Judge Virginia Keeny, Case Number: 23STCV30259, Date: 2025-03-20 Tentative Ruling

Judge: Virginia Keeny, Case: 23STCV30259, Date: 2025-03-20 Tentative Ruling

Case Number: 23STCV30259 Hearing Date: March 20, 2025 Dept: 45

LEVON MGRDICHIAN V. TONY MAVUSI, ET AL.

DEMURRER TO PLAINTIFF’S COMPLAINT

Date of Hearing: March 20, 2025 Trial Date: Not set

Department: 45 Case No.: 23STCV30259

Moving Party: Defendant Nicole Alexandra Feryanitz

Responding Party: Plaintiff Levon Mgrdichian

BACKGROUND

This action arises from the alleged fraudulent conveyances of a parcel of real property located at 1539-1541 West Olympic Boulevard, Montebello, California 90640 (the “Property”) to avoid Plaintiff Levon Mgrdichian (“Plaintiff”) collecting on a claim in LASC Case No. 19STCV11143, which Plaintiff commenced against Defendants on April 2, 2019.

On December 12, 2023, Plaintiff filed a complaint against Defendants Tony Mavusi (“Mavusi”), Professional Business Properties, Inc. (“PBP”), Pyramid Technologies, Inc. (“Pyramid”), and Does 1 through 50, inclusive, alleging causes of action for: (1) Set Aside Transfers in Violation of Cal. Civ. Code § 3439.04(A)(1); and (2) Conspiracy.

On April 4, 2024, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendants alleging causes of action for: (1) Set Aside Transfers in Violation of Cal. Civ. Code § 3439.04(A)(1); (2) Conspiracy; and (3) Constructive Trust.

On May 3, 2024, Plaintiff amended the complaint to name Nicole Alexandra Feryanitz (“Feryanitz”) as Doe 2 and PBP Properties Inc. as Doe 3.

On June 4, 2024, Defendant Feryanitz, in pro per, filed a demurrer to Plaintiff’s complaint. In the notice of motion, Defendant Feryanitz indicates that she “demur[s] to Plaintiff’s second amended complaint.” (Dem. at p. 2:4-5.) The demurrer is “made on [the] grounds that Plaintiff’s entire complaint is uncertain[,] vague, [and] ambiguous.” (Dem. at p. 2:6-7.)

On March 7, 2025, Plaintiff filed an opposition to the demurrer. The opposition was only served on Defendant Feryanitz via email and was not served on Mr. Imperiale.

As of March 17, 2025, no reply brief has been filed as to the demurrer. Any reply brief was required to have been filed and served at least five court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

Initially, the Court informs Plaintiff that the opposition should have been served on Mr. Imperiale as he is representing Defendant Feryanitz on a limited scope basis. Once a notice of limited scope representation is served, “and until either a substitution of attorney or an order to be relieved as attorney is filed and served, papers in the case must be served on both the attorney providing limited scope representation and the client.” (Cal. Rules of Court, rule 3.36(b) [emphasis added].)

Moreover, the service of the opposition on Defendant Feryanitz via email violated CCP § 1010.6 as there is no indication from the court file that Defendant Feryanitz ever consented to receive electronic service. “An unrepresented party may consent to receive electronic service.” (CCP § 1010.6(c)(2).) Express consent to electronic service is given by either: (1) serving a notice on all parties and filing the notice with the court; or (2) manifesting affirmative consent through electronic means with the court’s electronic filing service provider, and concurrently providing the party’s electronic address with that consent for the purpose of receiving electronic service. (CCP § 1010.6(c)(3)(i)-(ii).) “The act of electronic filing shall not be construed as express consent.” (CCP § 1010.6(c)(3)(ii).)¿¿

Plaintiff is admonished to follow all requirements of the Code of Civil Procedure and California Rules of Court as it concerns the service of documents.

[Tentative] Ruling

The demurrer of Defendant Feryanitz is OVERRULED in its entirety. Defendant Feryanitz is to file an answer to the FAC within 10 days of the date of this order.

LEGAL STANDARD

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) “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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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, supra, 147 Cal.App.4th at p. 747.)¿On demurrer, a court does “not accept contentions, deductions or conclusions of fact or law.” (Simonyan v. Nationwide Insurance Company of America (2022) 78 Cal.App.5th 889, 895.)

Although courts construe pleadings liberally, sufficient facts must be alleged to support the allegations pled to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.) Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on the party who filed the pleading subject to demurrer to show the court that a pleading can be amended successfully. (Ibid.)

ANALYSIS

Defendant Feryanitz demurs to Plaintiff’s complaint on the grounds that the complaint is uncertain. Additionally, although not indicated in the notice of motion, Defendant Feryanitz argues in the memorandum of points and authorities that the second cause of action for fraud fails due to a lack of specificity.

