Judge: Frank M. Tavelman, Case: 21STCV27509, Date: 2023-04-21 Tentative Ruling

Case Number: 21STCV27509    Hearing Date: April 21, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER

ALLEGATIONS: 

Akop “Jack” Torosian (“Tarosian”) and Superlife Partners, Inc. dba No Limit Super Gym (“Super Gym”) bring this action against Elda Madatyan (“Elda”) and Edgar Madatyan (“Edgar”)(collectively “Defendants”) seeking damages related to the posting of allegedly defamatory videos on social media which Tarosian claims harmed his personal reputation and business.

On November 29, 2022, Tarosian filed his First Amended Complaint (FAC).

The FAC contains the following causes of action against Elda and Edgar: (1) Intentional Infliction of Emotional Distress (“IIED”), (2) Negligent Infliction of Emotional Distress (“NIED”), (3) Defamation-Slander, (4) False Light, (5) Public Disclosure of Private Facts.

The FAC also contains the following causes of action asserted by Super Gym against Elda and Edgar: (6) Intentional Interference with Contractual Relations, and (7) Negligent Interference with Contractual Relations.

Defendants now demur to each cause of action in the FAC. Defendants demur to causes of action one, two, four, and five on grounds that they have been adjudicated previously in family court and for failure to state sufficient facts. Defendants specially demur to the third cause of action on grounds the allegations are uncertain. Defendants demur to causes of action six and seven on grounds they fail to state sufficient facts.

HISTORY: 

On February 6, 2023, Defendants filed their demurrer. On April 10, 2023, Tarosian filed his opposition. No Reply was filed.

JUDICIAL NOTICE:

Elda requests the court take notice of the Stipulated Judgement on Reserved Issues (“SJRI”) issued in reference to the matter Elda Madatyan v. Akop Torosian, Los Angeles Superior Court Case Number 20STFL12033, entered June 23, 2022.

Pursuant to Evidence Code § 452(c), the Court may take judicial notice of records of any court in the state of California. However, while courts may take judicial notice of court records, the truth of matters asserted in such documents is not subject to judicial notice. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

Elda wishes to have this judgment judicially noticed in support of her argument that Tarosian’s causes of action one, two, three, four, and five are barred by the doctrine of res judicata. Elda argues these claims have been previously adjudicated and disposed of in the prior action.

Tarosian argues Elda impermissibly asks the Court to take judicial notice of the judgment because the Court cannot rely on the truth of matters asserted in the document. Tarosian argues that even if the Court is to grant judicial notice of the judgment, the judicial notice has no effect because the Court may not examine the judgment substantively.

The Court notes as a preliminary matter that res judicata claims have been held to be appropriate on demurrer. Where the facts supporting res judicata are present in the complaint or matters judicially noticed, a court may consider whether an action is barred by res judicata on demurrer. (Carroll v. Puritan Leasing Co. (1978) 77 Cal.App.3d 481, 486.)

As a general rule, factual findings in a judgment are not the proper subject of judicial notice. (Hawkins v. SunTrust Bank (2016) 246 Cal.App.4th 1387, 1392.) “[W]hile the existence of any document in a court file may be judicially noticed, the truth of the matters asserted in those documents, including the factual findings of the judge who was sitting as the trier of fact, is not entitled to notice.” (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 121.) However, even though a factual finding in a prior judicial decision may not establish the truth of that fact for purposes of judicial notice, the finding itself may be a proper subject of judicial notice if it has a res judicata effect in a subsequent action. (Hawkins supra, 246 Cal.App.4th 1387, at 1392.) For purposes of res judicata, a stipulated judgment serves as a final determination on the merits. (Citizens for Open Access to Sand and Tide, Inc. v. Seadrift Ass'n (1998) 60 Cal.App.4th 1053, 1065.)

Here, Elda asks the Court to judicially notice the Family Division court’s judgment in the previous action for purposes of determining res judicata as to the first five causes of action. The Court grants judicial notice of the judgment and will analyze each cause of action separately to determine if it is barred by res judicata.

ANALYSIS: 

I.                LEGAL STANDARD 

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

II.              MERITS

Res Judicata

The Court notes only Tarosian and Elda are parties to the SJRI. As such, the SJRI’s res judicata effect applies only to Tarosian’s claims against Elda and not Edgar.

