Portnov v. Farmers Ins. Exchange






Filed 12/9/11 Portnov v. Farmers Ins. Exchange 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MIKHAIL PORTNOV, Cross-complainant and Appellant, v. FARMERS INSURANCE EXCHANGE, Cross-defendant and Respondent.

E050688 (Super.Ct.No. RIC449868) O P I N I O N

APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger, Judge. Affirmed.
Law Offices of Howard Rutten and Howard Rutten for Cross-complainant and Appellant.
Chow & Freisleben, Inc. and Alan Freisleben for Cross-defendant and Respondent.
I. INTRODUCTION
Appellant Mikhail Portnov was an independent contractor insurance agent for respondent Farmers Insurance Exchange (Farmers). Farmers allegedly forced Portnov to resign in July 2006. Portnov then sued Farmers under various contract and tort theories for damages arising from the forced resignation and other actions, and for declaratory relief concerning agreements between the parties. Farmers successfully demurred to Portnov’s third amended cross-complaint (TAXC) and judgment in its favor was entered. Portnov appealed. We affirm the judgment.
II. FACTUAL SUMMARY
Portnov worked as an insurance agent for Farmers from March 2003 until July 2006. Portnov initially pursued a position as a Farmers sales agent based upon Farmers’s promises and representations “of training, support, guidance, backing and consult.” In September 2003, he entered into a “Producer’s Agreement” with Farmers, which created a “‘Reserve Agent’ program” and provided him with an opportunity to be trained to become a “Career Agent.”
As part of Portnov’s training, Farmers trained Portnov “to call, use and rely on Farmers’ Workers’ Compensation ‘1-800’ Support telephone number/Customer Service for questions about writing his customers’ Farmers’ insurance policies.” Farmers’s support personnel would provide him with specific instructions about writing insurance policies and, when necessary, connect him with a Farmers underwriter.
Portnov passed his reserve agent training tests and the “other hurdles Farmers placed before him.” He was considered a star, and “far exceeded the expectations of Farmers’ management.” As a result, in February 2004, he was given the opportunity to enter the “Career Agent Training Program” by signing a “Career Agent Appointment Agreement.” Portnov signed the agreement based on Farmers’s “on-going representations . . . of training, guidance, support, backing and consult . . . .”
Portnov is described in the Agent Appointment Agreement as “an independent contractor for all purposes.” Under the agreement, Portnov agreed to sell Farmers insurance policies and Farmers agreed to pay Portnov commissions for selling insurance. Farmers also agreed to provide certain materials and advertising assistance, and to make available education and sales training programs.
The agreement provides that it may be terminated by either party on three months’ notice, or on 30 days notice if a party breaches the agreement. The agreement may also be terminated immediately by mutual consent or by Farmers for certain specified reasons, including “[w]illfull misrepresentation that is material to the operation of the Agency.” If Farmers terminates the agreement, Portnov may seek review of the decision according to a procedure set forth in the agreement. The agreement also provides terms for the payment of commissions and a method for determining an amount to be paid to Portnov if the agreement is terminated for reasons other than embezzlement.
In January 2005, Concord General Insurance Services, Inc. (Concord), a retail insurance broker, contacted Portnov to seek workers’ compensation insurance for Execair Maintenance, Inc. (Execair), a client of Concord’s. Execair was in the business of providing maintenance for airplanes. Concord represented to Portnov that the policy was for Execair’s clerical employees and that Execair did not employ maintenance personnel.
Portnov called Farmers’s 800 telephone number for workers’ compensation support to get instructions on writing and binding a workers’ compensation policy for Execair. Portnov told Farmers’s support personnel of Execair’s business, its clerical employees, and the absence of airline maintenance employees. Based on the “advice and consult” he received from Farmers’s support personnel, Portnov submitted Execair’s workers’ compensation application to Farmers and bound the policy.
