Judge: H. Jay Ford, III, Case: 24SMCV06150, Date: 2025-05-20 Tentative Ruling

Case Number: 24SMCV06150    Hearing Date: May 20, 2025    Dept: O

 Case Name:  Tanenbaum, et al. v. Parseghian, et al.

SUBJECT:                 DEMURRER WITHOUT MOTION TO STRIKE

MOVING PARTY:   Defendants Marcus & Millichap Real Estate Investment Services, Inc., Sevak Keshishian, and Shara Parseghian

RESP. PARTY:         None filed

TENTATIVE RULING

            Defendants’ Marcus & Millichap Real Estate Investment Services, Inc., Sevak Keshishian, and Shara Parseghian Demurrer as to all cause of action in Plaintiff Brian Tanenbaum’s Complaint is SUSTAINED with 20 days leave to amend. Plaintiff fails to plead all the necessary elements of the claims.

REASONING

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.” (E428.50Fab, 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).

Plaintiff is only required to allege ultimate facts, not evidentiary facts. (See Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212 [“the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts”); 1 Cal. Affirmative Def. § 10:2 (2d ed.) [allegations of agency, course and scope of employment, etc. qualify as ultimate facts].) Plaintiff’s allegations must be accepted as true on demurrer. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 [“For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint”].)

I.                Demurrer to the 1^st cause of action for Intentional interference with prospective economic advantage—SUSTAINED with 20 days leave to amend

“Intentional interference with prospective economic advantage has five elements: (1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant's action.” (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512.)

Plaintiff Brian Tanenbaum (“Plaintiff”), a self represented litigant, pleads an existence of an economic relationship between himself and a third-party, Sean Sadgan Dba S&S Star Properties, LLC and Nationwide Deals (collectively, ‘Buyer”), which contained the probability of a future economic benefit to the Plaintiff in the possible purchase of 1123 North Vista Street, West Hollywood, CA 90046 (the “Property”). (Compl., ¶ 11.)

Plaintiff pleads Defendants Marcus & Millichap Real Estate Investment Services, Inc., Sevak Keshishian, and Shara Parseghian (“Defendants”) knowledge of the relationship between Plaintiff and Buyer. (Compl., ¶ 12.)

Plaintiff pleads Defendants intentional wrongful acts designed to disrupt the relationship. (Compl., ¶¶ 13, 14.)

Plaintiff pleads actual disruption of the contract by Buyer terminating the contract with Plaintiff allegedly at Defendant’s request. (Compl., ¶¶ 15, 16.)

Plaintiff pleads economic harm in excess of $60,000 due to Defendants intentional acts “representing his real estate commission in the said real estate transaction equivalent to five percent (5%) to be proven at time of trial.” (Compl., ¶ 17.)

However, Plaintiff does not plead that Buyer actually purchased the Property or that Seller would have accepted buyer’s offer with Plaintiff as Buyer’s Agent.

II.             Demurrer to the 2nd cause of action for Negligent interference with prospective economic advantage—SUSTAINED with 20 days leave to amend

“The tort of negligent interference with prospective economic advantage is established where a plaintiff demonstrates that (1) an economic relationship existed between the plaintiff and a third party which contained a reasonably probable future economic benefit or advantage to plaintiff; (2) the defendant knew of the existence of the relationship and was aware or should have been aware that if it did not act with due care its actions would interfere with this relationship and cause plaintiff to lose in whole or in part the probable future economic benefit or advantage of the relationship; (3) the defendant was negligent; and (4) such negligence caused damage to plaintiff in that the relationship was actually interfered with or disrupted and plaintiff lost in whole or in part the economic benefits or advantage reasonably expected from the relationship.” (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786.)

“The tort of negligent interference with economic relationship arises only when the defendant owes the plaintiff a duty of care.” (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 348.)

Plaintiff does not plead that Defendants owed Plaintiff a duty of care, a necessary element of this cause of action, nor that Buyer purchased the Property thus causing actual economic damages.

III.           Demurrer to the 3rd cause of action for Intentional interference with contractual relations—SUSTAINED with 20 days leave to amend.

“To prevail on a cause of action for intentional interference with contractual relations, a plaintiff must plead and prove (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the 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. (Ibid.) To establish the claim, the plaintiff need not prove that a defendant acted with the primary purpose of disrupting the contract, but must show the defendant's knowledge that the interference was certain or substantially certain to occur as a result of his or her action.” (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.)

Plaintiff fails to plead that Buyer actually purchased the Property, and thus did not properly plead resulting damages other than mere speculation.

IV.           Demurrer to the 4^th and 5^th causes of action for IIED and NIED – SUSTAINED with 20 days leave to amend

The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress. “Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618.)

NIED is not a separate tort, but the tort of negligence and duty is an essential element. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4^th 965, 985.  The elements of NIED are (1) that defendant was negligent; (2) plaintiff suffered serious emotional distress; and (3) that defendant’s negligent was a substantial factor in causing plaintiff’s serious emotional distress.  (See CACI 1620.)  

Regarding the IIED claim, Plaintiffs do not allege enough factual support that Defendants conduct was so extreme as to be beyond the bounds of decency tolerated by society. Plaintiff fails to identify the alleged severe emotional distress, and fails to allege that the distress was enduring. Plaintiff fails to plead that Defendants outrageous conduct was the actual and proximate cause of plaintiff’s emotional distress.

Regarding the NIED claim, Plaintiff does not allege that Defendants owed Plaintiff a duty.  Plaintiff fails to identify the severe emotional distress, and Plaintiff fails to plead an actual and proximate cause between Defendant’s conduct and Plaintiff’s injury.