On May 10, 2019 a
Motion,Ex Parte
was filed
involving a dispute between
Msalam, Andrew,
Msalam, Ghassan,
Msalam, Jamie,
Msalam, Jamilah,
Msalam, Jimilah,
Msalam, Jonathan,
Msalam, Julnar,
Msalam, Khalil,
and
Arellano, Fred,
Arellano, Freddie A., Jr,
Aria Sarbeland Trust,
Does 4-20 Individually And In Their Official Capacities,
Does 7-20, Individually And In Their Official Capacities,
Gonzalez, Miguel,
Martha Fabiola Sarbeland Trust,
Sarbeland, Aria,
Sarbeland, Martha,
Sarbeland Trust,
for (26) Unlimited Other Real Property
in the District Court of San Mateo County.
Preview
1 ARA JABAGCHOURIAN (SBN 205777)
ara@arajlaw.com
2 LAW OFFICES OF ARA JABAGCHOURIAN, P.C.
1650 S. Amphlett Boulevard, Suite 216
3 San Mateo, CA 94402
Telephone: (650) 437-6840
4 Facsimile: (650) 403-0909
5
Attorneys for Defendants
6 Aria Sarbeland, and
Martha Sarbeland 2/8/2022
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
IN AND FOR THE COUNTY OF SAN MATEO
10
11
KHALIL MSALAM, JULNAR MSALAM, CASE NO. 19CIV02602
12 JIMILAH MSALAM, GHASSAN
MSALAM through her G.A.L. Jimilah
13 Msalam, JAMIE MSALAM through his [PROPOSED] ORDER RE: DEFENDANT
ARIA SARBELAND AND MARTHA
14 G.A.L. Jimilah Msalam, JONATHAN SARBELAND’S DEMURRER AND MOTION
MSALAM through his G.A.L. Jimilah TO STRIKE PORTIONS OF THE FIRST
15 Msalam, ANDREW MSALAM through his AMENDED COMPLAINT
G.A.L. Jimilah Msalam
16
Plaintiffs,
17
18 vs.
19 ARIA SARBELAND, FREDDIE A.
ARELLANO, JR. MARTHA
20 SARBELAND, individually and in his
official capacity, and DOES 1-20
21 individually and in their official capacities.
22
Defendants.
23
24
25
26
27
28 [PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA
Law Offices of SARBELAND’S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE FIRST
Ara AMENDED COMPLAINT
Jabagchourian,
P.C.
1 This matter came before the Court in Department 21 before the Honorable Robert D.
2 Foiles upon Defendant Aria Sarbeland and Martha Sarbeland’s Demurrer and Motion to Strike
3 Portions of the First Amended Complaint. Having considered the papers submitted, the Court
4 hereby makes the following order.
5 Defendants’ demurrer to Plaintiffs’ First Amended Complaint is SUSTAINED, with
6 leave to amend, and Defendants’ motion to strike portions of the First Amended Complaint is
7 GRANTED, with leave to amend, for the reasons set forth below.
8 Plaintiffs have not opposed Defendants’ motions. Rather, on January 24, Plaintiffs filed a
9 Second Amended Complaint. The Second Amended Complaint seeks to add causes of action for
10 intentional infliction of emotional distress, unfair business practices, and nuisance. The right to
11 amend under Code Civ. Proc. § 472, however, is limited to the original complaint; there is no
12 right to amend, without leave of court, an amended complaint. TRG, Cal. Prac. Guide Civ. Pro.
13 Before Trial Ch. 6-E, § 6:610.5 (citing Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 578-
14 579). Accordingly, Plaintiffs must seek leave to file a Second Amended Complaint. The Second
15 Amended Complaint is therefore STRICKEN as procedurally improper.
16 Considering that Plaintiffs have filed a Second Amended Complaint, Plaintiffs concede
17 that Defendants’ demurrer and motion to strike have merit. As a result, Defendants’ demurrer is
18 SUSTAINED. For the same reason, Defendants’ motion to strike is GRANTED. Paragraph
19 81, as well as Prayers for Relief Nos. 3, 4, 5, and 7, are hereby STRICKEN from the First
20 Amended Complaint. Plaintiffs are granted leave to file and serve a Second Amended Complaint
21 within 14 days of notice of this order.
22 ///
23 ///
24
25
26
27
28 [PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA 1
Law Offices of SARBELAND’S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE FIRST
Ara AMENDED COMPLAINT
Jabagchourian,
P.C.
