Demurrer; Motion to Strike; Motion for Access
defend against third party lawsuits, not for damages to the property resulting from the insured’s faulty work on the project. (ROA 207.) Notably, Plaintiffs do not state the insurance policy was unavailable at the time they responded to the RFAs. Plaintiffs’ position was clearly untenable and unreasonable. Had Plaintiffs’ counsel simply read the policy or conducted routine research, Plaintiffs would have realized they could not prevail at trial on the insurance coverage issue. Defendant has shown entitlement to reasonable attorney fees.
Nevertheless, Defendant failed to show the attorney fees incurred were reasonable. Code of Civil Procedure section 2033.420 allows “reasonable expenses” in proving matters in RFA true, including “reasonable attorney’s fees.” (Code of Civ. Proc. § 2033.420, subd. (a)[emphasis added].) The party seeking attorney’s fees is not entitled to all hours they claim in an attorney fee request and must prove that the hours sought are reasonable and necessary. (Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1320.) While detailed billing timesheets are not required, the declaration of counsel should set forth the reasonable hourly rate, the number of hours worked and the tasks performed. (Id.)
Here, defense counsel’s declaration merely states the total amount of fees incurred, without any information as to time spent, hourly rates or tasks performed. As such, the Court cannot determine whether the fees incurred were reasonable, and Defendant failed to meet its moving burden. While Counsel does state his billing rate for purposes of drafting the motion for attorney fees, those fees are not incurred in proving the truth of the matter in the RFAs and Defendant fails to cite to any authority such fees are recoverable under Code of Civil Procedure section 2033.420.
In its reply, Defendant requests the opportunity to submit further evidence regarding the fees sought. The Court grants the request, and hereby CONTINUES the hearing on the motion for attorney fees to July 20, 2026, at 2:00 p.m. Defendant to submit further evidence no later than July 6, and Plaintiff may submit a further response no later than July 10.
Counsel for Plaintiffs shall give notice. 10 Mahgerefteh Demurrer vs. Garza Defendant Steven Anthony Garza’s (“Defendant”) demurrer to pro per plaintiff Nasser Mahgerefteh’s (“Plaintiff”) Third Amended Complaint (“TAC”) is SUSTAINED in part and OVERRULED in part.
Sustained as to causes of action (“COA”) Nos. 2 – 3, 5 – 6, and 8 – 12.
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Overruled as to COA Nos. 1, 4, and 7.
Defendant demurs to all 12 causes of action (“COA”) in the TAC on the basis that they fail to sate sufficient facts and are uncertain. (Civ. Proc. Code § 430.10(e) and (f).) It should be noted Defendant made almost no specific arguments in the demurer as to most of the COA.
1) COA No. 1 – Breach of Contract
“To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendant's breach and resulting damage. [Citation.] If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th 299, 307.)
Plaintiff alleged Plaintiff and Defendant entered a lease contract with Defendant for the rental of the Property at $4,800/mo. (TAC p. 18.) Defendant stopped paying rent on 12/04/23, and vacated the Property on 09/12/24. Plaintiff has been damaged in the amount of $41,890 in unpaid rent plus accrued interest. A copy of the contract was attached as Ex.
1.
Plaintiff has pled sufficient facts to support this COA, and it is not uncertain. The demurrer is OVERRULED as to this COA.
2) COA No. 2 – Damages
‘Damages’ is not a separate COA, but rather an element to other COA. Plaintiff only states he is entitled to recover damages to the Property and that he is still investigating. (Complaint pp. 19-20.) Plaintiff does not provide any other allegations.
Plaintiff has not pled sufficient facts to support this COA, and it is uncertain. The demurrer is SUSTAINED as to this COA with leave to amend.
3) COA No. 3 – Extortion
“(a) Every person who, with intent to extort property or other consideration from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519 is punishable in the same manner as if such property or other consideration were actually obtained by means of such threat. . .” (Penal Code § 523.)
“Fear, such as will constitute extortion, may be induced by a threat of any of the following: 1. To do an unlawful injury to the person or property of the individual threatened or of a third person.
2. To accuse the individual threatened, or a relative of his or her, or a member of his or her family, of a crime.
3. To expose, or to impute to him, her, or them a deformity, disgrace, or crime.
4. To expose a secret affecting him, her, or them.
5. To report his, her, or their immigration status or suspected immigration status.” (Penal Code § 519.)
Here, Plaintiff alleged Defendant threatened in writing that unless Plaintiff paid Defendant a large sum of money, Defendant would extend the unlawful detainer (“U.D.”) case and avoid paying rent. (TAC pp. 20-21.) Defendant also allegedly told Plaintiff’s property manager Defendant would end his tenancy peacefully is Plaintiff paid Defendant $100,000. No copy of the alleged letter was attached to the TAC nor were the specific contents of the letter provided.
Plaintiff has not pled sufficient facts to support this COA. The demurrer is SUSTAINED as to this COA with leave to amend.
