Newmark of Southern California, Inc.: Demurrer and Motion to Strike Directed to the First Amended Complaint

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on January 27, 2027, at 9:30 a.m., or as soon thereafter as the matter may be heard, in Department 412 of the above-entitled Court, located at the Stanley Mosk Courthouse, 111 North Hill Street, Los Angeles, California 90012, Defendant Newmark of Southern California, Inc. (“Newmark”) will and hereby does demur generally to the Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth Causes of Action of the First Amended Complaint (“FAC”) filed by Plaintiffs Matt Barkohanai (“Barkohanai”) and Bark Tax Service Inc. dba Marina Pointe Realty (“Marina Pointe”) (together, “Plaintiffs”). The hearing was reserved through the Court’s online reservation system (Reservation ID 513457177411).

The demurrer is made under Code of Civil Procedure section 430.10, subdivision (e), on the ground that each challenged cause of action fails to state facts sufficient to constitute a cause of action against Newmark, as set forth in the Demurrer below.

This demurrer is made following the meet and confer required by Code of Civil Procedure section 430.41, as set forth in the concurrently filed Declaration of Gaurav K. Reddy. It is based on this Notice, the Demurrer, the Memorandum of Points and Authorities, the Reddy Declaration, the pleadings and records on file in this action, and such further argument and matters as the Court may consider at or before the hearing.

DEMURRER

Newmark demurs to the FAC on each of the following grounds (Code Civ. Proc., § 430.10, subd. (e); Cal. Rules of Court, rule 3.1320(a)):

DEMURRER TO FOURTH CAUSE OF ACTION (Breach of Contract)

1. The Fourth Cause of Action fails to state facts sufficient to constitute a cause of action against Newmark because the FAC and its exhibits do not allege the formation of an enforceable contract, including an offer, acceptance, or ascertainable compensation term.

DEMURRER TO FIFTH CAUSE OF ACTION (Intentional Interference with Prospective Economic Advantage)

2. The Fifth Cause of Action fails to state facts sufficient to constitute a cause of action against Newmark because the FAC does not allege an existing economic relationship with a reasonable probability of future benefit, independently wrongful conduct by Newmark directed at that relationship, or disruption caused by Newmark.

DEMURRER TO SIXTH CAUSE OF ACTION (Negligent Misrepresentation)

3. The Sixth Cause of Action fails to state facts sufficient to constitute a cause of action against Newmark because the FAC does not allege a positive assertion of past or existing fact, justifiable reliance, or resulting damage.

DEMURRER TO SEVENTH CAUSE OF ACTION (Breach of the Implied Covenant of Good Faith and Fair Dealing)

4. The Seventh Cause of Action fails to state facts sufficient to constitute a cause of action against Newmark because the FAC does not allege an underlying contract, because the claim duplicates the Fourth Cause of Action.

DEMURRER TO EIGHTH CAUSE OF ACTION (Fraud: Promise Without Intent to Perform and Concealment)

5. The Eighth Cause of Action fails to state facts sufficient to constitute a cause of action against Newmark because the FAC does not allege, with the required particularity, an actionable promise or misrepresentation, an intent not to perform, a duty to disclose, justifiable reliance, or resulting damage.

DEMURRER TO NINTH CAUSE OF ACTION (Promissory Estoppel)

6. The Ninth Cause of Action fails to state facts sufficient to constitute a cause of action against Newmark because the FAC does not allege a clear and unambiguous promise or reasonable reliance.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

This action seeks to convert a single, noncommittal email into an $880,000 commission obligation. When Barkohanai asked the listing broker, Newmark, what compensation the seller offered for bringing a buyer, Newmark’s Rob Hannan answered: “There is no formal arrangement.” (FAC ¶ 17, Ex. 1.) Hannan added that Barkohanai “should request what you think you deserve and it wil[l] be netted out of your price.” (Ibid.) A week later, Barkohanai “respectfully request[ed]” 2% and asked that “the sellers factor this into their selling price.” (FAC Ex. 2.) No one agreed. The buyer Barkohanai introduced, his cousin Bobby Saadian (“Saadian”), refused to sign any representation agreement and declared he was “not looking for an agent.” (FAC ¶ 32.)

The FAC arises from the December 2024 sale of a downtown Los Angeles office building. Plaintiffs, an alleged cooperating broker and its broker-officer, claim that they introduced the eventual buyer, Saadian, to the Property and are owed at least a 2% commission ($880,000) on the $44,000,000 sale. (FAC ¶¶ 1–2, 78.) The FAC pleads nine causes of action. The First through Third are asserted only against Saadian and his acquisition entity, and they rest on Saadian’s alleged promises to pay a buyer-side fee. (FAC ¶¶ 47–68.) The Fourth through Ninth are asserted against Newmark, the Seller’s listing broker. They rest on two short emails from Newmark’s Hannan, sent July 30 and August 8, 2024, which Plaintiffs recast as a binding “Cooperation Agreement,” an enforceable promise to pay, and a set of actionable misrepresentations. (FAC ¶¶ 18, 70, 85, 95–96, 105.)

On these facts, which come from the FAC and its own exhibits, Plaintiffs plead six claims against Newmark. Each fails. There was no contract or clear promise (Fourth, Seventh, and Ninth Causes of Action); no reasonably probable buyer-side expectancy that Newmark disrupted (Fifth); no actionable statement of existing fact (Sixth); and no particularized promissory fraud or duty to disclose (Eighth). Because the exhibits will not change, the demurrer should be sustained without leave to amend.

II. FACTUAL AND PROCEDURAL BACKGROUND

Overview. The FAC alleges that Barkohanai, acting for Marina Pointe, identified the Property in July 2024, asked Newmark about cooperating-broker compensation, and introduced Saadian to the opportunity. (FAC ¶¶ 1, 16–19, 22–26.) According to the FAC, Saadian then refused to sign a buyer representation agreement, dealt with the Seller directly, and closed through 660 Fig LLC without paying Plaintiffs. (FAC ¶¶ 29–32, 37, 44–45.) Plaintiffs blame Saadian for promising and then withholding a buyer-side fee, and blame Newmark for not building their requested fee into the deal. (FAC ¶¶ 50–51, 77, 82.) The allegations below, all drawn from the FAC and its exhibits, are the ones relevant to the claims against Newmark.

Newmark was the listing broker for 660 South Figueroa Street (the “Property”). (FAC ¶ 7.) On July 29, 2024, Barkohanai asked Newmark, “What % compensation is the seller offering for bringing a buyer?” (FAC ¶ 16, Ex. 1.) Hannan replied on July 30: “There is no formal arrangement. You should request what you think you deserve and it wil [sic] be netted out of your price,” and asked “Who is your client?” and “Where are you ballpark on price?” (FAC ¶ 17, Ex. 1.) Plaintiffs label their understanding of this email the “Cooperation Agreement.” (FAC ¶ 18.) On August 2, in a subsequent exchange, Hannan wrote that a $40 million price “does not come close to covering the transaction costs (transfer tax, lawyer fees, broker fees, etc).” (FAC ¶ 96.)

Saadian refused to sign 1% and 0.5% buyer representation agreements and, on August 4, 2024, formally declined both, stating “I am not looking for an agent.” (FAC ¶¶ 29–32.) On August 6, Barkohanai told Newmark that Saadian was “attempting to work directly with David [Taban] to cut us out of our commissions.” (FAC ¶ 81, Ex. 2.) On August 7, 2024, Barkohanai asked Newmark to “pass my emails along to David Taban and the rest of the sellers,” “respectfully request[ed] to be compensated no less than 2% of the sales price,” and “kindly ask[ed] that the sellers factor this into their selling price.” (FAC Ex. 2.) On August 8, 2024, Hannan replied: “Kevin Shannon who runs our team is handling this with Taban. Taban will be aware.” (FAC ¶ 21, Ex. 2.) The seller conveyed the Property to Saadian’s entity on December 17, 2024 for $44,000,000. (FAC ¶ 44.)

Causes of Action Against Newmark. The FAC asserts six causes of action against Newmark: (1) the Fourth, for breach of an alleged interbroker “Cooperation Agreement” (FAC ¶¶ 69–78); (2) the Fifth, for intentional interference with Marina Pointe’s alleged buyer-side compensation expectancy from Saadian (FAC ¶¶ 79–83); (3) the Sixth, for negligent misrepresentation (FAC ¶¶ 84–88); (4) the Seventh, for breach of the implied covenant of good faith and fair dealing (FAC ¶¶ 89–93); (5) the Eighth, for promissory fraud and concealment (FAC ¶¶ 94–103); and (6) the Ninth, for promissory estoppel (FAC ¶¶ 104–112). The Fourth, Fifth, Seventh, and Ninth are brought by Marina Pointe alone; the Sixth and Eighth are brought by both Plaintiffs.

Procedural History. Plaintiffs filed this action on July 23, 2026, and filed the FAC on August 14, 2026. On October 9, 2026, Newmark’s counsel sent Plaintiffs’ counsel a letter identifying each cause of action subject to demurrer and the legal authority supporting each ground. (Declaration of Gaurav K. Reddy (“Reddy Decl.”), Ex. 1.) Counsel then met and conferred by telephone on October 14, 2026, but could not resolve the objections raised in this demurrer. (Reddy Decl.) Newmark has therefore satisfied Code of Civil Procedure section 430.41, subdivision (a).

III. LEGAL STANDARD

A demurrer tests the legal sufficiency of the complaint. The court treats the demurrer “‘as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The well-pleaded allegations “‘necessarily include the contents of any exhibits attached to the complaint,’” and “‘the contents of an incorporated document . . . will take precedence over and supersede any inconsistent or contrary allegations set out in the pleading.’” (Westamerica Bank v. City of Berkeley (2011) 201 Cal.App.4th 598, 607, quoting Building Permit Consultants, Inc. v. Mazur (2004) 122 Cal.App.4th 1400, 1409; see also Holland v. Morse Diesel Internat., Inc. (2001) 86 Cal.App.4th 1443, 1447 [“We may also take notice of exhibits attached to the complaints. If facts appearing in the exhibits contradict those alleged, the facts in the exhibits will take precedence.”].) Leave to amend is properly denied where the plaintiff cannot show “a reasonable possibility that the defect can be cured by amendment[.]” (Blank, 39 Cal.3d at 318.) “The burden of proving such reasonable possibility is squarely on the plaintiff.” (Ibid.)

