Judge: Colin Leis, Case: 23STCV14114, Date: 2025-05-23 Tentative Ruling
Case Number: 23STCV14114 Hearing Date: May 23, 2025 Dept: 74
JOSE
LUIS NAZAR vs PETER VINCER, et al.
Demurrer with Motion to Strike
BACKGROUND
This
motion arises from a landlord tenant dispute.
Plaintiff
Jose Luis Nazar filed a complaint against Peter Vincer; Daniella Vincer; Avihu
Berkovitch; Dolev Berkovitch; Eden Yoseph; Jordan Taylor Culpepper; Jesse
Jacobs; Michael Kerns; Erika Nardini; David Portnoy; Mikaela Blackman; Berko Productions,
LLC; Histudio Inc.; Healthcare Technology Associates Inc.; Notorious Holdings
LLC; Notorious Media LLC; Himalaya Media Inc.; and Barstool Sports, Inc. Plaintiff alleges twelve causes of action:
(1) Breach of Lease, (2) Breach of Implied Covenant of Good Faith and Fair
Dealing, (3) Conversion, (4) Conspiracy to Defraud, (5) Common Counts, (6)
Money had and Received, (7) Fraud, (8) Concealment, (9) Declaratory Relief,
(10) Accounting, (11) Appointment of Receiver, and (12) Quantum Meruit.
Defendants
Dolev Berkovitch and Berko Productions (Defendants) demur to the complaint.
LEGAL STANDARD
Demurrer
As
a general matter, 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 pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs.
(2007) 153 Cal.App.4th 1308, 1315.) As
such, the court assumes the truth of the complaint’s properly pleaded or
implied factual allegations. (Id.)
The only issue a demurrer is concerned
with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th
740, 747.)
Where
a demurrer is sustained, leave to amend must be allowed where there is a
reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d
335, 348.) The burden is on the
plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC
(2015) 244 Cal.App.4th 118, 226.) However,
“[i]f there is any reasonable possibility that the plaintiff can state a good
cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist.
(1969) 70 Cal.2d 240, 245).
Motion to Strike
A
court may strike any “¿irrelevant, false or improper matter¿inserted in any
pleading¿” or any part of a 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¿.) “¿The grounds for a motion to strike shall appear on the face
of the challenged pleading or from any matter of which the court is required to
take judicial notice.¿” (¿Code Civ. Proc., § 437¿.)¿
DISCUSSION
Demurrer
Defendants
demur to the complaint on the grounds that each cause of action fails to state
sufficient facts to constitute a cause of action against the moving defendants
and the cause of action is uncertain, ambiguous and unintelligible. The Court does not find the complaint
uncertain, ambiguous or unintelligible.
Breach
of Contract
Defendants
demur to the first cause of action on the grounds that no contract existed
between Defendants and Plaintiff. Plaintiff
alleges that he entered into a rental contract with Peter Vincer and Danielle
Vincer. (Complaint ¶ 35.) Plaintiff also alleges that all Defendants
were “the partner, officer, director, agent, employee, servant and/or
representative of each of the remaining Defendants.” (Complaint pp. 2:3:16.)
A
general allegation of agency or employment is sufficient against a
demurrer. (Kiseskey v. Carpenters' Trust for So. Cal. (1983) 144 Cal.App.3d 222, 230; Bahan v. Kurland
(1979) 98 Cal.App.3d 808, 812.) A third
party who discovers a contract was made by an agent on behalf of an undisclosed
principal may sue the undisclosed principal.
(Del E. Webb Corp. v. Structural Materials Co. (1981) 123
Cal.App.3d 593, 606.) Additionally,
under respondeat superior, employers or principals are vicariously liable for
the acts of an agent or employee committed in the course of employment. (Lathrop
v. HealthCare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1421.)
Plaintiff successfully pleads an
agency or employment relationship, and additionally, successfully pleads the
existence of a contract and breach of that contract. Therefore, the Court overrules the demurrer
to the first cause of action.
Breach of Fiduciary Duty
Plaintiff pleads that a fiduciary
duty is owed by a tenant to a landlord in an arms-length rental agreement,
which is a legal conclusion the law does not support. The Court sustains
Defendants’ demurrer to the second cause of action.
Conversion
The Court sustains the demurrer to
the conversion cause of action because conversion applies to personal property,
not an undifferentiated sum of money. (Complaint ¶ ¶ 56-57)
Conspiracy to Defraud, Fraud,
Concealment
Defendants demur to the fourth and
seventh causes of action for Conspiracy to Defraud on the grounds that it must
be plead with specificity. Specifically,
Plaintiff fails to plead a fraudulent act or omission by the moving
defendants.
Fraud must be plead with
particularity, although less specificity is required if it appears from the
nature of the allegations that defendant must necessarily possess full
information, or if the facts lie more in the knowledge of opposing parties. (Alfaro v. Community Housing Improvement
System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384-1385.) Here, Plaintiff specifically pleads the
limited knowledge of the exact acting parties in the conspiracy and identifies
the process by which discovery would lead to more detailed allegations. (Complaint ¶ 29.) The Court finds that Plaintiff’s allegations
sufficiently allege fraud.
A conspiracy cause of action requires (1) defendants’
agreement to the objective and course of action to injure, (2) a wrongful act
pursuant to such agreement, and (3) resulting damage. (Berg
& Berg Ent., LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802,
823.) Plaintiff pleads that Peter and
Danielle Vincer claimed that they intended to be the only occupants at the home
and entered into the rental contract with them under the impression that they
intended to use the residence as a home.
