This case was last updated from Los Angeles County Superior Courts on 12/17/2022 at 11:58:29 (UTC).

PROBELLE ENTERPRISES, INC. VS FARANAK M. KAMNEI

Case Summary

On 11/12/2020 PROBELLE ENTERPRISES, INC filed a Contract - Other Contract lawsuit against FARANAK M KAMNEI. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The Judge overseeing this case is DEIRDRE HILL. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0832

  • Filing Date:

    11/12/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DEIRDRE HILL

 

Party Details

Plaintiffs and Cross Defendants

PROBELLE ENTERPRISES INC.

LEVY MICHAEL

Cross Plaintiffs and Defendants

KAMNEI FARANAK M. DBA ANGELUS MEDICAL & OPTICAL

FMK INC.

Attorney/Law Firm Details

Defendant Attorney

EGHBALI DORON

Cross Defendant Attorney

AHDOOT JASON DAVID

 

Court Documents

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 11/17/2022

11/17/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 11/17/2022

Minute Order - MINUTE ORDER (COURT ORDER)

11/17/2022: Minute Order - MINUTE ORDER (COURT ORDER)

Notice of Ruling

11/4/2022: Notice of Ruling

Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC); CASE MANAGEMENT CONFERENCE)

11/4/2022: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC); CASE MANAGEMENT CONFERENCE)

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE; CASE MANAGEME...)

10/25/2022: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE; CASE MANAGEME...)

Notice of Ruling

10/25/2022: Notice of Ruling

Reply - OMNIBUS REPLY TO OPPOSITION RE MOTION TO COMPEL FURTHER DISCOVERY RESPONSES

10/20/2022: Reply - OMNIBUS REPLY TO OPPOSITION RE MOTION TO COMPEL FURTHER DISCOVERY RESPONSES

Reply - REPLY OF CROSS-DEFENDANTS PROBELLE ENTERPRISES, INC. AND MICHAEL LEVY RE OPPOSITION TO DEMURRER TO SECOND AMENDED CROSS-COMPLAINT

10/18/2022: Reply - REPLY OF CROSS-DEFENDANTS PROBELLE ENTERPRISES, INC. AND MICHAEL LEVY RE OPPOSITION TO DEMURRER TO SECOND AMENDED CROSS-COMPLAINT

Opposition - DEFENDANT KAMNEISS OPPOSITION TO PLAINTIFFS MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, ONE

10/17/2022: Opposition - DEFENDANT KAMNEISS OPPOSITION TO PLAINTIFFS MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, ONE

Opposition - DEFENDANT FMK, INC.S OPPOSITION TO PLAINTIFFS MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, ONE

10/17/2022: Opposition - DEFENDANT FMK, INC.S OPPOSITION TO PLAINTIFFS MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, ONE

Opposition - DEFENDANT FMK INC.S OPPOSITION TO PLAINTIFFS MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, ONE

10/17/2022: Opposition - DEFENDANT FMK INC.S OPPOSITION TO PLAINTIFFS MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, ONE

Opposition - DEFENDANT KAMNEIS OPPOSITION TO PLAINTIFFS MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, TWO

10/17/2022: Opposition - DEFENDANT KAMNEIS OPPOSITION TO PLAINTIFFS MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, TWO

Opposition - CROSS-COMPLAINANTS OPPOSITION TO CROSS-DEFENDANTS DEMURRER TO CROSS-COMPLAINT

10/12/2022: Opposition - CROSS-COMPLAINANTS OPPOSITION TO CROSS-DEFENDANTS DEMURRER TO CROSS-COMPLAINT

Motion to Compel Further Discovery Responses

9/22/2022: Motion to Compel Further Discovery Responses

Motion to Compel Further Discovery Responses

9/22/2022: Motion to Compel Further Discovery Responses

Separate Statement

9/22/2022: Separate Statement

Separate Statement

9/22/2022: Separate Statement

Motion to Compel Further Discovery Responses

9/22/2022: Motion to Compel Further Discovery Responses

126 More Documents Available

 

Docket Entries

  • 03/02/2023
  • Hearing03/02/2023 at 08:30 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion to Compel Further Discovery Responses

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  • 03/02/2023
  • Hearing03/02/2023 at 08:30 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion to Compel Further Discovery Responses

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  • 03/02/2023
  • Hearing03/02/2023 at 08:30 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion to Compel Further Discovery Responses

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  • 03/02/2023
  • Hearing03/02/2023 at 08:30 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion to Compel Further Discovery Responses

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  • 01/31/2023
  • Hearing01/31/2023 at 11:00 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Case Management Conference

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  • 01/31/2023
  • Hearing01/31/2023 at 11:00 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Informal Discovery Conference (IDC)

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  • 11/17/2022
  • DocketInformal Discovery Conference (IDC) scheduled for 01/31/2023 at 11:00 AM in Torrance Courthouse at Department M

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  • 11/17/2022
  • DocketHearing on Motion to Compel Further Discovery Responses scheduled for 03/02/2023 at 08:30 AM in Torrance Courthouse at Department M

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  • 11/17/2022
  • DocketHearing on Motion to Compel Further Discovery Responses scheduled for 03/02/2023 at 08:30 AM in Torrance Courthouse at Department M

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  • 11/17/2022
  • DocketHearing on Motion to Compel Further Discovery Responses scheduled for 03/02/2023 at 08:30 AM in Torrance Courthouse at Department M

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245 More Docket Entries
  • 12/03/2020
  • DocketProof of Personal Service; Filed by: PROBELLE ENTERPRISES, INC. (Plaintiff); As to: FARANAK M. KAMNEI (Defendant); Service Date: 11/18/2020; Service Cost: 75.00; Service Cost Waived: No

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  • 11/19/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service; Failure to Prosecute Case; Failure to File Request for Entry of Default scheduled for 03/15/2021 at 08:30 AM in Torrance Courthouse at Department M

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  • 11/19/2020
  • DocketOrder to Show Cause (Hearing); Filed by: Clerk

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  • 11/19/2020
  • DocketCase Management Conference scheduled for 03/15/2021 at 08:30 AM in Torrance Courthouse at Department M

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  • 11/19/2020
  • DocketNotice of Case Management Conference; Filed by: Clerk

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  • 11/12/2020
  • DocketComplaint; Filed by: PROBELLE ENTERPRISES, INC. (Plaintiff); As to: FARANAK M. KAMNEI (Defendant)

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  • 11/12/2020
  • DocketCivil Case Cover Sheet; Filed by: PROBELLE ENTERPRISES, INC. (Plaintiff); As to: FARANAK M. KAMNEI (Defendant)

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  • 11/12/2020
  • DocketSummons on Complaint; Issued and Filed by: PROBELLE ENTERPRISES, INC. (Plaintiff); As to: FARANAK M. KAMNEI (Defendant)

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  • 11/12/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by: Clerk

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  • 11/12/2020
  • DocketCase assigned to Hon. Deirdre Hill in Department M Torrance Courthouse

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Tentative Rulings

Case Number: *******0832 Hearing Date: October 25, 2022 Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

PROBELLE ENTERPRISES, INC.,

Plaintiffs,

Case No.:

*******0832

vs.

[Tentative] RULING

FARANAK M. KAMNEI,

Defendant.

Hearing Date: October 25, 2022

Moving Parties: Cross-defendants Probelle Enterprises, Inc. and Michael Levy

Responding Party: Cross-complainant Faranak Kamnei dba Angelus Medical

Demurrer to SACC

The court considered the moving, opposition, and reply papers.

RULING

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the 3rd cause of action for intentional misrepresentation and 4th cause of action for negligent misrepresentation. The demurrer is OVERRULED as to the 5th cause of action for promissory estoppel. Cross-defendants are ordered to file an answer within ten days.

BACKGROUND

On November 12, 2020, plaintiff Probelle Enterprises, Inc. filed a complaint against defendant Faranak M. Kamnei dba Angelus Medical & Optical for (1) breach of agreement, (2) breach of implied covenant of good faith and fair dealing, (3) tortious interference with prospective advantage, (4) conversion, (5) claim and delivery, (6) unfair competition – B&P 17200, (7) breach of fiduciary duty, (8) accounting, (9) unjust enrichment, and (10) common count – money had and received.

On May 12, 2021, the court overruled defendant’s demurrer as to the 1st, 4th, 5th, 7th, 8th, 9th, and 10th causes of action and sustained it with leave to amend as to the 2nd, 3rd, and 6th causes of action. The motion to strike was denied as to each cause of action, the allegations as to defendant, and the prayer for costs and granted with leave to amend as to punitive damages and attorney’s fees.

On June 2, 2021, plaintiff filed a FAC against Faranak M. Kamnei an ind dba Angelus Medical & Optical and FMK, Inc. for (1) breach of agreement, (2) tortious interference with prospective advantage, (3) conversion, (4) claim and delivery, (5) breach of fiduciary duty, (6) accounting, (7) unjust enrichment, and (8) common count-money had.

On June 23, 2021, defendants filed a cross-complaint against Probelle and Michael Levy for (1) breach of contract, (2) breach of fiduciary duty, (3) money had and received, (4) accounting, (5) lost profits, (6) negligent interference with prospective economic relations, (7) intentional interference with prospective economic relations, (8) negligence, (8) intentional misrepresentation, (10) negligent misrepresentation, (11) unjust enrichment, and (12) promissory estoppel.

On September 10, 2021, the court granted cross-defendants Probelle Enterprises and Michael Levy’s special motion to strike under CCP 415.16 as to the 6th and 7th causes of action in the cross-complaint.

On February 25, 2022, Faranak M. Kamnei dba Angelus Medical & Optical, Inc filed a FACC for (1) breach of contract, (2) breach of fiduciary duty, (3) money had and received, (4) accounting, (5) lost profits, (6) negligence, (7) intentional misrepresentation, (8) negligent misrepresentation, (9) unjust enrichment, and (10) promissory estoppel.

On June 3, 2022, the court overruled cross-defendants Probelle Enterprises and Michael Levy’s demurrer to the FACC as to the 1st and 4th causes of action. The court sustained the demurrer with leave to amend the demurrer as to the 7th, 8th, 9th, and 10th causes of action. The demurrer was sustained without leave to amend as to the 2nd, 3rd, 5th, and 6th causes of action.

On June 22, 2022, cross-complainants filed a SACC for (1) breach of contract, (2) accounting, (3) intentional misrepresentation, (4) negligent misrepresentation, and (5) promissory estoppel.

LEGAL AUTHORITY

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. “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 v. Mirda (2007) 147 Cal. App. 4th 740, 747.

DISCUSSION

Cross-defendants Probelle Enterprises, Inc and Michael Levy demur to the 3rd, 4th, and 5th causes of action in the SACC on the grounds that they fail to state sufficient facts to constitute a cause of action and are uncertain.

The SACC alleges that in the summer of 2016, Levy approached Faranak with a business offer, in order to provide a complete solution to each other’s customers, while he was in the middle of setting up a showroom in Beverly Hills. SACC, 12. Levy requested to join Faranak’s business, Angelus Medical. Id., 13. On January 29, 2020, Levy and Faranak entered into another verbal agreement to procure and sell masks after Levy indicated that there were masks available through his uncle’s company. Id., 14. Based on the agreement, the parties agreed to offer each other’s products and services to their customers in an exchange for 10% overall commission. Id., 15. Angelus Medical was responsible for delivering medical equipment to any customers that were brought in by Probelle, which would allow a 10% commission to Probelle. Id., 16. Probelle was responsible for delivering remodeling services to customers brought in by Angelus Medical, which would create a 10% commission to Angelus Medical. Id., 17. Angelus Medical was responsible for paying for the products, providing storage for the products, marketing the products, and paying for staff to sell the products. Id., 18.

The SACC also alleges that a few weeks later, Levy requested to have additional furniture stored in Angelus Medical’s warehouse while the Beverly Hills facility was being remodeled. Id., 19. Levy never built the showroom that was anticipated to build in Beverly Hills and continued to use Angelus Medical’s warehouse without paying any rent, despite many requests made by Faranak for rent payments. Id., 20. Since 2016 to the present, Levy has been using Angelus Medical’s facility, staff, and customers. Id., 21. In 2020, Levy stopped making any payments despite Faranak’s multiple requests to pay or remove all furniture and materials from Angelus Medical warehouse. Id., 22.

The SACC further alleges that in 2020, Faranak discovered that Levy had closed several contracts directly through Angelus Medical’s customers, which did not pay the agreed upon 10% commission to Angelus Medical. Id., 23. As Probelle’s merchandise was still stored in Angeles Optical, Levy had also failed to pay for invoices. Id., 24. Up to this date, there are 22 open (non-paid) invoices for a total of $153,708.15. All of these invoices have been issued to cross-defendants for the furniture that they have been storing at Angelus Medical’s warehouse. Id., 25.

The SACC also alleges that Levy has approached at least two of Faranak’s business associates, whom he has asked to misrepresent the facts of this civil case. Id., 26. One of Faranak’s business associates who has been approached by Levy is Mojan Karimi. Mojan Karimi has been currently working as a consultant and sales representative for Angelus Medical. Id., 27. Another of Faranak’s business associate who has been approached by Levy is Moe Taghavi. Moe Taghavi is a representative for Angelus Medical from Henry Schein, Inc. Id., 28. Due to the extensive network of Ms. Karimi, she had scheduled several introductory meetings with the decision makers at several hospitals. The first meeting was scheduled for the second week in June with the VP of purchasing at Providence Mission Hills/Holy Cross hospital. Levy had approached Ms. Karimi and Mr. Taghavi during the first week in June requesting them to sign documents that would be presented in the court against Faranak. Both business associates refused to do so. Id., 29. Due to Levy’s conduct, Karimi no longer feels comfortable to proceed with the scheduled meetings and business opportunities while this civil case is active. Id., 30. Despite Levy’s actions, Faranak has never discussed any details of this case with any of their business colleagues. Id., 31. Levy never built the show room that was supposed to be built, but Levy kept extending Probelle’s stay for long period of times without paying any rent. Id., 32.

3rd cause of action for intentional misrepresentation

The elements of a fraud claim are (1) misrepresentation; (2) knowledge of falsity; (3) intent to deceive; and (4) reliance and resulting damage. Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal. App. 4th 282, 290. “To withstand demurrer, the facts constituting every element of fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings.” Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal. App. 4th 772, 782. The particularity requirement necessitates pleadings 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.

“’Promissory fraud’ is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.’ (Citation omitted). The elements of promissory fraud (i.e., of fraud or deceit based on a promise made without any intention of performing it) are (1) a promise made regarding 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 promise to enter into a transaction; (4) reasonable reliance by the promise; (5) nonperformance by the party making the promise; and (6) resulting damage.” Behnke v. State Farm General Ins. Co. (2011) 196 Cal. App. 4th 1443, 1453. Mere failure to perform is not sufficient to establish promissory fraud. Tenzer v. Superscope (1985) 39 Cal. 3d 18, 30-31 (“’something more than nonperformance is required to prove the defendant’s intent not to perform his promise. . . . [I]f plaintiff adduces no further evidence of fraudulent intent than proof of nonperformance of an oral promise, he will never reach a jury”) (citation omitted).

The SACC alleges that in 2020, Levy made verbal representations to cross-complainants: (1) Levy was in the middle of setting up a showroom in Beverly Hills to display medical products/furniture. SACC, 63. If cross-complainants had been informed that Levy was not building a showroom in Beverly Hills, cross-complainants would not have allowed Probelle to display its products in Angelus Medical showroom and use Angelus Medical warehouse to store furniture. Id., 64. In 2020, Probelle made verbal representations to cross-complainants (1) it needed space to temporarily display products while cross-defendants’ showroom was being set up; (2) Probelle would pay storage fees for having its furniture stored at Angelus Medical; (3) Probelle would give a 10% commission to Angelus Medical for services provided to any customer brought in by Angelus Medical. Id., 65. If cross-complainants had been informed that Probelle would not pay any storage fees and would not give 10% commission to Angelus Medical for remodeling services provided to any customer brought in by Angelus. Id., 66. Cross-defendants’ representations were false. Id., 67. Levy knew that the representations were false when they made them since the Beverly Hills facility was never built or remodeled. Id., 68. Probelle knew that the representations were false when they made them since Probelle never paid storage fees, nor did they pay the 10% commission to cross-defendants as per the agreement. Id., 69. Cross-defendants intended that cross-complainants rely on their representations and grant access to Angelus Medical’s showroom and its customers. Id., 70. Cross-complainants reasonably relied on cross-defendants’ representations when they believed cross-defendants’ representations and entered into the agreement in 2020. Id., 71. Cross-complainants were harmed. Id., 72.

Cross-defendants argue that the SACC is a “sham pleading” because it “has been scrubbed of any reference to the year 2016 altogether” “without any explanation whatsoever” and that cross-complainants are attempting to plead around the statute of limitations. Cross-defendants also argue that cross-complainants fail to plead with particularity.

In opposition, cross-complainants point out that they allege that the original agreement was made in 2016 but that in 2020, they entered into “another verbal agreement.” SACC, 14.

The allegations sound in promissory fraud.

