[1] Pursuant to Cal. Rules of Court, rule 3.113(d), the court disregards argument exceeding the 15 page memorandum limit on the demurrer. This includes the purported supplemental briefing provided by Defendant since they did not seek leave of court to file more than the allowable page limit. This also occurred after repeated warnings by the court of the excessed in filings both in number and in breadth.

 

[2] § 5710 applies to nonprofit public benefits corporations.

Tentative Ruling

 

Judge Upinder S. Kalra, Department 51

 

HEARING DATE:   December 5, 2024                                          

 

CASE NAME:           Rafael Raz, et al. v. Beith David Education Center

 

CASE NO.:                24STCV14726 [related to Case No. 24STCV08540]

 

DEMURRER

 

MOVING PARTY: Defendant Beith David Education Center

 

RESPONDING PARTY(S): Plaintiffs Rafael Raz, et al.

 

REQUESTED RELIEF:

 

1.       Demurrer to the Complaint for failure to state facts sufficient to constitute a cause of action.

TENTATIVE RULING:

 

1.      Demurrer to the Complaint is OVERRULED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

 

On June 12, 2024, Plaintiffs Rafael Raz, Fariba Ysmini, Ohisri Yamini, Orit Nazarian, Shlomo Sherf, Javid S. Rad, Mike Noor, and David Dardashti (Plaintiffs) filed a Verified Complaint against Defendant Beith David Education Center for an Order Voiding Purported Election of Non0Profit Corporation and Ordering a New Properly Supervised Election.

 

On June 20, 2024, Plaintiffs filed a Request for Dismissal as to Plaintiff Javid S. Rad only.

 

On June 21, 2024, Defendant filed a Motion for Order Requiring Undertaking.

 

On June 21, 2024, Defendant filed a Demurrer.

 

On June 28, 2024 Defendant filed another Demurrer.

 

On June 28, 2024, Defendant filed another Motion for Order Requiring Undertaking.

 

On August 5, 2024, Plaintiffs filed the instant Motion to Quash Subpoenas.

 

On October 9, 2024, Defendant filed supplemental briefs in support of its Demurrer.[1]

 

On November 20, 2024, Defendant filed an opposition to the Motion to Quash Subpoenas.

 

On November 21, 2024, Plaintiffs filed Oppositions to the Demurrer and to the Motion for Undertaking.

 

Replies were due on or before November 26, 2024. As of December 2, 2024, the court has not received reply briefs.

 

LEGAL STANDARD:

 

Meet and Confer

 

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. (CCP) §430.41 and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to CCP §430.41(a)(2) & (3). Here, Defendant’s meet and confer declaration was not readily available to the court. As such, the court cannot determine whether the parties sufficiently met and conferred. Still, failure to meet and confer is not a sufficient ground to overrule or sustain a demurrer. (CCP § 430.41(a)(4).)

 

Demurrer

 

A demurrer for sufficiency tests whether the complaint states a cause of action.¿(Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context.¿In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. …. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿(Hahn¿147 Cal.App.4th at 747.)¿¿ 

 

Request for Judicial Notice

 

The court DENIES Defendant’s request for judicial notice.

 

ANALYSIS:

 

Pendency of First Action – CCP 430.10(c)

 

Defendant contends this matter should be dismissed because there is a pending matter involving the same parties and the same dispute (the Petition matter). Plaintiffs argue that the Petition matter is no longer pending. Defendant did not provide a reply.

 

A plea in abatement is disfavored, but it will be successful if “(1) [t]hat both suits are predicated upon the same cause of action; (2) that both suits are pending in the same jurisdiction; and (3) that both suits are contested by the same parties.”  (Conservatorship of Pacheco (1990) 224 Cal.App.3d 171, 176; internal quotations omitted.)  Moreover, in order to qualify as “another action pending,” first, the parties must stand in the same relationship (i.e., plaintiff or defendant) in both suits.  (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789.)  Second, the identical cause of action must be involved in both suits, so that a judgment in the first action would be res judicata on the claim in the present lawsuit.  (Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1384.)  The fact that some of the same issues are involved so that a finding in either case would give rise to collateral estoppel in the other is not enough if in fact two different causes of action are involved.  (Id.)  Further, courts have concluded that the fact that the same evidence tends to prove both causes is not enough if the causes of action are different.  (Conservatorship of Pacheco, 224 Cal.App.3d at 176.)

 

Here, Defendant’s argument is not well taken. As the court pointed out in a prior hearing, in order to invoke Corporation Code § 9418(b) preference benefit, a complaint must be filed. The prior action, while predicated on the same cause of action – namely, seeking a new election— was a petition. As such, the pleadings did not have the benefit of section 9418.  

 

Accordingly, the court OVERRULES the demurrer on this ground.

 

Procedural Defects

 

Defendant contends Plaintiffs failed to comply with Corps. Code §§ 7616, 9130[2], 9223[3], 9418, and 5710.

 

i.                    Corporations Code § 7616

Here, Defendant’s contention that Plaintiffs failed to comply with § 7616 is not well taken because, as Defendant is aware, subsection (c) provides for service of notice of the hearing date in the same method of service of the summons. There is not yet a hearing set.

 

ii.                  Corporations Code § 9418

“Upon the filing of an action therefor by any director or member, or by any person who had the right to vote in the election at issue after such director, member, or person has exhausted any remedies provided in the articles or bylaws, the superior court of the proper county shall determine the validity of any election or appointment of any director of any corporation.” (Corps. Code § 9418(a).) This section also provides for a hearing date. (Id. at subd. (b).)

 

Again, there is not yet a hearing date.

 

iii.                Corporations Code § 5710

“No action may be instituted or maintained in the right of any corporation by any member of such corporation unless both of the following conditions exist:

 

(1) The plaintiff alleges in the complaint that plaintiff was a member at the time of the transaction or any part thereof of which plaintiff complains; and

 

(2) The plaintiff alleges in the complaint with particularity plaintiff’s efforts to secure from the board such action as plaintiff desires, or the reasons for not making such effort, and alleges further that plaintiff has either informed the corporation or the board in writing of the ultimate facts of each cause of action against each defendant or delivered to the corporation or the board a true copy of the complaint which plaintiff proposes to file.” (Corps. Code § 5710(b).)

 

Here, the Complaint does not comply with Corps. Code § 5710(b)(2) because there are no allegations as to seeking the requested relief from the board or reasons why Plaintiffs did not make such efforts. However, that section does not apply to Defendant.[4] Instead, Corporations Code §§ 9140 to 9143 pertaining to nonprofit religious corporations does.

 

Accordingly, the court OVERRULES Defendant’s demurrer on this ground.

 

Standing

 

Defendant failed to include this ground for demurrer in their notice and demurrer. The court therefore declines to address it.[5]

 

Religious Disputes

 

Defendant failed to include this ground for demurrer in their notice and demurrer. The court therefore declines to address it.[6]

 

Leave to Amend

 

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect. (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018, 1035.) The burden is on Plaintiff to establish that the defect is reasonably capable of cure with leave to amend. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Here, Plaintiffs did not request leave to amend. Still, there is reasonable possibility that an amendment can cure the aforementioned defects.

 

Accordingly, the court GRANTS leave to amend.

 

CONCLUSION:

 

            For the foregoing reasons, the Court decides the pending motion as follows:

 

1.      Demurrer to the Complaint is OVERRULED. Defendants are to ANSWER by December 19, 2024.

Moving party is to give notice.

 

IT IS SO ORDERED.

 

Dated:             December 5, 2024                   __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court