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Danyal Roodbari, Esq. SBN: 302760

Law Office of Danyal Roodbari
5411 Long Beach Blvd.
Long Beach, CA 90805
562-428-0550

Reservation ID No. 160805148953

Attorneys for Defendant and Cross-Complainant

Kevin Moda

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

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MAHVASH MAZGANI, individually,

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Case No.: BC607465

Plaintiffs,

Dept. 48

vs.

Hon. Elizabeth Allen White, Judge Presiding

HOUMAN MOGHADDAM a/k/a KEVIN

MODA, an individual, and DOES 1-100
inclusive,

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NOTICE OF DEMURRER AND

DEMURRER TO THE FIRST
AMENDED COMPLAINT OF
MAHVASH MAZGANI,
INDIVIDUALLY AND AS A TRUSTEE
OF THE MAHVASH MAZGANI
FAMILY TRUST (CCP 430.41
DECLARATION ATTACHED);
MEMORANDUM OF POINTS AND
AUTHORITIES; EXHIBIT

Defendants.

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Time: 8:30 a.m.

Date: August 30, 2016
Place: 111 North Hill Street, Los
Angeles, CA 90012- Dept. 48

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KEVIN MODA,

Complaint Filed: January 19, 2016

Trial Date: None set

Cross-Complainant,
vs.
MAHVASH MAZGANI, an individual;
MAHVASH MAZGANI, as Trustee of the
Mahvash Mazgani Family Trust; NAZANIN
MAZGANI, an individual; NEYAZ
MAZGANI, an individual; and ROES 1-10
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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

inclusive,

Cross-Defendants.

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Please take Notice on August 30, 2016, at 8:30 AM in Department 48 of the aboveentitled court, defendant/cross-complainant, Kevin Moda hereby does move the Court for an
Order sustaining his Demurrer to each and every cause of as none of the causes of Action state
facts sufficient to constitute a cause of action.

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Is specifically, this demurrer is based on the grounds that plaintiff has failed to state facts
sufficient to constitute a cause of action for (1) Quiet Title; (2) Declaratory Relief; (3) Slander of
Title; (4) Cancellation of Written Instruments); (5) Intentional Infliction of Emotional Distress.

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As to Mahvash Mazgani in her individual capacity: she lacks the capacity to sue as
Exhibit B, to the FAC reveals that the Property that is the subject of this Action was not in her
name and had been specifically deeded to Mahvash Mazgani as Trustee of the Mahvash
Mazgani Family Trust. Code of Civil Procedure (CCP) 430.10(b), (e).

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The term Plaintiff is described at times to be Mahvash Mazgani, at others Mahvash

Mazgani Individually, and yet others as Mahvash Mazgani as Trustee of the Mazgani Family
Trust, and others as Mahvash Mazgani Family Trust, and others as Mazgani Family Trust,
and yet at others as Mahvash Mazgani Individually and as Trustee of the Mahvash Mazgani
Family Trust and finally at others as Mahvash Mazgani Individually and as Trustee of the
Mazgani Family Trust. The FAC is uncertain as to the capacity of the person / entity suing and
is, therefore, vulnerable to a demurrer based on uncertainty. Code of Civ Pro 430.10(f).

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Additionally, the Complaint is on behalf of the Mahvash Mazgani Family Trust,

however, the FAC pleads that the Plaintiff is the Mazgani Family Trust (FAC 21) and seeks to
have the Property quiet titled to the Mazgani Family Trust. CCP 430.10(f).
///
///
///
This Demurrer will be based on Plaintiffs First Amended Complaint, This Notice of

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II
NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

Demurrer and Demurrer, the Memorandum of Points and Authorities and any other materials on

file herein, as the Court may consider, at the time of the hearing on this matter.

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Respectfully submitted,

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Dated: August 6, 2016

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By______________________________
Danyal Roodbari, Esq
Attorneys for Defendant and CrossComplainant Kevin Moda

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III
NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

DEMURRER
Defendant, Kevin Moda, generally and specifically demurs to Plaintiff Mahvash Mazgani

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(individually and as the Trustee of the Mahvash Mazgani Family Trust) (Plaintiff), First

Amended Verified Complaint (FAC) on the following grounds:

ENTIRE COMPLAINT AS TO MAHVASH MAZGANI INDIVIDUALLY

There is not a singular allegation that would support any cause of action on behalf of

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Mahvash Mazgani in her personal capacity. It is hornbook law that exhibits attached to the
complaint are given precedence over inconsistent allegations in the complaint. Holland v. Morse
Diesel Intl, Inc. (2001) 86 Cal.App.4th 1443, 1447, 104 Cal.Rptr.2d 239, 242. Exhibit B, to
the FAC, reveals that the Property was transferred by way of a Grant Deed from Mahvash
Mazgani, a Widow in 2010 to Mahvash Mazgani as a Trustee of the Mahvash Mazgani Family
Trust.
As to Mahvash Mazgani in her individual capacity: she lacks both standing and capacity
to sue as Exhibit B, to the FAC reveals that the Property that is subject of this Action was not
in her name and had been specifically deeded to Mahvash Mazgani as Trustee of the Mahvash
Mazgani Family Trust (MMFT). Code of Civil Procedure 430.10(b).
The objection that the Mahvash Mazgani in her personal capacity (MMPC) lacks standing

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to sue is raised by the filing of a general demurrer to the complaint alleging that the complaint

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fails to state facts sufficient to constitute a cause of action. Code Civ Proc. 430.10(e). The

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FAC shows on its face that Mahvash Mazgani in her personal capacity lacks standing to sue as

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Ex. B, of the FAC, reveals that the property was transferred out of her name as an individual by

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herself. Friendly Village Community Assn., Inc. v. Silva & Hill Constr. Co. (1973) 31 Cal. App.

