Judge: Mark A. Young, Case: 21SMCV01923, Date: 2023-01-11 Tentative Ruling
Case Number: 21SMCV01923 Hearing Date: January 11, 2023 Dept: M
CASE NAME: Ghermezi v. Haghani
CASE NO.: 21SMCV01923
MOTION: Demurrer to the Complaint
HEARING DATE: 1/11/2023
BACKGROUND
On December 13, 2021, Plaintiff Yoni Ghermezi filed the instant defamation action against Defendant Kambiz Haghani. The complaint alleges that on August 10, 2021, while Plaintiff was shopping at a Persian grocery market in the heart of the Persian community in the Beverly Hills area, Defendant uttered a defamatory accusation at a volume calculated for shoppers and employees to hear that Plaintiff had stolen $100,000 from Defendant (the “False Accusation”). The complaint states a single claim for defamation/slander.
On April 6, 2022, Haghani filed a cross-complaint against Ghermezi, alleging causes of action for breach of contract, intentional misrepresentation, concealment, false promise, conspiracy, recission, a violation of Business & Professions Code §§ 17200 & 17500, conversion, and breach of a promissory note. The Cross-Complaint alleges that in 2008/2009, Cross-Defendant caused Cross-Complainant to invest $220,000.00 in an oil recycling business in California and Guatemala. Haghani alleges that he later found out that Ghermezi incorporated the corporation in Haghani’s name without consent. Under the contract, Ghermezi was to produce 4,000 gallons of gasoline per day, plus certain contingent compensation and bonuses. He did not even produce 1 gallon and never returned the full investment. As a result, Haghani was sued by Wilshire Bank and others.
On June 9, 2022, Plaintiff/Cross-Defendant filed a demurrer to each cause of action asserted by the Cross-Complaint. No opposition was filed.
Legal Standard
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) 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. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.)
“Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Id.)
MEET AND CONFER
Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP §§ 430.41, 435.5.) Counsel’s declaration satisfies this requirement. (Bayles Decl., ¶2.)
Analysis
Cross-Defendant raises the statute of limitations as a defense to each cause of action. A demurrer based upon the statue of limitations is strictly construed; unless a complaint affirmatively discloses on its face that the statute of limitations has run, the demurrer must be overruled. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881 [“It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred”]; see also Moseley v. Abrams (1985) 170 Cal.App.3d 355, 359 [“A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily barred”].)
“Generally, a cause of action accrues and the statute of limitation begins to run when a suit may be maintained. Ordinarily this is when the wrongful act is done and the obligation or the liability arises . . .. In other words, a cause of action accrues upon the occurrence of the last element essential to the cause of action. [Citation.]” (Cobb v. City of Stockton (2011) 192 Cal.App.4th 65, 72-73, alterations and internal quotation marks omitted.) Under the ‘discovery rule,’ the accrual of the statute is tolled until a plaintiff discovers, or has reason to discover, the cause of action. The discovery rule protects those who are ignorant of their cause of action through no fault of their own. (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 832.)
The statute of limitations for fraud is three years. (CCP § 338(d).) The statute of limitations for breach of oral contract is two years. (CCP § 339.) The cross-complaint unambiguously alleges that the relevant misrepresentations and breach of contract occurred in 2008 or 2009. Moreover, the Cross-Complaint alleges no facts to support any delayed discovery. In fact, the allegation that Cross-Defendant never performed under the contract means that the breach necessarily occurred in 2009 at the latest. As a result, the statute of limitations ran in 2012.
Cross-Complainant has failed to oppose or offer to the Court how this pleading may be amended. The Court does not find a reasonable probability of amendment given the above allegations.
Accordingly, Cross-Defendant’s demurrer is SUSTAINED without leave to amend. Cross-Defendant to prepare a proposed judgment as to the cross-complaint.