Judge: Joseph Lipner, Case: 24STCV15508, Date: 2024-11-05 Tentative Ruling

Case Number: 24STCV15508    Hearing Date: November 5, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE
RULING

Plaintiff and cross-defendant Jeffrey Aaron Cohen (“Cohen”)
demurs to the Cross-Complaint filed by Defendant and cross-complainant Mordchai
Brafman (“Brafman”).

The Court SUSTAINS the demurrer WITHOUT LEAVE TO AMEND.

Background

            This
is a malicious prosecution case relating to Brafman’s unsuccessful lawsuit
against Cohen in Mordchai Brafman v. Sean Benaroya, et al., Case No. 23STCV13274
(“Brafman v. Benaroya”).

            Brafman
v. Benaroya is still pending against parties other than Cohen. On July 18,
2023, Brafman filed his First Amended Complaint (“FAC”) in Brafman v.
Benaroya. The FAC raised claims for (1) breach of contract; (2) breach of
implied covenant of good faith and fair dealing; (3) foreclosure of mechanics’
liens; (4) common count for work, labor, and services rendered; (5) negligent
interference with prospective economic advantage; (6) conversion; (7)
intentional infliction of emotional distress (“IIED”); and (8) false promise.
Cohen was named as a defendant as to the fifth and eighth claims.

            The
FAC alleged that Brafman and Sean Benaroya (“Benaroya”) are both licensed
contractors. According to the FAC in Brafman v. Benaroya, Brafman
subcontracted with Benaroya in April 2022 to perform work at a property at 810
East 61st Street in Los Angeles. The Department of Water and Power (DWP) sent
inspectors to the building site on several occasions over the ensuing month.
The inspectors insisted on major changes to the construction plan. Brafman
asked Benaroya to cover the costs of the changes. According to Brafman,
Benaroya not only refused to pay more, but vandalized the construction site,
took materials that plaintiff had provided at plaintiff’s own expense, and then
submitted a complaint regarding plaintiff to the Contractors’ State Licensing
Board (CSLB). Brafman claimed that Benaroya took advantage of his services and
engaged in a campaign of fraud and intimidation, assisted by his lawyer (Cohen)
and by DWP personnel.

Cohen legally represented Benaroya and his company
throughout the dispute. Brafman named Cohen as a defendant in the fifth and
eighth causes of action in the FAC. In the fifth cause of action for
intentional interference, Brafman alleged that Cohen submitted the claim to the
CSLB on behalf of his client, knowing it was false and/or unjustified. In the
eighth cause of action, Brafman alleged Cohen personally guaranteed, but did
not pay, amounts owed to plaintiff under his and Benaroya’s construction
contract.

            On
September 21, 2023, the Court in Brafman v. Benaroya granted Cohen’s
special motion to strike pursuant to the anti-SLAPP statute, Code of Civil
Procedure section 425.16, striking all causes of action in Brafman’s FAC
against Cohen. The Court found that all of Cohen’s alleged conduct, including
allegedly making false CSLB reports, falsely communicating with DWP, and
sending Brafman a demand letter, constituted protected activity. The Court
found that Brafman had not demonstrated a probability of prevailing on the
merits because the Cohen’s conduct was subject to the litigation privilege. The
Court therefore dismissed Brafman’s claims against Cohen with prejudice. 

The Court entered judgment in Cohen’s favor on September 21,
2023 and Cohen gave notice on or about October 3, 2023.  Brafman did not file an appeal in that
matter.

            On
June 20, 2024, Cohen filed this action against Defendants Brafman; Brent Parks,
individually and doing business as National Legal Assistants (“Parks”); and
NationalLegalAssistants.com, also known as National Legal Assistants (“National
Legal Assistants”) (collectively, “Defendants”). Cohen’s Complaint raises one
claim for malicious prosecution.

            On
August 2, 2024, Brafman filed a Cross-Complaint, which raises claims for (1)
aiding and abetting; (2) fraud – intentional misrepresentation; (3) false
promise; (4) defamation; (5) professional negligence; (6) tortious
interference; and (7) breach of fiduciary duty.

            Brafman’s
Cross-Complaint alleges that Cohen allowed Benaroya to submit false documents
to the CSLB. Brafman alleges that Cohen knew that Benaroya had submitted false
information to the City of Los Angeles but failed to correct it. Brafman
alleges that on June 17, 2022, Cohen sent a demand letter that made false
allegations and unjustified claims.

            On
August 30, 2024, Cohen demurred to the Cross-Complaint. Brafman filed an
opposition and Cohen filed a reply.

Legal Standard

“The party against whom a complaint or cross-complaint has
been filed may object, by demurrer or answer as provided in Section 430.30, to
the pleading on any one or more of the following grounds:

(a) The court has
no jurisdiction of the subject of the cause of action alleged in the pleading.

(b) The person who filed the pleading does not have the
legal capacity to sue.

(c) There is
another action pending between the same parties on the same cause of action.

(d) There is a defect or misjoinder of parties.

(e) The pleading does not state facts sufficient to
constitute a cause of action.

