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This case was last updated from Los Angeles County Superior Courts on 05/03/2021 at 02:35:28 (UTC).

BOGHOS BABADJANIAN ET AL VS ANDRE WEGNER ET AL

Case Summary

On 04/19/2017 BOGHOS BABADJANIAN filed a Contract - Other Contract lawsuit against ANDRE WEGNER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GAIL FEUER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8420

  • Filing Date:

    04/19/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GAIL FEUER

 

Party Details

Plaintiffs and Petitioners

BABADJANIAN BOGHOS

ARUTUNYAN ADRANIK

ARUTUNYAN ADRANIKV

SEROR CHAPTER 7 TRUSTEE DAVID

Defendants and Respondents

WEGNER ANDRE

DOES 1 TO 100

SULLY JOSEPH

BEN JEWELRY INC.

DINA YOSSI

ZICRON LILO BEN

BEN JEWELRY INC. DBA DINA CLASSIC

ZICRON

SULLY

Not Classified By Court

DAVID SEROR

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

TINKERIAN ARMAND ESQ.

SEROR DAVID

Defendant and Respondent Attorneys

FRANK MICHAEL F. ESQ.

FRANK MICHAEL FAIN ESQ.

PIERCE DAVID HOWARD

PRESSMAN CHARLES ANDREW

SOBELSOHN DANIEL ETHAN

 

Court Documents

Motion for Order - MOTION FOR ORDER TO SUBSTITUTE PLAINTIFF

2/9/2021: Motion for Order - MOTION FOR ORDER TO SUBSTITUTE PLAINTIFF

Opposition - OPPOSITION SUPPLEMENTAL OPPOSITION TO MOTION TO DISMISS

2/16/2021: Opposition - OPPOSITION SUPPLEMENTAL OPPOSITION TO MOTION TO DISMISS

Complaint - (AMENDED)

11/29/2017: Complaint - (AMENDED)

Order - Order Ruling Re: Defendants Ben Jewelry, Inc. and Yossi Dina's Motion for Judgment on the Pleadings

1/17/2019: Order - Order Ruling Re: Defendants Ben Jewelry, Inc. and Yossi Dina's Motion for Judgment on the Pleadings

Notice of Ruling

4/25/2019: Notice of Ruling

PROOF OF SERVICE SUMMONS -

2/28/2018: PROOF OF SERVICE SUMMONS -

NOTICE OF PUNITIVE DAMAGES

3/27/2018: NOTICE OF PUNITIVE DAMAGES

NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS BEN JEWELRY, INC. AND YOSSI DINA TO THE THIRD AMENDED COMPLAINT

4/13/2018: NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS BEN JEWELRY, INC. AND YOSSI DINA TO THE THIRD AMENDED COMPLAINT

PLAINTIFF'S EVIDENTIARY OBJECTIONS IN SUPPORT OF THE OPPOSITION TO THE MOTION FOR SUMMARY ADJUDICATION

7/23/2018: PLAINTIFF'S EVIDENTIARY OBJECTIONS IN SUPPORT OF THE OPPOSITION TO THE MOTION FOR SUMMARY ADJUDICATION

Notice of Ruling - Notice of Ruling Re: Motion to Strike

11/2/2018: Notice of Ruling - Notice of Ruling Re: Motion to Strike

Response - Response to Additional Facts Submitted by Plaintiffs in Opposition to Motion by Defendants Ben Jewelry, Inc. and Yossi Dina for Summary Adjudication

11/28/2018: Response - Response to Additional Facts Submitted by Plaintiffs in Opposition to Motion by Defendants Ben Jewelry, Inc. and Yossi Dina for Summary Adjudication

NOTICE OF CONTINUANCE

12/4/2017: NOTICE OF CONTINUANCE

NOTICE OF MOTION AND MOTION BY DEFENDANT BEN JEWELRY, INC. FOR AN ORDER COMPELLING FURTHER VERIFIED RESPONSES TO FIRST REQUEST FOR PRODUCTION AND ETC

