Superior Court, State of California



DATE: Thursday, 03 November 2022

TIME: 9:00 A.M.

Please note that for the indefinite future, all hearings will be conducted remotely as the Old Courthouse will be closed. This Department prefers that litigants use Zoom for Law and Motion and for Case Management Calendars. Please use the Zoom link below.

“A person's name is to him or her the sweetest and most important sound in any language.”—Dale Carnegie. All Courts of California celebrate the diversity of the attorneys and the litigants who appear in our Courts. Do not hesitate to correct the Court or Court Staff concerning the pronunciation of any name or how anyone prefers to be addressed. As this Court is fond of saying, “with a name like mine, I try to be careful how I pronounce the names of others.” Please inform the Court how you, or if your client is with you, you and your client prefer to be introduced. The Court encourages the use of diacritical marks, multiple surnames and the like for the names of attorneys, litigants and in court papers. You might also try but that site mispronounces my name.

You may use these links for Case Management Conferences and Trial Setting Conferences without Court permission. Informal Discovery Conferences and appearances on Ex Parte applications will be set on Order by the Court.

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Please Read This Page In Its Entirety As Some Of The Protocols Have Changed. Please Check This Tentative Rulings Page Before Making Any Appearance. Appearing on a matter is a representation that you have read and understood these protocols.

APPEARANCES.

Whether appearing in person or on a virtual platform, the usual custom and practices of decorum and attire apply. (See Jensen v. Superior Court (San Diego) (1984) 154 Cal.App.3d 533.). Counsel should use good quality equipment and with sufficient bandwith. Cellphones are very low quality in using a virtual platform. The Court expects to see the faces of the parties appearing on a virtual platform

For new Rules of Court concerning remote hearings and appearances, please review California Rules of Court, rule 3.672.

This Court expects all counsel and litigants to comply with the Tentative Rulings Procedures that are outlined in Local Civil Rule 8(E) and California Rules of Court, rule 3.1308. If the Court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the Court at (408) 808-6856 before 4:00 p.m. on the court day before the hearing of the party's intention to appear. A party must notify all other parties by telephone or in person. A failure to timely notify this Court and/or the opposing parties may result in the tentative ruling being the final order in the matter.

Please notify this Court immediately if the matter will not be heard on the scheduled date. California Rules of Court, rule 3.1304(b). If a party fails to appear at a law and motion hearing without having given notice, this Court may take the matter off calendar, to be reset only upon motion, or may rule on the matter. California Rules of Court, rule 3.1304(d). A party may give notice that he or she will not appear at a law and motion hearing and submit the matter without an appearance unless this Court orders otherwise. This Court will rule on the motion as if the party had appeared. California Rules of Court, rule 3.1304(c). Any uncontested matter or matters to which stipulations have been reached can be processed through the Clerk in the usual manner. Please include a proposed order.

All proposed orders and papers should be submitted to this Department’s e-filing queue. Do not send documents to the Department email unless directed to do so.

While the Court will still allow physical appearances, all litigants are encouraged to use the Zoom platform for Law & Motion appearances and Case Management Conferences. Use of other virtual platform devices will make it difficult for all parties fully to participate in the hearings. Please note the requirement of entering a password (highlighted above.) As for personal appearances, protocols concerning social distancing and facial coverings in compliance with the directives of the Public Health Officer will be enforced. Currently, facemasks are required in all courthouses. If you appear in person, it will be helpful if you wear a disposable paper mask while using the courtroom microphones so that your voice will not be muffled.

Individuals who wish to access the Courthouse are advised to bring a plastic bag within which to place any personal items that are to go through the metal detector located at the doorway to the courthouse.

Sign-ins will begin at about 8:30 AM. Court staff will assist you when you sign in. If you are using the Zoom virtual platform, it will helpful if you “rename” yourself as follows: in the upper right corner of the screen with your name you will see a blue box with three horizontal dots. Click on that and then click on the “rename” feature. You may type your name as: Line #/name/party. If you are a member of the public who wishes to view the Zoom session and remain anonymous, you may simply sign in as “Public.”

COURT REPORTERS.

This session will not be recorded. No electronic recordings, video, still photography or audio capture of this live stream is allowed without the expressed, written permission of the Superior Court of California, County of Santa Clara. State and Local Court rules prohibit photographing or recording of court proceedings whether in the courtroom or while listening on the Public Access Line or other virtual platform, without a Court Order. See Local General Rule 2(A) and 2(B); California Rules of Court, rule 1.150.

This Court no longer provides for Court Reporters in civil actions except in limited circumstances. If you wish to arrange for a court reporter, please use Local Form #CV-5100. All reporters are encouraged to work from a remote location. Please inform this Court if any reporter wishes to work in the courtroom. This Court will approve all requests to bring a court reporter. Counsel should meet and confer on the use of a court reporter so that only one reporter appears and serves as the official reporter for that hearing.

PROTOCOLS DURING THE HEARINGS.

During the calling of any hearing, this Court has found that the Zoom video platform works very well. But whether using Zoom or any telephone, it is preferable to use a landline if possible. IT IS ABSOLUTELY NECESSARY FOR ALL INDIVIDUALS TO SPEAK SLOWLY. Plaintiff should speak first, followed by any other person. All persons should spell their names for the benefit of Court Staff. Please do not use any hands-free mode if at all possible. Headsets or earbuds of good quality will be of great assistance to minimize feedback and distortion.

The Court will prepare the Final Order unless stated otherwise below or at the hearing. Counsel are to comply with California Rules of Court, rule 3.1312.

TROUBLESHOOTING TENTATIVE RULINGS.

To access a tentative ruling, move your cursor over the line number, hold down the “Control” key and click. If you see last week’s tentative rulings, you have checked prior to the posting of the current week’s tentative rulings. You will need to either “REFRESH” or “QUIT” your browser and reopen it. Another suggestion is to “clean the cache” of your browser. Finally, you may have to switch browsers. If you fail to do any of these, your browser may pull up old information from old cookies even after the tentative rulings have been posted.

This Court's tentative ruling is just that—tentative. Trial courts are not bound by their tentative rulings, which are superseded by the final order. (See Faulkinbury v. Boyd & Associates, Inc. (2010) 185 Cal.App.4th 1363, 1374-1375.) The tentative ruling allows a party to focus his or her arguments at a subsequent hearing and to attempt to convince the Court the tentative should or should not become the Court's final order. (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 917.) If you wish to challenge a tentative ruling, please refer to a specific portion of the tentative ruling to which you disagree.

|LINE # |CASE # |CASE TITLE |TENTATIVE RULING |

|LINE 1 |21CV384545 |Stephen Gettel v. John M. Saich; Nicole L. Saich |Demurrer of Defendants to Plaintiff’s Complaint |

| | | | |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 2 |22CV399246 |Mohamed Shahram Marleen v. Malalai Olomi a.k.a. |Demurrer of Cross-Defendant ProhealthHome Care Inc. to Cross-Complaint|

| |Notice of related |Malalai Mohideen; Mohamed Insaaf Mogideen |of Defendant/Cross-Complainant Malalai Olomi a.k.a. Malalai Mohideen. |

| |cases |and related cross-complaint. |Cross-defendants ProHealth’s demurrer to the first and fourth causes |

| |22CV393216, 18FL000677| |of action in cross-complainant Olomi’s cross-complaint on the ground |

| | | |that the pleading does not state facts sufficient to constitute a |

| | | |shareholder derivative cause of action [Code Civ. Proc., §430.10, |

| | | |subd. (e)] is SUSTAINED with 10 days’ leave to amend. |

| | | |Cross-defendants ProHealth’s demurrer to the fourth cause of action in|

| | | |cross-complainant Olomi’s cross-complaint on the ground that the |

| | | |pleading does not state facts sufficient to constitute a cause of |

| | | |action [Code Civ. Proc., §430.10, subd. (e)] for breach of fiduciary |

| | | |duty is SUSTAINED with 10 days’ leave to amend. |

| | | |To the extent a formal request for dismissal has been filed, |

| | | |cross-defendants ProHealth’s demurrer to the second cause of action in|

| | | |cross-complainant Olomi’s cross-complaint on the ground that the |

| | | |pleading does not state facts sufficient to constitute a cause of |

| | | |action [Code Civ. Proc., §430.10, subd. (e)] for demand for inspection|

| | | |is deemed MOOT. To the extent a formal request for dismissal has not |

| | | |been filed, cross-defendants ProHealth’s demurrer to the second cause |

| | | |of action in cross-complainant Olomi’s cross-complaint on the ground |

| | | |that the pleading does not state facts sufficient to constitute a |

| | | |cause of action [Code Civ. Proc., §430.10, subd. (e)] for demand for |

| | | |inspection is SUSTAINED WITHOUT LEAVE TO AMEND. |

| | | |Cross-defendants ProHealth’s demurrer is otherwise OVERRULED. |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 3 |21CV390132 |Lida Mikhaiel v. City of Sunnyvale |Motion Of Defendant City Of Sunnyvale To Compel Plaintiff To Answer |

