Rotan Holdings v. AU Energy CA2/6 ( 2024 )

Filed 10/30/24 Rotan Holdings v. AU Energy CA2/6
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
ROTAN HOLDINGS, LLC, 2d Civ. No. B324832
(Super. Ct. No. 56-2018-
Plaintiff and Appellant, 00516210-CU-OR-VTA)
(Ventura County)
v.
OPINION ON REHEARING
AU ENERGY, LLC,
Defendant and Respondent.
Rotan Holdings, LLC, (Rotan) appeals from the judgment
in favor of respondent AU Energy, LLC (AU Energy), following a
court trial. Rotan contends the trial court erroneously ruled that
it had not proved slander of its title to a gas station. The ruling
was based on insufficiency of the evidence to establish that the
slander had caused Rotan to suffer a direct pecuniary loss. Rotan
also contends the trial court erroneously sustained, without leave
to amend, AU Energy’s demurrers to causes of action for breach
of an implied covenant of good faith and fair dealing and for
intentional/negligent interference with prospective economic
advantage. We affirm.
Factual and Procedural Background
In its opening brief Rotan expressly accepts the facts as
found by the trial court in its 19-page statement of decision.
Accordingly, we summarize the facts based on the statement of
decision and our review of the record.
This case concerns a gas station in Thousand Oaks,
hereafter “the property” or “the station.” Jenda, Inc. (Jenda), was
the lessee and operator of the station. Jenda was owned by
Samuil and Polina Preys.
Respondent AU Energy had a “contract with Shell”
Corporation whereby Shell would provide fuel to AU Energy,
which in turn would sell the fuel to gas stations. In January
2012 AU Energy and Jenda entered into a contract entitled,
“Retailer Product Sales Agreement” (RPSA). AU Energy agreed
to sell to Jenda, and Jenda agreed to buy, minimum quantities of
Shell-branded fuel over a 12-year period ending on January 31,
2024.
“The RPSA . . . required the gas station be ‘branded’ as a
‘Shell’ outlet, and Jenda was restricted to selling only fuel
purchased from AU [Energy] and bearing the ‘Shell’
identification. The RPSA provided that it could be terminated by
the mutual written agreement of the contracting parties. The
terms of such an agreement . . . were not specified.”
The RPSA’s first amendment, signed in January 2013, set
forth a formula for calculating AU Energy’s damages in the event
of Jenda’s early termination of the RPSA. The amendment
provided that the amount calculated pursuant to this formula
“constitutes a reasonable estimate of [AU Energy’s] damages”
and shall be paid by Jenda “within thirty (30) days of the date of
termination . . . as liquidated damages.”
2
AU Energy agreed to make a “‘$250,000 prepayment of
incentive money’” to Jenda. “A condition to the payment . . . was
that the station retain the ‘Shell’ identity over the 12-year term
of the RPSA.” The liquidated damages payable by Jenda upon
early termination of the RPSA included, inter alia, all of the
$250,000 incentive money if 48 months or more remained on the
contract.
When the RPSA was signed, AU Energy did not pay any
incentive money to Jenda. Jenda subsequently signed a security
agreement, and AU Energy paid Jenda $70,000 of the $250,000
incentive money.
In March 2016 appellant Rotan purchased the station for
$3.7 million. Rotan’s owner was Roman Preys, the son of Jenda’s
owners, Samuil and Polina Preys. The station continued to be
leased to and operated by Jenda.
In May 2016 Rotan executed a deed of trust (DOT) for the
benefit of AU Energy. The DOT encumbered the station and said
that it secured Rotan’s obligatory payments to AU Energy under
the RPSA. But Rotan was not a party to the RPSA, did not sign
it, and did not have any obligations under that contract. The
RPSA was signed by Jenda, a separate entity. Kpish Goyal, AU
Energy’s attorney who had drafted the DOT, testified that he had
committed “a typo” by saying that the DOT secured Rotan’s
obligations instead of Jenda’s.
