Judge: Robert S. Draper, Case: 22STCV11334, Date: 2022-08-02 Tentative Ruling

Case Number: 22STCV11334    Hearing Date: August 2, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Defendants’ Demurrer to the Complaint is SUSTAINED without leave to amend pursuant to the rule of exclusive concurrent jurisdiction. The instant action is stayed pending completion of LA Superior Court Case Number 21STFL07650.

Defendants Davar Danial pour and Law Offices of Danialpour & Associates’ Motion to Strike is DENIED as moot.

FACTUAL BACKGROUND 

This is an action for legal malpractice and fraud. The Complaint alleges as follows.

Plaintiff Shabnam Elyaszadeh (“Elyaszadeh”) and Defendant Davar Danialpour (“Danialpour”) were spouses currently in the process of dissolving their marriage. (Compl.  ¶¶ 11, 17.) Together they formed Plaintiff Public Health and Safety Advocates LLC (“LLC1”). (Compl. ¶ 13.) Elyaszadeh served as LLC1’s sole member and manager while Danialpour and his law firm, Defendant Law Offices of Danialpour & Associates (“LODA”) served as LLC1’s attorney. (Compl. ¶ 14.)

Following the initiation of divorce proceedings, Danialpour and LODA continued to litigate LLC1’s matters and to settle cases without Elyaszadeh’s knowledge or consent. (Compl. ¶ 18.) Danialpour and LODA kept the settlement proceeds for themselves. (Ibid.) Shortly thereafter, Danialpour formed a new company, Defendant Public Health and Safety Advocacy (“LLC2”), intended to divert business from LLC1 and Elyaszadeh. (Compl. ¶ 19.) Danialpour named Defendants Simon Sohrab Dahi (“Dahi”) and Roya Mohseni (“Mohseni”) as members of LLC2 to disguise his involvement in the endeavor. (Compl. ¶ 20.) 

PROCEDURAL HISTORY 

On April 4, 2022, Elyaszadeh filed the Complaint asserting eight causes of action:

1.     Legal Malpractice;

2.     Fraud;

3.     Violation of Business and Professions Code § 17200;

4.     Conversion;

5.     Breach of Fiduciary Duty (Attorney’s Duties);

6.     Breach of Fiduciary Duty (Marital Duties);

7.     Aiding and Abetting Breach of Fiduciary Duty; and

8.     Accounting

On May 17, 2022 Defendants Danialpour, LODA, and LLC2 filed the instant Demurrer with Motion to Strike (“Danialpour Demurrer”).

Also on May 17, 2022, same Defendants filed a Notice of Related Case as to Davar Danialpour v. Shabnam Elyaszadeh, LA Superior Court Case Number 21STFL07650 (the “Family Action”).

On May 23, 2022, Dahi and Mohseni filed the instant Demurrer (“Dahi Demurrer”).

On June 2, 2022, Elyaszadeh filed an Opposition to Defendants’ Notice of Related Case.

On June 8, 2022, Dahi and Mohseni filed a Notice of Joinder as to Danialpour, LODA, and LLC2’s Demurrer with Motion to Strike.

On June 27, 2022, Elyaszadeh filed an Omnibus Opposition to both Demurrers.

On July 1, 2022, all Defendants filed Replies.

DISCUSSION 

I.                REQUEST FOR JUDICIAL NOTICE

In ruling upon demurrers, courts may consider matters that are proper for judicial notice.  (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 834.)  

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)  

 Evidence Code Section 452 provides that judicial notice may be taken for facts and propositions that are “not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Cal. Evid. Code § 452(h).) Further, “a court may take judicial notice of [recorded documents and] the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 745-755.)  

Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-14 (citations and internal quotations omitted).) In addition, judges “consider matters shown in exhibits attached to the complaint and incorporated by reference.”  (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 665.)  However, “[w]hen judicial notice is taken of a document . . . the truthfulness and proper interpretation of the document are disputable.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 569 (quoting StorMedia Inc. v. Sup. Ct. (1999) 20 Cal.4th 449, 457 n. 9).) 

