Opinion
A168394
06-28-2024
SHIHADEH K. KITAMI, Plaintiff and Respondent, v. WALEED SABRAH, Defendant and Appellant.
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CIV-2001836
DESAUTELS, J.
INTRODUCTION
Defendant and appellant Waleed Sabrah (Sabrah) appeals from the default judgment entered against him and in favor of plaintiff and respondent Shihadeh K. Kitami (Kitami) after the trial court struck Sabrah's answer and entered his default as a terminating sanction for discovery abuses and repeated violations of court orders. Following a default prove-up hearing, the court awarded Kitami approximately $33,775 in damages. Sabrah also purports to appeal from an order striking his postjudgment ex parte application seeking a ruling on a previously filed ex parte application.
During some of the proceedings in the trial court, Sabrah represented himself; he is represented by counsel on appeal.
We affirm the default judgment and conclude the order striking the postjudgment ex parte application is not an appealable order.
BACKGROUND
The Partnership and Dissolution Agreements
The limited record before us suggests that in or about August 2018, Kitami and Sabrah entered into an oral partnership agreement "to offer fast food to the general public in . . . San Rafael, California." The partnership agreement contemplated the location and development of a facility for a fast food restaurant and the related investment of capital. As part of the partnership agreement, Kitami and Sabrah agreed to share profits and losses equally.
In or about November 2018, Kitami and Sabrah found a location for the restaurant and entered into a commercial lease agreement; the premises needed some minor tenant improvements. To assist in the remodeling costs, Kitami obtained two business credit cards-one from Chase Bank with a $30,000 limit and the other from Wells Fargo Bank with a $20,000 limit; Kitami added Sabrah as an authorized user of both cards.
During the remodeling process, Kitami became worried that Sabrah was making unwarranted changes without the necessary permits. Kitami also voiced concern about Sabrah's expenditures, which were made without any accounting. In response, Sabrah said he would be responsible for any code violations and would release Kitami from liability until the business was up and running.
On April 27, 2019, Sabrah gave Kitami an "Agreement to Dissolve Partnership" (dissolution agreement), and represented the dissolution would be effective for 90 days while Sabrah completed improvements he deemed necessary to open the business. This 90-day suspension was intended to wind down Kitami's partnership obligations and liabilities until Sabrah complied with the original partnership agreement and paid off the outstanding debt. Kitami did not assist in the preparation of the dissolution agreement or review it; Kitami represented he signed the dissolution agreement to protect his investments.
After signing the dissolution agreement, Kitami learned Sabrah had filed articles of organization for the business as "Tender Tenders, LLC" without Kitami's knowledge or consent and was operating without a business license. Sabrah did not release Kitami from liability as promised. Sabrah used Kitami's credit cards for unauthorized personal use. Sabrah refused to give Kitami access to the financial records of the business.
Commencement of Litigation
In July 2020, Kitami sued Sabrah for declaratory relief, conversion, breach of contract, breach of fiduciary duty, unjust enrichment, fraud in the inducement, and an accounting. Kitami did not raise the issue of the dissolution agreement in the original complaint because Sabrah had never given him a copy; Kitami believed the dissolution agreement was void or without consequence because Sabrah had never performed under it.
In September 2020, Kitami filed his first amended complaint (FAC) against Sabrah for breach of an oral agreement, conversion, breach of fiduciary duty, fraud-intentional misrepresentation, unjust enrichment, and an accounting arising out of Sabrah's alleged misappropriation and conversion of Kitami's business investments and funds. The FAC included reference to the dissolution agreement, which it attached as exhibit D. The FAC sought a minimum of $300,000 in compensatory damages and $500,000 in punitive damages.
Sabrah filed a demurrer to the FAC, which the court overruled. Thereafter, on April 29, 2021, Sabrah filed an answer.
Discovery Abuses and Entry of Default
In its April 11, 2023 "Order Granting Application for Default Judgment," the trial court described the litigation as being "bogged down with discovery disputes and acrimony." The court issued a series of orders detailing these disputes. Sabrah "refused to meaningfully participate in discovery" even after the court granted a motion to compel and imposed monetary sanctions. On more than one occasion, Kitami moved for terminating sanctions.
