TENTATIVE RULING

Defendant Returnmates, Inc.’s Demurrer to the First Amended Complaint is SUSTAINED with thirty (30) days leave to amend.

Plaintiff Laura McQuinn may amend her complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendant Returnmates, Inc.to give notice. 

REASONING

Request for Judicial Notice

Defendant Returnmates, Inc. (“Defendant”) requests judicial notice of the offer letter issued to Plaintiff Laura McQuinn (“Plaintiff”), which is referenced in the First Amended Complaint (“FAC”). (See FAC ¶ 15.) There is no basis for taking judicial notice of this document. Thus, Defendant’s request for judicial notice is DENIED.

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

First Cause of Action: Breach of Contract

To state a cause of action for breach of contract, Plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

In the first cause of action, Plaintiff alleges that the parties entered into a contract, specifically where Defendant offered Plaintiff the position of Vice President of Sales in writing. (FAC ¶ 15.) Plaintiff has provided no copy of a purported agreement between the parties or alleged the terms of that agreement verbatim. It is well established that if a breach of contract claim “is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) Defendant makes arguments that Plaintiff provided only a conditional job offer, and the employment was at-will, but this is not apparent on the face of the pleading. Because Plaintiff has failed to set forth the terms of provide a copy of the subject contract or allege the terms of that agreement verbatim, Defendant’s demurrer to the first cause of action is SUSTAINED with thirty (30) days leave to amend.

Second Cause of Action: Breach of the Implied Covenant of Good Faith and Fair Dealing

“A breach of the implied covenant of good faith and fair dealing involves something beyond breach of the contractual duty itself and it has been held that bad faith implies unfair dealing rather than mistaken judgment.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394.) “If the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated . . . [T]he only justification for asserting a separate cause of action for breach of the implied covenant is to obtain a tort recovery.” (Id. at pp. 1394-1395.) To recover in tort for breach of the implied covenant, the defendant must “have acted unreasonably or without proper cause.” (Id. at p. 1395, citations and italics omitted.)

Plaintiff alleges that the parties entered into an agreement, and she performed under that agreement, but Defendant did not honor the agreement and misrepresented the conditions precedent to employment. (FAC ¶ 24.) Plaintiff has currently alleged no more than a breach of contract under these facts, as she provides no specific allegations of the misrepresentation and breach, and the claim does not currently differ from the breach of contract or misrepresentation claims in any meaningful way. Accordingly, Defendant’s demurrer to the second cause of action is SUSTAINED with thirty (30) days leave to amend.

Third Cause of Action: Promissory Estoppel

“The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) the reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” (Flintco Pacific, Inc. v. TEC Management Consultants, Inc. (2016) 1 Cal.App.5th 727, 734, quotation marks and brackets omitted.)

Defendant argues that Plaintiff cannot plead a promissory estoppel claim where she claims that a valid contract exists, but the Court is not so convinced, as these are different theories that Plaintiff may assert depending on whether there is or is not a valid contract. Nonetheless, Plaintiff has not set forth the terms of any agreement to allow the trier of fact to conclude that the promise was clear and unambiguous in its terms such that reliance was reasonable and foreseeable. Thus, Defendant’s demurrer to the third cause of action is SUSTAINED with thirty (30) days leave to amend.

Fourth Cause of Action: Intentional Misrepresentation

“The elements of a cause of action for intentional misrepresentation are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another’s reliance on the misrepresentation, (4) actual and justifiable reliance, and (5) resulting damage.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the plaintiffs must plead the names of the persons allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

Plaintiff provides no specific facts in this claim, stating only that Defendant made representations about her work and salary if she resigned her employment and performed work for Defendant. (FAC ¶ 35.) Plaintiff must provide specific information about what was communicated, the person who spoke to Plaintiff, that person’s authority to speak for Defendant, whether the representations were written or spoken, or when they were made. Accordingly, Defendant’s demurrer to the fourth cause of action is SUSTAINED with thirty (30) days leave to amend.