Judge: Shirley K. Watkins, Case: 20VECV00920, Date: 2023-05-25 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 20VECV00920    Hearing Date: May 25, 2023    Dept: T

20VECV00920 MATTHEW MODARAEI vs REZA MOMENI

[TENTATIVE] ORDER:  Defendants Reza Momeni and Reza Ghazi’s Demurrer to the First Amended Complaint is SUSTAINED WITH 20 DAYS LEAVE TO AMEND.  Leave to amend is limited ONLY to curing the pleading defects in the sixth and seventh causes of action and NOT to add new causes of action.

Defendants Reza Momeni and Reza Ghazi’s Motion to Strike Portions of the First Amended Complaint is GRANTED IN PART AND DENIED IN PART.  The motion is GRANTED WITH 20 DAYS LEAVE TO AMEND as to the punitive damages claims ONLY and otherwise DENIED. 

Introduction

Defendants Reza Momeni (Momeni) and Reza Ghazi (Ghazi) (collectively, Defendants) demurred to Plaintiff Matthew Modaraei’s (Plaintiff) First Amended Complaint (FAC.)  Defendants’ demurrer placed into issue the sixth cause of action (COA) for fraud – intentional misrepresentation and seventh COA for fraud – concealment.  Defendants moved to strike the sixth and seventh COAs and the claim for punitive damages. 

Discussion 

Plaintiff argued that the demurrer and motion to strike were untimely filed.  Defendants do not dispute the untimeliness of the demurrer and motion to strike.  Plaintiff has not suffered any prejudice due to the late filings, especially because additional time was provided by Defendants for Plaintiff to review the meet and confer letter due to Attorney Bamdad Rassamdana’s (Rassamdana) illness and additional time was provided per ex parte application to file the oppositions to both motions.  (See Reply, Exh. A; Steve Gohari (Gohari) Decl. pars. 6.)  Without any showing of prejudice, the Court exercised its discretionary authority and considered the demurrer and motion to strike despite the late filings.

Plaintiff argued that Defendants did not meet and confer prior to filing the instant motions.  (Rassamdana Decl. par. 5.)  However, Defendants submitted that counsel spoke over the phone and attached a February 6, 2023, letter outlining the arguments/defects in the FAC.  (Gohari Decl., pars. 4-5, Exh. A.)  Defendants also followed up with emails showing that they provided extra time for Mr. Rassamdana to review the meet and confer letter due to Mr. Rassamdana’s illness preventing him from reviewing the letter.  (Reply Gohari Decl. par. 6, Exh. A.)  Defendants have sufficiently shown their efforts at a good faith meet and confer and complied with the statutory requirements.  Mr. Rassamdana is warned against misrepresenting facts to the Court. 

Defendants’ demurrer argued that the sixth COA for intentional misrepresentation lacked particular facts to show how, when, where, to whom, and by what means the representations were tendered.  However, Plaintiff expressly alleged that the false representations were made in early 2017 and made to Plaintiff.  (FAC par. 6.)  Plaintiff’s sixth COA is deficient because Plaintiff did not allege facts to show how, where, and by what means the representations were made.  Despite Plaintiff’s contention otherwise, Plaintiff failed to expressly allege where the representations were made.  However, Plaintiff’s opposition provided that the pleading defect can be cured since Plaintiff argued that the representations were made at Cyrus Services, Inc.’s principal place of business.  As to how and by what means, Plaintiff’s contention that the representations were made “expressly and affirmatively” are insufficient because the allegations lacks specific facts.  Making a representation “expressly and affirmatively” does not provide facts as to whether the representation was written, spoken, in-person, over the telephone or by some other means.  Defendants’ argument is persuasive and good cause exists to sustain the demurrer.

As to the seventh COA for concealment, the particularity pleading requirement of how, when, where, to whom, and by what means the representations were tendered are not applicable.  The pleading requirement of particular facts only applies to affirmative misrepresentations.  (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.)  Defendants’ argument as to particularity against the seventh COA is unpersuasive.

Both the sixth and seventh COA also fail to plead specific facts to support the element of intent to defraud.  Plaintiff’s allegation as to intent to defraud are conclusory.  Plaintiff’s reliance upon FAC pars. 54 & 63 are unpersuasive.  The two COAs lack any specific fact pleading to support intent to defraud.  Plaintiff’s citation to Defendants’ argument is persuasive as to both COAs.

For the above pleading defects, Defendants’ Demurrer to the sixth and seventh COAs is SUSTAINED WITH LEAVE TO AMEND.

Defendants argued that the sixth and seventh COAs for fraud and concealment should be stricken because the allegations lack facts to show a false representation being made and lack specific and particular fact pleading.  However, the arguments against the sixth and seventh COA are improper for a motion to strike because pleading deficiencies as to the elements of the COAs is an issue for a demurrer.  Defendants’ arguments based upon pleading defects do not show that the allegations are irrelevant, false, or improper.  Defendants’ motion to strike the sixth and seventh COAs is DENIED. 

As to Defendants’ motion to strike punitive damages, Defendants argued that the claim is not supported by facts showing malice, oppression, or fraud.  Punitive damages are alleged under the first COA for defamation, the fourth COA for intentional infliction of emotional distress, the sixth COA for fraud, and seventh COA for concealment.  Plaintiff’s punitive damage claim is found to be deficient because there are insufficient facts to allege malice, oppression, or fraud despite the factual allegations made in the “General Allegations” section of the FAC  and the sixth and seventh COAs for fraud (FAC pars. 6-12, 55 & 64.)  Plaintiff’s reliance upon these allegations to support the punitive damages claim is unfounded.  Defendants’ argument against punitive damages is persuasive.

Defendants’ motion to strike the claim for punitive damages is GRANTED WITH LEAVE TO AMEND.   

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.