This case was last updated from Los Angeles County Superior Courts on 08/26/2020 at 19:13:56 (UTC).

ALBERT KAMKAR VS MICHAEL RAHIMI

Case Summary

On 08/26/2019 ALBERT KAMKAR filed a Contract - Debt Collection lawsuit against MICHAEL RAHIMI. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******7845

  • Filing Date:

    08/26/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Debt Collection

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

KAMKAR ALBERT

Defendant

RAHIMI MICHAEL

Attorney/Law Firm Details

Defendant Attorney

PINDER DUSTIN

 

Court Documents

Complaint - (Amended)

8/26/2019: Complaint - (Amended)

Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

3/4/2020: Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

Reply (name extension) - Reply to Opposition to Defendant Michael Rahimi's Motion to Strike

2/26/2020: Reply (name extension) - Reply to Opposition to Defendant Michael Rahimi's Motion to Strike

Reply (name extension) - Reply to Opposition to Defendant Michael Rahimi Motion to Strike

2/18/2020: Reply (name extension) - Reply to Opposition to Defendant Michael Rahimi Motion to Strike

Memorandum of Points & Authorities - Memorandum of Points & Authorities

2/5/2020: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Notice (name extension) - Notice of Motion and Motion by Defendant Michael Rahimi to Strike Plaintiff's Claim of Damages for $2,500

2/5/2020: Notice (name extension) - Notice of Motion and Motion by Defendant Michael Rahimi to Strike Plaintiff's Claim of Damages for $2,500

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

2/5/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Memorandum of Points & Authorities - Memorandum of Points & Authorities

2/5/2020: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

2/5/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Notice (name extension) - Notice of Demurrer to Second Amended Complaint

2/5/2020: Notice (name extension) - Notice of Demurrer to Second Amended Complaint

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

1/15/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Proof of Service by Mail - Proof of Service by Mail

12/2/2019: Proof of Service by Mail - Proof of Service by Mail

Reply (name extension) - Reply Plaintiff's Reply to Opposition to Defendant Michael Rahimi's Motion to Strike Plaintiff's Demand for $7,500.00

11/13/2019: Reply (name extension) - Reply Plaintiff's Reply to Opposition to Defendant Michael Rahimi's Motion to Strike Plaintiff's Demand for $7,500.00

Notice of Change of Address or Other Contact Information - Notice of Change of Address or Other Contact Information

11/20/2019: Notice of Change of Address or Other Contact Information - Notice of Change of Address or Other Contact Information

Declaration (name extension) - Declaration of Dustin Pinder in Support of Demurrer

10/11/2019: Declaration (name extension) - Declaration of Dustin Pinder in Support of Demurrer

Declaration (name extension) - Declaration of Dustin A Pinder

10/15/2019: Declaration (name extension) - Declaration of Dustin A Pinder

50 More Documents Available

 

Docket Entries

  • 08/29/2022
  • Hearing08/29/2022 at 10:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 02/22/2021
  • Hearing02/22/2021 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 04/01/2020
  • DocketProof of Service by Mail; Filed by: Albert Kamkar (Plaintiff); As to: Michael Rahimi (Defendant); After Substituted Service of Summons & Complaint ?: No

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  • 03/05/2020
  • DocketNotice of Ruling; Filed by: Michael Rahimi (Defendant)

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  • 03/04/2020
  • DocketMinute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

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  • 03/04/2020
  • DocketHearing on Demurrer - with Motion to Strike (CCP 430.10) scheduled for 03/04/2020 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 03/04/2020; Result Type to Held

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  • 03/02/2020
  • DocketReply Plaintiff's Albert Kamkar Reply to Opposition to Defendant Michael Rahimi Demurrer to Plaintiff's Second Amended Complaint; Filed by: Albert Kamkar (Plaintiff)

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  • 03/02/2020
  • DocketProof of Service by Mail; Filed by: Albert Kamkar (Plaintiff); As to: Michael Rahimi (Defendant); After Substituted Service of Summons & Complaint ?: No

