Judge: Ronald F. Frank, Case: 23TRCV00101, Date: 2023-08-31 Tentative Ruling
Case Number: 23TRCV00101 Hearing Date: October 31, 2023 Dept: 8
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HEARING DATE: October 31, 2023¿¿
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CASE NUMBER: 23TRCV00101
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CASE NAME: William N. Rowley, Ph.D., P.E. v. Rowley &
Reynolds Forensic Engineering, Inc., et al
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MOVING PARTY: Defendants, Rowley & Reynolds Forensic Engineering,
Inc. and Cross-Complainant, Matthew Reynolds
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RESPONDING PARTY: Plaintiff, William N. Rowley, Ph.D, P.E.
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TRIAL DATE: January
8, 2024
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MOTION:¿ (1) Demurrer¿
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Tentative Rulings: (1) Demurrer¿is SUSTAINED in part with 5 days leave to
amend, and OVERRULED in part.
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A. Factual¿¿
On January 12, 2023, Plaintiff, William N. Rowley,
Ph.D., P.E. (“Plaintiff”) filed a Complaint against Defendant, Rowley &
Reynolds Forensic Engineering, Inc. and DOES 1 through 50. On July 19, 2023,
Plaintiff filed a First Amended Complaint. On September 11, 2023, Plaintiff
filed a Second Amended Complaint (“SAC”) alleging causes of action for: (1)
Breach of Written Contract; (2) Declaratory Relief; (3) Breach of Contract; (4)
Common Count; (5) Appropriation of Name or Likeness (Common Law); and (6)
Appropriation of Name or Likeness (Civ. Code § 3344.)
Defendant, Rowley & Reynolds Forensic Engineering,
Inc and Cross-Complainant, Matthew Reynolds now file a demurrer to the SAC.
B. Procedural¿¿
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On September 15, 2023, Defendant and
Cross-Complainant also filed a joint demurrer to the FAC. On September 20,
2023, Plaintiffs filed an opposition. On October 6, 2023, Defendant and
Cross-Complainant filed a reply brief.
The contentions are very similar to those raised in eh Demurrer to the original
complaint.
II. GROUNDS FOR DEMURRER
Defendant and Cross-Defendant demur
as to the first, second, fifth, sixth, seventh, and eighth causes of action on
the grounds that they contend Plaintiff has not stated sufficient facts to
state a claim for those causes of action.
III. ANALYSIS¿¿
A.
Legal
Standard
A demurrer can be used only
to challenge defects that appear on the face of the pleading under attack or
from matters outside the pleading that are judicially noticeable. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint
need only allege facts sufficient to state a cause of action; each evidentiary
fact that might eventually form part of the plaintiff’s proof need not be
alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53
Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of
action, the demurrer admits the truth of all material facts properly pleaded. (Aubry
v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does
not admit contentions, deductions or conclusions of fact or law.” (Daar v.
Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿¿
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A pleading is uncertain if
it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A
demurrer for uncertainty may lie if the failure to label the parties and claims
renders the complaint so confusing defendant cannot tell what he or she is
supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986)
185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is
strictly construed, even where a complaint is in some respects uncertain,
because ambiguities can be clarified under modern discovery procedures.” (Khoury
v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿¿
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B. Demurrer
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Declaratory Relief
“To qualify for declaratory relief, a party would have to
demonstrate its action presented two essential elements: (1) a proper subject
of declaratory relief, and (2) an actual controversy involving justiciable
questions relating to the party’s rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909,
quotation marks and brackets omitted.) A
cause of action for declaratory relief should not be used as a second cause of
action for the determination of identical issues raised in another cause of
action. (General of America Insurance Co.
v. Lilly (1968) 258 Cal.App.2d 465, 470.) “The availability of another form
of relief that is adequate will usually justify refusal to grant declaratory
relief” (California Insurance Guarantee
Association v. Superior Court (1991) 231 Cal.App.3d 1617, 1624), and a
duplicative cause of action is subject to demurrer (Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016)
248 Cal.App.4th 268, 290). Further, “there is no basis for declaratory relief
where only past wrongs are involved.” (Osseous
Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191
Cal.App.4th 357, 366, quotation marks omitted.)
Previously, the Court sustained the demurrer to the declaratory
relief cause of action in the FAC as this Court found that the FAC was facially
deficient as to the Dec Relief cause of action because it was a restatement to
the breach of contract cause of action. However, during oral argument on
September 5, 2023, Plaintiff contended that there were invoices which fall
outside of the scope of the breach of contract causes of action and thus
allowed Plaintiff leave to amend. Since then, Plaintiff has pleaded those
invoices in paragraphs 36 and 37 of the SAC.
