Judge Ashfaq G. Chowdhury, Case Number: 23GDCV01105, Date: 2024-10-24 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV01105, Date: 2024-10-24 Tentative Ruling

Case Number: 23GDCV01105 Hearing Date: October 24, 2024 Dept: E

Case No: 23GDCV01105
Hearing Date: 10/24/2024 – 8:30am

Trial Date: UNSET

Case Name: ROBIK AGHASIAN; SH SHAHBAZIAN NORAMAYER; RAZMIK AGHASIAN GHARAEHPET; and RAFIK AGHASIAN GHARAPET v. NINA SAVARANI, individually and as Trustee of The Edward T. Savarani Living Trust dated September 6, 2006; ANOOSH STEPANIAN; TIODORE DOE; and DOES 1-50, inclusive

TENTATIVE RULING ON DEMURRER AND MOTION TO STRIKE

PROCEDURAL
Moving Party: Defendant, Nina Savarani

Responding Party: Plaintiffs, Robik Aghasian; Sh Shahbazian Noramayer, Razmik Aghasian Gharehpet, and Rafik Aghasian Gharapet

Moving Papers: Notice/Motion; Proposed Order

Opposition Papers: Opposition

Reply Papers: Reply

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

RELIEF REQUESTED
“Defendant NINA SAVARANI (“Savarani”) will and hereby does demur to each cause of action in Plaintiffs’ ROBIK AGHASIAN, SH SHAHBAZIAN NORAMAYER, RAZMIK AGHASIAN GHARAEHPET, and RAFIK AGHASIAN GHARAPET (collectively “Plaintiffs”) Complaint. This Demurrer is brought pursuant to Code of Civil Procedure §§ 430.10(e)-(f), on the grounds that Plaintiffs have failed to allege facts sufficient to constitute a cause of action against Savarani and the Complaint is uncertain as against Savarani. As these defects cannot be cured, this Demurrer should be sustained without leave to amend.

This Demurrer is based upon this Notice of Demurrer and Demurrer, the attached Memorandum of Points and Authorities, the Declaration of Eileen Keusseyan, the Complaint, including all exhibits attached thereto, the Court’s records and files in this case, and such oral and documentary evidence as may be submitted at or before the hearing of this Demurrer.”

“Def. Notice, p. 2.)

PROCEDURAL
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).)

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

Defendant’s counsel sufficiently met and conferred. (See Keusseyan Decl. ¶¶ 3-6.) Defendant’s counsel notes how Plaintiffs’ counsel never responded to Defendant’s meet and confer letter. Plaintiffs’ counsel does not address the fact that Defendant’s counsel stated that Plaintiffs’ counsel did not meet and confer.

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
Plaintiffs – Robik Aghasian; Sh Shahbazian Norameyer; Razmik Aghasian Gharaehpet; and Rafik Aghasian Gharapet – filed the instant action on 5/26/2023 against Defendants – Nina Savarani, individually and as Trustee of The Edward T. Savarani Living Trust dated September 6, 2006; Anoosh Stepanian; Tiodore Doe; and Does 1-50.

On 9/13/2023, Plaintiffs amended the fictitious name of Defendant Tiodore Doe named in the Complaint to Tiodore Pariai.

The caption of the Complaint lists the causes of action as follows: (1) Breach of the Covenant of Quiet Enjoyment, (2) Assault and Battery, (3) Negligence, (4) Intentional Infliction of Emotional Distress, and (5) Trespass.

However, the body of the Complaint lists the causes of action as follows: (1) Assault and Battery, (2) Negligence, (3) Intentional Infliction of Emotional Distress, (4) Trespass, (5) Slander Per Se.

Allegations – Generally

Plaintiffs allege that on October 25, 2021, Plaintiffs entered into a written lease agreement with Edward T. Savarani and Kristine D. Hayrap (husband and wife) for the lease of real property located at 1134 Irving Ave., #A, Glendale, CA 91201 (Subject Property). (Compl. ¶ 10.)

[The Court notes that neither Edward T. Savarani nor Kristine D. Hayrap are Defendants in this action. The Court also notes that ¶ 10 of the Complaint alleges that a copy of the lease referred to in ¶ 10 is attached as Exhibit A to the Complaint; however, there is not a copy of a lease attached to the Complaint.]

Generally speaking, Plaintiffs allege that Defendant(s) showed up at the Subject Property, demanded payment of rent, called Plaintiff(s) a liar/slurs/names, tried making Plaintiffs sign a new lease, and gained access to the Subject Property by false representations. (See Compl. ¶¶ 10-26.) Plaintiffs also allege that Defendant Tiodore Pariai made threatening gestures toward Plaintiff Robik Aghasian and physically pushed Plaintiff, and forced his way into the subject property. (Compl. ¶ 22.) Plaintiffs also allege that both Defendants Teodore Pariai and Nina Savarani physically forced their way into the Subject Property against Plaintiffs’ will and without Plaintiffs’ consent. (Id.)

First Cause of Action – Assault and Battery

Plaintiffs’ first cause of action for assault and battery alleges the following:

27. Plaintiffs reallege and incorporate herein by this reference, paragraphs 1 through 26, inclusive of the common allegations as though set forth in full.

28. On the aforesaid dates and at the time and place alleged, Defendants Nina Savarani and Tiodore Doe, and Does 1 through 24, through Defendants Nina Savarani and Tiodore Doe, improperly, illegally, violently, wantonly, intentionally, negligently, and in conscious disregard of the rights of the Plaintiff Robik Aghasian, threatened, assaulted and battered, Plaintiff. All of the aforesaid acts were committed in the presence of each of the other Plaintiffs, causing them to fear for their well-being and causing them shock to their nervous systems.

29. As a direct and proximate result of the acts and conduct of Defendants, and each of them, described above, Plaintiff Robik Aghasian sustained physical injury and damages, including but not limited to shock to his nervous system, mental anguish, physical pain and suffering, and personal humiliation and embarrassment from the acts and occurrences happening, which cause Plaintiff Robik Aghasian great mental, physical and nervous pain and suffering. As a result of such injuries, Plaintiff Robik Aghasian has suffered general damages in an amount according to proof.

