Judge John J. Kralik, Case EC068660 2022-10-05 Tentative Ruling

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Superior Court of California

County of Los Angeles

Department B

Plaintiff Arthur Ambarachyan (“Ambarachyan”) alleges that he is an investor who was defrauded by Defendants Sona Chukhyan (“Chukhyan”) and George Plavjian (“Plavjian”), as well as their co-conspirators KSR Realty, Inc. (“KSR”), Reta Narkaz, Ruzana Badeer (“Badeer”), Kiane Shabazian (“Shabazian”), and Mariam Kakoian (“Kakoian”). Ambarachyan alleges that Kakoian was the owner of property located at 1737 Bel Aire Dr. in Glendale and that Chukhyan and Kakoian took out loans on the property to pay off other investors that Chukhyan scammed or defrauded. In February 2015, Chukhyan and Kakoian approached Plaintiff for a loan in the amount of $355,000.00. Plaintiff lent the money and Kakoian signed a promissory note agreeing to pay the money back with interest, and the note was secured by a deed of trust against the property. However, the property was sold for $935,300.00 in 2017 and Plaintiff was not paid from the proceeds of the sale.

The fourth amended complaint (“4AC”), filed March 17, 2020, alleges causes of action for: (1) fraud and conspiracy against Kakoian; (2) negligent misrepresentation against Kakoian; (3) breach of contract against Kakoian; (4) equitable lien against Kakoian; (5) negligence against Lawyers Title; (6) equitable indemnity against Chukhyan, Plavjian, KSR, Badeer, Shabazian, and Narkaz; (7) comparative indemnity against Chukhyan, Plavjian, KSR, Badeer, Shabazian, and Narkaz; (8) declaratory relief against Chukhyan, Plavjian, KSR, Badeer, Shabazian, and Narkaz; and (9) declaratory relief against Petrosian, Baburyan, and Lawyers Title.

In the 4AC, Ambarachyan notes that the Court previously sustained the demurrer without leave to amend as to the 1^st, 4^th, and 9^th causes of action.

On June 20, 2022, Kakoian filed a third amended cross-complaint (“TAXC”), alleging causes of action for: (1) fraud – misrepresentation against Chukhyan, Plavjian, KSR, Badeer, Shabazian, and Narkaz; (2) fraud – concealment against Ambarachyan, Narkaz, Escrow, and National Properties; (3) breach of contract against Agakhanyan and Penway; (4) intentional interference with contractual relations against Chukhyan, Ambarachyan, Narkaz, Escrow, KSR, Shabazian, Badeer, and Plavjian; (5) breach of fiduciary duty against Chukhyan, Ambarachyan, Narkaz, Nazarian, Escrow, KSR, Shabazian, Badeer, Plavjian, and National; (6) constructive fraud against Plavjian, Chukhyan, KSR, Badeer, Shabazian, Ambarachyan, Narkaz, Escrow, and National Properties; (7) breach of statutory duty (Bus. & Profs. Code, § 10177(h)) against Ambarahcyan and Narkaz; (8) conversion against Chukhyan, Plavjian, Badeer, Shabazian, and Ambarachyan; and (9) IIED against Chukhyan, Plavjian, Badeer, Shabazian, Ambarachyan, Narkaz, Nazarian, KSR, and Escrow.

There are 7 demurrers to Ms. Kakoian’s TAXC and a motion for attorney’s fees on calendar.

On July 11, 2022, Sevak Agakhanyan filed a demurrer to Kakoian’s TAXC as to the 3^rd cause of action.

On July 11, 2022, Penway filed a demurrer to Kakoian’s TAXC as to the 3^rd cause of action.

On July 11, 2022, Arpi Nazaryan filed a demurrer to Kakoian’s TAXC as to the 5^th and 9^th causes of action.

On July 11, 2022, National Properties filed a demurrer to Kakoian’s TAXC as to the 2^nd, 5^th, and 6^th causes of action.

On July 11, 2022, Kiane Shabazian filed a demurrer to Kakoian’s TAXC as to the 1^st, 4^th, 5^th, 6^th, 8^th, and 9^th causes of action.

On July 12, 2022, Chukhyan filed a demurrer to Kakoian’s TAXC as to the 1^st, 4^th, 5^th, 6^th, 8^th, and 9^th causes of action.

On July 18, 2022, Ambarachyan filed a demurrer to Kakoian’s TAXC as to the 2^nd, 4^th, 5^th, 6^th, 7^th, 8^th, and 9^th causes of action. On September 22, 2022, Ambarachyan filed a notice of non-opposition, stating he has not received an opposition to the demurrer from Kakoian.

On September 22, 2022, Ms. Kakoian filed a consolidated opposition to the 7 demurrers.

On September 28, 2022, Agakhanyan, Penway, Chukhyan, Nazaryan, Shabazian, National Properties, and Ambarachyan each filed a reply brief to Ms. Kakoian’s consolidated opposition to the demurrers.

On June 28, 2022, Ms. Kakoian filed a motion for attorney’s fees. On September 16, 2022, Ambarachyan filed an opposition to the motion for attorney’s fees. On September 28, 2022, Ms. Kakoian filed a reply brief.

Agakhanyan demurs to the 3^rd cause of action for breach of contract of Ms. Kakoian’s TAXC, arguing that Ms. Kakoian must show there was a valid contract that she performed or was excused from performing and that Agakhanyan/Penway did not perform or did something prohibited by the contract.

The 3^rd cause of action for breach of contract alleges that Ms. Kakoian entered into the Promissory Note on February 4, 2015 with Penway, which was incorporated by Agakhanyan on April 27, 20212 and later terminated by Agakhanyan on August 15, 2019. (TAXC, ¶¶117-119.) Ms. Kakoian alleges that Agakhanyan’s actions are governed by Corporations Code, §§ 17707.06, 17707.07, and 17707.08 (re existence of LLC post cancellation of certificate to wind-up affairs, prosecute and defend actions, dispose of/convey property, and collect/divide assets). (Id., ¶¶120-125.) She alleges that Agakhanyan is entirely responsible for Penway’s actions against Ms. Kakoian. (Id., ¶126.) She alleges that the contract terms were clear that she would receive $355,000 in return for signing the Promissory Note and have the Deed of Trust recorded on the property. (Id., ¶128.) The maturity date for the contract was February 9, 2016 and it had a 10% per annum interest. (Id., ¶129.) The Promissory Note and Deed of Trust were signed on February 4, 2015 and recorded on February 6, 2015. (Id., ¶130.) Ms. Kakoian also alleges that nowhere in the documents did Penway, Agakhanyan, Escrow, Ambarachyan, or anyone else disclose that besides the 10% interest rate, the deal had over $24,000 in points in 1 year, nor that Penway was to receive the first 3 payments through Escrow. (Id., ¶131.) She alleges no one obtained her signature on the Closing Disclosures and that she did not receive the funds at any time after signing the loan with Penway. (Id., ¶¶132-133.) After she called the FBI on May 20, 2015 with fears that Penway was going to foreclose without giving her funds, Penway and Agakhanyan signed and forwarded a Full Reconveyance and Substitution of Trustee to Ms. Kakoian. (Id., ¶134.) Thereafter, Penway assigned the Promissory Note and Deed of Trust to Ambarachyan. (Id., ¶135.)