The allegations are insufficient to meet the elements as cross-complainants have not alleged more than non-performance. The allegations also do not show fraudulent intent. The court notes that both the FACC and the SACC alleged that the representations were made in 2020. The court had previously determined that the face of the cross-complaint does not show that any of the claims are barred by the statute of limitations.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

4th cause of action for negligent misrepresentation

The elements of negligent misrepresentation are: (1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages. Where the defendant makes false statements, honestly believing that they are true, but without reasonable ground for such belief, he may be liable for negligent misrepresentation, a form of deceit. B.L.M. v. Sabo & Deitsch (1997) 55 Cal. App. 4th 823, 834.

See allegations under 3rd cause of action.

Cross-defendants argue the same as under the 3rd cause of action that the SACC is a sham pleading because the SACC changes the date from 2016 to 2020.

The allegations are insufficient to meet the elements. None of the purported representations were of a “past or existing material fact.” The allegations also are conclusory that cross-defendants had no reasonable ground for such beliefs.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

5th cause of action for promissory estoppel

The elements of a promissory estoppel claim are (1) a clear promise, (2) reliance, (3) substantial detriment and (4) damages measured by the extent of the obligation assumed and not

performed. Toscano v. Greene Music (2004) 124 Cal. App. 4th 685, 692. Although equitable in nature, promissory estoppel is akin to a cause of action based on contract except that the consideration needed to form an enforceable contract is provided by detrimental reliance. Id. at 692-693. Under California law, “[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” Kajima/Ray Wilson v. Los Angeles Cnty. Metro. Transp. Auth. (2000) 23 Cal. 4th 305, 310.

Under this cause of action, the SACC alleges that Levy made a promise to cross-complainants that Levy would deliver remodeling services to customers brought in by Angelus Medical and give Angelus Medical a 10% commission from the services provided to those customers. SACC, 95. Cross-defendants did not intend to perform their promises when they made them. Id., 96. Cross-defendants intended that cross-complainants rely on their promises. Cross-complainants reasonably relied on cross-defendants’ promises when they entered into the agreement in 2020. Id., 98. Levy did not perform the promised acts since the Beverly Hills facility was never being built or remodeled. Id., 99. Probelle did not perform the promised acts since Probelle never paid storage fees, nor did they pay the 10% commission to cross-defendants as per the agreement. Id., 100. Cross-complainants were harmed. Id., 101. Due to cross-complainants’ detrimental reliance on cross-defendants’ promises, cross-complainants incurred financial expenses. Cross-complainants were responsible for paying for the products, storing of the products, marketing of the products, and paid for the staff to sell the products. Angelus Medical’s warehouse and showroom were being used by cross-defendants for an extended period without rent payments. Id., 102.

Cross-defendants argue that the SACC does not allege “un-bargained-for” reliance.

The court finds that the allegations are sufficient to meet the elements for promissory estoppel. The SACC adds additional allegations to support detrimental reliance.

The demurrer is OVERRULED.

Cross-defendants are ordered to give notice of the ruling.



Case Number: *******0832 Hearing Date: June 24, 2022 Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

PROBELLE ENTERPRISES, INC.,

Plaintiff,

Case No.:

*******0832

vs.

[Tentative] RULING

FARANAK M. KAMNEI, et al.,

Defendants.

Hearing Date: June 24, 2022

Moving Parties: (1), (2) Plaintiff and cross-defendant Probelle Enterprises, Inc.; (3) cross-defendant Michael Levy

Responding Party: (1), (2) Defendant and cross-complainant FMK, Inc.; (3) Defendant and cross-complainant Faranak M. Kamnei

(1) Motion to Compel Further Responses to Requests for Production, [Set] One

(2) Motion to Compel Further Responses to Requests for Admission, [Set] One

(3) Motion to Compel Further Responses to Requests for Production, [Set] One

The court considered the moving, opposition, and reply papers.

RULING

The motions to compel further responses to requests for production, set one, Nos. 8-15 are MOOT and thus DENIED.

Probelle’s motion to compel further responses to requests for admission, set one is DENIED.

The court awards sanctions against defendant FMK, Inc. and attorney of record, Doron F. Eghbali, Esq., in favor of Probelle Enterprisess in the amount of $1,306.50, to be paid within 30 days.

The court awards sanctions against defendant Faranak M. Kamnei and Doron F. Eghbali, Esq. in favor of cross-defendant Michael Levy in the amount of $1,306.50, to be paid within 30 days.

BACKGROUND

On November 12, 2020, plaintiff Probelle Enterprises, Inc. filed a complaint against defendant Faranak M. Kamnei dba Angelus Medical & Optical for (1) breach of agreement, (2) breach of implied covenant of good faith and fair dealing, (3) tortious interference with prospective advantage, (4) conversion, (5) claim and delivery, (6) unfair competition – B&P 17200, (7) breach of fiduciary duty, (8) accounting, (9) unjust enrichment, and (10) common count – money had and received.

On May 12, 2021, the court overruled defendant’s demurrer as to the 1st, 4th, 5th, 7th, 8th, 9th, and 10th causes of action and sustained it with leave to amend as to the 2nd, 3rd, and 6th causes of action. The motion to strike was denied as to each cause of action, the allegations as to defendant, and the prayer for costs and granted with leave to amend as to punitive damages and attorney’s fees.

On June 2, 2021, plaintiff filed a FAC against Faranak M. Kamnei an ind dba Angelus Medical & Optical and FMK, Inc. for (1) breach of agreement, (2) tortious interference with prospective advantage, (3) conversion, (4) claim and delivery, (5) breach of fiduciary duty, (6) accounting, (7) unjust enrichment, and (8) common count-money had.

On June 23, 2021, defendants filed a cross-complaint against Probelle and Michael Levy for (1) breach of contract, (2) breach of fiduciary duty, (3) money had and received, (4) accounting, (5) lost profits, (6) negligent interference with prospective economic relations, (7) intentional interference with prospective economic relations, (8) negligence, (8) intentional misrepresentation, (10) negligent misrepresentation, (11) unjust enrichment, and (12) promissory estoppel.

On September 10, 2021, the court granted cross-defendants Probelle Enterprises and Michael Levy’s special motion to strike under CCP 415.16 as to the 6th and 7th causes of action in the cross-complaint.

On February 25, 2022, Faranak M. Kamnei dba Angelus Medical & Optical, Inc filed a FACC for (1) breach of contract, (2) breach of fiduciary duty, (3) money had and received, (4) accounting, (5) lost profits, (6) negligence, (7) intentional misrepresentation, (8) negligent misrepresentation, (9) unjust enrichment, and (10) promissory estoppel.

On June 3, 2022, the court overruled cross-defendants’ demurrer to the FACC as to the 1st and 4th causes of action, sustained with leave to amend as to the 7th, 8th, 9, and 10th causes of action, and sustained without leave to amend as to the 2nd, 3rd, 5th, and 6th causes of action.

LEGAL AUTHORITY

45-Day Rule: This motion must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax; see CCP 1013); otherwise, the demanding party waives the right to compel any further response to the CCP 2031.010 demand. CCP 2031.310(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal. App. 4th 736, 745. The 45-day time limit is mandatory and jurisdictional. Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410. The parties, however, can also agree in writing on a specific later date by which to file the motion to compel. CCP 2031.310(c).

Meet-and-Confer Requirement: The motion to compel further responses must be accompanied by a declaration showing “a reasonable and good faith attempt” to resolve the issues outside of court (so-called “meet and confer”). CCP 2016.040, 2031.310(b)(2).

Separate Statement: Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement. This includes a motion to compel further responses to demand for inspection of documents or tangible things. CRC Rule 3.1020(a)(3).

Request for Production of Documents

On receipt of a response to an inspection demand, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that any of the following apply: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general. CCP 2031.310(a). A statement of compliance shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production. CCP 2031.220. “A representation of inability to comply with [a] particular demand for inspection . . . shall affirm that a diligent search and reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. This statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” CCP 2031.230.

A motion to compel further response to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” CCP 2031.310(b)(1). “To establish ‘good cause,’ the burden is on the moving party to show both: [1] Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and [2] Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). The fact that there is no alternative source for the information sought is an important factor in establishing ‘good cause’ for inspection. But it is not essential in every case.” Weil & Brown, Civil Procedure Before Trial, 8:1495.6 (citations omitted). “Declarations are generally used to show the requisite ‘good cause’ for an order to compel inspection. The declarations must contain ‘specific facts’ rather than mere conclusions.” Id. at 8:1495.7 (citation omitted). “The declarations may be on information and belief, if necessary. However, in such cases, the ‘specific facts’ supporting such information and belief (the sources of the information) must also be alleged.” Id. at 8:1495.8 (citation omitted). “Most declarations are made by the attorney for the moving party, who is usually more familiar with the relevancy and ‘specific facts’ constituting ‘good cause’ for inspection.” Id. at 8:1495.9.

“If ‘good cause’ is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions. . . ).” Id. at 8:1496 (citation omitted).

Request for Admissions

CCP 2033.220 states: “(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits. (b) Each answer shall: (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.

(2) Deny so much of the matter involved in the request as is untrue.

(3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.

(c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.”

DISCUSSION

Plaintiff and cross-defendant Probelle Enterprises requests that the court order defendant and cross-complainant FMK, Inc. to respond further to First Set of Demands for Production/Inspection of Documents and Things, Nos. 8-15 and First Set of Requests for Admissions, Nos. 1, 2, and 12.

Cross-defendant Michael Levy requests that defendant and cross-complainant Kamnei respond further to First Set of Demands for Production/Inspection of Documents and Things, Nos. 8-15.

Probelle served the written requests on September 15, 2021. Defendant FMK failed to provide any responses, and on December 7, 2021, the court ordered that FMK respond. On January 17, 2022, FMK served responses. On February 10, 2022, plaintiff’s counsel sent a meet and confer letter to defense counsel. On March 4, 2022, FMK served supplemental responses. On March 14, 2022, plaintiff’s counsel sent a meet and confer letter. On March 18, 2022, defense counsel responded that the responses were code-compliant.

Levy served the written requests on November 8, 2021. Defendant Kamnei served responses on January 17, 2022. Counsel met and conferred and Kamnei served supplemental responses on March 4, 2022. Levy’s counsel sent a meet and confer letter on March 14, 2022. Defense counsel responded on March 18, 2022 that “Defendant has responded to everything to their best knowledge. No further information or documents can be provided since everything that is in Defendant’s possession, control, and custody has been produced and disclosed to Plaintiff.”

On June 6, 2022, after the motions were filed, defendants purportedly served second supplemental responses.

The court notes that defendants/cross-complainants failed to file a response to plaintiffs’ separate statements.

Requests for Production of Documents

As to Nos. 8-15, responding parties answered, “After a diligent search and reasonable inquiry, we are unable to comply with the request, because the requested items no longer exist, or are no longer in Defendant’s possession.”

In their second supplemental responses, defendants responded, “After a diligent search and reasonable inquiry, we are unable to comply with the request, because the requested items no longer exist.”

The court finds that responding parties’ initial and supplemental responses are deficient as they do not comply with CCP 2031.230. The court notes that the second supplemental responses comply with the statute.

The motions are thus MOOT.

Requests for Admissions

No. 1 – Admit that the document attached as Exhibit A is an accurate copy of an invoice evidencing masks procured from Andwin Scientific and sold through Angelus Medical Optical.

Defendant FMK initially responded “[p]artially admit, partially deny.” In a supplemental response, FMK responded that it “has made reasonably inquiry and the information it knows or can readily obtain is insufficient to enable it to admit or deny.”

Moving party argues that changing the response “without further explanation is not a straightforward and complete response.”

After the motion was filed, FMK served a second supplemental response. As to No. 1 and 2, FMK responded, “The Responding Party has made reasonable inquiry and the information it knows or can readily obtain is insufficient to enable it to admit or deny. For these reasons, Deny.”

No. 2 – Admit that the document attached as Exhibit B is an accurate copy of an invoice evidencing masks procured from Andwin Scientific and sold through Angelus Medical Optical.

See under No. 1.

No. 12 – Admit that in approximately November 2016, [defendant] entered into an arrangement whereby [Probelle] was permitted to sell and store its merchandise using [defendant’s] offices, in exchange for the prospect of referrals, introductions and the use of certain office furniture.

See under No. 1. In a second supplemental response, FMK responded, “Admit.”

The court finds that defendants’ responses are sufficient and comply with the statute.

The motion is DENIED.

Sanctions

Under CCP 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Under CCP 2023.010, an example of the misuse of the discovery process is “(d) Failing to respond or to submit to an authorized method of discovery.”

Sanctions are mandatory in connection with motions to compel further responses against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” CCP 2030.300(d), 2031.310(h).

Cal. Rules of Court, Rule 3.1348(a) states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

The court finds that sanctions are warranted.

Probelle requests $9,592 in monetary sanctions against defendant FMK and its attorney of record for both motions. The court finds that $1,306.50 ($495/hr. x 2.5 hrs., $69 filing fee) is a reasonable amount to be imposed against FMK and its attorney of record.

Levy requests $4,227 in monetary sanction against Faranak Kamnei and her attorney of record. The court finds that $1,306.50 ($495/hr. x 2.hr hrs., $69 filing fee) is a reasonable amount to be imposed against Kamnei and her attorney of record.

Moving parties are ordered to give notice of the ruling.



Case Number: *******0832 Hearing Date: June 17, 2022 Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

PROBELLE ENTERPRISES, INC.,

Plaintiff,

Case No.:

*******0832

vs.

[Tentative] RULING

FARANAK M. KAMNEI, et al.,

Defendants.

Hearing Date: June 17, 2022

Moving Parties: (1) Plaintiff and cross-defendant Probelle Enterprises, Inc.; (2) cross-defendant Michael Levy

Responding Party: (1) Defendant and cross-complainant FMK, Inc.; (2) Defendant and cross-complainant Faranak M. Kamnei

(1) Motion to Compel Further Responses to Form Interrogatories, [Set] One

(2) Motion to Compel Further Responses to Form Interrogatories, [Set] One

The court considered the moving, opposition, and reply papers.

RULING

Defendant FMK, Inc. is ordered to respond further to Probelle Enterprise’s Form Interrogatories, Set One, Nos. 8.4, 8.6, 8.7, and 15.1, within 15 days, without objections

Defendant Faranak M. Kamnei is ordered to respond further to Michael Levy’s Form Interrogatories, Set One, Nos. 8.4, 8.6, 8.7, and 15.1, within 15 days, without objections.

Counsel are to meet and confer within five days as to the deficiencies in the third supplemental responses.

The court awards sanctions against defendant FMK, Inc. and attorney of record, Doron F. Eghbali, Esq., in favor of Probelle Enterprisess in the amount of $1,306.50, to be paid within 30 days.

The court awards sanctions against defendant Faranak M. Kamnei and Doron F. Eghbali, Esq. in favor of cross-defendant Michael Levy in the amount of $1,306.50, to be paid within 30 days.

BACKGROUND

On November 12, 2020, plaintiff Probelle Enterprises, Inc. filed a complaint against defendant Faranak M. Kamnei dba Angelus Medical & Optical for (1) breach of agreement, (2) breach of implied covenant of good faith and fair dealing, (3) tortious interference with prospective advantage, (4) conversion, (5) claim and delivery, (6) unfair competition – B&P 17200, (7) breach of fiduciary duty, (8) accounting, (9) unjust enrichment, and (10) common count – money had and received.

On May 12, 2021, the court overruled defendant’s demurrer as to the 1st, 4th, 5th, 7th, 8th, 9th, and 10th causes of action and sustained it with leave to amend as to the 2nd, 3rd, and 6th causes of action. The motion to strike was denied as to each cause of action, the allegations as to defendant, and the prayer for costs and granted with leave to amend as to punitive damages and attorney’s fees.

On June 2, 2021, plaintiff filed a FAC against Faranak M. Kamnei an ind dba Angelus Medical & Optical and FMK, Inc. for (1) breach of agreement, (2) tortious interference with prospective advantage, (3) conversion, (4) claim and delivery, (5) breach of fiduciary duty, (6) accounting, (7) unjust enrichment, and (8) common count-money had.

On June 23, 2021, defendants filed a cross-complaint against Probelle and Michael Levy for (1) breach of contract, (2) breach of fiduciary duty, (3) money had and received, (4) accounting, (5) lost profits, (6) negligent interference with prospective economic relations, (7) intentional interference with prospective economic relations, (8) negligence, (8) intentional misrepresentation, (10) negligent misrepresentation, (11) unjust enrichment, and (12) promissory estoppel.

On September 10, 2021, the court granted cross-defendants Probelle Enterprises and Michael Levy’s special motion to strike under CCP 415.16 as to the 6th and 7th causes of action in the cross-complaint.

On February 25, 2022, Faranak M. Kamnei dba Angelus Medical & Optical, Inc filed a FACC for (1) breach of contract, (2) breach of fiduciary duty, (3) money had and received, (4) accounting, (5) lost profits, (6) negligence, (7) intentional misrepresentation, (8) negligent misrepresentation, (9) unjust enrichment, and (10) promissory estoppel.

On June 3, 2022, the court overruled cross-defendants’ demurrer to the FACC as to the 1st and 4th causes of action, sustained with leave to amend as to the 7th, 8th, 9, and 10th causes of action, and sustained without leave to amend as to the 2nd, 3rd, 5th, and 6th causes of action.

LEGAL AUTHORITY

45-Day Rule: This motion must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax; see CCP 1013); otherwise, the demanding party waives the right to compel any further response to the CCP 2031.010 demand. CCP 2031.310(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal. App. 4th 736, 745. The 45-day time limit is mandatory and jurisdictional. Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410. The parties, however, can also agree in writing on a specific later date by which to file the motion to compel. CCP 2031.310(c).

