Shahram Moftakhar vs. Zahra Amiri-Moftakhar, Administrator of The Estate of Davoud Moftakhar

Demurrer to Amended Complaint

Cal. Super. - 4th Dist.September 6, 2016

OO © 1 O N Wn BA W O N No N o N o r o DN ro No N o No - p- - - p - p- f k p k p t p- o o J AN wn EE N wl N o ft oS \ O o o ~ AN wn ES N Ww No - oO SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations GOLNAZ YAZDCHI, Cal. Bar No. 279160 1901 Avenue of the Stars, Suite 1600 Los Angeles, California 90067-6055 Telephone: 310.228.3700 Facsimile: 310.228.3701 Email: gyazdchi@sheppardmullin.com Attorneys for ZAHRA AMIRI-MOFTAKHAR, Administrator of the Estate of David Moftakhar ELECTRONICALLY FILED Superior Court of California, County of Orange OT/05/201T at 06:22:00 PM Clerk of the Superior Court By Danielle Jurado, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE Shahram Moftakhar, Plaintiff. VS. Zahra Amiri-Moftakhar, as Administrator of the Estate of David Moftakhar, aka Davoud Moftakhar, Defendant. Case No. 30-2016-00873448 NOTICE OF DEMURRER AND DEMURRER OF ZAHRA AMIRI- MOFTAKHAR, AS ADMINISTRATOR OF THE ESTATE OF DAVID MOFTAKHAR, AKA DAVOUD MOFTAKHAR, TO SECOND AMENDED COMPLAINT FILED BY SHAHRAM MOFTAKHAR Dept: C 12 Judge: Hon. Nathan Scott Second Amended Complaint filed on May 30, 2017 Date: November 13, 2017 Time: 2:00 p.m. Dept: C12 SMRH:483353934.2 NOTICE OF DEMURRER AND DEMURRER OF ZAHRA AMIRI-MOFTAKHAR, ADMINISTRATOR OF THE ESTATE OF DAVID MOFAKHAR, TO SECOND AMENDED COMPLAINT FILED BY SHAHRAM MOFTAKHAR OO 00 NN O N wn BH W N N O N N N N N N N DN r e mt mm mm pe pe pe d pe d pe pe 00 ~ N A N Wn A W N = CC Oo 0 N N O Y N R E W N D d -- OO TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Defendant Zahra Amiri-Moftakhar, in her capacity as the Administrator of the Estate of David Moftakhar, aka Davoud Moftakhar (“Defendant”), will and does hereby demur to the Second Amended Complaint (“SAC”) filed by Shahram Moftakhar (“Plaintiff”), which is set to be heard on November 13, 2017 , at or around 2:00 p.m. , or as soon thereafter as the matter may be heard, in Department C 12 of the above referenced court located at 700 Civic Center Dr. West, Santa Ana, California, 92701, the Honorable Nathan Scott, Judge presiding. Pursuant to Code of Civ. Proc. § 430.10, Defendant demurs to the SAC, and each cause of action separately upon the following grounds: 1. The First Cause of Action for Breach of Contract does not state facts sufficient to constitute a cause of action for breach of contract, is time-barred under California Code of Civil Procedure section 366.2 and Plaintiff does not state sufficient facts to establish that the statute of limitations was excused by the doctrine of equitable estoppel, and is uncertain. Code Civ. Proc. § 430.10, subd. (e), (f); Code Civ. Proc. § 366.2. 2. The Second Cause of Action for Common Counts for Account Stated does not state facts sufficient to constitute a cause of action, is time-barred under California Code of Civil Procedure section 366.2 and Plaintiff does not state facts to establish that the statute of limitations was excused by the doctrine of equitable estoppel, and is uncertain. Code Civ. Proc. § 430.10, subd. (e), (f); Code Civ. Proc. § 366.2. 3. The Third Cause of Action for Common Counts for Money Paid Out, Laid Out, and Expended to or for Defendant at Defendant’s Sipeial Instance and Request does not state facts sufficient to constitute a cause of action, is time-barred under California Code of Civil Procedure section 366.2 and Plaintiff does not state facts to establish that the statute of limitations was excused by the doctrine of equitable estoppel, and is uncertain. Code Civ. Proc. § 430.10, subd. (e), (f); Code Civ. Proc. § 366.2. 