In March 2005, following the death of Execair’s founder, Execair was dissolved. Shortly afterward, a relative of Execair’s founder incorporated a new entity, Executive Air Maintenance, Inc. (Executive). Executive was engaged in the business of airline maintenance. Executive did not obtain any workers’ compensation insurance from Farmers.
In November 2005, John Greene, an employee of Executive, fell while servicing an airplane during the course of his employment and was seriously injured. He tendered a workers’ compensation claim to Farmers. Farmers paid benefits to Greene under the Execair workers’ compensation policy even though Greene was an employee of Executive.
Portnov had errors and omissions insurance with Arch Insurance Company (Arch). In December 2005, Farmers tendered to Arch a claim based on the assertion that Portnov was negligent in causing Farmers to issue the Execair workers’ compensation policy. Farmers did not have a good faith belief that its claim was legally viable and did not seriously contemplate litigation against Portnov. The claim, Portnov alleges, “was merely a bluff to get a potential settlement . . . .” Arch denied Farmers’s claim.
In May 2006, Farmers commenced this litigation by filing a complaint for declaratory relief and rescission against Execair, Executive, Concord, and other parties. It did not initially sue Portnov.
On June 9, 2006, two Farmers representatives met with Portnov and told him that upper management wanted him gone and he must resign or be terminated. They gave him one week to decide. To avoid devastating financial and economic injuries that would result from termination, he “reluctantly” resigned.
As a result of Farmers’s conduct, Portnov has suffered damages because he has been unable to obtain errors and omissions insurance for his work as an insurance agent or broker, or will need to pay higher premiums for such insurance. He has been “‘black marked’ and defamed in the insurance industry,” preventing him from working as an insurance agent or broker. He has also suffered damages in the form of lost or reduced premiums and commissions, among other losses.
Additional factual allegations will be discussed below where relevant to this appeal.
III. PROCEDURAL BACKGROUND
Farmers commenced the underlying lawsuit in May 2006 by filing a complaint in the Riverside County Superior Court against Execair, Executive, Concord, and Greene, among others. Concord cross-complained against Portnov, among others. Portnov then filed a cross-complaint against Farmers and other parties in February 2007.
After the court sustained demurrers to Portnov’s cross-complaint, his first amended cross-complaint, and his second amended cross-complaint, Portnov filed his TAXC in April 2008. In this pleading, Portnov alleged 12 causes of action, eight of which are relevant to this appeal. They are labeled: breach of contract; breach of the covenant of good faith and fair dealing (in contract); negligent interference with prospective economic advantage; intentional interference with prospective economic advantage; fraud in the inducement; fraud; negligent misrepresentation/deceit; and declaratory relief.
Farmers filed a demurrer to each of the causes of action alleged against it except the declaratory relief cause of action. Following a hearing, the court sustained the demurrer as to each cause of action except for the indemnity causes of action.^[1] Portnov subsequently dismissed the indemnity causes of action, and the court thereafter entered a judgment of dismissal. Portnov appealed.
IV. ANALYSIS
A. Standard of Review
“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citations.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.)
B. First Cause of Action: Breach of Contract
The elements of a cause of action for damages for breach of contract are: (1) the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) damage to the plaintiff resulting therefrom. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1031; Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.)
Regarding the first element, Portnov relies not only on the two written agreements between the parties, but also on “various contractual promises made to him orally and in writing by [Farmers] through its various employees, agents, letters, brochures and manuals.” Farmers does not appear to dispute this characterization of the contract. Nor does it dispute that Portnov adequately pled his performance or excuse for nonperformance.
Regarding the element of breach, Portnov alleges that Farmers breached the contract by (1) terminating its agency agreement with Portnov, and (2) “engaging in the wrongful and tortious acts, failures to acts [sic], omissions and representations discussed throughout this complaint prior to [Portnov’s] forced resignation . . . .” On appeal, Portnov does not rely on the allegation that Farmers breached the contract by terminating his agency agreement.^[2] Apparently relying on the second, more general allegation, he focuses his breach of contract claim on Farmers’s alleged “contractual duty to provide him with training, guidance, backing and support in writing insurance policies for [Farmers].” Farmers, he contends, breached this duty “when it failed to provide him with the training, guidance, support, backing and consult necessary to perform his job, especially in connection with the Execair Workers’ Compensation Policy.”
