Filed 2/26/16 Weyand v. Union Central Life Ins. Co. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


GARRET WEYAND,

     Plaintiff and Appellant,                                          G051071

         v.                                                            (Super. Ct. No. 30-2013-00633423)

UNION CENTRAL LIFE INSURANCE                                           OPINION
COMPANY,

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of Orange County, Craig L.
Griffin, Judge. Affirmed in part and reversed in part.
                   Engstrom, Lipscomb & Lack, Walter J. Lack and Steven C. Shuman for
Plaintiff and Appellant.
                   Reed Smith, Margaret M. Grignon, Robert D. Phillips, Jr., Paula M.
Mitchell, Kathy J. Huang and Cristyn N. Chadwick for Defendant and Respondent.
                                          *                  *                  *
              Plaintiff and appellant Garret Weyand purchased $10 million in life
insurance policies from an authorized agent of defendant and respondent Union Central
Life Insurance Company (Union Central). The agent induced Weyand to purchase the
insurance by representing the policies were a “‘no-risk investment opportunity’” because
Weyand would nearly double the amount he spent on premiums if he held the policies for
two years and then sold them to investors on the secondary market. The agent, however,
failed to disclose recent revisions to life expectancy tables that made the policies less
valuable than the agent had claimed, and the agent also failed to disclose other risk
factors that could affect the policies’ value and Weyand’s ability to resell them.
              Weyand held the policies for two years as the agent had instructed, but the
agent was unable to resell the policies because their value had declined based on the
revised life expectancy tables and the entire secondary market for life insurance policies
had contracted due to the severe recession in 2008. Weyand allowed the policies to lapse
when he could no longer afford the premiums and then brought this action against Union
Central and its agent to recover not only the paid premiums, but also the profits the agent
represented Weyand would earn when he sold the policies.
              Union Central moved for summary judgment, or alternatively summary
adjudication, arguing it could not be vicariously liable for the agent’s fraud and other
misconduct because the agent acted outside the scope of his authority by violating Union
Central’s express prohibition on its agents selling life insurance policies to an insured
who intended to resell the policies on the secondary market. Union Central also argued it
could not be directly liable for Weyand’s losses because it did not breach any duty by
selling the policies to Weyand, and it was not negligent in supervising the agent because
it had performed a thorough background check and uncovered no indication the agent
was unfit. The trial court agreed and granted Union Central’s motion.
              We affirm on Weyand’s negligent supervision claim, but reverse on all
other claims because Union Central failed to meet its initial burden to show it could not

                                              2
be vicariously liable for the agent’s conduct as a matter of law. An agent’s acts and
representations within the ordinary scope of the insurance business are binding on the
insurer even if the agent violates the insurer’s instructions or limitations on the agent’s
authority unless the injured insured had actual or constructive notice of the limits on the
agent’s authority. Union Central failed to present any evidence showing that the agent
selling the policies to Weyand acted outside the ordinary scope of the insurance business
Union Central entrusted to the agent, or that Weyand had notice of the limitations Union
Central had placed on the agent.
              Weyand alleged vicarious liability as a liability theory on all causes of
action except his negligent supervision claim, and therefore we must reverse the
judgment on the vicarious liability claims. We affirm the judgment on the negligent
supervision claim because Weyand failed to address it in either his opening or reply brief.

                                              I

                            FACTS AND PROCEDURAL HISTORY
              Union Central is a life insurance company that sells its products in all
50 states through independent insurance agents. In January 2007, Kevin Yurkus applied
for an appointment as a Union Central agent. Union Central approved Yurkus’s
application and appointed him and his company, Fairway Capital, as an agent after
completing a background check to confirm Yurkus was licensed to sell life insurance in
California, Arizona, and New York, he had been appointed as an agent for nearly 40
other companies, he had no criminal record, and he had not been disciplined in any state
or terminated by any company.
              To confirm the terms of his appointment, Yurkus signed several agreements
acknowledging he agreed to follow Union Central’s rules and guidelines for selling and
marketing its insurance policies. Union Central’s rules and guidelines prohibited all of its
agents from selling “a life insurance policy that was purchased with the intent to assign or


