Judge: Barbara M. Scheper, Case: 22STCV20036, Date: 2022-12-06 Tentative Ruling
Case Number: 22STCV20036 Hearing Date: December 6, 2022 Dept: 30
Dept. 30
Calendar No.
Zakaryaie vs. Zakaryaie,
et. al., Case No. 22STCV20036
Tentative Ruling
re: Defendants’ Demurrer to First
Amended Complaint; Motion to Strike
Defendants Melanie Yadegar and
Farideh Zakaryaie (collectively, Defendants) demur to and move to strike the
First Amended Complaint (FAC) of Plaintiff Manoocher Zakaryaie. The demurrer is
sustained with ten (10) days leave to amend. The motion to strike is denied as
moot.
In reviewing the legal sufficiency of a complaint against a demurrer, a
court will treat the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions, or conclusions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co.
v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled
that a “demurrer lies only for defects appearing on the face of the
complaint[.]” (Stevens v. Superior Court
(1999) 75 Cal.App.4th 594, 601.) “The rules by which the sufficiency of a
complaint is tested against a general demurrer are well settled. We not only
treat the demurrer as admitting all material facts properly pleaded, but also
give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context.” (Guclimane Co.
v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes
omitted).) For purposes of ruling on a demurrer, the complaint must be
construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78
Cal.App.4th 952, 958.)
When ruling on a demurrer, the Court may only consider the complaint’s
allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at 318.) The Court may not consider any
other extrinsic evidence or judge the credibility of the allegations plead or
the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110
Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint,
liberally construed, fails to state facts sufficient to constitute any cause of
action. (Kramer v. Intuit Inc. (2004)
121 Cal.App.4th 574, 578.)
Plaintiff emigrated to the United
States from Iran in 1978 and invested $150,000 into multiple properties in
Woodland Hills, Thousand Oaks, and Westlake Village, California. (FAC ¶ 8.)
Plaintiff returned to Iran in 1979, and gave his sister, Defendant Farideh
Zakaryaie (Farideh), power of attorney to manage his properties and buy and
sell properties for his benefit on his behalf. (FAC ¶ 8.)
In July 2003, Farideh sold one of
Plaintiff’s Woodland Hills properties and used the proceeds to purchase a
property located at 1735 Selby Ave., Los Angeles, California (the Selby
Property). (FAC ¶ 11.) In January 2004, Farideh sold one of Plaintiff’s
Westlake Village properties. Farideh then used $202,000 of the proceeds from
that sale to purchase a condominium on North Swall Drive in Beverly Hills,
California (the Swall Property) with Plaintiff’s late sister, Maliheh
Naseerzadeh (Maliheh), who contributed another $170,000 to the down payment.
The Swall Property was purchased in Maliheh’s name rather than Plaintiff’s.
(FAC ¶ 11.)
In 2015, Farideh sold another of
Plaintiff’s Woodland Hills properties and used the proceeds to purchase a
two-percent interest in an apartment complex located on Roxbury Drive in
Beverly Hills (the Roxbury Property). Farideh again placed the property in
Maliheh’s name rather than Plaintiff’s. (FAC ¶ 12.)
On an unknown date, without
Plaintiff’s permission or approval, Farideh transferred the Selby, Swall, and
Roxbury Properties into the FKZ Trust. (FAC ¶ 13.) On May 20, 2019, Farideh
amended the FKZ Trust to make Plaintiff a beneficiary, and to provide that
Plaintiff is to take the Selby Property free and clear of trust upon Farideh’s
death. (FAC ¶ 14.) Defendant Melanie Yadegar (Yadegar) is the Successor Trustee
of the FKZ Trust, and since March 15, 2022 has also served as Farideh’s
Conservator. (FAC ¶¶ 2-3.)
