Plaintiff/cross-defendant John Cassinelli (“Cassinelli”) demurs to the cross-complaint (“Cross-Complaint”) filed by defendants/cross-complainant Applied Physics Systems, Inc. (“APS”).

The instant action arises out of a dispute between Cassinelli and his former employer, APS. On June 28, 2008, APS hired Cassinelli as an hourly employee. (Cross-Complaint, ¶ 5.) After approximately three months, APS offered Cassinelli health insurance benefits. (Id.) In February 2009, Cassinelli asked APS whether it would provide health insurance benefits for cross-defendant Anna Szabelski (“Szabelski”), whom Cassinelli identified as his domestic partner. (Id. at ¶ 6.) APS answered in the affirmative, and in exchange for Cassinelli and Szabelski signing an Affidavit of Domestic Partnership (the “Affidavit”) under which both parties swore under oath that they were domestic partners and would promptly notify APS of any change in their domestic partnership status, agreed to provide and pay for health insurance benefits for Szabelski (the “Agreement”). (Id. and Exhibit A.) In accordance with the Agreement and in reliance on the sworn Affidavit, APS provided and paid for health insurance benefits for Szabelski from March 2009 to May 2012. (Id. at ¶ 7.)

On May 10, 2012, after receiving information that led it to believe that the nature of Cassinelli and Szabelski’s relationship had changed, APS confronted Cassinelli about his purported domestic partner. (Cross-Complaint, ¶ 8.) Cassinelli then identified Szabelski as his “roommate” and “landlord,” not his domestic partner. (Id.) APS subsequently terminated Cassinelli’s employment, believing that he had fraudulently signed the Affidavit in order to obtain health insurance benefits for Szabelski. (Id. at ¶ 9.)

On November 18, 2013, APS filed the Cross-Complaint asserting the following causes of action: (1) Violation of Penal Code section 502; (2) Breach of Written Contract; (3) Breach of the Covenant of Good Faith and Fair Dealing; (4) Conversion; (5) Fraud and Deceit; (6) Negligent Misrepresentation; and (7) Promissory Estoppel. In addition to the allegedly improper retention of health insurance benefits for Szabelski, APS’s action is also predicated on allegations that after he was terminated and thus no longer had authorization to access APS’s secure computer network, Cassinelli did in fact access the network in order to wrongfully obtain property and data in violation of Penal Code section 502.

On January 17, 2014, Cassinelli filed the instant demurrer to each of the seven causes of action asserted in the Cross-Complaint on the grounds of failure to state facts sufficient to constitute a cause of action, uncertainty and that it cannot be ascertained from the pleading whether the contract sued upon is written, oral or implied by conduct. (Code Civ. Proc., § 430.10, subds. (e), (f) and (g).)

The Court first notes that Cassinelli has submitted an oversized supporting memorandum in violation of California Rules of Court, rule 3.1113(d). However, as resulting prejudice appears minimal, the Court considers the substance of Cassinelli’s memorandum in its entirety. Cassinelli is admonished that any future filings must comply with all applicable statutes and rules.

The Court also notes that Cassinelli has submitted a lengthy declaration in support of his demurrer which purports to set forth pertinent facts relating to the claims asserted by APS in its Cross-Complaint. The Court will not consider this declaration as it is an improper attempt by Cassinelli to introduce extrinsic evidence into his demurrer. A demurrer can only be used to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) No other extrinsic evidence can be considered. (See Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

APS’s request for judicial notice is GRANTED IN PART. The request is granted as to item nos. 1, 2 and 4 and otherwise denied. (Evid. Code, § 452, subd. (d).) Item nos. 3, 4 and five are not relevant to the disposition of Cassinelli’s demurrer. (See Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [“[j]udicial notice, since it is a substitute for proof …, is always confined to those matters, which are relevant to the issue at hand”].)

Cassinelli’s demurrer to the first, second, third, fourth, fifth, sixth and seventh causes of action on the ground of uncertainty is OVERRULED. A demurrer for uncertainty is disfavored and will be sustained only where the allegations of the complaint are so unintelligible that the defendant cannot reasonably respond to them. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) The allegations of the Cross-Complaint are far from unintelligible and Cassinelli otherwise does not articulate how they qualify as uncertain.

Cassinelli’s demurrer to the first, fourth, fifth, sixth and seventh causes of action on the ground that it cannot be ascertained from the pleading whether the contract sued upon is written, oral or implied by conduct is OVERRULED. These claims are tort claims and not “founded upon a contract.” (See Code Civ. Proc., § 430.10, subd. (g).)