IV. ARGUMENT

A. The Fourth, Seventh, and Ninth Causes of Action Fail Because the FAC Does Not Allege a Contract or a Clear and Unambiguous Promise.

Each of these claims depends on the “Cooperation Agreement” or on a purported promise by Newmark to pay a commission. (FAC ¶¶ 70, 90, 105.) The Fourth Cause of Action requires a contract, and the only contract alleged is the Cooperation Agreement, which Plaintiffs say arose from Hannan’s July 30, 2024 email. (FAC ¶¶ 18, 70.) The Seventh Cause of Action alleges breach of a covenant implied into that same Cooperation Agreement, so it cannot exist unless the agreement does. (FAC ¶¶ 90–92.) The Ninth Cause of Action, pleaded in case the Cooperation Agreement is found unenforceable, rests on the same July 30 email recast as a “clear and unambiguous promise,” and on the August 8 email said to “renew[]” it. (FAC ¶¶ 104–105.) The FAC’s allegations on this point are conclusory, and its own exhibits contradict them. Where a complaint’s exhibits contradict its allegations, the exhibits control. (Holland, supra, 86 Cal.App.4th at 1447.)

First, the operative July 30, 2024 email disclaims any agreement. Hannan wrote: “There is no formal arrangement.” (FAC Ex. 1.) A communication that disclaims an arrangement is not an offer that can be accepted. “‘Preliminary negotiations or agreements for future negotiations—so- called agreements to agree—are not enforceable contracts.’” (Reeder v. Specialized Loan Servicing LLC (2020) 52 Cal.App.5th 795, 803; see Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 213 [“‘[T]here is no contract where the objective manifestations of intent demonstrate that the parties chose not to bind themselves until a subsequent agreement [was] made.’”]; Laks v. Coast Fed. Sav. & Loan Assn. (1976) 60 Cal.App.3d 885, 890–893 [affirming dismissal of promissory estoppel claim where recipients of conditional commitment lacking essential terms could not reasonably regard it as a binding offer].)

Second, the alleged agreement has no ascertainable price. Hannan’s statement that Barkohanai “should request what you think you deserve and it wil[l] be netted out of your price” describes how a proposed buyer-side fee would be submitted with, and evaluated as part of, a buyer’s offer. It is not a promise by Newmark to pay whatever sum Plaintiffs might later name. “‘Where a contract is so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained, the contract is void and unenforceable.’” (Cheema v. L.S. Trucking, Inc. (2019) 39 Cal.App.5th 1142, 1149, as modified on reh'g (Oct. 7, 2019); see Civ. Code, § 1598 [“Where a contract has but a single object, and such object is unlawful, whether in whole or in part, . . . or so vaguely expressed as to be wholly unascertainable, the entire contract is void.”]; see also Bustamante, supra, 141 Cal.App.4th at pp. 208–215 [“‘[T]he failure to reach a meeting of the minds on all material points prevents the formation of a contract even though the parties have orally agreed upon some of the terms, or have taken some action related to the contract.’”] [finding alleged agreement was unenforceable where the parties never agreed on material terms].)

Third, Plaintiffs’ own August 7, 2024 email shows there was no acceptance of an existing deal. Barkohanai asked Newmark to forward his emails to the sellers, “respectfully request[ed]” 2%, asked that "the sellers factor this into their selling price," and invited a discussion should there be any reasons why he “should not be compensated.” (FAC Ex. 2.) That is a request awaiting the seller’s decision, not acceptance of a contract formed on July 30. Hannan’s reply, “Taban will be aware,” accepted nothing. (Ibid.) Because the exhibits control over Plaintiffs’ characterization of them (Building Permit Consultants, supra, 122 Cal.App.4th at p. 1409), even the most favorable reading of the FAC cannot plead mutual consent to definite terms. (Farmers Ins. Exchange v. Superior Court (2026) 122 Cal.App.5th 333, 338 [“A contract is formed when the parties mutually consent to lawful terms. [Citation.] ‘“Mutual assent usually is manifested by an offer communicated to the offeree and an acceptance communicated to the offeror.” [Citation.] “If there is no evidence establishing a manifestation of assent to the ‘same thing’ by both parties, then there is no mutual consent to contract and no contract formation.” [Citation.]’”].)

Fourth, FAC paragraph 71’s “custom and practice” allegation—that a listing broker’s "silence coupled with continued use of the buyer constitutes assent"—is a conclusion the Court should not accept on demurrer. (See Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 889-890 [“Usage can be invoked only to interpret, not create contractual terms.”] [citing to 1 Witkin, Summary of Cal.Law (9th ed. 1990) Contracts § 696, p. 630].) Here, the FAC identifies no source, no prior dealings between the parties, and no factual basis showing a custom so established that the parties contracted with reference to it. Even if the FAC pleaded sufficient facts for this allegation, which it does not, it still cannot supply assent where the operative writing disclaims any arrangement.

These defects dispose of the Fourth Cause of Action and of the Seventh, which depends on an underlying contract. They also dispose of the Ninth. Promissory estoppel requires a promise that is clear and unambiguous and reliance that is reasonable and foreseeable. (Murphy v. Twitter, Inc. (2021) 60 Cal.App.5th 12, 38 [“A claim for promissory estoppel requires (1) a promise clear and unambiguous in its terms, (2) reliance by the party to whom the promise is made, (3) the reliance must be reasonable and foreseeable, and (4) the party asserting the estoppel must be injured by his or her reliance.”].) An email stating “[t]here is no formal arrangement” is neither, and a licensed broker’s reliance on it is unreasonable as a matter of law, particularly where Barkohanai’s August 7 email shows his understanding that seller approval was required. (See Westside Estate Agency, Inc. v. Randall (2016) 6 Cal.App.5th 317, 328 [licensed broker could not reasonably rely on an unwritten contract unless its principal committed actual fraud].)

B. The Seventh Cause of Action Independently Fails Because It Duplicates the Fourth.

The Seventh Cause of Action alleges the same conduct—closing the sale without paying Plaintiffs—and seeks the same $880,000 as the Fourth, while disclaiming “double recovery” between the two. (FAC ¶¶ 92–93.) An implied covenant claim that relies on the same acts and seeks the same damages as a contract claim is superfluous and may be disregarded. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395 [“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.”].)

C. The Fifth Cause of Action Fails Because Saadian Ended Any Expectancy Before Newmark’s Alleged Conduct.

Intentional interference with prospective economic advantage requires an economic relationship with a probability of future benefit, independently wrongful conduct by the defendant, and resulting disruption. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153– 1159; Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 521–524.) A plaintiff that pleads “at most a hope for an economic relationship and a desire for future benefit” states no claim. (Blank, supra, 39 Cal.3d at 330-331.)

The relationship alleged is between Marina Pointe and Saadian for a buyer-side fee. (FAC ¶ 80.) The FAC pleads that Saadian refused to sign either representation agreement and, on August 4, 2024, formally declined both, stating “I am not looking for an agent.” (FAC ¶¶ 30–32.)

The conduct attributed to Newmark begins with the August 8, 2024 email. (FAC ¶ 82.) Any expectancy had already ended before that date, and Saadian’s later statements about “some money” or a $70,000 “courtesy” depended entirely on his own discretion. (FAC ¶¶ 57, 80.) Moreover, the alleged wrongful act is a statement made to Plaintiffs, not conduct directed at Saadian, and the FAC does not allege how anything Newmark did caused Saadian to withhold a fee he had already refused to pay. The FAC elsewhere attributes the disruption to Saadian himself. (FAC ¶¶ 50–51, 67.)

D. The Eighth Cause of Action Does Not Plead Fraud With the Required Particularity.

“In California, fraud must be pled specifically; general and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) “The elements of fraud, which give rise to the tort action for deceit, 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.” (Id. at p. 638.) Promissory fraud is a subspecies of fraud: a promise made without any intention of performing it carries an implied misrepresentation of fact. (Ibid.; Civ. Code, § 1710, subd. 4.) The Eighth Cause of Action fails on several elements.

No actionable promise. As discussed above in Section IV-A, “There is no formal arrangement” (FAC ¶¶ 17, 95, Ex. 1) negates a promise, and “Taban will be aware” (FAC ¶¶ 21, 35, 96, Ex. 2) is not a promise to pay anything.

No facts showing intent not to perform. The facts alleged in paragraphs 97 and 102 consist of later nonperformance—Newmark’s continued dealings with the buyer and the closing without payment. An unkept promise or a later failure of performance does not plead fraudulent intent at the time the promise was made. (See Reeder, supra, 52 Cal.App.5th at 803-804; Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159.) The alternative theory that Newmark intended to deal around Plaintiffs "if the opportunity arose" (FAC ¶ 97) is speculation. Conclusory allegations of this kind do not survive demurrer: “[i]t is insufficient to show an unkept but honest promise, or mere subsequent failure of performance” (Reeder, supra, 52 Cal.App.5th at 804, quoting Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1183 [affirming order sustaining demurrer to promissory fraud claim]), and “something more than nonperformance is required to prove the defendant’s intent not to perform his promise” (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30–31).

No duty to disclose. The concealment theory requires a duty to disclose. The FAC alleges no fiduciary or transactional relationship between a listing broker and an unaffiliated cooperating broker that would create such a duty. (See LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336–337.)

No justifiable reliance or causation. By August 6, 2024, Plaintiffs already believed Saadian was trying to "cut us out" (FAC ¶ 81, Ex. 2), and he had already declined representation (FAC ¶ 32). The alleged forbearance from contacting the seller (FAC ¶ 100) is contradicted by Plaintiffs’ own August 7, 2024 request that Newmark forward their emails to the seller. (FAC ¶ 34, Ex. 2.) And damages measured by “protective steps” Plaintiffs did not take (FAC ¶¶ 100, 103) are speculative, because the FAC does not allege that any such step would have produced payment from a buyer who refused to pay.

