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

Tentative Rulings

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).)

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.