On 03/05/2018 JENNIFER STROHMAN filed a Contract - Other Contract lawsuit against BROOKE HELLER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOLLY E. KENDIG and ELAINE LU. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
HOLLY E. KENDIG
NEMER BUCHALTER NOMINAL DEFENDANT
ROES 1 THORUGH 25 INCLUSIVE
MALONEY PATRICK M. ESQ.
MALONEY PATRICK MERRITT ESQ.
MUELLER CARL I.
COOPER CHELSEA QUINTON
COOPER CHELSEA QUINTON
2/13/2020: Substitution of Attorney
1/2/2020: Declaration - DECLARATION PLAINTIFF IN DEMURRER TO FIRST AMENDED CROSS-COMPLAINT
11/5/2019: Amended Complaint - FIRST AMENDED CROSS-COMPLAINT
11/5/2019: Notice - NOTICE OF COURT RULING; CONTINUANCE OF CASE MANAGEMENT CONFERENCE
10/30/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER FOR LEAVE TO FILE FIRST AMENDED CRO...)
8/30/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; ORDER TO SHOW CAUSE RE: WHY SANCT...)
6/24/2019: Notice of Ruling
6/24/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; ORDER TO SHOW CAUSE RE: WHY SANCT...)
4/26/2019: Proof of Personal Service
10/30/2018: Minute Order - Minute Order (CASE MANAGEMENT CONFERENCE)
7/18/2018: PROOF OF SERVICE SUMMONS -
7/19/2018: CASE MANAGEMENT STATEMENT -
7/19/2018: ANSWER OF DEFENDANT HELLER TO COMPLAINT OF PLAINTIFF STROHMAN
7/19/2018: CASE MANAGEMENT STATEMENT -
7/25/2018: NOTICE OF RULING RE CASE MANAGEMENT CONFERENCE
8/16/2018: JENNIFER STROHMAN'S ANSWER TO BROOKE HELLER'S CROSS-COMPLAINT
3/5/2018: COMPLAINT FOR DAMAGES, IMPOSITION OF A CONSTRUCTIVE TRUST, AND PROVISIONAL RELIEF, FOR: 1. BREACH. OF FIDUDIARY DUTY ;ETC
Hearing11/19/2020 at 08:30 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: hy sanctions (including monetary sanctions of at least $500 and/or dismissal) should not be imposed for failure to appear on today's date.Read MoreRead Less
Hearing11/19/2020 at 08:30 AM in Department 26 at 111 North Hill Street, Los Angeles, CA 90012; Case Management ConferenceRead MoreRead Less
Docketat 09:30 AM in Department 26, Elaine Lu, Presiding; Status Conference (re status of notice of related cases) - HeldRead MoreRead Less
Docketat 09:30 AM in Department 26, Elaine Lu, Presiding; Case Management Conference - Held - ContinuedRead MoreRead Less
DocketMinute Order ( (Case Management Conference; Status Conference re status of no...)); Filed by ClerkRead MoreRead Less
DocketCertificate of Mailing for ((Case Management Conference; Status Conference re status of no...) of 10/14/2020); Filed by ClerkRead MoreRead Less
Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Status Conference (re status of notice of related cases) - Held - ContinuedRead MoreRead Less
Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Case Management Conference - Held - ContinuedRead MoreRead Less
DocketMinute Order ( (Case Management Conference; Status Conference re status of no...)); Filed by ClerkRead MoreRead Less
DocketAnswer; Filed by Jennifer Strohman (Plaintiff)Read MoreRead Less
DocketCase Management Statement; Filed by Jennifer Strohman (Plaintiff)Read MoreRead Less
DocketProof-Service/Summons; Filed by Jennifer Strohman (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketCASE MANAGEMENT STATEMENTRead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCE & OSC RE PROOF OF SERVICERead MoreRead Less
DocketSummons; Filed by Jennifer Strohman (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketCOMPLAINT FOR DAMAGES, IMPOSITION OF A CONSTRUCTIVE TRUST, AND PROVISIONAL RELIEF, FOR: 1. BREACH. OF FIDUDIARY DUTY ;ETCRead MoreRead Less
DocketComplaint; Filed by Jennifer Strohman (Plaintiff)Read MoreRead Less
Case Number: BC697013 Hearing Date: July 13, 2020 Dept: 26
IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.
