Kahn Creative Partners Inc v. NTH Degree, Inc et al

Filing 59

ORDER by Judge Josephine Staton Tucker: granting in part and denying in part 25 Motion for Summary Judgment. The Court grants the Motion as to Plaintiffs breach of oral contract, breach of oral partnership agreement, breach of oral joint venture ag reement, breach of the covenant of good faith and fair dealing, and promissory estoppel claims, and denies the Motion as to Plaintiffs breach of implied partnership, breach ofimplied joint venture, breach of fiduciary duty, unjust enrichment, and unfair business practices claims. (twdb)

1 2 3 4 5 6 7 8 9 10 11 KAHN CREATIVE PARTNERS, INC. 12 13 14
vs. Plaintiff, UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

O

CASE NO. CV 10-932-JST (FFMx) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT

15 NTH DEGREE, INC. 16 17 18 19 20 21 22 23 24 25 26 27 28
1

Defendant.

1 2

I. INTRODUCTION Before the Court is Defendant Nth Degree, Inc.'s Motion for Summary Judgment

3 or, in the alternative, Partial Summary Judgment. (Doc. 25.) Plaintiff Kahn Creative 4 Partners, Inc. filed an opposition (Doc. 39), and Defendant filed a reply (Doc. 43). Having 5 read the briefs and heard oral argument, the Court GRANTS in part and DENIES in part 6 Defendant's Motion for Summary Judgment. The Court grants the Motion as to Plaintiff's 7 breach of oral contract, breach of oral partnership agreement, breach of oral joint venture 8 agreement, breach of the covenant of good faith and fair dealing, and promissory estoppel 9 claims, and denies the Motion as to Plaintiff's breach of implied partnership, breach of 10 implied joint venture, breach of fiduciary duty, unjust enrichment, and unfair business 11 practices claims. 12 13
II. BACKGROUND Plaintiff is a strategic communications agency, and Defendant is a global event

14 marketing and management company. (Def.'s Resp. to Pl.'s Statement of Genuine 15 Disputes ("Undisputed Facts"), Doc. 43-1, ¶¶ 1, 4.) In June 2008, Defendant 16 communicated with Plaintiff about the possibility of working together on a response to a 17 Request for Proposals ("RFP"), which had not yet been released, for the 2010 RSA 18 Conference, which is held every year in the United States, Europe, and Japan 19 ("Conference"). (Id. ¶ 9.) Hosted by RSA Security, Inc. ("RSA"), the Conference focuses 20 on information technology ("IT") and hosts IT security experts who gather to share the 21 latest advancements in the area of internet security. (Id. ¶ 3.) The RFP aimed at finding a 22 company to produce and manage the Conference in the United States and Europe. 23
On August 6, 2008, Plaintiff and Defendant met in Las Vegas to discuss the RFP

24 and Plaintiff's interest in working on a joint response with Defendant. (Id. ¶ 15.) From 25 August 2008 to December 2008, the parties kept in contact. (Id. ¶ 19.) At this time, 26 Plaintiff was interested in responding to the RFP, but it did not want its role to be confined 27 to "audience acquisition." Also, Plaintiff was concerned about whether it had the 28 resources to respond to the RFP and still manage its current clients. (Id. ¶¶ 20, 22.) On
2

1 December 4, 2008, the parties met with the general manager of the Conference to discuss 2 the forthcoming RFP. (Id. ¶ 24.) On that day, Plaintiff decided to work with Defendant on 3 the response to the RFP. (Id. ¶ 31.) 4
On January 26, 2009, RSA issued the RFP for the Conference to a select number of

5 companies, including Defendant. (Id. ¶ 34.) The RFP sought proposals for the "strategic, 6 creative, and logistical planning and execution" of the Conference. (Id. ¶ 35.) The RFP 7 was divided into two sections. Part 1, entitled "Event Specifications," outlined the areas of 8 work for which RSA was seeking proposals and was "largely logistical in nature." (Id. ¶ 9 38; Def.'s Compendium of Evid. in Supp. of Mot. for Summ. J. ("Def.'s Compendium") 10 Doc. 25-3, Exh. 2 at 12.) Part 2, entitled "Business Acumen," "aim[ed] to understand the 11 strategic business acumen and knowledge that [the proposing] organization [could] bring" 12 to the Conference. (Undisputed Facts ¶ 39; Def.'s Compendium, Exh. 2 at 12.) On 13 February 9, 2009, Plaintiff and Defendant met to brainstorm ideas about how to approach 14 the RFP. (Undisputed Facts ¶¶ 17, 23.) Each party had its own "team" devoted to this 15 process. (Id. ¶ 42.) 16
On March 31, 2009, RSA issued a Request for Information ("RFI"), which

