Preview
1 ELSE E. WOLFF
7780 JENNA DR.
2 GOLETA, CALIFORNIA, 93117
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5 ELSE E. WOLFF, IN PRO PER
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SANTA BARBARA
10 -Cook Division-
11 ELSE E. WOLFF, an individual, ) Case No.: 20CV01552
)
12 Plaintiff, )
)
13 vs. )
) PLAINTIFF’S
14 SANTA YNEZ RIVER WATER ) OPPOSITION TO DEMURRER
CONSERVATION DISTRICT, a public entity, ) TO PLAINTIFF’S SECOND AMENDED
15 and DOES 1 through 50, inclusive, ) COMPLAINT
)
16 )
Defendant(s). )
17 )
) Date: September 7, 2022
18 ) Time: 8:30 a.m.
) Dept.: SM-3
19 ) Judge: Hon. Timothy J. Staffel
)
20 )
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21 )
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23 )
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PLAINTFIFF’S OPPOSITION TO DEMURRER
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1. Plaintiff Else E. Wolff hereby opposes the Defendant’s Demurrer to Plaintiff’s
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Second Amended Complaint, filed on 4/27/22, on the following grounds:
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PLAINTIFF’S OPPOSITION TO DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
1 INTRODUCTION
2 2. The Plaintiff’s Second Amended Complaint for Damages, dated 4/27/22, is referred
3 to herein as “Complaint” or “Compl.” The Defendant’s Demurrer to Plaintiff’s Second Amended
4 Complaint, filed on 6/29/22, is referred to herein as “Demurrer.” This document, Plaintiff’s
5 Opposition to Demurrer to Plaintiff’s Second Amended Complaint, is referred to herein as
6 “Opposition to Demurrer.”
7 3. In the Demurrer, the Defendant contends that Plaintiff has not alleged sufficient facts
8 in the Complaint to constitute a cause of action for the following causes of action:
9 • the second cause of action (breach of contract), and
10 • the third cause of action (breach of implied covenant of good faith and fair dealing).
11 4. To support its argument, the Defendant ignores the legal standard governing
12 demurrers, ignores most facts alleged in the Complaint, applies indiscriminate and unwarranted
13 blanket “uncertainty.”
14 5. Although the written contract was pleaded by attaching a complete copy of the
15 written contract to the Complaint as EXHIBIT 1 and incorporating it into the complaint by
16 reference,1 the Defendant continues to deny, in bad faith, the written contract exists. In doing so,
17 the Defendant incurs new tort liability.2
18 6. The Complaint pleads facts supporting each essential element of (1) contract
19 formation, (2) breach of contract, and (3) breach of implied covenant of good faith and fair dealing,
20 as this Opposition to Demurrer demonstrates.
21 7. For these reasons, the Demurrer is without merit and should be overruled.
22 STATEMENT OF RELEVANT FACTS
23 8. The written contract was pleaded by alleging its making, attaching a copy to the
24 Complaint (Compl. EXHIBIT 1), and incorporating it by reference into the Complaint, as follows:
25
26 1
A written contract may be pleaded by attaching a complete copy and incorporating it in the complaint by reference.
(Int’l Billing Servs. v. Emigh (2000) 84 CA4th 1175, 1187, 101 CR2d 532).
27 2
In Seaman's Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 206 Cal.Rptr. 354, 686 P.2d 1158,
the Supreme Court “recognize[d] that a party to a contract may incur tort remedies when, in addition to breaching the
28 contract, it seeks to shield itself from liability by denying, in bad faith and without probable cause, that the contract
exists.” (Id. at p. 769, 206 Cal.Rptr. 354, 686 P.2d 1158.)
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PLAINTIFF’S OPPOSITION TO DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
1 “Plaintiff was employed by Defendant under written agreement (i.e., employment contract) between
2 Defendant and Plaintiff, hereinafter referred to as “agreement.” On or about December 29, 2017,
3 Plaintiff and Defendant entered into this agreement, a copy of which is attached as EXHIBIT 1 and
4 is hereby made a part of this Complaint.” (Compl. ¶ 105).
5 LEGAL ARGUMENT
6 9. Judicial policy favors resolving cases on their merits rather than through technical
7 challenges to the pleadings. A demurrer raises issues of law, not fact, regarding the opposing party’s
8 pleading. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) A court is to
9 assume all facts pled in the Complaint to be true and may not consider facts asserted in
10 memorandum supporting demurrer. (Afuso v. U.S. Fid. & Guar. Co., Inc. (1985) 169 Cal. App. 3d
11 859, 862; Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.)
