Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. KC 048105, Dan T. Oki, Judge.
Law Office of Matthew R. Seifen and Matthew R. Seifen for Plaintiff and Appellant.
Horvitz & Levy, Mitchell C. Tilner, John A. Taylor, Jr.; Mundell, Odlum & Haws, Karl N. Haws and Jim C. Moore for Defendants and Respondents Pomona Unified School District, Mark Maine, George Hunter, Nancy McCracken, John Avila, Candelario Mendoza, Richard Rodriguez, Patrick Leier and Barbara Thompson.
Reich Radcliffe, Marc G. Reich and Adam T. Hoover for Defendants and Respondents Pomona Valley Educational Foundation and A.J. Wilson.
FLIER, J.
Seth Dallob Enterprises, LLC, appeals a judgment entered after the trial court sustained demurrers asserted by respondents Pomona Unified School District (District), Pomona Valley Educational Foundation (Foundation) and their employees to appellant’s second amended complaint arising from appellant’s lease of premises from the District or the Foundation. We affirm in part and reverse in part.
For clarity of discussion, we sometimes refer to the District and its individual employees as “District” and the Foundation and its employee as “Foundation,” referring to specific individual respondents as the context requires. We sometimes also refer to Seth Dallob Enterprises, LLC, and its managing member, Seth Dallob, jointly as “appellant.”
FACTS AND PROCEDURAL HISTORY
In reviewing the sufficiency of a complaint against general demurrers, we apply well established law: we treat the demurrers as admitting all properly pleaded material facts, but not the plaintiff’s contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
The second amended complaint alleges as follows. Safari Athletic Club, Inc., leased the premises in issue from Cameron Properties, Inc., under a written lease that ran from October 1, 1999, to February 28, 2005. Sometime after February 2000, Cameron Properties, Inc., conveyed its interest to either the District or the Foundation. Safari Athletic Club, Inc., continued to operate a club known as the Safari Athletic Club at the premises under its lease.
On February 5, 2004, appellant entered into an agreement with Safari Athletic Club, Inc., to acquire the club.
On March 25, 2004, respondent A.J. Wilson, the Foundation’s director, sent a memorandum to the president of Safari Athletic Club, Inc. In this memorandum, Wilson stated that the Foundation “would ‘accept the assignment of the [Cameron Properties, Inc., lease] with Safari Gym [sic] and enter into a new lease with [appellant], which will include a term of ten years, including options to extend.’” Appellant alleges this memorandum was sent “[i]n connection with and in furtherance of” appellant’s acquisition of the club. The March 2004 memorandum was allegedly “integral” to appellant’s acquisition of the club since it needed a Small Business Administration (SBA) loan to complete the acquisition and could not obtain the loan without it.
Appellant completed its transaction with Safari Athletic Club, Inc., on March 31, 2004, and it began operating the club under an assignment of the Cameron Properties, Inc., lease. About that time, appellant began discussions with Wilson concerning a new lease for the premises.
In June 2004, appellant sent Wilson a letter “documenting [its] request for the new lease for the [p]remises, as represented in the March 25, 2004 [m]emorandum.” Appellant met with Wilson in mid-July 2004. At the meeting, Wilson presented to appellant a proposed lease with a term of five years that allowed the lessor to terminate the lease upon 60 days’ notice. Later in July, Wilson informed appellant the Cameron Properties, Inc., lease could not be modified or extended. However, he stated the District and the Foundation were willing to execute a use of facilities agreement with appellant within the tenets of the Civic Center Act (Ed. Code, § 38130 et seq.).
After this meeting and through December 2004, appellant had numerous discussions and meetings with officers, managers and representatives of the District and Foundation concerning “the methodology, terms and conditions for a use of facilities agreement.” The District and Foundation expressed interest and affirmed their willingness to grant appellant a use of facilities agreement, and plans were made and agreed upon for adult education classes to be held on the premises.
A short time later, however, the Foundation sent appellant a formal notice that the Cameron Properties, Inc., lease would end on February 28, 2005, and the Foundation did not have authority to enter into new leases.
In January 2005, appellant met with Wilson and District employees Mark Maine and George Hunter to discuss an arrangement for appellant to continue using the premises. Allegedly, appellant was told to accept the use of facilities agreement verbatim or close the club when the lease expired on February 28, 2005. Facing no alternative, appellant entered into a use of facilities agreement with the District for the period March 1, 2005, to June 30, 2005.