brooke heller, et al.,
Case No.: BC697013
Hearing Date: July 13, 2020
[TENTATIVE] order RE:
CROSS-DEFENDANT’s demurrer to the first amended cross-complaint
On March 5, 2018 plaintiff Jennifer Strohman (“Plaintiff/Cross-Defendant”) filed a complaint against defendant Brooke Heller (“Defendant/Cross-Complainant”) and Does 1 through 25 and nominal defendant Buchalter Nemer, PLC (“Buchalter”) alleging five causes of action for (1) breach of fiduciary duty, (2) breach of written contract, (3) breach of oral contract, (4) breach of implied contract, and (5) common counts. The complaint alleges that Defendant and Plaintiff jointly acquired and took title to certain real property in Los Angeles. Defendant initiated a lawsuit against Brook Health which settled on April 15, 2016, with payment to Plaintiff to be made from escrow, and both Defendant and Plaintiff confirmed that they owned the property. Escrow closed, and the settlement funds were delivered to counsel for Defendant. Since the settlement, Plaintiff has requested that Defendant arrange for the calculation and distribution of the amount owing to her from the sale of the property. Defendant has failed to provide an accounting of or distribute the funds.
On July 19, 2018, Defendant/ Cross-Complainant filed a cross-complaint against Plaintiff/Cross-Defendant. On May 23, 2019, nominal defendant Buchalter filed a cross-complaint against Plaintiff/Cross-Defendant and Defendant/Cross-Complainant alleging (1) interpleader and (2) declaratory judgment. By stipulation of the parties, Buchalter was dismissed from the action on July 19, 2019.
On November 5, 2019, Defendant Brooke Heller and Stewart Heller (collectively “Cross-Complainants”) filed a First Amended Cross Complaint (‘FACC’) alleging causes of action for (1) dissolution of partnership and accounting, (2) conversion, (3) breach of contract, and (4) quantum meruit.
On December 10, 2019, Cross-Defendant filed the instant demurrer to the FACC. On April 17, 2020, Cross-Complainants filed their opposition. Cross-Defendant has not filed any reply. Due to the COVID-19 pandemic, the Court continued the hearing date for this motion from April 30, 2020, to July 13, 2020 at 3:00 pm. (Minute Order 4/28/20.)
The Court served notice of the continuance on the moving party (Cross-Defendant) and ordered the moving party to serve notice on all other parties. The moving party failed to file proof of service of the Court’s April 28, 2020 order on any other party. On July 8, 2020, the court issued and gave notice of a minute order again advising of the continuance of this motion to July 13, 2020.
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered.
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) “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.” (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at 747.)
Uncertainty as to the Entirety of the FACC
Cross-Defendant first contends that the entire FACC is vague, ambiguous, and uncertain as to each cause of action because it is unclear whether the alleged contracts at issue are written, oral, or implied by conduct.
A special demurrer for uncertainty under Code of Civil Procedure section 430.10 subdivision (f) is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts, or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)
Here, the FACC is not unclear as to whether the alleged contracts at issue are written, oral, or implied by conduct. There is only one cause of action for breach of contract in the FACC. In the breach of contract cause of action, Cross-Complainants allege that “[t]he agreements between Strohman and Brooke Heller by which Heller paid Strohman’s mortgage and legal fees constituted valid contract(s) between Brooke Heller and Strohman.” (FACC ¶ 36.) The FACC further alleges that “[Cross-Defendant] expressly agreed, both orally and in numerous writings, to repay Brooke Heller for the funds he expended on her behalf.” (FACC ¶ 21.) Accordingly, the FACC is not uncertain as to the form of the contract between Cross-Defendant and Cross-Complainant; the FACC alleges that the contract was made orally and in writing. Therefore, Cross-Defendant’s demurrer on this ground is OVERRULED.