12 10. As mentioned, the Defendant also contends that both causes of action are uncertain.
13 Uncertainty is a disfavored argument for demurrer. “A demurrer for uncertainty is strictly
14 construed, even where a complaint is in some respects uncertain, because ambiguities can be
15 clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc., (1993) 14 Cal. App.
16 4th 612, 615, citing 5 Witkin, Cal. Pro. Pleading, § 927, (3d ed. 1985); Weil & Brown et al., Cal.
17 Prac. Guide: Civ. Pro. Before Trial § 7:85 (The Rutter Group 2011).)
18 I. CONTRACT FORMATION
19 11. Plaintiff entered into a written contract with Defendant. (Compl. ¶ 105). The written
20 contract was pleaded by alleging its making, attaching a copy to the Complaint (Compl. EXHIBIT
21 1), and incorporating it by reference into the Complaint, as follows: “Plaintiff was employed by
22 Defendant under written agreement (i.e., employment contract) between Defendant and Plaintiff,
23 hereinafter referred to as “agreement.” On or about December 29, 2017, Plaintiff and Defendant
24 entered into this agreement, a copy of which is attached as EXHIBIT 1 and is hereby made a part of
25 this Complaint.” (Compl. ¶ 105).
26 Essential Elements (Contract Formation)
27 12. The California Civil Code § 1550 defines the essential elements of contract
28 formation, as follows: “It is essential to the existence of a contract that there should be: 1) parties
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PLAINTIFF’S OPPOSITION TO DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
1 capable of contracting; 2) the parties [mutual] consent [i.e., offer and acceptance]; 3) a lawful object
2 [i.e., a legal purpose]; and, 4) a sufficient cause or consideration [i.e., consideration].”
3 Element 1 (Contract Formation): The parties were legally capable of entering into a contract.
4 13. The Plaintiff, as an adult of sound mind and not deprived of civil rights, was capable
5 of contracting (Cal. Civ. Code § 1556). The Defendant as a California public agency was capable of
6 contracting.
7 Element 2 (Contract Formation): The Plaintiff and Defendant mutually agreed to the terms of
8 the contract.
9 14. The Plaintiff and the Defendant mutually consented to the contract by signing the
10 agreement.3 “The Defendant and Plaintiff communicated their consent to the contract by
11 exchanging a formal offer and acceptance, as follows: The agreement was formally offered by the
12 Defendant to the Plaintiff on or around December 28, 2017. It was sent electronically via e-mail as
13 an attached PDF document, with the subject line: “Offer of Employment,” signed by Mr. Wales, an
14 authorized agent of the Defendant. The Plaintiff accepted the offer by signing the document,
15 scanning it, and returning it via e-mail as an attached PDF document to the Defendant on or around
16 December 29, 2017.” (Compl. ¶ 106).
17 Element 3 (Contract Formation): The contract had a legal purpose.
18 15. The purpose of the contract was employment, a legal purpose in the State of
19 California.
20 Element 4 (Contract Formation): In the contract, the parties agreed to give each other something
21 of value (i.e., consideration).
22 16. Among other things in the written contract, the Defendant offered a salary of
23 $100,000 per year and benefits in exchange for Plaintiff’s service as Surface Water Rights Program
24 Manager. By signing the written contract, the Plaintiff agreed to provide her service as Surface
25 Water Rights Program Manager in exchange for said salary and benefits, among other things.
26 (Compl. ¶ 105, Compl. EXHIBIT 1).
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28 3
Consent may be communicated between the parties by signing a contract (Banner Entm’t, Inc. v. Superior Court
(1998) 62 Cal. App. 4th 348, 357–358, 72 Cal. Rptr. 2d 598)
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PLAINTIFF’S OPPOSITION TO DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
1 II. BREACH OF CONTRACT (SECOND CAUSE OF ACTION)
2 17. Plaintiff incorporates herein by reference and re-alleges each and every paragraph in
3 this Opposition to Demurrer as though duly set forth in full herein; in particular, the content
4 established regarding contract formation, above.
5 Essential Factual Elements (Breach of Contract)
6 18. “To prevail on a cause of action for breach of contract, the plaintiff must prove (1)
7 the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the
8 defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224
9 Cal.App.4th 1182, 1186 [169 Cal.Rptr.3d 475]; Oasis West Realty, LLC v. Goldman (2011) 51 Cal.
10 4th 811, 250 P.3d 1115, 124 Cal. Rptr. 3d 256.)
