Case Number: KC067019    Hearing Date: January 05, 2015    Dept: O

Phu, et al. v. Phu, et al. (KC066267)
Consolidated with: Phu, et al v. Phu, et al. (KC067019)

1. Defendants Phun Phu, et al.’s DEMURRER TO COMPLAINT

Respondent: Plaintiffs Quan Phu, et al.

2. Defendants Phun Phu, et al.’s MOTION TO STRIKE

Respondent: Plaintiffs Quan Phu, et al.

TENTATIVE RULING

1-2. Defendants Phun Phu, et al.’s demurrer to complaint is OVERRULED as to the 5th – 14th causes of action. The court will hear from Plaintiffs regarding the 15th cause of action. Motion to strike is DENIED.

5th – 6th CAUSES OF ACTION:

DEFAMATION/SLANDER and SLANDER PER SE:
The elements for a cause of action for Defamation are: 1) intentional publication; 2) of statement of fact; 3) that is false; 4) defamatory; 5) unprivileged; and 6) has a natural tendency to injure or that causes special damages. The elements for a cause of action for Slander are: 1) false and unprivileged publication; 2) orally uttered to third persons; and 3) naturally tending directly to injure a person, in respect to office, profession, trade or business (slander per se), or special damages. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106; Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203; Smith v. Maldonado (1999) 72 Cal. App. 4th 637, 645; Taus v. Loftus (2007) 40 Cal.4th 683, 720; Campanelli v. Regents of the Univ. of Cal. (1996) 44 Cal. App. 4th 572, 578 – determination whether alleged defamation is fact or opinion is a question of law, suitable for resolution by demurrer, unless the court concludes that the alleged statement reasonably could be construed either as fact or opinion, in which case, the issue should be resolved by a jury; Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 798 – opinions are protected communications unless a reasonable fact finder could find, under totality of circumstances, that they imply a provably false assertion of fact; Ellenberger v. Espinosa (1994) 30 Cal. App. 4th 943, 951 – may allege specific words, or the substance of statements, although not merely conclusions; Farr v. Bramblett (1955) 132 Cal. App. 2d 36, 46 – pleaders not required to allege to whom matters were published, but instead alleging matter was “published” is sufficient), overruled on other grounds by Field Research Corp. v. Sup. Ct. (1969) 71 Cal. 2d 110, 114; Ringler Associates Inc. v. Maryland Cas. Co. (2000) 80 Cal.App.4th 1165, 1179 – “Publication need not be to the public or a large group; communication to a single individual is sufficient.”)

Pars. 74 and 84 allege that the defamatory statement was heard “by several other persons whose names have not yet been discovered.” Defendants contend the allegations are vague because the complaint does not allege to whom the publication was made. However, pleaders are not required to allege to whom matters were published, but instead alleging matter was “published” is sufficient. (Farr v. Bramblett (1955) 132 Cal. App. 2d 36, 46 – overruled on other grounds by Field Research Corp. v. Sup. Ct. (1969) 71 Cal. 2d 110, 114.) Demurrer is OVERRULED.

7th CAUSE OF ACTION:
WRONGFUL REMOVAL AS CORPORATE DIRECTORS/OFFICERS:

Defendants contend the claim is uncertain because it cannot be ascertained whether the purported employment contract is written or oral. However, this cause of action does not require a contract. Pars. 93-95 merely allege that Plaintiffs were wrongfully removed as officers and/or directors. Demurrer is OVERRULED.

8th – 11th CAUSES OF ACTION:
WRONGFUL TERMINATION OF EMPLOYMENT, BREACH OF IMPLIED AND/OR EXPRESS CONTRACT OF EMPLOYMENT, BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING, and INDUCING BREACH OF CONTRACT:

Defendants contend the claims are uncertain because it cannot be ascertained whether the purported employment contract is written or oral. However, Pars. 103 and 110 specifically allege that Cal Poultry Vikon and Cal Fresh Vikon promised BY WORDS AND CONDUCT to discharge Plaintiffs only for good cause. The contract is therefore oral. Although the Complaint alleges “express and implied promises,” Plaintiffs admit that the contracts are not “written.” (Opposition, 5:10-13.) To avoid confusion, the Clerk is ordered to strike the word “express” in Pars. 110. As corrected, demurrer is OVERRULED.

12th – 14th CAUSES OF ACTION:
INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS, INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE, and NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE:

Defendants contend that the interference claims fail to allege an employment contract. However, the oral employment contract is adequately alleged above.

Defendants alternatively contend that the negligent interference claim fails to allege a special relationship between Plaintiffs and Defendants. However, the elements for a cause of action for Negligent Interference with Prospective Economic Relations are: 1) ECONOMIC RELATIONSHIP BETWEEN THE PLAINTIFF AND A THIRD PARTY; 2) that contained a reasonably probable future economic benefit or advantage to plaintiff; 3) defendant knew of the existence of the relationship and was aware, or should have been, that if it did not act with due care, its actions would interfere with the relationship and cause plaintiff to lose in whole or in part the probable future economic benefit or advantage; 4) the defendant was negligent; 5) the negligence caused damage to plaintiff because of actual interference or disruption; and 6) plaintiff lost in whole or in part the economic benefits or advantage reasonably expected from the relationship. (North Amer. Chem. Co. v. Sup. Ct. (1997) 59 Cal. App. 4th 764, 786.) Here, Par. 157 alleges an employment relationship between Plaintiffs and the corporations, and Pars. 160-161 allege that Defendants disrupted that economic relationship by removing Plaintiffs as officers and directors of the corporations. A special relationship is not required between Plaintiffs and the individual Defendants.

Defendants also contend the conspiracy claim fails to allege predicate torts. However, the predicate tort is the interference claim.

Demurrer is OVERRULED.

15th CAUSES OF ACTION: CONSPIRACY TO DEFRAUD/INTERFERE:
The court notes that Plaintiffs are alleging both a claim for conspiracy to defraud and conspiracy to interfere. If Plaintiffs are also alleging fraud, then demurrer will be sustained with 10 days leave to amend because the fraud allegations fail for lack of specificity. If Plaintiffs waive the fraud claim and base their conspiracy claim only on the interference claims, then demurrer will be overruled. The court will hear from Plaintiffs at the hearing.

Motion to strike punitive damages is DENIED based on the wrongful termination and intentional interference claims.