Filed 4/15/21 Mann v. Spark Public Relations, LLC CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

AARON MANN,

Plaintiff, Cross-defendant and 

Appellant,

v.

SPARK PUBLIC RELATIONS, LLC et 

al.,

Defendants, Cross-complainants

and Respondents.

 A155257

 (San Francisco City & County

 Super. Ct. No. CGC-16-552836)

Defendant Spark Public Relations, LLC (Spark) acquired plaintiff 

Aaron Mann’s company, SocialArc, Inc. (SocialArc) and entered into an 

employment agreement with Mann. During the acquisition process, 

SocialArc executed a loan agreement with Spark, for which Mann signed a 

personal guaranty. Spark subsequently concluded Mann failed to meet 

certain performance metrics and terminated his employment. In response, 

Mann sued Spark and its chief executive officer, defendant Alan Soucy, 

alleging various claims related to his employment agreement. Spark and 

Soucy filed a cross-complaint against Mann, alleging breach of the personal 

guaranty and fraud.

Following trial, the jury returned a verdict in Spark’s and Soucy’s favor 

on all of Mann’s claims apart from nonpayment of wages. As to the cross-
2

complaint, the jury found in Spark’s favor for the breach of personal 

guaranty. 

On appeal, Mann contends insufficient evidence supports the jury 

verdict as to his claims for breach of contract and breach of the covenant of 

good faith and fair dealing. He further contends the trial court erred in 

denying his motion for nonsuit as to Spark and Soucy’s cross-claim for breach 

of personal guaranty. We disagree and affirm the judgment.

I. BACKGROUND

Mann operated a social media company called SocialArc, which 

provided brand strategy and certain analytics software it had developed. 

Soucy is the chief executive officer of Spark, a public relations firm. 

Soucy and Mann agreed Spark would acquire certain assets of 

SocialArc. To that end, they signed a letter of intent contemplating Spark 

would purchase SocialArc’s assets, “including intellectual property related to 

its services, databases, customer relationships, and equipment.” The letter of 

intent also anticipated an employment agreement with Mann. He would 

operate a new “Digital Services Operating division” at Spark and receive a 

bonus tied to the specific financial performance of the division. The letter did 

not state a target acquisition date, and noted, “Each party shall be 

responsible for its own legal, accounting and other fees and expenses related 

to the transactions contemplated by this Letter of Intent.” Mann, however, 

believed he and Soucy agreed to a 30-day timeline for completing the 

acquisition. 

Spark and SocialArc also began working together pursuant to a 

services agreement. Pursuant to that agreement, SocialArc performed

Internet and social media marketing services for Spark clients. SocialArc 

also began performing internal work for Spark, such as updating its website 
3

and automating its statement of work drafting and approval process. Mann 

believed Spark would pay SocialArc for its work under the services 

agreement. 

The acquisition did not close within the 30-day period anticipated by 

Mann. As a result, SocialArc required additional funds to maintain its 

operations until the acquisition closed. Spark thus provided a cash advance 

of $50,000 to SocialArc pursuant to a master promissory note. Shortly 

thereafter, Spark advanced another $40,000 to SocialArc under the note. A 

few weeks later, Spark provided a final advance of $35,000 under the note. 

In connection with the final advance and at Spark’s request, Mann executed

a personal guaranty of the note. Spark e-mailed Mann monthly invoices for 

the amounts due. 

In connection with the acquisition, the parties executed various 

documents including an asset purchase agreement and an employment 

agreement. The asset purchase agreement referenced the outstanding 

balance on the note and stated both the note and guaranty “remain 

outstanding and all amounts due under the Note shall be repaid . . . in 

accordance with the terms of the Note and the Personal Guaranty.” 

