Case Name: Ternian, et al. v. Ternian, et al.
Case No.: 18CV328105

Plaintiffs/cross-defendants Freidrik Ternian (“Freidrik”) and Souzi Ternian (“Souzi”), trustees of the Freidrik and Souzi Ternian Family Trust, dated February 17, 2011 (collectively, “Plaintiffs”) move to strike the cross-complaint filed by Arseen Auto Body, Inc. (“Arseen”).

I. Factual and Procedural Background

This is an action for partition of a parcel of land in San Jose commonly known as 1655 Little Orchard Street and 271 Barnard Avenue (the “Subject Property”). Plaintiff Freidrik Ternian and defendant Ninos Ternian (“Ninos”) are brothers and co-owners of Arseen, a San Jose auto body shop. The brothers are also- along with their wives- equal co-owners of the Subject Property. On May 10, 2018, Plaintiffs filed a complaint for partition of the Subject Property, among other things, against Ninos and his wife, Zhaklin Ternian (“Zhaklin”).

On August 10, 2018, Ninos and Zhaklin filed an answer to the complaint and Ninos filed a cross-complaint for declaratory relief naming Plaintiffs and Arseen as cross-defendants. The entirety of the cross-complaint was based on the premise that Ninos believed that Arseen might claim an interest in the Subject Property. (Plaintiffs’ Request for Judicial Notice in Support of Motion to Strike (“Plaintiffs’ RJN), Exhibit B.) On October 15, 2018, Plaintiffs filed a demurrer to the cross-complaint on the grounds that Ninos had not—and could not— state a cause of action for declaratory relief because he lacked standing to pursue such a claim on behalf of a third party, Arseen. Plaintiffs also maintained that the declaratory relief cause of action was improper because it sought relief that was entirely duplicative of Plaintiffs’ complaint for partition. Ninos filed an opposition to the demurrer.

The demurrer to the cross-complaint was set to be heard on January 10, 2019. On the afternoon of January 9, the Court issued a tentative ruling sustaining the demurrer without leave to amend, thereby dismissing the cross-complaint. (Plaintiffs’ RJN, Exhibit C.) That same day (January 9), Arseen filed a cross-complaint of its own against Plaintiffs asserting a variety of claims, including breach of contract and breach of fiduciary duty. (Id., Exhibit D.) The following day (January 10), Ninos did not contest the Court’s tentative ruling on Plaintiffs’ demurrer to his cross-complaint and therefore the Court adopted the tentative as its final ruling. The order sustaining the demurrer was filed approximately a week later on January 18, 2019. (Id., Exhibit E.) Additionally, on January 10th, Arseen filed an answer to Nino’s cross-complaint.

On February 13, 2019, after their request to Arseen to withdraw its cross-complaint, which they believed was improperly filed, was unsuccessful, Plaintiffs filed the instant motion to strike Arseen’s pleading in its entirety. Arseen opposes the motion.

II. Requests for Judicial Notice

Both parties submit requests for judicial notice with their papers. First, Plaintiffs request that the Court take judicial notice of the complaint (Exhibit A), Ninos’ cross-complaint against Plaintiffs and Arseen (Exhibit B), the Court’s tentative ruling on Plaintiffs’ demurrer to Ninos’ cross-complaint (Exhibit C), Arseen’s cross-complaint (Exhibit D) and the Court’s order sustaining Plaintiffs’ demurrer to Ninos’ cross-complaint (Exhibit E). As these items are all court records, they are proper subjects of judicial notice pursuant to Evidence Code section 452, subdivision (d). Accordingly, Plaintiffs’ request for judicial notice is GRANTED.

In its own request, Arseen submits a complaint filed by Freidrik against Ninos and Arseen on December 13, 2017 for dissolution of Arseen (Case No. 17CV320438) (Exhibit 1), Arseen’s Notice of Related Case, filed October 16, 2018 (Exhibit 2), the Court’s tentative ruling, dated January 21, 2019, denying Arseen’s motion to consolidate Case No. 17CV320438 with the instant action and reassigning Plaintiffs’ action to Department 8 for all pretrial purposes (Exhibit 3), and Ninos and Zhaklin’s answer to the partition action (Exhibit 4). As with Plaintiffs’ request, all of the foregoing items are court records and therefore proper subjects of judicial notice. (Evid. Code, § 452, subd. (d).) Consequently, Arseen’s request for judicial notice is GRANTED.

III. Plaintiff’s Motion to Strike

With the instant motion, Plaintiffs maintain that Arseen’s cross-complaint is improper because it is not permitted to file a cross-complaint in an action to which it is not a party. Plaintiffs assert that when Arseen filed its cross-complaint in January 2019, Ninos’ cross-complaint naming it as a party (a cross-defendant) had already been dismissed, thereby eliminating its ability to properly file a cross-complaint.

As a general matter, a cross-complaint may be filed by the original defendant or by anyone against whom a cross-complaint has been filed. (Code Civ. Proc., § 428.10, subd. (a).) Arseen’s entry into this action as a party was via the cross-complaint for declaratory relief filed by Ninos against it and Freidrik and Souzi on August 10, 2018. Once named as a cross-defendant in that action, Arseen would have been able to file its own cross-complaint as long as it was a party to the action. Arseen filed the cross-complaint that is the subject of this motion to strike on January 9, 2019. On January 9, Arseen certainly was a party (as a cross-defendant) in this case, and within its rights to file this pleading.

Granted, Ninos’ cross-complaint naming Arseen as a cross-defendant was dismissed by the Court after their demurrer to it was sustained without leave to amend. But that dismissal occurred on January 10, which was after Arseen filed its cross-complaint. That the tentative ruling concerning Ninos’ cross-complaint issued on January 9 did not necessarily mean Arseen would be dismissed and no longer be a party.

For these reasons, Plaintiffs’ motion to strike is DENIED.