Judge Gail Killefer, Case 19STCV36658 2022-09-27 Tentative Ruling

RESPONDING PARTIES: Plaintiffs, Everloving Home Health, Inc., Ehsan Doroudi and Shaida Moghaddam

TENTATIVE: Joseph Amirian’s demurrer is sustained. Plaintiffs are granted 30 days leave to amend. Joseph Amirian is to give notice.

This action arises in connection with the alleged “financial crimes and other wrongdoings” of Defendant Joseph W. Amirian (“Joseph Amirian”) against Plaintiffs through his physical therapy practice, Joseph Amirian Physical Therapy (“JA Therapy”) and JA Services, Inc. (“JA Services”). Shaida Moggadham (“Moggadham”), Ehsan Doroudi (“Doroudi”) and Everloving Home Healthcare Services, Inc. (“Everloving”)(collectively “Plaintiffs”) also allege that Defendant Silva Amirian aided and abetted in Joseph Amirian’s alleged wrongdoings against them. Plaintiffs Doroudi and Moggadam allege that they are co-founders and principals of Plaintiff Everloving.

Specifically, Plaintiffs allege that beginning on or about August 1, 2016, Plaintiffs and Defendants entered into a contract for Defendants to provide healthcare services to residents at Everloving. Notwithstanding this contract, Plaintiffs allege that Joseph Amirian and JA Therapy falsely represented that they were licensed to provide physical therapy and also allegedly converted revenue through fraudulent billing for their own benefit.

Plaintiffs’ Complaint, filed October 11, 2019, alleges six causes of action against all Defendants: (1) conversion; (2) fraud; (3) breach of fiduciary duty; (4) defamation; (5) breach of the covenant of good faith and fair dealing; and (6) intentional infliction of emotional distress.

On August 25, 2020, Joseph Amirian’s Motion to Quash Service of Summons was granted. Plaintiffs’ May 11, 2020 proof of service as to Joseph Amirian was ordered quashed.

On March 2, 2021, Plaintiffs filed another proof of service as to Joseph Amirian (the “Second POS”). On April 23, 2021, Joseph Amirian’s Motion to Quash the Second POS was denied.

On April 14, 2022, Plaintiffs filed their First Amended Complaint (“FAC”) alleging identical causes of action. On June 22, 2022, Joseph Amirian’s demurrer to the FAC was sustained entirely.

On July 25, 2022, Plaintiffs filed their operative Second Amended Complaint (“SAC”) alleging identical causes of action.

Joseph Amirian requests judicial notice of the following in support of his demurrer:

1. Tentative Ruling, December 6, 2021, regarding Defendant’s Demurrer to Complaint (Exhibit A).

2. Minute Order, March 15, 2022, in this matter regarding Hearing on Demurrer without Motion to Strike (Exhibit B).

3. Tentative Ruling, June 22, 2022, in this matter regarding Defendant’s Demurrer to the Complaint (Exhibit C).

4. Notice of Ruling, June 22, 2022, in this matter regarding Defendant Joseph Amirian’s Notice of Ruling regarding Demurrer to the First Amended Complaint (Exhibit D).

Joseph Amirian’s request is granted. The existence and legal significance of these documents are proper matters for judicial notice. (Evid. Code § 452(d), (h).).

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Joseph Amirian contends that all allegations which refer to Amirian’s criminal record are irrelevant to any causes of action, and “this criminal conviction is not permitted to be used to attack the credibility of Joseph Amirian pursuant to California Evidence Code § 788.” (Demurrer, 6-7.) Amirian further contends that the complete criminal record “which evidences the conviction was dismissed under Penal Code § 1203” was not provided. (Id.)

Plaintiffs point to this incomplete criminal record and contend “[i]t is of no moment that, according to demurring defendant, his felony conviction was apparently expunged, as he in fact admitted in extrajudicial proceedings to the commission of crimes against Plaintiff Everloving Home Health Services.” (Opp., 6.) However, Plaintiffs fail to point to any supporting authority as to why this incomplete criminal record should not be disregarded, and further fail to explain how Joseph Amirian has admitted to any commission of crimes in any extrajudicial proceedings.