E. The Sixth Cause of Action Fails Because It Rests on a Prediction, Not a Statement of Existing Fact.

Negligent misrepresentation requires a positive assertion of past or existing fact; it does not lie for a promise to perform in the future. (Tarmann, supra, 2 Cal.App.4th 153, 158.) The Sixth Cause of Action rests solely on the August 8, 2024 email: “Kevin Shannon who runs our team is handling this with Taban. Taban will be aware.” (FAC ¶ 85, Ex. 2.) That “Taban will be aware” is a prediction, and neither sentence represents that Plaintiffs would be paid.

Justifiable reliance is an essential element of negligent misrepresentation, which requires “(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.” (Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243.) Courts agree that “the causal elements, particularly the allegations of reliance, must be specifically pleaded.” (National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50 citing Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.)

Here, the FAC does not plead justifiable reliance caused by the August 8, 2024 email. Plaintiffs’ principal acts—introducing Saadian and transmitting his interest on August 2, 2024— preceded the email and could not have been induced by it. The only remaining reliance is purported forbearance from contacting the seller or escrow (FAC ¶ 87), which is inconsistent with Plaintiffs’ August 7, 2024 request that Newmark forward their emails to the seller.

The FAC also alleges only generalized “reliance and consequential damages” (FAC ¶ 88), without identifying any loss allegedly caused by the August 8, 2024 email. That is not enough. “Deception without resulting loss is not actionable,” and “[w]hatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representations must be shown.” (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1818 [internal quotation marks omitted]; see National Union, supra, 171 Cal.App.4th at 50 [negligent misrepresentation claim failed where causal connection between reliance and injury “was left entirely unclear”].)

V. CONCLUSION

The Court should sustain Newmark’s demurrer to the Fourth through Ninth Causes of Action. Because the defects arise from Plaintiffs’ own exhibits, which cannot be amended, and Plaintiffs have already amended once, the demurrer should be sustained without leave to amend.

Pages 15 and 16 of the PDF are the proof of service and service list. They are omitted here because they carry only counsel service contact details and no substantive content. They remain in the PDF.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

I, Gaurav Reddy, declare as follows:

1. I am an attorney at law duly licensed to practice before all courts of the State of California and am counsel of record for Defendant Newmark of Southern California, Inc. ("Newmark") in this action. I have personal knowledge of the facts stated in this declaration and, if called as a witness, could and would testify competently to them. I submit this declaration under Code of Civil Procedure section 430.41 in support of Newmark’s Demurrer to the First Amended Complaint ("FAC").

2. Barak Lurie and Dane H. Taylor of Lurie & Associates are counsel of record for Plaintiffs Matt Barkoahani and Bark Tax Service Inc. dba Marina Pointe Realty (together, “Plaintiffs”). By agreement of counsel, Newmark’s deadline to respond to the FAC was extended to October 19, 2026.

3. On October 9, 2026, I sent Plaintiffs’ counsel, by email to Mr. Lurie and Mr. Taylor, a meet and confer letter under Code of Civil Procedure sections 430.41 and 435.5. The letter identified each cause of action and allegation Newmark contends is subject to demurrer or to a motion to strike, explained the legal bases for Newmark’s positions with supporting authority, asked whether Plaintiffs would dismiss or amend the challenged causes of action and allegations, and proposed dates of October 12, 13, or 14, 2026, for a conference. A true and correct copy of the October 9, 2026 letter is attached as Exhibit 1.

4. On October 14, 2026, I met and conferred with Plaintiffs’ counsel, Mr. Taylor, by telephone regarding the matters set forth in my October 9, 2026 letter, including the grounds for the demurrer. The parties discussed each of the issues identified in the letter, but did not reach an agreement resolving the objections Newmark raises in its demurrer. Plaintiffs did not agree to dismiss or amend the challenged causes of action, and counsel reached an impasse.

5. During the October 14, 2026 telephone conference, I informed Plaintiffs’ counsel that, because the parties had not resolved the issues, Newmark would file its demurrer and motion to strike on October 19, 2026.

6. The telephonic meet and confer took place at least five days before the date Newmark’s responsive pleading was due.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on October 19, 2026, at Irvine, California.

EXHIBIT 1

CANTOR FITZGERALD SECURITIES

18401 Von Karman Ave., Suite 150 | Irvine, CA 92612

Tel: (310) 282-6512 | gaurav.reddy@cantor.com

Gaurav Reddy, Esq.

Direct: (310) 282-6512

Email: gaurav.reddy@cantor.com

October 9, 2026

VIA EMAIL

Barak Lurie, Esq. (barak@lurie-law.com)

Dane H. Taylor, Esq. (dane@lurie-law.com)

LURIE & ASSOCIATES

12121 Wilshire Boulevard, Suite 300

Los Angeles, California 90025

Telephone: (310) 478-7788

Re: Barkohanai v. Saadian, et al., LA Superior Court Case No. 26STCV23348 Meet and Confer Regarding Newmark of Southern California’s Demurrer and Motion to Strike (Code Civ. Proc. §§ 430.41, 435.5)

Counsel:

I write on behalf of Defendant Newmark of Southern California, Inc. ("Newmark") under Code of Civil Procedure sections 430.41 and 435.5 regarding the First Amended Complaint ("FAC") filed August 14, 2026 by Plaintiffs Matt Barkohanai and Bark Tax Service Inc. d/b/a Marina Pointe Realty ("Marina Pointe") (together, "Plaintiffs"). Under our agreement, Newmark’s response to the FAC is due October 19, 2026. Newmark intends to demur to the Fourth through Ninth Causes of Action and to move to strike portions of the FAC. This letter identifies the grounds for both motions so that the parties may try to resolve or narrow the issues before filing. Paragraph and exhibit references are to the FAC.

I. GROUNDS FOR DEMURRER (Code Civ. Proc. § 430.10)

A. Fourth, Seventh, and Ninth Causes of Action: The FAC Does Not Allege a Contract or a Clear and Unambiguous Promise.

Each of these causes of action depends on the alleged "Cooperation Agreement" or on a purported promise by Newmark to pay Plaintiffs a commission. The FAC’s allegations on this point are conclusory, and its own exhibits contradict them. Where a complaint’s exhibits contradict its allegations, the exhibits control. (Holland v. Morse Diesel Internat., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

• The July 30, 2024 email from Rob Hannan on which Plaintiffs rely states: "There is no formal arrangement." (¶ 17; Ex. 1.) A writing that disclaims any arrangement is not an offer capable of acceptance. (See Laks v. Coast Fed. Sav. & Loan Assn. (1976) 60 Cal.App.3d 885, 890–891 [recipient of conditional commitment lacking essential terms could not reasonably regard it as a binding offer]; Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 213 [preliminary negotiations and “agreements to agree” are not enforceable contracts].)

• Mr. Hannan’s instruction to "request what you think you deserve and it wil[l] be netted out of your price" describes how a proposed buyer-side fee would be submitted and evaluated with an offer. (Ex. 1.) It is not a commitment by Newmark to pay whatever amount Plaintiffs might later choose. An agreement with no ascertainable price term is too indefinite to enforce. (Bustamante, supra, 141 Cal.App.4th at 208–209, 213 [no contract where compensation terms remained unsettled]; Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770–771 [promise to pay commissions at “parity” too vague and indefinite to create contractual duty]; see Civ. Code § 1598.)

• Mr. Barkohanai’s own August 7, 2024 email asked Newmark to "pass my emails along to David Taban and the rest of the sellers," "respectfully request[ed]" 2%, and asked "that the sellers factor this into their selling price." (Ex. 2.) That is a request for the seller’s consideration, not acceptance of an agreement already formed. Mr. Hannan’s August 8, 2024 reply ("Taban will be aware") does not accept the request.

• The "custom and practice" allegation in paragraph 71, under which silence and continued dealing purportedly constitute assent, is an unsupported legal conclusion. It identifies no source, no prior dealings between the parties, and no facts showing a custom so established that the parties contracted with reference to it. It cannot create mutual assent where the operative writings disclaim any arrangement.

These defects defeat the Fourth Cause of Action (breach of contract) and the Seventh Cause of Action (implied covenant), both of which require an underlying contract. They also defeat the Ninth Cause of Action (promissory estoppel), which requires a promise that is "clear and unambiguous in its terms" (Laks, supra, 60 Cal.App.3d at 890) and reasonable reliance. A broker’s reliance on an email stating "[t]here is no formal arrangement" is unreasonable as a matter of law, particularly where Mr. Barkohanai’s August 7 email reflects Plaintiffs’ understanding that seller approval was required. (See Westside Estate Agency, Inc. v. Randall (2016) 6 Cal.App.5th 317 [licensed broker’s status foreclosed reasonable reliance].)

B. Fifth Cause of Action (Intentional Interference with Prospective Economic Advantage): No Reasonably Probable Expectancy and No Causation.

The Fifth Cause of Action alleges interference with a buyer-side compensation relationship between Marina Pointe and Mr. Saadian. (¶ 80.) The tort requires an existing economic relationship with a reasonable probability of future benefit, independently wrongful conduct by the defendant, and resulting disruption. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153–1159; Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 521–524.) The FAC pleads that Mr. Saadian refused to sign and, on August 4, 2024, formally declined both buyer representation agreements, stating "I am not looking for an agent." (¶¶ 30– 32.)

The conduct attributed to Newmark begins with the August 8, 2024 email. (¶ 82.) Any expectancy had ended before that date, and later statements by Mr. Saadian (¶¶ 57, 80) depended entirely on his discretion. The alleged wrongful act is also a statement made to Plaintiffs, not conduct directed at Mr. Saadian, and the FAC does not allege how any act by Newmark caused Mr. Saadian to withhold a fee he had already refused to pay. Elsewhere, the FAC attributes the disruption to Mr. Saadian. (¶¶ 50–51, 67.)

