Judge Robert S. Draper, Case 21STCV12444 2022-09-28 Tentative Ruling

Cross-Defendants’ Demurrers to the Cross-Complaint are OVERRULED. Cross-Defendants have thirty days to Answer.

Cross-Defendants’ Motions to Strike Portions of the Cross-Complaint are DENIED.

This is a breach of contract, breach of fiduciary duty, and contractual fraud action. The operative First Amended Complaint (“FAC”) alleges as follows.

Plaintiff Encino Newcastle Homeowners Association (“Plaintiff” or the “Association”) is a homeowners association governing approximately 70 condominiums. (FAC ¶ 11.) Plaintiff hired Defendant Del Sol Property Management, Inc. (“Del Sol”) as its property manager. (FAC ¶¶ 2-3.) Del Sol is run by Defendant Lara Sinitsin (“Sinitsin”). (FAC ¶ 12.) Plaintiff generally alleges that Del Sol and Sinitsin (collectively “Defendants”) used their position for personal gain by stealing money from Plaintiff’s accounts, entering into improper agreements, and failing to act in the best interests of Plaintiff. (FAC ¶ 13.)

In June 2018, members of the Association voted in favor of a special assessment to replace the HVAC system. (XC ¶ 41.) Shortly thereafter, the Board assessed each unit $6,901.00 to cover the HVAC replacement. (XC ¶ 42.) A group of 29 owners, including Cross-Defendants Kourosh Yaghoobian (“Yaghoobian”), Giv Bastanielahabadi (“Bastanielahabadi”), and Allen Tabibi (“Tabibi” and collectively, “Directors”) strongly objected to this assessment. (XC ¶¶ 44-45.) The Directors, who called themselves “Persian Power,” publicly announced their intention to take over the board and rule over the association. (XC ¶ 47.) In February 2020, Yaghoobian and Bastanielahabadi installed themselves as Directors of the Board contrary to the Board’s bylaws. (XC ¶ 60.) Yaghoobian then declared himself President of the Board. (XC ¶ 62.) Shortly thereafter, Tabibi was installed on the Board contrary to the Board’s bylaws and named Vice-President. (XC ¶ 66.) Yaghoobian then unilaterally terminated the Board’s contract with Del Sol and installed a new management company. (XC ¶ 72.) Yaghoobian was operating on his own behalf when he did this, and not as an elected Director of the Board. (XC ¶ 73.)

On September 22, 2021, Plaintiff filed the operative First Amended Complaint alleging eight causes of action:

Also on April 27, 2022, Del Sol filed a Cross-Complaint against the Association, Tabibi, Bastanielahabadi, and Yaghoobian asserting three causes of action:

On June 20, 2022, Del Sol filed a Demurrer and Motion to Strike as to the Association’s Answer to the Cross-Complaint.

On July 8, 2022, Tabibi filed the instant Demurrer to the Cross-Complaint with Motion to Strike.

On July 20, 2022, Yaghoobian filed the instant Demurrer to the Cross-Complaint with Motion to Strike.

On July 26, 2022, Bastanielahabadi filed the instant Demurrer to the Cross-Complaint with Motion to Strike.[1]

On September 14, 2022, Cross-Complainants dismissed the Third Cause of Action for Defamation against all Defendants.[2]

Also on September 14, 2022, Del Sol filed an omnibus Opposition to Directors’ Demurrers and Motions to Strike.

Also on September 14, 2022, the Association filed an Opposition to Del Sol’s Demurrer with Motion to Strike.

In ruling upon demurrers, courts may consider matters that are proper for judicial notice. (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 834.)

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)

Evidence Code Section 452 provides that judicial notice may be taken for facts and propositions that are “not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Cal. Evid. Code § 452(h).) Further, “a court may take judicial notice of [recorded documents and] the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 745-755.)

Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-14 (citations and internal quotations omitted).) In addition, judges “consider matters shown in exhibits attached to the complaint and incorporated by reference.” (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 665.) However, “[w]hen judicial notice is taken of a document . . . the truthfulness and proper interpretation of the document are disputable.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 569 (quoting StorMedia Inc. v. Sup. Ct. (1999) 20 Cal.4th 449, 457 n. 9).)

The party requesting judicial notice must (a) give each adverse party sufficient notice of the request to enable the adverse party to prepare to meet the request and (b) provide the court with sufficient information to enable it to take judicial notice of the matter. (Cal. Evid. Code § 453.)

