III. DEMURRER¿ 

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)   

Defendants met and conferred concerning the CFAC back on August 29, 2023. (Decl. Kashfian, Aug. 29, 2023.) The declaration does not provide that Defendants met and conferred regarding the CSAC that was deemed filed on February 9, 2024. However, a determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer. (CCP § 430.41(a)(4).) Further, considering the history of this matter, the similarities between the CFAC and CSAC, and the lack of opposition, the Court finds that any potential conference between counsel will likely be unproductive to the issues raised. (See Dumas v. Los Angeles Cnty. Bd. of Supervisors (2020) 45 Cal. App. 5th 348, 355.) 

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. (Code Civ. Proc., §§ 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).) 

Defendants demur to all seventeen causes of action contained in Plaintiffs’ CSAC on the grounds that each cause of action does not state facts sufficient to constitute a cause of action against them, and that the CSAC is lengthy and uncertain. Defendant further argues that Plaintiffs’ action is time-barred, that Niakan lacks standing, and that the CSAC is a sham pleading. The CSAC sets forth seventeen causes of action for (1) breach of contract - NFP, (2) fraud by intentional misrepresentation - NFP, (3) negligent misrepresentation- NFP, (4) quasi-contract- NFP, (5) negligence- NFP, (6) breach of fiduciary duty- NFP, (7) money had and received- NFP, (8) fraud by concealment- NFP, (9) Violations of Business Professions Code § 17200)- Plaintiffs, (10) breach of contract - Niakan, (11) fraud by intentional misrepresentation – Niakan, (12) negligent misrepresentation – Niakan, (13) quasi-contract – Niakan, (14) negligence – Niakan, (15) breach of fiduciary duty – Niakan, (16) money had and received – Niakan, and (17) fraud by concealment – Niakan. 

Defendants rely upon the reasoning outlined in the Court’s judicially noticed ruling related to Plaintiffs’ pleadings in Case No. 21STCV06702, in which the Court found the complaint and amended complaint were time-barred because Plaintiffs failed to plead sufficient requisite facts as to the exercise of reasonable diligence to invoke the delayed discovery rule. (RJN No. 1.) Of the above causes of action alleged, the longest is four years. 

Defendants argue that, like the findings surrounding the demurrers to Plaintiffs’ prior pleadings, the CSAC does not address why Plaintiffs failed to discover the alleged fraud or breaches sooner, or why they had no actual or presumptive knowledge of the facts to put them on notice inquiry. Defendants further contend that Plaintiffs, realizing the claims are time-barred, selectively identified meetings between October 2016 and May 2019, which Defendants argue are irrelevant because they occurred after the alleged agrees were entered and consummated. Defendants argue that Plaintiffs were on notice of the fraud and breaches as of 2016 at the latest, and therefore the action filed in January 2021 is barred by the statute of limitations. 

Defendants describe the CSAC as “prolix.” Indeed, the CSAC is fraught with tediously lengthy allegations that only serves to obfuscate the relevant issues at hand, rather than aiding Plaintiffs. Based on the Court’s review, it appears that the basis of CSAC is lifted primarily from the second amended complaint filed in Case No. 21STCV06702, with a large number of additional irrelevant allegations, turning what was a 27-page complaint (SAC pre-consolidation for Case No. 21STCV06702) and 7 page complaint (Complaint pre-consolidation for Case No. 21STCV02475) into a rambling 50 page consolidated complaint. 

In sum, the CSAC alleges that NFP owns various commercial properties in Los Angeles County, and Niakan was the managing partner of NFP. (CSAC ¶¶ 2, 4, 5.) Defendant Nazarian is the sole shareholder of ASES and a relative of Niakan. (Id. ¶¶ 7-8.) In September 2008, Defendant Nazarian approached Plaintiff Niakan requesting that Plaintiff Niakan hire Defendants to install solar systems on the roofs of NFP’s properties. (Id. ¶ 34.) Defendant Nazarian made representations that NFP could sell unused electricity energy generated by the solar system at $5,000 per month. (Id. ¶ 41.) NFP retained Defendants in 2009 to install a solar system on NFP’s property. (Id. ¶¶ 43, 57.) On November 8, 2013, NFP and Defendants formed a joint venture, memorialized in writing on November 8, 2013, for Defendants to install solar systems on NFP’s remaining existing real properties, and for the parties to share equally the income and expenses associated with the solar installations. (Id. ¶ 67.) Three years later, on July 28, 2016, Plaintiffs allege that despite the project being “woefully incomplete”, Plaintiffs nonetheless entered into a 2016 Amendment for Defendants to install solar systems at NFP’s Melrose Property. (Id. ¶¶ 70-71.) In October 2016, Plaintiffs agreed to have Defendants install the solar system at the Wilshire Property. (Id. ¶ 78.) In short, Plaintiffs collectively allege the solar systems were not properly installed, were not installed at all, and that Plaintiffs did not receive the expected income from DWP as represented. 

As noted in the prior demurrer rulings to Plaintiffs’ complaint, there is clearly an attempt to plead around the statute of limitations based on the delayed discovery rule. Generally, a statute of limitations begins to run when a cause of action accrues, meaning when the cause of action is complete with all of its elements.¿(Pineda v. Bank of America, N.A.¿(2010) 50 Cal. 4th 1389, 1397.) “An important exception to the general rule of accrual is the ‘discovery¿rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.¿[Citations.]” (Fox v. Ethicon Endo-Surgery, Inc.¿(2005) 35 Cal.4th 797, 807.) “[T]o rely on the discovery rule for¿delayed¿accrual¿of a cause of action, ‘[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 to show (1) the time and manner of discovery¿and¿(2) the inability to have made earlier discovery despite reasonable diligence.’ [Citation.] In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to ‘show diligence’; ‘conclusory allegations will not withstand demurrer.’ [Citation.]” (Id. at 808.) 

The Court agrees with Defendants’ contention that Plaintiffs’ reliance on the alleged familial relationship, Plaintiff Niakan’s lack of understanding of terminology surrounding the solar systems, and representations regarding the work does not provide a basis for the conclusion that Plaintiffs could not have suspected any fraud, or had any reason to believe that they were being defrauded. Plaintiffs alleges that the misrepresentation surrounded: Defendant’s license to install the solar systems, Defendants’ experience in the installation, knowledge in ways the property owner could rake in substantial profits, work performed in installing the solar systems and panels in compliance with DBS and LADWP, permits, installation of meters, and selling the unused electricity generated by the solar system for $5,000 per month. (CSAC ¶ 41.) Plaintiffs allege they only discovered the fraud on July 15, 2019 when a representative of LADWP provided that meters had not been installed at one of the properties, namely 713 Ridgewood Property. (Id. ¶ 87.) However, by contrast as pled here and as pled in Plaintiffs’ prior complaints, Plaintiffs only received 20% ($1,000) of the expected $5,000 income from DWP for a number of years after installation of the solar systems, and that between the 2014 Agreement and July 28, 2016 Amendment, Plaintiffs noted that the project was “woefully incomplete.” (Id. ¶ 70.) Throughout this period of time, Plaintiffs were on notice that there were issues with the project and that they have not received the expected profits for years – there has been no showing of diligence. As long as reasonable suspicion exists, a plaintiff must go find the facts, and cannot wait for the facts to find him. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111-1112.) 

This is sufficient to sustain the demurrer on the grounds that Plaintiffs’ action is time-barred. The Court finds it unnecessary to address Defendants’ other contentions of the CSAC’s other deficiencies, especially since no opposition was filed. A failure to oppose a motion may be deemed a consent to the granting of the motion. (CRC, Rule 8.54.)