12/15/2017: NOTICE OF MOTION AND MOTION BY DEFENDANT BEN JEWELRY, INC. FOR AN ORDER COMPELLING FURTHER VERIFIED RESPONSES TO FIRST REQUEST FOR PRODUCTION AND ETC

NOTICE OF PUNITIVE DAMAGES

11/29/2017: NOTICE OF PUNITIVE DAMAGES

Minute Order -

11/14/2017: Minute Order -

RULING RE: DEFENDANT JOSEPH SULLY'S DEMURRER TO FIRST AMENDED COMPLAINT AND MOTION TO STRIKE;

11/14/2017: RULING RE: DEFENDANT JOSEPH SULLY'S DEMURRER TO FIRST AMENDED COMPLAINT AND MOTION TO STRIKE;

FIRST AMENDED COMPLAINT FOR 1. UNJUST ENRICHMENT; ETC

5/30/2017: FIRST AMENDED COMPLAINT FOR 1. UNJUST ENRICHMENT; ETC

NOTICE RE: CONTINUANCE OF HEARING

7/13/2017: NOTICE RE: CONTINUANCE OF HEARING

197 More Documents Available

 

Docket Entries

  • 05/10/2021
  • Hearing05/10/2021 at 08:30 AM in Department 78 at 111 North Hill Street, Los Angeles, CA 90012; Case Management Conference

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  • 04/22/2021
  • Docketat 08:30 AM in Department 78; Hearing on Demurrer - without Motion to Strike - Held

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  • 04/22/2021
  • DocketRuling Re: Demurrer to Fourth Amended Complaint; Filed by Clerk

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  • 04/22/2021
  • DocketMinute Order ( (Hearing on Demurrer - without Motion to Strike)); Filed by Clerk

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  • 04/16/2021
  • DocketReply (to Opposition to Demurrer to Fourth Amended Complaint); Filed by Joseph Sully (dismissed by Plaintiff Arutunyan ONLY) (Defendant)

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  • 04/09/2021
  • DocketOpposition (to Demurrer to Fourth Amended Complaint); Filed by David Seror (Chapter 7 Trustee) (Plaintiff)

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  • 04/09/2021
  • DocketOrder to Deposit (Proposed Order); Filed by David Seror (Chapter 7 Trustee) (Plaintiff)

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  • 03/29/2021
  • DocketRequest for Judicial Notice; Filed by Joseph Sully (dismissed by Plaintiff Arutunyan ONLY) (Defendant)

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  • 03/29/2021
  • DocketDemurrer - without Motion to Strike; Filed by Joseph Sully (dismissed by Plaintiff Arutunyan ONLY) (Defendant)

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  • 03/01/2021
  • Docketat 09:30 AM in Department 78; Non-Jury Trial (as to Remaining Defendant, Joseph Sully (2 day estimate),) - Not Held - Advanced and Vacated

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325 More Docket Entries
  • 05/30/2017
  • DocketNOTICE OF PUNITIVE DAMAGES

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  • 05/30/2017
  • DocketFIRST AMENDED COMPLAINT SUMMONS

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  • 05/30/2017
  • DocketFIRST AMENDED COMPLAINT FOR 1. UNJUST ENRICHMENT; ETC

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  • 04/27/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/27/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/19/2017
  • DocketSUMMONS

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  • 04/19/2017
  • DocketORDER ON COURT FEE WAIVER (SUPERIOR COURT)

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  • 04/19/2017
  • DocketComplaint; Filed by Boghos Babadjanian (Plaintiff); Adranikv Arutunyan (Plaintiff)

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  • 04/19/2017
  • DocketORDER ON COURT FEE WAIVER (SUPERIOR COURT)

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  • 04/19/2017
  • DocketCOMPLAINT FOR: 1. UNJUST ENRICHMENT 2. FRAUD ETC.

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Tentative Rulings

Case Number: BC658420    Hearing Date: April 22, 2021    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

BOGHOS BABADJANIAN, et al.,

Plaintiffs,

vs.

ANDRE WEGNER, et al.;

Defendants.

