Minute OrderCal. Super. - 6th Dist.November 4, 2020SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Paul Battaglia vs Nilufer Koechlin Hearing Start Time: 9:00 AM 20CV373069 Hearing Type: Hearing: Demurrer Date of Hearing: 10/07/2021 Comments: 10 Heard By: Takaichi, Drew C Location: Department 2 Courtroom Reporter: - No Court Reporter Courtroom Clerk: Farris Bryant Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - to First Amended Cross-Complaint by PIt/X-Def Paul Battaglia (Sunena Sabharwal) C/F 9-30-21 M/O No appearance. No one has contested the Tentative Ruling. The Tentative Ruling is adopted. See below for ruling. Calendar line 10 Case Name: Paul Battaglia v. Nilufer Koechlin Case No.2 20-CV-373069 Demurrer to the First Amended Cross-Complaint by Cross-Defendant Paul Battaglia Factual and Procedural Background This is an action for fraud and breach of contract between non-marital partners. According to the operative first amended cross-complaint ( FACC ), in January 2014, plaintiff and cross- defendant Paul Battaglia ( Battaglia ) and defendant and cross-complainant Nilufer Koechlin ( Koechlin ) began dating and Battaglia shortly thereafter moved into Koechlin s home in Los Gatos. (FACC at 7.) Battaglia portrayed himself as a man of means who lived a luxurious lifestyle, purchasing expensive tickets to sporting events and travel. (Id. at 9.) He also created an image to fit the part of a well-spoken, welI-dressed, and weII-traveled businessman. (|bid.) During the first year after Battaglia moved in, Koechlin paid nearly a|| the household expenses as a gracious Printed: 10/7/2021 10/07/2021 Hearing: Demurrer - 20CV373069 Page 1 of 13 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER host. (FACC at 11.) Battaglia made nominal contributions such as occasional groceries and a few trips which Koechlin considered gifts. (|bid.) On March 31, 2015, Battaglia approached Koechlin regarding a joint venture related to wine. (FACC at 13.) Battaglia proposed to Koechlin that if she provided capital, he would purchase and resell the wine, and the parties would split the profits. (|bid.) Koechlin accepted Battaglia s offer and paid for approximately $46,000 of wine from March through May 14, 2015. (|bid.) Battaglia purchased and resold wine with the capital provided by Koechlin. (FACC at 14.) Battaglia however failed to pay Koechlin her share of the profits or repay this capital. (|bid.) On May 2, 2015, Koechlin learned that Battaglia had used her credit card and forged a check to himself by taking items from her purse without his consent. (FACC at 15.) Koechlin confronted Battaglia and expressed to him that this was unacceptable. (|bid.) Battaglia assured her that his use of her check and credit card were limited to these instances and would not happen again. (|bid.) On May 14, 2015, disappointed in Battaglia s deceit, failure to live up to their agreement regarding the wine venture, and failure to contribute to the parties monthly expenses in any meaningful way, Koechlin sought protection for her investment and requested that Battaglia contribute to their living expenses. (FACC at 16.) As a result, the parties entered into a second agreement wherein Koechlin would no longer be a partner in the wine business and Battaglia would repay her $46,000 investment and any other funds she loaned him. (|bid.) In addition, Battaglia agreed to commence paying $2,000 per month to assist with household expenses and other bills. (|bid.) The parties agreed that if they were to separate, and Battaglia had any outstanding loan to Koechlin, she would keep the contents of her wine cellar. (|bid.) But, Battaglia failed to pay Koechlin the $46,000 capital loan for the wine purchases and subsequent loans. (FACC at 17.) Also, on various occasions between March 2015 and August 2018, Koechlin paid Battaglia s season tickets for the Golden State Warriors and San Jose Sharks based on their oral agreement. (Id. at 18.) Battaglia made various payments to Koechlin but failed to repay her in full. (|bid.) On July 19, 2020, the parties permanently separated and Battaglia told Koechlin he would only stay briefly in Koechlin s Santa Cruz home while he sought new accommodations. (FACC at 29.) On July 26, 2020, Battaglia changed his mind and told Koechlin he would not move out unless she paid him $215,000 and gave him title to her Mini Cooper. (FACC at 30.) Koechlin then asked Battaglia to vacate the beach house no later than October 1, 