We note that in our unpublished December 13, 2022 opinion, Kitami v. Sabrah, case No. A164399, we reversed the trial court's lifting of a stay and imposition of a previous sanctions order due to lack of jurisdiction pending bankruptcy removal, but we "express[ed] no view" on the other issues raised on appeal.
The court gave Sabrah additional and extended opportunities to comply with the discovery and sanction orders, but Sabrah failed to comply. Kitami renewed his motion for terminating sanctions and included an application for entry of default judgment. Following noticed hearings at which Sabrah appeared and argued on his own behalf, the court, on its own motion, issued an order to show cause to Sabrah as to why his answer should not be stricken and his default entered. The court ordered Sabrah to file a written response to the court's order to show cause and appear at a July 19, 2022 hearing. Thereafter, at the July 19 hearing, the court personally notified Sabrah that a hearing on the order to show cause would be held on August 9, 2022.
At the August 9, 2022 hearing, the court summarized its June 29, 2021 discovery rulings, "which required a further response to discovery requests to be served without objections within five days and an order indicating that documents response to those requests be produced 30 days thereafter." The court noted it had ordered Sabrah "to file and serve a declaration under oath as to the location and the custodian of the disputed financial records" and had "imposed discovery sanctions" on Sabrah. Despite the court's extension of the time to comply, "it's now been a year, and Mr. Sabrah has not complied with the court's orders." In an effort to get the case back on track, the court explained it had ordered Sabrah to sit for a deposition by the end of October 2021, but, at the date of hearing nearly a year later, Sabrah had not complied. Additionally, Sabrah had not paid the sanctions ordered by the court. Nor had Sabrah filed a written response to the order to show cause.
The June 29, 2021 order is not included in the record on appeal.
As previously stated, we later reversed the sanctions order in Kitami v. Sabrah, supra, A164399.
At the conclusion of the August 9, 2022 hearing, the court ordered Sabrah's answer stricken and his default entered. The court also rejected Kitami's request for entry of default judgment and supporting declaration and, instead, ordered a prove-up hearing.
Kitami's initial declaration and request for entry of default judgment are not included in the record on appeal.
Default Judgment Proceedings
At the prove-up hearing held on October 4, 2022, the court denied Kitami's request for default judgment without prejudice due to his failure to support his claims for compensatory and punitive damages with admissible evidence.
On November 30, 2022, Kitami filed a declaration in support of his application for default judgment, which attached numerous exhibits. The record on appeal, however, includes only a select few of these exhibits.
On December 14, 2022, Sabrah filed a document entitled "Ex Parte Application to Strike Plaintiff's Request for Default Judgment, and to Effectuate Court's Dismissal of Action and Objection to Plaintiff's Request for Default Judgment" (ex parte application; original capitalization &boldface omitted). In his ex parte application, Sabrah argued Kitami's November 30, 2022 request for default judgment was "an exact replica" of the request that the court rejected on October 4, 2022. Sabrah further claimed Kitami failed to comply with the applicable procedures for motions for reconsideration under Code of Civil Procedure section 1008 and alleged Kitami's claims were inconsistent with the operative complaint.
At the December 15, 2022 hearing on Sabrah's ex parte application, the court determined the request was improper and did not comply with California Rules of Court, rule 3.1202, which requires, among other things, an applicant to "make an affirmative factual showing . . . of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte." The court interpreted Sabrah's ex parte application as an "objection" to Kitami's application for default judgment; the court represented it would consider Sabrah's objection at the time it considered Kitami's application, which was set for hearing on March 7, 2023.
The reporter's transcript from the December 15, 2022 hearing is not included in the record. All further "rule" references are to the California Rules of Court.
