Judge: Michael E. Whitaker, Case: 24SMCV05213, Date: 2025-06-04 Tentative Ruling

Case Number: 24SMCV05213    Hearing Date: June 4, 2025    Dept: 207

TENTATIVE RULING

MOTION

This case arises from a business dispute stemming from an alleged failure to provide products as agreed. 

In the operative Second Amended Complaint (“SAC”), Plaintiff Ophir Rf, Inc. (“Plaintiff”) alleges four causes of action against Defendant Quarterwave Corp. for (1) breach of written contract; (2) breach of written contract; (3) breach of written contract; and (4) mandatory injunction. 

Defendant now demurs to all causes of action on the ground that they fail to state facts sufficient to constitute a cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (e).  Defendant additionally demurs to the first three causes of action on the grounds of uncertainty and inability to ascertain whether the contracts are written, oral, or implied by conduct, pursuant to Code of Civil Procedure section 430.10, subdivisions (f), and (g), respectively.  Plaintiff opposes the demurrer and Defendant replies.

ANALYSIS

1.     DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A.    UNCERTAINTY

“[D]emurrers for uncertainty are disfavored.”  (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)  A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her.  (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)  Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers.  (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.) 

Plaintiff alleges that “Defendant has failed to provide the products as agreed, and therefore, is in breach of contract.”  Defendant contends that the allegation is ambiguous as to whether Defendant never delivered any goods, delivered the wrong goods, delivered non-conforming goods, failed to cure non-conforming goods, or something else.  However, the Court determines that the level of specificity advocated by Defendant is not required, and Defendant has not advanced any authority holding otherwise.   

Defendant also argues that the Complaint is uncertain because Plaintiff does not specify whether the alleged damages are general or special, and to the extent damages are sought for the loss of goodwill, such damages much be pleaded with particularity.  In support, Plaintiff cites to Shook v. Pearson (1950) 99 Cal.App.2d 348, 351-352, which explained that the fact of special damages, the amount of such damages, and the means of occasioning them must be pleaded with particularity.  However, the Court determines that the argument goes to the sufficiency of the pleading, not to uncertainty.

Ultimately, Defendant cannot say the SAC is so bad that it cannot determine what issues must be admitted or denied or what causes of action are alleged against it.  Therefore, the Court declines to sustain Defendant’s demurrer on uncertainty. 

B.    WHETHER CONTRACT IS WRITTEN, ORAL, OR IMPLIED BY CONDUCT

Defendant argues that the SAC is ambiguous as to whether the contracts at issue are written, oral, or implied by conduct.  In this regard, although the first three causes of action are labeled “breach of written contract,” the content of the allegations themselves indicates, “Plaintiff and Defendant entered into a contract for Defendant to provide to Plaintiff items identified in the Purchase Order attached hereto as [Exhibit A, Exhibit B, and Exhibit C].”  (SAC ¶¶ 8, 14, 20.)

Thus, the Complaint alleges that the parties entered into written contracts, the terms of which are evidenced by the purchase orders attached as Exhibits A-C to the SAC. 

Plaintiff clarifies in its opposition that the purchase orders are the contracts.  A purchase order is an offer, which can form part of a contract if it is accepted.  (Lockheed Electronics Co., Inc. v. Keronix, Inc. (1981) 114 Cal.App.3d 304, 310-311.)  Here, the purchase orders are all signed, and the Complaint also alleges in connection with the first cause of action that the items were delivered in a state of disrepair.  Although the Complaint does not specifically allege that nonconforming goods were delivered with respect to the second and third contracts, the Court finds the allegations, taken in context and in view of the whole of the SAC, are sufficient to allege three written contracts to withstand demurrer. 

Therefore, Plaintiff has adequately alleged the contracts at issue were written.

C.    FAILURE TO STATE A CAUSE OF ACTION

                                                         i.          First, Second, and Third Causes of Action – Breach of Contract

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.”  (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) 

As discussed above, Plaintiff has adequately alleged the existence of three written contracts and Defendant’s breach thereof.  The SAC also alleges, “Plaintiff performed its part of the bargain.”  (SAC ¶¶ 10, 16, 22.)  Therefore, the SAC adequately alleges Plaintiff’s performance.

Regarding damages, as mentioned above, the fact of, the amount of, and the means of occasioning special damages must be pleaded with particularity.  (Shook v. Pearson (1950) 99 Cal.App.2d 348, 351-352.)  The purpose of the requirement is to prevent surprise to the defendant as to special damage resulting from his act.  (Ibid.)  Here, Plaintiff alleges:

11. Plaintiff has suffered damages in the amount of $223,900 as to the loss of the value of the unit and has suffered damages to replace the unit and suffered further damages as a result of the loss of business from the United States Navy. Plaintiff has lost ongoing business with the United States Navy as a result of Defendant's failure to provide workable units per the purchase orders.

12. Plaintiff has suffered damages in an amount to be determined at the time of trial but in the sum of no less than $10,000,500.00

[…]

17. Plaintiff has suffered damages in the amount of $115,460 as to the loss of the value of the unit and has suffered damages to replace the unit and suffered further damages as a result of the loss of business from the United States Navy.

18. Plaintiff has suffered damages in an amount to be determined at the time of trial but in the sum of no less than $10,000,500.00

[…]

23. Plaintiff has suffered damages in the amount of $293,600 as to the loss of the value of the unit and has suffered damages to replace the unit and suffered further damages as a result of the loss of business from the United States Navy.

24. Plaintiff has suffered damages in an amount to be determined at the time of trial but in the sum of no less than $10,000,500.00

(SAC ¶¶ 11-12, 17-18, 23-24.)

            The Court finds the allegations sufficient to put Defendant on notice as to the existence of, amount of, and means of occasioning the special damages alleged.  Therefore, Plaintiff has adequately alleged three causes of action for breach of contract.

                                                       ii.          Fourth Causes of Action – Mandatory Injunction

Defendant next demurs to the fourth cause of action for a mandatory injunction requiring Defendant to return “the units subject to this lawsuit that was delivered to Defendant” on the grounds that it is unascertainable.  (SAC ¶ 26.) 

            In connection with the first cause of action, the SAC alleges, “Defendant returned the items under this purchase order to Plaintiff on July 22, 2022 in a state of disrepair and was then again returned to Defendant for repair 2 years later so that Defendant could complete its contractual obligations under the purchase order at issue.”  (SAC ¶ 9.)  That allegation is incorporated into the fourth cause of action by way of paragraph 25.) 

Plaintiff further alleges “Plaintiff has made a demand for the return of the amplifier units at issue[.]” (SAC ¶ 27.)

Therefore, the Court finds the SAC adequately alleges what must be returned, if the injunction is granted.

CONCLUSION AND ORDER

For the reasons stated, the Court overrules Defendant’s Demurrer in its entirety.  Defendant shall file and serve an Answer to the SAC on or before June 18, 2025. 

Defendant shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith. 

DATED:  June 4, 2025                                                           ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court