30. As a further direct and proximate result of the acts and conduct of defendants, and each of them, Plaintiff is informed and believes and thereon alleges, that he may incur medical expenses in the future, the exact amount of which cannot be ascertained at this time, all to Plaintiffs further damages. When said amounts of past, present and future hospital and medical are ascertained, Plaintiff will seek leave of court to amend this complaint and insert said amounts herein.

31. In committing the acts and conduct described above, Defendants Nina Savarani, Anoosh Stepanian, Tiodore Doe and Does 1 through 25, inclusive, acted with oppression, fraud, or malice, and their conduct was despicable conduct, entitling Plaintiff Robik Aghasian to an award of punitive damages against Defendants, and each of them.

(Compl. ¶¶ 27 – 31.)

Defendant, Nina Savarani, argues that Plaintiffs did not allege facts sufficient to constitute a cause of action and that Plaintiffs’ Complaint is uncertain.

As a preliminary matter, the Court notes that the allegations in ¶¶ 27-31 make it completely uncertain as to what conduct Plaintiffs’ believe is considered assault and battery. Presumably, since ¶ 27 of the Complaint incorporates the prior allegations of the Complaint into the first cause of action, the Plaintiffs are basing their assault and battery allegations off of conduct in ¶¶ 1 – 26 of the Complaint. Further, the Opposition seems to indicate that the conduct that constitutes assault and battery stem from the allegations in ¶¶ 22-23 of the Complaint which allege:

22. Plaintiff Robik Aghasian advised Defendants Nina Savarani and Teodore Doe that it was late in the afternoon, that there was no need to change the locks on the front door, and that they could not enter the subject property. Defendants did not change the locks, but insisted on entry into the subject property. Defendant Tiodore Doe made threatening physical gestures toward Plaintiff Robik Aghasian and physically pushed Plaintiff, and forced his way into the subject property. Both Defendants Teodore Doe and Nina Savarani physically forced their way into the subject property against Plaintiffs' will and without Plaintiffs' consent. Defendants further stole a key to the subject property from Plaintiff Robik Aghasian's possession.

23. Plaintiffs Sh Shahbazian Noramayer, Razmik Aghasian Gharehpet, and Rafik Aghasian Gharapet were present inside the subject property, were subjected to Defendants intrusion and harassing, threatening conduce and were placed in fear of their safety and well-being by the aggressive and threatening behavior of Defendants Nina Savarani and Teodore Doe.

(Compl. ¶¶ 22-23.)

The elements of civil battery are: (1) defendant intentionally performed an act that resulted in a harmful or offensive contact with the plaintiff’s person; (2) plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused injury, damage, loss, or harm to plaintiff. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 526-527 (Brown) citing Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495.)

The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) plaintiff did not consent to the defendant’s conduct; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890 citing So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

As to the first element of both assault and battery, the Court finds that Plaintiffs did not sufficiently allege that element.

The first sentence of Paragraph 28 of the Complaint simply states, “On the aforesaid dates and at the time and place alleged, Defendants Nina Savarani and Tiodore Doe, and Does 1 through 24, through Defendants Nina Savarani and Tiodore Doe, improperly, illegally, violently, wantonly, intentionally, negligently, and in conscious disregard of the rights of the Plaintiff Robik Aghasian, threatened, assaulted and battered, Plaintiff.” (Compl. ¶ 28.) 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.) Plaintiffs’ allegations that Defendants intentionally assaulted and battered Plaintiff is a conclusion of law. Further, Plaintiffs should specify which act(s) they are alleging that Defendant(s) intentionally performed that resulted in a harmful or offensive contact with the Plaintiff’s person (element 1 of battery). Plaintiff should also allege the first element of an assault cause of action.

Further, as to the second element of battery, it is arguable that Plaintiffs alleged that element in ¶ 22 of the Complaint by stating, “Both Defendants Teodore Doe and Nina Savarani physically forced their way into the subject property against Plaintiffs' will and without Plaintiffs' consent.” (Compl. ¶ 22.) However, element 2 was not alleged in ¶¶ 27-31 of the Complaint; therefore, it would be helpful for Plaintiffs to allege the second element of battery under the allegations for the first cause of action in ¶¶ 27-31.

The second element of a cause of action for assault was not alleged in the Complaint.

TENTATIVE RULING FIRST CAUSE OF ACTION – ASSAULT AND BATTERY
The demurrer to the first cause of action for assault and battery is SUSTAINED with leave to amend granted. Plaintiffs did not allege facts sufficient to constitute those causes of action.

While the Court is sustaining the demurrer to assault and battery on the grounds that Plaintiffs did not allege facts sufficient to constitute a cause of action, the Court notes that Plaintiffs draft their Complaint in a fairly uncertain manner. Plaintiffs make general allegations that are common to all causes of action, and those allegations precede each individual cause of action in the Complaint. Although Plaintiffs incorporate those general allegations into each cause of action that is specifically enumerated, it would be helpful for Plaintiffs to explicitly allege the conduct that they believe constitutes each cause of action into the allegations where each cause of action is specifically enumerated. This will make it more certain for Defendants and the Court to understand what Plaintiffs consider to be the allegations for each cause of action.

Further, Plaintiffs are ordered to clear up the discrepancy between the caption of the Complaint stating that the first cause of action is breach of the covenant of quiet enjoyment, yet the first cause of action in the body being assault and battery. To the Court’s understanding, based on Plaintiffs’ Opposition not attempting to argue that they are in fact bringing a cause of action for breach of the covenant of quiet enjoyment, the Court assumes that Plaintiffs are not brining a cause of action for breach of the covenant of quiet enjoyment.

While not necessary, the Court notes that it would also be helpful for Plaintiffs to divide their cause of action for assault and battery into two distinct causes of action because then, if Defendant demurs again, the Court and Defendant could easily distinguish between the two causes of action and what conduct Plaintiffs believe go to each cause of action.

Second Cause of Action – Negligence
The only paragraphs listed under Plaintiffs’ second cause of action for negligence are paragraphs 32 and 33, and those paragraphs allege the following:

32. Plaintiffs reallege and incorporate herein by this reference paragraphs 1 through 26, inclusive of the general allegations, as though set forth in full.

33. Defendants, and each of them, owed Plaintiffs a duty of due care. Defendants, and each of them, breached their duty of care proximately causing Plaintiffs' injuries and damages as herein before set forth.