11 Element 1 (Breach of Contract): Contract formation.
12 19. Plaintiff entered into a written contract with Defendant. (Compl. ¶ 105.) The written
13 contract was pleaded by alleging its making, attaching a copy to the Complaint (Compl. EXHIBIT
14 1), and incorporating it by reference into the Complaint, as follows: “Plaintiff was employed by
15 Defendant under written agreement (i.e., employment contract) between Defendant and Plaintiff,
16 hereinafter referred to as “agreement.” On or about December 29, 2017, Plaintiff and Defendant
17 entered into this agreement, a copy of which is attached as EXHIBIT 1 and is hereby made a part of
18 this Complaint.” (Compl. ¶ 105.)
19 Element 2 (Breach of Contract): Performance.
20 20. Plaintiff alleged in Complaint that “[a]t all times material hereto, Plaintiff performed
21 her obligations in accordance with the terms and conditions of the agreement.” (Compl. ¶ 108.)
22 Whether a party has substantially performed an obligation is a question of fact (Posner v.
23 Grunwald-Marx, Inc. (1961) 56 C2d 169, 187, 14 CR 297, 363 P2d 313).
24 //
25 //
26 //
27 //
28 //
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PLAINTIFF’S OPPOSITION TO DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
1 Element 3 (Breach of Contract): Breach.
2 21. Plaintiff alleged in Complaint that Defendant breached their contractual obligations
3 to Plaintiff:4 “The Defendant breached the agreement by, including but not limited to:
4 a) unlawfully interfering with Plaintiff’s ability to perform her job duties;
5 b) unlawfully harassing and discriminating against Plaintiff;
6 c) unlawfully retaliating against Plaintiff for her lawful complaints;
7 d) unlawfully terminating her employment;
8 e) failing to treat Plaintiff in accordance with the laws of the State of California; and
9 f) failing to have an Employee Handbook or any proper policies and procedures in place for
10 employees.” (Compl. ¶ 109.)
11 Element 4 (Breach of Contract): Breach caused damages.
12 22. Plaintiff alleged in Complaint that: “[a]s a direct and proximate result of Defendant's
13 breach of the contract Plaintiff in fact has suffered damages, including loss of wages and
14 benefits…” (Compl. ¶111.)
15 23. Plaintiff alleged in Complaint that: “[a]t the time that the parties entered into the
16 contract, as alleged above, it was known and understood, and within reasonable contemplation of
17 the parties, that in the event of a breach, Plaintiff would suffer present and future loss of earnings,
18 wages, and job benefits as a foreseeable and probable result hereof..” (Compl. ¶110.)
19 II. BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
20 (THIRD CAUSE OF ACTION)
21 24. Plaintiff incorporates herein by reference and re-alleges each and every paragraph in
22 this Opposition to Demurrer as though duly set forth in full herein; in particular, the content
23 established regarding contract formation and breach of contract, above.
24 //
25 //
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Whether a breach is material is primarily a question of fact to be determined from all the facts and circumstances in
28 evidence (L.A. Unified Sch. Dist. v. Torres Constr. Corp. (2020) 57 CA5th 480, 503, 271 CR3d 523; Assoc’d Lathing &
Plastering Co. v. Louis C. Dunn, Inc. (1955) 135 CA2d 40, 49, 286 P2d 825).
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PLAINTIFF’S OPPOSITION TO DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
1 Essential Factual Elements (Breach of Implied Covenant of Good Faith and Fair Dealing)
2 25. Elements for breach of the implied covenant of good faith and fair dealing comprise:
3 (1) that Plaintiff and Defendant entered into a contract, (2) that Plaintiff did all, or substantially all
4 of the significant things that the contract required her to do or that she was excused from having to
5 do those things; (3) that Defendant prevented Plaintiff from receiving the benefits under the
6 contract; (4) that by doing so, Defendant did not act fairly and in good faith; and (5) that Plaintiff
7 was harmed by Defendant’s conduct.5
8 Element 1 (Breach of Implied Covenant): Plaintiff and Defendant entered into a contract.
9 26. As described above, Plaintiff entered into a written contract with Defendant. (Compl.