C. Seventh Cause of Action (Breach of the Implied Covenant): Duplicative of the Fourth Cause of Action.

The Seventh Cause of Action relies on the same alleged conduct and seeks the same $880,000 as the Fourth Cause of Action (¶¶ 92–93), and expressly disclaims double recovery between the two. An implied covenant claim that merely duplicates a contract claim is superfluous and may be disregarded. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.)

D. Eighth Cause of Action (Promissory Fraud and Concealment): No Actionable Promise, Intent, Duty, or Justifiable Reliance.

Fraud must be pleaded with particularity as to each element. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The Eighth Cause of Action fails for several reasons:

• No actionable promise. As discussed above, "There is no formal arrangement" (Ex. 1; ¶¶ 17, 95) negates a promise, and "Taban will be aware" (Ex. 2; ¶¶ 21, 35, 96) is not a promise to pay.

• No facts showing intent not to perform. The facts alleged in paragraphs 97 and 102 consist largely of later nonperformance, which is insufficient to plead fraudulent intent at the time a promise was made. The alternative intent theory in paragraph 97 is speculative.

• No duty to disclose. The FAC alleges no fiduciary or transactional relationship between a listing broker and an unaffiliated allegedly cooperating “broker” that would support a concealment claim. (See LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336–337.)

• No justifiable reliance or causation. By August 6, 2024, Plaintiffs already believed Mr. Saadian was attempting to "cut us out" (Ex. 2; ¶ 81), and he had already declined representation (¶ 32). Plaintiffs’ alleged forbearance from contacting the seller is inconsistent with their own August 7 request that Newmark forward their emails to the seller (Ex. 2; ¶ 34). The claimed damages, measured by "protective steps" Plaintiffs did not take (¶¶ 100, 103), are speculative because the FAC does not allege that any such step would have resulted in payment.

E. Sixth Cause of Action (Negligent Misrepresentation): No Actionable Statement of Existing Fact and No Justifiable Reliance.

Negligent misrepresentation requires a positive assertion of a past or existing fact; it does not lie for promises or predictions. The Sixth Cause of Action rests solely on the August 8, 2024 email stating that “Kevin Shannon who runs our team is handling this with Taban” and that “Taban will be aware.” (¶ 85; Ex. 2.) The statement that the seller’s principal “will be aware” is a prediction, and it does not say what Mr. Taban would be aware. Neither statement represents that Plaintiffs would be paid. Nor does the FAC plead justifiable reliance caused by that email. Plaintiffs’ principal acts (identifying and introducing Mr. Saadian and transmitting his pricing interest on August 2, 2024) preceded it and could not have been induced by it. The remaining alleged reliance is forbearance from contacting the seller or escrow (¶ 87), which is inconsistent with Plaintiffs’ own August 7 request that Newmark forward their emails to the seller. The FAC also alleges only generalized “reliance and consequential damages” (¶ 88) without identifying any loss caused by the August 8 email.

F. Sixth and Eighth Causes of Action (as Asserted by Mr. Barkohanai Individually): No Allegation of Individual Broker Licensure.

No person may bring or maintain an action for the collection of compensation for an act requiring a real estate license without alleging and proving that he or she was a duly licensed broker or salesperson when the cause of action arose. (Bus. & Prof. Code § 10136.) The FAC does not allege that Mr. Barkohanai held an individual broker license during July through December 2024. It alleges only that he holds an officer license as the designated broker-officer of Bark Tax Service Inc. and that “[a]ll brokerage services alleged in this Complaint were performed by Marina Pointe through Barkohanai in that capacity.” (¶¶ 3–4.) An officer license authorizes licensed acts on behalf of the corporation; it does not authorize the officer to perform licensed acts, or to collect compensation for them, in his own name.

Mr. Barkohanai is a plaintiff against Newmark only on the Sixth and Eighth Causes of Action, which are styled as torts. The licensing requirement, however, turns on the nature of the recovery sought, not the label attached to the claim. In substance, Mr. Barkohanai seeks compensation for brokerage services: the value of his “time, expenses, and work product” in procuring a buyer (¶¶ 88, 103), and the lost opportunity to secure the commission the FAC elsewhere values at $880,000 (¶¶ 87, 100). The California Supreme Court has refused to let an unlicensed party to evade a licensing statute by recasting a claim for compensation as fraud. (Hydrotech Systems, Ltd. v. Oasis Waterpark (1991) 52 Cal.3d 988, 997–1002 [unlicensed contractor could not avoid Bus. & Prof. Code § 7031 by pleading fraud]; cf. Phillippe v. Shapell Industries, Inc. (1987) 43 Cal.3d 1247 [broker may not avoid statute of frauds through estoppel absent actual fraud].) The same principle applies to Business & Professions Code section 10136. If the court declines to sustain a demurrer on this ground on the basis that the Sixth and Eighth Causes of Action seek tort damages distinct from a commission, Newmark will seek the same relief through its motion to strike Mr. Barkohanai’s individual damages allegations, as set forth in Section II below.

G. Fourth Through Ninth Causes of Action: The Confidentiality Agreement Undermines the Alleged Cooperating-Broker Relationship.

The FAC alleges that Newmark provided the confidential offering materials only after Marina Pointe, through Mr. Barkohanai, executed a written Confidentiality Agreement with the seller effective July 25, 2024. (¶¶ 4, 14.) Because the FAC relies on that agreement, Newmark will submit it with the demurrer, and ask the court to consider it as incorporated by reference. (See City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 800; McBride v. Smith (2018) 18 Cal.App.5th 1160.) The agreement identifies the counterparty as “Marina Pointe Realty, a Corporation” and defines it as the “Prospective Purchaser.” Mr. Barkohanai signed it as that entity’s President, not as an individual broker or on behalf of any identified buyer. The agreement nowhere refers to a broker, a buyer’s representative, or compensation.

This document is inconsistent with the FAC’s central premise that Newmark dealt with Marina Pointe as a cooperating broker from the outset. (¶¶ 64, 70.) It reinforces the absence of any contract or clear promise discussed in Section I.A, because the only written instrument governing Plaintiffs’ access to the Property identifies Marina Pointe as a prospective purchaser, rather than a broker. It is also consistent with Section I.F above: the one document Mr. Barkohanai signed in the transaction was signed in a corporate capacity, as a prospective purchaser, not as a licensed individual broker.

H. Alternative Ground: Statute of Frauds (Civ. Code § 1624, subd. (a)(4)).

In the alternative, Newmark will contend that the Fourth, Seventh, and Ninth Causes of Action are barred by the statute of frauds. An agreement to compensate a broker for procuring a purchaser of real estate must be in a writing subscribed by the party to be charged that shows the fact of the broker’s employment. (Civ. Code § 1624, subd. (a)(4); Westside Estate Agency, Inc., supra, 6 Cal.App.5th 317.) We recognize that the FAC characterizes the alleged arrangement as an agreement between cooperating brokers (¶¶ 64, 70, 73, 106). But the FAC itself describes compensation to be "netted out of the purchase price" and asks that "the sellers factor this into their selling price". (¶¶ 18, 20; Ex. 2) That is compensation from the principal’s transaction economics, not a division of Newmark’s commission. The only writing identified states that there is "no formal arrangement." (Ex. 1.) And a broker may not avoid the statute through estoppel absent actual fraud. (Phillippe, supra, 43 Cal.3d 1247.)

II. GROUNDS FOR MOTION TO STRIKE (Code Civ. Proc. §§ 435–436)

• Attorneys’ fees (Prayer, ¶ 4). Fees are recoverable only where authorized by contract or statute. (Code Civ. Proc. § 1021.) The FAC identifies no fee provision and no fee-shifting statute.

• Punitive damages against Newmark: corporate employer requirements (¶¶ 83, 103; Prayer, ¶ 3, as to the Fifth and Eighth Causes of Action). Against a corporate employer, Civil Code section 3294, subdivision (b) requires facts showing that an officer, director, or managing agent authorized, ratified, or committed the oppressive, fraudulent, or malicious conduct. A managing agent is one who exercises substantial discretionary authority over decisions that ultimately determine corporate policy. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566–567, 577.) Allegations of job titles and authority over a single listing do not meet that standard, and completing a sale does not constitute ratification of fraud.

• Punitive damages against Newmark: no facts showing oppression, fraud, or malice (same allegations). Independently, the FAC does not plead facts showing that Newmark acted with “oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a).) Malice requires conduct intended to injure the plaintiff or “despicable conduct” carried on in willful and conscious disregard of the plaintiff’s rights; oppression likewise requires “despicable conduct.” (Id., subd. (c)(1), (2).) Paragraphs 83 and 103 simply recite that Newmark’s conduct was “malicious, oppressive, and fraudulent within the meaning of Civil Code section 3294.” The facts actually alleged are a two-sentence email stating that the request was being handled with the seller (¶ 85), a telephone call in which Mr. Shannon described Mr. Saadian’s offer as unlikely to proceed (¶ 36), and Newmark’s later closing of a sale its client wanted to make (¶¶ 44, 82). At most, those facts describe a commercial dispute over whether a fee was owed; they do not describe despicable conduct or an intent to injure. Conclusory characterizations of this kind are insufficient and are properly stricken. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) And because the fraud claim itself is deficient for the reasons in Section I.D, it cannot supply the “fraud” predicate.

• Mr. Barkohanai’s individual damages (¶¶ 88, 103). The FAC alleges that all brokerage services were performed by Marina Pointe through Mr. Barkohanai as its broker-officer. (¶ 4.) Any alleged loss is therefore only potentially Marina Pointe’s (subject to Marina Pointe demonstrating it was validly licensed). To the extent Mr. Barkohanai seeks, in his individual capacity, the value of his "time, expenses, and work product" for brokerage services, he may not recover compensation for acts requiring a real estate license in his own name absent an individual license at the relevant time. (Bus. & Prof. Code § 10136.)

