Judge: H. Jay Ford, III, Case: 22SMCV02702, Date: 2023-12-12 Tentative Ruling

Case Number: 22SMCV02702    Hearing Date: January 25, 2024    Dept: O

Case Name:  Ebby Shakib v. Jamshid Goltche, et al.

SUBJECT:                 DEMURRER W/O MTS

MOVING PARTY:   Defendants Jamshid Goltche, 26 Global Infinity, LLC and Rodeo Enterprises, LLC

RESP. PARTY:         Plaintiff Ebby Shakib

TENTATIVE RULING

            Defendants Jamshid Goltche, 26 Global Infinity, LLC and Rodeo Enterprises, LLC Demurrer to 1^st, 6^th, 8^th, 10^th, 11^th, 12^th, and 13^th causes of action are OVERRULED. Defendants Jamshid Goltche, 26 Global Infinity, LLC and Rodeo Enterprises, LLC Demurrer to the 4^th cause of action for IIED is MOOT as the Plaintiff Ebby Shakib dismissed the cause of action on 9-26-23. Plaintiff Ebby Shakib has successfully plead all the elements of the 1^st, 6^th, 8^th, 10^th, 11^th, 12^th, and 13^th causes of action in the FAC.

Defendants Jamshid Goltche, 26 Global Infinity, LLC and Rodeo Enterprises, LLC Request for Judicial Notice of the MOU is DENIED.

I.                1^st cause of action—Breach of Written Contract - OVERRULED

The essential elements of breach of contract are “(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff." (D'Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.)

            Plaintiff Ebby Shakib (“Shakib”) pleads an existence of a contract through stating Shakib and Defendant Jamshid Golche (“Goltche”) entered into a written Memorandum of understanding (“MOU”), modifying the partnership previously entered into. (FAC, ¶ 41.)  Shakib pleads the contents of the MOU in regards to the change of ownership percentage between Shakib and Golche, the voting power remaining 50/50, the debt to Shakib, and the date in which Shakib should be paid that debt. (FAC, ¶¶ 42–55.) Shakib pleads the debt was not paid in full by December 31, 2018 thus pleading breach. (FAC, ¶ 132.) Damages are plead by stating “remaining amount of the Debt to Shakib can only be ascertained by an accounting.” (FAC, ¶ 133.) Thus, elements of a breach of contract are properly plead.

            The Court finds the Defendants Jamshid Goltche, 26 Global Infinity, LLC and Rodeo Enterprises, LLC (the “Goltche Defendants”) demurrer to the first cause of action is OVERRULED.

II.             4^th cause of action—Intentional Infliction Of Emotional Distress –  MOOT as cause of action was dismissed on 9-26-23

This cause of action was dismissed by Shakib on 9-26-23. (See 9-26-23 Request for Dismissal.) The demurrer to the fourth cause of action for IIED is MOOT.

III.           6^th cause of action - Conversion (Derivative) and 7^th cause of action - Penal Code § 496(C) Damages (Derivative)

            “Conversion is the wrongful exercise of dominion over the property of another.  The elements of a conversion are: (1) the plaintiff's ownership or right to possession of the property at the time of the conversion; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages.  It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.”  (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 441, 451-452.)

            “Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170.” (Pen. Code §496(a).)

            Theft is defined in Penal Code §484(a). “Every person who shall feloniously steal, take,

carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property…is guilty of theft.” Pen. Code §484(a).

            Shakib pleads the derivative cause of action is being brought on behalf of the partnership. (FAC ¶ 180.) Shakib pleads the portions of the entities owned by Shakib and Goltche “assets of the Partnership.” (FAC, ¶ 35.) Shakib pleads “[p]ursuant to the Partnership Agreement, Shakib and Goltche formed a number of legal entities (‘Entities’) and have become shareholders, directors, and officers or members and managers of said entities to be engaged in the Partnership’s business.” (FAC, ¶ 33.) Shakib pleads “Goltche took Partnership assets for his own personal use without the consent of Shakib,” and, “Goltche took Partnership assets for the use of 26 Global, Rodeo, and Does 1 through 50 without the consent of Shakib” (FAC, ¶¶ 174–175.) Shakib pleads the Goltche Defendants knowingly “obtained assets from the Partnership in a manner constituting theft.” (FAC,  ¶¶ 182–86.) Shakib pleads the damages can only be ascertained by an accounting, and estimates damages “to be $50 million.” (FAC, ¶¶ 178–179.)  Thus, all the elements of conversion and a Penal Code § 484 claim are properly plead as to the derivative action.