“After the DOT was recorded, AU [Energy] paid Jenda the
rest of the [$250,000 incentive] money, [i.e.,] $180,000.” When
the DOT was being negotiated, Goyal sent an email to Rotan in
which he said the DOT “will secure the payment of the $250k
‘upfront’ investment.” But this $250,000 limitation was not
incorporated into the language of the DOT.
3
In 2017 Prenton, Inc., (Prenton) “took over . . . Jenda’s
position as the operator of the station.” Prenton was owned by
Roman Preys’ former wife, Tatiana Linton. Rotan states that
Prenton “succeeded to Jenda’s interest as the tenant of the
Station.”
“In early 2018, Rotan was presented with an opportunity to
sell the property to a third party, Moller Investment Group
(‘Moller’) for $11 million. . . . One condition of the sale was . . .
that the property be delivered with the gas station ‘unbranded.’
This meant terminating the RPSA.”1
Prenton’s owner, Tatiana Linton, was a disbarred attorney.
Despite her disbarment, she represented both Rotan and Prenton
in negotiations with AU Energy concerning the termination of the
RPSA. “Goyal informed Linton that AU [Energy] would agree to
terminate the RPSA in exchange for $1.3 million. More than half
of that sum was money that AU [Energy] would be required to
pay Shell as a penalty. The balance was calculated on the basis
of the liquidated damage[s] provision in the [first] amendment to
the RPSA. Linton objected to the sum. She expected that
Prenton would only be responsible for the liquidated damages.”
In its opening brief Rotan claims that the liquidated damages
would have been “no more than $524,100[,] not $1.3 million.”
On May 9, 2018, Linton emailed Goyal: “I have been
authorized to offer a compromise: Rotan will repay the entire
[$]180,000.00 [incentive money] advance in return for an
immediate re-conveyance of the . . . DOT. . . . [¶] In the event
the compromise offer is not accepted, . . . Rotan will initiate legal
1At trial in June 2022, Roman Preys opined that the
market value of the property had declined to between $6 and $6.5
million.
4
proceeding[s] to rescind the DOT and will seek damages to the
fullest extent allowed by law.” AU Energy did not accept Linton’s
offer. It insisted that the DOT secured all of Jenda’s obligations
under the RPSA without a dollar limit.
Moller “terminated the purchase agreement [of the station]
because Rotan could not deliver [the] property ‘unbranded.’”
Rotan’s Operative Third Amended Complaint
For purposes of this appeal, the only relevant causes of
action are the first for declaratory relief and the third for slander
of title. The first cause of action sought a judicial declaration
that (1) the DOT secures Jenda’s obligations under the RPSA up
to a maximum of $180,000, and (2) Rotan “is entitled to a
reconveyance of the [DOT] upon payment of the sum of $180,000
to [AU Energy].”
The third cause of action alleged that AU Energy had
slandered Rotan’s title to the property by wrongfully
“contend[ing] that [Rotan] has agreed by entering into the [DOT]
to guarantee [without limitation] all of the performance
obligations of Jenda under the [RPSA].” Rotan claimed that, as a
result of the slander of title, it “has been unable to accept an offer
from a ready, willing and able buyer to purchase the [property]
for $11 million because the [DOT] encumbers and impairs the
title of the [property].”
AU Energy’s Cross-Complaint
AU Energy filed a cross-complaint. It consisted of two
causes of action. The first cause of action sought to reform the
DOT so that instead of securing the performance of Rotan’s
obligations under the RPSA, the DOT would secure the
performance of Jenda’s obligations under the same instrument.
The second cause of action sought a judicial declaration that the
5
DOT secures all of Jenda’s obligations under the RPSA with no
dollar limit, not just obligations up to $180,000 as contended by
Rotan.
