Kaoud v. Hanna
| Decision Date | 29 November 2022 |
| Docket Number | B316034 |
| Parties | LAILA KAOUD, Plaintiff and Appellant, v. MOURAD HANNA et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 20TRCV00448 Deirdre H. Hill, Judge. Affirmed.
Law Office of William F. Clark and William F. Clark for Plaintiff and Appellant.
Law Office of Merna Abdelmalak and Merna Abdelmalak for Defendants and Respondents.
Laila Kaoud[1] (appellant) appeals from a judgment in favor of defendants Mourad and Mercurious (Mark) Hanna following an order sustaining defendants' demurrer to plaintiffs' third amended complaint, without leave to amend. Appellant contends the trial court erred in sustaining a demurrer to the sole cause of action in that complaint for financial elder abuse. Appellant also requests we order the trial court to grant appellant leave to file a further amended complaint alleging additional facts in support of plaintiffs' elder abuse cause of action.
After reviewing the allegations of the third amended complaint, and drawing all reasonable inferences in favor of appellant, we conclude the third complaint fails to allege a claim for financial elder abuse against either Mourad or Mark Hanna. Although appellant asserts she could plead additional facts to amend her cause of action for financial elder abuse, we conclude that the additional facts she proffered in her opening brief and at oral argument would not cure the deficiencies in her third amended complaint. We thus affirm.
The following summary of facts is taken from the third amended complaint and exhibits attached to that pleading. In 2019, plaintiffs owned a home in Rolling Hills Estates California. Defendant Mourad Hanna is a licensed real estate broker doing business as Hanna Realty. Mark Hanna is Mourad Hanna's son and a licensed real estate "salesperson."
On April 8, 2019, plaintiffs and their son, Ausama Kaoud entered into a residential listing agreement giving Hanna Realty exclusive right to list their home for sale. Plaintiffs selected Hanna Realty because the Hannas were "long time family friends" and because they believed the Hannas "would be fair and honest in their dealings" with plaintiffs. The Hannas also speak Arabic, plaintiffs' native language. The listing agreement had a one-year term from April 8, 2019, to April 8, 2020. The parties agreed to list the Kaouds' home for sale at $1,777,000, and Hanna Realty would be paid its share of a total commission of five percent of the purchase price.[2]
On February 19, 2020, plaintiffs accepted an offer from Aaron Tran to purchase their home for $1,350,000. Plaintiffs allege that thereafter, "numerous issues" arose between the buyer, plaintiffs, and defendants. One such issue, just prior to the close of escrow, involved the commission payable to Hanna Realty. According to plaintiffs, after "significant negotiations" the parties agreed that Hanna Realty would be paid a commission of $6,250 at closing. The parties' agreement is reflected in an amended escrow instruction dated April 22, 2020, signed in counterparts by the Kaouds and by Hanna Realty.
The sale closed on April 24, 2020. Within days following the closing, Mark Hanna informed plaintiffs that he needed $10,000 to cover the cost of his upcoming wedding, and he asked plaintiffs to pay him that sum. After some discussions, plaintiffs paid $10,000 to Mark Hanna. Mark Hanna refused to return these funds, or to provide a repayment schedule.
Plaintiffs filed a complaint against defendants on June 26, 2020. Their original complaint alleged causes of action for breach of contract and financial elder abuse as defined in Welfare and Institutions Code[3] section 15610.30. Within a month of filing the complaint, and before defendants filed a responsive pleading, plaintiffs filed a first amended complaint. The amended pleading added the Kaouds' son, Ausama Kaoud, as a plaintiff, as well as a new claim for damages based on a $10,000 credit to the purchaser that was included in an amended escrow instruction without obtaining Ausama Kaoud's consent to the credit.
Defendants filed a general demurrer, as well as special demurrers asserting the complaint was uncertain, and did not specify whether the contract in dispute was written or oral. The trial court sustained the demurrer with leave to amend without specifying which demurrers it was sustaining.