2020. (|bid.) Battaglia thereafter proceeded to harass Koechlin, go to her Los Gatos home despite her request for distance, and refused to leave her Santa Cruz property unless she paid him the funds he demanded. (|bid.) On August 1, 2020, Battaglia went to Koechlin s Los Gatos residence, snuck in through the back yard, entered her house without permission, and refused to leave. (FACC at 31.) As a consequence, Koechlin called the police and obtained a restraining order. (|bid.) Printed: 10/7/2021 10/07/2021 Hearing: Demurrer - 20CV373069 Page 2 of 13 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER On January 19, 2021, Battaglia moved out of Koechlin s Santa Cruz property after she filed an unlawful detainer action, and the parties reach a stipulation. (FACC at 33.) Battaglia held Koechlin s Santa Cruz property hostage for over six months, depriving her and her daughter of its use and enjoyment. (|bid.) During Battaglia s unlawful possession of Koechlin s property, he also attempted to evict the lawful tenant, E. Huntsman, in Koechlin s guesthouse by posting a Notice to Vacate at her door falsely claiming that he was the owner of the property and threatening to pursue legal action and have her removed if she didn t vacate the property. (FACC at 34.) As a direct result of Battaglia s interference, Koechlin s tenant left the property for several weeks and Koechlin lost rents. (|bid.) After their separation, Koechlin discovered that Battaglia engages in a pattern and practice in his romantic relationships where he woos and defrauds women with false representations about his background, his employment, his intentions and his love and affection for the purpose of depriving them of their property. (FACC at 39.) On November 4, 2020, Battaglia filed a complaint against Koechlin alleging causes of action for: (1) breach of oral contract [property]; (2) breach of contract [support]; (3) breach of implied contract; (4) dissolution of partnership and community assets; (5) quiet title; (6) breach of fiduciary duty; (7) fraud and deceit; (8) promissory estoppel; (9) negligent misrepresentation/constructive fraud; (10) intentional infliction of emotional distress; (11) reasonable value of services [quantum meruit]; (12) conversion; (13) imposition of constructive trust; and (14) interference with contractual relations. On December 14, 2020, Battaglia filed a first amended complaint ( FAC ) setting forth the same causes of action. On March 5, 2021, Koechlin filed an answer to the FAC alleging a general denial and various affirmative defenses. On the same day, she also filed a cross-complaint against Battaglia alleging causes of action for: (1) fraud; (2) breach of written contract; (3) extortion; (4) abuse of process; (5) unjust enrichment; (6) conversion; (7) intentional infliction of emotional distress; and (8) interference with contract. On May 24, 2021, Koechlin filed the operative FACC alleging causes of action for: (1) fraud; (2) fraud; (3) fraud; (4) fraud; (5) fraud; (6) breach of contract; (7) declaratory relief; (8) breach of oral contract; (9) conversion; (10) interference with contract; (11) abuse of process; (12) extortion; (13) unjust enrichment; and (14) intentional infliction of emotional distress. On June 28, 2021, Battaglia filed the motion presently before the court, a demurrer to the FACC. On September 27, 2021, Koechlin submitted an ex parte application to the court to extend the time for serving and filing opposition to the demurrer. The court (Hon. Takaichi) granted the application and Koechlin filed written opposition. Printed: 10/7/2021 10/07/2021 Hearing: Demurrer - 20CV373069 Page 3 of 13 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Demurrer to the FACC Battaglia argues the first, second, third, fourth, eighth, ninth, eleventh, twelfth, thirteenth, and fourteenth causes are subject to demurrer on grounds including uncertainty, failure to state a claim and statute of limitations. (Code Civ. Proc., 430.10, subds. (e), (f).) Procedural Issue As a preliminary matter, the court notes Koechlin s opposition is procedurally defective because it is 18 pages in length and, thus, exceeds the mandated page limit. (See Cal. Rules of Court, rule 3.1113(d) [no opening or responding memorandum may exceed 15 pages, except in a summaryjudgment or adjudication motion].) Because it is an oversized memorandum, it is considered in the same manner as a Iate-filed paper. (Cal. Rules of Court, rule 3.1113(g).) The court has