(Compl. ¶¶ 32-33.)

Defendant, Nina Savarani, argues that Plaintiffs did not allege facts sufficient to constitute a cause of action and that Plaintiffs’ Complaint is uncertain.

As a preliminary matter, the Court notes that the allegations in ¶¶ 32-33 make it uncertain as to what conduct Plaintiffs believe is considered negligence. Presumably, since ¶ 32 of the Complaint incorporates the prior allegations of the Complaint into the second cause of action, the Plaintiffs are basing their negligence allegations off of conduct in ¶¶ 1 – 26 of the Complaint.

“To succeed in a negligence action, the plaintiff must show that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff's damages or injuries.” (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.)

Further, as explained in Giacometti v. Aulla, LLC:

To state a cause of action for professional negligence, a party must show “(1) the duty of the professional to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence.” (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1682, 19 Cal.Rptr.2d 601.) “The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion.” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397, 11 Cal.Rptr.2d 51, 834 P.2d 745 (Bily ).)

(Giacometti v. Aulla, LLC (2010) 187 Cal.App.4th 1133, 1137.)

“While negligence is ordinarily a question of fact, the existence of a duty is generally a question of law that may be addressed by demurrer.” (Paul v. Patton (2015) 235 Cal.App.4th 1088, 1095.)

Additionally, as stated in Parsons:

Some of the considerations that courts have employed in various contexts to determine the existence and scope of duty are: “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.

(Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472-73.)

In Plaintiffs’ Opposition to Defendant’s demurrer, Plaintiffs cite to various paragraphs within paragraphs 10-24 of Plaintiffs’ Complaint. Then, Plaintiffs conclude, “It is clear from the allegations that Defendant Savarani was acting as landlord or owner of the subject property on her own behalf or on behalf of Edward T. Savarani, an ownership interest that was subject to Plaintiff’s lease.” (Pl. Oppo. p. 10-11.)

The Court notes that Plaintiffs’ Opposition is unhelpful to the Court.

TENTATIVE RULING – SECOND CAUSE OF ACTION – NEGLIGENCE
Defendant’s demurrer to the second cause of action for negligence is SUSTAINED on grounds of failure to state facts sufficient to constitute a cause of action and on grounds of uncertainty. Leave to amend is granted.

First, it would be helpful if Plaintiffs indicate whether or not they are bringing a cause of action for negligence or professional negligence. While distinguishing the difference between the two does not appear to be necessary for this hearing on a demurrer, either way, it is unclear what conduct of each Defendant Plaintiffs are basing their negligence cause of action on for each Defendant. Further, it is entirely unclear based on the Complaint what allegations for each Defendant gives rise to a duty for each Defendant.

Plaintiffs’ Opposition briefly mentions how Defendant Savarani was acting as a landlord of the Subject Property. However, this is the only argument that Plaintiffs make. This still makes it unclear if Plaintiffs are arguing that Defendant(s) are liable for some type of professional negligence based on allegations in the general allegations, or if Plaintiffs are arguing that Defendant(s) should be liable for some type of negligence based on physical injuries.

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.)

Here, not only is it entirely uncertain what conduct by each Defendant that Plaintiffs believe give rise to a duty to Plaintiffs, but it is entirely uncertain what conduct Plaintiffs are alleging to be a breach of duty for each Defendant. Therefore, at the very least, Plaintiffs did not allege the first and second elements of a negligence cause of action, and it is entirely uncertain as to what conduct Plaintiffs believe is the basis for the first and second elements of a negligence cause of action.

Further, although Plaintiffs incorporate their general allegations into each cause of action that is specifically enumerated, it would be helpful for Plaintiffs to explicitly allege the conduct that they believe constitutes each cause of action into the allegations where each cause of action is specifically enumerated. This will make it clearer for Defendants and the Court to understand what Plaintiffs consider to be the allegations for each cause of action.

Third Cause of Action – Intentional Infliction of Emotional Distress
Plaintiffs’ third cause of action for intentional infliction of emotional distress alleges the following:

34. Plaintiffs reallege and incorporate herein by this reference Paragraphs 1 through 26, inclusive, of the common allegations as though set forth in full.

35. Defendants' acts and conduct, as herein alleged, was [sic] knowing, intentional, willful and done with a reckless disregard of the probability of causing Plaintiffs harm or emotional distress.

36. As a proximate result of Defendants' conduct, as alleged herein, Plaintiffs suffered extreme mental anguish and emotional and physical distress, all to their general damage in an amount not yet ascertained, but in excess of $100,000, the exact amount of which will be alleged when fully ascertained.

37. By reason of Defendants' acts and conduct, including, but not limited to the acts and conduct alleged herein, by and through Defendants Nina Savarani, Anoosh Stepanian and Tiodore Doe and their conscious disregard for Plaintiffs [sic] rights, Defendants' acts and conduct were malicious and oppressive, in that it was conduct carried on by the Defendants, and each of them, in willful and conscious disregard of Plaintiffs' rights and subjected Plaintiffs to cruel and unjust hardship. Plaintiffs are therefore entitled to recover punitive damages from Defendants, and each of them, in an amount according to proof, to set an example of Defendants and to deter such future conduct.

(Compl. ¶¶ 34 – 37.)

Defendant, Nina Savarani, argues that Plaintiffs did not allege facts sufficient to constitute a cause of action and that Plaintiffs’ Complaint is uncertain.

As a preliminary matter, the Court notes that the allegations in ¶¶ 34-37 make it uncertain as to what conduct Plaintiffs’ believe is considered intentional infliction of emotional distress. Presumably, since ¶ 34 of the Complaint incorporates the prior allegations of the Complaint into the first cause of action, the Plaintiffs are basing their intentional infliction of emotional distress allegations off of conduct in ¶¶ 1 – 26 of the Complaint. In Opposition, Plaintiffs simply argue that Defendant’s demurrer refuses to acknowledge the factual underpinnings of paragraphs 10 – 26 that support each cause of action.

The Court does not find Plaintiffs’ argument availing.

The case of Yau v. Santa Margarita Ford, Inc. describes the elements of an IIED claim:

“ ‘ “[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” ’ [Citation.] ‘ “Conduct, to be ‘ “outrageous” ’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” ’ [Citation.] In order to avoid a demurrer, the plaintiff must allege with ‘great[ ] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation.]” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832, 166 Cal.Rptr.3d 242 (Vasquez ).)

(Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160-61.)

While Plaintiffs seem to be arguing that the conduct in the general allegations of the Complaint in paragraphs 10 -26 are the basis for all of their causes of action, this is unhelpful to the Court. Those paragraphs consist of a broad range of conduct by each Defendant.

It is uncertain what conduct Plaintiffs believe to be the outrageous conduct by each Defendant in paragraphs 10-26 when paragraphs 10-26 consists of a broad range of conduct that varies for each Defendant.

TENTATIVE RULING THIRD CAUSE OF ACTION – IIED
Defendant’s demurrer to the third cause of action for intentional infliction of emotional distress is SUSTAINED on grounds of failure to state facts sufficient to constitute a cause of action and on grounds of uncertainty. Plaintiffs are granted leave to amend.

At the very least, Plaintiffs did not allege the first element of IIED, and it is entirely uncertain what conduct Plaintiffs believe constitutes the first element of an IIED claim for any Defendant.

Further, although Plaintiffs incorporate their general allegations into each cause of action that is specifically enumerated, it would be helpful for Plaintiffs to explicitly allege the conduct that they believe constitutes each cause of action into the allegations where each cause of action is specifically enumerated. This will make it more clear for Defendants and the Court to understand what Plaintiffs consider to be the allegations for each cause of action.

Fourth Cause of Action – Trespass
Plaintiffs’ fourth cause of action for trespass alleges the following:

38. Plaintiffs reallege and incorporate herein by this reference Paragraphs 1 through 26, inclusive, of the common allegations as though set forth in full.

39. At all times herein mentioned, Plaintiffs were the possessors and occupiers of the subject property. At all times concerned herein, Plaintiffs did not give any consent nor authority to any of the Defendants to enter upon or into the subject property and on the one occasion when Defendant Nina Savarani and the real estate agents entered, with the consent of Plaintiffs, said consent was wrongfully obtained and would not have been given except for said Defendants' misrepresentations, and nondisclosure and suppression of material facts. Any such entry, therefore, would be without such consent and with no legal or other cause.

40. At the aforesaid times Defendants, Nina Savarani, Anoosh Stepanian, Tiodore Doe and Does 1 through 25, entered upon and into the subject property without any consent or authority from Plaintiffs and threatened, intimidated and harassed Plaintiffs, and each of them

41. As a direct and proximate result of the acts and conduct of Defendants, and each of them, Plaintiffs suffered the damages as set forth herein above.

42. The trespass of Defendants, and each of them, through Defendants Nina Savarani, Anoosh Stepanian, Tiodore Doe, and Does 1 through 10, inclusive, was malicious and oppressive, in that it was conduct carried on by the Defendants, and each of them, in willful and conscious disregard of Plaintiffs' rights and subjected Plaintiffs to cruel and unjust hardship. Plaintiffs are therefore entitled to recover punitive damages from Defendants, and each of them, in an amount according to proof, to set an example of Defendants and to deter such future conduct.

(Compl. ¶¶ 38 – 42.)

Defendant, Nina Savarani, argues that Plaintiffs did not allege facts sufficient to constitute a cause of action and that Plaintiffs’ Complaint is uncertain.

As stated in Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245:

“Trespass is an unlawful interference with possession of property.” ( *262 Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406, 235 Cal.Rptr. 165.) The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm. (See CACI No. 2000.)

(Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261-62.)

Here, at the very least, Plaintiffs did not allege the second element of a trespass cause of action. Plaintiffs did not allege the entry onto the property was intentional, reckless, or negligent.

Defendant’s argument that Plaintiffs did not allege lack of consent/lack of permission (the third element of a trespass claim) is unavailing. Defendant’s argument attempts to construe Plaintiffs’ Complaint as essentially admitting that Savarani had consent to enter the property; however, the Complaint explicitly mentions that Defendants did not have consent to enter the property in paragraph 40 of the Complaint.

TENTATIVE RULING – FOURTH CAUSE OF ACTION – TRESPASS
Defendant’s demurrer to the fourth cause of action for trespass is SUSTAINED on grounds of failure to state facts sufficient to constitute a cause of action. Plaintiffs did not allege the second element of a trespass claim, i.e., Plaintiffs did not allege that the entry onto the property was intentional, reckless, or negligent. Defendant’s argument that Plaintiffs did not allege the third element of a trespass claim (lack of consent/permission) is unavailing. Plaintiffs are granted leave to amend.

Further, the Court notes that there is some uncertainty in the fourth cause of action. In relevant part of ¶ 39 of the Complaint, Plaintiffs allege, “At all times concerned herein, Plaintiffs did not give any consent nor authority to any of the Defendants to enter upon or into the subject property and on the one occasion when Defendant Nina Savarani and the real estate agents entered, with the consent of Plaintiffs, said consent was wrongfully obtained and would not have been given except for said Defendants' misrepresentations, and nondisclosure and suppression of material facts.” (Compl. ¶ 39.)

Based on the allegation quoted above in ¶ 39, it would seem to imply that the trespass claim is based on this one occasion of allegedly trespassing based on Defendants’ misrepresentations.

However, in ¶ 40 of the Complaint, Plaintiffs allege, “At the aforesaid times Defendants, Nina Savarani, Anoosh Stepanian, Tiodore Doe and Does 1 through 25, entered upon and into the subject property without any consent or authority from Plaintiffs and threatened, intimidated and harassed Plaintiffs, and each of them [.]” (Compl. ¶ 40.)

Therefore, there seems to be some uncertainty as to whether Plaintiffs are alleging there to be one incident of trespass as indicated in ¶39, or if there are several instances of trespass based on the reference to multiple times referenced in ¶ 40.

Not only is there this discrepancy as to whether or not the trespass claim is based on the sole incident alleged in ¶ 39, there also seems to be an allegation in ¶ 16 of the Complaint wherein Plaintiff alleges that Defendant entered Plaintiffs’ Subject property. However, it is unclear based on the allegations in ¶¶ 38 – 42 if this incident in ¶ 16 is also a basis of the trespass allegations.

Therefore, it would be helpful for Plaintiffs to identify each specific allegation that they believe to be trespass.

