Judge: Joel R Wohlfeil, Case: 37-2018-00054834-CU-BT-CTL, Date: 2024-02-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 16, 2024

01/19/2024  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Business Tort Summary Judgment / Summary Adjudication (Civil) 37-2018-00054834-CU-BT-CTL AMINPOUR VS CALHOUN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 09/25/2023

1. The continued Motion (ROA # 827, 984) of Cross-Defendant ASHKAN KING AMINPOUR ('Cross-Defendant' or 'Aminpour') for an order for Summary Judgment or, in the alternative, Summary Adjudication, to the all causes of action asserted in the Cross-Complaint filed by Defendant / Cross-Complainant LARA CALHOUN ('Cross-Complainant' or 'Calhoun') is GRANTED IN PART and DENIED IN PART.

The Motion for summary judgment is DENIED.

The alternative Motion for summary adjudication of each cause of action is DENIED to causes of action 1 - 10, and is GRANTED to cause of action 11.

These rulings are based on the analysis set forth below.

Calhoun's evidentiary objections (ROA # 958) are OVERRULED.

Calhoun's Request (ROA # 954) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of Exh's '1 - 5, 8 - 11' and the dates only on which Exh's '6 - 7' were filed with the Court; otherwise, the Request is DENIED.

28th Affirmative Defense Cross-Defendant argues that the twenty-eighth (28) affirmative defense acts as a complete bar to each and every cause of action in Calhoun's Cross-Complaint. This affirmative defense states: 'Cross-Defendant alleges that Cross-Complainant's actions constituted a full release by Cross-Complainant of any and all claims which he [sic] may have had against this answering Cross-Defendant.' Initially, the Court notes that the Separate Statement filed in support of this Motion does not contain a separate section addressing this affirmative defense, in violation of California Rules of Court, Rule 3.1350(d). However, the opposition does not address this issue. The Court was able to locate the fact statements supporting this aspect of the Motion (nos. 9 - 15) by reviewing the 'Summary of Undisputed Material Facts' within the moving memorandum.

The 'Release Agreement' attached to the declaration of Daryoosh Khashayar as part of 'Exhibit A' was Calendar No.: Event ID:  TENTATIVE RULINGS

3063476 CASE NUMBER: CASE TITLE:  AMINPOUR VS CALHOUN [IMAGED]  37-2018-00054834-CU-BT-CTL signed by Calhoun on March 20, 2017 and contains the following pertinent language: '1.2 On or about May 31, 2015, CALHOUN retained attorney KING AMINPOUR and AMINPOUR & ASSOCIATES (collectively referred to hereinafter as 'AMINPOUR') to represent her against Jon. R.

Davis Trucking. AMINPOUR filed a complaint on behalf of CALHOUN on January 26, 2016. Defendant Jon R. Davis Tricking demurred to the complaint, which demurrer was sustained without leave to amend. CALHOUN has raised a claim for legal malpractice as a result of the aforementioned occurrence (hereinafter, 'The CLAIM'); ....

4.1 ... CALHOUN ... does fully and forever release and discharge AMINPOUR ... from any and all past, present or future claims, demands, obligations, personal injuries, damages, past written contracts, express or implied obligations, liabilities, costs, attorneys' fees, fees, losses, expenses, bonds, and compensation, whether based on tort, contract, or other legal or equitable theories of recovery, that CALHOUN has, had, or may later accrue to, or be acquired by her arising from or out of, or relating to THE CLAIM.

4.2 ... CALHOUN covenants and agrees never to commence and / or prosecute and / or continue prosecuting against AMINPOUR any legal action and/or other proceeding based in whole or in part upon the claims, demands, causes of action, obligations, damages, and / or liabilities released in this AGREEMENT, and / or any legal action or other proceeding based in whole or in part upon any claims, demands, causes of action, obligations, damages, and/or liabilities arising out of and / or relating to THE CLAIM. This AGREEMENT may be pled as a full and complete defense to any such action or proceeding, as a basis for abatement of, or injunction against, such action.

....

6.1 CALHOUN understands that the releases in this AGREEMENT extends to all claims of any nature and kind, known or unknown, suspected or unsuspected, anticipated or unanticipated, past, present or future, arising from or in connection with the underlying facts as alleged in THE CLAIM. In that regard, CALHOUN acknowledges that she has read, considered and understands the provisions and significance of Section 1542 of the California Civil Code ...