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3d 220, 224, 107 Cal. Rptr. 123; see also Sacramento County Fire Protection Dist. v. Sacramento

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County Assessment Appeals Bd. (1999) 75 Cal. App. 4th 327, 331, 89 Cal. Rptr. 2d 215 (standing

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to sue goes to the existence of a cause of action; demurrer can be used to challenge standing).

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Therefore, in addition to all the grounds on which the Demurrer to the MMFT is based,
the Demurer to MMPC must be sustained without leave to amend as MMPC can never cure the
defects complained about re standing and capacity.

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IV
NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

THE ENTIRE FIRST AMENDED COMPLAINT IS FATALLY UNCERTAIN

The entire FAC is also uncertain as 1, 3 of the FAC pleads that Mahvash Mazgani

Family Trust (Plaintiff) and does not reference Mahvash Mazgani in her individual or her

capacity as a Trustee anywhere. A trust cannot be sued or sue. Galdjie v. Darwish (2003) 113

Cal.App.4th 1331, 1344, 7 Cal.Rptr.3d 178, 188. Code of Civ Proc 430.10(f).

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2 of the FAC simply pleads that Mahvash Mazgani is a competent adult. There is no
indication of her capacity in the action, whether as an individual or as a trustee. The lack of
capacity designation along with the fact that after that in the FAC, the Trust allegations are
disbanded altogether and instead the FAC is worded as if Mahvash Mazgani is the Plaintiff.
FAC 18, 19, 39, 40. CCP 430.10(f).
The FAC is rendered fatally uncertain when references to the Mahvash Mazgani
Family Trust are eradicated in preference for the Mazgani Family Trust. FAC 21-22 The
Mazgani Family Trust moniker is the artifice of fraud with which the Mazgani Family
(Mahvash, Nazanin, and Neyaz) stole from Cross-Complainant Moda. The Trust does not exist,
and the omission of the Mahvash Mazgani Family Trust from the FAC and its replacement

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by the Mazgani Family Trust is not a slovenly practice that one can overlook but rather

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intentional continuous fraudulent conduct, now being practiced on the Court.

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ENTIRE COMPLAINT AS TO MAHVASH MAZGANI AS TRUSTEE OF THE

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MAHVASH MAZGANI FAMILY TRUST

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Plaintiffs entire complaint and each and every cause of action contained therein fails to

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state any cause of action against Defendant because Plaintiff has not alleged facts sufficient to

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constitute any cause of action against Defendant pursuant to Code of Civil Procedure 430.10 (e).

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Defendant generally demurs to the FAC and each and every cause of action contained therein,

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pursuant to Code of Civil Procedure section 430.10 (e) on the basis that Plaintiffs contentions

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regarding (1) Quiet Title; (2) Declaratory Relief; (3) Slander of Title; (4) Cancellation of Written

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Instruments); (5) Intentional Infliction of Emotional Distress must fail.

FIRST CAUSE OF ACTION
Plaintiffs First Cause of Action for Quiet Title fails to state facts sufficient to constitute a
cause of action against Defendant.
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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

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SECOND CAUSE OF ACTION

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Plaintiffs Second Cause of Action for Declaratory Relief fails to state facts sufficient to
constitute a cause of action against Defendant
THIRD CAUSE OF ACTION

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Plaintiffs Third Cause of Action for Slander of Title fails to state facts sufficient to
constitute a cause of action against Defendant.
FOURTH CAUSE OF ACTION

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Plaintiffs Fourth Cause of Action for Cancellation of Written Instruments fails to state
facts sufficient to constitute a cause of action against Defendant.
FIFTH CAUSE OF ACTION
Plaintiffs Fifth Cause of Action for Intentional Infliction of Emotional Distress fails to
state facts sufficient to constitute a cause of action against Defendant.