In April and May 2005, appellant sent Wilson and Hunter letters seeking an extension of the use of facilities agreement, and the parties agreed to extend the agreement on a month-to-month basis after its expiration. In June 2005, appellant entered into a written agreement to sell the club to Jason and Marie Ahn for $590,000. An escrow was opened for the sale on July 5, 2005, and was scheduled to close on July 27, 2005.
On July 19, 2005, appellant, the Ahns and Wilson had a meeting to discuss an assignment of the use of facilities agreement. During the discussion, Wilson allegedly stated that the District and the Foundation “did not have any plans” for the premises, the use of facilities agreement would be extended on a month-to-month basis and the agreement would be assigned to the Ahns.
Nine days later, on July 28, 2005, Hunter informed appellant that the District would not assign the use of facilities agreement to the Ahns. Appellant alleges on information and belief that this decision was made “arbitrarily, capriciously and without the exercise of discretion.” As a result of the refusal to assign the use of facilities agreement, the Ahns cancelled the sale of the club on August 2, 2005.
“In response to [the District’s] threats of eviction,” appellant ceased doing business on the premises on August 31, 2005. Appellant was unable to locate an alternative location to continue its business.
After the District rejected appellant’s claim for damages, appellant sued both the District and the Foundation, the Foundation’s director Wilson and the individual District employees in April 2006. The District and its individual employees demurred to all claims asserted against them. The court sustained the demurrers in part and granted appellant leave to amend.
Appellant subsequently filed a first amended complaint, and the District and its employees again demurred to all claims asserted against them. This time, the court sustained the demurrers in their entirety but granted appellant leave to amend.
Appellant then filed a second amended complaint asserting claims for: (1) fraud and negligent misrepresentation against the Foundation and Wilson; (2) breach of the implied covenant of good faith and fair dealing against the District and the Foundation; (3) intentional and negligent interference with economic advantage against all respondents; (4) violation of Civil Code section 1946 for failure to give written notice of termination of a month-to-month tenancy against the District; and (5) declaratory relief against the District and the Foundation.
All respondents demurred to the second amended complaint, and the trial court sustained the demurrers without leave to amend. Appellant prematurely appealed from the court’s nonappealable minute order, after which the court entered an order (judgment) of dismissal.
Under the rule of liberal construction, we will construe the appeal taken from the nonappealable minute order as taken from the subsequently entered judgment. (Cal. Rules of Court, rules 8.100(a)(2), 8.104(e)(2); Forsyth v. Jones (1997) 57 Cal.App.4th 776, 780; see also Conley v. Roman Catholic Archbishop (2000) 85 Cal.App.4th 1126, 1130; see 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 463, p. 511 [“A notice of appeal that specifies a nonappealable order or other interlocutory determination may be construed to refer to an existing appealable judgment or order that could and should have been specified”].)
STANDARD OF REVIEW
On an appeal from a judgment of dismissal after demurrers are sustained without leave to amend, we review the legal sufficiency of the complaint de novo, exercising our independent judgment about whether the complaint states a cause of action as a matter of law. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515; Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) When a demurrer is sustained without leave to amend, we must decide whether there is a reasonable possibility the defect can be cured by amendment. If we find the pleading may be cured by amendment, the trial court has abused its discretion, and we reverse; if the pleading may not be cured by amendment, there has been no abuse of discretion, and we affirm. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) Appellant has the burden of proving a reasonable possibility the defect may be cured by amendment. (Ibid.)
DISCUSSION
1. Waiver
Appellant suggests that because respondents Foundation and Wilson initially answered the complaint and first amended complaint, they are foreclosed from demurring to the second amended complaint. We do not agree.
These respondents interposed a general demurrer to each cause of action asserted against them in the second amended complaint. An objection that a complaint fails to state facts sufficient to constitute a cause of action addresses the court’s power to grant relief. Therefore, the objection can be raised at any time, even if the defendant has already answered. (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 307, fn. 9; DeTomaso v. Pan American World Airways, Inc. (1987) 43 Cal.3d 517, 520, fn. 1; see Henry v. Associated Indemnity Corp. (1990) 217 Cal.App.3d 1405, 1413 & fn. 8.)
2. Fraud
Appellant contends the trial court erred in sustaining its cause of action for fraud against respondents Foundation and Wilson. We disagree.
