Libel. “A cause of action for trade libel includes the following elements: (1) the defendant published a statement that tended to disparage the plaintiff's product or property; (2) the statement was probably false; (3) the defendant either knew the statement was false or acted with reckless disregard for its falsity; and (4) the statement caused actual pecuniary damage.” (ZF Micro Solutions, Inc. v. TAT Capital Partners, Ltd. (2022) 82 Cal.App.5th 992, 1002, fn. 5.)

Here, the Cross-Complaint alleges that Cross-Defendants have harmed Mr. Kakefu and his businesses by contacting his clients and affiliates, including but not limited to Serimu Corporation, Smart Ltd., Masahiro Takeuchi, and Moana Petipas, to disparage and accuse Mr. Kakefu of improper, immoral, and/or illegal conduct, stating that he had embezzled money from DTI, could be subject to criminal prosecution, was untrustworthy, and attempting to get those business contracts to work directly with DTI rather than with Mr. Kakefu. (FACC, ¶ 29.) The FACC further alleges that Mr. Kakefu is informed and believes that DTI, its agent Mr. Asama, and others, have made and continue to make such statements to persons other than Mr. Kakefu, and that these persons reasonably understood those statements were about Mr. Kakefu and reasonably understood them to mean that Mr. Kakefu had committed a crime or some other immoral or unethical misdeed. (FACC, ¶ 30.) Additionally, Cross-Complainant contends these statements are false and that Cross-Defendants knew they were false, or had serious doubts about the truth of the above-described statements when they were made. (FACC, ¶¶ 31, 32.) Lastly, the FACC alleges that Cross-Complainant was harmed by the false statements.

Plaintiff/Cross-Defendants assert that the FACC does not state facts that concern Cross-Complainant’s business, but instead involve Cross-Complainant himself. As such, Plaintiff/Cross-Defendants assert that since these allegations are about Mr. Kakefu personally – and not about the “good he sells or the character of his business” – the one-year statute of limitations period applies. Additionally, Plaintiff/Cross-Defendants assert that Cross-Complainant claims that Serimu Corporation ceased doing business with Mr. Kakefu on October 1, 2019. (FACC, ¶ 25.) The FACC also alleges that Mr. Kakefu was terminated in May 2019 (¶ 15), but that he continued to “act as an intermediary for DTI by hosting, purchasing, or otherwise coordinating advertising for DTI in exchange for commissions.” (Id. ¶ 20.) . However, Plaintiff/Cross-Complainant note that the Cross-Complaint was filed on January 14, 2022 – more than two years after both the September 25, 2019 communications and the October 1, 2019 date Serimu Corporation ceased doing business with Mr. Kakefu. (FACC, at ¶¶ 22, 25; see RJN, no. 1.)

Interference with Prospective Economic Advantage

The elements of a claim for intentional interference with prospective economic advantage include “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional or negligent acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” (Crown Imports, LLC v. Superior Court (2014) 223 Cal.App.4th 1395, 1404, citations, brackets, and quotation marks omitted.) Further, “the alleged interference must have been wrongful by some measure beyond the fact of the interference itself. For an act to be sufficiently independently wrongful, it must be unlawful, that is, it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” (Ibid., citation, ellipsis, and quotation marks omitted.) The statute of limitations for intentional interference with prospective economic advantage is two years. (Cal. Civ. Proc. Code, § 339, subd. (1).)

Here, the FACC alleges that DTI intentionally interfered with an economic relationship between Mr. Kakefu and multiple third parties that Mr. Kakefu was working with, including Serimu Corporation, Smart Ltd., Masahiro Takeuchi, and Moana Petipas, that presented the probability of future economic benefit to Mr. Kakefu. (FACC, ¶ 38.) Additionally Cross-Complainant alleges these third parties were in an economic relationship that probably would have resulted in an economic benefit to Mr. Kakefu, and that DTI knew of the relationship between Mr. Kakefu and these third parties. (FACC, ¶¶ 39, 40.) The FACC contends that Despite this knowledge, Mr. Asama and others at DTI contacted the third parties on behalf of themselves and DTI to disparage and spread misinformation about Mr. Kakefu and his businesses, accusing him of embezzlement and attempting to convince these third parties to stop working with Mr. Kakefu and/or deal directly with DTI instead of working with Mr. Kakefu. (FACC, ¶ 41.) Cross-Complainant alleges that Plaintiff/Cross-Defendants intended to disrupt the relationship. (FACC, ¶ 42.) Cross-Complainant further alleges the relationship was disrupted, and that he faced economic harm because of this disruption. (FACC, ¶¶ 43, 44.)

