Page:S.O.S. v. Payday.pdf/12

 Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., 42 Cal.3d 1157, 1169, 232 Cal.Rptr. 567, 574, 728 P.2d 1202, 1209 (1986); see also Spellens v. Spellens, 49 Cal.2d 210, 232, 317 P.2d 613, 626 (1957) (abuse of process not found in wrongful procurement of legal process, but in misuse of process after it issues for any purpose other than that which it was designed to accomplish).

V. Breach of Contract and Tortious Breach of the Implied Covenant of Good Faith and Fair Dealing

Payday asserts that S.O.S. committed a breach of contract and tortious breach of the implied covenant of good faith and fair dealing by denying implicitly the existence of Payday’s license. Payday seeks nominal damages, attorneys’ fees, and punitive damages. The district court dismissed the contract claim on the ground that the contract did not provide for attorneys’ fees, which were the only actual damages sought, and the implied covenant claim on the ground that the contract between Payday and S.O.S. did not give rise to the sort of special relationship that would give rise to tort liability.

The district court decided these claims correctly. Payday cannot recover its attorneys’ fees as damages under a contract theory, where neither statute nor contract provide for attorneys’ fees in the event of breach. Cal.Code Civ.Proc. § 1021.

Nor does Payday have a cause of action in tort for breach of the implied covenant of good faith and fair dealing. California recognizes such torts only in the context of insurance contracts and other contracts where there is a “special relationship” between the parties to the contract, characterized by elements of public interest, adhesion, and fiduciary responsibility. Foley v. Interactive Data Corp., 47 Cal.3d 654, 687–88, 254 Cal.Rptr. 211, 230, 765 P.2d 373, 392 (1988), citing Seaman’s Direct Buying Service v. Standard Oil Co., 36 Cal.3d 752, 768–69, 206 Cal.Rptr. 354, 362–63, 686 P.2d 1158, 1166–67 (1984). Payday can not demonstrate the existence of such a special relationship here.

We reverse the district court’s grant of summary judgment in favor of Payday on the issue of copyright infringement, and remand for further proceedings consistent with this opinion. We also reverse and remand on S.O.S.’s breach of contract and trade secrets counts.

We affirm the district court’s grants of summary judgment in favor of S.O.S. on its account stated claim and dismissing Payday’s counterclaims for abuse of process, tortious breach of the implied covenant of good faith and fair dealing and breach of contract.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.