Pursuant to the employment agreement, Mann would serve as 

managing director of Spark’s digital services division (SDS). Mann’s bonus 

structure was tied to certain profitability targets. For the remainder of his 

first year, Mann was entitled to a bonus if SDS’s operating profit exceeded 20 

percent. For subsequent years, Mann was entitled to a bonus if the adjusted 

revenue growth exceeded 20 percent from the prior year and its operating 

profit exceeded 20 percent. Conversely, Mann could be terminated for, 

among other reasons, “failure to achieve the Minimum Threshold 

Performance,” defined as (1) “SDS Adjusted revenue growth of less than ten 
4

percent” from the prior year, and (2) “current year SDS operating profit is 

less than fifteen percent.” The employment agreement defined “Adjusted 

revenue growth” as “billable work generated by SDS staff and paid by clients 

(less any subsequent refunds or credits),” along with shared services credit.

1

Approximately a year and a half after Spark acquired SocialArc, Soucy 

informed Mann that SDS would become part of another Spark department 

and proposed changing Mann’s position to chief digital officer. This new 

position would have no management authority. Mann asserted the change in 

position would constitute an involuntary termination and entitle him to 

benefits. Soucy disagreed, noting Mann had not met his performance goals. 

Soucy and Mann were unable to reach an agreement regarding Mann’s 

ongoing employment, and Spark ultimately terminated Mann for cause for 

failing to meet the minimum threshold performance metrics. 

Mann filed suit against Spark and Soucy for 13 causes of action related 

to the services agreement and employment agreement. By trial, the 

complaint alleged seven causes of action for declaratory relief, negligent 

misrepresentation, concealment (as to the services agreement), breach of 

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

(as to the employment agreement), and nonpayment of wages and waiting 

time penalties. 

Spark and Soucy subsequently filed a cross-complaint against Mann, 

alleging breach of personal guaranty and fraud.2

1 SDS received “Shared Services Credit” for internal work it performed 

for Spark as part of its revenue and profit calculation. 

2 Spark and Soucy also asserted a claim for breach of promissory note, 

but the trial court granted summary adjudication as to that claim. 
5

At trial, the parties provided conflicting evidence regarding Mann’s 

tenure at Spark. Mann asserted Spark refused to provide SDS with the full 

allotment of shared services credit for its work. Instead, Spark provided SDS 

with a flat $10,000 per month credit. Mann also offered evidence that Spark 

raised SDS’s revenue target by $250,000, applied a $238,000 “pro bono” 

deduction to the amounts billed by SDS in the first half of 2015, applied more 

total pro bono write-offs to SDS than any other department, instituted a 

policy that under recorded internal work, allocated credit to other 

departments for SDS work, failed to support a large project proposal, and 

created a new department that competed with SDS and reduced its shared 

services credit. Mann stated he believed SDS’s performance “suck[ed]” 

because the profit and loss (P&L) statements and monthly management 

reports upon which his assessment was based did not accurately reflect the 

true amount of work SDS performed. 

Spark presented a different perspective on Mann’s employment. Spark 

presented evidence that Mann’s interpersonal interactions were creating 

problems within the company, Spark employees outside SDS generated more 

than twice the revenue per employee than those in SDS, and SDS’s net profit 

was approximately 8.7 percent. 

Spark also disputed Mann’s testimony that the P&L statement was 

misleading or that policy changes were implemented to harm SDS. Spark 

presented evidence it changed an internal policy to “double count” SDS 

revenue to incentivize other divisions to work with SDS. Likewise, Spark’s 

vice-president of finance testified he never changed the P&L statements to 

minimize SDS’s numbers and, in fact, he made some modifications at Mann’s 

request to benefit SDS. 
6

At the close of evidence, Mann moved for nonsuit on Spark’s cause of 

action for breach of the personal guaranty. That motion argued the guaranty 

required Spark to make a written demand in order to trigger Mann’s 

obligation to repay, and Spark had failed to do so. The court denied Mann’s 

motion. 

The jury returned a split verdict. On Mann’s claims, the jury found in 

his favor for nonpayment of wages but found in Spark’s and Soucy’s favor on 

the remaining claims. As to the cross-complaint, the jury found in Spark’s 

favor for the breach of personal guaranty, but found in Mann’s favor on the 

fraud claim. 