Meet-and-Confer Requirement: The motion to compel further responses must be accompanied by a declaration showing “a reasonable and good faith attempt” to resolve the issues outside of court (so-called “meet and confer”). CCP 2016.040, 2031.310(b)(2).

Separate Statement: Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement. This includes a motion to compel further responses to demand for inspection of documents or tangible things. CRC Rule 3.1020(a)(3).

Interrogatories

CCP 2030.300 states: “(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. . . . (3) An objection to an interrogatory is without merit or too general. (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories. . . .”

DISCUSSION

Plaintiff and cross-defendant Probelle Enterprises requests that the court order defendant and cross-complainant FMK, Inc. to respond further to Form Interrogatories, Set One, Nos. 8.4, 8.6, 8.7, and 15.1.

Cross-defendant Michael Levy requests that defendant and cross-complainant Kamnei respond further to Form Interrogatories, Set One, Nos. 8.4, 8.6, 8.7, and 15.1.

Probelle served the form interrogatories on September 15, 2021. Defendant FMK failed to provide any responses, and on December 7, 2021, the court ordered that FMK respond. On January 17, 2022, FMK served responses. Plaintiff’s counsel sent a meet and confer letter to defense counsel. On March 4, 2022, FMK served supplemental responses. On March 14, 2022, plaintiff’s counsel sent a meet and confer letter. On March 18, 2022, defense counsel responded that the responses were code-compliant.

Levy served the form interrogatories on November 8, 2021. Defendant Kamnei served responses on January 17, 2022. Counsel met and conferred and Kamnei served supplemental responses on March 4, 2022. Levy’s counsel sent a meet and confer letter on March 14, 2022. Defense counsel responded on March 18, 2022 that “Defendant has responded to everything to their best knowledge. No further information or documents can be provided since everything that is in Defendant’s possession, control, and custody has been produced and disclosed to Plaintiff.”

The court notes that defendants/cross-complainants failed to file a response to plaintiffs’ separate statements.

The form interrogatories at issue are:

No. 8.4 – State your monthly income at the time of the incident and how the amount was calculated.

Faranak and FMK each responded “not applicable” in their initial and supplemental responses. Faranak asserted a right to privacy objection in her supplemental response.

The court finds that defendants’ responses are deficient, and Faranak waived her untimely privacy objection, and such objection lacks merit. None of their other objections have merit.

No. 8.7 – State the total income you have lost to date as a result of the incident and how the amount was calculated.

Faranak and FMK each responded with objections and stated “undetermined at this time” in their initial and supplemental responses. In their second supplemental response, they stated only, “$300,000.”

The court finds that defendants’ objections lack merit, and their responses are deficient. They failed to explain how the amount was calculated.

No. 8.8 – Will you lose income in the future as a result of the incident? If so, state: (a) the facts upon which you base this contention; (b) an estimate of the amount; (c) and estimate of how long you will be unable to work; and (d) how the claim for future income is calculated.

Faranak and FMK each responded with objections and stated, “not applicable” in their initial and supplemental responses. They then responded “yes” in their second supplemental responses and provided further information but not as to future loss income or an estimate of the amount or how the claim for future income is calculated.

The court finds that defendants’ objections lack merit, and their responses are deficient.

No. 15.1 – Identify each denial or a material allegation and each special or affirmative defense in your pleadings and for each (a) state all facts upon which you base the denial or special or affirmative defense; (b) state the name, addresses, and telephone numbers of all persons who have knowledge of those facts; and (c) identify all documents and other tangible things that support your denial or special or affirmative defense, and state the name, address, and telephone number of the person who has each document.

Faranak and FMK each responded with an initial response, supplemental response, and second supplemental response as to their affirmative defenses.

Moving parties argue that the responses are “a meaningless jumble of words and legal concepts” and that the response must be properly numbered and separated for each affirmative defense asserted and the corresponding requested information provided.

The court finds that defendants’ responses are deficient for the reason stated by moving parties.

In their oppositions, Faranak and FMK assert that they served Third Supplemental Responses on June 6, 2022.

In reply, moving parties argue that as to the third supplemental responses, some of the responses are still incomplete as “certain of the subject Requests were never responded to, and others are still unintelligible and continue to lack code compliance.”

As stated above, the court finds that defendants’ objections lack merit and initial and supplemental responses are deficient. It also appears that the further supplemental responses are not fully compliant.

Accordingly, the motions are GRANTED.

Sanctions

Under CCP 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Under CCP 2023.010, an example of the misuse of the discovery process is “(d) Failing to respond or to submit to an authorized method of discovery.”

Sanctions are mandatory in connection with motions to compel further responses against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” CCP 2030.300(d), 2031.310(h).

Cal. Rules of Court, Rule 3.1348(a) states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Each moving party requests $4,425 in monetary sanctions against defendant and their attorney of record. The court finds that $1,306.50 ($495/hr. x 2.5 hrs., $69 filing fee) is a reasonable amount to be imposed against each defendant and their attorney of record.

Moving parties are ordered to give notice of the ruling.



Case Number: *******0832 Hearing Date: June 3, 2022 Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

PROBELLE ENTERPRISES, INC.,

Plaintiffs,

Case No.:

*******0832

vs.

[Tentative] RULING

FARANAK M. KAMNEI,

Defendant.

Hearing Date: June 3, 2022

Moving Parties: Cross-defendants Probelle Enterprises, Inc. and Michael Levy

Responding Party: Cross-complainant Faranak Kamnei dba Angelus Medical

Demurrer to FACC

The court considered the moving, opposition, and reply papers.

RULING

The demurrer is OVERRULED as to the 1st and 4th causes of action, SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the 7th, 8th, 9th, and 10th causes of action, and SUSTAINED WITHOUT LEAVE TO AMEND as to the 2nd, 3rd, 5th and 6th causes of action.

BACKGROUND

On November 12, 2020, plaintiff Probelle Enterprises, Inc. filed a complaint against defendant Faranak M. Kamnei dba Angelus Medical & Optical for (1) breach of agreement, (2) breach of implied covenant of good faith and fair dealing, (3) tortious interference with prospective advantage, (4) conversion, (5) claim and delivery, (6) unfair competition – B&P 17200, (7) breach of fiduciary duty, (8) accounting, (9) unjust enrichment, and (10) common count – money had and received.

On May 12, 2021, the court overruled defendant’s demurrer as to the 1st, 4th, 5th, 7th, 8th, 9th, and 10th causes of action and sustained it with leave to amend as to the 2nd, 3rd, and 6th causes of action. The motion to strike was denied as to each cause of action, the allegations as to defendant, and the prayer for costs and granted with leave to amend as to punitive damages and attorney’s fees.

On June 2, 2021, plaintiff filed a FAC against Faranak M. Kamnei an ind dba Angelus Medical & Optical and FMK, Inc. for (1) breach of agreement, (2) tortious interference with prospective advantage, (3) conversion, (4) claim and delivery, (5) breach of fiduciary duty, (6) accounting, (7) unjust enrichment, and (8) common count-money had.

On June 23, 2021, defendants filed a cross-complaint against Probelle and Michael Levy for (1) breach of contract, (2) breach of fiduciary duty, (3) money had and received, (4) accounting, (5) lost profits, (6) negligent interference with prospective economic relations, (7) intentional interference with prospective economic relations, (8) negligence, (8) intentional misrepresentation, (10) negligent misrepresentation, (11) unjust enrichment, and (12) promissory estoppel.

On September 10, 2021, the court granted cross-defendants Probelle Enterprises and Michael Levy’s special motion to strike under CCP 415.16 as to the 6th and 7th causes of action in the cross-complaint.

On February 25, 2022, Faranak M. Kamnei dba Angelus Medical & Optical, Inc filed a FACC for (1) breach of contract, (2) breach of fiduciary duty, (3) money had and received, (4) accounting, (5) lost profits, (6) negligence, (7) intentional misrepresentation, (8) negligent misrepresentation, (9) unjust enrichment, and (10) promissory estoppel.

LEGAL AUTHORITY

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. “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 v. Mirda (2007) 147 Cal. App. 4th 740, 747.

DISCUSSION

Cross-defendants Probelle Enterprises, Inc and Michael Levy demur to each of the causes of action in the FACC on the ground that they fail to state sufficient facts to constitute a cause of action.

The FACC alleges that in the summer of 2016, Levy approached Faranak with a business offer, in order to provide a complete solution to each other’s customers, while he was in the middle of setting up a showroom in Beverly Hills. FACC, 10. Levy requested to join Faranak’s business, Angelus Medical. Id., 11. On January 29, 2020, Levy and Faranak entered into another verbal agreement to procure and sell masks after Levy indicated that there were masks available through his uncle’s company. Id., 12. Based on the agreement, the parties agreed to offer each other’s products and services to their customers in an exchange for 10% overall commission. Id., 13. Angelus Medical was responsible for delivering medical equipment to any customers that were brought in by Probelle, which would allow a 10% commission to Probelle. Id., 14. Probelle was responsible for delivering remodeling services to customers brought in by Angelus Medical, which would create a 10% commission to Angelus Medical. Id., 15. Angelus Medical was responsible for paying for the products, providing storage for the products, marketing the products, and paying for staff to sell the products. Id., 16.

The FACC also alleges that a few weeks later, Levy requested to have additional furniture stored in Angelus Medical’s warehouse while the Beverly Hills facility was being remodeled. Id., 17. Levy never built the showroom that was anticipated to build in Beverly Hills and continued to use Angelus Medical’s warehouse without paying any rent, despite many requests made by Faranak for rent payments. Id., 18. Since 2016 to the present, Levy has been using Angelus Medical’s facility, staff, and customers. Id., 19. In 2020, Levy stopped making any payments despite Faranak’s multiple requests to pay or remove all furniture and materials from Angelus Medical warehouse. Id., 20.

The FACC further alleges that in 2020, Faranak discovered that Levy had closed several contracts directly through Angelus Medical’s customers, which did not pay the agreed upon 10% commission to Angelus Medical. Id., 21. As Probelle’s merchandise was still stored in Angeles Optical, Levy had also failed to pay for invoices. Id., 22. Up to this date, there are 22 open (non-paid) invoices for a total of $153,708.15. All of these invoices have been issued to cross-defendants for the furniture that they have been storing at Angelus Medical’s warehouse. Id., 23.

The FACC also alleges that Levy has approached at least two of Faranak’s business associates, whom he has asked to misrepresent the facts of this civil case. Id., 24. One of Faranak’s business associates who has been approached by Levy is Mojan Karimi. Mojan Karimi has been currently working as a consultant and sales representative for Angelus Medical. Id., 25. Another of Faranak’s business associate who has been approached by Levy is Moe Taghavi. Moe Taghavi is a representative for Angelus Medical from Henry Schein, Inc. Id., 26. Due to the extensive network of Ms. Karimi, she had scheduled several introductory meetings with the decision makers at several hospitals. The first meeting was scheduled for the second week in June with the VP of purchasing at Providence Mission Hills/Holy Cross hospital. Levy had approached Ms. Karimi & Mr. Taghavi during the first week in June requesting them to sign documents that would be presented in the court against Faranak. Both business associates refused to do so. Id., 26. Due to Levy’s conduct, Karimi no longer feels comfortable to proceed with the scheduled meetings and business opportunities while this civil case is active. Id., 28. Despite Levy’s actions, Faranak has never discussed any details of this case with any of their business colleagues. Id., 29. Levy never built the show room that it was supposed to be built, but Levy kept extending Probelle’s stay for long period of times without paying any rent. Id., 30.

Statute of limitations

Cross-defendants allege that each of the causes of action are barred by the statute of limitations because the parties purportedly entered into an agreement in 2016.

“’A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily barred. In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.’” Carloss v. County of Alameda (2015) 242 Cal. App. 4th 116, 123 (citation omitted). “The statute of limitations does not accrue until a party has suffered actual damages.” Cochran v. Cochran (1997) 56 Cal. App. 1115, 1123 n.6.

The court finds that the FACC does not show that the statute of limitations bars the claims clearly and affirmatively. The FACC alleges breach in 2020.

1st cause of action for breach of contract

“To state a cause of action for breach of contract, [plaintiff] must plead the contract, his performance of the contract or excuse for nonperformance, [defendant’s] breach and the resulting damage. (Lortz v. Connell (1969) 273 Cal. App. 2d 286, 290). Further, the complaint must indicate on its face whether the contract is written, oral, or implied by conduct. If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference. (Wise v. Southern Pacific Co. (1963) 223 Cal. App. 2d 50, 59.)” Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal. App. 3d 452, 458-59. “To state a cause of action for breach of contract, it is absolutely essential to plead the terms of the contract either in haec verba or according to legal effect.” Twaite v. Allstate Ins. Co. (1989) 216 Cal. App. 3d 239, 252.

The FACC alleges that in summer 2016, cross-complainants entered into the agreement with Levy by which cross-complainants agreed to deliver medical equipment to any customers that were brought in by Probelle, which would allow a 10% commission to Probelle. FACC, 32. Cross-complainants have complied with and performed all of their obligations under the agreement. Id., 33. Cross-complainants’ obligations included paying for the products; storing the products; marketing the products; paid for the staff to sell the products; delivering medical equipment to any customers that were brought in by cross-defendants, which would allow 10% commission to Probelle; and display Probelle products in their showroom. Id., 34. Cross-complainants have provided Probelle with a showroom in which they had installed his products. Id., 35. They have referred clients to cross-defendants for a 10% commission. Id., 36. In 2020, Levy closed several contracts directly through Angelus Medical and Optical’s customers and failed to pay the agreed upon 10% commission to Faranak. Id., 37. In 2020, cross-defendants breached the agreement by not removing their furniture from Angelus Medical’s warehouse and failing to pay Faranak the agreed upon 10% commission. Id., 38. Cross-complainants lost customers, rent payments, future business opportunities, and commission payments. Id., 39.

Cross-defendants argue that the claim is barred by the statute of frauds because as alleged, the agreement is not written and not to be performed within a year. Civil Code 1624(a)(1).

Cross-defendants further argue that the cause of action is unintelligible and ambiguous as it is impossible to discern the terms of the alleged agreement and the alleged “invoices.”

The court finds that the allegations are sufficient to meet the elements and not barred by the statute of frauds on its face.

The demurrer is OVERRULED.

2nd cause of action for breach of fiduciary duty

The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary duty, (2) breach, and (3) damages proximately caused by the breach. Stanley v. Richmond (1995) 35 Cal. App. 4th 1070, 1086.

The FACC alleges that a fiduciary duty imposes on a partner/agent a duty to act with the utmost good faith in the best interests of its partner/principal. FACC, 44. Cross-defendants owed a duty of care during the business relationship. Id., 45.

Cross-defendants argue that the allegations are insufficient because there are no facts supporting the elements.

The court finds that the allegations are insufficient to support the elements, including the existence of a fiduciary duty. The FACC does not allege a partnership or partnership agreement or other relationship that would give rise to a fiduciary duty.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

3rd cause of action for money had and received

A claim for money had and received is viable “wherever one person has received money which belongs to another, and which in equity and good conscience should be paid over to the latter. [Citations.]” Avidor v. Sutter’s Place, Inc. (2013) 212 Cal. App. 4th 1439, 1454. To prevail, a plaintiff must prove that the defendant received money that was intended to be used for the benefit of the plaintiff, that the money was not used for the benefit of the plaintiff, and that the defendant has not returned the money to the plaintiff. CACI No. 370.

The FACC alleges that in 2020, cross-defendants breached the agreement by not removing its furniture from Angelus Medical’s warehouse and failing to pay cross-complainant the agreed upon 10% commission. FACC, 58. Cross-defendants received money that was intended to be used for the benefit of Faranak. Id., 59.

The court finds that the allegations are insufficient to support the elements for a common count. The allegations do not show that cross-defendants received money that was for the benefit of Faranak. Rather, the allegations show that cross-defendants breached an agreement to pay a 10% commission.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

4th cause of action for accounting

An action for accounting is equitable in nature. It may be brought to compel the defendant to account to the plaintiff for money or property (1) where a fiduciary relationship exists between the parties or (2) where, though no fiduciary relationship exists, the accounts are so complicated that an ordinary legal action demanding a fixed sum is impracticable. To state a cause of action for accounting, only the simplest pleading is required: (a) The fiduciary relationship or other circumstances appropriate to the remedy; and (b) a balance due from the defendant to the plaintiff that can only be ascertained from an accounting. A complaint does not state a cause of action for an accounting where it shows on its face that none is necessary - i.e., where the plaintiff alleges his right to recover a sum certain or a sum that can be made certain by calculation. 5 Witkin, California Procedure (4th ed.), at 775-776.

The FACC alleges that Levy had a duty to properly report, account for, and distribute the proceeds and profits of the agreement in a timely and proper fashion to cross-complainants. FACC, 73. Levy had exclusive control over and access to the information related to the agreement. Id., 74. Cross-defendants have failed to provide access to the financial information related to the agreement, as well as the information required to account for the commission. Id., 77. It is necessary and appropriate for the court to order an accounting of any proceeds of the agreement. Id., 78.

Cross-defendants argue that the allegations do not support the elements.

