Judge Monica Bachner, Case 22STCV24086 2023-05-10 Tentative Ruling

Defendant Shahram Moussazadeh’s unopposed demurrer to pro per Plaintiff’s first amended complaint is sustained as to the 3rd cause of action without leave to amend and sustained as to the 1st, 2nd, 4th, 5th, and 6th causes of action with 30 days leave to amend.

Defendant’s unopposed motion to strike the 6th cause of action is granted with 30 days leave to amend the defect. Defendant’s motion to strike the 7th cause of action is sustained, and the 7th cause of action is stricken from Plaintiff’s FAC.

Defendant Shahram Moussazadeh (“Moussazadeh”) (“Defendant”) demurs unopposed to the 1st (declaratory relief), 2nd (fraudulent transfer under the Uniform Voidable Transfer Act (“UVTA”)), 3rd (breach of oral contract), 4th (intentional misrepresentation), 5th[1] (financial elder abuse), 6th (quiet title), and 7th (preliminary injunction) causes of action in the first amended complaint (“FAC”) of pro per Plaintiff Pourandokht Pourat (“Pourat”) (“Plaintiff”) on the basis she fails to state facts sufficient to constitute a cause of action and misjoinder of parties renders the causes of action defective. (Notice of Demurrer, pgs. 1-2; C.C.P §§430.10(d)-(e).)

This action arises from the alleged transfer of title of 11815 Dorothy Street, Unit 5, Los Angeles, California 90049 (“Subject Property”) from Plaintiff to Defendant. (FAC ¶¶5, 10.) Plaintiff alleges Defendant persuaded her and her then ill, now late, elderly husband to transfer the title of subject property into Defendant’s personal name. (FAC ¶10.) Plaintiff alleges she entered into the agreement with Defendant in exchange for Defendant providing Plaintiff and her husband with a fixed income of $500 per month for the couple to qualify for governmental assistance, and for Defendant to pay all property taxes, insurance payments, utilities, repairs, and HOA fees for the Subject Property. (FAC ¶¶8,10.)

Plaintiff alleges Defendant, as part of his promise for the property transfer, assured Plaintiff and her husband that: (1) that the transfer of the Subject Property from Plaintiff and her husband to the Defendant would help Plaintiff and her husband qualify for government assistance for living and medical expenses, (2) that Defendant would keep the Subject Property free of liens and loans, and (3) Defendant would make no efforts to market or sell the Subject Property before the passing of the Plaintiff and Plaintiff’s husband, and if the Subject Property was to be sold during the lifetime of the Plaintiff and/or Plaintiff’s husband, sales proceeds would be split: one-third (1/3) to the Plaintiff, or any heirs of the Plaintiff; one-third (1/3) to the Plaintiff’s husband, or any heirs of Plaintiff’s husband; and one third (1/3) to the Defendant, or any heirs of the Defendant, and that any sale of the Subject Property had to be consented to by all parties, and/or their heirs. (FAC ¶10.) Plaintiff alleges “the verbal agreement between was stated and restated each year since 2003.” (FAC ¶10.)

Plaintiff alleges Defendant kept his promise for a few years by making cash payments to Plaintiff and her husband (“Decedent”), even after Plaintiff’s husband passed away, but the monthly payments began to slow down a few years ago, and sometimes ceased. (FAC ¶11.) Plaintiff alleges her husband died without a will on October 22, 2016, and all of Defendant’s worldly possessions, including Decedent’s ownership interest in the Subject Property, transferred to Plaintiff. (FAC ¶12.) Plaintiff alleges she was notified by the Los Angeles Sheriff’s Department that Subject Property was in loan default and subject to sale at a foreclosure auction. (FAC ¶13.) Plaintiff alleges she learned through the notice of foreclosure that Defendant breached their longstanding agreement not to use the Subject Property for any loans or as collateral for any loans, and that Defendant borrowed more than one million dollars against subject property as collateral without Plaintiff’s permission. (FAC ¶13.)

Plaintiff alleges she made demands to Defendant for “the return of the money,” but Defendant ceased all monthly payments to and communications with Plaintiff after she learned about the loans against Subject Property and the pending foreclosure sale. (FAC ¶14.) Plaintiff alleges she learned in July 2022 that Defendant is in escrow to sell the Subject Property without any notice to or communication with Plaintiff. (FAC ¶15.)

