Case Name: Austiaj Limited Partnership, et al. v. Guiv Parineh, et al.
Case No.: 1-10-CV-188848
Demurrer to the second amended cross-complaint (?SACC?) by cross-defendants Austiaj Limited Partnership (?ALP?), Austiaj Parineh (?Austiaj?), Hormoz Parineh (?Hormoz?), Khashayar Parineh (?Khashayar?), and HAK Ventures, LLC (?HAK?) (collectively ?cross-defendants?)
Cross-complainants Guiv Parineh?s (?cross-complainant?) request for judicial notice is GRANTED.? (See Evid. Code, ? 452, subd. (d) [permitting judicial notice of court records].)
HAK?s demurrer to the first (intentional misrepresentation), second (fraud), and third (negligent misrepresentation), seventh (declaratory relief), eighth (accounting), ninth (involuntary trust of wrongful gain), tenth (financial elder abuse), and eleventh (breach of contract?) causes of action is OVERRULED as these claims are not pled against it.
Austiaj, Hormoz, and Khashayar?s demurrer to the eighth (accounting), ninth (involuntary trust of wrongful gain), and eleventh (breach of contract) causes of action is OVERRULED since these causes of action are not pled against them.
ALP, Austiaj, Hormoz, and Khashayar?s demurrer to the first cause of action for intentional misrepresentation for failure to state sufficient facts is OVERRULED.? (See Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363.)? Cross-complainant?s allegations are specifically pled.? (SACC, ?? 18, 20-22; see Gil v. Bank of Am., N.A. (2006) 138 Cal.App.4th 1371, 1381; Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 645.)? Cross-complainant alleges knowledge of falsity and justifiable reliance.? (SACC, ?? 23-25.)? The allegations of damages are sufficient.? (Id., ?? 18, 29, and p. 24:27-28.)
ALP, Austiaj, Hormoz, and Khashayar?s demurrer to the second cause of action for fraud (suppression of material fact) is SUSTAINED WITH 10 DAYS? LEAVE TO AMEND.? (See Boschma v. Home Loan Ctr., Inc. (2011) 198 Cal.App.4th 230, 248.)? Cross-complainant?s allegations are specifically pled as to the misrepresentations, there are allegations of knowledge of falsity and justifiable reliance, and the damage allegations are sufficient.? (SACC, ?? 31, 33-35, 37-40.)? However, one of the elements of a cause of action for fraud and deceit based on concealment is that ?the defendant must have been under a duty to disclose the fact to the plaintiff.? ?(Boschma, supra, 198 Cal.App.4th at p. 248.)? Cross-complainant has not alleged a duty.
ALP, Austiaj, Hormoz, and Khashayar?s demurrer to the third cause of action for negligent misrepresentation for failure to state sufficient facts is SUSTAINED WITH 10 DAYS? LEAVE TO AMEND.? The elements of a fraud claim for negligent misrepresentation are the following: (1) a misrepresentation (false representation, concealment or nondisclosure); (2) knowledge of falsity (or ?scienter?); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.? (Philipson & Simon, supra, 154 Cal.App.4th at p. 363.)? Cross-complainant alleges knowledge of falsity and justifiable reliance.? (SACC, ?? 47-51.)? Cross-complainant alleges that the misrepresentations were made without reasonable grounds for believing them to be true.? (Id., ? 48.)? However, cross-complainant has not alleged why cross-defendants owed any legal duty.? (See Eddy v. Sharp (1988) 199 Cal.App.3d 858, 864 [?responsibility for negligent misrepresentation rests upon the existence of a legal duty?].)
ALP, Austiaj, Hormoz, and Khashayar?s demurrer to the fourth cause of action for conspiracy for failure to state sufficient facts is OVERRULED.? ?Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. . . . ?It must be activated by the commission of an actual tort.? ?(Applied Equip. Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-11.)? The SACC sufficiently alleges intentional misrepresentation to serve as the predicate underlying tort necessary for a conspiracy cause of action against these cross-defendants.
HAK?s demurrer to the fourth cause of action for conspiracy for failure to state sufficient facts is SUSTAINED WITH 10 DAYS? LEAVE TO AMEND.? The first three causes of action are not alleged against HAK.? As a result, there is no underlying tort to maintain this claim against HAK.? (See id.)
Cross-defendants? demurrer to the fifth cause of action for equitable indemnity for failure to state sufficient facts is OVERRULED.? ?The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible.? ?(Expressions at Rancho Niguel Ass?n v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139.) ?Here, the SACC sufficiently alleges that if cross-complainant is held liable to cross-defendants in the principal action, such liability arises from cross-defendants? acts.? (SACC, ?? 61-62.)