| | | |Form Interrogatories And Special Interrogatories, Set One, Request For|

| | | |Production Of Documents And For Monetary Sanctions. |

| | | |Plaintiff did not oppose the motion. |

| | | |The motion is GRANTED. Plaintiff shall serve code-compliant responses|

| | | |without objections within 20 days of the filing and service of this |

| | | |Order. |

| | | |Defendant makes a code-compliant request for monetary sanctions. The |

| | | |request is GRANTED and the court will award sanctions in the amount of|

| | | |$900.00 payable within 20 days of the filing and service of this |

| | | |Order. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 4 |22CV393349 |Kyle Burns v. Executive Security Detail, Inc.; Michael|Motion Of Defendants Executive Security Detail, Inc. And Michael |

| | |Horiuchi; Robert Pongary; Sares Regis Group Operating,|Horiuchi To Deem Requests For Admissions To Be Admitted. |

| | |Inc. |On 31 May 2022, plaintiff’s counsel electronically served defendants |

| | | |with unverified responses to Requests for Admission. Although the |

| | | |discovery response was signed by plaintiff’s counsel of record, it was|

| | | |not signed under oath by Plaintiff as required by the Code of Civil |

| | | |Procedure. (Cal. Rules of Court, Rule 3.1345(b)(1); Appleton v. |

| | | |Superior Court (1998) 206 Cal.App.3d 632, 635-636 (“Unsworn responses |

| | | |are tantamount to no responses at all.”).) |

| | | |The motion is GRANTED. The requests for admissions are deemed |

| | | |ADMITTED. |

| | | |Defendants make a code-compliant request for monetary sanctions. The |

| | | |request is GRANTED and the court will award sanctions in the amount of|

| | | |$480.00 payable within 20 days of the filing and service of this |

| | | |Order. (NB: it is a better practice to state the request for monetary |

| | | |sanctions in the title of the moving papers.) |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 5 |22CV393349 |Kyle Burns v. Executive Security Detail, Inc.; Michael|Motion Of Defendants Executive Security Detail, Inc. And Michael |

| | |Horiuchi; Robert Pongary; Sares Regis Group Operating,|Horiuchi To Compel Plaintiff to Provide Verified Responses to Form |

| | |Inc. |Interrogatories and Special Interrogatories, Set One. |

| | | |On 31 May 2022, plaintiff’s counsel electronically served defendants |

| | | |with unverified responses to the interrogatories in question. Although|

| | | |the discovery response was signed by plaintiff’s counsel of record, it|

| | | |was not signed under oath by Plaintiff as required by the Code of |

| | | |Civil Procedure. (Cal. Rules of Court, Rule 3.1345(b)(1); Appleton v.|

| | | |Superior Court (1998) 206 Cal.App.3d 632, 635-636 (“Unsworn responses |

| | | |are tantamount to no responses at all.”).) |

| | | |The motion is GRANTED. Plaintiff shall serve code-compliant responses|

| | | |without objections within 20 days of the filing and service of this |

| | | |Order. |

| | | |Defendants make a code-compliant request for monetary sanctions. The |

| | | |request is GRANTED and the court will award sanctions in the amount of|

| | | |$590.00 payable within 20 days of the filing and service of this |

| | | |Order. (NB: it is a better practice to state the request for monetary |

| | | |sanctions in the title of the moving papers.) |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 6 |22CV393349 |Kyle Burns v. Executive Security Detail, Inc.; Michael|Motion Of Defendants Executive Security Detail, Inc. And Michael |

| | |Horiuchi; Robert Pongary; Sares Regis Group Operating,|Horiuchi To Compel Plaintiff to Provide Verified Responses to Request |

| | |Inc. |for Production of Documents, Set One. |

| | | |On 31 May 2022, plaintiff’s counsel electronically served defendants |

| | | |with unverified responses to the request for production of documents. |

| | | |Although the discovery response was signed by plaintiff’s counsel of |

| | | |record, it was not signed under oath by Plaintiff as required by the |

| | | |Code of Civil Procedure. (Cal. Rules of Court, Rule 3.1345(b)(1); |

| | | |Appleton v. Superior Court (1998) 206 Cal.App.3d 632, 635-636 |

| | | |(“Unsworn responses are tantamount to no responses at all.”).) |

| | | |The motion is GRANTED. Plaintiff shall serve code-compliant responses|

| | | |without objections within 20 days of the filing and service of this |

| | | |Order. |

| | | |Defendants make a code-compliant request for monetary sanctions. The |

| | | |request is GRANTED and the court will award sanctions in the amount of|

| | | |$590.00 payable within 20 days of the filing and service of this |

| | | |Order. (NB: it is a better practice to state the request for monetary |

| | | |sanctions in the title of the moving papers.) |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 7 |18CV336876 |David Merritt, Salma Merritt v. Specialized Loan |Motion of Defendants Expunge Three Lis Pendens Recorded by Plaintiffs.|

| |Consolidated with |Servicing LLC; U.S. Bank National Association, as |Plaintiffs did not oppose the motion. Plaintiffs’ failure to file a |

| |20CV72516 |Trustee for the Certificateholders of Bear Steams Arm |memorandum of points and authorities in opposition to the motion is |

| | |Trust, Mortgage Pass-Through Certificates, Series |fatal and warrants granting the motion to expunge. (Kirkeby v. |

| | |2006-2; Ami McKernan; Tobey Wells; and Andrew Cecere |Superior Court (2004) 33 Cal.4th 642, 647; Civil Code, §§405.30, |

| | | |405.32. |

| | | |This Court takes judicial notice of the Court of Appeal decision in |

| | | |H048463 (remittitur filed 25 October 2022.) |

| | | |Plaintiffs never posted bond, as ordered by this Court to do so, |

| | | |pursuant to Code of Civil Procedure, §§ 391.1 et seq. Since the |

| | | |actions are being dismissed pursuant to Code of Civil Procedure, § |

| | | |391.4, there is no probability of the plaintiffs being able to prevail|

| | | |in these cases. |

| | | |The motion is GRANTED. Defendants’ request for an award of attorneys’|

| | | |fees in the sum of $4,275.00 and the $40.00 filing fee, for a total of|

| | | |$4,315.00 is GRANTED. |

| | | |Counsel for defendants may prepare an appropriate notice of ruling and|

| | | |judgment and submit it to this Department through the e-filing queue |

| | | |for execution. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 8 |19CV344562 |Quoc Tran v. Joseph Abouseif |Motion of Plaintiff in Intervention Redwood Fire & Casualty Insurance |

| | | |Company for Leave to Intervene. |

| | | |OFF CALENDAR. |

|LINE 9 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 10 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 11 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 12 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 13 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 14 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 15 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 16 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 17 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 18 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 19 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 20 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 21 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 22 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 23 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 24 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 25 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 26 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 27 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 28 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 29 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 30 | | |SEE ATTACHED TENTATIVE RULING. |

---oooOooo---

Calendar Line 1

| | |

|SUPERIOR COURT, STATE OF CALIFORNIA | |

|COUNTY OF SANTA CLARA | |

| | |

|DEPARTMENT 20 | |

| | |

|161 North First Street, San Jose, CA 95113 | |

|408.882.2320 · 408.882.2296 (fax) | |

|smanoukian@ | |

| |(For Clerk's Use Only) |

|CASE NO.: |21CV384545 |Stephen W. Gettel v. John M. Saich, et al. |

|DATE: 3 November 2022 |TIME: 9:00 am |LINE NUMBER: 1 |

|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |

|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 02 November 2022. Please specify|

|the issue to be contested when calling the Court and Counsel. |

|---oooOooo--- |

|Order On Demurrer By Defendants |

|To Plaintiff’s First Amended Complaint. |

I. Statement Of Facts.

Plaintiff Stephen W. Gettel (“Gettel”) is and was, at all times relevant, a duly licensed real estate broker and real estate appraiser. (Complaint, ¶4.) Real property with the street address of 20563 Stevens Creek Boulevard in Cupertino (“Property”) was placed in the corpus of the John M. Saich Declaration of Trust dated August 2, 2004 (“John Trust”) and the Nichole L. Saich Declaration of Trust dated September 28, 2012 (“Nichole Trust”). (Complaint, ¶¶8 – 11 and 13.)