6.2 CALHOUN understands, acknowledges and assumes that a risk exists that she has incurred or suffered or may incur or suffer, loss, damages as a result of the matters, facts, events, occurrences, transactions, causes and things referred to in this AGREEMENT which were unknown, unsuspected or unanticipated at the time this AGREEMENT was executed.' A second untitled settlement agreement is attached to the declaration of Daryoosh Khashayar as 'Exhibit D.' It was signed by Calhoun on April 6, 2017. This document is less than a page and references an agreement to 'settle her malpractice claim against Attorney Ashkan King Aminpour DBA Aminpour and Associates ... for the amount of $750,000.00.' The express language of both of these agreements demonstrate that the parties agreed to settle a discreet malpractice claim related to failing to file the personal injury action against Jon. R. Davis Trucking prior to expiration of the applicable statute of limitations. However, the causes of action in Cahoun's Cross-Complaint in this action are premised, at least in part, on the relationship between Calhoun and Aminpour that existed outside the narrow context of the underlying personal injury action against Jon. R. Davis Trucking. Therefore, it is disputed whether the release agreements are broad enough to encompass all of the conduct alleged in this cross-action.

Material disputed facts exist regarding whether both release agreements are void because they were procured by fraud.

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3063476 CASE NUMBER: CASE TITLE:  AMINPOUR VS CALHOUN [IMAGED]  37-2018-00054834-CU-BT-CTL For both reasons, summary judgment and adjudication based on this affirmative defense is denied.

The Business Judgment Rule The business judgment rule protecting directors' decisions does not apply in the case of bad faith or fraud. Desaigoudar v. Meyercord (2003) 108 Cal. App. 4th 173, 188.

Even assuming all of the causes of action arise solely out of Aminpour's role as a director of Larking, material disputed facts exist regarding whether at least some of his conduct was done in bad faith.

Asserted Lack of Recoverable Damages Material disputed facts exist regarding whether Cross-Defendant breached an agreement to provide funding for the development and operation of Larking. As a result of this breach, it is disputed whether Calhoun is entitled to the value of her services developing and operating Larking. It is disputed whether Aminpour's breach could have resulted in additional damages such as Larking business expenses and lost Larking revenue. See Separate Statement nos. 30, 55 and 60.

1st COA: BREACH OF FIDUCIARY DUTY This cause of action alleges Aminpour was Calhoun's attorney and as such a fiduciary relationship existed. Aminpour's fiduciary duties were breached through the following actions: (a) recommending and inducing Calhoun to accept a course of action for Aminpour's benefit and that had no or little financial benefit to Calhoun; (b) profiting and attempting to profit from Calhoun through Aminpour's own intentional and/or negligent wrongdoing; (c) concealing and failing to disclose certain material facts surrounding the transaction including, but not limited to, unauthorized expenditures and legal issues; (d) recommending an unsuitable course of action for Calhoun; and (e) actively participating in said acts and / or failing to supervise and/or prevent said acts or omissions.

As discussed above, material disputed facts exist regarding whether the release agreements are broad enough to encompass all of the conduct alleged in this cross-action.

As also discussed above, it is disputed whether at least some of Aminpour's conduct falls was done in bad faith such that it falls outside the parameters of the business judgment rule.

As also discussed above, it is disputed whether Calhoun incurred recoverable damages.

2nd COA: INTENTIONAL MISREPRESENTATION + 3rd COA: NEGLIGENT MISREPRESENTATION Cause of action 2 alleges Aminpour 'misrepresented ... the nature of the business transaction that they entered into.' Cause of action 3 alleges Aminpour falsely represented 'that he would finance the development of Larking.' Cross-Defendant argues the Cross-Complaint fails to allege 'what he allegedly misrepresented, or why any such representation was supposedly false.' However, whether the pleading is deficient is immaterial, as this is not a Demurrer.

Cross-Defendant also argues the allegation that Aminpour falsely represented that he would finance the development of Larking is untrue because it is undisputed that Aminpour made capital contributions exceeding $100,000. However, this does not necessarily establish that financing in excess of this amount was not required. This remains disputed. See Separate Statement no. 26.

Cross-Defendant also argues that no evidence exists supporting a claim premised on the falsehood Calendar No.: Event ID:  TENTATIVE RULINGS

3063476 CASE NUMBER: CASE TITLE:  AMINPOUR VS CALHOUN [IMAGED]  37-2018-00054834-CU-BT-CTL regarding adding Auri Aminpour to the Larking board of directors. This argument does not cite to facts in the Separate Statement supporting the non-existence of this evidence. As a result, Cross-Defendant has not satisfied his initial burden on this motion. See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850 and 854 (party moving for summary judgment has initial burden of production to make a showing of nonexistence of any triable issue of material fact; Defendant moving for summary judgment must present evidence, and not simply point out that Plaintiff does not possess and cannot obtain needed evidence).

