Avis Copelin, et al. v. Coastal Capital Group, et al.

DEMURRER TO COMPLAINT

 

MOVING PARTY: Defendants Coastal Capital Group, LLC and Chris Tomaszewksi

RESPONDING PARTY(S): Plaintiff Avis Copelin [FN 1] 

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs Avis Copelin and SCLW Holdings, LLC, bring this action against Defendants Coastal Capital Group, LLC and its owner, Chris Tomaszewski. Plaintiff SCLW Holdings is the trustor on a deed of trust for a property located in West Hollywood. Defendant Coastal Capital Group is the beneficiary. After Plaintiff defaulted on the loan, Coastal Capital purchased the property at a foreclosure sale and filed an unlawful detainer action against Plaintiff. Plaintiffs allege the foreclosure and unlawful detainer should be set aside because Defendants lacked the required licenses to originate the loan. Plaintiffs assert causes of action for (1) violation of the UCL, (2) set aside foreclosure, (3) breach of written contract, (4) slander of title, (5) cancel deed of trust, (6) quiet title, (7) accounting, and (8) intentional infliction of emotional distress. 

Defendants now demur to each cause of action in the Complaint. No timely opposition was filed by Copelin.  No opposition at all was filed by Plaintiff, SCLW Holdings, LLC.  [FN 2] 
  

TENTATIVE RULING:

Defendants’ Demurrer to Complaint is SUSTAINED in its entirety.  Leave to amend is DENIED as to the Seventh and Eight Causes of Action.   Whether leave to amend is given to the remaining causes of action and/or whether Avis Copelin has the required standing in this case shall be determined at the hearing, unless otherwise expressly allowed herein.

Moving parties are ordered to give notice, unless waived.  

DISCUSSION:

Demurrer

I. Judicial Notice

Pursuant to Defendants’ request, the court takes judicial notice of Exhibits 1 through 5.

II. Meet and Confer

III. Legal Standard

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 by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  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, 147 Cal.App.4th at 747.)

IV. Analysis 

Defendants demur to each cause of action in the Complaint.  Each is addressed in turn.

A. Demurrer to First, Second, Fourth, Fifth, and Sixth Causes of Action

Defendants argue the First Cause of Action for violation of the Business & Professions Code, Second Cause of Action to set aside foreclosure sale, Fourth Cause of Action for slander of title, Fifth Cause of Action to cancel deed of trust, and Sixth Cause of action for quiet title fail based on the failure to allege wrongful conduct or a defect in the foreclosure process.

The sole basis for this action appears to be Defendants’ alleged failure to possess the requisite license(s) for residential mortgage loans. (Compl. ¶¶ 2, 3.) By failing to address the arguments and authorities raised in the moving papers, Plaintiffs have not established the essential elements of these causes of action, nor grounds to set aside the sale.

Accordingly, Defendants’ Demurrer to the First, Second, Fourth, Fifth, and Sixth Causes of Action is SUSTAINED.   

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff(s) must proffer a sufficient offer of proof at the hearing that Plaintiff(s) is able to plead facts showing demonstrating such a reasonable possibility for each cause of action, consistent with this ruling.  If not, no leave to amend will be granted. 

B. Third Cause of Action for Breach of Written Contract

Next, Defendants argue Plaintiffs have not adequately alleged a breach of contract.

To establish breach of contract, a plaintiff must allege: (1) the existence of contract; (2) Plaintiff’s performance or excuse for nonperformance; (3) Defendant’s breach (or anticipatory breach); and (4) resulting damage.  (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.) The rule in California is that “[a] written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. [Citation.] In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.’ [Citation.]”  (Heritage Pac. Fin., LLC v. Monroy, (2013) 215 Cal. App. 4th 972, 993.) In this Court’s opinion, and given the liberal standards of pleading, Plaintiff has sufficiently alleged the legal effect of the Deed of Trust, including those portions breached.