                                              3
sell it to an investor, group of investors, or life settlement company” because these
transactions potentially violate state laws regarding insurable interests and jeopardize life
insurance’s tax-favored status by serving as an investment rather than true insurance.
The agreements advised Yurkus that selling Union Central policies to an insured for
resale on the secondary market was outside the scope of his contract and Union Central
would sever its relationship with him.
              In late 2007 or early 2008, Weyand was looking for new investment
strategies. He was in his early 70’s, had owned and operated several successful
businesses, and “had done very well in [his] investments.” According to Weyand, his son
had “heard of Yurkus from an acquaintance and suggest[ed] [Weyand] meet with him
about what Yurkus was touting as a ‘no-risk investment opportunity’ for seniors.” At the
time, Weyand already had more than $7 million in life insurance and had no specific need
for additional insurance.
              Weyand met with Yurkus, who presented life settlements as a lucrative
investment opportunity for senior citizens. Yurkus explained a life settlement involved a
policyholder selling a life insurance policy to an investor for more than the policy’s cash
surrender value but less than the policy’s death benefit with the investor assuming
responsibility for paying the policy’s premiums until the insured’s death. Yurkus
represented that he specialized in life settlements and had extensive experience selling
life insurance policies to senior citizens who successfully sold those policies for
significant profits. At this meeting, Yurkus did not present any financial or investment
strategy other than life settlements, nor did he discuss traditional forms of life insurance.
              At a follow-up meeting, Yurkus presented Weyand with various scenarios
showing how much money he could make if he bought the policies Yurkus recommended
and later sold them. To maximize the policies’ value, Yurkus explained Weyand would
need to hold the policies and pay the premiums for at least two years before he sold them
because life insurance policies include an incontestability clause, which prevents the

                                              4
insurer from contesting coverage based on any purported misrepresentation or
concealment in the application after the policy’s first two years. In his scenarios, Yurkus
represented that Weyand could nearly double his money because every $5 million in
coverage he purchased could be sold in two years for almost $900,000, but the policy
premiums during that period would only be about $479,000. Yurkus recommended
Weyand buy a total of $10 million in coverage split between one $5 million policy and
five $1 million policies because the smaller policies would be easier to sell. At no point
did Yurkus advise Weyand of any economic factors that could affect the value of his
policies on the secondary life insurance market or of any risk that he may not be able to
sell his policies.
               Weyand decided to follow Yurkus’s advice and he applied to purchase
$10 million in life insurance from Union Central. To support the application, Yurkus
wrote a letter to Union Central explaining that Weyand wanted to replace his income for
his family when he died and to ensure his wife would continue to enjoy her current
lifestyle. The letter also represented “the value of the Weyand estate is currently
$17 million and appreciating rapidly.” The application process required Weyand and
Yurkus to submit a “Statement of Policyowner and Agent Intent” (Statement of Intent),
which inquired whether Weyand “presently intend[ed] to assign or sell the life insurance
for which [he was] applying” and whether he had “spoken with an individual or company
offering to pay [him] for [his] life insurance policy.” A Union Central representative also
asked him the same questions during a phone interview. In both instances, he answered
the questions in the negative.
               In July 2008, Union Central issued Weyand a $5 million life insurance
policy with an annual premium of $234,250. Union Central also later issued Weyand
five $1 million policies that each had a $46,850 annual premium. Between the time
Weyand purchased the $5 million policy and the time he purchased the five $1 million
policies, the life expectancy tables on which the secondary life insurance market relied

