SUBAR MANI VS. FEDRECEIVER, INC.

September 10, 2025 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________

02:00 PM LINE 6 23-CIV-02996 SUBAR MANI VS. FEDRECEIVER, INC.

SUBAR MANI DAVID A. BUTLER FEDRECEIVER, INC. BENNETT G. YOUNG

Defendant’s Demurrer

TENTATIVE RULING:

Defendant FedReceiver, Inc.’s demurrer to the July 3, 2025, complaint filed by plaintiff Subar Mani on July 3, 2023, is SUSTAINED without leave to amend.

Defendant’s amended request for judicial notice of Exhibits A through I is GRANTED as follows:

• Exhibit A: California Court of Appeal opinion in Simon Semaan v. Robert P. Mosier, (2026), -- Cal.App.5th --, Case no. G064385. (Evid. Code §§ 452, subds. (a) & (d); 453.) • Exhibits B, C, D, E, G, H & I: orders in San Mateo Superior Court Case, Case No. CIV533765. (Evid. Code §§ 452 subds. (c), (d), (e) & (h), and 453.) • Exhibit F: Permit No. B1908-0079, issued by the City of San Bruno, on August 4, 2021. (Evid. Code §§ 452 subds. (c) & (h), and 453.) Plaintiff’s request for judicial notice of San Mateo County Case No. CIV533765 is GRANTED. (Evid. Code §§ 452, subd. (d) and 453.) Plaintiff’s request for judicial notice of Exhibit A, a citation from the City of San Bruno is DENIED for lack of foundation. Because the court denies the request for judicial notice of Exhibit A, defendant’s objection to Exhibit A is DENIED AS MOOT.

A.

Background

In this general negligence action, plaintiff alleges substandard workmanship by the 2015 conservatorship established by this court in Case No. CIV533765.

Defendant FedReceiver, Inc. demurs to the complaint on the grounds that Stephen J. Donell, not FedReceiver, was the appointed receiver in the underlying action. Therefore, sustaining demurrer without leave to amend is appropriate because FedReceiver was misjoined in this action. Defendant asks the court to take judicial notice of several filings in Case No. CIV533765 which are addressed below. Defendant further contends the complaint is barred under the legal doctrine of res judicata (claim preclusion) because plaintiff did not object to the order approving the receiver’s final report. Additionally, demurrer is appropriate because plaintiff failed to seek leave of the court appointing the receiver before filing this action.

September 10, 2025 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ Plaintiff opposes, asserting that mis-naming a defendant is a correctable error and that leave to amend is appropriate citing Diliberti v. Stage Call Corp. (1992) 4 Cal.App.4th 1468 (Diliberti). Plaintiff asserts the matter is not barred by the doctrine of res judicata, and, furthermore, by defendant’s own admission, the receiver [Stephen J. Donell] is not a party to this action, so plaintiff did not need the court’s permission before bringing the underlying action against the receiver.

B. Meet and Confer

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) Failure to sufficiently meet and confer, however, is not grounds to overrule or sustain a demurrer. (Id., subd. (a)(4).) Preliminarily, the court notes the parties did not meet and confer (Declaration of Christopher K. Whang iso Demurrer, ¶¶ 2-8), which was confirmed by plaintiff’s counsel. (Declaration of David Butler, Jr., ¶ 1.)

C. Legal Standard

“[I]t is well settled that a general demurrer admits the truth of all material factual allegations in the complaint [citation]; that the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court [citations]; and that plaintiff need only plead facts showing that he may be entitled to some relief [citation].” (John’s Grill, Inc. v. The Hartford Financial Services Group, Inc. (2024) 16 Cal.5th 1003, 1013 (John’s Grill), quoting Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496 (Alcorn).)

A court reviewing a demurrer accepts as true the facts alleged in the complaint as well as those of which it may take judicial notice (John’s Grill, supra, 16 Cal.5th at p. 1008, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318), but does not “assume the truth of contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967 (Aubry).)

Because a demurrer “admits the truth of all material factual allegations in the complaint,” a plaintiff’s ability to prove these allegations “does not concern the reviewing court... The plaintiffs need only plead facts showing that they may be entitled to some relief.” (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 604 superseded by statute on other grounds [internal quotations omitted].)

D.

Discussion

The complaint asserts a single cause of action for negligence. “To succeed in a negligence action, the plaintiff must show that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff’s damages or injuries.” (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.) The court’s review of the cause of action alleged on page four of the judicial council form complaint demonstrates the elements are succinctly stated: the court appointed receiver breached its duty by

September 10, 2025 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ not inspecting the roof though they knew of its dilapidated condition and that it was subject to infiltration by weather which could cause damages [to the building]. As a result, rainwater infiltrated the premises resulting in harm to plaintiff in the form of tenant displacement, property damage, repair expense and loss of rent. (Complaint at p. 4.)

As the court in Diliberti states “[a]ttorneys frequently name the wrong individuals as defendants in lawsuits. No problem. When they ascertain who the true defendant should be, they simply amend their pleadings.” (Diliberti, supra, 4 Cal.App.4th at p. 1469.) “Whether an amendment to change the name of a party will be allowed depends on whether the mistake is merely a misnomer in the description of the party or ‘a substitution or entire change of parties.’” (Id., at p. 1470, quoting Thompson v. Palmer Corporation (1956) 138 Cal.App.2d 387, 390.) Similarly, whether there has potentially been a misjoinder of parties pursuant to Code of Civil Procedure, section 389, it is a matter the meet and confer process may have resolved. Regardless, it is not a question the court answers on demurrer.

Significantly, however, even if plaintiff were to amend the complaint to correct the receiver’s name, plaintiff did not seek leave of the court to sue the receiver as required. (Murray v. Etchepare, (1901) 132 Cal. 286, 288; Ostrowski v. Miller (1964) 226 Cal.App.2d 79, 83-84.)

Regardless of whether the receiver was incorrectly named, plaintiff intended to sue the court-appointed receiver. Plaintiff is barred from doing so because the receiver was discharged in the prior matter. (Exhibits B & H: Orders in San Mateo Superior Court Case, Case No. CIV533765.) Claims against the receiver arising out of the receivership are barred by claim preclusion. (Southern California Sunbelt Devs., Inc. v. Banyan Limited Partnership (2017) 8 Cal.App.5th 910, 926-927 [“because all issues concerning the receiver’s actions are fully adjudicated as part of the final accounting, it is well settled the discharge order operates as res judicata as to any claims of liability against the receiver in his or her official capacity.”].)

Plaintiff argues that extrinsic fraud is an exception to the rule that a receiver cannot be sued after discharge. Plaintiff has not pled fraud and cannot introduce factual allegations about the underlying receivership in his opposition.

Further, because it was not addressed in the opposition, plaintiff has waived any argument that the receiver did not have quasi-judicial immunity for discretionary actions. (See MPA iso Am. Dem, at pp; 7-8; Reply at p. 2, citing Semaan v. Mosier (2026) 118 Cal.App.5th 460.)

For the foregoing reasons, the demurrer is sustained without leave to amend.

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, defendant’s counsel shall prepare a written order consistent with the court’s ruling for the court’s signature, pursuant to California Rules of Court, Rule 3.1312 and Local Rule 3.403(b)(iv), and provide written notice of the ruling to all parties who have appeared in this action. The order should be e-filed only, do not email or mail a hard copy to the court.