S&J Enterprises Inc. v. Eshagh Ezra, M.D., Inc

(Van Nuys Courthouse West: Dept. 107) August 24, 2026 DEPARTMENT 107 LAW AND MOTION RULINGS

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES NORTHWEST DISTRICT | 4766 Park Granada LLC, et al., Plaintiffs, v. Phoenix Keller LLC, et al. Defendant. | Case Number Department 24VECV05840 107 | COURT'S [TENTATIVE] ORDER RE: Motion to be Relieved as Counsel | [THE FOLLOWING IS A TENTATIVE RULING IN THE ABOVE CASE]: Deny The proposed order does not set forth the hearing and trial date as set when Counsel filed the Motion to be Relieved as Counsel. There is also no POS showing the original motion and accompanying documents were served to Defendant. Dated: August 24, 2026 _______- ___________________________ Hon. Eric Harmon Judge of the Superior Court

Case Number: 25VECV01751 Hearing Date: August 24, 2026 Dept: 107 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES NORTHWEST DISTRICT | S&J Enterprises Inc. Plaintiff, v. Eshagh Ezra, M.D., Inc Defendant. | Case Number Department 25VECV01751 107 | COURT'S [TENTATIVE] ORDER RE: Demurrer with Motion to Strike | [THE FOLLOWING IS A TENTATIVE RULING IN THE ABOVE CASE]: (1) Sustain the demurrer with leave to amend; (2) Deny the motion to strike.

I. BACKGROUND Plaintiff S&J Enterprises Inc.'s ("Plaintiff") successor in interest, Care Bio Clinical Corp., performed laboratory services for Defendants Eshagh Ezra, M.D., Inc and Does 1 to 20. (First Amended Complaint ["FAC"] P.P. 11-13.) Defendants failed to pay for the services. (FAC P. 18.)

On March 28, 2025, Plaintiff filed a complaint against Defendants Eshagh Ezra and Does 1 to 50, alleging causes of action for: (1) breach of contract; (2) breach of covenant of good faith and fair dealing; (3) quantum meruit; (4) account stated; (5) indebitatus assumptsit; (6) open book account; and (7) fraud.

On March 17, 2026, Plaintiff filed a first amended complaint against Defendants Eshagh Ezra, M.D., Inc and Does 1 to 20, alleging causes of action for: (1) breach of contract; and (2) accounting.

On April 16, 2026, Defendant Eshagh Ezra, M.D., Inc ("Defendant") filed a demurrer with motion to strike. On August 17, 2026, Plaintiff filed an opposition. On August 17, 2026, Defendant filed replies.

II. TIMELINESS " A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint." (Code Civ. Proc., Sec.¿430.40, subd. (a).)¿ Per Code of Civil Procedure section¿435, subdivision (b)(1), a motion to strike should also be filed within 30 days after service of the complaint. (See Code Civ. Proc., Sec. 412.20, subd. (a)(3).) Per Code of Civil Procedure section¿1005, subdivision (b), moving papers must be filed at least 16 court days before they are set for hearing, oppositions must be filed at least nine court days before the set hearing, and replies must be filed at least five court days before the set hearing.

Electronic service extends the deadline by two court days. (Code Civ. Proc., Sec. 1010.6, subd. (a)(3)(B).) Plaintiff served Defendant with the first amended complaint by electronic mail on March 17, 2026. (FAC pdf p. 5.) Defendant filed the demurrer with motion to strike less than thirty days, plus two court days, after March 17, 2026. Thus, the demurrer with motion to strike is timely under Code of Civil Procedure sections 430.40 and 435. The demurrer with motion to strike and replies were timely filed under Code of Civil Procedure section 1005.

Plaintiff filed the opposition only five court days before the hearing. Defendant requests the court disregard the opposition because it is untimely. (Demurrer Reply p. 2.) "A trial court has broad discretion to accept or reject late-filed papers." (Jack v. Ring LLC (2023) 91 Cal.App.5th 1186, 1210, brackets removed.) Plaintiff filed the opposition the same day Defendant's replies were due. The court will not consider the untimely opposition.

III. MEET AND CONFER California Code of Civil Procedure section¿430.41, subdivision (a) requires parties to "meet and confer in person, by telephone, or by video conference" before the filing of a demurrer to attempt to informally resolve the objections raised in the demurrer.¿The demurring party is required to file and serve with the demurrer a declaration either confirming that parties were unable to resolve the issues raised by the demurrer despite having met and conferred or that the opposing party failed to meet and confer with the demurring party in good faith. (Code Civ.