                                             5
were adjusted upward to reflect longer life expectancies. This revision decreased the
value of Weyand’s policies on the secondary market because it meant he was expected to
live longer, which likely would require potential purchasers to pay more premiums and
wait longer before collecting on the policies. Yurkus, however, failed to disclose this
information before Weyand purchased the five $1 million policies.
              When the two-year incontestability period on Weyand’s policies expired in
August 2010, Weyand contacted Yurkus the next day to ask about selling the policies.
Yurkus told Weyand to continue paying the premiums because it would take four or five
months to shop the policies and determine their current value on the secondary market.
At that time, however, the secondary market for life insurance policies was severely
depressed because of the 2008 recession. And contrary to Yurkus’s earlier
representations, the value of Weyand’s policies also had substantially declined because of
the upward revision to the life expectancy tables.
              Unable to sell the policies, Yurkus stopped returning Weyand’s phone calls
and disappeared. Weyand continued paying the policy premiums, but eventually they
became too expensive because Weyand’s investments significantly declined in the
recession. In January 2011, Weyand allowed the $5 million policy to lapse, and five
months later he allowed all of the $1 million policies to lapse.
              In February 2013, Weyand filed this action against Yurkus, Fairway
Capital, and Union Central, claiming he would not have bought the life insurance policies
if Yurkus had disclosed the revisions to the life expectancy tables and the impact they
had on the policies’ value, or if Yurkus had disclosed the possibility other economic
factors could reduce the policies’ value or prevent Weyand from selling them. The
complaint asserts claims for breach of fiduciary duty, fraud, negligent misrepresentation,
negligence, negligent supervision, and unjust enrichment.1 Weyand alleged Union
       1
               The complaint also alleges a claim for breach of oral contract, but that
claim is asserted against Fairway Capital only and is not at issue on this appeal.


                                             6
Central was vicariously liable for Yurkus’s conduct because he acted as Union Central’s
agent in selling Weyand the policies. Weyand also alleged Union Central was negligent
not only in failing to supervise Yurkus, but also in failing to recognize Weyand likely
purchased the policies for resale based on Union Central’s underwriting guidelines and
the manner in which Yurkus structured the policies. Weyand claims damages of nearly
$1.8 million, which represents not only the amount Weyand paid in premiums before the
policies lapsed but also the profit Yurkus represented Weyand would make by selling the
policies.
              Union Central moved for summary judgment, or alternatively summary
adjudication, claiming Weyand conspired with Yurkus to conceal from Union Central
their scheme to purchase life insurance policies as investments in violation of Union
Central’s rules and then sell them to investors on the secondary market after the two-year
incontestability period elapsed. The trial court granted the motion, finding (1) Union
Central could not be vicariously liable on Weyand’s breach of fiduciary duty, fraud, and
negligent misrepresentation claims because Yurkus exceeded the scope of his authority
by selling life insurance policies for resale on the secondary market in violation of Union
Central’s rules; (2) Weyand’s negligence claim failed because Union Central did not
breach any duty by issuing the policies to Weyand; (3) Weyand’s negligent supervision
claim failed because Union Central had no knowledge Yurkus was unfit to sell life
insurance; and (4) Weyand’s unjust enrichment claim failed because Union Central
provided him with the life insurance coverage during the period he paid the premiums.2
              After the trial court entered judgment against Weyand, he timely appealed.




       2
             Yurkus is not a party to this appeal because he never responded to the
complaint and Weyand entered his default.


                                             7
                                              II

                                        DISCUSSION


A.     Governing Summary Judgment Principles
              “A defendant moving for summary judgment bears the initial burden to
show the plaintiff’s action has no merit. [Citation.] The defendant can meet that burden
by either showing the plaintiff cannot establish one or more elements of his or her cause
of action or there is a complete defense to the claim. [Citations.] To meet this burden,
the defendant must present evidence sufficient to show he or she is entitled to judgment
as a matter of law. [Citation.] ‘“If a plaintiff pleads several theories, the defendant has
the burden of demonstrating there are no material facts requiring trial on any of them.”’”
(Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889 (Carlsen).)
              “Once the defendant meets that burden, the burden shifts to the plaintiff to
present evidence establishing a triable issue exists on one or more material facts.”
(Carlsen, supra, 227 Cal.App.4th at p. 889.) The plaintiff opposing the motion, however,
has no burden to present any evidence until the defendant meets his or her initial burden.
(Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940 (Hawkins) [“‘Where the evidence
presented by defendant does not support judgment in his favor, the motion must be
denied without looking at the opposing evidence, if any, submitted by plaintiff’”].)
              “Because a motion for summary judgment raises only questions of law, we
independently review the parties’ supporting and opposing papers and apply the same
standard as the trial court to determine whether a triable issue of material fact exists.”
(Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 967.)

