Judge Gail Killefer, Case 19STCV36658 2023-01-18 Tentative Ruling

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

OPPOSITION: January 11, 2023—Untimely Filed. Opposition was due January 4, 2023. (C.C.P., § 1005)

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

This action arises in connection with Defendant Joseph W. Amirian’s (“Joseph Amirian”) alleged “financial crimes and other wrongdoings” against Plaintiffs through his physical therapy practice, Joseph Amirian Physical Therapy (“JA Therapy”) and JA Services, Inc. (“JA Services”). Plaintiffs Shaida Moggadham (“Moggadham”), Ehsan Doroudi (“Doroudi”) and Everloving Home Healthcare Services, Inc. (“Everloving”) 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 Second Amended Complaint (“SAC”) alleging identical causes of action. On September 27, 2022, Defendant Amirian’s demurrer to the SAC was sustained entirely. (“September 27 Order.”)

On November 7, 2022, Plaintiffs filed their operative Third Amended Complaint (“TAC”) alleging identical causes of action.

Plaintiffs’ opposition is untimely, as a timely opposition was due January 4, 2022. (CCP §§ 1005(b), 1013(c).) The court does not consider this opposition in making its ruling. (Cal. Rules of Court, Rule 3.1300(d).)

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.)

In ruling on Defendant Amirian’s previous demurrer, which requested references to Amirian’s incomplete criminal record be stricken, this court ruled:

“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 § 1203.4,” 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.” (September 27 Order, 3.)

Defendant Amirian again correctly points out “Plaintiffs fail to provide the complete criminal record which evidences the conviction was dismissed under Penal Code §1203.4.” (Demurrer, 8.)

“3. Defendant Joseph W. Amirian (“Amirian”) committed financial crimes and other wrongdoing against the Plaintiffs constituting violations of criminal law for which this Defendant earned himself a felony conviction. Refer to People of the State of California v. Joseph Amirian, Criminal Case Number LA 087334; convicted June 20 2018, for violation of California Penal Code, PC§530.5(A), a Felony. True copies of the Criminal Record and Docket are attached as Exhibits1 & 2, respectively, consisting of the Van Nuys Criminal filings and the Docket of the case are attached hereto.

4. Defendant Amirian perpetrated unlawful, nefarious, illicit schemes and sometimes practiced as a Registered Physical Therapist, whether he possessed a license as such or not, and practiced in violation of the terms of his license suspension and revocation. Defendant Amirian also perpetrated forgery, impersonated and misappropriated the identities and existence of others without their knowledge and consent. These facts, and others formed the bases for multiple Accusations and revocation of Amirian’s license to practice or be associated in the practice in the medical field of Physical Therapy. Attach as Exhibit 3 are the charging allegations and findings of the Physical Therapy Board, State of California. These facts were not known nor were these facts disclosed to the Plaintiffs, who only learned about such conviction(s) after Defendant Amirian had committed crimes against the Plaintiffs in this lawsuit.” (TAC ¶¶3-4.)

Nowhere in these relevant paragraphs is there a mention of the complete criminal record of Defendant Amirian. Plaintiffs further have failed to make a showing that incorporating Amirian’s incomplete criminal record is not prejudicial. The court finds references to Amirian’s criminal record to be insufficiently pled for the same rationale as the September 27 Order and all references to this incomplete criminal record are disregarded and stricken.

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 TAC “still fail to identify a sum certain for conversion,” “only states Plaintiff’s anticipation of revenue,” and further only pleads a contractual right to a sum in the alternative. (Demurrer, 3-4.)

Here, the TAC yet again alleges that Plaintiffs “had the right and expectation to receive revenue from the services provided by Defendants,” including Joseph Amirian. (TAC, ¶ 15.) Again, Plaintiffs allege Defendants, including Joseph Amirian, “took possession of ill-gotten gains” from Plaintiffs who were expecting to receive such revenue. (TAC, ¶ 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.” (TAC ¶¶ 19-20.)

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, and have yet again failed to identify a specific sum certain as necessary to establish a crucial element for a conversion claim. Yet again, the court finds Plaintiffs’ allegation that they had an expectation to receive revenue is insufficient. As previously established in the September 29 Order, “[w]hile 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.” (September 27 Order, 4.) Plaintiffs have failed to do so a fourth time.

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 contends once more that Plaintiffs’ second cause of action is insufficiently pled because it does not plead with fraud with the required specificity. (Demurrer, 5-6.) 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.)

“The reliance alleged by the Plaintiff’s is inconsistent with the agreement in exhibit 3 attached to the [TAC] which states Joseph Amirian Physical Therapy (“JAPT”) is a ‘contractor’ and Plaintiffs have the ‘responsibility’ to ‘supervise and evaluate’ the services provided. Moreover, as home health care providers, Plaintiffs had duty to evaluate the services as a ‘supervisor’ and cannot exempt themselves from this duty by alleging Defendant failed to provide information on licensing. Additionally, all medical payments for JAPT services were required to be directly received by Plaintiffs, who had an obligation to verify their sub-contractors were compliant and services were properly rendered.” (Id.)

