Amber Schulte v. Bruce Savett, et al.

Case Number

25CV01270

Case Type

Hearing Date / Time

Mon, 01/26/2026 - 10:00

Nature of Proceedings

Plaintiff's Motions to Compel (6); Defendant's Demurrer to Plaintiff's First Amended Complaint

Tentative Ruling

Amber Schulte v. Bruce Savett, et al.                                 

Case No. 25CV01270

           

Hearing Date: January 26, 2026                                                        

HEARING:              (1)       Plaintiff’s Motion to Compel Further Responses to Form Interrogatories – Employment Law, Set One, from Defendant Granite Capital Group

                                    (2)       Plaintiff’s Motion to Compel Further Responses to Form Interrogatories – Employment Law, Set One, from Defendant Bruce Savett

                                    (3)       Plaintiff’s Motion to Compel Further Responses to Form Interrogatories – General, Set One, from Defendant Bruce Savett

                                    (4)       Plaintiff’s Motion to Compel Further Responses from Defendants to Request for Production of Documents, Set One

                                    (5)       Plaintiff’s Motion to Compel Further Responses to Special Interrogatories, Set One, from Defendant Granite Capital Group

                                    (6)       Plaintiff’s Motion to Compel Further Responses to Request for Admissions, Set One, from Defendant Bruce Savett

                                    (7)       Defendants’ Demurrer to Plaintiff’s First Amended Complaint

ATTORNEYS:        For Plaintiff Amber Schulte: R. Chris Kroes, Linda Elias Wheelock, John R. Weninger, McCarthy & Kroes

                                    For Defendants Bruce Savett and Granite Capital Group: Vickie V. Grasu, Kyle M. Aronson, O’Hagan Meyer

TENTATIVE RULING:

(1)       The motions of plaintiff to compel further responses to set one form interrogatories – employment law from defendant Granite Capital Group, to compel further responses to set one form interrogatories – employment law from defendant Bruce Savett, to compel further responses to set one form interrogatories – general from defendant Bruce Savett, to compel further responses from defendants to set one request for production of documents, to compel further responses to set one special interrogatories from Granite Capital Group, and to compel further responses to set one request for admissions from defendant Bruce Savett, are each denied.

(2)       The demurrer of defendants to plaintiff’s first amended complaint is sustained as to the fifth, sixth, seventh, and eighth causes of action, only, with leave to amend. Plaintiff shall file and serve any second amended complaint on or before February 9, 2026. Except as granted herein, the demurrer is otherwise overruled.

Background:

On February 27, 2025, plaintiff Amber Schulte (Schulte or plaintiff) filed her original complaint in this action against defendants Bruce Savett (Savett) and Granite Capital Group (Granite) (collectively, defendants), alleging eight causes of action: (1) discrimination in violation of Government Code section 12940 et seq. (the Fair Employment and Housing Act or FEHA); (2) retaliation in violation of FEHA; (3) failure to prevent discrimination and retaliation in violation of FEHA; (4) wrongful termination in violation of public policy; (5) workplace harassment; (6) defamation (against Savett only); (7) breach of implied contract (against Granite only); and (8) breach of the covenant of good faith and fair dealing (against Granite only).

On April 21, defendants filed a demurrer to the complaint and a motion to compel arbitration.

On April 25, plaintiff filed opposition to the petition to compel arbitration.

On May 23, plaintiff filed a motion to for an order compelling Granite (the Granite MTC FI-EL) to serve further responses to set one form interrogatories – employment (the FI-EL), and separately filed a motion for an order compelling Savett (the Savett MTC FI-EL) to serve further responses to the FI-EL.

On May 30, plaintiff separately filed three additional motions: (1) to compel further responses from Savett (the Savett MTC FIG) to form interrogatories – general, set one (the FI); (2) to compel further responses from Granite (the Granite MTC SI) to special interrogatories, set one (the SI); and (3) to compel further responses from defendants (the MTC RFP) to request for production, set one (the RFP).

On June 3, plaintiff filed an additional motion for an order compelling Savett (the Savett RFA MTC) to serve further responses to request for admissions, set one (the RFA).

The court will refer to the discovery motions described above, collectively, as the motions to compel.