B.     Union Central Failed to Meet Its Initial Burden of Establishing It Could Not be
       Vicariously Liable for Yurkus’s Conduct as a Matter of Law
              Although Union Central acknowledges appointing Yurkus as its agent, it
nonetheless contends it cannot be vicariously liable for his conduct as a matter of law

                                              8
because Yurkus exceeded the scope of his authority. According to Union Central, it
prohibits its agents from selling life insurance policies to insureds who intend to resell the
policies on the secondary market, and therefore Yurkus acted outside the scope of his
authority when he sold policies for resale and failed to disclose the associated risks to the
insured. We disagree.
              “‘[T]he general rule is that “. . . in the absence of notice, actual or
constructive, to the insured of any limitations upon such agent’s authority, a general
agent may bind the company by any acts, agreements or representations that are within
the ordinary scope and limits of the insurance business entrusted to him, although they
are in violation of private instructions or restrictions upon his authority.”’” (Chicago
Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 426 (Chicago Title);
R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 344 (R & B
Auto Center); see Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc.
(2000) 78 Cal.App.4th 847, 874.)
              In Chicago Title, for example, an insurer claimed an insurance binder its
agent issued to an insured as evidence of insurance was not enforceable because the agent
acted outside the scope of its express authority by issuing the binder without obtaining
written authorization as required by the insurer’s guidelines and its agreement with the
agent. The Court of Appeal rejected this argument and upheld the trial court’s judgment
enforcing the binder because issuing binders fell within the ordinary scope of the
insurance business the insurer entrusted to the agent and there was no evidence the
insured was informed of the alleged limitations on the agent’s authority. (Chicago Title,
supra, 188 Cal.App.4th at pp. 425-426.)
              Here, Union Central presented evidence to show (1) its written rules and
guidelines prohibited its agents from selling any life insurance policy to an insured who
intended to resell the policy on the secondary market; (2) any agent who sold a policy for
resale purposes would act outside of the agent’s contract and would be subject to

                                               9
termination; and (3) Yurkus received and agreed to follow Union Central’s written rules
and guidelines. Union Central also pointed to the allegations of Weyand’s complaint and
his deposition testimony to show Weyand bought the Union Central policies to resell
them at a profit on the secondary market.
              Although this evidence may show Yurkus exceeded his authority as a
Union Central agent, it does not meet Union Central’s initial summary adjudication
burden. The evidence fails to show Yurkus’s conduct in selling the policies to an insured
who intended to later sell them on the secondary market was outside the ordinary scope
of the insurance business Union Central entrusted to Yurkus. (See Chicago Title, supra,
188 Cal.App.4th at p. 426; R & B Auto Center, supra, 140 Cal.App.4th at p. 344.) It is
undisputed Union Central appointed Yurkus as its agent and granted him the authority to
sell its life insurance policies. The ordinary scope of the insurance business entrusted to
Yurkus included not only selling the policies, but also describing the policies and making
representations to potential purchasers about the policies’ coverage, costs, and other
characteristics. Whether an insured could sell a policy on the secondary market is a
characteristic of the policy an insurer reasonably could expect an agent to discuss with a
potential purchaser—especially a high net worth purchaser—as demonstrated by Union
Central’s rules and guidelines describing when its policies could and could not be sold.
              The evidence also fails to show Weyand had notice of the limitations Union
Central placed on Yurkus’s authority to sell its life insurance policies. (See Chicago
Title, supra, 188 Cal.App.4th at p. 426; R & B Auto Center, supra, 140 Cal.App.4th at
p. 344.) Nothing in the applications Weyand completed or any of the other information
he received from Yurkus or Union Central informed him Union Central prohibited
Yurkus from selling any Union Central life insurance policy to an insured who intended
to resell the policy on the secondary market. The Statement of Intent Weyand completed
to obtain the policies asked whether he had the present intent to sell the policies and if he
had spoken to anyone who offered to buy his policies. Although these questions raised