(f) The pleading is
uncertain. As used in this subdivision, “uncertain” includes ambiguous and
unintelligible.

(g) In an action
founded upon a contract, it cannot be ascertained from the pleading whether the
contract is written, is oral, or is implied by conduct.

(h) No certificate was filed as required by Section 411.35.”

(Code Civ. Proc., § 430.10.)

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.” (E-Fab, Inc. v. Accountants,
Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth
of the complaint’s properly pleaded or implied factual allegations. (Ibid.) 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. (Ibid.;
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).

Discussion

Cohen argues that Brafman’s claims are barred by the
previous action. Brafman does not respond to this argument.

“As generally understood, [t]he doctrine of res judicata
gives certain conclusive effect to a former judgment in subsequent litigation
involving the same controversy.’ The doctrine has a double aspect. In its
primary aspect, commonly known as claim preclusion, it operates as a bar to the
maintenance of a second suit between the same parties on the same cause of
action. In its secondary aspect, commonly known as collateral estoppel, [t]he
prior judgment ... operates in a second suit ... based on a different cause of
action ... as an estoppel or conclusive adjudication as to such issues in the
second action as were actually litigated and determined in the first action.” (Boeken
v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 [internal citations
and quotation marks omitted.)

“Claim preclusion, the primary aspect of res judicata, acts
to bar claims that were, or should have been, advanced in a previous suit
involving the same parties.” (DKN Holdings LLC v. Faerber (2015) 61
Cal.4th 813, 824 [internal quotations and citations omitted].) “Claim
preclusion arises if a second suit involves: (1) the same cause of action (2)
between the same parties (3) after a final judgment on the merits in the first
suit.” (Ibid.) “To determine whether two proceedings involve identical
causes of action for purposes of claim preclusion, California courts have
consistently applied the ‘primary rights’ theory.” (Boeken v. Philip Morris
USA, Inc. (2010) 48 Cal.4th 788, 797 [internal quotations and citations
omitted].) “When two actions involving the same parties seek compensation for
the same harm, they generally involve the same primary right.” (Id. at
798.) A dismissal ordered by a court constitutes a final judgment. (Code Civ.
Proc., § 581d.)

“Issue preclusion differs from claim preclusion in two ways.
First, issue preclusion does not bar entire causes of action. Instead, it
prevents relitigation of previously decided issues. Second, unlike claim
preclusion, issue preclusion can be raised by one who was not a party or privy
in the first suit.” (DKN Holdings LLC v. Faerber, supra, 61
Cal.4th at p. 824.) “In summary, issue preclusion applies: (1) after final
adjudication (2) of an identical issue (3) actually litigated and necessarily
decided in the first suit and (4) asserted against one who was a party in the
first suit or one in privity with that party.” (Id. at p. 825.)

Here, the Cross-Complaint alleges the same set of facts as
the FAC in Brafman v. Benaroya. The claims against Cohen in Brafman
v. Benaroya were litigated to a final judgment on a merits. The Court’s
ruling in the anti-SLAPP motion that Cohen’s conduct was protected by the
litigation privilege is therefore binding.

The Court therefore sustains the demurrer without leave to
amend.

Further, Brafman’s claims here arise out of the same
transaction and occurrences as in Brafman v. Benaroya. They are
therefore claims that should have been litigated in the underlying action. “‘[A]
dismissal with prejudice ... bars any future action on the same subject matter.’”
(Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 793.)
Brafman’s claims are therefore barred for this reason as well.

 DEPARTMENT 72

TENTATIVE RULING

Plaintiff and cross-defendant Jeffrey Aaron Cohen (“Cohen”) demurs to the Cross-Complaint filed by Defendant and cross-complainant Mordchai Brafman (“Brafman”).

The Court SUSTAINS the demurrer WITHOUT LEAVE TO AMEND.

Background

            This is a malicious prosecution case relating to Brafman’s unsuccessful lawsuit against Cohen in Mordchai Brafman v. Sean Benaroya, et al., Case No. 23STCV13274 (“Brafman v. Benaroya”).

            Brafman v. Benaroya is still pending against parties other than Cohen. On July 18, 2023, Brafman filed his First Amended Complaint (“FAC”) in Brafman v. Benaroya. The FAC raised claims for (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) foreclosure of mechanics’ liens; (4) common count for work, labor, and services rendered; (5) negligent interference with prospective economic advantage; (6) conversion; (7) intentional infliction of emotional distress (“IIED”); and (8) false promise. Cohen was named as a defendant as to the fifth and eighth claims.

            The FAC alleged that Brafman and Sean Benaroya (“Benaroya”) are both licensed contractors. According to the FAC in Brafman v. Benaroya, Brafman subcontracted with Benaroya in April 2022 to perform work at a property at 810 East 61st Street in Los Angeles. The Department of Water and Power (DWP) sent inspectors to the building site on several occasions over the ensuing month. The inspectors insisted on major changes to the construction plan. Brafman asked Benaroya to cover the costs of the changes. According to Brafman, Benaroya not only refused to pay more, but vandalized the construction site, took materials that plaintiff had provided at plaintiff’s own expense, and then submitted a complaint regarding plaintiff to the Contractors’ State Licensing Board (CSLB). Brafman claimed that Benaroya took advantage of his services and engaged in a campaign of fraud and intimidation, assisted by his lawyer (Cohen) and by DWP personnel.

