Judge: Richard S. Whitney, Case: 37-2021-00050279-CU-BC-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - September 14, 2023

09/15/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Breach of Contract/Warranty Summary Judgment / Summary Adjudication (Civil) 37-2021-00050279-CU-BC-CTL FOR PURPOSE LAW GROUP VS TOVELLA DOWLING PC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: CROSS-DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION is DENIED.

Cross-Defendants For Purpose Law Group, a Professional Law Corporation ('FPLG') and May L. Harris ('HARRIS') (collectively 'Cross-Defendants') seek to summarily adjudicate Cross-Complainant Dana Nassiri Park's ('PARK') second and third causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing in the cross-complaint.

In ruling on a motion for summary judgment/adjudication, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts. (Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289-90; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.) '[T]he burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.' (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.) The Court then determines whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Serri, supra, at p. 858.) The Court must 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Cross-Defendants' requests for judicial notice are granted to the extent permissible.

Cross-Defendants assert that PARK cannot demonstrate a binding contract was formed and breached.

Cross-Defendants argue that the parol evidence rule bars PARK's claims. 'When the parties to a written contract have agreed to it as an 'integration'-a complete and final embodiment of the terms of an agreement-parol evidence cannot be used to add to or vary its terms.' (Masterson v. Sine (1968) 68 Cal.2d 222, 225.) However, parol evidence must be accepted where there is any ambiguity in the contract. (Wolf v. Superior Court (2004) 114 Cal.App.4th 1343, 1350–1351.) Where there are 'conflicting interpretations and any others supported by reasonable inferences from the evidence' the matter 'must be resolved by a trier of fact.' (See Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1066.) 'The parol evidence rule is a fundamental rule of contract law which operates to bar extrinsic evidence contradicting the terms of a written contract.' (BMW of North America, Inc. v. New Motor Vehicle Bd. (1984) 162 Cal.App.3d 980, 990.) Calendar No.: Event ID:  TENTATIVE RULINGS

2990031  64 CASE NUMBER: CASE TITLE:  FOR PURPOSE LAW GROUP VS TOVELLA DOWLING PC [IMAGED]  37-2021-00050279-CU-BC-CTL The interpretation of a contract and the determination of whether the written contract is a complete expression of all the terms agreed upon are questions of law for the court.

'But when parol evidence is introduced in aid of the interpretation of uncertain or doubtful language in the contract, the question of the meaning [or intent of the parties] is one of fact. If the meaning [or intent] is to be determined one way according to one view of the facts and another way according to another view, the determination of the disputed matter must be left to the jury.' (Kaufman & Broad Bldg. Co. v. City & Suburban Mortg. Co. (1970) 10 Cal.App.3d 206, 215–216.) Here, the offer letter signed by PARK includes the following integration clause: 'This letter and other accompanying documents supersede and replace any prior understandings or agreements, whether oral, written or implied, between you and FPLG regarding the matters described in this letter.' (Cross-Defendants' Separate Statement of Material Undisputed Facts ['SSUMF'] No. 11.) The offer letter also provides: 'you will be eligible to participate in a number of FPLG-sponsored benefits including paid vacation/Paid Time Off (PTO), group medical. dental, vision and life insurance, disability benefits, and other fringe benefits as are made available to other similarly situated employees of FPLG, in accordance with and subject to the eligibility and other provisions of such plans and programs.' (See SSUMF No. 11, Exhibit 5 [Emphasis added].) Finally, the offer letter states 'FPLG reserves the right to, in its sole discretion, modify or rescind any of the terms set forth in this letter at any time during the course of your employment, to the extent permitted by law.' (See SSUMF No. 11, Exhibit 5.) Given that the offer letter recognizes other fringe benefits which would include on-site childcare, extrinsic evidence that describes the fringe benefit is not necessarily contradictory to nor an addition to the terms of the offer letter. Therefore, PARK's evidence of the Craigslist Ad and email exchanges are not inadmissible. They provide understanding as to what the 'other fringe benefits' means. Further, PARK provides evidence that the 'other accompanying documents' that 'supersede and replace any prior understandings' could include the Employee Handbook which was incomplete and did not provide that any material benefit or term of employment could be revoked and/or rescinded at any time. (PARK's Additional Material Facts ['AMF'] No. 16.) Cross-Defendants assert that PARK's evidence as to the promise of on-site childcare being a guaranteed benefit in exchange for a lower base salary is inadmissible because it is based on an oral agreement that occurred prior to the offer letter and the offer letter is integrated and indicates that the terms of the letter could be modified or rescinded at any time in FPLG's sole discretion. The Court understands this position as the offer letter expressly states FPLG reserved 'the right to, in its sole discretion, modify or rescind any of the terms set forth in this letter at any time during the course of your employment, to the extent permitted by law.' (See SSUMF No. 11, Exhibit 5.) Such discretion seems contradictory to a guaranteed benefit. However, the sentence is modified by the clause 'to the extent permitted by law.' (See SSUMF No. 11, Exhibit 5.) The Court finds this clause could be interpreted in different ways. The Court finds it could be interpreted to mean the discretion is limited to terms where there was not a guaranteed benefit which was material to the agreement as a modification would be a breach of the agreement. The clause could also be interpreted as merely limiting FPLG's ability to change the terms where a statute or case law specifically mandates a benefit to some minimum level, such as offering medical insurance.

More importantly, as indicated above, the integration clause incorporates the Employee Handbook, an 'other accompanying document[],' which did not provide that any material benefit or term of employment could be revoked and/or rescinded at any time. (AMF No. 16.) The same applies to the FPLG Onsite Childcare Policies. (AMF No. 26.) The Court finds that the incorporation of other documents renders the terms in the offer letter as to the discretion to modify or rescind benefits ambiguous, especially given the context that FPLG's 'Revisions to the Manual' after PARK's departure included: 'the firm reserves the right to unilaterally revise, suspend, revoke, terminate or change any of its policies, in whole or in part, whether described within this handbook or elsewhere, in its sole discretion.' (AMF No. 27.) Calendar No.: Event ID:  TENTATIVE RULINGS

2990031  64 CASE NUMBER: CASE TITLE:  FOR PURPOSE LAW GROUP VS TOVELLA DOWLING PC [IMAGED]  37-2021-00050279-CU-BC-CTL PARK has provided evidence to indicate that the promise of on-site childcare was a guaranteed benefit that was material to the agreement and that PARK accepted a lower base salary based on the guaranteed benefit of on-site childcare. (See AMF.) Further, PARK provides evidence that the policies and procedures in the Employee Handbook provided to PARK at the time she started was incomplete and did not provide that any material benefit or term of employment could be revoked and/or rescinded at any time. (AMF No. 16.) Specifically, Dowling, the managing attorney, declares that the on-site childcare was a benefit offered to PARK for which there was no policy that PARK's employer reserved the right to rescind the childcare benefit in its entirety. (AMF Nos. 19-27.) The Court finds that, given the ambiguity in the meaning of what could be modified, PARK has raises issues of fact as to the formation of a contract.

The Court notes PARK asserts the parol evidence rule does not apply to an implied-in-fact contract since the rule only bars prior or contemporaneous agreements, not future agreements. However, PARK did not allege a theory of liability based on an implied-in-fact contract. A claim for an express contract cannot be maintained simultaneously with a claim for an implied contract – 'until an express contract is avoided an action on an implied contract cannot be maintained.' (Lloyd v. Williams (1964) 227 Cal.App.2d 646, 649.) '[A]n implied-in-fact contract cannot lie where there exists an express contract covering the same subject.' (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 437.) PARK does not allege in the cross-complaint that there was an implied-in-fact contract formed. Rather, PARK alleges an express contract.

Cross-Defendants also assert that there was no breach because PARK left FPLG before the on-site childcare stopped being offered. PARK has provided evidence to raise issues of fact in this area – PARK provides evidence to indicate there was an anticipatory breach because, before PARK left FPLG, HARRIS indicated to PARK that a replacement teacher for the on-site facility would not be sought and that instead a stipend would be offered. (See AMF Nos. 16-31.) Cross-Defendants next assert that HARRIS could not be PARK's employer since FPLG was the employer and PARK did not allege HARRIS was an alter ego of FPLG. However, the case sited by Cross-Defendants, Leek v. Cooper (2011) 194 Cal.App.4th 399, acknowledges that there are cases finding the 'alter ego doctrine need not be pleaded in the complaint.' (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.) This comports with the finding that the alter ego doctrine is not substantive in nature, but procedural. (Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 516.) The Court finds PARK has raises issues of fact as to whether HARRIS was the alter ego of FPLG because she agreed to assume and personally guarantee any and all past, present, and/or future liabilities and claims of FPLG. (AMF No. 37.) While the Court agrees the personal guarantee is not necessarily sufficient itself to establish the alter ego doctrine applies, it is sufficient to raise an issue of fact.

For the reasons discussed above, the motion is denied as to the breach of contract cause of action.

Cross-Defendants' argument as to the breach of the implied covenant of good faith and fair dealing cause of action are dependent on their arguments above, which fail. Therefore, the motion is denied as to the breach of the implied covenant of good faith and fair dealing as well. The motion is denied in its entirety.

Cross-Defendants' Objections to DECLARATION OF DANA NASSIRI PARK: Objections 1, 3-14: overruled.

Objections 2: sustained.

Cross-Defendants' Objections to DECLARATION OF MARY DOWLING: Objections 1-3, 5-6: overruled.

Objections 4: sustained as to word 'intentionally' but otherwise overruled.

Objections 7: sustained.

Calendar No.: Event ID:  TENTATIVE RULINGS

2990031  64