18-CIV-01456 ETI LEVI-BARKAI VS. LEWIS BREAD COMPANY, LLC, ET AL.

ETI LEVI-BARKAI LEWIS BREAD COMPANY, LLC
HEE J. KIM RAVIV NETZAH

DEFENDANTS LEWIS BREAD COMPANY, LLC, DALIT LEWIS & MICHA LEWIS’ DEMURRER TO PLAINTIFF’S, ETI LEVI—BARKAI, FIRST AMENDED COMPLAINT TENTATIVE RULING:

Defendants Lewis Bread Company, LLC et. al.’s Demurrer to Plaintiff Eti Levi-Barkai’s 9-24-18 First Amended Complaint (FAC) is OVERRULED, as set forth below.

The Demurrer to the Third Cause of Action for breach of the implied covenant of good faith and fair dealing is OVERRULED. Code Civ. Proc. § 430.41(b) (an argument that could have been raised via Demurrer to a prior version of the Complaint, but was not, cannot be raised after an amendment following a Demurrer to the previous Complaint).

The Demurrer to the Fourth Cause of Action for “fraud-false promise” is OVERRULED. Code Civ. Proc. § 430.41(b). Although Defendants demurred to this cause of action in the original Complaint, they could have, but did not assert the arguments now raised, and thus are precluded from doing so in a Demurrer to the FAC. § 430.41(b).

The Demurrer to the Fifth Cause of Action for “intentional interference with contractual relations” is OVERRULED. As stated in the Court’s 8-10-18 Minute Order sustaining a Demurrer to this claim in the original Complaint, this tort claim applies to third parties to a contract who intentionally interfere with a party’s performance. Pac. Gas & Elec. Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1125. It does not apply to parties to a contract, or to persons acting solely in a capacity as agents for a party. Shoemaker v. Myers, 52 Cal.3d 1, 24 (1990) (corporate agents and employees acting for and on behalf of a corporation cannot be held liable for inducing breach of the corporation’s contract). However, persons such as corporate officers, directors, and shareholders who act as a corporate agent, but who also have significant personal financial interest in the corporation, and thus are pursuing their own economic selfinterest, are not necessarily exempt from tort liability for intentionally interfering with the corporation’s performance under a contract. See Woods v. Fox Broad. Sub., Inc., 129 Cal.App.4th 344, 353 (2005); Golden v. Anderson (1967) 256 Cal.App.2d 714, 719-20. No party here has identified any authority suggesting that this rule should not apply equally to LLCs. Thus, at the Demurrer stage, while this cause of action may ultimately lack merit and Defendants may have defenses, the FAC sufficiently alleges that the individual defendants here had a substantial personal interest in the LLC such that Plaintiff has stated a valid cause of action against them for allegedly interfering with the LLC’s contract with Plaintiff. See, e.g., FAC, ¶¶73, 76.

Plaintiff’s unopposed Request for Judicial Notice of portions of the Court file is GRANTED. Evid. Code § 452(d).

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.