Cross-Defendant also argues there is no evidence of justified reliance. This argument does not cite to facts in the Separate Statement supporting the non-existence of evidence supporting this element.

As a result, Cross-Defendant has not satisfied his initial burden on this motion.

Cross-Defendant argues the Cross-Complainant 'cannot show any actual damages sustained' or causation. However, as discussed above, it is disputed whether Calhoun incurred recoverable damages.

4th COA: NEGLIGENCE This cause of action alleges: 'Cross-Defendant breached its duty of care to Cross-Plaintiff by failing to act as reasonably prudent attorney in engaging in the above business transaction. Cross-Defendant breached it duty of care to Cross-Plaintiff by making unauthorized expenditures of Cross-Plaintiffs monies and by failing to perform agreed upon duties, including financing the business venture.

Cross-Defendant breached its duty of care to Cross-Plaintiff by actively participating in said acts or omissions.' As discussed above, the existence of the releases does not necessarily foreclose this action.

As discussed above, whether Cross-Defendant failed to finance the development of Larking is disputed.

Whether the allegations are sufficient is immaterial on a Motion for summary judgment. The applicability of the business judgment rule is disputed.

5th COA: BREACH OF CONTRACT This cause of action alleges: 'Cross-Defendant has breached the agreement by failing and refusing to provide proper financing for Larking as originally contemplated and has breached in other ways of which Cross-Plaintiff is not presently aware, according to proof at trial.' As discussed above, whether Cross-Defendant failed to finance the development of Larking is disputed.

Whether the meeting at the Old Spaghetti Factory 'excused' Aminpour's breach of the Larking funding agreement is disputed.

Whether this meeting amounted to 'extortion' is a disputed fact question.

Whether this meeting excused any prior breach by Aminpour is a disputed fact question.

6th COA: INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE + 7th COA: NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE These causes of action allege Cross-Defendant interfered with the relationship between Calhoun and Larking.

Cross-Defendant argues the allegations in the Cross-Complaint are conclusory and insufficient.

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3063476 CASE NUMBER: CASE TITLE:  AMINPOUR VS CALHOUN [IMAGED]  37-2018-00054834-CU-BT-CTL However, whether the pleading is deficient is immaterial, as this is not a Demurrer.

Cross-Defendant also argues: 'Calhoun can show no such unlawful or proscribed act by Aminpour.' This argument does not cite to evidence in the Separate Statement supporting the non-existence of facts supporting this element.

As a result, Cross-Defendant has not satisfied his initial burden on this Motion.

8th COA: UNFAIR BUSINESS COMPETITION The causes of action addressed above provide the predicate acts on which this cause of action is based.

Thus, this cause of action survives to the extent material disputed facts exist supporting the other causes of action.

9th COA: UNJUST ENRICHMENT There is no cause of action in California for unjust enrichment. Durell v. Sharp Healthcare (2010) 183 Cal. App. 4th 1350, 1370.

Unjust enrichment is synonymous with restitution. Id. There are several potential bases for a cause of action seeking restitution. Id. Restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason. Id. Alternatively, restitution may be awarded where Defendant obtained a benefit from Plaintiff by fraud, duress, conversion, or similar conduct. Id. In such cases, Plaintiff may choose not to sue in tort, but instead to seek restitution on a quasi-contract theory. Id. As discussed above, the fraud-based claims remain disputed.

As a result, a claim for restitution may be appropriate.

10th COA: DECLARATORY RELIEF Cross-Defendant argues the allegations in the Cross-Complaint are insufficient. However, whether the pleading is deficient is immaterial, as this is not a Demurrer.

As the substantive claims remain disputed, this cause of action may also be viable.

11th COA: VIOLATION OF PENAL CODE 496 This cause of action alleges: 'Cross-Defendant, without consent, or legal right, intentionally demanded and took the Sham Loan Funds, all or a portion of which belonged to Cross-Plaintiff and none of which belonged to Cross-Defendant, and wrongfully used the Sham Loan Funds for Cross Defendant's personal use .... ¶ ... Cross-Defendant violated California Penal Code § 496 by obtaining property belonging to Cross-Plaintiff by theft and knowingly withholding the property from Cross-Plaintiff. At all times Cross-Plaintiff was the sole owner of the Sham Loan Funds and entitled to have continuous and complete access and use of the Sham Loan Funds.' It is illegal for a person to buy or receive property that has been stolen, or to obtain property by theft or extortion, knowing the property to be so stolen or obtained in this manner. Pen. Code 496(a).