As such, the court agrees with Joseph Amirian. All references to the incomplete criminal record of Joseph Amirian are disregarded and ordered stricken from the SAC.

To plead a cause of action for conversion, one must allege (1) the plaintiff’s ownership or right to possession of personal property; (2) defendant’s disposition of the property inconsistent with plaintiff’s rights; and (3) resulting damages. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Money may be the subject of conversion if the claim involves a specific, identifiable sum; it is not necessary that each coin or bill be earmarked.” (Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 209.)

Joseph Amirian again contends that Plaintiffs’ cause of action for conversion is insufficiently pled because the Complaint does not allege a definite sum or that Plaintiffs have an immediate right to possession, and further only pleads a contractual right to a sum in the alternative. (Demurrer, 3-4.)

Here, the SAC again alleges that Plaintiffs “had the right and expectation to receive revenue from the services provided by Defendants,” including Joseph Amirian. (SAC, ¶ 15.) Again, Defendants, including Joseph Amirian, “took possession of ill-gotten gains” from Plaintiffs who were expecting to receive such revenue. (SAC, ¶ 17.) Additionally, Joseph Amirian falsely “represented their bona fides and licensure” in order to gain access to confidential patient lists and to render false billing entries for services “not performed or were illicit.” (SAC ¶¶ 19-20.)

In opposition, Plaintiffs curiously seek to establish a “fiduciary relationship” in relation to their conversion claim. (Opposition, 7-10.) Plaintiffs do not explain how any alleged fiduciary relationship can show sufficient facts to point to an identifiable sum. (Opp., 10-11.)

In reply, Joseph Amirian correctly contends that evidence cannot be considered at the demurrer stage. (Reply, 3-4.) Amirian further contends “Plaintiffs argue, without any existing legal authority, that a party’s fiduciary duty is akin to a lien which provides for a right to payment.” (Id.) The court agrees.

The court again finds the first cause of action insufficiently pled. Specifically, the court again agrees that Plaintiffs have not pled that they have an immediate right to possession of personal property. Plaintiffs’ allegation that they had an expectation to receive revenue is insufficient, as the SAC again does not plead that Plaintiffs expected to receive a sum certain of revenue. While money may be the subject of a conversion claim, Plaintiffs were required to plead a specific, identifiable sum to bring a claim for conversion of money.

For these reasons, Joseph Amirian’s demurrer is again sustained as to the first cause of action.

The elements of a fraud cause of action are: (1) misrepresentation (false representation, concealment, or omission); (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Davis v. Southern California Edison Co. (2015) 236 Cal.App.4th 619.)

Fraud must be pled in the complaint specifically. General and conclusory allegations are not sufficient. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 74; Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268.) Unlike most causes of action where the “the policy of liberal construction of the pleadings,” fraud requires particularity, that is, “pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Stansfield, supra, 220 Cal.App.3d at 73; Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Every element of a fraud cause of action must be alleged both factually and specifically. (Hall v. Department of Adoptions (1975) 47 Cal.App.3d 898, 904; Cooper v. Equity General Insurance (1990) 219 Cal.App.3d 1252, 1262.)

Joseph Amirian again contends that Plaintiffs’ second cause of action is insufficiently pled because it does not plead with fraud with the required specificity. (Demurrer, 4-5.) Additionally, Joseph Amirian again asserts that Plaintiffs cannot plead justifiable reliance given that Plaintiffs had a duty to verify that their sub-contractors were compliant with all rules and regulations. (Id.)

Here, the SAC alleges that on August 1, 2016, Plaintiffs entered into an agreement with Joseph Amirian “through his alter ego(s) and aliases” for Defendants to provide home healthcare services. (SAC, ¶ 25.) Defendants, including Amirian, all made “intentional, false misrepresentations” to all Plaintiffs. (SAC ¶ 26.) Specifically, the Complaint alleges that Defendants’ misrepresentations consisted of, for example, that “Defendants were not in fact who they said they were in the contract.” (SAC, ¶ 26A.) As a result of Defendants’ conduct, Plaintiffs were harmed. (SAC, ¶¶27-30.) The FAC also alleges in conclusory fashion that Defendants’ conduct “was purposeful, intentional, and calculated to consciously violate the rights of the Plaintiffs in disregard of their rights.” (SAC ¶28.)

