Judge: Jon R. Takasugi, Case: 24STCV33160, Date: 2025-02-26 Tentative Ruling

Case Number: 24STCV33160    Hearing Date: February 26, 2025    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s demurrer is SUSTAINED, WITH 30 DAYS LEAVE TO AMEND. Accordingly, Defendant’s motion to strike is MOOT.

            On 12/17/2024, pro per Plaintiff Tanos Nalbandian (Plaintiff) filed suit against Sarkis Nalbandian, Suzanne Nalbandian, Sabrina Nalbanian, and the Nalbandian Family Living Trust, alleging: (1) breach of implied contract; (2) breach of written contract; (3) unjust enrichment; (4) negligent infliction of emotional distress; (5) intentional infliction of emotional distress; (6) fraud and deceit; and (7) elder abuse.

            On 2/3/2025, Defendant Sarkis Nalbandian (Defendant) demurred to Plaintiff’s Complaint. Defendant also moves to strike portions of Plaintiff’s Complaint.

Discussion

            Defendant argues that each of Plaintiff’s claims is insufficiently pled.

            After review, the Court agrees.

            As for the first cause of action, this claim is based on allegations that:

The contract was an Oral Contract in so far as the Plaintiff’s mother, Nahia Nalbandian, knowing of the rift between Plaintiff and Defendants as a result of their underhanded actions, had promised Plaintiff on several occasions after the death of her husband that he could continue to reside in the Nalbandian Property after her passing until such time as the property was sold and the proceeds from the sale of the property was dispersed equally between the 6 siblings, or wherever Petitioner receives his equal share of the property so that Petitioner could reestablish himself.

These oral promise, commitment and instructions were made by Nahidg Nalbandian as Plaintiff had, in the first instance, been living with both his father and mother since the year 2010 caring first for his father thru his final years, and secondly for his mother thru her final years on a continual daily basis, carrying for her each and every need until the day she passed.

            (Complaint ¶¶ 97-98.)

            As such, by Plaintiff’s own admission, the alleged oral promise was made by Plaintiff’s mother (who is not a party to this action), not Defendant. As such, Plaintiff has not alleged facts which could show Defendant here breached any oral promise to Plaintiff.

            As for the second cause of action, Plaintiff alleges that Defendant here signed a written letter meant to function as a contract and which provided the following:

Before our father’s death, it was his specified desire that once he passes, our mom, shall live in the Property for as long as she wants to, and upon her death, I was given the task of selling the Property, and dividing the proceeds (after] any applicable taxes) among all of us brothers and sisters equally. This was our Father’s wish and this is what I have committed to in my will and estate plan.

I understand that you are currently living in this Property with our mom. I am and continue to be the legal owner of the Property. And as legal owner, you are living in the Property with my permission and consent. I understand that you may be having financial difficulties and as my brother, I am providing you with permission to stay at the Property until such time as you are able to obtain a place of your own.

Your occupancy of the Property is not exclusive since you share it with our mom. Your occupancy of the Property is not hostile since I, as legal owner of the Property, am giving you permission. However, as legal owner of the Property, I reserve the right to evict you from the Property at any time. Nothing in this letter should be construed as a waiver of any of my rights to evict you under CA Law and as legal owner of the Property.

(Complaint ¶¶ 113-115.)

Plaintiff alleges that Defendant breached this agreement by refusing to give him his 1/6 financial share in the property, and by initiating legal proceedings to evict him from the property.

However, the Court agrees with Defendant that while the letter affirms his commitment to his father’s wishes, it does not include any agreement by and between Plaintiff and Defendant. Neither Plaintiff nor Defendant are alleged to have made any type of an offer which was then accepted by the other. More importantly, there is no consideration exchanged between Plaintiff and Defendant for the actions Defendant states he intends to take. Without consideration, there is no valid contract as consideration is an essential element of a valid agreement. (See Civ. Code, § 1550; see also Holmes v. Holmes (1950) 98 Cal.App.2d 536, 538.)

Moreover, Plaintiff does not allege the property has been sold. As such, even assuming Defendant was contractually obligated to give Plaintiff a 1/6 share, by the terms of the letter, performance would be due upon the sale of the property. As the property has not been sold (or, at least, no facts have been alleged that it has been), no performance is due, and Plaintiff has not alleged facts which could show breach.

