Judge: Gregory Keosian, Case: 22STCV14401, Date: 2022-09-01 Tentative Ruling
Case Number: 22STCV14401 Hearing Date: September 1, 2022 Dept: 61
Defendants Askar Ranjbar, Mohammad Ranjbar, and Mahamed
Jafar’s Demurrer to the Complaint is SUSTAINED
with leave to amend as to the first, third, and fourth causes of action alleged
against Defendants Mohammad Ranjbar and Mohamed Jafar, and OVERRULED as to all
claims alleged against Askar Ranjbar.
Defendants’ Motion to Strike
Portions of the Complaint is GRANTED without leave to amend as to the prayer
for attorney fees, and is otherwise DENIED.
I.
DEMURRER
A demurrer should be sustained only where the defects appear
on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§
430.30, et seq.) In particular, as is
relevant here, a court should sustain a demurrer if a complaint does not allege
facts that are legally sufficient to constitute a cause of action. (See
id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We
treat the demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. . . . Further, we give
the complaint a reasonable interpretation, reading it as a whole and its parts
in their context.” (Id. at p.
318; see also Hahn. v. Mirda (2007)
147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the
evidence or other extrinsic matters. Therefore, it lies only where the defects
appear on the face of the pleading or are judicially noticed. [Citation.]”)
“In determining whether the complaint is sufficient as
against the demurrer … if on consideration of all the facts stated it appears
the plaintiff is entitled to any relief at the hands of the court against the
defendants the complaint will be held good although the facts may not be
clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)
“A demurrer
for uncertainty is strictly construed, even where a complaint is in some
respects uncertain, because ambiguities can be clarified under modern discovery
procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612,
616.) Such demurrers “are disfavored,
and are granted only if the pleading is so incomprehensible that a defendant
cannot reasonably respond.” (Mahan v.
Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)
A demurrer should not be sustained without leave to amend if
the complaint, liberally construed, can state a cause of action under any
theory or if there is a reasonable possibility the defect can be cured by
amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p.
1081.) The demurrer also may be sustained without leave to amend where the
nature of the defects and previous unsuccessful attempts to plead render it
probable plaintiff cannot state a cause of action. (Krawitz v. Rusch
(1989) 209 Cal.App.3d 957, 967.)
Defendants Mohamed Jafar and Askar and Mohammad Ranjbar
(Defendants) demurrer to Plaintiff Hamada Abdulla’s (Plaintiff) complaint on
the grounds that the breach of contract claim (and the derivative claim for
declaratory relief) alleges no facts supporting liability against defendants
other than Askar Ranjbar. (Demurrer at pp. 4–5.) Defendants further argue that
Plaintiff does not adequately plead conversion because he does not plead rightful
possession of the property, nor the specific property involved, nor which
defendant committed what specific acts. (Demurrer at pp. 6–7.) Defendants
finally argue that the third cause of action for fraud is not alleged with the
requisite specificity. (Demurrer at pp. 8–9.)
There is merit to Defendants’ first argument, because the
breach of contract allegations, and the attached exhibits, allege only written
contracts with Askar Ranjbar, not with co-defendants Mohammad Ranjbar and
Mohamed Jafar. The existence of a contract is an element of a breach of
contract claim. (See D'Arrigo Bros. of California v. United
Farmworkers of America (2014) 224 Cal.App.4th 790, 800.) But while the
first cause of action is alleged against “Defendants” as a group, the only
contracts attached to the Complaint are those between Plaintiff and Askar
Ranjbar. (Complaint Exhs. 1–3.) There is no alleged basis to plead a breach of
contract claim against the other defendants. The demurrer is therefore
SUSTAINED with leave to amend as to the first and fourth causes of action for
breach of contract and declaratory relief as to Defendants Mohammad Ranjbar and
Mohamed Jafar.
Defendants’ arguments as to the conversion claim are less
persuasive. Contrary to Defendants’ argument, Plaintiff alleges possession of the
items in question by virtue of allegations that the personal property was “of
Hamada,” i.e. belonging to Plaintiff. (Complaint ¶ 14.) This allegation is
sufficient to satisfy the element of conversion requiring “the plaintiff's
ownership or right to possession of personal property.” (Regent Alliance
Ltd. v. Rabizadeh (2014) 231 Cal.App.4th 1177, 1181.) The demurrer is
therefore OVERRULED as to the second cause of action for conversion.
