Judge: Sarah J. Heidel, Case: 23BBCV01867, Date: 2024-03-21 Tentative Ruling

Case Number: 23BBCV01867    Hearing Date: March 21, 2024    Dept: V

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT V

BLOOMING LIFE HOSPICE, A CALIFORNIA CORPORATION, et al.; Plaintiffs, vs.

KARINA AKHTAR, et al., Defendants.

Case No.: 23BBCV01867

Hearing Date: March 21, 2024 Time: 8:30 a.m.

[TENTATIVE] ORDER RE: DEFENDANTS KARINA AKHTAR AND LEVINE MANAGEMENT GROUP, INC.’S DEMURRER TO THE THIRD, FIFTH AND SIXTH CAUSES OF ACTION IN PLAINTIFFS’ SECOND AMENDED COMPLAINT AND MOTION TO STRIKE PORTIONS THEREOF

MOVING PARTIES: Defendants Levine Management Group, Inc. and Karina Akhtar

RESPONDING PARTY: Plaintiffs Blooming Life Hospice and Narine Rafikovna Shakhmuradyan

Demurrer to the Third, Fifth and Sixth Causes of Action in Plaintiffs’ Second Amended Complaint; Motion to Strike Portions of Plaintiffs’ Second Amnded Complaint

The court considered the moving papers, opposition, and reply papers filed in connection with these motions.

BACKGROUND

Blooming Life Hospice (“BLH”) and Narine Rafikovna Shakhmuradyan (“Shakhmuradyan”) (“Plaintiffs”) bring this action against Karina Akhtar (“Akhtar”) and Levine Management Group (“Levine”) (collectively “Defendants”). This action stems from a series of incidents which occurred in June of 2023. The operative Second Amended Complaint (“SAC”)

alleges six causes of action for (1) defamation, (2) libel, (3) intentional interference with prospective economic advantage, (4) violation of Bus. & Prof. Code § 17200, et seq. (unfair competition, (5) intentional infliction of emotional distress, and (6) trade libel.

BLH is a licensed hospice service provider in the State of California and Shakhmuradyan is its CEO. Levine is a property management company which maintains the Casa Del Sol Apartments, an apartment complex which caters to “seniors who have experienced homelessness and have a mental health diagnosis” (the “Casa”). Akhtar is the property manager for Casa.

On June 9, 2023, Shakhmuradyan visited Casa with the intent to offer hospice services to two residents to whom Shakhmuradyan had been referred by an existing BLH client, Josefa Contrears. (“Contreras”). (Shakhmuradyan Decl. ¶¿3; SAC ¶ 10.) The two Casa residents that Contreras referred to Shakhmuradyan are Contrears’ ex-mother-in-law and her boyfriend (the “Residents”). (SAC ¶ 10.) Shakhmuradyan alleges that she attempted to speak to the Residents but was rebuffed by Akhtar. (Shakhmuradyan Decl. ¶¿5.) Akhtar informed Shakhmuradyan that there was no solicitation at Casa, whereinafter Shakhmuradyan left and continued to converse with one of the Residents at the back of the building. (Id.) Shakhmuradyan was then confronted by a male employee who asked for her identification and business card, which Shakhmuradyan states she went to retrieve from her car. (Id.) Shakhmuradyan then attempted to present her business card and identification to Akhtar, who then informed her angrily that there was no solicitation. (Shakhmuradyan Decl. ¶¿6.) Shakhmuradyan decided it was best to leave the premises at this time. (Id.)

The following week, Shakhmuradyan attempted to make peace with Akhtar through one of the Residents. (Shakhmuradyan Decl. ¶¶ 8-12.) Shakhmuradyan brought pastries to the Casa as a gesture of goodwill. (FAC ¶ 17.) on June `9, 1012, Shakhmuradyan and Akhtar had a friendly conversation regarding BLH’s services and Casa’s need for those services. (FAC ¶ 19.)

