Judge Ashfaq G. Chowdhury, Case Number: 23GDCV00630, Date: 2023-11-17 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV00630, Date: 2023-11-17 Tentative Ruling

Case Number: 23GDCV00630 Hearing Date: November 17, 2023 Dept: E

Case No:23GDCV00630
Hearing Date: 11/17/2023 – 10:00am

Trial Date: UNSET [On 11/17/2023 there is a Motion for Trial Preference]

Case Name: MAURREN GONZALEZ, et al. v. CENTRAL PARK NORTH ASSOCIATION, et al.

[TENTATIVE RULING ON DEMURRER]

RELIEF REQUESTED
Defendants, Central Park North Association (Association), Bonnie Hartounian (Hartounian), George Gevorgyani (Gevorgyani), and Bella Nazarian (Nazarian), move the Court for an order sustaining their demurrer to Plaintiffs’ First Amended Complaint (FAC).

Defendants Association, Hartounian, and Gevorgyani demur generally or specially to the first cause of action for “Fraud” on the following grounds:

1. The first cause of action for fraud fails to state facts sufficient to constitute a cause of action because (1) plaintiff Gonzalez has failed to allege fraud with the requisite specificity and/or appropriate and sufficient facts giving rise to a claim of fraud, and (2) plaintiff has failed to allege any facts supporting any allegation of intentionality.

Defendants Association and Hartounian demur generally or specially to the third cause of action for “Breach of Fiduciary Duty” and the fourth cause of action for “Intentional Infliction of Emotional Distress” on the following grounds:

1. The third cause of action for breach of fiduciary duty fails to state facts sufficient to constitute a tort cause of action. Plaintiff Gonzalez fails to state facts sufficient to establish that the Association had an independent duty arising from tort law that is a separate duty from the contractual duties pursuant to the Association’s governing documents that give rise to plaintiff’s concurrent causes of action. See Sands v. Walnut Gardens Condominium Assn. Inc. (2019) 35 Cal.App.5th 174. Plaintiff further fails to state facts sufficient to establish that the alleged statute violation rises to the level of a tort; and

2. The fourth cause of action for intentional infliction of emotional distress fails to state facts sufficient to constitute a cause of action because (1) plaintiff Gonzalez has failed to allege intentional infliction of emotional distress with the requisite specificity and/or appropriate and sufficient facts giving rise to such a claim, in particular the lack of any alleged “outrageous conduct”; and (2) plaintiff has failed to allege any facts supporting any allegation of intentionality.

PROCEDURAL

Moving Party: Defendants, Association, Hartounian, Gevorgyani, and Nazarian

Responding Party: Plaintiffs, Maureen Gonzalez and Kathleen Lemke

Moving Papers: Notice/Demurrer

Opposition Papers: Opposition

Reply Papers: No Reply papers as of 11/15.

Proof of Service Timely Filed (CRC Rule 3.1300(c)):Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP §1013, §1013a, §1013b): Ok

Meet and Confer
A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., §430.41, subd. (a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., §430.41, subd. (a)(2).)

Here, Defendants’ counsel did not properly meet and confer. As indicated in Deenihan’s declaration, Deenihan spoke with opposing counsel as to the Complaint. However, once the FAC was filed, Deenihan did not meet and confer on the FAC.

Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., §430.41(a)(4).)

BACKGROUND
Plaintiffs filed a Complaint on 03/28/2023.

On 06/20/2023, Defendants, Central Park North Association, Bonnie Hartounian, George Gevorgyani, and Bella Nazarian, filed a Cross-Complaint against Vahe Khachatryan for Indemnity and Contribution.

On 8/14/2023, Plaintiffs, Maureen Gonzalez and Kathleen Lemke, filed a FAC against Central Park North Association, a corporation; Bonnie Hartounian, an individual; George Gevorgyani, an individual; Bella Nazarian, an individual; and Vahe Khachatryan.