17 separated the creative and marketing tasks associated with the Conference from the RFP. 18 (Id. ¶ 51.) The RFI stated that the "Conference is looking for an agency with exceptional 19 experience in integrated communications programs including planning, direct response, 20 interactive marketing and business savvy." (Def.'s Compendium, Exh. 3 at 1.) Both 21 parties understood that the marketing tasks of the Conference would be awarded separately 22 from the rest of the RFP. (Undisputed Facts ¶ 56.) 23
On May 8, 2009, Plaintiff and Defendant submitted their joint proposal to the RFP,

24 which included a response to the RFI. (Id. ¶ 58.) On May 13, 2009, Conference staff 25 invited the parties for a "face-to-face" presentation to "showcase [their] strategic 26 thinking," and specifically requested that "the agency members that will make up [their] 27 day-to-day team be in the room and present portions of the plan." (Id. ¶ 33.) Defendant 28 requested that members of Plaintiff's team attend the meeting and present the "strategic,
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1 higher level message" of the presentation. (Id. ¶ 35.) Plaintiff and Defendant then jointly 2 created and developed the presentation, and on May 28, 2009, members of both teams 3 presented to Conference staff. (Id. ¶¶ 37-39.) 4
On June 5, 2009, the Conference awarded Defendant the management and

5 production of the Conference. (Id. ¶ 61.) On June 17, 2009, Plaintiff was notified that it 6 had not been chosen under the RFI to manage the marketing portion of the Conference. 7 (Id. ¶ 62.) Defendant proceeded, without Plaintiff, to accept the contract to manage and 8 produce the Conference. 9
On February 8, 2010, Plaintiff filed suit against Defendant alleging claims for (1)

10 breach of oral contract, (2) breach of oral partnership, (3) breach of implied partnership, 11 (4) breach of oral joint venture agreement, (5) breach of implied joint venture, (6) 12 promissory estoppel, (7) breach of fiduciary duty, (8) breach of the covenant of good faith 13 and fair dealing, (9) unjust enrichment, and (10) unfair business practices. (See generally 14 Compl.) Plaintiff alleges inter alia that the parties formed an oral agreement and 15 partnership on December 4, 2009 to share in the work and profits of producing and 16 managing the Conference, and that Defendant breached the contract and partnership by 17 accepting the contract to produce and manage the Conference without Plaintiff. 18 19 20
III. LEGAL STANDARD

In deciding a summary judgment motion, a court must view the evidence in the

21 light most favorable to the non-moving party and draw all justifiable inferences in its 22 favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "The court shall grant 23 summary judgment if the movant shows that there is no genuine dispute as to any material 24 fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The 25 moving party bears the initial burden of demonstrating the absence of a genuine issue of 26 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its 27 initial responsibility, the burden then shifts to the opposing party to establish that a genuine 28 issue as to any material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
4

1 U.S. 574, 586 (1986). A factual issue is "genuine" when there is sufficient evidence such 2 that a reasonable trier of fact could resolve the issue in the non-movant's favor, and an 3 issue is "material" when its resolution might affect the outcome of the suit under the 4 governing law. Anderson, 477 U.S. at 248. 5 6 7 8
IV. DISCUSSION A. Evidentiary Objections Defendant objects to Plaintiff's Statement of Genuine Disputes because it was

9 untimely. Defendant also objects to declarations submitted by Plaintiff from Sharon 10 Weber and Michael Trovalli on numerous grounds, including that the declarations 11 contained statements that are irrelevant, hearsay, and lacked foundation. (Docs. 43-2, 4312 3); (see Pl.'s Compendium of Evid. ("Pl.'s Compendium"), Decls. of Weber and Trovalli.) 13
As to timeliness, the Court recognizes that Plaintiff submitted its opposition and