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  • 03/02/2020
  • DocketReply Plaintiff's Albert Kamkar Reply to Opposition to Defendant Michael Rahimi Motion to Strike; Filed by: Albert Kamkar (Plaintiff)

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  • 03/02/2020
  • DocketProof of Service by Mail; Filed by: Albert Kamkar (Plaintiff); As to: Michael Rahimi (Defendant); After Substituted Service of Summons & Complaint ?: No

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56 More Docket Entries
  • 08/26/2019
  • DocketUpdated -- Amended Complaint (2nd): Status Date changed from 01/09/2020 to 08/26/2019

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  • 08/26/2019
  • DocketUpdated -- Amended Complaint (3rd): Status Date changed from 04/01/2020 to 08/26/2019

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  • 08/26/2019
  • DocketRequest to Waive Court Fees; Filed by: Albert Kamkar (Plaintiff)

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  • 08/26/2019
  • DocketOrder on Court Fee Waiver (Superior Court); Signed and Filed by: Clerk; As to: Albert Kamkar (Plaintiff)

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  • 08/26/2019
  • DocketCivil Case Cover Sheet; Filed by: Albert Kamkar (Plaintiff)

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  • 08/26/2019
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 08/26/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 08/26/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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  • 08/26/2019
  • DocketNon-Jury Trial scheduled for 02/22/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 08/26/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 08/29/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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Tentative Rulings

Case Number: 19STLC07845    Hearing Date: March 04, 2020    Dept: 25

DEMURRER WITH MOTION TO STRIKE

(CCP §§ 430.10, et seq; 436)

TENTATIVE RULING:

Defendant Michael Rahimi’s Demurrer to Plaintiff’s Second Amended Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND as to the first cause of action and SUSTAINED WITHOUT LEAVE TO AMEND as to the second and third causes of action.

Defendant’s Motion to Strike is GRANTED WITH 20 DAYS’ LEAVE TO AMEND as to the $2,500.00 request for damages arising out of the contract and GRANTED WITHOUT LEAVE TO AMEND as to the requests for attorney’s fees and damages under Civil Code section 3294 and Welfare and Institutions Code section 15657.5.

OPPOSITION: Filed on February 18, 2020

REPLY: Filed on February 26, 2020

ANALYSIS:

  1. Background

On August 26, 2019, Plaintiff Albert Kamkar (“Plaintiff”) filed an action for breach of contract, open book account, and fraudulent conveyance against Defendant Michael Rahimi (“Defendant”).

On October 11, 2019, Defendant filed a Demurrer and Motion to Strike as to Plaintiff’s original Complaint. On November 13, 2019, the Court sustained the demurrer with leave to amend as to the first and third causes of action, and sustained without leave to amend as to the second cause of action for open book account. (11/13/19 Minute Order.) The Court also granted Defendant’s request to strike the $7,500 in damages and attorney’s fees. (Id.)

On December 2, 2019, Plaintiff filed a First Amended Complaint and on January 9, 2020, he filed a Second Amended Complaint (“SAC”) alleging two causes of action for breach of contract and a cause of action for fraudulent conveyance.

On February 5, 2020, Defendant filed the instant Demurrer to Plaintiff’s Second Amended Complaint (the “Demurrer”) and Motion to Strike. On February 18, 2020, Plaintiff filed an Opposition and on February 26, 2020, Defendant filed a Reply.

  1. Demurrer

  1. Legal Standard

“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.)

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).)

  1. Meet and Confer

The Court finds that Defendant has satisfied the meet and confer requirement of Code of Civil Procedure section 430.41, subd. (a). (Demurrer, Pinder Decl., ¶¶ 4-5.)

  1. Discussion

Defendant demurs to Plaintiff’s entire SAC on the basis that it fails to state facts sufficient to constitute a cause of action against him.

  1. First Cause of Action - Breach of Written 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.] ‘In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.’ [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)

The SAC alleges that the parties entered into an agreement for structural design services on August 15, 2016 with respect to property located at 18054 Blue Sail Dr., Pacific Palisades, CA 90272 for a fee of $1,500.00, not including any changes requested by Defendant. (SAC, ¶ 6, Exh. A.) As to the element of damages, Plaintiff alleges that a balance of $797.00 has been past due since October 27, 2016 and requests a total of $2,500.00, which includes “principal balance of $797.00, interest, late fees for 38 months, financial sustained damages, and expenses.” (Id.)

As to the element of performance, Plaintiff alleges that he “completed his a [sic] job site located at 18054 Blue Sail Dr., Pacific Palisades, CA 90272.” (Id.) In addition to this language being confusing, Plaintiff has not plead sufficient facts to demonstrate he performed as required under the alleged contract. Plaintiff attempts to remedy this by alleging in his Opposition that he fully performed under the contract and that he “worked more under the contract.” (Oppo. p. 2.) However, as a demurrer tests the legal sufficiency of a pleading on its own, the Court cannot consider any allegations outside of the SAC in making a determination.

As to the element of breach, Plaintiff alleges that although a demand has been made upon Defendant, “[he] refused to pay balance of $797.00.” (SAC, ¶ 6.) However, he has not demonstrated with facts why the refusal to pay this balance constituted a breach of the alleged contract.

For the reasons stated above, the demurrer to the first cause of action is SUSTAINED with 20 days’ leave to amend.

  1. Second Cause of Action – Breach of Contract as Against All Defendants

Although difficult to understand, the second breach of contract cause of action appears to be a duplicate of the first. Plaintiff alleges that on August 15, 2016, the parties entered into an agreement “as payment is due upon works is done for said structural design services to Defendants” [sic] and that as of December 1, 2019, a balance remained of $797.00. (SAC, ¶ 10.) However, as Plaintiff does not seem to be alleging the breach of a different contract, Defendant’s demurrer as to the second cause of action is SUSTAINED without leave to amend.

  1. Third Cause of Action – Fraudulent Conveyance

A fraudulent conveyance is a “transfer by the debtor of property to a third person undertaken with the intent to prevent a creditor from reaching that interest to satisfy its claim.” (Filip v. Bucurenciu (2005) 129 Cal.App.4th 825, 829.) The Court’s November 13, 2019 Minute Order noted that Plaintiff’s third cause of action appeared to be one for fraud. A cause of action for fraud must be alleged with specificity such that Plaintiff pleads facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

The allegations for fraud/fraudulent conveyance in the SAC are almost identical to the allegations in Plaintiff’s original Complaint. This is especially relevant given that the Court previously sustained a demurrer as to this cause of action because Plaintiff made no factual allegations as to the manner in which a promise was made, where it was made, or by what means. (11/13/19 Minute Order.) As Plaintiff was given the opportunity to cure these deficiencies but failed to do so, the demurrer as to the third cause of action is SUSTAINED without leave to amend.

  1. Motion to Strike

  1. Legal Standard

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (Code Civ. Proc. §§ 435; 436, subd. (a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (Code Civ. Proc. § 436, subd. (b).) Motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc. § 92, subd. (d).)

In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) California’s policy of liberal construction applies to motions to strike. (Code Civ. Proc. § 452; see also Duffy v. Campbell (1967) 250 Cal.App.2d 662, 666 [noting that courts must resolve all reasonable doubts in favor of the pleading when considering a motion to strike].) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (Code Civ. Proc. § 436.)

Finally, Code of Civil Procedure section 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc. § 435.5, subd. (a).)

  1. Meet and Confer

The Court finds that Defendant’s Motion to Strike is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 435.5, subdivision (a). (Mot., Pinder Decl., ¶¶ 4-5.)

  1. Discussion

Defendant moves to strike Plaintiff’s request for $2,500.00 in damages, the request for attorney’s fees, and the requests for damages under Civil Code section 3294 and Welfare and Institutions Code section 15657.5. (Oppo., p. 6.)

The SAC does not allege facts showing that Plaintiff is entitled to damages in the amount of $2,500.00. The parties’ agreement itself is limited to $1,500.00 absent changes to plans made by the client. (SAC, ¶ 6, Exh. A.) Although Plaintiff alleges that he is seeking interest, late fees for 38 months, “financial sustained damages,” expenses, and attorney’s fees, none of this is recoverable by the plain terms of the contract. (Id. and ¶ 20.)

