Judge: Upinder S. Kalra, Case: 20STCV29855, Date: 2022-08-09 Tentative Ruling
Case Number: 20STCV29855 Hearing Date: August 9, 2022 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: August
9, 2022
CASE NAME: CA Bijoux Bijoux, Inc., v. Behrouz
Messian, et al.
CASE NO.: 20STCV29855
PLAINTIFF/CROSS-DEFENDANT’S
DEMURRER WITH MOTION TO STRIKE
MOVING PARTY: Plaintiff/Cross-Defendant CA Bijoux
Bijoux
RESPONDING PARTY(S): Defendant/Cross-Complainant
Behrouz Messian
REQUESTED RELIEF:
1. An
order sustaining the demurrer as to the first, second, third, and sixth causes
of action
2. An
order granting the motion to strike
TENTATIVE RULING:
1. Demurrer
is SUSTAINED, as to all causes of action, without leave to amend.
2. Motion
to Strike is Moot.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On August 6, 2020, Plaintiff CA Bijoux Bijoux (“Plaintiff”)
filed a complaint against Defendants Behrouz Messian and Sharona Yeshoufar
Messian (“Defendants”) seeking damages arising from the defendants’ alleged
theft of funds from the plaintiff’s bank account.
The First Amended Complaint, filed on march 1, 2021,
plaintiff alleged four causes of action for (1) Theft, Embezzlement, and
Conspiracy to Steal and Embezzle, (2) Conversion and Conspiracy to Convert, (3)
Breach of Implied Contract, and (4) Money Had and Received.
Defendants and Cross-Complainant Behrouz and Sharona filed a
cross-complaint on October 29, 2021. The First Amended Complaint was filed on
December 1, 2021. Plaintiff demurred and the Court SUSTAINED, with leave to
amend.
The Second Amended Complaint was filed on May 2, 2022.
This current Demurrer and Motion to Strike was filed on May
25, 2022. Defendant’s Opposition was filed on July 21, 2022. The reply was
filed on August 1, 2022.
LEGAL STANDARD
Demurrer:
“The primary function of a pleading
is to give the other party notice so that it may prepare its case [citation],
and a defect in a pleading that otherwise properly notifies a party cannot be
said to affect substantial rights.” (Harris
v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) “A¿demurrer¿tests
the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A.¿(2017) 9 Cal.App.5th 719,
725.) The Court looks to whether “the complaint alleges facts sufficient
to state a cause of action or discloses a complete defense.” (Id.) The Court does not “read
passages from a complaint in isolation; in reviewing a ruling on a demurrer, we
read the complaint ‘as a whole and its parts in their context.’
[Citation.]” (West v. JPMorgan Chase
Bank, N.A. (2013) 214
Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly
pleaded factual allegations, facts that reasonably can be inferred from
those expressly pleaded and matters of which judicial notice has been
taken.” (Harris, supra, 56 Cal.4th p.
240.) “The court does not, however, assume the truth of contentions,
deductions or conclusions of law. [Citation.]” (Durell v. Sharp
Healthcare (2010) 183 Cal.App.4th 1350, 1358.)
A general demurrer may be brought
under Code of Civil Procedure section 430.10, subdivision (e) if insufficient
facts are stated to support the cause of action asserted or under section
430.10, subdivision (a), where the court has no jurisdiction of the subject of
the cause of action alleged in the pleading. All other grounds listed in
Section 430.10, including uncertainty under subdivision (f), are special
demurrers. A special demurrer for uncertainty may be brought under Code of
Civil Procedure, section 430.10 (f) where the pleading is so poorly written
that the defendant cannot reasonably respond. Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616
(Khoury). However, this is a
disfavored ground for sustaining a demurrer. Ibid. Special demurrers are not allowed in limited
jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335,
348.) The burden is on the complainant to show the Court that a pleading
can be amended successfully. (Id.)
Finally, Code of Civil Procedure
section 430.41 requires that “[b]efore filing a demurrer pursuant to this
chapter, the demurring party shall meet and confer in person or by telephone
with the party who filed the pleading that is subject to demurrer for the
purpose of determining whether an agreement can be reached that would resolve
the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd.
(a).) The parties are to meet and confer at least five days before the date the
responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).)
Thereafter, the demurring party shall file and serve a declaration detailing
their meet and confer efforts. (Code Civ. Proc., § 430.41, subd.
(a)(3).)
Motion to Strike
The court may, upon a motion, or at any time in its
discretion, and upon terms it deems proper, strike any irrelevant, false, or
improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The
court may also strike all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the court.
(Id., § 436(b).) The grounds for a
motion to strike are that the pleading has irrelevant, false or improper
matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving
to strike must appear on the face of the pleading or by way of judicial notice.
(Id. § 437.) “When the
defect which justifies striking a complaint is capable of cure, the court
should allow leave to amend.” (Vaccaro v.
Kaiman (1998) 63 Cal.App.4th 761, 768.)