111 fit 111 ale SMRH:483353934.2 NOTICE OF DEMURRER AND DEMURRER OF ZAHRA AMIRI-MOFTAKHAR, ADMINISTRATOR OF THE ESTATE OF DAVID MOFTAKHAR, TO SAC OO 0 0 3 O N Wn BH WwW N D = N O N N N N N N N N e m e t e m e t p e e k pe d e d fe 0 0 NN O N Un BRA W N OS VO N N N N E E W N = OO This Demurrer will be based upon this Notice of Demurrer, the Memorandum of Points and Authorities included herewith, the Request for Judicial Notice filed concurrently herewith, and all pleadings and records on file in the case as well as argument received at the time of hearing. Dated: July 5.2017 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By 0) GOLNAZ YAZDCHI Attorneys for Zahra Amiri-Moftakhar, Administrator of the Estate of David Moftakhar 5. SMRH:4833539342 NOTICE OF DEMURRER AND DEMURRER OF ZAHRA AMIRI-MOFTAKHAR, ADMINISTRATOR OF THE ESTATE OF DAVID MOFTAKHAR, TO SAC OO 00 39 O N nv BA W O N DN N N N N N N N N rm e m p m e d em t md pe t e d pe d et 0 NN O N Wn kA W N = DO WO 0 0 N D RAE W N = O DEMURRER TO SECOND AMENDED COMPLAINT Defendant, Zahra Amiri-Moftakhar, as Administrator of the Estate of David Moftakhar, aka Davoud Moftakhar, hereby demurs to the Second Amended Complaint (“SAC”), and each cause of action separately upon the following grounds DEMURRER TO FIRST CAUSE OF ACTION The First Cause of Action for Breach of Contract does not state facts sufficient to constitute a cause of action for breach of contract, is time-barred under California Code of Civil Procedure section 366.2 and Plaintiff does not state sufficient facts to establish that the statute of limitations was excused by the doctrine of equitable estoppel, and is uncertain. Code Civ. Proc. § 430.10, subd. (e), (f); Code Civ. Proc. § 366.2. DEMURRER TO SECOND CAUSE OF ACTION The Second Cause of Action for Common Counts for Account Stated does not state facts to constitute a cause of action, is time-barred under California Code of Civil Procedure section 366.2 and Plaintiff does not state facts to establish that the statute of limitations was excused by the doctrine of equitable estoppel, and is uncertain. Code Civ. Proc. § 430.10, subd. (e), (f); Code Civ. Proc. § 366.2. DEMURRER TO THIRD CAUSE OF ACTION The Third Cause of Action for Common Counts for Money Paid Out, Laid Out, and Expended to or for Defendant at Defendant’s Special Instance and Request does not state facts to constitute a cause of action, is time-barred under California Code of Civil Procedure section 366.2 and Plaintiff does not state facts to establish that the statute of limitations was excused by the doctrine of equitable estoppel, and is uncertain. Code Civ. Proc. § 430.10, subd. (e), (f); Code Civ. Proc. § 366.2. EH SMRH:483353934.2 NOTICE OF DEMURRER AND DEMURRER OF ZAHRA AMIRI-MOFTAKHAR, ADMINISTRATOR OF THE ESTATE OF DAVID MOFTAKHAR, TO SAC OO 00 NN O N Wn pA W N N O N N N N N N N N rm mt p d p d p d pe d e d pe d e d pe 00 NN O N Wn BA W N = O O vO N N N nn R W ND = O MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION On May 1, 2017, this Court sustained Administrator Zahra Amiri-Moftakhar’s (“Defendant”) Demurrer in its entirety to Plaintiff Shahram Moftakhar’s (“Plaintiff”) First Amended Complaint (“FAC”), finding that Plaintiff’s FAC failed to allege sufficient facts to state a cause of action for Breach of Contract or Common Counts, and that Plaintiff’s claims were time- barred on the face of the FAC and initial complaint. The Court also ruled that the “Plaintiff cannot blithely supplant his prior date-of-breach allegations with new, inconsistent allegations.” (Minute Order dated May 1, 2017). At Plaintiff's request, the Court allowed Plaintiff very limited leave to file an amended complaint to allege the grounds for equitable estoppel. Now, Plaintiff attempts to excuse his time-barred claims by alleging the doctrine of equitable estoppel in connection with his Breach of Contract cause of action. This is Plaintiff's third attempt to plead sufficient facts to constitute a cause of action. Notwithstanding his multiple opportunities to