For many years prior to 2012 and thereafter, Bank of America, National Association (“Bank”) was lessee of the Property through a succession of lease contracts and extensions. (Complaint, ¶14.) In or about March 2016, John M. Saich as trustee of the John Trust and Nichole L. Saich as trustee of the Nichole Trust entered into a brokerage agreement with plaintiff Gettel to negotiate with Bank an extension of the lease regarding the Property. (Complaint, ¶16.) Under the agreement, plaintiff Gettel would be entitled to the standard broker’s commission on any lease extension that resulted from plaintiff Gettel’s brokerage services. (Id.)

As a direct result of plaintiff Gettel’s efforts, the John Trust and Nichole Trust, as lessors, and Bank, as lessee, entered into a written First Amendment to Lease on or about 10 March 2017 extending the lease from 1 June 2019 to 31 May 2029. (Complaint, ¶¶17 – 18.) The standard brokerage commission for a lease is three percent of the lease payments over the term of the entire lease. (Complaint, ¶20.) Plaintiff Gettel was immediately due a brokerage commission of $210,782.70. (Id.)

The John Trust and Nichole Trust have only paid $30,000 toward the commission owed to plaintiff Gettel. (Complaint, ¶24.) On 20 June 2019, plaintiff Gettel sent a demand letter to John Saich and Nichole Saich demanding $210,782.70. (Complaint, ¶26.)

In a prefatory statement, plaintiff Gettel alleges John M. Saich and Nichole L. Saich filed a lawsuit against plaintiff Gettel in Santa Clara County Superior Court, case number 17CV314350 (“Original Action”), and “is currently awaiting a hearing to set aside a default and the judgment.” (Complaint, ¶3.) Plaintiff Gettel brought an action against John M. Saich and Nichole L. Saich as trustees of the John Trust and Nichole Trust, respectively, in Santa Cruz County Superior Court, case number 20CV00337 (“Santa Cruz Action”). (Id.) Plaintiff Gettel further alleges:

The Santa Cruz court, in a demurrer motion, stated the case had to be filed in Santa Clara despite the fact that the parties are different, and all the parties are domiciled in the county of Santa Cruz. Plaintiff Stephen W. Gettel disagrees and is preparing to file an appeal, but to preserve his claims within the statute of limitations, and in compliance with the Santa Cruz order, he files this complaint in the County of Santa Clara. (Id.)

On 21 June 2021, plaintiff Gettel filed this action against defendants John M. Saich and Nichole L. Saich as trustees of the John Trust and Nichole Trust, respectively, asserting causes of action for:

1) Breach of Contract;

2) Fraud;

3) Unjust Enrichment;

4) Account Stated;

5) Declaratory Relief; and

6) Appointment of a Receiver.

On 6 July 2022, plaintiff Gettel filed an amendment to the complaint substituting Nichole L. Saich, successor trustee of John M. Saich Declaration of Trust dated August 2, 2004; the estate of John M. Saich, Executor Nichole L. Saich; and Nichole L. Saich, individually, for Doe defendants one through three.

On 15 August 2022, defendants filed the motion now before the court, a demurrer to plaintiff’s first amended complaint.

II. Demurrers in General.

Demurrer: Face of the Complaint.

A complaint must contain substantive factual allegations sufficiently apprising the defendant of the issues to be addressed. (See Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144[1]; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2 (demurrers for uncertainty.)

Code of Civil Procedure, § 430.10(e) states “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:. . . . .The pleading does not state facts sufficient to constitute a cause of action.”

Code of Civil Procedure, § 430.20(a) states: “A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: The answer does not state facts sufficient to constitute a defense.)

A demurrer tests the legal sufficiency of a complaint. It serves to test the sufficiency of a pleading by raising questions of law. (Buford v. State of California (1980) 104 Cal.App.3d 811, 818.) While a demurrer admits all material facts that were properly plead, a demurrer does not assume the truth of the contentions, deductions or conclusions of facts or law. (Levya v. Nielson (2000) 83 Cal.App.4th 1061, 1063.[2])

“It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct.[3] A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) It ‘admits the truth of all material factual allegations in the complaint . . .; the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)

Even though the complaint is in some respects uncertain, the courts often hold it good against demurrer on the theory that, athough not a model of pleading, “its allegations, liberally construed, are sufficient to apprise the defendant of the issues that he is to meet.” (See Krieger v. Feeny (1910) 14 Cal.App. 538, 544.) The objection that the complaint (or some part of it) is uncertain goes to a doubt as to what the plaintiff means by the facts he or she has alleged, and it is designed to require the pleader to clarify the doubtful part by more explicit averments.

A demurrer is properly sustained where the complaint or an individual cause of action fails to "state facts sufficient to constitute a cause of action." (Code of Civil Procedure, § 430.10(e).) "Conclusionary allegations . . . without facts to support them" are insufficient on demurrer.” (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.) “It is fundamental that a demurrer is an attack against the complaint on its face, it should not be sustained unless the complaint shows that the action may not be pursued.” (Yolo County Dept. of Social Services v. Municipal Court (1980) 107 Cal.App.3d 842, 846-847.)

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

“It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) It ‘admits the truth of all material factual allegations in the complaint . . .; the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214; see Cook v. De La Guerra (1864) 24 Cal. 237, 239: “[I]t is not the office of a demurrer to state facts, but to raise an issue of law upon the facts stated in the pleading demurred to.”)

“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)

III. Analysis.

A. Defendants’ Request For Judicial Notice is GRANTED.

In support of the demurrer, defendants request judicial notice of various court records from the Original Action and the Santa Cruz Action. The request for judicial notice in support of demurrer by defendants to plaintiff’s complaint is GRANTED. (See Evidence Code, §452, subd. (d); see also People v. Woodell (1998) 17 Cal.4th 448, 455—Evidence Code section 452 and 453 permit the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.”.)

B. Defendants’ Demurrer To Plaintiff Gettel’s First Amended Complaint is SUSTAINED.

1. Compulsory Cross-Complaint.

Pursuant to California Code of Civil Procedure, § 426.50, where it appears that the cross-complaint is compulsory, the court “shall grant” leave to file that cross-complaint so long as the party seeking leave is acting in good faith. A cross-complaint is compulsory if: 1) it is related to plaintiff’s complaint, that is, if the cross-complaint “arises out of the same transaction, occurrence as the cause of action which the plaintiff alleges in his complaint;” and 2) the cause of action alleged in the cross-complaint exists at the time the answer is served. (Code of Civil Procedure, §§ 426.10(c); 426.30(a): “[I]f a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.”)

The compulsory cross-complaint statute is designed to prevent “piecemeal litigation.” (Carroll v. Import Motors, Inc. (1995) 33 Cal.App.4th 1429, 1436 [39 Cal. Rptr. 2d 791].) In discussing the legislative purpose of former section 439, [footnote omitted] the predecessor of section 426.30, the Supreme Court explained that because “[t]he law abhors a multiplicity of actions … the obvious intent of the Legislature … was to provide for the settlement, in a single action, of all conflicting claims between the parties arising out of the same transaction. [Citation.] Thus, a party cannot by negligence or design withhold issues and litigate them in successive actions; he may not split his demands or defenses; he may not submit his case in piecemeal fashion. [Citation.]” (Flickinger v. Swedlow Engineering Co. (1955) 45 Cal.2d 388, 393 [289 P.2d 214]; see also Clark v. Lesher (1956) 46 Cal.2d 874, 882 [299 P.2d 865].) In furtherance of this intent of avoiding a multiplicity of actions, numerous cases have held that the compulsory cross-complaint statute—both section 426.30 and its predecessor statute (former section 439)—must be liberally construed to effectuate its purpose. (See, e.g., Currie Medical Specialties, Inc. v. Bowen (1982) 136 Cal.App.3d 774, 777 [186 Cal. Rptr. 543] (Currie Medical); Ranchers Bank v. Pressman (1971) 19 Cal.App.3d 612, 620 [97 Cal. Rptr. 78] (Ranchers Bank); Sylvester v. Soulsburg (1967) 252 Cal.App.2d 185, 190 [60 Cal. Rptr. 218]; Carey v. Cusack (1966) 245 Cal.App.2d 57, 66 [54 Cal. Rptr. 244]; Saunders v. New Capital for Small Businesses, Inc. (1964) 231 Cal.App.2d 324, 334 [41 Cal. Rptr. 703] (Saunders).)

(Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 959.)

Defendants demur to plaintiff Gettel’s first amended complaint (“FAC”) by arguing not only that plaintiff Gettel’s FAC should be barred by the compulsory cross-complaint rule but that the court in the Santa Cruz Action has already decided this issue. Defendants requested judicial notice of plaintiff Gettel’s FAC in the Santa Cruz Action. In comparing plaintiff Gettel’s pleading in the Santa Cruz Action, it is substantively identical to plaintiff Gettel’s FAC in the instant action. Therefore, the allegations directly arise out of the same occurrence described in the Santa Cruz action that serves as the basis for the current complaint. (See Countrywide Home Loans Inc. v. Superior Court (1999) 69 Cal.App.4th 785, 799, citing Babb v. Superior Court (1971) 3 Cal.3d 841. 849, fn. 5 in the context of indemnity claims).