Plaintiff learned of the above
events for the first time during the summer of 2021. (FAC ¶ 15.) Plaintiff
asked Melanie to transfer the Swall and Roxbury properties to him free of
Trust, but Melanie refused. (FAC ¶ 17.) Later that summer, Farideh agreed to
accompany Plaintiff to the office of Plaintiff’s attorney in order to facilitate
the transfer of the properties to Plaintiff. However, Farideh suffered a stroke
and became incapacitated before they could meet with Plaintiff’s attorney. (FAC
¶ 18.)
Plaintiff’s
FAC alleges five causes of action, for: (1) Promissory Estoppel; (2) Fraud in
the Inducement; (3) Restitution/Unjust Enrichment; (4) Financial Elder Abuse;
and (5) Probate Code § 859
Claim. The first three causes of action are asserted against Farideh,
individually and as Trustee of the FKZ Trust; the last two are asserted against
Melanie, individually and as Successor Trustee of the FKZ Trust.
Statute of limitations
Defendants argue that the first
four causes of action are time-barred because Plaintiff had constructive notice
of the recording of deeds for the properties at issue in 1998 and 2004. (RJN,
Exs. D-H.)
“The general rule is that a cause
of action accrues when the wrongful act is done and not at the time of
plaintiff's discovery. But under the delayed discovery
rule, a cause of action will not accrue until
the plaintiff discovers or should have discovered, through the exercise of
reasonable diligence, all the facts essential to the cause of action.” (Prudential Home Mortgage Co. v. Superior Court (1998) 66 Cal.App.4th 1236, 1246.) “A plaintiff
whose complaint shows on its face that his claim would be barred without the
benefit of the discovery rule must specifically plead facts to show (1) the
time and manner of discovery and (2) the inability to have made
earlier discovery despite reasonable diligence.” (Grisham
v. Philip Morris U.S.A., Inc. (2007) 40
Cal.4th 623, 638.)
“Land office
records, like other public records, constitute constructive notice of the facts
recorded therein. One who deals in property cannot deny knowledge of the
contents of public records which affect the title at the time he engages in his
transactions. He is also chargeable with knowledge of matters which come of
record later if he has a continuing duty to ascertain all facts that might
affect the validity of his title or right.” (South
v. Wishard (1956) 146 Cal.App.2d 276,
286.)
Here, the
allegations do not show that Plaintiff was chargeable with constructive
knowledge of the recorded deeds. It is alleged that Farideh bought and sold the
properties after Plaintiff returned to Iran in 1979. (FAC ¶ 9.)
Plaintiff also alleges that Farideh purchased and transferred the properties at
issue contrary to Plaintiff’s instructions. (FAC
¶¶ 11-15.) Because the alleged property purchases were made by Farideh, and
done contrary to Plaintiff’s instructions, Plaintiff is not chargeable with
constructive knowledge of the recorded deeds.
It is alleged that Plaintiff
returned to Iran from the US in 1979, and that Plaintiff did not learn of the
purchases and transfers until the summer of 2021. (FAC ¶¶ 9, 15.) But Plaintiff has not pled specific facts
showing “the inability to have made earlier discovery despite reasonable
diligence.” There are no specific allegations re: Plaintiff’s residence or
status after the allegation that he returned to Iran in 1979. (FAC ¶ 9.) Even if Plaintiff remained in Iran until
2021, there are not facts demonstrating that Plaintiff requested that Farideh
report on the status of the properties at any time. Failure to even inquire does not demonstrate
reasonable diligence.
First Cause of Action for Promissory Estoppel
“The elements of promissory estoppel are (1) a promise, (2)
the promisor should reasonably expect the promise to induce action or
forbearance on the part of the promisee or a third person, (3) the promise
induces action or forbearance by the promisee or a third person (which we refer
to as detrimental reliance), and (4) injustice can be avoided only by
enforcement of the promise.” (West v. JPMorgan Chase Bank, N.A.
(2013) 214 Cal.App.4th 780, 803.) “The party claiming estoppel must
specifically plead all facts relied on to establish its elements.” (Smith
v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 48.)
