## Facts

- Asciano (also spelled Ascanio) Carimati di Carimate, an investment professional, entered into a business relationship with GinsGlobal Index Funds, a firm focused on indexed financial products, and its managing director, Anthony Ginsberg.
- The parties signed a written Memorandum of Understanding (MOU) governing their cooperation on investment-product initiatives.
- After the MOU, the parties exchanged emails that Carimati di Carimate alleged amended or clarified the deal’s compensation terms.
- In one email, Carimati di Carimate proposed that the parties would split “future initiatives” (future earnings/revenues) equally.
- Ginsberg allegedly replied in writing: “Yes I agree with your comments re splitting all future initiatives.”
- Carimati di Carimate alleged he provided work, contacts, and business concepts that benefited defendants, but defendants did not pay him the promised share of revenues and instead retained the benefits for themselves.
- The First Amended Complaint asserted eight California state-law causes of action: (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) breach of fiduciary duty, (4) fraud, (5) negligent misrepresentation, (6) unjust enrichment, (7) constructive trust, and (8) accounting.
- Defendants moved to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6), arguing, among other things, that the purported email agreement was barred by the statute of frauds and too indefinite to enforce.

## Issues

1. Whether the FAC plausibly alleged an enforceable agreement (MOU plus email exchange) to split future revenues, such that the breach-of-contract claim could proceed despite statute-of-frauds and indefiniteness arguments.
2. Whether the FAC plausibly alleged a fiduciary relationship and breach, rather than only an arm’s-length contractual dispute.
3. Whether the fraud and negligent misrepresentation claims were pleaded with sufficient particularity under Rule 9(b).
4. Whether an unjust enrichment theory could proceed at the pleading stage as an alternative to contract-based relief.
5. Whether the FAC adequately stated separate claims for breach of the implied covenant of good faith and fair dealing, constructive trust, and accounting.

## Decision

- The court **denied** the motion to dismiss as to: breach of contract, breach of fiduciary duty, fraud, negligent misrepresentation, and unjust enrichment.
- The court **granted** the motion to dismiss as to: breach of the implied covenant of good faith and fair dealing, constructive trust, and accounting, **with leave to amend**.

## Legal Principles

- At the Rule 12(b)(6) stage, a plaintiff may state a contract claim by alleging a written agreement and later writings (including emails) showing assent to key terms; whether the writings satisfy the statute of frauds is often not resolved against the plaintiff on the pleadings when the complaint plausibly alleges a written basis for the agreement.
- A claimed agreement is not dismissed as indefinite where the pleadings plausibly allege the parties’ assent to a compensation framework (here, an equal split of “future initiatives”) and the dispute over meaning and performance is better addressed on a fuller record.
- Fraud and negligent misrepresentation claims may survive dismissal when the complaint alleges who made the statements, what was said (including promises about revenue sharing), the context of the communications, reliance, and resulting harm, meeting Rule 9(b)’s notice function.
- Unjust enrichment (restitution) may be pleaded in the alternative where defendants contest the existence, scope, or enforceability of an express contract and the plaintiff alleges defendants retained benefits without paying for them.
- A separate implied-covenant claim is subject to dismissal when pleaded as duplicative of a breach-of-contract claim and not tied to distinct, nonperformance-related misconduct.
- “Constructive trust” is generally a remedy tied to an underlying wrong, not a stand-alone cause of action; it may be dismissed when pleaded as an independent claim, with leave to replead as remedial relief linked to a substantive claim.
- An equitable accounting requires allegations showing a basis for that remedy (such as a fiduciary relationship and a need for accounting beyond ordinary damages); conclusory assertions can warrant dismissal with leave to amend.

## Conclusion

In this unpublished Central District of California order, the court held that Carimati di Carimate’s allegations—centered on a written MOU and emails in which Ginsberg agreed to split “all future initiatives” equally—were sufficient to proceed on contract, fiduciary-duty, fraud, negligent misrepresentation, and unjust enrichment theories, but the court dismissed the implied-covenant, constructive-trust, and accounting causes of action with leave to amend because they were duplicative, improperly pleaded as stand-alone relief, or insufficiently supported.


Carimati di Carimate v. GinsGlobal Index Funds, 2009 WL 3233538 (2009)