Proc. Sec.¿430.41, subd. (a)(3).) ¿ California Code of Civil Procedure section 435.5, subdivision (a) also requires parties to meet and confer before filing a motion to strike.¿¿ Defendant's counsel submits a declaration stating they met and conferred with Plaintiff's counsel by telephone, but the parties were unable to reach a resolution. (Ezra Declaration P.P. 5-6.) Defendant satisfied the meet and confer requirements. ¿¿

IV. DEMURRER a. Legal Standard "A demurrer tests the pleading alone, and not the evidence or the facts alleged." (E-Fab, Inc. v. Accountants, Inc. Servs. (" E-Fab ") (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint's properly pleaded or implied factual allegations. (Id.) The court also considers "judicially noticed matters." (Id.) A complaint must contain "[a]¿statement¿of the¿facts¿constituting the cause of action, in ordinary and concise language." (Code Civ. Proc., Sec.¿425.10, subd. (a)(1).) A "complaint ordinarily is sufficient if it alleges ultimate rather than evidentiary facts." (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) ¿

¿ A party may demur to a complaint or cross-complaint because it "does not state facts sufficient to constitute a cause of action." (Code Civ. Proc., Sec. 430.10, subd. (e).) ¿ A party may also demur to "[a]n action founded upon a contract, [if] it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct." (Code Civ. Proc., Sec. 430.10, subd. (g).) Finally, A party may demur because the complaint or cross-complaint is uncertain. (Code Civ. Proc., Sec. 430.10, subd. (f).) "'[U]ncertain' includes ambiguous and unintelligible." (Code Civ. Proc., Sec. 430.10, subd. (f).)

b.

Discussion

Standing: Defendant argues Plaintiff fails to allege facts showing it is Care Bio Clinical Corp's successor in interest. (Memorandum p. 2.) Defendant cites two cases: (1) " Cockerell v. Title Ins. & Trust Co. (1953) 42 Cal.2d 284, 292"; and (2) " Gantman v. United Pacific Ins. Co. (1971) 17 Cal.App.3d 449, 454", and argues Plaintiff's conclusory allegations it is Care Bio Clinical Corp's successor in interest is insufficient. (Memorandum pp. 4-5.) The issue in Cockerell was whether the plaintiffs in that matter had proven a valid assignment of the note and third trust deed. (Cockerell v.

Title Ins. & Trust Co. supra, 42 Cal.2d at p. 292.) The court cannot locate " Gantman v. United Pacific Ins. Co. (1971) 17 Cal.App.3d 449, 454." The court located Gantman v. United Pacific Ins. Co. (1991) 232 Cal.App.3d 1560, but that case does not deal with an assignment. Plaintiff alleges it is Care Bio Clinical Corp.'s successor in interest. (FAC P. 11.) The court is not persuaded by Defendant's argument Plaintiff is required to allege more facts. The demurrer on this ground is overruled.

Laches: Defendant argues the complaint is barred by the doctrine of laches because Plaintiff alleges the last service was provided on October 8, 2021, and the transactions occurred as far back as 2005 and Defendant has been prejudiced by Plaintiff's delay, "including but not limited to the loss of evidence, the fading of witness memories, and the inability to reconstruct records pertaining to transactions . . ." (Memorandum p. 5.) "The defense of laches may be raised by demurrer where the facts constituting laches are apparent on the face of the complaint." (Neet v. Holmes (1944) 25 Cal.2d 447, 460.) "The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay." (Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 359, fns. omitted.)

Plaintiff filed the complaint on March 28, 2025. Plaintiff alleges the last service provided to Defendant was on October 8, 2021. (FAC P. 15.) The court cannot conclude a delay of approximately three and a half years is unreasonable. Further, the loss of evidence, fading witness memories, and inability to reconstruct records are not issues apparent on the face of the first amended complaint. The demurrer on this ground is overruled.

Breach of Contract: A party may demur to "[a]n action founded upon a contract, [if] it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct." (Code Civ. Proc., Sec. 430.10, subd. (g).) The court cannot ascertain whether the alleged contract was written, oral, or implied by conduct. The demurrer on this ground is sustained. Defendant's remaining arguments as to the breach of contract cause of action, including that it is barred by the statute of limitations and the statute of frauds and is uncertain, are based upon Defendant's argument that Plaintiff does not allege the contract was written. (Memorandum pp. 5-7.) Plaintiff does not allege whether the contract was written, oral, or implied, and the court sustains the demurrer on that basis. The court need not consider the remaining arguments.

