Judge: Kevin C. Brazile, Case: 21STCV14676, Date: 2023-05-04 Tentative Ruling

Hearing Date: May 4, 2023

Case Name: Rafiee v. Dangoor, et al.

Case No.: 20STCV43794

Matter: Demurrer

Moving Party: Golcheh Family Trust Dated August 3, 2016, Morad Golcheh, and Nahid

Golcheh

Responding Party: Plaintiff Rafi Rafiee 

Notice: OK

Tentative Ruling: The Demurrer of the Trust is sustained.  Leave to amend (to add 

another party) is granted as to the first through third causes of action.  Leave to amend is otherwise denied.

The Demurrer of Morad Golcheh and Nahid Golcheh is sustained as to the fourth through eighth causes of action, but is otherwise overruled.  Leave to amend is denied.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On October 15, 2021, Plaintiff Rafie Rafiee filed the Second Amended Complaint (“SAC”) against Defendants Daniel Dangoor, Iman Eshaghyan, Mina Eshaghyan, Re Broker Group, Inc., Re eBroker Group Inc., Coldwell Banker Realty, Golcheh Family Trust Dated August 3, 2016 (“Trust”), Morad Golcheh, and Nahid Golcheh for (1) intentional misrepresentation, (2) negligent misrepresentation, (3) unjust enrichment, (4) conversion, (5) violation of the UCL, (6) breach of contract, (7) breach of implied contract, and (8) violation of Penal Code § 496.  Plaintiff alleges that when he purchased certain real property, Defendants promised to pay for and provide certain furniture, which Plaintiff never received.  Plaintiff also alleges that Defendants promised that Plaintiff could have his cabinets stained for only $2,000 when they knew or should have known the real cost was about $10,000.  

Defendants Trust, Morad Golcheh, and Nahid Golcheh demur to the SAC for misjoinder and failure to state sufficient facts.

When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)  “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. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.)  It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.”  (Aubry v. Tri-City Hospital Dist.¿(1992) 2 Cal.4th 962, 967.)

1. Misjoinder

Defendants first argue that they should not be parties to the SAC because leave to amend was not granted to add them to this suit.

However, in setting aside Defendants’ defaults, the Court ordered that Defendants file an answer to the SAC. 

Defendants next argue that the Trust is not itself a proper party.

This is true.  “Unlike a corporation, a trust is not a legal entity. Legal title to property owned by a trust is held by the trustee.... A ... trust ... is simply a collection of assets and liabilities. As such, it has no capacity to sue or be sued, or to defend an action. (Stoltenberg v. Newman (2009) 179 Cal.App.4th 287, 293, 101 Cal.Rptr.3d 606.) [T]he proper procedure for one who wishes to ensure that trust property will be available to satisfy a judgment ... [is to] sue the trustee in his or her representative capacity.”  (Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 522 (internal quotes omitted).)

Thus, the Demurrer is sustained as to all claims asserted against the Trust.  The Court grants leave to amend so as to add a different party only to the extent indicated below.  

2. Breach of Contract & Breach of Implied Contract

The contract claims relate to the failure to provide furniture and money for cabinets.

The Court takes judicial notice of the initial Complaint in which the parties’ contract was attached.  Therein, it is stated, “ 1. Furniture at showing or equivalent to be included by Listing Agents, not Seller, 2. Kitchen cabinets to be stained white or cream, Listing Agents will pay up to $2,000.”  (RJN, Exhibit A.)  That is, the moving Defendants, who are sellers, had no contractual obligation to deliver furniture or stain cabinets.  This was the duty of the listing agents.  

Plaintiff argues that moving Defendants are liable for their agents’ promises, but the listing agents made promises on their own behalf.

Further, “[t]here cannot be a valid, express contract and an implied contract, each embracing the same subject matter, existing at the same time.”  (WalNoon Corp. v. Hill (1975) 45 Cal.App. 605, 613.) 

Thus, the Demurrer is sustained as to the contract claims, without leave to amend.

3. Conversion & Pen. Code § 496

The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages.  (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066.)  

Pen. Code § 496(c) allows for treble damages when there is a violation of subsection (a), which provides in relevant part, “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.”

In its September 21, 2021, demurrer order, the Court found the above claims to be deficient because there was no allegation that Plaintiff had a possessory or title right to furniture.  The same analysis applies here for the sellers.  Therefore, the Demurrer is sustained as to the fourth and eighth causes of action, without leave to amend.

4. UCL

In its September 2021 demurrer order, the Court ruled, “a UCL claim requires an alleged pattern of ongoing wrongful conduct or unlawful conduct. (Hewlett v. Squaw Valely Ski Corp. (1997) 54 Cal.App.4th 499, 519.) ‘[T]he “practice” requirement envisions something more than a single transaction ...; it contemplates a “pattern of conduct” [citation], “on-going ... conduct” [citation], “a pattern of behavior” [citation], or “a course of conduct.”’ (Id.) . . . . [T]he FAC centers on Plaintiff’s purchase of the Property and collateral promises allegedly made by Dangoor, Iman and Mina to induce Plaintiff to enter into the contract. The Court fails to see how the alleged cluster of promises in connection with ‘a single transaction’ constitutes a pattern of unfair or fraudulent business conduct within the meaning of the UCL.”

The same analysis applies for the sellers.  Therefore, the Demurrer is sustained as to the UCL claim, without leave to amend.

5. Fraud & Negligent Misrepresentation

In its September 2021 ruling, the Court found that the fraud and negligent misrepresentation claims were sufficiently pled against the listing agent, Defendant Dangoor.  

These claims would also seem to be sufficient against the moving Defendants based on a conspiracy theory.  (See SAC ¶ 14.)  Indeed, a conspiracy is “easy to allege . . . .” (Choate v. County of Orange (2000) 86 Cal.App.4th 312, 333.)  Overt and independently tortious conduct in furtherance of the conspiracy need not be alleged (Ramey v. General Petroleum Corp. (1959) 173 Cal.App.2d 386, 403), and general allegations of agreement have been held sufficient (Bartley v. California Association of Realtors (1980) 115 Cal.App.3d 930, 934.)  Thus, the Demurrer of Morad Golcheh and Nahid Golcheh is overruled as to the above claims.

6. Unjust Enrichment

Defendants argue that “because the Golcheh Defendants did not receive, and instead paid, the commissions, and because the Golcheh Defendants by the express terms of the Counteroffer did not agree to provide the equivalent furniture or the cabinet staining, Plaintiff has failed to allege facts constituting a cause of action for unjust enrichment or rescission against the Golcheh Defendants.”

“[R]estitution may be awarded where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or similar conduct.”  (McBride v. Boughton (2004) 123 Cal.App.4th 379, 388.)

Here, as discussed, the SAC alleges liability for fraud against the moving Defendants.  Restitution might apply to some portion of real estate sale proceeds.  The Demurrer of Morad Golcheh and Nahid Golcheh is overruled as the unjust enrichment claim.  

7. Summary 

The Demurrer of the Trust is sustained.  Leave to amend (to add another party) is granted as to the first through third causes of action.  Leave to amend is otherwise denied.

The Demurrer of Morad Golcheh and Nahid Golcheh is sustained as to the fourth through eighth causes of action, but is otherwise overruled.  Leave to amend is denied.

The Request for Judicial Notice is granted.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.