Judge: Anne Richardson, Case: 22STCV21326, Date: 2023-03-17 Tentative Ruling
Case Number: 22STCV21326 Hearing Date: March 17, 2023 Dept: 40
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FARAMARZ NAZMIFAR, Plaintiff, v. BEHZAD BEN TOUBIAN; BRENTANITA INC., a California Corporation;
and DOES 1 through 20, Defendants. |
Case No.: 22STCV21326 Hearing Date: 3/20/23 Trial Date: N/A [TENTATIVE] RULING RE: Defendant Behzad
Ben Toubian’s Motion to Strike; and Defendants Behzad
Ben Toubian and Brentanita, Inc.’s Motion to Quash Subpoenas. |
MOVING PARTY: Defendant Behzad Ben
Toubian [Motion to Strike]; and Defendants Behzad Ben Toubian and Brentanita,
Inc. [Motion to Quash Subpoenas].
OPPOSITION: Plaintiff
Faramarz Nazmifar [Motion to Quash Subpoenas only].
REPLY: [None]
Representations by Toubian
According to the complaint, in or about early 2018,
Defendant Toubian represented to Plaintiff Nazmifar that Toubian was an
experienced and successful builder and developer of residences, and personally
showed Plaintiff Nazmifar several residences in Los Angeles, California that
Toubian alleged to have built and sold for huge profit.
Nazmifar alleges that at no time during the events described
in this matter was Toubian a California-licensed contractor.
The Homewood Property
On May 21, 2019, Toubian and three other persons including
Plaintiff Nazmifar entered the “Brentanita Inc. dba 388 Homewood Road Project”
(referred to as the “Brentanita Partnership”) to develop 388 Homewood Road, Los
Angeles, California 90049 (the “Homewood Property”) and sell such property for
a profit, with the partners to be compensated from the sale pursuant to their
agreed upon capital contributions. (Ex. B to the FAC.)
The owner of the Homewood Property is Defendant Brentanita,
Inc.
Nazmifar alleges that: Toubian prepared the Brentanita
Partnership Agreement; Joseph Fischbach worked as an attorney for the Brentanita
Partnership in 2020, originally working through Valensi Rose, PLC; and, in or
about November 2020, Toubian or Joseph Fischbach, prepared a first amendment to
the Brentanita partnership agreement, which was signed by both Toubian and
Plaintiff Nazmifar (Ex. D to FAC).
The Partnership Amendment reflects Nazmifar’s agreement to
invest, as a capital contribution, the sum of $1,016,000 for the development
and sale of the Homewood Property, and also reflects Toubian invested $250,000
to Brentanita’s Homewood Project.
Nazmifar alleges that, at all pertinent times, Toubian held
himself out to Plaintiff as the intended builder of the Homewood Property and
represented to his partners that Toubian would hire properly qualified
contractors to perform construction work on this property, would monitor and
supervise the contractors’ work, and would manage all required filings for its
construction with the local government (including the Los Angeles Department of
Building & Safety). Further, during the construction project of the
Homewood Property, Toubian functioned as the supervisor or general contractor
of the project despite lack of authority to do so.
Nazmifar alleges that during the course of the building of
the Homewood Property, Toubian repeatedly applied for inspections and permits
from the Los Angeles Department of Building and Safety (“LADBS”) (Exs. E and H to
the FAC), holding himself out as the owner/builder of the Homewood Property and
making false affirmations as to Toubian’s use of licensed contractors on the
construction project and Toubian’s intent to live at/not immediately sell this
Property after its completion and permitting, neither of which were true.
Nazmifar alleges that Toubian informed Plaintiff that upon
the sale of the Homewood Property, there would be an expected shortfall in the
sale proceeds after expenses are paid off. The expenses include payments
allegedly owed to Toubian from his investment monies and construction services
in connection with this Homewood Property. As a result, Toubian stated that
Brentanita will not be able to pay Plaintiff Nazmifar the amount owed to him
based on his investment monies.
The Anita Property
In or around April or May 2018, Defendant Toubian obtained
investors in his construction project with respect to 21 South Anita, Los
Angeles, California 90049 (“the Anita Property”).
The owner of the Anita Property before sale was Brentwood
Flats, Inc., a company formed by Toubian.
Nazmifar alleges that in order to confirm the deal, Toubian had
the “Anita Agreement” prepared. (Ex. I to the FAC). (While Plaintiff Nazmifar’s
wife signed the Anita Agreement on his behalf based on Nazmifar’s temporary
absence, she later assigned any contractual rights and obligations under this
Agreement to Nazmifar.)
During the construction project of the Anita Property,
Toubian functioned as the supervisor or general contractor of the project despite
lack of authority to do so.