10 ¶ 105.) The written contract was pleaded by alleging its making, attaching a copy to the Complaint
11 (Compl. EXHIBIT 1), and incorporating it by reference into the Complaint, as follows: “Plaintiff
12 was employed by Defendant under written agreement (i.e., employment contract) between
13 Defendant and Plaintiff, hereinafter referred to as “agreement.” On or about December 29, 2017,
14 Plaintiff and Defendant entered into this agreement, a copy of which is attached as EXHIBIT 1 and
15 is hereby made a part of this Complaint.” (Compl. ¶ 105.)
16 27. Plaintiff alleged in Complaint that “[b]y virtue of the agreement which existed
17 between Plaintiff and Defendant, the promises made in connection with that agreement, and the
18 obligations imposed hereunder, Defendant owed Plaintiff a continuing duty of good faith and fair
19 dealing, including, but not limited to, an obligation to deal fairly and honestly with Plaintiff, and to
20 do nothing to impair, interfere with and/or potentially injure Plaintiff.” (Compl.¶ 113.)
21 Element 2 (Breach of Implied Covenant): Plaintiff did all or substantially all of the significant
22 things that the contract required her to do or that she was excused from having to do those
23 things.
24 28. Plaintiff alleged in Complaint that “[a]t all times material hereto, Plaintiff performed
25 her obligations in accordance with the terms and conditions of the agreement.” (Compl. ¶ 108.)
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Adapted from Judicial Council of California Civil Jury Instructions (2021), CACI No. 325.
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PLAINTIFF’S OPPOSITION TO DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
1 Whether a party has substantially performed an obligation is a question of fact (Posner v.
2 Grunwald-Marx, Inc. (1961) 56 C2d 169, 187, 14 CR 297, 363 P2d 313).
3 Element 3 (Breach of Implied Covenant): Defendant prevented Plaintiff from receiving the
4 benefits under the contract.
5 29. Plaintiff alleged in Complaint that Defendant breached their contractual obligations
6 to Plaintiff, by, among other things: a) interfering with her abilities to perform her job duties;
7 b) taking adverse actions against her for exercising her right to oppose and report what she believed
8 to be unlawful practices; and c) not being treated fairly and in good faith, and in accordance with
9 laws of the State of California. (Compl. ¶ 107.) Whether a breach is material is primarily a question
10 of fact to be determined from all the facts and circumstances in evidence.6
11 Element 4 (Breach of Implied Covenant): Defendant did not act fairly and in good faith when
12 Defendant prevented Plaintiff from receiving the benefits under the contract.
13 30. Plaintiff alleged in Complaint that Defendant: “[i]n doing the things alleged above,
14 Defendant breached said covenant of good faith and fair dealing with Plaintiff.” (Compl. ¶ 114.)
15 Whether a breach is material is primarily a question of fact to be determined from all the facts and
16 circumstances in evidence.7
17 Element 5 (Breach of Implied Covenant): Plaintiff was harmed when Defendant unfairly and in
18 bad faith prevented Plaintiff from receiving the benefits under the contract.
19 31. Plaintiff alleged in Complaint that “[as] a direct and proximate result of Defendant's
20 breach of implied covenant of good faith and fair dealing, Plaintiff in fact has suffered damages,
21 including loss of wages and benefits…” (Compl. ¶ 116.)
22 32. Plaintiff alleged in Complaint that “[a]t the time the parties entered into the
23 agreement, as alleged above, it was known and understood, and within reasonable contemplation of
24 the parties, that in the event of a breach, Plaintiff would suffer present and future loss of earnings,
25 wages and job benefits as a foreseeable and probable result hereof.” (Compl. ¶ 115.)
26
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6
(L.A. Unified Sch. Dist. v. Torres Constr. Corp. (2020) 57 CA5th 480, 503, 271 CR3d 523; Assoc’d Lathing &
28 Plastering Co. v. Louis C. Dunn, Inc. (1955) 135 CA2d 40, 49, 286 P2d 825).
7
Ibid.
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PLAINTIFF’S OPPOSITION TO DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
1 CONCLUSION
2 33. As previously mentioned, judicial policy favors resolving cases on their merits rather
3 than through technical challenges to the pleadings. The purpose of a demurrer is to raise questions
4 of law, not fact, regarding the opposing party’s pleading. As demonstrated here, the legal theories
5 applied are sound and the fact(s) alleged for each element for each cause of action in the Complaint
6 are detailed and complete.
7 34. For the reasons stated herein, the Demurrer should be overruled.
