Judge Upinder S. Kalra, Case Number: 24STCV17135, Date: 2025-06-02 Tentative Ruling

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1. Demurrer to the entire First Amended Complaint (FAC) for failing to state sufficient facts to constitute a cause of action.[1]

1. Demurrer to the First, Third, Fourth, Fifth, Sixth, and Seventh Causes of Action is OVERRULED;

2. Demurrer to the Second, Eighth, Ninth, Tenth, and Eleventh Causes of Action is SUSTAINED;

On July 10, 2024, Plaintiffs Farhad Davatgarzadeh, Farideh Kohan Melamed, Ghazal Davatgarzadeh, Miriam Davatgar, and Pedram Fakheri (Plaintiffs) filed a Complaint against Defendant Caremark Properties, LLC with eleven causes of action for: (1) Breach of Contract; (2) Breach of Good Faith and Fair Dealing; (3) Breach of Covenant of Quiet Enjoyment; (4) Violation of California Civ. Code §1940.2; (5) Violation of LAMC § 151.9, et seq.; (6) Constructive Eviction; (7) Fraud and Deceit; (8) Unlawful Business Practices – Violation of Business & Professions Code § 17200 et seq.; (9) Negligence; (10) Intentional Infliction of Emotional Distress; and (11) Elderly Abuse.

On January 14, 2025, Plaintiffs filed the operative First Amended Complaint (FAC) for the same eleven causes of action.

According to the FAC, Plaintiffs leased property located at 1526 S. Wooster St. #2, Los Angeles, CA 90035 (the Property) from Defendant’s predecessor and then delivered a Tenant Estoppel certificate to Defendant who purchased the Property in 2018. Plaintiffs further allege that they vacated the Property in 2023 due to flooding that Defendant promised to remediate. However, Plaintiffs allege that they continued to delay remediation and eventually refused to allow Plaintiffs to return or to reimburse Plaintiffs for the difference in rent paid for the comparable unit while Plaintiffs awaited the remediation.

On February 24, 2025, Defendant filed the instant demurrer. Oppositions were due on or before May 19, 2025. As of May 28, 2025, the court has not received any opposition.

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). Here, the parties met and conferred telephonically on September 20, 2024. (Tiomkin Decl. ¶¶ 2-3.) This requirement is therefore met.

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.¿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 pleadings alone and not the evidence or other extrinsic matters. …. 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.)¿¿

When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) Courts also consider exhibits attached to the complaint and incorporated by reference. (See Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94 (Frantz).)¿

Defendant contends that Plaintiffs insufficiently alleged this claim because they did not attach the contract (lease) and did not allege its terms.

“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.) “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.’” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 993.)¿¿

Upon reviewing the FAC, Plaintiffs sufficiently stated a claim for breach of contract. First, they alleged a contract existed because they alleged an original 2003 lease which they memorialized to Defendant via an attached Tenant Estoppel certificate when Defendant purchased the Property in 2018. (FAC ¶ 6; Exhibit 1.) As such, the court disagrees with Defendant that the contract’s terms are insufficiently alleged. Second, Plaintiffs allege their performance. (FAC ¶ 19.) Third, Plaintiffs allege Defendant breached by locking Plaintiffs out of the Property. (FAC ¶¶ 16, 20.) Finally, Defendant alleges resulting damages. (FAC ¶ 22.)

Accordingly, the court OVERRULES Defendant’s demurrer to the First Cause of Action.

Defendant contends this claim fails because Plaintiffs did not sufficiently allege an underlying contract and, if they did, they merely alleged its breach – not facts that Defendant denied Plaintiffs the benefits of the contract.

Every contract contains an implied covenant of good faith and fair dealing that neither party will do anything to interfere with the other party’s right to receive the benefits of the agreement. (Howard v. American Nat’l Fire Ins. Co. (2010) 187 Cal.App.4th 498, 528.)

The elements of a claim for breach of implied covenant of good faith and fair dealing are: (1) the existence of a contractual relationship; (2) an implied duty; (3) breach; and (4) causation of damages. (See, e.g., Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 49; Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395 [“allegations which assert such a claim must show that the conduct of the defendant…demonstrates a failure or refusal to discharge contractual responsibilities, prompted … by a conscious and deliberate act, which unfairly frustrates the agreed common purposes and disappoints the reasonable expectations of the other party thereby depriving that party of the benefits of the agreement. Just what conduct will meet this criteria must be determined on a case by case basis….”].) “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.” (Careau, supra, 222 Cal.App.3d at p. 1395.) Additionally, a plaintiff must allege a “special relationship” between the parties that warrants imposing tort damages for, what is essentially, breach of contract. (Id. at p. 1398-1400.)

Upon reviewing the FAC, Plaintiffs insufficiently stated a claim for breach of the covenant of good faith and fair dealing. First, Plaintiffs did not allege a special relationship with Defendant. Rather, they allege a landlord-tenant relationship. (See FAC ¶ 6.)

Accordingly, the court SUSTAINS Defendant’s demurrer to the Second Cause of Action.

