Judge Joel R Wohlfeil, Case 37-2023-00009531-CU-MC-CTL 2023-10-13 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2023-00009531-CU-MC-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 09, 2023

10/13/2023 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited Misc Complaints - Other Demurrer / Motion to Strike 37-2023-00009531-CU-MC-CTL HAKAKHA VS NOBEL [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 08/28/2023

1. The special and general Demurrer (ROA # 28) of Mahin Nobel, as Co-Trustee of the Nobel Family Trust under that certain Declaration of Trust dated February 18, 1998 (the 'Trust'), and as Successor-inInterest of John Iradj Nobel, Deceased, Melody Abeles, as Co-Trustee of the Trust, Melissa Galicot, as Co-Trustee of the Trust, and JN Financial Services, Inc. (collectively 'Defendants') to the First Amended Complaint ('FAC') by Parviz Hakakha ('Parviz') and Judy Hakakha ('Judy') (together 'Plaintiffs'), is OVERRULED IN PART and SUSTAINED IN PART.

The Request (ROA # 30) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of the date only on which Exh. '1' was filed with the Court and all of Exh's '2 and 3;' otherwise, the Request is DENIED.

The special Demurrer is OVERRULED to each of the disputed causes of action.

The general Demurrer is OVERRULED to causes of action 2 and 6, and is SUSTAINED to causes of action 3 - 5.

Plaintiff is permitted leave to file and serve a Second Amended Complaint within 20 days of this hearing.

This ruling is premised on the analysis set forth below: Special Demurrer: Misjoinder of Parties A pleading is subject to special demurrer when '[t]here is a defect or misjoinder of parties.' Code Civ.

Proc. 430.10(d).

A demurrer on this ground lies only where it appears from the face of the complaint (or matters judicially noticed) that: (1) some third person is a necessary or indispensable party to the action and must be joined before the action may proceed (defect/nonjoinder); or (2) Plaintiffs lack sufficient unity of interest or there is no common question of law or fact as to the defendants (misjoinder). Edmon & Karnow, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2023) at ¶¶ 7:78, 7:79 and 7:80.

Defendants argue the FAC improperly fails to name 'John's estate' as a party. However, Defendants do not explain why this action cannot proceed as against them without first joining 'John's estate' into this action. Defendants do not cite any allegations within the FAC disclosing this defect as a bar to this action. Defendants do not explain why 'John's estate' cannot be sued in a cross-action for indemnity if Calendar No.: Event ID: TENTATIVE RULINGS

3012714 CASE NUMBER: CASE TITLE: HAKAKHA VS NOBEL [IMAGED] 37-2023-00009531-CU-MC-CTL in fact it is the party that bears responsibility for the alleged wrongdoing. This special Demurrer is not persuaisve.

Special Demurrer: Uncertainty A pleading is subject to special demurrer when it is 'uncertain, which includes ambiguous and unintelligible.' Code Civ. Proc. 430.10(f).

A demurrer for uncertainty is disfavored, and is granted only if the pleading is so incomprehensible that Defendant cannot reasonably respond. A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal. App. 5th 677, 695.

A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. Id. Although some of the allegations may be vague or conclusory, none of the causes of action are fatally ambiguous, unintelligible or incomprehensible. This special Demurrer is not persuasive.

The Notice of Motion sets forth only a special demurrer for uncertainty as directed at causes of action 7 and 8, the fraud claims. The argument that these causes of action fail to allege specific facts supporting each element of fraud (see Lazar v. Superior Court (1996) 12 Cal. 4th 631, 645) is surplusage because a general Demurrer has not been asserted.

General Demurrer Based on Affirmative Defense of Laches Whether Plaintiffs failed to timely assert some or all of the causes of action, and whether this delay caused prejudice to Defendants are questions of fact that cannot be adjudicated via this Demurrer.

General Demurrer: 2nd COA -- Accounting Except for the laches defense (see above), Defendants offer no other argument in support of the general Demurrer to this cause of action. Thus, the general Demurrer is overruled.

General Demurrer: 3rd COA -- Breach of Written Contract Paragraph 14 of the FAC alleges as follows: 'After the meeting with Mr. Nobel Defendants provided a written document entitled 'Summary for owner Distribution 2012 - 2018 setting forth the distributions of income from the Properties to Plaintiffs and to the Nobel Trust during the referenced period (the 'Summary'). The Summary also set forth the amount of rents and profits which was due to plaintiffs at that time, and acknowledged the promise to make payment of that amount to plaintiffs. A true and correct copy of the Summary is attached to this complaint as Exhibit 1 and by this reference incorporated herein.' The document attached to the FAC as 'Exhibit 1' is a spreadsheet setting forth columns of numbers.