At the March 7, 2023 hearing, Sabrah appeared remotely by Zoom; there were no appearances by Kitami and his counsel. After calling the case, the court advised Sabrah that it had continued the matter to March 21, 2023. Despite this advisement, Sabrah persisted in arguing the merits of his case. Sabrah repeatedly talked over the court's protestation that the matter had been continued and ultimately was removed from the Zoom hearing.
At the March 21, 2023 hearing, both Kitami and Sabrah appeared. The court examined Kitami regarding the amount of reimbursement he was owed and the amount of lost profits he had incurred. During this examination, the court repeatedly admonished Sabrah not to shout and engage in disruptive behavior. The court reminded Sabrah he was in default and was entitled to observe the proceedings but could not participate or raise objections. At the conclusion of the hearing, the court advised Kitami that the submitted credit card statement was insufficient to demonstrate his alleged losses and there was no evidence of lost profits. The court gave Kitami one more opportunity to document his losses and lost profits.
Kitami filed an additional declaration on April 6, 2023, supporting his claim for damages. The declaration included credit card statements and payments (exhibits A &B), as well as numerous banking and financial records (exhibits C, D, E, F, &G). None of the supporting documentation is included in the record on appeal.
On April 11, 2023, the trial court issued a detailed order granting Kitami's application for default judgment. The court awarded Kitami $18,976 in compensatory damages based, in part, on Sabrah's failure to repay Kitami for the credit card expenditures, which the court found was sufficient to constitute conversion. Sabrah's failure to grant Kitami access to the books and records to determine if the expenses were necessary or reasonable was sufficient to establish a breach of the partnership agreement and Sabrah's fiduciary duties as a partner; the factual circumstances also demonstrated fraudulent misrepresentation.
The court awarded $4,798.59 in prejudgment interest. The court found no competent evidence was presented regarding Kitami's claim of lost profits but found, based on the evidence presented, "it appear[ed] that Sabrah's actions were willful, deliberate, and carried out in order to defraud" Kitami. The court therefore awarded $10,000 in punitive damages, bringing the total damages judgment to $33,774.59.
Postjudgment Ex Parte Application
On June 7, 2023, Sabrah filed a document entitled "Ex Parte Application for Court's Ruling on Defendant's Motion Filed on 12/14/2022" (original capitalization and boldface omitted). On June 8, the court struck the application as being procedurally defective for failing to comply with rule 3.1202 and as not prepared or filed in conformity with the law. In striking the application, the court noted that Sabrah had not filed a motion to vacate the default entered on August 10, 2022. Nor had Sabrah moved to vacate the default judgment after it was entered on April 11, 2023. Sabrah could not now attempt to reverse these orders by ex parte application.
Sabrah filed a notice of appeal challenging the April 11, 2023 default judgment and the June 8, 2023 order striking his postjudgment ex parte application.
DISCUSSION
Before addressing Sabrah's claims, we discuss the limits of our review, which is informed by established principles of appellate procedure-namely appealability, appropriate appellate advocacy, and an appellant's burden to affirmatively establish error by providing an adequate record.
I. Appealability
We first consider whether the challenged orders are appealable. No judgment or order is appealable unless expressly permitted by statute. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) The order granting the default judgment is reviewable on appeal. (Misic v. Segars (1995) 37 Cal.App.4th 1149, 1153-1154.) As is an order denying a motion to vacate a default judgment. (Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1137.) But the order striking Sabrah's postjudgment ex parte application is not, and we are unable to find any authority to the contrary. Sabrah's reliance on Code of Civil Procedure section 904.1 is unhelpful, as it provides no alternate authority for this sort of ex parte application. Accordingly, we cannot consider Sabrah's challenge to the court's June 8, 2023 order striking the ex parte application.
Additionally, Sabrah makes no claim of error by the court in granting the terminating sanctions on August 9, 2022. Accordingly, any challenge to these rulings is foreclosed on appeal.
Similarly, Sabrah does not separately challenge the punitive damages award; as such, any such challenge is foreclosed on appeal.
