Judge Upinder S. Kalra, Case Number: 24STCV33307, Date: 2025-05-20 Tentative Ruling

CASE NAME: Morning Star, LLC, et al. v. Sea Star Estates Homeowners Association, et al.

1. Demurrer to the Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Causes of Action for failing to state sufficient facts to constitute a cause of action.

1. Demurrer to the Fourth, Fifth, Sixth, Ninth, Tenth, and Eleventh Causes of Action are SUSTAINED;

4. Plaintiffs to file their amended Complaint within 21 days’ notice of this ruling.

On December 17, 2024, Plaintiffs Morning Star, LLC and Patrick Nazemi (Plaintiffs) filed a Complaint against Defendants Sea Star Estates Homeowners Association, Hovsep Kouzouyan, Hedayat Ahmadpour, and Claire Cabrey (Defendants) with eleven causes of action for: (1) Violation of Civ. Code § 5100(a)(2); (2) Violation of Civ. Code §§ 5500 and 5501; (3) Breach of Bylaws; (4) Declaratory Relief (Derivative Cause of Action); (5) Fraud (Derivative Cause of Action); (6) Fraud; (7) Trespass; (8) Trespass to Timber; (9) Negligence; (10) Intentional Infliction of Emotional Distress; and (11) Negligent Infliction of Emotional Distress.

According to the Complaint, Plaintiff Morning Star owns property, where Plaintiff Nazemi resides, located at 6368 Sea Star Drive, Malibu, California (the Property) in the Sea Star Estates subdivision. Plaintiffs allege that Defendant Sea Star violated various Civil Code sections pertaining to HOA Board elections, that the individual defendants hold themselves out as validly elected Board members or agents when they are not, fraudulently enter contracts, fraudulent approve architectural plans, allowed another property owner to cut down Plaintiffs’ trees, change the gate codes, prohibit access to tennis courts, and otherwise frustrate Plaintiffs’ use of the Property.

On February 14, 2025, Defendants Hovsep Kouzouyan and Hedayat Ahmadpour (Moving Parties) filed the instant demurrer to the Complaint.

On March 18, 2025, Plaintiff filed a Motion re: Appointment of Receiver for Sea State Estates Home Owners Association which the court GRANTED.

On March 24, 2025, Defendants Sea Star Estates Homeowners Association and Claire Cabrey filed a demurrer with motion to strike.

On May 8, 2025, Plaintiffs filed an opposition to the instant demurrer.[1] On May 13, 2025, Moving Parties filed a reply.

The court GRANTS Plaintiffs’ request for judicial notice. (Evid. Code § 452(d), (h); See Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23,37.) However, the court only takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)¿¿

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, Moving Parties indicate they met and conferred by telephone. (Kulik Decl. ¶ 2(a).) There is no additional information on this Judicial Council form indicating the scope of the meet and confer. The court cannot determine whether the meet and confer was sufficient. Still, failure to meet and confer is not a sufficient ground to overrule or sustain a demurrer. (CCP § 430.41(a)(4).)¿¿

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.)

Moving Parties contend that this claim fails because Plaintiffs failed to sufficiently allege futility pursuant to Corps. Code § 800(b)(2). Moving Parties further contend that the limitations period to challenge an election expired and that Plaintiff should be estopped from making this argument.

Plaintiffs argue they sufficiently alleged futility because there is no valid Board of Directors and the alleged wrongdoers are sitting as purported Board members. Plaintiffs further argue that estoppel is an improperly raised fact question.

Moving Parties reply that Nazemi lacks standing, reiterate their arguments of insufficient facts showing futility and equitable estoppel. Moving Parties further argue this is a moot point in light of the court appointing a receiver and the management company’s resignation.[2]

Under Corps. Code section 800(b)(2), the plaintiff bringing a shareholder derivative suit must “allege[] in the complaint with particularity” demand to the board or reason for not doing so (demand futility). (See also, Apple Inc. v. Superior Court (2017) 18 Cal.App.5th 222, 232-233.) “[G]eneral averments . . . will not suffice.” (Id. at p. 233.)

Upon reviewing the Complaint, Plaintiffs insufficiently alleged standing. First, Plaintiff Nazemi is not part of this cause of action. The court therefore disregards the argument that he lacks standing. Second, Plaintiff Morning Star alleges that bringing notice of the derivative claim to Moving Parties would be futile because they challenge the validity of their role as board members. (Compl. ¶ 51.) The Apple Court identifies two tests used in cases where a plaintiff challenges board members’ business decisions. (Apple, supra, 18 Cal.App.5th at p. 233.) Here, however, Plaintiff does not challenge a business decision but the very fact that the two purported board members are even board members at all. (See generally, Compl.) Nevertheless, the allegations in the Complaint are conclusory, not facts.