To state a cause of action for fraud, a plaintiff must allege: “(1) A promise made regarding a material fact; (2) the absence of intent on the part of the defendant at the time the promise was made to perform it; (3) intent on the part of the defendant to induce action by plaintiff; (4) justifiable reliance on the promise by plaintiff; (5) nonperformance of the promise by the defendant, and (6) injury and damage proximately resulting to the plaintiff.” (Bondi v. Jewels by Edwar, Ltd. (1968) 267 Cal.App.2d 672, 677.) Every element must be specifically pleaded. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157 [“The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written”].) And “[d]amage to be subject to a proper award must be such as follows the act complained of as a legal certainty.” (Agnew v. Parks (1959) 172 Cal.App.2d 756, 768.) Appellant’s second amended complaint fails to satisfy essential elements, since it does not adequately plead justifiable reliance on the part of appellant or damage proximately caused by the alleged conduct.
The only specific allegation made by appellant is that in March 2004, Wilson, while acting as an agent for the Foundation, “falsely and fraudulently promised” that, at the end of the existing lease term, the Foundation would “enter into a new lease . . . which would include a term of ten years and options to extend.” Appellant clearly alleges, however, that it had already entered into the agreement to acquire the club in February 2004, over a month before Wilson’s memorandum. Appellant therefore could not have relied on Wilson’s representation in entering into the transaction. Wilson’s statement may have been “integral” to appellant’s obtaining funding for the transaction and may have facilitated its completion, but at that point appellant had already agreed to make the acquisition. There was thus no justifiable reliance on the part of appellant.
Moreover, to recover for fraud, a plaintiff must prove “‘detriment proximately caused’ by the defendant’s tortious conduct. [Citation.] Deception without resulting loss is not actionable fraud. [Citation.] ‘Whatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representations must be shown.’” (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1818.) “A false representation which cannot possibly affect the intrinsic merits of a business transaction must necessarily be immaterial because reliance upon it could not produce injury in a legal sense.” (Hill v. Wrather (1958) 158 Cal.App.2d 818, 824; Service by Medallion, Inc., supra, at p. 1818; see also Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 364-366.) To state a cause of action for fraud, appellant must show a causal connection between a representation by the Foundation or Wilson and appellant’s claimed damages, which the second amended complaint fails to do. Further, appellant pleaded only in conclusory fashion that it incurred damages in an amount “believed to be greater than $500,000.00.” This is an insufficient pleading of reliance damages.
Notwithstanding that appellant fails to indicate how it might amend its pleading to state a fraud cause of action, we determine appellant should have been granted leave to amend as discussed, post.
3. Negligent Misrepresentation
The elements of a cause of action for negligent misrepresentation are (1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages. (Fox v. Pollack (1986) 181 Cal.App.3d 954, 962.)
Appellant’s negligent misrepresentation claim fails for much the same reasons that its claim for intentional misrepresentation cannot stand. Appellant fails to allege justifiable reliance and further fails to show a causal nexus between any misrepresentation and damages.
Moreover, appellant alleges the Foundation and Wilson “knew or reasonably should have known that they did not have any basis in fact for making the promises” alleged and made such representations “with the intent to induce [appellant] to purchase the [club] and to enter into an SBA loan.” (Italics added.) In essence, appellant alleges the Foundation and Wilson were intentionally negligent, a contradiction in legal theory. The complaint fails to allege that respondents made false representations honestly believing they were true without reasonable grounds for such a belief, the fundamental basis of negligent misrepresentation. There is no tort of negligent false promise. (Tarmann v. State Farm Mut. Auto. Ins. Co., supra, 2 Cal.App.4th at p. 159 [“making a promise with an honest but unreasonable intent to perform is wholly different from making one with no intent to perform and, therefore, does not constitute a false promise”].)
The trial court properly sustained the demurrer to the negligent misrepresentation claim. Nevertheless, appellant should have been granted an opportunity to amend this cause of action as well as its claim for fraud.
4. Breach of Implied Covenant of Good Faith and Fair Dealing
Appellant contends the trial court erred in sustaining without leave to amend its claim against the District and the Foundation for breach of the implied covenant of good faith and fair dealing.
