Judge: Theodore R. Howard, Case: 22-1239799, Date: 2022-09-08 Tentative Ruling

 Defendant Alma Bastani aka Alma Amiran’s (“Defendant”) Demurrer to Plaintiff BySonix, Inc.’s (“Plaintiff”) Complaint is OVERRULED.

For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law).  Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591.  Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.  Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.

The question of plaintiff's ability to prove the allegations in the complaint, or possible difficulties in making such proof, is of no concern in ruling on a demurrer.  Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.  The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action—not whether they are true.  Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.

First Cause of Action (Breach of Contract)

A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom.  McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.

The Court finds that the Complaint adequately pleads all elements of a breach of contract claim.  The Complaint alleges that (1) Plaintiff and Defendant entered into the Agreement, which provides that Defendant shall not solicit any employee of Plaintiff for two years after termination of her employment with Plaintiff; (2) Plaintiff has performed all promises, conditions, and covenants required by it pursuant to the Agreement, or has otherwise been excused from further performance; (3) Defendant breached the Agreement by soliciting Rozales to resign from her employment at Plaintiff and to work at Nogin; and (4) as a direct and proximate result of Defendant’s material breaches of the Agreement, Plaintiff has been damaged in excess of $500,000.  (Compl. ¶¶ 3, 24-27.)  Thus, the Complaint pleads the existence of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom.  Accordingly, the Complaint pleads the ultimate facts necessary to state a claim for breach of contract against Defendant.

Defendant’s argument that Plaintiff’s damages are not sufficiently alleged fails and her reliance on Lewis Jorge Construction Management, Inc. v. Pomona Unified School District (2004) 34 Cal.4th 960 is misplaced.  The court in Lewis discussed the concepts of general and special damages and the requirement that special damages must be pled with particularity.  (See Id. at p. 968, 975.)  Here, the Complaint alleges that “BySonix has been damaged and continues to sustain damages in an amount to be proven at trial, currently estimated to be in excess of $500,000.”  (Compl. ¶¶ 22, 27.)  Plaintiff points out in its Opposition that the amount of damages demanded in the Complaint ($500,000) is specifically set forth as liquidated damages in paragraph 4.a. of the Agreement.  The Agreement is attached to the Complaint and incorporated by reference.

When reading the Complaint as a whole, the $500,000 damages pled could reasonably be read to refer to the $500,000 liquidated damages contemplated by the Agreement.  Such damages are not special damages; rather, they are general damages because they were specifically contemplated by the parties and thus “are a natural result of a breach.”   (Id. at p. 968.)  Thus, Plaintiff was under no obligation to plead these damages with particularity.  Plaintiff was only required to specify the amount of money damages demanded (see Code Civ. Proc., § 425.10(a)(2)), which was done.  Thus, Plaintiff has satisfied the pleading requirement as to damages.

Accordingly, Defendant’s general demurrer to the first cause of action is OVERRULED.

Fourth Cause of Action (Violation of Bus. & Prof. Code 17200)

Bus. & Prof. Code § 17200 et seq. prohibits unfair competition, including unlawful, unfair or fraudulent business acts.  Cel-Tech Comm., Inc. v. Los Angeles Cellular Tele. Co. (1999) 20 Cal. 4th 163, 180.  This cause of action is derivative of the other causes of action and survives, or falls, based upon whether the other causes of action establish unlawful conduct or an unfair business practice by Defendant.  Noel v. Home Servicing (2009) 653 F.Supp.2d 1047, 1056; Ingles v. Westwood One Broadcasting Serves. Inc. (2005) 129 Cal.App.4th 1050, 1060.

Because the breach of contract cause of action states a viable claim against Defendant (as discussed above), so too does Plaintiff’s claim under Bus. & Prof. Code § 17200.  Thus, Defendant’s general demurrer to the fourth cause of action is OVERRULED.

Defendant is to file an Answer to the Complaint within 10 calendar days.

Plaintiff to give notice.