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9 DATED: August 26, 2022
10
ELSE E. WOLFF
11 In Pro Per
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PLAINTIFF’S OPPOSITION TO DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT
Preview
1 ELSE E. WOLFF 7780 JENNA DR. 2 GOLETA, CALIFORNIA, 93117 3 4 5 ELSE E. WOLFF, IN PRO PER 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA BARBARA 10 -Cook Division- 11 ELSE E. WOLFF, an individual, ) Case No.: 20CV01552 ) 12 Plaintiff, ) ) 13 vs. ) ) PLAINTIFF’S 14 SANTA YNEZ RIVER WATER ) OPPOSITION TO DEMURRER CONSERVATION DISTRICT, a public entity, ) TO PLAINTIFF’S SECOND AMENDED 15 and DOES 1 through 50, inclusive, ) COMPLAINT ) 16 ) Defendant(s). ) 17 ) ) Date: September 7, 2022 18 ) Time: 8:30 a.m. ) Dept.: SM-3 19 ) Judge: Hon. Timothy J. Staffel ) 20 ) ) 21 ) ) 22 ) 23 ) 24 25 PLAINTFIFF’S OPPOSITION TO DEMURRER 26 1. Plaintiff Else E. Wolff hereby opposes the Defendant’s Demurrer to Plaintiff’s 27 Second Amended Complaint, filed on 4/27/22, on the following grounds: 28 -1- PLAINTIFF’S OPPOSITION TO DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT 1 INTRODUCTION 2 2. The Plaintiff’s Second Amended Complaint for Damages, dated 4/27/22, is referred 3 to herein as “Complaint” or “Compl.” The Defendant’s Demurrer to Plaintiff’s Second Amended 4 Complaint, filed on 6/29/22, is referred to herein as “Demurrer.” This document, Plaintiff’s 5 Opposition to Demurrer to Plaintiff’s Second Amended Complaint, is referred to herein as 6 “Opposition to Demurrer.” 7 3. In the Demurrer, the Defendant contends that Plaintiff has not alleged sufficient facts 8 in the Complaint to constitute a cause of action for the following causes of action: 9 • the second cause of action (breach of contract), and 10 • the third cause of action (breach of implied covenant of good faith and fair dealing). 11 4. To support its argument, the Defendant ignores the legal standard governing 12 demurrers, ignores most facts alleged in the Complaint, applies indiscriminate and unwarranted 13 blanket “uncertainty.” 14 5. Although the written contract was pleaded by attaching a complete copy of the 15 written contract to the Complaint as EXHIBIT 1 and incorporating it into the complaint by 16 reference,1 the Defendant continues to deny, in bad faith, the written contract exists. In doing so, 17 the Defendant incurs new tort liability.2 18 6. The Complaint pleads facts supporting each essential element of (1) contract 19 formation, (2) breach of contract, and (3) breach of implied covenant of good faith and fair dealing, 20 as this Opposition to Demurrer demonstrates. 21 7. For these reasons, the Demurrer is without merit and should be overruled. 22 STATEMENT OF RELEVANT FACTS 23 8. The written contract was pleaded by alleging its making, attaching a copy to the 24 Complaint (Compl. EXHIBIT 1), and incorporating it by reference into the Complaint, as follows: 25 26 1 A written contract may be pleaded by attaching a complete copy and incorporating it in the complaint by reference. (Int’l Billing Servs. v. Emigh (2000) 84 CA4th 1175, 1187, 101 CR2d 532). 27 2 In Seaman's Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 206 Cal.Rptr. 354, 686 P.2d 1158, the Supreme Court “recognize[d] that a party to a contract may incur tort remedies when, in addition to breaching the 28 contract, it seeks to shield itself from liability by denying, in bad faith and without probable cause, that the contract exists.” (Id. at p. 769, 206 Cal.Rptr. 354, 686 P.2d 1158.) -2- PLAINTIFF’S OPPOSITION TO DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT 1 “Plaintiff was employed by Defendant under written agreement (i.e., employment contract) between 2 Defendant and Plaintiff, hereinafter referred to as “agreement.” On or about December 29, 2017, 3 Plaintiff and Defendant entered into this agreement, a copy of which is attached as EXHIBIT 1 and 4 is hereby made a part of this Complaint.” (Compl. ¶ 105). 5 LEGAL ARGUMENT 6 9. Judicial policy favors resolving cases on their merits rather than through technical 7 challenges to the pleadings. A demurrer raises issues of law, not fact, regarding the opposing party’s 8 pleading. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) A court is to 9 assume all facts pled in the Complaint to be true and may not consider facts asserted in 10 memorandum supporting demurrer. (Afuso v. U.S. Fid. & Guar. Co., Inc. (1985) 169 Cal. App. 3d 11 859, 862; Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) 12 10. As mentioned, the Defendant also contends that both causes of action are uncertain. 