Judge: Frank M. Tavelman, Case: 23BBCV01852, Date: 2024-07-12 Tentative Ruling

Case Number: 23BBCV01852    Hearing Date: July 12, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER & MOTION TO COMPEL DISCOVERY RESPONSES

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Victoria Abdo (Abdo) brings this action against Mark Towhidlow (Towhidlow). Abdo seeks specific performance of an agreement between herself and Towhidlow for the transfer of the real property commonly known as 1751 Camino De Villas, Burbank, CA 91501. (Compl. ¶ 7.) Abdo alleges that Towhidlow refused to honor the terms of a June 9, 2023 agreement for the property in exchange for $1,150,000, despite Abdo’s posting escrow.  (Compl. ¶¶ 8-9.) Abdo further alleges that Towhidlow thereafter sent cancellation of escrow instructions. (Compl. ¶ 10.)

On September 13, 2023, Towhidlow filed a Cross-Complaint against Abdo, Dona T. Abdo, Ramona Nazarimasihi, and High Vision Realty. The Cross-Complaint states a cause of action for (1) Breach of Fiduciary Duty (as against High Vision Reality and Ramona Nazarimasihi) and (2) Fraud (as against all Cross-Defendants).

Before the Court is a demurrer brought by Abdo as to the second cause of action for Fraud. Abdo demurs to this cause of action on grounds that it fails to state sufficient facts, is uncertain, and is generally a sham. Towhidlow has rendered no opposition to this demurrer.

ANALYSIS:

I.                    LEGAL STANDARDS

Demurrer

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at 318.)

Pursuant to Code of Civil Procedure (“C.C.P.”) §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

Motion to Compel Initial Discovery Responses

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling response and for a monetary sanction.  (C.C.P. § 2030.290(b).)  The statute contains no time limit for a motion to compel where no responses have been served.  All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served.  (See Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 905-906.) 

Where there has been no timely response to a demand to produce documents, the demanding party may seek an order compelling a response.  (C.C.P. § 2031.300(b).)  Failure to timely respond waives all objections, including privilege and work product.  (C.C.P. § 2031.300 (a).)  Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses.  Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion. 

If a party fails to respond to requests for admission in a timely manner, the requesting party may move for an order that the matters be deemed admitted. (C.C.P. § 2033.280(b).) The requesting party’s motion must be granted by the court unless the party to whom the requests for admission have been directed has served a proposed response to the requests for admission that is in substantial compliance with C.C.P. § 2033.220 prior to the hearing.  (C.C.P. § 2033.280(c).)  By failing to timely respond, the party to whom the requests are directed waives any objection to the requests, including one based on privilege or work product.  (C.C.P. § 2033.280(a).)

Failure to Oppose

The Court notes that no opposition has been filed.  Failure to file an opposition to the motion indicates the other parties' acquiescence that the motion is meritorious. CRC Rule 8.54(c)

II.                 MERITS

Demurrer

As a preliminary matter, the Court addresses the meet and confer efforts of the parties. C.C.P. §§ 430.41(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. Upon review the Court finds the meet and confer requirements were met. (Windust Decl. ¶¶ 3-5.)

Concerning the demurrer to the second cause of action for Fraud, the Court finds the facts alleged are insufficiently particular. The Cross-Complaint in this matter is short and contains a singular reference to Abdo. The entirety of the factual allegations for the Fraud Cause of Action is as follows:

Cross-Complainant alleges that Cross-Defendant, High Vision Realty and Ramona Nazarimasihi breached their fiduciary duties, conspired with Cross Defendants, Victoria Abdo and Dona T. Abdo, to manipulate, misrepresent, and undervalued the market value of the property in question, with the intent to facilitate the sale of said property to Cross-Defendants Victoria Abdo and Dona T. Abdo at a price significantly below its actual market value. (Cross-Compl. ¶ 12)

The Court finds these allegations are factually deficient.

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made. (Id.)

Here, Towhidlow’s allegations of fraud against Abdo lack the requisite specificity to sustain a fraud cause of action. Towhidlow presents no factual allegation as to when, where, or by whom any misrepresentations were made to him. Towhidlow instead groups all Cross-Defendants together in a singular conclusory allegation, with no allegation as to any individual action by Abdo. As such, Towhidlow’s Cross-Complaint is subject to demurrer for lack of specificity.