do so, Plaintiff’s Second Amended Judicial Council Form Complaint (“SAC”) fails because Plaintiff does not and simply cannot allege sufficient facts to support cause of action for Breach of Contract and Common Counts as a threshold matter, thus he cannot allege sufficient facts to establish that the Defendant should be estopped from pleading statute of limitations under the theory of equitable estoppel. Defendant therefore respectfully requests that the Court sustain this Demurrer without leave to amend. By way of background, on or about May 13, 2016, Plaintiff filed a creditor’s claim in the probate estate administration of decedent David Moftakhar (hereinafter the “Decedent”) currently pending under OCSC Case No. 30-2015-00766347-PR-PL-CJC in the amount of $37,596.90 for amounts due to him from an alleged $4,300 “personal loan” made by Plaintiff to Decedent (Plaintiff’s father) in August 1993, more than twenty-three years (23) ago today. Defendant filed and served a rejection of Plaintiff's creditor’s claim on June 13, 2016. On September 6, 2016, Plaintiff filed his initial Judicial Council Form Complaint alleging Breach of Contract based on an alleged oral agreement between Plaintiff and Decedent and Common Counts as an alternative way to seek the same recovery sought in the first cause of action 2, SMRH:483353934.2 NOTICE OF DEMURRER AND DEMURRER OF ZAHRA AMIRI-MOFTAKHAR, ADMINISTRATOR OF THE ESTATE OF DAVID MOFTAKHAR, TO SAC © 00 3 O O Wh HSH WwW N N - [ e T T S I 00 N N O N Wn A W N O Y N N N N R W N D --= Oo for breach of an alleged oral agreement. Defendant filed a Demurrer to Plaintiff’s initial complaint on November 7, 2016. Before the hearing on the Demurrer, on January 5, 2017, Plaintiff filed his FAC, attempting to yet again state causes of action against Defendant. Additionally, Plaintiff amended his First Cause of Action to change the date of the alleged breach from the date of the Decedent’s death (namely, May 18, 2011) to the date his creditor’s claim was denied by Defendant (namely, June 9, 2016), so as to attempt to revive his time-barred claim. Defendant demurred to Plaintiff’s FAC, and the Court sustained the Demurrer in its entirety with limited leave to amend. Under California law, any cause of action that survives death must be brought within one (1) year after the date of death. Code Civ. Proc. § 366.2. The statutory period prescribed in Code of Civil Procedure section 366.2 is an absolute bar, and only under very limited circumstances may an exception apply. In response to Defendant’s Demurrer to Plaintiff’s FAC, Plaintiff requested leave to amend to allege equitable estoppel as an excuse to his time-barred claims. This Court granted Plaintiff's request. Nevertheless, Plaintiff fails to allege sufficient facts to establish equitable estoppel. As a threshold matter, in order to allege equitable estoppel to a breach of contract claim, a party needs to first allege facts sufficient to demonstrate the existence of an enforceable agreement, and the breach of that agreement. However, Plaintiff has failed to do so. In other words, even if Plaintiff's claims were not time-barred (which they are) and Plaintiff could allege sufficient facts to establish estoppel (which he cannot), Plaintiff’s First Cause of Action for Breach of Contract still fails because Plaintiff does not sufficiently plead all of the elements that constitute the cause of action for Breach of Contract. Specifically, Plaintiff's SAC is devoid of facts to even establish the existence of an enforceable contract between the parties, and an alleged breach of that purported contract. He has not done so because he obviously cannot. Plaintiff's Second and Third Causes of Action for Common Counts also fail along with his Breach of Contract cause of action because they are based on the same flawed facts as his Breach of Contract cause of action, they