Department 30, Spring Street Courthouse

August 17, 2022 

22STCV13912

Demurrer to the First Amended Complaint by Defendant

The demurrer is sustained with leave to amend.

The demurrer is sustained with leave to amend to add the following causes of action: (1)  battery (with respect to Plaintiff Christina Okhkian); (2) intentional infliction of emotional distress (with respect to Plaintiff Christina Okhkian and Mariane Okhkian); and (3) false promise (with respect to Plaintiff Christina Okhkian), as well as any additional causes of action Plaintiffs believe are supported by the facts alleged. 

The Second Amended Complaint must be filed and served within 45 days after the date of this order.  

Plaintiffs may wish to use Form PLD-PI-001, Complaint-Personal Injury, Property Damage, Wrongful Death.

Plaintiffs may wish to use Form PLD-PI-001(3), one sheet for each cause of action.    

In any event, each separately stated cause of action must specifically state (1) its number (e.g., “first cause of action”); (2) its nature (e.g., “for battery”); (3) the party asserting it if more than one party is represented on the pleading (e.g., “by plaintiff Christina Okhkian”); and (4) the party or parties to whom it is directed (e.g., “against defendant Samvel Tumasyan ”). (Cal. Rules of Court, rule 2.112.)  

Plaintiffs should allege all relevant facts in their Second Amended Complaint. Under each cause of action, Plaintiffs should allege all facts relevant to that cause of action.  

Plaintiffs are advised that they both most be present (remotely or in person) at court appearances. 

Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.

On April 27, 2022, Plaintiff Christina Okhkian filed a complaint against Defendant Samvel Tumasyan. 

On May 26, 2022, Defendant filed a demurrer to complaint. The demurrer was granted with leave to amend on June 28, 2022.

Plaintiffs Christina Okhkian and Mariane Okhkian filed their first amended complaint (“FAC”) on July 19, 2022.

Defendant argues that Plaintiffs’ FAC does not address the deficiencies with the original complaint. Defendant contends that the pleadings are uncertain and fail to state facts sufficient to constitute causes of action against Defendant. 

Plaintiff submitted an opposition reiterating the claims stated in her original complaint and the FAC. Plaintiff named her mother, Mariane Okhkian as a second Plaintiff in this action. Plaintiff’s opposition includes other grievances against Defendant and his attorney. Plaintiff also contends that her claim is not barred by the statute of limitations.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) 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 pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally, and allegations contained therein are assumed to be true”].)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code of Civ. Proc., section 430.41.)

Before filing the demurrer, Defendant’s Counsel states she emailed Plaintiff to meet and confer. (Tulekyan Decl., ¶2.) This is insufficient under Code of Civ. Proc., section 430.41, subd. (a), which requires that the parties meet in person or by telephone. Failure to confer, however, is not a basis for denying the demurrer.  

CCP section 430.10(f) provides that a pleading is uncertain if it is ambiguous and unintelligible. (Code Civ. Proc., § 430.10(f).) “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.)  “A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.”  (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Id.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.) 

Here, it appears that Plaintiffs have alleged facts sufficient to state several causes of action. However, Plaintiffs have failed to comply with the necessary formalities in terms of formatting these causes of action.  

Pursuant to CACI Jury Instruction No. 1300, the elements of the tort of battery are as follows.

1. that defendant touched plaintiff with the intent to harm or offend her;

2. that plaintiff did not consent to the touching;

3. that plaintiff was harmed or offended by defendant’s conduct; and

4. that a reasonable person in plaintiff’s situation would have been offended by the touching.

Here, Plaintiff Christina Okhkian alleges that on July 16, 2021 at Balboa Lake in Van Nuys, California, Defendant twisted Plaintiff’s hand, hurting her arm. (FAC at pg. 4.) Plaintiff Christina Okhkian alleges that she was in Defendant’s car at the time of the incident. She further alleges that she was screaming as a result of Defendant’s actions and that her mother, Plaintiff Mariane Okhkian, who was also at the park, came to her. Plaintiff contends that her arm and hand were red and swollen. Plaintiff also alleges that she called her cousin Mihran Erzoumian to come help her.

