This case was last updated from Fresno County Superior Courts on 08/08/2019 at 18:28:20 (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, Bf Sisk Courthouse located in Fresno, California. The Judges overseeing this case are Gamoian, Lisa, Simpson, Alan, Black, Donald, Snauffer, Mark and Diaz, Monica. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******4380

  • Filing Date:

    12/26/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Fresno County Superior Courts

  • Courthouse:

    Bf Sisk Courthouse

  • County, State:

    Fresno, California

Judge Details

Judges

Gamoian, Lisa

Simpson, Alan

Black, Donald

Snauffer, Mark

Diaz, Monica

 

Party Details

Plaintiff and Cross Plaintiff

Cruz, Frank

Defendants and Cross Defendants

Abdelaziz, Mel

California Department of Real Estate

Kharazi, K. Ty

Attorney/Law Firm Details

Defendant and Cross Defendant Attorneys

Kharazi, Hadi-Ty Seyedin

Davidson, Thornton

 

Court Documents

Declaration Filed

Declaration Filed; Comment: in opposition to deem matters admitted motion

Opposition filed

Opposition filed; Comment: to motion to deem matters admitted

Declaration Filed

Declaration Filed; Comment: in oppostion to motion to compel production of documents set one

Opposition filed

Opposition filed; Comment: to motion to compel production of Documents set one

Points and Authorities filed

Points and Authorities filed; Comment: For Motion to Strike Allegations of the Cross Complaint

Notice of Motion

Notice of Motion; Comment: and Motion to: Strike Punitive Damage Allegations of the Cross-Complaint

Demurrer Filed

Demurrer Filed; Comment: Drmurrer to Cross Complaint

Notice Filed

Notice Filed; Comment: Notice of Hearing on Demurrer to Cross Complaint

Order filed

Civil Document; Judicial Officer: Black, Donald; Comment: authorizing of a Notice of action pending

Opposition filed

Opposition filed; Comment: Regarding Omitted Exhibit "A" to Cruz's Declaration in Opposition to Motion to Compel Production of Documents Set One

Opposition filed

Opposition filed; Comment: to Motion to Compel Responses to Form Interrogatories - General, Set Two

Abstract of Judgment Issued

Abstract; Comment: In the amount of $2,510.00

Declaration Filed

Declaration; Comment: Declaration of H. Ty Kharazi in Reply to Opposition to Deem Matters Admitted

Declaration Filed

Declaration; Comment: Declaration of H. Ty Kharazi in Reply to Opposition to Motion to Compel Production of Documents

Declaration Filed

Declaration Filed; Comment: Addendum Declaration of Cruz Regarding Omitted Exhibit "A"

Opposition filed

Opposition filed; Comment: to Motion to Compel Depostion

Declaration Filed

Declaration Filed; Comment: in Opposition to Motion to Comple

Stipulation and Order filed

Civil Document; Judicial Officer: Black, Donald; Comment: continue discovery motion

149 More Documents Available

 

Docket Entries

  • 10/01/2019
  • General Motion- Judicial Officer: Simpson, Alan; Hearing Time: 3:27 PM; Comment: Release mechanic's lein - Ty Kharazi

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  • 10/01/2019
  • Motion - Attorney Fees- Judicial Officer: Simpson, Alan; Hearing Time: 3:27 PM; Comment: Thornton Davidson

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  • 09/04/2019
  • Status Conference- Judicial Officer: Simpson, Alan; Hearing Time: 3:28 PM; Comment: Set at 7/17/19 hearing

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  • 07/23/2019
  • View Court Documents
  • Minute Order Attachment- Minute Order Attachment

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  • 07/23/2019
  • General Motion- Judicial Officer: Simpson, Alan; Hearing Time: 3:27 PM; Result: Uncontested; Comment: Declare Vexatious Litigant - Ty Kharazi

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  • 07/23/2019
  • Motion - SLAPP Motion- Judicial Officer: Simpson, Alan; Hearing Time: 3:27 PM; Result: Uncontested; Comment: Ty Kharazi

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  • 07/17/2019
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  • Minute Order Attachment- Minute Order Attachment

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  • 07/17/2019
  • Trial Setting Conference- Judicial Officer: Simpson, Alan; Hearing Time: 3:28 PM; Result: Heard

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  • 07/01/2019
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  • Objection filed- Objection; Comment: to The Declaration of Nataesha Mitchell and Ruling Thereon

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  • 07/01/2019
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  • Declaration Filed- Declaration; Comment: in Support of Special Motion to Strike Pursuant to CCP 425.16 (Anti-SLAPP)

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254 More Docket Entries
  • 09/18/2018
  • Financial info for Cruz, Frank: Transaction Assessment $60.00

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  • 06/13/2018
  • Financial info for Cruz, Frank: Counter Payment Receipt # CIVIL-2018-00007079 Cruz, Frank $60.00

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  • 06/13/2018
  • Financial info for Cruz, Frank: Transaction Assessment $60.00

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  • 06/08/2018
  • Financial info for Cruz, Frank: Counter Payment Receipt # CIVIL-2018-00006853 Cruz, Frank $20.00

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  • 06/08/2018
  • Financial info for Cruz, Frank: Transaction Assessment $20.00

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  • 06/05/2018
  • Financial info for Cruz, Frank: Counter Payment Receipt # CIVIL-2018-00006665 Cruz, Frank $60.00

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  • 06/05/2018
  • Financial info for Cruz, Frank: Transaction Assessment $60.00

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  • 01/17/2018
  • Financial info for Cruz, Frank: Transaction Assessment $5.00

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

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

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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