The demurrer to this SAC still argues that the cause of
action for declaratory relief seeks to determine the apportionment of business
revenues in 2020 under the business purchase agreement, rather than any prospective
relief. The Court also notes that in paragraphs 36 and 37 of the SAC, the
invoices are based on the 50% fee of the amount received, an alleged condition
of the contract at issue. The Court tentatively SUSTAINS the Demurrer to the Dec Relief cause of action.
Common Count
The
required elements of a common count claim are “(1) the statement of
indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work
done, etc., and (3) nonpayment. A cause of action for money had and received is
stated if it is alleged the defendant is indebted to the plaintiff in a certain
sum for money had and received by the defendant for the use of the plaintiff.”
(Farmers Insurance Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460, citation and quotation marks omitted.)
The
demurrer argues that Plaintiff does not plead facts to support the first
element because Plaintiff does not indicate a firm figure is pleaded as
allegedly owed to him. Additionally, the demurrer asserts that Plaintiff is
unable to plead such a sum as Plaintiff’s theory of the case allegedly turns on
contractual interpretation of revenue allocation, which, demanding on how the
contract is interpreted, can net out in various amounts, or perhaps to none at
all.
The Court
agrees with the analysis in the demurrer and is confused about which amount is
claimed to be owed. Plaintiff includes invoices, and a generalized statement of
50% of what Rowley bulled and what was collected by RRFE in its general factual
allegations section. However, Plaintiff’s SAC, under the cause of action for
common count, indicates that “Defendants breached the contract by failing to
pay all sums owing to Plaintiff for work billed and collected, for work
underbilled to clients, or for failing to collect from clients work billed by
Plaintiff during 2020, 2021, and 2022 by RRFE.” (SAC, ¶ 76.) As such, the Court
requires a sum certain to be pleaded. While the Court recognizes Plaintiff’s argument
under California Civil Procedure § 430.41(b) that the prior demurrer did not
raise this point, the Court SUSTAINS the Demurrer with 5 days leave to
amend. If Plaintiff cannot plead a sum
certain as to this cause of action, then it will proceed to trial without this common
count.
Appropriation of Name and
Likeness
“To sustain a common law cause of action for commercial
misappropriation, a plaintiff must prove: (1) the defendant’s use of the
plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to
defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4)
resulting injury.” (Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th
664, 679, quotation marks omitted.) California law also provides a statutory
claim for commercial misappropriation under Civil Code section 3344, which
requires that the plaintiff “prove all the elements of the common law cause of action”
as well as “allege a knowing use by the defendant as well as a direct
connection between the alleged use and the commercial purpose.” (Stewart v.
Rolling Stone LLC, supra, 181 Cal.App.4th at p. 679.)
Previously, the Court sustained the demurrer to the FAC
on these causes of action because Plaintiff did not attach the Agreement to the
FAC. However, since then, Plaintiff has now attached the agreement to the SAC. Defendants
demur by arguing that there was to be no limitation with respect to the use of
Plaintiff’s name and likeness in the newly-formed company. Defendants argue
that there is nothing in the agreement which distinguishes or delimits the use
of Plaintiff’s likeness from the otherwise liberal use of Plaintiff’s name and
background passed to RRFE’s use through Plaintiff’s sale of the business.
Plaintiff contends this reference is to Article 3, 3.01 (p) “Intellectual
Property” on page 9 of the Purchase and Sale Agreement. That specific paragraph
states: “Company has the right to conduct the business which it now conducts
without any limitation or restrictions of any kind, and to the best of the
knowledge of the Seller, the services provided by Company may continue [sic]
provided without infringing upon or violating any patents, patent applications,
trademarks, trade names, copyrights or processes of others.”
However, in opposition, Plaintiff argues that Article 3,
3.01 (p) “Intellectual Property” only refers to services provided by the
Company, which are as an expert in pool safety. Plaintiff contends that it
mentions nothing about permitting the use of Rowley’s name and likeness nor
does it permit the use of Rowley’s name and likeness in advertising. The Court
is not entirely convinced by this interpretation of the contract. The term
“Intellectual Property” often refers to a company name. While demurrers test
the sufficiency of pleadings, items attached to the complaint are judicially
noticeable and can also be considered when brought into a demurrer. Here, the
Court’s tentative ruling is to SUSTAIN the demurrer as to these causes of
action based on the language of the contract. However, the Court will allow
oral argument as to the contractual interpretation issue and whether this
should be resolved on demurrer or with a later motion.
IV. CONCLUSION¿¿
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For the foregoing reasons, the
Court’s tentative ruling is to Sustain the demurrer in part and overrule it in
part depending on oral argument.
Defendants are ordered to give
notice.