“In particular,” Portnov continues, Farmers “breached its contractual duty to provide competent support, direction and advice to [Portnov] when he called [Farmers’s] toll free 1-800 Workers’ Compensation Customer Service line, as he was instructed to do, to inquire as to [Farmers’s] requirements with regard to binding the Execair Workers’ Compensation Policy.” More specifically, Farmers’s “instruction to him that he issue the Execair Workers Compensation Policy was a breach of contract by [Farmers].” As his counsel explained at the hearing on the demurrer, “Farmers breached their duty, their contractual duty to provide support to Mr. Portnov when they told him, ‘Bind this policy under these facts.’ That breach proximately caused his damages.”
It appears from the TAXC (and Portnov’s clarifying appellate briefs) that the problem with the policy was that it was based on false information given to Portnov by Concord (Execair’s agent), which Portnov then passed on to Farmers.^[3] That is, Concord told Portnov that Execair employed only clerical employees when it also employed airline mechanics; Portnov then gave the same information to Farmers, and, based on that information, Farmers told Portnov to issue the policy.
If Portnov alleged he told Farmers that Execair employed airline mechanics, and Farmers nevertheless instructed Portnov to bind a policy based on Farmers’s erroneous assumption that Execair employed only clerical employees, a breach of the duty to provide competent direction and advice might be alleged. This scenario, however, is not presented by the TAXC. Instead, it appears that Farmers instructed Portnov to issue a policy that was an appropriate policy to issue based on the information Portnov provided. It is only because the information provided by Portnov to Farmers was incorrect that the policy became problematic. Under the circumstances alleged in the TAXC, these facts do not support the element of breach of a contractual duty owed to Portnov.
Portnov also asserts, in a series of bullet points, that Farmers breached its contractual duties by: (1) a “policy and practice of shifting all risks of loss to its agents, such as [Portnov], in authorizing the agent to bind low premium workers’ compensation policies without having sufficient underwriting, backup and support procedures in place to protect against excessive exposure risks on these policies”; (2) inadequate training of Portnov “as the potential proximate cause of its damages vis a vis the John Greene workers’ compensation claim”; (3) Farmers’s “negligence in failing to investigate and underwrite the Execair Workers’ Compensation Policy . . .”; and (4) Farmers’s negligent or intentional misconduct in paying benefits on a policy to a noninsured without any requirement to do so. Portnov does not explain how any of these points establish a breach of any contractual duty owed to Portnov under the agreements alleged in the TAXC, and we see no merit to the arguments. (See People v. Jones (1998) 17 Cal.4th 279, 304 [arguments presented perfunctorily and without supporting argument may be rejected in similar fashion].)
Because Portnov has failed to allege an actionable breach of contract, he has failed to state a cause of action for breach of contract.
C. Second Cause of Action: Breach of the Covenant of Good Faith and Fair Dealing
Portnov’s second cause of action is for breach of the covenant of good faith and fair dealing. In California, “‘[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.’ [Citation.]” (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 683; see also Pasadena Live v. City of Pasadena (2004) 114 Cal.App.4th 1089, 1090.) As both parties point out, the implied covenant “cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-350.) It “exists merely to prevent one contracting party from unfairly frustrating the other party’s right to receive the benefits of the agreement actually made.” (Id. at p. 349; see also Kelecheva v. Multivision Cable T.V. Corp. (1993) 18 Cal.App.4th 521, 531 [the covenant “requires that neither party do anything to deprive the other of the benefits of the agreement”].)