The second amended complaint alleges that an implied covenant of good faith and fair dealing arose from the use of facilities agreement between appellant and the District and the Foundation. Appellant alleges as a result of this implied covenant, the District and the Foundation bore an obligation to “freely assign” the use of facilities agreement and could not refuse to assign that agreement without a “commercially reasonable objection.” On information and belief, appellant alleges respondents breached the implied covenant by “arbitrarily, capriciously and without the exercise of discretion” refusing to assign the agreement to the Ahns without a commercially reasonable objection and “arbitrarily, capriciously and without the exercise of discretion” forced appellant to vacate the premises.
It is well established that every contract imposes upon each party to the contract a duty of good faith and fair dealing in the performance of the contract such that neither shall do anything that will destroy or injure the right of the other party to receive the benefits of the contract. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 36; Pasadena Live v. City of Pasadena (2004) 114 Cal.App.4th 1089, 1093 (Pasadena Live).)
For the reasons below, appellant fails to sufficiently allege a breach of the implied covenant by the District or the Foundation.
A. Breach of Implied Covenant by the District
Our Supreme Court has made clear that an implied covenant of good faith and fair dealing cannot contradict the express terms of a contract. (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 374 (Carma) [“We are aware of no reported case in which a court has held the covenant of good faith may be read to prohibit a party from doing that which is expressly permitted by an agreement”]; Storek & Storek, Inc. v. Citicorp Real Estate, Inc. (2002) 100 Cal.App.4th 44, 55 (Storek) [“an implied covenant of good faith and fair dealing cannot contradict the express terms of a contract”].) Correspondingly, it has been held that the implied covenant of good faith and fair dealing does not impose an affirmative duty on a party to refrain from enforcing rights expressly given under the contract. (Storek, at p. 56 & fn. 10; Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 479 [“The covenant of good faith and fair dealing . . . does not impose any affirmative duty of moderation in the enforcement of legal rights” (citations omitted)].)
Moreover, the implied covenant cannot be used to limit or restrict an express grant of discretion to one of the contracting parties. (New Hampshire Ins. Co. v. Ridout Roofing Co. (1998) 68 Cal.App.4th 495, 504.) “[C]ourts are not at liberty to imply a covenant directly at odds with a contract’s express grant of discretionary power except in those relatively rare instances when reading the provision literally would, contrary to the parties’ clear intention, result in an unenforceable, illusory agreement.” (Third Story Music, Inc. v. Waits (1995) 41 Cal.App.4th 798, 808.) A provision for termination by one or either party to a contract after notice for a fixed period is enforceable and does not make the contract illusory. (R. J. Cardinal Co. v. Ritchie (1963) 218 Cal.App.2d 124, 143.)
In Gerdlund v. Electronic Dispensers International (1987) 190 Cal.App.3d 263, 268, a contract between the defendant and its sales representatives stated that “[n]otice of termination may be given at any time and for any reason” by either party on 30 days’ notice. Plaintiffs asserted that the agreement should be interpreted to incorporate an implied obligation to terminate only “for any good reason.” (Id. at p. 273.) The court held it was reversible error to invite the jury to apply an implied covenant of fair dealing to override an express provision of the written contract, stating: “No obligation can be implied . . . which would result in the obliteration of a right expressly given under a written contract. ‘There cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results.’” (Id. at p. 277.)
In this case, the facilities use agreement expired by its own terms on June 30, 2005, and was extended by the parties on a “month-to-month basis” only. A month-to-month tenancy is terminable at will as a matter of law. (Miller & Desatnik Management Co. v. Bullock (1990) 221 Cal.App.3d Supp. 13, 18 [month-to-month tenancy terminable “at the will of either party”]; see 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, §§ 507-508, pp. 584-585 [periodic month-to-month tenancies are a form of tenancy at will; a “tenancy at will . . . has no fixed term and is terminable at the will of either party”].) Because a month-to-month tenancy may be terminated at will by either party, the contract was not breached by any exercise of an express contractual right to terminate the use of facilities agreement.
Appellant’s additional assertion that the District’s discretion was exercised “arbitrarily” and “capriciously” adds nothing to its allegations. (Italics added.) The Supreme Court has held that, when a commercial lease gave the lessor the absolute right to terminate the lease upon notice by the lessee of intent to sublet or assign, the landlord’s termination of the lease in order to claim for itself the appreciated rental value of the premises was “expressly permitted” and “clearly within the parties’ reasonable expectations” under the lease. (Carma, supra, 2 Cal.4th at p. 376.) “In our view,” the Court stated, “such conduct can never violate an implied covenant of good faith and fair dealing.” (Ibid., fn. omitted.)