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Respectfully Submitted,

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Dated: August 5, 2016

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By______________________________
Danyal Roodbari, Esq
Attorneys for Defendant and CrossComplainant Kevin Moda

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VI
NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

MEMORANDUM OF POINTS AND AUTHORITIES

STATEMENT OF FACTS

People shouldnt judge a book by its cover, and this lawsuit is no exception. Though it is

filed by the aunt of the Defendant Moda claiming a dishonest attempt by nephew / Moda to steal

something that is not his, the facts are quite different. This is a case where the nephew /

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Defendant Moda entrusted his aunt with a substantial amount of monies for safe keeping. Monies
well in excess of the worth of the real property that is the subject of this Action and in fact the
real property that is the subject of this action was not only paid for entirely by Moda, but it was
also he who found the property, negotiated its purchase and funded the purchase. He had thought
that he had left it in the care of his Trustee / Aunt, and it was only discovered that that is not the
case.
The Cross-Complainant represented by Morgan Lewis & Bockius in a separate action is
prosecuting his Aunt and two Cousins for the Breach of Fiduciary Duties and Fraud that they
practiced on him. In this case, he is simply pursuing his former Lawyer/Cousin Nazanin
Mazgani, Esq. for breach of her duty as his counsel and his other Cousin and Aunt for complicity
in the aforesaid breach of duty and also for slander per se.
The background of the facts is needed as in this case, more than others as what is at the

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core of this suit is not who has official title to the property, but rather whose money was used to

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purchase the property, i.e. how title was acquired; a bland statement that party has a fee simple

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title will not do under the paradigm of facts of this case and the case law does not permit a bland

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pleading in this case. The fraud of the Mazgani Family continues in this Court when in the FAC

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they plead at times that the Property belongs to the Mahvash Mazgani Family Trust and at

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others that it belongs to the Mazgani Family Trust (FAC 22-23) and then incorporate that

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reference into the entirety of the FAC. No such trust as the Mazgani Family Trust exists and the

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name was an artifice / tool of fraud used by the Mazgani Family to defraud Mr. Moda.

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This case and the affirmative defense to the core of this case turns on fraud accusations
against the Plaintiff by the Defendant and by the Plaintiff against the Defendant, and therefore a
heightened pleading requirement is needed and simply said, the First Amended Complaint here
does not suffice.
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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

In this case, both as an element of the Cause of Action for Quiet Title and also as an

Affirmative Defense to the Cause of Action the parties must each plead with specificity how they

acquired title and then prove that fact. To demand any less specificity on a fraud based complaint

would be an affront to the honest pleading that fraud based complaints need to be based on.

This case, like Butler v. LeBouef, 248 Cal. App. 4th 198, 203 Cal. Rptr. 3d 572, 575

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(2016), is a case where the Trustee Mazgani pandered her obligation as a fiduciary in the name of
greed.
ARGUMENT

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THE STANDARD APPLIED TO RULING ON A DEMURRER

The standard applied to this special demurrer based on uncertainty as applicable here is
that a demurrer for uncertainty will be sustained for misidentification or lack of identification of
parties and their claims in an intelligible manner. Williams v. Beechnut Nutrition Corp. (1986)
185 Cal.App.3d 135, 139, 229 Cal.Rptr. 605, 607, fn. 2. CCP 430.10(f).
The standards applied to a general demurrer (CCP 430.10(e)) are as follows: material
facts alleged in the complaint are treated as true for the purposes of ruling on a demurrer. Also

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taken as true are facts that may be implied or inferred from those expressly alleged. However,

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contentions, deductions or conclusions of fact or law alleged in the complaint are not considered

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in judging its sufficiency. Stated differently, the Plaintiff cannot simply plead that she is the

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owner of the property but must allege facts that if believed would show how the Plaintiff is

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the owner.

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Stating one is an owner rather than how the person is the owner is a conclusion of law

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which is not admitted by a general demurrer and must be ignored in ruling on the sufficiency of

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the complaint to state a cause of action. Beresford Neighborhood Assn. v. City of San Mateo

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(1989) 207 Cal. App. 3d 1180, 1190, 255 Cal. Rptr. 434). In order to be sufficient, a complaint

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must contain a statement of facts which, without the aid of other conjectured facts not stated,

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shows a complete cause of action. Garcia v. Superior Court (1990) 50 Cal. 3d 728, 737, 268 Cal.
Rptr. 779, 789 P.2d 960).
This case turns on whether Defendant practiced fraud on the Plaintiff or vice versa.
Therefore, the Verified FAC must be tested against the specificity required of a fraud case
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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

rather than a bland breach of contract case, and every element of the causes of action must be

alleged in full, factually and specifically. The policy of liberal construction of pleading should not

be invoked to sustain any of the causes of action found to be lacking in any material respect.

Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1332, 231 Cal.Rptr.

355, 358.
MMPC LACKS CAPACITY TO SUE

As to Mahvash Mazgani in her individual capacity: she lacks both standing and capacity

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to sue as Exhibit B, to the FAC reveals that the Property that is subject of this Action was not
in her name and had been specifically deeded to Mahvash Mazgani as Trustee of the Mahvash
Mazgani Family Trust (MMFT). Code of Civil Procedure 430.10(b).
Ms. Mazgani has no capacity to sue for her benefit in this Action. Ca Civ Pro 369(a);
OFlaherty v. Belgum (2004) 115 Cal.App.4th 1044, 1062.

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The Court must sustain the Demurrer to all claims by Ms. Mazgani without leave to
amend.