In alleging this cause of action, Portnov simply incorporates the allegations that precede it (including the breach of contract allegations) and adds the allegation that Farmers “breached the implied covenant of good faith and fair dealing found in all contracts by engaging in the false, fraudulent, deceptive, unfair, wrongful and tortious acts, omissions and representations discussed throughout this complaint.” As Portnov makes clear in his opening brief on appeal, this cause of action is based on essentially the same allegations as his breach of contract cause of action. He explains: “[Farmers] was required to provide [Portnov] the support and guidance required for him to write insurance policies. [Farmers] told [Portnov] to bind the Execair Workers’ Compensation Policy. When [Farmers] terminated [Portnov] for doing what was required of him, the purpose of the contract was frustrated and the covenant of good faith and fair dealing was thereby breached.”
This cause of action fares no better than Portnov’s breach of contract cause of action. Indeed, when, as here, a claim for breach of the covenant merely repeats and realleges the same allegations set forth in a companion claim for breach of contract, the claim may be disregarded as superfluous. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 352.) To the extent it is not superfluous, the allegations fail to state a cause of action because, for the same reasons Farmers did not breach the contract by instructing Portnov to bind the Execair policy, Farmers did not breach the implied covenant of good faith and fair dealing implied in the contract.
D. Sixth and Seventh Causes of Action: Negligent and Intentional Interference With Prospective Economic Advantage
Portnov alleges causes of action for negligent and intentional interference with prospective economic advantage. Both causes of action require pleading and proof of: (1) an economic relationship between the plaintiff and some third party; (2) the defendant’s knowledge of the existence of the relationship; (3) actual interference or disruption of the relationship; and (4) economic harm to the plaintiff caused by the defendant’s wrongful conduct. (Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 944 [intentional interference]; Venhaus v. Shultz (2007) 155 Cal.App.4th 1072, 1078 [negligent interference].) For both torts, the plaintiff must also plead and prove that the defendant’s conduct was wrongful by some legal measure other than the fact of interference itself. (Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393 [intentional interference]; National Medical Transportation Network v. Deloitte & Touche (1998) 62 Cal.App.4th 412, 440 [negligent intereference]; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1242 [negligent interference].)
In addition, a cause of action for intentional interference requires “an intentional act by the defendant, designed to disrupt the relationship” between the plaintiff and the third party. (Edwards v. Arthur Andersen LLP, supra, 44 Cal.4th at p. 944.) A cause of action for negligent interference, by contrast, requires proof that (1) the defendant was or should have been aware that if it did not act with due care its actions would interfere with the plaintiff’s economic relationship and cause the plaintiff to lose the probable future economic benefit or advantage of the relationship; and (2) the defendant was negligent. (Venhaus v. Shultz, supra, 155 Cal.App.4th at p. 1078.)
Regarding the requirement of an economic relationship between Portnov and a third party, Portnov points to his “relationships” with (a) “his clients,” (b) “his future errors and omissions insurance carriers,” (c) “other insurance agents, brokers and industry professionals from whom [he] received the referral of insurance business and through which [he] earned commissions . . . ,” and (d) other individuals who seek insurance from Portnov. He further alleges that Farmers was aware of or should have been aware of his prospective economic relationship with these third parties.
For the alleged acts of interference, Portnov points us to: (1) Farmers’s alleged failure to investigate and underwrite the Execair workers’ compensation policy, (2) Farmers’s payment of benefits to the injured worker, Greene, without any legal or contractual duty to do so, and (3) Farmers’s tender of a claim to Arch on Portnov’s errors and omissions insurance policy when it did not have a good faith belief in a legally valid claim and did not seriously contemplate litigation against him.
We can quickly dispose of the first two of these alleged acts of interference. We see no scenario by which Farmers’s failure to investigate the Execair policy and its underwriting of that policy, or its payment of benefits to Greene, could have interfered with any of Portnov’s alleged economic relationships. Portnov asserts these points in a conclusionary manner without explanation or argument. They do not support an interference claim.
