Judge Daniel M. Crowley, Case Number: 24STCV06736, Date: 2024-12-04 Tentative Ruling

Defendant Lida Mirzakhanian’s, individually and as trustee of the Lida Mirzakhanian Living Trust UTD 9/15/2021, demurrer to Plaintiff Alexander Margarian’s first amended complaint is sustained with 20 days leave to amend.

Defendant Lida Mirzakhanian, individually and as trustee of the Lida Mirzakhanian Living Trust UTD 9/15/2021 (“Mirzakhanian”) (collectively, “Defendant”) demurs to Plaintiff Alexander Margarian’s (“Margarian”) (“Plaintiff”) first amended complaint (“FAC”) on the grounds the FAC fails to state facts sufficient to allege causes of action; is uncertain; and fails to identify the terms of the contract and whether it is oral, written, or implied by conduct. (Notice of Demurrer; C.C.P. §430.10(e).)[1]

Before filing a demurrer, the moving party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer. (C.C.P. §430.41, emphasis added.)

Defendant’s counsel’s declaration states that on September 9, 2024, he “conferred by electronic mail with Plaintiff’s Counsel to determine whether a resolution can be reached that would resolve the issues to be raised in Defendants’ demurrer. On September 13, 2024, Plaintiff’s Counsel responded via electronic mail providing responses in opposition to the issues to be raised in Defendants’ demurrer and made it exceedingly clear that a resolution could be reached without the filing of Defendants’ demurrer.” (Decl. of Jawlakian.)

Defendant’s counsel’s declaration is in violation of numerous statutes, the first being C.C.P. §2015.5, that his declaration is not certified under penalty of perjury that his attestation is true and correct. Second, Defendant’s counsel’s meet and confer declaration is in violation of C.C.P. §430.41 because he does not state he attempted to meet and confer in person, by telephone, or by video conference. However, failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (C.C.P. §430.41(a)(4); Dumas v. Los Angeles County Board of Supervisors (2020) 45 Cal.App.5th 348, 355; Olson v. Hornbrook Community Services District (2019) 33 Cal.App.5th 502, 515.) Accordingly, the Court will consider Defendant’ demurrer.

The Court notes that it has the discretion to continue the hearing, or take the motion off calendar, and order a conference pursuant to C.C.P. §430.41(c) before ruling on a demurrer where (1) the demurring party failed to file a declaration reporting on the meet and confer, or (2) the other party refused to meet or failed to meet in good faith. A party’s violation of C.C.P. §430.41 might draw C.C.P. §128.5 sanctions. Continued violations of the meet and confer requirement may result in future consequences to Defendant.

Plaintiff filed his initial complaint on March 18, 2024, against Defendant alleging two causes of action: (1) specific performance; and (2) damages.

On July 24, 2024, this Court sustained Defendant’s demurrer to the Complaint with 20 days leave to amend. (See 7/24/24 Minute Order.)

On August 19, 2024, Plaintiff file the operative FAC for the same two causes of action. Plaintiff’s causes of action arise from his July 19, 2024, offer to purchase 1907 Alpha Rd., Glendale California 91208 (“Subject Property”) owned by Defendant for $2,400,000 pursuant to the terms and conditions of the California Residential Purchase Agreement and Joint Escrow Instructions (“Plaintiff’s Offer”). (See FAC ¶5, Exh. 2.)

Defendant filed the instant demurrer on September 19, 2024. Plaintiff filed his opposition on November 15, 2024. As of the date of this hearing no reply has been filed.

Defendant demurs to the FAC, and the 1st and 2nd causes of action on the basis they fail to state facts sufficient to constitute causes of action and are uncertain. (Demurrer.)

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

A cause of action for breach of contract for specific performance requires the following elements: (1) Contract breach; (2) inadequacy of a legal remedy; (3) underlying contract reasonable and supported by adequate consideration; (4) existence of a mutuality of remedies; (5) contractual terms sufficiently definite to know what it is to enforce; and (6) substantial similarity between requested performance and promised performance. (Real Estate Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 472; see also Patel v. Liebermensch (2008) 45 Cal.4th 344, 349 [stating if contract terms are certain enough, judges carry into effect ascertainable, reasonable intentions of the parties]; Mansouri v. Superior Court (2010) 181 Cal.App.4th 633, 642 [“elements of a cause of action for specific performance of a contract include not only the contract . . . , but defendant’s breach of the contract.”].) (But see Union Oil Co. of California v. Greka Energy Corp. (2008) 165 Cal.App.4th 129, 134 [“‘Specific performance . . . decreed whenever: (1) . . . terms are sufficiently definite; (2) consideration is adequate; (3) there is substantial similarity of the requested performance to the contractual terms; (4) there is mutuality of remedies; and (5) plaintiff’s legal remedy is inadequate.’”].)

Plaintiff alleges that on or about January 19, 2024, he offered to purchase the Subject Property for $2,400,000 pursuant to the terms and conditions of Plaintiff’s Offer. (FAC ¶5.)

Plaintiff alleges ¶32A of Plaintiff’s Offer provided that “This offer shall be deemed revoked . . . unless by the date and time in paragraph 3C [3 calendar days after Buyer’s signature] the offer is signed by Seller and a Copy of the Signed offer is delivered to Buyer or Buyer’s Authorized Agent.” (FAC ¶6.) Plaintiff alleges Defendant, the Seller, signed Plaintiff’s Offer more than 3 days later, on February 2, 2024. (FAC ¶6.) Plaintiff alleges because paragraph 3C constituted a condition for Plaintiff’s benefit Plaintiff was entitled to, and did, waive that condition, thereby accepting Defendants’ tardy acceptance. (FAC ¶6.)