Appellant’s further allegation that the refusal to agree to the assignment to the Ahns was “without the exercise of discretion” fails to negate the contract’s express provision allowing termination of the month-to-month tenancy in the parties’ discretion under the facts pleaded in the second amended complaint. (See discussion, post.)
Citing Civil Code section 1995.260, appellant asserts that leases containing “no express standard or condition for giving or withholding consent [to an assignment of the lease] are deemed to include an implied standard that the landlord’s consent may not be ‘unreasonably’ withheld.” That statute, however, has no application here because the lease gave the District an express right to terminate the lease. As the Supreme Court in Carma explained, section 1995.260 deals with a transfer consent restriction, rather than a landlord’s contractual right to terminate a lease. “[T]ermination is entirely different from denial of consent to transfer.” (Carma, supra, 2 Cal.4th at p. 367.)
Civil Code section 1995.260 provides, “If a restriction on transfer of the tenant’s interest in a lease requires the landlord’s consent for transfer but provides no standard for giving or withholding consent, the restriction on transfer shall be construed to include an implied standard that the landlord’s consent may not be unreasonably withheld. . . .”
B. Breach of Implied Covenant by Foundation
As to the Foundation, the claim for breach of the implied covenant further fails because the Foundation is not alleged to have been a party to the agreement. As Foundation notes, the implied covenant of good faith and fair dealing applies only to the contracting parties, i.e., those in contractual privity. (Pasadena Live, supra, 114 Cal.App.4th at p. 1093; Harm v. Frasher (1960) 181 Cal.App.2d 405, 417.) Appellant alleged that “on or about February 24, 2005, [appellant] and [the District] entered into a [u]se of [f]acilities [a]greement . . . .” Under appellant’s allegations, a duty of good faith and fair dealing never arose as to the Foundation since it was not one of the contracting parties.
The trial court properly sustained the demurrers to the claim for breach of the implied covenant without leave to amend.
5. Interference with Contract
Although entitled intentional and negligent interference with “economic advantage,” appellant’s fourth and fifth causes of action claimed that all respondents intentionally and negligently interfered with an existing contract with the Ahns. The second amended complaint alleges that respondents knew of appellant’s agreement to sell the club to the Ahns, but, despite Wilson’s representations that the use of facilities agreement would be assigned to the Ahns, Hunter advised appellant there would be no such assignment by the District. Appellant alleges this decision was made “arbitrarily, capriciously and without the exercise of discretion.”
The trial court below decided the second amended complaint describes the alleged interference as resulting from an act of the District and its employee Hunter, not the Foundation or Wilson and, therefore, no cause of action for interference was stated against the Foundation or Wilson. As to the District and its employees, the trial court concluded that the decision not to perform a contract is discretionary and that governmental immunity applied to bar appellant’s claims.
The trial court properly sustained the demurrers to these causes of action.
A. No Interference by the Foundation Defendants
Appellant contends the trial court erred in sustaining the Foundation and Wilson’s demurrer because the second amended complaint alleges an interference with an existing contract with the Ahns, and, as such, appellant was not required to plead the existence of an independently wrongful act, “beyond the fact of the interference itself.”
Appellant focuses its argument as to why this court should reverse the trial court’s ruling on the interference claims entirely upon whether appellant must plead independently wrongful conduct. Appellant maintains that it need not plead an independently wrongful act because it is alleging interference with an existing, rather than a merely prospective, contract. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55 (Quelimane) [“Because interference with an existing contract receives greater solicitude than does interference with prospective economic advantage [citation], it is not necessary that the defendant’s conduct be wrongful apart from the interference with the contract itself”].)
Appellant misses the point. The operative allegations of the second amended complaint state that “on or about July 28, 2005, [respondent] Hunter advised [appellant] that there would be no assignment of the [u]se of [f]acilities [a]greement by [the District] to the Ahns.” The pleading further alleges that “[a]s a result of [the District’s] refusal to assign the [u]se of [f]acilities [a]greement for the [p]remises to the Ahns, the sale of the [club] to the Ahns was cancelled . . . .” Neither the Foundation nor Wilson is alleged to have committed the act that allegedly interfered with appellant’s contract.
The tort of interference with contract requires an act of interference which is not here alleged against these respondents. (See Quelimane, supra, 19 Cal.4th at p. 55[intentional interference with contract requires the “‘defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship’”].)
