Judge: Cherol J. Nellon, Case: 22STCV20357, Date: 2023-10-13 Tentative Ruling

Case Number: 22STCV20357    Hearing Date: April 3, 2024    Dept: 14

Akbarnejad v. Safaie

Case Background

 

This is a legal malpractice case.

 

On January 24, 2024, Plaintiff filed their Third Amended Complaint (“TAC”) for (1) Professional Negligence, (2) Breach of Fiduciary Duty, and (3) Fraud against Defendants Majid Safaie (“Safaie”), Brian T. Stuart (“Stuart”), Arya Law Center PC (“Arya”), and DOES 1-40.

 

            No trial date has yet been set.

 

(1)        Demurrer

 

            Defendant Safaie, joined by Defendant Arya, now demurs to the TAC on the grounds that it fails to state facts sufficient to support any cause of action and is uncertain.

 

Decision

 

            The demurrer to the first and second causes of action is OVERRULED, as it is unsupported in the memorandum. California Rules of Court Rule 3.1113(a).

 

            The demurrer to the third cause of action is SUSTAINED, with 10 days leave to amend.

 

Third Cause of Action: Fraud

 

            The elements of a cause of action for fraud are: (1) a false representation, actual or implied, or concealment of a matter of fact material to the transaction which defendant had a duty to disclose or defendant’s promise made without the intention to perform; (2) defendant’s knowledge of the falsity; (3) defendant’s intent to deceive; (4) plaintiff’s justifiable reliance thereon; and (5) resulting damage to plaintiff. Mosier v. Southern Calif. Physicians Ins. Exchange (1998) 63 Cal.App.4th 1022, 1045.

 

Fraud must be specifically pled, and the particularity requirement necessitates the pleading of facts that “show how, when, where, to whom, and by what means the representations were tendered.” Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. The purpose of the rules of fraud pleading is to inform the defendant and the court of the specific grounds of the charge and enable them to evaluate it. See Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 231.

 

The TAC pleads fraud at paragraphs 27-36. Paragraph 27 lists a series of representations which were made by Defendant Safaie, orally and in the retainer agreement, when Plaintiff hired Defendants as counsel. Paragraphs 28 and 30 allege that these representations were false. Paragraphs 29-32 allege intent, reliance, and damages.

 

Defendants Safaie and Arya argue that Plaintiff has not explained what role Defendant Stuart played in these events. This is true – Defendant Stuart is identified in Paragraph 2 and then never mentioned again. However, Defendant Stuart is not included in the notice of demurrer and has not formally joined the demurrer. Defendants Safaie and Arya may not demur on his behalf.

 

There remains one problem with the pleading. Defendants Safaie and Arya point out that Plaintiff has not pled what authority Defendant Safaie had to speak for Defendant Arya. At no point does Plaintiff explain who Defendant Safaie is in relationship to any other defendant. The boilerplate agency allegations contained in Paragraph 7 of the TAC do not suffice for the purposes of fraud pleading. Plaintiff needs to fill in this remaining detail.

 

As a final note, Plaintiff should consider Code of Civil Procedure § 430.41(e), which provides that a complaint shall not be amended “more than three times” in response to a demurrer, absent an offer of proof. The amendment after this demurrer will be Plaintiff’s third. If there is a subsequent meritorious demurrer, the burden will be on Plaintiff to explain how they can amend to cure the issues.

 

Conclusion

 

            The demurrer to the first and second causes of action is OVERRULED, as it is unsupported in the memorandum. California Rules of Court Rule 3.1113(a).

 

            Plaintiff has properly pled a claim for fraud against Defendant Safaie, but has not pled a connection between Defendant Safaie and Defendant Arya which would render Defendant Arya responsible for Defendant Safaie’s actions. Therefore, the demurrer to the third cause of action is SUSTAINED, with 10 days leave to amend.

 

(2)        Motion to Strike

 

            Defendant now moves this court for an order striking the punitive damages and attorney’s fees allegations from the SAC.

 

Decision

 

The motion is GRANTED, with 10 days leave to amend.

 

            The motion is unopposed. This amounts to a concession by Plaintiff that the motion has merit. See California Rules of Court Rule 3.1113(a); see also Rule 3.1320(f); Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.