In addition, Plaintiff has not demonstrated he is entitled to damages under Civil Code section 3294. Civil Code section 3294, provides that “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code § 3294, subd. (a).) (Emphasis added.) As Plaintiff’s remaining cause of action is one for breach of contract, Plaintiff cannot recover damages pursuant to Section 3294.

Further, Plaintiff’s requests for attorney’s fees, costs, and exemplary damages under Welfare & Institutions Code section 15657.5 are unfounded. Section 15657.5 applies to the financial abuse of an elder or dependent adult as defined by Welfare and Institutions Code section 15610.30. As Plaintiff has not alleged he is an elder or dependent adult, and as he has not alleged “financial abuse” as defined by section 15610.30, Plaintiff’s request is unsupported.

Thus, the Motion to Strike is GRANTED with 20 days’ leave to amend as to the $2,500.00 request for damages arising out of the contract and GRANTED without leave to amend as to the request for attorney’s fees, damages under Civil Code section 3294 and Welfare and Institutions Code section 15657.5.

  1. Conclusion & Order

For the foregoing reasons, Defendant Michael Rahimi’s Demurrer to Plaintiff’s Second Amended Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND as to the first cause of action and SUSTAINED WITHOUT LEAVE TO AMEND as to the second and third causes of action.

Defendant’s Motion to Strike is GRANTED WITH 20 DAYS’ LEAVE TO AMEND as to the $2,500.00 request for damages arising out of the contract and GRANTED WITHOUT LEAVE TO AMEND as to the requests for attorney’s fees and damages under Civil Code section 3294 and Welfare and Institutions Code section 15657.5.

Moving party is ordered to give notice.

Case Number: 19STLC07845    Hearing Date: January 29, 2020    Dept: 25

MOTION FOR SUMMARY JUDGMENT  

(CCP § 437c)

TENTATIVE RULING:

Thus, Plaintiff’s Motion is DENIED.

III. Conclusion & Order

For the foregoing reasons, Plaintiff Albert Kamkar’s Motion for Summary Judgment is DENIED.

Moving party is ordered to give notice.

Case Number: 19STLC07845    Hearing Date: January 28, 2020    Dept: 25

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING:

Background

On August 26, 2019, Plaintiff Albert Kamkar (“Plaintiff”) filed a Complaint for breach of contract, open book account, and fraudulent conveyance against Defendant Michael Rahimi (“Defendant”).

On October 11, 2019, Defendant filed a Demurrer as to all of Plaintiff’s causes of action. Defendant concurrently filed a Motion to Strike Plaintiff’s request for $7,500 in damages and request for attorney’s fees. On November 13, 2019, the Court sustained Defendant’s Demurrer with 20 days’ leave to amend as to the breach of contract and fraud causes of action and sustained without leave to amend as to the open book account cause of action. (11/13/19 Minute Order.) The Court also granted Defendant’s Motion to Strike with 20 days’ leave to amend. (Id.)

II. Legal Standard & Discussion

Code of Civil Procedure section 437c provides that a motion for summary judgment may be made “at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed at” unless the court permits the motion to be made earlier, for good cause shown. (Code Civ. Proc., § 437c, subd. (a)(1).) Here, Plaintiff filed the instant Motion only 35 days after filing his Complaint and has not demonstrated good cause for allowing the Motion to be filed before 60 days have elapsed.

In addition, notice of the motion and supporting papers must be served on all other parties to the action at least 75 days before the scheduled hearing, or 80 days if the notice is served by mail to a California address. (Code Civ. Proc., § 437c, subd. (a)(2).) Here, Plaintiff did not attach a proof of service demonstrating that the Motion was properly served on Defendant. Instead, at the end of his argument, Plaintiff states, “Notice of this the [sic] original application for default judgment by court [sic] was served on defendant Michael Rahimi on 9/30/2019, by first class United States mail, postage prepaid.” (Mot., p. 2:19-21.) (Italics added.) However, this statement, which does not even refer to the instant Motion, is insufficient and does not satisfy Code of Civil Procedure section 1013a. Indeed, “[s]uccessful service by mail requires strict compliance with all statutory requirements” and the “failure to comply deprives the court of jurisdiction to act.” (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509.)

