This case was last updated from Fresno County Superior Courts on 06/17/2022 at 19:50:26 (UTC).

Frank Cruz vs. Mel Abdelaziz

Case Summary

On 12/26/2017 Frank Cruz filed a Contract - Other Contract lawsuit against Mel Abdelaziz. This case was filed in Fresno County Superior Courts, Fresno County BF Sisk Courthouse located in Fresno, California. The Judges overseeing this case are Tharpe, D Tyler, Snauffer, Mark, Gamoian, Lisa, Black, Donald, Diaz, Monica, Brickey, Gabriel, Simpson, Alan, Hamilton, Jeffrey Y. and McGuire, Rosemary. The case status is Disposed - Dismissed.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******4380

  • Filing Date:

    12/26/2017

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Other Contract

  • County, State:

    Fresno, California

Judge Details

Judges

Tharpe, D Tyler

Brickey, Gabriel

Snauffer, Mark

Gamoian, Lisa

Black, Donald

Diaz, Monica

Simpson, Alan

Hamilton, Jeffrey Y.

McGuire, Rosemary

 

Party Details

Plaintiff and Cross Plaintiff

Cruz, Frank

Cross Defendants and Defendants

Abdelaziz, Mel

California Department of Real Estate

Kharazi, K. Ty

Attorney/Law Firm Details

Cross Defendant and Defendant Attorneys

Kharazi, Hadi-Ty Seyedin

Kharazi, Hadi-Ty S.

Davidson, Thornton

 

Court Documents

Minute Order Attachment

Minute Order Attachment

Notice of Hearing

Notice of Hearing; Comment: Notice of Case Management Conference

Declaration Filed

Declaration; Comment: of H. Ty Kharazi in Support of Motion for Order Granting Attorney's Fees and Costs Per CCP 425.16

Memorandum of Points and Authorities

Memorandum of Points & Authorities; Comment: in Support of Motion for Order Granting Attorney's Fees and Costs per CCP 425.16

Minute Order Attachment (Tentative Rulings Only)

Minute Order Attachment (Tentative Rulings Only); Comment: With certificate of Mailing

Opposition filed

Opposition filed; Comment: to Motion for Fees and Costs; Frank Cruz's Declaration in support

Notice of Hearing

Civil Document; Comment: Notice of new time and department for OSC hearing

Reply filed

Reply To Opposition to Fee Motion; Comment: Reply to Opposition to Fee Motion

Minute Order Attachment

Minute Order Attachment

Minute Order Attachment

05/24/2021: Minute Order Attachment

Minute Order Attachment

03/17/2021: Minute Order Attachment

Civil Document

12/30/2020: Civil Document

Minute Order Attachment

12/14/2020: Minute Order Attachment

Abstract

11/09/2020: Abstract

Notice of Hearing

10/23/2020: Notice of Hearing

Minute Order Attachment (Tentative Rulings Only)

10/21/2020: Minute Order Attachment (Tentative Rulings Only)

Reply

10/09/2020: Reply

Reply To Opposition to Fee Motion

10/09/2020: Reply To Opposition to Fee Motion

374 More Documents Available

 

Docket Entries

  • 05/24/2021
  • DispositionDisposition: Judgment; Judicial Officer: Brickey, Gabriel; Judgment Type: Dismissal Order - Entire Action; Party; Names: Cruz, Frank; Abdelaziz, Mel; Abdelaziz, Mel; Cruz, Frank; Cruz, Frank; Kharazi, K. Ty; California Department of Real Estate; Comment: without prejudice, on courts own motion. see minute order dates 5/24/21.

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  • 05/24/2021
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  • DocketMinute Order Attachment

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  • 05/24/2021
  • DocketOrder to Show Cause - Pre; Judicial Officer: Brickey, Gabriel; Hearing Time: 3:32 PM; Result: Heard

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  • 03/17/2021
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  • DocketMinute Order Attachment

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  • 03/17/2021
  • DocketOrder to Show Cause - Pre; Judicial Officer: Brickey, Gabriel; Hearing Time: 3:32 PM; Result: Heard

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  • 12/30/2020
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  • DocketNotice of Hearing; Comment: Notice of new time and department for OSC hearing

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  • 12/14/2020
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  • DocketMinute Order Attachment

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  • 12/14/2020
  • DocketCase Management Conference; Judicial Officer: Tharpe, D Tyler; Hearing Time: 1:30 PM; Result: Heard

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  • 11/09/2020
  • FinancialFinancial info for Abdelaziz, Mel: EFile Payment Receipt # WEB-2020-72667 Abdelaziz, Mel $40.00

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  • 11/09/2020
  • FinancialFinancial info for Abdelaziz, Mel: Transaction Assessment $40.00

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321 More Docket Entries
  • 12/27/2017
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  • DocketFee Waiver Denied; Judicial Officer: Gamoian, Lisa

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  • 12/26/2017
  • FinancialFinancial info for Cruz, Frank: Transaction Assessment $435.00

