Judge Cherol J. Nellon, Case Number: 22STCV40410, Date: 2023-10-17 Tentative Ruling

Plaintiff alleges that she was harassed into signing a move-out agreement and that her unit was not properly maintained.

On November 6, 2023, Plaintiff filed her Second Amended Complaint (“SAC”) for (1) Intentional Misrepresentation, (2) Fraudulent Concealment, (3) Unlawful Eviction, (4) Negligence, (5) Nuisance, (6) Breach of the Covenant of Quiet Enjoyment, (7) Breach of Implied Warranty of Habitability, (8) Housing Discrimination, (9) Violation of Civil Code § 1940.2, (10) Violation of Civil Code § 789.3, (11) Violation of Civil Code § 1942.5, (12) Violation of Civil Code § 1954, (13) Violation of Civil Code § 52.1, (14) Violation of Civil Code § 1159, (15) Violation of Unruh Act, (16) Unfair Competition, (17) Conversion, (18) Intentional Infliction of Emotional Distress (“IIED”), (19) Bad Faith Retention of Security Deposit, (20) Violation of LAMC, Article 5.3, (21) Violation of LA County Code § 8.52.130, and (22) Recission against Defendants David Duel, Rebecca Duel, Ilana Yamtoobian, Terry Polesie, Raffi Shirinian, David Nourafshan, Urban Blox, LLC, Surf Realty Corporation, R & LS Investments, Inc., Kimberly Roberts Stepp, Stepp Commercial, Thornton Property One, LLC, RIF Investments-2, LLC, Central Realty Advisors, Urban Developer, LLC, S Bonita One, LLC, 351 SB Two, LLC, IY EK Partners, LLC, 27 Ozone, LLC, and Nourafshan Venice Properties, LLC, and DOES 1-100.[1]

Defendant R & LS Investments, Inc. filed its Notice of Bankruptcy Stay on October 26, 2023.

Defendants Terry Polesie (“Polesie”) and Surf Realty Corporation (“Surf Realty”) demur to Plaintiff’s SAC, on the grounds that it fails to state facts sufficient to constitute causes of action and is uncertain.

This is the second demurrer that this court has heard from these parties. On October 17, 2023, the court sustained the previous demurrer on the grounds that (a) the complaint listed 22 different defendants but really only talked about four of them and (b) Plaintiff had clearly failed to plead the fraud claims.

The SAC brings Plaintiff’s theory into a bit more focus, but still not quite enough to enable a proper response. Plaintiff alleges a grand conspiracy between 20 defendants across three rental complexes designed expel an unspecified number of tenants from rent-controlled apartments. (SAC ¶¶ 41-52). The problem comes when Plaintiff tries to translate this story into separate causes of action against individual defendants.

Plaintiff only ever lived in one of these units. (SAC ¶ 53). That unit was only ever owned by Defendants Ilana Yamtoobian, Rebecca Duel, and Urban Developer, LLC. (SAC ¶ 55). Plaintiff alleges that she spoke with Defendants Ilana Yamtoobian (SAC ¶ 57) and David Duel (SAC ¶ 61). It appears that Plaintiff’s theory of liability against the remaining defendants is conspiracy.

Civil conspiracy is not an independent cause of action, but a means of imposing vicarious liability upon persons who have not committed a tort themselves, but “share with the immediate tortfeasors a common plan or design” to commit the tort. AREI II Cases (2013) 216 Cal.App.4^th 1004, 1021. To impose liability under a civil conspiracy theory, plaintiff must allege (1) the formation and operation conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) resulting damages. Id. at 1022. Additionally, a Defendant can only be held liable via conspiracy if they are legally capable of committing the underlying tort themselves. Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4^th 503, 511.

Defendants Polesie and Surf Realty are alleged to be “owners of properties” (SAC ¶ 52), but it is clear that they were never the owners of Plaintiff’s home. They cannot be liable to Plaintiff for the breach of any landlord-tenant regulations because they were never her landlord and are legally incapable of breaching obligations they never owed her. That would plainly eliminate most of Plaintiff’s claims.

Further, Plaintiff has not alleged that any conduct of Polesie and Surf Realty contributed to her damages. Plaintiff has alleged that Polesie and Surf Realty targeted the tenants in their buildings (SAC ¶ 52), but she has not alleged that they took any action or formed any agreement with regard to her building.

Plaintiff needs to go through the SAC and realistically focus her claims. It is not sufficient to allege a conspiracy in conclusory terms and then attempt to impose liability for every alleged tort on every member of the conspiracy. Therefore, the demurrer is SUSTAINED, with 20 days leave to amend.

Defendants Polesie and Surf Realty now move this court for an order striking portions of the SAC.

[1] The First Amended Complaint also named as defendants “Kathy Cook” and “Urban Blox Criminal Enterprise.” While those defendants are listed in the caption of the SAC, they do not appear in the body and are therefore no longer part of this case.