This case was last updated from Los Angeles County Superior Courts on 09/13/2021 at 14:46:50 (UTC).

ZEMANEK & MILLS, A PROFESSIONAL CORPORATION VS HASSEN REAL ESTATE PARTNERSHIP, A CALIFORNIA LIMITED PARTNERSHIP, ET AL.

Case Summary

On 04/12/2018 ZEMANEK MILLS, A PROFESSIONAL CORPORATION filed a Contract - Other Contract lawsuit against HASSEN REAL ESTATE PARTNERSHIP, A CALIFORNIA LIMITED PARTNERSHIP. This case was filed in Los Angeles County Superior Courts, Metropolitan Courthouse located in Los Angeles, California. The Judges overseeing this case are JON R. TAKASUGI and ERNEST M. HIROSHIGE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******5635

  • Filing Date:

    04/12/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Judges

JON R. TAKASUGI

ERNEST M. HIROSHIGE

 

Party Details

Plaintiff and Cross Defendant

ZEMANEK & MILLS A PROFESSIONAL CORPORATION

Defendants and Cross Plaintiffs

HASSEN REAL ESTATE CORPORATIONA CALIFORNIA CORPORATION

ALHASSEN ZIAD

HASSEN REAL ESTATE PARTNERSHIP A CALIFORNIA LIMITED PARTNERSHIP

HASSEN REAL ESTATE CORPORATION A DELAWARE CORPORATION

Attorney/Law Firm Details

Plaintiff Attorneys

MILLS STEPHAN ALAN

MILLS STEPHAN

Defendant Attorney

WALTON JOHN

 

Court Documents

Stipulation Re: Settlement Conference - Stipulation Re: Settlement Conference STATEMENT OF POLICIES AND PROCEDURES FOR MANDATORY SETTLEMENT CONFERENCES ACKNOWLEDGMENT OF RECEIPT AND STIPULATION

3/29/2021: Stipulation Re: Settlement Conference - Stipulation Re: Settlement Conference STATEMENT OF POLICIES AND PROCEDURES FOR MANDATORY SETTLEMENT CONFERENCES ACKNOWLEDGMENT OF RECEIPT AND STIPULATION

Minute Order - Minute Order (Non-Jury Trial)

10/10/2019: Minute Order - Minute Order (Non-Jury Trial)

Substitution of Attorney - Substitution of Attorney

12/4/2019: Substitution of Attorney - Substitution of Attorney

Substitution of Attorney - Substitution of Attorney

12/4/2019: Substitution of Attorney - Substitution of Attorney

Answer - Answer

12/5/2019: Answer - Answer

Declaration (name extension) - Declaration Supplemental Declaration of Ali Vaqar in Support of Defendants Hassen Real Estate Partnership and Hassen Real Estate Corporation's Ex Parte Application to Va

12/5/2019: Declaration (name extension) - Declaration Supplemental Declaration of Ali Vaqar in Support of Defendants Hassen Real Estate Partnership and Hassen Real Estate Corporation's Ex Parte Application to Va

Cross-Complaint - Cross-Complaint

12/5/2019: Cross-Complaint - Cross-Complaint

Answer - Answer

12/5/2019: Answer - Answer

Motion to Vacate (name extension) - Motion to Vacate Defendants Hassen Real Estate Partnership and Hassen Real Estate Corporation's Motion to Vacate the Trial Date and Related Deadlines

12/5/2019: Motion to Vacate (name extension) - Motion to Vacate Defendants Hassen Real Estate Partnership and Hassen Real Estate Corporation's Motion to Vacate the Trial Date and Related Deadlines

Notice of Rejection of Electronic Filing - Notice of Rejection of Electronic Filing

12/5/2019: Notice of Rejection of Electronic Filing - Notice of Rejection of Electronic Filing

Stipulation and Order to use Certified Shorthand Reporter - Stipulation and Order to use Certified Shorthand Reporter

12/9/2019: Stipulation and Order to use Certified Shorthand Reporter - Stipulation and Order to use Certified Shorthand Reporter

Ex Parte Application (name extension) - Ex Parte Application Defendants Hassen Real Estate Partnership and Hassen Real Estate Corporation's Ex Parte Application to Vacate the Trial Date and Related De

12/9/2019: Ex Parte Application (name extension) - Ex Parte Application Defendants Hassen Real Estate Partnership and Hassen Real Estate Corporation's Ex Parte Application to Vacate the Trial Date and Related De

Minute Order - Minute Order (Hearing on Ex Parte Application to Vacate the Trial Date and...)

12/9/2019: Minute Order - Minute Order (Hearing on Ex Parte Application to Vacate the Trial Date and...)

Notice of Ruling - Notice of Ruling

12/9/2019: Notice of Ruling - Notice of Ruling

Opposition (name extension) - Opposition To Ex Parte Application of Defendants Hassen Real Estate Partnership and Hassen Real Estate Corporation to Vacate the Trial Date and Related Deadlines; Declara

12/9/2019: Opposition (name extension) - Opposition To Ex Parte Application of Defendants Hassen Real Estate Partnership and Hassen Real Estate Corporation to Vacate the Trial Date and Related Deadlines; Declara

Minute Order - Minute Order (Non-Jury Trial)

12/10/2019: Minute Order - Minute Order (Non-Jury Trial)

Notice of Ruling - Notice of Ruling

12/12/2019: Notice of Ruling - Notice of Ruling

Request for Judicial Notice - Request for Judicial Notice

1/14/2020: Request for Judicial Notice - Request for Judicial Notice

64 More Documents Available

 

Docket Entries

  • 03/29/2021
  • DocketStipulation Re: Settlement Conference STATEMENT OF POLICIES AND PROCEDURES FOR MANDATORY SETTLEMENT CONFERENCES ACKNOWLEDGMENT OF RECEIPT AND STIPULATION; Filed by: Clerk

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  • 03/29/2021
  • DocketThis case is assigned to Judge Ernest M. Hiroshige in Department 70 at Metropolitan Courthouse for trial purposes only.