Agakhanyan argues that he was not a signatory to the contract, which is shown on the face of the contract attached to the TAXC. The Promissory Note attached to the TAXC shows that it was only entered between Penway and Ms. Kakoian. (TAXC, Exs. 3 and 6.) “If facts appearing in the exhibits [attached to the compliant] contradict those alleged, the facts in the exhibits take precedence.” (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

In an attempt to get around this issue, Ms. Kakoian alleges that Agakhanyan is entirely responsible for Penway’s actions against her because he registered as a one-manager operation for Penway and this alone is grounds for Agakhanyan to be properly named as a cross-defendant in the 3^rd cause of action. (TAXC, ¶¶126-127.) She relies on section 17707.06(d), which states:

(d) After cancellation of the limited liability company, the limited liability company is bound by both of the following:

(1) The act of a person authorized to wind up the affairs of the limited liability company, if the act is appropriate for winding up the activities of the limited liability company.

(2) The act of a person authorized to act on behalf of the limited liability company, if the act would have bound the limited liability company before cancellation, if the other party to the transaction did not have notice of the cancellation.

Agakhanyan argues that Ms. Kakoian’s allegations that he is now entirely responsible for Penway’s actions against Ms. Kakoian pursuant to the Corporations Code is misleading. He argues that he is only liable to the extent assets were distributed to him during Penway’s dissolution and that he is not entirely liable for Penway’s actions. Section 17707.07 states in relevant part:

(a)(1) Causes of action against a dissolved limited liability company, whether arising before or after the dissolution of the limited liability company, may be enforced against any of the following:

(A) Against the dissolved limited liability company to the extent of its undistributed assets, including, without limitation, any insurance assets held by the limited liability company that may be available to satisfy claims.

(B) If any of the assets of the dissolved limited liability company have been distributed to members, against members of the dissolved limited liability company to the extent of the limited liability company assets distributed to them upon dissolution of the limited liability company.

A review of the TAXC shows that Ms. Kakoian has not alleged facts that Agakhanyan was distributed any assets from Penway. (He also makes arguments based on extrinsic facts that Penway was under a receivership whereby the receiver sold the assets and, thereafter, Penway was no longer operating as a company; however, the Court cannot consider these extrinsic facts.) Further, to the extent that Ms. Kakoian relies on section 17707.06(d), this section states that Penway is bound by the actions of the person authorized to wind up the affairs or the person authorized to act on its behalf. The TAXC alleges that Agakhanyan incorporated Penway on April 27, 2012, Ms. Kakoian entered into the Promissory Note with Penway on February 4, 2015, and that Penway was terminated on August 15, 2019. The actions that Ms. Kakoian alleges against Penway in the breach of contract cause of action appear to have occurred prior to Penway’s cancellation in 2019, as Ms. Kakoian called the FBI on May 20, 2015 when she did not receive the loan proceeds and was in fear of losing her home to foreclosure based on the Penway loan.

At this time, it does not appear that Ms. Kakoian has alleged a valid basis for breach of contract against Agakhanyan. Thus, Agakhanyan’s demurrer to the 3^rd cause of action is sustained without leave to amend.

Penway demurs to the 3^rd cause of action for breach of contract of Ms. Kakoian’s TAXC, arguing that Ms. Kakoian alleged that she entered into a contract with Penway for a $355,000 loan and Penway funded and disbursed the loan, but argues that where the loan proceeds were sent are not a part of its business. It argues that it disbursed the funds to escrow and escrow handled the funds (i.e., to pay off a loan against her home and pay her property taxes, as opposed to disbursing the funds directly to Ms. Kakoian). Thus, Penway argues that it fulfilled its obligation under the contract by disbursing the funds and cannot be held liable for contract simply because Ms. Kakoian was not given the loan proceeds directly.

The allegations of the 3^rd cause of action are summarized above. Based on the allegations of the 3^rd cause of action, the nature of Penway’s breach of the Promissory Note is somewhat unclear. The TAXC appears to allege that the breach is based on Penway’s failure to disclose terms of the Promissory Note or obtain a Closing Disclosure signature, but Ms. Kakoian has not alleged facts showing that these were terms of the Promissory Note; rather, it appears that these allegations would better be suited as a sort of fraud claim. To the extent that Ms. Kakoian is alleging she did not obtain the loan proceeds directly, she too has not shown that these were terms of the Promissory Note. Rather, the Promissory Note agreement contains terms that the principal sum of the loan will be $355,000 and how Ms. Kakoian will be obligated to pay back the loan. There are no terms in the Promissory Note document stating that the funds be paid directly to her as opposed to being held in escrow.

As breach was not adequately pled against Penway and Ms. Kakoian has had multiple attempts to amend the pleadings, Penway’s demurrer to the 3^rd cause of action is sustained without leave to amend.

(d) An action for relief on the ground of fraud or mistake. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.

(CCP § 338(d).) Chukhyan argues that this section applies to the 1^st, 5^th, 6^th, and 8^th causes of action.

CCP § 339 states: “Within two years: 1. An action upon a contract, obligation or liability not founded upon an instrument of writing, except as provided in Section 2725 of the Commercial Code or subdivision 2 of Section 337 of this code; or an action founded upon a contract, obligation or liability, evidenced by a certificate, or abstract or guaranty of title of real property, or by a policy of title insurance; provided, that the cause of action upon a contract, obligation or liability evidenced by a certificate, or abstract or guaranty of title of real property or policy of title insurance shall not be deemed to have accrued until the discovery of the loss or damage suffered by the aggrieved party thereunder.” Chukhyan argues that this section applies to the 4^th cause of action.