Defendants’ final argument with respect to the insufficiency
of the fraud claim once more applies most persuasively to Defendants Mohammad
Ranjbar and Mohamed Jafar. The
elements of fraud are: (1) misrepresentation (false representation,
concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent
to defraud or induce reliance; (4) justifiable reliance; and (5) damages. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) It is
well-established that “[t]o withstand a demurrer, the facts constituting every
element of fraud must be alleged with particularity, and the claim cannot be
salvaged by references to the general policy favoring the liberal construction
of pleadings.” (Goldrich v. Natural Y
Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.) “This
particularity requirement necessitates pleading facts which show how,
when, where, to whom, and by what means the representations were tendered.” (Lazar, supra, 12 Cal.4th at p.
645 (internal quotation marks omitted).) Here, the allegations of
misrepresentation are reasonably specific, and refer to the final promise in
the final contract to turn over Askar’s business to Plaintiff. (Complaint ¶ 40,
Exh. 3.) But again, there are no allegations implicating the other defendants
in this contract.
The demurrer is
thus SUSTAINED with leave to amend as to the first, third, and fourth causes of
action alleged against Defendants Mohammad Ranjbar and Mohamed Jafar, and
OVERRULED as to all claims alleged against Askar Ranjbar.
II.
MOTION TO
STRIKE
Any
party, within the time allowed to respond to a pleading, may serve and file a
notice of motion to strike the whole or any part thereof. (Code Civ. Proc., §
435(b)(1)). The notice of motion to strike a portion of a pleading shall quote
in full the portions sought to be stricken except where the motion is to strike
an entire paragraph, cause of action, count or defense. (California Rules of
Court Rule 3.1322.)
The grounds for a motion to
strike shall appear on the face of the challenged pleading or form any matter
of which the court is required to take judicial notice. (Code Civ. Proc., §
437(a)). The court then may strike out any irrelevant, false, or improper
matter inserted in any pleading and strike out all or any part of any pleading
not drawn or filed in conformity with the laws of this state, a court rule, or
an order of the court. (Code Civ. Proc., § 436.) When the defect which
justifies striking a complaint is capable of cure, the court should allow leave
to amend. (Perlman v. Municipal Court
(1979) 99 Cal.App.3d 568, 575.)
Defendants in their motion to
strike repeat the arguments raised in demurrer, and further move to strike the
prayer for punitive damages and the prayer for attorney fees. (Motion at pp. 4–6.)
Punitive damages are allowed in non-contract cases when a
defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code §
3294.) The terms are defined as:
“Malice” means conduct which is intended by the defendant to cause
injury to the plaintiff or despicable conduct which is carried on by the
defendant with a willful and conscious disregard of the rights or safety of
others.
“Oppression” means despicable conduct that subjects a person to
cruel and unjust hardship in conscious disregard of that person's rights.
“Fraud”
means an intentional misrepresentation, deceit, or concealment of a material
fact known to the defendant with the intention on the part of the defendant of
thereby depriving a person of property or legal rights or otherwise causing
injury.
Something more than the mere commission of a
tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of
negligence, gross negligence, or recklessness is insufficient to warrant an
award of punitive damages. (Dawes v.
Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be
recovered in an action for negligence or other nonintentional torts if the
plaintiff pleads and proves that the defendant acted with the state of mind
described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220
Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious
disregard of Plaintiff’s rights, the conduct must be both despicable and
willful. (College Hospital v. Superior
Court (1994) 8 Cal.4th 794, 713 (“College
Hospital”).)
Here, Plaintiff has alleged
fraud on the part of Askar Ranjbar, as would support a prayer for punitive
damages against him. He has also alleged conversion on the part of all three
defendants, in which they stole thousands of dollars worth of personal property
from his business, “in an intentional and calculated effort to misappropriate
plaintiff’s personal property . . . with the intent to permanently deprive
plaintiff from the benefits thereof.” (Complaint ¶ 36.) These allegations
support the existence of malice and oppression against all defendants, and
therefore punitive damages.
However, Defendants are correct
as to the availability of attorney fees in this case. Parties must ordinarily
bear their own attorney fees unless statute or contract provide otherwise. (See
Code Civ. Proc. § 1021.) Here, no statute allowing fees is pleaded or
argued, and no provision for same is included in the contracts that Plaintiff
attaches to the Complaint. Plaintiff makes no argument for the availability of
fees in opposition to this motion.
The motion is therefore GRANTED
without leave to amend as to the prayer for attorney fees, and is otherwise
DENIED.