Trial Court’s Judgment
Following a court trial, judgment was entered “order[ing] a
judicial declaration that, notwithstanding the actual words of the
[DOT stating that it secured Rotan’s obligations under the
RPSA],” the DOT actually secured “all performance and payment
obligations [of] Jenda, or its successors, owed to AU Energy . . .
under the [RPSA] in an amount not to exceed $250,000.” The
judgment stated, “Rotan has not proven its claim for slander of
title and no relief is awarded for that claim.”
Slander of Title
“Slander or disparagement of title occurs when a person,
without a privilege to do so, publishes a false statement that
disparages title to property and causes the owner thereof ‘“some
special pecuniary loss or damage.”’ [Citation.] The elements of
the tort are (1) a publication, (2) without privilege or justification,
(3) falsity, and (4) direct pecuniary loss. [Citations.] If the
publication is reasonably understood to cast doubt upon the
existence or extent of another's interest in land, it is disparaging
to the latter's title. [Citation.] The main thrust of the cause of
action is protection from injury to the salability of property
[citations], which is ordinarily indicated by the loss of a
particular sale, impaired marketability or depreciation in value
[citations].” (Sumner Hill Homeowners’ Assn., Inc. v. Rio Mesa
Holdings, LLC (2012) 205 Cal.App.4th 999, 1030.)
6
The Trial Court Did Not Err in Finding for
AU Energy on the Slander of Title Cause of Action
The slander of title cause of action was based on AU
Energy’s mischaracterization of the extent of Rotan’s liability
under the DOT. AU Energy wrongly claimed that the DOT
secured all of Jenda’s obligations under the RPSA with no dollar
limit. The court found that the DOT secured Jenda’s obligations
up to $250,000. In its statement of decision, the trial court said
Rotan was not entitled to judgment in its favor because it had
failed to establish the tort’s fourth element – AU Energy’s
allegedly slanderous publication had caused Rotan to suffer a
direct pecuniary loss. “The publication of an injurious falsehood
is a legal cause of pecuniary loss if [] it is a substantial factor in
bringing about the loss . . . .” (Restatement (Second) of Torts
(1977) § 632.)
The trial court noted that Rotan “contends it was harmed
in two ways by AU [Energy’s] mischaracterization of the
obligation secured by the DOT: the loss of the Moller deal and the
loss of the [ability to refinance the loans on the property].” In its
opening brief Rotan “concedes it did not suffer . . . a loss as to the
. . . inability to refinance its existing loans.”
As to the alleged loss of the Moller deal, the trial court
stated: “It was AU [Energy’s] refusal to terminate the RPSA on
terms agreeable to Prenton [Jenda’s successor in interest], and
not AU [Energy’s] mischaracterization of the DOT, that caused
Rotan to lose the Moller deal. Therefore, Rotan has not proved
that it suffered a ‘direct and immediate pecuniary loss’ from AU
[Energy’s] allegedly defamatory statement.” “[T]he existence of
the DOT was totally irrelevant to what transpired: Rotan’s
motivation (i.e., to sell the property), the prejudice claimed by
7
Rotan (i.e., loss of the Moller deal), and the cause of the prejudice
(i.e., the disagreement over terms of [the] termination agreement)
would have been the same even if the property was not
encumbered by a deed of trust.” In other words, irrespective of
the DOT, AU Energy would still have demanded that Prenton
pay $1.3 million to terminate the RPSA, and Prenton would have
refused to pay this amount because it believed it was responsible
only for liquidated damages of “no more than $524,100.” Moller
would not have purchased the property because, without the
termination of the RPSA, Rotan could not have delivered the
station “unbranded.”
Rotan contends the standard of review “is de novo because
the facts found by the trial court are not disputed . . . .” “[W]here
the facts on appeal are settled or not in dispute, the
determination of proximate cause becomes a question of law.”