The court finds that the allegations are sufficient as the balance due on the commissions appears to be only ascertained from an accounting.

The demurrer is OVERRULED.

5th cause of action for lost profits

As cross-defendants argue, this claim is not a recognized cause of action.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

6th cause of action for negligence

The FACC alleges that cross-defendants owed a duty of care during the business relationship with cross-complainants. FACC, 91. The duty of care was owed by cross-defendants to perform the tasks and services for which they had entered into the agreement. Id., 92. Cross-defendants were negligent when they told cross-complainants that Levy was in the middle of setting up a showroom in Beverly Hills and Probelle would give a 10% commission to Angelus Medical for remodeling services provided to any customer brought in by Angelus Medical. Id., 95. A showroom has not been built and cross-complainants have not been paid what is owed to them. Id., 98.

The court finds that the allegations are insufficient. “The court recently endorsed the general rule that where the ‘negligent’ performance of a contract amounts to nothing more than a failure to perform the express terms of the contract, the claim is one for contract breach, not negligence. . . . A contract to perform services gives rise to a duty of care which requires that such services be performed in a competent and reasonable manner. A negligent failure to do so may be both a breach of contract and a tort. In such a hybrid situation, the plaintiff is entitled to pursue both legal theories until an occasion for an election of remedies arises.” North American Chemical Co. v. Superior Court (1997) 59 Cal. App. 4th 764, 774 (citations omitted). The FACC does not allege a failure to perform services; rather, the FACC alleges a failure to perform the express terms of the contract, which is to pay 10% commission.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

7th cause of action for intentional misrepresentation

The elements of a fraud claim are (1) misrepresentation; (2) knowledge of falsity; (3) intent to deceive; and (4) reliance and resulting damage. Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal. App. 4th 282, 290. “To withstand demurrer, the facts constituting every element of fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings.” Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal. App. 4th 772, 782. The particularity requirement necessitates pleadings 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 are insufficient to meet the elements and cross-complainant fails to plead with particularity.

The demurrer is SUSTAINED WITH LEAVE TO AMEND.

8th cause of action for negligent misrepresentation

The elements of negligent misrepresentation are: (1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages. Where the defendant makes false statements, honestly believing that they are true, but without reasonable ground for such belief, he may be liable for negligent misrepresentation, a form of deceit. B.L.M. v. Sabo & Deitsch (1997) 55 Cal. App. 4th 823, 834.

The allegations are insufficient to meet the elements and cross-complainant fails to plead with particularity.

The demurrer is SUSTAINED WITH LEAVE TO AMEND.

9th cause of action for unjust enrichment

“’There is no cause of action in California for unjust enrichment.’ Unjust enrichment is synonymous with restitution. There are several potential bases for a cause of action seeking restitution. For example, restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason. Alternatively, restitution may be awarded where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or similar conduct. In such cases, the plaintiff may choose not to sue in tort, but instead to seek restitution on a quasi-contract theory . . . . In such cases, where appropriate, the law will imply a contract (or rather, a quasi-contract), without regard to the parties’ intent, in order to avoid unjust enrichment.” Durrell v. Sharp Healthcare (2010) 183 Cal. App. 4th 1350, 1370 (citations omitted).

The FACC does not allege a basis for restitution.

The demurrer is SUSTAINED WITH LEAVE TO AMEND.

10th cause of action for promissory estoppel

The elements of a promissory estoppel claim are (1) a clear promise, (2) reliance, (3) substantial detriment and (4) damages measured by the extent of the obligation assumed and not

performed. Toscano v. Greene Music (2004) 124 Cal. App. 4th 685, 692. Although equitable in nature, promissory estoppel is akin to a cause of action based on contract except that the consideration needed to form an enforceable contract is provided by detrimental reliance. Id. at 692-693. Under California law, “[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” Kajima/Ray Wilson v. Los Angeles Cnty. Metro. Transp. Auth. (2000) 23 Cal. 4th 305, 310.

The FACC does not allege facts to show detrimental reliance.

The demurrer is SUSTAINED WITH LEAVE TO AMEND.

Cross-defendants are ordered to give notice of the ruling.



b'

Case Number: *******0832 Hearing Date: December 7, 2021 Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

PROBELLE ENTERPRISES, INC.,

Plaintiff,

Case No.:

*******0832

vs.

[Tentative] RULING

FARANAK M. KAMNEI, et al.,

Defendants.

Hearing Date: November 7, 2021

Moving Parties: Plaintiff Probelle Enterprises, Inc.

Responding Party: Defendant FMK, Inc.

(1) Motion to Compel Responses to Form Interrogatories, Set One

(2) Motion to Compel Responses to Requests for Production of Documents, Set One

(3) Motion to Deem the Truth of Matters Specified in Request for Admissions, Set One, Admitted

The court considered the moving, opposition, and reply papers.

RULING

The motions to compel are GRANTED. Defendant FMK, Inc. is ordered to respond without objections to plaintiff’s Form Interrogatories, Set One within 20 days.

Defendant FMK, Inc. is ordered (1) to serve on plaintiff a verified response without objections to plaintiff’s Requests for Production, Set One, and (2) to produce all documents and things in defendant’s possession, custody, or control, which are responsive to plaintiff’s request, within 20 days.

The motion to deem admitted the truth of the matters in plaintiff’s First Set of Requests for Admissions is CONTINUED to ____________ to allow defendant to respond without objections within 20 days. If defendant fails to respond, the motion will be granted.

The court orders defendant FMK, Inc. and defendant’s attorney of record Doron F. Eghbali to pay to plaintiff the amount of $1,170 within 30 days.

BACKGROUND

On November 12, 2020, plaintiff Probelle Enterprises, Inc. filed a complaint against defendant Faranak M. Kamnei dba Angelus Medical & Optical for (1) breach of agreement, (2) breach of implied covenant of good faith and fair dealing, (3) tortious interference with prospective advantage, (4) conversion, (5) claim and delivery, (6) unfair competition – B&P ;17200, (7) breach of fiduciary duty, (8) accounting, (9) unjust enrichment, and (10) common count – money had and received.

On May 12, 2021, the court overruled defendant’s demurrer as to the 1st, 4th, 5th, 7th, 8th, 9th, and 10th causes of action and sustained it with leave to amend as to the 2nd, 3rd, and 6th causes of action. The motion to strike was denied as to each cause of action, the allegations as to defendant, and the prayer for costs and granted with leave to amend as to punitive damages and attorney’s fees.

On June 2, 2021, plaintiff filed a FAC against Faranak M. Kamnei an ind dba Angelus Medical & Optical and FMK, Inc. for (1) breach of agreement, (2) tortious interference with prospective advantage, (3) conversion, (4) claim and delivery, (5) breach of fiduciary duty, (6) accounting, (7) unjust enrichment, and (8) common count-money had.

On June 23, 2021, defendants filed a cross-complaint against Probelle and Michael Levy for (1) breach of contract, (2) breach of fiduciary duty, (3) money had and received, (4) accounting, (5) lost profits, (6) negligent interference with prospective economic relations, (7) intentional interference with prospective economic relations, (8) negligence, (8) intentional misrepresentation, (10) negligent misrepresentation, (11) unjust enrichment, and (12) promissory estoppel. The court stated that any claim for attorney’s fees is to be by separate noticed motion.

On September 10, 2021, the court granted cross-defendants Probelle Enterprises and Michael Levy’s special motion to strike under CCP ;415.16 as to the 6th and 7th causes of action in the cross-complaint.

LEGAL AUTHORITY

Interrogatories

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. CCP ;2030.290(b). The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 905-906.

Request for Production of Documents

Where there has been no timely response to a CCP ;2031.010 demand, the demanding party must seek an order compelling a response. CCP ;2031.300. Failure to timely respond waives all objections, including privilege and work product. Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion. Where the motion seeks only a response to the inspection demand, no showing of “good cause” is required. Weil & Brown, Civil Procedure Before Trial, 8:1487.

Request for Admissions

Pursuant to CCP ; 2033.280(b), a party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010). “Failure to timely respond to RFA does not result in automatic admissions. Rather, the propounder of the RFA must ‘move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction’ under ; 2023.010 et seq.” Weil & Brown, Civ. Proc. Before Trial, ¶ 8:1370, citing CCP ; 2033.280(b). The court “shall” grant the motion to deem RFA admitted, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” CCP ; 2033.280(c).

DISCUSSION

Plaintiff Probelle Enterprises requests an order compelling defendant FMK, Inc. to serve responses without objections to plaintiff’s initial set of form interrogatories and requests for production of documents and to deem admitted the truth of the matters in the first set of requests for admission.

On September 15, 2021, plaintiff served defendant FMK, Inc. with its discovery requests. Responses were due by October 15, 2021. Plaintiff contends that defendant failed to serve discovery responses as of the filing date of the motion.

In opposition, defendant asserts that defendant Faranak M. Kamnei served timely responses on January 22, 2021 to requests for production and requests for admissions and on March 12, 2021 to form interrogatories, which defendant contends are the same discovery requests at issue here. Defendant argues that the motions are untimely and that they “were served without required documents such as a separate statement or declaration.”

In reply, plaintiff argues that defendant has provided no evidence of code compliance and improperly addresses past discovery by “indiscriminately” attaching “hundreds of pages of superfluous documents which have no bearing on” the motions.

The court finds that the discovery requests were properly served on defendant FMK, Inc. Although not addressed by either party, it appears that the previous discovery was served on defendant Faranak M. Kamnei. In any event, defendant FMK, Inc. has not shown that it served timely discovery responses to the discovery requests served on September 15, 2021. The motions were timely filed as there is no deadline for motions to compel. Defendant incorrectly cited to the discovery statutes as to motions to compel further responses. The motions properly contained a declaration and the discovery at issue along with the proof of service. The court notes that defense counsel states that he did not receive the requests until November 8, 2021 (which was after the due date), and it appears that the written discovery is duplicative but that it is directed to a different defendant, which is allowed.

Accordingly, the motions to compel responses to form interrogatories and requests for production of documents are GRANTED. The motion to deem admitted the truth of the matters is CONTINUED to allow defendant to serve responses.

Sanctions

Under CCP ; 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Under CCP ; 2023.010, an example of the misuse of the discovery process is “(d) Failing to respond or to submit to an authorized method of discovery.”

Sanctions are mandatory in connection with motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” CCP ;; 2030.290(c), 2031.300(c).

It is mandatory that the court impose a monetary sanction on the party or attorney whose failure to serve a timely response to requests for admission necessitated a motion to deem them admitted. CCP ; 2033.280(c).

Cal. Rules of Court, Rule 3.1348(a) states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Plaintiff requests sanctions against defendant and defense counsel in the amount of $6,515.50 in total for all three motions. The court finds that $1,170 ($495 x 2 hrs., $180 in filing fees) is a reasonable amount to be imposed against defendant FMK, Inc. and attorney of record Doron F. Eghbali in total for the three motions.

Plaintiff is ordered to give notice of ruling.

'


b'

Case Number: *******0832 Hearing Date: November 19, 2021 Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

PROBELLE ENTERPRISES, INC.,

Plaintiff,

Case No.:

*******0832

vs.

[TENTATIVE] RULING

FARANAK M. KAMNEI, et al.,

Defendants.

Hearing Date: November 19, 2021

Moving Parties: Defendant/cross-complainant Faranak M. Kamnei dba Angelus Medical & Optical, Inc.

Responding Party: Plaintiff Probelle Enterprises, Inc.

Motion to Compel Plaintiff’s Further Responses to Special Interrogatories Set Two

The court considered the moving, opposition, and reply papers and supplemental response.

RULING

The motion is MOOT in light of plaintiff serving supplemental responses. The court orders that plaintiff and plaintiff’s attorney Jason D. Ahdoot pay monetary sanctions in the amount of $2,610 to defendant within 30 days.

BACKGROUND

On November 12, 2020, plaintiff Probelle Enterprises, Inc. filed a complaint against defendant Faranak M. Kamnei dba Angelus Medical & Optical for (1) breach of agreement, (2) breach of implied covenant of good faith and fair dealing, (3) tortious interference with prospective advantage, (4) conversion, (5) claim and delivery, (6) unfair competition – B&P ;17200, (7) breach of fiduciary duty, (8) accounting, (9) unjust enrichment, and (10) common count – money had and received.

On May 12, 2021, the court overruled defendant’s demurrer as to the 1st, 4th, 5th, 7th, 8th, 9th, and 10th causes of action and sustained it with leave to amend as to the 2nd, 3rd, and 6th causes of action. The motion to strike was denied as to each cause of action, the allegations as to defendant, and the prayer for costs and granted with leave to amend as to punitive damages and attorney’s fees.

On June 2, 2021, plaintiff filed a FAC against Faranak M. Kamnei an ind dba Angelus Medical & Optical and FMK, Inc. for (1) breach of agreement, (2) tortious interference with prospective advantage, (3) conversion, (4) claim and delivery, (5) breach of fiduciary duty, (6) accounting, (7) unjust enrichment, and (8) common count-money had.

On June 23, 2021, defendants filed a cross-complaint against Probelle and Michael Levy for (1) breach of contract, (2) breach of fiduciary duty, (3) money had and received, (4) accounting, (5) lost profits, (6) negligent interference with prospective economic relations, (7) intentional interference with prospective economic relations, (8) negligence, (8) intentional misrepresentation, (10) negligent misrepresentation, (11) unjust enrichment, and (12) promissory estoppel. The court stated that any claim for attorney’s fees is to be by separate noticed motion.

On September 10, 2021, the court granted cross-defendants Probelle Enterprises and Michael Levy’s special motion to strike under CCP ;415.16 as to the 6th and 7th causes of action in the cross-complaint.

LEGAL AUTHORITY

45-Day Rule: This motion must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax; see CCP ;1013); otherwise, the demanding party waives the right to compel any further response to the CCP ;2031.010 demand. CCP ;;2031.310(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal. App. 4th 736, 745. The 45-day time limit is mandatory and jurisdictional. Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410. The parties, however, can also agree in writing on a specific later date by which to file the motion to compel. CCP ;2031.310(c).

Meet-and-Confer Requirement: The motion to compel further responses must be accompanied by a declaration showing “a reasonable and good faith attempt” to resolve the issues outside of court (so-called “meet and confer”). CCP ;;2016.040, 2031.310(b)(2).

Separate Statement: Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement. This includes a motion to compel further responses to demand for inspection of documents or tangible things. CRC Rule 3.1020(a)(3).

Interrogatories

CCP ;2030.300 states: “(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. . . . (3) An objection to an interrogatory is without merit or too general. (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories. . . .”

DISCUSSION

Defendant and cross-complainant Faranak M. Kamnei dba Angelus Medical & Optical, Inc. requests an order compelling plaintiff Probelle Enterprises, Inc. to provide further responses to Special Interrogatories, Set Two, Nos. 106 to 113, 114-116, 117-122, 123, 124-125, 126-128, 129-132, 133, 134-135, 136, and 137.

On May 12, 2021, defendant served special interrogatories, set two on Probelle along with other discovery requests (which are subject to other motions scheduled for later hearing dates). Plaintiff served responses on June 24, 2021. On June 29, 2021, defense counsel sent a meet and confer letter to plaintiff’s counsel, allowing 14 days to provide further verified substantive responses by July 7, 2021. On July 6, 2021, plaintiff’s counsel requested fourteen additional days, which defense counsel requested. On July 28, 2021, defense counsel sent a letter to plaintiff’s counsel informing him that the supplemental responses were late. As of the filing of the motion, plaintiff had not served supplemental responses. See Separate Statement.

Defendant argues that plaintiff’s responses are deficient as they do not comply with CCP ;2030.220(b) (“If an interrogatory cannot be answered completely, it shall be answered to the extent possible.”) and 2030.220(c) (“If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations . . . .”). Defendant also argues that plaintiff’s objections are without merit.

In opposition (filed on November 5, 2021), plaintiff argues that the motion should be denied because it was filed during a discovery stay under CCP ;425.16. Further, plaintiff asserts that it filed supplemental responses on September 15, 2021 after the stay was lifted. Plaintiff also contends that it “reserves the right to argue that Defendant’s motion is unmeritorious, as Plaintiff’s objections are valid.”

As plaintiff has represented that it served supplemental responses on September 15, 2021, the motions are deemed MOOT.

Defendant requests monetary sanctions against plaintiff and plaintiff’s counsel in the amount of $4,500. The court finds that $2,610 ($375/hr. x 6 hrs., $150/hr. x 2 hrs.; filing fee) is a reasonable amount to be imposed against plaintiff and plaintiff’s attorney of record Jason D. Ahdoot.

Defendant is ordered to give notice of the ruling.

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

PROBELLE ENTERPRISES, INC.,

Plaintiff,

Case No.:

*******0832

vs.

[Tentative] RULING

FARANAK M. KAMNEI,

Defendant.

Hearing Date: November 19, 2021

Moving Parties: Plaintiff and cross-defendants Probelle Enterprises, Inc. and Michael Levy

Responding Party: Cross-complainants Faranak M. Kamnei and FMK Inc

Motion for Attorney’s Fees and Costs Following Grant of Anti-SLAPP Motion

The court considered the moving, opposition, and reply papers.

RULING

The motion is GRANTED. Cross-defendants Probelle Enterprises, Inc. and Michael Levy are awarded $10,515 in reasonable attorney’s fees and costs pursuant to CCP ;425.16 against cross-complainants Faranak M. Kamnei and FMK Inc.

