Judge Gail Killefer, Case Number: 22SMCV01737, Date: 2024-03-12 Tentative Ruling

TENTATIVE: Defendants’ motion for judgment on the pleadings is granted in part. The motion is granted as to Plaintiff Joseph Daneshard without leave to amend and denied as to Plaintiff Daneshard Law Firm, APC. Defendants to give notice.

On October 3, 2022, Joseph Daneshard and Daneshard Law Firm, APC (collectively “Plaintiffs”) filed a Complaint against Daniel Davidovitz; D and M General Constructor, Inc. (collectively “Defendants”); and Does 1 to 100.

The Complaint asserts five causes of action: (1) fraud by false promise, (2) fraud in the concealment, (3) fraud by intentional misrepresentation; (4) negligent misrepresentation, and (5) quantum meruit. The claims arise out of the legal services the Plaintiffs previously performed in representing Defendants.

On February 5, 2024, Defendants filed a Motion for Judgment on the Pleadings (“MJOP”). Plaintiffs oppose the Motion. The matter is now before the court.

motion for judgment on the pleadings[1]

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) “In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) When considering demurrers and judgment on the pleadings, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) A motion for judgment on the pleadings does not lie as to a portion of a cause of action. (Id.) “In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action.” (Gami v. Mullikin Medical Ctr. (1993) 18 Cal.App.4th 870, 876.) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.)¿¿

The Court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)

1) Exhibit “1” attached is the Complaint in the Low Numbered Case (Case No. 21STCV18885).

2) Exhibit “2” attached is the cross-complaint filed against parties other than Plaintiff in the Low Numbered Case (Case No. 21STCV18885).

3) Exhibit “3” attached is the Request for Dismissal with respect to the crosscomplaint filed the following day.

4) Exhibit “4” attached is the Complaint in the High Numbered Case (Case No. 22SMCV01737).

5) Exhibit “5” attached is Notice of Related Cases filed by Plaintiff Daneshard.

8) Exhibit “8” is the Docket from the Low Numbered Case (Case No. 21STCV18885).

In the underlying action, entitled D and M General Contractor, Inc. v. Joseph Daneshard (LASC Case No. 21STCV18885), Defendant D and M General Contractor, Inc. filed a Complaint against Plaintiff Joseph Daneshard for (1) professional negligence, (2) breach of contract, and (3) declaratory relief.

On May 30, 2023, Plaintiff Joseph Daneshard filed an Answer to the Complaint in the underlying action and filed a Cross-Complaint against Steven A. Morris, Jonathan M. Deer; Quantum Law Group, LLC, and Roes 1 to 10. The Cross-Complaint was dismissed on June 1, 2023. (RJN Ex. 2.)

Defendants assert that on October 3, 2022, Plaintiffs filed this action. On February 24, 2023, Judge Stephen Goorvitch ruled that the cases were related within the meaning of CRC, rule 3.3000(a), with the underlying action being the lead case. (RJN Ex. 6.) However, Plaintiff Daneshard filed a Peremptory Challenge of Judge Goorvitch. On March 22, 2023, Judge Michelle Williams found that the cases were not related and that the interests of justice were not served by reassigning the underlying action to a new Judicial Officer, such that the court determined that the underlying action should no longer be related. (RJN Ex. 7.)

Defendants maintain that this action is related to the underlying action because the dispute is related to the alleged legal fees owed to Plaintiffs in the underlying action. Accordingly, Defendants assert that this action is barred by the compulsory cross-complaint statute because Plaintiffs failed to assert their current claims by failing a cross-complaint in the underlying action.

(a) Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.

(1) The court in which the action is pending does not have jurisdiction to render a personal judgment against the person who failed to plead the related cause of action.

(2) The person who failed to plead the related cause of action did not file an answer to the complaint against him.

“The compulsory cross-complaint statute is designed to prevent ‘piecemeal litigation.’” (Wittenberg v. Bornstein (2020) 51 Cal.App.5th 556, 564.) “Thus, a party cannot by negligence or design withhold issues and litigate them in successive actions; he may not split his demands or defenses; he may not submit his case in piecemeal fashion.” (Id. at p. 564.) “The statute is to be liberally construed to advance its purpose.” (Heshejin v. Rostami (2020) 54 Cal.App.5th 984, 993.)

Plaintiffs assert that they could not file a cross-complaint in the underlying action because Plaintiff Daneshard’s professional corporation, Plaintiff Daneshard Law Firm, APC was not named as a Defendant in the underlying action, only Plaintiff Daneshard individually. Defendants do not dispute this assertion but instead assert that Plaintiff Daneshard Law Firm, APC could have filed a Cross-Complaint.

The court finds that the language of CCP § 426.30 is clear in that the compulsory cross-complaint statute “does not apply” when the “person who failed to plead the related cause of action did not file an answer to the complaint against him.” (CCP § 426.30(b)(2).) The CCP defines “Person” to include “a corporation as well as a natural person.” (CCP § 17(b)(6).) Therefore, for section 426.30 to apply, Plaintiff Daneshard Law Firm, APC had to have been a person who filed an answer in the underlying action but failed to allege a cross-complaint at the time the answer was filed. (See Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 970 [“‘Only related causes of action that exist at the time of service of the answer to the complaint on the particular plaintiff are affected by Section 426.30’”]; see also AL Holding Co. v. O'Brien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, 1313–1314 [accord].)

“Section 426.30 does not apply if the court in which the action is pending does not have jurisdiction to enter a personal judgment against the person who failed to plead the cause of action (§ 426.30, subd. (b)(1)) or the person who failed to plead the related cause of action did not answer the complaint (id. subd.(b)(2)).” (Chao Fu, Inc. v. Chen (2012) 206 Cal.App.4th 48, 56 [italics added].) While section 426.30 bars Plaintiff Joseph Daneshard’s claims because he filed an answer in the underlying action but failed to plead this related action, it does not bar Plaintiff Daneshard Law Firm, APC claims because the latter was not a party against whom a complaint was filed in the underlying action.

Defendants fail to show that the exception to section 426.30 does not apply to Plaintiff Daneshard Law Firm, APC such that its claims against Defendants are barred. Accordingly, the Motion is granted in part as to Plaintiff Joseph Daneshard without leave to amend and denied as to Plaintiff Daneshard Law Firm, APC.

Defendants’ motion for judgment on the pleadings is granted in part. The motion is granted as to Plaintiff Joseph Daneshard without leave to amend and denied as to Plaintiff Daneshard Law Firm, APC. Defendants to give notice.

[1] CCP § 439 requires the moving party to meet and confer in person or by telephone with the party who filed the pleading before filing a motion for judgment on the pleadings. Defense counsel asserts he tried to meet and confer with Plaintiffs before filing this action, therefore the meet and confer requirement has been met. (Morris Decl. ¶ 10.)