Regardless of the uncertainty, at the very least, Defendant’s demurrer is successful because the Court fails to see where Plaintiffs alleged the second element of a trespass claim, i.e., the Court fails to see where Plaintiffs alleged that the entry onto the property was intentional, reckless, or negligent.

Fifth Cause of Action – Slander Per Se
Plaintiffs’ fifth cause of action for slander per se alleges the following:

43. Plaintiffs reallege and incorporate herein by this reference Paragraphs 1 through 26, inclusive, of the common allegations as though set forth in full.

44. Within two years of the filing of the complaint in the above-entitled action, Defendants and each them as herein alleged, in the presence of Plaintiffs Sh Noramayer Shahbazian, Razmik Aghasian Gharehpet, and Rafik Aghasian Gharapet said Defendants made the statements and accusations in paragraphs 16 and 17 herein above, pertaining to Plaintiff Robik Aghasian.

45. The statements were and are false and slanderous per se.

46. As a proximate result of the slanderous statements by Defendants, and each of them herein, Defendant Robik Aghasian sustained general damages as herein set forth, the exact amount which will be alleged when ascertained.

47. In committing the acts and conduct described above, Defendants Nina Savarani, Anoosh Stepanian, and Does 1 through 25, inclusive, acted with oppression, fraud, or malice, and their conduct was despicable conduct, entitling Plaintiff Robik Aghasian to an award of punitive damages against Defendants, and each of them.

(Compl. ¶¶ 43 – 47.)

Since the allegations in ¶ 44 indicate that the slander claim is based on ¶¶ 16-17 of the Complaint, the Court includes those allegations below:

16. Upon his return he found Defendants Nina Savarani and Anoosh Stepanian inside his home sitting on the couch waiting for him to return. In his presence, Defendant Anoosh Stepanian told Robik Aghasian's mother, Plaintiff Sh Noramayer Shahbazian that Robik Aghasian was a "liar", an animal and that he was a low life criminal, that he had low morals, low ethics and had "no standards." Plaintiff Robik Aghasian had never met nor interacted with either Defendant Nina Savarani or Anoosh Stepanian and was therefore puzzled, offended, hurt and humiliated by these statements.

17. At the aforesaid time and place, Defendant Nina Savarani produced a new "blank" lease agreement claiming that Plaintiff Robik Aghasian had to sign, that the "court ordered it." Defendant Anoosh Stepanian told Plaintiff Robik Aghasian, "come sit here you fucking liar and sign this." Defendant Anoosh Stepanian produced a document that had blank spaces that were not filled in and he saw the words, "Lease Agreement." Plaintiff Robik Aghasian asked for some proof that either Defendant owned the subject property. Plaintiff further said that he wanted to take a picture of the documents, but they told him that he could only sign it-not take a picture of it. Plaintiff Robik Aghasian refused to sign the blank document and told said Defendants that as soon as he saw a paper form the court, that he would sign it.

(Compl. ¶¶ 16-17.)

Defendant first argues that none of the statements that Plaintiffs claim to be defamatory were said by Defendant Savarani, and instead the Complaint alleges that Defendant Anoosh Stepanian made the alleged statements. Defendant also argues that the Complaint does not establish that Defendant Anoosh Stepanian was acting as Savarani’s agent or under her control.

In Opposition, Plaintiffs argue that Defendant’s argument is unavailing because the Complaint alleges that Defendant Anoosh Stepanian was acting on behalf of Defendant Savarani.

Here, the Court does not find Defendant’s argument availing that Plaintiff did not sufficiently allege that Defendant Anoosh Stepanian was Defendant Savarani’s agent.

First, Defendant did not cite any legal authority as to what Plaintiffs must in fact allege at the pleading stage for Plaintiffs to successfully allege agency amongst the Defendants.

Upon the Court’s own perusal of case law, the Court found the two cases below.

As to alleging agency at the pleading stage, “An allegation of agency is an allegation of ultimate fact that must be accepted as true for purposes of ruling on a demurrer.” (City of Industry v. City of Filmore (2011) 198 Cal.App.4th 191, 212-13.) “We have already noted, however, that an allegation of agency as such is a statement of ultimate fact. Consequently further allegations explaining how this fact of agency originated become unnecessary.” (Skopp v. Weaver (1976) 16 Cal.3d 432, 439.)

Paragraph 7 of the Complaint alleged, “Plaintiffs are informed and believe, and thereon allege that at all times herein mentioned, Defendants Anoosh Stepanian, Tiodore Doe engaged in their acts and conduct as herein alleged as agents of Defendant Nina Savarani, Trust and Does 1 through 5, inclusive, were and now are the employees, agents, servants and representatives of Defendant Trust and Nina Savarani and Does 1 through 5, inclusive, and in doing the things herein alleged, were acting within the course and scope of their agency and employment.” (Compl. ¶ 7.)

Therefore, it appears that Plaintiffs alleged that Defendants Anoosh and Tiodore were agents of Defendant Nina Savarani.

Setting aside the issue of agency, the Court turns to the merits as to whether or not slander per se was successfully alleged.

“Slander is a form of defamation (Civ.Code, § 44), consisting of a false and unprivileged oral publication (Civ.Code, § 46).” (City of Costa Mesa v. D’Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 375.)

As stated in Civil Code § 46:

Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;

4. Imputes to him impotence or a want of chastity; or

5. Which, by natural consequence, causes actual damage.

(Civil Code § 46.)

As a preliminary matter, the Court notes that neither Defendant nor Plaintiffs’ papers help the Court determine whether or not Plaintiffs successfully alleged a cause of action for slander per se.

While not entirely clear, it appears that based on the allegations in ¶¶ 16, that the allegations by which Plaintiffs intend to hold Defendant liable for slander are for Defendant Anoosh Stepanian telling Plaintiff Robik Aghasian’s mother (Plaintiff Sh Noramayer Shahbazian) that Plaintiff Robik Aghasian was a liar, an animal, a low life criminal, that he had low morals, low ethics, and had no standards.

The concern that the Court has, and that neither party brings up in any type of comprehensible manner, is whether or not these allegations can serve as a basis for a slander cause of action.