Procedural Matter:
Meet and Confer:
The Declaration of Stephen Marcus indicates that he sent an
email to Defendant’s counsel outlining the basis for the proposed demurrer. In
response via email, Mr. Kade, Defendant’s counsel, stated that he would refuse
to withdraw the FAC. (Dec. Marcus ¶ 3-4).
Service:
The proof of service attached the Demurrer and reply
indicates that Defendant’s counsel was served via mail and email. The proof of
service attached to the Opposition was served via email and mail.
Length of
Memorandum
Under Rule 3.1113, subsection (d) indicates that responding
memorandum may not exceed 15 pages. Under subsection (f), if a memorandum
exceeds 10 pages, a table of contents and table of authorities must be
included. Here, Defendant’s opposition exceeds the 15 page limit, filing a 21
page opposition. Further, there was no table of contents or table of
authorities attached. However, under subsection (g), an oversized memo is
considered in the same manner as a late-filed paper. Under Rule of Court Rule
3.1300, a court has discretion to refuse to consider the paper, but
nonetheless, the court will.
ANALYSIS:
Plaintiff/Cross-Defendant Ca Bijoux Bijoux (“Plaintiff”)
demurs to the Second Amended Cross-Complaint (“SAXC”) on the grounds of
sufficiency and uncertainty.
First, there are uncertainties as
to whether contracts were made by Plaintiff, what Plaintiff allegedly promised
to refrain from doing and what representations were made and second,
uncertainties
1.
First
Cause of Action: Breach of Contract
Plaintiff contends that the SAXC fails to state a cause of
action for breach of oral contract.
“To establish a cause of action for breach
of contract, the plaintiff must plead and prove (1) the existence of the
contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the
defendant’s breach, and (4) resulting damages to the plaintiff.
[Citation.]” (Maxwell v. Dolezal
(2014) 231 Cal.App.4th 93, 97-98.) “The elements of a breach of oral contract
are the same as those for breach of a written contract. [Citations.]” (Stockton Mortgage, Inc. v. Tope (2014)
223 Cal.App.4th 437, 453.)
Previously, this Court indicated
that the First Amended Cross-Complaint was uncertain with respect to many
different aspects of the oral agreement and indicated these uncertainties. (Ruling
filed 4/14/2022). These uncertainties included, but were not limited to, if
Plaintiff CBB was a party to the agreement, what were the obligations under the
oral agreement, what were the terms to terminate the agreement, the allegation
of “mother company.” In this current demurrer, Plaintiff contends that
uncertainties are still present. There is uncertainty as to when the contract
was made – the SAXC states in 1999; the obligations Plaintiff had under the
oral agreement, specifically paragraph 29; whether the alleged representations
were made during the oral agreement or as a separate agreement; which entity
Defendant worked for, as paragraph 30, 31 indicate Defendant was working for
Plaintiff but paragraph 34 states that Defendant agreed to work for Net;
uncertainty as to who received the $120,000 in cash that Defendant paid; what
the “mother company” allegation means; what act or omissions was considered a
breach, specifically stated in paragraph 41.
In opposition, Defendant merely
provides the paragraphs from the SAXC without any explanations. Defendant
indicates that paragraphs 29 and 30 provide that there was an oral contract
between the Plaintiffs and Defendants that the they would be 1/3 partners with
1/3 interest in corporations and LLCs, like Bijoux organic Spa in exchange for Defendant
bringing $120,000; paragraphs 31-36 was acceptance and performance, whereby the
Defendant worked 5 to 6 days a week at Plaintiff CA Bijoux Bijoux; the breach
is established in 41-43, when Cross-Defendants stated that Cross-Complainant
was an employee and could not be a signatory on the Wells Fargo bank account;
lastly, paragraphs 45 and 57 establish damages as it states the Defendant loss
capital contributions but other compensation for 1/3 interest.
The SAXC is still uncertain. There
is uncertainty as to whether Plaintiff was a party to the contract, what the
mother company is, who received the $120,000 in cash in exchange for work. (SAXC
¶ 24, 30, 31). The SAXC does not indicate whether Plaintiff was a party to the
contract, as opposed to the two other individuals, Bahram Messian and David
Messian. The language “acting individually and as officers and directors of
plaintiff and cross-defendant Ca Bijoux Bijoux, and acting with the authority
to speak for…” is insufficient to indicate if Plaintiff was a party to the oral
agreement. The previous FAXC contained the same language and the Court here
indicated that the was uncertainty as to whether Plaintiff was a party to the
agreement. Defendant has failed to establish that Plaintiff was a party to the
agreement. Moreover, in paragraphs 24, 26 and 37, Defendant states that plaintiff
“acted as a mother company for other corporations and LLCs owned or trolled by
cross-defendants.” This is uncertain and Defendant failed to provide further
explanation, as indicated in the Ruling by this Court previously. Lastly, there
is uncertainty as to who accepted the $120,000 in cash. Therefore, the SAXC is
uncertain.