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  • 03/29/2021
  • DocketNon-Jury Trial scheduled for 03/29/2021 at 10:30 AM in Metropolitan Courthouse at Department 70

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  • 03/29/2021
  • DocketLimited Jurisdiction Trial Transfer Order to Judge Hiroshige, Dept. 70, Metropolitan, OTR today at 10:30 a.m. Signed and Filed by: Clerk

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  • 03/29/2021
  • DocketElection to Forgo Affidavit (CCP Section 170.6); Filed by: Clerk

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  • 03/29/2021
  • DocketMinute Order (Non-Jury Trial)

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  • 03/29/2021
  • DocketNon-Jury Trial scheduled for 03/29/2021 at 08:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 03/29/2021; Result Type to Held

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  • 03/29/2021
  • DocketHearing on Motion to Compel Further Discovery Responses scheduled for 04/15/2021 at 10:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 03/29/2021

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  • 03/29/2021
  • DocketHearing on Motion to Compel Further Discovery Responses scheduled for 05/04/2021 at 10:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 03/29/2021

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  • 03/29/2021
  • DocketMinute Order (Court Order matter is assigned for court trial)

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91 More Docket Entries
  • 06/13/2018
  • DocketAmendment to Complaint (Fictitious/Incorrect Name) Amendment to Complaint/Order: Hassen Real Estate Corporation, a Delaware Corporation; Filed by: Zemanek & Mills, A Professional Corporation (Plaintiff); As to: Hassen Real Estate Partnership, a California Limited Partnership (Defendant); Type: Fictitious Name

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  • 06/13/2018
  • DocketProof of Service by Substituted Service; Filed by: Zemanek & Mills, A Professional Corporation (Plaintiff); As to: Hassen Real Estate Partnership, a California Limited Partnership (Defendant); Proof of Mailing Date: 06/12/2018; Service Cost: 48.58; Service Cost Waived: No

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  • 06/13/2018
  • DocketProof of Service by Substituted Service; Filed by: Zemanek & Mills, A Professional Corporation (Plaintiff); As to: Hassen Real Estate Corporationa California Corporation (Defendant); Proof of Mailing Date: 06/12/2018; Service Cost: 118.58; Service Cost Waived: No

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  • 04/12/2018
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 04/12/2018
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 04/12/2018
  • DocketCivil Case Cover Sheet; Filed by: Zemanek & Mills, A Professional Corporation (Plaintiff)

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  • 04/12/2018
  • DocketComplaint; Filed by: Zemanek & Mills, A Professional Corporation (Plaintiff); As to: Hassen Real Estate Partnership, a California Limited Partnership (Defendant); Hassen Real Estate Corporationa California Corporation (Defendant); Ziad Alhassen (Defendant)

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  • 04/12/2018
  • DocketCase assigned to Hon. Jon R. Takasugi in Department 77 Stanley Mosk Courthouse

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  • 04/12/2018
  • DocketNon-Jury Trial scheduled for 10/10/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 77

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  • 04/12/2018
  • DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 04/15/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 77

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Tentative Rulings

Case Number: 18STLC05635    Hearing Date: February 08, 2021    Dept: 25

HEARING DATE: Mon., February 8, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Zemanek & Mills, APC v. Hassen Real Estate Partnership, LP, et al.

CASE NUMBER: 18STLC05635 COMP. FILED: 04-12-18

NOTICE: OK DISC. C/O: 02-09-21

MOTION C/O: 02-24-21

TRIAL DATE: 03-11-21

PROCEEDINGS: DEMURRER TO SECOND AMENDED CROSS-COMPLAINT

MOVING PARTY: Plaintiff/Cross-Defendant Zemanek & Mills, APC

RESP. PARTY: Defendant/Cross-Complainant Hassen Real Estate Partnership

DEMURRER

(CCP § 430.40, et seq.)

TENTATIVE RULING:

Plaintiff/Cross-Defendant Zemanek & Mills, APC’s Demurrer to Defendant’s Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on January 26, 2021 [ ] Late [ ] None

REPLY: Filed on February 1, 2021 [ ] Late [ ] None

ANALYSIS:

  1. Background

On April 12, 2018, Plaintiff Zemanek & Mills, APC (“Plaintiff”) filed a Complaint for breach of contract and common counts against Defendants Hassen Real Estate Corporation (“HREC”), Hassen Real Estate Partnership (“HREP”), and Ziad Alhassen (“Alhassen”).

On December 5, 2019 Defendants HREC and HREP filed an Answer. HREP also filed a Cross-Complaint against Plaintiff for breach of fiduciary duty, unjust enrichment, unfair, unlawful, and fraudulent business practices, conversion, and for an accounting.

On February 14, 2020, Plaintiff filed a demurrer to the Cross-Complaint. Following Plaintiff’s demurrer, HREP filed a First Amended Cross-Complaint (“FACC”) on February 26, 2020.

On March 27, 2020, Plaintiff filed a demurrer to HREP’s FACC, which was scheduled for hearing for August 4, 2020. After taking the matter under submission, the Court sustained the demurrer as to the first through fifth causes of action but granted HREP twenty days’ leave to amend the FACC to include a fraud cause of action. (8/18/20 Minute Order.) HREP filed its Second Amended Cross-Complaint (“SACC”) on September 8, 2020.