In Plaintiff/Cross-Defendants’ demurrer, they concede that the statute of limitations for intentional interference with prospective economic advantage and interference with contact is 2 years. (Code Civ. Proc., §339, subd. (1).) But the demurrer asserts that the Interference with Prospective Economic Advantage and Interference with Contract causes of action are time-barred because the only alleged statements to third parties occurred on September 25, 2019. (FACC, ¶¶ 22, 25.) The demurrer notes that Kakefu admits that Serimu Corporation ceased doing business with him on October 1, 2019. (FACC, ¶ 25.) Plaintiff/Cross-Defendants argue that both of these specific dates took place more than two years before Kakefu filed his original Cross-Complaint on January 14, 2022, and thus, each claim is time-barred.

However, in opposition, Cross-Complainant correctly points out that because the cross-complaint relates back to the filing of the original complaint, any conduct alleged between August 16, 2021 (the date Cross-Defendants filed their Complaint) and August 16, 2019 (two years preceding the filing of the Complaint) is timely for statute of limitations purposes. Because the dates giving rise to Mr. Kakefu’s claims fall within this window, they are timely with respect to causes of action bearing a two-year statute of limitations.

“As a general rule, the filing of a complaint tolls the statute of limitations applicable to a cross-complaint so long as the cross-complaint is related to the original complaint and its causes of action were not barred when the original complaint was filed. (Trindade v. Superior Court (1973) 29 Cal.App.3d 857, 860.) ‘Such a cross-complaint need only be subject-matter related to the plaintiff's complaint—i.e., arise out of the same occurrence ...—to relate back to the date of filing the complaint for statute of limitations purposes.” (Sidney v. Superior Court (1988) 198 Cal.App.3d 710, 714.)’”

(California-American Water Co. v. Marina Coast Water Dist. (2016) 2 Cal.App.5th 748, 763.) Here, the original Complaint was filed on August 16, 2021, less than two years after the Fall of 2019 events alleged in the FACC.

However, with respect to the newly added trade libel cause of action, the FACC appears to run afoul of the statute of limitations. With respect to the choice between the one-year period of section 340, subdivision (3), and the two-year period of section 339, subdivision (1), “[t]he principle of selection which has emerged is that the one-year period applies to all alleged infringements of personal rights, whereas the two-year period applies only to alleged infringements of property rights.” (Richardson v. Allstate Ins. Co. (1981) 117 Cal.App.3d 8, 12 (emphases added).) This distinction and selection of the application period of limitations has arisen in several appellate decisions, including Guess, Inc. v. Superior Court (1986) 176 Cal.App.3d 473, 479. It that Second District case, the court discussed the Prosser and Keaton hornbook in addressing which limitations period applied: “[t]rade libel and product disparagement are injurious falsehoods that interfere with business. Unlike classic defamation, they are not directed at the plaintiff's personal reputation, but rather at the goods a plaintiff sells or the character of his other business, as such. See Prosser at [p. 964].” (quoting Idaho Norland Corp. v. Caelter Industries, Inc. (D. Colo. 1981) 509 F.Supp. 1070, 1071.) The Guess court then stated that the distinction recognized by Prosser is consistent with how California courts have traditionally determined which period of section 339, subdivision (1), applies in a given case. In Guess, it was the two-year statute, but here the first cause of action appears to the Court to allege harm and damage to Kakefu personally rather than to the goods he sells or to his company or business. Thus, a one-year limitations period applies to the trade libel cause of action as it is alleged in the FACC. The Demurrer on statute of limitations grounds to that cause of action is thus sustained

Intentional Interference with Contract

The elements of a cause of action for intentional interference with contractual relations are “(1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 289.)

The FACC alleges that Cross-Defendants’ intentionally interfered with the respective contracts between Mr. Kakefu, on the one hand, and Serimu Corporation, Smart Ltd., Masahiro Takeuchi, and Moana Petipas, on the other. (FACC, ¶ 48.) Cross-Complainant alleges that Mr. Kakefu and Serimu Corporation, Smart Ltd., Masahiro Takeuchi, and Moana Petipas had contracts related to the hosting and/or placement of advertisements in exchange for payments. (FACC, ¶ 49.) Further, the FACC contends that Cross-Defendants were aware of these contracts but nonetheless, intended to disrupt the performance of these contract or knew that disruption of performance was certain or substantially certain to occur as a result of their conduct. (FACC, ¶¶ 50, 52.) Lastly, Cross-Complainant notes that he was harmed as a result of Cross-Defendants’ behavior and conduct because the above-referenced parties, and likely others, ceased dealing with Mr. Kakefu as a result. (FACC, ¶ 53.)