Plaintiff Nazmifar invested $500,000 into the Anita Property
project based upon Toubian’s alleged experience in building residences, the
terms of the Anita Agreement, and Plaintiff’s belief that Toubian would act
lawfully in the building of the property.
Nazmifar alleges that during the course of the building of
the Anita Property, Toubian repeatedly applied for inspections and permits from
the LADBS (Exs. J to M to the FAC), holding himself out as the owner/builder of
the Anita Property and again making false affirmations as to Toubian’s use of
licensed contractors on the construction project and Toubian’s intent to live
at/not immediately sell this Property after its completion and permitting,
neither of which were true.
On or about March 30, 2022, Toubian had Brentwood Flats,
Inc. sell the Anita Property. Upon the sale of the Anita Property, there was a
considerable shortfall in the sale proceeds after expenses were paid off. The
expenses included amounts Toubian obtained for his alleged unlicensed and
unlawful construction services in connection with this property.
This Action
Based on these allegations, on June 30, 2022, Plaintiff
brought this lawsuit against Defendants Toubian, Brentanita, Inc., and Does 1
to 20 pursuant to an unverified Complaint making claims for (1) Breach of
Contract re Homewood against Toubian, (2) Breach of Contract re Anita against
Toubian, (3) Breach of Fiduciary Duty against Toubian, (4) Constructive Fraud against
Toubian, (5) Negligence against Toubian, (6) Concealment against Toubian, (7)
Conversion against Toubian, (8) Unfair Business Practices against Toubian, (9)
Promissory Fraud against Toubian, and (10) Constructive Trust against Toubian
and Brentanita, Inc.
On August 18, 2022, Defendant Toubian filed a motion to
strike various portions of the Plaintiff’s Complaint.
On October 8, 2022, Defendants Toubian and Brentanita filed
a motion to quash subpoenas served by Plaintiff Nazmifar on Fischbach &
Fischbach, ALC, and Valensi Rose, PLC. (Joseph Fischbach was previously an
attorney with Valensi Rose before moving to Fischbach & Fischbach and
appears as counsel of record for Defendant Toubian; Brentanita is represented
by JT Fox, but Joseph Fischbach has performed work relating to Brentanita in
the past.) (While both Defendants made this motion, only Fischbach signed the
motion, without any signatures thereon from J.T. Fox, counsel for Brentanita.)
On January 3, 2023—eleven court days before the original
hearing on the motion to strike on January 18, 2023—Plaintiff Nazmifar filed a
First Amended Complaint, amending his causes of action to state: (1) Breach of
Contract re Homewood against Toubian; (2) Breach of Contract re Anita against
Toubian; (3) Derivative—on behalf of Brentanita—and Individual Breach of
Fiduciary Duty against Toubian and Brentanita; (4) Derivative and Individual
Constructive Fraud against Toubian and Brentanita; (5) Derivative and
Individual Negligence against Toubian and Brentanita; (6) Derivative and
Individual Concealment against Toubian and Brentanita; (7) Derivative and
Individual Conversion against Toubian and Brentanita; (8) Derivative and
Individual Unfair Business Practices against Toubian and Brentanita; (9) Derivative
and Individual Promissory Fraud against Toubian and Brentanita; (10)
Constructive Trust against Toubian and Brentanita; and (11) Recovery of Payment
to Unlicensed Contractor against Toubian and Brentanita.
On March 7, 2023, Plaintiff filed an opposition to the
motion to quash by Defendants.
Plaintiff failed to file an opposition to the motion to
strike, which was not necessary, as discussed below.
Defendants Toubian and Brentanita have failed to reply to
Plaintiff Nazmifar’s opposition to the motion to quash.
Legal Standard
“A party may amend its pleading once without leave of the
court at any time before the answer, demurrer, or motion to strike is filed, or
after a demurrer or motion to strike is filed but before the demurrer or motion
to strike is heard if the amended pleading is filed and served no later than
the date for filing an opposition to the demurrer or motion to strike. A party
may amend the pleading after the date for filing an opposition to the demurrer
or motion to strike, upon stipulation by the parties.” (Code Civ. Proc., § 472,
subd. (a).) “All papers opposing a motion so noticed shall be filed with the
court and a copy served on each party at least nine court days … before the
hearing.” (Code Civ. Proc., § 1005, subd. (b).) “[T]he filing of an amended
complaint moots a motion directed to a prior complaint.” (JKC3H8 v. Colton
(2013) 221 Cal.App.4th 468, 477.) However, this relief is limited to the
amendment of a complaint into a first amended complaint; a party cannot amend
an operative amended complaint as a matter of course. (See Hedwall v. PCMV,
LLC (2018) 22 Cal.App.5th 564, 572-79 [holding, as a matter of first
impression, that a party’s right to amend a pleading as a matter of course
under Code of Civil Procedure section 472, subdivision (a) is limited to the
original pleading commencing the action].)
