Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PC033882, Barbara M. Scheper, Judge.
Huron Law Group, Jeffrey Huron, Marilyn S. Scheer; Harrington, Foxx, Dubrow & Canter, David E. Bower for Plaintiff and Appellant.
Robert L. Esensten for Defendant and Respondent.
ARMSTRONG, J.
Plaintiff and appellant Noeman Samuels sued defendant Ira Forest claiming that Forest intentionally interfered with an oral agreement between Samuels and Sohrab and Faramarz Shakib (the "Shakibs") pursuant to which the Shakibs agreed that they would not attempt to purchase the Canyon Center, commercial property located in Santa Clarita (the "Property"), from Forest unless and until they were notified by Samuels that he was unable to reach and consummate a deal to acquire the Property himself. On Forest's demurrer, the trial court ruled that the statute of limitations barred this lawsuit, and that, "Forest, the seller of the property, was not bound by the alleged agreement between plaintiff and defendants Sohrab Shakib and Faramarz Shakib and was privileged to sell his property to whomever he wished." We conclude that the statute of limitations bars the action, and so affirm the judgment.
Samuels also brought various contract and tort claims against the Shakibs and broker Grubb & Ellis and its employees, none of which are subject to this appeal.
FACTUAL AND PROCEDURAL SUMMARY
On review of an order sustaining a demurrer, we take as true the well-pleaded facts of the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
In early 2001, Samuels met with Forest’s listing agents, Martin B. Cohan and Joshua L. Levy of Grubb & Ellis (together referred to as "Grubb & Ellis"), to discuss the possible purchase from Forest of a retail shopping center. Samuels orally agreed to hire Grubb & Ellis as his agent after it was made clear to him that the broker would not share its commission with Samuels's agent.
After about a year’s unsuccessful negotiation, in early 2002 Samuels entered into a partnership with the Shakibs (the "Partnership") to make an offer to purchase the Property. On or about March 13, 2002, Grubb & Ellis prepared a letter of intent on behalf of the Partnership, whereby the Partnership agreed that Rosa Bella and Carlyle Apartments, Inc. ("Carlyle"), entities controlled by Samuels and the Shakibs, respectively, would pay $18,150,000 for the Property and would deposit $500,000 into an escrow.
Samuels and the Shakibs agreed that, "either individually or through entities they controlled, would each acquire 50% interest in the Property, that they would make equal capital contributions, and that they would share equally the Partnership’s expenses, income and profits."
The Partnership submitted several offers to Forest on substantially the same terms as the letter of intent. The offers were not accepted.
On June 19, 2002, Samuels and the Shakibs terminated the Partnership and entered into an oral agreement in which Samuels agreed to pay the Shakibs $100,000 in return for their promise to step aside from the negotiations in order to permit Samuels to purchase the Property on his own account (what the parties refer to as the "Buyout Agreement").
Samuels immediately notified Grubb & Ellis of the Buyout Agreement. Samuels continued working with Grubb & Ellis and exchanged drafts of another offer on June 24, 2002. On June 26, 2002, Grubb & Ellis informed Samuels that Forest was no longer interested in negotiating with him or in selling the Property to him.
On July 9, 2002, after receiving a package from Commerce Escrow, Samuels learned that, on or about June 25, 2005, the Shakibs had entered into an agreement with Forest to purchase the Property for $18,150,000, the same amount offered by Samuels.
On November 4, 2003, Samuels sued the Shakibs for partnership dissolution, accounting, imposition of a constructive trust, appointment of a receiver, and breach of fiduciary duty. On February 28, 2006, Samuels filed a first amended complaint, adding Forest as a defendant. In the cause of action directed at Forest, Samuels alleged that he first learned that Forest knew about the Buyout Agreement when he took Forest's deposition in November 2005 in connection with the lawsuit against the Shakibs; he further alleged that Forest's deposition testimony revealed that he had intentionally induced the Shakibs to breach the Buyout Agreement by taking extraordinary measures to facilitate the Shakibs' purchase of the Property by, for example, agreeing to finance $2,000,000 of the purchase price for the Shakibs, agreeing to refund their deposit if they failed to qualify for the loan, and allowing them to extend the escrow by several months without extra cost. Samuels alleged compensatory damages exceeding $10,000,000, and sought punitive damages on the basis of Forest's oppression, fraud, and malice.