On June 20, 2023 Shakhmuradyan became aware that notices had been posted at Casa accusing BLH of being “scammers and solicitors”. (Shakhmuradyan Decl. ¶¿13, Exh. 1.) The notice allegedly accused BLH of “foraging[sic] contracts with [residents] and taking large sums of finances out of your insurance…” (Exh. 2.) Plaintiffs allege the notices were Akhtar’s doing.

Defendants admit that Akhtar posted these notices but state the notices were promptly removed after receiving a letter from Plaintiffs’ counsel. (Akhtar Decl. ¶ 2, Cervantes Decl. ¶¶¿2-4.) Defendants argue that Akhtar only posted these notices to protect Casa’s vulnerable residents.

On December 22, 2023, the Court denied Plaintiffs’ motion for a preliminary injunction enjoining Defendants from further making false and damaging claims about Plaintiffs to others.

On January 5, 2024, Plaintiffs filed the operative SAC.

On February 16, 2024, Defendants filed this demurrer and motion to strike. Plaintiffs filed opposition papers on March 8, 2024. Defendants replied on March 14, 2024.

REQUEST FOR JUDICIAL NOTICE

At Defendants’ request, pursuant to Sections 452 and 453 of the California Evidence Code, the Court takes judicial notice of:

1. Plaintiffs’ motion for preliminary injunction filed on November 28, 2023 in the instant matter.

2. The Court’s Minute Order dated December 22, 2023 denying Plaintiffs’ motion for preliminary injunction in the instant matter.

3. The Second Amended Complaint filed on January 5, 2024.

4. The concurrently filed Motion to Strike.

5. The Statement of Information of Plaintiff BLOOMING LIFE HOSPICE, file stamped August 16, 2023, from the California Secretary of State’s Website, attached to the accompanying Declaration of Thomas R. Kelleher as Exhibit “B.”

LEGAL STANDARD

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Ibid.) A demurrer accepts as true all well pleaded facts and those facts of which the court can take judicial notice but not deductions, contentions, or conclusions of law or fact. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) Although courts construe pleadings liberally, sufficient facts must be alleged to support the allegations pled to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.)

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, 349.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.) “If 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.)

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.” (Code Civ. Proc. § 435(b)(1).) A court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc. § 436(a).) A court may “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc. § 436(b).)

DEMURRER

Defendants demur to the third, fifth and sixth causes of action under CCP § 430.10(e) for failure to state facts sufficient to constitute a cause of action.

A. Third Cause of Action for International Interference with Prospective Economic Advantage

“Intentional interference with prospective economic advantage has five elements: (1) the existence, between the plaintiff and some third party of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relation and (5) economic harm proximately caused by defendants action.” (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512.)

Defendants contend without little elaboration that plaintiffs did “not plead and cannot plead the required elements” of a claim for intentional interference with prospective economic advantage. (Mot. at 8). Defendants argue that the claim fails because Casa does not provide the same services Plaintiffs provide (i.e. hospice care) and therefore there is no “economic relationship to even disrupt.” But as Plaintiffs pointed out in opposition, it is irrelevant that Casa does not provide hospice care. The issue is whether Defendants sought to interfere with Plaintiffs’ business of providing hospice care. The SAC sufficiently pleads the requisite elements under Roy Allan. Akhtar knew that Shakhmuradyan, in her representative capacity of BLH, visited Casa to speak with residents seeking hospice services. (SAC ¶ 16.) The Notice clearly seeks to warn and deter residents from dealing with Plaintiffs. (SAC ¶ ¶ 23-25; Exh. A.) Akhtar acted with intent to cause Plaintiffs injury. (SAC ¶ 27.) As a result of the Notice, two residents that BLH had previously enlisted refused to continue participating in BLH’s services. (SAC ¶ 28.)

Defendants’ demurrer as to the third cause of action is overruled.

B. Fifth Cause of Action for Intentional Infliction of Emotional Distress

To state a cause of action for intentional infliction of emotional distress, a plaintiff must

allege, with the requisite sufficiency, that: (1) the defendant engaged in extreme and outrageous conduct; (2) the defendant acted with an intent to cause or with reckless disregard of the probability of causing severe emotional distress; (3) the plaintiff suffered severe emotional distress; and (4) the defendant's conduct was a substantial factor in causing the plaintiffs severe

emotional distress. (See CACI Jury Instruction No. 1600; Moko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1120.) “Extreme and outrageous conduct is conduct that is ‘so extreme as to exceed all bounds of that usually tolerated in a civilized community’ and must be ‘of a nature which is especially calculated to cause, and does cause, mental distress.’” (Chang v. Lederman (2009) 172 Cal. App. 4th 67, 86-87.)

Defendants contend that Plaintiffs fail to sufficiently allege that Defendants engaged in extreme and outrageous conduct, that Defendants acted with intent or reckless disregard, that Plaintiffs suffered severe emotional distress, or that Defendants’ conduct was a substantial factor. The court agrees that the allegations are both conclusory and insufficient. Among other deficiencies, Plaintiffs fail to allege any facts supporting the allegation that Plaintiff suffered emotional distress.

Defendants’ demurrer as to the fifth cause of action is sustained with leave to amend.

C. Sixth Cause of Action for Trade Libel

For trade libel Plaintiffs must allege sufficient facts to meet each of the elements: (1) that defendants made a statement that would be clearly or necessarily understood to have disparaged the quality of Plaintiff’s services; (2) that the statement was made to a person other than the plaintiffs; (3) that the statement was untrue; (4) that defendants knew that the statements were untrue/acted with reckless disregard of the truth or falsity of the statement; (5) that defendant knew or should have recognized that someone else might act in reliance on the statement, causing plaintiffs financial loss; (6) that plaintiff suffered direct financial harm because someone else acted in reliance on the statement; and (7) that defendants’ conduct was a substantial factor in causing plaintiffs’ harm. (CACI No. 1731.)

Defendants contend that Plaintiffs failed to allege reliance and actual malice. Plaintiffs allege that at least two Casa residents discontinued Plaintiffs’ services after the Notice was posted. (SAC ¶ 28.) Plaintiffs fail to allege facts that Defendants acted with malice or that Defendants knew the statements in the Notice were false.

Defendants’ demurrer as to the sixth cause of action is sustained with leave to amend.

MOTION TO STRIKE

A. References to “punitive” damages

Civil Code Section 3294 provides that in order to sufficiently plead a claim for exemplary damages, plaintiff must allege specific facts showing that the defendant is “guilty of oppression, fraud, or malice.” (Civil Code § 3294(a).) Plaintiffs fail to sufficiently allege malice. Moreover,

to support an award of punitive damages against an employer, the conduct at issue must have been performed by an agent “acting as the organization’s representative.” (College Hosp., Inc. v. Sup. Ct. (1994) 8 C4th 704, 723.) Plaintiffs did not allege that Akhtar was acting in a representative capacity but only that only allege that Akhtar is the manager of Casa, and that Levine is the employer of Akhtar.

Accordingly, Plaintiffs’ request for punitive damages is stricken.

References to “injunction” or “injunctive relief”

The Complaint seeks, inter alia, an order enjoining Defendants from engaging in further retaliatory conduct and in unfair competition. Defendants argue that the Court’s Dec. 22, 2023 Minute Order denying Plaintiffs’ motion for a preliminary injunction is also an order that prohibits Plaintiffs from requesting injunctive relief at trial. The Minute Order states that “a court may not unconstitutionally prevent a person from uttering a defamatory statement before it has been determined at trial that the statement was defamatory.” In the context of the Complaint, Plaintiffs seek injunctive relief if it is proven at trial that Defendants’ statements are indeed defamatory. Plaintiffs’ request for injunctive relief is proper.

B. References to any government investigation of Plaintiffs initiated by Defendants.

Defendants fail to present any argument to support striking references to the alleged government investigation from the SAC.

The Court OVERRULES Defendants’ demurrer as to the third cause of action and SUSTAINS Defendants’ demurrer as to the fifth and sixth causes of action with leave to amend. The Court GRANTS Defendants’ motion to strike as to punitive damages. The Court DENIES Defendants’ motion to strike in all other respects.

Plaintiffs are ordered to file an amended complaint within 20 days of this order.