Judge Gail Killefer, Case Number: 22STCV11122, Date: 2024-10-15 Tentative Ruling

OPPOSING PARTY: Plaintiff Robert Gentino, Trustee of the BN Family Trust dated June 5, 2000

TENTATIVE: Defendant Yaghoobia’s MJOP is denied. Defendant’s request for sanctions under CCP § 128.5 is also denied.

This action arises out of an ownership dispute concerning the real property located at 1901 E. Carson Street, Long Beach, CA (the “Subject Property”). On April 1, 2022, Robert Gentino, Trustee of the BN Family Trust Dated June, 5, 2000 (“Plaintiff Gentino”) filed a real property action against Bob Termechi (“Defendant Termechi”) and Bizhan Yaghoobia (“Defendant Yaghoobia”), and Does 1 to 100. The Complaint alleges four causes of action:

On August 22, 2023, Plaintiff dismissed the first and second causes of action alleged against Defendant Termechi and dismissed Termechi as a defendant.

On September 18, 2024, Defendant Yaghoobia filed a motion for judgment on the pleadings (“MJOP”). Plaintiff Gentino opposes 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.)¿¿

2) Exhibit B: Minute Order dated October 26, 2021, reflecting the Court dismissal of the action.

On May 16, 2018, Plaintiff Gentino filed a complaint in an underlying action entitled Robert Gentino, Trustee of BN Family Trust Dated June 5, 2000 v. Bob Termechi, et al. (LASC Case No. BC706408) (the “Underlying Action”). The Underlying Action sought to quiet title of the subject property located in Long Beach, CA, and brought claims of conversion and accounting against Defendant Yahoobia and partition against both Defendants Termechi and Yaghoobia. (See TAC filed 10/03/2019.) On December 13, 2019, the court sustained the demurrer to the conversion claim without leave to amend. (See 12/13/2019 Order (BC706408).)

On October 26, 2021, the court dismissed the partition action without prejudice and dismissed the action without prejudice, finding that Plaintiff Gentino had failed to establish an ownership interest in the Subject Property. (See 10/26/2021 Order (BC706408); Appeal Ruling dated 10/12/2023.)

On April 1, 2022, Plaintiff Gentino refiled this action. Defendant Yaghoobia now asserts that this action is barred by the doctrines of res judicata and collateral estoppel. Gentino asserts the action is not barred by res judicata or collateral estoppel because the dismissal was without prejudice.

“‘Dismissal with prejudice is determinative of the issues in the action and precludes the dismissing party from litigating those issues again.’ ” (Estate of Redfield (2011) 193 Cal.App.4th 1526, 1533.) “‘The statutory term ‘with prejudice’ clearly means the plaintiff's right of action is terminated and may not be revived.’ ” (Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 820–821.) “It is established in California that a voluntary dismissal without prejudice is not a judgment on the merits, and, as such, has no claim-preclusive effect upon a later suit.” (Gray v. La Salle Bank, N.A. (2023) 95 Cal.App.5th 932, 950 [italics original].) However, “a judgment based upon an involuntary dismissal will constitute a bar to the later suit if it is shown that ‘the judgment was given upon a consideration of the merits of the controversy.” (Id., [internal citation and quotation marks omitted].) “Thus, a judgment of dismissal is not deemed on the merits and has no claim-preclusive effect when the involuntary dismissal is, for example, based upon (1) a finding of laches [citation] ; (2) application of the statute of limitations [citation]; (3) absence of jurisdiction [citation]; (4) lack of prosecution; or (5) mootness and/or lack of ripeness of the issues [citation].” (Id., at 950, fn. 9.)

Plaintiff Gentino’s two-page opposition fails to address how the involuntary dismissal of the underlying action is not a judgment on the merits. Nevertheless, the court finds that the underlying action was not a determination on the merits because the court determined that Plaintiff failed to show that he had an ownership interest in the Subject Property, not that Plaintiff had no ownership interest. Bob Termechi is no longer a party to this action and the first and second causes of action alleged against him have been dismissed.

“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.) On August 24, 2018, Plaintiff Gentino and Termechi signed a Settlement Agreement that conferred onto Plaintiff a 50% ownership of the Subject Property. (Compl, ¶ 12, Ex. A.) Accordingly, as an owner of the Property, Plaintiff is entitled to seek partition. “A partition action may be commenced and maintained by any of the following persons: (1) A co-owner of personal property.” (CCP, ¶ 872.210(a).)

As to the third cause of action for breach of constructive trust, the Complaint alleges that from October 2014 to the present, Defendant Yaghoobia held income received from the Subject Property at a Chase Bank in constructive trust for the benefit of Plaintiff. (Compl., ¶¶ 19-23.) Defendant Yaghoobia wrongfully dispersed the income to himself without Plaintiff's consent. (Id., ¶¶ 21-23.) Consequently, “[a]n accounting is necessary from Yaghoobia to account for all Property income and expenses after September 28, 2014 to determine the amount due Plaintiff.” (Id., ¶ 25.)

Defendant Yaghoobia posits that Plaintiff Gentino did not have standing to demonstrate any ownership interest in the subject property before entering the settlement agreement, thereby making the settlement agreement unenforceable. On an MJOP, the court does not interpret documents. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114.) Gentino’s standing at the time the settlement agreement was signed is irrelevant because what matters is Termechi’s ownership interest and his right to transfer his ownership interest to Gentino. Yaghoobia does not assert that Termechi lacked an ownership interest in the Subject Property such that he had no ownership interest to transfer or confer to Plaintiff Gentino. Moreover, even if Yaghoobia asserted that Termechi had no ownership interest in the Subject Property, such an issue is a disputed fact not subject to adjudication at the pleading stage. “The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.” (Fremont, supra, 48 Cal.App.4th at p. 114.)

Defendant Yaghoobia further asserts that Plaintiff Gentino has no standing to bring this action because he has not demonstrated that he is a real party in interest.) “Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610; see also Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) Plaintiff Gentino need not prove at this stage of the pleadings that he does have an ownership interest in the subject property. It is sufficient that the Complaint alleges that Gentino has a 50% ownership interest by virtue of the settlement agreement with Termechi. (Compl., ¶ 12, Ex. A.)

As the Motion is without merit, the motion is denied. The court also denies Defendant Yaghoobia’s request for sanctions under CCP § 128.5.

Defendant Yaghoobia’s MJOP is denied. Defendant’s request for sanction under CCP § 1289.5 is also denied.

[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. The meet and confer requirement has been met. (Yaghoobia Decl,, ¶ 3 Ex. D.)