1. Cross-Defendant Encino Newcastle Homeowners Association’s Statement of Information filed with the California Secretary of State on July 15, 2020. (RFJN Ex. G.)

2. Request for Dismissal of Third Cause of Action by Lara Sinitsin, entered by the Court on June 13, 2022. (RFJN Ex. F.)

The Directors Demur to the Second Cause of Action for Inducing a Breach of the Contract. This is the only cause of action in which the Directors are named, as only the Association is named in the First Cause of Action, and the Third Cause of Action has been dismissed as to all Cross-Defendants.

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) As is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

The Directors Demur to the Second Cause of Action for Inducing Breach of Contract.

The tort of intentionally inducing a breach of contract “‘protects against intentional acts designed to produce an actual breach and requires that a plaintiff prove: (1) he had a valid and existing contract [with a third party]; (2) . . . defendant had knowledge of the contract and intended to induce its breach; (3) the contract was in fact breached by the contracting party; (4) the breach was caused by . . . defendant’s unjustified or wrongful conduct; and (5) . . . damage[s] [were suffered as a result].’” (Id. (citing Shamblin v. Berge (1985) 166 Cal.App.3d 118, 122-23).)

Here, the Directors make several arguments for why Del Sol fails to allege facts sufficient to state a cause of action for Inducing Breach of Contract.

First, the Directors argue that, as they were acting in their capacity as directors of the Board, they are protected from liability by agent immunity.

The Agent Immunity Rule provides that “‘an agent is not liable for conspiring with the principal when the agent is acting in an official capacity on behalf of the principal.’” (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 817 (quoting Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1326).)

In Opposition, Del Sol argues that the Cross-Complaint alleges that the Directors were acting in their own interest, not in the interest of the board, when they terminated their relationship with Del Sol.

The owners, officers, or directors of a contracting entity may be liable in tort for inducing the entity to breach its contract with plaintiff if they did so to protect their individual interests. (See Woods v. Fox Broadcasting Sub., Inc. (2005) 129 Cal.App.4th 344, 353-56.)

The Cross-Complaint alleges that the Directors intentionally interfered with the annual Board meeting, where new members of the Board were to be elected. (XC ¶ 51.) Because of the Directors’ interference, the election did not go forward. (XC ¶ 53.) When the meeting was reconvened, there were not enough ballots submitted to constitute a quorum as required by the bylaws. (XC ¶ 57.) Despite this, and despite the Directors not receiving the majority or plurality of the tallied votes, Yaghoobian and Bastanielahabadi declared themselves winners. (XC ¶ 60.) Shortly thereafter, Yaghoobian went against protocol to declare himself the President. (XC ¶ 62.)

On March 19, 2020, Yaghoobian sent Del Sol a Notice to Terminate Management Agreement. (XC ¶ 68.) Del Sol alleges that Yaghoobian did this without the consent of the Board, without a notice to members, and against the request of other directors. (XC ¶ 70.) Accordingly, “Yaghoobian was not acting on behalf of the Association as its duly appointed director but instead acted in his individual capacity as a member of The Association.” (XC ¶ 73.) “Bastanielahabadi and Tabibi were aware that Yaghoobian had planned to cause The Association to breach Del Sol’s contract and then agreed with Yaghoobian and intended that The Association breach Del Sol’s contract.” (XC ¶ 94.)

The Court finds that the Cross-Complaint sufficiently alleges that the Directors were acting in their own interest, rather than in the Board’s interest, when they allegedly interfered with Plaintiff’s contract.

On Reply, the Directors argue that Del Sol’s allegations and theories are legally irrelevant, as Del Sol does not have standing to allege that Cross-Defendants were improperly elected. (Reply at p. 9.) The Directors argue that “Del Sol is not an owner of property and not a member of the Association, and therefore lacks standing to sue the Association for any alleged failure to follow its governing documents.” (Ibid, quoting Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4^th 1024, 1037.)

The Director’s argument is unavailing. Del Sol is not “suing the association for any alleged failure to follow its governing documents,” and the outcome of this litigation will not have any direct impact on the Director’s legal standing within the Association. Instead, the allegations regarding the improper election procedures serve to bolster Del Sol’s argument regarding the Directors’ self-interest in Del Sol’s termination. Del Sol does not require legal standing to state facts to support their cause of action, which is based on interference to a contract of which Del Sol was a party and clearly has standing to challenge.