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MMPC LACKS STANDING TO SUE

The objection that the Mahvash Mazgani in her personal capacity (MMPC) lacks standing

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to sue is raised by the filing of a general demurrer to the complaint alleging that the complaint

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fails to state facts sufficient to constitute a cause of action. Code Civ Proc. 430.10(e).

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The FAC shows on its face that Mahvash Mazgani in her personal capacity lacks standing

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to sue as Ex. B, of the FAC, reveals that the property was transferred out of her name as an

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individual by herself. Friendly Village Community Assn., Inc. v. Silva & Hill Constr. Co. (1973)

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31 Cal. App. 3d 220, 224, 107 Cal. Rptr. 123; see also Sacramento County Fire Protection Dist.

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v. Sacramento County Assessment Appeals Bd. (1999) 75 Cal. App. 4th 327, 331, 89 Cal. Rptr. 2d

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215 (standing to sue goes to the existence of a cause of action; demurrer can be used to challenge

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standing).

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Therefore, in addition to all the grounds on which the Demurrer to the MMFT is based,
the Demurer to MMPC must be sustained without leave to amend as MMPC can never cure the
defects complained about re standing and capacity.

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3
NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

THE ENTIRE FIRST AMENDED COMPLAINT IS FATALLY UNCERTAIN

The entire FAC is also uncertain as 1, 3 of the FAC pleads that Mahvash Mazgani

Family Trust (Plaintiff) and does not reference Mahvash Mazgani in her individual or her

capacity as a Trustee anywhere. A trust cannot be sued or sue. Galdjie v. Darwish (2003) 113

Cal.App.4th 1331, 1344, 7 Cal.Rptr.3d 178, 188. Code of Civ Proc 430.10(f).

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2 of the FAC simply pleads that Mahvash Mazgani is a competent adult. There is no
indication of her capacity in the action, whether as an individual or as a trustee. The lack of
capacity designation along with the fact that after that in the FAC, the Trust allegations are
disbanded altogether and instead the FAC is worded as if Mahvash Mazgani is the Plaintiff.
FAC 18, 19, 39, 40. CCP 430.10(f).
The FAC is rendered fatally uncertain when references to the Mahvash Mazgani
Family Trust are eradicated in preference for the Mazgani Family Trust. FAC 21-22 The
Mazgani Family Trust moniker is the artifice of fraud with which the Mazgani Family
(Mahvash, Nazanin, and Neyaz) stole from Cross-Complainant Moda. The Trust does not exist,
and the omission of the Mahvash Mazgani Family Trust from the FAC and its replacement

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by the Mazgani Family Trust is not a slovenly practice that one can overlook but rather

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intentional continuous fraudulent conduct, now being practiced on the Court. The entire FAC is

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rendered vulnerable to the defect when the allegations of the Quiet Title Cause of Action are

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incorporated to all other proceeding causes of action as well.

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Further, the ever-changing use of the name of the trusts is rampant and disturbing acts of a

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continued course of fraudulent conduct. See FAC 32 (Mahvash Mazgani Family Trust being

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alleged as the owner of the Property) versus 37 (Mazgani Family Trust being the alleged owner

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of the Property) A demurrer for uncertainty will be sustained for misidentification or lack of

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identification of parties and their claims in an intelligible manner, as is the case here. Williams v.

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Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, 229 Cal.Rptr. 605, 607, fn. 2. CCP

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430.10(f).

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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

PLAINTIFFS FIRST CAUSE OF ACTION FOR QUIET TITLE FAILS TO STATE

FACTS UPON WHICH RELIEF MAY BE GRANTED

18 of the FAC alleges that: Plaintiff reposed trust and integrity in Defendant, Kevin

Moda, by virtue of familial relationships with Plaintiff Mahvash Mazgani by entrusting him with

confidential information which he used in cooperation with defendant Hoffman La Brea LLC to

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defraud Plaintiff out of her Property.

Nowhere in the FAC is it alleged what information 18 is refereeing to, much less how
that information was used as an artifice of fraud and therefore does not meet the threshold
pleading requirement that the code requires. CCP 430.10(e).
The well-established rule is that fraud actions are subject to a stricter pleading standard.
Fairness requires that allegations of fraud be pleaded with particularity so that the court can
weed out nonmeritorious actions before the defendant is required to answer. This is said to be the
last remaining habitat of common law pleading standards. Committee on Childrens Television,
Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216, 197 Cal.Rptr. 783, 795; even in quite title
actions, the requirement of the need to plead fraud with specificity is commonplace. Glaski v.

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Bank of America, N.A. (2013) 218 Cal.App.4th 1079, 1090, 160 Cal.Rptr.3d 449, 458--elements of

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fraud may not be pleaded in a general or conclusory fashion.

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Further, even in a normal setting in a quiet title action, the plaintiff must allege how its

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title has been perfected. CAL. CIV. PROC. CODE 761.020(b); Pacific States Sav. & Loan Co. v.

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Warden, 18 Cal. 2d 757, 759, 117 P.2d 877 (1941). The complaint must also state the plaintiffs

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title as well as the basis of the title; i.e. if the title to the property was acquired by way of

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purchase of the property and in this case, what is relevant to the inquiry is with whose money.