13 Uncertainty is a disfavored argument for demurrer. “A demurrer for uncertainty is strictly 14 construed, even where a complaint is in some respects uncertain, because ambiguities can be 15 clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc., (1993) 14 Cal. App. 16 4th 612, 615, citing 5 Witkin, Cal. Pro. Pleading, § 927, (3d ed. 1985); Weil & Brown et al., Cal. 17 Prac. Guide: Civ. Pro. Before Trial § 7:85 (The Rutter Group 2011).) 18 I. CONTRACT FORMATION 19 11. Plaintiff entered into a written contract with Defendant. (Compl. ¶ 105). The written 20 contract was pleaded by alleging its making, attaching a copy to the Complaint (Compl. EXHIBIT 21 1), and incorporating it by reference into the Complaint, as follows: “Plaintiff was employed by 22 Defendant under written agreement (i.e., employment contract) between Defendant and Plaintiff, 23 hereinafter referred to as “agreement.” On or about December 29, 2017, Plaintiff and Defendant 24 entered into this agreement, a copy of which is attached as EXHIBIT 1 and is hereby made a part of 25 this Complaint.” (Compl. ¶ 105). 26 Essential Elements (Contract Formation) 27 12. The California Civil Code § 1550 defines the essential elements of contract 28 formation, as follows: “It is essential to the existence of a contract that there should be: 1) parties -3- PLAINTIFF’S OPPOSITION TO DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT 1 capable of contracting; 2) the parties [mutual] consent [i.e., offer and acceptance]; 3) a lawful object 2 [i.e., a legal purpose]; and, 4) a sufficient cause or consideration [i.e., consideration].” 3 Element 1 (Contract Formation): The parties were legally capable of entering into a contract. 4 13. The Plaintiff, as an adult of sound mind and not deprived of civil rights, was capable 5 of contracting (Cal. Civ. Code § 1556). The Defendant as a California public agency was capable of 6 contracting. 7 Element 2 (Contract Formation): The Plaintiff and Defendant mutually agreed to the terms of 8 the contract. 9 14. The Plaintiff and the Defendant mutually consented to the contract by signing the 10 agreement.3 “The Defendant and Plaintiff communicated their consent to the contract by 11 exchanging a formal offer and acceptance, as follows: The agreement was formally offered by the 12 Defendant to the Plaintiff on or around December 28, 2017. It was sent electronically via e-mail as 13 an attached PDF document, with the subject line: “Offer of Employment,” signed by Mr. Wales, an 14 authorized agent of the Defendant. The Plaintiff accepted the offer by signing the document, 15 scanning it, and returning it via e-mail as an attached PDF document to the Defendant on or around 16 December 29, 2017.” (Compl. ¶ 106). 17 Element 3 (Contract Formation): The contract had a legal purpose. 18 15. The purpose of the contract was employment, a legal purpose in the State of 19 California. 20 Element 4 (Contract Formation): In the contract, the parties agreed to give each other something 21 of value (i.e., consideration). 22 16. Among other things in the written contract, the Defendant offered a salary of 23 $100,000 per year and benefits in exchange for Plaintiff’s service as Surface Water Rights Program 24 Manager. By signing the written contract, the Plaintiff agreed to provide her service as Surface 25 Water Rights Program Manager in exchange for said salary and benefits, among other things. 26 (Compl. ¶ 105, Compl. EXHIBIT 1). 27 28 3 Consent may be communicated between the parties by signing a contract (Banner Entm’t, Inc. v. Superior Court (1998) 62 Cal. App. 4th 348, 357–358, 72 Cal. Rptr. 2d 598) -4- PLAINTIFF’S OPPOSITION TO DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT 1 II. BREACH OF CONTRACT (SECOND CAUSE OF ACTION) 2 17. Plaintiff incorporates herein by reference and re-alleges each and every paragraph in 3 this Opposition to Demurrer as though duly set forth in full herein; in particular, the content 4 established regarding contract formation, above. 5 Essential Factual Elements (Breach of Contract) 6 18. “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) 7 the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the 8 defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 9 Cal.App.4th 1182, 1186 [169 Cal.Rptr.3d 475]; Oasis West Realty, LLC v. Goldman (2011) 51 Cal. 10 4th 811, 250 P.3d 1115, 124 Cal. Rptr. 3d 256.) 