14 accompanying evidence 15 minutes late. The opposition was due on March 14, 2011, and 15 it did not appear on the docket until 12:15 a.m. on March 15, 2011. The Court also 16 recognizes, however, that it "has considerable latitude in managing the parties' motion 17 practice and enforcing local rules that place parameters on briefing." Christian v. Mattel, 18 Inc., 286 F.3d 1118, 1129 (9th Cir. 2002). Thus, the Court DENIES Defendant's 19 objections as it finds that Plaintiff's 15-minute delay did not prejudice Defendant's ability 20 to file a reply. 21
As to substantive objections, the Court notes that "objections to evidence on the

22 ground that it is irrelevant, speculative, and/or argumentative, or that it constitutes an 23 improper legal conclusion are all duplicative of the summary judgment standard itself." 24 Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006). The 25 Court has reviewed both declarations, but has not relied on either for its ruling. The 26 objections are therefore DENIED. 27 28
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1 2 3 4

B. Breach of Oral Contract, Breach of Oral Partnership Agreement, Breach of Oral Joint Venture Agreement, Breach of the Implied Covenant of Good Faith and Fair Dealing, and Promissory Estoppel Claims Plaintiff brings claims for breach of oral contract, breach of oral partnership

5 agreement, breach of oral joint venture agreement, and breach of the implied covenant of 6 good faith and fair dealing. Because the existence of a contract is a prerequisite to these 7 claims, the Court considers them simultaneously. Habitat Trust for Wildlife, Inc. v. City of 8 Rancho Cucamonga, 96 Cal. Rptr. 3d 813, 850 (Cal. Ct. App. 2009) ("Breach of the 9 covenant of good faith and fair dealing is nothing more than a cause of action for breach of 10 contract."); Weiner v. Fleischman, 54 Cal. 3d 476, 490 (Cal. 1991) (recognizing an oral 11 joint venture or partnership agreement as an oral contract). Further, because a promissory 12 estoppel claim is viewed as akin to a breach of contract claim, yet only equitable in nature, 13 the Court analyzes it here. U.S. Ecology, Inc. v. State, 28 Cal. Rptr. 3d 894, 906-07 (Cal. 14 Ct. App. 2005). 15 16 17
1. Did an Oral Contract/Agreement Exist Between the Parties? Under California law, a contract requires (1) parties capable of contracting , (2)

18 mutual consent or assent between the parties, (3) a lawful object, and (4) sufficient 19 consideration. Cal. Civ. Code § 1550. To be enforceable, the terms of the contract must 20 also be certain. Magna Dev. Co. v. Reed, 39 Cal. Rptr. 284, 288 (Cal. Ct. App. 1964) ("It 21 is well established, however, that where a party seeks specific performance of a contract, 22 the terms of the contract must be complete and certain in all particulars essential to its 23 enforcement."); see Cal. Civ. Code § 3390(5) ("The following obligations cannot be 24 specifically enforced: an agreement, the terms of which are not sufficiently certain to make 25 the precise act which is to be done clearly ascertainable."). On summary judgment, a court 26 can decide whether a contract existed as a matter of law if there are no genuine issues of 27 material fact. Bustamante v. Intuit, Inc. 45 Cal. Rptr. 3d 692, 699 (Cal. Ct. App. 2006) 28 ("Where the existence of a contract is at issue and the evidence is conflicting or admits of
6

1 more than one inference, it is for the trier of fact to determine whether the contract actually 2 existed. But if the material facts are certain or undisputed, the existence of a contract is a 3 question for the court to decide."). 4
Defendant asserts that the parties did not form an enforceable contract because there

5 lacked (1) mutual consent between the parties and (2) certain terms. (Def.'s Mot. at 12.) 6 Defendant argues further that even if there were mutual consent and certain terms of the 7 oral contract, it would have been void under the Statute of Frauds. As to the alleged terms 8 of the contract, Plaintiff alleges that they were "simple ­ if [Plaintiff] assisted [Defendant] 9 in jointly preparing a response to the RFP, and the RFI once it was carved out of the RFP, 10 the parties would share in any work and profits realized from winning the RFP and/or the 11 RFI." (Pl.'s Opp. at 18.) However, Plaintiff has provided no evidence that these "terms" 12 became part of any oral agreement between it and Defendant. Even if there were 13 corroborating evidence as to that effect, these alleged "terms" were indeed "simple": so 14 simple that they failed to clarify each party's obligations under the contract, i.e., the 15 responsibilities of Plaintiff and Defendant vis-à-vis the Conference, or define how each 16 party would be compensated for such work. If "a supposed `contract' does not provide a 17 basis for determining what obligations the parties have agreed to, and hence does not make 18 possible a determination of whether those agreed obligations have been breached, there is 19 no contract." Weddington Prods., Inc. v. Flick, 71 Cal. Rptr. 2d. 265, 277 (Cal. Ct. App. 20 1998). Moreover, "[w]here a contract is so uncertain and indefinite that the intention of 21 the parties in material particulars cannot be ascertained, the contract is void and 22 unenforceable." Robinson & Wilson, Inc. v. Stone, 110 Cal. Rptr. 675, 683 (Cal. Ct. App. 23 1973). Here, the terms of the alleged contract were "uncertain and indefinite" as to the 24 obligations of the parties, and an oral contract therefore could not have existed. 25
Furthermore, even if the terms of the contract were certain and definite, there is no

