Judge: John J. Kralik, Case: 21BBCV00189, Date: 2022-07-29 Tentative Ruling
Case Number: 21BBCV00189 Hearing Date: July 29, 2022 Dept: NCB
North Central District
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hitech imaging trade, inc., Plaintiff, v. aram g. construction, et al., Defendants. |
Case
No.: 21BBCV00189 Hearing Date: July 29, 2022 [TENTATIVE]
order RE: demurrer; motion to strike |
BACKGROUND
A.
Allegations
Plaintiff Hitech Imaging Trade, Inc.
(“Plaintiff” or “Hitech”) alleges that in 2018, Plaintiff was involved in a
construction project located at 16549 Beaver Road, Adelanto, California, which
required, among other things, electrical distribution lines to be laid. Plaintiff alleges that it entered into an
oral agreement with Defendant Aram G. Construction (“AGC”) in November 2018,
wherein Plaintiff would pay AGC $110,000 to excavate areas of a roadway and lay
electrical pipes and conduits in accordance with diagrams provided/prepared by
Southern California Edison (“SCE”). This
project was to be completed within 3 months of the date of the agreement. Plaintiff alleges that Defendants AGC and
Aram Madzhinyan (“Madzhinyan”) breached the agreement by failing to complete
the work and that after being paid approximately $80,000, AGC abandoned the
project on March 25, 2019.
The complaint, filed March 3, 2021, alleges
causes of action for: (1) breach of oral contract; (2) money had and received;
(3) conversion; (4) unjust enrichment; (5) accounting; and (6) payment of
contractor’s license bond.
On October 12, 2021, Plaintiff dismissed with
prejudice Western Surety Group only.
On April 29, 2022, AGC and Madzhinyan filed a
cross-complaint against Hitech, Grigor Kemdjian, and Mesrop Khoudagoulian for:
(1) fraud and intentional deceit; (2) negligent misrepresentation; (3) breach
of oral contract; (4) conspiracy to defraud; (5) civil assault; and (6) civil
battery.
B. Motions on Calendar
On May 27, 2022, Cross-Defendant
Khoudagoulian filed a demurrer to the cross-complaint. Concurrently, Cross Defendants Khoudagoulian
and Hitech filed a motion to strike portions of the cross-complaint.
On July 15, 2022, AGC and
Madzhinyan filed an opposition to the demurrer.
On July 22, 2022, Khoudagoulian
filed a reply brief.
DISCUSSION RE DEMURRER
Khoudagoulian demurs to the 5th cause of action for civil
assault and 6th cause of action for battery in the cross-complaint,
arguing that both causes of action are barred by the 2-year statute of
limitations.
The statute of limitations for an “action for assault, battery, or injury to,
or for the death of, an individual caused by the wrongful act or neglect of
another” is 2 years. (CCP § 335.1.)
In the 5th cause of
action, Cross-Complainants allege that in late-2018 or early-2019, after the
parties’ efforts to resolve the dispute failed, Kemdjian and Khoudagoulian
intentionally threatened to strike and push Madzhinyan at Madzhinyan’s home and
“did so raise his open hands and lunge at Mr. Madzhinyan in such a manner so as
to cause Mr. Madzhinyan to reasonably believe he was about to be struck in a
harmful and offensive manner.” (XC,
¶71.) Cross-Complainants allege they did
not consent to the threatened conduct, Madzhinyan felt imminent apprehension,
and thereby Madzhinyan suffered serious and permanent injuries. (Id., ¶¶72-74.)
In the 6th cause of
action, Cross-Complainants allege that Kemdjian and Khoudagoulian presented
themselves at Madzhinyan’s home and recklessly did acts that resulted in
offensive conduct with Madzhinyan’s person.
(XC, ¶77.) They allege that the
acts were done with the intent to cause harmful or offensive conduct with
Madzhinyan’s body. (Id., ¶78.) Cross-Complainants allege that they did not
consent to the threatened conduct and that Madzhinyan was injured as a
result. (Id., ¶¶78-80.)
The cross-complaint was filed on
April 29, 2022. According to the
allegations of the cross-complaint, the alleged assault and battery occurred
sometime in late-2018 or early-2019.
Even taking the latest “early-2019” date, the causes of action would be
untimely, as the cross-complaint causes of action for assault and battery
against Khoudagoulian would have needed to be filed by “early-2021.” No specific date is provided to determine the
actual date of the assault or battery.