1 Generally, where a court grants leave to amend after sustaining a demurrer, the scope of
2 permissible amendment is limited to the cause(s) of action to which the demurrer has been
3 sustained: “[S]uch granting of leave to amend must be construed as permission to the
4 pleader to amend the cause of action which he pleaded in the pleading to which the demurrer has
5 been sustained.” People v. Clausen (1967) 248 Cal.App.2d 770, 785-786. Accordingly, to the
6 extent Plaintiffs seek to add new causes of action, Plaintiff should seek leave of Court to add
7 the new causes of action.
8
9 APPROVED AS TO FORM:
10
By:__________________________
11 Manuel A. Juarez, Esq.
Attorney for Plaintiffs Khalil Msalam, et al.
12
13
IT IS SO ORDERED.
14
15
16
Dated:____________________, 2022
17
______________________________________
18
JUDGE OF THE SUPERIOR COURT
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28 [PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA 2
Law Offices of SARBELAND’S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE FIRST
Ara AMENDED COMPLAINT
Jabagchourian,
P.C.
PROOF OF SERVICE
I am employed in the State of California, County of San Mateo; I am over the age of l8
years and not a party to the within cause. My business address isthe Law Ofces Ara
Jabagchourian, P.C. 1650 S. Amphlett Boulevard, Suite 216, San Mateo, California, 94402. On
this day, I served the following document(s) in the manner described below:
[PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA
SARBELAND’S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE FIRST
AMENDED COMPLAINT
X VIA E-MAIL: I am readily familiar with this rm’s practice for causing documents to be
served by email. Following that practice, I caused the aforementioned document(s) to be
delivered email to the addressee(s) specied below. My business email address is
ara@arajlaw.com.
10 Via E-Mail ATTORNEY FOR PLAINTIFFS:
11
L.M. Parmenter KHALIL MSALAM, et al.
PARMENTER LAW OFFICES
12
501 B Street, Suite 200
San Rafael, CA 94901
13 Tel: (41 5) 738-7901
Email: 1mparmenter@lawpar.com
14 Via E-Mail ATTORNEY FOR PLAINTIFFS:
15
Manuel A. Juarez KHALIL MSALAM, et al.
Law Ofces of Manuel A. Juarez
16 2143 Cedar Street, Suite 200
Berkeley, CA 94709
17 Tel: (510) 841-6164
Email: baylawl @yahoo.com
18 Via E—Mail ATTORNEYS FOR DEFENDANT:
Anthony E. Rodriguez Freddie A. Arellano, Jr.
19
Cynthia Anaya
20 AER LEGAL, APC
Mountain View, California
21 Tel: (650) 963-9670
Email: anthony@aerlegal.com
22
cynthia@aerlegal.com
23
I declare under penalty of perjury, under the laws of the State of California, that the
24 foregoing is true and correct. Executed at San Mateo, 8, 2022.
25 Califowliebruary
Jabagchourian
26 ya
27
28
Law Offices of
Ara PROOF OF SERVICE
Jabagchourian,
P.C.
Preview
1 ARA JABAGCHOURIAN (SBN 205777) ara@arajlaw.com 2 LAW OFFICES OF ARA JABAGCHOURIAN, P.C. 1650 S. Amphlett Boulevard, Suite 216 3 San Mateo, CA 94402 Telephone: (650) 437-6840 4 Facsimile: (650) 403-0909 5 Attorneys for Defendants 6 Aria Sarbeland, and Martha Sarbeland 2/8/2022 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN MATEO 10 11 KHALIL MSALAM, JULNAR MSALAM, CASE NO. 19CIV02602 12 JIMILAH MSALAM, GHASSAN MSALAM through her G.A.L. Jimilah 13 Msalam, JAMIE MSALAM through his [PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA 14 G.A.L. Jimilah Msalam, JONATHAN SARBELAND’S DEMURRER AND MOTION MSALAM through his G.A.L. Jimilah TO STRIKE PORTIONS OF THE FIRST 15 Msalam, ANDREW MSALAM through his AMENDED COMPLAINT G.A.L. Jimilah Msalam 16 Plaintiffs, 17 18 vs. 19 ARIA SARBELAND, FREDDIE A. ARELLANO, JR. MARTHA 20 SARBELAND, individually and in his official capacity, and DOES 1-20 21 individually and in their official capacities. 22 Defendants. 23 24 25 26 27 28 [PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA Law Offices of SARBELAND’S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE FIRST Ara AMENDED COMPLAINT Jabagchourian, P.C. 1 This matter came before the Court in Department 21 before the Honorable Robert D. 2 Foiles upon Defendant Aria Sarbeland and Martha Sarbeland’s Demurrer and Motion to Strike 3 Portions of the First Amended Complaint. Having considered the papers submitted, the Court 4 hereby makes the following order. 5 Defendants’ demurrer to Plaintiffs’ First Amended Complaint is SUSTAINED, with 6 leave to amend, and Defendants’ motion to strike portions of the First Amended Complaint is 7 GRANTED, with leave to amend, for the reasons set forth below. 8 Plaintiffs have not opposed Defendants’ motions. Rather, on January 24, Plaintiffs filed a 9 Second Amended Complaint. The Second Amended Complaint seeks to add causes of action for 10 intentional infliction of emotional distress, unfair business practices, and nuisance. The right to 11 amend under Code Civ. Proc. § 472, however, is limited to the original complaint; there is no 12 right to amend, without leave of court, an amended complaint. TRG, Cal. Prac. Guide Civ. Pro. 13 Before Trial Ch. 6-E, § 6:610.5 (citing Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 578- 14 579). Accordingly, Plaintiffs must seek leave to file a Second Amended Complaint. The Second 15 Amended Complaint is therefore STRICKEN as procedurally improper. 16 Considering that Plaintiffs have filed a Second Amended Complaint, Plaintiffs concede 17 that Defendants’ demurrer and motion to strike have merit. As a result, Defendants’ demurrer is 18 SUSTAINED. For the same reason, Defendants’ motion to strike is GRANTED. Paragraph 19 81, as well as Prayers for Relief Nos. 3, 4, 5, and 7, are hereby STRICKEN from the First 20 Amended Complaint. Plaintiffs are granted leave to file and serve a Second Amended Complaint 21 within 14 days of notice of this order. 22 /// 23 /// 24 25 26 27 28 [PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA 1 Law Offices of SARBELAND’S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE FIRST Ara AMENDED COMPLAINT Jabagchourian, P.C. 1 Generally, where a court grants leave to amend after sustaining a demurrer, the scope of 2 permissible amendment is limited to the cause(s) of action to which the demurrer has been 3 sustained: “[S]uch granting of leave to amend must be construed as permission to the 4 pleader to amend the cause of action which he pleaded in the pleading to which the demurrer has 5 been sustained.” People v. Clausen (1967) 248 Cal.App.2d 770, 785-786. Accordingly, to the 6 extent Plaintiffs seek to add new causes of action, Plaintiff should seek leave of Court to add 7 the new causes of action. 8 9 APPROVED AS TO FORM: 10 By:__________________________ 11 Manuel A. Juarez, Esq. Attorney for Plaintiffs Khalil Msalam, et al. 12 13 IT IS SO ORDERED. 14 15 16 Dated:____________________, 2022 17 ______________________________________ 18 JUDGE OF THE SUPERIOR COURT 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA 2 Law Offices of SARBELAND’S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE FIRST Ara AMENDED COMPLAINT Jabagchourian, P.C. PROOF OF SERVICE I am employed in the State of California, County of San Mateo; I am over the age of l8 years and not a party to the within cause. My business address isthe Law Ofces Ara Jabagchourian, P.C. 1650 S. Amphlett Boulevard, Suite 216, San Mateo, California, 94402. On this day, I served the following document(s) in the manner described below: [PROPOSED] ORDER RE: DEFENDANT ARIA SARBELAND AND MARTHA SARBELAND’S DEMURRER AND MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT X VIA E-MAIL: I am readily familiar with this rm’s practice for causing documents to be served by email. Following that practice, I caused the aforementioned document(s) to be delivered email to the addressee(s) specied below. My business email address is ara@arajlaw.com. 10 Via E-Mail ATTORNEY FOR PLAINTIFFS: 11 L.M. Parmenter KHALIL MSALAM, et al. PARMENTER LAW OFFICES 12 501 B Street, Suite 200 San Rafael, CA 94901 13 Tel: (41 5) 738-7901 Email: 1mparmenter@lawpar.com 14 Via E-Mail ATTORNEY FOR PLAINTIFFS: 15 Manuel A. Juarez KHALIL MSALAM, et al. Law Ofces of Manuel A. Juarez 16 2143 Cedar Street, Suite 200 Berkeley, CA 94709 17 Tel: (510) 841-6164 Email: baylawl @yahoo.com 18 Via E—Mail ATTORNEYS FOR DEFENDANT: Anthony E. Rodriguez Freddie A. Arellano, Jr. 19 Cynthia Anaya 20 AER LEGAL, APC Mountain View, California 21 Tel: (650) 963-9670 Email: anthony@aerlegal.com 22 cynthia@aerlegal.com 23 I declare under penalty of perjury, under the laws of the State of California, that the 24 foregoing is true and correct. Executed at San Mateo, 8, 2022. 25 Califowliebruary Jabagchourian 26 ya 27 28 Law Offices of Ara PROOF OF SERVICE Jabagchourian, P.C.