Defendants also requested judicial notice of the 7 April 2021 order sustaining demurrer by defendants to plaintiff’s first amended complaint without leave to amend by the court (Hon. Rebecca Connolly) in the Santa Cruz Action. In relevant part, the order states,

“Because Gettel failed to file a cross-complaint in [the Original Action] for his related causes of action (which he was required to do pursuant to CA CCP §428.50(a)), he is barred from bringing the claims in this Court, therefore the demurrers to the six causes of action in the FAC are sustained without leave to amend. (Lawrence v. Bank of Am. (1985) 163 Cal.App.3d 431, 436.)”

Thereafter, on or about 10 June 2021, the court (Hon. Timothy Volkmann) in the Santa Cruz Action issued an order, among other things, denying plaintiff Gettel’s motion for reconsideration of order sustaining demurrer without leave to amend. According to defendants here, plaintiff Gettel did not appeal the final judgment entered in the Santa Cruz Action.

2. Collateral Estoppel.

Rather than appeal, plaintiff Gettel instead filed the instant action.

The doctrine of collateral estoppel compels this court to abide by the court’s rulings in the Santa Cruz Action.

Collateral estoppel is a doctrine which prevents relitigation of issues previously argued and resolved in a prior proceeding. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341 [272 Cal. Rptr. 767, 795 P.2d 1223].) In order to apply this principle: (1) the issue must be identical to that decided in the prior proceeding; (2) the issue must have been actually litigated in the prior proceeding; (3) the issue must have been necessarily decided in the prior proceeding; (4) the decision must have been final and on the merits; and (5) preclusion must be sought against a person who was a party or in privity with a party to the prior proceeding. (Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 481 [111 Cal. Rptr. 2d 870], citing Lucido, supra, 51 Cal.3d 335.)

“[I]n deciding whether to apply collateral estoppel, the court must balance the rights of the party to be estopped against the need for applying collateral estoppel in the particular case, in order to promote judicial economy by minimizing repetitive litigation, to prevent inconsistent judgments which undermine the integrity of the judicial system, or to protect against vexatious litigation.” (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 875 [151 Cal. Rptr. 285, 587 P.2d 1098] (Clemmer).)

(Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223, 1233 [49 Cal.Rptr.3d 892].)

In opposition, plaintiff Gettel alludes to the fact that the most recent amendment is directed at Nichole Saich in various capacities but that the Santa Cruz Action is directed against John M. Saich and Nichole L. Saich in their capacities as trustees of their respective trusts.

As explained above, however, collateral estoppel applies “against a person who was a party or in privity with a party to the prior proceeding.” Here, preclusion is being sought against plaintiff Gettel. It is of no consequence that Nichole Saich is being sued in other capacities.

Plaintiff Gettel also apparently takes issue with the propriety of the court’s ruling(s) in the Santa Cruz Action.[4] However, the court here is not tasked with reviewing the accuracy of the underlying rulings.

Finally, plaintiff Gettel cites to Witkin for the following:

Issue preclusion, or collateral estoppel, generally occurs where an issue that was previously litigated and determined is raised in a subsequent action between the same parties on a different claim. (See supra, § 361, and infra, § 444.) In some situations, however, the issue previously litigated and determined is raised again in a subsequent proper action between the same parties on the same claim. The Restatement characterizes this effect as direct estoppel. (See Rest.2d, Judgments, Chap. 3, Int. Note; § 17, Comment c.) Thus, if the defendant successfully raises the objections of lack of jurisdiction, improper venue, or nonjoinder of parties, a resulting judgment of dismissal is not on the merits and is therefore neither a merger nor a bar. Hence, the plaintiff may bring a second action on the same claim. (Rest.2d, Judgments § 20(1).) But the issue determined in the first action-- lack of jurisdiction, improper venue, or nonjoinder of parties-- is conclusive on the parties in that second action. (Rest.2d, Judgments § 17, Comment c; § 20, Comment b.)

King v. International Union of Operating Engineers (1952) 114 C.A.2d 159, 250 P.2d 11, illustrates the concept, although it does not utilize the Restatement's terminology. The first action was by a number of members of a local union on behalf of all to obtain a declaration of local freedom from control by the international union. It was dismissed without prejudice for failure to exhaust inter-union remedies. Held, the judgment of dismissal was res judicata in this second action by other union members seeking the same relief without exhaustion of those remedies. (114 C.A.2d 164.)

(7 Witkin California Procedure. Judgment § 369 (5).)

Plaintiff Gettel cites the passage above to support his assertion that he is not seeking the same relief at issue in the Original Action.

However, plaintiff Gettel misunderstands the argument being advanced by defendants here which is not that the Original Action serves as res judicata or collateral estoppel, but rather that the rulings by the court in the Santa Cruz Action are conclusive against plaintiff Gettel in this instant action filed on the heels of the Santa Cruz Action. Even the authority cited by plaintiff Gettel makes this clear:

“But the issue determined in the first action—Iack of jurisdiction, improper venue, or nonjoinder of parties—- is conclusive on the parties in that second action. (Rest.2d, Judgments § 17, Comment c; § 20, Comment b.).” (Plaintiff’s memorandum of Points and Authorities in opposition, page 9, lines 1-3.)

Here, the compulsory cross-complaint issue is the same as the one already determined by the court in the Santa Cruz Action and, thus, conclusive as against plaintiff Gettel.

For the reasons discussed above, defendants’ demurrer to plaintiff Gettel’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)], i.e., barred by Code of Civil Procedure, § 426.30, subd. (a) [compulsory cross-complaint], is SUSTAINED WITHOUT LEAVE TO AMEND.

IV. Tentative Ruling.

The tentative ruling was duly posted.

V. Case Management.

The Order to Show Cause currently set for 10 November 2022 at 10:00 AM in this Department is VACATED AS MOOT as the matter was apparently served and defendants filed the instant motion. The case will be placed on the Dismissal Review Calendar for 09 March 2022 at 10:00 AM in Department 20.

VI. Order.

Defendants’ demurrer to plaintiff Gettel’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)], i.e., the pleading is barred by Code of Civil Procedure section 426.30, subd. (a) [compulsory cross-complaint], is SUSTAINED WITHOUT LEAVE TO AMEND.

|___________________________ |______________________________________________ |

|DATED: |HON. SOCRATES PETER MANOUKIAN |

| |Judge of the Superior Court |

| |County of Santa Clara |

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|SUPERIOR COURT, STATE OF CALIFORNIA | |

|COUNTY OF SANTA CLARA | |

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|DEPARTMENT 20 | |

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|161 North First Street, San Jose, CA 95113 | |

|408.882.2320 · 408.882.2296 (fax) | |

|smanoukian@ | |

| |(For Clerk's Use Only) |

|CASE NO.: |22CV399246 |Mohamed Shahram Marleen, et al. v. Mohamed Insaaf Mohideen, et al. |

|DATE: 03 November 2022 |TIME: 9:00 am |LINE NUMBER: 02 |

|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |

|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 02 November 2022. Please specify|

|the issue to be contested when calling the Court and Counsel. |

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|Order On ProHealth’s Demurrer To |

|Defendant Malalai Olomi’s Cross-Complaint. |

I. Statement of Facts.

A. Complaint.

Plaintiff Mohamed Shahram Marleen (“Marleen”) and defendant Mohamed Insaaf Mohideen (“Mohideen”) are cousins. (Complaint, ¶10.) Defendant Mohideen and defendant Malailai Olomi (“Olomi”) married in or around 2001. (Id.)[5]

In 2007, plaintiff Marleen and defendant Olomi formed plaintiffs ProHealth Care, Inc. and Pro Health Home Care, Inc. (collectively, “ProHealth”) with plaintiff Marleen and defendant Olomi each owning 50% of ProHealth. (Complaint, ¶11.) Plaintiff Marleen and defendant Olomi comprised the entire Board of Directors for ProHealth with plaintiff Marleen serving as Chairman of the Board. (Id.) Defendant Olomi holds the title of ProHealth’s Vice-President, Secretary, and Treasurer, as well as Board director. (Complaint, ¶12.) Defendant Mohideen acted as the actual or de facto Chief Financial Officer for ProHealth. (Id.)

ProHealth is a locally owned home health and hospice agency. (Complaint, ¶13.) Since inception, ProHealth has opened three additional California locations in Walnut Creek, Stockton, and Sacramento. (Id.) ProHealth has been recognized for its excellent service to its clients. (Id.)