Forest demurred. He argued that the lawsuit was barred by the two-year statute of limitations contained in Code of Civil Procedure section 339 and that the delayed discovery rule did not apply. In the alternative, he argued that he had the absolute right to negotiate and sell the Property to whomever he wished. The trial court agreed and further held in the alternative that three-year statute of limitations contained in Code of Civil Procedure section 338, subdivision (d) bars this cause of action.
On appeal of a demurrer, we accept as true all well-pleaded facts of the complaint, and determine whether the complaint states a cause of action as a matter of law. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)
"Generally speaking, a cause of action accrues at 'the time when the cause of action is complete with all of its elements.'" (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-807.) The "delayed discovery rule" provides an important exception: "under the delayed discovery rule, a cause of action accrues and the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have revealed a factual basis for that particular cause of action. In that case, the statute of limitations for that cause of action will be tolled until such time as a reasonable investigation would have revealed its factual basis." (Id. at p.803.)
"In order to rely on the discovery rule for delayed accrual of a cause of action, '[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.' (McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 160.) In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to 'show diligence'; 'conclusory allegations will not withstand demurrer.' (Ibid.)" (Fox, supra, 35 Cal.4th at p. 808.)
Samuels maintains that the trial court erred in failing to apply the delayed discovery rule to toll the statute of limitations. He asserts that the cause of action for intentional interference with contract did not accrue until he deposed Forest in November 2005, and thereby discovered that Forest knew about the Buyout Agreement and offered the Shakibs favorable terms to induce their purchase of the Property. He argues that he could not, with reasonable investigation, have discovered earlier that Forest (1) knew about the Buyout Agreement or (2) engaged in intentional acts designed to induce the Shakibs breach the Buyout Agreement. Thus, he concludes that the lawsuit against Forest, filed February 28, 2006, is timely.
This argument ignores the fact that Samuels alleges in his complaint that he knew as of June 26 that Forest was no longer interested in negotiating with him, and as of July 9 that the Buyout Agreement had been breached, so that he would never be able to purchase the Property from Forest. There were only two parties who could be responsible for his alleged injury: the Shakibs and/or Forest. Thus, Samuels had all of the information that he needed in order to investigate whether one or both of these parties was responsible for his claimed loss.
As our Supreme Court explained in Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, "the plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof – when, simply put, he at least 'suspects . . . that someone has done something wrong' to him, 'wrong' being used, not in any technical sense, but rather in accordance with its 'lay understanding.' He has reason to discover the cause of action when he has reason at least to suspect a factual basis for its elements. He has reason to suspect when he has 'notice or information of circumstances to put a reasonable person on inquiry;' he need not know the 'specific "facts" necessary to establish' the cause of action; rather, he may seek to learn such facts through the 'process contemplated by pretrial discovery'; but, within the applicable limitations period, he must indeed seek to learn the facts necessary to bring the cause of action in the first place – he 'cannot wait for' them 'to find' him and 'sit on' his 'rights;' he 'must go find' them himself if he can and 'file suit' if he does." (Id. at p. 398, internal citations and footnotes omitted.)
Here it is undisputed that Samuels affirmatively knew of the Shakibs' breach of the Buyout Agreement and his resulting damages (i.e., loss of the opportunity to purchase the Property) on July 9, 2002 when he saw the purchase agreement between Forest and the Shakibs. Moreover, he knew that Grubb & Ellis, Forest's brokers in the sale of the Property, knew the terms of the Buyout Agreement. Since Grubb & Ellis represented Forest in the transaction and, by reason of that agency, had a duty to disclose to Forest all material information which it learned in the course of that representation, Samuels had reason to suspect that Forest knew of the existence and terms of the Buyout Agreement. In failing to discover the fact of Forest's knowledge of the Buyout Agreement until his deposition in November 2005, Samuels was, in the words of the Supreme Court, sitting on his rights and waiting for the facts to find him.
