Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant Niv Levy 

 

RESPONDING PARTY: Plaintiff Guzy Regev 

 

BACKGROUND 

This case arises from an allegedly abusive relationship.  Plaintiff Guzy Regev is an Israeli immigrant studying to be a nurse.  (Second Amended Complaint (“SAC”) ¶8.)  Defendant Niv Levy is a lawyer and solo practitioner.  (Id., ¶¶8, 13.)  Regev alleges Levy schemed to make her completely dependent on him, so that he could more easily manipulate and control her.  (Id., ¶14.)   

The SAC alleges that Levy pressured Regev to move in with him, which she eventually agreed to do after Levy proposed.  (Id., ¶¶18-20, 22, 52.)  By having Plaintiff move in with him, Levy could more easily control Plaintiff because she would have nowhere else to go.  (Id., ¶22.)  During the move, Levy destroyed all of Regev’s furniture and dishes, leaving her with only her clothes and some small items.  (Id., ¶¶53-54.)  To render Regev even more dependent on him, Levy also offered Regev financial assistance, convincing her not to apply for student loans and giving her his credit cards to use for various expenses including a gym membership and vet bills.  (Id., ¶¶20, 23.)   

The SAC further alleges that the relationship eventually soured when Levy discovered Regev had killed one of her dogs (Lila) and maimed another (Teddy).  Regev set up a nanny cam which showed Regev repeatedly strangling and throwing Teddy.  (Id., ¶¶ 67-69.)  Prior to that, when Regev would leave her dogs with Levy, she would come home and find them with bloodshot eyes, broken ribs, a broken leg, blood mixed with urine, vomit all around them, whimpering in pain, limping, and soaked in a puddle of water.  (Id., ¶¶ 28, 31, 35, 36, 38, 40, 41, 46, 60, 62, 65.)  She did not know what was causing the injuries, and Levy would attribute them to other causes including chemicals used by Levy’s landlord to treat pest infestation.  (Id., ¶47.)  Regev also witnessed Levy shoving Teddy’s face into its feces when Teddy had an accident in the apartment.  (Id., ¶60.)  

The SAC also alleges that after seeing the nanny cam video, Regev reported Levy to the police and immediately moved out of their apartment.  (Id., ¶72.)   Regev went several weeks without a place to live, having to ask friends to let her sleep on their couch because she could not afford to get her own place right away.  (Id., ¶77.)  After she moved out, Levy would call and harass Regev to return (id., ¶73), and when that failed, he accused her of credit card fraud and reported his cards stolen to businesses where Regev had being using Levy’s card, including her gym and the vet.  (Id., ¶¶78-82.)        

The operative complaint alleges claims for (1) intentional infliction of emotional distress, (2) negligent infliction of emotional distress, (3) trespass to chattel, (4) conversion, (5) breach of contract, (6) fraud, (7) breach of fiduciary duty and (8) unfair business practices (Cal. Bus. & Prof. Code § 17200). 

The Court previously sustained a demurrer to Plaintiff’s claims for breach of contract, fraud, and unfair business practices in the first amended complaint.  This hearing is on Defendant’s demurrer to these same claims in the SAC.  Defendant argues that (1) Plaintiff’s breach of contract claim fails because Plaintiff has not alleged any specific terms of the purported oral contract, that she performed her own obligations under the contract, or that Defendant breached the contract, (2) Plaintiff’s fraud claim fails because Plaintiff fails to state when, how, where, and by what means Defendant made false statements regarding his legal services, (3) Plaintiff’s claim for violation of §17200 fails because it is derivative of Plaintiff’s other defective claims.   

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Further, the court may, upon 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, subd. (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, subd. (b).)  The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws.  (Code Civ. Proc. § 436.)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”); Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 (“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

DISCUSSION 

Breach of Contract 

Defendant argues that Plaintiff has failed to allege a breach of contract claim because (1) she has not alleged specific terms of the purported oral agreement, particularly the amount of compensation due Defendant, (2) she has not alleged she performed her obligations under the contract, and (3) she has not alleged Defendant breached the contract.  The Court agrees as to the first point. 

The essential elements of breach of contract claim are (1) the existence of a contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.  (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) 

The terms of an¿oral contract “must be sufficiently definite or must call for such definite terms in the acceptance, that the performance promised is reasonably certain.” (Weddington Productions. Inc. v. Flick (1998) 60 Cal. App. 4th 793, 811).  For an oral contract to be binding, the terms of the contract must be complete. (Mason v. Woodland Sav. & Loan Ass’n (1967) 254 Cal. App. 2d 41, 44).¿“[W]here any of the essential terms are left for future determination and it is understood that the agreement is not deemed complete until they are settled … no binding contract results until this is done.” (Id.)¿ 

Here, Plaintiff alleges an oral contract for legal services.  Defendant offered to represent her in a dispute with her landlord.  (SAC ¶142.)  Plaintiff accepted the offer.  (Id. ¶142.)  According to Plaintiff, the agreement was to be on a contingency fee basis.  (Id. ¶143.)  But Plaintiff fails to allege that any contingency fee amount was agreed upon.  She only alleges her expectation was that the amount would be a “reasonable and fair sum.”  (Id.)  This term is too indefinite to form a contract.   