Plaintiff filed the instant Demurrer to the SACC (the “Demurrer”) on October 13, 2020. On January 26, 2021, HREP filed an Opposition and on February 1, Plaintiff filed a Reply.

  1. Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of (1) Pages 1 and 6 of the civil case summary for Case No. BC527912 entitled Hassen Real Estate Partnership v. Fitness & Sports Clubs, LLC; (2) HREP’s Cross-Complaint filed on December 5, 2019; (3) HREP’s FACC filed on February 26, 2020; (4) this Court’s tentative ruling for the August 4, 2020 hearing; (5) this Court’s August 18, 2020 Minute Order. (Dem., RJN ¶¶ 1-5, Exhs. 1-5.)

Plaintiff’s request is GRANTED as to Nos 2-5. (Evid. Code, § 452, subd. (d).) Judicial notice is DENIED as to No. 1, however, because it is not a court record nor falls within any other category of permissible judicial notice.

  1. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

  1. Discussion

The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41, subdivision (a). (Dem., Mills Decl., ¶¶ 2-3.)

Plaintiff demurs to the fraud cause of action on the basis that it is barred by the statute of limitations and that it fails to allege sufficient facts. (Dem., pp. 1:14-4:13.)

The elements of fraud are “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Every element of the fraud cause of action must be pleaded specifically, and the policy of liberal construction of the pleadings will not sustain a defective pleading. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1332.) Thus, the plaintiff must plead the “ ‘ “how, when, where, to whom, and by what means the representations were [made].” ’ ” (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645.) An action for relief on the ground of fraud must be commenced within three years. (Code Civ. Proc., 338, subd. (d).) “The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (Id.)

Essentially, HREP alleges that Plaintiff, as HREP’s former counsel, overbilled for its services and mismanaged funds resulting in a surplus that was due to HREP but which Plaintiff concealed. (SACC, ¶¶ 2, 19, 21, 23, 25, 30, 38, 40, 59.) Specifically, HREP alleges, in pertinent part: (1) that in November 2013, Plaintiff represented HREP in a real estate related matter; (2) that HREP paid fees of $15,000.00 in November 2013, fees of $10,000.00 in December 2013, and fees of $10,000.00 in January 2014; (3) that Plaintiff made multiple demands for additional advance payment of fees and threatened to withdraw from representation if payments were not made; (4) that Plaintiff stopped performing work after January 2014 and abandoned the case in May 2014 when Plaintiff filed a motion to be relieved as counsel; (5) that in April 2014, HREP made an additional $10,000.00 payment believing it to be the final payment and settlement of the fees allegedly owed to Plaintiff; (6) that in June 2014, the court granted Plaintiff’s motion to be relieved as counsel; (7) that in July 2014, Plaintiff again requested payment of allegedly outstanding fees; (8) that between July 2014 and February 2018, Plaintiff intentionally concealed that they believed fees were still owed; and (9) that in February 2018, Plaintiff again requested payment for allegedly owed fees of $12,000.00. (Id.)

The Court finds HREP’s claim based on fraud is barred by the three-year statute of limitations. HREP argues Plaintiff concealed the existence of a surplus, so HREP could not have been on inquiry notice of a potential cause of action. (Oppo., p. 11:5-8.) Even if HREP was put on inquiry notice, it argues, when inquiry notice occurred is a question of fact. (Id.)

“When inquiry notice applies, ‘if [a party] [becomes] aware of fajunects which would make a reasonably prudent person suspicious, [the party] [has] a duty to investigate further, and [is] charged with knowledge of matters which would have been revealed by such an investigation.’ [Citation.] (Krolikowski v. San Diego Employees’ Retirement System (2008) 24 Cal.App.5th 537, 562.)

At minimum, HREP was put on inquiry notice of Plaintiff’s alleged concealment of funds in July 2014. Notably, HREP alleges that Plaintiff stopped working on the underlying real estate matter in January 2014 and that it believed it paid any outstanding fees in April 2014, yet received an additional demand for outstanding fees in July 2014. Plaintiff’s July 2014 demand should have prompted HREP to investigate further. That Plaintiff did not seek payment of further fees after the July 2014 invoice was sent and through February 2018 does not take away from the fact HREP was put on inquiry notice in July 2014 of Plaintiff’s potential wrongdoing. Thus, the fraud cause of action accrued in July 2014.

HREP’s argument in Opposition that the statutory period was tolled because Plaintiff lulled HREP into a false sense of security is also not persuasive. (Oppo., pp. 12:5-18.) HREP alleges that, in December 2014, Plaintiff disclosed to Tarif Alhassen (“Tarif”), an agent of HREP seeking legal representation for an affiliate company of HREP, Bently, the following: (1) that Plaintiff had previously represented HREP, (2) that Plaintiff had withdrawn from representation because, among other things, HREP had not paid attorney’s fees, and (3) that no further claims existed against HREP. (SACC ¶¶ 33-34.) HREP does not allege or argue in its Opposition, however, that Tarif discussed the July 2014 invoice in December 2014. Indeed, HREP presents no allegations that it took any affirmative steps to investigate the July 2014 invoice, which was received after the attorney-client relationship was terminated by the court, three months after HREP made what it believed was the last payment, and seven months after Plaintiff allegedly stopped doing any work for the real-estate matter. Given circumstances, HREP had a duty to investigate the July 2014 invoice further.

