Judge: Armen Tamzarian, Case: 22STCV16593, Date: 2023-09-13 Tentative Ruling
Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.
Case Number: 22STCV16593 Hearing Date: September 13, 2023 Dept: 52
Defendant Ateret
DiVeroli’s Demurrer to First Amended Complaint
Defendant
Ateret DiVeroli, co-executor of the estate of Yoav Botach, demurs to plaintiff
Jonathan Botach’s first amended complaint.
Uncertainty
Plaintiff’s first amended complaint is not
uncertain. “Demurrers for uncertainty are disfavored, and are granted only if the
pleading is so incomprehensible that a defendant cannot reasonably
respond.” (A.J. Fistes Corp. v. GDL
Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695, internal quotes
and alterations omitted.) The complaint
must sufficiently apprise defendants of the claims against them. (Ibid.)
Plaintiff’s amendments
cured the initial complaint’s uncertainty.
The first amended complaint may not be a model of clarity, but it now
labels its causes of action, including expressly alleging defendant breach
three separate contracts. (FAC, ¶¶ 8-10.) It suffices to apprise defendant of the
claims against her.
Statute of Limitations
Defendant
argues the statute of limitations bars all causes of action. A demurrer should be sustained where “the
complaint shows on its face that the statute [of limitations] bars the
action.” (E-Fab, Inc. v. Accountants,
Inc. Services (2007) 153 Cal.App.4th 1308, 1315.) “[T]he defect must clearly and
affirmatively appear on the face of the complaint; it is not enough that the
complaint shows merely that the action may be barred.” (Id. at p. 1316.) The court must determine which statute of
limitations applies and when the claim accrued.
(Ibid.)
a. Breach of Contract
The face of the
complaint does not establish that plaintiff’s entire cause of
action for breach of contract is untimely.
“A demurrer must dispose
of an entire cause of action to be sustained.”
(Fremont Indemnity Co. v. Fremont General Corp. (2007) 148
Cal.App.4th 97, 119.) An action for breach of a written contract
must be brought within four years. (CCP
§ 337(a).) Plaintiff filed this action
on May 19, 2022. A cause of action for
breach of written contract is therefore untimely if it accrued before May 19,
2018.
Plaintiff alleges four
written contracts: (1) an agreement executed in 2010 to pay plaintiff for
representing Yoav Botach in lawsuits in Israel (FAC, ¶ 5, Ex. 2); (2) a written
settlement agreement in 2012 (¶ 8, Ex. 4); (3) a written settlement agreement
in 2015 (¶ 9, Exs. 6-7), and (4) “the 2019 written agreement,” another
settlement between the two brothers (¶ 10).
Plaintiff’s action is timely as to
the first contract because, though the brothers entered this contract in 2010,
the claim for breach did not accrue until 2019.
In the first contract, Yoav Botach agreed to “pay Plaintiff 10% of all
moneys Plaintiff will save him in two lawsuits” in Israel. (FAC, ¶ 5.)
Plaintiff alleges that one of those two lawsuits only ended on November
17, 2019, “which is the first date at which Plaintiff’s right for the 10%
compensation materialized.” (Ibid.)
Plaintiff’s action is timely as to
the fourth contract. The parties only
entered that contract in 2019. A claim
for breach could not have accrued before then.
Because doing so would not dispose
of an entire cause of action, the court does not reach the issue of whether the
statute of limitations bars parts of this claim arising from the second and
third contracts.
b. Code of Civil Procedure section
366.2
Defendant argues all claims against
DiVeroli as personal representative of the estate of Yoav Botach are barred by
Code of Civil Procedure section 366.2.
An action against a decedent that did not expire before his death “may
be commenced within one year after the date of death, and the limitations
period that would have been applicable does not apply.” (Id., subd. (a).) But “[t]he filing of a” creditor’s claim or
petition against the estate “tolls the statute of limitations otherwise
applicable to the claim until allowance, approval, or rejection.” (Prob. Code, § 9352(a).)
Plaintiff alleges he timely filed
such a claim. Yoav Botach “passed away
in Los Angeles on 5/23/20.” (FAC, ¶
1.) The first amended complaint alleges,
“On 2/4/21 Plaintiff filed a creditor’s claim for $6,115,000 against Yoav’s
estate.” (¶ 33.) The claim was timely filed within one year of
Yoav Botach’s death.
c.
Other Causes of Action
Though
defendant purports to demur to all causes of action as untimely, this portion
of the demurrer only addresses breach of contract. (Demurrer, pp. 7-8.) The court therefore does not reach the issue
of whether plaintiff’s other causes of action are untimely.
General Release
Defendant
argues plaintiff released his claims for at least some causes of action via the
general release in the settlement agreement executed in 2015. (FAC, Ex. 6.)
The agreement provides: “Jonathan and Yoav, on behalf of themselves, their
successors, heirs, agents, attorneys and all persons acting by or through them
hereby generally release one another from any and all claims, charges,
understandings, lawsuits, liabilities, whether known or unknown, fixed or
contingent, past or present, which either of them may have against the other. … This
general release does not include the obligations of each party set forth in
this agreement. The parties expressly
waive the provisions of Civil Code section 1542.” (Ibid.)
At
this stage, the court cannot determine that this release includes the claims
plaintiff now brings—especially those that accrued four years later. When a release is ambiguous, “the scope of a
waiver of unknown claims is a question of fact.” (Butler v. Vons Companies, Inc. (2006)
140 Cal.App.4th 943, 950.) “[M]ere
recital, as in the release signed by plaintiffs, that the protection of Civil
Code, section 1542 is waived, or that the release covers unknown claims or
unknown parties is not controlling. Whether
the releaser intended to discharge such claims or parties is ultimately a
question of fact.” (Leaf v. City of
San Mateo (1980) 104 Cal.App.3d 398, 411.)
The release is ambiguous as to whether it released the claims plaintiff
now brings.
Compensation for Work as Unlicensed Attorney
Defendant
demurs to the entire complaint on the grounds that plaintiff claims
compensation for work as an unlicensed attorney. “No one may recover compensation for services
as an attorney at law in this State unless he was at the time the services were
performed a member of the State Bar.” (Hardy
v. San Fernando Valley Chamber of Commerce (1950) 99 Cal.App.2d 572, 576.)
Defendant does not establish that any entire cause
of action seeks compensation for the unauthorized practice of law. Defendant argues the “entirety of the alleged
money owed to [plaintiff] is based upon legal services he allegedly provided in
California as an unlicensed attorney.”
(Demurrer, p. 11.) But plaintiff’s
claims also arise from an agreement to pay him for legal services in Israel,
where he is a licensed attorney. (FAC, ¶
3.) When a contract to pay for legal
services includes fees generated in multiple jurisdictions, attorneys may
recover the portion of fees generated from practicing law where they are
licensed. (Birbrower, Montalbano,
Condon & Frank v. Superior Court (1998) 17 Cal.4th 119, 135-138.)
Plaintiff’s
claims also arise from agreements to settle numerous disputes. It is not clear from the face of the
complaint that these agreements settled only disputes regarding payment for
legal services in California.
2nd Through 6th Causes of Action
Defendant’s
demurrer does not specifically address plaintiff’s second, third, fourth,
fifth, or sixth causes of action. It
only groups them together in a section about claims against DiVeroli in her
individual capacity. (Demurrer, pp.
10-11.) This section does not address
the elements of any of these causes of action and cites no authority.
Defendant argues the first amended complaint does
not specifically allege what DiVeroli did.
It alleges DiVeroli “told her daughter Avigail to put a stop payment on
the check.” (¶ 20.) It further alleges, “Diveroli and her
siblings have been defaming plaintiff – to his family, associates, and the
general public – that Plaintiff is to blame for cancellation of the check.” (¶ 30.)
Moreover, when liberally construed, the plural “defendants” and “their” clearly
include Ateret DiVeroli, who is the only named defendant (in her capacity as an
individual and as a representative of the estate of Yoav Botach).
Defendant also argues plaintiff has no “proof” or
cannot “prove” various facts (Demurrer, pp. 11, 14), which is irrelevant on
demurrer. A demurrer “test[s] the legal sufficiency of a complaint.” (Donabedian v. Mercury Ins. Co. (2004)
116 Cal.App.4th 968, 994.) In ruling on a
demurrer, courts “assume that the complaint’s properly pleaded material
allegations are true.” (Moore v.
Regents of University of California (1990) 51 Cal.3d 120, 125.) At this stage, the court cannot consider whether
plaintiff will be able to prove his allegations.
With respect to tortious interference of contract, defendant
argues, “There is no explanation
how Ateret stopping a check could be a tort. Either Plaintiff is owed money under a
contract or he is not. If the money was not paid (because no check was issued
or because a check was stopped before it could cashed), Plaintiff’s remedy is
the same, a claim for breach of contract.”
(Demurrer, p. 11.) In substance,
defendant argues the well-established tort of intentional interference with
contract (see, e.g., Ixchel Pharma,
LLC v. Biogen, Inc. (2020) 9
Cal.5th 1130, 1141) should not be a
tort.
Disposition
Defendant Ateret DiVeroli’s demurrer
to plaintiff Jonathan Botach’s first amended complaint is overruled. Defendant is ordered to answer within
20 days.