Judge: Richard S. Whitney, Case: 37-2023-00017973-CU-BC-CTL, Date: 2023-10-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 26, 2023

10/27/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2023-00017973-CU-BC-CTL SAFARI ENERGY LLC VS LUMINIA LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFF AND CROSS-DEFENDANT SAFARI ENERGY, LLC'S DEMURRER TO CROSS-COMPLAINT is OVERRULED.

Plaintiff Safari Energy, LLC ('Plaintiff') challenges the two causes of action for breach of contract against it by Defendant Luminia LLC ('Defendant') in the cross-complaint based on a failure to provide notice of any material breach and opportunity to cure the alleged breach. Plaintiff's request for judicial notice is granted.

First, the Court notes that the declaration of Jeremy A. Lawrence does not demonstrate compliance with CCP section 430.41(a), which requires 'the demurring party [to] meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.' (Code Civ. Proc., § 430.41(a) [Emphasis added].) The declaration of Jeremy A. Lawrence indicates efforts were solely made via email. However, '[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.' (Code Civ. Proc., § 430.41(a)(4).) While the Court would normally continue the hearing to force the demurring party to properly meet and confer, the Court believes that continuing this matter would not result in a change.

Therefore, the Court addresses the merits of the arguments.

'To be entitled to damages for breach of contract, a plaintiff must plead and prove (1) a contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) damage to plaintiff.' (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1352 [Citation omitted].) The elements of breach of contract are the same under New York law. To plead a cause of action for breach of contract, a plaintiff must allege that: (1) a contract exists); (2) plaintiff performed in accordance with the contract; (3) defendant breached its contractual obligations; and (4) defendant's breach resulted in damages. (34-06 73, LLC v. Seneca Insurance Company (2022) 39 N.Y.3d 44, 52.) Here, Defendant alleges the existence of a contract. (Cross-complaint, ¶¶ 8-9, 14-15.) Defendant alleges it 'performed all of its obligations under' the contract 'or was excused from performing those obligations.' (Cross-complaint, ¶¶ 10 and 16.) Defendant alleges breach by Plaintiff. (Cross-complaint, ¶¶ 11 and 17.) Finally, Defendant alleges the breaches resulted in damages to Defendant.

(Cross-complaint, ¶¶ 12 and 18.) While Plaintiff points to 6.3 of the master agreement to assert Defendant failed to provide written notice of the purported breach to give Plaintiff an opportunity to cure, the Court finds that Defendant was not required to specifically identify all required performances in the contract and performance with same in order to properly allege breach of contract. The court in Sauer v. Xerox Corp. (W.D.N.Y. 1998) 17 F.Supp.2d 193 did not address a motion functionally equivalent to a Calendar No.: Event ID:  TENTATIVE RULINGS

3003287 CASE NUMBER: CASE TITLE:  SAFARI ENERGY LLC VS LUMINIA LLC [IMAGED]  37-2023-00017973-CU-BC-CTL demurrer where the facts must be assumed true; rather, the court considered 'Xerox' motion for summary judgment, Sauer's motion for partial summary judgment, and Xerox' motion to strike certain affidavits.' (Id. at 195.) The facts as to written notice were undisputed. (Id. at 196.) Here, the Court does not have undisputed facts before it that establish Defendant failed to perform the terms of the master agreement. The cross-complaint and the master agreement do not establish Defendant did not provide Plaintiff with written notice and an opportunity to cure prior to filing the cross-complaint. The demurrer is overruled on this ground.

Moreover, the Court does not believe it can resolve the contractual interpretation at this stage. The parties disagree as to the interpretation of the master agreement.

Construction of an unambiguous contract is a matter of law, and the intention of the parties may be gathered from the four corners of the instrument and should be enforced according to its terms (see Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]; W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). The court should 'construe the agreements so as to give full meaning and effect to the material provisions' (Excess Ins. Co. Ltd. v Factory Mut. Ins. Co., 3 NY3d 577, 582 [2004]). A reading of the contract should not render any portion meaningless (see God's Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6 NY3d 371, 374 [2006]; Excess Ins. Co., 3 NY3d at 582). Further, a contract should be 'read as a whole, and every part will be interpreted with reference to the whole; and if possible it will be so interpreted as to give effect to its general purpose' (Matter of Westmoreland Coal Co. v Entech, Inc., 100 NY2d 352, 358 [2003] [citations omitted]).

(Beal Sav. Bank v. Sommer (2007) 8 N.Y.3d 318, 324–325.) The parties disagree as to whether the term 'and' in section 6.3 has a disjunctive or conjunctive meaning. 'Courts may interpret the term 'and' to have a conjunctive or disjunctive meaning, depending on the context in which the term is used.' (Fairfield Sentry Ltd. v. Citibank, N.A. London (S.D.N.Y. 2022) 630 F.Supp.3d 463, 483.) Given that the master agreement used 'and/or' immediately preceding the use of the 'and' that is in dispute, the Court finds there is an ambiguity that the Court should not resolve as a matter of law at this stage. The demurrer is overruled.

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