Mann filed postjudgment motions for new trial and for judgment 

notwithstanding the verdict.3 The motion for new trial asserted juror 

misconduct and other irregularities, as well as that insufficient evidence 

supported the verdicts. Mann submitted a juror declaration alleging the jury 

found in Mann’s favor but checked the wrong box when completing the 

verdict form for the breach of guaranty claim. The motion for judgment 

notwithstanding the verdict asserted insufficient evidence supported the jury 

verdicts on Mann’s breach of contract and good faith and fair dealing claims, 

and on Spark’s claim for breach of the personal guaranty. The court denied 

both motions, concluding substantial evidence supported the verdict, the 

juror declaration was inadmissible, and the verdicts were logical and 

consistent even if the declaration was admissible. 

Judgment was entered and Mann subsequently appealed. 

3 Mann also filed a postjudgment motion for equitable accounting, 

which also was denied, and motions to tax fees and costs and award waiting 

time penalties, which were granted in part. However, these issues are not 

relevant to this appeal.
7

II. DISCUSSION

A. Standard of Review

In reviewing a verdict, we determine whether any substantial evidence, 

contradicted or uncontradicted, supports the jury’s conclusion. (Piedra v. 

Dugan (2004) 123 Cal.App.4th 1483, 1489; Shapiro v. Prudential Property & 

Casualty Co. (1997) 52 Cal.App.4th 722, 730.) We “must review the entire 

record in the light most favorable to the judgment below and presume in 

support of the judgment the existence of every fact the trier could reasonably 

deduce from the evidence.” (People v. Rivera (2003) 109 Cal.App.4th 1241, 

1244.) “ ‘ “It is not our task to weigh conflicts and disputes in the evidence; 

that is the province of the trier of fact. Our authority begins and ends with a 

determination as to whether, on the entire record, there is any substantial 

evidence, contradicted or uncontradicted, in support of the judgment.” ’ ” 

(Schwan v. Permann (2018) 28 Cal.App.5th 678, 693.) “ ‘ “[W]hen two or 

more inferences can reasonably be deduced from the facts, a reviewing court 

is without power to substitute its deductions for those of the trial court. If 

such substantial evidence be found, it is of no consequence that the trial court 

believing other evidence, or drawing other reasonable inferences, might have 

reached a contrary conclusion.” ’ ” (Piedra, at p. 1489, italics omitted.)

B. Breach of Contract and Breach of the Covenant of Good Faith and 

Fair Dealing Claims

Mann asserts the jury verdict, which rejected his claims against Spark 

for breach of contract and breach of the covenant of good faith and fair 

dealing, was not supported by substantial evidence. We disagree.

1. Relevant Law

“The essential elements of a breach of contract claim are: ‘(1) the 

contract, (2) plaintiff’s performance or excuse for nonperformance, 

(3) defendant’s breach, and (4) the resulting damages to plaintiff.’ ”
8

(Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 

1614.) While the third element of a breach of contract cause of action is the 

defendant’s actual breach, a breach of the implied covenant of good faith and 

fair dealing cause of action requires proof the defendant unfairly interfered 

with plaintiff’s right to receive the benefits of the contract. The implied 

covenant is supplemental to the express contractual covenants. (Racine & 

Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 

1026, 1031–1032.) It imposes upon each contracting party the duty to do 

everything the contract presupposes he or she will do to accomplish its 

purpose but cannot be used to create obligations not contemplated by the 

contract. (Pasadena Live v. City of Pasadena (2004) 114 Cal.App.4th 1089, 

1093–1094.)

2. Analysis

Mann contends the evidence at trial demonstrates Spark intentionally 

suppressed SDS’s revenue and profitability numbers in order to interfere 

with Mann’s ability to meet the minimum threshold performance 

requirement in his employment agreement. Mann further argues Spark 

breached the employment agreement by failing to exercise “ ‘reasonable 

discretion’ ” in determining SDS’s profitability and by using a “skewed 

calculation” of SDS’s performance to justify terminating Mann with cause. 

We conclude substantial evidence supports the jury verdict. Spark’s

P&L statements reflected an operating profit of 8.7 percent for SDS—well 

below the minimum threshold performance requirement. Spark presented 

evidence that Mann acknowledged SDS’s numbers “suck[ed],” and thus it was 

justified terminating Mann for cause.