Case No.:

Hearing Date:

BC658420

April 22, 2021

[TENTATIVE] RULING RE:

Defendant Joseph Sully’s demurrer to the fourth amended complaint

Defendant Joseph Sully’s Demurrer to the Fourth Amended Complaint is OVERRULED.

Factual Background

This is a conversion case. The Fourth Amended Complaint (“4AC”) alleges as follows. Plaintiff David Seror is the Chapter 7 Bankruptcy Trustee for the estate of Boghos Babadjanian (“Babadjanian”). (4AC ¶ 1.) Babadjanian purchased a Ferrari vehicle in December 2010 and was the registered owner. (4AC ¶ 7.) On January 15, 2012, Defendant Andre Wegner (“Wegner”) told Babadjanian that he could sell Babadjanian’s Ferrari for a commission. (4AC ¶ 11.) Wegner stopped communicating with Babadjanian and sold the vehicle to former defendants Ben Jewelry Inc. (“BJI”) and Yossi Dina (“Dina”) despite not having title to the vehicle. (4AC ¶ 15.) BJI and Dina sold the Ferrari to Defendant Ben Zicron on May 9, 2015. (4AC ¶¶ 31-33.) Zicron tried to sell the vehicle to Defendant Joseph Sully (“Sully”) in October 2015, although title could not be transferred. (4AC ¶¶ 39-41.) Babadjanian learned the Ferrari was registered to Sully in December 2015. (4AC ¶ 44.)

RELEVANT PROCEDURAL HISTORY

Plaintiffs filed their Complaint on April 19, 2017. They filed their First Amended Complaint (“FAC”) on May 30, 2017, alleging six causes of action:

  1. Unjust Enrichment

  2. Fraud

  3. Violation of Civil Code 1709-1710

  4. Conversion

  5. Common Counts: Money Had and Received

  6. Common Counts: ‘Services Rendered

On August 8, 2017, Babadjanian added BJI and Zicron as Doe defendants.

On November 14, 2017, this court overruled Sully’s Demurrer to the FAC and granted his Motion to Strike the punitive damages allegations, with leave to amend.

On November 29, 2017, Babadjanian filed the Second Amended Complaint.

On March 27, 2018, Babadjanian filed the Third Amended, alleging the same six cause of action.

On November 1, 2018, this Court denied Sully’s Motion to Strike.

On January 17, 2019, this Court granted Defendants BJI and Dina’s Motion for Judgment on the Pleadings based on Babadjanian’s bankruptcy filings.

On March 28, 2019, David Seror, Chapter 7 Trustee for the Bankruptcy Estate of Boghos Babadjanian, filed a Notice of Appearance and Substitution on March 28, 2019.

On April 22, 2019, the Court granted Sully’s Motion for Judgment on the Pleadings with leave to amend such that David Seror may be named as Plaintiff.

On November 9, 2020, this case was partially stayed as to Defendant Ben Zicron, but proceeds against Sully.

On March 1, 2021, this Court denied Sully’s Motion to Dismiss and lifted the stay imposed on 11/9/20.

On March 1, 2021, David Seror, as Chapter 7 Bankruptcy Trustee of Babadjanian (“Seror”), filed the Fourth Amended Complaint, alleging three causes of action:

  1. Unjust enrichment

  2. Fraud

  3. Conversion

On March 29, 2021, Sully filed the instant Demurrer.

On April 9, 2021, Serror filed an Opposition.

On April 16, 2021, Sully filed a Reply.

DISCUSSION

  1. REQUEST FOR JUDICIAL NOTICE

Sully requests judicial notice of three bankruptcy filings (petition, discharge order, schedule), and two Notices of Ruling in this action. 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.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Sully demurs to all three causes of action.

  1. Standing – All Causes of Action

In January 2016, former Plaintiff Babadjanian filed for bankruptcy, prior to filing this action, but did not list the claims in this action in his bankruptcy petition. (Order, 4/22/19.) The Court found in its April 22, 2019 order that that Babadjanian lacks standing to prosecute the claims. (Order 4/22/19, p. 3.) Shortly before the Order, on March 28, 2019, David Seror (“Seror”) filed a Notice of Appearance and Substitution as Chapter 7 Trustee for the Bankruptcy Estate of Boghos Babadjanian. In the Court’s April 22, 2019 Order, the Court found that the filing of this Notice, without amending the complaint to add Seror as a Plaintiff, was insufficient and granted Sully’s Motion for Judgment on Pleadings “with leave to amend such that Seror may be named as Plaintiff in the pleading objected to.” (Order April 22, 2019.) Court granted Sully’s Motion for Judgment on the Pleadings with leave to amend such that Seror may be named as Plaintiff. (Order April 22, 2019.) On March 1, 2021, Seror filed an Amended Complaint pursuant to this Court’s April 2019 Order, which named himself, as Trustee of the Estate of Babadjanian, as Plaintiff.

Here, Sully argues that Seror lacks standing because “the new nominal Plaintiff DAVID SEROR, as Bankruptcy Trustee of Babadjanian's estate, cannot now be a real party in interest because the claims and property alleged herein are not listed in the bankruptcy estate schedules; hence is not the proper party to pursue these claims -i.e., he lacks standing.” (Motion at p. 4.)

The Court has already addressed this issue in its April 22, 2019 Ruling. On February 6, 2019, Sully filed a Motion for Judgment on the Pleadings as to the Third Amended Complaint on the grounds that Babadjanian did not have standing because the Babadjanian filed for Chapter 7 bankruptcy in January 2016 and did not list the claims in this action. (4/22/19 Ruling at p. 3.) The Court held that if Seror, as trustee, substituted for Babadjanian, “it would answer Sully’s objections, since his arguments depend upon the Trustee being the entity in rightful possession of the causes of action here.” (4/22/19 Ruling at p. 3.) The Court held that Seror needed to file an amended complaint naming himself as Plaintiff to remedy the standing issue. (4/19/19 Ruling at pp. 3-4.)

In this Motion, Sully seeks to re-litigate this issue. In Cloud v. Northrup Grumman Corp., the court found that the plaintiff did not have standing herself due to filing for bankruptcy, and that the bankruptcy trustee was the real party in interest. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004.) However, the court found that the “apparent assumption that plaintiff's lack of standing was fatal to her complaint was mistaken.” (Id.) The Court held that if the facts would not be different after amendment, “a party without standing may be amended to substitute in the real party in interest.” (Id. at 1005.)California Code of Civil Procedure section 473 must be liberally construed to permit amendment to substitute a plaintiff with standing for one who is not a real party in interest.” (Id. at 1006.) Cloud involved a statute of limitations issue, which Sully does not raise here, but the court ultimately remanded the case to the trial court “with instructions to enter an order granting the motion for judgment on the pleadings with leave to amend insofar as the basis for the motion was lack of standing the plaintiff” and to enter an order to “either secure the bankruptcy trustee's participation in, or abandonment of, plaintiff's claim[.]” (Id. at 1021.)

The same is true here. The Fourth Amended Complaint alleges that Seror is “the Chapter 7 Bankruptcy Trustee of Boghos Babadjanian. Seror is proceeding on behalf of Babadjanian’s claim against Defendants Andre Wegner, Joseph Sully and Does 1-100 because Babadjanian cannot proceed as a bankruptcy debtor.” (4AC ¶ 1.) This is sufficient for demurrer. Seror is the real party in interest due to his role as the bankruptcy trustee.

Sully re-iterates the same argument he made in his 2019 Motion for Judgment on the Pleading, that the claims in this case are not the property of the bankruptcy estate. (Motion at p. 6.) However, this Court has already ruled on this issue and reiterates its ruling, here. “Upon the initiation of bankruptcy proceedings, “all legal or equitable interests of the debtor in property” pass to the estate, including causes of action. (11 U.S.C. § 541, subd. (a)(1); U.S. v. Whiting Pools, Inc. (1983) 462 U.S. 198, 206 fn. 9 [“causes of action”].) Such claims become the part of the estate until they are abandoned by the trustee. (See 11 U.S.C. § 554.) Property not abandoned or administered remains property of the estate. (Id., subd. (d).).” (4/22/19 Ruling at p. 3.)