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  • 12/26/2017
  • FinancialFinancial: Cruz, Frank; Total Financial Assessment $640.00; Total Payments and Credits $640.00

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  • 12/26/2017
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  • DocketNotice Filed; Comment: of Related Case

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  • 12/26/2017
  • DocketOrder Received for Signature; Comment: Forwarded to Dept:97B Order for: Fee Waiver

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  • 12/26/2017
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  • DocketNotice Filed; Comment: of CMC Hearing and Assignment of Judge for all Purposes

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  • 12/26/2017
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  • DocketSummons issued and filed

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  • 12/26/2017
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  • DocketCivil Complaint filed

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  • 12/26/2017
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  • DocketCivil case cover sheet

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  • 12/26/2017
  • DocketChambers Work- Pre; Judicial Officer: Gamoian, Lisa; Hearing Time: 5:30 PM; Result: Chambers Work - Order Submitted for Consideration

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Complaint Information

{ARRA LAW GROUP

)00 Fresno Street, St. 300 Fresnio, CA 93721

H. Ty Kharazi, Esq.; SBN 187894

Nicholas E. Aniotzbehere, Esq.; SBN 263465 E-FILED

YARRA LAW GROUP 0/20/2018 9:32 AM

2000 Fresno Street, Suite 300 FRESNO COUNTY SUPERIOR COURT Fresno, CA 93721 By: R. Faccinto, Deputy

Telephone: (559) 441-1214 Facsimile: (559) 266-4236

Attorney for Defendant,

MEL ABDELAZ1Z SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF FRESNO

FRANK CRUZ, Case No. 17CECG04380 Plaintiff, OPPOSITION TO DEMURRER TO

CROSS-COMPLAINT

V. MEL ABDELAZIZ, Defendant. Date: July 10, 2018 Time: 3:30 p.m. MEL ABDELAZIZ, Dept. 502

Cross-Complainant, V. FRANK CRUZ, AND ROES 1-25

Cross-Defendant.

Defendant and Cross-Complainant MEL ABDELAZIZ hereby submits this Memorandum of Points and Authorities in opposition to Cross-Defendant FRANK CRUZ’ Notice of Demurrer to Cross-Complaint.

MEMORANDUM OF POINTS AND AUTHORITIES

L. INTRODUCTION

We hereby incorporate the introduction and facts section recited in our opposition to the

motion to strike. 1. LEGAL ARGUMENT

California Code of Civil Procedure section 430.10 provides that a defendant may object to a complaint by demurrer if the pleading does not state facts sufficient to constitute a cause of action. A special demurrer, is disfavored ground, and a special demurrer will be sustained only where the complaint is so bad that the defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Code Civ. Proc., § 430.10, subd.

(f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) “

A. CROSS-DEFENDANT VIOLATED CCP §430.41.

Mr. Cruz did not file the necessary declaration under Code of Civil Procedure 430.41(a)(3), presumably because he did not comply with requirements of Code of Civil Procedure 430.41(a)(1) within the time required under Code of Civil Procedure 430.41(a)(2). The Court typically will take such demurrers off calendar for the demurring defendant to comply with the law.

B. CROSS-DEFENDANT VIOLATED CRC §3.1320

The demurrer violates California Rule of Court 3.1320 insofar that the grounds for the demurrer are not set forth in a separate paragraph or state whether each ground applies to the entire complaint. (CRC 3.1320, subd.(a).) Unless the grounds for a demurrer are distinctly stated, it may be disregarded. (Code Civ.Proc. §430.60; CRC 3.1320, subds.(a) &(¢).)

C. SUFFICIENT FACTS ARE PLEAD IN THE CROSS-COMPLAINT.

1. The Intentional Misrepresentation/False Promise/Negligent Misrepresentation Causes of action State Sufficient Facts to State a Claim

Cross-Defendants attack the first three causes of action on the theory that Cruz made no

Cross-Defendants attack the first three causes of action on the theory that Cruz made no representation of fact, but merely described wishful thinking to Abdelaziz. Those are factual issues and a factual analysis i1s improper at the demurrer stage. (Del. E. Webb Corp. v. Structural Materials Co., 123 Cal. App.3d 593, 604.).

representation of fact, but merely described wishful thinking to Abdelaziz. Those are factual issues and a factual analysis i1s improper at the demurrer stage. (Del. E. Webb Corp. v. Structural Materials Co., 123 Cal. App.3d 593, 604.).

The Demurrer zeros in on, and bolds, the word “wish” without an overall analysis of the Fraud Causes of Action. Aside from the word “wish”, the Cross-Complaint contains numerous representations of fact. (Cross-Complaint {5, 6, 7, 8) The Causes of action contain the necessary “how, when, where, to whom, and by what means the representations were tendered’’ needed to be provided and as a matter of law, all alleged facts are deemed to be true as is required for the purpose of a demurrer. (Del. E. Webb Corp. v. Structural Materials Co., supra, 123 Cal. App.3d 593, 604.).day, such determinations are reserved for trial and are not appropriate for a demurrer. For these reasons, the Demurrer to the 1%, 2™ and 3™ Causes of Action should be overruled. Indeed, each and every element is addressed by Mr. Abdelaziz.