Furthermore, the motion must be supported by “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).) In his Motion, Plaintiff states that that he will present proof at the hearing that Defendant had a habit of intentionally defrauding people and that Plaintiff is entitled to judgment “on account of the claims pleaded in the complaint.” (Mot., p. 2:3-9.) His only evidence is a copy of what appears to be a screenshot of a list of cases where Defendant is also a party. (Mot., p. 2:3-9, Exh. A.) However, that document is unauthenticated. (Mot., p. 2:3-9, Exh. A.) A writing must be authenticated by declarations or other evidence that establishes the writing is what it purports to be. (Evid. Code §§ 250, 1401, subd. (a).)

Moreover, supporting papers must “include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.” (Id.) Failure to comply with the separate statement requirement constitutes grounds for denial of the motion in the Court’s discretion. (Id.) Here, Plaintiff has not included a separate statement of undisputed material facts with his Motion. A separate statement is important because it “provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) Plaintiff’s failure to include a separate statement alone constitutes sufficient grounds to deny the Motion.

Plaintiff has also not included a memorandum of points and authorities to support his Motion as required by California Rules of Court, rule 3.1113, subdivision (a). Failure to submit a memorandum of points and authorities can be construed as an admission that the motion is “not meritorious and cause for its denial.” (Cal. Rules of Court, rule 3.1113, subd. (a).)

Thus, Plaintiff’s Motion is DENIED.

III. Conclusion & Order

For the foregoing reasons, Plaintiff Albert Kamkar’s Motion for Summary Judgment is DENIED.

Moving party is ordered to give notice.

Case Number: 19STLC07845    Hearing Date: January 27, 2020    Dept: 25

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING:

Plaintiff Albert Kamkar’s Motion for Summary Judgment is DENIED.

I. Background

On August 26, 2019, Plaintiff Albert Kamkar (“Plaintiff”) filed a Complaint for breach of contract, open book account, and fraudulent conveyance against Defendant Michael Rahimi (“Defendant”).

On October 11, 2019, Defendant filed a Demurrer as to all of Plaintiff’s causes of action. Defendant concurrently filed a Motion to Strike Plaintiff’s request for $7,500 in damages and request for attorney’s fees. On November 13, 2019, the Court sustained Defendant’s Demurrer with 20 days’ leave to amend as to the breach of contract and fraud causes of action and sustained without leave to amend as to the open book account cause of action. (11/13/19 Minute Order.) The Court also granted Defendant’s Motion to Strike with 20 days’ leave to amend. (Id.)

II. Legal Standard & Discussion

Code of Civil Procedure section 437c provides that a motion for summary judgment may be made “at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed at” unless the court permits the motion to be made earlier, for good cause shown. (Code Civ. Proc., § 437c, subd. (a)(1).) Here, Plaintiff filed the instant Motion only 35 days after filing his Complaint and has not demonstrated good cause for allowing the Motion to be filed before 60 days have elapsed.

In addition, notice of the motion and supporting papers must be served on all other parties to the action at least 75 days before the scheduled hearing, or 80 days if the notice is served by mail to a California address. (Code Civ. Proc., § 437c, subd. (a)(2).) Here, Plaintiff did not attach a proof of service demonstrating that the Motion was properly served on Defendant. Instead, at the end of his argument, Plaintiff states, “Notice of this the [sic] original application for default judgment by court [sic] was served on defendant Michael Rahimi on 9/30/2019, by first class United States mail, postage prepaid.” (Mot., p. 2:19-21.) (Italics added.) However, this statement, which does not even refer to the instant Motion, is insufficient and does not satisfy Code of Civil Procedure section 1013a. Indeed, “[s]uccessful service by mail requires strict compliance with all statutory requirements” and the “failure to comply deprives the court of jurisdiction to act.” (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509.)