Here, the TAC yet again 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. (TAC, ¶ 25.) Defendants, including Amirian, all made “intentional, false misrepresentations” to all Plaintiffs “with the specific intent that the Plaintiffs would rely on such representations because Defendant Joseph Amirian, for himself and for the supposed business entities that he was operating under, knew that the Plaintiffs would have to rely on his representations, and knew that he would not be permitted to provide services to clientele and patients of the Plaintiffs unless the Plaintiffs relied upon such representations.” (TAC ¶ 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.” (TAC, ¶ 26A.) As a result of Defendants’ conduct, Plaintiffs were harmed. (TAC, ¶¶27-30.) The TAC again 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.” (TAC ¶28.) As this court has previously noted, alleging conclusory claims regarding a specific intent, or a purposeful or intentional act does not require this court to accept those pleadings as true at this demurrer stage. (Berkley, supra, 152 Cal.App.4th at 525.)

The court again finds the second cause of action insufficiently pled. As discussed above, the TAC alleges that Defendants made various misrepresentations to all Plaintiffs, and refers to the specific intent and purposeful conduct of “Defendants” in the pleadings. (TAC ¶¶24-30.) However, the TAC once more fails to allege what representations Joseph Amirian, and not the other Defendants made, if any, to Plaintiffs, with what intent, and how the reliance on those representations was reasonable as explained above. The TAC 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 TAC does not allege that Joseph Amirian intentionally undertook a fiduciary duty to Plaintiffs. (Demurrer, 7.)

“The agreement attached to the 3AC states that Defendant is a ‘contractor’ and Plaintiff has the ‘responsibility’ to ‘supervise and evaluate’ the services provided.

This contract between Plaintiffs and JAPT did NOT express that the parties were entering into a confidential or fiduciary relationship. Furthermore, are argued above, it was not reasonable for Plaintiffs to rely on representations made by Defendants, when Plaintiffs had a duty to supervise.

There is also no legal authority that supports the contention that a misrepresentation made by a person without a previous history with claimant is sufficient to build a fiduciary relationship.” (Id.)

“33. Commencing on and after August 1, 2016, PLAINTIFFS EVERLOVING HOME HEALTH, INC., EHSAN DOROUDI and SHAIDA MOGHADDAM and Defendants Joseph W. Amirian, by and through his alter ego(s) and aliases, including but not limited to Josef Hochleitner, and business name(s), Defendant JA Physical Therapy, and DOES 1 through 200, entered into a business arrangement stated in a contract attached hereto as Exhibit 4, whereby the defendants agreed to provide competent, capable and professional home healthcare services to persons with chronic conditions, disabilities, illness, acute care needs and others.

34. Moreover, Defendant Amirian knew full well that it was unlawful and criminal in conduct to lie, deceive and enter into the contractual arrangement with the Plaintiffs based upon his deception, deceit, and unlicensed status as a physical therapist to pretend to be a licensed physical therapist. Defendant Amirian has admitted that: ‘Defendant’s (Amirian’s) loss of license was public record and occurred in 2014, four (4) years prior to entering a contract with Everloving Home Health Inc.’”(TAC, ¶¶ 33-34.)

The TAC further repeats allegations of misrepresentations from the second cause of action. (TAC ¶¶35-36.)

However, the TAC still fails to sufficiently plead an existing fiduciary duty undertaken by Defendant Amirian.

Thus, the court again finds that the third cause of action is again insufficiently pled. Therefore, Joseph Amirian’s demurrer to this cause of action is again sustained.

Joseph Amirian asserts that the remaining causes of action are identical to those in the FAC and SAC and insufficiently pled for the following reasons: (1) the TAC 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 TAC 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, 7.)

A review of the TAC’s fourth through sixth causes of action shows: Plaintiffs fail to allege specific defamatory statements (TAC ¶¶44-45); Plaintiffs fail to plead sufficient allegations to show Defendant Amirian was a contracting party (TAC ¶¶52-56); and Plaintiffs fail to plead sufficient facts to show outrageous conduct (TAC ¶¶62-63.). Based upon this review, the court again agrees with Joseph Amirian that the TAC’s remaining causes of action are insufficiently pled.

As explained above, the court finds Plaintiffs again allege conduct by defendants in the aggregate and fail to differentiate what statements or conduct are attributed to Joseph Amirian specifically. Plaintiffs provide only conclusory claims to establish the elements of their claims. This court previously noted the “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.” (September 27 Order, 6.) Plaintiffs have again failed to plead sufficient facts at this demurrer stage.

For these reasons, Joseph Amirian’s demurrer is again 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 December 7, 2022, he sent a meet and confer letter to Plaintiff’s counsel discussing the alleged continued deficiencies in the TAC and expressing Defendant’s intent to demur. (Mojarro Decl. ¶¶ 16-18, Exh. 7-8.) 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.