Moving Parties contend that Plaintiffs failed to allege this claim with the requisite particularity, especially pertaining to reasonable reliance or damages. Plaintiffs argue that they have standing under CCP § 382 and otherwise sufficiently plead fraud.[3] Moving Parties reply that Nazemi lacks standing. Moving Parties reply that Plaintiffs’ authority is inapposite because, here, Plaintiffs are pursuing a derivative action on behalf of the HOA and not a class on behalf of the homeowners. Moving Parties reiterate their claim that the fraud claim lacks particularity.

Here, the court adopts its reasoning for standing articulated above and declines to analyze the particularity argument at this time.

Moving Parties contend that this claim also lacks the requisite particularity. Plaintiffs argue they did sufficiently allege this claim. Moving Parties reiterate that this claim lacks 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, Plaintiffs insufficient alleged a claim for fraud. Notably, Plaintiffs did not allege intent to defraud.

Moving Parties contend this claim fails because there are no facts that they knew the neighbor would be trespassing. Moving Parties further contend that Plaintiff Nazemi lacks standing to bring this claim because he is not an owner.

Plaintiffs argue that they sufficiently alleged knowledge by Moving Parties who had been involved with the common and easement areas of the Sea Star Estates subdivision for decades and that Plaintiff Nazemi has standing as trustee of the trust that owns Plaintiff Morning Star and as the Property’s occupant in possession. Finally, Plaintiffs argue that they alleged that Moving Parties cut down other trees and vegetation on their property.

Moving Parties reply that Nazemi lacks standing and that Plaintiffs do not know if the tree was even on their property.

“Liability may ... be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person's own conduct, separately considered, constitutes a breach of duty to the third person.” (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 846.) “Advice or encouragement to act operates as a moral support to a tortfeasor and if the act encouraged is known to be tortious it has the same effect upon the liability of the adviser as participation or physical assistance.... It likewise applies to a person who knowingly gives substantial aid to another who, as he knows, intends to do a tortious act.” (Rest.2d Torts, § 876, com. d, p. 317.)

The elements for trespass are: 1) plaintiff's ownership, or control, of the property; 2) defendant's intentional, reckless, or negligent, entry onto property; 3) lack of permission for entry, or actions in excess of permission; 4) harm; and 5) the actions were a substantial factor in causing harm.¿ (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal. App. 5th 245, 262 (citing CACI 2000).) A person “in actual possession” or “occupation” of the property is “the proper person” to bring a trespass action. (Veiseh v. Stapp (2019) 35 Cal.App.5th 1099, 1105.)

Upon reviewing the Complaint, Plaintiffs sufficiently stated a claim for aiding and abetting trespass. First, Plaintiff Nazemi alleged he resides at the Property, moved there in September 2020, and has been caring for the trees. (Compl. ¶ 2, 60.) Plaintiff Nazemi therefore has standing to bring this claim. Second, Plaintiffs allege that Moving Parties “approved a request by the owners of Lot 16 . . . to cut down mature twin-trunk palm tree . . . located within” Plaintiff Morning Star’s Property. (Compl. ¶ 58.) This is an allegation of substantial assistance. Third, Plaintiffs further allege that the neighbors did in fact come onto their property and cut the tree down. (Compl. ¶ 62.) Finally, Plaintiffs allege resulting property damage to their water lines and irrigation system with resulting water damage. (Ibid.) The court is not persuaded by Moving Parties’ argument that Plaintiffs’ lack an element that Moving Parties’ knew the tree was on Plaintiffs’ property. Indeed, trespass merely requires intent to enter the land. (Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1480.) This is alleged.

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

For the same reasons as above, the court OVERRULES the demurrer to the Eighth Cause of Action.

Moving Parties contend that Plaintiff failed to allege duty because, as Board members, Moving Parties owe a duty to the Association and not to the individual homeowners.[4]

Plaintiff argues that Moving Parties are not protected because they are not HOA directors or officers and they are nevertheless liable for their own tortious conduct. Plaintiffs further argue that directors of a homeowners association owe fiduciary duties to the homeowners, too. As such, Plaintiffs argue they did allege breach of a duty.