(Complaint ¶ 35.) Instead, Peter
and Danielle Vincer, Defendants and other parties engaged in in an illegal
conspiracy to establish an underground bar network and rented out the property
to short-term lessees. (Complaint ¶¶
26-29, 37-39.) These allegations assert
a fraudulent misrepresentation, subsequent concealment of these unlawful
business activities, and a conspiracy between parties to engage in these
activities.
Therefore, the Court overrules the
demurrer to the fourth and seventh causes of action.
The elements of concealment are
almost identical to fraud. As above, the
Court finds that Plaintiff has sufficiently pleaded concealment. Thus, the Court overrules the demurrer to
Plaintiff’s eighth cause of action.
Common Counts, Money Had and
Received
Defendants demur to the fifth and sixth
causes of action for failure to state facts sufficient to constitute a cause of
action. Plaintiff’s cause of action for
Common Counts and Money Had and Received require that Plaintiff articulate “indebtedness
in a certain sum.” (See Allen v. Powell (1967) 248 Cal.App.2d
502, 510; Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460.) Plaintiff
fails to state a certain sum of indebtedness.
Therefore, the Court sustains the
demurrer to the fifth and sixth causes of action.
Declaratory Relief
Defendants demur to the ninth cause
of action on the grounds that a cause of action for declaratory relief is
unavailable where a fully matured cause of action exists. (Jackson v. Teachers Ins. Co. (1973)
30 Cal.App.3d 341, 344.) The complaint
states that Defendants have vacated the property. (Complaint ¶ 45.) Therefore, there is no remaining contract
between the two parties. The Court
sustains the demurrer to the ninth cause of action.
Accounting
The elements of an accounting action
are (1) the existence of a relationship requiring accounting and (2) some
unliquidated and unascertained balance is owed.
(St. James Church of Christ Holiness v. Superior Court (1955) 135
Cal.App.2d 352, 359.) Plaintiff fails to
plead a relationship which requires accounting; therefore, the Court sustains
the demurrer to the tenth cause of action.
Appointment of a Receiver
An appointment of a receiver is a
remedy, not a cause of action. (Gold v. Gold Realty Co. (2003) 114
Cal.App.4th 791, 807.) The statutory
bases for appointment are (1) fraudulent purchase of property, (2) foreclosure
of a deed of trust or mortgage, (3) after judgment, (4) after dissolution of a
corporation, (5) corporate insolvency, (6) unlawful detainer actions, (7)
unlawful detainer actions or (8) when necessary to preserve the property or
rights of any party. (Code Civ. Proc., §
564.) As above, the Defendants have
vacated the property; therefore, appointment of a receiver is unnecessary to
preserve the property of the Plaintiff.
The Court sustains the demurrer to the eleventh cause of action.
Quantum Meruit
Defendants demur to the twelfth cause of action on the
grounds that Plaintiff failed to plead sufficient facts. The elements of a Quantum Meruit cause of
action are (1) Plaintiff’s performance of services, work or labor, (2) at
defendant’s request, and (3) circumstances implying defendant’s promise to pay
a reasonable value. (Maglica v. Maglica (1998) 66 Cal.App.4th
442, 449-450; Palmer v. Gregg (1967)
65 Cal.2d 657, 660.) Plaintiff does not
allege that Plaintiff performed a service for the Defendants. Therefore, the Court sustains the demurrer to
the twelfth cause of action.
Amend
Leave
to amend should be granted when there is a reasonable probability that the
Plaintiff may state a cause of action. (Youngman,
supra, 70 Cal.2d at pp. 245.) The
Court grants leave to amend the second, third, fifth, sixth, ninth, tenth,
eleventh, and twelfth causes of action.
Strike
Defendants
move to strike (1) the entire complaint, (2) the prayer for relief, (3) all
references to alter ego and conspiracy allegations, (4) Plaintiff’s request for
attorneys’ fees, and (5) Plaintiff’s request for punitive damages. As described above, the Court does not
sustain the demurrer to the entire complaint, and therefore, the Complaint is
not stricken. Defendants cite no
authority for striking the entire prayer for relief on the grounds that
Plaintiff does not distinguish the relief requested by the causes of action. Further, Plaintiff states at the end of each
cause of action the relief requested. Additionally,
Plaintiff pleads that the contract permits attorneys fees. (Complaint ¶ 49.) Plaintiff properly pled a cause of action
for fraud; therefore, Plaintiff has sufficiently pled punitive damages.
Finally,
Defendant argues that Plaintiff fails to sufficiently plead alter-ego and
conspiracy. Plaintiff’s allegations are
not as bare as Defendants state.
Plaintiff includes allegations of a joint venture in the “underground
network of bars.” (Complaint ¶ 26-31.) Additionally, the Complaint alleges that the
Defendants have a pattern of engaging in this activity. (Complaint ¶ 41.) The Court finds these allegations sufficient
to support allegations of an alter-ego relationship and conspiracy liability.
CONCLUSION
The
Court sustains in part and overrules in part Defendants’ Demurrer. The Court sustains the demurrer to the second,
third, fifth, sixth, ninth, tenth, eleventh, and twelfth causes of action. The Court grants 20 days’ leave to amend the
second, third, fifth, sixth, ninth, tenth, eleventh, and twelfth causes of
action.
The
Court denies Defendants’ Motion to Strike.
Defendants
to give notice.