Samuels argues that he had placed trust and confidence in Cohan and Levy, the Grubb & Ellis employees representing all the parties to the transaction, and relied on them to disclose any improprieties regarding the sale of the Property. However, since he had agreed that Grubb & Ellis could represent all of the interested parties, Samuels's confidence in the broker's loyalty to him was patently unreasonable. Simply put, a reasonable person in Samuels's situation would have suspected that Forest may have known about the Buyout Agreement and nevertheless continued to negotiate with the Shakibs. Furthermore, Samuels failed to explain why he could not have investigated Forest's actions in inducing the Shakibs' breach of the Buyout Agreement within the two year limitations period. Indeed, he did not learn anything from Forest's deposition on November 1, 2005, which he could not have learned shortly after he received notice that Forest was selling the Property to the Shakibs, simply by posing to Forest the same questions he posed in the deposition.
Relying on Gryczman v. 4550 Pico Partners, Ltd. (2003) 107 Cal.App.4th 1, Samuels argues that the delayed discovery rule applied to his cause of action because (1) Forest's interference was committed secretly and was hard to detect; (2) Forest was in a far superior position to comprehend his interference; and (3) Forest had reason to believe that Samuels remained ignorant he had been wronged, since Samuels had not personally told Forest about the existence of the Buyout Agreement. We are not persuaded.
In Gryczman, supra, a potential property buyer sued a property owner for breach of an option agreement, claiming the owner had sold the property to another buyer without giving him notice and the opportunity to exercise his right of first refusal. The court held that the delayed discovery rule applies where "'[t]he injury or the act causing the injury, or both, have been difficult for the plaintiff to detect'; 'the defendant has been in far superior position to comprehend the act and the injury'; and 'the defendant had reason to believe the plaintiff remained ignorant he had been wronged.'" (Id. at p. 5.) Unlike the plaintiff in Gryczman who did not timely know of the breach of the option agreement and his damages because "the act which constituted the breach – failure to give notice of the option offer – was the very act which prevented plaintiff from discovering the breach" (ibid.), here Samuels affirmatively knew of the breach of the Buyout Agreement and his damages by July 9, 2002. Forest's alleged interference was not hard to detect. Moreover, Samuels was not in a far inferior position to comprehend the act and the injury given his active participation in the 18-month-long negotiation.
In sum, we conclude that the delayed discovery rule is not applicable to Samuels's action against Forest because Samuels failed to sustain his burden to demonstrate his inability to have made earlier discovery despite reasonable diligence. Accordingly, the trial court properly sustained Forest's demurrer based on the statute of limitations.
Since we conclude that Samuels's action against Forest was not timely filed, we need not discuss whether Samuels's complaint stated a cause of action for intentional interference with contractual relations. We nevertheless note that it does not. While Samuels may have had a right to enforce the terms of the Buyout Agreement against the Shakibs, he most certainly had no legally cognizable right to interfere with Forest's sale of the Property to the buyer of his choice. Indeed, if Samuels wished to bind Forest to the terms of the Buyout Agreement, it was incumbent upon him to secure Forest's consent to that arrangement. In the absence of Forest's agreement to accept the prospective buyers' self-imposed limitations on the Shakibs' right to negotiate with him, Forest had the right to sell his property to whomever he pleased on whatever terms he was able to secure.
DISPOSITION
The judgment is affirmed.
I CONCUR: TURNER, P. J.
MOSK, J., Dissenting
Our Supreme Court has said that “‘allegations must be liberally construed with a view to attaining substantial justice among the parties.’” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1232.) I believe the amended complaint sufficiently pleads a cause of action for the tort of inducing breach of contract and does not demonstrate on its face that the claim is barred by the statute of limitations. The law should not bar plaintiff from a factual determination on the allegations he makes.
