Judge Peter A. Hernandez, Case Number: 23PSCV01485, Date: 2024-05-01 Tentative Ruling

Defendant Barry Anthony Braun dba Trueblue Pool Care’s Demurrer to [First Amended] Complaint is OVERRULED in part (i.e., as to the fourth cause of action) and SUSTAINED in part (i.e., as to the fifth through ninth causes of action). The court will hear from counsel for Plaintiff as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.

Plaintiff Jose Martin Reyes dba JMR Pool Pro (“Plaintiff”) alleges as follows:

On January 15, 2021, Plaintiff and Barry Anthony Braun dba Trueblue Pool Care (“Braun”) entered into an agreement wherein Plaintiff agreed to purchase 20 pool service accounts from Braun for $22,608.00 (“Agreement”). Braun also executed a Non-Competition Agreement (“Non-Compete Agreement”) wherein he agreed not to compete with Plaintiff for 5 years from the date of the Agreement. After the agreements were executed, Braun proposed providing administrative services to manage Plaintiff’s newly acquired and future pool service accounts. Plaintiff and Braun entered into an oral agreement, wherein Braun would handle administrative tasks in exchange for a 15% monthly service fee from the total amount collected (“Administrative Agreement”). Braun asked Plaintiff to have each of Plaintiff’s clients endorse a TrueBlue Pool Care Traditional Service Agreement (“Service Agreement”) under the pretense that they would be used to streamline the collection of client information to establish profiles and schedule service appointments.

Plaintiff’s business greatly expanded and Plaintiff provided the Service Agreement to each new client. The relationship between Plaintiff and Braun subsequently soured and Plaintiff informed Braun of his intent to terminate their business relationship; in response, Braun claimed ownership of all of the pool service accounts Plaintiff had acquired during their association, minus the original 20 accounts Plaintiff had purchased. Braun demanded that Plaintiff buy these accounts from him.

On November 12, 2022, Plaintiff contacted Braun’s office to request that Brun inform Plaintiff’s pool service accounts that Plaintiff would be taking time off during Thanksgiving week but that he would provide extra treatment to their pools and spas the week beforehand to maintain the correct levels until his return. Braun purposely failed to communicate this information and instead sent correspondence to each of Plaintiff’s clients, unbeknownst to Plaintiff, advising them that Plaintiff had taken the week off without notice, did not maintain the required qualifications to perform swimming pool maintenance in Los Angeles County and that Plaintiff was resigning as their pool servicer. Braun’s false communications resulted in some of Plaintiff’s clients switching to Braun for their pool service needs.

On October 13, 2023, Plaintiff filed a First Amended Complaint (“FAC”), asserting causes of action against Braun and Does 1-50 for:

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Braun demurs, per Code of Civil Procedure § 430.10, to the fourth through ninth causes of action[1] in Plaintiff’s FAC, on the basis that they each fail to state facts sufficient to constitute causes of action.

At the outset, the court addresses Plaintiff’s contention that Braun’s instant demurrer is untimely. The court has reviewed the declarations of Charles K. Stec (“Stec”) and Edgar Martirosyan (“Martirosyan”). Stec represents that counsel agreed during their November 15, 2023 telephone conference that Braun would withhold filing a demurrer until after the parties first participated in mediation (Stec Decl., ¶¶ 3 and 4), whereas Martirosyan represents that he only agreed to Braun filing an answer (Martirosyan Decl., ¶ 5).

It is unclear to the court, based upon the competing declarations, whether or not the instant demurrer is untimely; with that said, it is within the court’s discretion to consider an untimely demurrer. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.) The court elects to consider the demurrer on its merits.

Fourth Cause of Action (i.e., Breach of Implied Covenant of Good Faith and Fair Dealing)

“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.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395).

Braun asserts that Plaintiff’s fourth cause of action is “nothing more than a retread of [his] first cause of action for breach of contract.” (Dem., 3:18-19). Plaintiff’s first cause of action, however, is directed only towards Braun’s alleged breach of the parties’ Non-Compete Agreement, whereas Plaintiff’s fourth cause of action pertains to Braun’s alleged breach of the parties’ Agreement, Non-Compete Agreement, and Administrative Agreement. The court will overrule Braun’s demurrer to the fourth cause of action on this basis.

“The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61 Cal.4^th 1225, 1240 [internal quotations and citation omitted].) “Where plaintiff neither has title to the property alleged to have been converted, nor possession thereof, he cannot maintain an action for conversion.” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 136 [quotations and citation omitted].)

Plaintiff has alleged that Braun interfered with Plaintiff’s property interest (i.e., comprised of 70 pool service accounts) by taking possession of 40 pool service accounts. (FAC, ¶ 50). Plaintiff previously alleged that “the Service Agreement. . . result[ed] in a contractual relationship between Braun and Plaintiff’s new acquired clients, effectively designating those who signed it as Braun’s pool service clients rather than Plaintiff’s.” (Id., ¶ 10). Braun asserts that Plaintiff cannot plead the first element of Plaintiff’s fifth cause of action, because the service accounts are accounts between Braun and various customers under the Service Agreement and that, as such, Plaintiff had no ownership or right to possession of these accounts. The court will sustain Braun’s demurrer to the fifth cause of action on this basis.

Sixth and Seventh Causes of Action (i.e., Intentional Interference with Contractual Relations and Intentional Interference with Prospective Economic Relations, Respectively)

“The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.”

“The five elements for intentional interference with prospective economic advantage are: (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” (Youst v. Longo (1987) 43 Cal.3d 64, 71, fn. 6.) “[A]n essential element of the tort of intentional interference with prospective business advantage is the existence of a business relationship with which the tortfeasor interfered. Although this need not be a contractual relationship, an existing relationship is required.” (Roth v. Rhodes (1994) 25 Cal.App.4^th 530, 546.)

Eight and Ninth Causes of Action (i.e., Fraudulent Misrepresentation and Negligent Misrepresentation, Respectively)

“Fraud must be pleaded with specificity…[t]o withstand a demurrer, the facts constituting every element of the fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings.” (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782 [emphasis in original].) “This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 (emphasis in original; internal quotations and citation omitted].)

Braun asserts that Plaintiff’s eighth and ninth causes of action are not pled with specificity. The court agrees. Braun also assets that these causes of action are a regurgitation of Plaintiff’s contract-based causes of action. “[C]onduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law.” (Erlich v. Menezes (1999) 21 Cal.4th 543, 551.) The court agrees. The court will sustain Braun’s demurrer to the eighth and ninth causes of action on this basis.

[1] Braun’s statement that he is demurring to the first and second causes as well (See Demurrer, 1:3) appears to be a typographical error, inasmuch as there is no analysis of these causes of action.