Judge: Lynne M. Hobbs, Case: 23TCV24400, Date: 2024-10-17 Tentative Ruling

Case Number: 23TCV24400    Hearing Date: October 17, 2024    Dept: 61

ZOLETA FRISON-RANDLER vs MOHAMED ELSHAHAT MOHAMED ABOSELIM

TENTATIVE

Defendant Mohamed Aboselim’s Demurrer and Motion to Dismiss the Complaint are OVERRULED and DENIED.

Plaintiff to give notice. 

DISCUSSION

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“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.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendant Mohamed Aboselim (Defendant) demurrers and moves to dismiss the Complaint filed by Plaintiff Zoleta Frison-Randler (Plaintiff) on the grounds that Plaintiff lacks standing to prosecute the agreement because it was determined in a prior adjudication that Plaintiff had assigned her interest in the agreement to one Bobby Gossai. (Demurrer at pp. 4–5.)

Defendant’s argument is flawed, because no adjudication occurred as he describes. The prior case, Gossai v. Frison-Randler, LASC Case No. 21STCV19414, involved allegations that Gossai had been assigned Frison-Randler’s interest in the present agreement with Aboselim. But Gossai’s claims were dismissed based on his failure to obey the court’s pretrial orders. (See 21STCV19414 8/5/2024 Appellate Opinion.) There was thus no final decision on the merits in the prior action that would have settled the existence or validity of the assignment that Defendant now relies upon. (See Williams v. Doctors Medical Center of Modesto, Inc. (2024) 100 Cal.App.5th 1117, 1131 [describing elements of issue preclusion.)

Defendant argues in demurrer that Plaintiff’s breach of contract is ill-pleaded, but identifies no basis for this argument. (Demurrer at pp. 5–6.) In the motion to dismiss, Defendant argues that this court lacks jurisdiction, but once again in reliance on the prior proceeding discussed above. (Motion at pp. 4–6.) Defendant argues that his indebtedness has also been assigned to Gossai. (Motion at pp. 6–7.) But such an argument is based on matters outside the pleadings inappropriate for resolution on pleadings-based motions such as Defendant brings here.

The demurrer and motion to dismiss are therefore OVERRULED and DENIED.