Judge Charles E. Ramos

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Obsessive Compulsive Cosmetics (OCC) sued Sephora USA. Sephora moved for dismissal of causes of action, including breach of contract, in OCC’s amended complaint. Under a written agreement, OCC was to sell cosmetics to Sephora would retail it in its stores, with OCC being responsible for costs including the permanently branded fixtures. The agreement contained a no modification clause except in writing. In an effort to induce OCC to agree to place its products into 26 locations, Sephora verbally agreed to share all fixture costs with OCC by 50 percent. Relying on same, OCC produced new products over $590,000, but when it insisted on Sephora adhering to its representations to share the fixture costs, Sephora cancelled all purchase orders regarding the opening inventory and did not pay fixture costs. The court noted complete or partial performance were exceptions to the requirement of a written modification, finding in reliance on Sephora’s verbal representation to share in fixture costs, OCC sufficiently pleaded partial performance unequivocally referable to the alleged oral modification Sephora would share in the costs. Thus, as OCC sufficiently pleaded all elements of a contract breach, dismissal was denied.