Judge Peter A. Hernandez, Case Number: 22PSCV00950, Date: 2023-08-25 Tentative Ruling

1. Defendants Infinity Care of East L.A., Inc.’s, Mohammad Kamdar’s, Bina Kamdar’s and Saif Amin’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED in part (i.e., as to the second, third and seventh causes of action) and OVERRULED in part (i.e., as to the first and fourth through sixth causes of action). The court will hear from counsel for Plaintiff as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.

2. Defendants Infinity Care of East L.A., Inc.’s, Mohammad Kamdar’s, Bina Kamdar’s and Saif Amin’s Motion to Strike Portions of Plaintiff’s First Amended Complaint is DENIED as MOOT.

In or around 2007/2008, H. Amin, individually and as an agent or representative of all other defendants, accepted $400,000.00 from Hafiz and used that money to purchase several skilled nursing/hospice care facilities. In or around 2011, M3M filed Case No. TC024974 against defendants, which was settled in or around October 2013 (the “M3M Settlement Agreement”). Hafiz is the assignee of M3M’s interests. Hafiz and defendants then entered into multiple agreements. Defendants have breached the “Wed-Mansoor Agreement.”

On December 14, 2022, the court related Case Nos. KC070658, KC061980, TC024974, 21PSCV00698, and 22PSCV00950; Case No. KC070658 was designated the lead case.

On February 23, 2023, Hafiz filed a First Amended Complaint (“FAC”), asserting causes of action against Infinity Care, LLC, Infinity West Covina, Infinity Maywood, Infinity East L.A., Infiniti Computers, M. Kamdar, B. Kamdar, H. Amin, S. Amin, Mohammad Mansoor Asif (“Asif”) and Does 1-50 for:

On March 13, 2023, the court consolidated Case Nos. KC070658, 21PSCV00698 and 22PSCV00950 for all purposes; Case No. KC070658 was designated the lead case.

A demurrer may be made on grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).) A demurrer may also be made, in an action founded upon a contract, on the basis that it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. (Code Civ. Proc., § 430.10, subd. (g).)

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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) 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 placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Infinity East L.A., M. Kamdar, B. Kamdar, and S. Amin (collectively, “Defendants”) demur, pursuant to Code of Civil Procedure § 430.10, subdivisions (e) and (f), to the first through seventh causes of action in Plaintiff’s FAC, on the basis that they each fail to state facts sufficient to constitute causes of action and are uncertain. They further demur to the first cause of action per subdivision (g), on the basis that it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

The court rules on Defendants’ Request for Judicial Notice as follows: Granted as to Request No. 1 (i.e., complaint filed in Case No. KC070658 on October 2, 2018); Granted as to Request No. 2 (i.e., Second Amended Complaint filed in Case No. KC070658 on June 25, 2019); Deny as to Request No. 3 (i.e., “After Hearing Order” dated December 1, 2019 in Case No. KC070658; the court is unaware of any December 1, 2019 filing in Case No. KC070658) and Granted as to Request No. 4 (i.e., of Case No. 21PSCV00698 generally).

Defendants assert that Plaintiff’s FAC alleges the same claims regarding the same written agreement (i.e., the “WED-Mansoor Agreement”) that Plaintiff brought in Case No. KC070659 against different defendants. It appears to the court that Defendants are suggesting that the FAC herein constitutes a “sham pleading[1],” based on their argument attempting to contrast allegations contained within the instant FAC (i.e., such as ¶ 18 [i.e., “[i]n or around 2007/2008, HAROON AMIN, acting in his own capacity and/or as an agent and representative of all other individual and corporate DEFENDANTS and corporate promoters, accepted four hundred thousand dollars ($400,000) from PLAINTIFF (BHUTTA) and used that money to purchase several hospice care facilities and named them as Infinity Care LLC (which had three subsidiaries named above)” (emphasis added)]; ¶ 22 [i.e., “in or around 2011, M3M filed a lawsuit against the DEFENDANTS in Los Angeles Superior Court titled M3M V INFINITY CARE et al (TC024974) (‘M3M Lawsuit’). . .;” and ¶ 23 [i.e., “[i]n or around October 2013, M3M and its ASSIGNEE Bhutta. . . settled the above lawsuit . . . by entering into three agreements . . . for a total amount of $700,000.00 . . . Haroon Amin, acting on his behalf and/or as an agents and representatives of all other DEFENDANTS, negotiated the settlement agreements” [emphasis added]) with Plaintiff’s pleadings filed in Case No. KC060658.

