On 08/09/2017 FRED SAYARI filed an Other - Writ Of Mandamus lawsuit against CITY OF POMONA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MARY H. STROBEL, RANDOLPH M. HAMMOCK and SAMANTHA JESSNER. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
MARY H. STROBEL
RANDOLPH M. HAMMOCK
SAYARI ENTERPRISES LLC
POMONA CITY OF
DOES 1 TO 50
CITY OF POMONA
TABONE DEREK L. ESQ.
TABONE DEREK LEONARD
PANCAKE JENNIFER L. ESQ.
PANCAKE JENNIFER LOUISE
8/15/2018: RESPONDENT/DEFENDANT CITY OF POMONA'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ITS OPPOSITION TO THE MOTION TO AMEND PETITION/COMPLAINT
8/28/2018: DECLARATION OF LOURDES HERNANDEZ IN SUPPORT OF RESPONDENT/DEFENDANT CITY OF POMONA'S OPPOSITION TO EX PARTE APPLICATION FOR ORDER SETTING COST OF ADMINISTRATION RECORD
9/24/2018: NOTICE OF HEARING
1/29/2019: Minute Order
2/26/2019: Minute Order
5/22/2019: Notice of Lodging
6/12/2019: Case Management Statement
2/26/2018: PETITIONER'S/PLAINTIFF'S OPPOSITION TO DEMURRER; ETC
3/8/2018: NOTICE OF RULING ON CITY'S DEMURRERS TO THE FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, ESTOPPEL AND DAMAGES; ETC.
4/17/2018: DECLARATION AND ORDER RE; ADVANCE JURY FEES
12/8/2017: Minute Order
12/8/2017: STIPULATION TO CONTINUE TRIAL SETTING CONFERENCE DATE; ORDER
10/30/2017: JOINT STIPULATION TO CONTINUE TRIAL SETTING CONFERENCE DATE AND SET NEW PLEADING SCHEDULE; ORDER
Case Management Statement; Filed by Fred Sayari (Petitioner); Sayari Enterprises, LLC (Petitioner)Read MoreRead Less
Opposition (To Demurrer and Motion to Strike); Filed by Fred Sayari (Petitioner); Sayari Enterprises, LLC (Petitioner)Read MoreRead Less
Case Management Statement; Filed by City of Pomona (Respondent)Read MoreRead Less
at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Not Held - Rescheduled by PartyRead MoreRead Less
at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Case Management Conference - Not Held - Continued - StipulationRead MoreRead Less
Notice of Lodging (Administrative Record); Filed by City of Pomona (Respondent)Read MoreRead Less
Declaration (of Giragosian ISO City's RJN); Filed by City of Pomona (Respondent)Read MoreRead Less
Motion to Strike (not initial pleading) (Portions of Third Amended Verified Petition); Filed by City of Pomona (Respondent)Read MoreRead Less
Request for Judicial Notice; Filed by City of Pomona (Respondent)Read MoreRead Less
Stipulation and Order (Stipulation For Leave To Reschedule Case Management Conference; [Proposed] Order); Filed by City of Pomona (Respondent)Read MoreRead Less
Minute order entered: 2017-10-30 00:00:00; Filed by ClerkRead MoreRead Less
DECLARATION OF JENNIFER PANCAKE RE: INABILITY TO MEET AND CONFER TRIGGERING AUTOMATIC 30-DAY EXTENSION OF TIME IN WHICH TO FILE RESPONSERead MoreRead Less
Declaration; Filed by City of Pomona (Respondent)Read MoreRead Less
Notice of Trial Setting Conference and Attached Orders Thereon; Filed by PetitionerRead MoreRead Less
NOTICE OF COURT'S TRIAL SETTING CONFERENCE & ATTACHED ORDERS THFREONRead MoreRead Less
NOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREONRead MoreRead Less
Notice of Trial Setting Conference and Attached Orders Thereon; Filed by ClerkRead MoreRead Less
VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, ESTOPPEI AND DAMAGESRead MoreRead Less
SUMMONSRead MoreRead Less
Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief, Estoppel, and Damages; Filed by Fred Sayari (Petitioner)Read MoreRead Less
Case Number: BS170504 Hearing Date: November 12, 2019 Dept: 47
Fred Sayari, et al. v. City of Pomona
(1) DEMURRER TO FOURTH AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, ESTOPPEL AND DAMAGES;
(2) MOTION TO STRIKE PORTIONS OF FOURTH AMENDED COMPLAINT
MOVING PARTY: (1) & (2) Respondent/Defendant City of Pomona
RESPONDING PARTY(S): (1) & (2) Plaintiffs Fred Sayari and Sayari Enterprises, LLC
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiffs allege that Defendant violated the city code, state zoning laws, and the state and federal constitutions when its city council denied Plaintiff Fred Sayari’s application for a conditional use permit to build a gasoline station and convenience store on land he owned. The only remaining causes of action are for declaratory and injunctive relief and damages based on constitutional violations of substantive due process and equal protection.