Analysis
The original hearing date for Defendant Toubian’s August 18,
2022 motion to strike was January 18, 2023, with the hearing later moved to
February 14, 2023, and then March 20, 2023.
On January 3, 2023, ten court days prior to the first
scheduled hearing—with January 16, 2023 being a holiday—Plaintiff filed a First
Amended Complaint.
As the First Amended Complaint was filed nine or more court
days before the hearing on Toubian’s strike motion, the FAC was filed by
Plaintiff as a matter of right (Code Civ. Proc., § 472, subd. (a)) and MOOTED
Toubian’s strike motion (JKC3H8 v. Colton, supra, 221 Cal.App.4th
at p. 477).
Legal Standard
A motion to quash a deposition subpoena or deposition notice
is used to strike, modify, or impose conditions on a subpoena or notice that is
procedurally or substantively defective. (See Code Civ. Proc., §§ 1987.1, subd.
(a), 2025.410, subd. (c); see, e.g., Catholic Mut. Relief Soc’y v. Superior
Court (2007) 42 Cal.4th 358, 365 [motion based on ground that subpoenas sought
information outside scope of discovery]; John B. v. Superior Court (2006) 38
Cal.4th 1177, 1186 [motion based in part on ground that subpoenas violated
right of privacy]; McClatchy Newspapers v. Superior Court (1945) 26 Cal.2d 386,
391 [motion based on ground that subpoenas were unreasonable and oppressive];
Far W. S&L Assn. v. McLaughlin (1988) 201 Cal.App.3d 67, 71 [motion based
on ground that subpoena was not properly served]; City of Los Angeles v. Superior
Court (2003) 111 Cal.App.4th 883, 888 [procedural remedy for a defective
subpoena is generally a motion to quash under § 1987.1].)
Such a motion may be made by:
(1) Any party to the action (Code Civ. Proc., 1987.1, subd.
(b)(1));
(2) The subpoenaed witness (e.g., a custodian of another
person’s personal records) (Code Civ. Proc., § 1987.1, subd. (b)(2); Monarch
Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1287-88);
(3) A person (party or nonparty) whose consumer,
governmental, or employment information or records have been subpoenaed (see
Code Civ. Proc., § 1985.3, subd. (g) [party consumer], 1985.4 [state or
local-agency employee or any other natural person], 1985.6, subd. (f)(1)
[employee], 1987.1, subd. (b)(3) [consumer], 1987.1, subd. (b)(4) [employee];
see also Code Civ. Proc., §§ 1985.3, subd. (g), ¶ 2, 1985.6, subd. (f)(2)
[nonparty consumer can make written objections instead of motion to quash]);
(4) A person whose “personally identifying information”
within the meaning of Civ. Code § 1798.79.8, subd, (b), subpoenaed in
connection with an action involving that person’s exercise of free-speech
rights; and
(5) The Court, on its own motion, after giving the parties
notice and the opportunity to be heard (Code Civ. Proc., § 1987.1, subd. (a).)
A motion to quash may be based on grounds that:
The subpoena contains error or irregularities in the
deposition notice. (See Code Civ. Proc., § 2025.410, subds. (a), (c).)
The disclosure of the records sought will violate the
consumer’s constitutional right to privacy. (See Cal. Const., art. I, § 1; see,
e.g., Fett v. Medical Bd. (2016) 245 Cal.App.4th 211, 213 [petitions to
quash to nonparties’ doctor because of privacy rights]; Manela v. Superior
Court (2009) 117 Cal.App.4th 1139, 1150-51 [motion to quash a subpoena to
party’s doctor because of privacy rights].)
The disclosure of records will violate a privilege of the
consumer, the witness, or a person with whom the witness has a relationship
that requires the witness to assert the privilege on the person’s behalf. (See,
e.g., Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282,
1290 [objections to subpoena for business records based on trade-secret
privilege].)
Analysis
On September 30, 2022, Plaintiff Nazmifar served Fischbach
& Fischbach, ALC (“F&F”), and Valensi Rose, PLC (“VR Law”)—Defendant
Toubian’s present and former counsel, where Joseph Fischbach has performed work
relating to Brentanita in the past—with identical depositions to produce
business records requesting:
1. All agreements between [F&F or
VR Law] and Behzad Toubian (“Toubian”) pertaining to 388 Homewood Road, Los
Angeles, CA 90049 (“Homewood”) or Brentanita Inc. company (or partnership)
(“Brentanita”).
2. All agreements between Joseph
Fischbach or any of his agents (“Fischbach”) and Toubian pertaining to Homewood
or Brentanita.
3. All agreements between [F&F or
VR Law] and Brentanita pertaining to Homewood or Brentanita.