Accordingly, the court OVERRULES Defendant’s demurrer to the Third Cause of Action.

Accordingly, the court OVERRULES Defendant’s demurrer to the Fourth Cause of Action.

Accordingly, the court OVERRULES Defendant’s demurrer to the Fifth Cause of Action.

Accordingly, the court OVERRULES Defendant’s demurrer to the Sixth Cause of Action.

Defendant contends this claim fails because Plaintiffs did not allege facts with the requisite particularity.

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court¿(1996) 12 Cal.4th 631, 638.)¿¿¿

“In California, fraud must be pled specifically; general and conclusory allegations do not suffice…this particularity requirements necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tenders.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469; Perlas v. GMAC Mort., LLC (2010) 187 Cal.App.4th 429, 434 [requiring plaintiffs who claim fraud against a corporation to allege the names of the persons who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written.]) Fraud allegations need not be liberally construed, general pleading of the legal conclusion of fraud is insufficient, and every element of the cause of action for fraud must be alleged fully, factually and specifically. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal. App. 3d 1324, 1331.)

Upon reviewing the Complaint, Plaintiff sufficiently alleged a claim for fraud. First, Plaintiffs identify the representations made by Defendant’s manager, Jack Azad, that occurred in or about January 2023 that Defendant would remediate the Property within one month. (FAC ¶ 9.) Mr. Azad further represented, on behalf of Defendant, that Defendant would reimburse the difference of rent between the Property and the comparable unit Plaintiffs needed to move to during the remediation. (FAC ¶ 11.) Second, Plaintiffs allege knowledge of falsity and intent to defraud via circumstantial evidence. Plaintiffs allege a timeline where Plaintiffs move into the comparable unit, kept following-up on the remediation status, were repeatedly told the remediation efforts were not finished (over several months), were told to agree to a two-month lease of the comparable unit in August 2024 [sic], and were never reimbursed for the rent difference. (FAC ¶¶13-15.) Third, Plaintiffs alleged reasonable reliance because they moved into the comparable unit from the Property. (FAC ¶ 12.) Finally, Plaintiffs alleged resulting damages because Defendant locked them out of the Property and refused to pay the difference in rent for the comparable unit. (FAC ¶¶ 16-17.) Taken together, these show fraud in convincing Plaintiffs to vacate the Property for Defendant to lease it to new parties. (FAC ¶ 16.)

Accordingly, the court OVERRULES Defendant’s demurrer to the Seventh Cause of Action.

Eighth Cause of Action – Unlawful Business Practices – Violation of Bus & Prof. Code § 17200 et seq.

Defendant contends that this claim fails because the allegations are conclusory.

Unfair competition is any unlawful, unfair, or fraudulent business practices or act and unfair, deceptive, untrue, or misleading advertising. (Bus. & Prof. Code § 17200.)¿ A plaintiff needs to identify statutory, regulatory, or decisional law that the defendant has violated.¿ (Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 352.)¿Unfair competition “borrows” violations of other laws and authorizes a separate action pursuant to unfair competition. (See Farmers Ins. Exch. v. Superior Court (1992) 2 Cal.4th 377, 383.) Unfair conduct in unfair competition actions must be violative of public policy and “tethered to specific constitutional, statutory, or regulatory provisions.”¿ (Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 940.) As a statutory cause of action, allegations of unfair business practices must state with reasonable particularity the facts supporting the statutory elements of the violation. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.) The statutory violations must be specifically delineated and said violations must relate to a business activity.¿ (Ibid.)¿¿¿

Upon reviewing the FAC, the court agrees that Plaintiffs insufficiently state a claim for Unlawful Business Practices. Notably, Plaintiffs fail to identify statutory, regulatory, or decisional law that Defendant violated and allege facts supporting the statutory elements of that violation for which they seek recovery in this cause of action.[2]

Accordingly, the court SUSTAINS Defendant’s demurrer to the Eighth Cause of Action.

Defendant contends that this claim fails because Plaintiffs did not allege that Defendant caused the floor, failed to make repairs, or that the flood caused injury or damages.

The elements of a negligence cause of action are duty, breach of that duty, proximate cause, and damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) “ ‘ “[T]he threshold element of a cause of action for negligence is the existence of a duty to use care toward an interest of another that enjoys legal protection against unintentional invasion.” ‘ [Citations.] ‘ “Duty is a question of law for the court.” ’ [Citation.] It is ‘ “to be determined on a case-by-case basis.” ’ [Citations.] ‘ “A duty may arise through statute, contract, or the relationship of the parties.” ’ [Citation.] Additionally, ‘ “California law establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others. [Citation.]” [Citation.] Civil Code section 1714, subdivision (a) provides in relevant part: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” ’[Citation.]” (Shipp v. Western Engineering, Inc. (2020) 55 Cal.App.5th 476, 489-90.)¿

Upon reviewing the FAC, Plaintiffs insufficiently stated a claim for negligence. In particular, Plaintiffs fails to allege facts showing breach and causation.