Defendant City of Pomona demurs to the fourth amended verified petition for writ of mandate and complaint for declaratory and injunctive relief, estoppel and damages (“4AC”) and moves to strike portions of the 4AC.
Defendant City of Pomona’s demurrer to the entire fourth amended verified petition for writ of mandate and complaint for declaratory and injunctive relief, estoppel and damages is OVERRULED.
Defendant’s demurrer to the fourth cause of action is SUSTAINED without leave to amend as to Mr. Sayari. The demurrer to the fourth cause of action is OVERRULED as to Sayari Enterprises.
Defendant’s motion to strike is DENIED.
Meet and Confer
The Declaration of Attorney Jennifer L. Pancake reflects that the parties’ efforts to meet and confer satisfied the requirements of CCP § 430.41(a). (Pancake Decl. ¶¶ 7-9 & Exhs. F-H.)
Requests for Judicial Notice
Defendant requests that the Court take judicial notice of (A) the Notice of Lodging Administrative Record filed May 22, 2019; (B) Pomona City Council Resolution No. 2017-67A, adopted on May 15, 2017; (C) Plaintiff Fred Sayari’s Third Amended Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief, Estoppel and Damages filed on April 5, 2019; (D) The Notice of Entry of Order on City’s Demurrer and Motion to Strike as to the Third Amended Complaint and Notice of Trial Setting After Case Management Conference, filed June 24, 2019; and (E) the California Secretary of State’s Business Entity Webpage results for “Sayari Enterprises LLC” as of August 30, 2019.
Defendant also requests that the Court take judicial notice of the administrative record prepared for Department 82 of the Los Angeles Superior Court.
Requests A, C, and D are granted per Evidence Code § 452(d) (court records). The Court will also take judicial notice of the administrative record prepared for Department 82 per Evidence Code § 452(d).
Request B is granted per Evidence Code § 452(b) (legislative enactments of public entities). “Public entity” for purposes of Evidence Code § 452(b) includes cities. (Evid. Code § 200.)
Request E is granted per Evidence Code § 452(h) (facts not reasonably subject to dispute and capable of immediate and accurate determination using sources of reasonably indisputable accuracy). (See also Friends of Shingle Springs Interchange, Inc. v. County of El Dorado
Defendant demurs to the entire complaint on the ground that Sayari Enterprises LLC has been suspended and therefore lacks capacity to prosecute any claim against it.
“With exceptions not relevant here, ‘the corporate powers, rights and privileges of a domestic taxpayer may be suspended, and the exercise of the corporate powers, rights, and privileges of a foreign taxpayer in this state may be forfeited,’ if a corporation fails to pay its taxes.” (Bourhis v. Lord (2013) 56 Cal.4th 320, 324 (quoting Rev. & Tax. Code, § 23301).) A corporation may also be suspended for failure to file a tax return. (Rev. & Tax. Code § 23301.5.) In general, a “corporation may not prosecute . . . an action . . . while its corporate rights are suspended for failure to pay taxes.” (Bourhis, supra, 56 Cal.4th at 324 (quoting Reed v. Norman (1957) 48 Cal.2d 338, 343).)