Furthermore, the motion must be supported by “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).) In his Motion, Plaintiff states that that he will present proof at the hearing that Defendant had a habit of intentionally defrauding people and that Plaintiff is entitled to judgment “on account of the claims pleaded in the complaint.” (Mot., p. 2:3-9.) His only evidence is a copy of what appears to be a screenshot of a list of cases where Defendant is also a party. (Mot., p. 2:3-9, Exh. A.) However, that document is unauthenticated. (Mot., p. 2:3-9, Exh. A.) A writing must be authenticated by declarations or other evidence that establishes the writing is what it purports to be. (Evid. Code §§ 250, 1401, subd. (a).)

Moreover, supporting papers must “include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.” (Id.) Failure to comply with the separate statement requirement constitutes grounds for denial of the motion in the Court’s discretion. (Id.) Here, Plaintiff has not included a separate statement of undisputed material facts with his Motion. A separate statement is important because it “provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) Plaintiff’s failure to include a separate statement alone constitutes sufficient grounds to deny the Motion.

Plaintiff has also not included a memorandum of points and authorities to support his Motion as required by California Rules of Court, rule 3.1113, subdivision (a). Failure to submit a memorandum of points and authorities can be construed as an admission that the motion is “not meritorious and cause for its denial.” (Cal. Rules of Court, rule 3.1113, subd. (a).)

Thus, Plaintiff’s Motion is DENIED.

III. Conclusion & Order

For the foregoing reasons, Plaintiff Albert Kamkar’s Motion for Summary Judgment is DENIED.

Moving party is ordered to give notice.

Case Number: 19STLC07845    Hearing Date: November 13, 2019    Dept: 94

Kamkar v. Rahimi, et al.

DEMURRER; MOTION TO STRIKE

(CCP §§ 430.31, et seq., 435-436)

TENTATIVE RULING:

Defendant Michael Rahimi’s Demurrer to the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND AS TO THE FIRST AND THRID CAUSES OF ACTION, AND SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE SECOND CAUSE OF ACTION.

Defendant Michael Rahimi’s Motion to Strike Portions of the Complaint is GRANTED WITH 20 DAYS’ LEAVE TO AMEND AS TO THE REQUEST FO $7,500.00 IN DAMAGES AND ATTORNEY’S FEES.

ANALYSIS:

Plaintiff Albert Kamkar (“Plaintiff”) filed the instant action for breach of contract, open book account and fraudulent conveyance against Defendant Michael Rahimi (“Defendant”) on August 26, 2019. Defendant filed the instant Demurrer and Motion to Strike on October 11, 2019. Plaintiff filed his oppositions on October 28, 2019, but no proof of service is attached demonstrating service of the oppositions on Defendants. To date, no reply has been filed.

I. Legal Standard

a. Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50(a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per Code of Civil Procedure section 430.10 subdivision (e) if insufficient facts are stated to support the cause of action asserted. Per Code of Civil Procedure section 430.10 subdivision (a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading.

However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. 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).)

b. Motion to Strike

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (CCP §§ 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (CCP § 436(b).) Motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (CCP § 92(d).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v. Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).)

In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) California’s policy of liberal construction applies to motions to strike. (Code Civ. Proc., § 452; see also Duffy v. Campbell (1967) 250 Cal.App.2d 662, 666 (noting that courts must resolve all reasonable doubts in favor of the pleading when considering a motion to strike).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (Code Civ. Proc., § 436.)

Finally, Code Civ. Procedure section 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).)

II. Discussion

a. Meet and Confer Requirement

Meet and confer declarations, which accompany both the Demurrer and Motion to Strike, satisfy the requirements of Code of Civil Procedure sections 430.41 and 439. (Demurrer and Strike, Pinder Decls.)

b. Special Demurrer for Uncertainty

Defendant demurrer for failure to allege facts sufficient to state a cause of action (Code Civ. Proc., § 430.10, subd. (e)) and uncertainty (Code Civ. Proc., § 430.10, subd. (f)). Special demurrers for uncertainty, however, are not permitted in a limited jurisdiction court. (Code Civ. Proc., § 92, subd. (c).) The Court will cannot consider the special demurrer.

c. 1st Cause of Action for Breach of 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.) Defendant demurs on the grounds that Plaintiff has not alleged his performance or excuse for nonperformance, or facts showing how the contract was breached.

