Judge: Michael P. Linfield, Case: 19STCV28320, Date: 2023-02-15 Tentative Ruling
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Case Number: 19STCV28320 Hearing Date: February 15, 2023 Dept: 34
SUBJECT: Demurrer to the Verified Second Amended
Complaint
Moving Party: Defendants/Cross-Defendants Mihran Yenokyan
and Azniv Hanesgohlian
Resp. Party: None
SUBJECT: Demurrer to the Verified
Cross-Complaint
Moving Party: Defendants/Cross-Defendants Mihran Yenokyan
and Azniv Hanesgohlian
Resp. Party: None
Defendants/Cross-Defendants’ Demurrer to the Verified Second
Amended Complaint is OVERRULED.
Defendants/Cross-Defendants’ Demurrer to the Verified
Cross-Complaint is OVERRULED.
PRELIMINARY COMMENTS:
This demurrer is unopposed; the
Court finds such silence to be troubling.
Although it has considered Plaintiff’s “Notice of Previous Filing,” such
a notice is not sufficient.
BACKGROUND:
On November 6, 2019,
Plaintiff filed its Verified First Amended Complaint. Beginning with this
complaint, the “Plaintiff” is Jeffrey Siegel, who is suing in three different
capacities.
On February 6, 2020,
Plaintiff filed his Verified Second Amended Complaint.
On March 6, 2020,
Defendants Mihran Yenokyan and Azniv Hanesgohlian (in both of their respective
capacities) filed their Demurrer to the Verified Second Amended Complaint.
On March 10, 2020,
Defendant Nasrin Shakeri Nino (in both of her capacities) filed her Verified
Answer to the Verified Second Amended Complaint.
On March 20, 2020,
Defendants/Cross-Complainants Nasrin Shakeri Nino (in both of her capacities)
and Nasrin Nino filed their Verified Cross-Complaint against Cross-Defendants
Mihran Yenokyan and Azniv Hanesoghlian (in both of their respective
capacities).
On April 3, 2020,
Defendants/Cross-Defendants Mihran Yenokyan and Azniv Hanesgohlian (in both of
their respective capacities) filed their Demurrer to the Verified
Cross-Complaint.
On April 28, 2020,
Defendant/Cross-Complainant Nasrin Shakeri Nino filed her Notice of Stay of
Proceedings due to pending bankruptcy proceedings.
On July 13, 2020, the
Court issued an order staying this civil case (case number 19STCV28320) in its
entirety due to Defendant/Cross-Complainant Nasrin Shakeri Nino’s bankruptcy.
On January 11, 2021,
by request of Plaintiff, the Clerk’s Office dismissed without prejudice Jasmine
Antone Nino and Rami Antone Nino from the Verified Second Amended Complaint.
On May 9, 2022, by
request of Plaintiff, the Clerk’s Office dismissed with prejudice Kamal Antoine
Bilal, Antoine Kamel Bilal, Westco Petroleum Distributors, Inc., and Westco
Petroleum, Inc. from the Verified Second Amended Complaint.
On October 7, 2022,
the Court lifted the stay on the case in its entirety.
On February 9, 2023,
Plaintiff filed its Notice of Previous Filing.
ANALYSIS:
I.
Legal
Standard
A demurrer is a pleading used to
test the legal sufficiency of other pleadings. It raises issues of law, not
fact, regarding the form or content of the opposing party’s pleading. It is not
the function of the demurrer to challenge the truthfulness of the complaint;
and for the purpose of the ruling on the demurrer, all facts pleaded in the
complaint are assumed to be true, however improbable they may be. (Code Civ.
Proc., §§ 422.10, 589.)
A demurrer can be used only to
challenge defects that appear on the face of the pleading under attack; or from
matters outside the pleading that are judicially noticeable. (Blank v.
Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered
(i.e., no “speaking demurrers”). A demurrer is brought under Code of Civil
Procedure section 430.10 (grounds), section 430.30 (as to any matter on its
face or from which judicial notice may be taken), and section 430.50(a) (can be
taken to the entire complaint or any cause of action within).
A demurrer may be brought under
Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts
are stated to support the cause of action asserted. A demurrer for uncertainty (Code of Civil Procedure section
430.10, subdivision (f)), is disfavored and will only be sustained where the
pleading is so bad that defendant cannot reasonably respond—i.e., cannot
reasonably determine what issues must be admitted or denied, or what counts or
claims are directed against him/her. (Khoury v. Maly's of Calif., Inc.
(1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat
vague, “ambiguities can be clarified under modern discovery procedures.” (Id.)
II.
Discussion
A. Demurrer
to the Verified Second Amended Complaint
Defendants/Cross-Defendants demur as to the tenth cause of
action (for partition between tenants in common) and the eleventh cause of
action (for accounting of rents, issues, and profits) on the grounds that: (1)
Plaintiff does not have the legal capacity to sue; (2) Plaintiff lacks standing
to sue; (3) there is a misjoinder of and/or failure to join necessary parties;
(4) that the Verified Second Amended Complaint does not state facts sufficient
to constitute a cause of action; and (5) that the Verified Second Amended
Complaint is ambiguous, unintelligible, and uncertain. (Demurrer to the
Verified Second Amended Complaint, p. 4:3–8.)