On July 26, 2022, Plaintiff filed her original complaint with seven causes of action for (1) declaratory judgment; (2) fraudulent transfer under the UVTA); (3) breach of oral contract; (4) intentional misrepresentation; (5) financial elder abuse; (6) quiet title; and (7) preliminary injunction. Defendant demurred to all causes of action. On November 2, 2022, this Court sustained Defendant’s demurrer without leave to amend as to the 7th cause of action and sustained Defendant’s demurrer with 30 days leave to amend as to the 1st, 2nd, 3rd, 4th, 5th, and 6th causes of action. (11/2/22 Ruling.)

Defendant filed the instant demurrer and accompanying motion to strike on January 12, 2023. As of the date of this hearing, Plaintiff has not filed an opposition.

Before filing a demurrer, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet and confer efforts. (C.C.P. §§430.41(a)(1), (3).)

Defendant failed to file a meet and confer declaration in violation of C.C.P. §430.41(a)(3). However, a determination by the Court that the meet and confer process is insufficient is not grounds to overrule or sustain a demurrer. (C.C.P. §430.41(a)(4).) Accordingly, the Court will consider Defendant’s demurrer.

In support of his demurrer to the FAC, Defendant argues the 1st, 2nd, 3rd, 4th, 5th, and 6th causes of action are subject to a demurrer because they fail to join Decedent’s estate as an indispensable party to the action. (Demurrer, pgs. 2-3.) Defendant further argues Plaintiff’s 3rd cause of action is barred by the statute of frauds. (Demurrer, pg. 3.)

C.C.P. §430.10 provides, “The party against whom a complaint . . . has been filed may object[ ] by demurrer . . . as provided in Section 430.30[ ] to the pleading on . . . [the] grounds . . . [t]here is a defect or misjoinder of parties.” (C.C.P. §430.10(d).) A demurrer for misjoinder will be overruled if the defendant shows no prejudice suffered or interests impaired by the misjoinder. (Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231 n.1.) Demurrers on the grounds of misjoinder lie only when the defect appears on the face of the complaint or matters that can be judicially noticed. (See Royal Surplus Lines Insurance Co., Inc. v. Ranger Insurance Co. (2002) 100 Cal.App.4th 193, 198.)

Plaintiff must join as parties to the action any person whose interest is such that (1) in the person’s absence, complete relief cannot be accorded among those already parties or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. (C.C.P. §389(a); see Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 808-809 [“[A] person is indispensable only when the judgment to be rendered necessarily must affect that person’s rights.”]; Morrical v. Rogers (2013) 220 Cal.App.4th 438, 460-464.)

The Defendant, as part of his promise for the Subject Property transfer, assured the Plaintiff and the Decedent: (1) that the transfer of the Subject Property from Plaintiff and Decedent to the Defendant would help Plaintiff and the Decedent qualify for government assistance for living and medical expenses, (2) that Defendant would keep the Subject Property free of liens and loans, and (3) Defendant would make no efforts to market or sell the Subject Property before the passing of the Plaintiff and the Decedent, and if the Subject Property was to be sold during the lifetime of the Plaintiff and/or the Decedent, sales proceeds would be split: one-third (1/3) to the Plaintiff, or any heirs of the Plaintiff; one-third (1/3) to Decedent, or any heirs of the Decedent; and one third (1/3) to the Defendant, or any heirs of the Defendant, and that any sale of the Subject Property had to be consented to by all parties, and/or their heirs.

(FAC ¶10.) Plaintiff alleges the verbal agreement between was stated and restated each year since 2003. (FAC ¶10.)

Plaintiff failed to join her husband’s estate as an indispensable party. (C.C.P. §389(a).) From the face of the pleading, Decedent’s estate is an indispensable party whose absence might leave Defendant exposed to risk of additional liability or inconsistent obligations because the alleged verbal agreement in this action implicates Decedent’s heirs should the Subject Property be sold in Plaintiff’s or her husband’s lifetime, and “any sale of the Subject Property had to be consented by all parties and/or their heirs.” (FAC ¶10; C.C.P. §389(a).)