Appellant recognizes that a plaintiff seeking recovery for intentional or negligent interference with existing contractual relations at least must plead and prove “the fact of the interference . . . .” The District and its employee Hunter, not the Foundation or its employee Wilson, are alleged to have refused the assignment to the Ahns. Appellant does not allege any conduct by Wilson or the Foundation beyond Wilson’s representation that the use of facilities agreement “would be assigned to the Ahns.” Such a representation, even if made, was not an act of interference with appellant’s purported contract with the Ahns and therefore does not support either of the interference claims.
B. Immunity for District and Its Employees
Appellant urges that the trial court committed reversible error in sustaining the demurrer of the District and its employees because appellant’s claims were grounded in contract and were not properly subject to the California Tort Claims Act (Gov. Code, § 810 et seq.; Act). Appellant asserts that approval of the assignment of the use of facilities agreement was a purely ministerial, not discretionary, act for which governmental immunity is not available. Appellant contends that, even if the Act were applicable, appellant’s claims should not have been barred because the District and its employees cannot at this early pleading stage meet their burden of establishing their actions were discretionary. Finally, appellant argues that public policy mandates that public entities not be protected from liability arising out of contract.
Initially, we reject appellant’s argument that his interference claims were grounded in contract and not properly subject to the Act. The gravamen of interference with economic relations lies in tort, not contract. (See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153; Quelimane, supra, 19 Cal.4th at p. 55; Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 381; LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 349.) Thus, appellant’s claim that public policy mandates against shielding public entities from their own breach of contract is factually unsupported. Moreover, appellant’s interference tort claims are precluded by governmental immunity.
The Act provides there is no common law liability of a public entity, and public entities may be held liable only if a statute is found declaring them to be liable. (Gov. Code, § 815.) A public entity may be liable for its employee’s act or omission within the scope of employment if the employee would be liable. (Gov. Code, § 815.2, subd. (a).) Public employees are liable for their torts unless a statute provides otherwise. (Gov. Code, § 820, subd. (a); Barner v. Leeds (2000) 24 Cal.4th 676, 682 (Barner).) However, unless otherwise provided by statute, when a public employee is immune from liability under the Act, his or her public entity employer is immune as well. (Gov. Code, § 815.2, subd. (b).)
Government Code section 820.2 codifies the common law immunity for the discretionary acts of a government official performed within the scope of his or her authority. (Caldwell v. Montoya (1995) 10 Cal.4th 972, 979-980 (Caldwell).) Section 820.2 provides: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” (See Osborne v. Huntington Beach etc. School Dist. (1970) 5 Cal.App.3d 510, 514 (Osborne) [“A public official or public employee is not liable for injury caused by an act which was the result of the exercise of discretion vested in him”].) When a claim is “based on the exercise of discretion by . . . state employees, governmental immunity precludes the imposition of any liability based on a tort theory.” (Pacific Architects Collaborative v. State of California (1979) 100 Cal.App.3d 110, 121.) The Supreme Court has explained that this immunity for discretionary acts “leaves public officials free from unseemly judicial interference against them personally when they debate and render those basic policy and personnel decisions entrusted to their independent judgment. [Citations.]” (Caldwell, supra, 10 Cal.4th at p. 988.)
Whether an act is discretionary under the immunity statute is determined in light of “policy considerations relevant to the purposes of granting immunity to the governmental agency whose employees act in discretionary capacities.” (Johnson v. State of California (1968) 69 Cal.2d 782, 789, 796-797 (Johnson).) Immunity generally turns on “whether the act in question was ‘discretionary’ or ‘ministerial’ . . . .” (McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 260; see Barner, supra, 24 Cal.4th at p. 685 [“we have distinguished between the [public] employee’s operational and policy decisions” (italics added)].)
In Barner, the Supreme Court distinguished between a deputy public defender’s initial determination “whether to provide representation to a certain class of individuals or to represent a particular defendant” and his or her execution of such a decision in representing a particular client. (Barner, supra, 24 Cal.4th at p. 688.) The former, the Supreme Court explained, “is a sensitive policy decision that requires judicial abstention to avoid affecting a coordinate governmental entity’s decisionmaking or planning process”; in contrast, the latter involves “operational duties that merely implement the initial decision to provide representation.” (Ibid.)
