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Filed 5/28/14 Ram Pizza v. Super. Ct. CA4/2 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION TWO 

RAM PIZZA, INC., et al., 

 Petitioners, 

v. 

THE SUPERIOR COURT OF 

RIVERSIDE COUNTY, 

 Respondent; 

DOMINOS PIZZA, et al., 

 Real Parties in Interest. 

 E060399 

 (Super.Ct.No. RIC 1100608) 

 OPINION 

 ORIGINAL PROCEEDINGS; petition for writ of mandate. Richard J. 

Oberholzer, Judge. (Retired Judge of the Kern Super. Ct. assigned by the Chief Justice 

pursuant to art. VI, § 6 of the Cal. Const.) Granted in part and denied in part. 

 Reid & Hellyer, Michael G. Kerbs and David G. Moore for Petitioners. 

 No appearance for Respondent. 
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 Kolar & Associates, Elizabeth L. Kolar and Michelle A. Burr for Real Parties in 

Interest. 

 In this matter we have reviewed the petition and the opposition filed by real parties 

in interest. We have determined that resolution of the matter involves the application of 

settled principles of law, and that issuance of a peremptory writ in the first instance is 

therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 

178.) We will grant the petition in part and deny in part. 

DISCUSSION 

 With respect to petitioners’ cause of action for breach of contract, real parties 

relied on the fact that petitioners never presented a formal request for approval of the 

transfer of the franchises and the required information about the proposed transferee. 

However, petitioners’ assertion that real parties’ representative clearly informed 

petitioners that the proposed transferee would not be approved could, on a persuasive and 

detailed evidentiary showing, be found to excuse petitioners’ failure to perform that 

condition or obligation. (See generally Civ. Code, §§ 1440, 1515; San Bernardino Valley 

Water Development Co. v. San Bernardino Valley Municipal Water Dist. (1965) 236 

Cal.App.2d 238.) Hence, in our view this cause of action should have been allowed to 

proceed to trial. 
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 As petitioners point out in their petition for rehearing, substantially the same 

analysis applies to the cause of action for breach of the implied covenant of good faith 

and fair dealing, and we granted rehearing to consider that issue. Real parties in interest 

argue again that conduct which is not a breach of contract cannot support a claim for 

breach of the implied covenant, and we agree. (See Agosta v. Astor (2004) 120 

Cal.App.4th 596, 607.) But the gravamen of petitioners’ claims is that real parties in 

interest did not exercise their right of refusal in good faith when they allegedly informed 

petitioners that the proposed transferee was not acceptable. If supported by sufficient 

evidence, this would also permit petitioners to pursue a claim of breach of the implied 

covenant of good faith. 

DISPOSITION 

 Let a peremptory writ of mandate issue, directing the Superior Court of Riverside 

County to vacate its order granting summary adjudication of the causes of action for 

breach of contract and breach of the implied covenant of good faith and fair dealing, and 

to enter a new order denying real parties’ motion in that respect. In all other respects the 

petition is denied. 
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 Petitioners are directed to prepare and have the peremptory writ of mandate 

issued, copies served, and the original filed with the clerk of this court, together with 

proof of service on all parties. In the interests of justice, the parties shall bear their own 

costs. 

 NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

KING 

 J. 

We concur: 

RICHLI 

 Acting P. J. 

MILLER 

 J.