Judge: Teresa A. Beaudet, Case: 18STCV06807, Date: 2023-03-20 Tentative Ruling
Case Number: 18STCV06807 Hearing Date: March 20, 2023 Dept: 50
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brian weiner, et al., Plaintiffs, vs. onyx tower group, llc, et al., Defendants. |
Case No.: |
18STCV06807 |
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Hearing Date: |
March 20, 2023 |
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Hearing Time: |
10:00 a.m. |
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[TENTATIVE]
ORDER RE: MOTION FOR JUDGMENT ON THE PLEADINGS REGARDING MICHAEL HAKIM’S ANSWER MOTION FOR JUDGMENT ON THE PLEADINGS REGARDING MICHAEL HAKIM’S CROSS-COMPLAINT |
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AND RELATED CROSS-ACTION |
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Background
Plaintiff Brian Weiner, individually
and derivatively on behalf of Onyx Tower Management, LLC (“Plaintiff”) filed
this action on November 30, 2018 against a number of defendants, including
Michael Hakim. The operative Third Amended Complaint (“TAC”) was filed on
October 22, 2020, asserting causes of action for breach of contract, breach of
the covenant of good faith and fair dealing, constructive trust, accounting,
declaratory relief, constructive fraud, fraud, and appointment of receiver.
On February 3, 2021,
Michael Hakim filed an answer to Plaintiff’s TAC.
In addition, on March 6,
2020, Michael Hakim filed a Cross-Complaint against a number of Cross-Defendants,
including Brian Weiner as an individual. The Cross-Complaint asserts causes of
action for (1) indemnity, (2) equitable contribution, (3) accounting, (4)
declaratory relief - damages, and (5) declaratory relief – ownership interests.
Plaintiff now moves for
judgment on the pleadings as to Michael Hakim’s answer to the TAC. Plaintiff also
moves for judgment on the pleadings as to the first, second, and fourth causes
of action of Michael Hakim’s Cross-Complaint. Michael Hakim opposes both.
Motion for Judgment on the Pleadings Regarding
Michael Hakim’s Answer
A.
Legal Standard
A motion for judgment on the pleadings has the same
function as a general demurrer but is made after the time for demurrer has
expired. Except as provided by
If the moving party is a plaintiff, a motion for judgment on the pleadings may be made on
the grounds that “
“A party against whom an answer has been filed may object, by demurrer as
provided in
“
B. Affirmative Defenses Alleged in Michael Hakim’s Answer
Plaintiff contends that every
affirmative defense alleged in Michael Hakim’s answer to the TAC is defective.
In the first affirmative
defense, Michael Hakim alleges that “Defendant generally denies each and every
allegation of the unverified Complaint.” (Answer, ¶ 1.) Plaintiff argues that
this affirmative defense is “
In the third affirmative
defense, Michael Hakim alleges that “Defendant is informed and believes, and thereon
alleges Complainant’s Complaint fails to allege facts sufficient to state a
cause of action.” (Answer, ¶ 3.) Plaintiff asserts that the third affirmative
defense is insufficient because it does not explain how the TAC is factually
deficient. The Court finds that the third affirmative defense is sufficiently pled as no
additional facts are required to demonstrate whether the complaint states facts
sufficient to
constitute a cause of action. (
In the second
affirmative defense, Michael Hakim alleges that “[a]s to each cause of action of
the Complaint, Defendant is informed and believes, and thereon alleges that, to
the extent Complainant suffered damages, if at all, such damages was [sic] proximately
caused, in whole, or in part, by the negligent or willful acts or omissions of third
parties, and Defendant’s liability, if any, should be apportioned based on
their respective degrees of fault, if any.” (Answer, ¶ 2.) The Court
finds that the second affirmative defense fails to allege sufficient facts to constitute a defense. As Plaintiff
notes, there are
no specific facts alleged in this affirmative defense stating, for example, who did what, when, and how. Similarly, the Court finds that the fourth, fifth, sixth, seventh,
eighth, ninth, tenth, eleventh, twelfth, and thirteenth affirmative defenses
are in the form of terse legal conclusions and thus fail to state facts
sufficient to constitute a defense. Thus, the Court grants the motion as to the
foregoing affirmative defenses, with leave to amend.
In the fourteenth
affirmative defense, Michael Hakim alleges that “[a]s a separate defense to the
Complaint and each cause of action therein, Defendant presently has
insufficient knowledge or information on which to form a belief as to whether
he or she have or may have additional, as yet unstated, defenses available.
Defendant reserves the right to assert additional affirmative defenses in the
event discovery indicates that they would be appropriate.” (Answer, ¶ 14.) Plaintiff does not explain why he
contends the fourteenth affirmative defense does not state facts sufficient to
constitute a defense. Thus, the Court denies the motion as to the fourteenth
affirmative defense.
The Court notes that in the
opposition, Michael Hakim contends that “[t]he notice of motion seeks judgment on the pleadings as to
the entire Answer, and not merely to individual affirmative
defenses.” (Opp’n at p. 4:7-10.) But Plaintiff does indicate in the notice of
motion that the motion concerns each individual affirmative defense, which are
listed out. (See Notice of Motion at p. 1:8-2:14.)
Motion for Judgment on the Pleadings Regarding
Michael Hakim’s Cross-Complaint
A.
Legal Standard
A motion for
judgment on the pleadings has the same function as a general demurrer but is
made after the time for demurrer has expired. Except as provided by
“
B.