BACKGROUND

On November 12, 2020, plaintiff Probelle Enterprises, Inc. filed a complaint against defendant Faranak M. Kamnei dba Angelus Medical & Optical for (1) breach of agreement, (2) breach of implied covenant of good faith and fair dealing, (3) tortious interference with prospective advantage, (4) conversion, (5) claim and delivery, (6) unfair competition – B& ; 17200, (7) breach of fiduciary duty, (8) accounting, (9) unjust enrichment, and (10) common count – money had and received.

On May 12, 2021, the court overruled defendant’s demurrer as to the 1st, 4th, 5th, 7th, 8th, 9th, and 10th causes of action and sustained it with leave to amend as to the 2nd, 3rd, and 6th causes of action. The motion to strike was denied as to each cause of action, the allegations as to defendant, and the prayer for costs and granted with leave to amend as to punitive damages and attorney’s fees.

On June 2, 2021, plaintiff filed a FAC against Faranak M. Kamnei an ind dba Angelus Medical & Optical and FMK, Inc. for (1) breach of agreement, (2) tortious interference with prospective advantage, (3) conversion, (4) claim and delivery, (5) breach of fiduciary duty, (6) accounting, (7) unjust enrichment, and (8) common count-money had.

On June 23, 2021, defendants filed a cross-complaint against Probelle and Michael Levy for (1) breach of contract, (2) breach of fiduciary duty, (3) money had and received, (4) accounting, (5) lost profits, (6) negligent interference with prospective economic relations, (7) intentional interference with prospective economic relations, (8) negligence, (8) intentional misrepresentation, (10) negligent misrepresentation, (11) unjust enrichment, and (12) promissory estoppel. The court stated that any claim for attorney’s fees is to be by separate noticed motion.

On September 10, 2021, the court granted cross-defendants Probelle Enterprises and Michael Levy’s special motion to strike under CCP ;415.16 as to the 6th and 7th causes of action in the cross-complaint.

LEGAL AUTHORITY

Under CCP ;425.16(c)(1), “in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” “If section 425.16 were interpreted to prevent a trial court from awarding attorney fees to a prevailing defendant in an amount the court deems reasonable and simply requires the trial court to award the amount requested, the statute would mandate the court to make what might be an unreasonable award. We cannot ascribe such an intention to the Legislature. Further, if a trial court were bound by the amount of attorney fees sought by a prevailing defendant under section 425.16 and had no discretion to award a lesser amount, the potential for abuse would be extraordinary. The trial court cannot be placed in the position of having to acquiesce in any amount sought by a prevailing defendant, no matter how outrageous. The trial court’s role is not merely to rubber stamp the defendant’s request, but to ascertain whether the amount sought is reasonable.” Robertson v. Rodriguez (1995) 36 Cal. App. 4th 347, 361.

[B]y its terms, CCP section 425.16 permits the use of the so-called lodestar adjustment method.” Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1131. “We approved the calculation of attorney fees beginning with a lodestar figure based on the reasonable hours spent, multiplied by the hourly prevailing rate for private attorneys in the community conducting noncontingent ligation of the same type.” Id. at 1133 (citation omitted).

A “prevailing defendant” on an anti-SLAPP motion is entitled to reasonable attorney’s fees associated with the motion, even if the defendant’s motion “was granted as to some causes of action but not others.” Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal. App. 4th 1228, 1267. Such a defendant shall recover only those fees and costs incurred in connection with the successful portion of the anti-SLAPP motion, however. Jackson v. Yarbray (2009) 170 Cal. App. 4th 75, 82; Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal. App. 5th 581, 605-606.

“The fees awarded to a defendant who was only partially successful on an anti-SLAPP motion should be commensurate with the extent to which the motion changed the nature and character of the lawsuit in a practical way.” Mann v. Quality Old Time Service, Inc. (2006) 139 Cal. App. 4th 328, 345.

DISCUSSION

Cross-defendants Probelle Enterprises, Inc. and Michael Levy request an order for reasonably attorney’s fees and costs under CCP ;425.16 against cross-complainants Faranak M. Kamnei and FMK Inc.

On September 10, 2021, the court granted cross-defendants Probelle Enterprises and Michael Levy’s special motion to strike under CCP ;415.16 as to the 6th and 7th causes of action in the cross-complaint. The court stated that any claim for attorney’s fees was to be by separate noticed motion.

Cross-defendants request $13,608.75. See declaration of attorney Jason Ahdoot, stating that the hourly rate is $495 and that he expended 22.25 hrs. in preparing the anti-SLAPP motion and related pleadings, totaling $11,013.75. Counsel states that he expects to spend another two hours in reviewing and drafting a reply to the opposition to the attorney’s fee motion and three hours to appear at hearing, for a total of $2,475. Cross-defendants also incurred $120 in filing fees.

In opposition, cross-complainants argue that cross-defendants have not met their burden that the fee request is reasonable. Cross-complainants contend that 22 hours is unreasonable, including 3.25 hours to travel and appear at courthouse although he had the option of appearing virtually and 6.5 hrs. researching and preparing the motion. Cross-complainants assert that counsel “already possessed a deep familiarity with this case which would greatly reduce the difficulty, skill, time and attention required for any reasonable attorney to research and draft a similar anti-SLAPP motion.”

Prevailing parties Probelle and Michael Levy are entitled to reasonable attorney’s fees and costs in prevailing on their anti-SLAPP motion. The court finds that $10,515 ($495/hr. x 21 hrs. plus in $120 filing fees) is a reasonable amount.

The motion is GRANTED.

Moving party is ordered to give notice of ruling.

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

PROBELLE ENTERPRISES, INC.,

Plaintiff,

Case No.:

*******0832

vs.

[Tentative] RULING

FARANAK M. KAMNEI IND. DBA ANGELUS MEDICAL & OPTICAL, et al.,

Defendants.

Hearing Date: November 19, 2021

Moving Parties: Plaintiff Probelle Enterprises, Inc.

Responding Party: None

Motion for Attorney Fee Sanctions

The court considered the moving papers.

RULING

The motion is DENIED.

BACKGROUND

On November 12, 2020, plaintiff Probelle Enterprises, Inc. filed a complaint against defendant Faranak M. Kamnei dba Angelus Medical & Optical for (1) breach of agreement, (2) breach of implied covenant of good faith and fair dealing, (3) tortious interference with prospective advantage, (4) conversion, (5) claim and delivery, (6) unfair competition – B& ; 17200, (7) breach of fiduciary duty, (8) accounting, (9) unjust enrichment, and (10) common count – money had and received.

On May 12, 2021, the court overruled defendant’s demurrer as to the 1st, 4th, 5th, 7th, 8th, 9th, and 10th causes of action and sustained it with leave to amend as to the 2nd, 3rd, and 6th causes of action. The motion to strike was denied as to each cause of action, the allegations as to defendant, and the prayer for costs and granted with leave to amend as to punitive damages and attorney’s fees.

On June 2, 2021, plaintiff filed a FAC against Faranak M. Kamnei an ind dba Angelus Medical & Optical and FMK, Inc. for (1) breach of agreement, (2) tortious interference with prospective advantage, (3) conversion, (4) claim and delivery, (5) breach of fiduciary duty, (6) accounting, (7) unjust enrichment, and (8) common count-money had.

On June 23, 2021, defendants filed a cross-complaint against Probelle and Michael Levy for (1) breach of contract, (2) breach of fiduciary duty, (3) money had and received, (4) accounting, (5) lost profits, (6) negligent interference with prospective economic relations, (7) intentional interference with prospective economic relations, (8) negligence, (8) intentional misrepresentation, (10) negligent misrepresentation, (11) unjust enrichment, and (12) promissory estoppel. The court stated that any claim for attorney’s fees is to be by separate noticed motion.

On September 10, 2021, the court granted cross-defendants Probelle Enterprises and Michael Levy’s special motion to strike under CCP ;415.16 as to the 6th and 7th causes of action in the cross-complaint.

LEGAL AUTHORITY

CCP ;128.5 states in part, “(a) A trial court may order a party, the party\'s attorney, or both, to pay the reasonable expenses, including attorney\'s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.”

CCP ;128.7(b) states: “By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person\'s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:

(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. . . .”

If the court finds that a pleading violates any of these provisions, it may impose appropriate monetary and/or non-monetary sanctions against the attorneys, law firm, or parties responsible (except that a represented party may not be sanctioned for a violation of 128.7(b)(2)). CCP ;128.7(c)).

Under CCP ;128.7(b), an attorney who files or later advocates a pleading is held to certify that he or she conducted a reasonable inquiry and that to the best of the attorney\'s knowledge, information, and belief the allegations and other factual contentions have evidentiary support or are likely to have evidentiary support after reasonable opportunity for discovery. The conduct warranting sanction is not the filing or advocacy of a complaint that is ultimately determined to lack evidentiary support, but doing so without a reasonable inquiry and basis to believe evidence exists to support the allegations of the complaint.

CCP 128.7 should be utilized only in “the rare and exceptional case where the action is clearly frivolous, legally unreasonable or without legal foundation, or brought for an improper purpose.” Operating Engineers Pension Trust v. A-C Co. (9th Cir. 1988) 859 F.2d 1336, 1344; see Hart v. Avetoom (2002) 95 Cal. App. 4th 410, 413.

DISCUSSION

Plaintiff Probelle Enterprises requests that the court impose sanctions under CCP ;128.7 for attorney’s fees and costs against defendant and cross-complainant Faranak M. Kamnei and her counsel of record in the amount of $3,772.50 ($495/hr. x 7.5 hrs.).

Plaintiff argues that defendant violated CCP ;;128.7, 425.16, and 2023.010 by filing motions to compel supplemental responses to Special Interrogatories, Set Two and Requests for Production of Documents, Set Two on August 17, 2021 for an improper purpose in contravention of a stay, without substantial justification, to harass and to cause unnecessary delay or needless increase in the cost of litigation.

Plaintiff contends that the motions were filed during the pendency of a CCP ;425.16(g) discovery stay.

The court finds that filing the motions to compel further responses did not violate CCP ;128.7. There are statutory deadlines to filing such motions. Also, the hearing was scheduled for after the special motion to strike was decided and the stay lifted.

Accordingly, the motion is DENIED.

Plaintiff is ordered to give notice of the ruling.

'


b'

Case Number: *******0832 Hearing Date: September 10, 2021 Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

PROBELLE ENTERPRISES, INC.,

Plaintiff,

Case No.:

*******0832

vs.

[Tentative] RULING

FARANAK M. KAMNEI, et al.,

Defendants.

Hearing Date: September 10, 2021

Moving Parties: Cross-defendants Probelle Enterprises, Inc. and Michael Levy

Responding Party: Cross-complainant Faranak M. Kamnei

Anti-SLAPP Motion to Strike Cross-Complaint

The court considered the moving, opposition, and reply papers.

RULING

The motion is GRANTED. The 6th and 7th causes of action in the cross-complaint are STRICKEN.

BACKGROUND

On November 12, 2020, plaintiff Probelle Enterprises, Inc. filed a complaint against defendant Faranak M. Kamnei dba Angelus Medical & Optical for (1) breach of agreement, (2) breach of implied covenant of good faith and fair dealing, (3) tortious interference with prospective advantage, (4) conversion, (5) claim and delivery, (6) unfair competition – Bus. and Prof. Code ;17200, (7) breach of fiduciary duty, (8) accounting, (9) unjust enrichment, and (10) common count – money had and received. The complaint alleges that plaintiff and defendant entered into an oral agreement on January 29, 2020 whereby plaintiff would assist in procuring the merchandise (masks) via its contacts in the industry and defendant would be responsible for selling, packaging, and shipping the merchandise. Complaint, ¶¶ 6, 14-16. Pursuant to the terms of the agreement, each party was to bear a pro-rata share of the cost of purchasing the merchandise and the profits derived therefrom as follows: 55% to defendant and 45% to plaintiff. Id., ¶ 16. Plaintiff alleges it performed all conditions, covenants, and promises required under the agreement by arranging for the merchandise to be delivered to defendant on January 31, 2020 and February 14, 2020 and advancing the purchase price of the shipments of merchandise to the supplier. Id., ¶¶ 7-8, 14, 18. Plaintiff alleges defendant breached the agreement on March 19, 2020 by failing to account for and tender plaintiff’s pro-rata share of profits from the sales. Id., ¶¶ 9, 14, 19.

On May 12, 2021, the court overruled defendant’s demurrer as to the 1st, 4th, 5th, 7th, 8th, 9th, and 10th causes of action and sustained it with 20 days leave to amend as to the 2nd, 3rd, and 6th causes of action. The motion to strike was denied as to each cause of action, the allegations as to defendant, and the prayer for costs and granted with 20 days leave to amend as to punitive damages and attorney’s fees.

On June 2, 2021, plaintiff filed as FAC for (1) breach of agreement, (2) tortious interference with prospective advantage, (3) conversion, (4) claim and delivery, (5) breach of fiduciary duty, (6) accounting, (7) unjust enrichment, and (8) common count – money had.

On June 23, 2021, Faranak M. Kamnei, individual dba Angelus Medical & Optical, FMK, Inc. filed a cross-complaint against Probelle Enterprises, Inc. and Michael Levy for (1) breach of contract, (2) breach of fiduciary duty, (3) money had and received, (4) accounting, (5) lost profits, (6) negligent interference with prospective economic relations, (7) intentional interference with prospective economic relations, (8) negligence, (9) intentional misrepresentation, (10) negligent misrepresentation, (11) unjust enrichment, and (12) promissory estoppel.

LEGAL STANDARD

Under CCP ;425.16(b), “(1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”

“The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” Baral v. Schnitt (2016) 1 Cal. 5th 376, 393. “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. If only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” Id. at 384. “Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate merit of the claim by establishing a probability of success.” Id. (citation omitted). The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’ The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. ‘[C]laims with the requisite minimal merit may proceed.’” Id. at 384-85 (citations omitted).

“At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.” Id. at 396.

DISCUSSION

Pursuant to ;425.16, cross-defendants Probelle Enterprises, Inc. and Michael Levy request that the court strike the 6th cause of action for negligent interference with prospective economic relations and 7th cause of action for intentional interference with prospective economic relations in the cross-complaint on the ground that they arise from cross-defendant’s protected free speech activity.

In ruling on an anti-SLAPP motion, the trial court engages in a two-step process. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. . . . Only when a defendant shows that a cause of action is based on protected conduct and the plaintiff fails to show a likelihood of success on that claim is it subject to dismissal.” Wong v. Jing (2010) 189 Cal. App. 4th 1354, 1360 (citation omitted).

Under the 6th cause of action, cross-complainant alleges that Faranak claims that Levy negligently interfered with a relationship between Faranak and its two business associates, Mojan Karimi and Henry Schein, that probably would have resulted in an economic benefit to Faranak. Cross-complaint, ¶86. Karimi has been currently working as a consultant and sales representative for Angelus Medical. Id., ¶31. Taghavi is a representative for Angelus Medical from Henry Schein, Inc. Id., ¶32. Levy approached Karimi and Taghavi to ask them to misrepresent the facts for this civil case during the first week in June and requesting them to sign documents that would be presented in the court against Faranak. Id., ¶¶87, 33. Faranak and Karimi were in an economic relationship that probably would have resulted in a future economic benefit to Faranak. Nonetheless, Karimi no longer feels comfortable to proceed with the scheduled meetings and business opportunities that involve Faranak while this civil case is active. Id., ¶88. Levy knew or should have known of this relationship. Id., ¶89. Levy knew or should have known that his relationship would be disrupted if he failed to act with reasonable care. Id., ¶90. Levy failed to act with reasonable care when he decided to approach Faranak’s business associates. Id., ¶91. Cross-defendants engaged in wrongful conduct by (1) persuading Faranak’s business associates to misrepresent the fact for the case, while (2) knowing that Angelus Medical relies on these two associates, and (3) knowing that the interference of these business associates would disrupt all business relations between Faranak and the associates. Id., ¶92.

Under the 7th cause of action for intentional interference with prospective economic relations, cross-complainant alleges the same as under the 6th cause of action.

Step One: Conduct in furtherance of right of petition or free speech

CCP ;425.16(e) states, in relevant part: “As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”

“The phrase ‘arising from’ . . . has been interpreted to mean that ‘the act underlying the plaintiff’s cause’ or ‘the act which forms the basis for the plaintiff’s cause of action’ must have been an act in furtherance of the right of petition or free speech.’” Schwarzburd v. Kensington Police Protection & Community Services Dist. Bd. (2014) 225 Cal. App. 4th 1345, 1350 (citation omitted). “What nexus must a defendant show between a challenged claim and the defendant’s protected activity for the claim to be struck? . . . [A] claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” Park v. Board of Trustees of California State University (2017) 2 Cal. 5th 1057, 1060 (considering the relationship a defendant must show between a plaintiff’s claim and the sorts of speech on public matters the Legislature intended to protect). “’[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.’ ( . . . see City of Cotati [v. Cashman (2002) 29 Cal. 4th 69], at p. 78 [suit may be in “response to, or in retaliation for,’ protected activity without necessarily arising from it].) Instead, the focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’ ‘The only means specified in section 425.16 by which a moving defendant can satisfy the [arising from] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . .’ In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” Id.