26 evidence of mutual consent between Plaintiff and Defendant as to those terms. "Without 27 mutual assent, there is no contract." Merced Cnty. Sheriff's Emps. Assn. v. Cnty. of 28 Merced, 188 Cal. App. 3d 662, 670 (Cal. Ct. App. 1987). "Mutual consent is determined
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1 under an objective standard applied to the outward manifestations or expressions of the 2 parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed 3 intentions of understandings." Bustamante, 45 Cal. Rptr. 3d at 699 (quoting Alexander v. 4 Codemasters Grp. Ltd., 104 Cal. App. 4th 129, 141 (Cal. Ct. App. 2002)). Mutual 5 consent "cannot exist unless the parties `agree upon the same thing in the same sense.'" 6 Id. at 698. "If there is no evidence establishing a manifestation of assent to the `same 7 thing' by both parties, then there is no mutual consent to contract and no contract 8 formation." Id. at 698-99; Robinson & Wilson, 110 Cal. Rptr. at 683 ("[I]t is requisite to 9 enforceability that [a contract] must evidence a meeting of the minds upon the essential 10 features of the agreement, and that the scope of the duty and limits of acceptable 11 performance be at least sufficiently defined to provide a rational basis for the assessment 12 of damages."). 13
The parties do not dispute that Plaintiff agreed to work with Defendant on the

14 response to the RFP "sometime around" December 4, 2008. (Uncontroverted Facts ¶ 31.) 15 Plaintiff claims that the contract "began" on January 26, 2009, "when the condition 16 precedent to the contract, official issuance of the RFP occurred." (Pl.'s Opp. at 20.) 17 Plaintiff has failed to produce any evidence, however, that Defendant ever intended to 18 form a contract or, more importantly, that Defendant and Plaintiff assented to the "same 19 thing in the same sense." Bustamante, 45 Cal. Rptr. 3d at 698. The parties do not dispute 20 that they jointly prepared and submitted a response to the RFP, but as to the management 21 and production of the Conference, there is no evidence that both parties contracted to share 22 in that responsibility. 23
The only piece of evidence submitted by Plaintiff that arguably addresses mutual

24 consent is a declaration by Sharon Weber, a principal of Plaintiff's, in which she states that 25 in an August 6, 2008 meeting between her, other representatives of Plaintiff, and Robert 26 Lowe, Defendant's employee and the "Event Architect" for the RFP response, Lowe 27 indicated that "as partners, [Defendant] and [Plaintiff] would share equally" in the "many 28 streams of work" involved with the Conference. (Pl.'s Compendium, Weber Decl. ¶ 5.)
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1 Taking this generally vague statement as true, it nonetheless fails to create a genuine issue 2 of material fact as to whether mutual consent occurred between the parties for two reasons. 3 First, the statement is vague and fails to establish certain terms. Second, "shar[ing] 4 equally" in profits may touch upon whether a partnership existed, but it is not sufficient 5 evidence of a contract. 6
Thus, because the terms of the alleged contract were ambiguous and, moreover,

7 Plaintiff and Defendant did not mutually consent to those terms, a contract did not exist 8 between the parties, and Plaintiff's breach of oral contract, breach of oral partnership 9 agreement, breach of oral joint venture agreement, and breach of the implied covenant of 10 good faith and fair dealing fail as a matter of law. Because the Court disposes of 11 Plaintiff's breach of contract claim on those grounds, it need not determine whether the 12 Statute of Frauds applies. 13 14 15
2. Promissory Estoppel Claim "The elements of a promissory estoppel claim are `(1) a promise clear and

