Otter Lake Farm, LLC v. Al Mizrahie, et al.

 

(1) DEFENDANT AL MIZRAHIE’S DEMURRER TO COMPLAINT

(2) DEFENDANT ALMA MIZRAHIE’S DEMURRER TO COMPLAINT

 

MOVING PARTY:  Defendants Al Mizrahie and Alma Mizrahie

RESPONDING PARTY(S): Plaintiff Otter Lake Farm, LLC

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Otter Lake Farm, LLC, brings this unlawful detainer action against Defendants Al Mizrahie and Alma Mizrahie.  Plaintiff alleges it owns real property at 5251 E. York Blvd, Los Angeles, CA 90042, leased to Defendants by Plaintiff’s predecessor-in-interest. Plaintiff further alleges that the lease term expired on September 11, 2022, but that Defendants remain in possession.

Defendant Al Mizrahie now demurs to the Complaint.  Defendant Alma Mizrahie filed a joinder and separate Demurrer on December 30, 2022. Plaintiff opposed.

TENTATIVE RULING:

Defendant Al Mizrahie’s Demurrer is OVERRULED in its entirety.

Defendant Alma Mizrahie’s Demurrer is also OVERULED in its entirety.

Both Defendants are to file an Answer within five (5) days.

Plainitff to give notice, unless waived.

DISCUSSION:

Demurrer by Defendant Al Mizrahie

I. Meet and Confer

The moving party has not attached a declaration from counsel attesting to the meet and confer obligation. (CCP § 430.41.) Plaintiff, however, does not raise the failure to meet and confer, which suggests the parties may have done so. 

Without objection, and to conserve judicial resources, the court continues to address the motion on its merits, assuming no meet and confer occurred.  To the extent Defendant failed to meet and confer, Defendant is admonished to comply with all obligations going forward.

II. Judicial Notice

Pursuant to Defendant’s request, the court takes judicial notice of Exhibits A through H.  In doing so, this court notes that it “may take judicial notice of [another] court's action, but may not use it to prove the truth of the facts found and recited. [Citations.]”  (Steed v. Dep't of Consumer Affs. (2012) 204 Cal. App. 4th 112, 120.) Likewise, the court takes judicial notice of the existence of the remaining exhibits without assuming the truth of the assertions contained therein. (See Seelig v. Infinity Broad. Corp. (2002) 97 Cal. App. 4th 798, 808.)

III. Analysis

Defendant first demurs to the Complaint based on the argument that Plaintiff is bound by a settlement agreement executed in a prior action, that being Mellinkoff v. Mizrahie, LASC case no. 21STCV03365. In that case, Otter’s predecessor-in-interest, Mellinkoff, filed the action against Mizrahie for failure to pay rent.  Defendant contends that after Mellinkoff transferred his interest to Otter Lake Farm, the parties executed a settlement agreement to resolve the case.  Accordingly, Otter Lake Farm dismissed the case without prejudice.  Defendant represents now, however, that Otter reneged on the settlement, although it is unclear if Otter ever actually signed it.  Defendant argues that Otter “is bound by the settlement and cannot now seek to evict MIZRAHI per the settlement agreement.” (Dem. 5: 7-9.) In opposition, Plaintiff flatly disputes that the parties executed any final, binding settlement.

First, it is evidently disputed whether any binding settlement agreement has been executed between the parties.  “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts. [Citation.] The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.” (Unruh-Haxton v. Regents of Univ. of California (2008) 162 Cal. App. 4th 343, 365.)

Second, Defendant presents no authority sustaining a demurrer based on a purported settlement agreement.  Rather, it would appear Defendant’s remedy lies with (1) an action (or cross-claim) for breach of that contract, or (2) a motion to enforce the settlement under Code of Civil Procedure section 664.6. At this point, Defendant has done neither. Thus, the demurrer fails on this ground.

Defendant next argues there is currently another action pending between the parties.  “The party against whom a complaint or cross-complaint has been filed may object, by demurrer…to the pleading on any one or more of the following grounds:…(c) There is another action pending between the same parties on the same cause of action.” (CCP § 430.10(c).)

After Otter purportedly breached the settlement, Mizrahie filed another action, that being Al L. Mizrahie v. Otter Lake Farm, LLC, et al, Los Angeles Superior Court Case no. 22STCV30409. (See RJN, Exh. F.) There, Mizrahie asserts causes of action against defendants Otter Lake Farm (the Plaintiff in this case) and Daniel Mellinkoff (Otter Lake farm’s predecessor-in-interest to the lease) related to property damage to the leased property. Thus, the parties respective roles in the cases are reversed, contain entirely different causes of action, and seek entirely different remedies. The demurrer therefore also fails on this ground.

Accordingly, Defendant’s Demurrer to the Complaint is OVERRULED in its entirety.

Demurrer by Defendant Alma Mizrahie

As an initial and dispositive matter, Defendant Mizrahie’s joinder is ineffective. A common mistake made by parties in civil litigation is to simply file a notice of joinder in the hopes that that party can simply “piggyback” on the initial moving party’s pleadings. Of course, filing a notice of joinder is certainly allowed. However, the applicable law still requires that any party attempting to join a pending motion still must file a memorandum of points and authorities, with an appropriate analysis as to the reasons why the same relief should be granted to the joining party.

A party can join another party's motion by filing a notice of joinder. To be effective, the joinder generally must (1) be timely, (2) establish the necessary factual foundation to support the motion, and (3) request affirmative relief on behalf of the joining party. (See, e.g., Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 661; Decker v. U.D. Registry, Inc. (2003) 105 Cal. App. 4th 1382, 1391 [joinder is insufficient where it "is not in the form of a motion and does not present any evidence or argument"].)It is well settled that a notice of joinder must be filed pursuant to the same deadlines as the papers for which the joinder was made. (See, e.g., Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 719; see also Grieves v. Superior Court (1982) 157 Cal.App.3d 159, 163 n.3 [noting that “the trial court treated [defendant’s] notice of joinder as a motion”].) (See also, Cal. Rules of Ct., rules 3.1113 (a) and (b))

The “joining” party here has not included her own separate and required memorandum of points and authorities, containing an analysis from her respective standpoint to support her demurrer. Instead, Defendant Alma Mizrahie merely filed a joinder to the demurrer on December 30, 2022, which stated in full: “Defendant ALAMA MIZRAHIE herewith and hereby joins in the Demurrer of defendant AL MIZRAHIE (MIZRAHIE) now set for hearing as above captioned.” (See Joinder, 12/29/2022.)

As such, there is no legal basis on which the Court is to conclude that she is similarly situated to the demurring party with respect to the issues raised in the demurrer. Accordingly, the joinder is DENIED.

Be that as it may, because Defendant Al Mizrahie’s demurrer failed to present any arguments to sustain the demurrer, there is no practical effect to the denial of joinder. 

Accordingly, Defendant Alma Mizrahie’s Demurrer to the Complaint is OVERRULED in its entirety

IT IS SO ORDERED.

Dated:   February 1, 2023 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.