Defendant Olomi merely acted as a puppet for defendant Mohideen and delegated all her duties at ProHealth to defendant Maiden. (Complaint, ¶¶12 and 21.) All ProHealth employees understood that plaintiff Marleen and defendant Mohideen co-owned, managed, and controlled ProHealth, not defendant Olomi. (Complaint, ¶14.) Defendant Mohideen handled all financial aspects and operations of ProHealth, managing ProHealth’s accounting and finances, collecting and depositing revenue, paying ProHealth’s expenses, and preparing and maintaining ProHealth’s financial statements. (Complaint, ¶16.)

Defendant Mohideen also supervised periodic audit reconciliations of ProHealth’s finances and decided the salaries of ProHealth’s employees. (Id.) Defendant Mohideen exerted and maintained strict control over ProHealth’s bank accounts and financial statements. (Complaint, ¶¶17 and 20.) Even as a 50% shareholder of ProHealth and Chairman of the Board, plaintiff Marleen could not withdraw funds from ProHealth’s account without defendant Mohideen’s explicit consent and approval. (Complaint, ¶18.)

The global COVID-19 pandemic adversely affected ProHealth’s business and ProHealth’s revenue decreased significantly. (Complaint, ¶22.) Defendant Mohideen started to explore the potential sale of ProHealth. (Complaint, ¶24.) As ProHealth’s financial struggles mounted, defendant Mohideen inexplicably told plaintiff Marleen and ProHealth’s Director of Finance that ProHealth should cancel its business relationship with Kaiser Permanente (“Kaiser”), one of ProHealth’s main revenue generating customers. (Complaint, ¶25.) Troubled by defendant Mohideen’s recommendations, in August 2021, plaintiff Marleen started investigating ProHealth’s finances and requesting financial information. (Complaint, ¶26.) As part of his inquiry, plaintiff Marleen spoke with ProHealth’s Vice President of Sales who confirmed the profitability and importance of the Kaiser relationship to the survival of ProHealth’s business. (Id.)

During plaintiff Marleen’s 2021 investigation regarding Kaiser, plaintiff Marleen learned for the first time from ProHealth’s Director of Finance that all revenue earned from the Kaiser contract was not being deposited into ProHealth’s business bank account. (Complaint, ¶28.) Instead, defendant Mohideen had directed ProHealth personnel to deposit portions of this revenue into an account defendant Mohideen established at Wells Fargo Bank for ProHealth in 2012 which plaintiff Marleen was told by defendant Mohideen was for a “rainy day fund” in case of emergency. (Complaint, ¶¶27 and 28.)

In opening the Wells Fargo account, defendants Olomi and Mohideen falsely represented to Wells Fargo, through a fraudulent corporate resolution, that they were the only two shareholders of ProHealth. (Complaint, ¶29.) Defendants Mohideen and Olomi were the only authorized signatories to the ProHealth account at Wells Fargo. (Id.) The address listed for the account was a Malibu residential address belonging to defendants and the only telephone numbers listed for the account were defendant Mohideen’s personal numbers. (Id.)

Plaintiff Marleen’s investigation into ProHealth’s account at Wells Fargo revealed a years-long scheme of embezzlement, theft, and fraud in which defendants Mohideen and Olomi stole millions of dollars from ProHealth to fund their personal expenses and extravagant lifestyle. (Complaint, ¶¶30 – 38.) Defendants’ embezzlement and theft of ProHealth’s corporate funds was not limited to the Wells Fargo account. (Complaint, ¶39.) Defendants had misappropriated funds from ProHealth’s primary account at Bank of America dating back to 2016. (Complaint, ¶¶39 – 58.)

By the time plaintiff Marleen’s investigation into defendants’ malfeasance concluded, defendant Mohideen had not only severed ties with ProHealth, but had moved to Los Angeles. (Complaint, ¶59.) Plaintiff Marleen confronted defendant Mohideen who admitted in communications that he had stolen and embezzled significant monies from ProHealth. (Complaint, ¶¶59 – 63.) Defendants Mohideen and Olomi have been engaged in contentious divorce proceedings since February 2018 that remain ongoing. (Complaint, ¶64.)

On 1 June 2022[6], plaintiffs Marleen and ProHealth filed this action against defendants Mohideen and Olomi asserting causes of action for:

1) Fraudulent Concealment

2) Breach of Fiduciary Duty

3) Aiding and Abetting Breach of Fiduciary Duty and Conversion [against defendant Olomi]

4) Conversion

5) Breach of Duty of Loyalty [against defendant Mohideen]

6) Removal of Board Director [against defendant Olomi]

7) Constructive Trust

In the court’s records is a Civil Filing Rejection Letter dated 20 July 2022. The court clerk rejected an answer defendant Olomi attempted to file noting, “Defendant name throughout Answer is inconsistent.”

B. Cross-Complaint.

On 7 September 2022, defendant/ cross-complainant Olomi filed an answer to the complaint and a cross-complaint. The cross-complaint alleges Olomi started ProHealth with Mohideen and Marleen in 2007. (Cross-Complaint, ¶10.) From the start, Mohideen was tasked with finances, executive level management and operations. (Id.) Marleen was tasked with marketing and managing the marketing team. (Id.) Olomi was responsible for Human Resources. (Id.) Marleen gave Mohideen control of ProHealth’s finances, ultimately naming Mohideen Chief Financial Officer, without Olomi’s knowledge or consent. (Id.) In addition to ProHealth, Marleen and Mohideen operated multiple businesses. (Cross-Complaint, ¶11.)

In 2012, Mohideen and Olomi opened a corporate bank account at Wells Fargo on behalf of ProHealth. (Cross-Complaint, ¶13.) At the time, Mohideen told Olomi the bank account was to be used as a rainy-day fund for ProHealth. (Id.) Given that Marleen had explicitly handed over control of ProHealth’s finances to Mohideen, Olomi agreed to open the account. (Id.) Marleen knew about the account as Mohideen told Marleen the Wells Fargo account was a rainy-day fund for ProHealth. (Id.)

Olomi never wrote any checks from the Wells Fargo account. (Cross-Complaint, ¶14.) ProHealth’s Director of Finance deposited checks into the Wells Fargo account at Mohideen’s direction. (Id.) Marleen’s wife wrote out checks from the Wells Fargo account which were signed by Mohideen. (Id.) Marleen and Mohideen disclosed the Wells Fargo account to potential buyers in their efforts to sell ProHealth in 2019. (Id.)

In 2016, Olomi’s marriage to Mohideen began falling apart. (Cross-Complaint, ¶15.) Marleen and Mohideen, working in concert, began reducing Olomi’s role in ProHealth and eliminated her access to information about ProHealth’s finances. (Id.) Olomi and Mohideen stopped living together in July 2017 and Mohideen filed for divorce in February 2018. (Cross-Complaint, ¶16.)

Once Mohideen and Marleen forced Olomi out of ProHealth, they began defrauding ProHealth of millions of dollars. (Cross-Complaint, ¶17.) Mohideen, with Marleen’s blessing, began investing corporate funds in crypotcurrencies that led to losses for ProHealth. (Cross-Complaint, ¶18.) Mohideen’s use of ProHealth’s account for personal expenses was open and obvious to Marleen and ProHealth’s Finance Department. (Cross-Complaint, ¶19.) Marleen knew about Mohideen’s personal expenditures and approved them or failed to exercise sufficient oversight as ProHealth’s CEO and Director, thereby harming Olomi’s share value in ProHealth. (Cross-Complaint, ¶¶19 – 23.) Olomi, cut out of ProHealth by Mohideen and Marleen, had no knowledge of Mohideen’s use of ProHealth funds for his personal expenditures. (Cross-Complaint, ¶20.)

To the extent Mohideen paid ProHealth funds directly to Olomi, Olomi understood them to be her salary, distributions, or approved expenditures by both Marleen and Mohideen. (Cross-Complaint, ¶24.)

On information and belief, Olomi alleges Marleen or Mohideen forged her signature on an application for federal Payment Protection Plan funds. (Cross-Complaint, ¶25.)

Between 2017 and 2019, Marleen and Mohideen used ProHealth funds for personal expenditures. (Cross-Complaint, ¶¶26 – 29.)

Marleen, without the knowledge or consent of Olomi, appointed Mohideen and Marleen’s wife, Mai Marleen, as directors of ProHealth. (Cross-Complaint, ¶¶30 – 32.)

In December 2021, Olomi requested Marleen provide her documents related to the financial condition of ProHealth but Marleen refused. (Cross-Complaint, ¶¶33 – 34.) Olomi filed a separate action to enforce her shareholder and director rights (“Corporate Documents Action”). (Cross-Complaint, ¶34.)

