Judge: Barbara M. Scheper, Case: 22STCV20036, Date: 2023-03-22 Tentative Ruling
Case Number: 22STCV20036 Hearing Date: March 22, 2023 Dept: 30
Dept. 30
Calendar No.
Zakaryaie vs. Zakaryaie,
et. al., Case No. 22STCV20036
Tentative Ruling
re: Defendants’ Demurrer to Second
Amended Complaint; Motion to Strike
Defendants Melanie Yadegar and
Farideh Zakaryaie (collectively, Defendants) demur to and move to strike the Second
Amended Complaint (SAC) of Plaintiff Manoocher Zakaryaie. The demurrer is
sustained as to the second cause of action, without leave to amend, and
overruled to the first and third causes of action. The motion to strike is
granted in part. Defendants are ordered
to answer within ten (10) days of today’s date.
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.)
The SAC alleges three causes of
action against Defendant Farideh Zakaryaie (Farideh), individually, for
Promissory Estoppel, Fraud in the Inducement, and Restitution.
Plaintiff
emigrated to the United States from Iran in 1978, and purchased properties in
Woodland Hills, Thousand Oaks, and Westlake Village, California. (SAC ¶ 7.) In
November 1979, Plaintiff allegedly gave Farideh, his sister, power of attorney
to manage his properties in California. (SAC ¶ 9.) Plaintiff then returned to
Iran and, except for a brief period, remained there until 2015, when he moved
to the United States permanently. (SAC ¶ 8.) Plaintiff alleges that Farideh
sold or transferred properties owned by Plaintiff into her trust, the FKZ Trust,
for her own benefit and without Plaintiff’s knowledge or consent. Farideh’s
alleged misconduct took place in 2003, 2004, 2009, 2011, and 2015. (FAC ¶¶
10-12.) Plaintiff alleges that he learned of Farideh’s misconduct for the first
time in June or July 2021, when Farideh confessed to him over a telephone call.
(SAC ¶ 15.) Later that summer, Farideh agreed to accompany Plaintiff to the
office of Plaintiff’s attorney in order return the properties to Plaintiff.
However, Farideh suffered a stroke and became incapacitated before any meeting
could take place. (FAC ¶ 18.)
Statute of Limitations
“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.) “When a plaintiff reasonably should have discovered
facts for purposes of the accrual of a cause of action or application of the
delayed discovery rule is generally a question of fact, properly decided as a
matter of law only if the evidence (or, in this case, the allegations in the
complaint and facts properly subject to judicial notice) can support only one
reasonable conclusion.” (Stella v. Asset
Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 193.)
Plaintiff’s
Promissory Estoppel and Fraud claims are both based on Farideh’s alleged promise
in November 1979 to buy, sell, and manage the properties on Plaintiff’s behalf.
(SAC ¶¶ 22, 30.) Defendants first argue that the claims are barred by the
statute of limitations. The Court disagrees, and finds that the SAC pleads
sufficient facts to support application of the discovery rule.
While Defendants
argue that Plaintiff has failed to plead facts showing that he acted with
“reasonable diligence,” the degree of diligence required of Plaintiff is
relaxed due to the alleged fiduciary relationship between him and Farideh. An attorney-in-fact under a
power of attorney
is a
fiduciary. (Probate Code § 39.) “The
existence of a trust relationship limits the duty of inquiry. ‘Thus, when a
potential plaintiff is in a fiduciary relationship with another individual, that
plaintiff's burden of discovery is reduced and he is entitled to rely on the
statements and advice provided by the fiduciary.’ ” (WA Southwest 2, LLC v.
First American Title Ins. Co. (2015) 240 Cal.App.4th 148, 157.) Application
of the discovery rule “is particularly appropriate when the defendant maintains
custody and control of a plaintiff's property or interests.” (April
Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 827.)
Plaintiff
alleges that he “called Farideh weekly from Iran between 1979 and 2015 and
during the period when [Plaintiff] was in the United States,” and that Farideh
reassured Plaintiff that she was managing the properties in accordance with
Plaintiff’s wishes. (SAC ¶ 14.) Plaintiff was entitled to rely on these
statements, particularly in light of Farideh’s control over his property and
his residence in Iran. The reasonableness of Plaintiff’s reliance is also
supported by the allegation that Farideh generally followed through on her
promises to manage the properties on Plaintiff’s behalf. (SAC ¶ 22.)
Additionally,
the Court disagrees with Defendants that the sham pleadings doctrine bars
Plaintiff’s new allegations in the SAC detailing Farideh’s 1979 promise to
Plaintiff. (SAC ¶ 9.) The sham pleadings doctrine applies “ ‘where an amended
complaint attempts to avoid defects set forth in a prior complaint by ignoring
them. The court may examine the prior complaint to ascertain whether the
amended complaint is merely a sham.’ Moreover, any inconsistencies with prior
pleadings must be explained; if the pleader fails to do so, the court may
disregard the inconsistent allegations.” (Larson v. UHS of Rancho Springs,
Inc. (2014) 230 Cal.App.4th 336, 343.)
