Case Number: BC541599    Hearing Date: September 02, 2014    Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
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Hearing Date: Tuesday, September 2, 2014
Calendar No: 8
Case Name: DP Grand Camarillo Center LLC v. Raaz, Inc.
Case No.: BC541599
Motion: Motion to Strike
Moving Party: Defendant Manouchehr Zartoshti
Responding Party: Plaintiff DP Grand Camarillo Center LLC
Notice: OK

Tentative Ruling: Motion to strike is denied. Defendant Manouchehr Zartoshti to answer within 10 days.
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Background –
On 4/4/14, Plaintiff DP Grand Camarillo Center LLC filed this action against Defendants Raaz, Inc.; Manouchehr Zartoshti aka Manouchehr Zartoshty; Firouz Rahimi; and Bahram Zartoshti aka Bahram Zartoshty arising out of the alleged failure to pay rent for a commercial lease. On 5/22/14, in response but prior to the hearing on a demurrer filed by Manouchehr, Plaintiff filed a First Amended Complaint. Bahram and Firouz have filed answers, and default has been entered against Raaz.

Factual Allegations of the FAC –
On 9/12/11, Camarillo Plaza, LLC (“Plaza”) entered into a commercial lease agreement with Manouchehr and Firouz for a suite at property located at 1775 Daily Dr., Camarillo, CA 93010 (“Center”). ¶¶ 1, 15-16, Ex. 1. On 4/4/12, Plaza entered into a Fourth Amendment to Lease with Manouchehr, Firouz, and Bahram whereby Manouchehr’s rights and liabilities under the lease would transfer to Bahram. ¶ 21. On 4/23/12, Plaza entered into a Fifth Amendment to Lease with Firouz, Bahram, and Raaz whereby Raaz would be added as a lessee. ¶ 22. Raaz, Bahram, and Firouz have failed to pay rent and common area maintenance charges as of 4/1/13. ¶ 24. On 10/30/13, Plaintiff acquired the Center from Plaza through a grant deed and an assignment of leases. ¶ 25.

Plaintiff asserts causes of action for (1) breach of lease against Bahram, Firouz, and Raaz; (2) breach of guaranty agreement against Manouchehr and Firouz; and (3) declaratory relief against Manouchehr.

Motion to Strike –
As against Manouchehr, Plaintiff seeks to enforce a personal guaranty entered into by Manouchehr in connection with the lease (FAC ¶ 32, Ex. 1 Ex. E) and to resolve a dispute as to whether the Fourth Amendment relieved Manouchehr of liability under the guaranty (FAC ¶¶ 39-41). Manouchehr moves to strike the claims against him on the ground that they precluded by the Fourth Amendment.

1. Requests for Judicial Notice
In connection with the motion, Manouchehr requests judicial notice of a complaint filed by Plaza against Raaz, Bahram, and Firouz (Case No. 56-2013-00445181-CU-CO-VTA) and Manouchehr’s responses to Plaintiff’s requests for admissions pertaining to the Fourth Amendment. Plaintiff requests judicial notice of the corporate status of Raaz, the dismissal of Plaza’s action, and the grant deed transferring the Center to Plaintiff. Because there is no factual dispute concerning the existence of the Fourth Amendment (see Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 375), the RJNs are granted.

2. Novation
Manouchehr argues that the Fourth Amendment was a novation whereby Manouchehr was replaced by Bahram. The principles concerning novation have been described as follows.
A “novation is the substitution of a new obligation for an existing one.” One of the ways a novation may be consummated is “by the substitution of a new debtor in place of the old one, with intent to release the latter.” Novation must be pleaded either expressly or “by unequivocal implication,” and the burden of proof is “upon the party asserting its existence.” The “question whether a novation has taken place is always one of intention”, with the controlling factor being the intent of the obligee to effect a release of the original obligor on his obligation under the original agreement. While the evidence in support of a novation must be “clear and convincing”, the “whole question is one of fact and depends upon all the facts and circumstances of the particular case”, with the weight and sufficiency of the proof being matters for the determination of the trier of the facts under the general rules applicable to civil actions.
Alexander v. Angel (1951) 37 Cal.2d 856, 860-61 (citations omitted).

The Fourth Amendment transfers Manouchehr’s “rights and liabilities in connection with this lease” to Bahram. Manouchehr’s RJN Ex. A Ex. 5. However, the guaranty states that it “shall be enforceable despite any exculpation from liability granted to Tenant under the Lease, with the same force and effect as if no such exculpation from liability had been granted to Tenant.” FAC Ex. 1 Ex. E p. ii ¶ 3.

The parties dispute whether the Fourth Amendment was a novation of Manouchehr’s guaranty. However, Plaintiff correctly notes that [“[a] guaranty is a separate and independent obligation from that of the principal debt.” United Central Bank v. Superior Court (2009) 179 Cal.App.4th 212, 215. Manouchehr argues that the Fourth Amendment is not an “exculpation” and submits that Plaza did not seek to impose liability against him, which is evidence of the parties’ intent as to the Fourth Amendment. However, this improperly attempts to dispute the allegations and claims at the pleading stage. In light of the conflicting provisions in the Fourth Amendment and the guaranty, Manouchehr fails to establish at the pleading stage that the Fourth Amendment was a novation as related to the guaranty. The motion to strike is denied.