Accordingly, Defendant’s demurrer to the 1st, 2nd, 3rd, 4th, 5th, 6th, and 7th causes of action for misjoinder is sustained with 30 days leave to amend.

Defendant argues that this cause of action is barred by the Statute of Frauds. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; such an agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged. (Civ. Code §1624(a)(4).)

to transfer the title of the Subject Property into Defendant’s personal name in

2003, and that the Defendant would provide Plaintiff and Decedent a fixed income of $500 per month for as long as they shall each live, or until the time that all parties mutually agree to sell the Subject Property and split the sales proceeds. (FAC ¶32.) Plaintiff alleges the oral agreement was renewed annually by promises and assurances of performance, or continued performance, by Defendant to the Plaintiff up to as late as 2021. (FAC ¶31.)

Plaintiff’s cause of action for breach of oral contract violates the statute of frauds because it involves an interest in real property that is invalid unless it is in writing. (Civ. Code §1624(a)(4).) Accordingly, Defendant’s demurrer to the 3rd cause of action for breach of oral contract is sustained without leave to amend.

Based on the foregoing, Defendant’s unopposed demurrer to the 3rd cause of action is sustained without leave to amend. Defendant’s demurrer to the 1st, 2nd, 4th, 5th, and 6th causes of action for misjoinder is sustained with 30 days leave to amend.

Motions to strike can be used to reach defects in or objections to pleadings that are not challengeable by demurrer. A motion to strike lies either to strike any “irrelevant, false or improper matter inserted in any pleading”; or to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (C.C.P. § 436.) A motion to strike can be used to attack the entire pleading, or any part thereof—i.e., even single words or phrases, unlike demurrers. (Baral v. Schnitt (2016) 1 Cal.5th 376, 393-394.)

Defendant moves unopposed to strike the 6th and 7th causes of action in the FAC because they were not filed in conformity with the laws of this state and court order. (Motion, pg. 1.)

A cause of action for quiet title requires the following elements: (1) description of the property; (2) Plaintiff’s title or interest and the basis; (3) defendant’s asserting adverse claim or antagonistic property interest; (4) date as of which the determination is sought; and (5) prayer for determination of title. (C.C.P. §761.020; see Lucas v. Sweet (1956) 47 Cal.2d 20, 22 [sufficient to plead that plaintiff is the owner of described property, defendant wrongfully claims interest, unless complaint reveals a defect in title]; Leeper v. Beltrami (1959) 53 Cal. 2d 195, 214 [“general rule that a cause of action to quiet title may be stated in general terms.”]; Dreher v. Rohrmoser (1955) 134 Cal.App.2d 196, 198 [complainants can specifically plead the invalidity of defendants’ legal title and courts may enter such judgment as the equities require]; Lewis v. Superior Court (1994) 30 Cal.App.4th 1850, 1866 [complaint to quiet title must be verified].)

Defendant argues Plaintiff’s cause of action for quiet title should be stricken because it failed to plead the required legal description. (C.C.P. §761.020 [“In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any,” emphasis added.) While Plaintiff fails to plead the legal description of the Subject Property, she includes the street address and partially complies with the requirement set forth in C.C.P. §761.020.

Accordingly, Defendant’s motion to strike is granted with 30 days leave to amend to cure the defect.

“A court is not required to tolerate purported amended complaint that fails to amend previous pleading, is not filed in good faith, is filed in disregard of established procedural requirements, or is otherwise violative or orderly judicial administration.” (Tostevin v. Douglas (1958) 160 Cal.App.2d 321, 331, quoting Neal v. Bank of America National Trust & Savings Association (1949) 93 Cal.App.2d 678, 682-683.)

This Court previously sustained Defendant’s demurrer to the 7th cause of action for preliminary injunction without leave to amend. (11/2/22 Ruling.) However, Plaintiff’s FAC realleges the same cause of action in violation of the Court’s ruling.

[1] The Court notes Plaintiff’s FAC gives notice of seven causes of action. The Court notes Plaintiff’s FAC erroneously labels the 5th cause of action for financial elder abuse as the 4th cause of action (thereby creating two 4th causes of action), the 5th cause of action as quiet title (when it should be the 6th cause of action). The Court hereinafter refers to the cause of action for financial elder abuse as the 5th cause of action and the cause of action for quiet title as the 6th cause of action.