1 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 CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE 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 fo r writ of mandate. Richard J. Oberholzer, Judge. (Retired Judge of the Ke rn 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. Moor e for Petitioners. No appearance for Respondent.2 Kolar & Associates, Elizabeth L. Kolar an d 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 reso lution 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 acti on for breach of contract, real parties relied on the fact that petitioners never presen ted a formal request for approval of the transfer of the franchises and the required in formation about the proposed transferee. However, petitioners’ assertion that real pa rties’ 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 gene rally Civ. Code, §§ 1440, 1515; San Bernardino Valley Water Development Co. v. San Ber nardino 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.3 As petitioners point out in their petition for rehearing, substantially the same analysis applies to the cause of action for br each of the implied covenant of good faith and fair dealing, and we granted rehearing to c onsider that issue. Real parties in interest argue again that conduct which is not a br each of contract cannot support a claim for breach of the implied covena nt, 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 refusa l in good faith when th ey 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 gr anting summary adjudication of the causes of action for

breach of contract and breach of the implied c ovenant 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.4 Petitioners are directed to prepare a nd have the peremptory writ of mandate issued, copies served, and the or iginal filed with the clerk of this court, together with proof of service on all parties. In the interest s 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.