Plaintiffs filed a second amended complaint adding a new cause of action for breach of fiduciary duty and prayer for punitive damages. Defendants demurred and moved to strike the fiduciary duty cause of action and prayer for punitive damages. The trial court sustained the demurrer to the first cause of action for breach of contract without leave to amend and the second cause of action for elder abuse with leave to amend. The court granted defendants' motion to strike the third cause of action for breach of fiduciary duty because plaintiffs had not requested leave to add a new cause of action to the second amended complaint. The court also struck the punitive damages allegations for lack of specificity.
Plaintiffs filed a third amended complaint, the pleading that is the subject of this appeal. This pleading made several substantive changes to the second amended complaint. First, it alleges a single cause of action for financial elder abuse. Second, Ausama Kaoud is no longer a plaintiff. Third, the allegations omit reference to the $10,000 credit to the purchaser. Thus, the only remaining allegation of financial elder abuse is the $10,000 payment to Mark Hanna following close of escrow.
Defendants filed a general demurrer and a special demurrer for uncertainty. In support of the general demurrer, defendants argued the third amended complaint is a "sham pleading." They also argued the complaint fails to allege with particularity facts constituting elder abuse. Plaintiffs asserted in their written opposition to the demurrer that the elder abuse claim was well-pleaded, but plaintiffs neither requested leave to amend nor indicated how they would amend in the event leave were granted.
The trial court sustained the demurrer to plaintiff's elder abuse cause of action without leave to amend. The court found "[p]laintiffs have not alleged that defendant Mark Hanna had an intent to defraud or facts to show undue influence ...." Specifically, the court concluded that "the allegations that the parties were 'long time family friends,' they all spoke Arabic, Mark Hanna was the real estate broker, and that the $10,000 was given 'without a contractual obligation' are insufficient to show undue influence or a wrongful act." The court entered a judgment of dismissal on August 2, 2021, and appellant filed a notice of appeal on September 29, 2021. We have jurisdiction to review the judgment pursuant to Code of Civil Procedure section 904.1, subdivision (a)(1).
"As a demurrer tests the sufficiency of the complaint as a matter of law, it raises only an issue of law (Code Civ. Proc., § 589, subd. (a)), as to which our review is de novo." (Hilliard v. Harbour (2017) 12 Cal.App.5th 1006, 1010.) On an appeal from a judgment of dismissal after the trial court has granted an order sustaining a demurrer, an appellate court reviews the complaint de novo to determine whether it states a cause of action. (See Folgelstrom v. Lamps Plus, Inc. (2011) 195 Cal.App.4th 986, 989.) In compliance with Code of Civil Procedure section 452, we construe the complaint "liberally . . . with a view to substantial justice between the parties." "We deem to be true all material facts properly pled. [Citation.] We must also accept as true those facts that may be implied or inferred from those expressly alleged. [Citation.]'" (Balikov v. Southern Cal. Gas Co. (2001) 94 Cal.App.4th 816, 819.) We do not assume the truth of contentions, deductions, or conclusions of fact or law. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) When a trial court sustains a demurrer without leave to amend, we review the denial of leave to amend for abuse of discretion. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)" 'It is plaintiffs' burden to show either that the demurrer was sustained erroneously or that the trial court's denial of leave to amend was an abuse of discretion.' [Citation.]" (Alborzi v. University of Southern California (2020) 55 Cal.App.5th 155, 168-169.)
Although there are no transcripts of any trial court proceedings in our record, we still may address the instant appeal to the extent the appeal raises only an issue of law as to the sufficiency of the elder abuse allegations in the third amended complaint. (See Chodos v. Cole (2012) 210 Cal.App.4th 692, 699.)
(Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 478.)
In relevant part, the Elder Abuse and Dependent Care Act (the Elder Abuse Act) provides that" '[financial abuse'" of an elder occurs when "a person or entity . . . [¶] . . . [t]akes . . . [¶] real or personal property of an elder . . . for a...
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