4. All agreements between Fischbach and
Brentanita pertaining to Homewood or Brentanita.
5. All documents evidencing
communications or correspondence between [F&F or VR Law] and Toubian
pertaining to Homewood or Brentanita.
6. All documents evidencing
communications or correspondence between [F&F or VR Law] and Brentanita
pertaining to Homewood or Brentanita.
7. All documents evidencing
communications or correspondence between Fischbach and Toubian pertaining to
Homewood or Brentanita.
8. All documents evidencing
communications or correspondence between Fischbach and Brentanita pertaining to
Homewood or Brentanita.
9. All documents received by [F&F
or VR Law] from Toubian or Brentanita pertaining to Homewood or Brentanita.
10. All documents received by Fischbach
from Toubian or Brentanita pertaining to Homewood or Brentanita.
11. All documents evidencing legal
services by [F&F or VR Law] or Fischbach for Toubian to Homewood or
Brentanita.
12. All documents evidencing legal
services by [F&F or VR Law] or Fischbach for Brentanita pertaining to
Homewood or Brentanita.
13. All billing statements and invoices
from [F&F or VR Law] or Fischbach to Toubian or Brentanita pertaining to
Homewood or Brentanita.
14. All documents evidencing payments
received by [F&F or VR Law] or Fischbach for legal services performed for
Toubian or Brentanita, pertaining to Homewood or Brentanita.
(Quash Mot., Fischbach Decl., Exs. A-B [respective
depositions to F&F and VR Law].)
On October 8, 2022, Defendants Toubian and Brentanita filed
a Motion to Quash these subpoenas on the grounds that the production requests
are barred by (1) the attorney-client privilege, (2) the work-product
privilege, (3) the invasion of a constitutional right to privacy, or (4)
Plaintiff’s failure to show a compelling interest for the requested discovery.
(Mot., 6:4-7:14 [attorney-client], 7:15-8:7 [work product], 8:8-21 [privacy],
8:22-9:20 [compelling interest].)
In opposition, Plaintiff Nazmifar argues in relevant part
that (1) notice of this motion was untimely made (Opp’n, 4:10-20); (2) defense
counsel failed to properly meet and confer prior to filing this motion (Opp’n,
4:21-5:25); (3) no privilege log has been produced relating to the claims of
privilege (Opp’n, 6:1-10); (4) Defendant Toubian cannot shield information
relating to Brentanita from Plaintiff Nazmifar where both are partners in
Brentanita and the documents sought relate to Brentanita (Opp’n, 6:11-7:12);
(5) the work product doctrine cannot be raised without a privilege log (Opp’n,
7:13-27); (6) Toubian and Brentanita fail to explain whose privacy is being
invaded (Opp’n, 8:1-11); and (7) the requested documents are not overbroad in
scope (Opp’n, 8:12-16).
Defendants Toubian and Brentanita have failed to reply to
this opposition. (See docket generally.)
It is readily apparent that the documents sought for
production may be subject to the protection of privilege insofar as Toubian may
have communicated with Fischbach or Fischbach drafted work product for Toubian
relating to the Homewood Property or Brentanita and for the purposes of this
lawsuit or for other legal consultation services.
However, it is equally clear that the documents sought for
production may involve communications or transmission of documents between
Toubian and Fischbach/F&F/VR Law relating to the Homewood Property or
Brentanita that were not made for the purposes of a legal consultation, e.g., communications
or documents related to a business transaction.
Without a privilege log, the Court cannot determine whether
privilege applies. (Los Angeles Cty. Bd. of Supervisors v. Superior Court
(2016) 2 Cal.5th 282, 294 [Attorney client privilege does not prevent discovery
of every communication between an attorney and her client; the communication
must have been made confidentially and for the purposes legal consultation”
(emphasis added)]; Code Civ. Proc., § 2018.030; Wellpoint Health Networks,
Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 120; BP Alaska Expl.,
Inc. v. Superior Court (1988) 1999 Cal.App.3d 1240, 1250 [collectively,
stating work product privilege provides absolute protection against discovery
of core work product—i.e., writings that contain the attorney’s impressions,
conclusions, opinions, or legal research or theories—and qualified protection
against discovery of noncore work product—i.e., all work product that is not
core work product].)
The Court thus ORDERS A CONTINUANCE of this motion for Defense counsel Joseph Fischbach to submit a privilege log for review by this Court to determine whether the claims of attorney-client privilege and work-product privilege over the communications and documents sought in the subpoenas are meritorious. (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1127 [“If the response and any privilege log fail to provide sufficient information to allow the trial court to rule on the merits, the court may order the responding party to provide a further response by serving a privilege log or, if one already has been served, a supplemental privilege log that adequately identifies each document the responding party claims is privileged and the factual basis for the privilege claim”].)