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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 MOTION TO STRIKE

AND MOTION TO STRIKE;
MEMORANDUM OF POINTS AND
AUTHORITIES

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,

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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
inclusive,
Cross-Defendants.

Please take Notice on August 30, 2016, at 8:30 AM in Department 48 of the above-

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NOTICE OF MOTION TO STRIKE AND MOTION TO STRIKE TO THE FIRST AMENDED COMPLAINT

entitled court, defendant/cross-complainant, Kevin Moda hereby will move pursuant to Code of

Civil Procedure 435, 436 and 437 on behalf of himself to strike 34, Prayer Nos. 4 and 8

striking allegations of punitive / exemplary damages and the prayer for same.

This Motion to Strike will be based on Plaintiffs First Amended Complaint, This Notice

of Motion and Motion, 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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NOTICE OF MOTION TO STRIKE AND MOTION TO STRIKE 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 MOTION TO STRIKE AND MOTION TO STRIKE 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

THE STANDARD APPLIED TO RULING ON A MOTION TO STRIKE

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Code of Civil Procedure 435 (a) provides that, within the time allowed to respond to a
pleading, a party may serve and file a notice of motion to strike the whole or any part thereof.
Code of Civil Procedure 436 provides that the court may, upon a motion made pursuant
to Code of Civil Procedure 435, struck out any irrelevant, false, or improper matter inserted in
any pleading, or strike out all or any part of any pleading not drawn or filed in conformity with
the laws of the State, a court rule, or an order of the court.

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A motion to strike is often used to raise objections to another partys pleading that cannot

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be raised by demurrer. For example, the motion may be used on the ground that the improper

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allegation contained in a complaint is not one of the permissible grounds listed in Code of Civil

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Procedure 430.10. Thus, a motion to strike is a proper procedure to eliminate an improperly

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alleged claim for punitive damages. Grieves v. Sup Crt (1984) 157Cal App 3d 159, 164.

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THE COMPLAINT FAILS TO ALLEGE FACTS SUFFICIENT TO PERMIT THE

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RECOVERY ON PUNITIVE DAMAGES

Plaintiff seeks to recover punitive / exemplary damages against Defendant. However,

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Plaintiff has not pled facts sufficient to support a claim for said damages in any of its causes of

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action.

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Civil Code 3294 provides for the recovery of punitive damages as follows: (a) In an
action for the breach of an obligation not arising from contract, where it is proven by clear and
convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the

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NOTICE OF MOTION TO STRIKE AND MOTION TO STRIKE TO THE FIRST AMENDED COMPLAINT

plaintiff, in addition to the actual damages, may recover damages for the sake of example and by

way of punishing the defendant. Cal. Civ. Code 3294

Civil Code 3294, defines malice, oppression and fraud as follows:

(c) As used in this section, the following definitions shall apply:

(1) "Malice" means conduct which is intended by the defendant to cause injury to the
plaintiff or despicable conduct which is carried on by the defendant with a willful and
conscious disregard of the rights or safety of others.

(2) "Oppression" means despicable conduct that subjects a person to cruel and unjust
hardship in conscious disregard of that person's rights.

(3) "Fraud" means an intentional misrepresentation, deceit, or concealment of a material

fact known to the defendant with the intention on the part of the defendant of thereby
depriving a person of property or legal rights or otherwise causing injury. Cal. Civ. Code
3294

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California law disfavors punitive damage award; they create the anomaly of excessive

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compensation and are therefore not favored in the law. Dumas v. Stocker (1989) 213 Cal App 3rd

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1262, 1266

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Further, not only must there be circumstances of oppression, fraud or malice, but facts

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must be alleged in the pleading to support such a claim. Grieves v. Sup Crt (1984) 157Cal App

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3d 159, 166.

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Mere conclusions are insufficient to demonstrate oppression, fraud, or malice. Brousseau

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v. Jarrett (1977) 73 Cal App 3rd 864, 872. Conclusory characterization of defendants conduct as

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intentional, willful and fraudulent is patently insufficient statement of oppression, fraud or malice,

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express or implied within the meaning of Cal. Civ. Code 3294. Ibid.

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The mere recitation of law does not create a factual basis and suit which to support a claim
for punitive damages. Rather, as previously cited, punitive damages may only be pled. Where it
is proven by clear and commencing evidence that the defendant has been guilty of oppression,
fraud, or malice. Civil Code 3294 (a).
Further, the core of the complaint is that Movant has filed a document that clouds the title
to a property that Defendant claims was fraudulently taken from him by someone who occupied a
position of trust and was his fiduciary. Conversely, Plaintiff has not even pled facts sufficient to
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NOTICE OF MOTION TO STRIKE AND MOTION TO STRIKE TO THE FIRST AMENDED COMPLAINT

constitute a cause of action for disparagement of title The thrust of the tort of disparagement or

slander of title is protection from injury to the 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.;

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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. 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 and that the conduct was not privileged.
The Plaintiff is duty bound 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.

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Torts, 647.) (Gudger v. Manton (1943) 21 Cal.2d 537, 545 [134 P.2d 217]; see Civ. Code, 47

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[privileged publications]; see also Civ. Code, 48 [In the case provided for in subdivision of

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Section 47, malice is not inferred from the communication.].) M.F. Farming Co. v. Couch

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Distrib. Co., Inc., 207 Cal. App. 4th 180, 198, 143 Cal. Rptr. 3d 160, 174 (2012).

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The need for specificity in this cause of action dovetails the need for the correct plaintiff

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(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. As it stands, the FAC is
utterly insufficient to support a claim for punitive and / or exemplary damages.
The pleader of the FAC has pled a laundry list of key words such as maliciously,
wantonly and recklessly, and asserts conclusory and improper allegations. Plaintiffs
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NOTICE OF MOTION TO STRIKE AND MOTION TO STRIKE TO THE FIRST AMENDED COMPLAINT

allegations merely reiterate the legal standard without providing any information specific to

Defendants actions. The language will not support the strict evidentiary burden that exemplary

damages require, as such, must be stricken. Woolstrum v. Mailloux (1983) 141 Cal App 3rd Sup.

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CONCLUSION

Based on the foregoing, Defendants submit that the Court should grant the present Motion

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and Strike pursuant to Code of Civil Procedure 435, 436 and 437 34, Prayer Nos. 4 and 8
of the First Amended Complaint (FAC) which charge a request for punitive and exemplary
damages.

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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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NOTICE OF MOTION TO STRIKE AND MOTION TO STRIKE TO THE FIRST AMENDED COMPLAINT