Cross-defendants argue that the 6th and 7th causes of action emanate from protected activity: Levy’s attempts to obtain witness statements in connection with this action. Thus, cross-defendants contend, Levy’s communicative acts fall under CCP ;426.16(e)(1) and (2) in connection with a judicial proceeding.

In opposition, cross-complainant argues that Levy’s communications with Karimi and Taghavi are not protected because CCP ;425.16(e)(1) and (2) “only covers communications between attorneys and parties as part of their representation of a client.” Cross-complainants are incorrect.

The court finds that the 6th and 7th causes of action arise from protected activity.

Step Two: Cross-complainant’s Responding Burden

“To establish a probability of prevailing, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. For purposes of this inquiry, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (; 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant\'s evidence supporting the motion defeats the plaintiff\'s attempt to establish evidentiary support for the claim.” Hawran v. Hixson (2012) 209 Cal.App.4th 256, 273-74. However, the court must accept as true the evidence favorable to plaintiff. Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.

“[A] plaintiff cannot simply rely on his or her pleadings, even if verified. Rather, the plaintiff must adduce competent, admissible evidence.” Grenier v. Taylor (2015) 234 Cal. App. 4th 471, 480. The proof of a prima facie case must be made by competent and admissible evidence. Morrow v. Los Angeles Unified School District (2007) 149 Cal. App. 4th 1424, 1444.

6th cause of action for negligent interference with prospective economic relations

To prevail on a cause of action for negligent interference with prospective economic advantage, a plaintiff must plead and prove: (1) Economic relationship between the plaintiff and a third party; (2) that contained a reasonably probable future economic benefit or advantage to plaintiff; (3) defendant knew of the existence of the relationship and was aware, or should have been, that if it did not act with due care, its actions would interfere with the relationship and cause plaintiff to lose in whole or in part the probable future economic benefit or advantage; (4) the defendant was negligent; (5) the negligence caused damage to plaintiff because of actual interference or disruption; and (6) plaintiff lost in whole or in part the economic benefits or advantage reasonably expected from the relationship. North Amer. Chem. Co. v. Superior Court (1997) 59 Cal. App. 4th 764, 786. “\'The tort of negligent interference with economic relationship arises only when the defendant owes the plaintiff a duty of care . . . among the criteria for establishing a duty of care is the "blameworthiness" of the defendant\'s conduct. . . . For negligent interference, a defendant’s conduct is blameworthy only if it was independently wrongful apart from the interference itself.” Lange v. TIG Ins. Co. (1998) 68 Cal. App. 4th 1179, 1187-88.

Cross-complainant reiterates the allegations of the cross-complaint but does not demonstrate that they are legally sufficient. The allegations do not show an independently wrongful act.

Further, cross-complainant presents no evidence in support to show that he has a probability of prevailing on the merits. Cross-complainant Kamnei’s declaration does not address the 6th and 7th causes of action.

7th cause of action for intentional interference with prospective economic advantage

“Intentional interference with prospective economic advantage has five elements: (1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendants’ knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; and (5) economic harm proximately caused by the defendants’ action.” Roy Allen Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal. 5th 505, 512 (citation omitted). There can be no recovery unless plaintiffs can show that, except for the tortious interference, there was a reasonable probability that the contract or profit would have been obtained. Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal. 4th 1134, 1164. “[A] plaintiff seeking to recover for alleged interference with prospective economic relations has the burden of pleading and proving that the defendant’s interference was wrongful \'by some measure beyond the fact of the interference itself.\'" Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 392-393. For an act to be sufficiently independently wrongful, it must be “unlawful, that is, . . . it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” Korea Supply Co., supra, at 1159.

Cross-complainant has not alleged independently wrongful conduct. Further, cross-complainant presents no evidence in support to show a probability of prevailing on the merits.

The court finds that cross-complainant has not met his burden.

The motion is thus GRANTED.

Moving party is ordered to give notice of the ruling.

'


Case Number: *******0832    Hearing Date: May 12, 2021    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

PROBELLE ENTERPRISES, INC.,

Plaintiff,

Case No.:

*******0832

vs.

[Tentative] RULING

FARANAK M. KAMNEI, an individual dba ANGELUS MEDICAL & OPTICAL, et al.,

Defendants.

Hearing Date: May 12, 2021

Moving Parties: Defendant Faranak M. Kamnei

Responding Party: Plaintiff Probelle Enterprises, Inc.

(1) Demurrer to Complaint

(2) Motion to Strike Portions of the Complaint

The court considered the moving, opposition, and reply papers.

RULING

The demurrer is OVERRULED as to the 1st, 4th, 5th, 7th, 8th, 9th, and 10th causes of action and SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the 2nd, 3rd, and 6th causes of action in the complaint.

The motion to strike is DENIED as to each cause of action, the allegations as to defendant, and the prayer for costs and GRANTED WITH 20 DAYS LEAVE TO AMEND as to punitive damages and attorney’s fees.

BACKGROUND

On November 12, 2020, plaintiff Probelle Enterprises, Inc. filed a complaint against defendant Faranak M. Kamnei dba Angelus Medical & Optical for (1) breach of agreement, (2) breach of implied covenant of good faith and fair dealing, (3) tortious interference with prospective advantage, (4) conversion, (5) claim and delivery, (6) unfair competition – Bus. and Prof. Code ; 17200, (7) breach of fiduciary duty, (8) accounting, (9) unjust enrichment, and (10) common count – money had and received.

LEGAL AUTHORITY

Demurrer

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.  “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 v. Mirda

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.  CCP ; 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.  CCP ; 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.  CCP ; 436.  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  CCP ; 437.

CCP ; 431.10 states, “(b) An immaterial allegation in a pleading is any of the following:  (1) An allegation that is not essential to the statement of a claim or defense.  (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.  (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.  (c) An “immaterial allegation” means “irrelevant matter” as that term is used in Section 436.”

DISCUSSION

Demurrer

Defendant demurs to each cause of action in the complaint on the grounds of misjoinder and that they fail to state sufficient facts to constitute a cause of action.

Misjoinder of Parties

CCP ; 430.10(d) provides that a demurrer may be brought on grounds of misjoinder of parties. CCP ; 379 provides that all persons may be joined in one action as defendants if there is any right asserted against them “arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; or [a] claim, right, or interest adverse to them in the property or controversy which is the subject of the action.” CCP ; 379(a). “[A] defendant may not make allegations of defect or misjoinder of parties in the demurrer if the pleadings do not disclose the existence of the matter relied on; such objection must be taken by plea or answer.” Harboring Villas Homeowners Association v. Superior Court (1998) 63 Cal. App. 4th 426, 429.

Defendant Kamnei contends that the allegations are insufficient as to her individually because she is operating under FMK, Inc. and that there are no facts to indicate that Kamnei was personally involved with plaintiff. Defendant asserts that the allegations are insufficient as to unity of interest and that she was not in privity of contract with Probelle.

The complaint alleges that defendant Faranak M. Kamnei is an individual doing business as Angelus Medical & Optical and that each of the defendants were the officers, directors, agents, joint venturers, partners, employees, co-beneficiaries, trustee, and/or representatives of each other defendant and were acting within the course and scope of their authority, or alternatively, defendants conspired together to engage in the wrongful conduct alleged and were acting within the course, purpose, and in furtherance of such conspiracy. Complaint, ¶3.

The court finds that the allegations in the complaint are sufficient as to defendant as she is sued as a dba. Plaintiff alleges that the subject agreement and arrangement was between plaintiff and Kamnei dba Angelus Medical & Optical. These allegations must be taken as true for the purposes of the demurrer. Based on these allegations, defendant is properly joined to this action.

1st Cause of Action for Breach of Agreement

“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.

The complaint alleges that plaintiff and defendant entered into an oral agreement on or about January 29, 2020 whereby plaintiff would, among other things, assist in procuring the merchandise via its contacts in the industry and defendant would be responsible for, among other things, selling, packaging, and shipping the merchandise. Complaint, ¶¶ 6, 14-16. Pursuant to the terms of the agreement, each party was to bear a pro-rata share of the cost of purchasing the merchandise and the profits derived therefrom as follows: 55% to defendant and 45% to plaintiff. Id., ¶ 16. Plaintiff alleges it performed all conditions, covenants, and promises required under the agreement by arranging for the merchandise to be delivered to defendant on January 31, 2020 and February 14, 2020 and advancing the purchase price of the shipments of merchandise to the supplier. Id., ¶¶ 7-8, 14, 18. Plaintiff alleges defendant breached the agreement on or about March 19, 2020 by failing to account for and tender plaintiff’s pro-rata share of profits from the sales. Id., ¶¶ 9, 14, 19. As a result of defendant’s breach, plaintiff allegedly suffered damages in an amount according to proof. Id., ¶ 20.

Defendant asserts that this claim fails because plaintiff has failed to attach any written agreement or cite the contents in verbatim.

The court finds that plaintiff’s allegations of the existence of an oral agreement between the parties and the material terms of the oral agreement are sufficient.

Defendant further argues this claim fails because plaintiff alleges no less than $60,000 in damages and agreements for purchases and sale of goods over $500 must be in writing to be enforceable. Defendant cites to Civil Code ; 1624 to support its contention that agreements for purchases and sale of goods over $500 must be in writing to be enforceable.

The court notes that there is no requirement under Civil Code ; 1624 that a contract for sale of goods in an amount over $500 must be in writing. In any event, the allegations do not demonstrate that the agreement was for a sale of goods over $500. The $60,000 upon which defendant bases her argument is plaintiff’s alleged damages regarding the inventory defendant has allegedly refused to return, not plaintiff’s damages under the agreement. Complaint, ¶ 39.

Accordingly, the demurrer is OVERRULED as to the 1st cause of action.

2nd Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing

“Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” Hicks v. E.T. Legg & Associates (2001) 89 Cal. App. 4th 496, 508. “[T]he scope of conduct prohibited by the covenant of good faith is circumscribed by the purposes and express terms of the contract.” Id. at 509. “The covenant of good faith and fair dealing . . . exists . . . to prevent one contracting party from unfairly frustrating the other party’s right to receive the benefits of the agreement actually made.” Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 349. “A ‘breach of the implied covenant of good faith and fair dealing involves something beyond breach of the contractual duty itself’ and it has been held that ‘[b]ad faith implies unfair dealing rather than mistaken judgment . . . .’” Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal. App. 3d 1371, 1394 (citation omitted).

Defendant argues this claim fails because plaintiff has failed to establish the existence of any agreement between the parties and attach a copy of the alleged agreement. Defendant’s argument lacks merit. As discussed, plaintiff has sufficiently alleged the existence of an oral agreement between the parties.

Defendant’s argument regarding the statute of frauds pursuant to Civil Code ; 1624 also fails for the reasons discussed above.

The court finds though that plaintiff has failed to sufficiently plead this cause of action against defendant. Plaintiff alleges that defendant acted in bad faith by not giving equal consideration to plaintiff’s interests and by denying plaintiff the benefits to which it is entitled under the agreement. Complaint, ¶ 23. Plaintiff has failed to allege the specific acts by defendant that breached the implied covenant of good faith and fair dealing. To the extent the alleged breach is based on defendant’s failure to account for and pay plaintiff its pro-rata share of the sales, this is already alleged as a breach of the agreement. Id., ¶ 19. Allegations that do not go beyond a statement of a mere contract breach may be disregarded as superfluous. Bionghi v. Metropolitan Water District (1999) 70 Cal. App. 4th 1358, 1370. To the extent the alleged breach is based on defendant’s alleged retaliation in ending the parties’ separate arrangement for plaintiff to sell and store its merchandise using defendant’s offices, this does not show a breach of the implied covenant of good faith and fair dealing in relation to the parties’ agreement as the allegations show this is a separate arrangement between the parties. Complaint, ¶ 10.

Plaintiff has thus failed to sufficiently plead a breach of the implied covenant of good faith and fair dealing against defendant.

Accordingly, the demurrer is SUSTAINED with leave to amend as to the 2nd cause of action.

3rd Cause of Action for Tortious Interference with Prospective Advantage

The elements for the tort of intentional interference with prospective economic advantage are: “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153.

“A plaintiff must establish an existing relationship to establish a claim for intentional interference with prospective economic advantage.” Salma v. Capon (2008) 161 Cal.App.4th 1275, 1291. Allegations regarding interference with potential customers are insufficient to state a cause of action for intentional interference with prospective economic advantage. Korea Supply Co., supra, 29 Cal.4th at 1164 (stating that the tort of intentional interference with prospective economic advantage “‘protects the expectation that the relationship eventually will yield the desired benefit, not necessarily the more speculative expectation that a potentially beneficial relationship will arise”) (citation omitted); Roth v. Rhodes (1994) 25 Cal. App. 4th 530, 546 (finding that an allegation that the defendant interfered with relations with future customers is insufficient to show an existing relationship).

Here, plaintiff alleges that there were agreements for prospective sales between plaintiff and its customers, that defendant knew of those agreements and intended to disrupt the performance of said agreements, that defendant’s conduct prevented performance or made performance more expensive or difficult, and that, as a result, plaintiff was damaged in an amount according to proof. Complaint, ¶¶ 26-28.

Plaintiff’s allegations are insufficient to state a cause of action for tortious interference with prospective economic advantage. Plaintiff has failed to allege facts showing that plaintiff had relationships with existing customers as opposed to potential customers. Plaintiff has also failed to allege facts demonstrating how defendant disrupted the alleged relationships between plaintiff and its customers.

The demurrer is SUSTAINED with leave to amend as to the 3rd cause of action.

4th Cause of Action for Conversion

To plead a cause of action for conversion, one must allege (1) the plaintiff’s ownership or right to possession of personal property; (2) defendant’s disposition of the property inconsistent with plaintiff’s rights; and (3) resulting damages. Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 119. “‘Conversion is any act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein.’” Enterprise Leasing Corp. v. Shugart Corp. (1991) 231 Cal. App. 3d 737, 747 (citation omitted). “‘It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.’” Id. “[C]onversion can occur when a willful failure to return property deprives the owner of possession.” Fearon v. Department of Corrections (1984) 162 Cal. App. 3d 1254, 1257.

In the complaint, plaintiff alleges that the parties entered into an arrangement in November 2016 whereby plaintiff was permitted to sell and store its merchandise using defendant’s offices in exchange for the prospect of referrals, introductions, and the use of certain office furniture by defendant. Complaint, ¶¶ 10, 30. Plaintiff alleges that all furniture and furnishings belonging to plaintiff located in defendant’s offices as listed in the attached inventory are exclusively the property of plaintiff. Id., ¶¶ 11, 30. Plaintiff alleges that defendant abruptly ended their arrangement on or about March 19, 2020. Id., ¶¶ 10, 30. Plaintiff alleges that it arranged for alternative space for the inventory upon learning defendant wished to end their arrangement. Id., ¶¶ 12, 30. Plaintiff alleges that pursuant to the parties’ arrangement, defendant was obligated to return the inventory to plaintiff upon demand. Id., ¶ 31. Plaintiff alleges that instead of meeting its obligations to return the inventory, defendant instead took wrongful possession of the inventory and has wrongfully hindered and impeded plaintiff from retrieving its inventory by refusing to provide plaintiff access to its inventory, despite numerous attempts by plaintiff to do so. Id., ¶¶ 13, 30, 32.

Defendant argues this claim fails because plaintiff failed to provide any factual support to indicate that defendant was contractually under any obligation to store and safeguard plaintiff’s properties when plaintiff failed to respond to defendant’s demand for removal of its inventory.

As this is a conversion claim and not a contract claim, there is no need for plaintiff to plead defendant’s obligation to store and safeguard plaintiff’s property. It is sufficient that plaintiff alleges there was an arrangement to store its inventory at defendant’s offices, that the arrangement ended, defendant was obligated to return its inventory under the arrangement, and that defendant has failed to do so and has prevented plaintiff from retrieving its inventory. Defendant’s assertion that plaintiff failed to respond to defendant’s demand for removal of its inventory or request for payment is based on facts outside the scope of the pleading and is thus irrelevant for the purposes of this demurrer.

The demurrer is OVERRULED as to the 4th cause of action.

5th Cause of Action for Claim and Delivery

Defendant argues this claim is not viable as it is not a cause of action. Defendant fails to provide legal authority that claim and delivery is not a cause of action.

Additionally, the court notes that when property is taken, the owner of the property may either proceed in conversion for damages for the wrongful act or in replevin to recover the property or damages if the property cannot be restored. Shaw v. Palmer (1924) 65 Cal. App .441, 449. While plaintiff has asserted a conversion claim, the court will permit plaintiff to assert this claim as an alternative claim for replevin as it seeks a different remedy for recovery of the inventory.

The demurrer is OVERRULED as to the 5th cause of action.

Sixth Cause of Action for Unfair Competition – B&P ; 17200

Business and Professions Code ; 17200 prohibits “any unlawful, unfair or fraudulent business act or practice.” Bus. & Prof. Code ; 17200; see Clark v. Superior Court (2010) 50 Cal.4th 605, 610. “An unlawful business practice or act is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law.” Klein v. Earth Elements, Inc. (1997) 59 Cal. App. 4th 965, 969.

To establish a fraudulent practice under the UCL, the plaintiff must show that members of the public are likely to be deceived. West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal. App. 4th 780, 806.