LEGAL STANDARDS FOR DEMURRERS
Demurrer – Sufficiency
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading … is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Demurrer – Uncertainty
A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

ANALYSIS
First Cause of Action – Fraud – Alleged Against the Association, Hartounian, and Gevorgyani
The instant cause of action was alleged against the Association, Hartounian, and Gevorgyani. Association, Hartounian, and Gevorgyani demur generally and specially to the first cause of action for fraud.

The Court notes that it is difficult to decipher both Defendants’ and Plaintiffs’ arguments. Both parties’ arguments are rambling at times, and both parties at times fail to tie their arguments to law, and instead simply make arguments without explaining their legal significance.

Given that the specifics of both parties’ arguments are difficult to discern, the Court will address the elements of fraud, and point out the obvious issues it can discern from looking at the pleadings.

Legal Standard Fraud Intentional Misrepresentation
“ ‘The elements of fraud, which gives rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ “ (Small v. Fritz Companies, Inc. (2003) 30Cal.4th 167, 173 citing Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

(a) Misrepresentation

Fraud must be pleaded with specificity rather than with “‘general and conclusory allegations.’” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court (1996)12 Cal.4th 631, 645.)

Further, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court (1996)12 Cal.4th 631, 645.)

Here, as to this element, there appears to be so many insufficiencies with Plaintiffs’ FAC, it would be difficult for the Court to address them all. Therefore, the Court will simply address a few.

Paragraph 39 refers to a representation. It is unclear when it was made, where it was made, and how it was made.

Further, the fraud cause of action is alleged against several Defendants. On several occasions, Plaintiffs will state that CPN and Bonnie Hartounian represented something to Plaintiff. Many times it is unclear who made the representation and in what capacity. As an example, in ¶40, Plaintiffs refer to how CPN and Bonnie represented to Plaintiff that her unit was covered when CPN Board President Bonnie Hartounian sent an email to the HOA members. However, CPN and Bonnie are both named Defendants. It seems as if Plaintiff seeks to attribute Bonnie’s representation to that of the corporate entity. It is unclear what representations Bonnie made in her individual capacity since Bonnie was also named as a defendant individually.

Overall, Plaintiffs list conduct in such an unclear form, it is uncertain as to what the misrepresentations even are.

Another example is the alleged misrepresentation of Gevorgyani. It is unclear what his misrepresentation was.

(b) Knowledge of falsity (or “scienter”)

Here, the Court fails to see where knowledge of falsity as to each misrepresentation is alleged.

Here it is difficult to determine if this element is alleged because it is unclear what the representations are.

(d) Justifiable reliance

As to this element, the Court does not see where it is alleged.

(e) Resulting damage

TENTATIVE RULING FIRST CAUSE OF ACTION
Defendants’, Association, Hartounian, and Gevorgyani’s, demurrer as to the first cause of action is SUSTAINED on grounds of uncertainty and failure to state sufficient facts. Leave to amend is granted.

Plaintiffs’ FAC is a confused tangle of facts wherein it is difficult to decipher what the misrepresentations are and what the fraudulent conduct is. Further, it’s unclear what the individual Defendants did in their individual capacity since they are named as individual Defendants.

Third Cause of Action – Breach of Fiduciary Duty
The third cause of action is alleged against the Association and Hartounian. Association and Hartounian demur generally and specially to the third cause of action.

“In order to plead a cause of action for breach of fiduciary duty, a plaintiff must show the existence of a fiduciary relationship, its breach, and damages caused by the breach. (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 244.) “Whether a fiduciary duty exists is generally a question of law.” (Hodges v. County of Placer (2019) 41 Cal.App.5th 537, 546.)

