Modification: Redfearn v. Trader Joe's Company

WAYNE REDFEARN,

Plaintiff and Appellant,

v.

TRADER JOE'S COMPANY,

Defendant and Respondent.

No. B270487

(Los Angeles County

Super. Ct. No. BC559822)

California Courts of Appeal

Second Appellate District

Division Seven

Filed March 16, 2018

THE COURT:

It is ordered that the opinion filed herein on February 27, 2018 be modified as follows:

1. On page 4, the paragraph beginning "The trial court sustained Trader Joe's' demurrer without leave to amend. Relying on the holding and analysis in . . ." delete the words "the holding and analysis in."

2. The entire paragraph commencing at the bottom of page 10 with "A jury found in favor of plaintiffs" and continuing on page 11 is deleted and replaced with:

A jury found in favor of plaintiffs as to the $780,000 advance and also found that Stewart's agent and attorney had knowingly and intentionally disrupted the performance of six subpromoter contracts involved in the transaction, awarding damages of $1.6 million. (PM Group, supra, 154 Cal.App.4th at p. 61.) The court of appeal reversed the judgment in favor of plaintiffs on the cause of action for intentional interference with contract and affirmed the judgment in all other respects. (Id. at p. 70.) The court held, as a matter of law, Stewart and his agents could not have interfered with the performance of the subcontracts on two grounds. First, quoting the Supreme Court's language in Applied Equipment that the tort could only be committed by "'strangers---interlopers who have no legitimate interest in the scope or course of the contract's performance'" (PM Group, at p. 65), the court explained, "a contracting party is incapable of interfering with the performance of his or her own contact and cannot be held liable in tort for conspiracy to interfere with his or her own contract." (Ibid.) Then, without further analysis, the court concluded, "Because the subcontracts at issue here provided for Stewart's performance, neither Stewart nor his agents can be liable for the tort of interfering with the subcontracts." (Ibid.) Second, noting that Stewart and the concert promoter had not entered into a binding contract for Stewart's performance, the court explained, "[N]one of the subcontracts among plaintiffs and the subpromoters could have been performed. Accordingly, defendants cannot be said to have caused the failure of the subcontracts . . . ." (Ibid.)

3. In the last sentence of the paragraph immediately following subheading 2C of the Discussion delete the word "the" and insert in its place "some of the language and" so that the sentence reads:

Unlike the trial court, however, which must follow controlling precedent from a court of appeal, we are free to disregard some of the language and reasoning of our Division Three colleagues in PM Group, even while agreeing with the outcome of that case.

4. Delete the entire second paragraph following subheading 2C of the Discussion beginning with "Plaintiffs in PM Group failed to prove a cause of action." Insert in its place the following paragraph and new footnote 4:

Plaintiffs in PM Group failed to prove a cause of action for intentional interference with contractual relations because, as the court, held, Stewart never agreed to the proposed concert tour and, therefore, his decision not to participate, which necessarily defeated the purpose of the subcontracts, did not constitute an intentional act designed to induce a breach or disruption of the promoter-subpromoter contracts, an essential element of the tort. (See, e.g., Reeves, supra, 33 Cal.4th at p. 1148 [the third of the tort's five elements].) To be sure, Stewart's performances in various venues were contemplated by, and necessary to the success of, the contracts between PM Group and the subpromoters, so that Stewart and his representatives had a legitimate interest in the scope or course of the contracts' performance. But the cause of action failed as a matter of law, not because Stewart was not a "stranger" to the contracts between the promoter and its subpromoters, but because his decision not to perform, without more, was not tortious.⁴

5. In the first sentence of the first full paragraph on page 15, beginning with "Here, unlike PM Group's complaint that Stewart had cancelled the proposed concert tour. . ." delete and replace the word "cancelled" with "abandoned" so that the sentence reads:

Here, unlike PM Group's complaint that Stewart had abandoned the proposed concert tour (albeit preceded by misrepresentations relating to certain advance payments), Redfearn did not allege that Trader Joe's simply stopped purchasing from Seneca and Sunsweet, thereby disrupting Caliber's brokerage contracts.

There is no change in judgment. Respondent's petition for rehearing is denied.

PERLUSS, P. J.

ZELON, J.

SEGAL, J.

^4. The Supreme Court in Quelimane Co. v. Stewart Title Guaranty Co., supra, 19 Cal.4th 26, held a complaint alleging a defendant title insurer had refused to sell title insurance on any real property acquired at tax sales, which led to the termination of subsequent transactions to resell such properties, stated a cause of action for intentional interference with existing contractual relations. (Id. at pp. 56-57.) The complaint, however, alleged the refusals were pursuant to an unlawful conspiracy among several title insurers not to insure tax sale properties. (Id. at pp. 35-36, 57.) The Court also held whether plaintiffs could prove defendant "intended to interfere with land sale contracts when it denied title insurance . . . [is] a matter for trial." (Id. at p. 57.)