The legal authority that Sully cites in his Demurrer to the 4AC does not support his claim. In fact, Sully’s cited legal authority supports a conclusion that all of Babadjanian’s causes of action became the property of the bankruptcy estate, of which Seror is the trustee.

Accordingly, the Demurrer to the Fourth Amended Complaint is OVERRULED.

DATED: April 22, 2021

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC658420    Hearing Date: March 01, 2021    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

BOGHOS BABADJANIAN, et al.,

Plaintiffs,

vs.

ANDRE WEGNER, et al.;

Defendants.

Case No.:

Hearing Date:

BC658420

March 1, 2021

[TENTATIVE] RULING RE:

Defendant Joseph Sully’s Motion for dismissal of action for failure to amend pursuant to Cal. rules of court, rule 3.120(h) and ccp § 581(f)(2)

Unless Plaintiffs file an amended complaint prior to the hearing on this Motion, the Court will GRANT Defendant Joseph Sully’s Motion for Dismissal of Action. The Third Amended Complaint against Sully will be DISMISSED WITH PREJUDICE.

Factual Background

This is a conversion case. Plaintiff Boghos Babadjanian (“Babadjanian”) is a mechanic who would frequently enlist Defendant Andre Wegner (“Wegner”) to sell vehicles. (Third Amended Complaint (“TAC”) ¶¶ 10–13.) On January 15, 2012, Wegner told Babadjanian that he could sell Babadjanian’s red Ferrari. (TAC ¶ 14.) Babadjanian alleges that Wegner sold the Ferrari to Defendants Ben Jewelry, Inc. (“BJI”) and/or Yossi Dina (“Dina”) on March 15, 2012. (TAC ¶ 18.) Wegner did not present any indicia of legal ownership for the sale, and BJI and Dina knew that Wegner did not have the right to sell the vehicle. (TAC ¶ 20.)

Babadjanian visited BJI and Dina on April 1, 2012, and asked them if they knew that Wegner had sold a Ferrari. (TAC ¶ 22.) BJI and Dina did not tell Babadjanian that they had possession of the Ferrari. (TAC ¶ 26.) BJI and Dina sold the Ferrari to Defendant Ben Zicron on May 9, 2015. (TAC ¶ 34.) Zicron then sold the vehicle to Defendant Sully in October 2015. (TAC ¶ 44.) Sully repeatedly requested, but was not given, any certificate of title or ownership record for the Ferrari. (TAC ¶ 45.) Although Sully initially contacted Zicron through eBay, the sale was not completed through eBay. (TAC ¶ 44.) Babadjanian learned the Ferrari was registered to Sully in December 2015. (TAC ¶ 48.) Babadjanian first learned that BJI and Dina had sold the Ferrari to Zicron from Sully on August 1, 2017. (TAC ¶ 50.)

RELEVANT PROCEDURAL HISTORY

Plaintiffs filed their Complaint on April 19, 2017. They filed their First Amended Complaint (“FAC”) on May 30, 2017, alleging six causes of action:

  1. Unjust Enrichment

  2. Fraud

  3. Violation of Civil Code 1709-1710

  4. Conversion

  5. Common Counts: Money Had and Received

  6. Common Counts: ‘Services Rendered

On August 8, 2017, Babadjanian added BJI and Zicron as Doe defendants.

On November 14, 2017, this court overruled Sully’s Demurrer to the FAC and granted his Motion to Strike the punitive damages allegations, with leave to amend.

On November 29, 2017, Babadjanian filed the Second Amended Complaint.

On March 27, 2018, Babadjanian filed the TAC, alleging the same six cause of action.

On November 1, 2018, this Court denied Sully’s Motion to Strike.

On January 17, 2019, this Court granted Defendants BJI and Dina’s Motion for Judgment on the Pleadings based on Babadjanian’s bankruptcy filings.