discretion to refuse to consider a Iate-filed paper. (Cal. Rules of Court, rule 3.1300(d).) Here, as the violation constitutes only a few pages, the court does not find that Battaglia will be prejudiced by the filing of the oversized memorandum. Therefore, in deference to the policy that matters should be decided on their merits, the court, in its discretion, will consider the opposition despite the aforementioned defect. (See Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696 [policy of the law is to have every litigated case tried upon its merits].) Counsel for Koechlin is admonished to comply with court rules and procedures with respect to future filings. If counsel desires to file a memorandum in excess of the mandated page limit, she should comply with California Rules of Court, rule 3.113(e). Legal Standard In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court. (Committee on Children s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213 214.) The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. [|]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. (Gregory v. Albertson s, Inc. (2002) 104 Cal.App.4th 845, 850.) First Cause of Action Fraud Printed: 10/7/2021 10/07/2021 Hearing: Demurrer - 20CV373069 Page 4 of 13 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER The first cause of action appears to be a claim for fraud based on intentional misrepresentation. The elements of intentional misrepresentation, or actual fraud, are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage. (Anderson v. Deloitte & Touche (1997) 56 Cal.App.4th 1468, 1474, internal quotation marks omitted.) In the first cause of action, Koechlin alleges Battaglia knowingly and affirmatively made false representations to her regarding his marital and paternity status. (FACC at 44.) But for these misrepresentations, Koechlin would not have entered into a romantic relationship with Battaglia, granting him loans and access to her home, assets, and personal belongings. (Id. at 46.) On demurrer, Battaglia argues in part that the allegations for reliance and damages have not been properly pled. In opposition, Koechlin appears to concede this point as she requests leave to amend to further allege facts to support her reliance on Battaglia s marital status which will be granted. (See OPP at p. 4:25-27.) Accordingly, the demurrer to the first cause of action is SUSTAINED WITH 20 DAYS LEAVE TO AMEND for failure to state a claim. (See City of Stockton v. Super. Ct. (2007) 42 Cal.4th 730, 747 [ifthe plaintiff has not had an opportunity to amend the pleading in response to a motion challenging the sufficiency of the allegations, leave to amend is liberally allowed as a matter of fairness].) Second Cause of Action Fraud In the second cause of action for fraud, Koechlin alleges Battaglia knowingly and affirmatively made false representations to her regarding his education, career, assets, and professional position in life. (FACC at 52.) Battaglia intended to induce Koechlin to alter her position and commence a romantic relationship with him, allowing him access to her personal life, home, family, assets, and belongings to her risk and injury. (Id. at 53.) In opposition, Koechlin again seeks leave to amend to clarify and remove allegations that she was induced to enter into a romantic relationship as the basis for the fraud claim. (See OPP at p. 622-4.) Therefore, the demurrer to the second cause of action is SUSTAINED WITH 20 DAYS LEAVE TO AMEND for failure to state a claim. Third Cause of Action Fraud In the third cause of action for fraud, Koechlin alleges, at various times from January 2015 through July 2020, Battaglia knowingly and affirmatively made false representations to Koechlin regarding his love and affection. Printed: 10/7/2021 10/07/2021 Hearing: Demurrer - 20CV373069 Page 5 of 13 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER (FACC at 60.) Battaglia intended to induce Koechlin to alter her position to commence and remain in a romantic relationship with him so that he may later deprive her of her assets and property. (Id. at 61.) In opposition, Koechlin has agreed to dismiss her third cause of action for fraud based on the false representations of Battaglia s love and affection. (See OPP at p. 7:21-23.) Consequently, the demurrer to the third cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. Fourth Cause of Action Fraud In the fourth cause of action for fraud, Koechlin alleges that, on multiple