Elda bases her res judicata arguments on the following language in the SJRI:

“The Parties understand and agree that the released claims are intended to and  do include any and all known, suspected and/or foreseen claims, liabilities, debts, and demands  of every kind, nature, and description, whether past or future, and (b) any and all claims, liability, debts, and demands of every kind, name and description, whether past or future, which may exist with respect to each other by virtue of their marital relationship, including any claims for support that either of said Parties might otherwise have or claim to have against the other Party, or the other  Party's estate, for or by reason of any matter whatsoever, that either ELDA or TAROSIAN has or may have against the other arising out of or relating to any transaction or event that occurred prior to the Effective Date of this Stipulated Judgment on Reserved issues.”

(SJRI, ¶ 5.1)

“Except for the claims, demands, and rights in this Stipulated Judgment on  Reserved Issues created against or in favor of either of the Parties hereto, which claims, demands, and rights are expressly reserved from the operation of this Paragraph, each of the Parties hereto has agreed to a general release with regard to all debts, obligations, claims, demands, costs, attorneys', accountants', and other experts’ fees, costs, expenses, credits, reimbursements, setoffs, actions, causes of action, suits, contentions, accountings, promises, claims of ownership, and losses of any other kind and any liability whatsoever, whether due or owing in the past or present, whether based upon contract, tort, statute, or any other legal or equitable theory of recovery (including, but not limited to, claims for assault and battery or other so-called intentional torts), whether known, suspected or foreseen, fixed or contingent, based upon or rising out of or in connection with any matters, acts, omissions, events, conduct, or occurrences by and between the Parties or any of their representatives prior to the Effective Date of this Stipulated Judgment on Reserved Issues.”

(SJRI, ¶ 5.3)

Pursuant to the judgement language above, Elda and Tarosian have released their claims up until the effective date of the SJRI which was June 22, 2022. As such, in determining whether Tarosian’s claims are barred as a matter of res judicata, the Court must look to see when the alleged tortious conduct occurred.  

At the beginning of each cause of action Tarosian incorporates the factual allegations set for in the “General Allegations” section of the complaint. Tarosian alleges several individual incidents occurring over a length of two years. The alleged tortious behavior of Elda is as follows:

·       Since January 1, 2021, Elda made a litany of intentional financial failures that created a whirlwind of financial harm to Plaintiff. Including failing to deposit cash in excess of $1,200,000 into business checking accounts, failing to provide accountings, failure to maintain life insurance policies, failing to timely pay mortgage obligations, failing to pay for the couple’s RV and Rolls Royce, and concealing bank accounts.

·       On August 26, 2021 Elda directed Edgar to murder Plaintiff’s brother to intimidate Plaintiff and inflict severe emotional distress upon Plaintiff.

·       On or about June 14, 2022, Elda posted a video of Tarosian in his home which caused his business to suffer.

·       On November 2, 2022, Elda published a video on Instagram wherein she made disparaging statements regarding Plaintiff.

All the alleged tortious behavior occurred before the signing of the SJRI, except for the November 2, 2022 video. Each cause of action demurred to on res judicata grounds incorporates the factual allegations of the November 2, 2022 video. As such, it cannot be said these causes of action are completely barred by res judicata under the SJRI, which only covers claims up until its June 22, 2022 signing. Therefore, the Court must analyze the pleadings to see if they state each cause of action.

First Cause of Action: Intentional Infliction of Emotional Distress (“IIED”) - Overruled

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

Defendants argue Tarosian does not allege sufficient facts as to the severity of his emotional distress. Defendants argue that Plaintiff has provided no facts indicating the nature or extent of any mental suffering.

Tarosian argues his allegations are sufficient to state a claim for IIED. Tarosian alleges he has suffered shock, nervousness, anxiety, humiliation, mortification, anguish, depression, and psychological trauma.

“Although emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry [citation], to make out a claim, the plaintiff must prove that emotional distress was severe and not trivial or transient.” (Wong v. Tai Jing (2010) 189 Cal. App. 4th 1354, 1376.) Such distress must be “of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 1004.)

