Case Name: Austiaj Limited Partnership, et al. v. Guiv Parineh, et al.

Case No.: 1-10-CV-188848

Demurrer to the third amended cross-complaint (“TACC”) by cross-defendants Austiaj Limited Partnership, Austiaj Parineh, Hormoz Parineh, and Khashayar Parineh

Cross-complainant Guiv Parineh’s (“Cross-complainant”) request for judicial notice is GRANTED IN PART AND DENIED IN PART. The request is granted as to exhibits D and E. (See Evid. Code, § 452, subd. (d) [permitting judicial notice of court records].) The request is otherwise denied. (See Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [information subject to judicial notice must be relevant to the issue at hand].)

A. Second and Third Causes of Action

Cross-defendants’ demurrer to the second cause of action for fraud/deceit (Civil Code section 1710(3)) and the third cause of action for deceit/fraud (Civil Code sections 1710(2) and 1572(2)) on the ground of failure to state sufficient facts is OVERRULED. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact is an actionable fraud. (Civ. Code, § 1710(3).) Negligent misrepresentation is the “assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true.” (Civ. Code, § 1710(2).) Intent to deceive distinguishes fraud from actionable negligent misrepresentation. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith (1998) 68 Cal.App.4th 445, 482.)

In its February 11, 2014 Order, the Court (Hon. McKenney) ruled that these claims were deficient because Cross-complainant had not alleged a duty. (See Boschma v. Home Loan Ctr., Inc. (2011) 198 Cal.App.4th 230, 248 [one of the elements of a cause of action for fraud and deceit based on concealment is that “the defendant must have been under a duty to disclose the fact to the plaintiff”]; Eddy v. Sharp (1988) 199 Cal.App.3d 858, 864 [“responsibility for negligent misrepresentation rests upon the existence of a legal duty”].)

Cross-complainant has remedied the defect. With the second cause of action, Cross-complainant alleges that because Cross-defendants spoke, they were bound to state all facts and not to conceal facts within their knowledge. (TACC, ¶ 35; see McCue v. Bruce Enterprises, Inc. (1964) 228 Cal.App.2d 21, 27, citing Rogers v. Warren (1942) 20 Cal.2d 286, 289 [stating that even though someone may have no duty to speak upon a subject, if he does speaks, “the law imposes upon him the duty to make a complete disclosure”]; Zinn v. Ex-Cell-O Corp. (1957) 148 Cal.App.2d 56, 68 [“Mere nondisclosure of facts is ordinarily not enough to constitute fraud, but it may be actionable under certain circumstances. One situation is where the defendant, who has no duty to speak, nevertheless does so. In such a case he is bound to speak truthfully and to speak the whole truth.”].) As to the third cause of action, Cross-complainant incorporates by reference the duty detailed in paragraph 35, and alleges that Cross-defendants had a “duty to investigate the facts before making representations . . . .” (TACC, ¶¶ 43, 50.)

B. Tenth Cause of Action

Austiaj Limited Partnership’s (“ALP”) demurrer to the tenth cause of action for breach of contract on the ground of failure to state sufficient facts is OVERRULED. ALP contends that this claim fails because Cross-complainant did not attach the agreements at issue or “set out verbatim” the terms of the agreement. However, the other method of pleading a contract is according to its legal effect, by alleging the making, and then proceeding to allege the substance of its relevant terms. (See Constr. Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-99.) Cross-complainant alleges the substance of the oral contract’s relevant terms. The TACC provides that in March 2004, Cross-complainant was approached by his brother, on behalf of himself and ALP, to “put up” 50% of the purchase price on a piece of property, and then sell it and split the proceeds of the sale. (TACC, ¶¶ 85-86.)

ALP’s demurrer to the tenth cause of action for breach of contract on the ground of uncertainty is OVERRULED. In its previous order, the Court ruled that this claim was not uncertain. Repeat demurrers on grounds previously overruled simply are requests from a party for the trial court to reconsider an earlier order, and are not allowed unless they comply with Code of Civil Procedure sections 437c or 1008.