The Meet and Confer Requirement

Before filing a demurrer, the moving party must meet and confer in person, by video conference, or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP § 430.41(a).) “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (CCP § 430.41(a)(4).)

The meet and confer requirement has not been satisfied. Defendant Feryanitz has not provided a declaration attesting to any meet and confer efforts. However, the Court will still assess the merits of the demurrer. Defendant Feryanitz is reminded to comply with the requirements of the Code of Civil Procedure.

The Demurrer is Procedurally Defective

Initially, the Court informs Defendant Feryanitz that Plaintiff is entitled to proper notice. (Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1481.) “[A]n amended complaint supersedes all prior complaints.” (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130.)

Although not raised by Plaintiff in the opposition, the Court notes that the demurrer does not reference the operative FAC. The notice of motion is contradictory as the caption indicates that Defendant Feryanitz demurs to the complaint while the first paragraph of the notice of motion indicates that Defendant Feryanitz demurs to a non-existent second amended complaint. The Court recognizes that Defendant Feryanitz is self-represented. However, Defendant Feryanitz is still held to the same standards as an attorney. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 542 [“Pro. per. litigants are held to the same standards as attorneys”].) Based on the notice of motion, although the Court assumes Defendant Feryanitz made an error thereon, the Court cannot ascertain whether Defendant Feryanitz is demurring to the complaint or a non-existent second amended complaint.

Additionally, the failure of Defendant Feryanitz to set forth the demurrer to the purported second cause of action for fraud in the notice of motion is procedurally improper. Plaintiff did not identify such procedural defect in the opposition; however, Defendant Feryanitz was required to state “[e]ach ground of demurrer . . . in a separate paragraph” and was required to “state whether it applies to the entire complaint . . . or to specified causes of action.” (Cal. Rules of Court, rule 3.1320(a).) While the demurrer for uncertainty was set forth in the notice of motion, Defendant Feryanitz did not raise the lack of sufficient facts to state a cause of action in the notice of motion as a ground for the demurrer. Thus, Defendant Feryanitz did not fully comply with California Rules of Court, rule 3.1320.

The above grounds constitute independent grounds for overruling the demurrer. However, the Court will still address the uncertainty argument and the purported insufficient second cause of action for fraud.

The Uncertainty Argument

The Court does not find that the FAC is uncertain because it is not so unclear where Defendant Feryanitz is not apprised of the issues that must be met. (Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, 605 [“[a] special demurrer should not be sustained when . . . the complaint is sufficiently clear to apprise the defendant of the issues which [s]he is to meet.”].)

The Court has reviewed the allegations of the operative FAC. (FAC, ¶¶ 1-32.) The Court does not find that the FAC is uncertain, vague, or ambiguous. Here, the FAC alleges that Defendants engaged in fraudulent conveyances of the Property to avoid the judgment in LASC Case No. 19STCV11143. (FAC, ¶¶ 9, 12, 14, 16, 19-20, 23.) Defendants are alleged to have conspired to hinder, delay, and defraud Plaintiff from collecting on the judgment entered in LASC Case No. 19STCV11143. (FAC, ¶ 23.)

Thus, the Court OVERRULES the demurrer of Defendant Feryanitz on the grounds of uncertainty.

The Purported Second Cause of Action for Fraud

Defendant Feryanitz contends that the second cause of action for fraud fails due to lack of specificity. The Court finds that the operative FAC does not allege a second cause of action for fraud. The second cause of action therein is for conspiracy. Defendant Feryanitz has attacked a non-existent cause of action in the operative pleading.

Thus, the Court finds that Plaintiff’s argument as to the second cause of action for fraud is moot.

CONCLUSION

Based on the foregoing, the demurrer of Defendant Feryanitz is OVERRULED in its entirety. Defendant Feryanitz is to file an answer to the FAC within 10 days of the date of this order.

Moving party is ordered to give notice.

MOTION TO COMPEL DEPOSITION OF DEFENDANT NICOLE ALEXANDRA FERYANITZ AND PRODUCTION OF DOCUMENTS AT DEPOSITION, AND REQUEST FOR MONETARY SANCTIONS

Date of Hearing: March 20, 2025 Trial Date: Not set

Department: 45 Case No.: 23STCV30259

Moving Party: Plaintiff Levon Mgrdichian

Responding Party: Unopposed

BACKGROUND

On April 4, 2024, Plaintiff amended the complaint to name East Orient Investment Group LLC as Doe 1.

Also, on April 4, 2024, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendants alleging causes of action for: (1) Set Aside Transfers in Violation of Cal. Civ. Code § 3439.04(A)(1); and (2) Conspiracy.

On April 4, 2024, Plaintiff also filed a notice of filing of notice of pendency of action.

On May 3, 2024, Plaintiff amended the complaint to name Nicole Alexandra Feryanitz (“Feryanitz”) as Doe 2 and PBP Properties Inc. as Doe 3.

