Case Number: VC064271 Hearing Date: February 17, 2015 Dept: SEC
MUNOZ ET AL. v. GEVORKIAN
CASE NO.: VC064271
HEARING: 02/17/15

#10
TENTATIVE ORDER

Plaintiffs YVETTE C. MUNOZ and ADELA PORTILLA’s demurrer is SUSTAINED WITH 20 DAYS LEAVE TO AMEND. C.C.P. § 430.10(e).

Plaintiffs YVETTE C. MUNOZ and ADELA PORTILLA assert several causes of action arising out of the written joint partnership or joint venture agreement with Levon Gevorkian dba The Car Warehouse. Pursuant to the agreement, MUNOZ was to provide funds in exchange for Levon Gevorkian’s service of locating and acquiring cars to resell at a profit, which was to be split between the parties. Although MUNOZ transferred the funds, MUNOZ alleges that Defendant LUCHI GEVORKIAN, aka Berta Balcazar, failed to perform under the agreement. MUNOZ thereafter assigned her interest to PORTILLA. Defendant demurs to the causes of action for breach of fiduciary duty (1st), conversion (2nd), common count (3rd), and fraud (4th).

Breach of Fiduciary Duty

In order to plead a cause of action for breach of fiduciary duty, plaintiff must make an adequate showing of each of the following elements: (1) the existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) resulting damages. City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 483. “A fiduciary or confidential relationship may arise whenever confidence is reposed by persons in the integrity and good faith of another,” such as a guardian/ward, trustee/beneficiary, principal/agent, or attorney/client. Id.; Persson v. Smart Inventions, Inc. (2005) 125 Cal.App.4th 1141, 1160.

Here, the agreement is signed only by Levon Gevorkian, husband of GEVORKIAN, on behalf of The Car Warehouse. Plaintiff has not alleged that an agreement exists whereby GEVORKIAN would be a fiduciary to MUNOZ or that GEVORKIAN was a part of the joint venture. Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 524 (stating that partners or joint venturers have a fiduciary duty towards each other regarding the affairs of the partnership or joint venture).

Furthermore, the Complaint alleges that GEVORKIAN was influential in “selling” this “Deal” and induced MUNOZ to become a partner. (Compl., p. 1.) However, there are no allegations that GEVORKIAN was a fiduciary of MUNOZ. The demurrer is sustained with leave to amend.

Conversion

The elements of a conversion claim are: (1) plaintiff’s ownership or right to possession of personal property; (2) defendant’s disposition of the property in a manner that is inconsistent with the plaintiff’s property rights; and (3) resulting damages. Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.

Plaintiffs allege MUNOZ owned the sums of money, MUNOZ wrongfully exerted control over the money and deprived MUNOZ for a significant period of time, and that MUNOZ was harmed. (Compl., Ex. B.) However, facts appearing in exhibits attached to the complaint will be accepted as true and, if contrary to the allegations in the pleading, will be given precedence. Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1627. Exhibit B shows that MUNOZ transferred $22,000 to M&M Traders and $7,000 to Car Warehouse. There is no indication that MUNOZ transferred any funds to GEVORKIAN or that GEVORKIAN exercised control over the funds.

In the opposition, Plaintiffs argue spousal liability and joint liability between GEVORKIAN and her husband, Levon Gevorkin, apply. However, this is not alleged in the Complaint and Plaintiffs provide no legal support for this argument. The demurrer is sustained with leave to amend.

Common Counts

A common count is not a specific cause of action, but rather a simplified form of pleading used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory. McBride v. Boughton (2004) 123 Cal.App.4th 379, 394. When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable. McBride, supra, at 394.

Plaintiffs allege that within the last four years, GEVORKIAN became indebted to Plaintiffs on an open book account for money due, for money had and received, and money lent by Plaintiffs to GEVORKIAN upon GEVORKIAN’s request. (Compl., p. 5.) As stated above, the first and second causes of action for breach of fiduciary duty and conversion are sustained. As the common count cause of action is also based on these causes of action, the demurrer is sustained with leave to amend.

Fraud

Plaintiffs have not alleged fraud with the requisite particularity. See Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 (“This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.”). Here, Plaintiffs allege that, on September 16, 2008, MUNOZ and Levon Gevorkian entered into an agreement, whereby GEVORKIAN was instrumental in selling the deal and induced MUNOZ to become a partner. (Compl., p. 1.) However, Plaintiffs fail to plead with particularity how, when, where, to whom, and by what means the representations were tendered. The demurrer is sustained with leave to amend.