The Court cites the parties to Balla v. Hall:

“Though mere opinions are generally not actionable,” a “statement that implies a false assertion of fact is actionable.” (Issa v. Applegate (2019) 31 Cal.App.5th 689, 702, 242 Cal.Rptr.3d 809 (Issa); McGarry, supra, 154 Cal.App.4th at p. 112, 64 Cal.Rptr.3d 467 [“ ‘[s]imply couching such statements in terms of opinion does not dispel these [false, defamatory] implications’ ”].) “ ‘[I]t is not the literal truth or falsity of each word or detail used in a statement which determines whether or not it is defamatory; rather, the determinative question is whether the “gist or sting” of the statement is true or false, benign or defamatory, in substance.’ ” (Issa, at p. 702, 242 Cal.Rptr.3d 809; cf. Grenier v. Taylor (2015) 234 Cal.App.4th 471, 486, 183 Cal.Rptr.3d 867 [“rhetorical hyperbole, vigorous epithets, lusty and imaginative expressions of contempt and language used in a loose, figurative sense will not support a defamation action”].)

“The ‘pertinent question’ is whether a ‘reasonable fact finder’ could conclude that the statements ‘as a whole, or any of its parts, directly made or sufficiently implied a false assertion of defamatory fact that tended to injure’ plaintiff's reputation.’ ” (Issa, supra, 31 Cal.App.5th at p. 703, 242 Cal.Rptr.3d 809.) “We apply a ‘ “totality of the circumstances” ’ test to determine whether a statement is fact or opinion, and whether a statement declares or implies a provably false factual assertion; that is, courts look to the words of the statement itself and the context in which the statement was made.” (Ibid.) Under this test, “ ‘ “[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense ....[¶] Next, the context in which the statement was made must be considered.” ’ [Citation.] Whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court.” (Ibid.)

(Balla v. Hall (2021) 59 Cal.App.5th 652, 677-68.)

Here, while Plaintiffs allege that one of the Plaintiffs was called – a liar, an animal, a low life criminal, that he had low morals, low ethics, and had no standards – the Court fails to see how the statements about having low morals, low ethics, and no standards can be provably false.

Therefore, that would leave the Court with the statements that one of the Plaintiffs was called a liar, an animal, and a low life criminal.

With respect to the “liar” accusation, the Court has its doubts because there is no context in the Complaint as to what Defendant(s) allegedly called Plaintiff(s) a liar with respect to. Therefore, the Court has doubts as to how Plaintiff(s) can show he/she is not a liar when the Complaint does not indicate what Defendant(s) even accused Plaintiff(s) lying about.

Further, the Court has doubts as to the accusation of calling Plaintiff “an animal.” Based on the Court’s limited understanding of biology, all humans are in fact animals.

As to the allegation of Plaintiff being a “low life criminal,” Civil Code § 46 states that “Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime.”

As to the “criminal” allegation, that appears to be the statement that has the best chance at successfully alleging a cause of action for defamation.

Overall, the Court will hear argument as to the demurrer to the fifth cause of action for slander per se.

TENTATIVE RULING – FIFTH CAUSE OF ACTION – SLANDER PER SE
The Court will hear argument as to the fifth cause of action for slander per se and whether or not leave to amend should be granted.

OTHER ISSUES
Untimely Opposition
Defendant is correct to note that the Opposition to this demurrer was due on October 11, 2024; therefore, Plaintiffs’ Opposition that was submitted on October 16, 2024 was untimely.

Defendant notes that since Plaintiffs filed their Opposition on October 16, 2024, Defendant was only left with 31 hours to prepare and file a Reply because the deadline to file a Reply was October 17, 2024.

Defendant argues that in the event that this Court is inclined to deny the demurrer, Defendant respectfully requests a continuance of the demurrer hearing to allow for additional time to submit a supplemental reply.

Here, the Court will hear argument because the Court tentatively plans to sustain the demurrer with leave to amend as to the first through fourth causes of action. Therefore, based on the hearing, it seems as if the only potential cause of action that the Court may “deny the demurrer” to is the fifth cause of action.

Uncertainty
Plaintiffs’ Opposition argues that Defendant did not submit a notice that she was demurring for uncertainty; therefore, this demurrer is only a general demurrer.

The Court finds Plaintiffs’ argument unavailing. Defendant’s notice explicitly mentions that one of the grounds Defendant is demurring on is uncertainty and CCP § 430.10(f).

MOTION TO STRIKE

PROCEDURAL
Moving Party: Defendant, Nina Savarani

Responding Party: No Opposition by Plaintiffs

Moving Papers: Notice/Motion; Proposed Order

Opposition Papers: No Opposition by Plaintiffs

Reply Papers: Notice of Non-Opposition

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

RELIEF REQUESTED
“Defendant NINA SAVARANI (“Savarani”) will and hereby does move this Court for an Order striking any and all references in Plaintiffs’ ROBIK AGHASIAN, SH SHAHBAZIAN NORAMAYER, RAZMIK AGHASIAN GHARAEHPET, and RAFIK AGHASIAN GHARAPET (collectively “Plaintiffs”) Complaint that implicate and/or directly request punitive damages and the recovery of attorneys’ fees Specifically, Savarani respectfully requests that the following statements in Plaintiffs’ Complaint be stricken as to Savarani:

1. Page 1, line 14, caption of Complaint, which states: “Breach of the Covenant of Quiet Enjoyment.”

2. Page 4, lines 1-3, paragraph 11, which states: “The Lease contains an express covenant of peaceful possession and quiet enjoyment of the subject property. Furthermore, the lease contains an attorney fee provision, entitling the prevailing party to attorneys’ fees incurred herein.”

3. Page 8, lines 13-17, paragraph 31, which states: “In committing the acts and conduct described above, Defendants Nina Savarani, Anoosh Stepanian, Tiodore Doe and Does 1 through 25, inclusive, acted with oppression, fraud, or malice, and their conduct was despicable conduct, entitling Plaintiff Robik Aghasian to an award of punitive damages against Defendants, and each of them.”

4. Page 9, lines 8-16, paragraph 37, which states: “By reason of Defendants’ acts and conduct, including, but not limited to the acts and conduct alleged herein, by and through Defendants Nina Savarani, Anoosh Stepanian and Tiodore Doe and their conscious disregard for Plaintiffs rights, Defendants’ acts and conduct were malicious and oppressive, in that it was conduct carried on by the Defendants, and each of them, in willful and conscious disregard of Plaintiffs’ rights and subjected Plaintiffs to cruel and unjust hardship. Plaintiffs are therefore entitled to recover punitive damages from Defendants, and each of them, in an amount according to proof, to set an example of Defendants and to deter such future conduct.”