II. Appellate Record and Briefing
A. Principles of Appellate Review
On appeal, a judgment is presumed correct, and the burden is on the appellant to affirmatively demonstrate error. (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408.) The appellant must raise claims of reversible error and present argument and authority on each point made. (In re Sade C. (1996) 13 Cal.4th 952, 994.) The appellant also bears the burden of providing an adequate record to demonstrate the claimed error. (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.)
An appellant's brief must "[p]rovide a summary of the significant facts limited to matters in the record" (rule 8.204(a)(2)(C)), and must support each reference to a matter in the record by citation to the page of the record on which it appears (Id., rule 8.204(a)(1)(C)). The leading California appellate practice guide instructs, "Before addressing the legal issues, your brief should accurately and fairly state the critical facts (including the evidence), free of bias; and likewise as to the applicable law." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2023) ¶ 9:27, p. 9-8, second italics added; accord, In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1531; Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1166.)
Additionally, "to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record." (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286-287; Multani v. Witkin &Neal (2013) 215 Cal.App.4th 1428, 1457 [plaintiffs forfeited claim of error by failing to" 'present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error' "]; In re Marriage of Falcone &Fyke (2008) 164 Cal.App.4th 814, 830 ["absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived"]; rule 8.204(a)(1)(B) [briefs "must support each point by argument and, if possible, by citation of authority"].)
Despite being represented by counsel, Sabrah's brief betrays either ignorance or disregard of these fundamental rules of appellate procedure. Sabrah's factual recitation is not a summary of significant facts but rather a one-sided list that omits significant parts of the underlying factual and procedural history. For example, Sabrah asserts the trial court violated his right to "due process various times, went on a frenzy of sua sponte illegal orders, [and] embroiled itself in an entry of default, also sua sponte, without notice." (Italics omitted.) Sabrah, however, fails to mention that the court entered his default after Sabrah appeared and was heard at a noticed hearing on an order to show cause regarding terminating sanctions that had been prompted by Sabrah's flagrant discovery abuses and repeated failure to comply with the court's orders. Similarly, Sabrah fails to include in the appellate record the documentary evidence Kitami submitted in his request for default judgment and related damages. Failure to provide an adequate record on an issue requires the issue to be resolved against an appellant. (McClain v. Kissler (2019) 39 Cal.App.5th 399, 426; Mack v. All Counties Trustee Services, Inc. (2018) 26 Cal.App.5th 935, 940.)
No respondent's brief was filed on behalf of Kitami, and accordingly Sabrah did not file a reply brief. (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1203 [failure of respondent to file brief is not treated "as a 'default' (i.e., an admission of error) but [appellate court] independently examine[s] the record and reverse[s] only if prejudicial error is found"].)
Elsewhere, Sabrah points to purported errors but provides little to no legal analysis. For example, Sabrah restates the allegations of the original complaint and FAC and, referencing the sham pleading doctrine set forth in Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 344, summarily claims the allegations are false. But an appellant must do more than merely point to error and rest there. (Santina v. General Petroleum Corp. (1940) 41 Cal.App.2d 74, 77.) Because Sabrah fails to explain why these allegations are purportedly false, much less cite evidence in the record supporting his argument, we must disregard his claims.
Setting aside the deficiencies in the record and briefing, we turn to Sabrah's argument that the default judgment is void due to jurisdictional and pleading defects. We apply a de novo standard of review in determining whether a default judgment is void. (See Dhawan v. Biring (2015) 241 Cal.App.4th 963, 968.) As discussed below, this default judgment is not.
III. The Default Judgment is Not Void
A defendant's appeal of a default judgment is limited to "jurisdictional matters and fundamental pleading defects." (Aheroni v. Maxwell (1988) 205 Cal.App.3d 284, 294; see City Bank of San Diego v. Ramage (1968) 266 Cal.App.2d 570, 582.) "It is well established a default judgment cannot properly be based on a complaint which fails to state a cause of action against the party defaulted because . . . '[a] defendant who fails to answer admits only facts that are well pleaded.'" (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 829, fns. omitted); Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 282 ["if the well-pleaded allegations of the complaint do not state any proper cause of action, the default judgment in the plaintiff's favor cannot stand"].) "A default judgment is void if the trial court lacked jurisdiction over the parties or the subject matter of the complaint or if the complaint failed to 'apprise[] the defendant of the nature of the plaintiff's demand ....'" (Falahati, supra, at p. 830, fns. omitted.)