(Sabella v. Wisler (1963) 59 Cal.2d 21, 32; accord, Mission
National Ins. Co. v. Coachella Valley Water Dist. (1989) 210
Cal.App.3d 484, 492.) “[T]o the extent pure questions of law were
decided by the trial court upon undisputed facts, a de novo
standard will apply at the appellate level.” (Bhatt v. State Dept.
of Health Services (2005) 133 Cal.App.4th 923, 928.) We
therefore exercise our independent judgment based on the facts
found by the trial court in its statement of decision.
In the statement of decision’s section entitled “Factual
Findings,” the trial court found as follows: “On January 24,
2018, Goyal informed Linton that AU [Energy] would agree to
terminate the RPSA in exchange for $1.3 million[, more than
twice the amount provided by the RPSA’s liquidated damages
clause]. . . . Linton objected to the sum. She expected that
Prenton would only be responsible for the liquidated damages.
8
The discussions stalled at that point.” “Prenton and AU [Energy]
could not come to terms on an agreement to terminate the RPSA,
and with the RPSA in place, the gas station remained ‘branded.’”
“One condition of the sale [of the gas station] was . . . that the
property be delivered with the gas station ‘unbranded.’ This
meant terminating the RPSA.” “Moller . . . terminated the
purchase agreement because Rotan could not deliver [the]
property ‘unbranded.’”
Based on the above factual findings, we agree with the
trial court that “[i]t was AU [Energy’s] refusal to terminate the
RPSA on terms agreeable to Prenton, and not AU [Energy’s]
mischaracterization of the DOT [i.e., not its alleged slander of
Rotan’s title to the property], that caused Rotan to lose the Moller
deal.” Accordingly, Rotan failed to prove an essential element of
its cause of action for slander of title -- the allegedly slanderous
publication caused Rotan to suffer a direct pecuniary loss.
Demurrer
“A demurrer tests the legal sufficiency of factual allegations
in a complaint. [Citation.] A trial court’s ruling sustaining a
demurrer is erroneous if the facts alleged by the plaintiff state a
cause of action under any possible legal theory. [Citations.]” (Lee
Newman, M.D., Inc. v. Wells Fargo Bank (2001) 87 Cal.App.4th
73, 78.)
“[W]e apply the de novo standard of review in an appeal
following the sustaining of a demurrer . . . .” (California
Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242,
247 (California Logistics).) “[W]e assume the truth of all facts
properly pleaded in the complaint and its exhibits or
attachments, as well as those facts that may fairly be implied or
inferred from the express allegations. [Citation.] ‘We do not,
9
however, assume the truth of contentions, deductions, or
conclusions of fact or law.’ [Citation.]” (Cobb v. O’Connell (2005)
134 Cal.App.4th 91, 95.)
On appeal, “[t]he plaintiff has the burden of showing that
the facts pleaded are sufficient to establish every element of the
cause of action and overcoming all of the legal grounds on which
the trial court sustained the demurrer, and if the defendant
negates any essential element, we will affirm the order
sustaining the demurrer as to the cause of action. [Citation.]”
(Martin v. Bridgeport Community Assoc., Inc. (2009) 173
Cal.App.4th 1024, 1031.)
“[I]t is an abuse of discretion for the court to sustain a
demurrer without leave to amend if the plaintiff has shown there
is a reasonable possibility a defect can be cured by amendment.”
(California Logistics, supra, 161 Cal.App.4th at p. 247.) “‘“[S]uch
a showing can be made for the first time to the reviewing
court . . . .”’” (Allen v. San Diego Convention Center Corp., Inc.
(2022) 86 Cal.App.5th 589, 597.)
The Breach of Covenant Cause of Action
Rotan contends the trial court erroneously sustained,
without leave to amend, a demurrer to its cause of action for
breach of the DOT’s implied covenant of good faith and fair
dealing. The cause of action alleged that, “by failing . . . to accept
the payment [by Rotan] of the full amount of the [DOT’s]
Guarantee, $180,000, . . . [AU Energy] has breached the implied
covenant of good faith and fair dealing implicit within the
[DOT].”