CCP § 335.1 states: “Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” Chukhyan argues that this section applies to the 9^th cause of action.

Chukhyan demurs to the 1^st(fraud – misrepresentation), 4^th (intentional interference with contractual relations), 5^th (breach of fiduciary duty), 6^th (constructive fraud), 8^th (conversion) and 9^th (IIED) causes of action in Ms. Kakoian’s TAXC, arguing that they are each barred by the applicable statutes of limitation and, therefore, they each fail to state sufficient facts to constitute any cause of action against Chukhyan. Chukhyan argues that the 1^st, 5^th, 6^th, and 8^th causes of action is barred by CCP § 338; the 4^th cause of action is barred by CCP § 339(1); and the 9^th cause of action is barred by CCP § 335.1. Chukhyan argues that the statutes of limitation bar Ms. Kakoian’s claims because she reasonably knew of her claims against Chukhyan in February 2015 when she did not receive the loan proceeds and at least no later than May 20, 2015 when she contacted the FBI.

Chukhyan provides the following relevant dates based on the allegations of the TAXC:

The allegations of the TAXC allege facts that Ms. Kakoian was aware of the lack of funding on the three Loans because she had not received the funds as promised, and had even called the FBI on May 20, 2015 to file a complaint. Taking the latest date of May 20, 2015, the filing of the cross-complaint on November 16, 2018 would be untimely based on a 2-year and 3-year statutes of limitation periods.

From her prior SAXC allegations, Ms. Kakoian has amended her cross-complaint in an attempt to add allegations to show that she could not have discovered the facts of her injury sooner. Ms. Kakoian alleges that there were ongoing concealments and misrepresentations that prevented her from discovering the facts. (See TAXC, ¶¶72-73, 82-85.) Generally, a cause of action accrues at the time when the cause of action is complete with all its elements. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.) An exception to this general rule is the “discovery rule,” which postpones the accrual of a claim until the plaintiff discovers, or has reason to discover, the cause of action. (Id. at 807.) A plaintiff has reason to discover a cause of action when he has reason at least to suspect a factual basis for its elements (i.e., suspicion of one or more elements, coupled with knowledge of any remaining elements). (Id.) The plaintiff cannot merely wait for the necessary facts of a cause of action to find him or cannot merely sit on his rights, but he must go find them himself if he can and file suit if he does. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 398.) In order to invoke the delayed discovery rule, a plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts showing: (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence. (Fox, supra, 35 Cal.4th at 806.)

With respect to Loan #1, Ms. Kakoian alleges that she was told that the loan was fake, paper only loan and would merely help to boost her property so that she could sign for a real loan. In the TAXC, she also alleges that it was discovered on March 31, 2021 (from the Najarian declaration) that Loan #1 was not fake when discovery was made via subpoenas of KSR’s business bank records and on the lenders (the Najarians). (TAXC, ¶¶47-49.) However, Ms. Kakoian must have suspected something was amiss with her Loan #1, as she filed her cross-complaint in 2018, years before she obtained discovery on Loan #1 in 2021. Further, Ms. Kakoian was aware that there was foul play with respect to the loans she obtained as she eventually called the FBI in May 2015 to report fraudulent activity. However, she alleges facts that she did not obtain discovery until 2021 to discover the actual facts regarding the purportedly fake/paper only loan for Loan #1. Taking these allegations as true at the pleading stage, the causes of action based on Loan #1 may proceed.

With respect to Loan #2, the Court notes that the TAXC omits allegations that were previously alleged in the SAXC. For example, Ms. Kakoian had previously alleged that Chukhyan had informed Ms. Kakoian that she would receive proceeds in connection with Loan #2 within 48 hours. (SAXC, ¶44.) “[W]hen a complaint contains allegations that are fatal to a cause of action, a plaintiff cannot avoid those defects simply by filing an amended complaint that omits the problematic facts or pleads facts inconsistent with those alleged earlier. [Citations.] Absent an explanation for the inconsistency, a court will read the original defect into the amended complaint, rendering it vulnerable to demurrer again.” (Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th 1035, 1044.) As such, a plaintiff “cannot avoid a demurrer by filing an amended complaint that contradicts its earlier complaint.” (Id. at 1046.) Ms. Kakoian has not explained the omission of allegations in the TAXC and she argues in her opposition that no pertinent allegations were omitted from the current pleadings. In a prior demurrer, the Court has previously stated that based on the representation that Ms. Kakoian was supposed to receive the funds within 48 hours of signing and she had not received the funds even after 9 months of contacting Chukhyan (and over 5,000 texts), Ms. Kakoian should have discovered the facts or had reason to discover the facts supporting her causes of action in relation to Loan #2, such that it appeared unlikely that the delayed discovery rule could be applied to Loan #2. (5/27/22 Order.) These allegations were omitted without any explanation. As such, the TAXC with respect to the allegations regarding Loan #2 constitute sham pleading.

The allegations with respect to Loan #3 face the same issue with omitted allegations. In the SAXC, Ms. Kakoian had alleged she would receive funds within 48 hours of signing the loan documents on February 4, 2015, but she did not receive the loan proceeds, made numerous phone calls to Chukhyan for the funds, and called the FBI’s Fraud Division to report Chukhyan on May 20, 2015. (SAXC, ¶¶55, 57, 59.) Ms. Kakoian’s SAXC allegations would have indicated that she knew or had reasons to suspect of a factual basis for her claims in relation to Loan #3 when she did not receive funding 48 hours after signing or at least by the time she contacted the FBI. Similar to the discussion regarding Loan #2, Ms. Kakoian has not alleged sufficient facts to show that the delayed discovery rule applies, and the allegations constitute sham pleading as Ms. Kakoian has not explained why certain allegations were omitted from the TAXC.

In light of the dates alleged in the SAXC, Ms. Kakoian’s 1^st, 4^th, 5^th, 6^th, and 8^th causes of action are time-barred as to Loan #2 and Loan #3. In addition, there appears to be omitted allegations from the SAXC to the TAXC, such that the TAXC constitutes sham pleading. However, a demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal. App. 4th 1028, 1047.) As such, the demurrer to the 1^st, 4^th, 5^th, 6^th, and 8^th causes of action is overruled, subject to the limitations discussed above regarding Loan #1.

