Malekan v. Etesamnia

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UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
LOS ANGELES DIVISION
In re:
Peter Pedrom Etesamnia,
Debtor.
CHAPTER 7
Case No.: 2:12-bk-43661-TD
Adv No.: 2:13-ap-01695-TD
ORDER DISMISSING PLAINTIFF’S
SECOND AMENDED COMPLAINT
WITHOUT LEAVE TO AMEND
Kourosh Malekan,
Plaintiff,
v.
Peter Pedrom Etesamnia,
Defendant.
Date: November 12, 2014
Time: 10:00 a.m.
Courtroom: 1345
The Motion of Defendant Peter Pedrom Etesamnia (Defendant) to Dismiss
Plaintiff’s Second Amended Complaint (SAC) was heard on November 12, 2014, at
11:00 a.m. Counsel in attendance were Edmond Nassirzadeh, appearing telephonically
for the Defendant, and A. David Youssefyeh and Joseph Caceres, appearing in person
FILED & ENTERED
DEC 30 2014
CLERK U.S. BANKRUPTCY COURT
Central District of California
BY DEPUTY CLERK	penning
Case 2:13-ap-01695-TD Doc 63 Filed 12/30/14 Entered 12/30/14 12:05:16 Desc
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for Plaintiff. Having considered the parties’ papers filed in support of and in opposition
to the motion, oral arguments, in this and in prior hearings concerning dismissal with
leave to amend prior adversary complaints filed and served herein as well as other
pleadings and papers on file herein, the court makes the following findings:
The business dealings between Plaintiff and Defendant involved substantial
amounts of money and varied business activities that took place over several years, yet
no written agreement between the parties has ever been alleged in any adversary
complaint. In prior hearings the court suggested to Plaintiff’s counsel that vaguely
described allegations suggested important business transactions that more normally
would be accompanied by written business agreements.
By contrast, in Plaintiff’s state court complaint, attached to Plaintiff’s FAC
previously filed herein (but not attached to Plaintiff’s SAC herein), Plaintiff asserts that
the parties entered into two written agreements at the outset of the events alleged in the
SAC as of October 2007. See, FAC, Ex. A, 12:25–13:11; 13:16-27; and 18:4-8. This
inconsistency between Plaintiff’s state court action and his bankruptcy action is glaring.
The court infers that Plaintiff’s decision not to allege any written agreement in Plaintiff’s
SAC was intentional, perhaps to de-emphasize possibly material business provisions in
the written agreements or to trumpet vague, amorphous and conclusory allegations
based on oral exchanges, conclusory thoughts of the Plaintiff, and the Defendant’s
opinions concerning business negotiations leading to Plaintiff’s “investments” or
“options.” Plaintiff’s decision to omit any written agreement details may have been
designed to enhance or amplify rather weak alleged facts or, perhaps, to downplay or to
suppress the negative impact of written details that may have negated Plaintiff’s claims
of allegedly fraudulent transactions referred to in the SAC.
Plaintiff’s allegations also lead the court to infer that any such actual written
business agreement between the parties might well reveal an actual business
arrangement that contradicts Plaintiff’s more subjectively arrived at claims as alleged in
the SAC. In the end, the claims of fraud in the SAC based solely on vague, imprecise
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oral exchanges raise no more than a vague possibility that any fraud claim might be
adequate to survive Defendant’s motion.
Plaintiff’s SAC contains five separate fraud claims expressed through a curious
chronology. The SAC struggles but fails to meet the requirements of FRCP Rule
8(a)(2), for a “short and plain statement” of his claims showing that he “is entitled to
relief” and of FRCP Rule 9(b), that claims of fraud “must state with particularity the
circumstances constituting fraud,” Plaintiff alleges only a few vague oral
representations of fact to describe the basis of very substantial claim amounts. Though
Plaintiff acknowledges, again vaguely and without particularity, that some financial
documents were given to him or shown to him by Plaintiff, the contents of any written
document are not described and no such document is attached.
Pages 2 through 5 of the SAC consist primarily of statements parroting black
letter law along with a brief general history of the parties’ relationships. Pages 6
through 14, ending with paragraph 59, contain only vague, conclusory statements
asserting Defendant’s fraudulent intent along with conclusory references to many of
Defendant’s opinions rather than actionable fact about the enterprises in question.
These pages also contain assertions, often repetitious, of conclusory statements about
Plaintiff’s perhaps wishful thinking about his expectations of a financial return expected
from Defendant’s performance concerning ongoing business efforts and work in
process. These pages assert the possibility of fraudulent intent or conduct on the part
of Defendant but are far too general to satisfy the concept of plausibility, as discussed in
Twombly, Iqbal and, most recently, by the Ninth Circuit in Landers v. Quality
Communications, Inc., 2014 WL 5840039 (C.A. 9), Nov. 12, 2014 at pp. 3-4 and 7-8, as
well as In re Daniell, 2013 WL 5933657 (9th Cir. BAP (Cal.)).
With these shortcomings, the SAC fails to raise any allegation of fact to the level
of plausibility but leaves the SAC in the realm of conjecture about wrongdoing by
Defendant. The SAC raises nothing more than the bare possibility of fraud.
This analysis of the SAC leads the court to conclude, after Plaintiff has had three
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opportunities to plead his case, consistent with the requirements of FRCP Rules 8(a)(2)
and 9(b) and the relevant case law, that further opportunities for amendment are not
warranted. The SAC is dismissed without leave to file any further pleadings.
IT IS SO ORDERED.
Date: December 30, 2014
Case 2:13-ap-01695-TD Doc 63 Filed 12/30/14 Entered 12/30/14 12:05:16 Desc
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