                                             10
the issue of resale, they did not inform Weyand that Union Central prohibited its agents
from selling policies for resale purposes or, more importantly, that Yurkus would be
acting outside the scope of his authority if he sold policies to Weyand for resale purposes.
We therefore conclude the trial court erred in granting Union Central summary
adjudication on Weyand’s breach of fiduciary duty, fraud, and negligent
misrepresentation claims because Union Central failed to show it could not be liable for
Yurkus’s conduct as a matter of law.3
              Union Central relies on Asplund v. Selected Investments in Financial
Equities, Inc. (2000) 86 Cal.App.4th 26 (Asplund), arguing it held “that when an agent
commits acts that are expressly prohibited under his agency agreement with his principal,
those acts are outside the scope of his authority as a matter of law and vicarious liability
will not be imposed on the principal under the doctrine of respondeat superior.” (Italics
omitted.) Union Central overstates Asplund’s holding and that case is readily
distinguishable on its facts.
              In Asplund, a husband and wife sued a securities broker-dealer for losses
they suffered when promissory notes they purchased from the broker-dealer’s registered
representative turned out to be a Ponzi scheme. The broker-dealer moved for summary
judgment, arguing it was not vicariously liable because selling the notes was outside the
scope of the representative’s agency relationship with the broker-dealer. (Asplund, supra,
86 Cal.App.4th at pp. 29-30.)


       3
               Because we conclude Union Central failed to meet its initial summary
adjudication burden, we do not address Weyand’s contentions that he established triable
issues concerning (1) whether he purchased the policies with the present intent to resell
them or simply with the intent to have resale as an option if he later chose to sell the
policies; (2) whether Union Central prohibited agents from selling policies to insureds
who wanted the option to resell them but had no plans to resell at the time of purchase;
and (3) whether Union Central communicated all of its rules and guidelines about resale
to Yurkus.


                                             11
              In support, the broker dealer presented evidence showing its “only purpose
[was] to act as a management company for a mutual fund” the representative sold on its
behalf and the promissory notes the couple purchased had no connection to that mutual
fund. (Asplund, supra, 86 Cal.App.4th at pp. 29, 32.) The broker-dealer also presented
an agreement that appointed the representative as the broker-dealer’s agent for the sale
and distribution of the mutual fund only, prohibited the representative from selling
competing financial products, allowed the representative to sell other products and
services that did not compete with the broker-dealer’s mutual fund, and declared the
representative was an independent contractor rather than an employee of the
broker-dealer. (Id. at pp. 32-33.) The evidence also showed the representative was an
insurance agent for Farmers Insurance Group, he sold the promissory notes out of his
insurance office, the broker-dealer did not receive any of the proceeds from the sale of
the promissory notes, and the representative never said the notes were one of the
broker-dealer’s products or affiliated with the broker-dealer. (Id. at pp. 29, 30, 48.)
              The trial court granted the broker-dealer summary judgment because there
was no evidence the representative acted as the broker-dealer’s agent when he sold the
husband and wife the promissory notes. (Asplund, supra, 86 Cal.App.4th at p. 45.) The
Asplund court affirmed, explaining “the limitations set forth in the sales representatives
agreement, coupled with the absence of substantial evidence of apparent or actual
authority beyond that specified in the agreement, eliminates any basis upon which to
impose vicarious liability on [the broker-dealer] under the doctrine of respondeat
superior.” (Id. at p. 49.)
              Asplund stands for the simple proposition that a principal cannot be
vicariously liable for its agent selling another company’s financial product when there is
no evidence showing the agent had authority to sell that product on the principal’s behalf,
the agent represented he had such authority, or the product had any connection to the
principal. Here, unlike in Asplund, it is undisputed Yurkus was Union Central’s agent