Here, Plaintiffs allege that Defendants’ failure to possess the necessary licenses constitutes a breach of the deed of trust. (Compl. ¶¶ 28-31.) However, Plaintiffs have not identified any portion of the deed of trust that was allegedly breached. 

Accordingly, Defendants’ Demurrer to the Third Cause of Action is SUSTAINED. 

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff(s) must proffer a sufficient offer of proof at the hearing that Plaintiff(s) is able to plead facts showing demonstrating such a reasonable possibility for each cause of action, consistent with this ruling.  If they don’t, no leave to amend will be granted.

C. Seventh Cause of Action for Accounting

Next, Defendants argue Plaintiffs are not entitled to an accounting. “A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting.”  (Teselle v. McLoughlin, (2009) 173 Cal. App. 4th 156, 179.)  “[T]he nature of a cause of action in accounting is unique in that it is a means of discovery. An accounting is a ‘species of disclosure, predicated upon the plaintiff's legal inability to determine how much money, if any, is due. [Citation.] Thus, the purpose of the accounting is, in part, to discover what, if any, sums are owed to the plaintiff, and an accounting may be used as a discovery device.”  (Id. at 180.)

Here, Plaintiffs allege “that there are no amounts of money still owed by Plaintiffs because Defendants were not duly licensed within the State of California and therefore cannot collect in any action in this state.” (Compl. ¶ 50.) In other words, Plaintiffs contend they owe nothing. This is not a proper basis for an accounting action because there is no unknown amount to be “ascertained by” the accounting.

Accordingly, Defendants’ Demurrer to the Seventh Cause of Action is SUSTAINED without leave to amend. 

D. Eighth Cause of Action for Intentional Infliction of Emotional Distress

Finally, Defendants argue Plaintiff Copelin has not alleged facts sufficient to constitute IIED.  This Court agrees.

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.  A defendant's conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community. And the defendant's conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’”  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51, quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001) (internal citations omitted). “Liability for intentional infliction of emotional distress ‘ “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.”  (Bock v. Hansen (2014) 225 Cal. App. 4th 215, 233.)  Severe emotional distress means “ ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’”  (Id.)

Although a claim for IIED will generally present multiple questions of fact, a court may sustain a demurrer to the claim when “the facts alleged do not amount to outrageous conduct as a matter of law.” (Bock, supra, 225 Cal. App. 4th at 235.)  The process has been described as “more intuitive than analytical.”  (So v. Shin (2013) 212 Cal.App.4th 652, 671–672.)

Here, Plaintiff Copelin alleges nothing beyond Defendants’ failure to possess the requisite licenses. (Compl. ¶ 2.) As a matter of law, this is not “extreme and outrageous” conduct. Additionally, Copelin expressly is suing only in the capacity as the “CEO” and/or “Real Party in Interest" for the LLC.   It is well settled, as a matter of law,  that an LLC cannot suffer “emotional distress" -- "extreme" or otherwise.

Accordingly, Defendants’ Demurrer to the Eighth Cause of Action is SUSTAINED without leave to amend. 

E. Plaintiff Copelin’s Standing

Next, Defendants argue Plaintiff Copelin lacks standing individually to bring these claims because Plaintiff SCLW Holdings was owner of the property, not Copelin.   This appears to be a fair point.

“Standing is the threshold element required to state a cause of action.” (Martin v. Bridgeport Cmty. Assn., Inc. (2009) 173 Cal. App. 4th 1024, 1031.) Generally, every action must be prosecuted in the name of the real party in interest. (See CCP § 367) “A real party in interest is one who has ‘an actual’ and substantial interest in the subject matter of the action and who would be benefited or injured by the judgment in the action.” (Martin, supra, 173 Cal. App. 4th at 1031–32.) 

Plaintiff SCLW Holdings is the owner of the property. (Compl. ¶ 2; RJN, Exhs. 1-5.) Copelin is the CEO of that entity. (Id.) In the absence of any opposition to argue otherwise, Plaintiff Copelin is not a “real party in interest.” Therefore, that Plaintiff lacks standing to bring this action. 