Accordingly, the Court sustains the demurrer to Plaintiff’s breach of contract claim.   

Fraud 

Defendant argues Plaintiff has made only conclusory allegations that Defendant made false representations.  The Court disagrees. 

The elements of fraud are (1) a misrepresentation, (2) scienter or knowledge of falsity, (3) intent to induce reliance, (4) justifiable reliance, and (5) resulting damage.  (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.)  The facts constituting the alleged fraud must be alleged specifically as to every element of fraud in order to give defendant notice.  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)   

Here, Plaintiff alleges Defendant “represent[ed] he would obtain monies from Plaintiff’s landlord resulting from her past renting problems, and these monies would be given to Plaintiff as compensation for her troubles.”  (SAC ¶¶ 26, 152.)  Defendant represented that “the settlement monies would amount to enough to pay off [Plaintiff’s] credit card bills.”  (Id. ¶152.)  Defendant’s representation was false because once Plaintiff’s landlord forwarded the settlement check to Defendant, he refused to give any portion of the settlement to Plaintiff.  (Id.)  Defendant intended that Plaintiff rely on these representations and Plaintiff did reasonably rely on the promises given the romantic relationship between Defendant and Plaintiff.  (Id. ¶ 151.)  These allegations are sufficiently particular to support a claim for fraud.     

Accordingly, the Court overrules the demurrer to Plaintiff’s cause of action for fraud.   

Unfair Business Practices 

As to Plaintiff’s claim for unfair, unlawful and fraudulent business practices, Defendant argues the claim is simply derivative of Plaintiff’s claims for breach of contract and fraud, both of which are subject to demurrer.  The Court agrees with the result but for different reasons.           

“Business and Professions Code section 17200¿[“UCL”] is written in the disjunctive [and] establishes three varieties of unfair competition—acts or practices which are unlawful, or unfair, or fraudulent.” (Podolsky v. First Healthcare Corp. (1996) 50 Cal.App.4th 632, 647.)  The three prongs of the law have different thresholds.  Under its “unlawful” prong, “the UCL borrows violations¿of other laws … and makes those unlawful practices actionable under the UCL.” (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1505.)  Thus, a violation of another law is a predicate for stating a cause of action under the UCL’s unlawful prong.  Here, Plaintiff does not allege the violation of any law.          

A business act or practice is “unfair” when the conduct “threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition.” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co.,¿supra, 20 Cal.4th at 187.)  To establish an unfair business act or practice, a plaintiff must establish the unfair nature of the conduct and that the harm caused by the conduct outweighs any benefits that the conduct may have. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1473.)  Here, Plaintiff has not alleged the violation of any antitrust law or any harm to competition.   

In turn, a “fraudulent” business act or practice is one in which members of the public are likely to be deceived.¿ (Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 618¿(“Fraudulent,” as used in the statute, does not refer to the common law tort of fraud but only requires a showing members of the public “are likely to be deceived”); Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211 (in order to state a cause of action based on a fraudulent business act or practice, the plaintiff must allege that consumers are likely to be deceived by the defendant’s conduct).)  Plaintiff has not alleged that any member of the public is likely to be deceived by Defendant’s conduct. 

Plaintiff also seeks punitive damages in connection with her UCL claim, but such damages are not available under the UCL.  (SAC ¶167.)  (Korea Supply Co. v. Lockheed Martin Corp.¿(2003) 29 Cal.4th 1134, 1147–1148 (a¿UCL claim cannot serve as the basis for¿punitive damages).)  Injunctive relief and restitution are the only remedies available under the UCL.  (Esparza v. Safeway, Inc. (2019) 36 Cal. App. 5th 42, 53.) 

In sum, because Plaintiff has not sufficiently alleged an unlawful, unfair or fraudulent act or the type of relief available under the UCL, the Court sustains the demurrer to Plaintiff’s UCL claim.  

Uncertainty 

Defendant argues that the entire Complaint is uncertain because paragraphs 83, 101, 109, 121, 141, 147, 156 and 162 incorporate “each and every allegation contained in the preceding and succeeding paragraphs.”  Defendant argues that Plaintiff mixes causes of action alleging intentional, negligence and other allegedly unlawful conduct which renders the SAC completely unintelligible.   The Court disagrees. 

Demurrers for¿uncertainty under¿Code Civ. Proc. § 430.10, subdivision (e)¿are¿disfavored.  (Lickiss v. Financial Industry Regulatory Authority¿(2012) 208 Cal.App.4th 1125, 1135.)  “A demurrer for¿uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc.¿(1993) 14 Cal.App.4th 612, 616.)¿  

Defendant has not shown how incorporation of preceding and succeeding paragraphs renders the Complaint unintelligible and makes it impossible for Defendant to respond.  Defendant also cites no authority finding that this type of incorporation renders a complaint uncertain.  Accordingly, the Court overrules the demurrer to the entire Complaint.       

CONCLUSION 

Based on the foregoing, the Court SUSTAINS IN PART and OVERRULES IN PART Defendant’s demurrer without leave to amend.   

 

IT IS SO ORDERED. 

 

DATED: November 8, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court