In response, Mann criticizes various aspects of Spark’s financial 

statements. First, Mann argues the employment agreement stated shared 
9

services credit would be based on actual hours worked, but instead Spark 

applied a flat $10,000 credit. The employment agreement, however, could 

reasonably be interpreted as anticipating a budget for such work, as it states 

any work resulting in shared services credit must be approved “after 

submission of a Project Approval form including scope, budget and schedule.” 

While it appears Spark may not have had such a form, the language of the 

agreement indicates the parties did not anticipate an unlimited budget for

such work. Spark also presented evidence showing the revenue page of the 

monthly management report—which Mann received each month—identified 

the $10,000 budget for current and future months, and Soucy testified he 

communicated the budget to Mann. Cameron McPherson, Spark’s vicepresident of finance, also testified the shared service credit allocated to SDS 

was fair because it was based on a budget and “[i]t’s up to [Mann] to decide, 

being the manager of the group,” to make sure his staff work within that 

budgeted amount. 

Next, Mann asserts Spark changed its long-standing policy on 

timekeeping to eliminate recording time for any shared services work. As a 

result, Mann asserts it was impossible to properly allocate revenue to SDS, 

and the change came at a time when demand for SDS to perform shared 

services work was increasing. However, changes to timekeeping would only 

be relevant if SDS was billing under its $10,000 budget. But the evidence 

indicates SDS received credit for the entire $10,000 each month. 

Accordingly, changes to timekeeping would not impact the allocated shared 

services credits.

Finally, Mann disputes various expense allocations, such as subjecting 

SDS to more pro bono write-offs than any other division. At trial, Spark 

presented a wide range of evidence regarding its P&L statements and its cost 
10

allocation among departments. McPherson and Julie Mann4 testified they 

worked together to create SDS’s first P&L statement. Their goal was to 

create an accurate and equitable distribution of expenses, and they believed 

the P&L statements met that goal. At no point was Soucy involved in the 

creation of the P&L statements. However, once they were created, Soucy 

reviewed the P&L statements with Mann. On at least two separate 

occasions, Mann acknowledged SDS’s results “suck[ed].” In response to his 

meetings with Soucy regarding SDS’s performance, Mann’s approach was to 

propose a new agreement regarding his compensation. Mann testified his 

goal was for a “change in the yardstick that I was being measured on.” At no 

point did Mann state his goal was to dispute the numbers being presented 

regarding SDS’s performance. 

Mann also offered expert testimony from a forensic accountant and 

business valuator, Frank Wisehart, in support of his position. Wisehart 

testified Spark’s financial records were unreliable, and he created 

reconstructed income statements evidencing Mann would have met the 

minimum threshold performance in his employment agreement had Spark 

properly calculated SDS’s performance. Wisehart testified his reconstructed 

income statements were based, in part, on projections and assumptions and 

timecard data. 

In response, Spark offered evidence undermining the validity of 

Wisehart’s approach. Regarding his use of projections, Wisehart 

acknowledged on cross-examination that the reconstructed financial 

statements “[p]robably” did not reflect what “actually happened.” He further 

4 Julie Mann worked as the controller for SocialArc and transferred 

into Spark as an accounting manager upon SocialArc’s acquisition. 
11

acknowledged some of his data was from projections created before Mann 

even began working for Spark. 

Spark’s expert, Daniel Ray, broadly criticized Wisehart’s reconstructed 

financial statements as speculative and unreliable. For example, Wisehart 

testified almost all revenue items were derived from timecard data. But Ray 

rejected this approach of relying on time records as opposed to bills actually 

paid because no business would consider time records reflective of revenue. 

Moreover, the employment agreement defined revenue as not just time billed 

but time billed “and paid by clients.” Ray also disputed Wisehart’s addition 

of approximately $1.4 million of additional revenue based on purported billed 

hours not reflected in time records, noted the reconstructed financial 

statements’ use of identical gross potential revenues for every quarter of 2015 

was highly unusual, and explained the increase in revenue reflected in 

Wisehart’s statements did not correspond to the decreased number of SDS 

employees over that same period. 