When the UCL claim is brought against a competitor, the “unfair” prong of the statute “means conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition.” Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 187. “[A]ny finding of unfairness to competitors under section 17200 [must] be tethered to some legislatively declared policy or proof of some actual or threatened impact on competition.” Id. at 186-87.

Plaintiff alleges that defendant has engaged in unfair business practices by employing and utilizing the practices complained of and that defendant’s use of such unfair business practices constitutes unfair competition that has provided and continues to provide defendant with an unfair advantage over competitors. Complaint, ¶ 50. Plaintiff alleges defendant’s practices are unlawful, unfair, and fraudulent in that they violate her obligations to plaintiff. Id., ¶ 51. Plaintiff alleges defendant’s practices are unfair because it seeks to nullify the policies underlying every contract, including the duty to act in good faith, and that defendant’s scheme is also fraudulent. Id., ¶¶ 52-53.

Plaintiff’s allegations are insufficient to state a cause of action for unfair competition against defendant. Plaintiff has failed to identify which of defendant’s acts constitute an unlawful business practice. It is also unclear what acts by defendant constitute unfair business practices and how such unfair practices threaten or harm competition. To the extent plaintiff’s claim for unfair business practice is premised on defendant’s purported breach of the implied covenant of good faith and fair dealing, the claim fails as plaintiff has failed to sufficiently plead such a claim and such a breach cannot be said to threaten or harm competition. As for fraudulent business practice, plaintiff has failed to plead facts demonstrating defendant engaged in fraudulent business practices and that members of the public are likely to be deceived by such acts.

The demurrer is SUSTAINED with leave to amend as to the 6th cause of action.

7th Cause of Action for Breach of Fiduciary Duty

The elements for a breach of fiduciary duty cause of action are “the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach.” Thomson v. Canyon (2011) 198 Cal. App. 4th 594, 604.

Plaintiff alleges defendant occupies the position of a fiduciary for plaintiff by virtue of the parties’ agreement and arrangement. Complaint, ¶ 57.

Defendant argues this claim fails because plaintiff has failed to sufficiently plead the existence of a contract between the parties and thus has not established a fiduciary duty owed by defendant.

As discussed above, plaintiff has sufficiently pled the existence of an oral agreement between the parties.

The demurrer is OVERRULED as to the 7th cause of action.

8th Cause of Action for Accounting

“A cause of action for accounting requires a showing of a relationship between the plaintiff and the defendant, such as a fiduciary relationship, that requires an accounting or a showing that the accounts are so complicated they cannot be determined through an ordinary action at law.” Fleet v. Bank of America N.A. (2014) 229 Cal. App. 4th 1403, 1413. “‘An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation.’” Id. (citation omitted). “The right to an accounting can arise from the possession by the defendant of money or property which, because of the defendant’s relationship with the plaintiff, the defendant is obliged to surrender.” Teselle v. McLoughlin (2009) 173 Cal. App. 4th 156, 179-80.

Defendant argues this claim fails because plaintiff has failed to substantiate its contractual relationship between itself and defendant.

As stated above, plaintiff has sufficiently pled the existence of an oral agreement between the parties.

Defendant further argues that plaintiff has failed to prove that there was any fiduciary relationship between the parties. Although not explicitly argued, it appears this argument is also premised upon plaintiff’s failure to sufficiently plead the existence of a contractual relationship between the parties. To this extent, this argument also fails.

The court notes that defendant’s assertions regarding a 10% commission agreement between the parties and that defendant paid this commission to plaintiff involve facts beyond the scope of the complaint and thus cannot be considered for the purposes of this demurrer.

The demurrer is OVERRULED as to the 8th cause of action.

9th Cause of Action for Unjust Enrichment

In California, there is no cause of action for unjust enrichment. Rutherford Holdings LLC v. Plaza Del Rey (2014) 223 Cal. App. 4th 221, 231; Levine v. Blue Shield of California (2010) 189 Cal. App. 4th 1117, 1138. While unjust enrichment is not a cause of action, courts have stated that unjust enrichment is synonymous with restitution and allowed recovery where the plaintiff asserts a proper basis for recovering restitution. Durrell v. Sharp Healthcare (2010) 183 Cal. App. 4th 1350, 1370; McBride v. Boughton (2004) 123 Cal.App.4th 379, 387-88. Such bases include quasi-contract, fraud, duress, conversion, or similar conduct. Durrell, supra, 183 Cal. App. 4th at 1370; McBride, supra, 123 Cal. App. 4th at 387-88.

“An individual is required to make restitution if he or she is unjustly enriched at the expense of another.” First Nationwide Savings v. Perry (1992) 11 Cal. App. 4th 1657, 1662. “A person is enriched if the person receives a benefit at another’s expense.” Id. “Benefit means any type of advantage.” Id.

In the complaint, plaintiff alleges defendant has been unjustly enriched as a result of defendant’s withholding of the proceeds under the agreement as well as plaintiff’s inventory. Complaint, ¶ 71.

Defendant argues this claim fails because plaintiff has failed to provide any factual support for the agreement. Defendant’s argument fails because plaintiff has sufficiently alleged the existence of an oral agreement between the parties.

Defendant further argues this claim fails because there are no facts demonstrating defendant was unjustly enriched because of coercion or fraud.

To the extent plaintiff is claiming unjust enrichment based on a withholding of the inventory, plaintiff has alleged a sufficient basis for this claim based on conversion. Because plaintiff has alleged a proper basis for unjust enrichment of the inventory based on conversion, the demurrer cannot be sustained. Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 (stating that the sustaining of a demurrer may only be upheld if the complaint fails to state a cause of action under any possible legal theory).

The demurrer is thus OVERRULED as to the 9th cause of action.

10th Cause of Action for Common Count – Money Had and Received

“A cause of action for money had and received is stated if it is alleged the defendant ‘is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff.’” Farmers Insurance Exchange v. Zerin (1997) 53 Cal. App. 4th 445, 460 (citation omitted).

The complaint alleges that plaintiff paid money to defendant that was intended to be used for the benefit of plaintiff and that the money was not used for its intended purpose. Complaint, ¶¶ 63, 74-76. Plaintiff alleges defendant has not distributed the money to plaintiff despite demands for the money. Id., ¶ 77.

Defendant argues this claim fails because plaintiff has failed sufficiently establish any contractual relationship between the parties. As discussed, this argument is unavailing because plaintiff has sufficiently pled the existence of an oral agreement between the parties.

Defendant also argues that plaintiff has failed to provide any tangible proof to show the sum of money that was given to defendant and that that money was not intended to be used for the benefit of plaintiff.

The court is not concerned with issues of proof on a demurrer. Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.

The demurrer is OVERRULED as to the 10th cause of action.

Motion to Strike

Defendant moves to strike each cause of action, the complaint in its entirety as to defendant, plaintiff’s claim for punitive damages, and plaintiff’s claim for attorney’s fees and costs.

Complaint as to Defendant

Defendant argues she has been misjoined such that the allegations and causes of action against her should be stricken. As discussed above, the allegations in the complaint do not disclose that defendant has been misjoined as a party. The motion to strike the allegations and causes of action as to defendant is DENIED.

Each Cause of Action

It is improper to strike a whole cause of action pursuant to a motion to strike. Quiroz v. Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1281. Instead, such a challenge must be made in a demurrer. Id.

Defendant’s argument that each cause of action should be stricken for failure to state sufficient facts is more proper for a demurrer and in fact has been made in the demurrer.

The motion to strike each cause of action is DENIED.

Punitive Damages

Civil Code ; 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” Civ. Code ; 3294(a). “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Id. ; 3294(c)(1). “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Id.,; 3294(c)(2). “‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” Id., ; 3294(c)(3). Punitive damages thus require more than the mere commission of a tort. Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95. Specific facts must be pleaded in support of punitive damages. Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.

Plaintiff seeks punitive damages as to the 3rd, 4th, 5th, and 7th causes of action for tortious interference with prospective advantage, conversion, claim and delivery, and breach of fiduciary duty, respectively. Plaintiff has failed to allege facts demonstrating defendant’s alleged misconduct in interfering with prospective sales between plaintiff and its customers, withholding plaintiff’s inventory, and breaching fiduciary obligations was malicious, oppressive, or fraudulent. Plaintiff has thus failed to sufficiently plead entitlement to punitive damages.

The motion to strike is GRANTED with leave to amend as to punitive damages.

Attorney’s Fees and Costs

CCP ; 1021 provides for attorney’s fees specifically provided by statute or by agreement between the parties. CCP ; 1021.

Plaintiff seeks attorney’s fees pursuant to Civil Code ; 3336, as authorized by statute, or under the tort of another doctrine.

To the extent plaintiff merely refers to attorney’s fees as authorized by statute, this is insufficient. Plaintiff must plead a specific statute authorizing the recovery of attorney’s fees.

Plaintiff has failed to show entitlement to attorney’s fees pursuant to Civil Code ; 3336 as this provision deals with the amount of damages, presumably caused by the wrongful conversion of personal property and makes no reference to an entitlement to attorney’s fees.

A plaintiff may recover attorney’s fees under the tort of another doctrine. “The tort of another doctrine holds that ‘[a] person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney’s fees, and other expenditures thereby suffered or incurred.’” Mega RV Corporation v. HWH Corporation (2014) 225 Cal. App. 4th 1318, 1337 (quoting Prentice v. North American Title Guaranty Corp. (1963) 59 Cal.2d 618, 620). “The tort of another doctrine is not really an exception to the American rule, but simply ‘an application of the usual measure of tort damages.’” Id. (quoting Sooy v. Peter (1990) 220 Cal. App. 3d 1305, 1310). “The tort of another doctrine does not allow a party to recover the fees and costs involved in litigating directly with a negligent defendant.” Gorman v. Tassajara Development Corp. (2009) 178 Cal. App. 4th 44, 80. This doctrine “does not apply to the situation where a plaintiff has been damaged by the joint negligence of codefendants.” Id. (citing Vacco Industries, Inc. v. Van Den Berg (1992) 5 Cal. App. 4th 34, 57). “[A] party seeking to recover attorney fees and costs as tort damages ordinarily should plead and prove them to the fact-finder . . . .” Id. at 79.

The allegations in the complaint fail to demonstrate that the tort of another doctrine applies. Plaintiff has thus failed to allege sufficient facts demonstrating entitlement to attorney’s fees pursuant to the tort of another doctrine.

The motion is GRANTED with leave to amend as to the prayer for attorney’s fees.

Defendant has failed to demonstrate the prayer for costs should be stricken. CCP ; 1032 provides for the recovery of costs as a matter of right. There is thus no basis for striking the prayer for costs.

The motion to strike is DENIED as to costs.

Defendant is ordered to give notice of the ruling.



Case Number: *******0832    Hearing Date: April 15, 2021    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

PROBELLE ENTERPRISES, INC.,

Plaintiff,

Case No.:

*******0832

vs.

[Tentative] Ruling

FARANAK M. KAMNEI, an individual dba ANGELUS MEDICAL & OPTICAL, et al.,

Defendants.

Hearing Date: April 15, 2021

Moving Parties: Defendant Faranak M. Kamnei dba Angelus Medical & Optical

Responding Party: Plaintiff Probelle Enterprises, Inc.

(1) Demurrer to Complaint

(2) Motion to Strike Portions of the Complaint

The court considered the moving, opposition, and reply papers.

RULING

The demurrer is OVERRULED as to the first, fourth, fifth, seventh, eighth, ninth, and tenth causes of action and SUSTAINED WITH LEAVE TO AMEND as to the second, third, and sixth causes of action in the complaint.

The motion to strike is DENIED as to each cause of action, the allegations as to defendant, and the prayer for costs and GRANTED WITH LEAVE TO AMEND as to punitive damages and attorney’s fees.

BACKGROUND

On November 12, 2020, plaintiff Probelle Enterprises, Inc. filed a complaint against defendant Faranak M. Kamnei dba Angelus Medical & Optical for (1) breach of agreement, (2) breach of implied covenant of good faith and fair dealing, (3) tortious interference with prospective advantage, (4) conversion, (5) claim and delivery, (6) unfair competition – B& ; 17200, (7) breach of fiduciary duty, (8) accounting, (9) unjust enrichment, and (10) common count – money had and received.

LEGAL AUTHORITY

Demurrer

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.  “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 v. Mirda

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.  CCP ; 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.  CCP ; 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.  CCP ; 436.  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  CCP ; 437.

CCP ; 431.10 states, “(b) An immaterial allegation in a pleading is any of the following:  (1) An allegation that is not essential to the statement of a claim or defense.  (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.  (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.  (c) An “immaterial allegation” means “irrelevant matter” as that term is used in Section 436.”

DISCUSSION

Demurrer

Defendant demurs to each cause of action in the complaint on grounds that they fail to state sufficient facts to constitute a cause of action.

Misjoinder of Parties

CCP ; 430.10(d) provides that a demurrer may be brought on grounds of misjoinder of parties. CCP ; 430.10(d). CCP ; 379 provides that all persons may be joined in one action as defendants if there is any right asserted against them “arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; or [a] claim, right, or interest adverse to them in the property or controversy which is the subject of the action.” CCP ; 379(a). “[A] defendant may not make allegations of defect or misjoinder of parties in the demurrer if the pleadings do not disclose the existence of the matter relied on; such objection must be taken by plea or answer.” Harboring Villas Homeowners Association v. Superior Court (1998) 63 Cal.App.4th 426, 429.

The court finds the allegations in the complaint do not disclose that there is a misjoinder of parties in this action. Defendant’s misjoinder argument is premised on defendant’s assertion that defendant is operating under FMK, Inc. and plaintiff has failed to sufficiently plead a unity of interest between FMK, Inc. dba Angelus Medical & Optical and defendant Kamnei as an individual. Defendant’s argument is premised on facts not pled in the complaint. As pled, the subject agreement and arrangement was between plaintiff and Kamnei dba Angelus Medical & Optical. These allegations must be taken as true for the purposes of this demurrer. Based on these allegations, defendant is properly joined to this action. To the extent defendant contends otherwise, this must be asserted in the answer.

Accordingly, the demurrer is OVERRULED on grounds of misjoinder.

First Cause of Action for Breach of Agreement

“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.

Here, plaintiff alleges plaintiff and defendant entered into an oral agreement on or about January 29, 2020 whereby plaintiff would, among other things, assist in procuring the merchandise via its contacts in the industry and defendant would be responsible for, among other things, selling, packaging, and shipping the merchandise. Complaint, ¶¶ 6, 14-16. Pursuant to the terms of the agreement, each party was to bear a pro-rata share of the cost of purchasing the merchandise and the profits derived therefrom as follows: 55% to defendant and 45% to plaintiff. Id., ¶ 16. Plaintiff alleges it performed all conditions, covenants, and promises required under the agreement by arranging for the merchandise to be delivered to defendant on January 31, 2020 and February 14, 2020 and advancing the purchase price of the shipments of merchandise to the supplier. Id., ¶¶ 7-8, 14, 18. Plaintiff alleges defendant breached the agreement on or about March 19, 2020 by failing to account for and tender plaintiff’s pro-rata share of profits from the sales. Id., ¶¶ 9, 14, 19. As a result of defendant’s breach, plaintiff allegedly suffered damages in an amount according to proof. Id., ¶ 20. These allegations are sufficient to state a cause of action for breach of contract against defendant.

Defendant asserts that this cause of action fails because plaintiff has failed to attach any written agreement or cite the contents in verbatim. Defendant’s assertion is unavailing. As acknowledged by defendant, plaintiff has alleged an oral agreement. There is thus no written agreement to attach or contents to cite in verbatim. Plaintiff’s allegations of the existence of an oral agreement between the parties and the material terms of the oral agreement are sufficient.

Defendant further argues this cause of action fails because plaintiff alleges no less than $60,000 in damages and agreements for purchases and sale of goods over $500 must be in writing to be enforceable. Defendant’s assertion is unavailing. Defendant cites to Civil Code ; 1624 to support its contention that agreements for purchases and sale of goods over $500 must be in writing to be enforceable. There is no requirement under Civil Code ; 1624 that a contract for sale of goods in an amount over $500 must be in writing. Even assuming there was such a requirement, the allegations do not demonstrate that the agreement was for a sale of goods over $500. The $60,000 upon which defendant bases her argument is plaintiff’s alleged damages regarding the inventory defendant has allegedly refused to return, not plaintiff’s damages under the agreement. Complaint, ¶ 39.

Accordingly, the demurrer is OVERRULED as to the first cause of action.

Second Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing

“Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” Hicks v. E.T. Legg & Associates (2001) 89 Cal.App.4th 496, 508. “[T]he scope of conduct prohibited by the covenant of good faith is circumscribed by the purposes and express terms of the contract.” Id. at 509. “The covenant of good faith and fair dealing . . . exists . . . to prevent one contracting party from unfairly frustrating the other party’s right to receive the benefits of the agreement actually made.” Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 349. “A ‘breach of the implied covenant of good faith and fair dealing involves something beyond breach of the contractual duty itself’ and it has been held that ‘[b]ad faith implies unfair dealing rather than mistaken judgment . . . .’” Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394 (quoting Congleton v. National Union Fire Insurance Co. (1987) 189 Cal.App.3d 51, 59).

Defendant argues this cause of action fails because plaintiff has failed to establish the existence of any agreement between the parties and attach a copy of the alleged agreement. Defendant’s argument lacks merit. As discussed, plaintiff has sufficiently alleged the existence of an oral agreement between the parties.