On March 28, 2019, David Seror, Chapter 7 Trustee for the Bankruptcy Estate of Boghos Babadjanian, filed a Notice of Appearance and Substitution on March 28, 2019.

On April 22, 2019, the Court granted Sully’s Motion for Judgment on the Pleadings with leave to amend such that David Seror may be named as Plaintiff.

On November 9, 2020, this case was partially stayed as to Defendant Ben Zicron, but proceeded against Sully.

On January 19, 2021, Sully filed the instant Motion to Dismiss.

On February 10, 2021, Non-Party Seror (“Seror”) filed an Opposition.

On February 11, 2021, this Court continued the hearing on this motion.

On February 16, 2021, Seror filed a Supplemental Opposition.

On February 22, 2021, Sully filed a Reply.

DISCUSSION

  1. MOTION FOR DISMISSAL OF ACTION

The background in this case is that Plaintiff Babadjanian filed for bankruptcy in January 2016, prior to filing this action, but did not list the claims in this action in his bankruptcy petition. (Order, 4/22/19.) The Court found in its April 22, 2019 order that that Babadjanian lacks standing to prosecute the claims. (Order 4/22/19, p. 3.) Shortly before the Order, on March 28, 2019, David Seror (“Seror”) filed a Notice of Appearance and Substitution as Chapter 7 Trustee for the Bankruptcy Estate of Boghos Babadjanian. However, in the Court’s April 22, 2019 Order, the Court found that the filing of this Notice, without amending the complaint to add Seror as a Plaintiff, was insufficient and granted Sully’s Motion for Judgment on Pleadings “with leave to amend such that Seror may be named as Plaintiff in the pleading objected to.” (Order April 22, 2019.) Court granted Sully’s Motion for Judgment on the Pleadings with leave to amend such that Seror may be named as Plaintiff. (Order April 22, 2019.)

In the instant Motion to Dismiss, Sully reiterates the argument that Babadjanian lacks standing, and contends that because Plaintiffs have failed to amend the complaint following the granting of the Motion for Judgment on the Pleadings, the complaint should be dismissed against Sully. (Motion at pp. 7-8.)

Under Civil Procedure section 581, subdivision (f):

“(f) The court may dismiss the complaint as to that defendant when:

[…]

(2) Except where Section 597 applies, after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” (Code Civ. Proc., § 581.)

Here, Plaintiffs have not filed an amended complaint since the order granting the Motion for Judgment on the Pleadings on April 22, 2019, nearly two years ago. “A motion for judgment on the pleadings is analogous to a general demurrer.” (Westly v. California Public Employees' Retirement System Bd. of Administration (2003) 105 Cal.App.4th 1095, 1114, as modified on denial of reh'g (Feb. 25, 2003).)

In Opposition, Seror argues that this Court “directed Plaintiff to file a formal motion to substitute the plaintiff.” (Oppo. at p. 1.) The Court’s ruling on January 14, 2021, to which the Court assumes Seror is referring, was a ruling on an Ex Parte Application filed by Sully for Dismissal for Failure to Amend. The Court granted the parties leave to file motions on this issue rather than decide the issue ex parte. Sully has accordingly filed the instant Motion to Dismiss. The Court’s January 14, 2021 ex parte order did not replace its own April 22, 2019 order, which granted Sully’s Motion for Judgment on the Pleadings with leave to amend such that Seror may be named as Plaintiff.

In his Supplemental Opposition, Seror makes various arguments regarding bankruptcy and estoppel and concludes that the “case must proceed to trial on the merits.” (Suppl. Oppo. at pp. 1-3.) However, these arguments fail to the correct the primary issue in this Motion, which is the fact that Seror has not been named as a plaintiff in this action and may not proceed as a plaintiff in this action per this Court’s April 22, 2019 requiring Plaintiffs to file an amended complaint naming Seror as a plaintiff.

Accordingly, unless Plaintiffs file an amended complaint prior to the hearing on this Motion, the Court will GRANT Sully’s Motion for Dismissal of Action. The Third Amended Complaint against Sully will be DISMISSED WITH PREJUDICE.

DATED: March 1, 2021

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

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