Cross-defendants? demurrer to the sixth cause of action for contribution for failure to state sufficient facts is OVERRULED.? Cross-defendants? reliance on West v. Super. Ct. (1994) 27 Cal.App.4th 1625, 1633, is misplaced since the claim is not based on implied contractual indemnity.
ALP, Austiaj, Hormoz, and Khashayar?s demurrer to the seventh cause of action for declaratory relief for failure to state sufficient facts is OVERRULED.? This claim is not ?an unnecessary restatement? of the fifth and sixth causes of action because cross-complainant seeks a court order declaring the respective rights, liabilities, and duties of the parties.? (See SACC, p. 25:25-26.)
ALP?s demurrer to the eighth cause of action for an accounting for failure to state sufficient facts is OVERRULED.? ?The elements for a claim for accounting are: (1) a relationship between the parties that requires an accounting; and (2) a balance due from the defendant to the plaintiff that can only be ascertained by an accounting. ?(Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.) ?Cross-complainant alleges he was a former limited partner of ALP, and is entitled to an accounting of funds ALP received.? (SACC, ? 75.)
ALP?s demurrer to the ninth cause of action for involuntary trust of wrongful gain for failure to state sufficient facts is OVERRULED.? A constructive trust may only be imposed where the following three conditions are satisfied: (1) the existence of a res (property or some interest in property); (2) the right of a complaining party to that res; and (3) some wrongful acquisition or detention of the res by another party who is not entitled to it. [Citations.]? ?(Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 990; see Campbell v. Super. Ct. (2005) 132 Cal.App.4th 904, 920.)? Cross-complainant pleads all the necessary elements for a constructive trust: (1) the res is the trust; (2) cross-complainant is entitled to funds in the trust as the former trustee; and (3) ALP gained the res through misrepresentations. ?(SACC, ? 81.)
ALP, Austiaj, Hormoz, and Khashayar?s demurrer to the tenth cause of action for financial elder abuse for failure to state sufficient facts is SUSTAINED WITH 10 DAYS? LEAVE TO AMEND.? In order to state a cause of action for financial elder abuse, cross-complainant must allege with particularity that: (1) the victim was an ?elder? at the relevant time; (2) ALP, Austiaj, Hormoz, and Khashayar took, secreted, appropriated or retained, or assisted another in taking, secreting, appropriating or retaining, real or personal property of the elder; and (3) wrongful use of the property or intent to defraud the elder. ?(Welf. & Inst. Code, ? 15610.30; see Covenant Care, Inc. v. Super. Ct. (2004) 32 Cal.4th 771, 790 (?[T]he general rule [is] that statutory causes of action must be pleaded with particularity.?).)? Cross-complainant alleges he was 65 years old when he was induced to transfer the money he was holding as trustee.? (SACC, ? 83.)? However, there is no allegation that any of his ?real or personal property? was taken.
ALP?s demurrer to the eleventh cause of action for breach of contract for failure to state sufficient facts is SUSTAINED WITH 10 DAYS? LEAVE TO AMEND.[1]? Cross-complainant alleges that he ?entered into an oral joint venture with his brother.?? (SACC, ? 89.)? There is no allegation that ALP is a party to the ?oral joint venture.?? (See Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830 [breach of contract requires a pleading of (1) the contract, (2) plaintiff?s performance or excuse for nonperformance, (3) defendant?s breach, and (4) damage to plaintiff].)
ALP?s demurrer to the eleventh cause of action for breach of contract based on uncertainty is OVERRULED.? An uncertainty demurrer is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. ?(See Khoury v. Maly?s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) ?A demurrer for uncertainty should only be sustained when the complaint is so bad that the defendant cannot reasonably respond. ?(Id.)? Here, the breach of contract claim is certain enough to allow ALP to understand the nature of the allegations, and the theory of liability in order to fashion an appropriate response.
[1] ????????????? ALP argues that the SACC does not indicate whether the contract is written or oral.? An action ?founded upon a contract? is subject to demurrer if ?it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.?? (Code Civ. Proc., ? 430.10, subd. (g).) ?Thus, ?[t]o state a cause of action for breach of contract . . . , the complaint must indicate on its face whether the contract is written, oral, or implied by conduct.? ?(Otworth v. S. Pac. Transp. Co. (1985) 166 Cal.App.3d 452, 458-59.)? ALP did not indicate in its notice that it was demurring under Code of Civil Procedure section 430.10, subdivision (g).? Based on this procedural deficiency, the Court has not considered this ground for demurrer.