Statute of Limitations
Although the alleged circumstances might conceivably suggest that plaintiff Samuels should have suspected that defendant Forest was involved in the alleged breach of contract, I am not prepared to say this issue concerning the statute of limitations should be resolved at the demurrer stage. “Resolution of a statute of limitations defense is normally a question of fact.” (Snapp & Associates Ins. Services, Inc. v. Robertson (2002) 96 Cal.App.4th 884, 889). The court in Snapp noted that “when the uncontradicted facts established through discovery are susceptible of only one legitimate inference, the trial court may determine the matter as one of law.” (Id. at pp. 889-890, italics added; see Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.)
The court in E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315-1316, 1320 (E-Fab) set forth the applicable rules as follows: “At issue here is the sustention of defendant’s demurrer on statute of limitations grounds. ‘The defense of statute of limitations may be asserted by general demurrer if the complaint shows on its face that the statute bars the action.’ (1 Schwing, Cal. Affirmative Defenses (2007) Statute of Limitations, § 25:78, p. 1609, fns. omitted; see Bennett v. Hibernia Bank (1956) 47 Cal.2d 540, 550 [305 P.2d 20].) There is an important qualification, however: ‘In order for the bar of statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.’ (McMahon v. Republic Van & Storage Co., Inc. (1963) 59 Cal.2d 871, 874 [31 Cal.Rptr. 603, 382 P.2d 875]; see also, e.g., Geneva Towers Ltd. Partnership v. City and County of San Francisco (2003) 29 Cal.4th 769, 781 [129 Cal.Rptr.2d 107, 60 P.3d 692].) ‘The ultimate question for review is whether the complaint showed on its face that the action was barred by a statute of limitations, for only then may a general demurrer be sustained and a judgment of dismissal be entered thereon.’ (Moseley v. Abrams (1985) 170 Cal.App.3d 355, 358 [216 Cal.Rptr. 40].) [¶] . . . [¶] ‘Resolution of the statute of limitations issue is normally a question of fact.’ (Fox [v. Ethicon Endo-Surgery, Inc. (2005)] 35 Cal.4th [797,] 810.) More specifically, as to accrual, ‘once properly pleaded, belated discovery is a question of fact.’ (Bastian v. County of San Luis Obispo [(1988)] 199 Cal.App.3d [520,] 527.) As our state’s high court has observed: ‘There are no hard and fast rules for determining what facts or circumstances will compel inquiry by the injured party and render him chargeable with knowledge. [Citation.] It is a question for the trier of fact.’ (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. [(1970)] 1 Cal.3d [586,] 597 [reversing judgment after demurrer].) ‘However, whenever reasonable minds can draw only one conclusion from the evidence, the question becomes one of law.’ (Snow v. A.H. Robins Co. (1985) 165 Cal.App.3d 120, 128 [211 Cal.Rptr. 271] [reversing summary judgment].) Thus, when an appeal is taken from a judgment of dismissal following the sustention of a demurrer, ‘the issue is whether the trial court could determine as a matter of law that failure to discover was due to failure to investigate or to act without diligence.’ (Bastian v. County of San Luis Obispo, at p. 527.)”
The court in E-Fab, supra, 153 Cal.App.4th at page 1326 concluded, “In sum, we conclude the pleading requirements for the delayed discovery rule are met here. In this case, it does not ‘clearly and affirmatively appear on the face of the complaint that the action is barred by the statute of limitations’ and ‘the demurrer should have been overruled on this ground.’ (Geneva Towers Ltd. Partnership v. City and County of San Francisco, supra, 29 Cal.4th at p. 782, fn. omitted.)”
Plaintiff pleaded the facts concerning his belated discovery of the facts concerning Forest’s knowledge of and involvement in the breach of the Samuels Shakib agreement. I do not believe one can draw inferences from the first amended complaint that plaintiff knew or should have known of the facts earlier. Such an inference requires some factual resolution. Plaintiff filed suit against the people he believed were responsible—Shakib and the brokers. Not having evidence that would lead him to suspect Forest was involved, he did not sue him—nor should he have. He first obtained such evidence during discovery. The limitations period begins to run at the time the person “has reason to discover the cause of action” and this is “when he has reason at least to suspect a factual basis for its elements.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 398.) In Norgart, the court noted that a plaintiff “may seek to learn such facts through the ‘process contemplated by pretrial discovery.’” (Ibid.) That is what happened here. This is not a case like Norgart, in which the plaintiff had admitted he had a suspicion. (Id. at p. 407.) In Norgart, the issue arose at the summary judgment stage, at which there were factual presentations. This also was the procedure in Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, which enunciated the same rule as in Norgart.
In Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 813, the Supreme Court stated, “[I]f a plaintiff's reasonable and diligent investigation discloses only one kind of wrongdoing when the injury was actually caused by tortious conduct of a wholly different sort, the discovery rule postpones accrual of the statute of limitations on the newly discovered claim.” The court in E-Fab, supra, 153 Cal.App.4th 1308 relied on this language to hold that a plaintiff's claims against two different parties under distinct legal theories for causing the same harm did not accrue at the same time.
In E-Fab, supra, 153 Cal.App.4th 1308—a demurrer case—the defendant employment agency assigned a temporary bookkeeper to work for plaintiff. The bookkeeper embezzled $1 million from plaintiff beginning in 1996. The court assumed that plaintiff was negligent in failing to discover the embezzlement prior to the bookkeeper's arrest in November 2003. At about the time the bookkeeper was arrested, plaintiff discovered from the police that the defendant agency had misrepresented the bookkeeper’s criminal history. The court of appeal held that, even though plaintiff was charged with knowledge of the harm caused by the bookkeeper as early as 1996, the plaintiff's fraud claim against the agency did not accrue until plaintiff learned of the misrepresentation.
The court stated, “[C]laims based on two independent legal theories against two separate defendants can accrue at different times. (Fox, supra, 35 Cal.4th at pp. 802-803, 27 Cal.Rptr.3d 661, 110 P.3d 914.) And as Snow recognizes, a second, independent claim against a single defendant based on fraud or concealment can have a later accrual date. (Snow v. A.H. Robins Co., supra, 165 Cal.App.3d at p. 134, 211 Cal.Rptr. 271.) In Snow, the accrual trigger for the plaintiff's fraud claim was her discovery of the defendant's deception concerning pregnancy rates, not her earlier knowledge that her contraceptive device had failed, harming her. (Ibid.) Likewise, in Brandon G., the critical event for accrual was the plaintiffs' discovery of the County's misrepresentations about the daycare facility, not their earlier knowledge that their child had been molested there. (Brandon G. v. Gray, supra, 111 Cal.App.4th at p. 36, 3 Cal.Rptr.3d 330.) [¶] Applying the foregoing legal authority, we conclude that the accrual trigger in this case was plaintiff's discovery that defendant had misrepresented Hunt's record and qualifications, not any earlier notice of Hunt's fraud. The limitations period thus commenced in November 2003, when the police reported Hunt's criminal record, which first put plaintiff on notice of defendant's independent wrongdoing. [¶] Since plaintiff filed this action in August 2005, and since both parties agree that the shortest limitations period is two years, the action is not barred, provided only that plaintiff has met the pleading requirements imposed by the discovery rule.” (E-Fab, supra, 153 Cal.App.4th at pp. 1323-1324.)
Here, plaintiff timely filed its complaint against Shakib, the buyer, and the brokers. There is at least a factual question as to when the cause of action against Forest accrued.
Inducing Breach of Contract
I also believe that plaintiff has stated a cause of action for inducing breach of contract. The defense of privilege is an affirmative defense that must be pleaded and proved. (Mayes v. Sturdy Northern Sales, Inc. (1979) 91 Cal.App.3d 69, 79-80, overruled on another ground by Applied Equip. Corp. v. Litton Saudi Arabia (1994) 7 Cal.4th 503, 521, fn. 10; 5 Witkin, Cal. Procedure (2d ed. 1997) Pleading, § 1027, p. 476.) This is not a matter that can be determined by demurrer unless the complaint itself shows the existence of the privilege.