On July 14, plaintiff filed a first amended complaint (the FAC) which asserts the same eight causes of action described above. The FAC alleges that plaintiff is a female over the age of 50, who worked as an executive assistant for Granite for over 11 years, and that Savett is the owner of Granite, and plaintiff’s direct supervisor. (FAC, ¶¶ 4 & 15.) The FAC further alleges that, throughout plaintiff’s tenure at Granite, plaintiff held different roles and achieved solid performance ratings and good employee performance reviews. (FAC, ¶¶ 16-17.) Notwithstanding, Savett allegedly harassed plaintiff and sought to damage plaintiff’s character and reputation by spreading false statements and rumors about plaintiff. (FAC, ¶¶ 22-23.) Defendants allegedly terminated plaintiff without cause on October 28, 2024, purportedly due to the length of plaintiff’s tenure and plaintiff’s age. (FAC, ¶¶ 15-16 & 18.)

On July 15, defendants separately filed their respective oppositions to each of the motions to compel.

On July 17, plaintiff filed an omnibus reply to defendants’ opposition to the motions to compel.

On July 21, defendants filed a reply to plaintiff’s opposition to the petition to compel arbitration and plaintiff’s evidentiary objections, and a declaration of Lisa Bauer, the Director of Compliance Services, providing information regarding the arbitration agreement included with defendants’ petition. On July 22, plaintiff filed a request to strike the declaration of Bauer and other matter filed with defendants’ reply. Later on July 22, defendants filed a response to plaintiff’s request to strike.

On July 28, the court addressed the pending motions, and ordered the demurrer to the original complaint off calendar as mooted by the filing of the FAC and further briefing as to the motion to compel arbitration. The court otherwise continued the hearing on all then-pending motions to compel to August 25.

On August 25, after a hearing, the court denied the motion of defendants to compel arbitration, finding that defendants failed to meet their burden to show the existence of an arbitration agreement with plaintiff. The court ordered defendants to file and serve their responsive pleadings on or before September 9. The court also ordered the parties to, on or before September 5, further meet and confer regarding the remaining motions to compel and to file joint or individual reports setting forth the status of the discovery disputes on or before September 25. The court continued the hearing on the remaining motions to compel to September 19.

On September 9, defendants filed a demurrer to the FAC which is made on the grounds that the FAC fails to state facts sufficient to constitute any cause of action. The demurrer, originally set for hearing on December 1, is opposed by plaintiff.

On September 12, the parties each filed individual reports regarding the status of the discovery disputes reflected in the motions to compel. In her report, plaintiff states that on August 26, plaintiff demanded responses to discovery, and that on September 3, defendants requested a two week extension to September 17 to provide code compliant responses to plaintiff’s discovery. Defendants’ report asserts that they informed plaintiff on September 3 that they will provide further responses by September 17, among other things.

On September 22, after taking the status of the case, the court continued the motions to compel to September 29.

After a case management conference on September 29, the court ordered counsel to meet and confer regarding the motions to compel, and that further responses are due on or before October 27. The court continued the pending motions to compel to December 1.

On November 25, defendants filed a reply re further discovery responses, in which defendants’ counsel states that defendants served responses with objections to avoid waiving their right to arbitrate; that defendants served substantive further responses to plaintiff’s first sets of written discovery on September 22, following the court’s denial of defendants’ motion to compel arbitration; that the parties met and conferred to discuss those further responses on October 17; and that defendants served additional further responses on October 30 and November 7. Defendants further assert that issues or disputes raised in plaintiff’s case management brief are in response to defendants’ further responses and not the motions to compel, and are raised by plaintiff without first attempting to resolve these issues or disputes which defendants contend are premature.

On December 1, the court continued the motions to compel and demurrer to the FAC to January 26.

Analysis:

(1)       Motions to Compel

Absent a dispute by plaintiff, the reply filed by defendants on November 25 and described above shows that defendants have provided further responses to the FI-EL, the FI, the SI, the RFP, and the RFA. Where a responding party provides discovery requested in a motion to compel and the moving party proceeds with the motion, the court has substantial discretion to determine how to rule on the motion based on the circumstances of the case. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.) The court may take the motion off-calendar, deny the motion as moot or unnecessary, or narrow its scope to the issue of sanctions. (Id. at p. 409; see also Cal. Rules of Court, rule 3.1348(a) [sanctions may be imposed “even though … the requested discovery was provided … after the motion was filed”].)

As the undisputed record indicates that defendants have provided further responses to the discovery requests at issue in the motions to compel, those motions are moot. In addition, though each of the motions to compel request an order imposing monetary sanctions, information appearing in the oppositions of defendants indicates that the parties’ approach to these motions is predominantly based upon their respective positions as to the motion to compel arbitration, and that defendants were ostensibly concerned that, by responding to the discovery at issue, defendants may waive their right to arbitrate.

