The Byalick Family Trust et al vs The Bozenich Family Trust

Case Number

25CV03452

Case Type

Hearing Date / Time

Thu, 08/14/2025 - 09:00

Nature of Proceedings

Demurrer

Tentative Ruling

TENTATIVE RULING:

The demurrer of the Bozenich Family Trust to the complaint of the Byalick Family Trust is overruled. Bozenich Family Trust shall file and serve its answer to the complaint no later than August 28, 2025.

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Background:

This action commenced on December 5, 2024, by the filing of the complaint by plaintiffs The Byalick Family Trust, dated March 6, 2006, Harvey Byalick (“Harvey”), and Valerie Byalick (“Valerie”) (collectively “plaintiffs”), against defendant The Bozenich Family Trust, dated August 10, 1999 (“defendant”), for breach of contract. [Note: For clarity, some individuals will be referred to by their given names. No disrespect is intended.]

As alleged in the complaint:

For over 20 years, defendant owned real property commonly known as 307 Fowling Street, Playa Del Rey, California (the “property”). (Compl., ¶ 7.) The property is a single-family residence that was previously owned by Gary Bozenich’s (“Gary”) mother and had been vacant for over 20 years. (Id., at ¶ 8.)

In October 2021, Gary, then trustee of defendant, agreed to sell the property to Harvey. (Compl., ¶ 9.) The parties had been friends and business associates for many years. (Ibid.) The total price was to be $1,600,000.00, with $1,500,000.00 to be paid through escrow and $100,000.00 to be paid outside of escrow. (Id. at ¶ 10.)

On December 15, 2021, escrow was opened and plaintiffs deposited $20,000.00 into escrow. (Compl., ¶¶ 11, 12 & Exh. A.) On December 21, 2021, at the request of the escrow officer, Gary and Harvey entered into a written purchase agreement for the sale and purchase of the property (the “agreement”). (Id. at ¶ 13 & Exh. B.) The agreement references the escrow purchase price of $1,500,000 and is silent as to the additional $100,000.00. (Ibid.)

Due to the condition of the property, the parties understood that substantial repairs would need to be made to the property in order to qualify for a loan, so in December 2021, plaintiffs began making repairs to the property. (Compl., ¶ 14.)

On February 4, 2022, Gary died. (Compl., ¶ 15.) Despite specific language in the agreement requiring the successor trustee to complete the sale of the property to plaintiffs, the successor trustee refused to complete the transaction. (Id. at ¶ 16.)

Defendant subsequently filed a Petition for Instructions with the probate court to determine the agreement unenforceable. (Compl., ¶ 17.) Plaintiffs filed Objections to the Petition and requested that the court determine that the agreement was enforceable and order the successor trustee to complete the sale. (Ibid.)

On November 14th and 15th, 2023, trial took place on the Petition and the court declared the agreement enforceable and ordered defendant to complete the sale to plaintiffs. (Compl., ¶ 18 & Exh. C.) On January 29, 2024, plaintiffs completed the purchase of the property for the total purchase price of $1,6000,000.00. (Id. at ¶ 19.)

As a result of defendant’s refusal to honor the agreement, close of escrow was delayed by approximately 22 months. (Compl., ¶ 24.) During the delay, interest rates rose which dramatically increased the cost of plaintiffs’ loan for the purchase of the property, which will result in damages of $678,214.30 over the life of the loan. (Ibid.)

On June 11, 2025, trustee for defendant filed a Notice of Related Case as to probate Case No. 22PR00156.

The Probate Petition in Case No. 22PR00156 was originally filed on March 22, 2022, by the trustee for the defendant. The original petition was for the appointment of trustee, to confirm the validity of trust provisions, and for determination of beneficiary. That petition does not mention the property or any dispute with plaintiffs.

A supplement to the petition in Case No. 22PR00156 was filed on April 21, 2022, by the trustee of defendant. The supplement does not mention the property or any dispute with plaintiffs.

On July 22, 2022, the interim trustee of defendant filed a petition to determine ownership of trust property and for order confirming the transfer of trust property. The petition does not mention the property or any dispute with plaintiffs.

On August 24, 2022, the trustee of defendant filed a petition for instructions to sell real property. The petition does not mention the property or any dispute with plaintiffs.

On November 17, 2022, the trustee of defendant filed a petition for instructions regarding the Fowling Street purchase agreement. This appears to be the first time that the subject property was specifically mentioned or that the property was the subject of a dispute between plaintiffs and defendant. By way of that petition, defendant was seeking to have the court declare the purchase agreement unenforceable.