III. REQUEST TO MEET AND CONFER

Please advise whether Plaintiffs are willing to dismiss or amend the causes of action and allegations identified above. Code of Civil Procedure Sections 430.41 and 435.5 require the parties to meet and confer, and our deadline to complete that process is October 14, 2026. I am available on October 12 (morning only), October 13 (flexible), or October 14 (except between 10-11 a.m.). Please contact me at gaurav.reddy@cantor.com to confirm a date and time.

If the parties are unable to resolve these issues through the meet and confer process, Newmark intends to file its demurrer and motion to strike on or before October 19, 2026. Nothing in this letter is intended as a complete statement of Newmark’s positions, defenses, or arguments, all of which are expressly reserved.

Finally, even if some of Plaintiffs’ claims survive the pleading stage, Newmark does not believe Plaintiffs have fully considered the risks of continuing this litigation. There are serious questions about whether Plaintiffs’ purported brokerage activities complied with California law and real estate regulations. Plaintiffs may also face independent exposure under the Confidentiality Agreement, which limited disclosure of confidential information about the Property to Marina Pointe’s defined “Representatives.” The FAC itself alleges that Plaintiffs sent the offering materials, underwriting, and related deal information to Mr. Saadian and his agent (¶¶ 28, 58, 60), neither of whom is a Representative. Newmark respectfully urges Plaintiffs to reconsider pursuing these claims.

cc: Andrew Raunau, Esq. (andrew.raunau@cantor.com)

Pages 28 and 29 of the PDF are the proof of service and service list. They are omitted here because they carry only counsel service contact details and no substantive content. They remain in the PDF.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on January 27, 2027, at 9:30 a.m., or as soon thereafter as the matter may be heard, in Department 412 of the above-entitled Court, located at the Stanley Mosk Courthouse, 111 North Hill Street, Los Angeles, California 90012, concurrently with its Demurrer (Reservation ID 513457177411), Defendant Newmark of Southern California, Inc. (“Newmark”) will and hereby does move under Code of Civil Procedure sections 435 and 436 to strike the following portions of the First Amended Complaint (“FAC”) filed by Plaintiffs Matt Barkohanai (“Barkohanai”) and Bark Tax Service Inc. dba Marina Pointe Realty (“Marina Pointe”) (Cal. Rules of Court, rule 3.1322(a)):

1. Prayer for Relief, paragraph 4 (FAC p. 33), the words:

“attorney’s fees and”

2. Paragraph 83 (FAC pp. 23–24), the following language as it pertains to Newmark:

“The conduct of Newmark, Hannan, and the Seller was malicious, oppressive, and fraudulent within the meaning of Civil Code section 3294, and was performed, authorized, or ratified by officers or managing agents of Newmark. Kevin Shannon, who “runs” Newmark’s team for the listing, exercised actual and substantial discretionary authority over the conduct of the listing, the handling of the transaction, and the handling of cooperating-broker compensation on it. Hannan, a Vice Chairman of Newmark and a designated Investment Contact for the Property, exercised actual authority over the listing and over the handling and communication of Plaintiffs’ compensation request. Newmark ratified their conduct by closing the sale and retaining its benefits with knowledge of Plaintiffs’ claim.”

3. Paragraph 83 (FAC p. 24), the following sentence as it pertains to Newmark:

“Plaintiffs are entitled to punitive and exemplary damages.”

4. Paragraph 103 (FAC p. 30), the following language:

“The conduct was malicious, oppressive, and fraudulent within the meaning of Civil Code section 3294, entitling Plaintiffs to punitive and exemplary damages. Newmark authorized, ratified, and had advance knowledge of the conduct alleged. Kevin Shannon, identified in Newmark’s offering memorandum as Co-Head of Newmark’s U.S. Capital Markets group, exercised actual and substantial discretionary authority over the handling of this transaction and of cooperating-broker compensation on it. Hannan, as a Vice Chairman of Newmark and a designated Investment Contact for the Property, exercised actual authority over the listing and over the handling and communication of Plaintiffs’ compensation request. Newmark ratified their conduct by closing the sale and retaining its benefits with knowledge of Plaintiffs’ claim.”

5. Prayer for Relief, paragraph 3 (FAC p. 33), the words "Fifth, and Eighth" in the following language, as against Newmark:

“For punitive and exemplary damages on the First, Second, Third, Fifth, and Eighth Causes of Action in an amount appropriate to punish and deter;”

6. Paragraph 88 (FAC p. 25), the following sentence:

“Barkohanai also incurred additional damages for the time, expenses, and work product he generated in connection with his efforts.”

7. Paragraph 103 (FAC p. 30), the following sentence:

“Barkohanai also incurred additional damages for the time, expenses, and work product he generated in connection with his efforts.”

The motion is made on the grounds that the challenged portions are irrelevant, false, or improper and are not drawn in conformity with the laws of this State (Code Civ. Proc., § 436, subds. (a), (b)), because: (1) the FAC identifies no contractual or statutory basis for attorney’s fees; (2) the FAC pleads no facts showing that an officer, director, or managing agent of Newmark authorized, ratified, or committed oppressive, fraudulent, or malicious conduct (Civ. Code, § 3294, subd. (b)); (3) the FAC pleads no facts showing that Newmark acted with oppression, fraud, or malice (Civ. Code, § 3294, subds. (a), (c)); and (4) Barkohanai may not recover, in his individual capacity, compensation for brokerage services absent an individual broker’s license (Bus. & Prof. Code, § 10136).

This motion is made following the meet and confer required by Code of Civil Procedure section 435.5, as set forth in the concurrently filed Declaration of Gaurav Reddy. It is based on this Notice, the Memorandum of Points and Authorities, the Reddy Declaration, the Request for Judicial Notice, the pleadings and records on file, and such further argument and matters as the Court may consider.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Plaintiffs seek a commission for the December 2024 sale of a downtown Los Angeles office building that they did not broker. Despite clear evidence on the face of the FAC showing that there was no agreement and the buyer was uninterested in working with Plaintiffs (expressly stating “I am not looking for an agent”), they purport to claim a 2% commission ($880,000) on the $44,000,000 sale. (FAC ¶¶ 1–2, 78.)

Even if any claim survives Newmark’s concurrently filed demurrer, the FAC contains three categories of allegations that should be stricken: (1) a prayer for attorney’s fees with no contractual or statutory basis; (2) punitive damages allegations against Newmark that recite the language of Civil Code section 3294 without pleading the facts it requires; and (3) Barkohanai’s individual claim to the value of his "time, expenses, and work product" for brokerage services, which he may not recover in his own name without an individual broker’s license.

II. FACTUAL AND PROCEDURAL BACKGROUND

Overview. The FAC alleges that Barkohanai, acting for Marina Pointe, identified the Property in July 2024, asked Newmark about cooperating-broker compensation, and introduced Saadian to the opportunity. (FAC ¶¶ 1, 16–19, 22–26.) According to the FAC, Saadian then refused to sign a buyer representation agreement, dealt with the Seller directly, and closed through 660 Fig LLC without paying Plaintiffs. (FAC ¶¶ 29–32, 37, 44–45.) Plaintiffs blame Saadian for promising and then withholding a buyer-side fee, and blame Newmark for not building their requested fee into the deal. (FAC ¶¶ 50–51, 77, 82.)

Causes of Action Against Newmark. The FAC asserts six causes of action against Newmark: (1) the Fourth, for breach of an alleged interbroker “Cooperation Agreement” (FAC ¶¶ 69–78); (2) the Fifth, for intentional interference with Marina Pointe’s alleged buyer-side compensation expectancy from Saadian (FAC ¶¶ 79–83); (3) the Sixth, for negligent misrepresentation (FAC ¶¶ 84–88); (4) the Seventh, for breach of the implied covenant of good faith and fair dealing (FAC ¶¶ 89–93); (5) the Eighth, for promissory fraud and concealment (FAC ¶¶ 94–103); and (6) the Ninth, for promissory estoppel (FAC ¶¶ 104–112). The Fourth, Fifth, Seventh, and Ninth are brought by Marina Pointe alone; the Sixth and Eighth are brought by both Plaintiffs.

Procedural History. Plaintiffs filed this action on July 23, 2026, and filed the FAC on August 14, 2026. On October 9, 2026, Newmark’s counsel sent Plaintiffs’ counsel a letter identifying the specific grounds for its anticipated motion to strike and the legal authority supporting each ground. (Declaration of Gaurav Reddy (“Reddy Decl.”), Ex. 1.) Counsel then met and conferred by telephone on October 14, 2026, but could not resolve the objections raised in this motion to strike. (Reddy Decl.) Newmark has therefore satisfied Code of Civil Procedure section 435.5.

III. LEGAL STANDARD

Upon a motion to strike, the court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading” and “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state[.]” (Code Civ. Proc., § 436, subds. (a), (b).) The grounds must appear on the face of the pleading or from matters of which the court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).) In ruling, the court reads the challenged allegations “as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) A motion to strike is the proper vehicle to challenge punitive damages allegations that do not plead “the ultimate facts showing an entitlement to such relief[.]” (Ibid.)

IV. ARGUMENT

A. The Prayer for Attorney’s Fees Should be Stricken.

“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys . . . is left to the agreement . . . of the parties[.]” (Code Civ. Proc., § 1021.) The FAC prays "[f]or attorney’s fees and costs of suit" (Prayer ¶ 4) but identifies no fee provision in any contract and no fee-shifting statute. The alleged “Cooperation Agreement” consists of emails that say nothing about fees. (FAC Exs. 1–2.) The words “attorney’s fees and” should be stricken.

B. The Punitive Damage Allegations Against Newmark Should Be Stricken.

“In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294.” (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63; see also Today’s IV v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193 [quoting Turman].) The FAC seeks punitive damages against Newmark on the Fifth and Eighth Causes of Action. (FAC ¶¶ 83, 103; Prayer ¶ 3.) It fails both of the statute’s requirements.