As stated in Hodges:

“A fiduciary relationship is ‘ “any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latter's knowledge or consent ....” ’ (Herbert v. Lankershim (1937) 9 Cal.2d 409, 483, 71 P.2d 220; In re Marriage of Varner (1997) 55 Cal.App.4th 128, 141, 63 Cal.Rptr.2d 894; see also Rickel v. Schwinn Bicycle Co. (1983) 144 Cal.App.3d 648, 654, 192 Cal.Rptr. 732 [‘ “A ‘fiduciary relation’ in law is ordinarily synonymous with a ‘confidential relation.’ It is ... founded upon the trust or confidence reposed by one person in the integrity and fidelity of another, and likewise precludes the idea of profit or advantage resulting from the dealings of the parties and the person in whom the confidence is reposed.” ’].)

“Traditional examples of fiduciary relationships in the commercial context include trustee/beneficiary, directors and majority shareholders of a corporation, business partners, joint adventurers, and agent/principal. [Citations.]” (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 29-30, 130 Cal.Rptr.2d 860.)

(Hodges v. County of Placer (2019) 41 Cal.App.5th 537, 546-547.)

TENTATIVE RULING THIRD CAUSE

Defendants’ demurrer to the third cause of action is OVERRULED. Defendants’ arguments were unclear.

Defendants cited Sands to argue that breach of fiduciary duty was not alleged here. The Court fails to follow Defendants’ argument, as a cause of action for breach of fiduciary duty was not even alleged in Sands, only breach of contract and negligence was alleged.

Fourth Cause of Action – Intentional Infliction of Emotional Distress

As stated in Christensen v. Superior Court:

The elements of the tort of intentional infliction of emotional distress are: “ ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct....’ Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209, 185 Cal.Rptr. 252, 649 P.2d 894.) The defendant must have engaged in “conduct intended to inflict injury or engaged in with the realization that injury will result.” (Id. at p. 210, 185 Cal.Rptr. 252, 649 P.2d 894.)

(Christensen v. Superior Court 54 Cal.3d 868, 903.)

Here, the fourth cause of action is alleged against the Association and Hartounian. Association and Hartounian demur generally and specially to this cause of action.

Defendants argue that the allegations do not rise to the heightened standard of outrageous conduct.

“Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.)

The Court does not find Defendants’ argument availing. In particular, the allegations in ¶93 about mold being a known risk of prolonged water damage could be construed as outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing emotional distress.

Here, the Court finds that Plaintiffs sufficiently alleged this cause of action.

TENTATIVE RULING FOURTH CAUSE OF ACTION
Defendants’ demurrer to the fourth cause of action is OVERRULED.

TENTATIVE RULING ON MOTION TO STRIKE

RELIEF REQUESTED
Defendants, CENTRAL PARK NORTH ASSOCIATION (“Association”), BONNIE HARTOUNIAN (“Hartounian”), GEORGE GEVORGYANI (“Gevorgyani”), and BELLA NAZARIAN (“Nazarian” and, collectively with the Association, Hartounian, and Gevorgyani, “Defendants”) will move the Court for an order sustaining their motion to strike portions of Plaintiffs’ first amended complaint on file herein (“FAC”).

This motion is made on the ground that the FAC contains irrelevant, false, or improper matter regarding recovery of punitive damages as against Defendants. Specifically, Defendants move to strike the following portions of the FAC:

1. FAC page 7, line 1: Within paragraph 34, the phrase “fraudulent and”;

2. FAC page 7, line 4: Within paragraph 35, the phrase “fraudulent and”;

3. FAC page 11, line 2: Within paragraph 57, the phrase “and punitive”;

4. FAC page 17, line 13: Within paragraph 98, the phrase “and punitive”;

5. FAC page 19, line 19: Prayer part (b) in its entirety, requesting punitive damages; and

6. Any and all other references to punitive or exemplary damages in the FAC.

PROCEDURAL

Moving Party: Defendants, Association, Hartounian, Gevorgyani, and Nazarian

Responding Party: Plaintiffs, Maureen Gonzalez and Kathleen Lemke

Moving Papers: Notice/Motion

Opposition Papers: Opposition

Reply Papers: No Reply as of 11/15

Proof of Service Timely Filed (CRC Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP §1013, §1013a, §1013b): Ok

Meet and Confer
Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading. (CCP §435.5(a).)