are uncertain, and time-barred. Plaintiff’s SAC cannot be cured. Accordingly, Defendant’s Demurrer to the SAC, and each and every cause of action therein, should be sustained without leave to amend. A SMRH:483353934.2 NOTICE OF DEMURRER AND DEMURRER OF ZAHRA AMIRI-MOFTAKHAR, ADMINISTRATOR OF THE ESTATE OF DAVID MOFTAKHAR, TO SAC OO 00 NN OA Un BA W N = RN N N N N N N N N me h m em p m em e t pe d e d ee 0 N N nh BA W N Oo OO N N YY s w N y = O IL STATEMENT OF FACTS In his SAC, Plaintiff alleges that in August, 1993, he loaned his father, the Decedent, $4,300 in cash when the Decedent was “unemployed and going through a bankruptcy, and facing foreclosure on his residence” and paid for “various bills from [his] personal checking account through February 1994, totaling $5,209.79.” SAC, p. 3. Plaintiff further alleges that the agreement was oral, and the Decedent promised to pay Plaintiff back “when he was able and following [Plaintiff's] demand” with interest at the rate of 10%. Id. Plaintiff does not include any other terms of the alleged loan and the alleged breach. Indeed, the facts alleged in the SAC are identical to the FAC apart from Plaintiff’s inclusion of the following language: “when he was able and following my demand.” Although Decedent died on May 18, 2011, Plaintiff alleges in his SAC that the purported oral contract with his father was curiously breached on June 9, 2016-five years after the Decedent’s death-the date Defendant served Plaintiff with a rejection of his creditor’s claim. Plaintiff attempts to excuse the tardiness of his action, specifically with regard to his First Cause of Action for Breach of Contract, by alleging that the Defendant should be estopped from asserting the statute of limitations. Even assuming that Plaintiff’s allegations are true for purposes of Demurrer only, Plaintiffs allegations are mere speculation and legal conclusions, and fail to allege ultimate facts establishing the estoppel defense. Additionally, Plaintiff fails to allege any facts in support of estoppel in connection with his Second and Third Causes of Action for Common Counts. Plaintiff's defective pleading simply lacks facts to support his claim for equitable estoppel in support of his causes of action for Breach of Contract and for Common Counts. Petitioner’s latest amended pleading adds only rhetoric and conclusory statements in order to re-write the past and desperately attempt to revive his stale purported claims. III. LEGAL ARGUMENT A. Demurrers in General. A demurrer is a pleading used to test the legal sufficiency of other pleadings by raising issues of law, not fact, regarding the form or content of the opposing party’s pleading. Code Civ. Proc. §§ 422.10, 430.10, 589; see Donabedian v. Mercury Ins. Co (2004) 116 Cal.App.4th 968, en SMRI1:483353934 2 NOTICE OF DEMURRER AND DEMURRER OF ZAHRA AMIRI-MOFTAKHAR, ADMINISTRATOR OF THE ESTATE OF DAVID MOFTAKHAR, TO SAC OO 0 0 NN O N Wn Bs W N BN N N N N N N N O N mm o m e d p d p d p t mt p t p d p d 0 9 O N Wn B R A W N = O 0 N N N E W N = Oo 994. A demurrer is used to challenge defects that appear on the face of the pleading under attack. Id. Pursuant to Code of Civil Procedure section 430.10, subdivision (a), a party may object by demurrer on the grounds that the court has no jurisdiction of the subject of the cause of action alleged in the pleading, under subdivision (e) if the pleading does not state facts sufficient to constitute a cause of action, and under subdivision (f) if the pleading is uncertain. Code Civ. Proc. § 430.10; see Williams v. ILWU (1959) 172 Cal.App.2d 84, 87 (“...a demurrer which merely states that the cause of action set forth in the complaint is on its face barred by the statute of limitations is sufficient to raise that defense.”). When ruling on a demurrer, the court considers only well-pleaded facts and disregards conclusory statements