5. Page 10, lines 6-12, paragraph 42, which states: “The trespass of Defendants, and each of them, through Defendants Nina Savarani, Anoosh Stepanian, Tiodore Doe, and Does 1 through 10, inclusive, was malicious and oppressive, in that it was conduct carried on by the Defendants, and each of them, in willful and conscious disregard of Plaintiffs’ rights and subjected Plaintiffs to cruel and unjust hardship. Plaintiffs are therefore entitled to recover punitive damages from Defendants, and each of them, in an amount according to proof, to set an example of Defendants and to deter such future conduct.”

6. Page 10, lines 26-28, page 11, lines 1-2, paragraph 47 which states: “In committing the acts and conduct described above, Defendants Nina Savarani, Anoosh Stepanian, and Does 1 through 25, inclusive, acted with oppression, fraud, or malice, and their conduct was despicable conduct, entitling Plaintiff Robik Aghasian to an award of punitive damages against Defendants, and each of them.”

7. Page 11, line 8, paragraph 3, which prays: “For punitive and exemplary damages according to proof.”

8. Page 11, line 13, paragraph 1, which prays: “For reasonable attorneys’ fees.” This Motion is made pursuant to Code of Civil Procedure §§ 435 and 436.

This Motion is based upon this Notice, the attached Memorandum of Points and Authorities, the Declaration of Eileen Keusseyan, the Complaint, including all exhibits attached thereto, the Court’s records and files in this case, and such oral and documentary evidence as may be submitted at or before the hearing of this Motion.”

(Def. Notice, p. 2-3.)

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).)

Here, Defendant’s counsel successfully met and conferred. (Keusseyan Decl. ¶¶ 3-6.)

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).)

TENTATIVE RULING MOTION TO STRIKE

Defendant moves to strike eight portions of the Complaint as indicated in Defendant’s notice of the motion to strike.

As a preliminary matter, Defendant’s Notice of Non-Opposition accurately points out that Plaintiffs did not file an opposition to Defendant’s motion to strike.

The first portion Defendant seeks to strike is “Page 1, line 14, caption of Complaint, which states: “Breach of the Covenant of Quiet Enjoyment.””

The Court GRANTS Defendant’s motion to strike portion 1 because it does not appear that Plaintiffs are bringing a cause of action for breach of the covenant of quiet enjoyment. Plaintiffs’ reference to breach of the covenant of quiet enjoyment in the caption of the Complaint appears to be an error based on the fact that the body did not bring a cause of action for breach of the covenant of quiet enjoyment. Further, Defendant’s demurrer pointed out this discrepancy between the caption and the body of the Complaint, and Plaintiffs’ Opposition to the demurrer did not indicate that Plaintiffs were trying to bring a cause of action for breach of the covenant of quiet enjoyment. The Court will hear argument as to if leave to amend should be granted.

The second portion Defendant seeks to strike is “Page 4, lines 1-3, paragraph 11, which states: “The Lease contains an express covenant of peaceful possession and quiet enjoyment of the subject property. Furthermore, the lease contains an attorney fee provision, entitling the prevailing party to attorneys’ fees incurred herein.””

Defendant’s motion to strike portion 2 (Paragraph 11) is GRANTED. Paragraph 11 seeks attorney fees based on an alleged lease. Paragraph 10 alleges that the lease was attached as Exhibit A to the Complaint. However, no lease was attached to the Complaint.

“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” (CCP § 1021.)

Here, Plaintiffs have not shown a basis to recover attorney fees. The Court will hear argument as to if leave to amend should be granted.

The third portion that Defendant seeks to strike is “Page 8, lines 13-17, paragraph 31, which states: “In committing the acts and conduct described above, Defendants Nina Savarani, Anoosh Stepanian, Tiodore Doe and Does 1 through 25, inclusive, acted with oppression, fraud, or malice, and their conduct was despicable conduct, entitling Plaintiff Robik Aghasian to an award of punitive damages against Defendants, and each of them.””

Defendant’s motion to strike portion 3 (Paragraph 31) is GRANTED. As the Court explained in the ruling on the demurrer to the first cause of action, Plaintiffs did not allege a cause of action for assault and battery. Since Plaintiffs did not successfully allege the first cause of action for assault and battery, the motion to strike with respect to punitive damages as to this cause of action is granted. Leave to amend is GRANTED.

The fourth portion that Defendant seeks to strike is “Page 9, lines 8-16, paragraph 37, which states: “By reason of Defendants’ acts and conduct, including, but not limited to the acts and conduct alleged herein, by and through Defendants Nina Savarani, Anoosh Stepanian and Tiodore Doe and their conscious disregard for Plaintiffs rights, Defendants’ acts and conduct were malicious and oppressive, in that it was conduct carried on by the Defendants, and each of them, in willful and conscious disregard of Plaintiffs’ rights and subjected Plaintiffs to cruel and unjust hardship. Plaintiffs are therefore entitled to recover punitive damages from Defendants, and each of them, in an amount according to proof, to set an example of Defendants and to deter such future conduct.””

Defendant’s motion to strike portion 4 (Paragraph 37) is GRANTED. As the Court explained in the ruling on the demurrer to the third cause of action, Plaintiffs did not allege a cause of action for intentional infliction of emotional distress. Since Plaintiffs did not successfully allege the third cause of action for intentional infliction of emotional distress, the motion to strike with respect to punitive damages as to this cause of action is granted. Leave to amend is GRANTED.

The fifth portion that Defendant seeks to strike is “Page 10, lines 6-12, paragraph 42, which states: “The trespass of Defendants, and each of them, through Defendants Nina Savarani, Anoosh Stepanian, Tiodore Doe, and Does 1 through 10, inclusive, was malicious and oppressive, in that it was conduct carried on by the Defendants, and each of them, in willful and conscious disregard of Plaintiffs’ rights and subjected Plaintiffs to cruel and unjust hardship. Plaintiffs are therefore entitled to recover punitive damages from Defendants, and each of them, in an amount according to proof, to set an example of Defendants and to deter such future conduct.””