The party requesting judicial notice must (a) give each adverse party sufficient notice of the request to enable the adverse party to prepare to meet the request and (b) provide the court with sufficient information to enable it to take judicial notice of the matter. (Cal. Evid. Code § 453.) 

Elyaszadeh requests judicial notice of:

1.     The November 9, 2021 complaint in civil action styled Public Health and Safety Advocates, LLC v. Best Brands Sales Company, LLC, et al., Case No. 21STCV41274. (Ex. A.)

Elyaszadeh’s request for judicial notice is GRANTED.

Danialpour requests judicial notice of:

1.     Petition for Dissolution entitled Davar Danialpour v. Shabnam Elyasadeh, LASC 21STFL07650. (Ex. 1.)

2.     Elyaszadeh’s Civil Case Coversheet where she failed to advise the Court of the related Family Dissolution proceedings. (Ex. 2.)

3.     Articles of Incorporation of PUBLIC HEALTH AND SAFETY ADVOCATES LLC (PHSA) incorporated for the family during the marriage on December 21, 2019. (Ex. 3.)

4.     Elyaszadeh’s family law filing of her Response to the Petition for Dissolution. (Ex. 4.)

5.     Elyaszadeh’s family law filing of her Declaration of Disclosure (amended) including Schedule of Assets and Debts and attachment FL-142. (Ex. 5.)

6.     Elyazadeh’s family law filing of her Income and Expense Declaration with attachment FL-150. (Ex. 6.)

7.     Danialpour’s Family Law Schedule of Assets and Debts (REDACTED). (Ex. 7.)

8.     November 19, 2010 Secretary of State filing for Dissolution of Law offices of Danialpour & Associates, A Professional Law Corporation. (Ex. 8.)

Danialpour’s requests for judicial notice are GRANTED.

II.              DEMURRER

Although the Danialpour and Dahi Demurrers each raise several independent arguments, both Demurrers argue that the Court should Dismiss the Complaint due to the Rule of Concurrent Exclusive Jurisdiction. The Court will address this argument first as it is dispositive.

A.   The Rule of Concurrent Jurisdiction

“The established rule of exclusive concurrent jurisdiction provides that where two or more courts possess concurrent subject matter jurisdiction over a cause, the court that first asserts jurisdiction assumes it to the exclusion of all other courts. In essence, the rule renders concurrent jurisdiction exclusive with the first court.” ¿(County of Siskiyou v. Superior Court (2013) 217 Cal.App.4th 83, 89-90.) ¿ 

“‘The rationale supporting the rule is a highly practical one…. [P]arties to the same controversy or transaction ... file separate suits on their individual causes of action, usually against each other…. The rule of priority is designed to avoid the unfortunate result[s] of these conflicts by requiring, in effect, a consolidation of the separate actions in the court in which jurisdiction of the parties first attached. [Citations.]’’” ¿(Ibid.)   

“Although the rule of exclusive concurrent jurisdiction is similar in effect to the statutory plea in abatement, it has been interpreted and applied more expansively, and therefore may apply where the narrow grounds required for a statutory plea of abatement do not exist. [Citation.] Unlike the statutory plea of abatement, the rule of exclusive concurrent jurisdiction does not require absolute identity of parties, causes of action or remedies sought in the initial and subsequent actions. [Citation.] If the court exercising original jurisdiction has the power to bring before it all the necessary parties, the fact that the parties in the second action are not identical does not preclude application of the rule.

Moreover, the remedies sought in the separate actions need not be precisely the same so long as the court exercising original jurisdiction has the power to litigate all the issues and grant all the relief to which any of the parties might be entitled under the pleadings.” ¿(Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 788-789.) ¿ 

If the demurrer is sustained, plaintiff “has the burden of proving the possibility of cure by amendment.” (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 (citing Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79.) Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92. 

