Judge: Theresa M. Traber, Case: 24STCV15168, Date: 2025-05-19 Tentative Ruling

Case Number: 24STCV15168    Hearing Date: May 19, 2025    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     May 19, 2025             TRIAL DATE: NOT SET

CASE:                         Javad John Mirtorabi et al. v. Masoud Malek, et al.

CASE NO.:                 24STCV15168           

DEMURRER TO FIRST AMENDED COMPLAINT

MOVING PARTY:               Defendant Masoud Malek, individually and as Co-Trustee of the Malek Family Trust

RESPONDING PARTY(S): Plaintiffs Javad John Mirtorabi and Giti Mirtorabi, individually and as Trustees of the Mirtorabi Trust dated May 22, 2013

CASE HISTORY:

·         06/18/24: Complaint filed.

·         11/27/24: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for breach of a promissory note. Plaintiffs allege that they loaned Defendants money for a real estate transaction which Defendants subsequently failed to repay.

Defendant Malek demurs to the First Amended Complaint in this action.

TENTATIVE RULING:

            Defendant’s Demurrer to the First Amended Complaint is OVERRULED.

            Defendant is ordered to serve and file an answer to the First Amended Complaint within 20 days of this order.

DISCUSSION:

Defendants demur to the First Amended Complaint in this action.

Legal Standard

A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) 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.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Meet and Confer

Before filing a demurrer, the demurring 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.  (Code Civ. Proc., § 430.41(a).) However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer.  (Code Civ. Proc., § 430.41(a)(4)

The Declaration of Shahin Motallebi in support of the Demurrer states that counsel for Defendant sent a single email on December 23, 2024, to attempt an informal resolution of this dispute. (Declaration of Shahin Motallebi ISO Dem. ¶ 2 Exhs. C-D.) Counsel states that no response was received by the time this motion was filed three days later. (Id. ¶ 4.) A single email is not, by the plain language of the operative statute, a sufficient effort to informally resolve this dispute. Moreover, sending such correspondence the afternoon before a major holiday is not a good-faith effort to reach an informal resolution. Defendant has not satisfied his statutory obligations.

Request for Judicial Notice

            Plaintiff requests that the Court take judicial notice of the Case Information Statement and the First Amended Complaint in this action. Although it is not strictly necessary to request judicial notice of the Court’s own docket in this case, Plaintiff’s request is GRANTED pursuant to Evidence Code section 452(d) (court records.)

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First Cause of Action: Breach of Promissory Note

            Defendant demurs to the first cause of action for breach of promissory note for failure to state facts sufficient to constitute a cause of action. Defendant asserts that this cause of action is somehow defective because the documents to which it refers, attached only to the original Complaint and not the operative Amended Complaint, only contain Defendant Malek’s signature and not Defendant Tahereh, despite the notarization stating both Defendants were present. Defendant also asserts that the underlying documents are “false.” The absence of Tahereh’s signature has no bearing on Defendant Malek’s potential liability for this cause of action. Moreover, Defendant offers no authority whatsoever supporting the assertion that the documents are “invalid” or false because of a purported inconsistency in the signatures. A demurrer presumes the truth of the pleadings and addresses only the sufficiency of the allegations as a matter of law. Assertions regarding the falsity of Plaintiff’s contentions are not a proper subject for demurrer.

            Accordingly, Defendant’s Demurrer to the first cause of action is OVERRULED.

Second Cause of Action: Fraud

            Defendant demurs to the second cause of action for fraud for failure to state facts sufficient to constitute a cause of action.

“The elements of fraud that will lead to a tort action are: (a) misrepresentation; (b) knowledge of falsity; (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.) Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant[s] to understand fully the nature of the charge made. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) “This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Ibid.) “[G]eneral and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

            Defendant asserts, without explanation, that the First Amended Complaint fails to set forth allegations of fraud with sufficient specificity. Defendant wholly fails to engage with paragraphs 7 through 9 of the Amended Complaint, which allege that Defendant approached Plaintiff personally and telephonically and made an oral promise in March 2021 to repay a loan of $1.33 million within one year at 3% annual interest, and Defendant would execute a deed of trust to that effect. (FAC ¶ 7.) Plaintiff alleges that he relied upon that representation based upon their friendship to loan Defendant money, but that Defendant never followed through on his promises and never intended to do so, instead keeping the money for himself. (FAC ¶¶ 16-17.) These allegations are sufficient to plead fraud. Defendant’s assertion that Plaintiff cannot “prove” the allegations is wholly irrelevant to a demurrer.

Accordingly, Defendant’s Demurrer to the second cause of action is OVERRULED.

Third Cause of Action: Negligent Misrepresentation

Defendant demurs to the third cause of action for negligent misrepresentation on the same grounds as the second cause of action. Accordingly, for the reasons stated above, Defendant’s Demurrer to the third cause of action is OVERRULED.

Fourth Cause of Action: Money Had and Received

            Defendant demurs to the fourth cause of action for money had and received for failure to state facts sufficient to constitute a cause of action. Defendant asserts that this cause of action is barred by a two-year statute of limitations set forth in Code of Civil Procedure section 339 because it is not founded upon a written contract based on the challenge to the first cause of action. As the Court has rejected the attack on the first cause of action, this argument is not persuasive. Defendant’s arguments premised on Fall v. Lincoln Mortgage Co. (1931) 115 Cal.App. 651, 654, which rest upon the application of that statute, are therefore equally unpersuasive where Defendant has not demonstrated that section 339 is the proper statute.

Accordingly, Defendant’s Demurrer to the fourth cause of action is OVERRULED.

Fifth Cause of Action: Money Paid

            Defendant demurs to the fifth cause of action on the same grounds as the fourth cause of action. Accordingly, for the reasons stated above, Defendant’s Demurrer to the fifth cause of action is OVERRULED.

Sixth Cause of Action: Unjust Enrichment

            Defendant demurs to the sixth cause of action for unjust enrichment on the grounds that Plaintiff has not furnished satisfactory “proof” of the allegations in the pleadings. This contention is totally irrelevant. There is no requirement of proof on a demurrer. Defendant’s Demurrer to the sixth cause of action is OVERRULED.

Seventh Cause of Action: Declaratory Relief

            Defendant demurs to the seventh cause of action on the same grounds as the sixth cause of action. Accordingly, for the reasons stated above, Defendant’s Demurrer to the seventh cause of action is OVERRULED.

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Eighth Cause of Action: Penal Code Section 496

            Defendant demurs to the eighth cause of action on the same grounds as the sixth cause of action. Accordingly, for the reasons stated above, Defendant’s Demurrer to the eighth cause of action is OVERRULED.

CONCLUSION:

            Accordingly, Defendant’s Demurrer to the First Amended Complaint is OVERRULED.

            Defendant is ordered to serve and file an answer to the First Amended Complaint within 20 days of this order.

            Moving party to give notice.

IT IS SO ORDERED.

Dated:  May 19, 2025                                     ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.