DEMURER OF CROSS-DEFENDANT MICHAEL TSIVYAN
August 4, 2026 Law and Motion Calendar PAGE 16 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________
2:00 PM LINE 10 25-CIV-06341 MOJTABA TAIEBAT VS. ANDREW G WATTERS
MOJTABA TAIEBAT MICHAEL TSIVYAN ANDREW G WATTERS JERAMY STEPHEN STONE
DEMURER OF CROSS-DEFENDANT MICHAEL TSIVYAN
TENTATIVE RULING:
For the reasons stated below, Cross-defendant Michael Tsivyan’s Demurrer to the Third Cause of Action in Andrew Watters’ March 9, 2026 Cross-Complaint is SUSTAINED without leave to amend. (Code Civ. Proc. § 430.10, subd. (e).)
WATTERS’ REQUEST FOR JUDICIAL NOTICE (RJN) IS DENIED
Watters’ July 22, 2026 request for judicial notice (RJN) seeks judicial notice of a number of court rulings in Marzieh Abdolyousefi et al vs. Mojtaba Taiebat et al, Case No. 22CV398906, venued in the Santa Clara County Superior Court). The RJN attaches a copy of the case docket, but no other documents, including any court orders, are attached.
The party requesting judicial notice bears the burden of furnishing the court with sufficient information to enable it to take judicial notice. Merely identifying another case by name and case number is not sufficient where, as here, the party is asking the Court to recognize specific rulings or orders. It is not this Court’s obligation to track down a laundry list of court orders from a case filed in Santa Clara County. Generally, the party requesting judicial notice should attach, as exhibit, any documents that it wishes this Court to review, rather than merely identifying a hyperlink to another court’s docket. Further, here, the hyperlink does not appear to function.
The Court notes, however, that the RJN has had no bearing on the Court’s ruling on the demurrer.
INSUFFICIENT MEET AND CONFER
Tsivyan’s meet and confer declaration does not comply with Code of Civil Procedure section 430.41, which requires the demurring party to “meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer ...” (id., § 430.41, subd. (a).) The statute requires the demurring party make a genuine attempt to speak with the opposing side. It does not suffice to send an email inviting the opposing attorney to initiate a call. In this case, Tsivyan sent an email and Watters’ counsel failed to respond.
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However, the failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4); Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 355.)
August 4, 2026 Law and Motion Calendar PAGE 17 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________
The court reminds counsel of their professional obligations to engage in meaningful meet-andconfer to try to resolve issues.
LEGAL STANDARD ON DEMURRER
The purpose of a demurrer is to test the legal sufficiency of the facts alleged in the operative complaint to see whether they state a cause of action under any legal theory, as a matter of law. (New Livable Cal. v. Association of Bay Area Gov’ts (2020) 59 Cal.App.5th 709, 714–715; Genis v. Schainbaum (2021) 66 Cal.App.5th 1007, 1014.) The demurrer may be made to the entire complaint or to any of the causes of action therein. (Code Civ. Proc., § 430.50, subd. (a).)
In determining whether a complaint states facts sufficient to constitute a cause of action, courts accept the factual allegations of the complaint and any matters of which judicial notice can be taken, but disregards contentions, deductions, and conclusions. (Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658.) “The complaint must be given a reasonable interpretation and read as a whole with its parts considered in their context.” (Herman v. Los Angeles County Metropolitan Transportation Authority (1999) 71 Cal.App.4th 819, 824.) Thus, the complaint is construed liberally (see Code Civ. Proc., § 452), and facts that may be inferred from those expressly alleged must also be accepted as true (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1405).
THE DEMURRER TO CROSS-COMPLAINT’S THIRD CAUSE OF ACTION (“EQUITABLE INDEMNITY”) IS SUSTAINED
In malpractice lawsuits filed by former clients against their former attorney, for public policy reasons, California courts have consistently disallowed equitable indemnity counter-claims asserted by the former attorney (who is accused of malpractice) against the plaintiff’s/former client’s new/successor attorney. (See, e.g., Holland v. Thacher (1988) 199 Cal.App.3d 924, 928 [sustaining demurrer to equitable indemnity cross-complaint without leave to amend]; Austin v. Superior Court (1999) 72 Cal.App.4th 1126, 1128-30 [issuing writ of mandate ordering trial court to sustain demurrer to cross-complaint for contribution and indemnity]; Held v.