Paragraph 17 of Plaintiff’s operative SAC in Case No. KC070658 alleges that “Plaintiff provided Defendant Amin a total of approximately $400,000 to purchase equity in Infiniti Care for M3M Inc (and on behalf of Plaintiff and for the benefit of Plaintiff);” it subsequently states, “Please see Para 3 of Plaintiff’s attached Declaration.” Paragraph 3 of Plaintiff’s declaration states, in relevant part, that “[i]n or around 2006-2009, Plaintiff provided, directly and indirectly, approximately $400,000 (including the $50,000: Mansoor Loan” Defendant Amin collected from Mansoor) to Defendant Amin/his representatives. In or around 2008-2009, Defendant Amin (and others) formed Infiniti Care. . . In or around 2011, M3M instituted legal proceedings against Haroon Amin (and others) for breach of contract, fraud, etc., related to M3M’s investment / equity in Infiniti Care. . . Infinity Care acknowledged and accepted that assignment and in or around 2013, in Azusa, CA., entered into ‘WED / Mansoor Agreement’ – Attached as EXHIBIT A.” (Emphasis added). Paragraphs 46 and 47 of the SAC in Case No. KC070658, moreover, allege that “[i]n or around 2011, Plaintiff Bhutta instituted a lawsuit (‘2011 Lawsuit’) against Defendant Amin (and others who are not party to this lawsuit) for the approximately $400,000 Plaintiff had invested in Infiniti Care – a company partly owned and operated by Defendant Amin (and others not named as defendant in this complaint)” and that “[i]n or around October 2013, Plaintiff and Defendant Amin, (on behalf of himself, and parties not named in this lawsuit) reached a settlement (‘2013 Settlement’) for the ‘2011 Lawsuit.’ The ‘2013 Settlement’ consisted of multiple agreements. The ‘WED / Mansoor Agreement’ was one of those agreements,” respectively. (Emphasis added; see also, ¶ 33).

“Plaintiffs . . . may avoid the effect of the sham pleading doctrine by alleging an explanation for the conflicts between the pleadings.” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4^th 336, 344.) The court, however, does not find any conflict between the above pleadings. The court, then, overrules Defendants’ demurrer to the FAC to the extent it is made on this basis.

Defendants assert, without more, that “Plaintiff essentially alleges that all the defendants in this matter are the alter egos of each other, but he provides no substantive allegations to support these claims. 2023 Compl. ¶ 37.” (Dem., 3:18-19). Defendants’ argument in this regard is deficient and unsupported by legal authority; as such, the court overrules Defendants’ demurrer to the FAC to the extent it is made on this basis.

Defendants next contend that certain of Plaintiff’s causes of action are time-barred.[2] “A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not sufficient that the complaint might be barred.” (Roman v. County of Los Angeles (2000) 85 Cal.App.4^th 316, 324 [emphasis theirs].)

The statute of limitations for breach of written contract is four years. (Code Civ. Proc., § 337). The statute of limitations for money had and received is two years. (Code Civ. Proc., § 339). The statute of limitations for conversion is three years. (Code Civ. Proc., § 338, subd. (c).)

As to Plaintiff’s cause of action for promissory estoppel, “where the primary purpose of an equitable cause of action is to recover money under a contract, the statute of limitations applicable to contract actions governs the equitable claim. (Newport Harbor Ventures, LLC v. Morris Cerulo World Evangelism (2016) 6 Cal.App.5th 1207, 1224, fn. 5.) Here, the four year statute of limitations under Code of Civil Procedure § 337 is applicable.

However, “[e]quitable estoppel . . . addresses itself to the circumstances in which a party will be estopped from asserting the statute of limitations as a defense to an admittedly untimely action because his conduct has induced another into forbearing suit within the applicable limitations period.” (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1089.)

Plaintiff has alleged that in September 2018, Amin “for the first time,” after Plaintiff’s numerous requests for documents and extensions of time granted to Amin to provide same, told Plaintiff that he (i.e., Amin) had spoken with Mansoor and that Mansoor had stated that he (i.e., Mansoor) had returned the $50,000 Mansoor Loan to Plaintiff and that he (i.e., Amin) could not find any records/loans showing that he had been paid the $50,000 he had loaned/invested in WED.” (FAC, ¶ 69; see also, ¶¶ 52-56.) Plaintiff’s estoppel allegations preclude a determination that the first and sixth causes of action are time-barred; however, it is evident that Plaintiff’s second and third causes of action are time-barred, inasmuch as the instant lawsuit was filed on August 31, 2022.

Defendants’ demurrer to the second and third causes of action is sustained on this basis.

“Conspiracy is not a cause of action. It is a theory of liability under which persons who, although they do not actually commit a tort themselves, share with the tortfeasor or tortfeasors a common plan or design in its perpetration. One who participates in a civil conspiracy, in effect, becomes liable for the torts of the coconspirators. But the conspiracy does not result in tort liability unless an actual tort is committed.” (Kenne v. Stennis (2014) 230 Cal.App.4^th 953, 968.)

Plaintiff has not alleged any actionable underlying tort; as such, Defendants’ demurrer to the seventh cause of action is sustained.

Defendants move the court for an order striking out the following portions of Plaintiff’s FAC: (1) ¶ 107 (i.e., punitive damages) and (2) Prayer, 32:22 (i.e., punitive damages).

Plaintiff has agreed to withdraw his request for punitive damages. (Opp. Dem., 13:11-14).

[1] Defendants do not provide any authority in this regard. The sham pleading doctrine is this: “If a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations.” (Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 151.)

[2] Defendants only specifically address the first through third and sixth causes of action in this regard.