1. The FAC Does Not Plead Facts Satisfying Section 3294, Subdivision (b).

Civil Code Section 3294, subdivision (b) provides that, “[w]ith respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” A managing agent is one who exercises substantial discretionary authority over decisions that ultimately determine corporate policy. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566–567, 577 [“[T]he Legislature intended that principal liability for punitive damages not depend on employees’ managerial level, but on the extent to which they exercise substantial discretionary authority over decisions that ultimately determine corporate policy.”].)

The FAC relies on titles and on authority over a single listing. It alleges that Kevin Shannon “runs” Newmark’s team for the listing and is “Co-Head of Newmark’s U.S. Capital Markets group,” and that Hannan is “a Vice Chairman of Newmark and a designated Investment Contact for the Property.” (FAC ¶¶ 83, 103.) Authority over one listing, one transaction, and “cooperating-broker compensation on it” (ibid.) is transaction-level authority, not authority over decisions that determine corporate policy. The FAC’s ratification theory—that Newmark “ratified their conduct by closing the sale and retaining its benefits” (ibid.)—fares no better. Completing a sale the seller wanted to make is not ratification of fraud, and the FAC does not identify any officer, director, or managing agent who knew of and approved any alleged misconduct.

2. The FAC Does Not Plead Facts Showing Oppression, Fraud, or Malice.

Independently, punitive damages require “oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a).) “Malice” means “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Id., subd. (c)(1).) “‘[D]espicable’ is a powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725, as modified (Nov. 23, 1994) [“As amended to include this word, the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs' interests. The additional component of ‘despicable conduct’ must be found.”].) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id., subd. (c)(2).) “Fraud” means “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Id., subd. (c)(3).)

Paragraphs 83 and 103 simply recite that Newmark’s conduct was “malicious, oppressive, and fraudulent within the meaning of Civil Code section 3294.” The only facts actually alleged against Newmark are a two-sentence email stating that Plaintiffs’ request was being handled with the seller (FAC ¶ 85), a telephone call in which Mr. Shannon described Saadian’s offer as unlikely to proceed (FAC ¶ 36), and Newmark’s later closing of a sale its client wanted to make (FAC ¶¶ 44, 82). At most, those facts describe a commercial dispute over whether a fee was owed. They do not describe despicable conduct or an intent to injure. Conclusory characterizations of this kind do not support punitive damages and are properly stricken. (See Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 [“[T]he second count's conclusory characterization of defendant's conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ within the meaning of section 3294.”]; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.”] [citation omitted].) And because the Eighth Cause of Action does not plead fraud with particularity (see Demurrer, § IV.D), it cannot supply the “fraud” predicate.

C. Barkohanai’s Individual Claim for the Value of His Brokerage Services Should be Stricken.

“No person engaged in the business or acting in the capacity of a real estate broker . . . shall bring or maintain any action in the courts of this state for the collection of compensation for the performance of any of the acts mentioned in this article without alleging and proving that he or she was a duly licensed real estate broker or real estate salesperson at the time the alleged cause of action arose.” (Bus. & Prof. Code, § 10136.) A corporate broker acts only through a licensed officer, and the officer’s license authorizes acts only on behalf of the corporation. (See Bus. & Prof. Code, §§ 10159, 10211.)

The FAC alleges that Barkohanai holds an officer license as the designated broker-officer of Bark Tax Service Inc., and that "[a]ll brokerage services alleged in this Complaint were performed by Marina Pointe through Barkohanai in that capacity." (FAC ¶¶ 3–4.) It does not allege that Barkohanai held an individual broker’s license when the claims arose. Records of the Department of Real Estate confirm that his individual broker license (No. 01847508) expired on July 13, 2016, and that he is currently licensed only as an officer of Bark Tax Service Inc. (Request for Judicial Notice (“RJN”), Exs. A–B.) Any loss from the alleged brokerage services is therefore, at most, Bark Tax Service Inc.’s.

Yet in the Sixth and Eighth Causes of Action, Barkohanai seeks in his own name “additional damages for the time, expenses, and work product he generated in connection with his efforts.” (FAC ¶¶ 88, 103.) That is a claim for compensation for brokerage services, whatever its label. The California Supreme Court has refused to allow an unlicensed party to evade a licensing statute by recasting a claim for compensation as fraud. (Hydrotech Systems, Ltd. v. Oasis Waterpark (1991) 52 Cal.3d 988, 997–1002 [unlicensed contractor could not avoid statute barring actions seeking “compensation” for illegal unlicensed contract work by pleading fraud]; cf. Phillippe v. Shapell Industries, Inc. (1987) 43 Cal.3d 1247, 1264 [licensed broker may not assert estoppel against statute of frauds defense to oral commission agreement absent actual fraud].) Likewise, Barkohanai cannot use artful pleading to avoid Business and Professions Code section 10136 and recover a commission in his individual capacity. As such, the two sentences referenced above in FAC paragraphs 88 and 103 should be stricken.

V. CONCLUSION

Newmark respectfully requests that the Court strike the portions of the FAC identified in the Notice of Motion, without leave to amend.

Pages 40 and 41 of the PDF are the proof of service and service list. They are omitted here because they carry only counsel service contact details and no substantive content. They remain in the PDF.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:

Under Evidence Code sections 452 and 453 and Code of Civil Procedure section 437, Defendant Newmark of Southern California, Inc. ("Newmark") requests that the Court take judicial notice of the following records of the California Department of Real Estate ("DRE") in support of its Motion to Strike:

Exhibit A: DRE Public License Lookup record for Matthew Barkohanai, License ID 01847508, taken from DRE records on September 29, 2026, reflecting License Type "BROKER," Expiration Date "07/13/16," License Status "EXPIRED," and "*Currently a licensed officer" of Bark Tax Service Inc. (Corporation License No. 02010915).

Exhibit B: DRE Public License Lookup record for Bark Tax Service Inc., License ID 02010915, taken from DRE records on September 29, 2026, reflecting License Type "CORPORATION," License Status "LICENSED," and Matthew Barkohanai (No. 01847508) as "DESIGNATED OFFICER."

I. THE COURT MAY TAKE JUDICIAL NOTICE OF THE DRE RECORDS.

A court may take judicial notice of "[o]fficial acts of the legislative, executive, and judicial departments of . . . any state of the United States" and of "[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." (Evid. Code, § 452, subds. (c), (h).) Judicial notice is mandatory where the requesting party gives each adverse party sufficient notice and furnishes the court sufficient information to enable it to take notice. (Evid. Code, § 453.) On a motion to strike, the grounds may appear from matters of which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

Exhibits A and B are licensing records maintained by the DRE, an agency of the State of California, and obtained from the DRE’s public license lookup. Newmark requests notice of the existence and contents of these records, namely the type, status, and expiration of the licenses they reflect, and not of the truth of any disputed factual matter. The records are relevant because the FAC alleges that Barkohanai acts under an officer license (FAC ¶¶ 3–4), and the Motion to Strike contends that Barkohanai may not recover compensation for brokerage services in his individual capacity absent an individual broker’s license (Bus. & Prof. Code, § 10136).

EXHIBIT A

9/29/26, 3:18 PM Public License Lookup - DRE

STATE OF CALIFORNIA

DEPARTMENT OF REAL ESTATE

In reviewing a licensee's information, please be aware that license discipline information may have been removed from a licensee's record pursuant to Business & Professions Code Section 10083.2 (c). However, discipline information may be available from the California Department of Real Estate upon submittal of a request, or by calling the Department's public information line at 1-877-373-4542.

The license information shown below represents public information. It will not reflect pending licensing changes which are being reviewed for subsequent updating. Although the business and mailing addresses of real estate licensees are included, this information is not intended for mass mailing purposes.

Some historical disciplinary action documents may not be in compliance with certain accessibility functions. For assistance with these documents, please contact the Department's Licensing Flag Section.

License information taken from records of the Department of Real Estate on 9/29/2026 3:17:18 PM

License Type: BROKER

Name: Barkohanai, Matthew

Mailing Address: 20116 SATICOY ST

CANOGA PARK, CA 91306

License ID: 01847508

Expiration Date: 07/13/16

License Status: EXPIRED *Currently a licensed officer

Broker License Issued: 07/14/08

Former Name(s): NO FORMER NAMES

Main Office: NO CURRENT MAIN OFFICE ADDRESS ON FILE

DBA Marina Pointe Realty

ACTIVE FROM 08/30/2010 TO 07/14/2016

NO CURRENT DBAS

Branches: NO CURRENT BRANCHES

Affiliated Licensed Corporation(s): 02010915 - Officer Expiration Date: 06/27/28

Bark Tax Service Inc

Comment: NO DISCIPLINARY ACTION

NO OTHER PUBLIC COMMENTS

>>>> Public information request complete <<<<

https://www2.dre.ca.gov/PublicASP/pplinfo.asp?License_id=01847508 1/1

EXHIBIT B

9/29/26, 3:19 PM Public License Lookup - DRE

STATE OF CALIFORNIA

DEPARTMENT OF REAL ESTATE

In reviewing a licensee's information, please be aware that license discipline information may have been removed from a licensee's record pursuant to Business & Professions Code Section 10083.2 (c). However, discipline information may be available from the California Department of Real Estate upon submittal of a request, or by calling the Department's public information line at 1-877-373-4542.

The license information shown below represents public information. It will not reflect pending licensing changes which are being reviewed for subsequent updating. Although the business and mailing addresses of real estate licensees are included, this information is not intended for mass mailing purposes.

Some historical disciplinary action documents may not be in compliance with certain accessibility functions. For assistance with these documents, please contact the Department's Licensing Flag Section.