16 unambiguous in its terms; (2) reliance by the party to who the promise is made; (3) the 17 reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel 18 must be injured by his reliance." U.S. Ecology, Inc. v. State, 28 Cal. Rptr. 3d 894, 905 19 (Cal. Ct. App. 2005). "Because promissory estoppel is an equitable doctrine to allow 20 enforcement of a promise that would otherwise be unenforceable, courts are given wide 21 discretion in its application." Id. Like its breach of oral contract and partnership 22 agreement claims, Plaintiff's promissory estoppel claim fails as a matter of law due to the 23 absence of any evidence as to a clear and unambiguous promise made by Defendant. 24
Defendant contends that Defendant offered Plaintiff the opportunity to bid on the

25 marketing aspect of the RFP and agreed to pay KCP's out-of-pocket expenses, which 26 Plaintiff accepted and performed by participating in the joint response. (Def.'s Mot. at 22.) 27 Defendant argues that it never promised that Plaintiff would jointly manage the 28 Conference. (Id.) Plaintiff disagrees, and asserts that Defendant promised that if Plaintiff
9

1 assisted in jointly preparing the response to the RFP, and the response led to a contract, the 2 parties would share in the work and profits of the project. (Pl.'s Opp. at 22.) In light of 3 these juxtaposing positions, to survive summary judgment, Plaintiff would need to produce 4 evidence of a clear and unambiguous promise from Defendant. However, Plaintiff has 5 failed to provide any evidence that Defendant made an explicit promise that Plaintiff 6 would jointly manage the Conference and, thus, has failed to create a triable issue. The 7 Court therefore grants Defendant's Motion for Summary Judgment as to Plaintiff's 8 promissory estoppel claim. 9 10 11
C. Did a Partnership/Joint Venture Exist? Plaintiff brings claims for breach of implied partnership, breach of implied joint

12 venture, and breach of fiduciary duty. These claims rest on whether an implied 13 partnership/joint venture existed between Plaintiff and Defendant. See Wolf v. Superior 14 Court, 130 Cal. Rptr. 2d 860, 863 (Cal. Ct. App. 2003) ("Traditional examples of fiduciary 15 relationships in the commercial context include . . . business partners, joint adventures . . . 16 ."). Thus, the Court turns to that question here. 17
Under California Corporations Code section 16202(a), "the association of two or

18 more persons to carry on as coowners of a business for profit forms a partnership, whether 19 or not the persons intend to form a partnership." Cal. Corp. Code § 16202(a). "Whether a 20 partnership or joint venture exists is primarily a factual question to be determined by the 21 trier of fact from the evidence and inferences to be drawn therefrom." Bank of Cal. v. 22 Connolly, 111 Cal. Rptr. 468, 478 (Cal. Ct. App. 1973). "Although a partnership 23 ordinarily involves a continuing business, whereas a joint venture is usually formed for a 24 specific transaction or a single series of transactions, the incidents of both relationships are 25 the same in all essential respects." Connolly, 111 Cal. Rptr. at 477. 26
"A joint venture or partnership may be formed orally or assumed to have been

27 organized from a reasonable deduction from the acts and declarations of the parties." 28 Weiner, 54 Cal. 3d at 482-83 (internal citations omitted). Likewise, "[a] joint venture
10

1 exists where there is an `agreement between the parties under which they have a 2 community of interest, that is, joint interest, in a common business undertaking, an 3 understanding as to the sharing of profits and losses, and a right of joint control.'" 4 Connolly, 111 Cal. Rptr. at 477 (quoting Holtz v. United Plumbing & Heating Co., 49 Cal. 5 2d 501, 506-507 (Cal. 1957)). "In determining whether a relationship such as that of 6 partners has been created, the courts are guided not only by the spoken or written words of 7 the contracting parties, but also by their acts." Singleton v. Fuller, 118 Cal. App. 2d 733, 8 740 (Cal. Ct. App. 1953). The existence of a partnership or joint venture must be 9 established by a preponderance of the evidence. Weiner, 54 Cal. 3d at 490. 10
Defendant argues that a joint venture or partnership did not exist between it and