of fact and law. Simonian v. Patterson (1994) 27 Cal.App.4th 773, 779 (““In examining the sufficiency of the complaint, ‘[w]e treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions 23 or conclusions of fact or law.’”). The plaintiff bears the burden of proof of showing that he can plead facts sufficient to state a cause of action. It is proper for the court to sustain a demurrer without leave to amend when the plaintiff cannot show that there is a “reasonable possibility that the defect can be cured by amendment.” Careau & Co. v. Sec. Pac. Bus. Credit, Inc. (1990) 222 Cal. App. 3d 1371, 1381. B. Plaintiff Does Not Plead Facts Sufficient to State a Cause of Action for Breach of Contract In order to state a cause of action for Breach of Contract, Plaintiff must plead facts establishing the following essential elements: (1) existence of a contract; (2) plaintiff's performance of its duties under the contract; (3) defendant’s breach; and (4) resulting damages to plaintiff. Jade Fashion & Co., Inc. v. Harkham Indus., Inc. (2014) 229 Cal.App.4th 635, 645. Plaintiff’s First Cause of Action fails because he has not pled facts sufficient to show (1) the existence of an enforceable contract because the alleged terms are not sufficiently definite; and (2) defendant’s alleged breach. Code Civ. Proc. § 430.10, subd. (e), (f). It is well-established under California law that “a contract will be enforced if it is sufficiently definite (and this is a question of law) for the court to ascertain the parties’ obligations and to determine whether those obligations have been performed or breached.” Bustamante v -4- SMRH:483353934.2 NOTICE OF DEMURRER AND DEMURRER OF ZAHRA AMIRI-MOFTAKHAR, ADMINISTRATOR OF THE ESTATE OF DAVID MOFTAKHAR, TO SAC OO 0 9 O N Wn pA W O N L S e e e e e e e e e e 0 3 O N wn BA W N = D O V N Y E W N -- ©o Intuit, Inc. (2006) 141 Cal.App.4th 199, 209 (citing Ersa Grae Corp. v. Fluor Corp. (1991) 1 Cal. App.4th 613, 623). ““To be enforceable, a promise must be definite enough that a court can determine the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages.’” Id. (citing Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770; see also Robinson & Wilson, Inc. v. Stone (1973) 35 Cal.App.3d 396, 407). “Where a contract is so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained, the contract is void and unenforceable.” Id. (citing Cal. Lettuce Growers v. Union Sugar Co. (1955) 45 Cal.2d 474, 481; see also Civ. Code, § 1598; Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 770). Moreover, “[t]he terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy. [citations omitted] But ‘[i]f ... a supposed ‘contract’ does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have been breached, there is no contract.”” Id. (citing Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811) (internal citations omitted). The terms of the alleged oral agreement between Plaintiff and the Decedent as stated in the SAC are far too uncertain for the court to determine the Decedent’s obligations thereunder, or a rational basis for the assessment of damages. Plaintiff simply alleges in his SAC that he loaned his father $4,300 in cash and paid for various of his bills through February, 1994, and that his father “promised to pay [him] back when he was able and following [his] demand at an interest rate of 10%.” SAC, p. 3 (emphasis added). Meaning, according to Plaintiff, the repayment obligation had two terms: (1) Decedent to be “able,” and (2) repayment was to occur “following [Plaintiff's] demand.” These “terms” are far too uncertain and ambiguous to establish an enforceable contract. For instance, what does it mean for Decedent to be “able”? And, what if the Decedent was never “able,” would the Decedent still have to repay the alleged loan? Accordingly, Plaintiff has failed to plead the existence of an enforceable