Judge: Cherol J. Nellon, Case: 23STCV00354, Date: 2023-10-12 Tentative Ruling

Case Number: 23STCV00354    Hearing Date: October 12, 2023    Dept: 14

(1)       Demurrer

 

            Defendant Malle now demurs to the Complaint on the grounds that it fails to state facts sufficient to support any cause of action and is uncertain.

 

Decision

 

            The demurrer to the first, second, and fourth cause of action is SUSTAINED, with 10 days leave to amend.

 

            The demurrer to the third cause of action is OVERRULED.

 

First Cause of Action: Breach of Contract

 

            “’A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.’ (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 C.A.3d 1371, 1388).” Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 228.

 

“Further, the complaint must indicate on its face whether the contract is written, oral, or implied by conduct. (Code Civ.Proc., § 430.10, subd. (g).).”  Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458-459 (implicitly overruled on other grounds as recognized by Miles v. Deutsche Bank National Trust Company (2015) 236 Cal.App.4th 394, 401-402).

 

To plead a written contract, a party must either (a) attach a copy of the contract to the complaint or (b) plead all the material terms in a comprehensive and detailed manner. Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 993.

 

Plaintiff pleads that the parties had a support agreement. (FAC ¶ 11). She pleads that the agreement was “oral and written.” (FAC ¶ 20). She does not attach or describe the writing, and the rest of her pleading describes an implied contract, not an express one. (FAC ¶¶ 14-18). Plaintiff has failed to properly identify what type of contract existed between the parties in a way that would allow Defendant Malle to intelligently respond.

 

Second Cause of Action: Breach of the Implied Covenant

 

            Breach of the implied covenant may be either a tort or a contract claim. See Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395. If it is pled in tort, it is a claim that the defendant had an improper motive for breaching some express provision of the contract. If it is pled in contract, it is a claim that the defendant did something was not (in and of itself) a violation of their contract but which did prevent Plaintiff from reaping the benefit of the contract.

 

To plead the claim as a tort, Plaintiff must identify a legally recognized “special relationship” between the parties. Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395. To plead the claim in contract, Plaintiff must identify the conduct that frustrated the purpose of the contract without breaching it. Id.

 

Plaintiff has not made clear whether this claim is pled in tort or in contract. She has not identified a legally recognized “special relationship” between herself and Defendant. Nor has she identified any conduct which has deprived her of the benefit of the contract without breaching the contract.

 

Third Cause of Action: Intentional Infliction of Emotional Distress

 

            “The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff's injuries were actually and proximately caused by the defendant's outrageous conduct.” KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028. Moreover, “[i]t is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” Christensen v. Superior Court (1991) 54 Cal.3d 868, 903 (emphasis added).

 

            The Defense argument here is that Plaintiff’s claims of abuse are inconsistent with Plaintiff’s claims of a lavish support arrangement, and that Plaintiff has filed this action out of purely mercenary motives. These are classic factual questions which cannot be resolved by the court at this stage.

 

Fourth Cause of Action: Ralph Act

 

            Civil Code § 51.7, the Ralph Civil Rights Act of 1976, provides in relevant part as follows:

 

(b)(1) All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive.”

 

The Ralph Act is designed to punish hate crimes. The elements of a Ralph Act claim are: (1) that defendant threatened or committed a violent act against the plaintiff (2) motivated by their perception of plaintiff’s membership in a protected category (3) causing harm to the Plaintiff. Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 880-881. The critical element of this claim is motive or animus on the part of the defendant against the class of persons to which the Plaintiff belongs. Id. at 881.

 

            Plaintiff has not clearly pled that Defendant’s motivation in his alleged abuse was an animus against women.

 

Conclusion

 

            Plaintiff has not properly pled the type of contract she wishes to enforce. She has not specified whether she wishes to plead breach of the implied covenant in tort or contract, nor has she met the requirements to do either. Finally, she has failed to properly allege that Defendant acted out of animus against a protected class.

 

            Therefore, the demurrer to the first, second, and fourth causes of action is SUSTAINED, with 10 days leave to amend.

 

(2)       Motion to Strike

 

            Defendant now moves this court for an order striking certain allegations from the second cause of action in the complaint. Given the result above, the motion is TAKEN OFF-CALENDAR as MOOT.