11 Plaintiff because (1) Plaintiff in the past has used various forms of the word "partner" to 12 describe non-partnership relationships, (2) there was no "community of interest" in 13 management of the Conference, and (3) there was no agreement to share in profits derived 14 from the Conference. (Def.'s Mot. at 19-20.) Plaintiff contends that, at a minimum, there 15 are genuine issues of material fact as to whether the parties formed a partnership or joint 16 venture based on the parties' work in jointly preparing the response to the RFP and RFI. 17 (Pl.'s Opp. at 15-16.) The Court agrees with Plaintiff. 18
Addressing Defendants' arguments first, how or why Plaintiff used the word

19 "partner" or "partnership" in the past is relevant only to the extent that no other evidence 20 exists for the Court to find that the ultimate trier of fact could reasonably deduce the 21 existence of a partnership. See Weiner, 54 Cal. 3d at 482-83. Because the Court finds that 22 based on the actions and words of the parties there is a possibility that a trier of fact could 23 reasonably find that a partnership existed, as explained further below, this argument is 24 unavailing. As to a community of interest, the parties do not dispute that over a span of 25 approximately six months, from December 2008 to May 2009, they worked jointly on a 26 response to the RFP/RFI. This alone refutes Defendant's contention that the parties lacked 27 a joint interest in a common business undertaking. Finally, the absence of an express 28 agreement to share profits is not dispositive in proving that a partnership did not exist.
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1 Holmes v. Lerner, 74 Cal. App. 4th 442, 453 (Cal. Ct. App. 1999) (finding that the 2 California "Legislature intend[ed] profit sharing to be evidence of a partnership, rather 3 than a required element of the definition of a partnership" and thus "the presence or 4 absence of . . . [the] sharing of profits and losses, is not necessarily dispositive."). Thus, 5 Defendant's arguments are unconvincing. 6
Looking at the evidence before it, the Court finds that there exists a genuine issue of

7 material fact as to whether a partnership or joint venture existed between Plaintiff and 8 Defendant. First, the parties do not dispute that the joint response to the RFP entailed 9 each party devoting a "team" to the project and numerous face-to-face interactions and 10 communications between the parties. These interactions included "brainstorming" 11 sessions and meetings concerning the strategy Plaintiff and Defendant would employ in 12 responding to the RFP/RFI, and a meeting with Conference staff to discuss Plaintiff's and 13 Defendant's joint response. Interspersed between these interactions were e-mail 14 communications about the parties' potential partnership. For example, on August 7, 2008, 15 Robert Lowe, Defendant's employee and the Event Architect for the response to the RFP, 16 sent an email to multiple principals of Plaintiff stating: "I just wanted to send you all a 17 quick note saying thanks for taking the time to meet with us in Vegas yesterday. I felt it 18 was a productive step towards a promising partnership." (Pl.'s Compendium of Ev., Exh. 19 104.) Four months later, on December 10, 2008, Sharon Weber, Plaintiff's employee, sent 20 Lowe a similar email stating that she felt that a recent meeting the parties had "set a good 21 foundation for our continued dialogue around how our two companies can partner in a 22 collaborative relationship for the RSA conference." (Def.'s Compendium of Ev., Exh. 13.) 23
As the relationship progressed and Plaintiff definitively agreed to help with the RFP

24 response, the parties had regular communication regarding the substance and direction of 25 their joint response to the RFP. On February 4, 2009, Lowe sent Weber an email in 26 preparation for a "brainstorming" session for the RFP response, stating as follows: 27 "Thinking out loud[,] here are the high points we need to address before we get into the 28 nitty-gritty . . . What is the best way to present our partnership to them?" (Pl.'s
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1 Compendium of Ev., Exh. 106.) Two days later, Weber sent an email to Lowe and 2 attached a "first pass at a creative brief" for the joint response to the RFP. (Id., Exh. 21.) 3 The attached draft was entitled "KCP Nth Degree RSA Proposal Creative Brief: Draft" and 4 included an "opportunity" section, which aimed "[t]o position the combined strategic 5 alliance of Nth Degree and KCP as the ideal `total solution' partner moving forward on 6 the RSA Conference." (Id. at 344 (emphasis added).) The draft also stated that the 7 proposal's "communication objectives" were to "[g]enerate confidence that the combined 8 Nth Degree-KCP team is the optimal long term strategic partner to help raise the bar for 9 RSA . . . ." (Id.) The parties do not dispute that each party had control over certain parts 10 of the joint response, nor do they dispute that the parties worked jointly on the response as 11 whole (Uncontroverted Facts ¶ 32 at 41); see Connolly, 111 Cal. Rptr. at 478 ("An 12 essential element of a partnership or joint venture is the right of joint participation in the 13 management and control of the business."). 14
Beyond these communications, the content of the 258-page joint response to the