Finally, with respect to the 9^th cause of action, the Court notes again that certain allegations were omitted from the TAXC that were originally pled in the SAXC. For example, the SAXC alleged: “Beginning with the trauma of waiting for the proceeds of LOAN ONE, then LOAN Two, then LOAN three and continuing to present day … and being tormented with a cynical lawsuit for years, KAKOIAN barely sleeps….” (SAXC, ¶158 [underline added], compare TAXC, ¶201.) Thus, taking the allegations as true, Ms. Kakoian suffered from her severe emotional distress starting from her “trauma” of waiting for the proceeds of Loan #1 beginning January 2014, Loan #2 beginning March 2014, and Loan #3 beginning February 2015. The action would be time barred based on her prior allegations. However, Ms. Kakoian has since removed these allegations without any explanation in her TAXC or in her opposition. Thus, the allegations of the 9^th cause of action constitute sham pleading. The demurrer to the 9^th cause of action is sustained. As Ms. Kakoian has had multiple attempts to amend the pleading, the demurrer to the 9^th cause of action is sustained without leave to amend.

Nazaryan demurs to the 5^th and 9^th causes of action alleged of Ms. Kakoian’s TAXC for breach of fiduciary duty and IIED.

Nazaryan demurs to the 5^th cause of action, arguing that Nazaryan’s duty to Ms. Kakoian did not extend beyond notarizing the Penway loan documents and the cause of action is barred by the 3-year statute of limitations.

In the 5^th cause of action, Ms. Kakoian alleges that Nazaryan owed her a fiduciary duty as a notary. (TAXC, ¶161.) She alleges that Nazaryan used her status as a fiduciary on April 29, 2015, when she notarized and stamped an amended Deed of Trust for Loan #3, which substituted Penway as the beneficiary. (Id.) Ms. Kakoian alleges that Nazaryan’s notary declaration stated that Ms. Kakoian appeared before her on April 29, 2015, when Ms. Kakoian had in fact not appeared in front of her and she had clearly expressed she wanted the loan removed from her property. (Id.)

Nazaryan argues that she only met Ms. Kakoian once to notarize documents, had called the escrow company upon hearing Ms. Kakoian’s hesitation, denies notarizing the alleged forged document, etc. (Dem. at pp.2-3.) Nazaryan essentially provides arguments and facts disputing her liability or that she owed Ms. Kakoian a duty, but these arguments are outside the allegations of the TAXC. The demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint. (Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499.) As such, the demurrer will be overruled on this basis.

Nazaryan also demurs to the 5^th cause of action on the ground that it is barred by the statute of limitations pursuant to CCP § 338. The signing occurred on April 29, 2015. Nazaryan also argues that Ms. Kakoian contacted the FBI on May 20, 2015, which was when she should have known about her claims. The complaint in this action was filed on May 17, 2018. Ms. Kakoian filed her initial cross-complaint on November 16, 2018.

“The statute of limitations for breach of fiduciary duty is three years or four years, depending on whether the breach is fraudulent or nonfraudulent.” (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1479; see CCP § 343 [4 years under the catch-all provision]; CCP § 338 [3 years for fraud].) CCP § 338(f) states:

(1) An action against a notary public on the notary public's bond or in the notary public's official capacity except that a cause of action based on malfeasance or misfeasance is not deemed to have accrued until discovery, by the aggrieved party or the aggrieved party's agent, of the facts constituting the cause of action.

(2) Notwithstanding paragraph (1), an action based on malfeasance or misfeasance shall be commenced within one year from discovery, by the aggrieved party or the aggrieved party's agent, of the facts constituting the cause of action or within three years from the performance of the notarial act giving rise to the action, whichever is later.

(3) Notwithstanding paragraph (1), an action against a notary public on the notary public's bond or in the notary public's official capacity shall be commenced within six years.

Here, the alleged wrongful act (whether forgery, misrepresentation in the declaration, or otherwise) regarding Loan #3 allegedly occurred on April 18, 2015. Ms. Kakoian appears to have been aware of the facts and injury in connection with Loan #3 when she called the FBI on May 20, 2015. (Further, as discussed above regarding Chukhyan’s demurrer, there appears to have been omissions of certain allegations with respect to Loan #3 which would constitute sham pleading.) Applying a 3-year statute of limitations period, this cause of action would be time-barred. Ms. Kakoian has not alleged facts in the TAXC showing that the delayed discovery rule would apply with respect to her allegations against Nazaryan.

The demurrer to the 5^th cause of action is sustained. As Ms. Kakoian has had multiple attempts to amend the pleading, the demurrer to the 5^th cause of action is sustained without leave to amend.

Nazaryan demurs to the 9^th cause of action, arguing that notarizing a document is not an outrageous action that is extreme and exceeds the bounds usually tolerated in a civilized community and that the 2-year statute of limitation bars this claim.

In the 9^th cause of action, Ms. Kakoian alleges that Nazarian’s actions of stamping and notarizing a document which was later recorded with the County Recorder and which stated that Ms. Kakoian had appeared in front of her and acknowledged the document when she had not been present, was an extreme and outrageous act. (TAXC, ¶196.)

Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) In addition, the outrageous conduct must be of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. (Id.) In order to avoid a demurrer, the plaintiff must allege with great specificity, the acts which she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Vasquez v. Franklin Mgmt. Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.)

Here, the allegations of the TAXC do not rise to the level of showing that undertaking this notarizing duty was so extreme or outrageous. The allegations lack the specificity showing that Nazaryan’s actions were extreme and outrageous. Moreover, Ms. Kakoian admits in her allegations that she was not present when Nazaryan notarized the document. (Christensen, supra, 54 Cal.3d at 903 [“It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.”].) She has further not alleged that Nazaryan’s actions were specifically directed against her in order to cause her emotional distress. In order to avoid a demurrer, the plaintiff must allege with great specificity, the acts which she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Vasquez v. Franklin Mgmt. Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) This has not been done.

Further, as discussed above, the Court similarly finds here that the 9^th cause of action is time-barred pursuant to CCP § 335.1’s 2-year statute of limitations and that the allegations with respect to Loan #3 constitute sham pleading.

Thus, Nazaryan’s demurrer to the 9^th cause of action is sustained without leave to amend.

Kiane Shabazian[1] demurs to the 1^st, 4^th, 5^th, 6^th, 8^th, and 9^th causes of action in the TAXC. Similar to Chukhyan’s demurrer, Shabazian demurs to the same causes of action on the grounds that they are barred by the statute of limitations and that they fail to allege sufficient facts.