Defendants cite to Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, where the California Appellate Court upheld a demurrer to an IIED cause of action for lack of specificity in the pleadings. The complaint in Pitman alleged defendants’ actions caused him “…great embarrassment, humiliation, and the loss of his employment.” (Pitman supra, 197 Cal.App.3d 1037, at 1047.) The court found these allegations insufficient because they did not describe the nature or extent of any mental suffering incurred. (Id.) Another case relied upon by plaintiff, Angie M v. Superior Court 37 Cal.App.4th 1217, also sustained demurrer where no factual allegations were made as to the nature, extent, or duration of plaintiff’s alleged emotional distress.

Here, Tarosian alleges Elda’s conduct caused, and continues to cause, Plaintiff to suffer severe, extreme, and permanent mental and emotional distress, including but not limited to, shock, nervousness, anxiety, humiliation, mortification, anguish, depression, and psychological trauma. (FAC ¶ 42.) The FAC does not merely state Tarosian suffered severe emotional distress. The FAC alleges how this distress has manifested and that this emotional distress is continuing due to Elda’s alleged behavior. Defendants are correct that the bar for severe emotional distress is set high by Wong v. Tai Jing, and it remains to be seen if Tarosian will be able to evidence these claims. However, on demurrer the Court finds Tarosian has adequately pleaded severe emotional distress.

As such, the Court OVERRULES the demurrer to the first cause of action.

Second Cause of Action: Negligent Infliction of Emotional Distress (“NIED”) – Sustained with leave to amend

“The law of negligent infliction of emotional distress in California is typically analyzed by reference to two theories of recovery: the ‘bystander’ theory and the ‘direct victim’ theory. The negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law.” (Spates v. Dameron Hosp. Ass’n (2003) 114 Cal.App.4th 208, 213, ellipses, quotation marks, brackets, and paragraph breaks omitted.)

Defendants argue Tarosian’s claim is not actionable as there is no independent tort action for negligent¿infliction¿of¿emotional¿distress (“NIED”). Defendants are correct that the doctrine of NIED is not a¿separate¿cause¿of¿action. NIED simply allows certain persons to recover damages for¿emotional¿distress¿only on a negligence¿cause¿of¿action¿even though they were not otherwise injured or harmed. (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 589.) Defendants further argue the FAC contains no allegations regarding the elements of duty, breach, or causation.

Tarosian provides no direct response to this argument in his opposition.

The Court finds Tarosian has failed to plead the elements of negligence necessary to sustain a claim for NEID. While the FAC contains a singular reference to duty owed by defendants, it alleges no facts as to what that duty was and no facts as to how it was breached. (FAC ¶ 49.) It is possible Tarosian could allege facts speaking to negligence, but he has not done so here.

As such, the Court SUSTAINS the demurrer with leave to amend.

Third Cause of Action: Defamation-Slander - Overruled

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. The defamatory statement must specifically refer to, or be of and concerning, the plaintiff.” (John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312, quotation marks and citation omitted.)

“To state a claim for slander of title, a plaintiff must allege (1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss.” (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1336.)

Defendants specially demur to this cause of action on grounds that it is uncertain.

“A special demurrer should be overruled where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643.) “All that is required of a complaint, even as against a special demurrer, is that it set forth the essential facts of plaintiff's case with reasonable precision and with particularity sufficiently specific to acquaint defendant of the nature, source, and extent of the cause of action.” (Id.) Further, 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.)

Defendants argue Tarosian’s factual allegations as to the defamatory and slanderous statements are fatally unclear. Defendants cite to a great deal of case law but do not endeavor to explain how Tarosian’s description of the alleged remarks made by Elda are unclear for purposes slander or defamation. For example, Defendants cite Okun v. Superior Court (1981) 29 Cal.3d 442, for the contention that the complaint must state the substance of an alleged defamatory statement. However, Defendants do not explain how Tarosian’s description of the November 2, 2022 post, or any other postings for that matter, are pleaded without substance. Tarosian provides a detailed description of statements made in the November 2, 2022 video which are allegedly defamatory.

The Court does not find Tarosian’s factual allegations with respect to defamation and slander to be so ambiguous that Defendants cannot respond to them. As such, the Court OVERRULES the special demurrer to the third cause of action.

Fourth Cause of Action: False Light - Overruled

“One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.” (Daniel v. Wayans (2017) 8 Cal.App.5th 367, 397, quotations marks omitted.)