Finally, the Directors argue that “common sense dictates that Tabibi, Yaghoobian, or Bastanielahabadi were acting on behalf of the Association” as “no member of the Association has brought any action to allege that the Board election was improper.” (Reply at p. 11.) This is a factual argument improper for the pleading stage.

Accordingly, the Directors are not immune from the Second Cause of Action due to Agent Immunity.

Next, the Directors argue that the Cross-Complaint fails to allege facts sufficient to state a cause of action against Tabibi and Bastanielahabadi, as the majority of the allegations are directed toward Yaghoobian. The Directors note that the Cross-Complaint alleges that “Bastanielahabadi and Tabibi were aware that Yaghoobian had planned to cause the Association to breach Del Sol’s contract and then agreed with Yaghoobian and intended that The Association breach Del Sol’s contract.” (XC ¶ 94.)

Were these the only allegations against Bastanielahabadi and Tabibi, the Directors’ argument would be well-taken. However, as discussed above, the Cross-Complaint alleges an extended and intentional effort to overtake the Board in order to terminate the Association’s contract with Del Sol. These allegations, taken together with the general allegations found under the Second Cause of Action, are sufficient to allege that the breach of contract was caused in substantial part by Bastanielahabadi and Tabibi’s affirmative actions.

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). (See CCP §§435, 436 & 437.) A motion to strike must be filed within the time allowed to respond (e.g., 30 days after service of the complaint or cross-complaint) unless extended by court order. Where there are grounds for a demurrer and a motion to strike, they must be filed together and noticed for hearing at the same time. (CCP §435(b)(3) and CRC Rule 329.) A motion to strike can be made to strike irrelevant, false or improper matter inserted in any pleading or to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of the court. (CCP §436.)

Here, the Directors move to strike Del Sol’s Prayer for Punitive Damages, references to the board elections, and references to the “Persian Power” group.

Punitive Damages are recoverable where the defendant has been guilty of oppression, fraud, or malice, express or implied. (Cal. Civ. Code §3294.) “Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.)

Here, the Directors argue that the Cross-Complaint does not contain factual allegations demonstrating that the Directors acted with fraud, oppression, or malice.

The Cross-Complaint alleges that the Directors together orchestrated an extended takeover of the Board with the specific intent of terminating the Association’s relationship with Del Sol. Additionally, the Cross-Complaint alleges that “on information and belief, Yaghoobian, Bastanielahabadi and Tabibi acted with malice in that their conduct was despicable and was done with the intent of harming Del Sol’s business in retaliation for the 2019 special assessment.” (XC ¶ 95.)

This is sufficient for the pleading stage. Accordingly, the Directors’ Motion to Strike is DENIED as to punitive damages.

Next, the Directors argue that the Court should strike all references to the Directors’ alleged coup of the Board, and the irregularities in the election process, as the allegations are irrelevant to the Cross-Complaint.

However, as noted above, these allegations are relevant not only to avoiding agent immunity, but to demonstrating the Directors’ concerted effort to terminate the Association’s relationship with Del Sol.

Accordingly, the Directors’ Motion to Strike is DENIED as to allegations regarding the Board and Board elections.

Finally, the Directors move to strike any references in the Cross-Complaint to “Persian Power,” the term that the Directors and other objectors within the Association allegedly used to identify themselves. The Directors argue that “the only conceivable reason this racially motivated allegation is alleged is to insinuate that the Cross-Defendants are akin to a criminal street gang and engaged in criminal activity.” (Motion at p. 12.)

Del Sol alleges that the Directors chose to title themselves “Persian Power.” Such a designation, if true, would demonstrate the Directors’ intentional decision to work together with the common goal of terminating the Association’s relationship with Del Sol.

If the Directors are concerned with any prejudice this designation, along with references to the “Armenian Power” group, might cause a trier of fact, the Court will consider the matter in a Motion in Limine at the proper time.

Accordingly, the Directors’ Motion to Strike references to “Persian Power” is DENIED.

[1] As the Directors’ Demurrers are substantially similar, the Court will consider them all in this Order.

[2] Because the Directors filed their Demurrers prior to this dismissal, the Demurrers included discussion of the Third Cause of Action for Defamation. Both parties agree that the argument is now moot as the cause of action has been dismissed, therefore the Court will not discuss the Third Cause of Action in this Order.

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Cross-Complainant Del Sol Property Management, Inc.’s Motion
for Judgment on the Pleadings is GRANTED. Encino Newcastle Homeowners
Association is granted thirty days leave to amend.