occasions in 2015, Battaglia knowingly and affirmatively made false representations to her regarding his unauthorized use of her credit card and checks and omitted material information regarding said use. (FACC at 69.) Battaglia argues the fourth cause of action is subject to demurrer as the claim is barred by the three-year statute of limitations. A statute of limitations prescribes the period beyond which a plaintiff may not bring a cause of action. [Citations.] (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Ca|.4th 797, 806.) It strikes a balance among conflicting interests. If it is unfair to bar a plaintiff from recovering on a meritorious claim, it is also unfair to require a defendant to defend against possibly false allegations concerning long-forgotten events, when important evidence may no longer be available. (Pooshs v. Philip Morris USA, Inc. (2011) 51 Ca|.4th 788, 797.) A plaintiff must bring a claim within the limitations period after accrual of the cause of action. In other words, statutes of limitation do not begin to run until a cause of action accrues. Generally speaking, a cause of action accrues at the time when the cause of action is complete with all its elements. (V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 509-510, internal citations and quotation marks omitted.) A court may sustain a demurrer on the ground of failure to state sufficient facts if the complaint shows on its face the statute [of limitations] bars the action. (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315 (E-Fab, |nc.).) A demurrer is not sustainable ifthere is only a possibility the cause of action is time-barred; the statute of limitations defense must be clearly and affirmatively apparent from the allegations in the pleading. (Id. at pp. 1315-1316.) When evaluating whether a claim is time-barred, a court must determine (1) which statute of limitations applies and (2) when the claim accrued. (E-Fab, |nc., supra, 153 Cal.App.4th at p. 1316.) A claim for fraud is subject to a three-year statute of limitations. (See Code Civ. Proc., 338, subd. (d).) A cause of action for fraud does not accrue until discovery, by the aggrieved party, of the facts constituting the fraud. (Brandon G. v. Gray (2003) 111 Cal.App.4th 29, 35.) This is the date the complaining party learns, or at Printed: 10/7/2021 10/07/2021 Hearing: Demurrer - 20CV373069 Page 6 of 13 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER least is put on notice, that a representation was false. (|bid.) Here, Battaglia argues Koechlin made discovery of facts constituting the fraud in 2015. This contention however is not supported by the pleading. Rather, the FACC refers to discovery of the fraud sometime after the parties separated in July 2020. (See FACC 27, 29, 37.) Such allegations must be accepted as true for purposes of demurrer. (See Olson v. Toy (1996) 46 Cal.App.4th 818, 823 [for purposes of demurrer, we accept these allegations as true].) Thus, the fraud claim accrued at the earliest in July 2020. As the initial cross-complaint was filed in March 2021, the claim appears to be timely and therefore the demurrer is not sustainable on this ground. Accordingly, the demurrer to the fourth cause of action on the ground that it fails to state a claim is OVERRULED. Eighth Cause of Action Breach of Oral Contract The elements of a breach of oral contract claim are the same as those for a breach of written contract: a contract; its performance or excuse for nonperformance; breach; and damages. (Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453.) In the eighth cause of action, Koechlin alleges, in late May 2015, Battaglia made an offer to her where he promised to reimburse her in full and occasionally give Koechlin Warriors tickets if she provided her credit card to the Golden State Warriors and San Jose Sharks for payment of Battaglia s season tickets. (FACC at 95.) Koechlin agreed and, at various times between March 2015 and August 2018, Koechlin paid for Battaglia s season tickets. (|bid.) But, there is a significant balance outstanding as Battaglia has failed to pay Koechlin for approximately $50,000 of season tickets incurred under the parties agreement. (Id. at 96.) Battaglia argues the eighth cause of action is subject to demurrer as the claim is barred by the two-year statute of limitations. A claim for breach of oral contract is subject to a two-year statute of limitations. (See Code Civ. Proc., 339, subd. (1).) [A] breach of contract