Additionally, Plaintiff Copelin sues in his capacity as the “CEO” or “Real Party in Interest” for the co-Plaintiff LLC.  Copelin has previously been advised in this action, that he/she cannot be self-represented in such a capacity.  See, Minute Order, 2/10/25.  A few days later Copelin filed a substitution of attorney which caused Attorney Tamer to represent the LLC, but not Copelin.  (See, Substitution of Attorney, 2/12/25) Be that as it may, Copelin still continues to act as if he/she represents the LLC.  See, e.g., CMC Statement, filed “jointly” by both plaintiffs on 5/27/25.  See also, Declaration of Copelin, 5/28/25.

Accordingly, Copelin must proffer a sufficient offer of proof at the hearing to establish: (1) He/she has sufficient standing in this case, as the “CEO” or “Real Party in Interest” for the co-Plaintiff LLC.  and (2) If he/she has such standing, whether he/she may be self-represented in such capacities.

If Copelin is granted leave to amend, Plaintiffs must plead facts to establish Copelin’s standing.

F. Demurrer by Defendant Tomaszewksi

Finally, Defendants argue the Complaint does not allege any conduct by Defendant Tomaszewksi. “Ordinarily, a corporation is regarded as a legal entity, separate and distinct from its stockholders, officers and directors, with separate and distinct liabilities and obligations.” (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538.) 

Plaintiff alleges only that Defendant Chris Tomaszewski is the owner of Defendant Coastal Capital Group, LLC. (Compl. ¶¶ 2, 4.) There are no allegations to hold Tomaszewksi liable as an individual. Nor does Plaintiff allege any alter ego relationship between the Defendants.

Therefore, the action against Tomaszewksi fails. When amending, Plaintiff must plead facts or theories to hold Tomaszewski independently liable. 

Accordingly, Defendant Tomaszewski's Demurrer to the Complaint is SUSTAINED in its entirety.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff(s) must proffer a sufficient offer of proof at the hearing that Plaintiff(s) is able to plead facts showing demonstrating such a reasonable possibility for each cause of action, consistent with this ruling.  If they don’t, no leave to amend will be granted. 

IT IS SO ORDERED.

Dated:   May 30, 2025 ___________________________________

FN 1 - After the preparation of this tentative ruling, and immediately before posting same online, this Court noted that Plaintiff Copelin filed a “declaration” in response to this pending demurrer on 5/28/25.   Given its extreme untimeliness, that pleading will not be considered for purposes of this demurrer.  Simply stated:  It was “too little and too late.”

FN 2 - On April 16, 2025, Defendants served the motion electronically on counsel for the entity Plaintiff, SCLW Holdings, LLC, (Steven Tamer, Esq.) and on the individual Plaintiff, Avis Copelin, who is in pro per. (See Proof of Service.)   As will discussed infra., this Court has serious concerns whether Avis Copelin is a proper party in this case and/or whether that person can be self-represented in this case.

FN 3 - For purposes of amending, Plaintiff(s) are reminded that “[w]here tendering is required and not excused, a plaintiff seeking to set aside an irregular sale must allege tender of the full amount of the loan to maintain any cause of action that either is based on the wrongful foreclosure allegations or seeks redress from that foreclosure.” (Abdallah v. United Savings Bank (1996) 43 Cal. App. 4th 1101, 1109; see Karlsen v. American Sav. & Loan Assn. (1971) 15 Cal.App.3d 112, 117, 92 Cal.Rptr. 851 [“valid and viable tender of payment of the indebtedness owing is essential to an action to cancel a voidable sale under a deed of trust”].)

FN 4 -   For purposes of amending, Plaintiff(s) are reminded that “[w]here tendering is required and not excused, a plaintiff seeking to set aside an irregular sale must allege tender of the full amount of the loan to maintain any cause of action that either is based on the wrongful foreclosure.