APS’s first cause of action for violation of Penal Code section 502 alleges that Cassinelli accessed APS’s secure computer system without its knowledge in order to obtain its confidential documents and property in violation of subdivision (c)(1), (2), (3) and (7) of Penal Code section 502. Penal Code section 502 (“Section 502”), otherwise known as the Comprehensive Computer Data Access and Fraud Act, forbids various forms of unauthorized access or use of a computer, computer system, network or data. (See Pen. Code, § 502, subd. (c).) “One of the legislative purposes of Penal Code section 502 was ‘to deter and punish … browsers and hackers- outsiders who break into a computer system to obtain or alter the information contained there.’” (People v. Gentry (1991) 234 Cal.App.3d 131, 141, fn. 8.) Section 502 also provides that an owner of the computer, computer system or network may “[i]n addition to any other civil remedy available … bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief.” (Pen. Code, § 502, subd. (c)(1).) This is what APS attempts to do here.

Cassinelli first argues that APS’s claim fails because it cannot establish that he: used emails for any unlawful purpose; copied or used data without APS’s permission; used APS’s “computer services” under Section 502, subdivision (c)(3); and accessed the APS email system without permission. The foregoing assertions are not persuasive at this stage of the proceedings as they attack the underlying substantive merits of APS’s claims based on facts asserted in Cassinelli’s declaration. Not only does the Court refuse to consider the declaration, but a demurrer is not the appropriate instrument to resolve disputed issues of fact as all material facts pleaded are accepted as true. (See Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967; see also Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

Cassinelli next argues that APS’s first cause of action fails because he is exempt from liability under subdivision (c) of Section 502 because his conduct was within the scope of his employment. An individual acts within the scope of employment for the purposes of Section 502, subdivision (h) when he or she performs acts on a computer “reasonably necessary” to the performance of his or her work. (See Chrisman v. City of Los Angeles (2007) 155 Cal.App.4th 29, 35-37.) Here, APS pleads that Cassinelli accessed its confidential computer files “subsequent to his termination on May 11, 2012” or in “August 2012 and at other unknown times.” (Cross-Complaint, ¶ 12.) Cassinelli could not have been acting within the scope of his employment at that time as such employment had been terminated. Consequently, Cassinelli’s argument is without merit.

Finally, Cassinelli asserts that he is exempt from liability pursuant to subdivisions (h)(2) and (i) of Section 502 because his conduct did not cause injury. Subdivision (h)(2) of Section 502 creates a specific exemption to the crime defined in subdivision (c)(3), stating: “Paragraph (3) of subdivision (c) does not apply to any employee who accesses or uses his or her employer’s computer system, computer network, computer program, or data when acting outside the scope of his or her lawful employment, so long as the employee’s activities do not cause an injury ….” The crime contained in subdivision (c)(3) is: “Knowingly and without permission uses or causes to be used computer services.” This exemption is expanded to other crimes in subdivision (i) as follows: “No activity exempted from prosecution under paragraph (2) of subdivision (h) which incidentally violates paragraph (2), (4), or (7) or subdivision (c) shall be prosecuted under those paragraphs.”

At this stage of the proceedings, the Court cannot ascertain the applicability of the exemption provided by subdivision (h)(2), as APS alleges that it suffered injury due to Cassinelli’s conduct. With regard to the exemption provided by subdivision (i), even if it applies to APS’s claimed violations, it does not eliminate the first cause of action in its entirety. The exemption of subdivision (i) applies to incidental violations of paragraphs (2), (4) or (7) of subdivision (c), but in addition to alleging violations of these paragraphs, APS alleges that Cassinelli’s conduct violated paragraph (1) of subdivision (c). A demurrer does not lie to only a portion of a cause of action. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.) As the exemption would not apply to the first cause of action in its entirety, the demurrer cannot be sustained on this basis.

In accordance with the foregoing, Cassinelli’s demurrer to the first cause of action for violation of Penal Code section 502 on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.

APS’s second cause of action alleges that Cassinelli breached the Agreement with APS by not actually having been in a domestic partnership with Szebelski and/or by not notifying APS that the domestic partnership had terminated. Cassinelli’s assertion that it cannot be ascertained from the pleadings whether the contract sued upon is written, oral or implied by contract is well-taken. APS refers to the written Affidavit executed by Cassinelli and Szabelski separately from the purported “Agreement” upon which this cause of action is based and thus it is not clear what the exact nature of the contract at issue is.