“The promise must . . . be ‘clear and
unambiguous in its terms.’ [Citation.] ‘To be enforceable, a promise need only
be “definite enough that a court can determine the scope of the duty[,] and the
limits of performance must be sufficiently defined to provide a rational basis
for the assessment of damages.”’” (Aceves
v. U.S. Bank, N.A. (2011) 192 Cal.App.4th 218, 226.)
Plaintiff’s
promissory estoppel claim is premised on Farideh’s promise to follow
Plaintiff’s instructions to buy and sell properties for his benefit and in his
name. (FAC ¶ 21.) Plaintiff alleges that “Farideh breached her promise by
selling certain of Manoocher’s properties and buying the Swall and Roxbury
properties in Maliheh’s name, . . . and by transferring the Selby, Swall and
Roxbury properties into the FKZ Trust.” (FAC ¶¶ 22-23.) Plaintiff alleges that
he “suffered harm as a result of Farideh’s breaches of promise,” and that
“Farideh’s breaches of promise were a substantial factor in causing [Plaintiff]
harm.” (FAC ¶¶ 24-25.)
Plaintiff
has failed to allege a clear and unambiguous promise that is definite enough
that the Court can determine the scope of the duty and the limits of
performance. While the FAC refers to attached exhibits of Farideh’s power of
attorney form and a translated instrument memorializing Farideh’s promise to
Plaintiff, no documents are attached to the FAC. (FAC ¶¶ 20-21.) Plaintiff has
also failed to plead how he detrimentally relied on Farideh’s alleged promise.
Accordingly,
the demurrer is sustained as to the first cause of action.
Second Cause of Action for Fraudulent Inducement
The elements of fraud are:
(1) misrepresentation (false representation, concealment, or nondisclosure);
(2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance;
(4) justifiable reliance; and (5) damages. (See Civil Code §1709.) Fraud actions
are subject to strict requirements of particularity in pleading. (Committee
on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197,
216.)
The liberal construction of pleadings does not apply to a
fraud claim. Instead, a fraud claim must be pled with specificity. (Tenet
Healthsystem Desert, Inc. v. Blue Cross of California¿(2016) 245
Cal.App.4th 821, 837.) “The particularity requirement demands that a plaintiff
plead facts which show how, when, where, to whom, and by what means the
representations were tendered.” (Cansino v. Bank of America (2014) 224
Cal.App.4th 1462, 1469.)
Here, Plaintiff has failed to plead
his fraud claim with adequate specificity. Plaintiff’s cause of action for
fraud alleges that Farideh falsely represented that she would buy and sell
properties for Plaintiff’s benefit. (FAC ¶ 28.) Regarding Farideh’s
misrepresentation, it is only alleged that “[Plaintiff] gave sister Farideh
power of attorney to manage his properties and to buy and sell properties for
his benefit and on his behalf.” (FAC ¶ 9.) These allegations do not show how, when, where, and by what means the representations
were tendered.
Accordingly, the demurrer is sustained as to the second
cause of action.
Third Cause of Action for Restitution/Unjust Enrichment
There
is no cause of action for unjust enrichment in California. (See Rutherford
Holdings LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231; Levine v.
Blue Shield of California (2010) 189 Cal.App.4th 1117, 1138.) However,
courts have stated that unjust enrichment is synonymous with restitution and
have allowed recovery where the plaintiff asserts a proper basis for recovering
restitution. (See Durrell v. Sharp Healthcare (2010) 183 Cal.App.4th
1350, 1370; McBride v. Boughton (2004) 123 Cal.App.4th 379, 387-88.)
Such bases include quasi-contract, fraud, duress, conversion, or similar
conduct. (See Durrell, 183 Cal.App.4th at 1370; McBride, 123
Cal.App.4th at 387-88.)
Because
the demurrer is sustained as to Plaintiff’s other causes of action, Plaintiff
has failed to plead any grounds for restitution. Accordingly, the demurrer is
sustained as to the third cause of action.
Fourth
Cause of Action for Financial Elder Abuse (Welf. & Inst. Code § 15610.30)
“Section
15610.30, subdivision (a), provides that financial abuse of an elder or
dependent adult occurs where a person takes or assists in taking real or
personal property of such an adult to a wrongful use or with an intent to
defraud, or both.” (Wood v. Santa Monica
Escrow Co. (2007) 151 Cal.App.4th 1186, 1189; see Welf. & Inst. Code, §
15610.30.) Elder Abuse must be alleged with
specificity. (Carter v. Prime
Healthcare Paradise Valley LLC (2011) 198
Cal.App.4th 396, 410.) The Elder Abuse Act protects “any person residing in
this state, 65 years of age or older” at the time of the alleged wrongful
conduct. (Welf. & Inst. Code,
§ 15610.27.) Financial Elder Abuse must be
alleged with specificity. (Covenant
Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)
To state the
cause of action, “[a]s a general matter, a plaintiff must demonstrate that a
defendant: (1) subjected an elder to statutorily-defined . . . financial abuse;
and (2) acted with recklessness, malice, oppression, or fraud in the commission
of the abuse.” (Davenport v. Litton Loan Servicing, LP (N.D. Cal. 2010)
725 F.Supp.2d 862, 879.) “Financial abuse” of an elder occurs when a person or
entity does any of the following:
(1) Takes,
secretes, appropriates, obtains, or retains real or personal property of an
elder or dependent adult for a wrongful use or with intent to defraud, or both.
(2) Assists in taking, secreting,
appropriating, obtaining, or retaining real or personal property of an elder or
dependent adult for a wrongful use or with intent to defraud, or both.
(3) Takes, secretes, appropriates,
obtains, or retains, or assists in taking, secreting, appropriating, obtaining,
or retaining, real or personal property of an elder or dependent adult by undue
influence, as defined in Section 15610.70.
(Welf. & Inst. Code, § 15610.30, subd. (a).)
“A wrongful use is defined as taking,
secreting, appropriating, or retaining property in bad faith. Bad faith occurs
where the person or entity knew or should have known that the elder had the
right to have the property transferred or made readily available to the elder
or to his or her representative.” (Teselle v. McLoughlin (2009) 173
Cal.App.4th 156, 174; Welf. & Inst.
Code, § 15610.30, subd. (b).)
Plaintiff’s Financial Elder
Abuse claim against Melanie alleges that Melanie, “[b]y her 2021 refusal to
transfer the Swall, Selby and Roxbury properties to [Plaintiff], … has
appropriated properties having a value of millions of dollars for the FKZ Trust.”
(FAC ¶ 42.) It is alleged that Plaintiff was 72 years
old in 2021. (FAC ¶ 41.)
Defendants
demur on the basis that Plaintiff was not an elder at the time that the Selby
and Swall properties were purchased, in 1998 and 2004, respectively. Here, the
wrongful conduct alleged is Melanie’s refusal to transfer the properties at
Plaintiff’s request in 2021, and so Plaintiff is an “elder” for purposes of the
claim.
However,
the Court agrees with Defendants that Plaintiff has failed to allege facts
sufficient to support a cause of action for financial elder abuse against
Melanie. There are no allegations showing that Melanie’s refusal to transfer
the properties was for a wrongful use or with intent to defraud. Furthermore, it
is not clear from the allegations whether Melanie had authority as Successor
Trustee to transfer the properties at the time of Plaintiff’s demand to her; it
is alleged that Plaintiff made the demand to Melanie in summer 2021, and that
Farideh became incapacitated only later that summer. (FAC ¶¶ 17-18.)
Accordingly,
the demurrer is sustained as to the fourth cause of action.
Plaintiff
does not contest the demurrer as to the fifth cause of action.
The
demurrer is sustained in full, and so the motion to strike is denied as moot.