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CAL. CIV. PROC. CODE 761.020(b); Twain Harte Homeowners Assn v. Patterson, 193 Cal.

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App. 3d 184, 188, 239 Cal. Rptr. 316, 318 (1987) (plaintiff must allege a bona fide interest in the

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property).

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In light of the dynamics of this particular case, it will be particularly hard to plead a bona
fide interest in the property and have that allegation be deemed an honest pleading. Further, as
the FAC is based on fraud, the Plaintiff must specifically allege the nature of Defendants claim,

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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

and it is further necessary to allege the invalidity of Defendants claim. Warren v. Atchison,

Topeka & Santa Fe Railway Co., 19 Cal. App. 3d 24, 32-33, 96 Cal. Rptr. 317, 322-23 (1971).

The complaint is near nowhere in the vicinity of a pleading that would support the

requirement that fraud be pleaded with specificity. The requirement of the need for specificity is

ever more important in a case that involved real property disputes (need for verified pleading)

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borne out of fraudulent conduct (need for exact specificity). The rule that must be adhered to was
set by the California Supreme Court and has been in place for well over a century. Vassault v.
Austin, 32 Cal. 597, 606 (1867)(the model set out by the Supreme Court is as follows: Therefore
he set forth and alleged in his complaint in equity his title and the means by which Austin, the
husband, became divested of it, and how the plaintiff became invested with it. Ibid).
The Court must sustain the Demurrer to the First Cause of Action. CCP 430.10(e).
PLAINTIFFS SECOND CAUSE OF ACTION FOR DECLARATORY RELIEF FAILS

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TO STATE FACTS UPON WHICH RELIEF MAY BE GRANTED

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The FAC pleads at 27 that: an actual controversy has arisen and now exists between
Plaintiff and that said defendants, and each of them, as to their respective rights, duties, and
interest regarding the Subject Property. The facts pled are insufficient and conclusory.

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The mere allegation that an actual controversy exists between the parties is a bare

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conclusion and insufficient to state a cause of action for declaratory relief under Code of Civil

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Procedure Section 1060. CCP 430.10(e). Alturas v. Gloster (1940) 16 Cal. 2d 46, 48, 104 P.2d

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810.

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The Defendants are left clueless as to how to answer the Verified FAC when the identities

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of the Plaintiff is not even made known and when as here the FAC pleads that the Property

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belongs to the Mazgani Family Trust and at others that it belongs to the Mahvash Mazgani

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Family Trust. FAC 13 versus 21-22.

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In similar vein, the task of the Court to enter a valid judgment based on the inconsistent
allegations of the FAC is made impossible by the duplicitous pleading. For the court to exercise
its discretion to declare the rights and duties of the parties, the controversy involved must be
justiciable; that is, it must be a controversy which admits of specific and conclusive relief by

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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

judgment within the field of judicial determination. Selby Realty Co. v. San Buenaventura (1973)

10 Cal. 3d 110, 117, 109 Cal. Rptr. 799, 514 P.2d 111.

Code of Civil Procedure Section 1060 authorizes declaratory relief only in cases of actual

controversy relating to the legal rights and duties of the respective parties. Hence, to state a cause

of action for declaratory relief under Code of Civil Procedure Section 1060, the complaint must

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allege facts from which the court may determine that an actual controversy relating to the legal
rights and duties of the respective parties exists. Alturas v. Gloster (1940) 16 Cal. 2d 46, 48, 104
P.2d 810.
A complaint for declaratory relief that fails to properly and comprehensibly allege the
existence of an actual justiciable controversy between properly identified parties fails to state
facts sufficient to constitute a cause of action. Wilson v. Transit Auth. (1962) 199 Cal. App. 2d
716, 722724, 19 Cal. Rptr. 59.
The Court must sustain the Demurrer to the Declaratory Relief Cause of Action.
PLAINTIFFS THIRD CAUSE OF ACTION FOR SLANDER OF TITLE FAILS TO
STATE FACTS UPON WHICH RELIEF MAY BE GRANTED

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The quintessential element of a slander of title cause of action is plaintiffs title. Truck

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Ins. Exch. v. Bennett, 53 Cal. App. 4th 75, 84, 61 Cal. Rptr. 2d 497, 503 (1997). In the FAC, the

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plaintiff has a tendency to morph from one paragraph to another and be Mahvash Mazgani,

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Mahvash Mazgani individually and as a Trustee of the Mahvash Mazgani Family Trust,

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Mahvash Mazgani Family Trust and yet at others be Mazgani Family Trust. The FAC not

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alleging proper ownership of the property renders the complaint vulnerable to a general demurrer.

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CCP 430.10(e).