Olomi’s cross-complaint asserts causes of action for:

1) Breach of Fiduciary Duty [against cross-defendant Marleen]

2) Demand for Inspection

3) Removal of Director [against cross-defendant Marleen]

4) Unjust Enrichment [against cross-defendants Marleen and Mohideen]

5) Equitable Indemnity [against cross-defendants Marleen and Mohideen]

On 18 August 2022[7], plaintiffs/ cross-defendants ProHealth filed the motion now before the court, a demurrer to the entirety of defendant/ cross-complainant Olomi’s cross-complaint. On 19 August 2022, plaintiffs/ cross-defendants ProHealth filed an amended/ corrected demurrer adding a table of authorities and a table of contents with no other changes.

On 20 October 2022, cross-complainant Olomi filed opposition to cross-defendants ProHealth’s demurrer to the cross-complaint and also filed a separate opposition to cross-defendant Marleen’s demurrer to the cross-complaint. [The court record does not reflect and the court is not otherwise aware of a demurrer to the cross-complaint by cross-defendant Marleen. Consequently, the court will disregard Olomi’s opposition to cross-defendant Marleen’s demurrer.]

II. Demurrers in General.

A complaint must contain substantive factual allegations sufficiently apprising the defendant of the issues to be addressed. (See Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

A demurrer tests the legal sufficiency of a complaint. It is properly sustained where the complaint or an individual cause of action fails to “state facts sufficient to constitute a cause of action.” (Code of Civil Procedure, § 430.10, subd. (e).) “[C]onclusionary allegations . . . without facts to support them” are insufficient on demurrer. (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.) “It is fundamental that a demurrer is an attack against the complaint on its face, it should not be sustained unless the complaint shows that the action may not be pursued.” (Yolo County Dept. of Social Services v. Municipal Court (1980) 107 Cal.App.3d 842, 846-847.)

“It is not the ordinary function of a demurrer to test the truth of the plaintiff’s allegations or the accuracy with which he describes the defendant’s conduct. A demurrer tests only the legal sufficiency of the pleading.” (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213.) “It ‘admits the truth of all material factual allegations in the complaint . . .; the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.’ [Citation.]” (Id. at pp. 213-214; see Cook v. De La Guerra (1864) 24 Cal. 237, 239: “[I]t is not the office of a demurrer to state facts, but to raise an issue of law upon the facts stated in the pleading demurred to.”)

III. Analysis.

A. Exercise Cross-defendants ProHealth’s request for judicial notice is denied.

The request for judicial notice in support of ProHealth’s demurrer to defendant Malailai Olomi’s cross-complaint is DENIED as unnecessary. (See Duarte v. Pacific Specialty Insurance Company (2017) 13 Cal.App.5th 45, 51, fn. 6—denying request where judicial notice is not necessary, helpful or relevant.)

B. Cross-defendants ProHealth’s demurrer to the entirety of cross-complainant Olomi’s cross-complaint is OVERRULED.

Cross-defendants ProHealth demur to the entirety of Olomi’s cross-complaint “on the grounds that she may either bring a direct action to remedy individual harms or a derivative action on behalf of ProHealth. She has combined these mutually exclusive actions and, for that reason, ProHealth’s demurrer should be sustained.”[8]

An action is derivative if “ ‘the gravamen of the complaint is injury to the corporation, or to the whole body of its stock and property without any severance or distribution among individual holders, or it seeks to recover assets for the corporation or to prevent the dissipation of its assets.’ ” (Jones v. H. F. Ahmanson & Co. (1969) 1 Cal.3d 93, 106 (Jones).) An individual cause of action exists only if damages to the shareholders were not incidental to damages to the corporation. (Jones, supra, 1 Cal.3d at p. 107.)

Shareholders may bring two types of actions, “a direct action filed by the shareholder individually (or on behalf of a class of shareholders to which he or she belongs) for injury to his or her interest as a shareholder,” or a “derivative action filed on behalf of the corporation for injury to the corporation for which it has failed or refused to sue.” (Friedman, Cal. Practice Guide: Corporations (The Rutter Group 2004) ¶ 6:598, p. 6-127.) “The two actions are mutually exclusive: i.e., the right of action and recovery belongs either to the shareholders (direct action) or to the corporation (derivative action).” (Ibid.) When the claim is derivative, the “shareholder is merely a nominal plaintiff … . Even though the corporation is joined as a nominal defendant … , it is the real party in interest to which any recovery usually belongs.” (Friedman, supra, ¶ 6:602, pp. 6-128.1 to 6-128.2.)

(Schuster v. Gardner (2005) 127 Cal.App.4th 305, 311-312.)

ProHealth contends the cross-complaint is purportedly a shareholder derivative action but Olomi alleges damage to her own personal interest. It is not clear to the court whether cross-defendant ProHealth is asserting the cross-complaint is uncertain (Code Civ. Proc., §430.10, subd. (f)) or that Olomi cannot state facts sufficient to constitute a cause of action (Code Civ. Proc., §430.10, subd. (e)). Since ProHealth has not clearly identified the ground for demurrer, the court finds ProHealth’s argument is not sufficiently developed.

Accordingly, cross-defendants ProHealth’s demurrer to the entirety of Olomi’s cross-complaint is OVERRULED.

C. Cross-defendants ProHealth’s demurrer to the first cause of action [breach of fiduciary duty] and fourth cause of action [unjust enrichment] in cross-complainant Olomi’s cross-complaint on the ground that cross-complainant Olomi has not satisfied the requirement of Corporations Code section 800, subdivision (b)(2) is SUSTAINED.

“A shareholder may bring a derivative suit on the corporation’s behalf where management (or any third party) breaches a duty owed to the corporation and the corporation fails to assert its cause of action. The shareholder is merely a nominal plaintiff in such an action. Even though the corporation is joined as a nominal defendant, it is the real party in interest to which any recovery usually belongs.” (Friedman, CAL. PRAC. GUIDE: CORPORATIONS (The Rutter Group 2007) ¶6:602, p. 6-131 citing Schuster v. Gardner (2005) 127 Cal.App.4th 305, 312.) “Since a derivative suit enforces a corporate cause of action, any recovery ordinarily goes to the corporation rather than to the plaintiff-shareholder.” (See Avikian v. WTC Financial Corp. (2002) 98 Cal.App.4th 1108, 1115.) “While in a derivative action the plaintiff shareholder sues the wrongdoers and joins the corporation as a defendant, the corporation is the real party in interest and the shareholder a ‘nominal plaintiff.’” (Marsh, et al., Marsh’s California Corporation Law (4th ed. 2004) §2.05[G], p. 2-51.)

Cross-defendants ProHealth demur by arguing that cross-complainant Olomi’s first and fourth causes of action assert shareholder derivative causes of action and Olomi has not adequately alleged demand and/or demand futility:

No action may be instituted or maintained in right of any domestic or foreign corporation by any holder of shares or of voting trust certificates of the corporation unless both of the following conditions exist:

…

(2) The plaintiff alleges in the complaint with particularity plaintiff's efforts to secure from the board such action as plaintiff desires, or the reasons for not making such effort, and alleges further that plaintiff has either informed the corporation or the board in writing of the ultimate facts of each cause of action against each defendant or delivered to the corporation or the board a true copy of the complaint which plaintiff proposes to file.

(Corp. Code, §800, subd. (b).)

As a general rule, “[m]anagement of a corporation, including decisions concerning the prosecution of actions, is vested in its board of directors. When the board refuses to enforce corporate claims, however, the shareholder derivative suit provides a limited exception to the rule that the corporation is the proper party plaintiff. In deference to the managerial role of directors and in order to curb potential abuse, the shareholder asserting a derivative claim must make a threshold showing that he or she made a presuit demand on the board to take the desired action. This demand requirement was recognized over 120 years ago by the Supreme Court (see Hawes v. [City of Oakland] (1881) 104 U.S. 450, 26 L.Ed. 827), and is codified in California (see Corp. Code, § 800, subd. (b)(2); hereafter, § 800(b)(2)). Under section 800(b)(2), a plaintiff must plead ‘with particularity’ the attempts that were made to secure board action before bringing suit, or, alternatively, the factual basis upon which the plaintiff believes that a demand on the board was unnecessary, i.e., that a demand would have been futile. Difficulties often arise in shareholder derivative suits in resolving whether the plaintiff has alleged sufficient facts supporting demand futility, thereby obviating the need for a prior demand on the board and the concomitant opportunity for the directors to decide whether to pursue litigation on the corporation’s behalf.” (Bader, supra, 179 Cal.App.4th at p. 782, 101 Cal.Rptr.3d 821.)

