Case Number: BC563881 Hearing Date: February 13, 2015 Dept: 58
JUDGE ROLF M. TREU
DEPARTMENT 58
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Hearing Date: Friday, February 13, 2015
Calendar No: 9
Case Name: Talbott v. Fat Face Fenner’s Falloon Ltd., et al.
Case No.: BC563881
Motion: (1) Demurrer and Motion to Strike
(2) Demurrer
Moving Party: (1) Defendant Sister & Brother, LLC
(2) Defendant Tower Escrow, Inc.
Responding Party: No opposition filed
Notice: OK

Tentative Ruling: Demurrers are overruled. Motion to strike is granted without leave to amend. Defendants Sister & Brother, LLC and Tower Escrow, Inc. to answer within 10 days.
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On 11/13/14, Plaintiff Kevin Talbott filed this action against Defendants Fat Face Fenner’s Falloon Ltd.; Tower Escrow, Inc.; and Sister & Brother, LLC arising out of the purchase of a business “Paradise Sushi” located at 53 Pier Ave., Suites G & H, Hermosa Beach, CA. Plaintiff asserts causes of action for (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) intentional interference with contractual relations, and (4) declaratory relief. The 1st and 2nd COAs are asserted against Fat Face; the 3rd COA is asserted against Tower Escrow and Sister & Brother; and the 4th COA is asserted against all defendants. Sister & Brother and Tower Escrow have filed demurrers; Sister & Brother has also filed a motion to strike.

Demurrers –
1. Intentional Conduct
Sister & Brother and Tower Escrow (“Moving Parties”) demur to the 3rd COA on the ground that no facts are alleged as to conduct intended to cause interference with contractual relations. See, e.g., Ramona Manor Convalescent Hospital v. Care Enterprises (1986) 177 Cal.App.3d 1120, 1130. The Court disagrees.

Plaintiff has alleged that he entered into a purchase agreement for the business on 3/19/14 with Fat Face (Complaint ¶ 8, Ex. 1); however, Fat Face has agreed to sell the business to Sister & Brother (id. ¶¶ 12, 33) and opened an escrow through Tower Escrow to consummate the sale (id. ¶ 34). Plaintiff alleges that Moving Parties were aware of Plaintiff’s agreement (id. ¶ 32) but took their actions with the intent to induce breach of Plaintiff’s agreement (id. ¶ 33). At the pleading stage, this is sufficient to allege facts to support the 3rd COA.

Plaintiff’s allegation that he objected to the escrow upon learning of it (Complaint ¶ 35) does not indicate that Moving Parties were unaware of Plaintiff’s agreement at the time of their alleged interference. To the extent Tower Escrow argues that Plaintiff fails to allege the existence of a valid contract by asserting that Fat Face had already decided to cancel Plaintiff’s agreement, this improperly attempts to dispute the factual allegations at the pleading stage.

2. Declaratory Relief
Tower Escrow separately demurs to the 4th COA on the ground that it is only determines past wrongs. Fritz v. Superior Court (1936) 18 Cal.App.2d 232, 235. However, the declaratory relief claim seeks a declaration that Plaintiff’s agreement has not been terminated and that Fat Face is obligated to sell the business to Plaintiff instead of Sister & Brother. Complaint ¶ 42. This is not an improper declaratory relief claim.

3. Ruling
The demurrers are overruled.

Motion to Strike –
Sister & Brother moves to strike the claims for punitive damages and attorney fees. As to punitive damages, Sister & Brother correctly notes that no facts are alleged as to malice, oppression, or fraud; and punitive damages are not recoverable as to the 3rd COA. See Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 516.

As to attorney fees, Sister and Brother correctly notes that Plaintiff fails to allege any basis for the recovery of attorney fees based on statute or contract. See, e.g., Wiley v. Rhodes (1990) 223 Cal.App.3d 1470, 1474; Agricultural Ins. Co. v. Superior Court (1999) 70 Cal.App.4th 385, 405.

Therefore, the motion to strike is denied. In the absence of opposition, the Court is inclined to deny leave to amend.