11 Element 1 (Breach of Contract): Contract formation. 12 19. Plaintiff entered into a written contract with Defendant. (Compl. ¶ 105.) The written 13 contract was pleaded by alleging its making, attaching a copy to the Complaint (Compl. EXHIBIT 14 1), and incorporating it by reference into the Complaint, as follows: “Plaintiff was employed by 15 Defendant under written agreement (i.e., employment contract) between Defendant and Plaintiff, 16 hereinafter referred to as “agreement.” On or about December 29, 2017, Plaintiff and Defendant 17 entered into this agreement, a copy of which is attached as EXHIBIT 1 and is hereby made a part of 18 this Complaint.” (Compl. ¶ 105.) 19 Element 2 (Breach of Contract): Performance. 20 20. Plaintiff alleged in Complaint that “[a]t all times material hereto, Plaintiff performed 21 her obligations in accordance with the terms and conditions of the agreement.” (Compl. ¶ 108.) 22 Whether a party has substantially performed an obligation is a question of fact (Posner v. 23 Grunwald-Marx, Inc. (1961) 56 C2d 169, 187, 14 CR 297, 363 P2d 313). 24 // 25 // 26 // 27 // 28 // -5- PLAINTIFF’S OPPOSITION TO DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT 1 Element 3 (Breach of Contract): Breach. 2 21. Plaintiff alleged in Complaint that Defendant breached their contractual obligations 3 to Plaintiff:4 “The Defendant breached the agreement by, including but not limited to: 4 a) unlawfully interfering with Plaintiff’s ability to perform her job duties; 5 b) unlawfully harassing and discriminating against Plaintiff; 6 c) unlawfully retaliating against Plaintiff for her lawful complaints; 7 d) unlawfully terminating her employment; 8 e) failing to treat Plaintiff in accordance with the laws of the State of California; and 9 f) failing to have an Employee Handbook or any proper policies and procedures in place for 10 employees.” (Compl. ¶ 109.) 11 Element 4 (Breach of Contract): Breach caused damages. 12 22. Plaintiff alleged in Complaint that: “[a]s a direct and proximate result of Defendant's 13 breach of the contract Plaintiff in fact has suffered damages, including loss of wages and 14 benefits…” (Compl. ¶111.) 15 23. Plaintiff alleged in Complaint that: “[a]t the time that the parties entered into the 16 contract, as alleged above, it was known and understood, and within reasonable contemplation of 17 the parties, that in the event of a breach, Plaintiff would suffer present and future loss of earnings, 18 wages, and job benefits as a foreseeable and probable result hereof..” (Compl. ¶110.) 19 II. BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING 20 (THIRD CAUSE OF ACTION) 21 24. Plaintiff incorporates herein by reference and re-alleges each and every paragraph in 22 this Opposition to Demurrer as though duly set forth in full herein; in particular, the content 23 established regarding contract formation and breach of contract, above. 24 // 25 // 26 27 4 Whether a breach is material is primarily a question of fact to be determined from all the facts and circumstances in 28 evidence (L.A. Unified Sch. Dist. v. Torres Constr. Corp. (2020) 57 CA5th 480, 503, 271 CR3d 523; Assoc’d Lathing & Plastering Co. v. Louis C. Dunn, Inc. (1955) 135 CA2d 40, 49, 286 P2d 825). -6- PLAINTIFF’S OPPOSITION TO DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT 1 Essential Factual Elements (Breach of Implied Covenant of Good Faith and Fair Dealing) 2 25. Elements for breach of the implied covenant of good faith and fair dealing comprise: 3 (1) that Plaintiff and Defendant entered into a contract, (2) that Plaintiff did all, or substantially all 4 of the significant things that the contract required her to do or that she was excused from having to 5 do those things; (3) that Defendant prevented Plaintiff from receiving the benefits under the 6 contract; (4) that by doing so, Defendant did not act fairly and in good faith; and (5) that Plaintiff 7 was harmed by Defendant’s conduct.5 8 Element 1 (Breach of Implied Covenant): Plaintiff and Defendant entered into a contract. 9 26. As described above, Plaintiff entered into a written contract with Defendant. (Compl. 10 ¶ 105.) The written contract was pleaded by alleging its making, attaching a copy to the Complaint 11 (Compl. EXHIBIT 1), and incorporating it by reference into the Complaint, as follows: “Plaintiff 12 was employed by Defendant under written agreement (i.e., employment contract) between 13 Defendant and Plaintiff, hereinafter referred to as “agreement.” On or about December 29, 2017, 14 Plaintiff and Defendant entered into this agreement, a copy of which is attached as EXHIBIT 1 and 15 is hereby made a part of this Complaint.” (Compl. ¶ 105.) 