            Thus, the Court finds the Goltche Defendants’ demurrer to the 6^th and 7^th causes of action are OVERRULED.

IV.       8^th cause of action - Quiet Title To Personal Property (Derivative) – OVERRULED

            Under that CCP §761.020, the elements of a quiet title claim are (a) A description of the property that is the subject of the action; (b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title; (c) The adverse claims to the title of the plaintiff against which a determination is sought; (d) The date as of which the determination is sought; (e) A prayer for the determination of the title of the plaintiff against the adverse claims.  (See Code Civ. Proc., § 761.020.)

            “The date [as to which the determination of title is sought] is to be the date of filing the complaint or, if the plaintiff so chooses, an earlier date.” (Deutsche Bank National Trust Co. v. McGurk (2012) 206 Cal.App.4th 201, 213.)

            Shakib describes the property subject to the action through stating facts regarding the creation of 26 Global Infinity, LLC (“Global”) and Rodeo Credit Enterprises LLC (“Rodeo”),   and the Goltche Defendants diverting Partnership funds to 26 Global Infinity, LLC (“Global”) and Rodeo Credit Enterprises LLC (“Rodeo”). (FAC, ¶¶ 87–93, 104–109, 191.)  Shakib alleges the Partnership’s claim to the title when pleading “[b]y virtue of its (involuntary) contributions to 26 Global and Rodeo, the Partnership is the true owner of Goltche’s, 26 Global’s, Rodeo’s and Does 1 through 50’s interests in 26 Global and Rodeo,” and, “[b]y virtue of its (involuntary) contributions to these entities, the Partnership is the true owner of Goltche’s, 26 Global’s, Rodeo’s and Does 1 through 50’s interests in these other entitles.” (FAC, ¶¶ 192–194.)

            The date of which determination is sought is not plead within the FAC but that date is implied as the date the complaint was filed, 12-15-22.  (See Deutsche Bank National Trust Co. v. McGurk (2012) 206 Cal.App.4th 201, 213 [“The date [as to which the determination of title is sought] is to be the date of filing the complaint or, if the plaintiff so chooses, an earlier date.”]

            Thus, all elements of quiet title have been plead, and the Goltche Defendants demurrer to the 8^th cause of action is OVERRULED.

V.          10^th cause of action – breach of fiduciary duty, 11^th cause of action – conversion, 12^th cause of action- Penal Code § 496, 13^th cause of action – accounting

            Goltche does not argue the 10^th through 13^th causes of action elements are not properly plead, but argues the Shakib does not have standing to bring the claims on behalf of the entities, and the cause of action are uncertain because the “FAC lumps all fourteen entities together.” (Demurrer, p. 10:26–28.) However, Shakib pleads demand futility. (FAC, ¶ 123.) Shakib pleads he is a member of the limited liability entities in question (FAC, ¶ 202), and that each LLC is member-managed, managed by either Goltche alone or both Goltche and Shakib (FAC, ¶¶ 203–205). Thus, Shakib as a member of the LLC’s, has standing to bring the 10^th through 13^th causes of action as a derivative claim.

            The Goltche Defendants have responded to the specific causes of action by successfully moving to appoint a referee for an accounting determination for all the LLC defendants and thus the FAC is not so incomprehensible that Goltche Defendants cannot reasonably respond. (See A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695 [“Demurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. 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.”].) The Court finds the causes of action are not uncertain.

            Thus, the Goltche Defendants’ demurrer to the 10^th through 13^th causes of action are OVERRULED.