Because any potential fraud cause of action accrued in July 2014, the statute of limitations ran in July 2017. As HREP’s Cross-Complaint was not filed until December 2019, it is time-barred. Plaintiff’s Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

  1. Conclusion & Order

For the foregoing reasons, Plaintiff/Cross-Defendant Zemanek & Mills, APC’s Demurrer to Defendant’s Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Moving party is ordered to give notice.

Case Number: 18STLC05635    Hearing Date: August 04, 2020    Dept: 25

HEARING DATE: Tue., August 4, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Zemanek & Mills, APC v. Hassen Real Estate Partnership, LP, et al.

CASE NUMBER: 18STLC05635 COMP. FILED: 04-12-18

NOTICE: OK DISC. C/O: 02-09-21

MOTION C/O: 02-24-21

TRIAL DATE: 03-11-21

PROCEEDINGS: DEMURRER TO FIRST AMENDED CROSS-COMPLAINT

MOVING PARTY: Plaintiff/Cross-Defendant Zemanek & Mills, APC

RESP. PARTY: Defendant/Cross-Complainant Hassen Real Estate Partnership

DEMURRER

(CCP § 430.40, et seq.)

TENTATIVE RULING:

Plaintiff/Cross-Defendant Zemanek & Mills, APC’s Demurrer to Defendant’s Cross-Complaint is SUSTAINED as to the first through fifth causes of action. Defendant HREP is granted 20 DAYS’ LEAVE TO AMEND.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on July 22, 2020 [ ] Late [ ] None

REPLY: Filed on July 28, 2020 [ ] Late [ ] None

ANALYSIS:

  1. Background

On April 12, 2018, Plaintiff Zemanek & Mills, APC (“Plaintiff”) filed a Complaint for breach of contract and common counts against Defendants Hassen Real Estate Corporation (“HREC”), Hassen Real Estate Partnership (“HREP”), and Ziad Alhassen (“Alhassen”).

On December 5, 2019 Defendants HREC and HREP filed an Answer. HREP also filed a Cross-Complaint against Plaintiff for breach of fiduciary duty, unjust enrichment, unfair, unlawful, and fraudulent business practices, conversion, and for an accounting.

On February 14, 2020, Plaintiff filed a demurrer to the Cross-Complaint. Following Plaintiff’s demurrer, HREP filed a First Amended Cross-Complaint (“FACC”) on February 26, 2020.

On March 27, 2020, Plaintiff filed the instant Demurrer to First Amended Cross-Complaint (the “Demurrer”). On July 22, 2020, HREP filed an Opposition and on July 28, 2020, Plaintiff filed a Reply.

  1. Request for Judicial Notice

HREP requests that the Court take judicial notice of (1) HREP’s First Amended Cross-Complaint filed February 26, 2020; (2) HREP’s Brief re Order to Show Cause re Dismissal of Cross-Complaint filed on January 14, 2020; (3) LASC Case Information re HREP v. Fitness & Sports Clubs, LLC, Case No. BC527912; (4) the Court’s January 31, 2020 Minute Order; and (5) HREP’s Cross-Complaint filed on December 6, 2019. (Oppo., RJN, p. 1, ¶¶ 1-5, Exhs. 1-5.)

Relying on Richtek USA, Inc. v. uPI Semiconductor Corp (2015) 242 Cal.App.5th 651, Plaintiff argues the Court cannot take judicial notice of the contents of the documents and accept them as true simply because they are part of the court record. (Objections to Def’s RJN, p. 1, ¶ C.)

The Court notes it is not taking judicial notice of the truth of any assertions stated in Defendants’ pleadings. Rather, it is taking judicial notice of the existence of the documents and records. (Richtek USA, Inc. v. uPI Semiconductor Corp, supra, 242 Cal.App.5th at p. 660-61.)

Thus, judicial notice is GRANTED. (Evid. Code, § 452, subd. (d).)

  1. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

  1. Discussion

As an initial matter, the Court notes that Plaintiff’s Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41, subdivision (a). (Dem., Mills Decl., ¶ 2.)

Plaintiff demurs to HREP’s FACC on the basis that all causes of action fail to state sufficient facts to constitute any cause of action and are all barred by the one-year statute of limitations under Code of Civil Procedure section 340.6. (Dem., pp. 3-4.)

A. Summary of HREP’s FACC Allegations

In its FACC, HREP alleges the following: Plaintiff and HREP entered into an attorney-client agreement for certain real estate-related matters (the “HREP Matter”). (FACC, ¶ 1.) Plaintiff represented HREP from November 2013 through approximately May 2014, when Plaintiff filed a motion to be relieved as counsel. (Id. at ¶¶ 2, 30.) Plaintiff stopped performing any work on the HREP Matter after January 2014. (Id. at ¶ 30.) Around the same time, Plaintiff also represented HREC’s president Ziad Alhassen and his wife on a personal matter (the “Alhassen Matter”). (Id. at ¶¶ 1, 11, 16.) Plaintiff did not obtain a conflict waiver from HREP for representing both it and Ziad Alhassen, and funds from both clients were deposited in Plaintiff’s operating account, not a client account. (Id. at ¶¶ 16, 17.) Both matters were to be billed separately. (Id. at ¶ ¶1, 15.) HREP’s agreement required that it pay a reasonable estimate of the amount of fees and costs that would be incurred in the upcoming month, and any advanced fees not actually incurred would be promptly refunded. (Id. at ¶¶ 21, 22.) HREP made payments of $15,000 in November 2013, $10,000 in December 2013, $10,000 in January 2014, and $10,000 in April 2014 to Plaintiff. (Id. at ¶¶ 3, 4, 21, 30.) HREP believed the April 2014 payment was a “final payment and settlement of the fees purportedly owed to [Plaintiff].” (Id. at ¶ 30.) However, the April 2014 payment resulted in a surplus that should have been immediately returned to HREP. (Id. at ¶ 31.) Plaintiff concealed the surplus funds for its own benefit. (Id.) In July 2014, Plaintiff again requested payment of alleged outstanding fees related to the HREP matter. (Id. at ¶ 38.)

