XXXX
Phone
Email
President/Secretary of XXX Retail, Inc.
IN THE SUPERIOR COURT OF XXXX
IN AND FOR THE COUNTY OFXXXX
XXXX
Plaintiff,
vs.
XXXX,
Defendant
Case No.: Number
PLAINTIFF’S ORIGINAL COMPLAINT
XXX
A. PARTIES
1. Plaintiff Sam’s Retail, Inc. d/b/a XXX is a law-abiding limited
liability corporation incorporated under the laws of the State of XXX.
2. Defendant XXX, Inc. is a limited liability corporation incorporated
under the laws of the State of XXXX.
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PLAINTIFF’S ORIGINAL COMPLAINT – 2
B. JURISDICTION AND VENUE
3. Jurisdiction exists in this Court pursuant to Article VI, § 10 of the XXXX
Constitution.
4. Venue is proper in this Court since the Parties are residents of the State of
XXX and the events and causes of action described herein took place within the County of
Madera.
C. STATEMENT OF FACTS
5. On XXXX, the Parties entered into a contract for the Escrow sale of
property located at XXX.
6. On XXXX, the Parties amended Escrow instructions for the sale of the
above-referenced property.
7. The Parties had initially planned to close Escrow on XXX, but
Plaintiff could not obtain its ABC alcohol license until XXX.
8. Plaintiff pushed the date of closing Escrow until XXXX, as it was the
date the company could obtain its ABC alcohol license.
9. Defendant became impatient and asked Plaintiff to sign a Non-Refundable
Deposit Agreement that Plaintiff would pay Defendant $100,000 if it could not complete the sale
of the property above. In good faith, Plaintiff signed a Non-Refundable Deposit Agreement on
XXXX.
10. After Plaintiff signed the Non-Refundable Deposit Agreement, Defendant sent
Plaintiff an email stating that it was no longer interested in the sale.
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PLAINTIFF’S ORIGINAL COMPLAINT – 3
11. Plaintiff had already completed all necessary transactions in regard to the sale and
has spent money as follows:
Exterior Signage – $25,000.00
POS System – $32,598.96
Checkout Stands – $6,000.00
Fixtures – $13,500.00
Refrigeration – $130,900.00
Compressors and Condensers – $35,000.00
Speakers and Cameras – $22,156.47
Endcaps – $17,094.54
Box Baler – $2,500.00
Mission Bank (Line of Credit) – $600,000.00 (4.5% interest)
Mission Bank (Line of Credit) – $300,000 (5% interest)
Time off work negotiating back and forth – $20,000.00
Employee Training – $10,000.00
12. The above figures add up to $1,179,749.97.
13. Plaintiff would like this Court to compel Defendant to perform its contractual
obligations or in the alternative, order Defendant to refund to Plaintiff all sums spent in
organizing the sale of the property as well as the value of the property as damages for
repudiation.
D. CAUSE OF ACTION
Repudiation of Contract
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PLAINTIFF’S ORIGINAL COMPLAINT – 4
14. Plaintiff hereby incorporates in full the facts set out in ¶ 1-13 of this Complaint as
though set out in full herein.
15. There can be no actual breach of a contract until the time specified therein for
performance has arrived. (Gold Min. & Water Co. v. Swinerton (1943) 23 Cal.2d 19, 29 [142
P.2d 22]; 1 Witkin, Summary of Cal. Law (8th ed.) § 629, p. 536; see Rest. 2d Contracts (Tent.
Draft No. 8, 1973) § 260.).
16. Plaintiff is unable to bring a cause of action for breach of contract against
Defendant because the sale of the property is set to be completed on October 5, 2022, after the
filing of this lawsuit.
17. Although there may be a breach by anticipatory repudiation: "[b]y its very name
an essential element of a true anticipatory breach of a contract is that the repudiation by the
promisor occur before his performance is due under the contract." (Gold Min. & Water
Co. v. Swinerton, supra, 23 Cal.2d at p. 29.).
18. Defendant’s withdrawal from the transaction of the sale of the property amounts
to breach by anticipatory repudiation as the withdrawal was before the date of performance of its
contractual obligations was due.
19. Anticipatory breach occurs when one of the parties to a bilateral contract
repudiates the contract. The repudiation may be express or implied. An express repudiation is a
clear, positive, unequivocal refusal to perform (Guerrieri v. Severini (1958) 51 Cal.2d 12, 18
[330 P.2d 635]; Gold Min. & Water Co. v. Swinerton, supra, 23 Cal.2d 19, 29; Whitney Inv.