Because the role of managing the business of the corporation is vested in its board of directors, not its shareholders (Grosset v. Wenaas (2008) 42 Cal.4th 1100, 1108, 72 Cal.Rptr.3d 129, 175 P.3d 1184 (Grosset)), a shareholder seeking redress on behalf of the corporation for alleged mismanagement by corporate officers “ ‘must make an earnest, not a simulated effort, with the managing body of the corporation, to induce remedial action on their part, and this must be apparent to the court.’ ” (Bader, supra, 179 Cal.App.4th at p. 789, 101 Cal.Rptr.3d 821.) The presuit demand requirement provides “ ‘a limited exception to the usual rule that the proper party to bring a claim on behalf of a corporation is the corporation itself, acting through its directors or the majority of its shareholders. ...’ ” (Ibid.) It serves primarily “ ‘ “to protect the managerial freedom of those to whom the responsibility of running the business is delegated ....” ’ ” (id. at pp. 789-790, 101 Cal.Rptr.3d 821) and “to prevent the abuse of the derivative suit remedy.” (Id. at p. 790, 101 Cal.Rptr.3d 821.)

In accordance with this purpose, California law requires the plaintiff who files a shareholder derivative suit to “allege[ ] in the complaint with particularity plaintiff’s efforts to secure from the board such action as plaintiff desires, or the reasons for not making such effort, and allege further that plaintiff has either informed the corporation or the board in writing of the ultimate facts of each cause of action against each defendant or delivered to the corporation or the board a true copy of the complaint which plaintiff proposes to file.” (§ 800(b)(2).) Demand futility under section 800(b)(2) thus requires a plaintiff who alleges “reasons for not making such effort” to plead, with particularity, the circumstances excusing her from making a demand. (Ibid.)

(Apple Inc. v. Superior Court (2017) 18 Cal.App.5th 222, 231–233; see also Shields v. Singleton (1993) 15 Cal.App.4th 1611, 1622 [general, conclusory facts are insufficient to prove demand futility]; Oakland Raiders v. National Football League (2001) 93 Cal.App.4th 572, 587, 589 [“none of the cases cited by the Raiders support that demand futility can be shown by evidence of a structural bias in lieu of facts, specific to each director, from which the trier of fact could conclude that a particular director could or could not be expected to fairly evaluate the claims of the shareholder plaintiff”].)

…the law demands certain prerequisites to bringing a derivative action which have not been alleged or proven in this case, such as alleging “in the complaint with particularity[, the] plaintiff's efforts to secure from the board such action as plaintiff desires, or the reasons for not making such effort, and . . . further that plaintiff has either informed the corporation or the board in writing of the ultimate facts of each cause of action against each defendant or delivered to the corporation or the board a true copy of the complaint which plaintiff proposes to file.” (See Corp. Code, § 800, subd. (b)(2).) “No action may be instituted or maintained” unless there has been compliance with the statute.

(Nelson v. Anderson (1999) 72 Cal.App.4th 111, 127.)

In relevant part, Olomi alleges, “Making a demand against Prohealth would be futile as Cross-Defendant Marleen has already refused to respond to Olomi’s documents requests and has wrongly accused her of aiding and abetting Cross-Defendant Mohideen in the above alleged misappropriation. Furthermore, Marleen has already demonstrated he has no intention of stepping down as director of Prohealth Defendants or providing restitution to the business.” (Cross-Complaint, ¶37.)

Initially, cross-defendants ProHealth contend these allegations are lacking in particularity. Cross-defendants ProHealth also point out that there is no allegation that Olomi has either informed the corporation or the board in writing of the ultimate facts of each cause of action against each [cross] defendant or delivered to the corporation or the board a true copy of the [cross] complaint which [cross-complainant] proposes to file.

In opposition, Olomi points to other allegations of the cross-complaint. Namely, Olomi emphasizes the allegation that she and Marleen are both 50% shareholders and directors. (Cross-Complaint, ¶¶1 and 4.) Presumably, Olomi draws attention to this fact to argue that demand would be futile based on allegations that Olomi and Marleen comprise the entirety of the board of directors and Marleen is alleged of wrongdoing.

Even so, there is no allegation that Olomi delivered to ProHealth or the board a true copy of the cross-complaint proposed to be filed or informed the board in writing of the ultimate facts of each cause of action against each defendant. In opposition, Olomi appears to suggest that such requirement has been met based upon her service of the complaint in the Corporate Document Action (attached as Exhibit A to the Cross-Complaint) on or about 10 January 2022. The complaint in the Corporate Document Action, which Olomi incorporates by reference into her cross-complaint, includes allegations that “Marleen has mismanaged the ProHealth Defendants and has misappropriated corporate profits and made illegal distributions to himself and is now trying to conceal his wrongdoing from [Olomi]” and “Marleen has forged [Olomi’s] signature on corporate records for purposes of enriching himself at the expense of ProHealth Defendants.” Neither party cited any relevant legal authority and the court is aware of none, but it is this court’s opinion that Olomi’s attachment of the complaint in the Corporate Document Action does not sufficiently allege compliance with Corporations Code section 800, subdivision (b)(2), i.e., that cross-complainant has either informed the corporation or the board in writing of the ultimate facts of each cause of action against each cross-defendant or delivered to the corporation or the board a true copy of the cross-complaint which Cross-Complainant proposes to file.

[The court is also not persuaded by Olomi’s assertion that because her attempt to file the cross-complaint on or about 20 July 2022 was rejected by the court clerk, ProHealth nevertheless received a copy of the cross-complaint in advance of the actual filing of the cross-complaint on 7 September 2022. Corporations Code section 800, subdivision (b)(2) requires Olomi to make such an allegation in her cross-complaint and she has not done so.]

Accordingly, cross-defendants ProHealth’s demurrer to the first and fourth causes of action in cross-complainant Olomi’s cross-complaint on the ground that the pleading does not state facts sufficient to constitute a shareholder derivative cause of action [Code Civ. Proc., §430.10, subd. (e)] is SUSTAINED with 10 days’ leave to amend.

D. Cross-defendants ProHealth’s demurrer to the first cause of action [breach of fiduciary duty] and fourth cause of action [unjust enrichment] in cross-complainant Olomi’s cross-complaint on the ground that the first and fourth causes of action are time-barred is OVERRULED.

As a general matter, a court may sustain a demurrer on the ground of failure to state sufficient facts if “the complaint shows on its face the statute [of limitations] bars the action.” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.) A demurrer is not sustainable on statute, of limitations grounds if there is only a possibility that the cause of action is time-barred; the defense must be clearly and affirmatively apparent from the allegations of the pleading. (Id., at pp. 1315-1316.) When evaluating whether a claim is time-barred, the court must determine: (1) which statute of limitations applies, and (2) when the claim accrued. (Id., at p. 1316.)

In demurring, cross-defendants ProHealth contend a three year statute of limitation applies to claims for breach of fiduciary duty. As ProHealth acknowledges, Olomi’s breach of fiduciary duty is premised on multiple acts of misconduct. (Cross-Complaint, ¶¶40 – 43.) Among them, Olomi alleges Marleen breached his fiduciary duty “[b]y using Prohealth funds for personal expenses.” (Cross-Complaint, ¶43.) In earlier allegations of the cross-complaint, Olomi alleges, “Marleen used Prohealth funds for one of his weddings;” Marleen “would make personal loans from Prohealth funds to personal friends and family;” and Marleen “embezzled an additional $62,213 by wiring money to an account in Botswana that … was used to purchase a Mercedes Benz vehicle for … Marleen’s cousin.” (Cross-Complaint, ¶¶27 – 29.) There are no dates associated with this alleged misconduct.

While cross-defendants ProHealth focus instead on allegations for which dates may be ascertained, cross-defendants ProHealth ignore the above allegations which are [perhaps intentionally] vague with regard to timing. As noted above, the statute of limitations defense must appear “clearly and affirmatively” from the face of the pleading. A demurrer does not lie to a portion of a cause of action. (See Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778—“[A] defendant cannot demur generally to part of a cause of action;” see also PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682—“A demurrer does not lie to a portion of a cause of action.”) Since cross-defendants ProHealth cannot completely dispose of the entire cause of action, their demurrer to the first and fourth causes of action fails.

Accordingly, cross-defendants ProHealth’s demurrer to the first and fourth causes of action in cross-complainant Olomi’s cross-complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for breach of fiduciary duty and unjust enrichment, i.e., they are barred by the applicable statute of limitations, is OVERRULED.

E. Cross-defendants ProHealth’s demurrer to the first cause of action [breach of fiduciary duty] and fourth cause of action [unjust enrichment] in cross-complainant Olomi’s cross-complaint on the ground that they lack the requisite specificity is OVERRULED.

As a separate basis for demurrer to the first and fourth causes of action, cross-defendants ProHealth demur by arguing that these two causes of action are grounded in fraud. As a general rule, each element in a fraud cause of action must be pleaded with specificity. (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 645; Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.) The court in Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 stated that “this particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ A plaintiff’s burden in asserting a claim against a corporate employer is even greater. In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.”