In lieu of filing an opposition, Plaintiff filed his Notice
of Previous Filing. Plaintiff notices his Opposition to the Demurrer to the
Verified First Amended Complaint. On the one hand, this Opposition would seem
inappropriate as there is a more recent amended pleading. On the other hand,
Defendants/Cross-Defendants’ Demurrer to the Verified Second Amended Complaint
repeats multiple arguments that were rejected in the earlier demurrer. The
Court considers Plaintiff’s earlier Opposition to the extent it is appliable to
the current Demurrer.
Notably, the Court has previously dealt with each of
Defendants/Cross-Defendants’ arguments before. The Court’s Order dated January
23, 2020 states in relevant part:
“The Court finds
Defendant [Nasrin Nino] fails to show as a matter of law that Plaintiff
[Jeffrey Siegel], acting as Antone Nino’s personal representative, cannot bring
an action derivatively on behalf of the Partnership after Antone Nino has been
dissociated and the winding up process has begun but has not finished.
. . .
“Defendants [Mihran Yenokyan and Azniv Hanesoghlian] contend
Plaintiffs’ lack standing because Defendant Nasrin, as the real party in
interest, ‘has made it clear . . . that the partnership does not want to pursue
the claims in the FAC. . . .’ [Citation omitted.] But, this argument assumes
Plaintiffs sue in the name of the Partnership, which is not true. Thus, the
argument lacks merit.
. . .
“V. Ninth Cause of
Action — Partition and Accounting
“Defendants’
[Mihran Yenokyan and Azniv Hanesoghlian] arguments based on lack of capacity to
sue, misjoinder, and lack of standing, discussed above, that are mentioned with
respect to this cause of action still lack merit.”
(Minute Order dated
January 23, 2020, pp. 9, 13, 20, 21.)
The Court sustained the prior demurrer with leave to amend
the complaint based on the following reasoning:
“In opposition, Plaintiffs concede
Defendants are correct that, as a general rule, ‘[a] joint tenant out of
possession may not maintain an action against his cotenant in possession for
the rents, issues and profits derived from the property by means of the
occupant's own labor[,]’ (see Black v. Black (1949) 91 Cal.App.2d 328,
332) and therefore, Defendants would not be subject to a request for accounting,
if Defendants are in possession of the subject property. But, Plaintiffs
contend there is an exception: ‘One tenant may maintain an action requiring his
cotenant to account for rents collected from their property from third persons
to whom the property is leased.’ (McWhorter v. McWhorter (1929) 99
Cal.App. 293, 296, emphasis added; see also Rutledge v. Rutledge (1953)
119 Cal.App.2d 114, 120.) Plaintiffs contend the exception applies here because
Plaintiffs believe Defendants leased out the subject property to Super Service
Center Station, Inc. To support this belief, Plaintiffs request judicial notice
of Super Service Center Station, Inc.’s documents filed with the California
Secretary of State. (RJN, Exhs. 1-4.) However, based on these documents alone,
the Court does not judicially notice the fact that Defendants leased the
subject property to Super Service Center Station, Inc. because there is no
mention of a lease agreement in them. Further, the entity’s address in the
judicially noticed documents does not match the address for the ‘Vanowen
Property’ alleged in the FAC. (See FAC ¶ 26(b).) Lastly, Plaintiffs does not
cite an allegation that Defendants leased the Vanowen Property. Therefore,
Plaintiffs have not shown an exception applies to the general rule from Black.
Thus, they are no entitled to maintain an action against a co-tenant for the
rents, issues, and profits derived from the property by means of the occupant’s
labor. As such, Plaintiffs concede there is an insufficient basis for an accounting.”
(Minute Order dated
January 23, 2020, pp. 21–22.)
Defendants/Cross-Defendants have not presented any new
arguments. In contrast, the Verified Second Amended Complaint now alleges,
among other things, “that third party lessees and tenants, including Super
Service Center Station, Inc., doing business as 76 Service Center and other
businesses and entities occupy the Vanowen Property under commercial leases
with one or more of the Yenokyan defendants, and that the Yenokyan defendants
have shared such third party rental payments and other funds arising from the
use and occupancy of the Vanowen Property with Nasrin, to the exclusion of
Siegel and NNP.” (Verified Second Amended Complaint, ¶ 206.)
The new allegations made in the Verified Second Amended Complaint
make the tenth and eleventh causes of action for partition and accounting,
respectively, sufficiently pleaded, certain, and intelligible to survive
demurrer.
The Court OVERRULES Defendants/Cross-Defendants’ Demurrer as
to the Verified Second Amended Complaint.
B. Demurrer
to the Verified Cross-Complaint
Defendants/Cross-Defendants demur as to the same causes of
action (for partition and for accounting) in the Verified Cross-Complaint,
albeit solely on the grounds that they are fatally unintelligible and
uncertain, and that they fail to state a cause of action.
For the same reasons discussed above, the Court disagrees.
Defendants/Cross-Complainants have made allegations that
would indicate the exception discussed above applies here, including allegations
about the leases on the land which are providing rents, issues, and profits to
Defendants/Cross-Defendants. (Verified Cross-Complaint, ¶¶ 21–22, 25–28.) These
allegations, along with those that otherwise establish co-tenancy, sufficiently
state a cause of action, and are sufficiently intelligible and certain, to
survive demurrer.
The Court OVERRULES Defendants/Cross-Defendants’ Demurrer as
to the Verified Cross-Complaint.
III.
Conclusion
Defendants/Cross-Defendants’ Demurrer to the Verified Second
Amended Complaint is OVERRULED.
Defendants/Cross-Defendants’ Demurrer to the Verified
Cross-Complaint is OVERRULED.