“Ordinarily
the statute of limitations will bar a cross-complaint in the same fashion as if
the defendant had brought an independent action, unless the original complaint
was filed before the statute of limitations on the cross-complaint had elapsed.” (Liberty
Mut. Ins. Co. v. Fales (1973) 8
Cal.3d 712, 715 fn.4.) The Court
of Appeal in Boyer v. Jensen (2005) 129 Cal.App.4th 62 further elaborated on the
rule:
The principle
underlying the rule is that “ ‘ “the plaintiff has [by filing the
complaint] thereby waived the [statute of limitations] claim and permitted the
defendant to make all proper defenses to the cause of action pleaded.” ’ ” (Id. at
pp. 714–715, 244 Cal.Rptr. 31, quoting Trindade v. Superior Court (1973)
29 Cal.App.3d 857, 859–860, 106 Cal.Rptr. 48, italics added.) Since new parties
cannot be said to have engaged in any sort of waiver, the rule does not apply
to them. (See, e.g., Trindade v. Superior Court, supra, at pp.
859–860, 106 Cal.Rptr. 48 [“As to cross-actions against ... codefendants
or new parties it has regularly been held that the statute of limitations is
not tolled by the commencement of the plaintiff's action. (Citations.)”].) The
rationale for this distinction was discussed in Western
etc. Co. v. Tuolumne etc. Corp. (1944) 63 Cal.App.2d 21, 31, 146
P.2d 61, where the court stated: “The principle underlying the rule that a
statute of limitations is suspended by the filing of the original complaint is
that the plaintiff has thereby waived the claim and permitted the defendant to
make all proper defenses to the cause of action pleaded. But, where the
controversy is limited to cross-defendants, none of whom has done any act in
the nature of a waiver the reason for the rule does not exist.”
(Boyer,
supra, 129 Cal.App.4th at 70.)
Khoudagoulian is a new party to the
action and was only made a party upon the filing of the cross-complaint. Hitech is the only named plaintiff in the
action and Khoudagoulian is not a party-defendant (or plaintiff) in the initial
complaint. The first time Khoudagoulian
is brought into the lawsuit is through AGC and Madzhinyan’s cross-complaint. In opposition, Cross-Complainants argue that
Kemdjian and Khoudagoulian are shareholders of Hitech, have a unity of interest
with Hitech, and therefore have privity with Hitech, such that they are not
“new” parties to this action. (See XC,
¶¶11, 28, 45.) However, the initial complaint
involves allegations regarding the construction project and, unlike the
cross-complaint, does not involve allegations of liability or personal injury
between individual persons. Based on the
allegations of the complaint and the cross-complaint, the Court finds that the
cross-complaint does not relate back to the date of the filing of the complaint
(i.e., March 3, 2021).
The demurrer to the 5th
and 6th causes of action against Khoudagoulian is sustained. It appears unlikely that these causes of
action can be amended in light of the inapplicability of the relation-back
doctrine. However, as this is the first
attempt at the pleading, the Court will hear argument and determine at the
hearing whether amendment is possible.
DISCUSSION RE MOTION TO STRIKE
CCP § 1021 states that attorney’s
fees are recoverable if allowed under statute and/or by agreement.
Cross-Defendants Hitech and Khoudagoulian move to strike Item 3 from
the prayer for relief under the 1st, 2nd, 5th,
7th, and 8th causes of action, which reads: “For
reasonable attorney’s fees.” The Court
notes that the motion to strike is not opposed. Cross-Defendants argue that Cross-Complainants
have not references a written contract or statutory basis for the recovery of
attorney’s fees. The Court has reviewed
the cross-complaint and notes that the only mention of fees is in the prayer
for relief.
As such, the motion to strike the
allegations for attorney’s fees is granted.
As Cross-Complainants have not filed an opposition to the motion to
strike, it appears that they are conceding that they lack facts to cure this
defect. As such, leave to amend shall
not be granted.
CONCLUSION AND ORDER
Cross-Defendant Mesrop Khoudagoulian’s demurrer to the 5th
and 6th causes of action in the cross-complaint is sustained. It appears unlikely that these causes of
action can be amended in light of the inapplicability of the relation-back
doctrine. However, as this is the first
attempt at the pleading, the Court will determine at the hearing whether
amendment is possible. If the parties
submit on the tentative order, the Court will sustain the demurrer to the 5th
and 6th causes of action without leave to amend as to
Cross-Defendant Mesrop Khoudagoulian.
Cross-Defendants Mesrop Khoudagoulian and Hitech Imaging Trade, Inc.’s
motion to strike portions of the cross-complaint regarding attorney’s fees is
granted without leave to amend.
Cross-Defendants shall provide notice of this order.