Despite the lack of factual allegations against Abdow, the Court finds that there exists a reasonable probability that Towhidlow could remedy this deficiency upon amendment. The Court is aware of Abdo’s contention that the Cross-Complaint is a farce intended to delay this action, though to find as such would require evidentiary determinations not appropriate on demurrer. The Court finds that Towhidlow should be allowed this opportunity to amend but cautions that successful amendment necessitates he plead specific facts as to each Cross-Defendant’s alleged actions in perpetrating the fraud. Further conclusory allegations regarding a conglomerate of Cross-Defendants will not suffice.

Accordingly, the demurrer to the second cause of action for Fraud is SUSTAINED with 20 days’ leave to amend.

Motion to Compel Discovery

Abdo further moves to compel Towhidlow’s initial responses to her (1) Special Interrogatories, (2) Form Interrogatories, (3) Request for Production of Documents (RFPD). Abdo also seeks to have matters in her Request for Admissions (RFA) admitted.

On April 19, 2024, Abdo served all initial discovery demands on Towhidlow. (Windust Decl. ¶ 6, Exh. A.) Abdo states she received no discovery responses as of the May 20, 2024 deadline. (Windust Decl. ¶¶ 6-7.) Abdo states that on May 21, 2024, her counsel sent a meet and confer letter to Towhidlow’s counsel but received no response. (Windust Decl. ¶ 7, Exh. B.) As of the filing of this motion, Abdo is still without discovery responses. (Windust Decl. ¶ 8.)

The Court notes that failure to file an opposition to the motion indicates the other parties' acquiescence that the motion is meritorious. CRC Rule 8.54(c)

Based on the foregoing, Abdo’s unopposed motion to compel initial responses to her Form Interrogatories, Special Interrogatories, and RFPD are GRANTED.

Abdo’s unopposed motion to deem RFA matters admitted is also GRANTED.

Sanctions

The Court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. (C.C.P. § 2023.030(a).)

The Court shall impose monetary sanctions for failure to timely respond to requests for admission unless the party acted with substantial justification, or the circumstances render imposition of sanctions unjust. (C.C.P. § 2033.280(c).) The Court must impose a monetary sanction on the party or attorney whose failure to serve timely Requests for Admission responses necessitated the motion. (Id.)

Further, it is customary to grant sanctions where a party has filed a motion to compel, and the other party fails to file an opposition. (C.R.C., Rule 3.1348(a).) 

Here, Abdo has filed a motion to compel initial discovery responses and Towhidlow has filed no opposition. Additionally, Abdo has shown no responses were rendered to her RFA such that Towhidlow can avoid the mandatory sanctions imposed by C.C.P.§ 2033.280. As such, the Court grants sanctions in the amount of $1,000. This amount reflects two hours of attorney work at a rate of $470 per hour and the $60 filing fee. (Windust Decl. ¶ 10.) The Court finds this amount reasonable given its experience with discovery motions of this type and the fact that the motion was unopposed.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Victoria Abdo’s Demurrer and Motion to Compel Initial Discovery Responses came on regularly for hearing on July 12, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE DEMURRER IS SUTAINED WITH 20 DAYS’ LEAVE TO AMEND.

THE MOTION TO COMPEL RESPONSES TO PLAINTIFF’S FORM INTERROGATORIES, SPECIAL INTERROGATORIES, AND RFPD IS GRANTED.

THE MOTION TO DEEM RFA MATTERS ADMITTED IS GRANTED.

PRODUCTION TO OCCUR WITHIN 30 DAYS.

SANCTIONS ARE AWARDED IN THE AMOUNT OF $1,000 AS AGAINST TOWHIDLOW AND HIS COUNSEL, JOINTLY AND SEVERALLY.

SANCTIONS TO BE PAID WITHIN 30 DAYS.

CASE MANAGEMENT CONFERENCE AND OSC RE PROOF OF SERVICE AS TO CROSS-COMPLAINT ARE ADVANCED AND CONTINUED TO NOVEMBER 5, 2024 AT 9:00 AM.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT HML TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  July 12, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles