Jafry vs. Rowshan

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. [Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850]

A defendant moving for summary judgment must “show” that either: • one or more elements of the “cause of action ... cannot be established”; OR • there is a complete defense to that cause of action. [CCP § 437c(p)(2)]

Here, Defendant has presented arguments and evidence that one or more elements of the cause of action for Fraud cannot be established (intent to defraud, justifiable reliance) and that there is a complete defense to the cause of action for Breach of Fiduciary Duty (25th Affirmative Defense).

As to fraud, Defendant explains that Plaintiff Jafry’s fraud allegations against Defendants Zoom and Moazez are premised on Jafry’s “approval of the loan” (Complaint, ¶¶12, 13, 24) and on the claim that Defendants were “dumping the company problems onto Plaintiff and keeping the good for the benefit of Defendants all while Plaintiff was liable for the $750,000.00 debt that was in essence a loan to Defendant.” (Id. at ¶¶15, 23).

Defendant argues that Neither Zoom nor Moazez could have intended to defraud Jafry when Zoom consistently insisted that Jafry conduct his own due diligence to verify the Seller’s representations and seek the advice of professionals. [UMF No. 10, 23.]

Defendant also argues that while Zoom’s agent, Ms. Vaziri, made the initial introduction to begin the SBA Loan application, Jafry remained solely responsible for providing the necessary information for loan approval. [UMF Nos. 13-17].

Also, as to justifiable reliance, Defendant argues that Jafry acknowledged that Zoom advised him, at minimum, six times that Zoom and its agents made no representations or warranties about the Seller’s business and encouraged Jafry to seek professional advice. (UMF No. 23).

And, as to Breach of Fiduciary Duty, Defendant argues that Jafry executed both the Purchase Agreement and the Closing Instructions, each of which contains express clauses releasing Zoom from any liability flowing from the asset purchase transaction—and as such, no liability attaches.

Having sustained its initial, substantive burden, the burden thus shifts to Plaintiff to create a triable issue of material fact.

Instead of attempting to create triable issues of material fact, Plaintiff seeks a continuance pursuant to CCP§437c(h).

CCP§437c(h) provides, “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.”

Plaintiff states in the Opposition that “this case involves the sale of a business, to which the office leasehold was transferred. The purchase agreement failed to mention the broker fee, which constitutes constructive fraud and a breach of fiduciary duty.” [Opp page 2:23-25.] Plaintiff also argues, “At no time did Defendants disclose to Plaintiff the complete calculation, allocation, or total amount of broker fees, commissions, and side payments they received from the transaction (Declaration of Syed Jafry, ¶¶ 4-6).”

However, nowhere in the Complaint is this new theory of liability pled.

Rather, Plaintiff’s fraud is based on, “It is Plaintiff’s contention that Defendants had a scheme to defraud Plaintiff out of the $750,000 and also dump certain liabilities of Defendant onto Plaintiff. It is Plaintiff’s contention that prior to the sale of the business, Defendants knew that he would continue to do business

with the valuable clients, in the same location, to continue to work in the field of accounting and taxation.” (Complaint¶23.) Additionally, “It is also Plaintiffs contention that he was used as a front in order to get a loan from the bank, and that Defendants austerely overstated, exaggerated, and inflated the value of the business to both the Plaintiff and the Bank, and also overstated the net worth of Plaintiff to the bank in order to complete the funding.” (Complaint¶24.)

As to Breach of Fiduciary Duty, Plaintiff succinctly pleads:

30) Defendants, as business brokers, and the sellers of business, were and are required to use their abilities to the benefit of Plaintiff and to refrain from abusing their positions of control, and not to favor their own interests at the expense of Plaintiff. Defendants violated their fiduciary duties to Plaintiff, including without limitation their duties of care, good faith, honesty and loyalty

[Complaint ¶30.]

That is, the gravamen of the complaint appears to be about Defendants overstating the value of the business. Nowhere in the Complaint does Plaintiff plead or refer to a failure to disclose broker fees, etc.

A party opposing summary judgment may not advance an unpleaded legal theory to defeat the motion. Rather, the party should seek leave to amend its pleadings to raise the new theory before filing its opposition papers. [Champlin/GEI Wind Holdings, LLC v. Avery (2023) 92 CA5th 218, 224-225]

Here, Plaintiff is attempting to continue the motion to obtain discovery on an unpleaded legal theory, almost two years after the Plaintiff initiated the lawsuit.

Furthermore, Attorney Bakhos’ Declaration in support of the request is deficient.

The opposing party’s declaration in support of a motion to continue the hearing should show the following: • Facts establishing a likelihood that controverting evidence may exist and why the information sought is essential to opposing the motion; [“Essential facts exist

that are necessary to justify Plaintiff’s opposition to Defendants’ Motion for Summary Judgment, but which currently cannot be presented because Defendants have failed and refused to produce requested financial records and discovery regarding their actual fees, commissions, and total compensation collected in connection with the purchase and sale transaction of R & R Accounting Services.” Bakhos Decl.¶3.] • The specific reasons why such evidence cannot be presented at the present time; [“To date, Defendants have failed to produce complete accounting records or ledger entries detailing the actual compensation, side payments, or dual commissions received from all parties to the transaction.”

Id.¶5c.] • An estimate of the time necessary to obtain such evidence; [No estimate provided.] • The specific steps or procedures the opposing party intends to utilize to obtain such evidence. [CCP § 437c(h); [“Plaintiff is actively preparing a Motion to Compel.” Id.¶6.]

What is clear is that Plaintiff did not serve his first set of discovery (as to an unpled theory of liability) until April 22, 2026, which was almost seven (7) months after Defendants’ filed their Answer herein. Worse yet, Defendants argue in the Reply that Plaintiff had supplemental responses by August 3, 2026—that is, before filing the opposition.

Plaintiff has failed to demonstrate diligence in obtaining discovery, and Plaintiff has filed to seek amendment to his Complaint to include these new theories of liability.

As such, the Court GRANTS Defendants’ Motion for Summary Judgment, and DENIES Plaintiff’s request for a continuance. Defendants’ evidentiary objections are sustained.

Defendants to give notice. 111 Cummings vs. Kia America, Inc., 25-01500652 There are two motions on calendar: (1) Plaintiff Rosa Cummings’ (“Plaintiff”) Motion to Withdraw or Amend Deemed Admissions and (2) Defendant Kia America, Inc.’s (“Defendant”) Motion for Summary Judgment.

In Plaintiff’s motion, she moves pursuant to Code of Civil Procedure section 2033.300. Defendant moves for summary judgment

1. Plaintiff’s Motion to Withdraw or Amend Deemed Admissions

Plaintiff moves pursuant to Code of Civil Procedure section 2033.330 to withdraw and amend the admissions deemed admitted against her by the Court’s April 2, 2026 order with respect to Defendant Kia America, Inc.’s (“Kia”) Requests for Admission, Set One (Nos. 1–11), and (1) deeming Plaintiff’s March 12, 2026, responses as her operative responses thereto; or (2) in the alternative, permitting Plaintiff to serve amended responses to the Requests for Admissions, Set One, within twenty (20) days of the Court’s Order.

Code of Civil Procedure section 2033.300 states:

“(a) A party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties. (b) The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party’s action or defense on the merits. (c) The court may impose conditions on the granting of the motion that are just, including, but not limited to, the following: (1) An order that the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission. (2) An order that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission.” (Code Civ. Proc., § 2033.300.)

Here, the Court finds that Plaintiff is entitled to relief from the facts deemed admitted pursuant to the Court’s 04/02/2026 order. For the reasons explained below, the Motion is GRANTED.

The requests for admission at issue were deemed admitted by the Court on 04/02/2026 after the record presented to the Court reflected that Plaintiff failed to provide discovery and failed to oppose the motion.