Arant (1977) 67 Cal.App.3d 748, 751 [affirming order sustaining demurrer to cross-complaint for indemnity asserted by plaintiff’s former attorney against the successor attorney].) The holdings in this line of cases, which were raised/discussed in the moving papers, but were not addressed in the Opposition brief, are persuasive to this Court, and dispositive of Watters’ “equitable indemnity” cause of action.
The Opposition relies on Parker v. Morton (1981) 117 Cal.App.3d 751, 767, a 45-year old decision that has been almost uniformly rejected since that time, including by the First District Court of Appeal. Nearly twenty years after Parker, the same Fourth District Court of Appeal that decided Parker decided Austin v. Superior Court, supra, 72 Cal.App.4th 1126, in which the court stated:
August 4, 2026 Law and Motion Calendar PAGE 18 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ Parker stands alone among a substantial number of cases. Every other case dealing with the subject concluded that the policies against permitting a claim of indemnity against the successor lawyer outweighed the policies favoring it. These cases include Major Clients Agency v. Diemer (1998) 67 Cal.App.4th 1116 [79 Cal.Rptr.2d 613]; California State Auto.
Assn. Inter-Ins. Bureau v. Bales (1990) 221 Cal.App.3d 227 [270 Cal.Rptr. 421]; Lewis v. Purvin (1989) 208 Cal.App.3d 1208 [256 Cal.Rptr. 827]; Holland v. Thacher (1988) 199 Cal.App.3d 924 [245 Cal.Rptr. 247]; Goldfisher v. Superior Court (1982) 133 Cal.App.3d 12 [183 Cal.Rptr. 609]; Pollack v. Lytle (1981) 120 Cal.App.3d 931 [175 Cal.Rptr. 81]; Rowell v. TransPacific Life Ins. Co. (1979) 94 Cal.App.3d 818 [156 Cal.Rptr. 679]; and Gibson, Dunn & Crutcher v. Superior Court (1979) 94 Cal.App.3d 347 [156 Cal.Rptr. 326].
We join this chorus and conclude that Parker v. Morton, supra, 117 Cal.App.3d 751 was erroneously decided. The trial court erred in overruling petitioner's demurrer.
(Austin v. Superior Ct., supra, 72 Cal.App.4th at 1129). See also California State Auto. Assn. Inter-Ins. Bureau v. Bales (1990) 221 Cal.App.3d 227, 233 [declining to follow Parker v. Morton].) Today, “[t]he clear weight of judicial authority prohibits the first attorney from crossclaiming for indemnity against the successor attorney.” (Holland v. Thacher, supra, 199 Cal.App.3d 924, 929.) This policy, however, does not stop the first attorney to reduce his or her exposure through the assertion of affirmative defense contending the successor attorney was negligent. (Id. at pp. 930-931.) The Court declines to follow Parker v. Morton for the reasons set forth in the Court of Appeal decisions criticizing Parker v. Morton.
Accordingly, Michael Tsivyan’s demurrer to the Cross-Complaint’s Third Cause of Action for equitable indemnity is sustained.
LEAVE TO AMEND IS DENIED
Although leave to amend is liberally allowed, such leave should not be granted where, in all probability as it appears to be in this case, amendment would be futile. (Foroudi v. Aerospace Corp. (2020) 57 Cal.App.5th 992, 1001.) It is the burden of the party seeking leave to amend to show the possibility that amendment can cure the legal defects of the pleading. (Frayo v. Martin (2024) 102 Cal.App.5th 1025, 1033.) Therefore, if Watters believes that he has facts sufficient to support amendment, he shall properly contest the tentative ruling and provide those facts at the hearing. Absent that showing, the Court sustains the demurrer to the third cause of action in the cross-complaint without leave to amend.
If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Michael Tsivyan 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 provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.