Considering defendants’ stated concerns and that, after the court resolved the motion to compel arbitration, defendants provided further responses to the discovery at issue in the motions to compel, including after the parties engaged in meet and confer efforts, the court finds that defendants acted with substantial justification such that, under the totality of the circumstances present here, an award of sanctions would be unjust. (Code Civ. Proc., § 2023.030, subd. (a); see also City of Los Angeles v. PricewaterhouseCoopers, LLP (2024) 17 Cal.5th 46, 59-63 [general discussion].) For these and all further reasons discussed above, the court will deny the motions to compel, without prejudice to any future motion that may be filed by plaintiff as to the further responses ostensibly served by defendants.

(2)       Demurrer to FAC

In ruling on a demurrer, the court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) “In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Demurrer to the first, second, third, and fourth causes of action:

In the demurrer, defendants assert that an aggrieved individual may not maintain a FEHA claim against individual supervisors who purportedly discriminate against that individual, and that a supervisor cannot be held personally liable for retaliation under FEHA. Because the FAC alleges only that Savett was plaintiff’s supervisor, and does not allege any facts showing that Savett was plaintiff’s employer, defendants argue, personal liability may not be imposed upon Savett. Defendants further argue that alter ego allegations appearing in the FAC are not sufficiently pleaded, and do not show that any purported alter ego was plaintiff’s employer.

In a footnote appearing on page 6 of the memorandum, defendants also assert that the third and fourth causes of action for, respectively, failure to prevent discrimination and retaliation and for wrongful termination cannot be maintained against Savett for the same reasons noted above.

Plaintiff contends in her opposition to the demurrer that, because the FAC alleges that Savett is the owner of Granite and plaintiff’s employer and direct supervisor, Savett can be held liable under theories of harassment, discrimination, and retaliation pursuant to FEHA.

“Section 12940, part of the FEHA, begins, ‘It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: ..’” Several subdivisions follow, defining various unlawful employment practices. One unlawful employment practice is for an employer to engage in specified kinds of discrimination. [Citation.] Another, ... is ‘[f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.’ [Citation.] This form of unlawful employment practice is often called simply “retaliation.” [Citation.] Another unlawful employment practice is harassment. [Citation.]” (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1161-1162 (Jones), fn. omitted.)

“[A]lthough the employer may be liable for unlawful discrimination, individuals working for the employer, including supervisors, are not personally liable for that discrimination.” (Jones, supra, 42 Cal.4th at p. 1162.) Furthermore, under Government Code section 12940, subdivision (h), “the employer is liable for retaliation ..., but nonemployer individuals are not personally liable for their role in that retaliation.” (Id. at p. 1173.)

The first cause of action is entitled discrimination in violation of FEHA, and alleges that plaintiff suffered adverse employment actions, and that plaintiff’s “age and engagement in protected activities, and/or some combination of these protected characteristics” were motivating reasons for the decision to subject plaintiff to those adverse employment actions. (FAC, ¶ 30.) The second cause of action for retaliation in violation of FEHA alleges that plaintiff’s age, gender, and “protestations” about defendants’ discriminatory conduct were motivating reasons or factors in the decision to subject plaintiff to the adverse employment actions at issue in this case. (FAC, ¶ 35.) The FAC further alleges that both Savett and Granite subjected plaintiff to the adverse employment actions at issue “individually, and/or by and through its officers, directors, and/or managing agents....” (FAC, ¶¶ 31 & 37.)

Notwithstanding whether the FAC alleges causes of action for discrimination and retaliation arising from Savett’s role as plaintiff’s direct supervisor, the FAC also alleges that Savett is the “owner” of Granite, and that Savett is also plaintiff’s employer who employed in excess of five employees. (FAC, ¶¶ 3-4, 8, 29, 33 [alleging that Savett and Granite are “employers” under FEHA].) Subject to exceptions which do not appear to apply here, FEHA defines an “[e]mployer” as “any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities....” (Gov. Code, § 12926, subd. (d).) Though the use of the word “person” does not mean that an individual employee or, as is relevant here, a supervisor may be held liable for discriminatory or retaliatory conduct in addition to the employer itself (Jones, supra, 42 Cal.4th at pp. 1163-1164), defendants fail to explain why allegations that Savett, a person who is alleged to have employed more than five individuals, are insufficient to show that Savett is plaintiff’s employer as that term is defined by FEHA.