The Complaint alleges that the parties entered into an agreement for structural design services on August 15, 2016, with respect to the property at 18045 Blue Sail Drive, Pacific Palisades, California. (Compl., ¶6.) Plaintiff further alleges that there remains due and owing the principal sum of $797.00 with interest, late fees, financial sustained damages, expenses, attorney fees, and $7,500.00 for exemplary proof. (Id. at ¶8.) Defendant is correct in his demurrer that there are no allegations as to the elements of Plaintiff’s performance and breach of the agreement. No facts are alleged as to whether Plaintiff performed his obligations or was excused from doing so. Without such allegations, it cannot be determined whether Defendant’s failure to pay the amount that remains due and owing constitutes a breach of the agreement.

The demurrer to the first cause of action for breach of contract, therefore, is sustained with leave to amend.

d. 2nd Cause of Action for Open Book Account

The cause of action for open book account is based on the same facts as the breach of contract claim, namely that Defendant failed to pay for structural design services provided by Plaintiff. (Compl., ¶10.) As an initial matter, the Complaint does not allege any of the elements of an open book account, including a detailed statement that (1) constitutes the principal record of one or more transactions between a debtor and a creditor; (2) shows the debits and credits in connection therewith, and against whom and in favor of whom entries are made; (3) was entered in the regular course of business as conducted by such creditor or fiduciary; and (4) kept in a reasonably permanent form and manner. (Ibid.)

Furthermore, it is “well settled that monies which become due under an express contract (such as rent due under a lease) cannot, in the absence of a contrary agreement between the parties, be treated as items under an open book account . . .” (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1343.) To the extent Plaintiff seeks to allege the same facts under breach of an express contract and open book account, it is improper.

The demurrer to the second cause of action for open book account is sustained without leave to amend.

e. 3rd Cause of Action for Fraudulent Conveyance

Although named a cause of action for “fraudulent conveyance,” it appears that the third cause of action is one merely for fraud. A cause of action for fraud, however, must be alleged with specificity such that Plaintiff pleads facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Here, the Complaint only alleges that the misrepresentation was made on August 22, 2019. (Compl., ¶17.) No facts are alleged as to the manner in which the promise was made, where, or by what means. Nor are any facts alleged to support Plaintiff’s contention that Defendant continued to make false representations over the course of 24 months. (Id. at ¶19.)

The demurrer to the third cause of action is sustained with leave to amend.

f. Motion to Strike Portions of Complaint

Defendant also moves to strike the request for $7,500.00 in damages and the request for attorneys’ fees. The Complaint does not allege facts showing that Plaintiff is entitled to $7,500.00. The parties’ agreement itself is limited to $1,500.00, absent changes to plans requested by the client. (Compl., Exh. A at ¶¶4-5.) The Complaint, however, does not allege that any changes were requested or the amount of time spent for additional work. Nor can Plaintiff simply make additional allegations in his opposition to the Demurrer. (See Opp., p. 2:17-19.) Matters outside the pleadings cannot be considered in ruling on a motion to strike.

Regarding attorneys’ fees, Code of Civil Procedure section 1021 provides: “[e]xcept as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” The Complaint does not allege any facts regarding the basis of attorneys’ fees sought; it does not point to any statutory basis nor are such fees provided for in the parties’ agreement. Accordingly, those fees are not supported by the allegations in the pleading.

The Motion to Strike is granted with leave to amend.

III. Conclusion

Defendant Michael Rahimi’s Demurrer to the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND AS TO THE FIRST AND THRID CAUSES OF ACTION, AND SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE SECOND CAUSE OF ACTION.

Defendant Michael Rahimi’s Motion to Strike Portions of the Complaint is GRANTED WITH 20 DAYS’ LEAVE TO AMEND AS TO THE REQUEST FO $7,500.00 IN DAMAGES AND ATTORNEY’S FEES.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.