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

DEFENDANTS’ DEMURRER TO THE FIRST AMENDED COMPLAINT

 

MOVING PARTY: Defendants Otter Lake Farm, LLC, and Daniel Mellinkoff as Trustee of the Daniel Mellinkoff Trust Dated June 9, 1995

RESPONDING PARTY(S): Plaintiff Al Mizrahie

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Al Mizrahie brings this action against Defendant Otter Lake Farm, LLC, and Daniel Mellinkoff as Trustee of the Daniel Mellinkoff Trust. Plaintiff alleges he entered into a commercial lease agreement with Daniel Mellinkoff for the premises located at 5251 E. York Blvd, Los Angeles, CA 90042. Defendant Otter Lake Farm, LLC, is the purported successor lessor following a transfer of the property.  For his first cause of action, Plaintiff alleges that Defendants breached the lease agreement by failing to make the premises for the commercial use intended and allowing extensive flooding. On these facts, Plaintiff brings additional causes of action for negligence and premises liability. 

Plaintiff separately alleges that he entered into a settlement agreement with Defendant Daniel Mellinkoff to resolve case number 21STCV03365, which also deals with disputes over the subject property. Plaintiff alleges that Defendants breached the settlement agreement by seeking to evict Plaintiff from the premises. Accordingly, Plaintiff brings causes of action for breach of the settlement agreement and for declaratory relief seeking an adjudication of the parties’ rights under the settlement agreement.

Defendants now demurrer to the First, Second, and Third Causes of Action in the First Amended Complaint. Plaintiff opposed.

TENTATIVE RULING:

Defendants’ Demurrer to the First Cause of Action is OVERRULED.

Defendants’ Demurrer to the Second and Third Causes of Action is SUSTAINED and/or MOOT.

Defendants to give notice.

DISCUSSION:

Demurrer

I. Meet and Confer

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 Defendants failed to meet and confer, Defendants are admonished to comply with all obligations going forward.

II. Analysis

Defendants Otter Lake Farm, LLC, and Daniel Mellinkoff as Trustee of the Daniel Mellinkoff Trust Dated June 9, 1995, demurrer to the First (breach of lease), Second (breach of settlement), and Third (declaratory relief) Causes of Action in the First Amended Complaint. Each is addressed in turn. 

1. First Cause of Action for Breach of Lease Agreement

First, Defendants argue that Plaintiff has failed to allege the existence of a contract because Plaintiff “alleges inconsistent privities.” (Dem. 4: 24.) Namely, Plaintiff alleges a lease agreement was made between him and Defendants Daniel Mellinkoff and Otter Lake [Farm], LLC. (FAC, Attach. 1, BC-1.) Plaintiff then alleges the lease agreement was entered into only between him and Defendant Mellinkoff, and that Defendant Otter Lake Farm, LLC, is the successor lessor under the lease. (Id.) 

Here, Plaintiff is alleging liability against both Defendants for breach of the lease agreement. While the lease was initially entered into by Plaintiff and Defendant Mellinkoff, Defendant Otter Lake Farm is the purported successor lessee. Thus, it is appropriate for Plaintiff to allege the cause of action against both Defendants at this time. Moreover, Defendants cannot claim confusion from the inconsistencies, to the extent any exist. “Demurrers for uncertainty are disfavored,” and are strictly construed “because ambiguities can reasonably be clarified under modern rules of discovery.”  (Lickiss v. Fin. Indus. Regul. Auth., (2012) 208 Cal. App. 4th 1125, 1135.) When reading the allegations liberally and in context—as the court must on a demurrer—Plaintiff has alleged the facts necessary to maintain the cause of action against each Defendant.  (See Taylor, supra, 144 Cal. App. 4th at 1228.)

Accordingly, Defendants’ Demurrer to the First Cause of Action is OVERRULED.

2. Second Cause of Action for Breach of Settlement and Third Cause of Action for Declaratory Relief

Second, Defendants argue that Plaintiff has failed to allege the existence of a settlement agreement. 

In support of his second cause of action for breach of settlement, Plaintiff alleges that a settlement “agreement was made between” Plaintiff and Defendant Otter Lake [Farm], LLC. (FAC, Attach. 2, BC-1.) Plaintiff then alleges that he “entered into a settlement agreement with Daniel Mellinkoff to settle LASC Case Number 21STCV03365 regarding disputes between them” and that Defendant “Otter Lake [Farm], LLC now asserts it is the successor lessor” of the property. (Id.) 

The purported settlement is attached to the FAC as Exhibit B. The document is undated and unsigned. Thus, Defendants argue this document is “[c]learly…not the alleged settlement agreement.” (Dem. 5: 18-19.)

In opposition, Plaintiff states that “[t]ime and the ongoing discussions and transactional conduct between the parties have mooted the second and third causes of action so that they are no longer a matter for dispute.” (Opp. 1: 20-21.) In other words, Plaintiff is no longer pursuing these causes of action. 

As of the date of this Tentative, Plaintiff has not voluntarily dismissed these causes of action. Absent a voluntary dismissal and based on Plaintiff’s failure to defend these claims, the demurrer is well-taken.

Accordingly, Defendants’ Demurrer to the Second and Third Causes of Action is SUSTAINED without leave to amend. If Plaintiff voluntarily dismissed these causes of action before or at the hearing, the demurrer to these causes of action will become MOOT.

Defendants to give notice. 

IT IS SO ORDERED.

Dated:   November 29, 2023 ___________________________________