Spark also presented evidence supporting their financial records. 

Soucy testified Spark’s balance sheets and P&L statements were reviewed 

annually by an outside accounting firm, and at no time had that firm ever 

raised concerns about Spark’s financial records. And, ultimately, Wisehart 

could not say whether any anomalies identified in Spark’s financial data 

prevented Mann from reaching the minimum threshold performance required 

under his employment agreement. 

In sum, Spark presented substantial evidence at trial supporting its

financial records, including its P&L statements, which demonstrated Mann 

failed to meet his minimum threshold performance goals and could be 

terminated for cause. Likewise, Spark presented substantial evidence that 

Mann’s failure to meet such goals was not the result of Spark’s bad faith or 
12

its failure to exercise “ ‘reasonable discretion’ ” in determining SDS’s 

profitability. Accordingly, the record supports the jury verdict rejecting 

Mann’s breach of contract and breach of the covenant of good faith and fair 

dealing claims.

5

C. Motion for Nonsuit

“On appeal from the denial of a motion for nonsuit, we apply the same 

rules that the trial court applied. A defendant is entitled to a nonsuit if we 

find that the plaintiff’s evidence is not sufficient as a matter of law to permit 

a jury to find in his or her favor. When making this determination, we do not 

weigh the evidence or determine the credibility of witnesses, but accept that 

view of the evidence most favorable to the plaintiff as true and disregard all 

contrary evidence. We indulge in every legitimate inference that may be 

drawn from the plaintiff’s evidence. [Citations.] . . . As a motion for nonsuit 

raises an issue of law, we review the trial court’s ruling de novo on appeal.” 

(A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455, 463.)

1. Relevant Background

The personal guaranty executed by Mann states that he, as guarantor, 

“unconditionally guarantees and promises (i) to promptly pay to [Spark] . . . 

on demand . . . any and all Obligations (as hereinafter defined) consisting of 

payments due to [Spark], and, (ii) at [Spark’s] option and not in substitution 

for [Mann’s] payment obligations hereunder, to perform on demand any and 

all other Obligations in the place of [SocialArc] . . . .” The guaranty further 

states it “is absolute, unconditional, continuing and irrevocable and 

constitutes an independent guaranty of payment . . . and is in no way 

5 Because we conclude substantial evidence supports a finding that 

Mann failed to meet his performance metrics and thus constitutes cause for 

his termination, we need not address whether Spark’s other alleged bases for 

good cause termination have merit. 
13

conditioned on or contingent upon any attempt to enforce in whole or in part 

any of [SocialArc’s] Obligations to [Spark] . . . . If [SocialArc] shall fail to pay 

or perform any Obligations to [Spark] which are subject to this Guaranty as 

and when they are due, [Mann] shall, promptly pay to [Spark] all such 

liabilities or obligations in immediately available funds.” 

Section 3 of the guaranty, entitled “Waivers,” states in part Mann 

“waives, to the extent permitted by applicable law, . . . (v) all presentments, 

demands for performance, notices of non-performance, notices delivered 

under the Note, protests, notice of dishonor, and notices of acceptance of this 

Guaranty and of the existence, creation or incurring of new or additional 

Obligations and notices of any public or private foreclosure sale . . . .” 

Section 5(a) of the guaranty provides “all notices or other 

communications to or upon [Spark] or [Mann] under this Guaranty shall be 

in writing and shall be faxed, mailed or delivered to each party at its 

facsimile number or address as set forth below with respect to [Spark] and at 

the facsimile number or address set forth on the signature page hereof with 

respect to [Mann].” The signature page lists an address in Berkeley, 

California for Mann. 

Spark subsequently e-mailed monthly invoices to Mann at his Spark email address. Those invoices identified SocialArc under the “Bill To” 

category, listed the principal payment and interest owed, and stated the 

invoice was “Due upon receipt.” McPherson also testified a copy of Mann’s 

personal guaranty was attached to the e-mails. During the parties’ 

negotiations over Mann’s termination, Spark sent an e-mail to Mann stating,

“As you know, you have a personal guaranteed note that is due in the amount 

of $125,000 and interest is accruing on the note,” and implying future legal 
14

action against Spark would result in Spark “seek[ing] an immediate demand 

of repayment in full . . . .” 