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Further, it is the duty of the plaintiff

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The thrust of the tort of disparagement or slander of title is protection from injury to the

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saleability of property. Howard v. Schaniel (1980) 113 Cal. App. 3d 256, 264 What makes
conduct actionable is not whether a defendant succeeds in casting a legal cloud on plaintiffs title,
but whether the defendant could reasonably foresee that the false publication might determine the
conduct of a third person buyer or lessee. Ibid.; Wilton v. Mountain Wood Homeowners Assn.
(1993) 18 Cal. App. 4th 565, 568. Truck Ins. Exch. v. Bennett, 53 Cal. App. 4th 75, 84, 61 Cal.
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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

Rptr. 2d 497, 503 (1997). Therefore, a plaintiff must plead and later prove that the conduct of the

defendant had the ultimate effect of causing harm to the plaintiff by way of making the title

unsaleable.

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The cause of action further for the failure to plead facts that would undermine privilege as
a defense. The burden of proof of that lack of privilege is upon the plaintiff[.] Gudger v.
Manton, 21 Cal. 2d 537, 543, 134 P.2d 217, 221 (1943). The pleading requirement is essential
for the reason that: A rival claimant of the property is conditionally privileged to disparage or
justified in disparaging anothers property in land by an honest and good faith assertion of an
inconsistent legally protected interest in himself. (See Thompson v. White, 70 Cal. 135 [11 P.
564]; Rest. Torts, 647.) (Gudger v. Manton (1943) 21 Cal.2d 537, 545 [134 P.2d 217]; see Civ.
Code, 47 [privileged publications]; see also Civ. Code, 48 [In the case provided for in
subdivision of Section 47, malice is not inferred from the communication.].) M.F. Farming
Co. v. Couch Distrib. Co., Inc., 207 Cal. App. 4th 180, 198, 143 Cal. Rptr. 3d 160, 174 (2012).
The need for specificity in this cause of action dovetails the need for the correct plaintiff
(whoever the complainant ultimately decides is the properly named party) to plead how it

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acquired title, including the need to plead fact like: The Mahvash Mazgani Family Trust obtained

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a Fee Simple title to the Property by way of a Grant Deed from Mahvash Mazgani who purchased

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the Property with her own funds from a short-sale she found and negotiated and the Defendants

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are forging to the underlying transactions.. Such a simple pleading specifies the source of title

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and the lack of interest of the Defendant in the underlying transaction.

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THE FOURTH CAUSE OF ACTION DOES NOT STATE FACTS SUFFICIENT TO

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CONSTITUTE A CAUSE OF ACTION

In the Forth Cause of Action for Cancellation of Written Instruments Plaintiff has

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asserted that: Plaintiff herein seeks cancellation of the Quitclaim Deed Rescission Nunc Pro
Tunc because at the time the documents were executed and recorded, tile [sic] was already vested

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in Mazgani Family Trust, and defendants had no right, title, estate, lien or interest whatsoever in

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the Subject Property. FAC 37.

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The allegations of the FACs own (37) is that the Quitclaim Deed Rescission Nunc Pro
Tunc is a void instrument as the person who is asserting the Recession had no power to rescind.
McElhaney v. W. E. Moyer & Co. (1929), 101 Cal.App. 53, 57 [281 P. 87]; C. I. T. Corp. v.
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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

Panac (1944), 25 Cal.2d 547, 548-550 [154 P.2d 710, 160 A.L.R. 1285]; 6 Cal.Jur., pp. 85-86;

Rest., Contracts, 475; 5 Williston, Contracts, 1488.) Vice v. Thacker, 30 Cal. 2d 84, 95, 180

P.2d 4, 10 (1947).

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The allegations of the FAC is that the Quitclaim Deed Rescission Nunc Pro Tunc is a
facially void instrument. A facially void instrument is not subject to cancellation. Civ. Code,
3413 (An instrument, the invalidity of which is apparent upon its face, or upon the face of

another instrument which is necessary to the use of the former in evidence, is not to be deemed

capable of causing injury, within the provisions of the last section.)(CC 3412). Castro v. Barry,

79 Cal. at p. 445. M.F. Farming Co. v. Couch Distrib. Co., Inc., 207 Cal. App. 4th 180, 200, 143

Cal. Rptr. 3d 160, 176 (2012).

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The Demurrer to this Cause of Action must be sustained without leave to amend.
THE FIFTH CAUSE OF ACTION DOES NOT STATE FACTS SUFFICIENT TO
CONSTITUTE A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS
The FAC at best pleads out that property of the trust was slandered. Nothing else can be
alleged. There certainly can't be any allegation that Mr. Moda sold the property after he clouded
the title. Mr. Moda took no other action but to assert a claim to the real property that he
negotiated and paid for. Further, the FAC admits that title was held by a Trust; a legal entity.
Therefore, Mahvash Mazgani could not have sustained any emotional injury. CCP 430.10.

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As to the last cause of action for IIED: it cannot be maintained as the property was vested

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in a trust, and not a person. Caso v. Hartford Cas. Ins. Co.. (E.D. Cal. May 2, 2008, No. CIV. S-

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07-101 FCD DAD, 2008 WL 1970024, fn. 9 (Caso).) The Caso court cited, as analogous

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authority, Huntingdon Life Sciences v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129

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Cal.App.4th 1228, 1260. There can be no IIED in this case. One cannot plead at FAC 37 that

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the Property was vested in the Mazgani Family Trust (when it was not, and that is another point

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of the fraud that was perpetrated on Mr. Moda in the first place) and at FAC Ex B that title is

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vested in the Mahvash Mazgani Family Trust and then claim emotional injuries which are not a

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remedy for a corporate entity. A trust cannot suffer emotionally.

