Judge Ralph C. Hofer, Case EC066192 2023-02-10 Tentative Ruling

Plaintiffs Sandford Jones and Maribel Haro allege that in January of 2011, they entered into a lease for the rental of a unit of residential premises located in Burbank, and that shortly afterward plaintiff Haro had to seek treatment for bed bug bites at the subject premises. Plaintiffs allege that defendant Harry Ayvazian dba as Ayvazian Realty Management was notified of the bed bug and roach infestation at the subject premises but failed to take any corrective action.

The SAC alleges that on weekends in October of 2012, contractors hired by defendant Ayvazian to remodel the exterior of the subject premises would begin construction work early in the morning, between the hours of 6:30 and 7:30 am, in violation of the City of Burbank Municipal Code. The contractors would in engage in loud and vulgar conversations outside the window of the subject property, thereby disturbing the quiet enjoyment by plaintiffs of the subject premises.

Plaintiffs further allege that in November of 2013, defendant Ayvazian entered into the subject premises under the false pretense of carrying out an inspection and scheduling repairs to pre-existing damage identified during the initial walkthrough prior to the execution of the rental agreement, and during the inspection began to berate and verbally abuse plaintiffs, and when plaintiff Jones demanded that defendant Ayvazian leave the premises, Ayvazian assaulted Jones in the presence of plaintiff Haro, causing both plaintiffs to fear for their safety. Jones documented the assault with the Burbank Police Department.

The SAC alleges that in February of 2014, plaintiffs placed their rent money in the Ayvazian drop box, as usual, but notwithstanding the deposit of rent, the Ayvazian defendants caused to be issued a 3-day notice to pay rent or quit on plaintiffs, and then filed an unlawful detainer case against plaintiffs. Plaintiffs allege that in April of 2014, the Ayvazian defendants fraudulently obtained a default judgment for possession of the subject premises. Plaintiffs’ application and motion to set aside the judgment were denied by the court. On April 30, 2015, the Ayvazian defendants, without notice to plaintiffs, obtained a money judgment against plaintiffs in the sum of $2,010.92.

Plaintiffs allege that in September of 2015, defendants Eric Steve Morrow, an individual doing business as Judicial Assertion Systems and Morrow and Associates, a collection agency, filed with the court an acknowledgement of assignment of judgment, and have, with full knowledge that the judgment was fraudulently obtained, and after being repeatedly told by plaintiffs to cease and desist from collecting on the judgment, proceeded to obtain a writ of execution for collection of the judgment against plaintiffs.

On February 18, 2020, plaintiffs filed a Request for Entry of Default as to Harry Ayvazian in his capacity as an individual; Harry Ayvazian Ayvazian Realty Management. The default was entered as requested the same date. No default judgment was ever pursued or entered.

On July 14, 2022, at an OSC Re: 5-Year Rule, CMC and Trial Setting Conference, the court granted leave to allow plaintiff to file an amended complaint, continued the matters, and ordered, “Amended complaint must be filed within 30 days. Plaintiff must re-serve complaint on the same parties that were served before.”

On October 12, 2022, the court heard a CMC, Trial Setting Conference, a Status Conference re: Amended Complaint, and an OSC Re: Five-Year Rule. The court noted an Amended Complaint had been filed, with all defendants served except Eric Steve Morrow. The court also noted a declaration had been filed for an automatic extension to file a responsive pleading on behalf of the Ayvazian defendants, but no counsel had substituted in as attorney of record. “If there is a Demurer filed as to the 5-Year Rule the Court will rule on it. If defense counsel does not substitute-in as counsel of record, then the Court will rule on the Order to Show Cause Re: 5-Year Rule.”

The demurrer was sustained without leave to amend on the ground, “plaintiffs are barred from further pursuing the matters alleged in the SAC by the five-year rule, and the failure to bring the matter to trial within the permitted statutory period.” The court’s minute order also states, “The court will dismiss the case pursuant to CCP section 581(f)(1) upon a motion for dismissal by defendants’ attorney.”

The file shows that since the filing of this motion to dismiss, the court on January 10, 2023 conducted an hearing on, among other matters, an OSC re failure to file proof of service as to defendant Eric Morrow, and an OSC re Five-Year Rule. There was no appearance by plaintiff, and no proof of service was filed as to defendant Eric Morrow. After defendants’ counsel attempted to contact plaintiff’s counsel via email while the court waited, the court ordered the Second Amended Complaint as to Eric Morrow dismissed with prejudice, pursuant to CCP section 583.310.

Section 597 sets forth circumstances under which the trial court is permitted to proceed to the trial of a special defense not on the merits before the trial of any other issue in the court, and where a demurrer is based on CCP section 430.10 (c), which permits demurrer on the ground, “There is another action pending between the same parties on the same cause of action.” The demurrer here was sustained without leave to amend based on the failure to bring the matter to trial within five years, which was not pursuant to a determination on the merits of the complaint but was not based on CCP section 430.10(c). There has been no motion made pursuant to CCP section 597, and the court on demurrer definitively determined that the plaintiffs are barred from further pursuing the matters alleged in the SAC against the moving defendants by the five-year rule, and the failure to bring the matter to trial within the permitted statutory period.

Defendants also note that the court’s tentative ruling for December 16, 2022, which became the final order of the court, expressly states that, “The court will dismiss the case pursuant to CCP section 581(f)(1) upon a motion for dismissal by defendants’ attorney.”

GRANTED pursuant to CCP section 581 (f)(1). A demurrer to the complaint has been sustained as to the moving parties Harry Ayvazian, individually and dba Harry Ayvazian Realty Management without leave to amend, and defendants have appropriately moved for dismissal.

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