ordinarily occurs upon the promisor s failure to render the promised performance. Therefore, to pinpoint the time of an alleged breach for purposes of the statute of limitations, it is necessary to establish what it was the defendant promised to do, or refrain from doing, and when its conduct diverged from that promise. (McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 958) This argument however is underdeveloped as Battaglia fails to even identify a date when the oral agreement was breached to trigger the two-year statute of limitations. (See Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [court is not required to examine undeveloped claims, nor to make arguments for the parties].) Nor is it clear from the face of the pleading when the oral contract was breached. Instead, Koechlin alleges only that Battaglia made payments to her for the Warriors tickets at various times between April 2015 and May 2019. (See FACC at 96.) Thus, any such breach would occur at the earliest in May orJune 2019. As the initial cross-complaint was filed in March 2021, the claim appears to be timely and the demurrer is not Printed: 10/7/2021 10/07/2021 Hearing: Demurrer - 20CV373069 Page 7 of 13 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER sustainable on this ground. Therefore, the demurrer to the eighth cause of action on the ground that it fails to state a claim is OVERRULED. Ninth Cause of Action Conversion Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff s ownership or right to possession ofthe property; (2) the defendant s conversion by a wrongful act or disposition of property rights; and (3) damages. (Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 208 (Welco Electronics), internal quotation marks and citations omitted.) Money may be the subject of conversion if the claim involves a specific, identifiable sum; it is not necessary that each coin or bill be earmarked. (Welco Electronics, supra, 223 Cal.App.4th at p. 209.) In addition, [c]redit card, debit card, or PayPaI information may be the subject of a conversion. (Id. at p. 212.) In the ninth cause of action, Koechlin alleges she was the lawful owner of her checks, credit cards and the funds used to pay for said check and credit transactions. (FACC at 100.) At various times between February 2014 and July 2020, Battaglia converted Koechlin s property by forging her checks and using her credit card without her authorization by apparently taking these items from her purse without her knowledge or consent. (Id. at 99.) Battaglia argues the conversion claim is subject to demurrer as Koechlin fails to identify the amount of charges in connection with the check and credit transactions. While Battaglia contends this constitutes a demurrer for uncertainty, this argument goes to whether Koechlin has stated a valid claim for conversion and the court treats it as such. In opposition, Koechlin appears to concede the argument as she requests leave to amend to allege the approximate amount of credit card charges and checks forged. (See OPP at p. 11:26-27.) Consequently, the demurrer to the ninth cause of action is SUSTAINED WITH 20 DAYS LEAVE TO AMEND for failure to state a claim. Having sustained the demurrer on this ground, the court declines to address the statute of limitations argument. Eleventh Cause of Action Abuse of Process Printed: 10/7/2021 10/07/2021 Hearing: Demurrer - 20CV373069 Page 8 of 13 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER In opposition, Koechlin has agreed to dismiss her eleventh cause of action for abuse of process. (See OPP at p. 13:1-2.) Accordingly, the demurrer to the eleventh cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. Twelfth Cause of Action Extortion Extortion is defined as the obtaining of property from another, with his consent induced by a wrongful use of force or fear (Pen. Code, 518.) It includes the making of threats that, in and of themselves, may not be illegal, but which nevertheless becomes illegal when coupled with a demand for money. (Flatley v. Mauro (2006) 39 Cal.4th 299, 326.) Although extortion is a crime, case law has recognized the existence of a civil cause of action for extortion. (|bid.; Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 426 (Fuhrman) [ However denominated (e.g., extortion, menace, duress), our Supreme Court has recognized a cause of action for the recovery of money obtained by the wrongful threat of criminal or civil prosecution ], disapproved on another