Accounting: Cause of Action: Defendant argues Plaintiff fails to state a cause of action for accounting because it is duplicative of the breach of contract claim. (Memorandum p. 7.) Defendant also argues Plaintiff alleges a specific outstanding balance, and "[b]ecause this amount is either certain or can be made certain by calculation, the accounting claim fails as a matter of law." (Memorandum p. 7.) There is conflicting authority on whether a court may sustain a demurrer because the causes of action are duplicative. (See Palm Springs Villas II Homeowners Assn., Inc. v.

Parth (2016) 248 Cal.App.4th 268, 290 ["Regardless, as [the party] argues, the cause of action for breach of governing documents appears to be duplicative of the cause of action for breach of fiduciary duty. This court has recognized this as a basis for sustaining a demurrer."]; R.L. v. Merced City School Dist. (2025) 114 Cal.App.5th 89, 119 ["Redundancy. . . is not enumerated as one of the statutory grounds on which a demurrer may be sustained."]) The court concludes R.L. Merced City School Dist., supra, 114 Cal.App.5th at p. 119 is the more persuasive authority and declines to sustain the demurrer to the second cause of action because it is duplicative.

"A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting." (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.) "An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation." (Id.) Plaintiff alleges both that "[a]t the time of the last service defendants owe Plaintiff $97,592.97" and that "Defendants owe Plaintiff at least $97,592.97 in principle for the services performed for Defendants[.]" (FAC P.P. 15, 20.)

These allegations are incorporated into the accounting cause of action. (FAC P. 21.) Plaintiff alleges both that Defendant owes Plaintiff a sum certain, $97,592.97, and that Defendant owes Plaintiff "at least $97,592.97[.]" (FAC P.P. 15, 20.) The court will sustain the demurrer as to this cause of action to clarify this inconsistency. The demurrer on this ground is sustained.

Statute of Limitations: "In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred." (E-Fab, supra, 153 Cal.App.4th at pp. 1315-1316.) Plaintiff alleges "Defendants, by words or conduct, agreed that Defendants would pay for the full value of the medical laboratory services Defendants received from Plaintiff's predecessor-in-interest." (FAC P. 22.)

Code of Civil Procedure section 337, subdivision (b) states: Within four years: [P.] . . . [P.] (b) An action to recover (1) upon a book account whether consisting of one or more entries; (2) upon an account stated based upon an account in writing, but the acknowledgment of the account stated need not be in writing; (3) a balance due upon a mutual, open and current account, the items of which are in writing; provided, however, that if an account stated is based upon an account of one item, the time shall begin to run from the date of the item, and if an account stated is based upon an account of more than one item, the time shall begin to run from the date of the last item.

It is unclear, based on the allegation that Defendant "by words or conduct, agreed . . ." whether this cause of action is based on writing. (FAC P. 22.) Plaintiff alleges the last service provided was on October 8, 2021. (FAC P. 15.) Plaintiff filed the complaint in March 2025. The cause of action is not clearly and affirmatively barred by the statute of limitations. The demurrer on this ground is overruled.

V. MOTION TO STRIKE a.

Legal Standard

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., Sec. 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., Sec. 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., Sec. 437, subd. (a).)

b.

Discussion

Defendant moves to strike Plaintiff's request for attorneys' fees because Plaintiff alleges no contractual or statutory basis entitling Plaintiff to an attorneys' fees award against Defendant. (MTS p. 4.) "There is no requirement that a party plead that it is seeking attorney fees, and there is no requirement that the ground for a fee award be specified in the pleadings." (Yassin v. Solis (2010) 184 Cal.App.4th 524, 533.) The court is not required to strike a request for attorneys' fees "before [the plaintiff] has had a full opportunity to determine, through discovery, whether a basis for recovery exists." (Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1699.) The motion to strike is denied.

VI. LEAVE TO AMEND "Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, 'leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.'" (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The court finds there is a reasonable possibility Plaintiff can cure the defects identified above and grants Plaintiff leave to amend.

VII. CONCLUSION For the foregoing reasons, the court sustains the demurrer and grants Plaintiff leave to amend within thirty (30) days of this order. Dated: August 24, 2026 _______- ___________________________ Hon. Eric Harmon Judge of the Superior Court | Home -->)" -->