A. The Trial Court Acted Within Its Jurisdiction
Sabrah asserts he made "valid jurisdictional objections" to Kitami's applications for default judgment. (Original capitalization and boldface omitted.) Sabrah claims the court exceeded its jurisdiction in numerous respects, arguing: (1) Kitami's default applications were untimely; (2) the default judgment was not supported by any evidence; (3) Kitami's request for default judgment asserts claims inconsistent with the pleadings; and (4) the court improperly reconsidered Kitami's default applications.
Here, again, Sabrah failed to present an adequate record on appeal. As such, he cannot challenge the sufficiency of the evidence supporting the default judgment. (See McClain v. Kissler, supra, 39 Cal.App.5th at p. 426; Mack v. All Counties Trustee Services, Inc., supra, 26 Cal.App.5th at p. 940.) Moreover, Sabrah fails to include legal argument explaining these purported errors. An appellant cannot merely point out errors and expect the court to do the rest. (In re Estate of Robinson (1924) 65 Cal.App. 588, 590.)
Sabrah's claims fail for another more fundamental reason." 'A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.' '' (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386, italics added; see also People v. One 1986 Toyota Pickup (1995) 31 Cal.App.4th 254, 259.)
Here, Sabrah's default was ordered on August 9 and entered on August 10, 2022. At no time, however, did Sabrah seek to properly set aside the entry of default. Instead, over four months later, Sabrah filed an ex parte application asking the court to strike Kitami's request for default judgment; the court struck Sabrah's application as an improper filing. Despite being advised he was no longer a party and lacked the ability to participate in the proceedings, Sabrah continued to file "motions" and appear at hearings.
In any event, the record reflects the entry of default did not result in an unsubstantiated windfall for Kitami. Rather, the court carefully considered Kitami's claims. Kitami's FAC sought $300,000 in compensatory damages and $500,000 in punitive damages. The court denied Kitami's first application for default on October 4, 2022, noting there was no legal basis for the requested attorney fees and that the claims for damages were not supported by competent evidence. The denial was without prejudice and authorized a renewed application. At the March 21, 2023 prove-up hearing, the court again expressed dissatisfaction with Kitami's proof; in response to the court's request, Kitami submitted further evidence on April 6, 2023. Based on this information, the court awarded Kitami $33,774.59-an amount well below the $800,000 sought in the FAC. (Cf. David S. Karton, A Law Corp. v. Dougherty (2009) 171 Cal.App.4th 133, 150.) We find no error in this award, particularly given the incomplete record submitted on appeal and the inadequate appellate briefing.
B. The FAC States a Cause of Action
Due to the one-sided nature of default judgments, it is imperative for trial judges to act as gatekeepers, ensuring only appropriate claims get through. (Grappo v. McMills (2017) 11 Cal.App.5th 996, 1012.) That is exactly what occurred here.
The instant case does not present the typical situation where a defendant fails to answer, thus limiting the court's consideration to the operative pleading. Prior to granting the default judgment, the court had considered and overruled Sabrah's demurrer to the FAC. The court had also presided over prolonged, contentious discovery disputes after the filing of Sabrah's answer, which was later stricken due to Sabrah's flagrant discovery abuses and violations of court orders.
After independently reviewing Kitami's FAC in connection with the partial record submitted on appeal (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 392-393 [review akin to demurrer]), we find the FAC apprised Sabrah of the claims upon which the court entered judgment: Kitami alleged Sabrah breached an oral agreement to share profits of a new restaurant, that Sabrah converted funds and breached his fiduciary duties, and that Sabrah defrauded Kitami; as a result, Sabrah was unjustly enriched. We briefly discuss the causes of action and conclude they are sufficient.