A claim for negligence requires: (1) a legal duty owed to plaintiffs to use due care; (2) breach of that duty; (3) causation; and (4) damages. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)¿

Here, Plaintiffs insufficiently alleged a claim for negligence as to Plaintiff Nazemi. Notably, Plaintiffs allege that Moving Parties owed a duty as “[r]easonably prudent landowners or managers” not to allow someone else (Lot 16’s owner) to enter Plaintiffs’ land to cut the trees. (See Compl. ¶¶ 78, 79.) As Plaintiffs zealously advocate, Moving Parties are not Board members. (Opp. 15:7-14.) Therefore, Plaintiffs argue that Moving Parties have a duty not to trespass. (See Compl. ¶¶ 77-79.) This is duplicative of Plaintiff Nazemi’s trespass claim. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [finding a demurrer sustained without leave to amend of a duplicative cause of action proper.])

Accordingly, the court SUSTAINS the demurrer to the Ninth Cause of Action as to Plaintiff Nazemi only.

Moving Parties contend that this claim fails because Plaintiff did not allege outrageous conduct. Plaintiffs argue this is a factual determination inappropriate at the demurrer stage. Moving Parties reply that Nazemi lacks standing and that Plaintiffs have dismissed this claim.[5]

The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct (2) directed to the plaintiff by defendant, (3) with the intention of (4) causing, or reckless disregard of the probability of causing, (5) severe or extreme emotional distress. (Christensen v. Superior Court (1991) 54 Cal. 3d 868, 903.) For conduct to be outrageous it must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (See Ess v. Eskaton Properties, Inc. (2002) 97 Cal. App. 4th 120, 130.) A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51.)¿

“Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (McDaniel v.¿Gile¿(1991) 230 Cal.App.3d 363, 372.)¿¿

Upon reviewing the Complaint, Plaintiff Nazemi has insufficiently alleged a claim for IIED. Notably, Plaintiff Nazemi alleges the following conduct: “denying . . . access to Sea Star Estate HOA Board of Director meetings; secretly changing Morning Star’s assigned gate code to prevent and impede . . . access . . . ; altering the name displayed for the Morning Star Property at the front gate . . . ; redirecting the phone number linked to the front gate . . . “ and “authorizing . . . the trespass” to cut the trees. (Compl. ¶ 83.) These are not the sort of allegations that “exceed all bounds of that usually tolerated in a civilized community.” (Hughes, supra, at p. 1050-51.)¿

Moving Parties contend that this claim fails because Plaintiff did not allege breach of a legal duty or a physical injury. Plaintiffs reiterate that directors of homeowners associations owe fiduciary duties to the individual homeowners and that Moving Parties misstate the law. Moving Parties reply that Nazemi lacks standing. Moving Parties reply that Plaintiffs did not allege facts they were a direct victim.

Negligent infliction of emotional distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply. (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.) The existence of a duty is a question of law. (Ibid.) The distinction between the "bystander" and the "direct victim" cases is found in the source of the duty owed by the defendant to the plaintiff. (Ibid.) "Bystander" claims are typically based on breach of a duty owed to the public in general, whereas a right to recover for emotional distress as a "direct victim" arises from the breach of a duty that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of the defendant's preexisting relationship with the plaintiff. (Ibid.) Thus, the negligence at issue must be directed primarily at the plaintiff. (Id., at 131.)

Nevertheless, negligent infliction of emotional distress is not an independent tort; it is merely convenient terminology descriptive of the context in which the negligence occurred. (Long v. PKS, Inc. (1993) 12 Cal.App.4th 1293, 1297.) Damages for severe emotional distress are recoverable in a negligence action when they result from the breach of a duty owed to the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two. (Ibid.) If a cause of action is otherwise established, it is settled that damages are given for mental suffering naturally ensuing from the complained of acts. (Id.)

Accordingly, the court SUSTAINS the 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 requested leave to amend and the aforementioned defects are reasonably capable of cure.

1. Demurrer to the Fourth, Fifth, Sixth, Ninth, Tenth, and Eleventh Causes of Action are SUSTAINED;

4. Plaintiffs to file their amended Complaint within 10 days’ notice of this ruling.

[1] Plaintiffs indicate this is a corrected opposition but the court does not have any other oppositions on file.

[2] The property management’s resignation is a factual item outside of the Complaint and not subject to judicial notice. The court therefore disregards it.

[3] The court disregards the standing argument as irrelevant.

[4] Moving Parties concede that Plaintiff Morning Star can ring this claim. (Demurrer 14:9-10.) Moving Parties grouped the negligence claim with the trespass claims because, Moving Parties argue, they are rooted in the same harm. (Demurrer 14:4-6.)

[5] The court does not have record of a dismissal.