COJECTO, A CALIFORNIA CORPORATION, ET AL. VS PIXIOR, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.

Tentative Rulings

Case Number: *******1754 Hearing Date: January 21, 2022 Dept: 32

BACKGROUND

On October 30, 2020, Cojecto and David Martinez (collectively “Plaintiffs”) filed a complaint against Pixior, LLC, Yassine Amallal, and Simon Amallal (collectively “Defendants”) alleging (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) fraud, (4) assault, (5) intentional infliction of emotional distress, and (6) declaratory relief. The complaint alleges the following pertinent facts.

Plaintiffs and Defendants entered into a written sublease in July 2020 for 50,000 square feet of warehouse space in Vernon, California. Defendants did not deliver the full 50,000 square feet, instead providing at most 24,000 square feet. Defendants allowed other tenants to occupy the space, and Plaintiffs overpaid for space they could not use. The agreement provided that Plaintiffs were to pay $1.00 per square foot, but Plaintiffs were not obligated to pay for space that was never provided. Plaintiffs were billed $50,000 per month but did not pay the full amount, instead paying a total of $110,000 under protest. For the last six weeks that Plaintiffs used the space, Defendants confiscated Plaintiff’s keys and disallowed Plaintiffs from entering.

Plaintiff Martinez met with the individual Defendants in an attempt to resolve the issue. During the meeting, Defendant Yassine assaulted Martinez by standing up, yelling, and picking up a projector as if to throw it at Martinez. Martinez was in actual fear of being hit by the projector and left the meeting afterwards. To date, Defendants have refused to refund Plaintiffs or provide the full rental space.

On October 4, 2021, this Court granted Defendants’ motion for judgment on the pleadings with leave to amend as to the third and fifth causes of action. The MJOP was denied as to the remaining causes of action. Defendants presently demur to the third and fifth causes of action in Plaintiff’s Second Amended Complaint.

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. (Code Civ. Proc. 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.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc. 430.41, 435.5.) The Court notes that the Moving Party has complied with the meet and confer requirement. (Ning Decl. 5.)

DISCUSSION

a. Third Cause of Action for Fraud

The elements of fraud 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.) Fraud must be pleaded with specificity rather than with general and conclusory allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar, supra, 12 Cal.4th at p. 645.)

Here, Plaintiffs’ fraud claim stems from the allegation that Defendants falsely promised 50,000 square feet of space. (SAC 50-57.) The MJOP was originally granted for lack of specificity. On this demurrer, Defendants reiterate that the SAC still lacks the requisite specificity. (Dem. 7:26-8:6.) Defendants additionally argue that they never promised exactly 50,000 square feet of space because the contract states “approximately” 50,000 square feet. (Dem. 7:6-25.)

First, the fraud claim is based on representations made by Defendant Yassine to Plaintiff Martinez that Pixior would provide 50,000 square feet of space. (SAC 50.) This is consistent with the contract for approximately 50,000 square feet. Furthermore, Plaintiffs allege that they received only 24,000 square feet. (SAC 14.) Even if Defendants never promised to provide exactly 50,000 square feet, it is still fraud to promise approximately 50,000 square feet but only provide half of that. This is not a mere rounding error. Plaintiffs allege that they would not have entered into the agreement had they known Defendants only intended to provide half of the promised footage. (SAC 52.) The terms of the contract are not dispositive on whether fraud occurred.

As to the requisite specificity, Plaintiffs have cured the defect by precisely alleging the who, what, where, when, and how of the alleged misrepresentation. Plaintiffs allege that the promise of 50,000 square feet was made by Defendant Yassine as an agent of Defendant Pixior, to Plaintiff Martinez as an agent of Plaintiff Cojecto. (SAC 50.) The statement was made in June and July of 2020, during the negotiation of the contract. (Ibid.) The statement was made verbally at the lease premises and also in writing. (Ibid.)

