Case Number: BC535709 Hearing Date: May 09, 2016 Dept: 46

Case Number: BC535709
ALBERTO NINO JIMENEZ ET AL VS AHRON ZILBERSTEIN
Filing Date: 02/07/2014
Case Type: Fraud (no contract) (General Jurisdiction)

5/9/2016
Demurrer to First Amended Complaint

NOTICE OF TENTATIVE RULING AND PROCEDURE FOR SUBMISSION WITHOUT HEARING

This tentative ruling is posted at 2:03 p.m. on 5/5/2016.

If there are no parties who have appeared in the action other than Plaintiff/Petitioner, then Plaintiff/Petitioner may submit to the tentative without appearance by telephonic notification to the clerk of Dept. 46 between 8:00 a.m. and 4:00 p.m. on a date prior to the hearing or morning prior to the hearing by calling (213) 633-0646 or by sending an e-mail to SMCDEPT46@lacourt.org copied to all parties indicating all parties submit to the tentative and the identity of the person or firm giving notice, and the court will issue the tentative ruling as the final ruling. If the other parties have appeared in the action, then the parties must first confer and all agree that the tentative ruling will be the final ruling on the matter. If the parties to the matter before the court all agree, the moving parties, or if none a representative of the parties, may call the clerk or send an e-mail (as referenced above) and submit without an appearance, and the court will issue the tentative ruling as the final ruling. If an order is required, it should be lodged directly in Dept. 46 with a copy to adverse/other parties, if any.

TENTATIVE RULING

Cross-Defendants’ Alberto Nino Jimenez and Bernardino Nino Jimenez unopposed demurrer to the 8th Cause of Action in the First Amended Cross-Complaint is SUSTAINED WTHOUT LEAVE TO AMEND pursuant to CCP §430.10(e)&(f). The 8th cause of action is therefore dismissed.

DISCUSSION

The demurrer challenges the 8th Cause of Action in the First Amended Cross-Complaint (“FACC”) filed on 11/30/15. The 8th cause of action is purportedly for “Common Counts.”

Cross-Complainant Zilberstein is the assignee of various claims held by Christian Spannhoff, who is not a party to the cross-complaint.

Cross-Complainant has alleged, in pertinent part, as follows:

“30. ZILBERSTEIN is also the assignee of the other assignable claims asserted by Christian Spannhoff (‘Spannhoff’) in Case No. EC064833, namely common counts and conversion pursuant to which Cross-Defendants became indebted to Cross-Defendants to Spannhoff on or after April 10, 2010 in a total sum of at least $110,000 for an account stated in writing between Cross-Defendants and Spannhoff in which it was agreed that Cross-Defendants were indebted to Spannhoff for money lent by Spannhoff to Cross-Defendants at Cross-Defendants’ request and for construction materials, goods and equipment taken by and sold and delivered to Cross-Defendants, for which Cross-Defendants promised to pay.
31. Cross-Defendants failed and refused to pay Spannhoff and continue to fail and refuse to pay ZILBERSTEIN the amounts due on such claims, which sums are in excess of the jurisdictional minimum of this court and which ZILBERSTEIN will prove at trial…”

Whether or not the gravamen of these claims is for “conversion” or “common counts,” these claims are barred by the applicable statute of limitations which appears from the fact of the pleading and from matters of which the court may take judicial notice.

“The defense of statute of limitations may be asserted by general demurrer if the complaint shows on its face that the statute bars the action.” (1 Schwing, Cal. Affirmative Defenses (Thomson West 2007) Statute of Limitations, §25:78, p. 1609, fns. omitted; see Bennett v. Hibernia Bank (1956) 47 Cal. 2d 540, 550).” E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal. App. 4th 1308, 1315.

There are no facts pled that would indicate that Case No. EC064833 resulted in a judgment; accordingly, these “assignable claims” would appear to be statute of limitations (“SOL”) barred, since they accrued on/after 4/10/10.

The SOL for a conversion cause of action (“COA”) is three years. CCP §338. The SOL for common counts is four years. CCP §337(2).

These claims would not relate back to the 2/7/14 filing of the complaint here, as they are not compulsory. The standstill agreement does not save these claims that are unrelated to the claims in the Complaint since more than four years had expired after each of the causes of action accrued before the assignor Spannhoff filed the Complaint in case EC064833 on 12/8/2010 and the standstill agreement is inapplicable to the common counts cause of action that accrued on or about 12/28/2010, after the filing of the EC064833. In any event the cross-complaint was only filed on 6/

“A cross-complaint that is subject-matter related to the plaintiff’s complaint (i.e., a compulsory cross-complaint) ‘relates back’ to when the action was commenced for statute of limitations purposes. [Trindade v. Sup.Ct. (Jacolick) (1973) 29 C.A.3d 857, 859-860; Sidney v. Sup.Ct. (Kinoshita) (1988) 198 C.A.3d 710, 714 (citing text)].” Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2015) ¶ 6:592 (emphasis theirs).