                                             12
with authority to sell its life insurance policies, Yurkus represented he was selling Union
Central policies, Weyand completed a Union Central application to obtain the policies,
Union Central interviewed Weyand before he purchased the policies, Union Central
issued the policies to Weyand, and Weyand paid the premiums to Union Central. This
substantial evidence connects Union Central to the policies Weyand purchased from
Yurkus and therefore renders Asplund inapposite.
              Union Central also contends it is not liable for Yurkus’s conduct because
California law holds an insurer liable only for its agent’s misrepresentations about the
coverage the insurer provides, and Yurkus’s misrepresentations about Weyand’s ability
to resell his Union Central policies on the secondary market had nothing to do with
coverage. (See, e.g., Paper Savers, Inc. v. Nacsa (1996) 51 Cal.App.4th 1090,
1099-1101 (Paper Savers); Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110,
1119-1121 (Desai); Free v. Republic Ins. Co. (1992) 8 Cal.App.4th 1726, 1729-1730
(Free); Jackson v. Aetna Life & Casualty Co. (1979) 93 Cal.App.3d 838, 840, 847
(Jackson).) Union Central reads these cases too narrowly.
              In each case, the court held an insurer could be liable for its agent’s
misrepresentations about the type or extent of coverage the insurer’s policy provided.
For example, in Paper Savers, the Court of Appeal reversed a summary judgment in the
insurer’s favor, explaining the insurer could be liable for its agent selling the plaintiff
insured a policy that did not provide 100 percent cost of replacement coverage when the
agent represented the policy would cover the entire cost to replace any damaged
machinery, even if the cost exceeded the policy limits. (Paper Savers, supra,
51 Cal.App.4th at pp. 1092-1093, 1101; see Butcher v. Truck Ins. Exchange (2000)
77 Cal.App.4th 1442, 1446, 1464-1465 [insurer potentially liable on negligent
misrepresentation, negligence, and other claims for agent telling insured policy provided
coverage it did not include].) Nothing in Paper Savers or any of the other cited cases,



                                              13
however, limits an insurer’s liability for its agent’s representations only to the type or
extent of coverage.
              Rather, liability in each of the foregoing cases turns on whether the agent
misrepresented the characteristics of the insurer’s policy to induce the insured to purchase
the policy the insurer authorized the agent to sell. (See Paper Savers, supra,
51 Cal.App.4th at p. 1101 [“this case involves a special duty to ensure such coverage
based on alleged affirmative assertions made to induce the insured to purchase the policy
and additional endorsement”]; Desai, supra, 47 Cal.App.4th at pp. 1118-1120; Free,
supra, 8 Cal.App.4th at pp. 1729-1730; Jackson, supra, 93 Cal.App.3d at p. 847.) It is
irrelevant whether the misrepresentations related to the type or extent of coverage, the
amount of the premiums, the insured’s ability to resell the policy, or any other
characteristic of the policy that bore on the insured’s decision to purchase it. The insurer
is liable for the agent’s representations if the representations are made within the ordinary
scope of the insurance business the insurer entrusted to the agent, and the insured had no
notice of any limits the insurer placed on the agent’s authority. (Chicago Title, supra,
188 Cal.App.4th at p. 426; R & B Auto Center, supra, 140 Cal.App.4th at p. 344.)
              We emphasize Union Central sought summary adjudication based solely on
its challenge it was not vicariously liable for Yurkus’s conduct because his alleged
conduct exceeded the scope of his authority. Union Central did not challenge whether
Weyand could establish any of his underlying causes of action based on Yurkus’s
conduct and we therefore do not address that question. Moreover, although Union
Central made several comments suggesting Weyand improperly seeks to recover the
profits Yurkus represented Weyand would receive when he sold the policies in addition
to the premiums, the proper measure of damages was not the issue on which Union
Central sought summary adjudication. Nor is it an issue we properly may decide on
appeal. (See Code Civ. Proc., § 437c, subd. (f)(1) [“A motion for summary adjudication



                                              14
shall be granted only if it completely disposes of a cause of action, an affirmative
defense, a claim for [punitive] damages, or an issue of duty”].)

