Judge: David Sotelo, Case: 22STCV21941, Date: 2022-12-08 Tentative Ruling
Case Number: 22STCV21941 Hearing Date: December 8, 2022 Dept: 40
MOVING PARTY: Defendant Marjan
Ravanbakhsh and Premier CPA Consultants, Inc.
Plaintiff Farzan Alamirad (“Mr. Alamirad”) and Farzan
Alamirad, D.D.S., Inc. (“Alamirad Dentistry”; collectively, the “Alamirad Plaintiffs”)
sue Defendants Marjan Ravanbakhsh (an accountant), Premier CPA Consultants,
Inc. (Ravanbakhsh’s related accounting firm), and Does 1 to 20 pursuant to
claims of (1) Breach of Contract, (2) Breach of the Duty of Good Faith and Fair
Dealing, (3) Professional Negligence (Accountant), and (4) Unfair Business
Practices on the alleged grounds that, after the Alamirad Plaintiffs hired the
Defendants in 2020 to perform accounting services for Alamirad Dentistry, the
Defendants used their position of confidence and access to the Plaintiffs’
financial information to file fraudulent PPP and EIDL loans and erroneous tax
returns on behalf of the Plaintiffs, and otherwise failed to make quarterly
payments to the IRS, EDD, and FTB and released the confidential financial
information relating to Mr. Alamirad to his estranged wife, from whom Mr.
Alamirad was getting divorcedand with whom Defendant Ravanbakhsh was and
remains close friends.
Defendants Ravanbakhsh and Premier CPA now make an unopposed
Demurrer to the Complaint in this action on the grounds that a prior lawsuit
between the parties—LASC Action No. 21STCV11318 (the “Underlying Action”)—functions
as res judicata on the claims brought by the Alamirad Plaintiffs in this
lawsuit.
The Court TAKES Judicial Notice of (A) Defendant Ravanbakhsh’s
March 24, 2021 Verified Complaint in the Underlying Action, (B) Mr. Alamirad’s August
10, 2021 Answer to the Verified Complaint in the Underlying Action, (C)
Defendant Ravanbakhsh’s March 15, 2022 Request for Dismissal with Prejudice of
the Underlying Action, and (D) Mr. Alamirad and Alamirad Dentistry’s July 7,
2022 Complaint in this action. (Demurrer,
RJN; Demurrer, Exs. A-D; Evid. Code, § 452, subd. (d).)
Meet and Confer: SATISFIED.
Complaint, Res Judicata, Claim Preclusion: SUSTAINED,
Without Leave to Amend.
Defendants Ravanbakhsh and Premier CPA argue that this
lawsuit is barred by litigation in LASC Action No. 21STCV11318, an action brought
by Defendant Ravanbakhsh against Mr. Alamirad, which was Dismissed with
Prejudice by the Clerk at Ravanbakhsh’s request on March 15, 2022, and which
alleged (1) Negligence, (2) IIED, (3) NIED, (4) Defamation Per Se, (5) Defamation
Per Quod, and (6) Trade Libel against Mr. Alamirad based on allegations that
Mr. Alamirad had defamed Defendant Ravanbakhsh by communicating to Ravanbakhsh,
her clients, the Persian community, colleagues, mutual friends and business
associates, and others that Ravanbakhsh is a liar, unethical, violates the
ethical code of accounting, holds data and documents hostage to extort money, and
operates illegally, unprofessionally, including allegations relating to improper
PPP loans and failure to make quarterly payments to the IRS, EDD, and FTB. (Demurrer,
8:18-11:14; see Demurrer, Ex. A, Verified Complaint, ¶¶ 13 [IRS, EDD, and FTB
payments], 14 [PPP loans].)
The doctrine of res judicata has two aspects: claim
preclusion and issue preclusion. (DKN Holdings LLC v. Faerber (2015) 61
Cal.4th 813, 824; Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th
788, 797.) Claim preclusion arises if a second suit involves (1) the same cause
of action (2) between the same parties [or those in privity with them] (3)
after a final judgment on the merits in the first suit. [Citations.] If claim
preclusion is established, it operates to bar relitigation of the claim
altogether.” (DKN Holdings, supra, 61 Cal.4th at p. 824.) “Upon
satisfaction of these conditions, claim preclusion bars ‘not only issues that
were actually litigated but also issues that could have been litigated.’” (Planning
and Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th
210, 226, quoting Federation of Hillside & Canyon Associations v. City
of Los Angeles (2004) 126 Cal.App.4th 1180, 1202; Villacres v. ABM
Industries Inc. (2010) 189 Cal.App.4th 562, 576.)
A general demurrer lies where claim preclusion applies. (See
Boeken v. Philip Morris USA, Inc., 48 Cal.4th at p. 792 [plaintiff’s
wrongful death action barred by her prior voluntary dismissal of loss of
consortium action against same defendant]; Shine v. Williams-Sonoma, Inc.
