Tentative Rulings

Case Number: BC629121    Hearing Date: March 22, 2021    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

Defendant Boostz, Inc.’s Demurrer to the Second Amended Complaint is OVERRULED.

Factual Background

This action involves the sale of real property. Plaintiff Gary O’Connor (“O’Connor”) alleges that he is the trustee of a trust that is the owner of a 90.05 percent share in two parcels of real property in Los Angeles, the “Compton Property” and the “East 1st Property.” (First Amended Complaint (“FAC”) ¶ 1.) The Complaint alleges generally that O’Connor entered into a Purchase Agreement (“Purchase Agreement”) with the owners of the remaining 9.95 percent interest in both properties in September 2014: Greta Curtis (“Curtis”), Baypoint Mortgage, Inc. (“Baypoint”), Boostz, Inc. (“Boostz”), and Dr. Roots Herbs, LLC (“Roots”) (SAC ¶ 5), and later entered into various Amendments, none of which were executed, through the fault of defendants. (SAC ¶¶ 2–4.) Curtis’ corporate alter egos include Defendants Baypoint, Boostz, Roots, as well as Sisters, LLC. (SAC ¶ 34.)

Curtis filed a Cross-Complaint on May 25, 2017, and an amended cross-complaint (“FAXC”) on July 26, 2017, alleging that O’Connor breached his fiduciary duty to her by filing the instant lawsuit to enforce an allegedly void sales agreement, and by failing to account for or distribute rent to his co-tenants in the relevant property, including Curtis. (FAXC ¶¶ 42–50.)

procedural history

O’Connor filed his Complaint on August 1, 2016, alleging six causes of action:

1. Breach of Contract

2. Fraud

3. Specific Performance

4. Quiet title

5. Declaratory Relief

6. Injunctions

On May 25, 2017, Curtis filed a Cross Complaint (“XC”).

On June 9, 2017, this case was reassigned to this department.

On July 26, 2017, Curtis filed an Amended Cross-Complaint (“FAXC”) naming as cross-defendants O’Connor, Boostz, Hasbun, Baypoint Mortgage, Inc. (“Baypoint”), Valley Trust Deed Services, Inc., Amber Hasbun, Melissa Hasbun, Ammec, Inc., Westar Loan Servicing, Inc. Westar Financial Group, Inc., asserting claims for:

1. Interference with Prospective Economic Advantage (Against Baypoint, Boost and Hasbun)

2. Rescission of Escrow Agreement Pursuant to Revenue and Taxation Code §23304.1, 23304.5 (Against Baypoint)

3. Breach of Fiduciary Duty (Against Hasbun)

4. Breach of Fiduciary Duty (Against Baypoint)

5. Breach of Fiduciary Duty (Against O’Connor)

6. Breach of Fiduciary Duty (Against Boostz)

7. Quantum Meruit (Against All Cross-Defendants Except O’Connor)

8. Unfair Business Practices (B&P Sec. 17200) (Against O’Connor)

9. Accounting (Against O’Connor)

10. Indemnification (Against All Cross-Defendants)

11. Comparative Indemnity (Against All Cross-Defendants)

12. Declaratory Relief (Against All Cross-Defendants)

13. Equitable Indemnity (Against All Cross-Defendants)

14. Contribution (Against All Cross-Defendants)

On September 6, 2017, this Court granted Curtis’ Motion for Judgment on the Pleadings with leave to amend as to the Fourth, Fifth, and Sixth Causes of Action, denied the motion as moot as to the First and Third Causes of Action, and denied the motion as to the second cause of action.

On September 18, 2017, O’Connor filed his First Amended Complaint alleging six causes of action:

1. Breach of Contract;

2. Fraud and Deceit;

3. Specific Performance;

4. Quiet Title;

5. Declaratory Relief;

6. Injunctions

This Court on September 27, 2017, granted Cross-Defendants Boostz, Inc., Saleh Hasbun, Baypoint Mortgage, Inc., Westar Financial Group, Inc., Valley Trust Deed Services, Inc., and Melissa Hasbun’s Motion to Strike Curtis’s FAXC. The court, however, limited its ruling to striking the portions of the FAXC not related to O’Connor.

