The Motion by Plaintiff GearShift Inc. for Summary Adjudication as to the first (breach of contract), second (money had and received), and third (unjust enrichment) causes of action in the Complaint filed against Defendant The Sandbox Group, LLC is GRANTED.  Defendant’s evidentiary objections are OVERRULED.

A plaintiff seeking summary judgment meets its burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.  (Civ. Proc. Code § 437c(p)(1).)  Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.  (Id.)

Here, each element of Plaintiff’s First Cause of Action against Defendant for breach of contract is established by undisputed facts.  Plaintiff has established the existence of a contract.  Defendant has admitted that it was ymarketing’s successor-in-interest on two contracts with Plaintiff—the Master Services Agreement (MSA) and the related Yamaha Statement of Work (SOW).  Plaintiff performed by paying the money Defendant invoiced it under the agreements.  Defendant breached the contracts by failing to pay the amounts invoiced and received to third-party media vendors, and by overcharging Plaintiff by at least $750,000.  And Sandbox has admitted that it has not refunded these overpayments, thus admitting resulting damage to GearShift.

Defendant attempts to submit evidence to create a triable issue of fact, but the Court’s March 13, 2020 order deemed admitted the matters set forth in Plaintiff’s Requests for Admission (Set One).  Further, on October 2, 2020, the Court granted in part Plaintiff’s motion for terminating sanctions.  In ordering evidentiary sanctions against Defendant, the Court prohibited Defendant from introducing into evidence any documents that are responsive to any of the inspection demands contained in the first and second sets of requests for production of documents.  Thus, Defendant is bound by its admissions and does not create a genuine issue of material fact.  (St. Mary v Superior Court (2014) 223 Cal.App.4th 762, 775, 776.)

 “A cause of action is stated for money had and received if the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff.”  (Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1623 (internal quotation marks omitted).)  “The elements for a claim of unjust enrichment are ‘receipt of a benefit and unjust retention of the benefit at the expense of another.’ [Citation.] ‘The theory of unjust enrichment requires one who acquires a benefit which may not justly be retained, to return either the thing or its equivalent to the aggrieved party so as not to be unjustly enriched.’ [Citation.]” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1132, 167 Cal.Rptr.3d 832.)

As discussed previously in connection with the contract claim, Plaintiff has established the elements necessary for these two common counts.  Thus, the Plaintiff’s motion for summary adjudication is granted as to the first three causes of action asserted in the Complaint.  Further, Plaintiff has sufficiently established damages in the amount of $898,838.  However, no judgment will be entered because additional causes of action remain to be adjudicated at trial.

Plaintiff is ordered to submit and Proposed Order Granting Summary Adjudication as to the first (breach of contract), second (money had and received), and third (unjust enrichment) causes of action in the Complaint filed against Defendant The Sandbox Group, LLC, including damages in the amount of $898,838, within ten (10) days of the date on which notice of this order is served.

The Court sets an Order to Show Cause Re Submission of a Proposed Order Granting Summary Adjudication for 12/18/2020 at 8:30 a.m. in Department C24, remote appearances only, until further notice.

The Jury Trial scheduled for 01/25/2021 to remain.

Plaintiff to give notice.