License information taken from records of the Department of Real Estate on 9/29/2026 3:18:38 PM

License Type: CORPORATION

Name: Bark Tax Service Inc

Mailing Address: 20116 SATICOY ST

WINNETKA, CA 91306

License ID: 02010915

Expiration Date: 06/27/28

License Status: LICENSED

Corporation License Issued: 06/28/16

Former Name(s): NO FORMER NAMES

Main Office: 20116 SATICOY ST

WINNETKA, CA 91306

Licensed Officer(s): DESIGNATED OFFICER

01847508 - Expiration Date: 06/27/28

Barkohanai, Matthew

DBA MARINA POINTE REALTY

ACTIVE AS OF 05/22/2025

Branches:

[address redacted]

Comment: NO DISCIPLINARY ACTION

NO OTHER PUBLIC COMMENTS

>>>> Public information request complete <<<<

https://www2.dre.ca.gov/PublicASP/pplinfo.asp?License_id=02010915 1/1

Exhibit B as filed lists a branch office street address for the licensed corporation. That address is redacted in the public copy and shown above as “[address redacted]”. Pages 49 and 50 of the PDF are the proof of service and service list. They are omitted here because they carry only counsel service contact details and no substantive content. They remain in the PDF.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

I, Gaurav Reddy, declare as follows:

1. I am an attorney at law duly licensed to practice before all courts of the State of California and am counsel of record for Defendant Newmark of Southern California, Inc. ("Newmark") in this action. I have personal knowledge of the facts stated in this declaration and, if called as a witness, could and would testify competently to them. I submit this declaration under Code of Civil Procedure section 435.5 in support of Newmark’s Motion to Strike Portions of the First Amended Complaint ("FAC").

2. Barak Lurie and Dane H. Taylor of Lurie & Associates are counsel of record for Plaintiffs Matt Barkoahani and Bark Tax Service Inc. dba Marina Pointe Realty (together, “Plaintiffs”). By agreement of counsel, Newmark’s deadline to respond to the FAC was extended to October 19, 2026.

3. On October 9, 2026, I sent Plaintiffs’ counsel, by email to Mr. Lurie and Mr. Taylor, a meet and confer letter under Code of Civil Procedure sections 430.41 and 435.5. The letter identified each cause of action and allegation Newmark contends is subject to demurrer or to a motion to strike, explained the legal bases for Newmark’s positions with supporting authority, asked whether Plaintiffs would dismiss or amend the challenged causes of action and allegations, and proposed dates of October 12, 13, or 14, 2026, for a conference. A true and correct copy of the October 9, 2026 letter is attached as Exhibit 1.

4. On October 14, 2026, I met and conferred with Plaintiffs’ counsel, Mr. Taylor, by telephone regarding the matters set forth in my October 9, 2026 letter, including the grounds for the motion to strike. The parties discussed each of the issues identified in the letter, but did not reach an agreement resolving the objections Newmark raises in its motion to strike. Plaintiffs did not agree to dismiss or amend the challenged allegations, and counsel reached an impasse.

5. During the October 14, 2026 telephone conference, I informed Plaintiffs’ counsel that, because the parties had not resolved the issues, Newmark would file its demurrer and motion to strike on October 19, 2026.

6. The telephonic meet and confer took place at least five days before the date Newmark’s responsive pleading was due.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on October 19, 2026, at Irvine, California.

EXHIBIT 1

CANTOR FITZGERALD SECURITIES

18401 Von Karman Ave., Suite 150 | Irvine, CA 92612

Tel: (310) 282-6512 | gaurav.reddy@cantor.com

Gaurav Reddy, Esq.

Direct: (310) 282-6512

Email: gaurav.reddy@cantor.com

October 9, 2026

VIA EMAIL

Barak Lurie, Esq. (barak@lurie-law.com)

Dane H. Taylor, Esq. (dane@lurie-law.com)

LURIE & ASSOCIATES

12121 Wilshire Boulevard, Suite 300

Los Angeles, California 90025

Telephone: (310) 478-7788

Re: Barkohanai v. Saadian, et al., LA Superior Court Case No. 26STCV23348 Meet and Confer Regarding Newmark of Southern California’s Demurrer and Motion to Strike (Code Civ. Proc. §§ 430.41, 435.5)

Counsel:

I write on behalf of Defendant Newmark of Southern California, Inc. ("Newmark") under Code of Civil Procedure sections 430.41 and 435.5 regarding the First Amended Complaint ("FAC") filed August 14, 2026 by Plaintiffs Matt Barkohanai and Bark Tax Service Inc. d/b/a Marina Pointe Realty ("Marina Pointe") (together, "Plaintiffs"). Under our agreement, Newmark’s response to the FAC is due October 19, 2026. Newmark intends to demur to the Fourth through Ninth Causes of Action and to move to strike portions of the FAC. This letter identifies the grounds for both motions so that the parties may try to resolve or narrow the issues before filing. Paragraph and exhibit references are to the FAC.

I. GROUNDS FOR DEMURRER (Code Civ. Proc. § 430.10)

A. Fourth, Seventh, and Ninth Causes of Action: The FAC Does Not Allege a Contract or a Clear and Unambiguous Promise.

Each of these causes of action depends on the alleged "Cooperation Agreement" or on a purported promise by Newmark to pay Plaintiffs a commission. The FAC’s allegations on this point are conclusory, and its own exhibits contradict them. Where a complaint’s exhibits contradict its allegations, the exhibits control. (Holland v. Morse Diesel Internat., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

• The July 30, 2024 email from Rob Hannan on which Plaintiffs rely states: "There is no formal arrangement." (¶ 17; Ex. 1.) A writing that disclaims any arrangement is not an offer capable of acceptance. (See Laks v. Coast Fed. Sav. & Loan Assn. (1976) 60 Cal.App.3d 885, 890–891 [recipient of conditional commitment lacking essential terms could not reasonably regard it as a binding offer]; Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 213 [preliminary negotiations and “agreements to agree” are not enforceable contracts].)

• Mr. Hannan’s instruction to "request what you think you deserve and it wil[l] be netted out of your price" describes how a proposed buyer-side fee would be submitted and evaluated with an offer. (Ex. 1.) It is not a commitment by Newmark to pay whatever amount Plaintiffs might later choose. An agreement with no ascertainable price term is too indefinite to enforce. (Bustamante, supra, 141 Cal.App.4th at 208–209, 213 [no contract where compensation terms remained unsettled]; Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770–771 [promise to pay commissions at “parity” too vague and indefinite to create contractual duty]; see Civ. Code § 1598.)

• Mr. Barkohanai’s own August 7, 2024 email asked Newmark to "pass my emails along to David Taban and the rest of the sellers," "respectfully request[ed]" 2%, and asked "that the sellers factor this into their selling price." (Ex. 2.) That is a request for the seller’s consideration, not acceptance of an agreement already formed. Mr. Hannan’s August 8, 2024 reply ("Taban will be aware") does not accept the request.

• The "custom and practice" allegation in paragraph 71, under which silence and continued dealing purportedly constitute assent, is an unsupported legal conclusion. It identifies no source, no prior dealings between the parties, and no facts showing a custom so established that the parties contracted with reference to it. It cannot create mutual assent where the operative writings disclaim any arrangement.

These defects defeat the Fourth Cause of Action (breach of contract) and the Seventh Cause of Action (implied covenant), both of which require an underlying contract. They also defeat the Ninth Cause of Action (promissory estoppel), which requires a promise that is "clear and unambiguous in its terms" (Laks, supra, 60 Cal.App.3d at 890) and reasonable reliance. A broker’s reliance on an email stating "[t]here is no formal arrangement" is unreasonable as a matter of law, particularly where Mr. Barkohanai’s August 7 email reflects Plaintiffs’ understanding that seller approval was required. (See Westside Estate Agency, Inc. v. Randall (2016) 6 Cal.App.5th 317 [licensed broker’s status foreclosed reasonable reliance].)

B. Fifth Cause of Action (Intentional Interference with Prospective Economic Advantage): No Reasonably Probable Expectancy and No Causation.

The Fifth Cause of Action alleges interference with a buyer-side compensation relationship between Marina Pointe and Mr. Saadian. (¶ 80.) The tort requires an existing economic relationship with a reasonable probability of future benefit, independently wrongful conduct by the defendant, and resulting disruption. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153–1159; Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 521–524.) The FAC pleads that Mr. Saadian refused to sign and, on August 4, 2024, formally declined both buyer representation agreements, stating "I am not looking for an agent." (¶¶ 30– 32.)

The conduct attributed to Newmark begins with the August 8, 2024 email. (¶ 82.) Any expectancy had ended before that date, and later statements by Mr. Saadian (¶¶ 57, 80) depended entirely on his discretion. The alleged wrongful act is also a statement made to Plaintiffs, not conduct directed at Mr. Saadian, and the FAC does not allege how any act by Newmark caused Mr. Saadian to withhold a fee he had already refused to pay. Elsewhere, the FAC attributes the disruption to Mr. Saadian. (¶¶ 50–51, 67.)

C. Seventh Cause of Action (Breach of the Implied Covenant): Duplicative of the Fourth Cause of Action.

The Seventh Cause of Action relies on the same alleged conduct and seeks the same $880,000 as the Fourth Cause of Action (¶¶ 92–93), and expressly disclaims double recovery between the two. An implied covenant claim that merely duplicates a contract claim is superfluous and may be disregarded. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.)

D. Eighth Cause of Action (Promissory Fraud and Concealment): No Actionable Promise, Intent, Duty, or Justifiable Reliance.

Fraud must be pleaded with particularity as to each element. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The Eighth Cause of Action fails for several reasons:

• No actionable promise. As discussed above, "There is no formal arrangement" (Ex. 1; ¶¶ 17, 95) negates a promise, and "Taban will be aware" (Ex. 2; ¶¶ 21, 35, 96) is not a promise to pay.

• No facts showing intent not to perform. The facts alleged in paragraphs 97 and 102 consist largely of later nonperformance, which is insufficient to plead fraudulent intent at the time a promise was made. The alternative intent theory in paragraph 97 is speculative.

• No duty to disclose. The FAC alleges no fiduciary or transactional relationship between a listing broker and an unaffiliated allegedly cooperating “broker” that would support a concealment claim. (See LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336–337.)

