Judge Ralph C. Hofer, Case Number: 23GDCV02564, Date: 2024-06-14 Tentative Ruling

Plaintiff Maroot Sahakian alleges that in December of 2020, plaintiff and defendant Sarkis Khachmanian entered into a written agreement pursuant to CCP section 998, pursuant to which defendant agreed to pay plaintiff $30,000.00 in Case No. BC644772, in exchange for which plaintiff would dismiss the case against defendant Khachmanian. Plaintiff relied on defendant’s promise and in December of 2020 had the case dismissed against defendant.

Plaintiff alleges that as of December 2020, defendant has failed and refused to perform the conditions of the contract by paying plaintiff the total sum of $30,000.00, as a result of which plaintiff has been damaged. It is also alleged that defendant has wrongfully with the intent to deceive maintained that it has paid plaintiff, misstating the facts of the case.

The complaint seeks that defendant be ordered to comply with the contractual obligations for a total sum of $30,000, punitive damages due to fraud, interest, and costs of suit.

Here, the First Amended Complaint was filed on December 7, 2023. There is no proof of service in the file showing when the FAC was served. However, the demurrer was served and filed on March 29, 2024, well beyond three months after the FAC was filed. This complaint is not the initial pleading in this matter, so the parties are not authorized to extend the time to plead without a court order. See CRC Rule 3.110(d) (“The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint.”)

There is nothing in the moving papers which shows when the FAC was served to establish that the demurrer was in fact timely. This issue will be discussed at the hearing, as the court expects the parties to comply with all of the statutes, rules and deadlines governing this litigation. The court will consider whether the demurrer will be overruled as untimely.

The FAC states one cause of action, for breach of contract. Defendant Khachmanian seems to argue that plaintiff cannot establish the alleged breach of contract, the alleged failure to pay the settlement agreed to in Case BC644772. Defendant argues that the CCP 998 offer specifically states that plaintiff “agrees to satisfy all liens arising from Plaintiff’s claims at issue in this lawsuit,” and that the “settlement check may list as payees all known lienholders, other than those who have executed a written lien waiver that has been delivered to Defendant’s attorney.” [Carter Decl., Ex. A, Offer to Compromise, para. 3].

Defendant argues that as far as defendant knows plaintiff had a Medicare lien, which defendant and his insurer were required to honor or face penalties, so that plaintiff was sent a settlement check with the lien holder included pursuant to the settlement agreement.

Plaintiff has not attached to the pleading a copy of the CCP 998 offer in the underlying case and has expressly alleged that defendant has failed to perform by failing and refusing to pay plaintiff the total sum of $30,000.00. [FAC, para. 4].

Under CCP § 430.30(a), an objection to a pleading may be taken by a demurrer "[w]hen any ground for objection to a complaint...appears on the face thereof, or from any matter of which the court is required to or may take judicial notice…."

Here, the argument depends not only on the CCP 998 offer included in the court records of the underlying action, but also on documents submitted such as correspondence between the parties which the motion argues shows that a check was issued to plaintiff in a method consistent with the 998 offer. [See Carter Decl., para. 3, Exs. B, C, and D].

The fact of payment and the positions taken by the parties concerning the issuance of a check are nowhere represented to have been included in a court file, and do not appear to be subject to judicial notice.

Under Evidence Code § 453, the trial court “shall” take judicial notice of any matter specified in Section 452, “if a party requests it and:” (1) gives each adverse party “sufficient notice of the request,” “to enable such adverse party to prepare to meet the request” and; (2) “Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” CCP § 453 (a),(b).

Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).”

There has been no separate document filed here, and the only request is made in the memorandum, and is not limited to court records, but includes documents for which there is no stated basis for the records being subject to judicial notice.

Moreover, with respect to judicial notice of court records, it is held that while a court is authorized to take judicial notice of the existence of documents in a court file, it may not generally take judicial notice of the truth of any hearsay allegations contained in these documents, just because they are part of a court record. Day v. Sharp (1975) 50 Cal.App.3d 904, 914.

In any case, even if the court were to take judicial notice of the CCP section 998 offer and its terms, and the dismissals in the prior action, there is nothing from the face of the pleading or from material which may be judicially noticed that there was not in fact a breach of the agreement, as clearly alleged in the pleading. [FAC, paras. 3, 4].

These allegations must be accepted as true for purposes of demurrer. See Serrano v. Priest (1971) 5 Cal.3d 584, 591; Del E. Webb Corp. v. Structural Materials Co. (1981, 2nd Dist.) 123 Cal.App.3d 593, 604 (“As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be.”)

This pleading appears to be a classic speaking demurrer, reaching beyond the pleading itself to argue that the facts alleged are not true. This approach is improper at the pleading stage. The demurrer is overruled.

The Court notes that the demurrer appears likely to be untimely, filed and served over three months after the filing of the First Amended Complaint. The Court will hear argument concerning when the First Amended Complaint was served on defendant, and why the demurrer should not be overruled as untimely. All parties are cautioned that in the future the Court may refuse to consider pleadings not filed in conformity with the statutes, rules and procedures governing this litigation.

“(l) Requests for judicial notice Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested…”

Even if the Court were inclined to judicially notice documents which appear to have been included in a court file, this would be limited to Exhibits A, E, and F, and the Court would take judicial notice only to the extent permitted by Day v. Sharp (1975) 50 Cal.App.3d 904, 914 (e.g, the court takes judicial notice of the existence of court records, but not the truth of hearsay allegations contained therein, except in connection with certain exceptions enumerated in that case.).

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