Filed 5/28/14 Ram Pizza v. Super. Ct. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



RAM PIZZA, INC., et al.,

         Petitioners,                                                    E060399

v.                                                                       (Super.Ct.No. RIC 1100608)

THE SUPERIOR COURT OF                                                    OPINION
RIVERSIDE COUNTY,

         Respondent;

DOMINOS PIZZA, et al.,

         Real Parties in Interest.




         ORIGINAL PROCEEDINGS; petition for writ of mandate. Richard J.

Oberholzer, Judge. (Retired Judge of the Kern Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Granted in part and denied in part.

         Reid & Hellyer, Michael G. Kerbs and David G. Moore for Petitioners.

         No appearance for Respondent.




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       Kolar & Associates, Elizabeth L. Kolar and Michelle A. Burr for Real Parties in

Interest.

       In this matter we have reviewed the petition and the opposition filed by real parties

in interest. We have determined that resolution of the matter involves the application of

settled principles of law, and that issuance of a peremptory writ in the first instance is

therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171,

178.) We will grant the petition in part and deny in part.

                                       DISCUSSION

       With respect to petitioners’ cause of action for breach of contract, real parties

relied on the fact that petitioners never presented a formal request for approval of the

transfer of the franchises and the required information about the proposed transferee.

However, petitioners’ assertion that real parties’ representative clearly informed

petitioners that the proposed transferee would not be approved could, on a persuasive and

detailed evidentiary showing, be found to excuse petitioners’ failure to perform that

condition or obligation. (See generally Civ. Code, §§ 1440, 1515; San Bernardino Valley

Water Development Co. v. San Bernardino Valley Municipal Water Dist. (1965) 236

Cal.App.2d 238.) Hence, in our view this cause of action should have been allowed to

proceed to trial.




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       As petitioners point out in their petition for rehearing, substantially the same

analysis applies to the cause of action for breach of the implied covenant of good faith

and fair dealing, and we granted rehearing to consider that issue. Real parties in interest

argue again that conduct which is not a breach of contract cannot support a claim for

breach of the implied covenant, and we agree. (See Agosta v. Astor (2004) 120

Cal.App.4th 596, 607.) But the gravamen of petitioners’ claims is that real parties in

interest did not exercise their right of refusal in good faith when they allegedly informed

petitioners that the proposed transferee was not acceptable. If supported by sufficient

evidence, this would also permit petitioners to pursue a claim of breach of the implied

covenant of good faith.

                                      DISPOSITION

       Let a peremptory writ of mandate issue, directing the Superior Court of Riverside

County to vacate its order granting summary adjudication of the causes of action for

breach of contract and breach of the implied covenant of good faith and fair dealing, and

to enter a new order denying real parties’ motion in that respect. In all other respects the

petition is denied.




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         Petitioners are directed to prepare and have the peremptory writ of mandate

issued, copies served, and the original filed with the clerk of this court, together with

proof of service on all parties. In the interests of justice, the parties shall bear their own

costs.

         NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                  KING
                                                                                                 J.
We concur:



RICHLI
                  Acting P. J.



MILLER
                            J.




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