For the reasons discussed above regarding the statute of limitations regarding Chukhyan’s demurrer, the Court overrules Shabazian’s demurrer to the 1^st, 4^th, 5^th, 6^th, and 8^th causes of action.

Shabazian also demurs to these causes of action on the grounds that they fail to state sufficient facts.

Shabazian argues that the 1^st and 6^th causes of action for fraud and constructive fraud are not specifically pled against Shabazian because Ms. Kakoian has not plead facts regarding when, where, how, by what means, etc. Shabazian made misrepresentations to Ms. Kakoian. The allegations of these causes of action are indeed not pled with the requisite particularity against Shabazian. While the 1^st cause of action alleges that Chukhyan, KSR, Badeer, Shabazian, and Plavjian made representations to Ms. Kakoian about the loans, specifics about how the representations were made are not provided. (See TAXC, ¶¶93-96.) Similarly, the 6^th cause of action alleges Shabazian (among other cross-defendants) used his position as a fiduciary to make misrepresentations to Ms. Kakoian about the loans. (Id., ¶¶172-174.) The 1^st and 6^th causes of action are not pled with the requisite specificity for each of the elements of fraud. Thus, the demurrer to the 1^st and 6^th causes of action is sustained.

In the 4^th cause of action for intentional interference with contractual relations, Ms. Kakoian alleges that Shabazian and others told Ms. Kakoian that Loan #1 was a paper only loan (TAXC, ¶138), but no further allegations are made against Shabazian in connection with this cause of action, such as what independently wrongful act Shabazian engaged in to intentionally interfere with contractual relations. The demurrer to the 4^th cause of action is sustained.

Shabazian argues that the 5^th cause of action for breach of fiduciary duty also lacks specificity about what duty Shabazian owed Ms. Kakoian. Shabazian is alleged to be the secretary, CFO, and director of KSR, as well as a licensed broker with the Department of Real Estate. (TAXC, ¶13.) It is unclear what duty Shabazian owed to Ms. Kakoian in her capacity as an agent for KSR or as a licensed broker with the DRE. The facts of the breach of fiduciary duty cause of action are conclusory in that they allege in a blanket statement that Chukhyan, Ambarahcyan, Narkaz, Nazarian, Escrow, NP, KSR, Shabzian, Badeer, and Plavjian owed Ms. Kakoian a fiduciary duty imposed by law on real estate brokers, agents, notaries, and escrows. (TAXC, ¶152.) The demurrer to the 5^th cause of action is sustained.

The 9^th cause of action for IIED, though alleged against Shabazian, does not include any allegations against Shabazian or what conduct is considered outrageous. The IIED cause of action generally alleges that “Cross-Defendants” engaged in action against Ms. Kakoian regarding Loans #1-#3, but no specific actions by Shabazian are alleged in this cause of action. The demurrer to the 9^th cause of action is sustained.

Shabazian’s demurrer to the 1^st, 4^th, 5^th, 6^th, and 9^th causes of action is sustained without leave to amend as Ms. Kakoian has had multiple opportunities to amend the pleading. The demurrer to the 8^th cause of action is overruled.

NP demurs to the 2^nd (fraud/concealment), 5^th (breach of fiduciary duty), and 6^th (constructive fraud) causes of action in the TAXC.

NP demurs to the 2^nd cause of action for fraudulent concealment, arguing that Ms. Kakoian has not and cannot allege that she would have behaved differently had she known about the omitted information that the proceeds of Loan #3 had been used to pay off Loan #2. NP argues that this defect cannot be cured because the rate of Loan #3 at 10% was significantly less than the 120% interest rate she was borrowing money from friends and family, such that Ms. Kakoian had no other reasonable options. (Dem. at pp.3-4.) The Court will overrule the demurrer to the 2^nd cause of action based on this argument as it inserts extrinsic arguments and includes factual arguments about the reasonableness of Ms. Kakoian’s actions. At most, the TAXC alleges that Ms. Kakoian accumulated personal loans from family and friends, but no further details regarding the loans are provided. (TAXC, ¶56.) This is not at issue at the demurrer stage.

NP demurs to the 5^th cause of action for breach of fiduciary duty, arguing that the TAXC does not allege upon what basis NP owed Ms. Kakoian a fiduciary duty. Ms. Kakoian generally alleges that Chukhyan, Ambarachyan, Narkas, Nazarian, Escrow, KSR, Shabazian, Badeer, and Plavjian owed Ms. Kakoian a fiduciary duty as real estate brokers, agents, notaries, and escrow. (TAXC, ¶152.) In the demurrer papers, NP argues that it anticipates Ms. Kakoian will amend the TAXC to allege that NP acted as an escrow, and argues the reasons why it cannot be liable as an escrow agent. In paragraph 4 of the TAXC, Ms. Kakoian alleges that NP is a real estate brokerage that uses the fictitious business name of Escrow on Brand, which handled the escrow for the Penway transaction. (TAXC, ¶4.) Based on the allegations of the TAXC, it is unclear whether NP is being used as a real estate broker or as an escrow agent/holder. This defect has appeared in the pleadings in prior iterations of the cross-complaint and Ms. Kakoian was put on notice of this issue from NP’s prior demurrer to the SAXC as well. The Court will sustain the demurrer to the 5^th cause of action without leave to amend as Ms. Kakoian has had multiple opportunities to amend the pleading.

NP demurs to the 6^th cause of action for constructive fraud, arguing that Ms. Kakoian has not explained how she was harmed by her apparent lack of knowledge about NP’s use of Loan #3’s funds to pay off Loan #2. (Dem. at p.5.) Kakoian alleges in the 6^th cause of action that NP (and others) had represented to her that Loan #3 had a delay in funding, when in fact the funds were used to pay off Loan #2. (TAXC, ¶174.) She alleges that NP (and others) had no reasonable ground for believing the representations were true when they made it because Loan #2 had not failed, there were actual funds, and the funds were wired to pay off Loan #1 and Loan #3’s funds were used to pay off Loan #2. (Id., ¶175.) She alleges that Cross-Defendants intended for her to rely on the representations. (Id., ¶176.) At most, Ms. Kakoian alleges that she wanted to cancel Loan #3 and had she known that Loan #3 would have been used to pay off Loan #2, she would have immediately gone to court and called authorities. (Id., ¶174.) It is unclear what damage Ms. Kakoian suffered as a result of NP’s representation that Loan #3 was delayed. (The allegations of the 6^th cause of action that are specifically alleged against NP are in relation to Loan #3. In contrast, Ms. Kakoian alleges that due to delays in funding Loan #2, she obtained personal loans. She has not alleged what damages she suffered with respect to Loan #3 based on NP’s actions.) Thus, the demurrer to the 6^th cause of action is sustained.