On June 4, 2024, Defendant Feryanitz, in pro per, filed a demurrer to Plaintiff’s complaint.

Also, on June 4, 2024, Defendant Feryanitz, in pro per, filed a motion to expunge lis pendens.

On June 11, 2024, default was entered against Defendant Pyramid.

On August 22, 2024, Defendant Feryanitz, in pro per, filed an ex parte application for an order shortening time for the hearing on the motion to expunge lis pendens.

On August 30, 2024, a notice of limited scope representation was filed and served by Defendant Feryanitz which indicates that James T. Imperiale, Esq. would represent Defendant Feryanitz at the hearing on the ex parte application to shorten time. (08/30/24 Notice of Limited Scope Representation.) The notice of limited scope representation informs Plaintiff that “[d]uring the limited scope representation, parties and the court must serve papers on both the attorney named above and directly on the party.” (08/30/24 Notice of Limited Scope Representation at p. 2.)

Also, on August 30, 2024, the Court granted the ex parte application filed by Defendant Feryanitz and the Court advanced the hearing on the motion to expunge lis pendens from April 29, 2025, to January 17, 2025. (08/30/24 Minute Order at p. 1.)

On October 17, 2024, Defendant Feryanitz, in pro per, filed a motion to expunge lis pendens, which had a noticed hearing date of January 7, 2025.

On October 17, 2024, Defendant Feryanitz, in pro per, filed an ex parte application for an order shortening time for the hearing on the motion to expunge lis pendens.

On October 22, 2024, a notice of limited scope representation was filed and served by Defendant Feryanitz which indicates that James T. Imperiale, Esq. would represent Defendant Feryanitz at the hearing on the ex parte application to shorten time. (10/22/24 Notice of Limited Scope Representation.) The notice of limited scope representation informs Plaintiff that “[d]uring the limited scope representation, parties and the court must serve papers on both the attorney named above and directly on the party.” (10/22/24 Notice of Limited Scope Representation at p. 2.)

On October 22, 2024, the Court granted Defendant Feryanitz’s ex parte application to shorten time. (10/22/24 Minute Order at p. 1.) The Court advanced the hearing on the motion to expunge lis pendens set for January 7, 2025, and continued such hearing to November 18, 2024. (10/22/24 Minute Order at p. 1.)

On November 15, 2024, Plaintiff filed and served the instant motion to compel the deposition of Defendant Feryanitz and for the production of documents at deposition, as well as a request for monetary sanctions against Defendant Feryanitz in the amount of $3,000.00. According to the proof of service, the motion was served on Defendant Feryantiz only at via email. (See POS Attached to Motion to Compel Deposition.) The Court notes that Mr. Imperiale was not served with the instant motion.

On November 18, 2024, the Court denied Defendant Feryanitz’s motion to expunge lis pendens.

On December 26, 2024, this action was reassigned from the Honorable Mel Red Recana to the Honorable Virginia Keeny in Department 45 at Stanley Mosk Courthouse effective January 3, 2025.

On March 7, 2025, Plaintiff filed an opposition to the demurrer.

As of March 17, 2025, no opposition has been filed as to the motion to compel deposition. Any opposition was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

[Tentative] Ruling

The motion to compel the deposition of Defendant Feryanitz and the production of documents at deposition, and request for monetary sanctions filed by Plaintiff is DENIED WITHOUT PREJUDICE.

LEGAL STANDARD

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action.” (Code Civ. Proc., § 2025.010.) Code of Civil Procedure sections 2025.210 through 2025.280 provide the requirements for (among other things) what must included in a deposition notice, when and where depositions may be taken, and how and when the notice must be served. A deposition must be “scheduled for at least 10 days after service of the deposition notice.” (Code Civ. Proc., § 2025.270, subd. (a).)

“The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as produce any document, electronically stored information, or tangible thing for inspection and copying.” (Code Civ. Proc., § 2025.280, subd. (a).)

Section 2025.410, subdivision (a), requires any party to serve a written objection at least three days before the deposition if the party contends that a deposition notice does not comply with the provisions of sections 2025.210 through 2025.280.

“If, after service of a deposition notice, a party to the action . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

Any such motion to compel must show good cause for the production of documents and, when a deponent has failed to appear, the motion must be accompanied “by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b).)

If a motion under Code Civ. Proc. § 2025.450(a) is granted “the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.450, subd. (g)(1).)

In Chapter 7 of the Civil Discovery Act, section 2023.010, subdivision (d), defines “[m]issues of the discovery process” to include “[f]ailing to respond to or to submit to an authorized method of discovery.” (Code Civ. Proc., § 2023.010, subd. (d).) Where a party or attorney has engaged in the misuse of the discovery process, the court may impose a monetary sanction in the amount of the “reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc., § 2023.030, subd. (a).)

