Demurrer to Amended Complaint; Request for Judicial Notice
25CV143658: TURNER-RILEY, et al. vs AELAYA, et al. 07/29/2026 Hearing on Demurrer of Defendants Agentdesks Incorporated dba Rise Group Real Estate, Roger Zelaya, Richard Szerman and Christopher Strange to Amended Complaint; filed by Roger Aelaya (Defendant) + CRS# 773524799640 in Department 19
Tentative Ruling - 07/27/2026 Joscelyn Jones
The Demurrer filed by Roger Aelaya, Rise Group Real Estate, Christopher Strange, Richard Szerman, Radius Agent Realty on 02/06/2026 is Sustained with Leave to Amend.
The Court rules as follows on the Demurrer to Plaintiffs Second Amended Complaint (filed December 16, 2025) by Defendants Agentsdesks Incorporated dba Rise Group Real Estate (erroneously sued as Radius Agent Realty and Rise Group Real Estate), Roger Zelaya (erroneously sued as Roger Aelaya), Richard Szerman, and Christopher Strange (collectively, Agentsdesks):
The demurrer to the First Cause of Action for Declaratory Relief is SUSTAINED, WITH LEAVE TO AMEND to identify a contract to which Plaintiffs and Agentsdesks were parties, and some controversy involving the parties rights and duties under that contract for which a judicial declaration is necessary. As the First Cause of Action is currently pled, it seeks a declaration only as to the parties rights under the purchase agreement. Agentsdesks is not a party to the purchase agreement.
The demurrer to the Second Cause of Action for Breach of Fiduciary Duty is SUSTAINED, WITH LEAVE TO AMEND to clearly and concisely allege facts demonstrating how and when Agentsdesks breached fiduciary duties owed to Plaintiffs, and how the breach(es) caused Plaintiffs to suffer damages. It is unclear how several of the actions alleged in the Second Amended Complaint breached any fiduciary duty to Plaintiffs or caused any damage (see, e.g., pages 13-14, sections 3(B), (D), and (E)), and the remaining allegations are extremely vague.
The demurrer to the Third Cause of Action for Constructive Fraud is SUSTAINED, WITH LEAVE TO AMEND. If this cause of action is based on misleading comments, Plaintiffs shall allege those misleading comments with particularity, including what the comment was, who said or wrote it, when, and how Plaintiffs were damaged in reliance on the comment(s). (See, e.g., Tarmann v. State Farm Mutual Auto Ins. Co. (1991) 2 Cal.App.4th 153, 157-158.) If this cause of action is based on omissions or concealment, Plaintiffs shall clearly identify the facts that were omitted and concealed, and how they suffered damage as a result of the omission and concealment.
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The demurrer to the Fourth Cause of Action for Fraud/Misrepresentation is SUSTAINED, WITH LEAVE TO AMEND to allege this cause of action with the required particularity, including what misrepresentation(s) were made, by whom, what that person(s) said or wrote, when, and how Plaintiffs were damaged in reliance on the misrepresentation(s). (See Tarmann, supra, 2 Cal.App.4th at 157-158.) 25CV143658: TURNER-RILEY, et al. vs AELAYA, et al. 07/29/2026 Hearing on Demurrer of Defendants Agentdesks Incorporated dba Rise Group Real Estate, Roger Zelaya, Richard Szerman and Christopher Strange to Amended Complaint; filed by Roger Aelaya (Defendant) + CRS# 773524799640 in Department 19 The demurrer to the Fifth Cause of Action for Unfair Competition is SUSTAINED, WITH LEAVE TO AMEND to clearly identify the unlawful conduct in which Agentsdesks engaged. As the Fifth Cause of Action is presently pled, it is simply a list of statutes and regulations, with no explanation of what Agentsdesks did to violate any of those statutes or regulations.
The demurrer to the Sixth Cause of Action for Accounting is SUSTAINED, WITH LEAVE TO AMEND to allege facts, if possible, showing that some balance is owed by Agentsdesks to Plaintiffs that can only be ascertained by an accounting. (See, e.g. Sass v. Cohen (2020) 10 Cal.5th 861, 869.) As the Sixth Cause of Action is currently pled, Plaintiffs fail to allege facts showing that any money was paid by Plaintiffs to Agentsdesks in the form of funds, commissions, credits, debits, deposits, or disbursements.
The demurrers to the Seventh Cause of Action for Alternative Equitable Relief and the Eighth Cause of Action for Compliance with Contractual Conditions President (Mediation Clause) are SUSTAINED, WITHOUT LEAVE TO AMEND. These are not cognizable causes of action. Nothing in this order prevents Plaintiffs from attempting to mediate their claims against Agentsdesks. As Plaintiffs apparently realize in their opposition brief, compliance (or lack thereof) with any contractual requirement to mediate disputes before bringing a lawsuit may perhaps be an affirmative defense to this lawsuit, but it is not a basis for affirmative relief for Plaintiffs.
Plaintiffs Request for Judicial Notice is DENIED. An email chain between the parties is not a proper subject for judicial notice. In addition, the apparent content of those emails is completely irrelevant to whether Plaintiffs Second Amended Complaint states sufficient facts to state one or more causes of action against Agentsdesks.
In their Third Amended Complaint, Plaintiffs shall not attach any exhibits that are not (1) expressly identified in the body of the Third Amended Complaint, and (2) directly relevant to the claims alleged. The Second Amended Complaint attached 23 exhibits, at least half of which are not mentioned anywhere in the body of the Second Amended Complaint. Moreover, the mere mention of a string of exhibits, without indicating what those exhibits are and why they are relevant to Plaintiffs claims, is not helpful. (See, e.g., Second Amended Complaint, page 15 line 13; page 16 line 13; page 17 line 11; page 19 line 17; page 20 line 15; and page 21 line 8.)
In addition, the Third Amended Complaint must consecutively number all paragraphs from beginning to end; it shall not restart the numbering for each new cause of action at paragraph 1.
The Court will prepare the order. Agentsdesks shall serve Notice of Entry of Order on Plaintiffs. Plaintiffs shall have 10 days to amend following service of Notice of Entry of Order on Plaintiffs by Agentsdesks. Agentsdesks shall then have 10 days to respond.