In December 2014, Plaintiff engaged in representation of a different company affiliated with HREP, Bently Real Estate, LLC (“Bently”). (Id. at ¶ 33.) Between the end of 2014 and 2015, Plaintiff, through attorney, Stephen Mills (“Attorney Mills”), had several conversations with Tarif Alhassen (“Tarif”), an agent for both Bently and HREP. (Id. at ¶¶ 33, 34.) Attorney Mills represented to agent Tarif Alhassen Plaintiff had no further claims against HREP for fees and costs in connection with the HREP Matter and that if any dispute existed, it was between Ziad Alhassen and Plaintiff. (Id. at ¶¶ 33, 34.) Plaintiff did not disclose to agent Tarif Alhassen it intended to recover further payments from HREP. (Id. at ¶ 36.) Between 2015 and 2018, Plaintiff did not make any demands as to the unpaid attorney’s fees in the HREP Matter. (Id. at ¶¶ 36, 40.) Following the conclusion of the Bently matter, in February 2018, Plaintiff requested payment of allegedly outstanding fees again. (Id. at ¶¶ 38, 39.) Plaintiff intentionally concealed the fact that they believed they were owed money to ensure agent Tarif Alhassen hired Plaintiff for the Bently matter. (Id. at ¶¶ 36, 40.)

B. First Cause of Action – Breach of Fiduciary Duty

“The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach. [Citation.]” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 646.)

HREP alleges that Plaintiff, as its attorney, owed a fiduciary duty to HREP. (FACC, ¶¶ 43, 44.) It also alleges that Plaintiff breached that duty by comingling HREP funds with that of other clients, including Ziad Alhassen, by using those funds to cover fees incurred in the Ziad Alhassen matter, by failing to disclose that Ziad Alhassen was misappropriating HREP funds, by misrepresenting and failing to disclose it believed HREP had not fully paid the balance of the fees owed in April 2014, by failing to obtain a conflict waiver from the HREP and HREC while Plaintiff represented both HREP and Ziad Alhassen, and by charging excessive fees given that Plaintiff was hired to argue a relatively simple matter. (Id. at ¶¶ 45-47.) As a result, HREP alleges it was damaged in an amount subject to proof but not less than $10,000. (Id. at ¶¶ 50-51.)

Plaintiff argues this cause of action is barred by the one-year statute of limitations period in Code of Civil Procedure section 340.6. (Dem., p. 3:18-21.)

Code of Civil Procedure section 340.6 provides, in relevant part:

“(a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful omission, whichever occurs first…Except for a claim for which the plaintiff is required to establish his or her factual innocence, in no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist:

(1) The plaintiff has not sustained an actual injury.

(2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.

(3) The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation.

(Code Civ. Proc., §§ 340.6, subds. (a)(1)-(3).)

Section 340.6, subdivision (a), applies to claims other than strictly professional negligence claims, but does not apply to claims that do not depend on proof that the attorney violated a professional obligation. (Connelly v. Bornstein (2019) 33 Cal.App.5th 783, 791.) “Unless tolled, a claim based on either [legal malpractice or breach of fiduciary duty] falls within the statutory term “wrongful act or omission” and must be commenced within one year after the client discovers, or with reasonable diligence should have discovered, the facts constituting the act or omission, or four years from the date of the omission, whichever occurs first.” (Stoll v. Superior Court (1992) 9 Cal.App.4th 1362, 1363-64.) (Emphasis added.)

Here, Defendant’s FACC alleges that Plaintiff continued to represent it until May 2014, when Plaintiff filed a motion to be relieved as counsel. (FACC ¶¶ 2, 30.) Thus, the statute of limitations was tolled until at least May 2014. (Code Civ. Proc., § 340.6, subd. (a)(2).) Plaintiff argues the crux of Defendant’s action can be categorized into two major claims, the “Overbilling Claim” and the “Misallocation Claim.” (Dem., p. 1:15-21; pp. 3:18-4:14.)

Plaintiff argues HREP had knowledge of the facts relating to the Overbilling Claim, because Plaintiff’s November 2013 invoice specifies the amount of time spent by Plaintiff on performing the legal tasks HREP now claims was excessive. (Dem., p. 6:23-24.) Indeed, the FACC alleges that it received at least two invoices in 2013, indicating Plaintiff spent 35 hours researching and preparing an ex parte application and temporary restraining order in November, and another 8 hours preparing a first amended complaint and 2 hours preparing a notice of default at some unspecified later date. (FACC, ¶¶ 28, 29.) It also alleges these fees were “disproportionate to the fees seasoned attorneys in [Plaintiff’s] position would have incurred in enforcing a relatively simple ‘radius clause.’” (Id. at ¶ 29.) Defendant HREP’s allegations show that it was put on notice that the fees were excessive when it received those invoices in 2013. As noted above, the statute of limitations was tolled until May 2014, when HREP alleges Plaintiff abandoned the case and filed a motion to withdraw as counsel. (Code Civ. Proc., § 340.6, subd. (a)(2); FACC, ¶ 30.) Thus, the one-year statute of limitations as to the Overbilling Claim expired in May 2015.