Cohen legally represented Benaroya and his company throughout the dispute. Brafman named Cohen as a defendant in the fifth and eighth causes of action in the FAC. In the fifth cause of action for intentional interference, Brafman alleged that Cohen submitted the claim to the CSLB on behalf of his client, knowing it was false and/or unjustified. In the eighth cause of action, Brafman alleged Cohen personally guaranteed, but did not pay, amounts owed to plaintiff under his and Benaroya’s construction contract.

            On September 21, 2023, the Court in Brafman v. Benaroya granted Cohen’s special motion to strike pursuant to the anti-SLAPP statute, Code of Civil Procedure section 425.16, striking all causes of action in Brafman’s FAC against Cohen. The Court found that all of Cohen’s alleged conduct, including allegedly making false CSLB reports, falsely communicating with DWP, and sending Brafman a demand letter, constituted protected activity. The Court found that Brafman had not demonstrated a probability of prevailing on the merits because the Cohen’s conduct was subject to the litigation privilege. The Court therefore dismissed Brafman’s claims against Cohen with prejudice. 

The Court entered judgment in Cohen’s favor on September 21, 2023 and Cohen gave notice on or about October 3, 2023.  Brafman did not file an appeal in that matter.

            On June 20, 2024, Cohen filed this action against Defendants Brafman; Brent Parks, individually and doing business as National Legal Assistants (“Parks”); and NationalLegalAssistants.com, also known as National Legal Assistants (“National Legal Assistants”) (collectively, “Defendants”). Cohen’s Complaint raises one claim for malicious prosecution.

            On August 2, 2024, Brafman filed a Cross-Complaint, which raises claims for (1) aiding and abetting; (2) fraud – intentional misrepresentation; (3) false promise; (4) defamation; (5) professional negligence; (6) tortious interference; and (7) breach of fiduciary duty.

            Brafman’s Cross-Complaint alleges that Cohen allowed Benaroya to submit false documents to the CSLB. Brafman alleges that Cohen knew that Benaroya had submitted false information to the City of Los Angeles but failed to correct it. Brafman alleges that on June 17, 2022, Cohen sent a demand letter that made false allegations and unjustified claims.

            On August 30, 2024, Cohen demurred to the Cross-Complaint. Brafman filed an opposition and Cohen filed a reply.

Legal Standard

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

(b) The person who filed the pleading does not have the legal capacity to sue.

(c) There is another action pending between the same parties on the same cause of action.

(d) There is a defect or misjoinder of parties.

(e) The pleading does not state facts sufficient to constitute a cause of action.

(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

(h) No certificate was filed as required by Section 411.35.”

(Code Civ. Proc., § 430.10.)

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.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) 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. (Ibid.; 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).

Discussion

Cohen argues that Brafman’s claims are barred by the previous action. Brafman does not respond to this argument.

“As generally understood, [t]he doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.’ The doctrine has a double aspect. In its primary aspect, commonly known as claim preclusion, it operates as a bar to the maintenance of a second suit between the same parties on the same cause of action. In its secondary aspect, commonly known as collateral estoppel, [t]he prior judgment ... operates in a second suit ... based on a different cause of action ... as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 [internal citations and quotation marks omitted.)

“Claim preclusion, the primary aspect of res judicata, acts to bar claims that were, or should have been, advanced in a previous suit involving the same parties.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 [internal quotations and citations omitted].) “Claim preclusion arises if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit.” (Ibid.) “To determine whether two proceedings involve identical causes of action for purposes of claim preclusion, California courts have consistently applied the ‘primary rights’ theory.” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 [internal quotations and citations omitted].) “When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right.” (Id. at 798.) A dismissal ordered by a court constitutes a final judgment. (Code Civ. Proc., § 581d.)

“Issue preclusion differs from claim preclusion in two ways. First, issue preclusion does not bar entire causes of action. Instead, it prevents relitigation of previously decided issues. Second, unlike claim preclusion, issue preclusion can be raised by one who was not a party or privy in the first suit.” (DKN Holdings LLC v. Faerber, supra, 61 Cal.4th at p. 824.) “In summary, issue preclusion applies: (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” (Id. at p. 825.)

Here, the Cross-Complaint alleges the same set of facts as the FAC in Brafman v. Benaroya. The claims against Cohen in Brafman v. Benaroya were litigated to a final judgment on a merits. The Court’s ruling in the anti-SLAPP motion that Cohen’s conduct was protected by the litigation privilege is therefore binding.

The Court therefore sustains the demurrer without leave to amend.

Further, Brafman’s claims here arise out of the same transaction and occurrences as in Brafman v. Benaroya. They are therefore claims that should have been litigated in the underlying action. “‘[A] dismissal with prejudice ... bars any future action on the same subject matter.’” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 793.) Brafman’s claims are therefore barred for this reason as well.