In opposition, Plaintiffs again point to the conclusory made in the SAC, with no further explanation as to who made fraudulent misrepresentations, and to whom. (Opp., 12-13.)

The court again finds the second cause of action insufficiently pled. As discussed above, the SAC again alleges that all Defendants made various misrepresentations to all Plaintiffs. However, the Complaint fails to allege what representations Joseph Amirian, and not the other Defendants made, if any, to Plaintiffs. The Complaint also fails to allege how Joseph Amirian intended to induce reliance on his statements, or how Plaintiffs were harmed by Joseph Amirian’s statements.

For these reasons, Joseph Amirian’s demurrer is again sustained as to the second cause of action.

“The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.” (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.)

Joseph Amirian again asserts that the third cause of action is insufficiently pled because the SAC does not allege that Joseph Amirian intentionally undertook a fiduciary duty to Plaintiffs. (Demurrer, 5-6.)

The SAC’s allegations in support of the third cause of action are substantially identical to the allegations in support of the second cause of action. (see SAC, ¶¶ 32-40.)

As Joseph Amirian correctly contends, “Plaintiffs still fails [sic] to plead fact showing how Defendant became a fiduciary.” (Reply, 4.)

The court finds that the third cause of action is again insufficiently pled. Specifically, the court agrees that the SAC fails to plead how Joseph Amirian undertook any fiduciary duty to Plaintiffs. Thus, Joseph Amirian’s demurrer to this cause of action is sustained.

Joseph Amirian asserts that the remaining causes of action are identical to those in the FAC and insufficiently pled for the following reasons: (1) the SAC again does not allege any specific defamatory statements by Joseph Amirian; (2) Joseph Amirian is again not alleged to be a contracting party; and (3) the SAC again does not allege any specific outrageous conduct by Joseph Amirian to form the basis of a claim for intentional infliction of emotional distress. (Demurrer, 6-7.)

In opposition, Plaintiffs point to the allegations of the SAC, and only bolster their claims with the unsupported contention that the stricken incomplete criminal record shows an alleged “judicial admission.” (Opp., 15-20.)

In reply, Joseph Amirian further correctly contends Plaintiffs point to evidentiary issues presented in the Demurrer as an admission, and base their contentions on evidentiary issues which cannot be decided at this stage. (Reply, 3-4.)

The court has reviewed the SAC’s fourth through sixth causes of action. Based upon this review, the court again agrees with Joseph Amirian that the Complaint’s remaining causes of action are insufficiently pled.

Specifically, the court finds that the remaining causes of action are insufficiently pled because the SAC yet again alleges conduct by defendants in the aggregate and fails to differentiate what statements or conduct are attributed to Joseph Amirian instead of the other defendants. While the court’s March 15, 2022 and June 22, 2022 Minute Orders gave specific analysis as to the deficiencies of the original Complaint and the FAC, Plaintiffs’ SAC has not substantively addressed those deficiencies and has merely realleged the vast majority of allegations using identical language. Plaintiffs have again failed to utilize this opportunity to allege sufficient facts to support their causes of action.

For these reasons, Joseph Amirian’s demurrer is sustained as to the third through sixth causes of action.

Joseph Amirian’s demurrer is sustained, without leave to amend. Joseph Amirian is to give notice.

[1] Joseph Amirian again submits the declaration of his counsel, Jacob I. Mojarro (“Mojarro”) to demonstrate compliance with statutory meet and confer requirements. Mojarro attests that on July 23, 2022, he sent a meet and confer letter to Plaintiff’s counsel discussing the alleged continued deficiencies in the SAC and expressing Defendant’s intent to demur. (Mojarro Decl. ¶¶ 9-11, Exh. 4.) However, the parties were unable to meet and confer, per the Mojarro declaration. (Id.) The Mojarro Declaration is insufficient for purposes of CCP § 430.41, as the declaration fails to show that the parties met and conferred. However, as failure to meet and confer is not grounds to overrule a demurrer, the court addresses the parties’ substantive arguments.