In the First Amended Complaint
(FAC), Plaintiff alleged that he gave Farideh power of attorney “to manage his
properties and to buy and sell properties for his benefit and on his behalf.”
(FAC ¶ 9.) In the SAC, Plaintiff has added allegations detailing Farideh’s
promise; for example, that she would “[f]inance the properties at advantageous
interest rates,” “[r]ent the properties to reputable tenants,” “[m]aintain the
properties by, for example, hiring gardeners,” and “[c]ollect the rents
associated with the properties and deposit them into an account belonging to
[Plaintiff].” (SAC ¶ 9.) The new allegations in the SAC do not present any
inconsistencies or omissions of harmful allegations. Rather, Farideh’s alleged
promises to rent the properties to tenants, maintain the properties, collect
rents, and undertake other duties on Plaintiff’s behalf are consistent with the
allegation in the FAC that Farideh promised “to manage [Plaintiff’s] properties
and to buy and sell properties for his benefit.” (FAC ¶ 9.)
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.)
As
discussed above, Plaintiff’s cause of action for Promissory Estoppel is premised
upon Farideh’s promise, made in November 1979, to manage, buy, and sell
Plaintiff’s properties for Plaintiff’s benefit or on his behalf. (SAC ¶ 21.) A
copy of the document granting Power of Attorney is attached to the SAC. (SAC ¶
9, Ex. A.) Farideh allegedly breached this promise by transferring Plaintiff’s
properties to the FKZ Trust, pocketing rents, and benefitting from appreciation.
(SAC ¶ 24.) Farideh’s alleged breach of her promise to act on Plaintiff’s
behalf is sufficient to support a cause of action for promissory estoppel.
Plaintiff has also adequately pled reliance, as he allegedly gave power of
attorney to Farideh based on her promise. (SAC ¶ 9.) Accordingly, the demurrer is overruled 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 requisite
state of mind, or scienter, for actual fraud or intentional misrepresentation
is disbelief in the truth of the statement, i.e., knowledge of falsity.”
(Anderson v. Deloitte & Touche (1997) 56 Cal.App.4th 1468, 1476.)
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.)
Again, Plaintiff’s fraudulent inducement cause of action is
premised on Farideh’s alleged misrepresentations to Plaintiff, made in November
1979, that she would buy, sell, and manage the properties on his behalf. (SAC ¶
30.) These allegations fail to state a cause of action for fraudulent
inducement. When Farideh made the alleged misrepresentations, she could not plausibly
have intended that she would transfer Plaintiff’s properties to herself over
two decades later. (SAC ¶¶ 10-12.) Farideh did not even purchase the Roxbury
and Swall properties at issue until 2003 and 2004. Because Plaintiff has failed
to plead facts supporting the element of scienter, 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.)
Plaintiff’s
cause of action for promissory estoppel provides him a basis for recovery of
restitution. Accordingly, the demurrer is overruled as to the third cause of
action.
Motion to Strike
Defendants
move to strike the name of Melanie Yadegar, individually and as Successor
Trustee of the FKZ Trust, from the caption of the SAC. Because the SAC does not
assert any claims against Yadegar, the motion to strike is granted as to Yadegar’s
name in the caption.
Defendants
also move to strike the cause of action for restitution as asserted against
Farideh, in her capacity as Trustee of the FKZ Trust. Defendants argue that
this claim is unsupported against Farideh in her capacity as Trustee, given
that the first and second causes of action are asserted against Farideh only in
her individual capacity.
“A claim
based on a contract entered into by a trustee in the trustee's representative
capacity, on an obligation arising from ownership or control of trust property,
or on a tort committed in the course of administration of the trust may be
asserted against the trust by proceeding against the trustee in the trustee's
representative capacity, whether or not the trustee is personally liable on the
claim.” (Prob. Code, § 18004.)
“[T]he
proper procedure for one who wishes to ensure that trust property will be
available to satisfy a judgment, whether for damages for breach of contract or
for specific performance, should sue the trustee in his or her representative
capacity.”
(Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1349.) “A trustee is
personally liable for torts committed in the course of administration of the
trust only if the trustee is personally at fault.” (Prob. Code, § 18002.)
Here,
Plaintiff’s claim for restitution is based on Farideh’s alleged wrongful
transfers of property into the FKZ Trust. (SAC ¶ 39.) The liability arises from
“an obligation arising from ownership or control of trust property” and the
allegations also show that Farideh is personally at fault. Consequently,
Plaintiff may assert his claim against Farideh both in her individual capacity
and in her capacity as Trustee.