Similar to the above cause of action, Plaintiff/Cross-Defendants’ demurrer alleges that the statute of limitations for intentional interference with prospective economic advantage and interference with contact is 2 years. (Code Civ. Proc., §339, subd. (1).) But the Demurrer misapprehends the relation-back doctrine and mistakenly measures the relevant time period from the filing of the original Cross-Complaint, not the Complaint. According, as discussed above, the conduct alleged between August 16, 2021 (the date Cross-Defendants filed their Complaint) and August 16, 2019 (two years preceding the filing of the Complaint) is timely for statute of limitations purposes. Because the dates giving rise to Mr. Kakefu’s claims fall within this window, they are timely.

Violation of Business and Professions Code section 17200

Cross-Defendants also allege that the claim of violation of Business and Professions Code section 17200 is vague and uncertain. To set forth a claim for a violation of Business and Professions Code section 17200 (“UCL”), Plaintiff must establish Defendant was engaged in an “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising” and certain specific acts. (Bus. & Prof. Code, § 17200.) A cause of action for unfair competition “is not an all-purpose substitute for a tort or contract action.” (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.)

Here, the FACC alleges that Cross-Defendants have committed unlawful business practices by, among other things, libeling and disparaging Mr. Kakefu and his businesses and interfering with his prospective economic relations and with contractual relations, as described herein. (FACC, ¶ 57.) The FACC further alleges that Cross-Defendants have employed and continue to disseminate false and disparaging information about Mr. Kakefu and his businesses. They have done so and continue to do so verbally, through email, as well as possibly through other channels. (FACC, ¶ 58.) Cross-Complainant alleges that he is informed and believes that Cross-Defendants’ motive in spreading the resulting misinformation is wrongful and malicious and includes the intent to deceive these affiliates and customers by shifting attention from their own suspect business dealings onto Mr. Kakefu and the intent to enable Cross-Defendants to wrongfully obtain access to and dominion over affiliate accounts belonging to Mr. Kakefu. (FACC, ¶ 59.) Cross-Complainant alleges that he was substantially injured and seeks “restitution.” (FACC, ¶¶ 60, 62.)

Cross-Defendants’ demurrer notes that originally, this Court sustained demurrer when Cross-Complainant was seeking disgorgement. However, Cross-Defendants argue that in an effort to overcome this pleading flaw, Cross-Complainant now alleges something entirely different: that Cross-Defendants acted with “the intent to enable Cross-Defendants to wrongfully obtain access to and dominion over affiliate accounts belonging to Mr. Kakefu.” (FACC, ¶ 59). And, that Cross-Defendants “have obtained affiliate accounts to which Mr. Kakefu has an ownership or vested interest in and Mr. Kakefu seeks restitution of this amount.” (FACC, ¶ 62.) However, Cross-Defendants argue that these new allegations both contradict the substance of Kakefu’s other allegations and fail to solve the fatal pleading issue with this cause of action. On the one hand, Kakefu alleges that he was instructed by DTI to set up “intermediate companies” to “circumvent the problem” of “Japanese financial institutions [hesitancy] to transfer funds directly to or from DTI.” (FACC, ¶¶ 16-17.) Thus, Cross-Defendants argue that Kakefu is alleging – and by so alleging admits – that he set up “intermediate companies” to move DTI’s money – not his. He cannot therefore seek restitution of money to which he is not an owner.

However, Cross-Defendants contend that on the other hand, and in direct contradiction to his first claim - Kakefu alleges that Cross-Defendants “have obtained affiliate accounts to which Mr. Kakefu has an ownership or vested interest in”, and he seeks restitution “of this amount.” (FACC, ¶ 62.) Cross-Defendants assert that what Kakefu describes is not “restitution.” The Court will entertain oral argument as to whether this is merely the same old “disgorgement” wine being poured into a new glass, or whether this thinly alleged restitution assertion satisfies the 17200 pleading requirements.