Defendant’s motion to strike portion 5 (Paragraph 42) is GRANTED. As the Court explained in the ruling on the demurrer to the fourth cause of action, Plaintiffs did not allege a cause of action for trespass. Since Plaintiffs did not successfully allege the fourth cause of action for trespass, the motion to strike with respect to punitive damages as to this cause of action is granted. Leave to amend is GRANTED.

The sixth portion that Defendant seeks to strike is “Page 10, lines 26-28, page 11, lines 1-2, paragraph 47 which states: “In committing the acts and conduct described above, Defendants Nina Savarani, Anoosh Stepanian, and Does 1 through 25, inclusive, acted with oppression, fraud, or malice, and their conduct was despicable conduct, entitling Plaintiff Robik Aghasian to an award of punitive damages against Defendants, and each of them.””

The Court will hear argument as to whether or not it will strike portion 6 (Paragraph 47) from the Complaint. Paragraph 47 of the Complaint pertains to the request for punitive damages with respect to the fifth cause of action for slander per se.

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.)

Defendant’s main argument appears to be that Plaintiffs’ request for punitive damages is not supported by the requisite factual allegations. Defendant argues that Plaintiffs have not sufficiently alleged any intent to injure, or any despicable conduct, or actions taken with conscious disregard of Plaintiffs’ rights, or intentional fraud with the intent of depriving Plaintiffs of property or legal rights.

Since the Court is hearing argument as to whether or not Plaintiffs have successfully alleged a cause of action for slander per se, the Court will hear argument as to striking Paragraph 47. If the Court finds that Plaintiffs did not successfully allege the fifth cause of action, then the Court plans to grant Defendant’s motion to strike Paragraph 47. The Court will hear argument as to whether or not leave to amend should be granted.

Where it gets more complicated is if the Court finds that Plaintiffs did in fact successfully allege a claim for slander per se.

In relevant part, Plaintiffs alleged, “In committing the acts and conduct described above, Defendants Nina Savarani, Anoosh Stepanian, and Does 1 through 25, inclusive, acted with oppression, fraud, or malice, and their conduct was despicable conduct, entitling Plaintiff Robik Aghasian to an award of punitive damages against Defendants, and each of them.” (Compl. ¶ 47.)

On the one hand, even if the Court finds that Plaintiffs successfully alleged a claim for slander per se, Defendant’s argument that Plaintiffs simply alleged conclusory allegations with respect to punitive damages seems like it could be somewhat availing. Malice is defined as “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).) Here, Plaintiffs did not make any allegations with respect to Defendant’s state of mind with respect to malice. Plaintiffs simply seem to just use the conclusory terms of oppression, fraud, and malice in Paragraph 47. [The Court notes it only mentioned malice because Plaintiffs don’t bring a cause of action for fraud, and the Court notes that Plaintiffs also don’t make sufficient allegations with respect to oppression.] If the Court were to take this approach, then even though the demurrer to the fifth cause of action is overruled, it would have to grant Defendant’s motion to strike Paragraph 47, and it would grant Plaintiffs leave to amend with respect to the request for punitive damages.

On the other, hand, if the Court finds that Plaintiffs successfully alleged a cause of action for slander per se, as stated in Dino, Inc. v. Boreta Enterprises, Inc. :

It is, of course, the rule that ultimate facts must be pleaded, rather than legal conclusions, yet the distinction between ultimate facts and conclusions of law is not always clear or easy to state. In Burks v. Poppy Construction Co., 57 Cal.2d 463, 473-474 [20 Cal.Rptr. 609, 370 P.2d 313], the court said: “The distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree. (Estate of Bixler, 194 Cal. 585, 589 [229 P. 704]; see Clark on Code Pleading (2d ed. 1947) 231; Chadbourne, Grossman, Van Alstyne, Cal. Pleading (1961) 812 et seq.; 2 Witkin, Cal. Procedure (1954) 1140.) For example, the courts have permitted allegations which obviously included conclusions of law and have termed them 'ultimate facts' or 'conclusions of fact.' (See Peninsula etc. Co. v. County of Santa Cruz, 34 Cal.2d 626, 629 [213 P.2d 489] [one is the 'owner' of property]; Rannard v. Lockheed Aircraft Corp., 26 Cal.2d 149, 154 [157 P.2d 1] [act was 'negligently' done]; May v. Farrell, 94 Cal.App. 703, 707 [271 P. 789] [employee was 'acting within the scope of his employment'].) In permitting allegations to be made in general terms the courts have said that the particularity of pleading required depends upon the extent to which the defendant in fairness needs detailed information that can be conveniently provided by the plaintiff, and that less particularity is required where the defendant may be assumed to possess knowledge of the facts at least equal, if not superior, to that possessed by the plaintiff. ...”

(Dino, Inc. v. Boreta Enterprises, Inc. (1964) 226 Cal.App.2d 336, 340.)

Therefore, on the other hand, if Plaintiffs successfully alleged a cause of action for slander per se, when reading the Complaint as a whole, it could possibly be argued that Defendant’s actions could be construed as malicious. Defendant’s argument that nothing in the Complaint provides clear and convincing evidence with respect to malice, oppression, and fraud would be unavailing because the instant case is at the pleading stage, and this hearing does not deal with coming forward with actual evidence.

The seventh portion that Defendant seeks to strike is “Page 11, line 8, paragraph 3, which prays: “For punitive and exemplary damages according to proof.””

The seventh portion pertain to the portion of the Prayer that requests punitive and exemplary damages as to all causes of action except for the second cause of action.

The Court GRANTS Defendant’s motion to strike Portion 7. Portion 7 requests punitive and exemplary damages as to all causes of action except for the second cause of action, and the Court already noted how at the very least, the requests for punitive damages are stricken as to the first, third, and fourth causes of action. Leave to amend is granted.

The eighth portion that Defendant seeks to strike is “Page 11, line 13, paragraph 1, which prays: “For reasonable attorneys’ fees.””

As the Court previously explained with respect to striking Portion 2, Plaintiffs have not provided a basis for requesting attorney fees.

Defendant’s motion to strike Portion 8 is GRANTED. The Court will hear argument as to if leave to amend should be granted.