There is not language within this document reciting the terms of an agreement, and it is not signed or acknowledged by any person or entity.

Paragraph 35 within this cause of action alleges: 'Plaintiffs have performed all of the conditions, covenants and obligations required to be performed on their part under the Summary.' Paragraph 36 alleges: 'Defendants Mehin Nobel, Melody Abeles, and Melissa Galicot have breached the Summary by failing to pay all sums due under the Summary.' However, the attached document does not set forth any conditions, covenants, obligations or 'sums due.' It instead is limited to listing income, expenses and distributions for each of the three properties. This document does not recite the terms of an offer, acceptance or consideration, which are required in order for a document to be Calendar No.: Event ID: TENTATIVE RULINGS

3012714 CASE NUMBER: CASE TITLE: HAKAKHA VS NOBEL [IMAGED] 37-2023-00009531-CU-MC-CTL enforced as a contract.

The general Demurrer is sustained on this basis with leave to amend to allege additional writings or oral statements, if possible. Given this ruling, the Court does not rule on whether the applicable limitations period bars this cause of action.

General Demurrer: 4th COA -- Book Account 'A book account is defined as a detailed statement, kept in a book, in the nature of debit and credit, arising out of contract or some fiduciary relation .... A necessary element is that the book shall show against whom and in whose favor the charges are made.' Biltmore Press v. Usadel (1970) 6 Cal. App. 3d 896, 900 (internal citations omitted).

This cause of action incorporates and relies on the preliminary allegations regarding the existence of the 'Summary for owner Distribution 2012 - 2018.' However, this spreadsheet does not constitute an account book stating a list of debits and credits arising out of some kind of fiduciary relation (e.g., vendor / customer).

The general Demurrer is sustained on this basis with leave to amend. Given this ruling, the Court does not rule on whether the applicable limitations period bars this cause of action.

General Demurrer: 5th COA -- Account Stated An account stated is a written document which exhibits the state of account between parties and the balance owing one to the other; and when assented to, either expressly or impliedly, it becomes a new contract. Id. This cause of action also incorporates and relies on the preliminary allegations regarding the existence of the 'Summary for owner Distribution 2012 - 2018.' However, this spreadsheet does not exhibit a statement of the account between parties and the balance owing one to the other.

The general Demurrer is sustained on this basis with leave to amend. Given this ruling, the Court does not rule on whether the applicable limitations period bars this cause of action.

General Demurrer: 6th COA -- Money Had and Received Paragraph 46 within this cause of action alleges: '... [D]efendants Mahin Nobel, Melody Abeles, and Melissa Galicot, and/or their predecessor trustee of the Nobel Trust, became indebted to plaintiffs in the sum of $1,322,608.81 for money had and received by said defendants for the use and benefit of plaintiffs.' Although this cause of action also incorporates the preliminary allegations, it does not necessarily rely on the existence of a written document. This cause of action sufficiently pleads the existence of an indebtedness. Facts are not alleged as to when this indebtedness occurred or became known to Plaintiffs. As a result, whether this cause of action is time barred is a question of fact that cannot be determined via this Demurrer. The general Demurrer is overruled on this basis.

_____ 2. The Motion (ROA # 33) of Mahin Nobel, as Co-Trustee of the Nobel Family Trust under that certain Declaration of Trust dated February 18, 1998 (the 'Trust'), and as Successor-inInterest of John Iradj Nobel, Deceased, Melody Abeles, as Co-Trustee of the Trust, Melissa Galicot, as Co-Trustee of the Trust, and JN Financial Services, Inc. (collectively 'Defendants') to strike portions of the First Amended Calendar No.: Event ID: TENTATIVE RULINGS

3012714 CASE NUMBER: CASE TITLE: HAKAKHA VS NOBEL [IMAGED] 37-2023-00009531-CU-MC-CTL Complaint ('FAC') by Parviz Hakakha ('Parviz') and Judy Hakakha ('Judy') (together 'Plaintiffs'), is DENIED.

A properly pled fraud claim will itself support recovery of punitive damages. No allegations of 'malice' or intent to injure Plaintiff are required because fraud is an alternative and independent basis for recovery.

See Civ. Code 3294(a); Stevens v. Superior Court (1986) 180 Cal. App. 3d 605, 610; and Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal. App. 3d 1220, 1239.

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