Judge: Nick A. Dourbetas, Case: 2021-01227546, Date: 2022-09-09 Tentative Ruling

1. Demurrer to Amended Cross-Complaint

2. Case Management Conference

Cross-Defendants Diyar Irvine, LLC’s, Green City Development, LLC’s, Sadek El Sewedy’s, and Ahmed El Sewedy’s Demurrer as to the First Amended Cross-Complaint (“FAXC”) is SUSTAINED with leave to amend. (See Code Civ. Proc. 430.10, subd. (e).)

As a general proposition, there is no duty to protect against criminal conduct by third parties, absent a special relationship or knowledge of previous criminal conduct. (See Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 234-235.) The FAXC does not allege the existence of a special relationship between plaintiffs and cross-complainant, or knowledge of previous unlawful conduct by defendant Elzoheiry.

“ ‘[A] principal who personally engages in no misconduct may be vicariously liable for the tortious act committed by an agent within the course and scope of the agency.’ ” (Barenborg, supra, 33 Cal.App.5th at p. 85, 244 Cal.Rptr.3d 680; accord, Secci v. United Independent Taxi Drivers, Inc., supra, 8 Cal.App.5th at p. 855.)  Moreover, a principal is liable to a third party harmed by an agent's conduct when the principal later ratifies the agent's conduct. (Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73, 104 Cal.Rptr. 57, 500 P.2d 1401; Dickinson v. Cosby (2019) 37 Cal.App.5th 1138, 1158, 250 Cal.Rptr.3d 350.) “Ratification is the voluntary election by a person to adopt in some manner as his own an act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him.” (Rakestraw, at p. 73, 104 Cal.Rptr. 57, 500 P.2d 1401; accord, Dickinson, at p. 1158, 250 Cal.Rptr.3d 350.)”

(Brown v. USA Taekwondo (2019) 40 Cal.App.5th 1077, 1106.)

Neither the complaint, nor the FAXC allege that Plaintiffs ratified defendant Elzoheiry’s unlawful conduct. (Indeed suing Mr. Elzoheiry for fraud is the exact opposite of ratification.)

“The basis of equitable liens is variously placed on the doctrines of estoppel, or unjust enrichment, or on the principle that a person having obtained an estate of another ought not in conscience to keep it as between them; and frequently it is based on the equitable maxim that equity will deem as done that which ought to be done, or that he who seeks the aid of equity must himself do equity.” (53 C.J.S. Liens, § 5, pp. 462–463, fns. omitted.)”

(Farmers Inc. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 453.)

Based upon the court’s ruling on the 5th cause of action and the fact that there are no other affirmative causes of action asserted against Plaintiffs in the FAXC, the FAXC fails to allege that Plaintiffs obtained an estate of another.

The court declined to consider the declaration and exhibit submitted with the opposition. A demurrer only attacks face of complaint and matters judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Because a declaration is extrinsic evidence, it is not properly before the court ruling on a demurrer. (See Equipment Corp v. Nelson (1980) 110 Cal.App.3d 868, 881.)

Cross-complainant to file an amended cross-complaint within ten days.

Cross-defendants are ordered to give notice.