Cross-Complainant Del Sol Property Management, Inc.’s Motion
to Strike Portions of the Answer is GRANTED. Encino Newcastle Homeowners
Association is granted thirty days leave to amend.

Cross-Complainant Del Sol Property Management, Inc. is
ordered to file an Amended Cross-Complaint changing Cross-Defendant’s name to
Encino Newcastle Homeowners Association within five days.

This is a breach of contract, breach of fiduciary duty, and
contractual fraud action. The operative First Amended Complaint (“FAC”) alleges
as follows.

Plaintiff Encino Newcastle Homeowners Association
(“Plaintiff” or the “Association”) is a homeowners association governing
approximately 70 condominiums. (FAC ¶ 11.) Plaintiff hired Defendant Del Sol
Property Management, Inc. (“Del Sol”) as its property manager. (FAC ¶¶ 2-3.)
Del Sol is run by Defendant Lara Sinitsin (“Sinitsin”). (FAC ¶ 12.) Plaintiff
generally alleges that Del Sol and Sinitsin (collectively “Defendants”) used
their position for personal gain by stealing money from Plaintiff’s accounts,
entering into improper agreements, and failing to act in the best interests of
Plaintiff. (FAC ¶ 13.)

In June 2018, members of the Association voted in favor of a
special assessment to replace the HVAC system. (XC ¶ 41.) Shortly thereafter,
the Board assessed each unit $6,901.00 to cover the HVAC replacement. (XC ¶
42.) A group of 29 owners, including Cross-Defendants Kourosh Yaghoobian
(“Yaghoobian”), Giv Bastanielahabadi (“Bastanielahabadi”), and Allen Tabibi
(“Tabibi” and collectively, “Directors”) strongly objected to this assessment.
(XC ¶¶ 44-45.) The Directors, who called themselves “Persian Power,” publicly
announced their intention to take over the board and rule over the association.
(XC ¶ 47.) In February 2020, Yaghoobian and Bastanielahabadi installed
themselves as Directors of the Board contrary to the Board’s bylaws. (XC ¶ 60.)
Yaghoobian then declared himself President of the Board. (XC ¶ 62.) Shortly
thereafter, Tabibi was installed on the Board contrary to the Board’s bylaws
and named Vice-President. (XC ¶ 66.) Yaghoobian then unilaterally terminated
the Board’s contract with Del Sol and installed a new management company. (XC ¶
72.) Yaghoobian was operating on his own behalf when he did this, and not as an
elected Director of the Board. (XC ¶ 73.)

On September 22, 2021, Plaintiff filed the operative First
Amended Complaint alleging eight causes of action:

Also on April 27, 2022, Del Sol filed a Cross-Complaint against
the Association, Tabibi, Bastanielahabadi, and Yaghoobian asserting three
causes of action:

On June 20, 2022, Del Sol filed the instant Demurrer[1]
and Motion to Strike as to the Association’s Answer to the Cross-Complaint.

In ruling upon demurrers, courts may consider matters that
are proper for judicial notice. (ABF Capital Corp. v. Berglass
(2005) 130 Cal.App.4th 825, 834.)

The court may take judicial notice of “official acts of the
legislative, executive, and judicial departments of the United States and of
any state of the United States,” “[r]ecords of (1) any court of this state or
(2) any court of record of the United States or of any state of the United
States,” and “[f]acts and propositions that are not reasonably subject to
dispute and are capable of immediate and accurate determination by resort to
sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c),
(d), and (h).)

Evidence Code Section 452 provides that judicial notice may
be taken for facts and propositions that are “not reasonably subject to dispute
and are capable of immediate and accurate determination by resort to sources of
reasonably indisputable accuracy.” (Cal. Evid. Code § 452(h).) Further, “a
court may take judicial notice of [recorded documents and] the fact of a
document's recordation, the date the document was recorded and executed, the
parties to the transaction reflected in a recorded document, and the document's
legally operative language, assuming there is no genuine dispute regarding the
document's authenticity. From this, the court may deduce and rely upon the
legal effect of the recorded document, when that effect is clear from its
face.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743,
745-755.)