Defendants’ counsel did not meet and confer before filing this motion to strike. Defendants’ counsel met and conferred only pertaining to the original Complaint.

“A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” (CCP §435.5(a)(4).)

Legal Standard Motion to Strike
The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. § 436(b).) A motion to strike cannot be based upon the grounds that a complaint fails to state facts sufficient to constitute a cause of action, but instead is properly based on grounds of superfluous or abusive allegations, or improprieties in form or procedure. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528-29.)

The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code. Civ. Proc. § 437; Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth”].)

Further, CCP §431.10(a)-(c) states as follows:

(a) A material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that claim or defense.

(b) An immaterial allegation in a pleading is any of the following:

(1) An allegation that is not essential to the statement of a claim or defense.

(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.

(3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.

(CCP §431.10(a)-(c).)

ANALYSIS

Punitive Damages
In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example by way of punishing the defendant. (Cal. Civ. Code §3294(a).) “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (CCP §3294(c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (CCP §3294(c)(2).) “‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (CCP §3294(c)(3).)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Sup. Ct. (1992) 10 Cal. App. 4th 1033, 1042.)

Further as stated in Monge v. Superior Court, which helps explain the case law behind alleging punitive damages:

In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants' conduct may adequately plead the evil motive requisite to recovery of punitive damages. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6–7, 172 Cal.Rptr. 427.)

Perkins provides the highly pertinent example of this standard in the context of a motion to strike punitive damage allegations. There the complaint alleged that defendants “wrongfully and intentionally” invaded plaintiff's privacy and terminated his telephone service “in retaliation” for prior complaints lodged by plaintiff. The complaint also generally alleged that defendants were guilty of “oppression, fraud and malice.” Perkins read the complaint as a whole and held that the alleged conclusions of fact or law considered in the context of alleged wrongful conduct “in retaliation” pleaded an evil injurious motive sufficient **68 to establish malice and sustain a plea for punitive damages.

In G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 27–32, 122 Cal.Rptr. 218, it was pointed out that there exists an uncertainty in the case law as to just what terms adequately describe the necessary elements of “oppression, fraud or malice” under Civil Code section 3294. Searle suggests that different types of injurious conduct allow different formulations in pleading oppression or malice, but that the critical element is an “evil motive” of the defendant. (Id., at pp. 29–31, 122 Cal.Rptr. 218.)

*511 The meanings of “oppression” and “malice” with regard to Civil Code section 3294 are explained in Richardson v. Employers Liab. Assur. Corp. (1972) 25 Cal.App.3d 232, 245–246, 102 Cal.Rptr. 547. “Malice” means a wrongful intent to vex or annoy. “Oppression” means “subjecting a person to cruel and unjust hardship in conscious disregard of his rights.” Malice and oppression may be inferred from the circumstances of a defendant's conduct.

(Monge v. Superior Court (1986) 176 Cal.App.3d 503, 510-11.)

TENTATIVE RULING

As a preliminary matter, Defendants seek to strike 6 portions of the FAC. Defendants’ motion does not explain why each portion should be stricken. Defendants generally state broad legal principles and don’t explain them as to each portion Defendants want stricken. Therefore, the Court will only strike those portions that appear to have obvious reasons to be stricken from the FAC.

The Court GRANTS Defendants’ motion to strike, with leave to amend granted, as to portions 1, 2, 3, and 5 because the fraud cause of action was sustained with leave to amend granted.

The Court DENIES Defendants’ motion to strike as to the 4^th portion because Defendants provided no reasons to strike as to that specific portion.

The Court DENIES the Defendants’ motion to strike the 6^th portion of the FAC. The Court will not search for punitive and exemplary damages all throughout the FAC. Movant can identify what it wants stricken and the basis for striking such.

The Court grants leave to amend. Plaintiffs may file and serve an amended complaint within 20 days of this order.