Plaintiff also argues HREP’s FACC demonstrates it had actual notice of all facts germane to the Misallocation Claim. (Dem., p. 6:14-22.) Plaintiff points to HREP’s allegation that in a December 24, 2013 email, Plaintiff confirmed it was allocating a $10,000 advance to fees in the Alhassen matter. (Id.) However, Plaintiff mischaracterizes the allegations. Indeed, the FACC states that Attorney Mills sent an email to Ziad Alhassen confirming he agreed to transfer $10,000 for Plaintiff’s future legal fees regarding the Alhassen matter, and that he would pay any remaining balance the following week, but that Ziad Alhassen separately stated $10,000 would be advanced to pay fees regarding the HREP Matter. (FACC, ¶ 23.) Indeed, in the next paragraph, HREP alleges that the $10,000 HREP funds were applied to the Alhassen matter without permission or knowledge of either HREP or Ziad Alhassen. (Id. at ¶ 24.) HREP further alleges Plaintiff concealed that HREP’s client account balance was positive and misappropriated funds that should have been reimbursed in order to secure its own fees at HREP’s expense. (Id. at ¶¶ 27, 50.) Defendant further alleges that it relied on the accuracy and truth of the representation of Plaintiff as its attorney, that they knew exclusively how funds were being allocated. (Id. at ¶ 27.) However, Plaintiff’s demand for additional attorney’s fees in July 2014 put HREP on inquiry notice that funds may have been misallocated or misappropriated. (Id. at ¶¶ 38.) This is further highlighted by HREP’s allegation that it believed the April 2014 $10,000 payment was a final settlement of all outstanding attorney’s fees. (Id. at ¶ 30.) Indeed, once a party discovers facts that put it on inquiry notice of a potential wrongdoing, the one-year statute of limitations begins to run even if the attorney conceals the actual wrongdoing he or she committed. (Code Civ. Proc., § 340.6, subd. (a)(3).) Because of this, the statute of limitations expired in July 2015.

Based on the above, the Court finds that HREP was aware of the facts that constituted the wrongful act or omission at the latest in July 2014 and thus the statute of limitations ran at the latest in July 2015. Accordingly, Plaintiff’s demurrer as to the first cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

C. Second Cause of Action – Unjust Enrichment

While some California courts recognize unjust enrichment as a cause of action, it is not recognized in the second appellate district. (De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 870.) Rather, unjust enrichment is a “general principle, underlying various legal doctrines and remedies” and is “synonymous with restitution.” (McBride v. Boughton (2004) 13 Cal.App.4th 379, 387; see also Levine v. Blue Shield of California (2010) Cal.App.4th 1117, 1138.) Restitution can be awarded in lieu of damages when an express contract exists but is void because it was procured by fraud or is unenforceable for some other reason or was rescinded. (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 233 Cal.App.4th 221, 231.) “A claim for restitution is permitted even if the party inconsistently pleads a breach of contract claim that alleges the existence of a contract.” (Ibid.)

However, because restitution is a remedy and not a cause of action (Reid v. City of San Diego (2018) 24 Cal.App.5th 343, 362), Plaintiff’s demurrer to the third cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

D. Third Cause of Action – Violation of Business and Professions Code section 17200 et seq.

HREP argues that Plaintiff engaged in unfair, unlawful, and fraudulent business practices by co-mingling client funds, failing to obtain client waivers, failing to notify HREP that Ziad Alhassen was misappropriating funds, diverting funds to cover other clients’ attorney’s fees, continuing to demand payments of excessive attorney’s fees and concealing that it had diverted and applied HREP funds to fees incurred in other matters. (FACC ¶¶ 58-66.) However, the one-year statute of limitations provision codified in Code of Civil Procedure section 340.6 applies to HREP’s unfair business practices and conversion claims. (Foxen v. Carpenter (2015) 6 Cal.App.5th 284, 296.) As noted above, HREP had knowledge of the facts underlying Plaintiff’s alleged wrongdoing, putting HREP on inquiry notice.

For all the reasons explained above, HREP’s third cause of action is barred by the one-year statute of limitations under Section 340.6. Thus, Plaintiff’s demurrer as to the third cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

E. Fourth Cause of Action – Conversion

“Conversion is the wrongful exercise or dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages…” (Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 208.)

Plaintiff again argues the one-year state of limitations applies to HREP’s conversion claim. (Dem., p. 13:19-23.) In Opposition, HREP argues that Section 340.6 does not necessarily apply because its claims do not necessarily depend on the violation of a professional obligation. (Oppo., p. 13:9 – 14:2.) Indeed, when a claim of conversion does not necessarily depend on proof that an attorney violated a professional obligation, the action is not governed by section 340.6. (Lee v. Henley (2015) 61 Cal.4th 1225, 1240.) In Lee, plaintiff, a client, alleged she advanced funds to attorney defendant, but that defendant refused to return those fees when the representation concluded. (Id. at p. 1229.)

HREP’s case is distinguishable. HREP does not allege that it demanded Plaintiff return any fees advanced or that Plaintiff refused to do so after any such demand. (See FACC generally.) Indeed, HREP’s conversion claim is centered around Plaintiff’s use and application of HREP’s funds and the violation of professional obligations owed to HREP, not some other independent fact unrelated to Plaintiff’s professional obligations. (FACC, ¶¶ 67-72.)