More recent cases have made the same distinction between a policy decision and acts taken in furtherance of that decision. (Perez-Torres v. State of California (2007) 42 Cal.4th 136, 141-143 [state officials’ decision to revoke violator’s parole was subject to immunity but subsequent act in keeping plaintiff in jail after officials knew or should have known plaintiff was the wrong man was action implementing policy decision not covered by statutory immunity]; Jacqueline T. v. Alameda County Child Protective Services (2007) 155 Cal.App.4th 456, 468 [social worker’s decisions relating to investigation of child abuse, removal of a minor, and instigation of dependency proceedings are discretionary decisions subject to immunity].)
A number of decisions have held that governmental immunity applies to the discretionary decisions of school employees, such as the decision here to terminate appellant’s month-to-month lease so that the property could be made available for other purposes.
For example, in Caldwell, the plaintiff sued a school district and its individual board members for race and age discrimination based on their successful votes to terminate his employment as the school district’s superintendent. (Caldwell, supra, 10 Cal.4th at pp. 975-976.) The Supreme Court held that “‘discretionary act’ immunity extends to ‘basic’ governmental policy decisions entrusted to broad official judgment,” and the decision of a school board member to replace the superintendent “is such a determination.” (Id. at p. 976.) The Supreme Court reasoned, “there seems little doubt that votes by members of a school district’s governing board whether to renew the superintendent’s employment contract qualify as discretionary acts within the meaning of [Government Code] section 820.2,” because “‘[t]here is a vital public interest in securing free and independent judgment of school trustees in dealing with personnel problems.’” (Id. at p. 982.) The Supreme Court noted, “It is well settled that the . . . general immunity for discretionary acts . . . extends to fundamental decisions within the executive or administrative authority of the agency or official.” (Caldwell, supra, 10 Cal.4th at p. 983, fn. 5.) Moreover, “a strictly careful, thorough, formal, or correct evaluation” is not required, because “[s]uch a standard would swallow an immunity designed to protect against claims of carelessness, malice, bad judgment, or abuse of discretion in the formulation of policy.” (Id. at pp. 983-984.)
Several other cases involving decisions made by school districts and their employees have found discretionary immunity to apply. (DiLoreto v. Board of Education (1999) 74 Cal.App.4th 267, 282 [school officials’ decision to reject posting of religious advertisement on public high school baseball field wall]; Osborne, supra, 5 Cal.App.3d at pp. 514-515 [government agency’s advice to other government agency not to perform unenforceable oral contract to which latter agency and third person were parties]; Jones v. Oxnard School Dist. (1969) 270 Cal.App.2d 587, 593-594 [school district employees’ denial of teaching position to plaintiff].)
Appellant contends the alleged interference with contract is a purely ministerial action. We do not agree. Appellant’s claim is based upon the policy decision that “there would be no assignment of the [u]se of [f]acilities [a]greement by [the District] to the Ahns.” The decision whether to allow a lease of public property to be assigned is a discretionary policy decision for which the District and its employees are immune under Government Code section 820.2. Appellant’s claims are based, not on any negligence in the manner in which the decision was carried out, but on the policy decision itself. In that respect, cases that appellant cites are distinguishable since they center on conduct in carrying out policy decisions. (Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 415 [city clerk’s defamatory remarks about plaintiff during press interview fell “within the category of those routine, ministerial duties incident to the normal operations of that office”]; Johnson, supra, 69 Cal.2d at pp. 795-796 [decision to parole “comprises the resolution of policy considerations,” but failure to warn foster family of parolee’s criminal background constitutes “the ministerial implementation of that basic policy”]; Doe 1 v. City of Murrieta (2002) 102 Cal.App.4th 899, 913 [in action alleging public entity’s negligence in failing to take sufficient steps to prevent sexual exploitation by police officer of minors participating in explorer program, officer’s acts and omissions in failing to follow explorer program rules and guidelines involved ministerial conduct rather than discretionary planning and policy-making acts].)
A school district is not in the business of running health clubs, and whether school property should be dedicated to facilitating such purposes or to the District’s primary function of educating children is a fundamental policy decision rather than a ministerial or operational act. (See, e.g., Howard Jarvis Taxpayers Assn. v. Whittier Union High School Dist. (1993) 15 Cal.App.4th 730, 735-736.)