contract. Moreover, Plaintiff also fails to state facts in support of the alleged breach. If, according to Plaintiff, the terms of the alleged contract required repayment by the Decedent when he was Sie SMRH:483353934.2 NOTICE OF DEMURRER AND DEMURRER OF ZAHRA AMIRI-MOFTAKHAR, ADMINISTRATOR OF THE ESTATE OF DAVID MOFTAKHAR, TO SAC © 0 9 AN nn B A W N = N O N N N N N N N N me o e m p t p t p t mt e d f d pe d pe 0 ~ N O N wn BA W N D = O O Vw 0 0 N N N n h l , W N = OO “able” and “following [Plaintiff's] demand,” Plaintiff fails to state when the purported contract was breached because he fails to allege that the Decedent was “able” to repay the alleged loan and that Plaintiff indeed demanded repayment from the Decedent. Accordingly, Plaintiff has failed to plead sufficient facts to state a cause of action for Breach of Contract. C. The First Cause of Action for Breach of Contract Fails Because It Is Time- Barred And Plaintiff Fails to Allege Sufficient Facts In Support of the Doctrine of Equitable Estoppel. 1. The First Cause of Action Is Barred by Statute of Limitations Pursuant to this Court’s prior Order dated May 1, 2017, Plaintiff’s First Cause of Action for Breach of Contract is barred by California Code of Civil Procedure section 366.2, which states that all actions that survive a decedent’s death, whether accrued or not, must be filed within one (1) year after the decedent’s death, no matter what the statute of limitations might have been while the decedent was alive. Code Civ. Proc. § 366.2; see also CCP § 339(1) (two year statute of limitations for an action upon an oral contract). 2, Plaintiff Fails to Sufficiently State Facts In Support of the Doctrine of Equitable Estoppel To allege equitable estoppel, the party asserting estoppel plead that “(1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had the right to believe that it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and, (4) he must rely upon the conduct to his injury.” Doheny Park Terrace Homeowners Ass'n, Inc. v. Truck Ins. Exch. (2005) 132 Cal.App.4th 1076, 1099; see Leasequip, Inc. v Dapeer (2002) 103 Cal.App.4th 394, 403. “The defendant’s statement or conduct must amount to a misrepresentation bearing on the necessity of bringing a timely suit; the defendant’s mere denial of legal liability does not set up an estoppel. [citation].” Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 384 (emphasis added). The elements of estoppel must be specifically pleaded “with sufficient accuracy to disclose the facts relied upon.” Sofranek v. Merced County (2007) 146 Cal. App.4th 1238, 1250 (quoting Chalmers 6- SMRI1:4833539342 NOTICE OF DEMURRER AND DEMURRER OF ZAHRA AMIRI-MOFTAKHAR, ADMINISTRATOR OF THE ESTATE OF DAVID MOFTAKHAR, TO SAC O O 00 3 O&O Wn HH WwW N D N N O N N N N N N O N O N me oe m e t p d p d p d p d p d e d pe 0 N N O N Wn B R A W N = O O 0 N N N n n B l W N = Oo v. County of Los Angeles (1985) 175 Cal.App.3d 461, 467. The burden to plead and prove estoppel rests on the plaintiff. Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 686-87. Moreover, “contentions, deductions or conclusions of fact or law” in a pleading are not admitted by a demurrer. Brown v. Professional Community Management, Inc. (2005) 127 Cal. App.4th 532, 537. In Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 385, subdivision homeowners sued the developer and other related entities for breach of implied warranty, strict liability, and negligence. The developer demurred based upon the 10-year statute of limitations to bring an action for latent defect, and the trial court sustained the demurrer without leave to amend. The Court of Appeal reversed, holding that estoppel was adequately pled. The California Supreme Court reversed the Court of Appeal, holding that the developers were not equitably estopped because the first amended complaint failed to set forth facts