Thus, the Court finds that the one-year statute of limitation applies to HREP’s conversion claim, and for the reasons discussed above, is time-barred. Plaintiff’s demurrer as to the fourth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

F. Fifth Cause of Action – Accounting

“A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.) “The right to an accounting can arise from the possession by the defendant of money or property which, because of the defendant’s relationship with the plaintiff, the defendant is obliged to surrender.” (Id. at p. 179-80.) The attorney-client relationship often requires attorneys to provide non-legal services, such as an accounting. (Foxen v. Carpenter, supra, 6 Cal.App.5th at p. 291-92.) “In light of the Legislature’s intent that section 340.6 cover more claims than for legal malpractice, the term ‘professional services’ is best understood to include nonlegal services governed any an attorney’s professional obligations.” (Id.) Thus, Section 340.6 applies to causes of action for an accounting. (Id. at p. 293.)

As noted above, HREP’s FACC demonstrates that it was put on at inquiry notice in July 2014 at the latest when Plaintiff claimed additional attorney’s fees, given that HREP believed all attorney’s fees were settled by the April 2014 $10,000 payment. (FACC ¶ 30.) For all of the reasons noted above, the Court finds HREP’s fifth cause of action is barred by the one-year statute of limitations in Section 340.6. Thus, Plaintiff’s demurrer as to the fifth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

G. Actual Fraud

In Opposition, HREP argues that Section 340.6 does not apply because Plaintiff’s actions constitute actual fraud. (Oppo., p. 12:1-13:8.)

The elements of fraud are “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Every element of the fraud cause of action must be pleaded specifically, and the policy of liberal construction of the pleadings will not sustain a defective pleading. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1332.) Thus, the plaintiff must plead the “ ‘ “how, when, where, to whom, and by what means the representations were [made].” ’ ” (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645.)

Fraudulent concealment is a form of actual fraud, which requires that a defendant intentionally conceal or suppress a fact with the intent to defraud the plaintiff. (Stueve Bros. Farms, LLC v. Berger Khan (2013) 222 Cal.App.4th 303, 322.) Because fraudulent concealment is a species of actual fraud, the time limitations of Section 340.6 do not apply. (Id.)

Here, HREP’s allegations of Plaintiff’s willful acts and omissions may constitute a cause of action for actual fraud. Thus, HREP is GRANTED 20 DAYS' LEAVE TO AMEND.

  1. Conclusion & Order

For the foregoing reasons, Plaintiff/Cross-Defendant Zemanek & Mills, APC’s Demurrer to Defendant’s Cross-Complaint is SUSTAINED as to the first through fifth causes of action. Defendant HREP is granted 20 DAYS’ LEAVE TO AMEND.

Moving party is ordered to give notice.

Case Number: 18STLC05635    Hearing Date: March 19, 2020    Dept: 25

DEMURRER

(CCP § 430.40, et seq.)

TENTATIVE RULING:

Plaintiff/Cross-Defendant Zemanek & Mills, APC’s Demurrer to Defendant’s Cross-Complaint is PLACED OFF CALENDAR AS MOOT.

ANALYSIS:

  1. Background

On April 12, 2018, Plaintiff Zemanek & Mills, APC (“Plaintiff”) filed a Complaint for breach of contract and common counts against Defendants Hassen Real Estate Corporation (“HREC”), Hassen Real Estate Partnership (“HREP”), and Ziad Alhassen (“Alhassen”).

On December 5, 2019 Defendants HREC and HREP filed an Answer. Defendant HREP also filed a Cross-Complaint against Plaintiff for breach of fiduciary duty, unjust enrichment, unfair, unlawful, and fraudulent business practices, conversion, and for an accounting.

On February 14, 2020, Plaintiff filed the instant Demurrer to the Cross-Complaint (the “Demurrer”) and Request for Judicial Notice. No opposition has been filed.

On February 26, 2020, Defendant HREP filed a First Amended Cross-Complaint (“FACC”).

  1. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

  1. Discussion

Here, Defendant HREP filed a FACC on February 26, 2020.

An amended pleading may be filed once without leave of court “after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.” (Code Civ. Proc., § 472, subd. (a).)

Here, the FACC was timely filed and served on the deadline for filing an opposition to the Demurrer. As a result, Plaintiff’s Demurrer to Defendant’s Cross-Complaint is moot.
  1. Conclusion & Order

For the foregoing reasons, Plaintiff/Cross-Defendant Zemanek & Mills, APC’s Demurrer to Defendant’s Cross-Complaint is PLACED OFF CALENDAR AS MOOT.

Moving party is ordered to give notice.

Case Number: 18STLC05635    Hearing Date: March 10, 2020    Dept: 25

DEMURRER

TENTATIVE RULING:

Plaintiff/Cross-Defendant Zemanek & Mills, APC’s Demurrer to Defendant’s Cross-Complaint is PLACED OFF CALENDAR AS MOOT.

ANALYSIS:

  1. Background

On April 12, 2018, Plaintiff Zemanek & Mills, APC (“Plaintiff”) filed a Complaint for breach of contract and common counts against Defendants Hassen Real Estate Corporation (“HREC”), Hassen Real Estate Partnership (“HREP”), and Ziad Alhassen (“Alhassen”).

On December 5, 2019 Defendants HREC and HREP filed an Answer. Defendant HREP also filed a Cross-Complaint against Plaintiff for breach of fiduciary duty, unjust enrichment, unfair, unlawful, and fraudulent business practices, conversion, and for an accounting.

On February 14, 2020, Plaintiff filed the instant Demurrer to the Cross-Complaint (the “Demurrer”) and Request for Judicial Notice. No opposition has been filed.