16 27. Plaintiff alleged in Complaint that “[b]y virtue of the agreement which existed 17 between Plaintiff and Defendant, the promises made in connection with that agreement, and the 18 obligations imposed hereunder, Defendant owed Plaintiff a continuing duty of good faith and fair 19 dealing, including, but not limited to, an obligation to deal fairly and honestly with Plaintiff, and to 20 do nothing to impair, interfere with and/or potentially injure Plaintiff.” (Compl.¶ 113.) 21 Element 2 (Breach of Implied Covenant): Plaintiff did all or substantially all of the significant 22 things that the contract required her to do or that she was excused from having to do those 23 things. 24 28. Plaintiff alleged in Complaint that “[a]t all times material hereto, Plaintiff performed 25 her obligations in accordance with the terms and conditions of the agreement.” (Compl. ¶ 108.) 26 27 28 5 Adapted from Judicial Council of California Civil Jury Instructions (2021), CACI No. 325. -7- PLAINTIFF’S OPPOSITION TO DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT 1 Whether a party has substantially performed an obligation is a question of fact (Posner v. 2 Grunwald-Marx, Inc. (1961) 56 C2d 169, 187, 14 CR 297, 363 P2d 313). 3 Element 3 (Breach of Implied Covenant): Defendant prevented Plaintiff from receiving the 4 benefits under the contract. 5 29. Plaintiff alleged in Complaint that Defendant breached their contractual obligations 6 to Plaintiff, by, among other things: a) interfering with her abilities to perform her job duties; 7 b) taking adverse actions against her for exercising her right to oppose and report what she believed 8 to be unlawful practices; and c) not being treated fairly and in good faith, and in accordance with 9 laws of the State of California. (Compl. ¶ 107.) Whether a breach is material is primarily a question 10 of fact to be determined from all the facts and circumstances in evidence.6 11 Element 4 (Breach of Implied Covenant): Defendant did not act fairly and in good faith when 12 Defendant prevented Plaintiff from receiving the benefits under the contract. 13 30. Plaintiff alleged in Complaint that Defendant: “[i]n doing the things alleged above, 14 Defendant breached said covenant of good faith and fair dealing with Plaintiff.” (Compl. ¶ 114.) 15 Whether a breach is material is primarily a question of fact to be determined from all the facts and 16 circumstances in evidence.7 17 Element 5 (Breach of Implied Covenant): Plaintiff was harmed when Defendant unfairly and in 18 bad faith prevented Plaintiff from receiving the benefits under the contract. 19 31. Plaintiff alleged in Complaint that “[as] a direct and proximate result of Defendant's 20 breach of implied covenant of good faith and fair dealing, Plaintiff in fact has suffered damages, 21 including loss of wages and benefits…” (Compl. ¶ 116.) 22 32. Plaintiff alleged in Complaint that “[a]t the time the parties entered into the 23 agreement, as alleged above, it was known and understood, and within reasonable contemplation of 24 the parties, that in the event of a breach, Plaintiff would suffer present and future loss of earnings, 25 wages and job benefits as a foreseeable and probable result hereof.” (Compl. ¶ 115.) 26 27 6 (L.A. Unified Sch. Dist. v. Torres Constr. Corp. (2020) 57 CA5th 480, 503, 271 CR3d 523; Assoc’d Lathing & 28 Plastering Co. v. Louis C. Dunn, Inc. (1955) 135 CA2d 40, 49, 286 P2d 825). 7 Ibid. -8- PLAINTIFF’S OPPOSITION TO DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT 1 CONCLUSION 2 33. As previously mentioned, judicial policy favors resolving cases on their merits rather 3 than through technical challenges to the pleadings. The purpose of a demurrer is to raise questions 4 of law, not fact, regarding the opposing party’s pleading. As demonstrated here, the legal theories 5 applied are sound and the fact(s) alleged for each element for each cause of action in the Complaint 6 are detailed and complete. 7 34. For the reasons stated herein, the Demurrer should be overruled. 8 9 DATED: August 26, 2022 10 ELSE E. WOLFF 11 In Pro Per 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- PLAINTIFF’S OPPOSITION TO DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT