Judge Upinder S. Kalra, Case Number: 24STCV33038, Date: 2025-05-27 Tentative Ruling

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1. Demurrer to the Fourth, Sixth, and Seventh Causes of Action for failure to state sufficient facts to constitute a cause of action and for uncertainty.

3. Plaintiff to file an amended Complaint within 21 days’ notice of this ruling.

On November 8, 2024, Plaintiff Fred Behfarin (Plaintiff) filed a Verified Complaint against Defendants Jason Zakarya, Benjamin Zakarya, and Lida Zakarya (Defendants) with eight causes of action for: (1) Breach of Contract, (2) Breach of Indemnity Agreement, (3) Breach of Implied-In-Fact Contract / Promissory Estoppel, (4) Fraud – Intentional Misrepresentation, (5) Negligent Misrepresentation, (6) Breach of Implied Covenant of Good Faith and Fair Dealing, (7) Intentional Infliction of Emotional Distress, and (8) Negligent Infliction of Emotional Distress.

According to the Complaint, this matter concerns Plaintiff’s residential lease of property located at 15376 Valley Vista Blvd., Sherman Oaks, CA 91403 (the Property) leased and/or guaranteed by Defendants. Plaintiff alleges that Defendant Jason[2] applied to lease the Property and his parents, Benjamin and Lida, signed guarantees. Plaintiff further alleges that Jason breached the lease by using the Property to plant and produce marijuana instead of occupying it to establish a family, wrote bad checks, stole custom cabinets, and vandalized the Property. Plaintiff alleges that Defendants Benjamin and Lida refused to pay rent or cover property damages as agreed.

On February 25, 2025, Defendants filed the instant demurrer with motion to strike. On May 19, 2025, Defendants filed replies. The court has not received Plaintiff’s oppositions.

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). The meet and confer requirement also applies to motions to strike. (CCP § 435.5.) Here, the parties met and conferred via telephone on February 6, 2025. (Coulston Decl. ¶ 4-5.) Accordingly, this requirement is 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.)¿

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., (CCP) § 436(a).) The court may also strike 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. (Id., § 436(b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id.¿§¿437.)¿“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman¿(1998) 63 Cal.App.4th 761, 768.)¿¿

Irrelevant matter includes: allegations not essential to the claim or defense, allegations “neither pertinent to nor supported by an otherwise sufficient claim or defense,” or a demand for judgment “requesting relief not supported by the allegations of the complaint or cross-complaint.” (CCP § 431.10(b).)

Defendants contend that Plaintiff failed to allege fraud with the requisite particularity. Specifically, Plaintiff failed to allege the misrepresentations. The court does not have Plaintiff’s opposition. Defendant reiterates its arguments on reply.

“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 insufficiently alleged a claim for fraud. First, as to Defendant Jason, Plaintiff alleges that Jason represented that he would lease the Property to establish a family, not for commercial purposes, would pay his rent, and return the Property to its condition at the end of the tenancy. (Compl. ¶¶ 9, 13, 21, 23, 49, 51.) Second, as to Defendants Benjamin and Lida, Plaintiff alleges that they represented they would indemnify Jason for any rent payments or property damage. (Compl. ¶¶ 14, 15.) Third, Plaintiff alleges he relied on these representations to lease the Property to Jason. (Compl. ¶¶ 10, 53.) Fourth, Plaintiff alleges each Defendants’ intent to defraud via circumstantial evidence – namely, the multiple bad checks, extensive property damage, and refusal to honor the guarantee. (Compl. ¶¶ 21, 31, 32.) However, this insufficiently alleges intent at the time of contracting to defraud Plaintiff.

Accordingly, the court SUSTAINS Defendants’ demurrer to the Fourth Cause of Action.

Sixth Cause of Action: Breach of Implied Covenant of Good Faith & Fair Dealing

Defendants contend that this claim fails because Plaintiff received the anticipated benefits under the lease and that Defendants Benjamin and Lida did not contract with Plaintiff. The court does not have Plaintiff’s opposition. Defendant reiterates its arguments on reply.

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 Complaint, Plaintiff insufficiently alleged a claim for breach of the implied covenant of good faith and fair dealing. First, Defendants’ arguments miss the mark. Plaintiff did allege contractual relationships with each Defendant and subsequent breach. (Compl. ¶¶ 10 [Jason lease], 14 [Benjamin & Lida Guarantee]; 21 [Jason damages], 15 [Benjamin & Lida refuse to cover damage].) However, as articulated in Careau, this claim is duplicative of his breach of contract claims and has not alleged a “special relationship” with the Defendants.

Accordingly, the court SUSTAINS Defendants’ demurrer to the Sixth Cause of Action.

Defendants contend that this claim fails because Plaintiff has not alleged extreme and outrageous conduct via the breach of contract conduct. The court does not have Plaintiff’s opposition. Defendant reiterates its arguments on reply.

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 Complaint, Plaintiff insufficiently alleged a claim for IIED. Notably, Plaintiff failed to allege facts showing extreme and outrageous conduct. Instead, Plaintiff alleged Defendant Jason wrote bad checks, stole custom cabinets from the Property, and vandalized the Property while Defendants Benjamin and Lida refused to honor a guarantee. (Compl. ¶¶ 13, 15.) This is not extreme and outrageous conduct.

Accordingly, the court SUSTAINS Defendants’ demurrer to the Seventh Cause of Action.

Defendants seek to strike the following portions of the Complaint pertaining to punitive damages because Plaintiff insufficiently alleged malice, oppression, or fraud:

1. Paragraph 56, page 12, lines 10-15, any references to fraud, oppression and malice

with intent to vex, injure, harass and annoy Plaintiff in conscious disregard of

2. Paragraph 74, page 14, lines 27-28 and page 15, lines 1-2, any reference to “done

3. Paragraph 79, page 15, lines 23-25, any reference to “done maliciously and with

4. Prayer of Complaint - Number (3), page 16, line 11 any reference to Exemplary and

5. Prayer of Complaint - Number (4), page 16, line 15 any reference to Exemplary and

6. Prayer of Complaint - Number (5), page 16, line 19 any reference to Exemplary and

7. Prayer of Complaint - Number (6), page 16, line 23 any reference to Exemplary and

8. Prayer of Complaint - Number (7), page 16, line 28 any reference to Exemplary and

9. Prayer of Complaint - Number (8), page 17, line 4 any reference to Exemplary and

To obtain punitive damages, a plaintiff must plead sufficient facts in support of punitive damages.¿ (See¿Hilliard v. A.H. Robins Co.¿(1983) 148 Cal.App.3d 374, 391-92.)¿ In addition,¿punitive damages are allowed only where “it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.”¿ (Civ. Code, § 3294(a).)¿ Courts have viewed despicable conduct as conduct “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (Scott v. Phoenix Schools, Inc., (2009) 175 Cal.App.4th 702, 715.) Further, Civil Code § 3294(c) provides the definition of malice, oppression, and fraud. Malice is “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Ibid.) Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Ibid.) Fraud is “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”¿(Ibid.)¿

Upon reviewing the Complaint, Plaintiff insufficiently alleged facts warranting punitive damages. Notably, Plaintiff’s factual allegations are writing bad checks, property damage, and failing to honor a guarantee. (Compl. ¶¶ 13, 15.) This is not malice, oppression, or fraudulent conduct warranting punitive damages.

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, the court has not received Plaintiff’s opposition and does not know if Plaintiff requested leave to amend. However, the aforementioned defects are reasonably capable of cure.

3. Plaintiff to file an amended Complaint within 21 days’ notice of this ruling.

[1] The court has not received an opposition from Plaintiff. However, Defendants’ reply briefs reference such oppositions. It appears to the court, then, that Plaintiff served oppositions on Defendants but neglected to file them with the court.

[2] Since the Defendants share the same last name, the court will refer to them individually by their first names. This is for clarity and not intended as disrespect.