We need not determine whether, at the time of its ruling,
the trial court erroneously sustained the demurrer to the breach
of covenant cause of action without leave to amend. If the trial
10
court had so erred, the error would not have been prejudicial
because in its judgment the court found that the DOT secured
“all performance and payment obligations [of] Jenda . . . under
the [RPSA] in an amount not to exceed $250,000.” Rotan does
not challenge this finding. Thus, AU Energy was under no
obligation to accept Rotan’s offer to pay only $180,000 for the
reconveyance of the DOT. (See Curtis v. Twentieth Century-Fox
Film Corp. (1956) 140 Cal.App.2d 461, 464-465 [no prejudicial
error in sustaining demurrer without leave to amend because at
trial a similar claim was resolved against plaintiff]; Arp v. Blake
(1923) 63 Cal.App. 362, 370-371 [trial court erred in sustaining
demurrer as to a cause of action, but error was not prejudicial
because the court tried the same issues in a different cause of
action and found in favor of defendant].)
The lack of prejudice is fatal to Rotan’s claim of error: “Our
state Constitution provides that ‘[n]o judgment shall be set aside,
or new trial granted, in any cause, . . . for any error as to any
matter of procedure, unless, after an examination of the entire
cause, including the evidence, the court shall be of the opinion
that the error complained of has resulted in a miscarriage of
justice.’ (Cal. Const., art. VI, § 13.) ‘The effect of this provision is
to eliminate any presumption of injury from error, and to require
that the appellate court examine the evidence to determine
whether the error did in fact prejudice the defendant. . . .’”
(Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)
Rotan claims AU Energy breached an implied covenant of
good faith and fair dealing when it demanded that Prenton pay
$1.3 million to terminate the RPSA. Rotan argues that the
complaint “could have been amended to more clearly allege the
11
content and effect of [AU Energy’s] . . . [d]emand and thereby
clearly state its cause of action.” (Fn. omitted.)
But Rotan was a party only to the DOT, which guaranteed
Jenda’s/Prenton’s obligations to AU Energy up to $250,000.
Rotan fails to adequately explain how AU Energy’s demand
concerning termination of the RPSA could have violated the
DOT’s implied covenant of good faith and fair dealing. Because
Rotan was not a party to the RPSA, it did not have standing to
complain of AU Energy’s violation of the RPSA’s implied
covenant. “An allegation of breach of the implied covenant of
good faith and fair dealing is an allegation of breach of an ‘ex
contractu’ obligation, namely one arising out of the contract
itself.” (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654,
690.) “[T]he implied covenant protects only the parties’ right to
receive the benefit of their agreement . . . .” (Id. at p. 698, fn. 39;
see also Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 349
[“The covenant of good faith and fair dealing . . . exists merely to
prevent one contracting party from unfairly frustrating the other
party’s right to receive the benefits of the agreement actually
made”].)
Rotan argues that, “as a matter of law, [it] was a party to
the ‘agreement’ (i.e., the RPSA) as a result of its status as surety”
for the performance of Jenda’s obligations under the RPSA.
Rotan contends, “The DOT . . . was a surety deed of trust because
it secured the obligation of a third party,” i.e., Jenda. Rotan has
not shown that, merely because it executed the DOT as a surety,
it stepped into Jenda’s shoes and was entitled to assert against
AU Energy the same claims that Jenda was entitled to assert
under the RPSA.
12
In support of Rotan’s claim that it was a party to the RPSA,
Rotan cites C.O. Sparks, Inc. v. Pacific Coast Paving Co. (1958)
159 Cal.App.2d 513 (Sparks). There, a building contractor
furnished a bond guaranteeing its performance of a construction
contract. The appellate court stated: “‘A bond which is given for
the faithful performance of a contract, to which it refers, binds
the surety for labor performed and materials furnished
thereunder as completely as though the surety were a party to
the contract. . . . “It is also elementary that a bond given to
guarantee the execution of a contract according to its terms
becomes a part of such contract, and to that contract the sureties
become parties the same as though they had actually made and
executed the contract itself. Therefore, in interpreting the
language of the undertaking for the purpose of gathering its
scope or the measure of the liability of the sureties, we must do so
by treating or viewing the contract and the undertaking as a
whole or as constituting an indivisible contract.”’” (Id. at p. 517,
italics added.)