Uncertainty Second Cause of Action: Conversion
Cross-Defendant also contends that the second cause of action for conversion is vague, ambiguous, and uncertain as it cannot be ascertained from the FACC what “Partnership Property” was allegedly converted.
The FACC alleges that “[Cross-Defendant], without the knowledge or consent of the other partners, removed certain items of partnership property from one the units in the subject property[.]” (FACC ¶ 27.) Though the FACC does not specify the items that Cross-Defendant removed, the FACC clearly alleges that the partnership property that has been converted is property taken from one unit of the subject property. Accordingly, Cross-Defendant’s demurrer for uncertainty as to the second cause of action is OVERRULED.
Fourth Cause of Action: Quantum Meruit
Cross-Defendant argues that the fourth cause of action fails to provide minimal details whatsoever such as the nature, quantity and dates and that quantum meruit allows for the value of service rendered not money loaned.
“Quantum meruit refers to the well-established principle that ‘the law implies a promise to pay for services performed under circumstances disclosing that they were not gratuitously rendered.’ [Citation.] To recover in quantum meruit, a party need not prove the existence of a contract [citations], but it must show the circumstances were such that ‘the services were rendered under some understanding or expectation of both parties that compensation therefor was to be made’ [citations].” (Huskinson & Brown v. Wolf (2004) 32 Cal.4th 453, 458.) “The requisite elements of quantum meruit are (1) the plaintiff acted pursuant to ‘an explicit or implicit request for the services’ by the defendant, and (2) the services conferred a benefit on the defendant. [Citation].” (Port Medical Wellness, Inc. v. Connecticut General Life Insurance Company (2018) 24 Cal.App.5th 153, 180.)
Here, the fourth cause of action is based on “restitution of the funds that [Cross-Complainant] provided to [Cross-Defendant].” (FACC ¶ 40.) Cross-Complainant provided Cross-Defendant funds for legal fees for a bankruptcy action and paid Cross-Defendant’s personal mortgage. (FACC ¶¶ 15, 19, 20.) The parties agreed that Cross-Complainant would be repaid, but Cross-Complainant was not repaid. (FACC ¶¶ 21-22.) Cross-Defendant contends that quantum meruit must be for services rendered not money owed, but fails to cite any authority to support this contention. Moreover, Cross-Complainant has alleged that Cross-Complainant did provide a service, namely, the payment of Cross-Defendant’s mortgage and legal fees incurred by Cross-Defendant. Accordingly, Cross-Defendant’s demurrer to the fourth cause of action is OVERRULED.
Statute of Limitation
Cross-Defendant contends that each cause of action is barred because the statute of limitations has run for each cause of action.
“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42, [internal citations omitted].) “The statute of limitations usually commences when a cause of action ‘accrues,’ and it is generally said that ‘an action accrues on the date of injury.’” (Vaca v. Wachovia Mortgage Corp. (2011) 198 Cal.App.4th 737, 743, [internal citations omitted].)
Here, only two dates are specified in the Cross-Complaint. The first is October 11, 2007, which is the alleged creation of the partnership between Cross-Defendant and Cross-Complainants. (FACC ¶ 1.) The second is in mentioning the deteriorating of the value of the subject property in 2008. (FACC ¶ 8.) Neither of these is in reference to the alleged injuries of Cross-Complainant. As no date of injury has been alleged, it is not clear from the face of the FACC that the statute of limitations has run. Therefore, Cross-Defendant’s demurrer on statute of limitations grounds is OVERRULED.