Plaintiff alleges he waived the three-day condition by urging Defendant to sign Plaintiff’s Offer more than 3 days after it was presented to Defendant. (FAC ¶7.) Plaintiff alleges that on January 30, 2024, he emailed Defendant, “Steve are you going to send me the RPA [the Residential Purchase Agreement]?” (FAC ¶7.) Plaintiff alleges Defendant responded on February 3, 2024, “You will have the seller signed purchase agreement sent to you by Monday.” (FAC ¶7.) Plaintiff alleges Plaintiff received the purchase agreement executed by Defendant on February 5, 2024. (FAC ¶7, Exh. 2.) Plaintiff alleges rather than reject it or notify Defendant that it was too late and would not be accepted, Plaintiff confirmed Defendants’ acceptance and on February 6, 2024, emailed Defendants, “According to the document you have provided, Lida has ACCEPTED our offer as it was submitted WITHOUT any counteroffer.” (FAC ¶7.)

Plaintiff alleges after he initially accepted Plaintiff’s Offer on February 2, 2024, and after he tolerated Defendants’ attempt to modify it, Defendants breached the Agreement by wrongfully denying its existence and their obligations imposed by the Agreement and refused to consummate the sale for reasons which subsequently became known to Plaintiff. (FAC ¶10.) Plaintiff alleges on information and belief that Defendant had been secretly attempting to obtain a $1,900,000 loan to encumber the very Subject Property Defendant had offered to sell to Plaintiff. (FAC ¶10.) Plaintiff alleges that on February 2, 2024, the Defendant Trustee executed (a) a deed transferring the Subject Property from the Trust (which the Trust was obligated to sell to Plaintiff) to the individual Defendant, (b) a promissory note for $1,900,000, and (c) a Deed of Trust securing the promissory note and which encumbered the Subject Property. (FAC ¶10.) Plaintiff alleges that because Defendant was uncertain that the loan would be made, Defendant continued negotiating with Plaintiff and on February 7, 2024, again made the same counteroffer previously made on January 22, 2024 (but which they had disregarded on February 2, 2024) which Plaintiff then accepted on February 10, 2024. (FAC ¶10, Exh. 2.) Plaintiff alleges that because the loan was consummated on February 8, 2024, and individual Defendant received the loan proceeds, Defendant decided to abort the sale and conceal their decision from Plaintiff for reasons best known to them. (FAC ¶10.) Plaintiff alleges on information and belief that Defendant is now attempting surreptitiously to sell the Subject Property to others, breaching the Agreement and exposing as false their commitment in section 6 of the Deed of Trust, namely that “Borrower must occupy . . . the Property as Borrower’s principal residence within 60 days for at least one year . . ..” (FAC ¶10.)

Plaintiff alleges Defendant has breached the Agreement by denying its existence and refusing to abide by any of its terms and conditions including their obligation to open escrow. (FAC ¶12.) Plaintiff alleges the terms and conditions of the Agreement including the consideration was equitable fair, just, and reasonable. (FAC ¶13.) Plaintiff alleges he has duly performed all the terms and conditions required of him and was and is ready, willing and able to perform the Agreement. (FAC ¶14.) Plaintiff alleges that Paragraph 22 of the Agreement provides that the prevailing party is entitled to attorney fees and costs of litigation, which are hereby requested. (FAC ¶15.) Plaintiff alleges that although the Agreement provides for mediation, Plaintiff is excused from mediating before filing this action because Defendant is currently attempting to sell the Subject Property and if successful, mediation would inhibit Plaintiff’s right to specific performance. (FAC ¶15.)

Plaintiff fails to sufficiently assert a cause of action for breach of contract for specific performance. Plaintiff alleges an agreement was breached (¶12), but fails to allege the inadequacy of a legal remedy by simultaneously requesting a cause of action for damages for breach of contract, without such damages being alleged in the alternative. (See Brandolino v. Lindsay (1969) 269 Cal.App.2d 319, 324 [“A complaint may allege inconsistent theories of a cause of action in the alternative (2 Witkin, Cal.Procedure, Pleading, s 181, p. 1160), including theories seeking specific performance of an agreement, or in the alternative, damages for the breach thereof [Citations.] and, the court may award damages if plaintiffs are not entitled to specific performance. [Citations].”], internal citations omitted, emphasis added.) Further, Plaintiff fails to allege that the underlying contract is both reasonable and supported by adequate consideration; the existence of a mutuality of remedies; and whether the contractual terms are sufficiently definite to enable the court to know what it is to enforce.

Accordingly, Defendant’s demurrer to Plaintiff’s FAC is sustained with 20 days leave to amend.

Defendant’s demurrer to Plaintiff’s FAC is sustained with 20 days leave to amend.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes Defendant’s demurrer does not contain page numbers in violation of CRC, Rule 2.109. “Each page must be numbered consecutively at the bottom unless a rule provides otherwise for a particular type of document. The page numbering must begin with the first page and use only Arabic numerals (e.g., 1, 2, 3). The page number may be suppressed and need not appear on the first page.” (CRC, Rule 2.109.) Defendant is admonished for her failure to number pages, which creates unnecessary delay for all who review Defendant’s demurrer, including the Court.