C.     Union Central Failed to Negate All Theories Weyand Alleged to Support His
       Negligence Claim
              Union Central contends Weyand’s negligence claim fails as a matter of law
because negligence is not a permissible theory of recovery for an insured against his or
her insurer. Based on the contractual nature of the relationship between an insured and
an insurer, Union Central claims an insured cannot sue its insurer for negligence or other
torts absent allegations of bad faith, and Weyand does not allege Union Central acted in
bad faith. We do not decide this issue, but nonetheless reverse the trial court’s judgment
granting summary adjudication on Weyand’s negligence claim because Union Central
failed to negate all liability theories Weyand alleged to support this claim.4
              Weyand’s complaint alleges two separate liability theories to support his
negligence claim. First, Weyand alleges Union Central is vicariously liable for Yurkus’s
negligence in recommending Weyand purchase the policies without disclosing all
associated risks. Second, Weyand alleges Union Central was negligent in selling the
policies to Weyand when its own underwriting guidelines and other circumstances
surrounding the transaction suggested Weyand was purchasing the policies to resell them
and he would not be able to continue paying the premiums on his own.


       4
               We also do not decide whether the trial court erred in sustaining Union
Central’s evidentiary objections to the declarations of Steve Roth, Chris Matheson, and
Peter Mazonas and certain exhibits attached thereto. Weyand fails to specify the issues
on which he submitted these declarations and exhibits, but it appears he offered them to
show Union Central acted negligently in failing to warn of its rules against selling
policies for resale purposes and in failing to recognize that Weyand was purchasing the
policies for resale based on its underwriting guidelines and other surrounding
circumstances. Because we do not decide the merits of Union Central’s challenge to
Weyand’s negligence claim, we need not decide Weyand’s challenge to the evidentiary
objections that relate to that claim.


                                             15
              To meets its initial summary adjudication burden on its challenge to
Weyand’s negligence claim, Union Central was required to present evidence showing it
was entitled to judgment based on all of Weyand’s liability theories. (Carlsen, supra,
227 Cal.App.4th at p. 889; Tesselle v. McLoughlin (2009) 173 Cal.App.4th 156, 162-163
(Tesselle).) If it failed to establish its entitlement to judgment on all of Weyand’s alleged
liability theories, the trial court must deny Union Central’s summary adjudication motion
on the entire negligence claim because summary adjudication must completely dispose of
a cause of action, affirmative defense, punitive damages claim, or issue of duty.5 (Code
Civ. Proc., § 437c, subd. (f)(1).)
              As explained above, Union Central failed to meet its initial burden to show
it could not be vicariously liable for Yurkus’s conduct, which would include Yurkus’s
negligence. Regardless of whether Union Central established it was not negligent, Union
Central failed to establish it could not be vicariously liable for Yurkus’s negligence, and
therefore is not entitled to summary adjudication.

D.     Weyand Forfeited All Challenges to the Trial Court Summarily Adjudicating His
       Negligent Supervision Claim
              Weyand’s complaint asserts a negligent supervision claim against Union
Central, alleging it “negligently . . . supervised and oversaw the activities . . . Yurkus and
Fairway Capital performed in the course of marketing and selling Union Central life
insurance policies.” The trial court granted summary adjudication on this claim because
Union Central presented evidence showing it conducted a thorough background check

       5
               We do not address whether Union Central’s liability for its own negligence
is an issue of duty that may be summarily adjudicated under Code of Civil Procedure
section 437c, subdivision (f)(1), because Union Central only sought summary
adjudication on the entire negligence cause of action. It did not separately seek summary
adjudication on whether it owed Weyand a duty. (See Hawkins, supra, 144 Cal.App.4th
at p. 949 [summary adjudication may not be granted on issue moving party did not
raise].)