We reject appellant’s assertion that the trial court erred in resolving the issue of governmental immunity on demurrer. A fair reading of the instant complaint reveals allegations that the District made an “actual, conscious, and considered collective policy decision” (Caldwell, supra, 10 Cal.4th at p. 984) to terminate the leasehold interest at issue. The second amended complaint alleges multiple meetings and correspondence between appellant and District employees, together with extended negotiations about the terms of the use of facilities agreement, its extension on a month-to-month basis and the District’s decision to terminate the lease rather than agree to its assignment to a third party. As in Caldwell, the “complaint admits of no theory that the Board acted unconsciously or failed to weigh pros and cons.” (Caldwell, supra, 10 Cal.4th at p. 984, italics added.) Consequently, the trial court did not err in sustaining the demurrer of the District and its individual employees based on the doctrine of governmental immunity.
6. Violation of Civil Code Section 1946 and Declaratory Relief Based Thereon
Appellant asserts that the District failed to provide it with “written notice as to the termination of [appellant’s] tenancy at the [p]remises, as required under Civil Code [s]ection 1946,” and appellant suffered damages as a result of that failure. Appellant also seeks declaratory relief, requesting a determination that the District’s termination of appellant’s tenancy was improper for failing to comply with section 1946.
Civil Code section 1946 provides that “as to tenancies from month to month either of the parties may terminate the same by giving at least 30 days’ written notice thereof at any time” and that “[t]he notice herein required shall be given in the manner prescribed in Section 1162 of the Code of Civil Procedure or by sending a copy by certified or registered mail addressed to the other party.” (Italics added.)
Presuming all inferences in favor of appellant, we assume the District failed to give a 30-day notice of termination to appellant. Appellant, however, has failed to cite any case that authorizes a claim for damages based on a violation of Civil Code section 1946. Even if damages are authorized by section 1946, appellant has failed to show that the failure to give a 30-day notice resulted in damages to appellant. The second amended complaint alleges that appellant was not evicted. Appellant voluntarily relinquished possession of the premises. A month-to-month tenant’s voluntary relinquishment of the premises after receiving notice of termination precludes any cause of action for damages for wrongful eviction against the landlord. (Psihozios v. Humberg (1947) 80 Cal.App.2d 215, 220-222.)
The trial court properly sustained the District’s demurrer to these causes of action.
7. Declaratory Relief Regarding Use of Facilities Agreement
Appellant seeks, as against the District and the Foundation, a determination that certain release language in the use of facilities agreement is invalid and unenforceable. Appellant apparently asserts this claim in anticipation of a future argument that the release language bars appellant’s claims. The trial court properly determined that declaratory relief is not available when “there is no actual controversy, since the claims upon which it would rest are dismissed.” (See Cardellini v. Casey (1986) 181 Cal.App.3d 389, 395 [matter in controversy “‘“must be of a character which admits of specific and conclusive relief by judgment within the field of judicial determination, as distinguished from an advisory opinion upon a particular or hypothetical state of facts”’”].)
8. Leave to Amend
Appellant states the trial court abused its discretion in not granting it leave to amend. In the trial court, appellant had two prior opportunities to amend its complaint against the District and its employees, but each time failed to cure the defects. Although the Foundation and its employee Wilson demurred only to the second amended complaint, the court had sustained demurrers to several of the same claims in ruling on demurrers previously brought by the District and its employees. In its briefs, appellant did not propose any amendments to cure the legal defects leading the trial court to sustain respondents’ demurrers without leave to amend. It expressed little more than a generalized desire for an opportunity to amend.
The mere assertion of an abstract right to amend does not satisfy the plaintiff’s burden of proving a reasonable possibility of curing a defective complaint by amendment. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43.) “The plaintiff must clearly and specifically set forth the ‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, the plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary. [Citation.]” (Id. at pp. 43-44.)
Nevertheless, appellant had no prior opportunity to amend its claims for fraud and negligent misrepresentation against the Foundation and Wilson. At oral argument, appellant asserted that, if allowed to amend, it could plead additional facts to overcome the pleading defects. It may well be that appellant cannot sufficiently plead, much less prove, the elements of fraud and negligent misrepresentation with the required specificity. However, appellant should have been given the opportunity to do so. The trial court therefore abused its discretion in sustaining the demurrers to such claims without leave to amend.
DISPOSITION
The judgment is reversed as to the claims against the Foundation and Wilson for fraud and negligent misrepresentation and in all other respects is affirmed. The District and its employees shall recover their costs on appeal; appellant and the Foundation and Wilson shall bear their own costs on appeal.
We concur: COOPER, P. J., RUBIN, J.