On February 26, 2020, Defendant HREP filed a First Amended Cross-Complaint (“FACC”).

  1. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

  1. Discussion

Here, Defendant HREP filed a FACC on February 26, 2020.

An amended pleading may be filed once without leave of court “after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.” (Code Civ. Proc., § 472, subd. (a).)

Here, the FACC was timely filed and served on the deadline for filing an opposition to the Demurrer. As a result, Plaintiff’s Demurrer to Defendant’s Cross-Complaint is moot.

  1. Conclusion & Order

For the foregoing reasons, Plaintiff/Cross-Defendant Zemanek & Mills, APC’s Demurrer to Defendant’s Cross-Complaint is PLACED OFF CALENDAR AS MOOT.

Moving party is ordered to give notice.

Case Number: 18STLC05635    Hearing Date: March 09, 2020    Dept: 25

DEMURRER

(CCP § 430.40, et seq.)

TENTATIVE RULING:

Plaintiff/Cross-Defendant Zemanek & Mills, APC’s Demurrer to Defendant’s Cross-Complaint is PLACED OFF CALENDAR AS MOOT.

ANALYSIS:

  1. Background

On April 12, 2018, Plaintiff Zemanek & Mills, APC (“Plaintiff”) filed a Complaint for breach of contract and common counts against Defendants Hassen Real Estate Corporation (“HREC”), Hassen Real Estate Partnership (“HREP”), and Ziad Alhassen (“Alhassen”).

On December 5, 2019 Defendants HREC and HREP filed an Answer. Defendant HREP also filed a Cross-Complaint against Plaintiff for breach of fiduciary duty, unjust enrichment, unfair, unlawful, and fraudulent business practices, conversion, and for an accounting.

On February 14, 2020, Plaintiff filed the instant Demurrer to the Cross-Complaint (the “Demurrer”) and Request for Judicial Notice. No opposition has been filed.

On February 26, 2020, Defendant HREP filed a First Amended Cross-Complaint (“FACC”).

  1. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

  1. Discussion

Here, Defendant HREP filed a FACC on February 26, 2020.

An amended pleading may be filed once without leave of court “after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.” (Code Civ. Proc., § 472, subd. (a).)

Here, the FACC was timely filed and served on the deadline for filing an opposition to the Demurrer. As a result, Plaintiff’s Demurrer to Defendant’s Cross-Complaint is moot.

  1. Conclusion & Order

For the foregoing reasons, Plaintiff/Cross-Defendant Zemanek & Mills, APC’s Demurrer to Defendant’s Cross-Complaint is PLACED OFF CALENDAR AS MOOT.

Moving party is ordered to give notice.

Case Number: 18STLC05635    Hearing Date: February 03, 2020    Dept: 25

MOTION TO VACATE THE TRIAL DATE AND RELATED DEADLINES

(CRC 3.1332)

TENTATIVE RULING:

Defendants Hassen Real Estate Partnership and Hassen Real Estate Corp.’s Motion to Vacate the Trial Date and Related Deadlines is CONTINUED to MARCH 13, 2020 at 10:30 a.m. in Department 25., Spring Sreet Courthouse.

I. Background & Discussion

On April 12, 2018, Plaintiff Zemanek & Mills (“Plaintiff”) filed a Complaint for breach of contract and common counts against Defendants Hassen Real Estate Corporation (“HREC”), Hassen Real Estate Partnership (“HREP”), and Ziad Alhassen (“Alhassen”). On July 3, 2018, Defendant HREC filed an Answer to the Complaint.

On October 10, 2019, the Court granted the parties’ request for a continuance of the trial date. (10/10/19 Minute Order.) Trial was re-set for December 10, 2019 and the Court stated no further continuances would be permitted absent good cause. (Id.) On December 4, 2019, Defendants HREC and HREP filed substitutions of attorney.

On December 5, 2019, Defendant HREP filed a Cross-Complaint against Plaintiff and an Amended Answer; Defendant HREC filed an Answer. Also on December 5, 2019, Defendants HREC and HREP filed an ex parte application to vacate trial date. The Court denied the ex parte application on December 9, 2019 due to an insufficient showing of irreparable harm. (12/9/19 Minute Order.) That same day, Defendants HREC and HREP filed the instant noticed Motion to Vacate Trial Date and Related Deadlines (the “Motion”). The noticed Motion was scheduled for hearing for February 3, 2020.

On the continued trial date of December 10, 2019, the matter was called ready for trial and sent to Department 1 for assignment to a trial court. (12/10/19 Minute Order.) However, the case was sent back upon realization that the Cross-Complaint remained unanswered and the Court set an Order to Show Cause Re Why the Cross-Complaint Should Not Be Dismissed for January 24, 2020. (Id.) The trial date was also continued to April 6, 2020. (Id.) On January 24, 2020, the Court took the matter under submission.

In their Motion, Defendants argue the trial date and related deadlines should be vacated because the parties have not had a chance to conduct discovery and prepare for trial on the newly added claims and defenses in the Cross-Complaint. (Mot., p. 1.) However, whether the Cross-Complaint will survive is a matter that is still being considered under submission.

Accordingly, the Court will continue the hearing on the instant Motion to allow for the resolution of whether the Cross-Complaint will be dismissed.

II. Conclusion & Order

For the foregoing reasons, Defendants Hassen Real Estate Partnership and Hassen Real Estate Corp.’s Motion to Vacate the Trial Date and Related Deadlines is CONTINUED to march 13, 2020 at 10:30 a.m. in Department 25., Spring Street Courthouse.

Moving party is ordered to give notice.

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