Lastly, NP argues that the 2^nd, 5^th, and 6^th causes of action are barred by the statute of limitations. CCP § 338(d) provides for a 3-year statute of limitations for fraud causes of action. As discussed above, the Court finds that the 2^nd, 5^th, and 6^th causes of action are time-barred. (As noted above, NP appears to have been involved with Ms. Kakoian in connection with the time period involving Loan #3.) Thus, the demurrer to the 2^nd, 5^th, and 6^th causes of action is sustained with leave to amend.

Ambarachyan demurs to the 2^nd, 4^th, 5^th, 6^th, 7^th, 8^th, and 9^th causes of action in the TAXC.

Ambarachyan argues that the 2^nd, 4^th, 5^th, 6^th, and 9^th causes of action are barred by the applicable statute of limitations and she has not alleged sufficient facts regarding the delayed discovery rule. In opposition, Ms. Kakoian argues that the relation back doctrine applies.

With respect to the relation back doctrine, Ms. Kakoian relies on ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69, arguing that the cross-complaint relates back to the time of the filing of Plaintiff Ambarachyan’s complaint on May 17, 2018. In ZF Micro, there were a series of three cases: (1) the NSC lawsuit filed on April 25, 2002 by ZF Solutions against NSC; (2) the TAT lawsuit filed on February 14, 2005 by ZF Devices investors (including TAT) against ZF Solutions, where the court granted ZF’s motion for leave to file a cross-complaint against TAT (filed March 18, 2009), but later the court had granted TAT’s motion to sever ZF’s cross-complaint and consolidated it with the third lawsuit; and (3) the ZF Lawsuit filed on February 17, 2009 by the ZF Entities against TAT’s representative, which included a separately filed cross-complaint by ZF (originally filed in the TAT Lawsuit and consolidated with the ZF Lawsuit). On appeal, the Court of Appeal was faced with determining whether the tolling doctrine applied to ZF’s cross-complaint. The appellate court stated that if tolling applied, then the cross-complaint would be deemed filed when TAT filed its complaint on February 14, 2005 (2^nd/TAT lawsuit), and the cross-complaint would have timely been asserted less than 4 years after claim arose on February 28, 2002 (when harm to ZF Devices occurred). Relying on the Supreme Court, the appellate court found: “the Supreme Court characterized the tolling doctrine as embracing all cross-claims by a defendant against the plaintiff, regardless of their relatedness to the claims asserted in the complaint.” (ZF Micro Devices, Inc., supra, 5 Cal.App.5th at 91.)

As stated by the appellate court in Sidney v. Superior Court (1988) 198 Cal.App.3d 710:

The Trindade court pointed out: “It has consistently been held that the commencement of an action tolls the statute of limitations as to a defendant's then unbarred cause of action against the plaintiff” related to the accident or occurrence upon which the action is brought. [Citation.]

We are satisfied that the same “relation back” standard applies for an amended cross-complaint as for an initial cross-complaint. …

… “ ‘The statute is a bar to the defendant's affirmative claim only if the period has already run when the complaint is filed. The filing of the complaint suspends the statute during the pendency of the action, and the defendant may set up his cross claim by appropriate pleading at any time.’ [Citation].” (Trindade v. Superior Court, supra, 29 Cal.App.3d at p. 860, 106 Cal.Rptr. 28; see also 3 Witkin, Cal.Proc.3d (1985) § 322 p. 353.) Early California cases show that the principle is well established that as long as a defendant's claim existed at the commencement of the action, the statute remains suspended throughout the action. (See e.g. McDougald v. Hulet (1901) 132 Cal. 154, 160–161, 64 P. 278.)

Here, taking the latest date of May 20, 2015 (i.e., the date Ms. Kakoian called the FBI), her cross-claims against Ambarachyan are timely. Ambarachyan commenced this action on May 17, 2018, which was within 3 years of the May 20, 2015 date. Although Ms. Kakoian filed her initial cross-complaint on November 16, 2018 (over 3 years from the May 20, 2015 date), the action was tolled as to the 2^nd cause of action for fraudulent misrepresentation. 5^th cause of action for breach of fiduciary duty, 6^th cause of action for constructive fraud, and 8^th cause of action for conversion (CCP § 338’s 3-year statute of limitations periods) because of the relation back doctrine to when Ambarachyan filed his action against Ms. Kakoian. The demurrer to the 2^nd, 5^th, 6^th, and 8^th causes of action on the basis that they are barred by the statute of limitations is overruled.

However, the relation back doctrine would not aid Ms. Kakoian with respect to her 4^th cause of action for intentional interference with contractual relations and 9^th cause of action for IIED. (The Court notes that Ambarachyan does not discuss the statute of limitations with respect to the 7^th cause of action for breach of statutory duty). The 4^th and 9^th causes of action have 2-year statute of limitations periods pursuant to CCP §§ 339 and 335.1, respectively. As such, the statute of limitations periods would have already elapsed and expired before Ambarachyan filed his complaint against Ms. Kakoian, such that the relation back doctrine would not apply. Further, as discussed above in the Court’s analysis in the other demurrers, the 4^th and 9^th causes of action are barred by the statute of limitations. As such, the demurrer to the 4^th and 9^th causes of action is sustained.

Ambarachyan argues that the 4^th cause of action fails because Ms. Kakoian has not alleged that Ambarachyan interfered with any enforceable contract that Ms. Kakoian had. He also argues that he was Penway’s assignee, which has been extinguished by a full reconveyance by Penway.

In the 4^th cause of action, Ms. Kakoian alleges that she went about her life believing that Loan #2 and Loan #3 had not been funded, until Ambarachyan sued Ms. Kakoian for repayment of Loan #3 as the assignee of lender Penway. (TAXC, ¶145.) “The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (Pac Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.) “Where there is no existing, enforceable contract, only a claim for interference with prospective advantage may be pleaded.” (PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 601, disapproved on other grounds by Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134.) Ms. Kakoian has not alleged the basic elements of this cause of action against Ambarachyan, such as what enforceable contract was at issue that Ambarachyan interfered with or how his becoming an assignee of Penway constituted an intentional interference with contractual relations. This is another ground to sustain the demurrer to the 4^th cause of action.