ground in Silberg v. Anderson (1990) 50 Ca|.3d 205, 219.) A civil cause of action for extortion is essentially a cause of action for moneys [or other consideration] obtained by duress (Fuhrman, supra, 169 Cal.App.3d at p. 426; see Leeper v. Beltrami (1959) 53 Ca|.2d 195, 207.) The doctrine may come into play upon the doing of a wrongful act which is sufficiently coercive to cause a reasonably prudent person to succumb to the perpetrator s pressure. (Rich & Whillock, Inc. v. Ashton Development, Inc. (1984) 157 Cal.App.3d 1154, 1157.) In the twelfth cause of action, Koechlin alleges, on September 2, 2020, Battaglia knowingly and wrongfully posted a formal Notice to Vacate on the door of Koechlin s tenant falsely claiming to be the property owner and threatening further legal action and removal if she did not vacate the property. (FACC at 116.) Battaglia argues there is no claim stated as the simple placement of a note asking the tenant to vacate does not constitute extortion. In support, Battaglia relies on Malin v. Singer (2013) 217 Cal.App.4th 1283 (Malin) where the appellate court, in the context of an anti-SLAPP motion, determined there was no extortion arising from an attorney demand letter without any overt threat of criminal prosecution. (Malin, supra, 217 Cal.App.4th at pp. 1288-1289, 1299.) As stated above, a claim for extortion requires a threat of civil or criminal prosecution. (Fuhrman, supra, 169 Cal.App.3d at p. 426.) Such a threat exists here as Koechlin alleges the Notice to Vacate threatened future legal action if the tenant failed to vacate the property. (FACC at 116.) This allegation, which must be accepted as true, is sufficient to state a claim for civil extortion and overcome a pleading challenge on demurrer. Therefore, the demurrer to the twelfth cause of action on the ground that it fails to state a claim is OVERRULED. Printed: 10/7/2021 10/07/2021 Hearing: Demurrer - 20CV373069 Page 9 of 13 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Thirteenth Cause of Action Unjust Enrichment Unjust enrichment is not a cause of action or even a remedy, but rather a general principle underlying various legal doctrines and remedies. (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231.) It is synonymous with restitution. (|bid.) This court therefore construes the thirteenth cause of action as a quasi-contract claim seeking restitution. (|bid.) There are several potential bases for a cause of action seeking restitution. For example, restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason. [Citations.] Alternatively, restitution may be awarded where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion or similar conduct. In such cases, the plaintiff may choose not to sue in tort, but instead seek restitution on a quasi- contract theory (an election referred to at common law as waiving the tort and suing in assumpsit ). [Citations.] In such cases, where appropriate, the law will imply a contract (or rather, a quasi-contract), without regard to the parties intent, in order to avoid unjust enrichment. [Citations.] (McBride v. Boughton (2004) 123 Cal.App.4th 379, 388.) The law of restitution allows an individual to make restitution if he or she is unjustly enriched at the expense of another. (First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1662 (First Nationwide Savings).) A person is enriched if the person receives a benefit at another s expense. [Citation.] Benefit means any type of advantage. [Citations.] (|bid.) The fact that one person benefits another is not, by itself, sufficient to require restitution. The person receiving the benefit is required to make restitution only if the circumstances are such that, as between the two individuals, it is unjust for the person to retain it. [Citation.] (First Nationwide Savings, supra, 11 Cal.App.4th at p. 1663, italics in the original.) The relevant allegations in support of the unjust enrichment claim are set forth in paragraphs 121, 122, and 123 which provide: 121: Between March 2014 and July 2020, KOECHLIN conferred various benefits upon BATTAGLIA, including but not limited to use and enjoyment of her property and assets, monetary loans, companionship, social status, and domestic services. In addition, BATTAGLIA wrongfully took monies from KOECHLIN without her knowledge or consent. 122: The benefits conferred were at KOECHLIN s expense, including her time, effort, and monies. 