Furthermore, though “ ‘[t]he distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree ... the courts have permitted allegations which obviously included conclusions of law and have termed them “ultimate facts” or “conclusions of facts.” ’ [Citation.] What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) A pleading “ordinarily is sufficient if it alleges ultimate rather than evidentiary facts.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)

The FAC pleads the ultimate fact that Savett is an employer who employs more than five persons which, at this stage of the proceedings and for all reasons discussed above, is sufficient, if proven, to show that liability under FEHA for purported discrimination and retaliation may be imposed on Savett, notwithstanding whether the FAC also alleges that Savett was plaintiff’s direct supervisor. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 [“a demurrer cannot rightfully be sustained to part of a cause of action ....”].) Furthermore, though the court presently accepts as true the ultimate fact that Savett is plaintiff’s employer “however improbable [it] may be...” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604), the court does not concern itself, at the pleading stage, with whether plaintiff can prove that allegation (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034). For these and all further reasons discussed above, the court will overrule the demurrer to the first and second causes of action on the grounds stated.

The same reasoning and analysis apply to defendants’ ostensible assertion that the third cause of action for failure to prevent discrimination and retaliation, and the fourth cause of action for wrongful termination, also cannot be maintained against Savett. (Memorandum at p. 6, fn. 1.) For the same reasons discussed above, the court will overrule the demurrer to the third and fourth causes of action alleged in the FAC, on the grounds stated.

Demurrer to the fifth cause of action:

As to the fifth cause of action alleged in the FAC, defendants assert that the FAC must show that plaintiff was subjected to verbal, visual, or physical conduct of a harassing nature based on a protected characteristic, and that this conduct was subjectively and objectively unwelcome and sufficiently severe or pervasive to alter the conditions of plaintiff’s work environment. Defendants contend that the FAC fails to allege facts showing that any harassing conduct was connected to plaintiff’s membership in any protected class, or the severity or pervasiveness of defendants’ conduct. Instead, defendants contend, plaintiff pleads only bare allegations and conclusory statements that plaintiff was harassed and that Savett sought to humiliate and embarrass plaintiff, without specificity. For these reasons, defendants argue, the FAC fails to state facts sufficient to constitute a fifth cause of action for harassment.

Under FEHA, it is an unlawful employment practice “[f]or an employer, ... or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, reproductive health decisionmaking, or veteran or military status, to harass an employee....” (Gov. Code, § 12940, subd. (j)(1).) “Harassment includes ‘[v]erbal harassment, e.g., epithets, derogatory comments or slurs....’ [Citation.]” (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 464.)

“To establish a prima facie case of unlawful harassment under FEHA, a plaintiff must show ‘(1) he was a member of a protected class; (2) he was subjected to unwelcome ... harassment; (3) the harassment was based on [the plaintiff’s membership in an enumerated class]; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) [defendant] is liable for the harassment.’ [Citation.]” (Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 170.)

The FAC alleges that plaintiff is female and over the age of 40. (FAC, ¶¶ 2 & 48.) The fifth cause of action, entitled workplace harassment under FEHA. alleges that plaintiff was “subject to pervasive and severe and/or pervasive pattern of harassment and abuse” by defendants, which included “verbal abuse and epithets, intimidating and humiliating behavior and interference with [plaintiff’s] work, unrelated to legitimate business interests; as well as sabotage of [plaintiff’s] work performance.” (FAC, ¶¶ 49-50.)

Apart from general and conclusory allegations that defendants interfered with plaintiff’s work, absent from the FAC are any allegations showing that any such interference was unreasonable or arose from purported harassment by defendants, or that any harassment was based on plaintiff’s membership in a protected class. Though plaintiff may “plead facts which, if true, could legally constitute harassment...” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 79), the general and conclusory allegations of the FAC fail, for all reasons further discussed above, to state facts sufficient to constitute a cause of action for harassment under FEHA. For these reasons, the court will sustain the demurrer as to the fifth cause of action on the grounds stated.

Demurrer to the sixth cause of action:

As to the sixth cause of action for defamation against Savett only, defendants assert that the FAC is conclusory and devoid of any facts showing that Savett published defamatory statements about plaintiff, the nature of any false statements made or published by Savett, or to whom these statements were made. For these reasons, defendants argue, the FAC fails to state a viable defamation claim.

“Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage. [Citations.] Publication, which may be written or oral, is defined as a communication to some third person who understands both the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the public or a large group; communication to a single individual is sufficient. [Citations.]” (Ringler Associates Inc. v. Maryland Cas. Co. (2000) 80 Cal.App.4th 1165, 1179.)

“Defamation has two forms, libel and slander. [Citation.] Defamatory publications that are made ‘by writing, printing, picture, effigy, or other fixed representation to the eye,’ are considered libel. [Citation.] Slander involves defamatory publications that are ‘orally uttered,’ and also includes ‘communications by radio or any mechanical or other means.’ [Citation.]” (Burrill v. Nair (2013) 217 Cal.App.4th 357, 382, disapproved on another ground in Baral v. Schnitt (2016) 1 Cal.5th 376, 396, fn. 11.)

“Case law requires that statements alleged to constitute libel ‘must be specifically identified, if not pleaded verbatim, in the complaint’ [citations]; less specificity is required in the pleading of slander, given that slander may ‘be charged by alleging the substance of the defamatory statement’ [citation]. ... However, even for purposes of slander, ‘the disparagement set forth in the complaint must be sufficiently close to the actual words proved to acquaint a defendant with what he must defend against.’ [Citation.]” (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 893-894, original italics.)

The FAC includes conclusory allegations that Savett made “false, unprivileged, and defamatory statements to other persons, about the plaintiff which impugned the good character of plaintiff in her employment and otherwise, and had a tendency to injure plaintiff and expose her to contempt, ridicule and shame, and to discourage others from associating with plaintiff...”, that Savett knew those statements were false when made, and that plaintiff “suffered harm as a result of the defamatory statements made by [Savett]....” (FAC, ¶¶ 54-56.)

The general and conclusory allegations described above do not show, expressly or by inference, whether any purportedly defamatory statements by Savett constitute libel or slander. To the extent the statements at issue constitute libel, the FAC fails to plead those statements verbatim. Though less specificity is required if those statements constitute slander, the FAC also fails to allege the substance of any statements made by Savett. For these and all further reasons discussed above, the FAC fails to allege facts sufficient to constitute a cause of action for defamation. Therefore, the court will sustain the demurrer to the sixth cause of action alleged in the FAC.

Demurrer to the seventh and eighth causes of action:

The seventh cause of action is entitled breach of implied contract against Granite, only. As to that cause of action, the FAC alleges that, during the 11 years of plaintiff’s employment with defendants, “there existed a valid, enforceable, implied in fact company policy and ... employment contract between plaintiff and [Granite] to the effect that: [p]laintiff would continue her employment with the defendants indefinitely so long as she carried out her duties in a competent manner; [d]efendants would not subject [p]laintiff to unlawful discrimination, harassment, or retaliation in the terms and conditions of employment; [d]efendants would not evaluate plaintiff’s performance in an arbitrary, or untrue manner; [d]efendants would provide plaintiff with a work environment that is free from discrimination[;] [and which] limited the right of defendants ... from terminating plaintiff without cause.” (FAC, ¶ 58.)

The FAC also alleges that “[t]here were oral assurances to this effect given by [Savett] to plaintiff during the course of her employment...”, that “there was an implied in fact promise by [defendants] not to discharge the plaintiff absent good cause....” (FAC, ¶ 48.) In addition, the FAC alleges that the “employment agreement was both written and oral and supplemented by various commendations, assurances of continued employment and various company documents including performance reviews, employment manuals, personnel policies which assured plaintiff and others of continued employment...”, that plaintiff performed all obligations required of plaintiff under the contract, which defendants breached. (FAC, ¶¶ 60-61.)

Defendants contend that plaintiff’s employment with Granite is presumed to be at-will, and that this presumption can only be rebutted by the pleading of facts sufficient to show oral assurances of continued employment on the basis of job performance and length of employment, or an employer or industry practice of terminating employment only for cause. Because the FAC alleges only the length of plaintiff’s employment, and fails to allege any specific practices or policies showing the existence of an implied-in-fact contract or an industry practice of terminating employees for cause, defendants argue, the FAC fails to rebut the presumption of at-will employment.

“Labor Code section 2922 establishes a presumption of at-will employment if the parties have made no express oral or written agreement specifying the length of employment or the grounds for termination. This presumption may, however, be overcome by evidence that despite the absence of a specified term, the parties agreed that the employer’s power to terminate would be limited in some way, e.g., by a requirement that termination be based only on ‘good cause.’ [Citations.]