Co. v. Westview Dev. Co. (1969) 273 Cal. App.2d 594, 602-603 [78 Cal. Rptr.
302]; Atkinson v. District Bond Co. (1935) 5 Cal. App.2d 738, 743-744 [43 P.2d 867]).
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PLAINTIFF’S ORIGINAL COMPLAINT – 5
20. Defendant’s repudiation was expressly clear. Through an email, its representative
informed Plaintiff that it would be withdrawing from the transaction, meaning that it would not
perform its contractual obligations.
21. An implied repudiation results from conduct where the promisor puts it out of his
power to perform so as to make substantial performance of his promise impossible
(Zogarts v. Smith (1948) 86 Cal. App.2d 165 [194 P.2d 143]; 1 Witkin, Summary of Cal. Law
(8th ed.) § 632, pp. 538-539; 4 Corbin, Contracts (1951) § 984, pp. 949-951).
22. When a promisor repudiates a contract, the injured party faces an election of
remedies: he can treat the repudiation as an anticipatory breach and immediately seek damages
for breach of contract, thereby terminating the contractual relation between the parties, or he can
treat the repudiation as an empty threat, wait until the time for performance arrives and exercise
his remedies for actual breach if a breach does in fact occur at such time. (Guerrieri v. Severini,
supra, 51 Cal.2d 12, 18-19.)
23. However, if the injured party disregards the repudiation and treats the contract as
still in force, and the repudiation is retracted prior to the time of performance, then the
repudiation is nullified and the injured party is left with his remedies, if any, invocable at the
time of performance. (Id., at pp. 19-20; Salot v. Wershow (1958) 157 Cal. App.2d 352, 357-358
[320 P.2d 926]; see Cook v. Nordstrand (1948) 83 Cal. App.2d 188, 194-195 [188 P.2d
282]; Atkinson v. District Bond Co., supra, 5 Cal. App.2d 738, 743-744.
24. Plaintiff has elected to bring an action for repudiation of contract/anticipatory
breach of contract to recover the sums already spent in preparing the transaction for the sale of
the property.
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PLAINTIFF’S ORIGINAL COMPLAINT – 6
25. "A mere declaration, however, of a party of an intention not to be bound will not
of itself amount to a breach, so as to create an effectual renunciation of the contract; for one
party cannot by any act or declaration destroy the binding force and efficacy of the contract. To
justify the adverse party in treating the renunciation as a breach, the refusal to perform must be
of the whole contract … and must be distinct, unequivocal and absolute." (Atkinson v. District
Bond Co., supra, 5 Cal. App.2d 738, 743.).
26. From the email sent to Plaintiff, Defendant declared its intention to completely
withdraw from the sale. That meant that it would not be performing any of its contractual
obligations at all.
27. Defendant is liable for repudiation of contract and ought to pay damages to
Plaintiff.
E. PRAYER FOR RELIEF
REASONS WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests this
Honorable Court to grant it the following reliefs against Defendant:
a. GRANT judgment in favor of Plaintiff and against Defendant;
b. ISSUE an Order compelling Defendant to refund to Plaintiff sums spent in preparation of
the transaction of sale of the property totaling $1,179,749.97;
c. AWARD Plaintiff damages for repudiation of contract in the value of the property which
is $________________;
d. AWARD Plaintiff punitive damages;
e. AWARD Plaintiff costs of this suit;
f. AWARD Plaintiff pre- and post-judgment interests;
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PLAINTIFF’S ORIGINAL COMPLAINT – 7
g. AWARD Plaintiff such equitable relief as this Court deems fair under the circumstances;
and
h. AWARD Plaintiff such further relief as this Court deems proper.
Dated this ____ day of XXXX.
Respectfully Submitted,
___________________________________
XXXX
President/Secretary of XXXX Retail, Inc.
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PLAINTIFF’S ORIGINAL COMPLAINT – 8
VERIFICATION
I, XXXX, hereby declare that I am the President/Secretary of XXXXRetail, Inc., the
Plaintiff in the above-entitled action, that I have read the foregoing Complaint and know the
contents thereof. That the same is true of my own knowledge except as to those matters and
things stated upon information and belief, and as to those things, I believe them to be true.
Dated this ____ day of XXXX.
Respectfully Submitted,
___________________________________
XXXX
President/Secretary of XXXX Retail,
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