sufficient to support equitable estoppel: The complaint's sole allegation on this issue is “that at various times Defendants have attempted to make repairs ... or advised Plaintiffs that the defective windows were not defective and not to file a lawsuit,” but have not properly repaired the leaking windows and associated damage, and “are [therefore] estopped to assert that Plaintiffs have not commenced this action in a timely fashion.” This is insufficient. Contrary to the Court of Appeal's reasoning, the complaint is devoid of any indication that defendants’ conduct actually and reasonably induced plaintiffs to forbear suing within the 10-year period of section 337.15. There is no suggestion that the repair attempts alleged, if successful, would have obviated the need for suit. Moreover, for all that appears, the “various times” at which defendants’ alleged conduct occurred were times well before the statute of limitations ran out, or even, as the trial court suggested, after it had expired. And there is no claim that the inadequacy of these repairs, or the falsity of defendants' alleged “no defect” representations, remained hidden until after the limitations period had passed. FN 20. Hence, plaintiffs have pled no facts indicating that defendants’ conduct directly prevented them from filing their suit on time. Accordingly, the first amended complaint establishes no basis to estop defendants from asserting that plaintiffs’ causes of action are barred by the 10-year statute of limitations. Id. at 385. The Court in Lantzy also affirmed the trial court’s denial of leave to amend because “the particular history of this case persuades us there is no reasonable possibility plaintiffs can state credible facts to support an equitable estoppel.” Id. at 386. He SMRH:483353934.2 NOTICE OF DEMURRER AND DEMURRER OF ZAHRA AMIRI-MOFTAKHAR, ADMINISTRATOR OF THE ESTATE OF DAVID MOFTAKHAR, TO SAC OO 0 NN ON un BA W N ND N N N N N N N N e m t e d em t e m e d e d fe d pe d p e t pe d 0 J O N Wn BA W N N = OC V0 N N N RAE W O N D N - = OO Here, Plaintiff fails to state sufficient facts in support of his theory of estoppel because he fails to allege sufficient facts for his underlying claim for Breach of Contract. As a result, Plaintiff fails to allege sufficient facts as to the first element of estoppel, namely that Defendant knew the facts giving rise to the Breach of Contract claim since Plaintiff fails to allege those facts in the first instance. Moreover, with respect to Plaintiff's allegations regarding Defendant’s representations at his father’s 40" day memorial, Defendant was not the court-appointed Administrator of the Estate until December 31, 2015, when Letters of Administration were issued-four years after the Decedent died and the purported “acknowledgement.” Request for Judicial Notice (“RIN”), Request Nos. 1 (Order for Probate) and 2 (Letters of Administration). With regard to the second element of estoppel, Plaintiff does not allege specific, ultimate facts to demonstrate that the Defendant intended her conduct to be acted upon by Plaintiff, or that Defendant acted in a way such that Plaintiff would rely on her purported conduct in forbearing filing suit. Indeed, the only conduct Plaintiff alleges on Defendant’s part are conclusory statements that Defendant “acknowledged the decedent’s debt to [Plaintiff] and ensured [Plaintiff] that all the decedent’s debts would be paid back in full...” and that the Defendant “intentionally and deliberately led [Plaintiff] to believe that she would pay [Plaintiff] back in full and the estate would be settled in a fair and timely manner without the need to file in probate court.” (SAC, Attachment BC-2). The allegations contained in Plaintiff’s SAC are devoid of any specificity - the who, what, where, when, and how. Plaintiff fails to state specific facts as to the second element required to