Accordingly, the court SUSTAINS Defendant’s demurrer to the Ninth Cause of Action.

Defendant contends that this claim fails because Plaintiffs failed to allege extreme and outrageous conduct.

The elements of an intentional infliction of emotional distress (IIED) cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress.¿ (See¿Moncada¿v. West Coast Quartz Corp.¿(2013) 221 Cal.App.4th 768, 780.)¿ To satisfy the element of extreme and outrageous conduct,¿defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’”¿ (Ibid.) (internal citations omitted.)¿¿¿¿¿¿

While there is no bright-line as to what constitutes outrageous conduct and thus this involves a case-by-case analysis, courts can determine whether conduct was sufficiently outrageous at the demurrer stage. (Cochran v. Cochran¿(1998) 65 Cal.App.4th 488, 494.)¿¿Recovery for emotional distress caused by injury to property is permitted in IIED claims. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 203-04.) (internal citations omitted.)

Upon reviewing the FAC, Plaintiffs insufficiently stated a claim for IIED. First, the allegations in this cause of action are conclusory. Second, Plaintiffs did not allege extreme and outrageous conduct. (FAC ¶ 55 [alleging “failure to correct the defective conditions described above and their harassing, oppressed conduct toward Plaintiffs . . . .”])

Accordingly, the court SUSTAINS Defendant’s demurrer to the Tenth Cause of Action.

Defendant contends that this claim fails because there are no facts that Defendant had “care or custody of an elder or dependent adult” or engaged in other conduct identified by Welf. & Ins. Code § 15610.57.

The Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) provides for steep penalties against those who abuse an elder or a dependent adult. Dependent adult abuse includes physical abuse, neglect, isolation, deprivation by a care custodian of necessary goods or services, and financial abuse. (Welf. & Inst. Code, § 15610.07, subd. (a).) Neglect includes failure to assist in personal hygiene, failure to provide medical care for physical and mental health needs, and failure to protect from health and safety hazards. (Welf. & Inst. Code, § 15610.57, subd. (b).)¿¿

[S]everal factors [] must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and (3) denied or withheld goods or services¿necessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury¿(if the plaintiff alleges recklessness). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury “must be pleaded with particularity,” in accordance with the pleading rules governing statutory claims.¿

(Carter v. Prime Healthcare Paradise Valley LLC¿(2011) 198 Cal.App.4th 396, 406-407, citations omitted.)¿¿The “Act does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient. It is the nature of the elder or dependent adult's relationship with the defendant—not the defendant's professional standing—that makes the defendant potentially liable for neglect.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152, emphasis added.) Such a caretaking relationship exists when “a certain party has assumed a significant measure of responsibility for attending to one or more of an elder’s basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.” (Id. at pp. 157-158.) Such a relationship requires more than medical treatment. (See, e.g., Stewart v. Superior Court (2017) 16 Cal.App.5th 87, 102-104 [finding defendant medical provider assumed custodial relationship because decedent could not care for basic need as evidenced by: (1) displaying confusion and sleepiness at the time of admission; (2) communicating by grunting and requiring a feeding tube after admission; and (3) being denied the right of autonomy in making medical decisions by the facility]; Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 405 [finding no custodial relationship because decedent was entirely dependent on her granddaughter for her basic needs such as dressing, feeding, furnishing medications, assisting her to the restroom, and transporting to medical appointments]; Kruthanooch v. Glendale Adventist Med. Ctr. (2022) 83 Cal.App.5th 1109, 1128 [finding no substantial evidence of caretaking relationship because decedent’s basic needs were incidental to the circumscribed medical care provided.])

Upon reviewing the FAC, Plaintiffs failed to state a claim for elder abuse. First, Plaintiffs did not allege facts that Defendant had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care. Indeed, Plaintiffs simply alleged a landlord-tenant relationship. (See, e.g., FAC ¶ 50.)

Accordingly, the court SUSTAINS Defendant’s demurrer to the Eleventh Cause of Action.

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect.¿ (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.)¿ The Plaintiff has the burden of demonstrating that leave to amend should be granted, and that the defects can be cured by amendment. (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349).

Here, Plaintiffs did not file an opposition, let alone request leave to amend. Still, the court will allow leave to amend because the aforementioned defects are reasonably capable to cure.

1. Demurrer to the First, Third, Fourth, Fifth, Sixth, and Seventh Causes of Action is OVERRULED;

2. Demurrer to the Second, Eighth, Ninth, Tenth, and Eleventh Causes of Action is SUSTAINED;

[1] Defendant also demurrers to the punitive damages claims. However, the relief sought is more appropriate for a motion to strike pursuant to CCP § 436. The court therefore disregards this request.

[2] To the extent Plaintiffs would rely on Defendant’s alleged violation of LAMC § 151.9 or Civ. Code § 1940.2 as the statutory basis for their Unlawful Business Practices claim, Plaintiffs still failed to sufficiently allege the statutory elements of those claims and the facts showing violation of those elements in this cause of action.