As for Plaintiff’s claim for unjust enrichment, unjust enrichment is not a cause of action, but rather ‘a general principle, underlying various legal doctrines and remedies’ …. ‘It is synonymous with restitution.’ (McBride v. Boughton (2004) 123 Cal.App.4th 379, 387 (citing Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793) Here, as set forth above, Plaintiff has not alleged facts which could show an oral or written contract between him and Defendant. Connectedly, Plaintiff has not made any allegation which could show Defendants derived a benefit from Plaintiff which he now unjustly retains.

As for Plaintiff’s negligent infliction of emotional distress claim, “‘[the] negligent causing of emotional distress is not an independent tort but the tort of negligence . . ..’ (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 838, p. 195.). Here, Plaintiff has not pled any element related to negligence. There are no allegations that Defendant owed a duty to Plaintiff or that he breached this duty. His allegation that Defendant breached a contract, described in paragraph 142 of the complaint as “not having honored the wishes of his parents” and has not provided Plaintiff with his 1/6 interest in the family home, does not indicate a duty independent of contract that Defendant could have breached. (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.)

As for Plaintiff’s intentional infliction of emotional distress claim, Plaintiff has not alleged facts which could support his underlying claims. As such, Plaintiff has not alleged facts which could show that this conduct was outrageous. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 887.)  

As for Plaintiff’s fraud claim, the elements of fraud, which give rise to the tort action for deceit, are (1) misrepresentation (false representation, concealment or non-disclosure); (2) knowledge of falsity (or 'scienter'); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Hackethal v. Nat'l Casualty Co. (1987) 189 Cal.App.3d 1102, 1111 (citing 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 446, p. 2711.)

Here, Plaintiff alleges that Defendants transferred title of the Nalbandian Property to themselves without their permission. Defendant argues:

Based on Plaintiff’s allegations, Defendants took title to the property after promising both father and mother that mother would remain on the property for as long as she wished and upon her death, would sell the property and distribute the proceeds to all the siblings. Plaintiff makes no allegations that his mother was evicted from the property (where she resided until her passing). Plaintiff cites and attaches as an exhibit a letter in which Defendant expresses his commitment to fulfilling his promise to his father and share the proceeds of the sale of the property with his siblings, so no intentional misrepresentation can be construed there. Finally, we know the property has not been sold, based on Plaintiff's statement in paragraphs 132, 142, and 160, so that Defendants cannot be seen as refusing to distribute the proceeds of a sale or fraudulently concealing those proceeds.

            (Opp., p. 12: 1-11.)

            The Court agrees that Plaintiff has not alleged facts which could satisfy the damages element of fraud. As for the promise to give him 1/6 of the proceeds, Plaintiff does not allege that the house has been sold, and thus it is unclear how he has been damaged by reliance on the representation. As for his attempted eviction, Plaintiff has not alleged facts which could show any contractual entitlement to allow him to remain at the house, and Plaintiff did not allege facts which could show that rescission of a promise to allow him to stay in the house, unsecured by any consideration, could amount to fraud.

            As for the elder abuse claim, “a financial elder abuse claim lies when a person or entity “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both,” or assists in such conduct.” (Munoz v. Patel (2022) 81 Cal.App.5th 761, 782 (Welf. & Inst. Code, § 15610.30, subd. (a)(1), (2).)

Plaintiff makes no allegations that his property was taken from him. He appears to base his elder abuse claim on his one-sixth interest in the proceeds from the sale of the property and in a perceived right to reside on the property. As for the 1/6 of proceeds, Plaintiff has not alleged facts that could show this has been taken, secreted away, or appropriated from him, as (again) the property has not been sold. As for the right to reside in the property, as set forth above, Plaintiff has not alleged facts to show that the promise by and between Plaintiff and his mother was a valid contract, which Defendant here was bound by.

The Court will award Plaintiff leave to amend to address these deficiencies. The Court urges Plaintiff to consult an attorney.

Based on the foregoing, Defendant’s demurrer is sustained, with 30 days leave to amend. Accordingly, Defendant’s motion to strike is moot.

It is so ordered.

Dated:  February    , 2025

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.