The third act—the tender of the claim to Arch—deserves more discussion. Portnov alleges that Farmers’s claim on the Arch policy contained false, fraudulent, or misleading statements. The submission of the claim, he avers, was independently wrongful because it violated statutes prohibiting false or fraudulent insurance claims (Pen. Code, § 550), unfair business practices (Ins. Code, § 790 et seq., Bus. & Prof. Code, § 17200 et seq.), and false advertising (Bus. & Prof. Code, § 17500 et seq.). Farmers tendered the false and fraudulent claim, he alleges, “to wrongfully reach his $5,000,000 policy limits, so Farmers would not have to pay for their own corporate and management ‘self-created hardship.’” It was also “merely a bluff to get a potential settlement, hence the tendering of the claim was not in good faith and no litigation was anticipated by Farmers.”
Portnov does not, however, allege an actual interference with his relationship with Arch. His economic relationship with Arch was as an insured under a policy of errors and omissions insurance, presumably entitling him to a defense to claims made against him and indemnification against losses covered by the policy. Yet Portnov does not allege that Farmers caused any disruption with this relationship; there is no allegation that Arch cancelled or terminated its insurance policy with Portnov, refused to defend or indemnify him, or otherwise deprived him of any rights or benefits under the policy. If he is no longer insured by Arch, there is nothing in the pleading to suggest that his policy with Arch did not simply expire according to its terms. Finally, if Arch did not renew its policy with Portnov, any expectancy that Portnov had that Arch would do so is too speculative to support a cause of action for interference. (See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1164 [“Only plaintiffs that can demonstrate an economic relationship with a probable future economic benefit will be able to state a cause of action”]; Kasparian v. County of Los Angeles (1995) 38 Cal.App.4th 242, 271 [plaintiff must show “‘that it is reasonably probable that the lost economic advantage would have been realized but for the defendant’s interference.’”].)
Portnov alleges more generally that, based upon Farmers’s tender of the claim to Arch, among other actions, he “has been and/or will be unable to obtain errors and omissions insurance for his work as an insurance agent and/or broker and/or [Portnov] will be required to pay substantially higher premiums for same.” To the extent Portnov alleges an inability to obtain errors and omissions insurance with potential future insurers, the allegation is insufficient to support an interference cause of action—the tort requires pleading and proof of an existing economic relationship with a third party. (See Korea Supply Co. v. Lockheed Martin Corp., supra, 29 Cal.4th at p. 1164; Salma v. Capon (2008) 161 Cal.App.4th 1275, 1291; see also Roth v. Rhodes (1994) 25 Cal.App.4th 530, 546 [physician did not have an existing relationship with “speculative ‘future patients.’”].) Nor is it apparent how the claim presented to Arch interfered with any prospective economic advantage with any existing client or other professional relationship.
For the foregoing reasons, Portnov has failed to state a claim for causes of action for negligent or intentional interference with prospective economic advantage.
E. Fraud, Fraud in the Inducement, and Negligent Misrepresentation
Portnov’s eighth, ninth, and tenth causes of action—for fraud in the inducement, fraud, and negligent misrepresentation, respectively—are based, in essence, upon the following allegations: Farmers represented to Portnov that Farmers would provide him with training, support, and guidance; such representations were made with the intent to induce Portnov to become a Farmers agent; Farmers did not believe (or had no reasonable ground for believing) these representations to be true when they were made and had no intention of performing the represented promises; and Portnov justifiably relied on the false representations in becoming a Farmers agent and subsequently suffered damages as a result.
As Portnov explains in his opening brief on appeal, his fraud and negligent misrepresentation claims are in the nature of “fraud or deceit in the inducement of an employment contract . . . .” The alleged false representations that induced him to enter into his agreement with Farmers are Farmers’s promises to provide Portnov with training, support, and guidance.
“To maintain an action for deceit based on a false promise, one must specifically allege and prove, among other things, that the promisor did not intend to perform at the time he or she made the promise and that it was intended to deceive or induce the promisee to do or not do a particular thing.” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159.) Farmers argues that Portnov’s allegations that Farmers’s promises of training, support, and guidance were false when made are contradicted by other allegations in the pleading. We agree.