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CONCLUSION
The Cause of Action for Quiet Title, Declaratory Relief should be granted leave to amend

upon a proper showing by the properly proposed plaintiff that the FAC can be amended. The

causes of action for Declaratory Relief, Slander of Title and IIED should be dismissed without

leave to amend as they are impervious to the amendment.

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Respectfully submitted,

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Dated: August 6, 2016

By______________________________
Danyal Roodbari, Esq
Attorneys for Defendant and CrossComplainant Kevin Moda

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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

DECLARATION OF MEET AND CONFER PURSUANT TO CODE OF CIVIL

PROCEDURE SECTION 430.41

I, Danyal Roodbari, Esq., declare:

1.

I am presently the attorney for Kevin Moda, a party to this Action.

2.

I called Mr. Gussner, Esq, Counsel for the Plaintiffs in this Action on July

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28, and July 29, 2016, and left messages for him to return my call and he did not.
3.

On August 2, 2016, I sent him the attached email (see Ex. A) and asked him

to contact me and express his willingness to amend the FAC by the 5th and Amend the

FAC by the 12th of August.

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4.

To date, Mr. Gussner has never replied to me.

I declare under penalty of perjury under the laws of California that the preceding
is true and correct. Executed on August 6, 2016, in Los Angeles, California.

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Date: August 6, 2016

By:_______________________
Danyal Roodbari, Esq.,

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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

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EXHIBIT
A

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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

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From:"danielroodbari"<droodbari@gmail.com>
Date:Aug2,2016
Subject:MeetandConferperCCP430.41
To:<walter.gussner@fnf.com>
Cc:

DearMr.Gussner,

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The following is my effort to meet and confer re the deficiencies of the First
AmendedComplaint(FAC)pursuanttoCodeofCivProc430.41.

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Inaquiettitleaction,theplaintiffmustallegehowitstitlehasbeenperfected.
CAL.CIV.PROC.CODE761.020(b);PacificStatesSav.&LoanCo.v.Warden,18Cal.
2d757,759,117P.2d877(1941).Thecomplaintmustalsostatetheplaintiffstitle
aswellasthebasisofthetitle;i.e.ifthetitletothepropertywasacquiredbyway
ofpurchaseofthepropertyandinthiscase,whatisrelevanttotheinquiryiswith

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whosemoney.CAL. CIV. PROC. CODE761.020(b);TwainHarteHomeownersAssn

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v.Patterson,193Cal.App.3d184,188,239Cal.Rptr.316,318(1987)(plaintiff

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mustallegeabonafideinterestintheproperty).Inlightofthedynamicsofthis

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particular case, it will be particularly hard to plead a bona fide interest in the

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propertyandhavethatallegationbedeemedanhonestpleading.Further,as

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thecomplaintisbasedonfraud,theplaintiffmustspecificallyallegethenatureof

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defendantsclaim,andisitnecessarytoallegetheinvalidityofdefendantsclaim.
Warrenv.Atchison,Topeka&SantaFeRailwayCo.,19Cal.App.3d24,3233,96
Cal.Rptr.317,32223(1971).Thecomplaintisnearnowhereinthevicinityofa
pleading that would support the requirement that fraud be pleaded with
specificity.

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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

Asyour2ndcauseofactionfordeclaratoryrelief,youstatethatplaintiffcontends

thatplaintiffisthesoleownerofthesubjectpropertyandthatdefendantshave

noright,title,estate,lienorinterestinandtothesubjectproperty.However,

nowhereintheparagraphsthatarepertinenttothedeclaratoryreliefcauseof

action(2528),youstatethenatureofeachdefendantsclaimedaninterestin

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the property that is contrary to the position of the plaintiff. The Complaint is
whollyinadequatetoevenastothepleading.Thesevagueallegationsdonot
meetthespecificpleadingrequirementsforadeclaratoryreliefcauseofaction
whichseeksadeclarationofrightsintheasappliedcontext.Cal.Assn.ofPrivate
SpecialEduc.Sch.v.DeptofEduc.,141Cal.App.4th360,377,45Cal.Rptr.3d
888,900(2006)

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InregardstoyourSlanderofTitlecauseofaction:IaminclinedtobringaMotion
to Strike it Per CCP 425.16. I also caution that Mr. Moda will show that he
negotiated,signedthepurchaseagreementsandcanalsoshowthathismoney
wasusedforthepurchaseoftheproperty.AndIwillquoteforyouhereacase
stemming from an antiSLAPP setting where the court held as follows: A rival
claimant of the property is conditionally privileged to disparage or justified in

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disparaginganother'spropertyinlandbyanhonestandgoodfaithassertionofan

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inconsistentlegallyprotectedinterestinhimself.(SeeThompsonv.White,70Cal.