Here, Defendants argue that the Family Action was brought before the instant action (RFJN Ex. 1) and involves substantially similar parties and substantially similar issues. Danialpour contends that the instant litigation centers on the dispute over LLC1, which was formed during Danialpour and Elyaszadeh’s marriage and is therefore community property. (See Family Code § 760; See v. See (1996) 64 Cal.2d 778, 783). Therefore, Danialpour argues, “any issues regarding management, alleged injury to it, family ownership, fiduciary duties between the spouses as to LLC1, etc., belongs in the Dissolution proceeding.” (Danialpour Demurrer at p. 11.)

Similarly, Dahi and Mohseni argue that, because their involvement in the instant action stems entirely from the alleged mismanagement and misappropriation of LLC1’s profits, and the transfer of LLC1’s business to LLC2, they can be joined in the Family Action pursuant to Cal. Family Code section 2021, which allows for the Court to order any person interested in the proceeding to be joined as a party.

In Opposition, Elyaszadeh argues, first, that the issue is outside the pleading, and “no judicially noticeable evidence has been put forth which shows such an adjudication being contemplated by the Family Court, much less actually in progress.”

However, Elyaszadeh’s Income and Expense Declaration in the Family Action explicitly notes that “Public Health and Safety Advocates LLC (“PHSA”) [] was formed in December of 2019 [and] was intended by the parties to be [Elyaszadeh’s] sole and separate property business entity.” (RFJN, Ex. 6.) Additionally, the filing alleges that “[a]s a result of [Danialpour’s] obstruction, [Elyaszadeh] has limited information and she is only able to provide an estimate concerning the cases mentioned above in connection with her PDOD.” (Ibid.)

Accordingly, Danialpour has provided judicially noticeable evidence that LLC1 is not only potentially, but actively justiciable in the Family Action.

Next, Elyaszadeh argues that exclusive jurisdiction does not apply, as the marital proceeding and the instant malpractice and breach of fiduciary duties arise from different transactions. However, Elyaszadeh misunderstands the threshold issue. The question is not just whether the actions arise from the same transaction, but whether they arise from the “same controversy or transaction” (Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1175.) In both the Family Case and the instant action, the central controversy is the proper disposition of community property, most relevantly LLP1. That the instant action contains additional causes of action is of no import, as the test explicitly allows for distinct causes of action stemming from the same controversy. (Ibid.)

Finally, Elyaszadeh argues that the “Family Court is not the proper forum to adjudicate the rights of nonspouses, such as PHSA and the Dahi Defendants, Law Firm, and LLC2” and that LLC1 “should not be forced to wait for years while the family law court sorts through a fair distribution of assets. . .” (Opposition at p. 3.) However, prejudice to Plaintiff is not a relevant factor under the applicable standard for exclusive concurrent jurisdiction. Courts have instead made clear that the rule’s purpose is to avoid a different – and potentially greater – prejudice resulting from conflicting rulings. (See County of Siskiyou v. Superior Court (2013) 217 Cal.App.4th 83, 89-90.) Here, there is ample reason to believe that two courts simultaneously considering the proper disposition and treatment of the same LLC would inevitably lead to conflicting rulings.

Accordingly, both Demurrers are SUSTAINED without leave to amend.

However, Defendants contend that, accordingly, the instant action must be dismissed. This is not so. When the rule of concurrent exclusive jurisdiction applies, the second action should be stayed, not dismissed. (People ex. Rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4^th 760, 769-70.)

Therefore, the Court orders all further proceedings in the instant action stayed pending completion of LA Superior Court Case Number 21STFL07650.

Finally, as the Court sustains his Demurrer, Danialpour’s Motion to Strike is DENIED as moot.

DATED: August 2, 2022                        ________________________________ 

Hon. Robert S. Draper 
Judge of the Superior Court                                                                                1