Although corporations are unable to prosecute actions while suspended, raising corporate suspension as a reason to dismiss a case is disfavored. (Traub Co. v. Coffee Break Service, Inc. (1967) 66 Cal.2d 368, 370 [explaining that a “plea of lack of capacity of a corporation to maintain an action by reason of a suspension of corporate powers for nonpayment of its taxes ‘is a plea in abatement which is not favored in law [and] is to be strictly construed.”].) Nevertheless, given that the lack of capacity of a plaintiff must be raised by special demurrer or it is generally waived, Defendant properly raised the issue. (CCP § 430.20.)
Unless “mandated by governing statute, the capacity of the plaintiff to sue is not an element of a cause of action and the plaintiff corporation need not allege it is qualified to do business in this state or that it has paid all state taxes.” (Center for Self-Improvement & Community Development v. Lennar Corp. (2009) 173 Cal.App.4th 1543, 1552–1553.) Thus, “the suspended status of corporate powers at the time of filing suit does not impede the trial court's jurisdiction to proceed, nor does a suspension after suit commences but before rendition of judgment deprive the court of jurisdiction or render the judgment void.” (Id. at 1553.)
Here, Plaintiffs indicate that Sayari Enterprises will be revived before the hearing. (Oppo., at p. 5.) “A suspended corporation can regain its corporate powers by . . . applying to the Franchise Tax Board for a certificate of revivor.” (Ibid.) The “revival of corporate powers enables the previously suspended party to proceed with the prosecution or defense of the action.” (Ibid.)
In light of Plaintiffs’ statement that they intend to revive Sayari Enterprises, LLC before the hearing, the demurrer on this basis is OVERRULED. (Cf. Cal-W. Bus. Servs., Inc. v. Corning Capital Grp. (2013) 221 Cal.App.4th 304, 312–313 [upholding the dismissal of an entity where a related entity “represented to the trial court that it had no intention of reviving the corporate powers of [the entity] by paying its delinquent taxes”].) If, however, Plaintiffs cannot show at the hearing that the entity has been revived or that they have taken reasonable and diligent steps to revive it, the Court will consider sustaining the demurrer without leave to amend.
Next, Defendant demurs to the fourth cause of action – the only remaining cause of action – on the ground that it fails to state facts sufficient to constitute a cause of action on behalf of Fred Sayari because he does not have standing to bring or prosecute the claim, given that he assigned his rights to Plaintiff Sayari Enterprises, LLC.
Under CCP § 367, “[e]very action must be prosecuted in the name of the real party in interest.” CCP § 367 “sweeps away one of the complexities that would otherwise attend suits based on assigned causes of action.” (Jasmine Networks, Inc. v. Superior Court (2009) 180 Cal.App.4th 980, 995.) At common law, “only the owner of the legal right could sue, and the assignee of a chose in action, whose right was not recognized at law, had to proceed in equity.” (Ibid. (citation omitted).) “A major purpose of the Code of Civil Procedure was to change that practice and enable the assignee to sue in his or her own name.” (Ibid.) The question, however, is whether Mr. Sayari, as the assignor, retains any right to sue.
A real party in interest ordinarily is defined as the person possessing the right sued upon by reason of the substantive law. (Powers v. Ashton (1975) 45 Cal.App.3d 783, 787 [119 Cal.Rptr. 729].) “The question of standing to sue is one of the right to relief and goes to the existence of a cause of action against the defendant (cf. Los Angeles Fire & Police Protective League v. Rodgers  7 Cal.App.3d 419, 423 [86 Cal.Rptr. 623].” (Payne v. United California Bank (1972) 23 Cal.App.3d 850, 859 [100 Cal.Rptr. 672].) “The right to relief . . . goes to the existence of a cause of action . . . Where the complaint states a cause of action in someone, but not in the plaintiff, a general demurrer for failure to state a cause of action will be sustained.” (Parker v. Bowron (1953) 40 Cal.2d 344, 351 [254 P.2d 6]).)