give rise to estoppel. Plaintiff fails to allege facts to constitute an exception to C.C.P. Section 366.2 under the theory of equitable estoppel, primarily because he fails to state sufficient facts for the underlying cause of action for Breach of Contract. For this reason, the Demurrer should be sustained without leave to amend. D. Plaintiff’s Second And Third Causes of Action for Common Counts Fall With His Breach of Contract Causes of Action And Because They Are Uncertain. “It is the established law of California that, if plaintiff is not entitled to recover under one count in a complaint wherein all the facts upon which his demand is based are specifically -8- SMRH:483353934.2 NOTICE OF DEMURRER AND DEMURRER OF ZAHRA AMIRI-MOFTAKHAR, ADMINISTRATOR OF THE ESTATE OF DAVID MOFTAKHAR, TO SAC OO 00 NN O N nn B A W n o [3 ] No nN No NN No N o No pt - pi t - - ft pk - pt p- o o ~ ] AN wn de Ww r o - & \ O o o ~ AN w n + w o ro - oO pleaded, it is proper to sustain a demurrer to a common count set forth in the complaint, the recovery under which is obviously based on the set of facts specifically pleaded in the other count.” Hays v. Temple (1937) 23 Cal.App.2d 690, 695; See also Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 601. Moreover, pursuant to Code of Civil Procedure section 430.10, subdivision (f), a party may object by demur if the pleading is uncertain. Here, Plaintiff’s causes of action for Common Counts in his Second and Third Causes of Action rest upon the same alleged facts as his Breach of Contract claim, and Plaintiff fails to allege any specific, additional facts in support of his Second and Third Causes of Action. Accordingly, Plaintiff’s causes of action for Common Counts fail with his Breach of Contract cause of action, and fail because they are uncertain. E. This Demurrer Should be Sustained Without Leave to Amend. Sustaining a demurrer without leave to amend is not an abuse of discretion when it appears from the face of the complaint that under the applicable substantive law, there is no reasonable possibility that the defect can be cured by way of an amended pleading. Vater v. County of Glenn (1958) 49 Cal.2d, 815, 821; Hoffman w. Smithwoods RV Park (2009) 179 Cal.App.4th 390, 408. Where, as here, a party has made numerous unsuccessful attempts to state alleged causes of action, the court may sustain a demurrer without leave to amend where the absence of facts demonstrates an inability to cure the defects in the pleading. See Loeffler v. Wright (1910) 13 Cal.App.224, 232; Banerian v. O'Malley (1974) 42 Cal. App.3d 604, 616. Plaintiff has made three attempts to state viable claims against Defendant Administrator (the original complaint, the FAC, and this instant SAC) but has been unable to state a single cause of action for which relief might be granted. The Court should not grant Plaintiff the opportunity to present yet another fatally defective pleading (for the fourth time, effectively). To do so would be an enormous waste of judicial resources. The Demurrer should be granted without leave to amend. IV. CONCLUSION Based on the foregoing, Plaintiff should not be given another chance to consume valuable judicial resources with another fatally defective and time-barred pleading. The Demurrer should be sustained without leave to amend. 9. SMRH:483353934 2 NOTICE OF DEMURRER AND DEMURRER OF ZAHRA AMIRI-MOFTAKHAR, ADMINISTRATOR OF THE ESTATE OF DAVID MOFTAKHAR, TO SAC © 06 0 NN OO Wn HH W w ND o- - N O N N N N N RN N N m e e e ee e m e t e d pe d pe 0 NN O N Un A W N = O VO N N N B R E W ND = O Dated: July 5, 2017 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By - © GOLNAZ YAZDCHI Attorneys for Zahra Amiri-Moftakhar, Administrator of the Estate of David Moftakhar -10- SMRH:483353934.2 NOTICE OF DEMURRER AND DEMURRER OF ZAHRA AMIRI-MOFTAKHAR, ADMINISTRATOR OF THE ESTATE OF DAVID MOFTAKHAR, TO SAC