Taking judicial notice of a document is not the same as
accepting the truth of its contents or accepting a particular interpretation of
its meaning. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148
Cal.App.4th 97, 113-14 (citations and internal quotations omitted).) In
addition, judges “consider matters shown in exhibits attached to the complaint
and incorporated by reference.” (Performance Plastering v. Richmond American
Homes of California, Inc. (2007) 153 Cal.App.4th 659,
665.) However, “[w]hen judicial notice is taken of a document . . . the
truthfulness and proper interpretation of the document are disputable.” (Aquila,
Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 569 (quoting StorMedia Inc.
v. Sup. Ct. (1999) 20 Cal.4th 449, 457 n. 9).)

The party requesting judicial notice must (a) give each
adverse party sufficient notice of the request to enable the adverse party to
prepare to meet the request and (b) provide the court with sufficient
information to enable it to take judicial notice of the matter. (Cal. Evid.
Code § 453.)

1.
Del Sol’s Cross-Complaint against
Encino Newcastle Homeowners Association, Inc. (Ex. A.)

2.
The text of the affirmative defenses
in Encino Newcastle Homeowner’s Association’s Answer. (Ex. B.)

3.
The State of California has a single
business entity registered under the name “Encino Newcastle Homeowners
Association.” (Ex. D.)

Del Sol demurs to all but the first affirmative defense stated
in the Association’s Answer.

Affirmative
defenses presented in an answer must plead ultimate facts to the same extent as
required in a complaint. (See FPI Development, Inc. v. Nakashima
(1991) 231 CalApp.3d 367, 384.) Thus, for any “new matter” for which a
defendant has the burden of proving at trial, the defendant must plead
supporting facts. (See California Academy of Sciences v. County of
Fresno (1987) 192 Cal.App.3d 1436, 1442.) However, a matter negating an
essential allegation in the complaint does not constitute a new matter, and
therefore, need not be specifically pled by the defendant. (See Statefarm
Mutual Auto. Ins. Co. v. Superior Court) (1991) 228 Cal.App.3d 721,
725.

CCP
§ 430.20 provides that a party may object to an answer on the grounds that it
does not state facts sufficient to constitute a defense, or the answer is
uncertain. CCP § 430.40(b) permits a party who has filed a complaint to
demur to an answer within 10-days of service of the answer.

First,
the Association argues that the Court should not consider Del Sol’s Demurrer,
as it was untimely.

On
Reply, Del Sol concedes that the Demurrer was untimely, but argues the Court
should consider the Demurrer as a Motion for Judgment on the Pleadings, as a
Motion for Judgment on the Pleadings has the same standard and purpose as a
Demurrer but does not have the same time limitation.

The
Court admonishes Del Sol’s counsel for its untimely filing. However, in the
interest of judicial efficiency, the Court will consider Del Sol’s Demurrer as
a Motion for Judgment on the Pleadings, so as not to have to set a separate
hearing and briefing on the same issues presented here.

Second,
the Association argues that the Answer only needs to present ultimate facts,
and such facts are present here. However, upon review of the affirmative
defenses, it is clear that the issue is not the degree to which the Association
provides evidentiary support for the facts constituting the affirmative
defenses, but that there are no facts connecting the affirmative defenses to
the pleading whatsoever.

Third,
the Association argues that due to the factually deficient nature of Del Sol’s
Cross-Complaint, the Association should not be expected to plead affirmative
defenses without the benefit of the discovery process. The Association argues
that it should not be forced to waive any affirmative defenses it does not
plead as it was not aware that the affirmative defenses would be relevant due
to the cursory nature of Del Sol’s Cross-Complaint.

Should
the Association wish to challenge the sufficiency of Del Sol’s Cross-Complaint,
it may do so through a Demurrer, as the Association has and as is being heard
today. Should the Association find during the discovery process that an
affirmative defense applies that it did not realize applied upon pleading, it
may move to amend the Answer pursuant to Code of Civil Procedure section
473(a), a matter the Court will consider at the proper time. However, an
alleged lack of certainty does not permit the Association to plead every
affirmative defense, without factual support, on the chance that one of said
defenses may eventually apply.

Accordingly,
Del Sol’s Demurrer to the Answer is SUSTAINED. The Association is
granted thirty days leave to file an amended Answer.

Next,
Del Sol moves to strike portions of the Answer relating to the Association’s
corporate identity, and the procedures regarding the Association’s elections
and governance.