At the close of evidence, Mann moved for nonsuit on Spark’s claim for 

breach of the personal guaranty. Mann argued there was no written demand 

in the record and, accordingly, Mann had no repayment obligation. In 

response, Spark asserted Mann’s obligation under the personal guaranty 

automatically arose the moment SocialArc failed to repay its loans. Spark 

further noted the jury could construe the e-mails sent to Mann as an 

adequate demand. The court denied the motion. 

2. Analysis

Generally, “[a] lender is entitled to judgment on a breach of guaranty 

claim based upon undisputed evidence that (1) there is a valid guaranty, 

(2) the borrower has defaulted, and (3) the guarantor failed to perform under 

the guaranty.” (Gray1 CPB, LLC v. Kolokotronis (2011) 202 Cal.App.4th 480, 

486 (Gray1).) Mann does not assert Spark failed to prove any of these 

elements at trial. He does not dispute the validity of the guaranty or the fact 

neither SocialArc nor he has repaid the loans. Rather, he contends Spark 

failed to give proper notice of SocialArc’s default and thus his obligation 

under the guaranty was never triggered. Mann contends the e-mailed 

invoices were insufficient to constitute a demand for payment. 

We disagree. Undoubtedly, the guaranty states it is “on demand.” But 

that phrase is used to denote the type of obligation rather than impose a 

precondition to repayment. Cases discussing the statute of limitations for 

such actions provide useful guidance. In such context, courts have uniformly 

held “ ‘a cause of action for money payable on demand accrues with the 

inception of the obligation and without the necessity for any demand.’ ”

(Carrasco v. Greco Canning Co. (1943) 58 Cal.App.2d 673, 675; see also 
15

California First Bank v. Braden (1989) 216 Cal.App.3d 672, 677 [“For a 

guaranty, the breach occurs when the note falls due and remains unpaid. 

[Citation.] Ordinarily, the statute of limitations commences running upon 

the breach.”].) It would be illogical for a guarantor to have no obligation to 

pay while, at the same time, the limitations period runs.

Mann cites one case, Gray1, supra, 202 Cal.App.4th 480, to support his 

position that a written demand was required to trigger his repayment 

obligation under the guaranty. In Gray1, the court addressed whether a 

contract signed between the parties constituted a guaranty or a demand note 

protected by the antideficiency statutes and the one-action rule. (Id. at 

p. 482.) In concluding the agreement was a guaranty, it rejected the 

plaintiff’s argument that the phrase “on demand” transmuted the guaranty 

into a demand note. (Id. at p. 488.) The court then commented, “The plain 

meaning of ‘on demand’ is that the Guarantor’s obligation to pay does not 

arise until the Lender demands the Guarantor step in to answer for the debt 

of the Borrower. It is not, as the Guarantor would have us conclude, a trigger 

to allow the Lender to ignore the Borrower entirely and demand payment by 

the Guarantor even in the absence of the Borrower’s default.” (Ibid.)

We do not find Gray1 persuasive as to whether a guaranty payable “on 

demand” requires, in fact, a demand as contemplated by Mann to trigger 

repayment obligations. Rather, Gray1 focused on whether a contract was a 

guaranty or demand note; it did not address the requirements to enforce a 

guaranty. Moreover, the court’s passing comment in Gray1 is at odds with 

both the above authority and Civil Code section 2807, which provides a 

surety or guarantor6 “who has assumed liability for payment or performance 

6 “The distinction between sureties and guarantors is hereby abolished. 

The terms and their derivatives, wherever used in this code or in any other 
16

is liable to the creditor immediately upon the default of the principal, and 

without demand or notice.” (Civ. Code, § 2807.)