“The absence of an express written or oral contract term concerning termination of employment does not necessarily indicate that the employment is actually intended by the parties to be ‘at will,’ because the presumption of at-will employment may be overcome by evidence of contrary intent. Generally, courts seek to enforce the actual understanding of the parties to a contract, and in so doing may inquire into the parties’ conduct to determine if it demonstrates an implied contract. ‘[I]t must be determined, as a question of fact, whether the parties acted in such a manner as to provide the necessary foundation for [an implied contract], and evidence may be introduced to rebut the inferences and show that there is another explanation for the conduct.’ [Citations.] Such implied-in-fact contract terms ordinarily stand on equal footing with express terms.” (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 677-678.)

Also relevant here, a contract may be “either express or implied.” (Civ. Code, § 1619.) “An implied contract is one, the existence and terms of which are manifested by conduct.” (Civ. Code, § 1621.) “ ‘A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor’s conduct.’ [Citations]. ‘ “[B]oth types of contract are identical in that they require a meeting of minds or an agreement [citation]. Thus, it is evident that both the express contract and contract implied in fact are founded upon an ascertained agreement or, in other words, are consensual in nature, the substantial difference being in the mode of proof by which they are established [citation].” ’ [Citation.]” (Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1230.)

“The elements of a breach of oral contract claim are the same as those for a breach of written contract: a contract; its performance or excuse for nonperformance; breach; and damages.” (Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453.) “In pleading a cause of action on an agreement implied from conduct only the facts from which the promise is implied must be alleged.” (Youngman v. Nevada Irr. Dist. (1969) 70 Cal.2d 240, 246-247 (Youngman).)

The general and conclusory allegations described above fail to allege facts, either expressly or by inference, from which the promises alleged in the FAC can be implied, which show that defendants manifested their assent to any implied promise, or which give rise to “circumstances from which could be found an implied agreement....” (Youngman, supra, 70 Cal.2d at p. 247; see also Requa v. Regents of University of California (2012) 213 Cal.App.4th 213, 226-228 [describing allegations sufficient to plead a cause of action arising from an implied contract]; Chandler v. Roach (1957) 156 Cal.App.2d 435, 440 [an implied-in-fact contract requires “mutual assent and consideration....”].) For these and all further reasons discussed above, the court will sustain the demurrer to the seventh cause of action on the grounds stated.

The eighth cause of action for breach of the implied covenant of good faith and fair dealing arises from the purported implied contract alleged in the seventh cause of action. (See FAC, ¶¶ 63-64.) “The implied covenant of good faith and fair dealing does not impose substantive terms and conditions beyond those to which the parties actually agreed. [Citation.] ‘The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party’s right to receive the benefits of the agreement actually made. [Citation.] The covenant thus cannot “ ‘be endowed with an existence independent of its contractual underpinnings.’ ” [Citation.] It cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement.’ [Citation.]” (Avidity Partners, LLC v. State of California (2013) 221 Cal.App.4th 1180, 1204, original italics.)

The same reasoning and analysis apply as to the eighth cause of action alleged in the FAC. For the same reasons further discussed above, and as the court will sustain the demurrer to the seventh cause of action for breach of implied contract, the court will also sustain the demurrer to the eighth cause of action for breach of the implied covenant of good faith and fair dealing on the grounds stated.

Leave to amend:

“Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment. ... Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636 (Cooper).)

The opposition of plaintiff to the demurrer does not include any request for leave to amend the FAC, and fails to “advance[] any effective allegation which [plaintiff] could now make if [an] amendment to the [FAC] were to be permitted.” (Cooper, supra, 70 Cal.2d at p. 636.) For these reasons, plaintiff has not met their burden to show how the FAC can be amended, or how that amendment will change its legal effect. The court further notes that the FAC is not an original complaint. (See Tarrar Enterprises, Inc. v. Associated Indemnity Corp. (2022) 83 Cal.App.5th 685, 688-689 [general discussion regarding denial of leave to amend original complaint].

Notwithstanding that plaintiff does not request leave to amend or advance any reasoned argument showing how any amendment will change the legal effect of the FAC or its allegations, the FAC does not necessarily show on its face that it is not capable of amendment. (Eghtesad v. State Farm General Ins. Co. (2020) 51 Cal.App.5th 406, 411 [general discussion].) For these reasons, the court will grant plaintiff leave to amend.