Allegations of the
Cross-Complaint
In his Cross-Complaint, Michael Hakim alleges that the
causes of action in Plaintiff’s Second Amended Complaint “arise from, in sum, alleged failures to
pay management fees purportedly owed to Onyx Tower Management, LLC…of which
Weiner allegedly owns an ownership interest concurrently with Cross-Complainant
and Cross-Defendants. Weiner also alleges that with [sic] Cross-Complainant and
Cross-Defendants fraudulently induced him to forfeit his individual interest in
a commercial property
owned by Onyx Tower Group.” (Cross-Compl., ¶ 8.)
C.
First Cause of Action
In the
first cause of action for indemnity, Michael Hakim alleges that “in the event that he be found in some
manner responsible for the allegations in the SAC, then Cross-Complainant would
be entitled to be indemnified by Cross-Defendants, and each of them, for
attorney’s fees, expenses of litigation, expert witness fees, any sums paid by
way of settlement and/or judgment, and for all other costs incidental to the defense,
investigation, and defense of the SAC.” (Cross-Compl., ¶ 12.)
As an initial matter, as noted by
Plaintiff, the Second Amended Complaint (“SAC”) is not the operative complaint
this matter. Plaintiff filed the operative TAC on October 22, 2020. As noted by
Plaintiff, “the first cause of action for indemnity is strictly tied to the
allegations of Plaintiff’s Second Amended Complaint, which has been rendered moot by the filing of the
TAC.” (Mot. at
p. 5:6-7.)
In the opposition, Michael
Hakim does not address the fact that his first cause of action is directed to
the SAC. Rather, he asserts that “[t]he motion is addressed solely to the ENTIRE
Cross-complaint rather than to specific causes of action thereof.” (Opp’n at p.
1:23-24.) This is incorrect, as the notice of motion asserts that the first,
second, and fourth causes of action fail to allege facts to constitute a cause of action against Plaintiff. (See
Notice of Motion at p. 1:8-17.)
Based on the foregoing, the Court finds
that Plaintiff has shown that the first cause of action of Michael Hakim’s
Cross-Complaint fails to state facts sufficient to constitute a cause of
action.
D.
Second Cause of Action
In
support of the second cause of action for equitable contribution, Michael Hakim
alleges that “in the event that
he be found in some manner responsible for the allegations in the SAC, then any
such damages sustained by Weiner were proximately caused or contributed to by
the actions and representations of Cross-Defendants, and each of them. It is
necessary that a pro rata degree of fault be determined so that
Cross-Complainant will not be required to pay more than his pro rata share of
any judgment, and only according
to that degree of fault attributable to Cross-Complainant.” (Cross-Compl., ¶
14.)
As Plaintiff notes, the second cause of
action is also tied to the allegations of the SAC, although this is not the
operative complaint in this action. As discussed, the TAC is the operative
complaint. Michael Hakim does not address this fact in the opposition.
Accordingly, the Court finds that
Plaintiff has shown that the second cause of action of Michael Hakim’s
Cross-Complaint fails to state facts sufficient to constitute a cause of action.
E.
Fourth Cause of Action
In the
fourth cause of action for declaratory relief-damages, Michael Hakim alleges
that “[a]n actual controversy has
arisen, and now exists, between Cross-Complainant and Cross-Defendants, and
each of them, in that Cross-Complainants contend, and Cross-Defendants deny,
that as between Cross-Complainant and Cross-Defendants, and each of them,
responsibility for the damages claimed by Weiner, if any, rests entirely, or
partially, with Cross-Defendants, including Weiner himself.” (Cross-Compl., ¶ 21.) Michael Hakim
further alleges that “Cross-Complainant
desires a judicial determination of the respective rights and duties he has, and that
Cross-Defendants have, with respect to the damages claimed in the SAC.”
(Cross-Compl., ¶ 22, emphasis added.)
As discussed, the TAC is the operative
complaint, not the SAC. Plaintiff notes that the declaratory relief cause of
action, like the first and second causes of action, are tied to the allegations
of the SAC, which has been rendered moot by the filing of the TAC.
Based on the foregoing,
the Court finds that Plaintiff has shown that the fourth cause of action fails
to state facts sufficient to constitute a cause of action.
Conclusion
Based on the foregoing, Plaintiff’s
motion for judgment on the pleadings is denied as to the first, third, and fourteenth
affirmative defenses set forth in Michael Hakim’s answer.
Plaintiff’s motion for judgment on the
pleadings is granted as to the second, fourth, fifth, sixth, seventh, eighth,
ninth, tenth, eleventh, twelfth, and thirteenth affirmative defenses set forth
in Michael Hakim’s answer, with leave to amend.
The Court orders Michael
Hakim to file and serve an amended answer, if any, within 20 days of the date
of service of this order.
The
Court grants Plaintiff’s motion for judgment on the pleadings as to the first,
second, and fourth causes of action of Michael Hakim’s Cross-Complaint, with
leave to amend.
The Court orders Michael
Hakim to file and
serve an amended cross-complaint, if any, within 20 days of the date of this
order. If no amended cross-complaint is filed within 20 days, the Court orders
Plaintiff to file and serve an answer to the Cross-Complaint within 30 days of
the date of this order.¿
Plaintiff is ordered to
give notice of this order.
DATED:
Hon. Teresa A.
Beaudet
Judge, Los
Angeles Superior Court