1. Breach of Oral Contract (First Cause of Action)
To state a breach of contract cause of action, the plaintiff must allege a contract, the defendant's breach, the plaintiff's performance or excuse for nonperformance, and damage resulting from the defendant's breach. (People ex rel. Feuer v. Superior Court (Cahuenga's the Spot) (2015) 234 Cal.App.4th 1360, 1383.)
The FAC alleges that in or about October 2018, Kitami and Sabrah entered into a partnership agreement. Kitami performed all of the conditions, covenants and promises. Beginning on or about April 25, 2019, Sabrah began breaching the partnership agreement, by failing to: (1) obtain necessary business licenses; (2) comply with the terms of the lease agreement; (3) keep correct and accurate records of income and expenses; (4) provide Kitami copies of partnership business records of income and expenses; and (5) give Kitami his 50 percent share of the partnership business profits.
Finally, the FAC alleges that by reason of Sabrah's multiple breaches of the partnership agreement, Kitami has been damaged in an amount according to proof at trial and that the business received a pre-citation notice from the City of San Rafael with an additional follow-up admonition regarding violation of various codes and regulations.
Accordingly, the FAC states a cause of action for breach of contract.
2. Conversion (Second Cause of Action)
"' "Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages." '" (Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 204, 208-209.)
Here, the FAC alleges: (1) Kitami possessed credit cards and added Sabrah to the accounts for his use for business-related expenses; (2) Sabrah made various unauthorized charges and refused to return the cards when Kitami demanded its immediate return; and (3) as a result of Sabrah's conduct, Kitami became indebted to the credit card companies for items he did not receive and/or from which he derived no benefit.
The FAC states a cause of action for conversion.
3. Breach of Fiduciary Duty (Third Cause of Action)
"The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages." (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) Partners owe one another a duty of loyalty and a duty of care. (Corp. Code, § 16404, subd. (a).) The FAC identifies a number of alleged incidents in which Sabrah breached the partnership agreement and caused damages to Kitami.
4. Fraud-Intentional Misrepresentation (Fourth Cause of Action)
The essential elements of fraud that give rise to a cause of action for deceit or intentional misrepresentation are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) actual and justifiable reliance; and (5) resulting damage. (See Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974 [elements of intentional misrepresentation]; Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [elements of deceit].)
The FAC pleads each element with specificity. Sabrah made promises under the partnership agreement to provide income and expense documents to Kitami for review; to consult Kitami on large expenditures before making them; to comply with applicable food service regulations and ordinances; to obtain a food handler's certificate and business license; to verify changes to the premises complied with applicable codes and regulations; and to take other actions in accord with the partnership agreement, including providing Kitami with his 50 percent share of the profits.
The FAC provides specific dates when these representations were made and that the representations were knowingly made by Sabrah with knowledge of their falsity and without the intent to perform. Finally, the FAC pleads that Kitami justifiably relied on these misrepresentations to his detriment by entering into the partnership agreement with Sabrah, subsequently being cited by the City of San Rafael, and becoming substantially in debt due to Sabrah's use of Kitami's credit cards for unauthorized purchases.
The FAC states of cause of action for fraud-intentional misrepresentation.
5. Unjust Enrichment (Fifth Cause of Action)
The elements for a claim of unjust enrichment are receipt of a benefit and unjust retention of the benefit at the expense of another. (Elder v. Pacific Bell Telephone Co. (2012) 205 Cal.App.4th 841, 857.) The FAC sufficiently alleges Sabrah used Kitami's credit card for unauthorized purchases and further used Kitami's assets to create a business without providing Kitami with any of the benefits agreed to under the partnership agreements, which included 50 percent of the profits.
Accordingly, Sabrah's challenge to the sufficiency of the FAC and the ensuing default judgment fails.
DISPOSITION
The judgment is affirmed. Sabrah is to bear his own costs on appeal. (Rule 8.278(a)(5).)
WE CONCUR: STEWART, P. J., RICHMAN, J.