Misjoinder of Parties
Cross-Defendant argues that there is a misjoinder of parties and urges the court to sustain the demurrer to the cross-complaint on this ground. Cross-Defendant argues that Cross-Complainant Stewart Heller cannot be a cross-complainant because he was not a named defendant in the action and did not become a party to this action until the filing of the FACC.
Demurrers on the ground of misjoinder lie only when the defect appears on the face of the complaint or matters judicially noticed. (Royal Surplus Lines Ins. Co., Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 198.) Further, “[a]lthough the code seems to authorize the sustaining of a demurrer solely [for misjoinder of parties], the authorities indicate that the defendant is entitled to a favorable ruling only when he can show some prejudice suffered or some interests affected by the misjoinder. In practical effect, this means that such a demurrer can be successfully used only by the persons improperly joined. A proper defendant is seldom injured by the joinder of unnecessary or improper parties, plaintiff or defendant, and his demurrer ought to be overruled.” (Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231, fn 1.)
Here, Cross-Complainant Stewart Heller has not raised the issue of misjoinder. Nor has Cross-Defendant shown any prejudice or interest affected by this misjoinder. Accordingly, Cross-Defendant’s demurrer for misjoinder is OVERRULED.
Notice of Related Cases
On February 13, 2020, Cross-Complainant Brooke Heller filed a notice of related case seeking to relate the instant action (BC697013) with Brooke Heller v. Heath, et al., SC125483. As the case which Cross-Complainant seeks to relate (SC125483) was filed before the instant case, this court will defer to the judge assigned to the older, lower-numbered case (SC125483) to rule on Cross-Complainant Brooke Heller’s notice of related cases. If Cross-Complainant Brooke Heller has not already done so, Cross-Complainant Brooke Heller must file and serve the notice of related case on all parties in both cases, including all parties in Brooke Heller v. Heath, et al., SC125483, in compliance with California Rules of Court, Rule 3.300(d). (Cal. Rules of Court, Rule 3.300(d) [“The Notice of Related Cases must be filed in all pending cases listed in the notice and must be served on all parties in those cases.”].)
Cross-Complainant Brooke Heller is also ordered to contact the court assigned to Brooke Heller v. Heath, et al., SC125483 to seek a ruling on the notice of related cases. The court hereby sets a status conference regarding status of ruling on the notice of related cases for September 10, 2020 at 8:30 am.
Conclusion and order
Based on the foregoing, Cross-Defendant’s demurrer to the First Amended Cross Complaint is OVERRULED in full.
Cross-Defendant must file her answer within 10 days of notice of this order. The case management conference is continued to September 10, 2020 at 8:30 am.
If Cross-Complainant Brooke Heller has not already done so, Cross-Complainant Brooke Heller is ordered to file and serve the notice of related case on all parties in both cases, including all parties in Brooke Heller v. Heath, et al., SC125483, within three court days. Cross-Complainant Brooke Heller is also ordered to contact the court assigned to Brooke Heller v. Heath, et al., SC125483 to seek a ruling on the notice of related cases. The court hereby sets a status conference regarding status of ruling on the notice of related cases for September 10, 2020 at 8:30 am.
The court’s Judicial Assistant is to give notice of this order.
DATED: July 13, 2020 ___________________________
Judge of the Superior Court
 A demurrer to a breach of contract may be properly sustained when the complaint “does not allege whether the contract was in writing, oral or implied.” (CCP § 430.10(g).) However, here, Cross-Defendant does not reference Code of Civil Procedure section 430.10, subdivision (g), and thus, Cross-Complainants’ purported failure to allege whether the contract was in writing, oral, or implied is not a proper basis for sustaining the demurrer. (See Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 401 [finding that plaintiff’s purported failure to allege whether loan modification agreement was written, oral, or implied by conduct was not a proper basis for the trial court to sustain a demurrer to borrower's breach of contract cause of action against creditor and loan servicer, where the demurrer failed to mention the statutory subdivision governing such demurrers.].)