15 RFP/RFI raises questions as to whether the parties were potentially partners/joint venturers 16 in managing and producing the Conference. The front page of the response features both 17 companies' logos, Defendant's directly above Plaintiff's. (Def.'s Compendium, Exh. 5.) 18 Every subsequent page features a logo on the bottom left-hand side of the page that reads 19 "Nth Degree Events + kahn creative partners." (See generally id.) There are also 20 representations throughout the response that give the impression that the parties were 21 partners in various aspects of the Conference. Under the "Business Acumen" section of 22 the response, it states that the "combined Nth Degree Events + Kahn Creative Partners 23 team brings extensive global experience to the RSA Conference . . . ." (Id. at 78.) The 24 response also states that Defendant "also anticipate[s] being able to fully and quickly 25 integrate the Kahn Creative Team with your team through a series of face-to-face strategy 26 meetings over the summer, as well as their possible participation in 2010 boot camp." (Id. 27 at 90.) The response further represents that "[Defendant's] extensive experience, 28
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1 combined with the creative event strategy expertise that Kahn Creative Partners brings to 2 the table, ensures you the greatest success." (Id. at 110.) 3
Contrary to Defendant's argument that Plaintiff was responsible only for the

4 marketing aspect of the Conference (Def.'s Mot. at 22-23), the joint response represents 5 otherwise. For example, the response states that the "Nth Degree Events + Kahn Creative 6 Partner team is your best choice to market and manage RSA Conference, both in the U.S. 7 and in Europe." (Id. at 177.) Likewise, the organizational chart for the "team" that would 8 be handling the conference includes members of both Plaintiff and Defendant, and some of 9 Plaintiff's employees were included in groups other than "Marketing and Creative." (Id. at 10 133.) Specifically, Weber and Trovalli, both Plaintiff's employees, are listed in the 11 Strategy Group as "Brand Strategist" and "Event Strategist," respectively. (Id.) 12
Furthermore, the parties' communications and actions after submitting the response

13 also contradict Defendant's position that Plaintiff was bidding separately on the marketing 14 piece of the Conference and was not, as Plaintiff contends, a partner with Defendant. After 15 receiving the joint response, the Conference invited the team to come in for a "face-to16 face" presentation to "showcase [their] strategic thinking," and specifically requested that 17 "the agency members that will make up [their] day-to-day team be in the room and present 18 portions of the plan." (Uncontroverted Facts ¶ 33 (emphasis added).) Upon receiving this 19 invitation, Lowe from Defendant sent an email on May 18, 2009 to Weber and Trovalli 20 from Plaintiff, stating that in terms of the "strategic, higher level message," Defendant felt 21 "that it is important for [Plaintiff] to provide [the Conference staff] with this type message 22 [sic] and to get across since you are new to the team and were brought into this team to 23 exactly fill this void . . . ." (Pl.'s Compendium, Exh. 103 (emphasis added).) Plaintiff then 24 helped prepare the majority of the presentation and subsequently presented a substantial 25 portion of it to the Conference staff. (Undisputed Facts ¶ 36.) 26
Based on this evidence, the Court finds that there remains a genuine issue of

27 material fact as to whether an implied joint venture/partnership existed between Plaintiff 28 and Defendant, and whether Defendant breached this implied joint venture/partnership in
14

1 accepting the contract to manage and produce the Conference without including Plaintiff 2 or sharing with Plaintiff the profits derived therefrom. Thus, the Court denies Defendant's 3 Motion for Summary Judgment as to Plaintiff's claims for breach of implied partnership 4 and breach of implied joint venture. Because a joint venture or partnership imposes 5 fiduciary duties on the parties involved therein, see City of Hope Nat. Med. Ctr. v. 6 Genentech, Inc., 43 Cal. 4th 375, 386 (Cal. 2008), the Court also denies Defendant's 7 Motion as to Plaintiff's breach of fiduciary duty claim. 8 9 10
D. Unjust Enrichment "California courts appear to be split on whether a stand alone cause of action for

