TENTATIVE RULING

Defendants Andrew Javaherifar and Nicole Sooferian’s Demurrer to Plaintiffs’ First Amended Complaint is SUSTAINED with thirty (30) days leave to amend as to the first and second causes of action and SUSTAINED without leave to amend as to the third, fourth, and eighth causes of action.

Plaintiff Saeed Sedaghatfar, individually and as Trustee of the Saeed Sedaghatfar 2009 Living Trust may amend his complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendants Andrew Javaherifar and Nicole Sooferian to give notice. 

REASONING

Defendants Andrew Javaherifar and Nicole Sooferian (“Defendants”) demur to the first, second, third, fourth, and eighth causes of action alleged against them in Plaintiff Saeed Sedaghatfar, individually and as Trustee of the Saeed Sedaghatfar 2009 Living Trust (“Plaintiff”)’s First Amended Complaint (“FAC”). As an initial matter, the Court notes that Defendants failed to meet and confer in person or by telephone as required by Code of Civil Procedure section 430.41, subdivision (a), thereby frustrating the purpose of the meet-and-confer requirement, which is to determine whether the parties can reach an agreement as to the issues raised in the demurrer. Nonetheless, in the interest of judicial efficiency, the Court exercises its discretion to consider the merits of Defendants’ demurrer, but it notes that subsequent failures to comply with statutory obligations may result in a continuance of the hearing on the subject motion. The Court also notes that Defendants’ demurrer is confusingly organized, as Defendants provide a purported summary of their argument as to each cause of action without any further argument, but the Court opts to address each cause of action in an effort to resolve any deficiencies in the FAC.

First Cause of Action: Breach of Contract

To state a cause of action for breach of contract, Plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Defendants take issue with this claim on the ground that Plaintiff has failed to provide a copy of the lease with the FAC despite stating that one is attached. (See FAC ¶¶ 11, 44.) If a breach of contract claim “is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) While Plaintiff has set forth the general terms at issue, he has not provided a copy of the subject agreement or the terms verbatim. Thus, Defendants’ demurrer to the first cause of action is SUSTAINED with thirty (30) days leave to amend.

Second Cause of Action: Breach of Implied Covenant of Good Faith and Fair Dealing

“A breach of the implied covenant of good faith and fair dealing involves something beyond breach of the contractual duty itself and it has been held that bad faith implies unfair dealing rather than mistaken judgment.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394.) “If the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated . . . [T]he only justification for asserting a separate cause of action for breach of the implied covenant is to obtain a tort recovery.” (Id. at pp. 1394-1395.) To recover in tort for breach of the implied covenant, the defendant must “have acted unreasonably or without proper cause.” (Id. at p. 1395, citations and italics omitted.)

Defendants demur to this claim on the ground that it is duplicative of the breach of contract claim. Indeed, the only difference is that Plaintiff alleges that Defendants “did not act fairly and in good faith” through their purported breach (FAC ¶ 71), but this does not show how the conduct rises of the level of tortious conduct beyond a mere breach of contract. Accordingly, Defendants’ demurrer to the second cause of action is SUSTAINED with thirty (30) days leave to amend.

Third Cause of Action: Damage to Real Property

Civil Code section 3334 provides a measure for damages incurred during the wrongful occupation of real property. “Damage to real property” is not itself a claim, either under Civil Code section 3334 or any other statute, and this claim does not differ in any way from the other claims alleged in the FAC. Thus, Defendants’ demurrer to the third cause of action is SUSTAINED without leave to amend.

Fourth Cause of Action: Conversion

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.)

In the fourth cause of action, Plaintiff alleges that Defendants interfered with Plaintiff’s property by failing to maintain the premises, failing to pay for repairs, failing to pay rent, damaging the premises, failing to inform Plaintiff when they vacated the unit, and preventing Plaintiff’s ability to earn income by leasing the property. (FAC ¶ 92.) Put simply, none of this conduct amounts to conversion, as Plaintiff does not allege that Defendants converted anything, and one cannot make any conduct in which one suffers damages a conversion claim. Accordingly, Defendants’ demurrer to the fourth cause of action is SUSTAINED without leave to amend.

Eighth Cause of Action: Negligent Infliction of Emotional Distress

“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.)

In the eighth cause of action, Plaintiff alleges that Defendants acted negligently in failing to pay rent, inform Plaintiff they were vacating the property, and reimburse Plaintiff for damage to the premises, thereby causing Plaintiff emotional stress. (FAC ¶¶ 122-123.) Code of Civil Procedure section 335.1 allows for a two-year statute of limitations for injury caused by the neglect of another, i.e., negligent infliction of emotional distress. Plaintiff alleges that he was aware of the conduct when Defendants vacated the premises shortly after he filed a claim for harm in July 2020, and he sent a notice of abandonment on February 9, 2021. (FAC ¶¶ 24, 38.) Plaintiff did not file this action until October 31, 2023, more than two years later. Plaintiff alleges that he did not suffer the distress until after this date, but this would give Plaintiff an unlimited amount of time to file his claim. Plaintiff has not alleged any facts related to tolling the statute of limitations. Thus, Defendants’ demurrer to the eighth cause of action is SUSTAINED without leave to amend.