The above-quoted passage from Sparks is inapplicable here
because (1) the DOT is not a construction performance bond, and
(2) the DOT merely refers to the RPSA without incorporating its
terms. In Sparks the court noted, “The bond which was furnished
in this case incorporated the contract therein, and thereby all of
the provisions of the contract became provisions of the bond as a
performance bond.” (Sparks, supra, 159 Cal.App.2d at p. 517; see
Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28,
52 (Cates Construction) [“performance bonds typically incorporate
the underlying construction contract”].)2
2 “A [construction] performance bond protects against loss
caused by the contractor's failure to complete the contract and
13
Furthermore, the above-quoted passage from Sparks
should not be taken literally: “The obligation of a surety is based
solely on the bond, and it is frequently stated that sureties are
never bound beyond the strict letter of their contract, but the
underlying contract may be considered to assist in interpreting
and measuring the extent of that obligation, especially where the
underlying contract is incorporated by reference into the bond.
The surety does not become a party to the underlying contract, but
because the scope of the surety’s obligation is determined by
reference to that contract, it is sometimes said that sureties
become parties the same as though they had executed the
underlying contract.” (9 Miller & Starr, supra, at § 32:97, fns.
omitted, italics added; see Gordon Bldg. Corp. v. Gibraltar Sav. &
Loan Ass’n (1966) 247 Cal.App.2d 1, 5-6 [“One who . . .
guarantees the payment of a debt is not thus made a direct party
pay all providers of labor and materials. The general provisions
of the bond state that the surety will complete the project or pay
for the cost of completion of the construction upon the contractor's
failure to perform. The obligee usually is the owner, the lender,
or both.” (9 Miller & Starr, Cal. Real Est. § 32:92 (4th ed., Sept.
2024 update).) If such a performance bond is furnished and “the
contractor fails to complete, the surety can step in and hire
another contractor to complete the project or pay the owner its
additional costs (above the contract price) to complete the project,
up to the maximum amount of the bond . . . . [¶] [] If the surety
refuses without justification to complete the construction
contract, the obligee may complete the project in accordance with
the direct contract and, after proving the amounts expended were
reasonable, recover from the surety in excess of the contract
balance.” (Croskey et al., California Practice Guide: Insurance
Litigation (The Rutter Group 2023) ¶¶ 6:2938-6:2939.)
14
to a financing agreement between the creditor and the primary
obligor”].)
The trial court aptly noted: “I can certainly see an
argument that Jenda could make that, ‘Hey, there’s a contract
provision [in the RPSA] that says we can terminate this
agreement by mutual consent. . . . You took unfair advantage of
us by asking for more than you were ever entitled to [under the
RPSA].’ [¶] I can see Jenda making that argument. [¶] But I’m
having trouble . . . understanding how Rotan, who is not a party
to this agreement [the RPSA], gets to make that argument.”
Causes of Action for Intentional and Negligent
Interference with Prospective Economic Advantage
The trial court sustained, without leave to amend,
demurrers to Rotan’s two causes of action alleging intentional
and negligent interference with prospective economic advantage.
“[T]he elements of the tort of intentional interference with
prospective economic advantage . . . are usually stated as follows:
‘“(1) an economic relationship between the plaintiff and some
third party, with the probability of future economic benefit to the
plaintiff; (2) the defendant's knowledge of the relationship; (3)
intentional acts on the part of the defendant designed to disrupt
the relationship; (4) actual disruption of the relationship; and (5)
economic harm to the plaintiff proximately caused by the acts of
the defendant.” . . . ’” (Korea Supply Co. v. Lockheed Martin
Corp. (2003) 29 Cal.4th 1134, 1153.)