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135[11P.564];Rest.Torts,647.)(Gudgerv.Manton(1943)21Cal.2d537,545

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[134P.2d217];seeCiv.Code,47[privilegedpublications];seealsoCiv.Code,

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48[Inthecaseprovidedforinsubdivision(c)ofSection47,maliceisnotinferred

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fromthecommunication.].)M.F.FarmingCo.v.CouchDistrib.Co.,Inc.,207Cal.

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App.4th180,198,143Cal.Rptr.3d160,174(2012).Ididnotwishtomoveto

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strike the claim as my original arrow for the reason given in the following
paragraph.

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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

Damagesemittingfromaslanderoftitlecauseofaction,inanysense,isthesense

thatthetitleholdersuffereddamagesbecausethepublicationwasuntrue,made

withmaliceandwasunprivilegedandthatthepublicationstifledthemarketability

ofthetitle;statedifferently,you(thePlaintiff)willhavetoadmitthatyouwere

tryingtosellthepropertyormarketingitforsale.Ifyouwishtopleadtothat,

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pleasebemyguest,however,Icautionthatsuchapleadingwillserveasabinding
judicialadmissioninthecompanioncrossactionofMr.ModainBC622117that
Ms.MazganibreachedherfiduciarydutyowedtomyClientandwasintheprocess
ofselling/marketingwhatshouldhaveneverbeenconsideredashers,ashers
tosale.SuchapleadingwillundoubtedlymakeitmucheasierforMr.Modato

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provedamagesintheothercase.Thechoiceandtheramificationofpleadingsuch

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afactisyouandyourClients;Isimplycautionthatyouthreadthisareaoflaw

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carefully.

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Inthe4thcauseofactionforcancellationofwritteninstrumentsyouhaveasserted
that:PlaintiffhereinseekscancellationoftheQuitclaimDeedRescissionNunc
ProTuncbecauseatthetimethedocumentswereexecutedandrecorded,tile
[sic] was already vested in Mazgani Family Trust, and defendants had no right,

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title,estate,lienorinterestwhatsoeverintheSubjectProperty.FAC37.Ipoint

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outtoyouthatwhatyouaredescribingbytheallegationsoftheFACsownisthat

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theQuitclaimDeedRescissionNuncProTuncisavoidinstrumentastheperson

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whoisassertingtheRecessionhadnopowertorescind.McElhaneyv.W.E.Moyer

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&Co.(1929),101Cal.App.53,57[281 P.87];C.I.T.Corp.v.Panac(1944), 25

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Cal.2d547,548550[154P.2d710,160A.L.R.1285];6Cal.Jur.,pp.8586;Rest.,

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Contracts,475;5Williston,Contracts,1488.)Vicev.Thacker,30Cal.2d84,

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95,180P.2d4,10(1947).Wherefore,theallegationsoftheFACsowndefeatthe
causeofaction.Awritteninstrument,inrespecttowhichthereisareasonable
apprehension that if left outstanding it may cause serious injury to a person
againstwhomitisvoidorvoidable,may,uponhisapplication,besoadjudged,
andorderedtobedelivereduporcanceled.(Civ.Code,3412,enacted1872.)A

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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT

facially void instrument is not subject to cancellation. (Civ. Code, 3413; see

Castrov.Barry,79Cal.atp.445.)M.F.FarmingCo.v.CouchDistrib.Co.,Inc.,207

Cal. App. 4th 180, 200, 143 Cal. Rptr. 3d 160, 176 (2012). Please eliminate the

causeofactionfromthecomplaint.

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AstothelastcauseofactionforIIEDcannotbemaintainedasthepropertywas
vestedinatrust,andnotaperson.Casov.HartfordCas.Ins.Co..(E.D.Cal.May

2,2008,No.CIV.S07101FCDDAD,2008WL1970024,fn.9(Caso).)TheCaso

courtcited,asanalogousauthority,HuntingdonLifeSciencesv.StopHuntingdon

AnimalCrueltyUSA,Inc.(2005)129Cal.App.4th1228,1260.TherecanbenoIIED

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in this case. One cannot plead at 37 that the Property was vested in the

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MazganiFamilyTrust(whenitwasnot,andthatisanotherpointofthefraud

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thatwasperpetratedonmyClientinthefirst place)andthen claimemotional

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injuries.Atrustcannotsufferemotionally.

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Ilookforwardtoyouragreementtomakethecorrectionsasnotedabovebythe

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endofthis week(August5,2016) andarevisedComplaint(if yousochoseto

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proceedwithacomplaint)tobefiledbywayofstipulationbytheendoftheweek

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thereafter(August12,2016).IfIdonothaveyouragreementbythe5thand/or

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aftertheagreementtheAmendedComplaintfiledbythe12th,Ishallengageyou

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inmotionpracticeinaccordancewiththefactsandthelawasdelineatedhere.

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Thankyouforyourtimeandattentiontothismatter.

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NOTICE OF DEMURRER AND DEMURRER TO THE FIRST AMENDED COMPLAINT