In their demurrer, Defendants argue that the allegations are not specific as to the time and manner of the misrepresentations. Specifically, Defendants argue that Plaintiffs failed to allege the exact date of the statements and do not attach any writings that would amend or modify the existing contract. (Dem. 8:1-6.) However, Defendants cite no authority that an exact day must be alleged. Plaintiffs have sufficiently alleged that Defendant Yassine made the misrepresentations in June and July of 2020. As to the manner of the statements, there does not need to be any writing that modifies the contract. Plaintiffs allege that they were induced into signing the contract due to the promise of 50,000 square feet. (SAC 52.) This is a separate issue from whether the contract was modified. Additionally, as discussed above, the alleged promise of 50,000 square feet does not contradict the contract for “approximately” 50,000 square feet.

Thus, the demurrer is OVERRULED as to the third cause of action.

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 establish: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing, or reckless disregard of the probability of causing, emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.)

“‘[I]t is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances.’” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128 [internal citations omitted].) “Severe emotional distress [is] emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” (Fletcher v. Western Life Insurance Co. (1970) 10 Cal.App.3d 376, 397.)

The MJOP was initially granted because Plaintiffs failed to allege severe emotional distress. In their SAC, Plaintiffs establish the outrageousness of Defendant Yassine’s conduct and the fear that her actions caused Plaintiff Martinez. (SAC 57-69.) However, the fear that Plaintiff Martinez experienced during the assault is insufficient. While it would satisfy the apprehension element of assault, it is not emotional distress of a “substantial quantity or enduring quality.” (See Fletcher, supra, 10 Cal.App.3d at p. 397.) Plaintiffs repeatedly allege that Martinez suffered severe emotional distress but do not identify any lasting emotional harm beyond the fear that he experienced in the moment. (Ibid. [temporary emotions such as embarrassment or anger do not constitute severe emotional distress].)

Therefore, the demurrer is SUSTAINED without leave to amend as to the fifth cause of action.

CONCLUSION

Defendants’ demurrer is SUSTAINED without leave to amend as to the fifth cause of action and OVERRULED as to the third cause of action.

b'

Case Number: *******1754 Hearing Date: October 4, 2021 Dept: 32

BACKGROUND

a. Procedural History

On October 30, 2020, Cojecto and David Martinez (collectively “Plaintiffs”) filed a complaint against Pixior, LLC, Yassine Amallal, and Simon Amallal (collectively “Defendants”) alleging (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) fraud, (4) assault, (5) intentional infliction of emotional distress, and (6) declaratory relief. Defendants filed an answer on January 8, 2021. On January 19, 2021, Plaintiffs improperly filed a First Amended Complaint (“FAC”) without stipulation or leave of court. That pleading is ineffective, and the operative complaint remains the original one filed in October 2020.

After the parties failed to stipulate, Plaintiffs filed a motion for leave to amend on August 24, 2021. On September 10, Defendants filed a motion for judgment on the pleadings against the first through fifth causes of action in the original complaint. (Mtn. 2:9-22.) These two motions are presently before the Court.

b. Factual Allegations

Plaintiffs and Defendants entered into a written sublease in July 2020 for 50,000 square feet of warehouse space in Vernon, California. (Compl. ¶ 8.) Defendants did not deliver the full 50,000 square feet, instead providing at most 24,000 square feet. (Id., ¶¶ 12-14.) Defendants allowed other tenants to occupy the space, and Plaintiffs overpaid for space they could not use. (Id., ¶ 15.) The agreement provided that Plaintiffs were to pay $1.00 per square foot, but Plaintiffs were not obligated to pay for space that was never provided. (Id., ¶ 18.) Plaintiffs were billed $50,000 per month but did not pay the full amount, instead paying a total of $110,000 under protest. (Id., ¶ 19.) For the last six weeks that Plaintiffs used the space, Defendants confiscated Plaintiff’s keys and disallowed Plaintiffs from entering. (Id., ¶ 21.)

Plaintiff Martinez met with the individual Defendants in an attempt to resolve the issue. (Compl. ¶ 23.) During the meeting, Defendant Yassine assaulted Martinez by standing up, yelling, and picking up a projector as if to throw it at Martinez. (Id., ¶ 24.) Martinez was in actual fear of being hit by the projector and left the meeting afterwards. (Ibid.) To date, Defendants have refused to refund Plaintiffs or provide the full rental space. (Id., ¶ 25.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc. ;; 430.41, 435.5.) The Court notes that the Moving Party has complied with the meet and confer requirement. (Farivar Reply Decl. ¶ 11, Ex. 4.)

DISCUSSION

a. First Cause of Action for Breach of Contract

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

Here, Plaintiffs have pled that (1) they entered into a written lease agreement for 50,000 square feet of warehouse space, (2) that they paid for the space provided and did not have to pay for space not provided, (3) that Defendants failed to provide the amount of space agreed upon, and (4) that Plaintiffs overpaid and were unable to fulfill other business contracts that depended on having the full 50,000 square feet of storage space. (Compl. ¶¶ 8, 15, 16, 19.) Therefore, Plaintiffs have adequately pled a cause of action for breach of contract. The motion for judgment on the pleadings is DENIED as to the first cause of action.

b. Second Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing

“The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party’s right to receive the benefits of the agreement actually made.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-350.) As discussed above, Plaintiffs have adequately alleged the existence of a written agreement and its essential terms. Plaintiffs further allege that Defendants entered into the agreement whilst having already leased part of the space to third parties, thus unfairly frustrating Plaintiff’s right to receive the full 50,000 square feet as agreed. (Compl. ¶ 44.) Thus, Plaintiffs have sufficiently pled breach of the implied covenant of good faith and fair dealing. The motion for judgment on the pleadings is DENIED as to the second cause of action.

c. Third Cause of Action for Fraud

Fraud must be pleaded with specificity rather than with general and conclusory allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Here, Plaintiffs’ allegations are insufficiently specific to satisfy the heightened pleading requirement. The complaint merely alleges that “Defendants stated to Plaintiff the promise for 50,000 square feet and represented that the same is available within the Premises.” (Compl. ¶ 50.) This does not specify who made the misrepresentation or how it was made. Plaintiffs’ proposed FAC does not rectify this defect. Additionally, the fraud action is derivative of the breach of contract action in that Plaintiffs did not receive 50,000 square feet as promised. Thus, the motion for judgment on the pleadings is GRANTED without leave to amend as to the third cause of action.

d. Fourth Cause of Action for Assault

“The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.) “The tort of assault is complete when the anticipation of harm occurs.” (Kiseskey v. Carpenters’ Trust for Southern California (1983) 144 Cal.App.3d 222, 232.) Hence, no physical contact or physical injury need ever occur.

Here, Plaintiffs have alleged that Defendant Yassine picked up a projector in a threatening manner as if to throw it, that Plaintiff Martinez feared being hit by the projector, that Martinez did not consent, and that Yassine’s conduct caused Martinez pain and suffering. (Compl. ¶¶ 61-65.) Thus, Plaintiffs have adequately pled assault. The motion for judgment on the pleadings is DENIED as to the fourth cause of action.

e. 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 establish: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing, or reckless disregard of the probability of causing, emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.)

“‘[I]t is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances.’” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128 [internal citations omitted].) “Severe emotional distress [is] emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” (Fletcher v. Western Life Insurance Co. (1970) 10 Cal.App.3d 376, 397.)

Here, Plaintiffs fail to allege severe emotional distress. The complaint merely states that Defendant Yassine’s conduct caused “fear” and “severe emotional distress.” (Compl. ¶ 70.) The proposed FAC contains the same defect and adds no additional facts on this point. Thus, the motion for judgment on the pleadings is GRANTED without leave to amend.

CONCLUSION

Defendants’ motion for judgment on the pleadings is GRANTED without leave to amend as to the third and fifth causes of action and DENIED in all other respects. This disposes of Plaintiffs’ motion for leave to amend.