A seller has an absolute right not to sell the property to a particular buyer—for any or no reason—as long as the seller does not violate any anti-discrimination or anti-trust laws. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 49 (Quelimane); 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 761, p. 1102.) Further, a seller has a right to sell the property in the “normal course” of business to whomever the seller chooses, notwithstanding the buyer’s contract with another. When a seller makes a sale as business in the “normal course,” that seller has not induced a breach of contract. (Rest.2d Torts, § 766, com. m, p. 14.) Therefore, had plaintiff alleged only that Forest sold the property to Shakib notwithstanding Shakib’s contract with plaintiff, plaintiff may not have stated a cause of action against Forest.
Forest did not have a right, however, to use its otherwise lawful sale of the property to “intentionally and improperly interfere[] with the performance of [Shakib’s] contract [with plaintiff] . . . by inducing or otherwise causing [Shakib] not to perform the contract . . . .” (Rest.2d Torts, § 766; Quelimane, supra, 19 Cal.4th at p. 56, fn. 15.) Plaintiff is not required to allege or to prove that Forest’s actions were wrongful apart from their disruption of plaintiff’s contractual relationship with Shakib. “Intentionally inducing or causing a breach of an existing contract is . . . a wrong in and of itself.” (Quelimane, supra, 19 Cal.4th at pp. 55-56.) Nor must plaintiff allege or prove that disruption of the contract was Forest’s primary purpose. A party may be liable for inducing breach of contract even though that party “‘does not act for the purpose of interfering with the contract or desire it but knows that the interference is certain or substantially certain to occur as a result of his action. The rule applies, in other words, to an interference that is incidental to the actor’s independent purpose and desire but known to him to be a necessary consequence of his action.’” (Id. at p. 56.) Thus, Forest can be liable to plaintiff for engaging in otherwise lawful conduct—such as selling the property to Shakib—if by doing so Forest intentionally induced or caused Shakib to breach the contract.
Plaintiff alleged that Forest went to “extraordinary” lengths to induce Shakib to purchase the property, knowing and intending that Shakib’s purchase would necessarily result in a breach of the contract. This is sufficient to state a claim for intentionally inducing the breach of an existing contract. (See Rest.2d Torts, § 766, com. j, p. 12)
Because plaintiff states a claim against Forest for intentionally inducing the breach of an existing contract, we cannot say from the face of the complaint that Forest’s conduct was privileged. “Whether an intentional interference by a third party is justifiable depends upon a balancing of the importance, social and private, of the objective advanced by the interference against the importance of the interest interfered with, considering all circumstances including the nature of the actor’s conduct and the relationship between the parties. [Citations.] Justification is an affirmative defense and may not be considered as supporting the trial court’s action in sustaining a demurrer unless it appears on the face of the complaint.” (Herron v. State Farm Mutual Ins. Co. (1961) 56 Cal.2d 202, 206.)
No California case has held that a seller is always privileged to sell to the buyer of his or her choice. For example, a seller may be privileged to sell to a particular buyer notwithstanding the seller’s knowledge that the buyer has contracted to purchase the same goods from a third party, provided the seller is conducting business in the normal course and the seller’s primary motivation is to make the sale. A seller is not privileged, however, to sell to a buyer who is under contract to purchase from a third party when the seller’s motivation is to induce a breach of the existing contract and the seller’s actions have that effect. (Rest.2d Torts, § 766, com. j, p. 12, com. m, p. 14.) Whether Forest’s conduct was privileged in this case thus depends upon whether Forest made the sale in the usual course of business, or whether Forest used the sale to Shakib as the means to induce Shakib to breach the contract with plaintiff. Plaintiff here alleged that Forest intended to induce a breach, and took actions to persuade Shakib to purchase that went beyond the ordinary course of business. Accordingly, no privilege is apparent on the face of the complaint. As stated in the Restatement of Torts, section 766, comment m, p. 14 and comment o, p. 15, whether the conduct of a seller constitutes the tort of inducing a breach of contract is a question of fact.
The demurrer should have been overruled. At the very least, plaintiff should have been allowed to amend. For these reasons, I would reverse the order of dismissal.