ANALYSIS

Evidence in Support of the Motion

In support of the motion, Plaintiff’s counsel, Tony Forberg (“Forberg”), provides a declaration. Mr. Forberg states the following: on September 3, 2024, he served Defendant Feryanitz with a Notice of Deposition and Production of Documents, Set One. (Forberg Decl., ¶2 ; Exh. A.) On September 20, 2024, he received a voicemail from Defendant Feryanitz which stated that she was unable to appear at her deposition. (Forberg Decl., ¶ 3.) No objections to the deposition notice were served. (Forberg Decl., ¶ 3.) On September 20, 2024, Mr. Forberg emailed Defendant Feryanitz requesting that she provide available deposition dates; however, in her reply, Defendant Feryanitz failed to provide any available dates. (Forberg Decl., ¶¶ 4-5; Exhs. B and C.) As of the execution of his declaration, Mr. Forberg has not received any reply or available dates from Defendant Feryanitz. (Forberg Decl., ¶ 6.)

As to monetary sanctions, Mr. Forberg has an hourly rate of $490.00. (Forberg Decl., ¶ 8.) Mr. Forberg attests that he expects to spend six (6) hours on activities related to the instant motion. (Forberg Decl., ¶ 8.) A $60.00 filing fee was incurred for the instant motion. (Forberg Decl., ¶ 9.) Accordingly, Plaintiff is requesting monetary sanctions in the sum of $3,000.00. (Forberg Decl., ¶ 9.)

The Motion is Procedurally Defective

The Court notes that prior to the filing of the instant motion, Defendant Feryanitz filed and served two notices of limited scope representation which indicated therein that “[d]uring the limited scope representation, parties . . . must serve papers on both the attorney . . . and directly on the party.” (See 08/30/24 and 10/22/24 Notices of Limited Scope Representation at p. 2.) Additionally, after the instant motion was filed, Defendant Feryantiz filed a notice of limited scope representation which indicated that Mr. Imperiale was providing limited scope representation at the November 18, 2024 hearing concerning the motion to expunge lis pendens. (See 11/18/24 Notice of Limited Scope Representation.)

The Court informs Plaintiff that once a notice of limited scope representation is served, “and until either a substitution of attorney or an order to be relieved as attorney is filed and served, papers in the case must be served on both the attorney providing limited scope representation and the client.” (Cal. Rules of Court, rule 3.36(b) [emphasis added].) Here, however, the instant motion was only served on Defendant Feryanitz via email and was not served on Mr. Imperiale. Thus, Plaintiff has violated Cal. Rules of Court, rule 3.36(b) by not serving Mr. Imperiale with the instant motion.

Also, the deposition notice was not served on Mr. Imperiale although such notice was effectuated after the August 30, 2024 notice of limited scope representation was filed and served. Thus, by not serving the deposition notice on Mr. Imperiale, Plaintiff has violated Cal. Rules of Court, rule 3.36(b).

Additionally, the Court finds that the e-mail service of the instant motion on Defendant Feryanitz, who has only engaged Mr. Imperiale on a limited scope basis, is improper.

“Electronic service means service of a document, on a person, by either electronic transmission or electronic notification. Electronic service may be performed directly by a person, including a party, by a person’s agent, including the person’s attorney, or through an electronic filing service provider, and by a court.” (CCP § 1010.6(a)(1)(A).) “Electronic transmission means the transmission of a document by electronic means to the electronic service address at or through which a person receives electronic service.” (CCP § 1010.6(a)(1)(B).)

“If a document is required to be served by certified or registered mail, electronic service of the document is not authorized.” (CCP § 1010.6(a)(2).) “An unrepresented party may consent to receive electronic service.” (CCP § 1010.6(c)(2).) Express consent to electronic service is given by either: (1) serving a notice on all parties and filing the notice with the court; or (2) manifesting affirmative consent through electronic means with the court’s electronic filing service provider, and concurrently providing the party’s electronic address with that consent for the purpose of receiving electronic service. (CCP § 1010.6(c)(3)(i)-(ii).) “The act of electronic filing shall not be construed as express consent.” (CCP § 1010.6(c)(3)(ii).)¿¿

Here, the proof of service shows that Defendant Feryanitz was served with the motion via e-mail. After reviewing the court file, the Court finds that Defendant Feryanitz has not expressly consented to receive electronic service. Thus, electronic service of the motion on Defendant Feryanitz was improper under CCP § 1010.6.

Defendant Feryanitz is entitled to proper notice. (Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1481.) Due to the numerous procedural deficiencies concerning service of the motion, the instant motion cannot be granted.

CONCLUSION

Based on the foregoing, the motion to compel the deposition of Defendant Feryanitz and production of documents at deposition, and request for monetary sanctions is DENIED WITHOUT PREJUDICE.

Moving party is ordered to give notice.