Previously, this Court indicated
that the SAXC should take into account and answer the various questions. The
court was also not inclined to grant leave to amend if it is still deficient. Because
the SAXC is still deficient, the Demurrer as to the First Cause of Action is
SUSTAINED, without leave to amend.
2.
Second
Cause of Action: Fraud
Plaintiff
contends that the SAXC does not contain sufficient allegations to constitute
fraud.
“The elements of promissory fraud ... are: (1) a
promise made regarding a material fact without any intention of performing it;
(2) the existence of the intent not to perform at the time the promise was
made; (3) intent to deceive or induce the promisee to enter into a transaction;
(4) reasonable reliance by the promisee; (5) nonperformance by the party making
the promise; and (6) resulting damage to the promise[e].” (Rossberg
v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1498 [162
Cal.Rptr.3d 525, 539], as modified on denial of reh'g (Sept. 26, 2013) “As with any other form of fraud, each element of a promissory
fraud claim must be alleged with particularity.” (Id.).
“[T]he intent element of promissory fraud entails more than
proof of an unkept promise or mere failure of performance. We note also that
promissory fraud, like all forms of fraud, requires a showing of justifiable
reliance on the defendant's misrepresentation.” (Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn.
(2013) 55 Cal.4th 1169, 1183). 2..
The second cause of action for
promissory fraud fails to allege sufficient facts to constitute fraud. As
stated above, fraud requires pleadings with specificity. “An action for
promissory fraud may lie where a defendant fraudulently induces the plaintiff to
enter into a contract.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638).
However, as stated above, the SAXC fails to sufficient plead that the Plaintiff
and Defendant entered into a contract and what promises were made. Moreover,
the SAXC also does not show that Plaintiff had an intent to deceive or not to
perform. The Therefore, the SAXC does not contain the sufficient specific
elements for a claim for promissory fraud.
Demurrer as to the Second Cause of Action is SUSTAINED,
without leave to amend.
3.
Third
Cause of Action: Declaratory Relief
Plaintiff contends that this cause of action also fails as
the allegations are based on the existence of an alleged oral agreement.
Without this oral agreement being sufficiently pled, this cause of action
fails.
“To qualify for declaratory relief
under section 1060, plaintiffs were required to show their action (as refined
on appeal) presented two essential elements: “(1) a proper subject of
declaratory relief, and (2) an actual controversy involving justiciable
questions relating to the rights or obligations of a party.” (Lee v. Silveira (2016) 6 Cal.App.5th
527, 546) ““Declaratory relief operates prospectively to declare future rights,
rather than to redress past wrongs.” (County
of San Diego v. State of California (2008) 164 Cal.App.4th 580, 607).
Here, the SAXC is seeking to
redress past wrongs. The SAXC, specifically, paragraph 64, states that the
actions “cause and deprived cross-complainant of the monies owed to him as 1/3
partner and owner of plaintiff and corss-defendant Bijoux Bijoux, Inc.” Further
in paragraph 65, the SAXC states that this action caused the termination of the
1/3 interest. As such, this SAXC is seeking to redress the alleged wrong of
terminating Defendant’s 1/3 interest. While paragraph 66 states that there is
an actual controversy, it still is based on the alleged termination of 1/3
partner, a past wrong.
Demurrer as to the Third Cause of
Action is SUSTAINED, without leave to amend.
4.
Sixth
Cause of Action: Accounting
Plaintiff argues that this cause
of action fails. Specifically, Defendant does not have a claim as to the
Plaintiff’s assets as a corporate entity. Moreover, Defendant did not plead a
shareholder derivative action.
“An action for an accounting has
two elements: (1) “that a relationship exists between the plaintiff and
defendant that requires an accounting” and (2) “that some balance is due the
plaintiff that can only be ascertained by an accounting.” (Sass v. Cohen (2020) 10 Cal.5th 861, 869).
The SAXC indicates that Defendants
are unaware of the amount owed by Plaintiffs, and all profits and losses as to
Plaintiff “as the mother corporations of all other corporations and LLCs owned
by the Bahram and David Messian. (SAXC ¶ 83). However, regardless, as Plaintiff
argues, that Defendant cannot claim assets as to the Plaintiff because it is a corporate
entity, Defendant still cannot prove a relationship. This accounting is based
on the alleged oral agreement. As stated above, there is insufficient facts to
establish an agreement with Plaintiff and Defendant. Without this agreement,
the firs element for a cause of action for accounting fails.
Motion to Strike:
Since the court has Sustained the
Demurrer without leave to amend as to all causes of action naming Defendant
Bijoux Bijoux, Inc., the Motion to Strike is Moot.
Conclusion:
For
the foregoing reasons, the Court decides the pending motion as follows:
Demurrer is
SUSTAINED, as to all causes of action, without leave to amend.
Motion to Strike is Moot.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: August
9, 2022 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court