(2018) 23 Cal.App.5th 1070, 1076-77 [court properly took judicial notice of
“pleading, settlement agreement, and stipulated judgment of dismissal” in
earlier class action to sustain demurrer on res judicata grounds in new class
action].)
Here, there was clearly a prior action between the parties and
those in privity with them, with Alamarid Dentistry in privity with Mr.
Alamarid and Defendant Premier CPA in privity with Defendant Ravanbakhsh. (See
Demurrer, Exs. A-B [Verified Complaint and Answer by Defendant Ravanbakhsh and
Mr. Alamarid respectively in LASC Action No. 21STCV11318].)
Further, Ravanbakhsh’s Dismissal with Prejudice of the
Underlying Action is a judgment on the merits for claim preclusion purposes. (See
Kim v. Reins Int’l Cal., Inc. (2020) 9 Cal.5th 73, 91 [“A dismissal with
prejudice is considered a judgment on the merits preventing subsequent
litigation between the parties on the dismissed claim”].)
The primary question before the Court is whether the two
actions involved the same causes of action or claims that could have been but
were not brought in the Underlying Action.
The demurring Defendants argue that the Alamarid Plaintiffs’
claims in this lawsuit involve defenses that were and claims that could have
been brought in the Underlying Action because (1) the Sixth Affirmative Defense
raised by Mr. Alamarid in the Underlying Action raised “Offset” of damages
against the Defamation and Libel claims brought by Defendant Ravanbakhsh therein
on the grounds that Defendant Ravanbakhsh’s “damages, if any, must be offset by
any damages or other injury sustained by Answering Defendant” and where (2) Mr.
Alamarid failed to file a compulsory Cross-Complaint in the Underlying Action. (Demurrer,
9:20-22, 10:15-17, 11:5-11.)
The Court agrees. The Underlying Action is based on Mr.
Alamarid badmouthing Defendant Ravanbakhsh based on allegations similar to
those in this lawsuit. (Compare Demurrer, Ex. A, ¶¶ 13 [IRS, EDD, and FTB
payments], 14 [PPP loans], with Complaint, ¶ 13 [IRS, EDD, and FTB payments,
PPP loans, inter alia].) Based on such conduct, Defendant Ravanbakhsh sued Mr.
Alamarid for (1) Negligence, (2) IIED, (3) NIED, (4) Defamation Per Se, (5)
Defamation Per Quod, and (6) Trade Libel. (See Demurrer, Ex. A.) Mr. Alamarid
filed an Answer to the Underlying Action on August 10, 2021, including the
Offset Affirmative Defense. (See Demurrer, Ex. B.)
In October 2021, the Alamarid Plaintiffs learned about Ravanbakhsh’s
alleged filing of fraudulent loan applications and tax returns and the
non-filing of EDD, IRS, and FTB payments. (22STCV21941 Complaint, ¶ 13
[“None of these issues were known to Alamirad until he started receiving bills
from the IRS, EDD and FTB in or about October 2021—the fourth quarter of the
year”].) Such claims could have been brought in the Underlying Action or relate
to the same causes of action in the Underlying Action because they arise from
the same transaction or occurrences, i.e., Defendants Ravanbakhsh and Premier
CPA’s quality of work in relation to services provided to Mr. Alamarid and
Alamarid Dentistry.
Despite this knowledge, Mr. Alamarid did not file an Amended
Answer elaborating on the Offset Affirmative Defense, nor did he file a
compulsory Cross-Complaint against Defendant Ravanbakhsh stating the
allegations and causes of action raised in this lawsuit. (Code Civ. Proc., §
428.10, subd. (b) [defendant may bring cross-complaint to allege “[a]ny cause
of action […] (1) aris[ing] out of the same transaction, occurrence, or series
of transactions or occurrences as the cause brought against him or (2) assert[ing]
a claim, right, or interest in the property or controversy which is the subject
of the cause brought against him”]; see Code Civ.
Proc., § 426.30, subd. (a) [A defendant must file a cross-complaint against the
plaintiff asserting any related causes of action existing when the defendant
serves its answer to avoid waiver of those claims].)
Further, because the Underlying Action was not Dismissed
with Prejudice by Defendant Ravanbakhsh until March 15, 2022, there is no prima
facie reason why Mr. Alamirad did not between October 2021 and March 15, 2022
raise the claims pleaded in this lawsuit against Defendants Ravanbakhsh and
Premier CPA in a Cross-Complaint in the Underlying Action or, at the least,
amend his Answer therein to reflect the harms suffered by Mr. Alamarid.
For all the reasons discussed ante, the Court finds that
claim preclusion applies to the claims advanced by the Alamarid Plaintiffs in
this lawsuit and SUSTAINS Defendant Ravanbakhsh and Premier CPA’s Demurrer
WITHOUT LEAVE TO AMEND.
Defendant Marjan Ravanbakhsh and Premier CPA Consultants,
Inc.’s Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the entire Complaint
in this action because the claims advanced herein involve claims or defenses
that could have been but were not brought in a prior action between the parties
and those in privity with them, where the Underlying Action has long resulted
in a final judgment.