Judge: Virginia Keeny, Case: 21VECV00909, Date: 2022-12-29 Tentative Ruling

Case Number: 21VECV00909    Hearing Date: December 29, 2022    Dept: W

JAYESH KHATRI v. SEYED GHASHEM FARKONDEH, et al.

Defendant Seyed Ghasem Farkondeh’s demurrer to the first amended complaint

Date of Hearing:        December 29, 2022                          Trial Date:       None set.

Department:              W                                                        Case No.:        21VECV00909

Moving Party:            Defendant Seyed Farkondeh

Responding Party:     Plaintiff Jayesh Khatri

Meet and Confer:      Yes. (Shamtob Decl. ¶¶3-4.)

BACKGROUND

On December 10, 2021, Plaintiff Jayesh Khatri filed a first amended complaint against Defendants Seyed Ghashem Farkondeh and Zarren Taj Kazemian for fraud, deceit, breach of contract, and waste. Plaintiff alleges around 2017 and 2018, Plaintiff entered into lease agreements with Defendants for certain real property located in Woodland Hills. Plaintiff owns the property. Plaintiff alleges on November 5, 2019, Defendants caused, created, and otherwise failed to prevent the flooding of the Property, which destroyed it and neighboring units. Defendants also failed to maintain insurance. Plaintiff further alleges Defendants fled, leaving the damaged units in their wake and a bill of approximately $58,000.00.

On September 1, 2022, Plaintiff dismissed Defendant Zarrin Taj Kazemian.

[Tentative] Ruling

Defendant Seyed Farkondeh’s Demurrer is SUSTAINED WITH LEAVE TO AMEND

DISCUSSION

Defendant Seyed Farkondeh demurs to the first amended complaint on the grounds Plaintiff fails to allege facts sufficient to support a cause of action against Defendants and the causes of action are uncertain.

First Cause of Action – Actual Fraud

Defendant demurs to the first cause of action on the grounds Plaintiff fails to allege sufficient facts to state their cause of action for fraud.

The elements of fraud are: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In California, fraud, including negligent misrepresentation, must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)  

Defendant argues Plaintiff fails to allege when the purported fraudulent representation was made, which Defendant claimed they would acquire insurance and to who, and whether the representation was made orally or in writing. As a result, Plaintiff’s generalized allegations for fraud fail to identify the “who, what, when, where and how” of the alleged fraudulent representations.

In opposition, Plaintiff argues Defendants sprawling, general and confusing attack is untenable, misrepresentative and seeks both proof and elements not required and as such the demurrer fails. The court is not sure what is confusing about Defendant Farkondeh’s demurrer. Defendant is arguing the fraudulent cause of action is not pleaded with the requisite specificity. The court agrees that the cause of action is not alleged with the requisite specificity.

Plaintiff alleges prior to November 5, 2019, the parties discussed the rights and responsibilities of the contracting parties and Defendant made multiple representations about what he would do and not do, including maintaining insurance for the property. However, it is not clear whether these representations were made via the lease agreement or orally and when they were made. It is also unclear whether Defendant Farkondeh made the representations or the now dismissed Kazemian Defendant. Furthermore, Plaintiff has not alleged any scienter or intent to defraud on behalf of the remaining Defendant nor has Plaintiff alleged their reliance on the misrepresentation.

Accordingly, Defendant’s demurrer to the first cause of action is SUSTAINED WITH LEAVE TO AMEND.

Second Cause of Action – Intentional Deceit

Defendant demurs to the second cause of action on the same grounds as the demurrer to the first cause of action.

Deceit, like actual fraud, must be pled with specificity in order to give notice to the defendant and to furnish him or her with definite charges. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.) For the reasons stated above, the court finds Plaintiff has failed to allege facts sufficient to support a claim for deceit.

Accordingly, Defendant’s demurrer to the second cause of action is SUSTAINED WITH LEAVE TO AMEND.

Fourth Cause of Action – Breach of Contract

Defendant demurs to the fourth cause of action on the grounds Plaintiff fails to allege sufficient facts to state their cause of action for breach of contract.

“The standard elements of a claim for breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.) 

Defendant argues the third cause of action is fatally vague and ambiguous because Plaintiff attaches multiple purported contracts to the First Amended Complaint and fails to distinguish between which of the contracts was purportedly breached.

In opposition, Plaintiff argues they have sufficiently alleged the breach of both terms of the agreement. The court disagrees.

The FAC alleges around 2017 and again 2018, Plaintiff entered into two lease agreements to use certain property for their use and enjoyment and attaches the two lease agreements as Exhibit A. The FAC further alleges the parties entered into a December 2017 agreement, which Defendant breached. (FAC ¶37-29.) Notwithstanding the fact that the attached lease agreements are dated for 2016 and 2017, the fourth cause of action fails to allege the terms of the contract. “A written contract may be pleaded by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) “In order to plead a contract by its legal effect, plaintiff must allege the substance of its relevant terms.” (Id.) Plaintiff fails to allege what terms Defendant breached.

Accordingly, Defendant’s demurrer to the fourth cause of action is SUSTAINED WITH LEAVE TO AMEND.

Fifth Cause of Action – Waste

Defendant demurs to the fifth cause of action for waste on the grounds Plaintiff fails to allege sufficient facts to support a cause of action.

Waste is “an unlawful act or omission of duty on the part of a tenant, resulting in permanent injury to the [property].” (Avalon Pacific-Santa Ana, L.P. v. HD Supply Repair & Remodel, LLC (2011) 192 Cal.App.4th 1183, 1211.) To state a cause of action for waste, a plaintiff must allege that the defendant was under a duty to preserve and protect the property involved. (See id. at 1212.)  

Defendant argues the FAC fails to allege Defendant was under a duty to preserve and protect the property in question and further fails to allege that such commission of “waste” was in violation of any covenant or condition of the lease agreement.

In opposition, Plaintiff argues Plaintiff has sufficiently alleged Defendant wholly destroyed, flooded and damaged the Property substantially and permanently, in amounts close to $100,000. The court disagrees. Plaintiff does not allege Defendant was under a duty to preserve and protect the property involved. The fifth cause of action simply alleges Plaintiff owns the property and Defendant was the actual and proximate cause of the injury to the property. This is insufficient to constitute a cause of action for waste.

Accordingly, Defendant’s demurrer to the fifth cause of action for waste is SUSTAINED WITH LEAVE TO AMEND.