Case Number: VC063432    Hearing Date: July 29, 2014    Dept: SEC

621 VERMONT INVESTMENT FUND, LLC v. SHERIF OSMAN, INC.
CASE NO.: VC063432
HEARING: 07/29/14

#10
TENTATIVE ORDER

Cross-defendants 612 VERMONT INVESTMENT FUND, LLC and ABRAHIM KASHEFI’s demurrer to the Second Amended Cross-Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. C.C.P. § 430.10(e), (f).

Plaintiff 612 VERMONT INVESTMENT FUND, LLC brought this action against defendant SHERIF OSMAN, INC. for breach of guaranty and declaratory relief, seeking payment on a $1.7 million loan made to third party Osman Elbiali and allegedly guaranteed by his corporation and cross-complainant Sherif Osman, Inc. SHERIF OSMAN, INC. cross-complained.

On May 22, 2014, this Court issued an order sustaining with leave to amend the demurrer to the First Amended Cross-Complaint. As it noted therein, the first amended cross-complaint alleged a sole cause of action for declaratory relief. It was found to be uncertain. Like in the prior iteration of the pleading, cross-complainant lists several “controversies” between the parties. See Attachment p. 3 (asserting alleged breach of implied covenant of good faith and fair dealing (¶2a), “disruption” of the Bankruptcy reorganization (¶2b), failure to account and/or credit payments (¶2c), making fraudulent statements and intimidating conduct (¶2d) and its lack of authority to foreclose on the subject real property (¶2e).

The allegations in the subject pleading are exactly the same, with the sole exception being that the written agreement is attached.

To state a cause of action for declaratory relief, a party is required to allege a clear statement as to the present rights and duties for which a judicial determination is sought. See also C.C.P. § 1060. It appears cross-complainant is seeking relief for past wrongs, rather than a judicial determination of an existing controversy. See Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592. Individual causes of action should be pled as such.

Cross-complainant made no effort to amend the substance of the pleading to comply with the Court’s prior direction. It did not file an opposition to the subject demurrer, so it does not appear that it intends to do so. Accordingly, the demurrer is sustained without leave to amend.