11 unjust enrichment is anything more than `a general principle, underlying various legal 12 doctrines and remedies.'" Mattell, Inc. v. MGA Entm't, Inc., --- F. Supp. 2d ----, 2010 WL 13 5422504, at *71 (C.D. Cal. Dec. 27, 2010) (quoting Herrington v. Johnson & Johnson 14 Consumer Co., Inc., 2010 WL 3448531, at *13 (N.D. Cal. Sept.1, 2010)(listing cases)); see 15 McBride v. Boughton, 20 Cal. Rptr. 3d 115, 122 (Cal. Ct. App. 2004) ("Unjust enrichment 16 is not a cause of action, however, or even a remedy, but rather a general principle, 17 underlying various legal doctrines and remedies. It is synonymous with restitution.") 18 (internal citations and quotation marks omitted). However, to the extent that an unjust 19 enrichment claim exists, "[t]he elements of an unjust enrichment claim are the `receipt of a 20 benefit and [the] unjust retention of the benefit at the expense of another.'" Peterson v. 21 Cellco P'ship, 80 Cal. Rptr. 3d 316, 323 (Cal. Ct. App. 2008). 22
Plaintiff bases its unjust enrichment claim on the alleged oral contract/agreement

23 between it and Defendant and the fact that it "has not received the reasonable value of its 24 services." (See Compl. ¶¶ 80-81 ("Plaintiff[] performed al conditions required of it under 25 the Agreement . . .[but] [Plaintiff] has not received the reasonable value of its services, or 26 the amounts to which it is entitled under the Agreement."). Under California law, unjust 27 enrichment has been defined as an action in quasi-contract, which does not exist when an 28 enforceable, binding agreement exists between the parties. Paracor Fin., Inc. v. Gen. Elec.
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1 Cap. Corp., 96 F.3d 1151, 1167 (9th Cir. 1996). Because the Court has found that a 2 contractual relationship does not exist between Plaintiff and Defendant, an unjust 3 enrichment claim may stand if Plaintiff can show that Defendant received a benefit and 4 retained it at the expense of Plaintiff. 5
Here, there is a genuine dispute of material fact as to whether Defendant received a

6 benefit, i.e., the contract to manage and produce the Conference and the proceeds 7 therefrom, at the expense of Plaintiff. As discussed above, Plaintiff and Defendant jointly 8 worked on and submitted a response to the RFP. Thus, there remains a triable issue as 9 what relationship existed between the parties, i.e., partnership, joint venture, neither, and 10 what, if anything, Plaintiff was entitled from Defendant's acceptance and performance of 11 the contract to produce and manage the Conference. 12
Accordingly, the Court denies Defendant's Motion as to Plaintiff's unjust

13 enrichment claim. 14 15 16
E. UCL Claim California's Unfair Competition Law ("UCL") covers "any unlawful, unfair, or

17 fraudulent business act or practice . . . ." Cal. Bus. & Profs. Code § 17200. For a claim for 18 "unlawful" business practice under the UCL, the plaintiff must show the violation of 19 "anything that can properly be called a business practice and that at the same time is 20 forbidden by law." Cel-Tech Commc'ns, Inc. Los Angeles Cellular Tel. Co., 20 Cal. 4th 21 163, 180 (Cal. 1999). Here, Plaintiff bases its UCL claim on the previously discussed 22 claims. Because there remain genuine issues of material fact as to Plaintiff's breach of 23 implied partnership, breach of implied joint venture, breach of fiduciary duty, and unjust 24 enrichment claims, summary judgment on Plaintiff's UCL claim is inappropriate. The 25 Court therefore denies Defendant's Motion as to this claim. 26 27 28
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1 2

V.

CONCLUSION For the reasons stated above, the Court GRANTS in part and DENIES in part

3 Defendant's Motion for Summary Judgment. The Court grants the Motion as to Plaintiff's 4 breach of oral contract, breach of oral partnership agreement, breach of oral joint venture 5 agreement, breach of the covenant of good faith and fair dealing, and promissory estoppel 6 claims, and denies the Motion as to Plaintiff's breach of implied partnership, breach of 7 implied joint venture, breach of fiduciary duty, unjust enrichment, and unfair business 8 practices claims. 9 10 11 DATED: March 29, 2011 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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JOSEPHINE STATON TUCKER JOSEPHINE STATON TUCKER UNITED STATES DISTRICT JUDGE