4) COA No. 4 – Abuse of Process
“To establish a cause of action for abuse of process, a plaintiff must plead two essential elements: that the defendant (1) entertained an ulterior motive in using the process and (2) committed a wilful act in a wrongful manner.” (Coleman v. Gulf Ins. Grp. (1986) 41 Cal. 3d 782, 792.)
Plaintiff alleged Defendant filed a frivolous motion to quash service of summons twice in March 2024 and 06/12/24 (ROA 10) to delay the U.D. case. There is no reference or evidence supporting a March 2024 motion being filed as this matter given the original complaint was not filed until 06/03/24. There is no evidence of a different action being filed by Plaintiff. As for the June 2024 motion, that was taken off calendar by Defendant on or prior to the date of the 07/08/24 hearing. (ROA 45.) During that time Defendant also filed a demurrer and motion to strike the complaint on 07/03/24. (ROA 50, 53.)
Plaintiff has pled sufficient facts to support this COA at least as to the 06/12/24 motion, and it is not uncertain. The demurrer is OVERRULED as to this COA.
5) COA No. 5 – Fabrication of False Evidence
This COA is uncertain as there is no “fabrication of false evidence” COA. Plaintiff alleged Defendant fabricated evidence by sabotaging plumbing, failing to report leaks, removing rodent bait stations, exposing live wires to environmental damage, causing sewage overflows, applying mold samples to wet drywall to artificially cultivate mold growth, and intentionally stuffing paper towels in sewer clean out and leaving water running. Plaintiff made no allegations as to whom Defendant allegedly presented the false evidence, to what purpose, and how Plaintiff was damaged by the alleged false evidence.
Plaintiff has not pled sufficient facts to support this COA, and it is uncertain. The demurrer is SUSTAINED as to this COA with leave to amend.
6) COA No. 6 – Fraud
“The elements for the cause of action for constructive fraud are: (1) fiduciary relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury (causation).” (Stokes v. Henson (1990) 217 Cal. App. 3d 187, 197.)
Plaintiff merely parroted the elements of this COA without providing specific facts, reliance, and damages.
Plaintiff has not pled sufficient facts to support this COA. The demurrer is SUSTAINED as to this COA with leave to amend.
7) COA No. 7 – Violation of Civil Code §§ 1954
“(a) A landlord may enter the dwelling unit only in the following cases: (1) In case of emergency. (2) To make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, . . . or contractors or to make an inspection pursuant to subdivision (f) of Section 1950.5. ... (4) Pursuant to court order. (5) For the purposes set forth in Chapter 2.5 (commencing with Section 1954.201). (6) To comply with the provisions of Article 2.2 (commencing with Section 17973) of Chapter 5 of Part 1.5 of Division 13 of the Health and Safety Code. (b) Except in cases of emergency or when the tenant has abandoned or surrendered the premises, entry may not be made during other than normal business hours unless the tenant consents to an entry during other than normal business hours at the time of entry. (c) The landlord may not abuse the right of access or use it to harass the tenant. (d)(1) Except as provided in subdivision (e), or as provided in paragraph (2) or (3), the landlord shall give the tenant reasonable notice in writing of his or her intent to enter and enter only during normal business hours.
The notice shall include the date, approximate time, and purpose of the entry. The notice may be personally delivered to the tenant, left with someone of a suitable age and discretion at the premises, or, left on, near, or under the usual entry door of the premises in a manner in which a reasonable person would discover the notice. Twenty-four hours shall be presumed to be reasonable notice in absence of evidence to the contrary. The notice may be mailed to the tenant. Mailing of the notice at least six days prior to an intended entry is presumed reasonable notice in the absence of evidence to the contrary. ... (3) The tenant and the landlord may agree orally to an entry to make agreed repairs or supply agreed services.
The agreement shall include the date and approximate time of the entry, which shall be within one week of the agreement. In this case, the landlord is not required to provide the tenant a written notice. (e) No notice of entry is required under this section: (1) To respond to an emergency. (2) If the tenant is present and consents to the entry at the time of entry. (3) After the tenant has abandoned or surrendered the unit.” (Civ. Code § 1954.)
Plaintiff alleged Defendant refused Plaintiff and Plaintiff’s repairman’s entry onto the Property on 34 separate occasions despite 24 and 48 hours notices and instead Defendant demanded a court order each time Plaintiff wanted to enter the Property. (TAC pp. 11, 14, 27.)
Plaintiff has pled sufficient facts to support this COA, and it is not uncertain. The demurrer is OVERRULED as to this COA.
8) COA No. 8 – Violation of Penal Code § 118
Penal Code § 118 applies to perjury before the court. “There is no civil cause of action for “perjury.” [Citations.] Perjury is a criminal wrong.” (Pollock v. Univ. of S. California (2003) 112 Cal. App. 4th 1416, 1429.) Plaintiff cannot plead a civil COA for perjury as one does not exist.
The demurrer is SUSTAINED without leave to amend as to this COA.
9) COA No. 9 – Defamation, Slander, Libel
““ ‘The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.’ ” (Jackson v. Mayweather (2017) 10 Cal. App. 5th 1240, 1259.)
Plaintiff alleged Defendant made several written defamatory statements in motions filed in this case, and that defense counsel made a slanderous statement to the Judge on 06/26/25. The statements alleged all appear to fall under the litigation privilege. “[C]ommunications made in connection with litigation do not necessarily fall outside the privilege simply because they are, or are alleged to be, fraudulent, perjurious, unethical, or even illegal. This is assuming, of course, that the communications are ”logically related“ to the litigation. The communications in this case were not only related to the litigation, they were the litigation, or more accurately the pleadings in the litigation.” (Kashian v. Harriman (2002) 98 Cal. App. 4th 892, 920.)
The demurrer is SUSTAINED with leave to amend as to this COA.
10) COA No. 10 – Negligent Infliction of Emotional Distress
“[A]s our Supreme Court has made abundantly clear, there is no such thing as the independent tort of negligent infliction of emotional distress.” (Lawson v. Mgmt. Activities, Inc. (1999) 69 Cal. App. 4th 652, 656.)
The demurrer is SUSTAINED without leave to amend as to this COA.
11) COA No. 11 – Intentional Infliction of Emotional Distress
The elements to a claim for Intentional Infliction of Emotional Distress are, “‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Hughes v. Pair (2009) 46 Cal. 4th 1035, 1050.)
Plaintiff merely parroted the elements of this COA without alleging any specific facts which support each of the elements. Plaintiff also states something about a plea for removal of cameras, but there is nothing else in the TAC regarding cameras.
The demurrer is SUSTAINED with leave to amend as to this COA.
12) COA No. 12 – Breach of Covenant of Fair Dealing
“There is no obligation to deal fairly or in good faith absent an existing contract. [Citation.] If there exists a contractual relationship between the parties. . . the implied covenant is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated in the contract.” (Racine & Laramie, Ltd. v. Dep't of Parks & Recreation (1992)11 Cal. App. 4th 1026, 1032.) “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.
Thus, absent those limited cases where a breach of a consensual contract term is not claimed or alleged, the only justification for asserting a separate cause of action for breach of the implied covenant is to obtain a tort recovery.” (Careau & Co. v. Sec. Pac. Bus. Credit, Inc. (1990) 222 Cal. App. 3d 1371, 1395.)
Plaintiff has alleged a lease contract between the parties and has produced it. Plaintiff’s allegations under this COA appear to be nothing more than a breach of contract COA, which is superfluous to COA No. 1 for breach of contract.
The demurrer is SUSTAINED with leave to amend as to this COA.
Motion to Strike
Defendant’s Motion to Strike is GRANTED.
The court must first note that Defendant did not comply with the requirements of CA ST CIVIL RULES Rule 3.1322(a) and specifically identify and quote the sections sought to be stricken. That being said, the court will proceed with the request to strike references to ‘punitive damages.’
The only places in the TAC which state “punitive damages” are COA Nos. 3 and 9, and Prayer ‘f’. Oddly, despite COA No. 6 being on for ‘Fraud,’ Defendant did not request the court strike that COA. However, all three of those COA were successfully demurred to, so there is no basis for the punitive damages prayer.
As there are no other requests for punitive damages in the TAC, the MTS is GRANTED and the prayer for punitive damages is ordered stricken.
Motion for Access
Plaintiff’s Motion For An Order Requiring Clerk To Grant Access To Public Court Records Deliberately Restricted By Attorney Alan Mark Rothman is DENIED.
It appears Plaintiff requests the court issue an order directing the Clerk of the Court to identify every lawsuit defense counsel has ever been a part of. Plaintiff provides no legal basis which would permit the court to grant the request. Plaintiff also does not state he has been prohibited access to any specific docket(s), but rather requests the Clerk perform work on behalf of Plaintiff to discover and compile a list of such cases for Plaintiff. This is an inappropriate use of judicial resources and Plaintiff is not being prohibited from performing his own research on the issues.
The motion for access should be DENIED.
Plaintiff is given leave to file an amended complaint within 15 days of written notice of the ruling.
Case Management Conference is CONTINUED to October 16, 2026, at 9:30 a.m.
Defense counsel to give notice. 11 Objective Before the Court is an order to show cause why a preliminary Standard injunction should not issue enjoining cross-defendant Objective Institute v. Standard Institute (OSI) from releasing, dissipating, encumbering or Barney et. al. otherwise utilizing the approximately $9 million (the “Funds”) provided to OSI by cross-complainants Carl B. Barney and Center for Excellence in Higher Education (collectively, Cross-Complainants) pending resolution of this action. For the reasons set forth below, a preliminary injunction is DENIED.
OSI’s evidentiary objections to the declaration of Carl B. Barney (Barney Decl.”) and declaration of Gerard M. Mooney (“Mooney Decl.”) are OVERRULED in their entirety.
Cross-Complainants’ evidentiary objections to the declaration of Jason Haas (“Haas Decl.”) are OVERRULED; the objections to the declaration of Craig Biddle (“C. Biddle Decl.”) are SUSTAINED as to