Mann next argues any interpretation of the guaranty that either 

excused a need for a demand or interpreted the e-mails to constitute a 

demand would “read Sections 1(a) and 5(a) out of the contract.” But Mann’s 

interpretation would read other provisions out of the contract—namely, 

section 1(a), which stated Mann’s guaranty is “unconditional[ ],” and 

section 3(b)(v), which waives in relevant part “all presentments, demands for 

performance, [and] notices of non-performance.”

Under statutory rules of contract interpretation, a contract must be 

read to give effect to the mutual intention of the parties at the time it was 

made. (Civ. Code, § 1636.) Mutual intent is to be inferred, if possible, solely 

from the written provisions of the contract. (Id., § 1639.) The court’s function 

is to ascertain what, in terms and substance, is contained in the contract, not 

to insert what has been omitted or to omit what has been inserted. (Code 

Civ. Proc., § 1858.) Applying these rules, we “look first to the language of the 

contract in order to ascertain its plain meaning or the meaning a layperson 

would ordinarily attach to it.” (Waller v. Truck Ins. Exchange, Inc. (1995) 

11 Cal.4th 1, 18.) If there is no ambiguity, the clear and explicit meaning 

controls. (Santisas v. Goodin (1998) 17 Cal.4th 599, 608.)

Here, the guaranty is not ambiguous because its various provisions can 

be harmonized. The guaranty’s structure as an unconditional promise to pay 

on demand is not ambiguous, but rather tracks the definition of a negotiable 

instrument. (See Cal. U. Com. Code, § 3104, subd. (a).) Likewise, there is no 

conflict between the “on demand” phrasing, the waiver of notice, and the 

statute or law of this state now in force or hereafter enacted, shall have the 

same meaning as defined in this section.” (Civ. Code, § 2787.)
17

notice provisions. As explained above, the waiver of presentment, demands 

for performance, and notices of nonperformance, comply with the 

requirements of Civil Code section 2807. And, “[i]n the great majority of 

cases, presentment is waived with respect to notes. In most cases, a formal 

demand for payment to the maker of the note is not contemplated. . . . If 

payment is not made when due, the holder usually makes a demand for 

payment, but in the normal case in which presentment is waived, demand is 

irrelevant, and the holder can proceed against indorsers where payment is 

not received.” (10 Cal.Jur.3d (2021) Bills and Notes, § 194, fns. omitted.)

Finally, Mann argues Spark failed to make a “proper” demand. But he 

does not identify any authority suggesting demands, to the extent they are 

required, must be presented in any specific form. In fact, courts have held 

the mere filing of a suit can amount to a demand. For example, in Root v. 

American Equity Specialty Ins. Co. (2005) 130 Cal.App.4th 926, the court 

reasoned, “a suit, even an unserved suit, easily fits several of the definitions 

of ‘demand’ as an ordinary person might think of the word demand. ‘The 

action or fact of demanding or claiming in legal form; a legal claim . . . . To 

ask for (a thing) with legal right or authority; to claim as something one is 

legally or rightfully entitled to.’ ” (Id. at p. 933; see Bloom v. Bender (1957) 

48 Cal.2d 793, 799–800 [guarantor received proper notice of her obligation 

because the filing and serving of a lawsuit against her “constituted sufficient 

notice of default”].)

Here, the e-mails sent to Mann included the invoices identifying the 

unpaid principal and interest. And McPherson provided undisputed 

testimony that Mann’s personal guaranty—under which he was liable for the 
18

unpaid amounts—was also attached to those e-mails. Accordingly, these emails sufficiently alerted Mann of his obligation to repay the loan amounts.7

III. DISPOSITION

The judgment is affirmed. Defendants Spark Public Relations, LLC

and Alan Soucy may recover their costs on appeal. (Cal. Rules of Court, 

rule 8.278(a)(1), (2).)

7 Because we conclude the trial court did not err in denying Mann’s 

motion for nonsuit, we need not address his argument that such error was 

prejudicial. Likewise, we need not address Mann’s request that this court 

order an accounting on remand because we affirm the underlying judgment.
19

MARGULIES, J.

WE CONCUR:

HUMES, P. J.

BANKE, J.

A155257

Mann v. Spark Public Relations, LLC