• No justifiable reliance or causation. By August 6, 2024, Plaintiffs already believed Mr. Saadian was attempting to "cut us out" (Ex. 2; ¶ 81), and he had already declined representation (¶ 32). Plaintiffs’ alleged forbearance from contacting the seller is inconsistent with their own August 7 request that Newmark forward their emails to the seller (Ex. 2; ¶ 34). The claimed damages, measured by "protective steps" Plaintiffs did not take (¶¶ 100, 103), are speculative because the FAC does not allege that any such step would have resulted in payment.

E. Sixth Cause of Action (Negligent Misrepresentation): No Actionable Statement of Existing Fact and No Justifiable Reliance.

Negligent misrepresentation requires a positive assertion of a past or existing fact; it does not lie for promises or predictions. The Sixth Cause of Action rests solely on the August 8, 2024 email stating that “Kevin Shannon who runs our team is handling this with Taban” and that “Taban will be aware.” (¶ 85; Ex. 2.) The statement that the seller’s principal “will be aware” is a prediction, and it does not say what Mr. Taban would be aware. Neither statement represents that Plaintiffs would be paid. Nor does the FAC plead justifiable reliance caused by that email. Plaintiffs’ principal acts (identifying and introducing Mr. Saadian and transmitting his pricing interest on August 2, 2024) preceded it and could not have been induced by it. The remaining alleged reliance is forbearance from contacting the seller or escrow (¶ 87), which is inconsistent with Plaintiffs’ own August 7 request that Newmark forward their emails to the seller. The FAC also alleges only generalized “reliance and consequential damages” (¶ 88) without identifying any loss caused by the August 8 email.

F. Sixth and Eighth Causes of Action (as Asserted by Mr. Barkohanai Individually): No Allegation of Individual Broker Licensure.

No person may bring or maintain an action for the collection of compensation for an act requiring a real estate license without alleging and proving that he or she was a duly licensed broker or salesperson when the cause of action arose. (Bus. & Prof. Code § 10136.) The FAC does not allege that Mr. Barkohanai held an individual broker license during July through December 2024. It alleges only that he holds an officer license as the designated broker-officer of Bark Tax Service Inc. and that “[a]ll brokerage services alleged in this Complaint were performed by Marina Pointe through Barkohanai in that capacity.” (¶¶ 3–4.) An officer license authorizes licensed acts on behalf of the corporation; it does not authorize the officer to perform licensed acts, or to collect compensation for them, in his own name.

Mr. Barkohanai is a plaintiff against Newmark only on the Sixth and Eighth Causes of Action, which are styled as torts. The licensing requirement, however, turns on the nature of the recovery sought, not the label attached to the claim. In substance, Mr. Barkohanai seeks compensation for brokerage services: the value of his “time, expenses, and work product” in procuring a buyer (¶¶ 88, 103), and the lost opportunity to secure the commission the FAC elsewhere values at $880,000 (¶¶ 87, 100). The California Supreme Court has refused to let an unlicensed party to evade a licensing statute by recasting a claim for compensation as fraud. (Hydrotech Systems, Ltd. v. Oasis Waterpark (1991) 52 Cal.3d 988, 997–1002 [unlicensed contractor could not avoid Bus. & Prof. Code § 7031 by pleading fraud]; cf. Phillippe v. Shapell Industries, Inc. (1987) 43 Cal.3d 1247 [broker may not avoid statute of frauds through estoppel absent actual fraud].) The same principle applies to Business & Professions Code section 10136. If the court declines to sustain a demurrer on this ground on the basis that the Sixth and Eighth Causes of Action seek tort damages distinct from a commission, Newmark will seek the same relief through its motion to strike Mr. Barkohanai’s individual damages allegations, as set forth in Section II below.

G. Fourth Through Ninth Causes of Action: The Confidentiality Agreement Undermines the Alleged Cooperating-Broker Relationship.

The FAC alleges that Newmark provided the confidential offering materials only after Marina Pointe, through Mr. Barkohanai, executed a written Confidentiality Agreement with the seller effective July 25, 2024. (¶¶ 4, 14.) Because the FAC relies on that agreement, Newmark will submit it with the demurrer, and ask the court to consider it as incorporated by reference. (See City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 800; McBride v. Smith (2018) 18 Cal.App.5th 1160.) The agreement identifies the counterparty as “Marina Pointe Realty, a Corporation” and defines it as the “Prospective Purchaser.” Mr. Barkohanai signed it as that entity’s President, not as an individual broker or on behalf of any identified buyer. The agreement nowhere refers to a broker, a buyer’s representative, or compensation.

This document is inconsistent with the FAC’s central premise that Newmark dealt with Marina Pointe as a cooperating broker from the outset. (¶¶ 64, 70.) It reinforces the absence of any contract or clear promise discussed in Section I.A, because the only written instrument governing Plaintiffs’ access to the Property identifies Marina Pointe as a prospective purchaser, rather than a broker. It is also consistent with Section I.F above: the one document Mr. Barkohanai signed in the transaction was signed in a corporate capacity, as a prospective purchaser, not as a licensed individual broker.

H. Alternative Ground: Statute of Frauds (Civ. Code § 1624, subd. (a)(4)).

In the alternative, Newmark will contend that the Fourth, Seventh, and Ninth Causes of Action are barred by the statute of frauds. An agreement to compensate a broker for procuring a purchaser of real estate must be in a writing subscribed by the party to be charged that shows the fact of the broker’s employment. (Civ. Code § 1624, subd. (a)(4); Westside Estate Agency, Inc., supra, 6 Cal.App.5th 317.) We recognize that the FAC characterizes the alleged arrangement as an agreement between cooperating brokers (¶¶ 64, 70, 73, 106). But the FAC itself describes compensation to be "netted out of the purchase price" and asks that "the sellers factor this into their selling price". (¶¶ 18, 20; Ex. 2) That is compensation from the principal’s transaction economics, not a division of Newmark’s commission. The only writing identified states that there is "no formal arrangement." (Ex. 1.) And a broker may not avoid the statute through estoppel absent actual fraud. (Phillippe, supra, 43 Cal.3d 1247.)

II. GROUNDS FOR MOTION TO STRIKE (Code Civ. Proc. §§ 435–436)

• Attorneys’ fees (Prayer, ¶ 4). Fees are recoverable only where authorized by contract or statute. (Code Civ. Proc. § 1021.) The FAC identifies no fee provision and no fee-shifting statute.

• Punitive damages against Newmark: corporate employer requirements (¶¶ 83, 103; Prayer, ¶ 3, as to the Fifth and Eighth Causes of Action). Against a corporate employer, Civil Code section 3294, subdivision (b) requires facts showing that an officer, director, or managing agent authorized, ratified, or committed the oppressive, fraudulent, or malicious conduct. A managing agent is one who exercises substantial discretionary authority over decisions that ultimately determine corporate policy. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566–567, 577.) Allegations of job titles and authority over a single listing do not meet that standard, and completing a sale does not constitute ratification of fraud.

• Punitive damages against Newmark: no facts showing oppression, fraud, or malice (same allegations). Independently, the FAC does not plead facts showing that Newmark acted with “oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a).) Malice requires conduct intended to injure the plaintiff or “despicable conduct” carried on in willful and conscious disregard of the plaintiff’s rights; oppression likewise requires “despicable conduct.” (Id., subd. (c)(1), (2).) Paragraphs 83 and 103 simply recite that Newmark’s conduct was “malicious, oppressive, and fraudulent within the meaning of Civil Code section 3294.” The facts actually alleged are a two-sentence email stating that the request was being handled with the seller (¶ 85), a telephone call in which Mr. Shannon described Mr. Saadian’s offer as unlikely to proceed (¶ 36), and Newmark’s later closing of a sale its client wanted to make (¶¶ 44, 82). At most, those facts describe a commercial dispute over whether a fee was owed; they do not describe despicable conduct or an intent to injure. Conclusory characterizations of this kind are insufficient and are properly stricken. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) And because the fraud claim itself is deficient for the reasons in Section I.D, it cannot supply the “fraud” predicate.

• Mr. Barkohanai’s individual damages (¶¶ 88, 103). The FAC alleges that all brokerage services were performed by Marina Pointe through Mr. Barkohanai as its broker-officer. (¶ 4.) Any alleged loss is therefore only potentially Marina Pointe’s (subject to Marina Pointe demonstrating it was validly licensed). To the extent Mr. Barkohanai seeks, in his individual capacity, the value of his "time, expenses, and work product" for brokerage services, he may not recover compensation for acts requiring a real estate license in his own name absent an individual license at the relevant time. (Bus. & Prof. Code § 10136.)

III. REQUEST TO MEET AND CONFER

Please advise whether Plaintiffs are willing to dismiss or amend the causes of action and allegations identified above. Code of Civil Procedure Sections 430.41 and 435.5 require the parties to meet and confer, and our deadline to complete that process is October 14, 2026. I am available on October 12 (morning only), October 13 (flexible), or October 14 (except between 10-11 a.m.). Please contact me at gaurav.reddy@cantor.com to confirm a date and time.

If the parties are unable to resolve these issues through the meet and confer process, Newmark intends to file its demurrer and motion to strike on or before October 19, 2026. Nothing in this letter is intended as a complete statement of Newmark’s positions, defenses, or arguments, all of which are expressly reserved.

Finally, even if some of Plaintiffs’ claims survive the pleading stage, Newmark does not believe Plaintiffs have fully considered the risks of continuing this litigation. There are serious questions about whether Plaintiffs’ purported brokerage activities complied with California law and real estate regulations. Plaintiffs may also face independent exposure under the Confidentiality Agreement, which limited disclosure of confidential information about the Property to Marina Pointe’s defined “Representatives.” The FAC itself alleges that Plaintiffs sent the offering materials, underwriting, and related deal information to Mr. Saadian and his agent (¶¶ 28, 58, 60), neither of whom is a Representative. Newmark respectfully urges Plaintiffs to reconsider pursuing these claims.

cc: Andrew Raunau, Esq. (andrew.raunau@cantor.com)

Pages 62 and 63 of the PDF are the proof of service and service list. They are omitted here because they carry only counsel service contact details and no substantive content. They remain in the PDF.