Portnov alleges that “Farmers did in fact provide training, support, guidance, backing and consult from Rick Rasnick, Peter Young, Dawn Fields, Farmers Business Support Center Personnel employees, Farmers Home Office Management employees, Farmers websites/computer system, Farmers instructors, Farmers employees and agents and nameless employees that held themselves out as Farmers corporate employees or agents, either in person, writing or by telephone.” In another allegation, Portnov alleges that after being appointed as a reserve agent, “Farmers did provide [Portnov] training, support, backing, guidance and consult. . . . [Portnov] sought out, took and received all the training Farmers provided and required, including all Farmers’ training for commercial and workers compensation insurance policies.” He further alleges that “Farmers trained [him] on their operations and, among other things, how to write commercial, workers’ compensation and other insurance policies Farmers offered.” Portnov was not only trained by Farmers, but was asked by Farmers “to train and instruct other Farmers sales agents about how to write workers compensation insurance policy business among other things,” which he “did not hestitate” to do.
Regarding the 800 telephone number for workers’ compensation support, Portnov alleged that “Farmers’ support personnel would answer [Portnov’s] questions about requirements and how to write an insurance policy under specific sets of facts and circumstances he would provide and gave him specific instructions. If Farmers’ agent support line/Customer Service representative responder felt it was necessary to transfer [Portnov] to an underwriter, they would transfer him.” Portnov would call this support line “several times a week seeking support, instruction, advice and consult on writing Farmers’ workers’ compensation insurance policies, as well as other commercial and non-commercial policies.”
It is clear from these allegations that Farmers did provide Portnov with the promised training, support, and guidance that he alleged induced him to become a Farmers agent. The only specific facts Portnov alleges in support of his contrary allegations that Farmers did not intend to provide the promised training, support, and guidance is the instance in which Portnov called the 800 telephone support line and was advised and instructed to write and bind the Execair workers’ compensation policy in January 2005. This occurred two years after Portnov began working as a Farmers agent and after receiving the training, guidance, and support he repeatedly alleges, as set forth above. In the light of these allegations, even if Farmers’s advice and guidance regarding the Execair policy in 2005 was inadequate or incompetent, it does not support a claim that Farmers falsely represented its intent to provide Portnov with training, support, and guidance. (See Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 481 [something more than nonperformance is required to prove the intent not to perform a promise].) We therefore conclude that Portnov has failed to state a cause of action for fraud or negligent misrepresentation.^[4]
F. Declaratory Relief
In Portnov’s twelfth cause of action for declaratory relief, Portnov seeks “a judicial determination of his rights and duties, and a declaration as to any and all issues relating to” his agreements with Farmers. In his brief on appeal, Portnov narrows the scope of this claim. He explains that Farmers has argued that in the event of any breach of the agency contract, Portnov’s damages would be limited to those incurred or accrued during the notice period for terminating the contract. Portnov, on the other hand, contends that any such limitation would be unconscionable and therefore unenforceable.
A party to a contract may obtain a judicial declaration of his or her rights or duties under a contract, or a determination of any question of construction or validity of a contract, “in cases of actual controversy.” (Code Civ. Proc., § 1060.) However, when some event occurs that deprives a controversy of its life, it becomes moot, and an action for declaratory relief based upon such controversy should be dismissed. (Pittenger v. Home Savings & Loan Assn. (1958) 166 Cal.App.2d 32, 36; Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 257.)
Here, Portnov’s declaratory relief cause of action (as narrowed by his explanation on appeal) seeks a resolution of a dispute concerning the recoverability of damages for breach of contract suffered outside the applicable notice period. Because we are affirming the trial court’s judgment that Portnov has failed to state a claim for damages, the question of whether he can recover damages outside the notice period is moot; that is, regardless of whether the contract was unconscionable, Portnov is not entitled to recover any damages. Accordingly, the cause of action was properly dismissed.
V. DISPOSITION
The judgment is affirmed. Farmers shall recover its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King
J.


We concur:

/s/ Ramirez
P.J.

/s/ McKinster
J.

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