Defendants argue Tarosian has failed to plead sufficient facts as to this action because it is premised on the same facts as his defamation claim. Defendants argue because Tarosian’s defamation claim fails, so too must his claim for false light. Defendants provide no separate argument as to the insufficiency of the allegations.

Defendants are correct that when a false light claim is premised on defamation, the claim stands or falls on the success of the defamation claim. (Tarosianson v. Mayweather (2017) 10 Cal.App.5th 1240, 1264.) As the Court has found Tarosian’s claim of defamation is sufficiently pled, Defendant has no basis on which to demur to the false light cause of action.

As such, the Court OVERRULES the demurrer to the fourth cause of action.

Fifth Cause of Action Public Disclosure of Private Facts - Overruled

To prevail on a claim for invasion of privacy by means of the publication of private facts, plaintiff must prove a (1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to a reasonable person, and (4) which is not of legitimate public concern. (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1440.)

Defendants’ arguments with respect to the fifth cause of action are identical to those arguments made in the fourth cause of action. The Court sees no factors differentiating false light and public disclosure in this instance, nor do Defendants claim any.

As such, the Court OVERRULES the demurrer to the fifth cause of action.

Sixth Cause of Action: Intentional Interference with Contractual Relations - Overruled

The elements of a cause of action for intentional interference with contractual relations are “(1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 289.)

Defendants argue the FAC contains no facts showing the existence of written or oral contracts. Defendants further argue the FAC does not state the essential terms of any contract. Defendants point to no authority on which to base their claim that the FAC must plead such facts.

The FAC alleges facts as to all the elements of intentional interference with contractual relations. It is alleged that the gym had membership agreements with some 150 patrons and that Defendants knew this to be the case.

Defendants also argue the FAC fails to allege an independent wrongful act, citing to San Jose Construction, Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528. Defendants argue under San Jose, Tarosian must plead a wrongful act outside of defamation. The Court finds this interpretation of the case is incorrect. San Jose defined an independently wrongful act as one that is unlawful by some legal measure and not merely a product of an improper, but lawful, purpose or motive. (San Jose supra, 155 Cal.App.4th 1528, at 1545.) Here, Tarosian has alleged an unlawful defamation occurred which interfered with his contractual relations. Tarosian is not alleging the interference occurred as an outgrowth of a lawful purpose, but of an independently wrongful act.

As such, the Court OVERRULES the demurrer to the sixth cause of action.

Seventh Cause of Action: Negligent Interference with Contractual Relations - Overruled

“The elements of negligent interference with prospective economic advantage are (1) the existence of an economic relationship between the plaintiff and a third party containing the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) the defendant’s knowledge (actual or construed) that the relationship would be disrupted if the defendant failed to act with reasonable care; (4) the defendant’s failure to act with reasonable care; (5) actual disruption of the relationship; and (6) economic harm proximately caused by the defendant’s negligence.” (Redfearn v. Trader Joe’s Co. (2018) 20 Cal.App.5th 989, 1005.)

Defendants’ arguments with respect to the seventh cause of action largely mirror those with respect to the sixth cause of action. Defendants argue, with no citation to law, that the FAC does not plead facts as to the existence of a potential economic relationship or to Defendants’ knowledge                   of such relationship. The Court finds the FAC has pled sufficient facts as to all elements of the cause of action. The FAC alleges a prospective economic relationship with 180 gym members in Miami which was disrupted by Defendants conduct. Defendant cites to no authority which requires Tarosian state facts beyond the existence of an economic relationship. Whether Tarosian will ultimately be able to evidence these relationships is not a matter for demurrer.

As such, the Court OVERRULES the demurrer as to the seventh cause of action.

III.            CONCLUSION

The Court OVERRULES the demurrer to the first, third, fourth, fifth, sixth, and seventh cause of action.

The Court SUSTAINS the demurrer to the second cause of with 20 days leave to amend.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Elda Madatyan & Edgar Madatyan’s Demurrer came on regularly for hearing on April 21, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE DEMURRER TO THE FIRST, THIRD, FOURTH, FIFTH, SIXTH, AND SEVENTH CAUSE OF ACTION IS OVERRULED. 

THE DEMURRER TO THE SECOND CAUSE OF ACTION IS SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

IT IS SO ORDERED. 

DATE:  April 21, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles