On May 10, 2019 a
Motion-Secondary
was filed
involving a dispute between
Msalam, Andrew,
Msalam, Ghassan,
Msalam, Jamie,
Msalam, Jamilah,
Msalam, Jimilah,
Msalam, Jonathan,
Msalam, Julnar,
Msalam, Khalil,
and
Arellano, Fred,
Arellano, Freddie A., Jr,
Aria Sarbeland Trust,
Does 4-20 Individually And In Their Official Capacities,
Does 7-20, Individually And In Their Official Capacities,
Gonzalez, Miguel,
Martha Fabiola Sarbeland Trust,
Sarbeland, Aria,
Sarbeland, Martha,
Sarbeland Trust,
for (26) Unlimited Other Real Property
in the District Court of San Mateo County.
Preview
1 ARA JABAGCHOURIAN (SBN 205777)
ara@arajlaw.com
2 LAW OFFICES OF ARA JABAGCHOURIAN, P.C.
1650 S. Amphlett Boulevard, Suite 216
3 San Mateo, CA 94402
Telephone: (650) 437-6840
4 Facsimile: (650) 403-0909
5
Attorneys for Defendants
6 Aria Sarbeland, and
Martha Sarbeland
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
IN AND FOR THE COUNTY OF SAN MATEO
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KHALIL MSALAM, JULNAR MSALAM, CASE NO. 19CIV02602
12 JIMILAH MSALAM, GHASSAN
MSALAM through her G.A.L. Jimilah
13 Msalam, JAMIE MSALAM through his [PROPOSED] ORDER RE: DEFENDANT
ARIA SARBELAND AND MARTHA
14 G.A.L. Jimilah Msalam, JONATHAN SARBELAND’S DEMURRER AND MOTION
MSALAM through his G.A.L. Jimilah TO STRIKE PORTIONS OF THE THIRD
15 Msalam, ANDREW MSALAM through his AMENDED COMPLAINT
G.A.L. Jimilah Msalam
16
Plaintiffs,
17
18 vs.
19 ARIA SARBELAND, FREDDIE A.
ARELLANO, JR. MARTHA
20 SARBELAND, individually and in his
official capacity, and DOES 1-20
21 individually and in their official capacities.
22
Defendants.
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28 [PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA
Law Offices of SARBELAND’S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE THIRD
Ara AMENDED COMPLAINT
Jabagchourian,
P.C.
1 This matter came before the Court in Department 21 before the Honorable Robert D.
2 Foiles upon Defendant Aria Sarbeland and Martha Sarbeland’s Demurrer and Motion to Strike
3 Portions of the Third Amended Complaint. Having considered the papers submitted, the Court
4 hereby makes the following order.
5 Demurrer:
6 Defendants’ Demurrer to Plaintiffs’ Third Amended Complaint is SUSTAINED in part with
7 leave to amend pursuant to Cal. Code of Civ. Proc. §430.10(e), and OVERRULED in part.
8 Unjust Enrichment
9 There is no independent claim in California for unjust enrichment. Unjust enrichment is
10 synonymous with restitution. Levine v. Blue Shield of Calif. (2010) 189 C.A.4th 1117, 1138.
11 The Demurrer is therefore SUSTAINED with leave to amend as to the eighth cause of action for
12 unjust enrichment.
13 Fraud
14 Defendant argues that fraud is not pleaded with sufficient specificity because
15 “Completely absent from the allegations are any affirmative statements made by Defendants.”
16 Demurrer MP&A, 5: 5-6. However, paragraphs 146, 148, 149, 150, and 151 reference paragraph
17 22 of the Lease Agreement between Plaintiffs and Defendants, which contains affirmative
18 statements by Defendants made on a specific date, July 22, 2011, by Freddie A. Arellano, J. and
19 Aria Sarbeland, that “Lessor has obtained ... liability insurance to cover certain personal
20 injuries occurring as a result of property defects or Lessor negligence.” TAC, Exh. A, ¶22. The
21 TAC further alleges that these statements were untrue and made to defraud. This provides the
22 requisite specificity regarding, who, what, and when the alleged fraud occurred, and the
23 Demurrer is OVERRULED as to the eleventh COA for fraud.
24 Breach of Contract ¶22 – COA 10
25 Plaintiffs appear to couch the Ninth COA as one relating to breaches relating to the habitability
26 of the property, and the Tenth COA as one relating to Paragraph 22 of the Lease Agreement. The
27
28 [PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA 1
Law Offices of SARBELAND’S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE THIRD
Ara AMENDED COMPLAINT
Jabagchourian,
P.C.
1 Demurrer is SUSTAINED with leave to amend as to this COA so that the 9th and 10th COA’s
2 can be consolidated into a single COA since they both relate to alleged breaches of the same
3 contract over the same period.
4 Outrageous Conduct – IIED – COA 5
5 Stoiber held that “a remedy for breach of implied warranty of habitability does not
6 preclude a tenant from suing his landlord for intentional infliction of mental distress if the
7 landlord's acts are extreme and outrageous and result in severe mental distress. Whether
8 this is so under the present allegations [relating to failure to correct defective conditions on the
9 premises], presents a factual question it cannot be said as a matter of law that appellant has not
10 stated a cause of action.” Stoiber v. Honeychuck (1980) 101 CA3d 903, 921. Here, as in Stoiber,
11 Plaintiffs allege intentional failures to correct defective conditions on the premises, and these
12 failures cannot be said as a matter of law to fall short of the standard of outrageous conduct.
13 TAC, ¶¶16, 27, 30, 40, 101. The Demurrer is therefore OVERRULED as to this COA.
14 Any amended pleading is to be filed within ten days of service of
15 notice of entry of this order.
16
17 Motion to Strike:
18 Defendants’ Motion to Strike portions of Plaintiffs’ Third Amended Complaint is
19 GRANTED in part with leave to amend pursuant to Cal. Code of Civ. Proc. §436, and DENIED
20 in part.
21 Punitive Damages
22 As in the case of the Demurrer to the Fifth COA, extreme and outrageous intentional conduct has
23 been alleged at TAC, ¶¶16, 27, 30, 40, 101, as well as alleging fraud at ¶¶ 146, 148, 149, 150,
24 and 151, and the these allegations meet the standard of oppression, fraud, or malice pursuant to
25 Cal. Civ. Code § 3294(a). The Motion to Strike is therefore be DENIED as to punitive damages.
26
27
28 [PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA 2
Law Offices of SARBELAND’S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE THIRD
Ara AMENDED COMPLAINT
Jabagchourian,
P.C.
1 Attorney’s Fees
2 Defendant argues that the TAC does not allege COA’s entitling Plaintiffs to attorney’s
3 fees. Plaintiffs argue that they are entitled to fees as private attorney’s general pursuant to Cal.
4 Bus. and Prof. Code §17200 et seq and Cal. Code of Civ. Proc. § 1021.5 because the
5 case seeks enforcement of an important right affecting public interest, and under a theory of “tort
6 of another.” If Plaintiffs were to prove all of the allegations of the TAC, attorney fees would be
7 recoverable under these theories, so the Motion is DENIED as to attorney’s fees.
8 Statutory Penalties and Damages
9 Plaintiffs do not rebut the argument that claims for statutory penalties and damages are
10 alleged without support. The Motion is GRANTED as to statutory penalties and damages.
11 Trust Defendants
12 Plaintiffs do not rebut Defendants arguments with respect to the Trust Defendants, but
13 only with respect to Trustees based on the alter ego allegation in the TAC at ¶21. The Trusts
14 themselves are properly stricken from the pleading, and the Motion is GRANTED with respect
15 to the trust entities.
16 Disgorgement as Remedy
17 Defendant argues that disgorgement is a remedy that exists in equity, citing People v.
18 Marfinson (1986) 188 Cal. App. 3d 894, 900, and that Plaintiffs have alleged no equitable
19 claims, but merely claims under law so disgorgement is not an available remedy and should
20 be stricken. Disgorgement is available as a remedy for violations of Cal. Bus. and Prof. Code
21 §17200 et seq, alleged in the sixth COA in the TAC. People ex rel. Kennedy Beaumont Inv., Ltd.
22 (2003) 111 Cal.App.4th 102, 134. The Motion is therefore DENIED as to references
23 to disgorgement.
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25 ///
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28 [PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA 3
Law Offices of SARBELAND’S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE THIRD
Ara AMENDED COMPLAINT
Jabagchourian,
P.C.
1 Prejudgment Interest
2 Defendants have not demonstrated that the TAC alleges insufficient facts to support a
3 claim for prejudgment interest. The Motion should therefore be DENIED as to references to
4 prejudgment interest.
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8 IT IS SO ORDERED.
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11 Dated:____________________, 2022
12 ______________________________________
13 JUDGE OF THE SUPERIOR COURT
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28 [PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA 4
Law Offices of SARBELAND’S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE THIRD
Ara AMENDED COMPLAINT
Jabagchourian,
P.C.
Preview
1 ARA JABAGCHOURIAN (SBN 205777) ara@arajlaw.com 2 LAW OFFICES OF ARA JABAGCHOURIAN, P.C. 1650 S. Amphlett Boulevard, Suite 216 3 San Mateo, CA 94402 Telephone: (650) 437-6840 4 Facsimile: (650) 403-0909 5 Attorneys for Defendants 6 Aria Sarbeland, and Martha Sarbeland 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN MATEO 10 11 KHALIL MSALAM, JULNAR MSALAM, CASE NO. 19CIV02602 12 JIMILAH MSALAM, GHASSAN MSALAM through her G.A.L. Jimilah 13 Msalam, JAMIE MSALAM through his [PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA 14 G.A.L. Jimilah Msalam, JONATHAN SARBELAND’S DEMURRER AND MOTION MSALAM through his G.A.L. Jimilah TO STRIKE PORTIONS OF THE THIRD 15 Msalam, ANDREW MSALAM through his AMENDED COMPLAINT G.A.L. Jimilah Msalam 16 Plaintiffs, 17 18 vs. 19 ARIA SARBELAND, FREDDIE A. ARELLANO, JR. MARTHA 20 SARBELAND, individually and in his official capacity, and DOES 1-20 21 individually and in their official capacities. 22 Defendants. 23 24 25 26 27 28 [PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA Law Offices of SARBELAND’S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE THIRD Ara AMENDED COMPLAINT Jabagchourian, P.C. 1 This matter came before the Court in Department 21 before the Honorable Robert D. 2 Foiles upon Defendant Aria Sarbeland and Martha Sarbeland’s Demurrer and Motion to Strike 3 Portions of the Third Amended Complaint. Having considered the papers submitted, the Court 4 hereby makes the following order. 5 Demurrer: 6 Defendants’ Demurrer to Plaintiffs’ Third Amended Complaint is SUSTAINED in part with 7 leave to amend pursuant to Cal. Code of Civ. Proc. §430.10(e), and OVERRULED in part. 8 Unjust Enrichment 9 There is no independent claim in California for unjust enrichment. Unjust enrichment is 10 synonymous with restitution. Levine v. Blue Shield of Calif. (2010) 189 C.A.4th 1117, 1138. 11 The Demurrer is therefore SUSTAINED with leave to amend as to the eighth cause of action for 12 unjust enrichment. 13 Fraud 14 Defendant argues that fraud is not pleaded with sufficient specificity because 15 “Completely absent from the allegations are any affirmative statements made by Defendants.” 16 Demurrer MP&A, 5: 5-6. However, paragraphs 146, 148, 149, 150, and 151 reference paragraph 17 22 of the Lease Agreement between Plaintiffs and Defendants, which contains affirmative 18 statements by Defendants made on a specific date, July 22, 2011, by Freddie A. Arellano, J. and 19 Aria Sarbeland, that “Lessor has obtained ... liability insurance to cover certain personal 20 injuries occurring as a result of property defects or Lessor negligence.” TAC, Exh. A, ¶22. The 21 TAC further alleges that these statements were untrue and made to defraud. This provides the 22 requisite specificity regarding, who, what, and when the alleged fraud occurred, and the 23 Demurrer is OVERRULED as to the eleventh COA for fraud. 24 Breach of Contract ¶22 – COA 10 25 Plaintiffs appear to couch the Ninth COA as one relating to breaches relating to the habitability 26 of the property, and the Tenth COA as one relating to Paragraph 22 of the Lease Agreement. The 27 28 [PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA 1 Law Offices of SARBELAND’S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE THIRD Ara AMENDED COMPLAINT Jabagchourian, P.C. 1 Demurrer is SUSTAINED with leave to amend as to this COA so that the 9th and 10th COA’s 2 can be consolidated into a single COA since they both relate to alleged breaches of the same 3 contract over the same period. 4 Outrageous Conduct – IIED – COA 5 5 Stoiber held that “a remedy for breach of implied warranty of habitability does not 6 preclude a tenant from suing his landlord for intentional infliction of mental distress if the 7 landlord's acts are extreme and outrageous and result in severe mental distress. Whether 8 this is so under the present allegations [relating to failure to correct defective conditions on the 9 premises], presents a factual question it cannot be said as a matter of law that appellant has not 10 stated a cause of action.” Stoiber v. Honeychuck (1980) 101 CA3d 903, 921. Here, as in Stoiber, 11 Plaintiffs allege intentional failures to correct defective conditions on the premises, and these 12 failures cannot be said as a matter of law to fall short of the standard of outrageous conduct. 13 TAC, ¶¶16, 27, 30, 40, 101. The Demurrer is therefore OVERRULED as to this COA. 14 Any amended pleading is to be filed within ten days of service of 15 notice of entry of this order. 16 17 Motion to Strike: 18 Defendants’ Motion to Strike portions of Plaintiffs’ Third Amended Complaint is 19 GRANTED in part with leave to amend pursuant to Cal. Code of Civ. Proc. §436, and DENIED 20 in part. 21 Punitive Damages 22 As in the case of the Demurrer to the Fifth COA, extreme and outrageous intentional conduct has 23 been alleged at TAC, ¶¶16, 27, 30, 40, 101, as well as alleging fraud at ¶¶ 146, 148, 149, 150, 24 and 151, and the these allegations meet the standard of oppression, fraud, or malice pursuant to 25 Cal. Civ. Code § 3294(a). The Motion to Strike is therefore be DENIED as to punitive damages. 26 27 28 [PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA 2 Law Offices of SARBELAND’S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE THIRD Ara AMENDED COMPLAINT Jabagchourian, P.C. 1 Attorney’s Fees 2 Defendant argues that the TAC does not allege COA’s entitling Plaintiffs to attorney’s 3 fees. Plaintiffs argue that they are entitled to fees as private attorney’s general pursuant to Cal. 4 Bus. and Prof. Code §17200 et seq and Cal. Code of Civ. Proc. § 1021.5 because the 5 case seeks enforcement of an important right affecting public interest, and under a theory of “tort 6 of another.” If Plaintiffs were to prove all of the allegations of the TAC, attorney fees would be 7 recoverable under these theories, so the Motion is DENIED as to attorney’s fees. 8 Statutory Penalties and Damages 9 Plaintiffs do not rebut the argument that claims for statutory penalties and damages are 10 alleged without support. The Motion is GRANTED as to statutory penalties and damages. 11 Trust Defendants 12 Plaintiffs do not rebut Defendants arguments with respect to the Trust Defendants, but 13 only with respect to Trustees based on the alter ego allegation in the TAC at ¶21. The Trusts 14 themselves are properly stricken from the pleading, and the Motion is GRANTED with respect 15 to the trust entities. 16 Disgorgement as Remedy 17 Defendant argues that disgorgement is a remedy that exists in equity, citing People v. 18 Marfinson (1986) 188 Cal. App. 3d 894, 900, and that Plaintiffs have alleged no equitable 19 claims, but merely claims under law so disgorgement is not an available remedy and should 20 be stricken. Disgorgement is available as a remedy for violations of Cal. Bus. and Prof. Code 21 §17200 et seq, alleged in the sixth COA in the TAC. People ex rel. Kennedy Beaumont Inv., Ltd. 22 (2003) 111 Cal.App.4th 102, 134. The Motion is therefore DENIED as to references 23 to disgorgement. 24 /// 25 /// 26 27 28 [PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA 3 Law Offices of SARBELAND’S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE THIRD Ara AMENDED COMPLAINT Jabagchourian, P.C. 1 Prejudgment Interest 2 Defendants have not demonstrated that the TAC alleges insufficient facts to support a 3 claim for prejudgment interest. The Motion should therefore be DENIED as to references to 4 prejudgment interest. 5 6 7 8 IT IS SO ORDERED. 9 10 11 Dated:____________________, 2022 12 ______________________________________ 13 JUDGE OF THE SUPERIOR COURT 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA 4 Law Offices of SARBELAND’S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE THIRD Ara AMENDED COMPLAINT Jabagchourian, P.C.