2. No contractual claims.

The contract alleged in the cross-complaint was created on or about January 10, 2017. (Exhibit “A” to Cross-Complaint). The complained of acts of Mr. Cruz all pre-dated the existence of the contract, and said contract wouldn’t exist but for the fraud of Mr. Cruz. (Cross-Complaint 195-8.) For these reasons, the Demurrer to the 1%, 2" and 3™ Causes of Action should be overruled.

3. Facts to show Reliance and Intent

Contrary to Cross-Defendants argument, the fraud causes of action do allege reliance (Cross-Complaint 11, 13, 15, 19, 20, 23, 24.) and intent. (Cross-Complaint 49, 11, 12, 14, 15, 18, 19, 24.) For these reasons, the Demurrer to the 1%, 2™ and 3™ Causes of Action should be overruled.

4. Damages

Cross-Defendants argues that Abdelaziz cannot allege resulting damages because Cruz has actually improved the value of the property by $150,000.00. While Mr. Cruz is entitled to this opinion, a demurrer is not the time to argue over the value of the home. For purposes of the

demurrer, Abdelaziz need only allege damages and he has done so in the Cross-Complaint. (Cross-

demurrer, Abdelaziz need only allege damages and he has done so in the Cross-Complaint. (Cross- Complaint Y12, 22, 23, 27). For these reasons, the Demurrer to the 1%, 2™ and 3'¢ Causes of Action should be overruied. D. “Novation” Arguments are Premature

Complaint Y12, 22, 23, 27). For these reasons, the Demurrer to the 1%, 2™ and 3'¢ Causes of Action should be overruied. D. “Novation” Arguments are Premature

Cross-Defendant raises the argument that the contract attached to the Cross-Complaint was extinguished due to a novation by the contract attached to the First Amended Complaint. While this certainly could be argued with a dispositive motion, at this early stage of the pleadings the Cross- Complainants, and frankly the Plaintiff’s, contention with respect to the various contracts must be accepted as true. (Del. E. Webb Corp. v. Structural Materials Co., supra, 123 Cal. App.3d 593, 604.). For these reasons, the Demurrer to the 2", 3™ 4™ and 5% Causes of Action should be overruled.

E. Cross-Complainant’s Elder Financial Abuse Claim is Sufficient to State a Claim

Mr. Abdelaziz was granted possession of the property in late 2017 and has been bombarded with Cruz’ filings ever since. Such wrongful taking/use was alleged in the Cross-Complaint. (Cross-Complaint §932-33.) Additionally the wrongful conduct element has been sufficiently alleged. (Cross-Complaint 932-34, 37.)

II1. CONCLUSION

The Cross-Detendant is attempting to have a trial on the merits at the demurrer stage. The court i1s much too smarter than to fall for this argument. If, however, the Court were to sustain any portion of the Demurrer, Cross-Complainant asks for leave to file an amended complaint to correct

any deficiencies.

Dated: June I_‘Z 2018 ARRA LAW GROUP

. TY KHARAZI, Attorneys for Defendant and CrossdComplainant Mel Abdelaziz

PROOF OF SERVICE

[, Adeline Ortiz, am employed in the County of Fresno, State of California. I am over the age of eighteen (18 years and not a party to this cause. My business address is Yarra Law Group, 2000 Fresno Street, Ste. 300, Fresno, CA 93721. On Jun%@, 2018, I served the document titled as:

OPPOSITION TO DEMURRER TO CROSS-COMPLAINT

[ ] By Fax: transmitting between 9:00 a.m. and 5:00 p.m. on the same day the documents listed above to the persons and fax numbers listed below.

[ ] By Hand: personally delivering the documents listed above to the persons and addresses listed below.

X By Mail: placing the documents listed above in a sealed envelope, with postage thereon fully prepaid, in the United States mail at Fresno, California, and addressed as listed below, following ordinary business practices at Yarra Law Group. I am readily familiar with Yarra Law Group’s business practice of collecting and processing correspondence for mailing with the United States Postal Service. Under that practice, it would be deposited with the United States Postal Service at Fresno, California, with postage thereon fully prepaid, on that same day in the ordinary course of business.

[ ] By Overnight Delivery Service: causing the documents listed above to be picked up by an overnight delivery service company for delivery on the next business day to the persons and addressees listed below.

[] By Personal Delivery: causing personal delivery by of the documents listed above to the persons and addresses listed below.

ATTORNEY/PRO PER PARTY PARTY/PARTIES REPRESENTED

Frank Cruz Self (pro per party) 1708 N. Cedar Ave. Fresno, CA 93703

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on June 20, 2018, at Fresno, California.

Adeline Ortiz

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