Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

 

This case arises out of a landlord-tenant dispute.  Cross-Defendant Salar Hazany entered into a residential lease with Cross-Complainant, Semyon Ginzburg, for an apartment located at 1100 Alta Loma Road, Unit 701, West Hollywood, California (the “Premises”).  Ginzburg initiated an unlawful detainer action against Hazany, which was later dismissed. 

After dismissal of the unlawful detainer action, Salar Hazany and Tiffany Hazany sued Ginzburg for (1) breach of contract, (2) breach of the covenant of quiet enjoyment, (3) violation of section 1942.5, (4) breach of the implied covenant of habitability, (5) constructive eviction, (6) bad faith retention of security deposit, (7) negligence, (8) intentional infliction of emotional distress, and (9) negligent infliction of emotional distress.   

Ginzburg then counter-sued the Hazany’s for (1) breach of contract and (2) elder abuse.  In his cross-complaint, Ginzburg alleged that the Hazany’s breached the Lease by failing to pay rent, causing extensive damage to the Premises, and failing to secure liability insurance naming Ginzburg as an additional insured.  Ginzburg also alleged the Hazany’s engaged in elder abuse because he is 80 and the Hazany’s breached their contract with him, causing him financial damages and mental distress.   

This hearing is on the Hazany’s demurrer to and motion to strike the elder abuse and punitive damages claims in the Cross-Complaint.  The Hazany’s argue that there are no facts to support an intent to defraud, the exercise of undue influence, or a wrongful use of property, as required under Welf. & Inst. Code section 15610.30.  The Hazany’s also move to strike Ginzburg’s punitive damages claim because they are based solely on conclusory allegations of “recklessness, oppression, fraud and malice.”   

MEET AND CONFER   

Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike.  (Code Civ. Proc. §§ 430.41(a), 435.5(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).)  The Hazany’s submit the Declaration of Jacob Zadeh which fails to show the parties met and conferred in person or by telephone.  Instead, cross-defendants’ counsel appears to have emailed cross-complainant’s counsel, and concluded the meet and confer when he received no response to his email.  While this fails to satisfy the meet and confer requirements under Code Civ. Proc. §§ 430.41, 435.5, the Court cannot overrule a demurrer or deny a motion to strike based on an insufficient meet and confer.  (Code Civ. Proc. §§ 430.41(a)(4), 435.5(a)(4).)   

LEGAL STANDARD 

A demurrer to a complaint may be general or special.¿ A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).)¿ A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc. § 430.10, subd. (f).)¿ The term uncertain means “ambiguous and unintelligible.”¿ (Id.)¿ A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿ 

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.)  

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 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.”).)  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 

Elder Abuse Claim 

The Hazany’s argue that Ginzburg’s claim for financial elder abuse does not state facts sufficient to support such a claim.  The Court disagrees.  

A cause of action for elder abuse is a statutory claim and must be alleged with particularity. (See¿Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)¿ Where, as here, statutory remedies are invoked, the facts “must be pleaded with particularity.” (Id. at 790.)  Accordingly, a plaintiff cannot rely on conclusory allegations of recklessness, oppression fraud and malice.  (Lavine v. Jessup¿(1958) 161 Cal.App.2d 59, 69.)    

Under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.), an elder is “any person residing in this state, 65 years or older.” (Welf. & Inst. Code, § 15610.27.)¿ Here, Ginzburg alleges he is over 80 years old, and accordingly, he meets the threshold requirement to state an elder abuse claim.   

Section 15610.30¿broadly defines financial abuse of an elder as occurring when a person or entity “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder” for “a wrongful use or with intent to defraud, or both,” as well as “by undue influence … .” (Welf. & Inst. Code, § 15610.30, subd. (a)(1),¿(3).)  Subdivision (b) of section 15610.30¿provides a person or entity is “deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains possession of property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder … adult.”¿The provision further specifies that a person or entity “takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement … .” (§ 15610.30, subd. (c).)  