                                              16
and investigation of Yurkus and had no notice he was unfit to serve as a life insurance
agent, and Weyand failed to present any evidence to create a triable issue of fact.
Weyand forfeited any challenge to the court’s ruling by failing to address it in either his
opening or reply briefs.
              “On appeal, a judgment of the trial court is presumed to be correct. . . . [¶]
‘Appellate briefs must provide argument and legal authority for the positions taken.
“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned
argument and citations to authority, we treat the point as waived.”’ [Citation.] ‘We are
not bound to develop appellants’ argument for them. [Citation.] The absence of cogent
legal argument or citation to authority allows this court to treat the contention as
waived.’” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956;
see People v. Stanley (1995) 10 Cal.4th 764, 793.) This rule applies even when the de
novo standard is the governing standard of review. (Reyes v. Kosha (1998)
65 Cal.App.4th 451, 466, fn. 6 [appellate court refused to address propriety of summary
adjudication on causes of action appellant failed to challenge in opening brief].)

E.     Union Central Failed to Establish Weyand’s Unjust Enrichment Claim Failed as a
       Matter of Law
              Union Central contends Weyand’s unjust enrichment claim fails as a matter
of law because Union Central provided him exactly what it promised – $10 million in life
insurance coverage as long as he paid the premiums – and therefore Union Central was
not unjustly enriched by the premiums Weyand paid. We conclude Union Central failed
to meet its initial burden on its challenge to this claim because it failed to address
Weyand’s liability theory.
              California courts are split on whether a separate cause of action for unjust
enrichment exists. (Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117,
1138 (Levine).) Some have recognized a separate cause of action (see, e.g., Peterson v.
Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593), while others have concluded

                                              17
“‘“[t]here is no cause of action in California for unjust enrichment”’” (see, e.g., Levine, at
p. 1138). But all acknowledge that unjust enrichment is synonymous with restitution.
(Ibid.; Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370 (Durell).)
              “‘Under the law of restitution, “[a]n individual is required to make
restitution if he or she is unjustly enriched at the expense of another. [Citations.] A
person is enriched if the person receives a benefit at another’s expense. [Citation.]”
[Citation.] However, “[t]he fact that one person benefits another is not, by itself,
sufficient to require restitution. The person receiving the benefit is required to make
restitution only if the circumstances are such that, as between the two individuals, it is
unjust for the person to retain it.”’” (Durell, supra, 183 Cal.App.4th at p. 1370, italics
omitted; see California Medical Assn. v. Aetna U.S. Healthcare of California, Inc. (2001)
94 Cal.App.4th 151, 171, fn. 23 (California Medical).)
              “As a matter of law, an unjust enrichment claim does not lie where the
parties have an enforceable express contract.” (Durell, supra, 183 Cal.App.4th at
p. 1370, italics added; see California Medical, supra, 94 Cal.App.4th at p. 172.)
Moreover, “‘“[t]here is no equitable reason for invoking restitution when the plaintiff
gets the exchange which he expected.”’” (Durell, at p. 1371.)
              Contrary to Union Central’s contention, Weyand claims he did not have an
enforceable express contract with Union Central and he did not receive the exchange he
expected. Weyand’s complaint alleges the premiums he paid on the policies unjustly
enriched Union Central because he did not receive policies that could be resold as Yurkus
had represented. According to Weyand, Yurkus fraudulently induced him into
purchasing the policies by misrepresenting the ability to resell the policies at a profit after
two years, and he would not have purchased the policies if he knew he could not resell
them.
              Union Central’s challenge to this claim assumes it cannot be held
vicariously liable for Yurkus’s fraud. It focuses solely on the terms of the policies it

                                              18
issued to Weyand to show he received the policies he expected. As explained above,
however, Union Central failed to establish it could not be held vicariously liable for
Yurkus’s fraud and other misconduct. Consequently, Union Central’s challenge to this
cause of action fails because it does not address Weyand’s allegations Union Central was
unjustly enriched by Yurkus fraudulently inducing Weyand to purchase policies he could
not resell and that he otherwise would not have purchased. (See Carlsen, supra,
227 Cal.App.4th at p. 889; Tesselle, supra, 173 Cal.App.4th at pp. 162-163.)

                                            III
                                       DISPOSITION

              The judgment is affirmed as to the negligent supervision cause of action
and reversed as to all other causes of action. Weyand shall recover his costs on appeal.



                                                  ARONSON, J.

WE CONCUR:



MOORE, ACTING P. J.



THOMPSON, J.




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