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3063476 CASE NUMBER: CASE TITLE:  AMINPOUR VS CALHOUN [IMAGED]  37-2018-00054834-CU-BT-CTL 'Any person who has been injured by a violation of subdivision (a) ... may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney's fees.' Id. at (c).

Section 496 is limited by its terms to the purchase or receipt of '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 ....' Lacagnina v. Comprehend Systems, Inc. (2018) 25 Cal. App. 5th 955, 969.

Not all commercial or consumer disputes alleging that a defendant obtained money or property through fraud, misrepresentation, or breach of a contractual promise will amount to a theft. Siry Investment, L.P.

v. Farkhondehpour (2022) 13 Cal. 5th 333, 361.

To prove theft, a plaintiff must establish criminal intent on the part of the defendant beyond mere proof of nonperformance or actual falsity. Id. at 361, 362.

'In this case, the record appears consistent with a conclusion that defendants acted not innocently or inadvertently, but with careful planning and deliberation reflecting the requisite criminal intent.' Id. at 362.

It is undisputed that Aminpour provided money to Calhoun to help her pay for 'necessities' prior to the time she received funds from the settlement of her malpractice/personal injury action. It is undisputed that Aminpour has demanded the repayment of these amounts, totaling $118,000, from the settlement proceeds. Calhoun argues either that she is not required to repay these funds, or that the total amount owed is not accurate.

A demand for the repayment of money does not constitute the receipt of stolen property, theft or extortion. The claimed inaccurate calculation does not constitute a criminal intent to steal or extort money. It is undisputed that Aminpour did not have the requisite criminal intent when he advanced money to Calhoun and later demanded the repayment of these sums. See Separate Statement nos. 31, 32, 39 and 52. Therefore, summary adjudication of this cause of action is granted.

_____ 2. The Motion (ROA # 931) of Defendant / Cross-Complainant Lara D. Calhoun (Calhoun') for an order compelling Plaintiff / Cross-Defendant Ashkan King Aminpour ('Aminpour') to comply with Calhoun's Request for Production of Documents, Set Two, Nos. 29 and 30, and for monetary sanctions against Aminpour and its counsel of record, is GRANTED IN PART, DENIED IN PART and will be HEARD IN PART.

The discovery in dispute is as follows: REQUEST FOR PRODUCTION NO. 29: Please produce all DOCUMENTS, including but not limited to bank records, reflecting any transfers of money, property, assets or any item of value from PLAINTIFF to Alfred Atallah from January 12, 2017 to July 12, 2017.

REQUEST FOR PRODUCTION NO. 30: Please produce all DOCUMENTS, including but not limited to bank records, reflecting any transfers of money, property, assets or any item of value from Alfred Atallah to PLAINTIFF from January 12, 2017 to July 12, 2017.

Amipour's objections are, except as noted, OVERRULED.

The term 'item of value' is vague, ambiguous and susceptible to more than one interpretation; however, Calendar No.: Event ID:  TENTATIVE RULINGS

3063476 CASE NUMBER: CASE TITLE:  AMINPOUR VS CALHOUN [IMAGED]  37-2018-00054834-CU-BT-CTL the meaning of this term appears as if it can be settled. The Court will HEAR from counsel on the meaning of this term.

Second, the scope of this discovery may seek materials which are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Further, the nature of this information is protected by a qualified privilege.

Assuming the meaning of the term 'item of value' is settled upon, the Court is inclined to find that Calhoun's need for the discovery outweighs Amipour and Atallah's right to preserve its confidentiality; however, to balance the interests of the parties, the Court is also inclined to direct that Amipour lodge the discovery under seal with Court so that the Court may conduct an in camera review of the discovery.

To the extent that the discovery contains relevant materials, the Court will direct that those materials be provided to Calhoun. To the extent that that the discovery contains irrelevant materials, the Court will direct that those materials be returned to Amipour.

Calhoun's request for sanctions is DENIED. Amipour has not acted without substantial justification.

Amipour's counter request for sanctions is DENIED. Calhoun has not acted without substantial justification.

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