The 6^th cause of action is for constructive fraud, but Ambarachyan discusses constructive trusts. (Dem. at p.11.) As such, the demurrer to the 6^th cause of action is overruled on this basis.

The 7^th cause of action is for breach of statutory duty (Bus. & Profs. Code, § 10177(h)). Section 10177(h) states:

The commissioner may suspend or revoke the license of a real estate licensee, delay the renewal of a license of a real estate licensee, or deny the issuance of a license to an applicant, who has done any of the following, or may suspend or revoke the license of a corporation, delay the renewal of a license of a corporation, or deny the issuance of a license to a corporation, if an officer, director, or person owning or controlling 10 percent or more of the corporation's stock has done any of the following:

(h) As a broker licensee, failed to exercise reasonable supervision over the activities of that licensee's salespersons, or, as the officer designated by a corporate broker licensee, failed to exercise reasonable supervision and control of the activities of the corporation for which a real estate license is required.

(Bus. & Prof. Code, § 10177(h).) Ms. Kakoian has not shown that section 10177 provides for a private right of action. Rather, section 10177 states that the commissioner may suspend or revoke a real estate license. As such, the demurrer to the 7^th cause of action does not appear to a proper and valid cause of action. The demurrer to the 7^th cause of action is sustained without leave to amend.

In the 8^th cause of action, Ms. Kakoian alleges that Cross-Defendants wrongfully exercised control over Loan #1’s funds because they took possession of Loan #1’s funds and deposited it into KSR’s bank account at US Bank. (TAXC, ¶¶185-187.) To allege a viable conversion claim, Ms. Kakoian must allege that Ambarachyan converted Ms. Kakoian’s property by a wrongful act or disposition that interfered with her possession. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.) While Ms. Kakoian generally alleges that Cross-Defendants interfered with her Loan #1 funds, she does not allege Ambarachyan’s involvement with the loans until Loan #3 when he acted as the broker to the Penway Loan (and then later as Penway’s assignee). (TAXC, ¶62.) As such, it does not appear that this cause of action is properly directed against Ambarachyan. The demurrer to the 8^th cause of action is sustained without leave to amend.

The 9^th cause of action alleges that on June 1, 2020, Ms. Kakoian discovered that Loan #3 was not a cancelled loan contrary to what she had falsely been told by Narkaz (who was working for Ambarachyan at Escrow) and learned that reconveyance was not the same thing as a loan cancellation. (TAXC, ¶199(c).) Ms. Kakoian alleges that Ambarachyan’s actions caused her to suffer emotional distress. (Id., ¶201.) These are the only allegations in the 9^th cause of action that specifically address Ambarachyan. The allegations fail to allege any intentional acts that Ambarachyan committed that would rise to the level of extreme and outrageous conduct. It does not appear that the cause of action is properly directed against Ambarachyan. The demurrer to the 9^th cause of action is sustained without leave to amend.

Ms. Kakoian moves for attorney’s fees against Ambarchyan pursuant to the contractual provision in the loan agreement between Ms. Kakoian and Penway in the amount of $524,423, and an enhancement of 100% so that she seeks a total of $1,048,846 in attorney’s fees for her attorneys’ great risk in taking this case, the difficulty in defending the case, and the preclusion of other employment.

Civil Code § 1717 states that a party may recover attorney’s fees when the party prevails in an action based on a contract that provides for the prevailing party to recover attorney’s fees. The court, upon notice and motion by a party, shall determine who is the prevailing party on the contract for purposes of section 1717, whether or not the suit proceeds to final judgment. (Civ. Code, § 1717(b)(1).)

“To ensure mutuality of remedy … it has been consistently held that when a party litigant prevails in an action on a contract by establishing that the contract is invalid, inapplicable, unenforceable, or nonexistent, section 1717 permits that party's recovery of attorney fees whenever the opposing parties would have been entitled to attorney fees under the contract had they prevailed.” (Santisas v. Goodin (1998) 17 Cal.4th 599, 611.)

The trial court has broad authority to determine the amount of a reasonable fee. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The award of attorney fees under section 1717 is governed by equitable principles. (Id.) The experienced trial judge is the best judge of the value of professional services rendered and the trial judge’s decision will not be disturbed unless the appellate court is convinced that it is clearly wrong, i.e., that it abused its discretion. (Id.)

Ms. Kakoian seeks attorney’s fees pursuant to Paragraph 1.14 of the Promissory Note dated February 6, 2015 that was entered between M.s Kakoian and Penway. (Mot., Ex. A.) Paragraph 1.14 states:

Enforcement Fees and Costs. Borrower [Ms. Kakoian] shall immediately reimburse Holder [Penway LLC and/or its transferees or assigns] for all fees and costs, including reasonable attorneys’ fees and experts’ fees and costs, incurred by Holder for: (a) enforcement of this Note or any of its terms, or the exercise of any rights or remedies hereunder and/or at law, in equity or otherwise, whether or not any action or proceeding is filed; (b) representation of Holder in any bankruptcy, insolvency, reorganization or other debtor-relief or similar proceeding of or relating to Borrower or Borrower’s transferees or assigns, to any person liable (by way of guaranty, assumption, endorsement or otherwise) upon any of the obligations of this Note, or to the Property; or (c) representation of Holder in any action or proceeding relating to the Property, whether commenced by Holder or any other person, including foreclosure, receivership, lien or stop-notice enforcement, bankruptcy, eminent domain and probate actions or proceedings. All such fees and costs shall bear interest until paid at the rate applicable from time to time under this Note,

In the 4AC (filed on March 17, 2020), the 1^st (fraud and conspiracy), 2^nd (negligent misrepresentation), 3^rd (breach of contract), and 4^th (equitable lien) causes of action were alleged against Ms. Kakoian. In the 4AC, Ambarachyan alleges that the Court sustained a demurrer without leave to amend as to the 1^st, 4^th, and 9^th causes of action. On March 15, 2021, the Court granted Ms. Kakoian’s motion for judgment on the pleadings without leave to amend as to the 3^rd cause of action in the 4AC, finding that Ambarachyan had not alleged sufficient facts to support a breach of contract cause of action against Ms. Kakoian despite providing Ambarachyan multiple opportunities to amend the complaint. On April 22, 2022, the Court granted Ms. Kakoian’s motion for judgment on the pleadings without leave to amend as to the 2^nd cause of action in the 4AC. Ms. Kakoian argues that she was successful against Ambarachyan’s breach of contract claim and caused the dismissal of the 3^rd cause of action, which entitles her to attorney’s fees.