(Killian v. Millard (1991) 228 Cal.App.3d 1601, 1605 (bold emphasis added).)
In general, “[o]nce a claim has been assigned, the assignee is the owner and has the right to sue on it.” (California Bank & Trust v. Piedmont Operating Partnership, L.P. (2013) 218 Cal.App.4th 1322, 1347.) “In fact, once the transfer has been made, the assignor lacks standing to sue on the claim.” (Ibid.) In other words, the “general rule is that an assignment extinguishes the rights of the assignor.” (Gietzen v. Covenant RE Management, Inc. (2019) 40 Cal.App.5th 331, 342.)
Here, Plaintiffs allege in the 4AC that, on February 7, 2018, Mr. Sayari “transferred his whole interest to Plaintiff/Petitioner Sayari Enterprises, LLC, a California Limited Liability Company as was intended from the beginning.” (4AC ¶ 1.) Plaintiffs also allege that this transfer “included all rights, chooses [sic] in action, and liabilities.” (Ibid.) Plaintiffs have presented no reason the general rule should not apply and extinguish the rights of Mr. Sayari as assignor, with Sayari Enterprises “stand[ing] in [his] shoes.” (Cal-Western Business Services, Inc. v. Corning Capital Group (2013) 221 Cal.App.4th 304, 311.) Indeed, Plaintiffs’ assertion that Mr. Sayari and Sayari Enterprises are “interchangeable” (Oppo., at p. 6) makes clear that they are not alleging that Mr. Sayari has any different rights or choses in action from those assigned to Sayari Enterprises.
Accordingly, the demurrer to the fourth cause of action is SUSTAINED without leave to amend as to Mr. Sayari.
Defendant also argues that Sayari Enterprises, LLC lacks standing to pursue this action, based on its current suspended status.
For the reasons discussed above in connection with Defendant’s demurrer to the entire 4AC, the demurrer to the fourth cause of action on this basis is OVERRULED.
Motion To Strike
Meet and Confer
The Declaration of Attorney Jennifer L. Pancake reflects that the parties’ efforts to meet and confer satisfied the requirements of CCP § 430.41.
Defendant moves to strike Paragraphs 30 to 40 of the 4AC because they were part of the third cause of action and the Court sustained the previous demurrer to that cause of action without leave to amend. Plaintiffs argue these paragraphs are proper because they were always incorporated into the fourth cause of action by reference.
Incorporation by reference of “all or most prior paragraphs within each purported cause of action” is “disfavored.” (Uhrich v. State Farm Fire & Cas. Co. (2003) 109 Cal. App. 4th 598, 605 [noting that “[t]his type of pleading should be avoided as it tends to cause ambiguity and creates redundancy”].) Nevertheless, Defendant recognized that these paragraphs were incorporated into the fourth cause of action even in the previous complaint, when it demurred to the fourth cause of action on the ground that Plaintiffs did not “allege an unlawful policy or custom as required to maintain a substantive due process claim under 42 U.S.C. § 1983 and Monell v. New York Department of Social Services (1978) 436 U.S. 658.” (Ruling, 6/24/19, at p. 11.)
The motion to strike is DENIED.
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated: November 12, 2019 ___________________________________
Randolph M. Hammock
Judge of the Superior Court
 The 4AC refers to “Fred Sayari” and “Sayari Enterprises, LLC” at times and “Fred Sayeri” and “Sayeri Enterprises, LLC” at other times. (Compare, e.g., 4AC caption (“Sayari) and 4AC verification #1 (same) with 4AC caption for first cause of action (“Sayeri”) and verification #2 (same). Plaintiffs even use both spellings on the first page of their opposition: “Sayari” four times and “Sayeri” three times. For consistency – which is highly recommended – the Court refers to the parties as Fred Sayari and Sayari Enterprises, LLC, as Defendant appears to do.