Based on these facts, Plaintiff Christina Okhkian has stated a cause of action for battery with respect to herself. 

What Plaintiff has failed to do is to comply with the rules of court as to the format for complaints.

California Rules of Court (“CRC”) Rule 2.112 provides that each separately stated cause of action must specifically state (1) its number (e.g., “first cause of action”); (2) its nature (e.g., “for battery”); (3) the party asserting it if more than one party is represented on the pleading (e.g., “by plaintiff Christina Okhkian”); and (4) the party or parties to whom it is directed (e.g., “against defendant Samvel Tumasyan”). (Cal. Rules of Court, rule 2.112.)  

Plaintiffs Christina Okhkian and Mariane Okhkian have alleged sufficient facts to state a cause of action for intentional infliction of emotional distress. The elements of the tort of intentional infliction of emotion distress are set forth in CACI Jury Instruction No. 1600 as follows.

1. that defendant’s conduct was outrageous;

2. that defendant intended to cause plaintiff emotional distress;

3. that plaintiff suffered severe emotional distress; and

4. that defendant’s conduct was a substantial factor in causing plaintiff’s severe emotion distress.

Plaintiffs’ First Amended Complaint alleges that in or around January 2022 Defendant threatened to burn down Plaintiff’s house, close her bank accounts and sexually assault her. Defendant made the same threat to burn down the house to Plaintiff Mariane Okhkian. Plaintiffs allege that they have suffered severe distress as a result of these threats and other alleged conduct as well. (FAC Pages 5 to 6.)

What Plaintiffs have failed to do is to comply with the rules of court as to the format for complaints.

California Rules of Court (“CRC”) Rule 2.112 provides that each separately stated cause of action must specifically state (1) its number (e.g., “second cause of action”); (2) its nature (e.g., “for intentional infliction of emotional distress ”); (3) the party asserting it if more than one party is represented on the pleading (e.g., “by plaintiff Christina Okhkian and Plaintiff Mariane Okhkian”); and (4) the party or parties to whom it is directed (e.g., “against defendant Samvel Tumasyan”). (Cal. Rules of Court, rule 2.112.)  

Finally, it appears that Plaintiff Christina Okhkian alleges facts sufficient to state a cause of action for false promise with respect to herself. The elements of the tort of false promise are set forth in CACI Jury Instruction No. 1902 as follows.

1. that defendant made a promise to plaintiff;

2. that defendant did not intend to perform this promise when he made it;

3. that defendant intended that plaintiff rely on this promise;

4. that plaintiff reasonably relied on defendant’s promise;

5. that defendant did not perform the promised act;

6. that plaintiff was harmed; and

7. that plaintiff’s reliance on defendant’s promise was a substantial factor in causing her harm.

The FAC alleges that Defendant told Plaintiff Christina Okhkian he wanted to lease a car in her name and that he was already picking up the car and preparing the lease documents. (FAC p.2.) Plaintiff refused repeatedly. (Id.) Defendant proceeded with the lease and told Plaintiff to sign the lease paperwork. (Id.) Plaintiff signed the paperwork after Defendant promised to make the payments on the car timely. (FAC p.2.) 

After a few months, Defendant failed to make payments, causing the dealer to repossess the car. (Id., p.3.) Plaintiff had never driven the car and did not have the car when the dealer attempted to repossess it. (Id.) Defendant abandoned the car in Santa Fe after his son was involved in a vehicle collision, damaging the car. (Id.) As a result of Defendant’s conduct, Plaintiff is unable to lease a new car and the debt will remain on her credit report. (Id.) 

What Plaintiff has failed to do is to comply with the rules of court as to the format for complaints.

California Rules of Court (“CRC”) Rule 2.112 provides that each separately stated cause of action must specifically state (1) its number (e.g., “third cause of action”); (2) its nature (e.g., “for fraud/false promise”); (3) the party asserting it if more than one party is represented on the pleading (e.g., “by plaintiff Christina Okhkian”); and (4) the party or parties to whom it is directed (e.g., “against defendant Samvel Tumasyan”). (Cal. Rules of Court, rule 2.112.)  

Because the deficiencies presented are with respect to formatting, not content, the Court sustains the demurrer with leave to amend.