123: It would be unjust for BATTAGLIA to retain the monies that were loaned and/or taken from KOECHLIN. In addition, it would be unjust for BATTAGLIA to receive KOECHLIN s services and use of enjoyment of her property and assets at no cost. Printed: 10/7/2021 10/07/2021 Hearing: Demurrer - 20CV373069 Page 10 of 13 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER In opposition, Koechlin requests leave to amend to include additional facts showing she incurred expenses for services and items that she would not have incurred but for Battaglia s request. (See OPP at p. 15:5-9.) Accordingly, the demurrer to the thirteenth cause of action is SUSTAINED WITH 20 DAYS LEAVE TO AMEND for failure to state a claim. Fourteenth Cause of Action Intentional Infliction of Emotional Distress A cause of action for intentional infliction of emotional distress exists when there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard ofthe probability of causing, emotional distress; (2) the plaintiff s suffering severe or extreme emotional distress; and (3) actual and proximate causation ofthe emotional distress by the defendant s outrageous conduct. (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780, citations and quotation marks omitted.) An essential element of a cause of action for intentional infliction of emotional distress is extreme and outrageous conduct by the defendant. [Citation.] (Yurick v. Super. Ct. (1989) 209 Cal.App.3d 1116, 1123.) [T]he standard forjudging outrageous conduct does not provide a bright line rigidly separating that which is actionable from that which is not. Indeed, its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser s values, sensitivity threshold, and standards of civility. (Id. at p. 1128.) [|]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. The plaintiff cannot recover merely because of hurt feelings. (|bid.) Thus, [c]onduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.) Whether conduct is outrageous is usually a question of fact. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 204.) The relevant allegations in support of the intentional infliction of emotional distress claim are stated in paragraph 128 which provides: 128: KOECHLIN has suffered severe emotional distress as a direct result of BATTAGLIA s outrageous conduct, including but not limited to defrauding KOECHLIN as it relates to BATTAGLIA s false love and affection, marital and paternity status, education and professional status, forgery of her checks, unauthorized use of her credit card, harassment, interfering with third party contracts, breaching agreements, and wrongful attempts to deprive her of property and assets. Battaglia argues the fourteenth cause of action is barred by the statute of limitations. This contention however is underdeveloped as he fails to identify any legal authority or analysis establishing which statute of limitations applies and when such a cause of action would accrue. (See E-Fab, |nc., supra, 153 Cal.App.4th at p. 1316.) The demurrer therefore is not sustainable on this ground. Printed: 10/7/2021 10/07/2021 Hearing: Demurrer - 20CV373069 Page 11 of 13 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Battaglia also argues no actionable outrageous conduct has been alleged. But, this contention fails as it is devoid of legal argument or analysis addressing specific allegations in the fourteenth cause of action. (See Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 [We are not required to examine undeveloped claims or to supply arguments for the litigants. ]; Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 [We will not develop the appellants arguments for them ]; see also Perry v. City of San Diego (2021) 65 Cal.App.5th 172, 188, fn. 8 [ It is not this court s role to connect the dots. ].) Consequently, the demurrer to the fourteenth cause of action on the ground that it fails to state a claim is OVERRULED. Disposition The demurrer to the first, second, ninth, and thirteenth causes of action is SUSTAINED WITH 20 DAYS LEAVE TO AMEND for failure to state a claim. The demurrer to the third and eleventh causes of action is SUSTAINED WITHOUT LEAVE TO AMEND. The demurrer to the fourth, eighth, twelfth, and fourteenth causes of action on the ground that they fail to state a valid claim is OVERRULED. The court will prepare the Order. Printed: 10/7/2021 10/07/2021 Hearing: Demurrer - 20CV373069 Page 12 of 13 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Printed: 10/7/2021 10/07/2021 Hearing: Demurrer - 20CV373069 Page 13 of 13