Cassinelli additionally argues that to the extent that the affidavit of fault is the agreement on which the third cause of action is based, it suffers from a lack of consideration. Generally, a written instrument is presumptive evidence of consideration (Civ. Code, § 1614) and therefore consideration for a written contract need not be pleaded in the complaint. (See e.g., Huaide Ranch Co. v. Beebe (1935) 3 Cal.App.2d 592, 593.) However, as it is not certain what the exact nature of the “Agreement” is, this presumption is not applicable. Moreover, to the extent that the Affidavit itself is the written contract upon which the second cause of action is predicated, it is not clear what consideration, i.e., benefit, was conferred upon APS with its execution. (See Civ. Code, § 1550 [consideration is an essential element of a contract].)

Consequently, Cassinelli’s demurrer to the second cause of action for breach of written contract on the grounds of failure to state facts sufficient to constitute a cause of action and that it cannot be ascertained whether the contract sued upon is written, oral or implied by conduct is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

APS’s third cause of action alleges that Cassinelli breached the “Agreement” by not actually having been in a domestic partnership and/or not promptly notifying APS that his domestic partnership with Szabelski had terminated. (Cross-Complaint, ¶¶ 21-24.) Cassinelli asserts that this claim fails to state facts sufficient to constitute a cause of action because it does nothing more than repeat and re-allege the same allegations as the preceding claim for breach of contract. In other words, APS’s claim for breach of the implied covenant is duplicative. This argument is well-taken. “[W]here breach of an actual term is alleged, a separate implied covenant claim, based on the same breach, is superfluous.” (Id. at 327.) (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 327.) Consequently, because a breach of the implied covenant claim cannot be based on identical conduct as a breach of contract claim and the third cause of action mirrors the second, Cassinelli’s demurrer to the third cause of action for breach of the implied covenant of good faith and fair dealing on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.
For the reasons set forth above with respect to the breach of contract claim, Cassinelli’s demurrer to the third cause of action on the ground that it cannot be ascertained whether the contract sued upon is written, oral or implied by conduct is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

APS’s fourth cause of action for conversion alleges that Cassinelli and Szabelski “converted the sums and benefits paid by APS on behalf of Szabelski, as they were not actually involved in a domestic partnership” and that Cassinelli “converted APS’ documents and computer files by accessing and wrongfully taking or downloading APS’ confidential emails and other documents without APS’ knowledge or permission.” (Cross-Complaint, ¶¶ 26, 27.) Cassinelli asserts that the foregoing allegations are insufficient to state a claim for conversion because health insurance benefits paid do not qualify as property, no specific sum of money converted has been pleaded and APS has not specifically pleaded facts relating to how he accessed or downloaded confidential materials from APS’s computer system. These arguments are not persuasive.

First, APS has identified a specific some of money which was converted by Cassinelli and Szabelski: $23,200. (Cross-Complaint, ¶¶ 19, 25-20.) Second, Cassinelli conflates the pleading standard for fraud with a claim for conversion. There is no authority which provides that a cause of action for conversion must be pleaded with specificity. Finally, because APS has identified property which was converted by Cassinelli, i.e., money and confidential emails and documents, and a demurrer does not lie to only part of a cause of action, whether or not health benefits qualify as “property” subject to a conversion claim is irrelevant to whether a claim for conversion has been stated at this juncture.

Consequently, Cassinelli’s demurrer to the fourth cause of action for conversion on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.

APS’s fifth cause of action for fraud alleges that when Cassinelli and Szabelski signed the Affidavit and throughout the time that APS provided insurance benefits to Szabelski, they falsely represented that they were domestic partners in order to obtain insurance benefits for her. Cassinelli asserts that claims for fraud are traditionally disfavored and must be specifically pleaded. While these assertions are both correct, Cassinelli fails to articulate how APS has not met this pleading standard.

Consequently, Cassinelli’s demurrer to the fifth cause of action for fraud and deceit on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.

Cassinelli’s demurrer to the sixth cause of action for negligent misrepresentation on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED. APS has sufficiently alleged the falsity of Cassinelli’s representation via the executed Affidavit that he and Szabelski were in a domestic partnership.

Cassinelli’s demurrer to the seventh cause of action for promissory estoppel on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED. Cassinelli’s contention that it was unreasonable for APS to rely on the Affidavit to provide health insurance benefits to Szabelski is unavailing.