In opposition, Ambarachyan argues that Ms. Kakoian’s motion is premature because no judgment has been entered, her operative cross-complaint is still pending against Ambarachyan, and she has not yet been adjudicated the prevailing party in the entire action.[2] Ms. Kakoian appears to acknowledge that no judgment has been filed in this case, but she argues that CRC Rule 3.1702 allows her to bring a motion prior to judgment. She cites to Rule 3.1702(a) and (b)(1):

Except as otherwise provided by statute, this rule applies in civil cases to claims for statutory attorney's fees and claims for attorney's fees provided for in a contract. Subdivisions (b) and (c) apply when the court determines entitlement to the fees, the amount of the fees, or both, whether the court makes that determination because the statute or contract refers to “reasonable” fees, because it requires a determination of the prevailing party, or for other reasons.

A notice of motion to claim attorney's fees for services up to and including the rendition of judgment in the trial court--including attorney's fees on an appeal before the rendition of judgment in the trial court--must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case or under rules 8.822 and 8.823 in a limited civil case.

However, although Rule 3.1702(b) is entitled “Attorney’s fees before trial court judgment,” this does not mean that attorney’s fees can be sought prior to judgment. Rather, Rule 3.1702 explains that a party may recover prejudgment attorney’s fees—i.e., “for services up to an including the rendition of judgment in the trial court” (CRC Rule 3.1702(b) [emphasis added].) However, judgment must first be entered to seek prejudgment attorney’s fees. While not completely on point factually, the Court of Appeal in Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454 stated in relevant part:

Rule 3.1702(b)(1) prescribes time limits for filing a “notice of motion to claim attorney's fees for services up to and including the rendition of judgment in the trial court.” (Italics added.) The term “rendition of judgment” has a particular meaning. In the context of a court trial, it means the signing and filing of the court's findings, conclusions, and final judgment in a case. (See Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 152, 178 Cal.Rptr. 642; 8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment, § 56, p. 560.) The language preceding the term “rendition of judgment,” as used in rule 3.1702, is worded in the conjunctive, encompassing claims for attorney fees “for services up to and including the rendition of judgment.” (Rule 3.1702(b)(1), italics & bold added.) The language of the rule thus applies only to a motion to recover all prejudgment attorney fees incurred in an action, and contemplates the filing of such a motion at the conclusion of the lawsuit.

We agree with the court in Crespin that interpreting rule 3.1702 to require litigants to apply for attorney fees incurred in connection with a prejudgment appealable order within 60 or 180 days after entry of the order would be inconsistent with the language of the rule and its underlying policy.

The Judicial Council's 1992 request for comments indicates the drafters' intent to set an outer time limit after judgment within which statutory attorney fee claims could be made. In that document, the Judicial Council states that the proposed amendments would “eliminate any possible implication that an attorney fee claim could be presented in an unlimited time after entry of judgment or issuance of a remittitur on appeal.” (Jud. Council of Cal., Admin. Off. of Cts. Request for Comment: Specifying Time to Claim Attorney Fees by Rule (1992), italics added.)

Applying these principles to the instant case, we hold that the time limits imposed by rules 3.1702 and 8.104 for filing a motion for attorney fees under section 425.16, subdivision (c) do not commence to run until entry of judgment at the conclusion of the litigation.

(Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 464, 466, 467, 468.) While Carpenter involved fees sought pursuant to CCP § 425.16, the Court of Appeal’s discussion regarding the application of Rule 3.1702 is still instructive.

At this time, the Court finds that the motion for attorney’s fees is premature. As such, the Court denies the motion without prejudice. Following entry of judgment in this matter, Ms. Kakoian may re-file the motion for attorney’s fees.

Cross-Defendant Sevak Agakhanyan’s demurrer to the 3^rd causes of action to Cross-Complainant Mariam Kakoian’s Third Amended Cross-Complaint is sustained without leave to amend.

Cross-Defendant Penway, LLC’s demurrer to the 3^rd causes of action to Cross-Complainant Mariam Kakoian’s Third Amended Cross-Complaint is sustained without leave to amend.

Cross-Defendant Sona Chukhyan’s demurrer to the 1^st, 4^th, 5^th, 6^th, and 8^th causes of action to Cross-Complainant Mariam Kakoian’s Third Amended Cross-Complaint is overruled, subject to the limitations stated in the Court’s order. The demurrer to the 9^th cause of action is sustained without leave to amend.

Cross-Defendant Arpi Nazaryan’s demurrer to the 5^th and 9^th causes of action to Cross-Complainant Mariam Kakoian’s Third Amended Cross-Complaint is sustained without leave to amend.

Cross-Defendant Kiane Shabazian’s demurrer to the 1^st, 4^th, 5^th, 6^th, and 9^th causes of action to Cross-Complainant Mariam Kakoian’s Third Amended Cross-Complaint without leave to amend. The demurer to the 8^th cause of action is overruled.

Cross-Defendant National Properties, Inc.’s demurrer to the 2^nd, 5^th, and 6^th causes of action in Cross-Complainant Mariam Kakoian’s Third Amended Cross-Complaint is sustained with leave to amend.

Cross-Defendant Arthur Ambarachyan’s demurrer to the 4^th, 7^th, 8^th, and 9^th causes of action in Cross-Complainant Mariam Kakoian’s Third Amended Cross-Complaint is sustained without leave to amend. The demurrer to the 2^nd, 5^th, and 6^th causes of action is overruled.

Defendant/Cross-Complainant Mariam Kakoian’s motion for attorney’s fees is denied without prejudice.

[1] The Court notes that Shabazian’s reply brief states that it has been filed by Shabazian, Plavjian, and Badeer, but the notice of the demurrer and accompanying memorandum of points and authorities only named Shabazian as the demurring party. As such, the Court will consider the reply brief to be filed solely by Shabazian, as Plavjian and Badeer were not named demurring parties.

[2] Ambarachyan also argues that Ms. Kakoian has not identified any contract, statute, or law that would entitle her to fees for the “fraudulent transfer causes of action.” (Opp. at p.4.) However, Ms. Kakoian is not seeking fees in connection with a fraudulent transfer cause of action, but instead in connection with a breach of contract cause of action.