Defendant’s argument regarding the statute of frauds pursuant to Civil Code ; 1624 also fails for the reasons discussed above.

However, the court finds plaintiff has failed to sufficiently plead this cause of action against defendant. Plaintiff alleges that defendant acted in bad faith by not giving equal consideration to plaintiff’s interests and by denying plaintiff the benefits to which it is entitled under the agreement. Complaint, ¶ 23. Plaintiff has failed to allege what specific acts by defendant plaintiff contends was a breach of the implied covenant of good faith and fair dealing. To the extent the alleged breach is based on defendant’s failure to account for and pay plaintiff its pro-rata share of the sales, this is already alleged as a breach of the agreement. Complaint, ¶ 19. Allegations that do not go beyond a statement of a mere contract breach may be disregarded as superfluous. Bionghi v. Metropolitan Water District (1999) 70 Cal.App.4th 1358, 1370. To the extent the alleged breach is based on defendant’s alleged retaliation in ending the parties’ separate arrangement for plaintiff to sell and store its merchandise using defendant’s offices, this does not show a breach of the implied covenant of good faith and fair dealing in relation to the parties’ agreement as the allegations show this is a separate arrangement between the parties. Complaint, ¶ 10. Plaintiff has thus failed to sufficiently plead a breach of the implied covenant of good faith and fair dealing against defendant.

Accordingly, the demurrer is SUSTAINED with leave to amend as to the second cause of action.

Third Cause of Action for Tortious Interference with Prospective Advantage

The elements for the tort of intentional interference with prospective economic advantage are: “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153.

“A plaintiff must establish an existing relationship to establish a claim for intentional interference with prospective economic advantage.” Salma v. Capon (2008) 161 Cal.App.4th 1275, 1291. Allegations regarding interference with potential customers are insufficient to state a cause of action for intentional interference with prospective economic advantage. Korea Supply Co., supra, 29 Cal.4th at 1164 (stating that the tort of intentional interference with prospective economic advantage “‘protects the expectation that the relationship eventually will yield the desired benefit, not necessarily the more speculative expectation that a potentially beneficial relationship will arise” (quoting Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 524); Roth v. Rhodes (1994) 25 Cal.App.4th 530, 546 (finding that an allegation that the defendant interfered with relations with future customers is insufficient to show an existing relationship).

Here, plaintiff alleges that there were agreements for prospective sales between plaintiff and its customers, that defendant knew of those agreements and intended to disrupt the performance of said agreements, that defendant’s conduct prevented performance or made performance more expensive or difficult, and that, as a result, plaintiff was damaged in an amount according to proof. Complaint, ¶¶ 26-28.

Plaintiff’s allegations are insufficient to state a cause of action for tortious interference with prospective economic advantage. Plaintiff has failed to allege facts showing that plaintiff had relationships with existing customers as opposed to potential customers. Plaintiff has also failed to allege facts demonstrating how defendant disrupted the alleged relationships between plaintiff and its customers.

Accordingly, the demurrer is SUSTAINED with leave to amend as to the third cause of action.

Fourth Cause of Action for Conversion

To plead a cause of action for conversion, one must allege (1) the plaintiff’s ownership or right to possession of personal property; (2) defendant’s disposition of the property inconsistent with plaintiff’s rights; and (3) resulting damages. Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119. “‘Conversion is any act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein.’” Enterprise Leasing Corp. v. Shugart Corp. (1991) 231 Cal.App.3d 737, 747 (quoting Messerall v. Fulwider (1988) 199 Cal.App.3d 1324, 1329). “‘It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.’” Id. “[C]onversion can occur when a willful failure to return property deprives the owner of possession.” Fearon v. Department of Corrections (1984) 162 Cal.App.3d 1254, 1257.

Here, plaintiff alleges the parties entered into an arrangement in November of 2016 whereby plaintiff was permitted to sell and store its merchandise using defendant’s offices in exchange for the prospect of referrals, introductions, and the use of certain office furniture by defendant. Complaint, ¶¶ 10, 30. Plaintiff alleges that all furniture and furnishings belonging to plaintiff located in defendant’s offices as listed in the attached inventory are exclusively the property of plaintiff. Id., ¶¶ 11, 30. Plaintiff alleges that defendant abruptly ended their arrangement on or about March 19, 2020. Id., ¶¶ 10, 30. Plaintiff alleges that it arranged for alternative space for the inventory upon learning defendant wished to end their arrangement. Id., ¶¶ 12, 30. Plaintiff alleges that pursuant to the parties’ arrangement, defendant was obligated to return the inventory to plaintiff upon demand. Id., ¶ 31. Plaintiff alleges that instead of meeting its obligations to return the inventory, defendant instead took wrongful possession of the inventory and has wrongfully hindered and impeded plaintiff from retrieving its inventory by refusing to provide plaintiff access to its inventory, despite numerous attempts by plaintiff to do so. Id., ¶¶ 13, 30, 32. These allegations are sufficient to state a cause of action for conversion against defendant.

Defendant argues this cause of action fails because plaintiff failed to provide any factual support to indicate that defendant was contractually under any obligation to store and safeguard plaintiff’s properties when plaintiff failed to respond to defendant’s demand for removal of its inventory. Defendant’s argument fails. As this is a conversion claim and not a contract claim, there is no need for plaintiff to plead defendant’s obligation to store and safeguard plaintiff’s property. It is sufficient that plaintiff alleges there was an arrangement to store its inventory at defendant’s offices, that the arrangement ended and defendant was obligated to return its inventory under the arrangement, and that defendant has failed to do so and has prevented plaintiff from retrieving its inventory. Defendant’s assertion that plaintiff failed to respond to defendant’s demand for removal of its inventory or request for payment is based on facts outside the scope of the pleading and is thus irrelevant for the purposes of this demurrer.

Accordingly, the demurrer is OVERRULED as to the fourth cause of action.

Fifth Cause of Action for Claim and Delivery

Defendant argues this claim is not viable as it is not a cause of action. Defendant fails to provide legal authority that claim and delivery is not a cause of action. The demurrer thus cannot be sustained on such grounds.

Additionally, the court notes that when property is taken, the owner of the property may either proceed in conversion for damages for the wrongful act or in replevin to recover the property or damages if the property cannot be restored. Shaw v. Palmer (1924) 65 Cal.App.441, 449. While plaintiff has asserted a conversion claim, the court will permit plaintiff to assert this claim as an alternative claim for replevin as it seeks a different remedy for recovery of the inventory.

Accordingly, the demurrer is OVERRULED as to the fifth cause of action.

Sixth Cause of Action for Unfair Competition – B&P ; 17200

Business and Professions Code ; 17200 prohibits “any unlawful, unfair or fraudulent business act or practice.” Bus. & Prof. Code ; 17200; see Clark v. Superior Court (2010) 50 Cal.4th 605, 610. “An unlawful business practice or act is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law.” Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969.

To establish a fraudulent practice under the UCL, the plaintiff must show that members of the public are likely to be deceived. West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 806.

When the UCL claim is brought against a competitor, the “unfair” prong of the statute “means conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition.” Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 187. “[A]ny finding of unfairness to competitors under section 17200 [must] be tethered to some legislatively declared policy or proof of some actual or threatened impact on competition.” Id. at 186-87.

Plaintiff alleges that defendant has engaged in unfair business practices by employing and utilizing the practices complained of and that defendant’s use of such unfair business practices constitutes unfair competition that has provided and continues to provide defendant with an unfair advantage over competitors. Complaint, ¶ 50. Plaintiff alleges defendant’s practices are unlawful, unfair and fraudulent in that they violate her obligations to plaintiff. Id., ¶ 51. Plaintiff alleges defendant’s practices are unfair because it seeks to nullify the policies underlying every contract, including the duty to act in good faith, and that defendant’s scheme is also fraudulent. Id., ¶¶ 52-53.

Plaintiff’s allegations are insufficient to state a cause of action for unfair competition against defendant. Plaintiff has failed to identify which of defendant’s acts constitute an unlawful business practice. It is also unclear what acts by defendant constitute unfair business practices and how such unfair practices threaten or harm competition. To the extent plaintiff’s claim for unfair business practice is premised on defendant’s purported breach of the implied covenant of good faith and fair dealing, the claim fails as plaintiff has failed to sufficiently plead such a claim and such a breach cannot be said to threaten or harm competition. As for fraudulent business practice, plaintiff has failed to plead facts demonstrating defendant engaged in fraudulent business practices and that members of the public are likely to be deceived by such acts.

Accordingly, the demurrer is SUSTAINED with leave to amend as to the sixth cause of action.

Seventh Cause of Action for Breach of Fiduciary Duty

The elements for a breach of fiduciary duty cause of action are “the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach.” Thomson v. Canyon (2011) 198 Cal.App.4th 594, 604.

Here, plaintiff alleges defendant occupies the position of a fiduciary for plaintiff by virtue of the parties’ agreement and arrangement. Complaint, ¶ 57.

Defendant argues this cause of action fails because plaintiff has failed to sufficiently plead the existence of a contract between the parties and thus has not established a fiduciary duty owed by defendant. Defendant’s argument is unavailing. As discussed, plaintiff has sufficiently pled the existence of an oral agreement between the parties. The demurrer thus cannot be sustained on such grounds.

Accordingly, the demurrer is OVERRULED as to the seventh cause of action.

Eighth Cause of Action for Accounting

“A cause of action for accounting requires a showing of a relationship between the plaintiff and the defendant, such as a fiduciary relationship, that requires an accounting or a showing that the accounts are so complicated they cannot be determined through an ordinary action at law.” Fleet v. Bank of America N.A. (2014) 229 Cal.App.4th 1403, 1413. “‘An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation.’” Id. (quoting Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179). “The right to an accounting can arise from the possession by the defendant of money or property which, because of the defendant’s relationship with the plaintiff, the defendant is obliged to surrender.” Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179-80.

Defendant argues this claim fails because plaintiff has failed to substantiate its contractual relationship between itself and defendant. This argument fails as plaintiff has sufficiently pled the existence of an oral agreement between the parties.

Defendant further argues that plaintiff has failed to prove that there was any fiduciary relationship between the parties. Although not explicitly argued, it appears this argument is also premised upon plaintiff’s failure to sufficiently plead the existence of a contractual relationship between the parties. To this extent, this argument also fails.

The court notes that defendant’s assertions regarding a 10% commission agreement between the parties and that defendant paid this commission to plaintiff involve facts beyond the scope of the complaint and thus cannot be considered for the purposes of this demurrer.

As defendant has failed to meet her burden of demonstrating the cause of action fails, the demurrer is OVERRULED as to the eighth cause of action.

Ninth Cause of Action for Unjust Enrichment

In California, there is no cause of action for unjust enrichment. Rutherford Holdings LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231; Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1138. While unjust enrichment is not a cause of action, courts have stated that unjust enrichment is synonymous with restitution and allowed recovery where the plaintiff asserts a proper basis for recovering restitution. Durrell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370; McBride v. Boughton (2004) 123 Cal.App.4th 379, 387-88. Such bases include quasi-contract, fraud, duress, conversion, or similar conduct. Durrell, supra, 183 Cal.App.4th at 1370; McBride, supra, 123 Cal.App.4th at 387-88.

“An individual is required to make restitution if he or she is unjustly enriched at the expense of another.” First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1662. “A person is enriched if the person receives a benefit at another’s expense.” Id. “Benefit means any type of advantage.” Id.

Here, plaintiff alleges defendant has been unjustly enriched as a result of defendant’s withholding of the proceeds under the agreement as well as plaintiff’s inventory. Complaint, ¶ 71.

Defendant argues this claim fails because plaintiff has failed to provide any factual support for the agreement. Defendant’s argument fails because plaintiff has sufficiently alleged the existence of an oral agreement between the parties.

Defendant further argues this claim fails because there are no facts demonstrating defendant was unjustly enriched because of coercion or fraud. Defendant’s argument is unavailing. To the extent plaintiff is claiming unjust enrichment based on a withholding of the inventory, plaintiff has alleged a sufficient basis for this claim based on conversion. Because plaintiff has alleged a proper basis for unjust enrichment of the inventory based on conversion, the demurrer cannot be sustained. Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 (stating that the sustaining of a demurrer may only be upheld if the complaint fails to state a cause of action under any possible legal theory).

As defendant has not met its burden of demonstrating this cause of action fails, the demurrer is OVERRULED as to the ninth cause of action.

Tenth Cause of Action for Common Count – Money Had and Received

“A cause of action for money had and received is stated if it is alleged the defendant ‘is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff.’” Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 (citing 4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, ; 508, p. 543).

Here, plaintiff alleges it paid money to defendant that was intended to be used for the benefit of plaintiff and that the money was not used for its intended purpose. Complaint, ¶¶ 63, 74-76. Plaintiff alleges defendant has not distributed the money to plaintiff despite demands for the money. Id., ¶ 77.

Defendant argues this claim fails because plaintiff has failed sufficiently establish any contractual relationship between the parties. As discussed, this argument is unavailing because plaintiff has sufficiently pled the existence of an oral agreement between the parties.

Defendant also argues that plaintiff has failed to provide any tangible proof to show the sum of money that was given to defendant and that that money was not intended to be used for the benefit of plaintiff. This argument also fails. The court is not concerned with issues of proof on a demurrer. Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.

Defendant has thus failed to meet her burden of demonstrating this cause of action fails.

Accordingly, the demurrer is OVERRULED as to the tenth cause of action.

Motion to Strike

Defendant moves to strike each cause of action, the complaint in its entirety as to defendant, plaintiff’s claim for punitive damages, and plaintiff’s claim for attorney’s fees and costs.

Complaint as to Defendant

Defendant argues she has been misjoined such that the allegations and causes of action against her should be stricken. As discussed above, the allegations in the complaint do not disclose that defendant has been misjoined as a party. The motion to strike the allegations and causes of action as to defendant is DENIED.

Each Cause of Action

It is improper to strike a whole cause of action pursuant to a motion to strike. Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281. Instead, such a challenge must be made in a demurrer. Id.

Defendant’s argument that each cause of action should be stricken for failure to state sufficient facts is more proper for a demurrer and in fact has been made in the demurrer.

Accordingly, the motion to strike each cause of action is DENIED.

Punitive Damages

Civil Code ; 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” Civ. Code ; 3294(a). “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Id. ; 3294(c)(1). “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Id.,; 3294(c)(2). “‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” Id., ; 3294(c)(3). Punitive damages thus require more than the mere commission of a tort. Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95. Specific facts must be pleaded in support of punitive damages. Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.

Here, plaintiff seeks punitive damages as to the third, fourth, fifth, and seventh causes of action for tortious interference with prospective advantage, conversion, claim and delivery, and breach of fiduciary duty, respectively. Plaintiff has failed to allege facts demonstrating defendant’s alleged misconduct in interfering with prospective sales between plaintiff and its customers, withholding plaintiff’s inventory, and breaching fiduciary obligations was malicious, oppressive, or fraudulent. Plaintiff has thus failed to sufficiently plead entitlement to punitive damages.

Therefore, the motion to strike is GRANTED with leave to amend as to punitive damages.

Attorney’s Fees and Costs

CCP ; 1021 provides for attorney’s fees specifically provided by statute or by agreement between the parties. CCP ; 1021.

Here, plaintiff seeks attorney’s fees pursuant to Civil Code ; 3336, as authorized by statute, or under the tort of another doctrine.

To the extent plaintiff merely refers to attorney’s fees as authorized by statute, this is insufficient. Plaintiff must plead a specific statute authorizing the recovery of attorney’s fees.

Plaintiff has failed to show entitlement to attorney’s fees pursuant to Civil Code ; 3336 as this provision deals with the amount of damages presumably caused by the wrongful conversion of personal property and makes no reference to an entitlement to attorney’s fees.

A plaintiff may recover attorney’s fees under the tort of another doctrine. “The tort of another doctrine holds that ‘[a] person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney’s fees, and other expenditures thereby suffered or incurred.’” Mega RV Corporation v. HWH Corporation (2014) 225 Cal.App.4th 1318, 1337 (quoting Prentice v. North American Title Guaranty Corp. (1963) 59 Cal.2d 618, 620). “The tort of another doctrine is not really an exception to the American rule, but simply ‘an application of the usual measure of tort damages.’” Id. (quoting Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310). “The tort of another doctrine does not allow a party to recover the fees and costs involved in litigating directly with a negligent defendant.” Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 80. This doctrine “does not apply to the situation where a plaintiff has been damaged by the joint negligence of codefendants.” Id. (citing Vacco Industries, Inc. v. Van Den Berg (1992) 5 Cal.App.4th 34, 57). “[A] party seeking to recover attorney fees and costs as tort damages ordinarily should plead and prove them to the fact-finder . . . .” Id. at 79. Here, the allegations in the complaint fail to demonstrate that the tort of another doctrine applies. Plaintiff has thus failed to allege sufficient facts demonstrating entitlement to attorney’s fees pursuant to the tort of another doctrine.

As the complaint does not sufficiently plead a basis for attorney’s fees, the motion to strike is GRANTED with leave to amend as to the prayer for attorney’s fees.

However, defendant has failed to demonstrate the prayer for costs should be stricken. CCP ; 1032 provides for the recovery of costs as a matter of right. There is thus no basis for striking the prayer for costs.

Accordingly, the motion to strike is DENIED as to costs.

Defendant is ordered to give notice of the ruling.



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