California Civil Jury Instructions (CACI) (2017)

4410. Unjust Enrichment

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4410.Unjust Enrichment
[Name of defendant] was unjustly enriched if [his/her/its]
misappropriation of [name of plaintiff]’s trade secret[s] caused [name of
defendant] to receive a benefit that [he/she/it] otherwise would not have
To decide the amount of any unjust enrichment, first determine the
value of [name of defendant]’s benefit that would not have been achieved
except for [his/her/its] misappropriation. Then subtract from that
amount [name of defendant]’s reasonable expenses[, including the value
of the [specify categories of expenses in evidence, such as labor, materials,
rents, interest on invested capital]]. [In calculating the amount of any
unjust enrichment, do not take into account any amount that you
included in determining any amount of damages for [name of plaintiff]’s
actual loss.]
New December 2007
Directions for Use
Give this instruction with CACI No. 4409, Remedies for Misappropriation of Trade
Secrets, if unjust enrichment is alleged and supported by the evidence. If it would
be helpful to the jury, specify the categories of expenses to be allowed to the
defendant. Include the last sentence if both actual loss and unjust enrichment are
Sources and Authority
• Remedies for Misappropriation of Trade Secret. Civil Code section 3426.3.
“In general, ‘[a] person who has been unjustly enriched at the expense of
another is required to make restitution to the other.’ (Rest., Restitution, § 1.)
‘Ordinarily the benefit to the one and the loss to the other are co-extensive, and
the result . . . is to compel the one to surrender the benefit which he has
received and thereby to make restitution to the other for the loss which he has
suffered.’ [¶] ‘In other situations, a benefit has been received by the defendant
but the plaintiff has not suffered a corresponding loss or, in some cases, any
loss, but nevertheless the enrichment of the defendant would be unjust. In such
cases, the defendant may be under a duty to give to the plaintiff the amount by
which he has been enriched.’ ” (Unilogic, Inc. v. Burroughs Corp. (1992) 10
Cal.App.4th 612, 627–628 [12 Cal.Rptr.2d 741].)
• “A defendant’s unjust enrichment is typically measured by the defendant’s
profits flowing from the misappropriation. A defendant’s profits often represent
profits the plaintiff would otherwise have earned. Where the plaintiff’s loss does
not correlate directly with the misappropriator’s benefit, . . . the problem
becomes more complex. There is no standard formula to measure it. A
defendant’s unjust enrichment might be calculated based upon cost savings or
increased productivity resulting from use of the secret. Increased market share
is another way to measure the benefit to the defendant. Recovery is not
prohibited just because the benefit cannot be precisely measured. But like any
other pecuniary remedy, there must be some reasonable basis for the
computation.” (Ajaxo Inc. v. E*Trade Financial Corp. (2010) 187 Cal.App.4th
1295, 1305 [115 Cal.Rptr.3d 168], footnote and internal citations omitted.)
• “[W]here a defendant has not realized a profit or other calculable benefit as a
result of his or her misappropriation of a trade secret, unjust enrichment is not
provable within the meaning of section 3426.3, subdivision (b), whether the
lack of benefit is determined as a matter of law or as a matter of fact.”
(Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226
Cal.App.4th 26, 66 [171 Cal.Rptr.3d 714].)
• “Another crucial point is that unjust enrichment, as the phrase is used here, is,
in effect, synonymous with restitution. ‘ “ ‘The phrase “unjust enrichment” is
used in law to characterize the result or effect of a failure to make restitution of
or for property or benefits received under such circumstances as to give rise to
a legal or equitable obligation to account therefor.’ ” ’ ” (Ajaxo Inc.,supra, 187
Cal.App.4th at p. 1305, internal citations omitted.)
• Restatement of Restitution, section 1, comment a, states: “A person is enriched
if he has received a benefit (see Comment b). A person is unjustly enriched if
the retention of the benefit would be unjust (see Comment c).”
• Restatement of Restitution, section 1, comment b, states: “What constitutes a
benefit. A person confers a benefit upon another if he gives to the other
possession of or some other interest in money, land, chattels, or choses in
action, performs services beneficial to or at the request of the other, satisfies a
debt or a duty of the other, or in any way adds to the other’s security or
advantage. He confers a benefit not only where he adds to the property of
another, but also where he saves the other from expense or loss. The word
‘benefit,’ therefore, denotes any form of advantage. The advantage for which a
person ordinarily must pay is pecuniary advantage; it is not, however,
necessarily so limited, as where a physician attends an insensible person who is
saved subsequent pain or who receives thereby a greater chance of living.”
• Restatement of Restitution, section 1, comment c, states: “Unjust retention of
benefit. Even where a person has received a benefit from another, he is liable to
pay therefor only if the circumstances of its receipt or retention are such that, as
between the two persons, it is unjust for him to retain it. The mere fact that a
person benefits another is not of itself sufficient to require the other to make
restitution therefor. Thus, one who improves his own land ordinarily benefits his
neighbors to some extent, and one who makes a gift or voluntarily pays money
which he knows he does not owe confers a benefit; in neither case is he entitled
to restitution. The Restatement of this Subject states the rules by which it is
determined whether or not it is considered to be just to require restitution.”
Secondary Sources
13 Witkin, Summary of California Law (10th ed. 2005) Equity, § 90(1)(a)
1 Milgrim on Trade Secrets, Ch. 13, Issues Prior to Commencement of Action,
§ 13.03[2][a] (Matthew Bender)
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.54[4] (Matthew Bender)
49 California Forms of Pleading and Practice, Ch. 565, Unfair Competition,
§ 565.103[7][b] (Matthew Bender)
Edelson & Kay, eds., Trade Secret Litigation and Protection in California (State
Bar of California 2009) § 11.03