On January 24, 2023, plaintiffs Harvey and Valerie filed their objections to the petition for instructions regarding the Fowling Street purchase agreement in Case No. 22PR00156. The Byalick Family Trust was not included as an objector.

On January 18, 2024, the court issued a statement of decision and judgment on the petition regarding the Fowling Street purchase agreement. Carey was ordered to sell the property to Harvey and Valerie, either individually or, at their option, as co-trustees of the Byalick Family Trust.

Defendant now demurs to plaintiffs’ complaint in the present action pursuant to Code of Civil Procedure sections 430.10 and 426.30, arguing that the complaint was required to have been brought as a compulsory cross-complaint in Case No. 22PR00156.

Plaintiffs oppose the demurrer arguing, among other things, that the compulsory cross-complaint requirement does not apply because the petition was an action for declaratory relief that was not directed against plaintiffs.

Analysis:

“The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42.)’ (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.)

“What is important is that the complaint as a whole contains sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)

“The demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint.” (Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499.)

“If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. “ ‘[W]e are not limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. The courts of this state have . . . long since departed from holding a plaintiff strictly to the ‘form of action’ he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.’ ” [Citations.]” (Quelimane Co. v. Stewart Title Guaranty Co., supra, 19 Cal.4th at pp. 38-39.)

“Although a general demurrer does not ordinarily reach affirmative defenses, it “ ‘will lie where the complaint ‘ “has included allegations that clearly disclose some defense or bar to recovery.” ’ ” [Citations.] “ ‘Thus, a demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense.’ [Citations.]” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 726.)

Defendant argues that plaintiffs’ action is barred pursuant to Code of Civil Procedure section 426.30, subdivision (a). Defendant’s argument fails for several reasons.

“(a) “ ‘Complaint’ ” means a complaint or cross-complaint.

“(b) “ ‘Plaintiff’ ” means a person who files a complaint or cross-complaint.

“(c) “ ‘Related cause of action’ ” means a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” (Code Civ. Proc., § 426.10.)

Code of Civil Procedure section 426.30 provides, in full:

“(a) Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.

“(b) This section does not apply if either of the following are established:

“(1) The court in which the action is pending does not have jurisdiction to render a personal judgment against the person who failed to plead the related cause of action.

“(2) The person who failed to plead the related cause of action did not file an answer to the complaint against him.”

“(a) This article applies only to civil actions and does not apply to special proceedings.

“(b) This article does not apply to actions in the small claims court.

“(c) This article does not apply where the only relief sought is a declaration of the rights and duties of the respective parties in an action for declaratory relief under Chapter 8 (commencing with Section 1060) of Title 14 of this part.” (Code Civ. Proc., § 426.60.)

“An action is defined in section 22 of the Code of Civil Procedure as follows: “ ‘An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.’ ” A petition for . . . probate . . . marks the first step in a special proceeding. It does not mark the commencement of an ordinary proceeding by which “ ‘one party prosecutes another’ ”. Proceedings for the settlement of estates are not civil actions; they are special proceedings in rem and are covered by the provisions of the Probate Code rather than by the rules applicable to civil actions generally. [Citations.]” (In re Raymond’s Estate (1940) 38 Cal.App.2d 305, 307.)

Despite defendant’s claims to the contrary, Case No. 22PR00156 was a special proceeding and not subject to the compulsory cross-complaint rule. It was not an action that defendant prosecuted against plaintiffs. It was also a “petition” rather than a “complaint.” The compulsory cross-complaint rule only applies when there is a complaint filed against a party.

Further, and again despite defendant’s arguments to the contrary, Case No. 22PR00156 only sought a declaration of the rights and duties of the respective parties. The language of the petition that defendant claims supports its argument that more than declaratory relief was being sought, is not substantive and does not in fact request more than declaratory relief. The two paragraphs of the prayer for relief are just different ways of requesting the declaratory relief that defendant be allowed to retain a real estate broker and sell the property. In fact, at paragraph 1 of the November 17, 2022, Petition for Instructions regarding the property, filed by defendant’s Trustee Nathaniel D. Carey, it is clear that defendant is seeking “a determination, declaration and instruction” that the purchase agreement for the property is not enforceable. The rest of the petition follows suit in seeking declaratory relief. It is disingenuous to claim that the petition was not solely seeking a declaration of the rights and duties of the respective parties.

The demurrer will be overruled.