Motions to strike are used to reach defects
or objections to pleadings that are not challengeable by demurrer (i.e., words,
phrases, prayer for damages, etc.). (See CCP §§435, 436 & 437.)
A motion to strike must be filed within the time allowed to respond (e.g., 30
days after service of the complaint or cross-complaint) unless extended by
court order. Where there are grounds for a demurrer and a motion to
strike, they must be filed together and noticed for hearing at the same
time. (CCP §435(b)(3) and CRC Rule 329.) A motion to strike can be made to
strike irrelevant, false or improper matter inserted in any pleading or to
strike any pleading or part thereof not drawn or filed in conformity with the
laws of this state, a court rule or order of the court. (CCP §436.)

Encino is unable to admit or deny
the allegations in paragraphs 3, 10, 13, 16-38, 40 44, [sic] 50, 51, 52, 57,
58, 59, 61, 63, 64, 65, 66, 89-95 because Encino has no knowledge regarding an
entity by the name of “Encino Newcastle Homeowners Association, Inc.” and
denies those allegation on that basis.

This dispute arises from the fact that
Del Sol erroneously named the Association “Encino Newcastle Homeowners
Association, Inc.” in the Cross-Complaint, instead of Encino Newcastle
Homeowners Association.

The two parties engage in a
protracted discussion about whether another entity named Encino Newcastle
Homeowners Association, Inc., might exist inside of or outside of California,
and the bearing that has on the propriety of the Association’s Answer.

The Court has neither the time nor
the patience for such semantics. This issue could have been
resolved with a simple stipulation to amend the Association’s name in the
Cross-Complaint.

Accordingly, Del Sol is ordered to
file an amended Cross-Complaint including the Association’s proper name within
five days, and the Association is ordered to file an Amended Answer admitting
or denying all allegations against it within thirty days.

Additionally, Del Sol moves to
strike paragraph four from the Answer, which states:

Encino is unable to admit or deny
the allegations in paragraphs 13, 16-37, 39, 59, 83, 96 to the extent they call
for a legal evaluation or interpretation of the documents attached to the Cross-Complaint,
which speak for themselves, and on that basis, Encino denies each and every
allegation contained therein.

To the extent the Association argues
the documents attached to the Cross-Complaint “speak for themselves,” then the
Association should admit that the documents say what Del Sol alleges they say.
To the extent the Cross-Complaint “Calls for a legal evaluation or
interpretation of the documents,” then the Association should specify what
legal evaluation the Cross-Complaint calls for, instead of merely denying all
references to the documents in their entirety.

Accordingly, Del Sol’s Motion to
Strike Portions of the Association’s Answer is GRANTED.

Del Sol is ordered to file an
Amended Cross-Complaint that refers to the Association by its proper name
within five days.

Most importantly, both parties are
ordered to pursue informal solutions to menial problems moving forward. Court
time and resources should not be dedicated to resolving immaterial issues that could
have been fixed with a thirty-minute phone call between counsel.

[1] As
will be discussed below, Del Sol’s Demurrer was not timely and is therefore
being considered as a Motion for Judgment on the Pleadings.

ENCINO NEWCASTLE HOMEOWNERS ASSOCIATION, Plaintiff, vs. DEL SOL PROPERTY MANAGEMENT, INC., et al., Defendants.	Case No.:	21STCV12444
	Hearing Date:	September 28, 2022

	[TENTATIVE] RULING RE: Cross-defendants kourosh yaghoobian, giv bastanielahabadi, and allen tabibi’s demurrer to the cross-complaint; cross-defendants kourosh yaghoobian, giv bastanielahabadi, and allen tabibi’s motion to strike portions of the cross-complaint
DEL SOL PROPERTY MANAGEMENT, INC., et al., Cross-Complainants, vs. ENCINO NEWCASTLE HOMEMOWNERS ASSOCIATION, INC., et al., Cross-Defendants.

ENCINO NEWCASTLE HOMEOWNERS ASSOCIATION, Plaintiff, vs. DEL SOL PROPERTY MANAGEMENT, INC., et al., Defendants.	Case No.:	21STCV12444
	Hearing Date:	September 28, 2022

	[TENTATIVE] RULING RE: Cross-Complainant del sol property management, inc.’s demurrer / motion for judgment on the pleadings as to Encino Newcastle Homeowners association, Inc.’s answer to the cross-complaint; cross-complainant del sol property management, inc.’s motion to strike portions of encino newcastle homeowner’s association, inc.’s answer to the cross-complaint
DEL SOL PROPERTY MANAGEMENT, INC., et al., Cross-Complainants, vs. ENCINO NEWCASTLE HOMEMOWNERS ASSOCIATION, INC., et al., Cross-Defendants.