Curtis on October 19, 2017, filed eight Roe amendments adding the cross-defendants that this Court had ordered stricken from the FAXC.

This Court on November 17, 2017, overruled O’Connor’s Demurrer to the FAXC. This Court also sua sponte ordered Curtis’s October 19, 2017 amendments stricken.

This Court on October 2, 2018, granted O’Connor’s Motion for Leave to File Second Amended Complaint (“SAC”). The SAC alleges seven causes of action:

1. Breach of Contract

2. Fraud and Deceit

3. Specific Performance

4. Quiet Title

5. Declaratory Relief

6. Injunctions

7. Partition

Curtis on January 2, 2018, filed a Notice of Appeal of this Court’s September 27, 2017 order striking certain defendants from Curtis’s FAXC.

On April 9, 2019, a Remittitur was issued denying Curtis’s appeal on the grounds that she had impermissibly appealed from an interlocutory order.

On June 18, 2019, this Court denied Curtis’ filed Motion for Leave to Add Nine Cross-Defendants.

On September 10, 2019, this Court overruled the Demurrer filed by Defendants Curtis and Roots, and denied the Motion to Strike.

On September 18, 2020, Defendant Boostz filed the instant Demurrer.

On February 10, 2021, this Court overruled Baypoint’s Demurrer to the SAC as to the Fourth Cause of Action, and sustained with leave to amend as to the First – Third, and Fifth – Seventh Causes of Action.

No Opposition has been filed to the instant demurrer.

Discussion

1. REQUESTS FOR JUDICIAL NOTICE

Judicial notice may be taken of “(c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States […] (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452.)

Boostz does not submit a separate “Request for Judicial Notice,” but submits two documents with the “Declaration of Robert A. Brown:” (a) a “Certificate of Amendment of Articles of Incorporation” filed with the California Secretary of State on May 19, 2016; and (b) a “Certificate of Dissolution” filed with the California Secretary of State on November 8, 2017. The Court GRANTS these requests.

1. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

1. All Causes of Action

   Boostz argues that Plaintiff failed to bring two indispensable parties – Michael Kaplan, Trustee (“Kaplan”), and First Regional Bank (“FR Bank”) – which it contends “deprives the court of jurisdiction” and this Court “is required to order plaintiff to file proof of service of Kaplan” and to amend the SAC to include FR Bank as a defendant. (Motion at pp. 4-9.)

   “[T]he failure to join an ‘indispensable’ party is not ‘a jurisdictional defect’ in the fundamental sense; even in the absence of an ‘indispensable’ party, the court still has the power to render a decision as to the parties before it which will stand.” (Kraus v. Willow Park Public Golf Course (1977) 73 Cal.App.3d 354, 364.) Instead, “It is for reasons of equity and convenience, and not because it is without the power to proceed, that the court should not proceed with a case where it determines that an ‘indispensable party’ is absent and cannot be joined.” (Id.)

   Boostz’ demurrer is nearly entirely boilerplate, with little argument or evidence. Based on the judicially noticeable evidence provided, Boostz has not established for purposes of demurrer that Kaplan and FR Bank are indispensable parties. Further, the SAC lists Kaplan as a Defendant. The August 30, 2016 dismissal only dismissed Kaplan as to the First, Second, Third, and Fifth Causes of Action. The SAC makes numerous allegations against Kaplan.

   Lastly, Boostz has failed to establish why FR Bank must be joined “for reasons of equity and convenience.” The SAC does not make any allegations or references to FR Bank. Boostz does not argue with judicially noticeable evidence that any specific allegations against Boostz in the SAC should be alleged against FR Bank instead.

   Accordingly, Boostz, Inc.’s Demurrer to the SAC is OVERRULED.

DATED: March 22, 2021

________________________________

Hon. Robert S. Draper

Judge of the Superior Court