Though the particularity requirement generally mandates that a plaintiff plead facts establishing the aforementioned items, it is much more difficult to apply this rule in a case of non-disclosure because, as one court explained, “[h]ow does one show ‘how’ and ‘by what means’ something didn’t happen, or ‘when’ it never happened, or ‘where’ it never happened?” (Alfaro v. Community Housing Imp. System & Planning Ass’n., Inc. (2009) 171 Cal.App.4th 1356, 1384 (Alfaro).) One of the purposes of the specificity requirement is to provide “notice to the defendant, to furnish the defendant with certain definite charged which can be intelligently met.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216, internal quotations omitted.)

However, when “it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy, even under strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party ….” (Id., at p. 217.) Such is the circumstance here, where Olomi has alleged that in 2016, Marleen and Mohideen began reducing her role in ProHealth and eliminated her access to information about ProHealth’s finances and once Mohideen and Marleen forced Olomi out of ProHealth, they began defrauding ProHealth of millions of dollars. At least some of the alleged misconduct sounds in fraudulent concealment making the rhetorical question in Alfaro apt.

Accordingly, cross-defendants ProHealth’s demurrer to the first and fourth causes of action in cross-complainant Olomi’s cross-complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for breach of fiduciary duty and unjust enrichment, i.e., they are grounded in fraud but not alleged with the requisite specificity, is OVERRULED.

F. Cross-defendants’ demurrer to the fourth cause of action [unjust enrichment] in cross-complainant Olomi’s cross-complaint is SUSTAINED.

In Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793, the court wrote, “[T]here is no cause of action in California for unjust enrichment. “The phrase ‘Unjust Enrichment’ does not describe a theory of recovery, but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so.” [Citations.] Unjust enrichment is “‘a general principle, underlying various legal doctrines and remedies,’ ” rather than a remedy itself. [Citation.] It is synonymous with restitution.”

In McBride v. Houghton (2004) 123 Cal.App.4th 379 (McBride), the court wrote, “Unjust enrichment is not a cause of action, however, or even a remedy, but rather a general principle, underlying various legal doctrines and remedies. It is synonymous with restitution. Unjust enrichment has also been characterized as describing the result of a failure to make restitution. [¶] In reviewing a judgment of dismissal following the sustaining of a general demurrer, we ignore erroneous or confusing labels if the complaint pleads facts which would entitle the plaintiff to relief. Thus, we must look to the actual gravamen of [plaintiff’s] complaint to determine what cause of action, if any, he stated, or could have stated if given leave to amend. In accordance with this principle, we construe [plaintiff’s] purported cause of action for unjust enrichment as an attempt to plead a cause of action giving rise to a right to restitution.”

There are several potential bases for a cause of action seeking restitution. For example, restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason. [Citations.] Alternatively, restitution may be awarded where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or similar conduct. In such cases, the plaintiff may choose not to sue in tort, but instead to seek restitution on a quasi-contract theory (an election referred to at common law as “waiving the tort and suing in assumpsit”). [Citation.] In such cases, where appropriate, the law will imply a contract (or rather, a quasi-contract), without regard to the parties’ intent, in order to avoid unjust enrichment. [Citation.]

(McBride, supra, 123 Cal.App.4th at pp. 387 – 388; internal citations and punctuation omitted.)

Significantly, “there is no particular form of pleading necessary to invoke the doctrine of restitution.” (Dinosaur Development, Inc. v. White (1989) 216 Cal.App.3d 1310, 1315 [internal quotation marks omitted].) As the McBride court instructs, the court should overlook the labels given by the plaintiff and instead focus on whether there is a basis for restitution.

To the extent Olomi can state a cause of action for breach of fiduciary duty, there is a factual basis to support a claim for unjust enrichment. However, in light of the deficiency discussed above, cross-defendants ProHealth’s demurrer to the fourth cause of action in cross-complainant Olomi’s cross-complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for breach of fiduciary duty is SUSTAINED with 10 days’ leave to amend.

G. Cross-defendants’ demurrer to the second cause of action [demand for inspection] in cross-complainant Olomi’s cross-complaint is MOOT.

Cross-defendants ProHealth demur to cross-complainant Olomi’s second cause of action for demand for inspection. In opposition, cross-complainant Olomi expresses her willingness to dismiss the second cause of action of her cross-complaint in light of her already existing Corporate Document Action.

However, as of the hearing date of this demurrer, no formal request for dismissal has been filed with the court by cross-complainant Olomi. To the extent a formal request for dismissal has been filed, cross-defendants ProHealth’s demurrer to the second cause of action in cross-complainant Olomi’s cross-complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for demand for inspection is deemed MOOT. To the extent a formal request for dismissal has not been filed, cross-defendants ProHealth’s demurrer to the second cause of action in cross-complainant Olomi’s cross-complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for demand for inspection is SUSTAINED WITHOUT LEAVE TO AMEND.

IV. Tentative Ruling.

The tentative ruling was duly posted.

V. Case Management.

The Case Management Conference currently set for 07 February 2023 shall REMAIN AS SET. The parties should commence discovery and perhaps discussions about alternate dispute resolution.

As noted in footnote 1 above, this Court is aware of the notice of related cases bearing case numbers 22CV393216 and 18FL000677. This Court takes judicial notice of Santa Clara County Superior Court case number 18FL000677, petition for dissolution of marriage between these parties. This Court also notes that Malalai Olomi a.k.a. Malalai Mohideen has objected to notice of related cases. See formal objection submitted by David L. Luca, Esq.

This Court is content to let the Family Law matter run its course but is concerned about duplication of effort and possible conflict with orders made in the Family Law case. Counsel should feel free to raise any potential issues of conflicting court decisions.

VI. Order.

Cross-defendants ProHealth’s demurrer to the first and fourth causes of action in cross-complainant Olomi’s cross-complaint on the ground that the pleading does not state facts sufficient to constitute a shareholder derivative cause of action [Code Civ. Proc., §430.10, subd. (e)] is SUSTAINED with 10 days’ leave to amend.

Cross-defendants ProHealth’s demurrer to the fourth cause of action in cross-complainant Olomi’s cross-complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for breach of fiduciary duty is SUSTAINED with 10 days’ leave to amend.

To the extent a formal request for dismissal has been filed, cross-defendants ProHealth’s demurrer to the second cause of action in cross-complainant Olomi’s cross-complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for demand for inspection is deemed MOOT. To the extent a formal request for dismissal has not been filed, cross-defendants ProHealth’s demurrer to the second cause of action in cross-complainant Olomi’s cross-complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for demand for inspection is SUSTAINED WITHOUT LEAVE TO AMEND.

Cross-defendants ProHealth’s demurrer is otherwise OVERRULED.

|___________________________ |______________________________________________ |

|DATED: |HON. SOCRATES PETER MANOUKIAN |

| |Judge of the Superior Court |

| |County of Santa Clara |

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[1] “It is black-letter law a demurrer tests the pleading alone. (5 Witkin, California Procedure (3d ed. 1985) Pleading, § 895, p. 334.) When any ground for objection to a complaint or cross-complaint does not appear on the face of the pleading, the objection may be taken by answer. (Code of Civil Procedure, § 430.30 (b).) Defendants cannot set forth allegations of fact in their demurrers which, if true, would defeat plaintiff's complaint. (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 422-423.) (Internal quotations modified, modest editing used.)

[2] While the allegations of the complaint must be accepted as generally true, this rules does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits t0 the complaint or by matters of which judicial notice may be taken. (Vance v. Villa Park Mobile-home Estates (1995) 36 Cal.App.4th 698, 709.) Allegations of a complaint must be sufficiently clear to appraise the defendant of the issues which he (or she) is to meet and defend. (Butler v. Sequeira (1950) 100 Cal.App.2d 143.)

[3] Compare with Coyme v. Krempels (1950) 36 Cal.2d 257, a summary judgment motion, and which stands for the proposition that allegations in the complaint alone cannot be used to defeat a summary judgment motion.

[4] This Court takes judicial notice of the transcript of the 21 September 22 default prove up hearing in Santa Clara County Superior Court case number 17CV34350.

[5] This Court takes judicial notice of Santa Clara County Superior Court case number 18FL000677, petition for dissolution of marriage between these parties. See Part V, Case Management, below.

[6] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).

[7] Cross-defendants ProHealth’s demurrer predates the filing of Olomi’s cross-complaint, presumably because the court clerk, as note above, rejected Olomi’s initial filing on or about 20 July 2022.

[8] See page 4, lines 7 – 10 of the Corrected ProHealth’s Notice of Demurrer and Demurrer to Defendant Malailai Olomi’s Cross-Complaint, etc.

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