“The tort of negligent interference with prospective
economic advantage is established where a plaintiff demonstrates
that (1) an economic relationship existed between the plaintiff
and a third party which contained a reasonably probable future
economic benefit or advantage to plaintiff; (2) the defendant knew
15
of the existence of the relationship and was aware or should have
been aware that if it did not act with due care its actions would
interfere with this relationship and cause plaintiff to lose in
whole or in part the probable future economic benefit or
advantage of the relationship; (3) the defendant was negligent;
and (4) such negligence caused damage to plaintiff in that the
relationship was actually interfered with or disrupted and
plaintiff lost in whole or in part the economic benefits or
advantage reasonably expected from the relationship.” (North
American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th
764, 786.)
Rotan’s causes of action for intentional and negligent
interference with prospective economic advantage alleged that,
by refusing to accept its offer to pay $180,000 for the
reconveyance of the DOT, AU Energy had deprived Rotan of “its
prospective economic advantage in obtaining . . . the sale of the
Subject Property . . . .” The trial court did not prejudicially err in
sustaining the demurrers to these causes of action without leave
to amend because it found that the DOT secured Jenda’s
obligation up to $250,000. Thus, AU Energy was under no
obligation to reconvey the DOT in return for Rotan’s payment of
only $180,000.
Rotan contends that, by demanding that Prenton, Jenda’s
successor in interest, pay $1.3 million to terminate the RPSA, AU
Energy intentionally or negligently interfered with Rotan’s
prospective economic advantage. This contention is actually a
breach of contract claim. Rotan is claiming that AU Energy
demanded more than it was entitled to receive under the RPSA.
But Rotan was not a party to the RPSA. The claim belongs to
Prenton, not Rotan.
16
Even if Rotan had been a party to the RPSA, it would not
have been entitled to recovery in tort. “[A]n actor's breach of
contract, without more, is not ‘wrongful conduct’ capable of
supporting a tort [citations], including the tort of intentional
interference with a prospective economic advantage [citations].”
(Drink Tank Ventures LLC v. Real Soda in Real Bottles, Ltd.
(2021) 71 Cal.App.5th 528, 533; see also Erlich v. Menezes (1999)
21 Cal.4th 543, 552 [“‘[C]ourts will generally enforce the breach
of a contractual promise through contract law, except when the
actions that constitute the breach violate a social policy that
merits the imposition of tort remedies’”]; Cates Construction,
supra, 21 Cal.4th at p. 44 [“this court has never recognized the
availability of tort remedies for breaches occurring in the context
of a construction performance bond or any other so-called
‘contract of suretyship’”]; id., at p. 43 [“Because the covenant of
good faith and fair dealing essentially is a contract term that
aims to effectuate the contractual [promise of the parties],
‘compensation for its breach has . . . always been limited to
contract rather than tort remedies’”].)
Rotan argues that the trial court erroneously sustained the
demurrer without leave to amend because there is a reasonable
possibility it could amend the complaint to “state a cause of
action for interference with the Moller contract.” The argument
is forfeited because it is not supported by meaningful analysis
with supporting citations to authority and the record on appeal.
(Fernandes v. Singh (2017) 16 Cal.App.5th 932, 942-943.)
Disposition
The judgment is affirmed. AU Energy shall recover its
costs on appeal.
17
NOT TO BE PUBLISHED.
YEGAN, Acting P. J.
We concur:
BALTODANO, J.
CODY, J.
18
Mark S. Borrell, Judge
Superior Court County of Ventura
______________________________
Law Offices of Roger N. Golden and Roger N. Golden, for
Plaintiff and Appellant.
Troutman Pepper Hamilton Sanders and Peter N. Villar,
Andrick J. Zeen and Elizabeth Holt Andrews, for Defendant and
Respondent.