Judge: David Sotelo, Case: 21STCV12559, Date: 2022-08-25 Tentative Ruling

Case Number: 21STCV12559    Hearing Date: August 25, 2022    Dept: 40

MOVING PARTY:               Defendants Atlantic Park Plaza, LLC.,

                                                Yehezkel Hezi Kashanian, and

Javid Somekh

Plaintiffs Mehran Haghani and Khanoum Agha Akhavan sue Defendants Atlantic Park Plaza, LLC (“Park Plaza”), Yehezkel Hezi Kashanian, and Javid Somekh (all three together as “Defendants”) based on common ownership of commercial real property by the parties and subsequent divestment of Plaintiffs’ ownership interests by the Defendants through fraudulent misrepresentations, in violation of written and verbal contractual agreements between the parties, and without compensation to Plaintiffs.

On October 21, 2021, Defendants filed demurrer to all five causes of action in the Plaintiffs First Amended Complaint (“FAC”) on grounds of uncertainty and lack of sufficiency in pleading. The Court overruled this demurrer in full on April 19, 2022 and ordered Defendants to Answer within 45 days. Defendants answered on June 23, 2022 (10 days late).

Now before the Court is a second Demurrer, filed on May 27, 2022 by Defendants also against the FAC’s, but now only as to the first two causes of action on the grounds that the claims are uncertainly pleaded because (1) they fail to allege the consideration and meeting of the minds necessary to support these contract-based claims, and (2) because the Statute of Frauds is violated by the lack of signatures in the Promissory Note supporting the FAC’s first two claims (Exhibit C to the FAC) and by the claims’ failure to plead that the parties performed their contractual duties within the one year term for performance included in the Note. (These grounds for demur were not stated in the October 2021 Demurrer.)

This Demurrer appears unopposed by the Plaintiffs.

The Court finds that this Demurrer has been WAIVED by Park Plaza—first, by failing to include the special demur grounds in the October 21, 2021 Demurrer, and then by filing an Answer to the FAC on June 23, 2022—and this Demurrer is otherwise UNTIMELY pursuant to Code of Civil Procedure section 430.40, subdivision (a)—permitting 30 days only to demur to a complaint.

Demurrer: WAIVED.

Analysis: First, the Court finds that Defendant’s new grounds for a special demurrer pursuant to Code of Civil Procedure section 430.10 subdivision (f)—uncertain pleading as to consideration and meeting of the minds for contract purposes, as well as violation of the statute of frauds through lack of signatures and stated performance, thus defeating the FAC’s first and second causes of action (Demurrer 3:17-4:8, 4:9-22)—were waived for demurrer purposes because these grounds were not included in the October 21, 2021 Demurrer to the FAC filed by Defendants. (Collins v. Rocha (1972) 7 Cal.3d 232, 239 [When a “[d]efendant fail[s] to raise [uncertainty] grounds by special demurrer[,] … [he or she] must be deemed to have waived any defect in this regard”]; but see Code Civ. Proc., § 430.80, subd. (a) [defendant waives ground for objection to complaint only if not stated in demurrer or answer]; Answer, 2:24-26 [Seventh Affirmative Defense for Lack of Consideration, but no meeting of the minds defense generally], 3:12-14 [Eleventh Affirmative Defense for Statute of Frauds].)

Second, the Court directs Defendants to Code of Civil Procedure section 430.40, subdivision (a), limiting defendant’s time to demur to a complaint or cross-complaint within 30 days after service of the complaint or cross-complaint. (Code Civ. Proc., § 430.40, subd. (a).) Here, even if Defendants were allowed to take a second bite at the FAC on special demur grounds, the FAC was filed on September 21, 2021, making the October 21, 2021 Demurrer to the FAC by Park Plaza, Kashanian, and Somekh timely, but leaving the May 27, 2022 Demurrer made by Park Plaza significantly outside of the permissible statutory timeframe of 30 days from September 21, 2021.

Third, the filing of an answer without disposition as to a demurrer constitutes an abandonment or waiver of the demur. (See, e.g., Minehan v. Silveria (1933) 131 Cal.App. 317, 319 [Co-partners that filed answer before disposition on a joint demurrer abandoned or waived the demurrer, but a co-defendant that failed to join that answer did not similarly abandon or waive the joint demurrer]; see also Guillory v. Godfrey (1955) 134 Cal.App.2d 628, 634 [Objections stated in sustained special demurrer are waived “[b]y answering the complaint after the ruling upon the special demurrer … except [for] the general ground of no cause of action”].) Here, Defendants filed a joint Answer with Kashanian and Somekh on June 23, 2022, thus providing a second ground for waiver of the grounds stated in the May 27th Demurrer. (See Answer generally.)

Fourth, the Court notes that it did not err by ordering Defendants to file an answer within 45 days of the April 19, 2022 Order. (Apr. 19 Minute Order, p. 9; see Jun. 21 Nejadpour Decl., ¶¶ 3-6.) California Rules of Court, rule 3.1320 provides that, unless otherwise provided by the court [as was the case here], a defendant must answer or otherwise plead to the complaint or the remaining causes of action within 10 days [cf. 45 days] of (1) a court order overruling a demurrer [as was the case here], (2) the expiration of the time to amend if the demurrer was sustained with leave to amend, or (3) the sustaining of the demurrer if the demurrer was sustained without leave to amend. (Cal. Rules of Court, rule 3.1320, subds. (j)(1)-(3).)

Finally, Defendants incorrectly cite to Butenschoen v. Flaker (2017) 16 Cal.App.5th Supp. 10 because that unlawful detainer case contemplated whether a trial court erred in restricting the defendant’s ability to file a demurrer (as opposed to just an answer against the operative complaint) after the trial court had denied a motion to quash summons on the complaint, circumstances completely differing from Defendants here failing to include a ground for special demur in the October 21, 2021 Demurrer to the FAC.

Conclusion

Defendants’ second Demurrer to the First Amended Complaint is WAIVED because (1) Defendants each failed to include new grounds for demur—uncertain pleading in the FAC’s first two causes of action as to (i) consideration and meeting of the minds and (ii) signatures and time of performance pursuant to a Promissory Note and the Statute of Frauds—in the original October 21, 2021 general and special demurrer to the FAC, and (2) Defendants each filed an Answer on June 23, 2022, thereby abandoning or waiving any Demurrer at issue.

Even if Defendants had not so waived grounds for demur, the Demurrer before the Court was filed on May 27, 2022, significantly after the permissible statutory of 30 days permitted by Code of Civil Procedure section 430.40, subdivision (a), and the Plaintiff’s filing of the Complaint on September 21, 2021.