Judge: Shirley K. Watkins, Case: 22VECV00513, Date: 2023-05-05 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 22VECV00513    Hearing Date: May 5, 2023    Dept: T

22VECV00513 K.G. MULLEN, INC. vs BOSWELL CONSTRUCTION INC.

            [TENTATIVE] ORDER:  Defendant Boswell Construction Inc.’s Motion for Judgment on the Pleadings is DENIED. 

Introduction

            Defendant Boswell Construction Inc. (Defendant) moved for judgment on the pleadings against Plaintiff K.G. Mullen, Inc.’s (Plaintiff) first cause of action (COA) alleged in the Complaint. 

            Discussion 

            Defendant argued that the first COA for breach of the covenant of good faith and fair dealing failed to plead sufficient facts because the claim sought to prohibit Defendant from doing that which is expressly permitted by the agreement (i.e., terminate the agreement for convenience.)  (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 374 and Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4^th 1107.)  Defendant’s argument relied upon the agreement’s provision stating:  “Termination for Convenience. Contractor may at any time and for any reason terminate Subcontractor's services hereunder at Contractor's convenience.”  (Compl. Exh. 1, par. VII.b.)  However, Defendant’s argument does not cite to any fact allegation in the Complaint or through judicial notice to support its contention that Defendant terminated the agreement for Defendant’s convenience.  Defendant’s argument that Defendant terminated the agreement under paragraph VII.b. was based upon an assumption without supportive facts.  Plaintiff only alleged that Defendant breached the covenant by “not preparing the construction site so that the contact [sic] could be performed as anticipated and not scheduling a start date for KGM's performance.”  (Compl. par. 12.)  Without additional fact pleading (i.e., Defendant expressly terminated the agreement,) Defendant’s argument is based upon an inference that cannot be drawn from the actual factual allegations in the Complaint.  A plain reading of the allegation does not show an inference that Defendant terminated the agreement.  The allegations of the Complaint plead facts to show entry into the agreement in May 2018 and several change orders being executed between May and June 2018.  (Compl. pars. 7-8 and Exhs. 1-6.)  There are no factual allegations to show that any party terminated the agreement and that Defendant’s alleged breach (i.e., Defendant’s failure to prepare the job site and schedule a start date)  was authorized conduct under the agreement.  The court is limited to the facts as pleaded in the complaint.  Defendant’s argument is unpersuasive.

            In response to Plaintiff’s opposition, Defendant’s reply made an additional argument as to the impropriety of Plaintiff’s alleged claim for lost profits.  The issue and argument are not proper for a motion for judgment on the pleadings because motion for judgment on the pleadings cannot be based upon pleading defects as to only part of a COA.  Failure to plead the proper damages is not grounds for a motion for judgment on the pleadings. 

            The motion for judgment on the pleadings is DENIED.