Judge: Loren G. Freestone, Case: 37-2023-00008083-CU-BC-CTL, Date: 2023-09-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 07, 2023

09/08/2023  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2023-00008083-CU-BC-CTL JEFFREY MAULDEN SOLE PROPRIETOR OF JM LEGAL MARKETING LLC VS FLOREK AND MORGAN LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendants Florek and Morgan LLC, Aaron Morgan, and Thomas Florek's demurrer to Plaintiff Jeffrey Maulden's complaint is OVERRULED.

Beach of Written Contract and Breach of Oral Contract (First and Second Causes of Action) Both written and oral contracts may be pled generally according to their legal effect. (See Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402; Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 98; Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616;.) 'Ambiguities can be clarified under modern discovery procedures.' (Khoury, supra, 14 Cal.App.4th at p. 616.) Here, the complaint sufficiently alleges four agreements whereby Maulden agreed to refer various types of cases to Defendants, and in exchange Defendants agreed to pay either a fixed amount of a percentage of fees generated from those referrals. That is sufficient for pleading purposes. The purported ambiguities and missing details that Defendants raise may be addressed in discovery.

Defendants take issue with Maulden alleging that the four agreements were written contracts in the first cause of action and oral contracts in the second cause of action. However, modern practice permits a complaint to allege 'factually and legally inconsistent theories.' (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402; see, e.g., Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 29 [plaintiff permitted to inconsistently allege a fully executed contract in support of one cause of action and only a prospective business advantage in support of another cause of action].) Defendants also argue that the claims based on the Transvaginal Mesh Consulting Agreement are barred by the statute of limitations. However, as alleged, payment under that agreement was not due until the TVM cases settled. The complaint does not allege when any cases settled, and therefore the statute of limitations issue cannot be resolved on the pleadings alone. (See Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781–782 ['In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred']; see also Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 966 [breach of contract claim generally does not accrue until payment due date passes].) In their reply, Defendants argue that the claim for breach of oral contract is barred by the statute of Calendar No.: Event ID:  TENTATIVE RULINGS

2968410  14 CASE NUMBER: CASE TITLE:  JEFFREY MAULDEN SOLE PROPRIETOR OF JM LEGAL  37-2023-00008083-CU-BC-CTL frauds. This argument should have been raised and developed in the moving papers. (See Maleti v. Wickers (2022) 82 Cal.App.5th 181, 227–228 [court may refuse to consider new argument raised for the first time in reply brief].) For the reasons set forth above, the demurrer to the first and second causes of action is overruled.

Breach of the Covenant of Good Faith and Fair Dealing Defendants argue that this claim is 'superfluous' because it mirrors the breach of contract claims. That is not a basis for a demurrer. (See Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890.) In any event, the complaint includes facts supporting a breach of implied covenant claim independent of the breach of contract. 'The implied covenant of good faith and fair dealing is implied by law in every contract. The covenant is read into contracts and functions as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party's rights to the benefits of the contract.

The covenant also requires each party to do everything the contract presupposes the party will do to accomplish the agreement's purposes.' (Thrifty Payless, Inc. v. The Americana at Brand LLC (2013) 218 Cal.App.4th 1230, 1244.) Here, the agreements allegedly obligated Defendants to pay Maulden for leads/referrals. Payment was allegedly due upon resolution of their cases. However, Defendants allegedly 'prevented [Maulden] from receiving the benefit promised under the contracts.' For example, Defendants allegedly refused to inform Maulden as to the number of leads that were converted into clients, and the status of their cases.

Although this was not alleged to have been an express obligation under the agreements, the failure to provide the information allegedly impairs Maulden's rights under the agreements.

For the reasons set forth above, the demurrer to the third cause of action is overruled.

Common Count – Goods and Services Rendered Defendants argue that the common count fails for the same reason as the breach of contract claims.

'When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.' (Korchemny v. Piterman (2021) 68 Cal.App.5th 1032, 1048.) As set forth above, the demurrer to the breach of contract claims is overruled. The demurrer to the common count is therefore also overruled.

Conclusion The demurrer is overruled. Defendants shall file an answer within 10 days.

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