B. Motion to Strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.¿ (Code Civ. Proc., § 436(a).)¿ The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.¿ (Id., § 436(b).)¿ The grounds for a motion to strike are that the pleading has irrelevant, false improper matter, or has not been drawn or filed in conformity with laws.¿ (Id., § 436.)¿ The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.¿ (Id., § 437.)¿ “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”¿ (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)¿

Here, Defendant moves to strike the following in Plaintiff’s complaint:

1. Paragraph 6, in its entirety. “DTI publishes and operates multiple popular, uncensored Japanese pornography websites, including www.carribeancom.com. To avoid and circumvent Japanese pornography laws while still catering to primarily Japanese customers, DTI maintains a physical presence in the United States.”

2. Paragraph 10, in its entirety. “Both DTI’s involvement with pornography and Mr. Takahashi’s involvement with DTI are well publicized. See, e.g., Brad Stone, Former Employee Says Teen Chat Site Is Owned by Online Pornographer, N.Y. Times (July 11, 2007), https://www.nytimes.com/2007/07/11/business/worldbusiness/11iht-porn.1.6609506.html; Brad Stone, An E-Commerce Empire, From Porn to Puppies, N.Y. Times (May 18, 2008), https://www.nytimes.com/2008/05/18/technology/18gordo.html.”

3. Paragraph 21, at line 20-21. Any reference to “Serimu Corporation.”

4. Paragraph 25, at line 8-10. “Indeed, on or about October 1, 2019, Serimu Corporation informed Mr. Kakefu that it would cease doing business with Mr. Kakefu because of DTI’s conduct.

5. Paragraph 29, at line 21: Any reference to “Serimu Corporation.”

6. Paragraph 38, at line 25: Any reference to “Serimu Corporation.”

7. Paragraph 43, at line 11: Any reference to “Serimu Corporation.”

8. Paragraph 48, at line 6: Any reference to “Serimu Corporation.”

9. Paragraph 49, at line 8: Any reference to “Serimu Corporation.”

10. Prayer for Relief, number 4: “For restitution for property wrongfully obtained by DTI as a consequence of DTI’s conduct.”

Irrelevant Allegations

Here, Plaintiff asserts two different allegation are irrelevant to any claim in the FAC. First, Cross-Complainant’s allegation that “DTI publishes and operates multiple popular, uncensored Japanese pornography websites, including www.carribeancom.com. To avoid and circumvent Japanese pornography laws while still catering to primarily Japanese customers, DTI maintains a physical presence in the United States.” (FACC, at ¶ 6.) Second, Cross-Complainant alleges, “Both DTI’s involvement with pornography and Mr. Takahashi’s involvement with DTI are well publicized. See, e.g., Brad Stone, Former Employee Says Teen Chat Site Is Owned by Online Pornographer, N.Y. Times (July 11, 2007), https://www.nytimes.com/2007/07/11/business/worldbusiness/11iht-porn.1.6609506.html; Brad Stone, An E-Commerce Empire, From Porn to Puppies, N.Y. Times (May 18, 2008), https://www.nytimes.com/2008/05/18/technology/18gordo.html.” (FACC, at ¶ 10.)

Plaintiff suggests that neither of these paragraphs are relevant to, or aids in any way to Cross-Complainant’s causes of action. The Court disagrees because they may or may not be relevant depending on how discovery and investigation of this matter proceeds. As such, the Court DENIES Cross-Defendants’ Motion to Strike as to this issue.

Allegations Regarding Serimu Corporation

Here, Cross-Defendants request that this Court strike any reference to Serimu Corporation. Cross-Defendants note that Kakafu alleges that Serimu Corporation ceased doing business with him on October 1, 2019 as a result of DTI’s conduct. (FACC, ¶ 25.) Kakefu filed his Cross-Complaint on January 14, 2022 – more than 2 years after the October 1, 2019 date. As such, DTI asserts that any damages Kakefu may seek related to Serimu Corp. are time-barred. This issue is controlled by the relation-back analysis outlined above. Accordingly, the motion to strike is denied and is addressed as to the first causes of action by the Court’s sustaining of the Demurrer to the trade libel claim.

Prayer for Restitution

Cross-Defendants ask this Court to strike Cross-Complainant’s request for Restitution. Kakefu’s Prayer for Relief, number 4, is for “restitution for property wrongfully obtained by DTI as a consequence of DTI’s conduct.” This prayer is directly tied to Kakefu’s fourth cause of action for a violation of Business and Professions Code section 17200. While Cross-Defendants concede that restitution is the proper form of recovery for a UCL claim, Cross-Defendants assert that Kakefu’s allegations are for money damages – not restitution. As such, Cross-Defendants argue that the prayer should be stricken from the FACC. The Court will hear oral argument bearing on the restitution allegation as noted above.