Judge Gregory Keosian, Case Number: 23STCV09723, Date: 2023-09-27 Tentative Ruling

Judge: Gregory Keosian, Case: 23STCV09723, Date: 2023-09-27 Tentative Ruling

Case Number: 23STCV09723 Hearing Date: September 27, 2023 Dept: 61

Defendant Rena Aminpour’s Demurrer to the Complaint is OVERRULED. Defendant to answer within 30 days.

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) 39 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.)

Defendant Rena Aminpour demurrers to the first and second causes of action alleged against her for fraud and breach of fiduciary duty on the grounds that all promises and breaches alleged by Plaintiff Roxbury20 BC, LLC (Plaintiff) were committed by Defendant Felix Pena (Pena). (Demurrer at pp. 4–5.) Plaintiff in opposition contends that the Complaint includes an allegation that Aminpour participated in the alleged breaches by telling Pena, when asked whether she would give up her share of the commission as Pena had promised Plaintiff, Arminpour had told Pena, “Tell them to go fuck themselves,” and that “if they sue us, the agency will protect us so don’t worry.” (Complaint ¶ 16.)

“The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach.” (O'Neal v. Stanislaus County Employees' Retirement Assn. (2017) 8 Cal.App.5th 1184, 1215.)

The Complaint here alleges that after Plaintiff retained Pena to represent it as a broker in a real property purchase transaction, Pena convinced Plaintiff to go through with the purchase despite severe reservations, on the promise that Pena would refund half of his commission and make other payments for the repair of the property. (Complaint ¶¶ 9–11.) Plaintiff alleges that Pena brought Arminpour into the transaction on the promise that this would not add to Plaintiff’s expenses, and that Arminpour’s compensation would be “my [Pena’s] problem.” (Complaint ¶ 9.) Yet after the purchase, Pena failed to abide by his promises, and told Plaintiff that he could not turn over half the commission, as he had already paid half to Arminpour. (Complaint ¶ 13.) Pena later committed to paying Plaintiff his own half, and told Plaintiff that when he asked Arminpour to return her half, she refused. (Complaint ¶¶ 14–15.) The Complaint also alleges that Arminpour advised Pena not to return his share of the funds, because their agency would protect them if Plaintiff sued. (Complaint ¶ 16.)

The Complaint alleges a basis to find Arminpour liable for fraud and breach of fiduciary duty, even though Pena is alleged to have breached his promises to Plaintiff. Specifically, the Complaint alleges that Arminpour advised Pena not to pay Plaintiff what he promised, and that Pena followed this advice. Civil liability may “imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act.” (Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 324.) That is effectively what Plaintiff alleges here.

The demurrer is therefore OVERRULED.