Thus, a party may¿engage in elder abuse by misappropriating funds to which an elder is entitled under a contract. (See¿Wood v. Jamison¿(2008) 167 Cal.App.4th 156, 164–165 (elder’s attorney engaged in financial abuse by improperly accepting as fee certain funds to which elder was entitled through loan);¿Bonfigli v. Strachan¿(2011) 192 Cal.App.4th 1302, 1307, 1315–1316¿(plaintiffs stated elder abuse claim based on defendant’s exercise of contract-based power of attorney and failure to pay funds admittedly owed under contract).) 

However, a mere breach by itself does not give rise to a claim of elder abuse.  In¿Stebley v. Litton Loan Servicing, LLP¿(2011) 202 Cal.App.4th 522, the trial court sustained a demurrer without leave to amend to the plaintiffs' complaint, which asserted a claim for¿wrongful foreclosure and a claim for elder abuse based on the foreclosure.¿(Id.¿at 524–525.)¿After affirming the ruling with respect to the wrongful foreclosure claim, the appellate court held that the elder abuse claim also failed, concluding that a lender does not engage in financial abuse of an elder by properly exercising its rights under a contract, even though that conduct is financially disadvantageous to an elder. (Id.¿at pp. 527–528.) 

Subdivision (b) of section 15610.30¿imposes an additional requirement, namely, that “the person or entity¿knew or should have known¿that this conduct is likely to be harmful to the elder … adult.” (Italics added.)  In statutes and other legal contexts, the italicized phrase ordinarily conveys a requirement for actual or constructive knowledge.¿(See, e.g.,¿Castillo v. Toll Bros., Inc.¿(2011) 197 Cal.App.4th 1172, 1196¿(Lab. Code, § 2810, subd. (a), which bars a person from entering into enumerated contracts when the person “‘knows or should know’” that specified contract condition is absent, imposes requirement for actual or constructive knowledge).)¿ 

Generally, constructive knowledge, “means knowledge ‘that one using reasonable care or diligence should have, and therefore is attributed by law to a given person’ [citation][, and] encompasses a variety¿of mental states, ranging from one who is deliberately indifferent in the face of an unjustifiably high risk of harm [citation] to one who merely should know of a dangerous condition [citation].)” (John B. v. Superior Court¿(2006) 38 Cal.4th 1177, 1190–1191, quoting Black's Law Dict. (7th ed. 1999) p. 876.)¿The existence of constructive knowledge is assessed by reference to an objective “reasonable person” measure, “since there is no other way to measure it.” (New v. Consolidated Rock Products Co.¿(1985) 171 Cal.App.3d 681, 690.) 

Thus, under¿subdivision (b) of section 15610.30, “wrongful conduct occurs only when the party who violates the contract actually knows that it is engaging in a harmful breach, or reasonably should be aware of the harmful breach.”  (Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 658.) 

Here, Ginzburg alleges the Hazany’s withheld rent and destroyed the Premises.  Based on these allegations, one can reasonably infer they violated the contract with actual or constructive knowledge of their harmful breach.  One cannot withhold rent or destroy property without actually knowing or at the very least reasonably knowing that it would harm the elder plaintiff.  Accordingly, the Court overrules the demurrer to the elder abuse claim.  

Punitive Damages 

Because the Court overrules the demurrer to the elder abuse claim and a claim for elder abuse by definition has to meet the standards for alleging punitive damages set forth in subdivision (b) of¿Section 3294 of the Civil Code, the Court likewise denies the motion to strike Ginzburg’s punitive damages claim.  (Welf. & Inst. Code, § 15657(c).) 

CONCLUSION AND ORDER 

For the foregoing reasons, the Court OVERRULES the Hazany’s demurrer to the financial elder abuse claim and DENIES their motion to strike the punitive damages claim.  

IT IS SO ORDERED.