Michael J. Rojas v. Felix Zerbib, et al.

Judge of the Superior Court

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES NORTHWEST DISTRICT | Michael J. Rojas v. Felix Zerbib, et al. | Case Number Department 24VECP00261 107 | COURT'S [TENTATIVE] ORDER RE: Demurrer without Motion to Strike | [THE FOLLOWING IS A TENTATIVE RULING IN THE ABOVE CASE]: (1) Deny the Anti-SLAPP Motion; (2) Sustain the demurrer, in part, and overrule it, in part.

I. BACKGROUND

On June 20, 2024, Petitioners Michael J Rojas and Dr. Sandra Minott ("Petitioners") filed a petition for preliminary and permanent injunctions and for damages against Defendants Felix Zerbib, as an individual and dba Kobe Moving, Inc. aka Master Moving, Inc., Gateway Insurance, Hanover Insurance Company, Jeffrey D. Nadel, as an individual and dba as the Law Offices Jeffrey Nadel, and Does 1 to 10.

On July 11, 2025, Defendant Jeffrey D Nadel filed an anti-SLAPP motion, or, in the alternative, a demurrer (the "First Demurrer"). On August 21, 2025, the court denied the anti-SLAPP motion and sustained the demurrer with 20 days leave to amend. (08/21/25 Minute Order p. 7.)

On September 11, 2025, Defendant Hanover Insurance Company filed a demurrer without motion to strike (the "Hanover Demurrer").

On September 22, 2025, Petitioners filed an amended petition (the "Amended Petition"). On October 30, 2025, the court struck the Amended Petition on its own motion and sustained the Hanover Demurrer with leave to amend within ten (10) days of the court's order. (10/30/25 Minute Order p. 6.)

On January 27, 2026, Petitioners filed a request for dismissal of Defendant Hanover Insurance Company and that Defendant was dismissed.

On May 20, 2026, Petitioners filed an amended complaint against Defendants Kobe Moving Inc, Felix Zerbib, Jeffery Nadel, and Does 1 to 100, alleging causes of action for: (1) fraudulent inducement/bait-and-switch scheme; (2) actual fraud - intentional misrepresentation; (3) concealment/fraudulent concealment; (4) constructive fraud; (5) negligent misrepresentation; (6) violation of California Business & Professions Code section 17200, et seq; (7) breach of agreement; (8) unjust enrichment/restitution; and (9) conversion.

On July 15, 2026, Defendant Jeffrey Nadel ("Defendant") filed a special motion to strike pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP), or, alternatively, demurrer (the "Motion"). On August 14, 2026, Petitioners filed an opposition. As of August 17, 2026, no reply has been filed.

II. THE OPPOSITION

Oppositions are due to be filed and served at least nine court days before the hearing. (Code Civ. Proc., Sec. 1005, subd. (b).) Petitioners filed the opposition only four court days before the hearing. Thus, the opposition is untimely.

"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.) Petitioners filed the opposition after Defendant's deadline to file the reply. The court will not consider the untimely opposition.

III. ANTI-SLAPP LEGAL STANDARD

"Litigation of an anti-SLAPP motion involves a two-step process. First, 'the moving defendant bears the burden of establishing that the challenged allegations or claims "arise from" protected activity in which the defendant has engaged. [Citation.] Second, for each claim that does arise from protected activity, the plaintiff must show the claim has 'at least "minimal merit."'" [Citation.] If the plaintiff cannot make this showing, the court will strike the claim." (Bonni v. St Joseph Health System (2021) 11 Cal.5th 995, 1009, brackets removed.)

Under Code of Civil Procedure section 425.16, subdivision (e): As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

IV. ANTI-SLAPP DISCUSSION

Defendant moves for an order striking the entire amended complaint. (Motion pp. 1-2.) Defendant argues the amended complaint "constitutes written or oral statements made in connection with an issue of public interest since the American community, effectively the public at large, has a need for attorneys to represent their clients in courts." (Motion pp. 8-9.)

Defendant identifies two allegations in the amended complaint in paragraphs 4 and 12. (Motion p. 9.) Petitioners allege "Defendant Jeffrey Nadel is an attomey who, at all times relevant, advised and assisted Kobe Moving, Inc. and Zerbib in wrongfully retaining and preparing to sell Plaintiff's possessions." (Amended Complaint P. 4.) Petitioners also allege "Defendant Nadel, acting as attorney for Kobe Moving, Inc. and Zerbib, advised, directed, and assisted in preparing statutory lien notices and auction procedures despite knowing that Plaintiff disputed the charges and that Defendants' retention of property was wrongful." (Amended Complaint P. 12.)

There are three named defendants here: (1) Kobe Moving Inc; (2) Felix Zerbib; and (3) Defendant. (Amended Complaint p. 1.) Petitioners refer to Defendants Kobe Moving, Inc and Zerbib and Defendant individually on page 2 of the amended complaint. (See, e.g., Amended Complaint P.P. 8, 12.) Elsewhere, Petitioners refer to "Defendants[.]" (See, e.g., Amended Complaint p. 3.) For example, Petitioners allege: Prior to the move, Defendants represented to Plaintiff that the moving services would cost approximately $399.00 for a local move estimated at approximately three hours and involving two movers. Plaintiff relied upon said representations in agreeing to hire Defendants and permitting Defendants access to and possession of Plaintiff's personal property. (Amended Complaint p. 3.)

Defendant does not argue this allegation, or other allegations that similarly refer to "Defendants" are covered by Code of Civil Procedure section 425.16. Thus, Defendant has not met his burden of showing the entire amended complaint should be stricken.

V. DEMURRER 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¿1005, subdivision (b), moving papers must be filed at least 16 court days before the set 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. Service by mail from a California address to a California address extends the deadline by five calendar days. (Code Civ. Proc., Sec. 1013, subd. (a).)

The signature line is dated May 8, 2026, but the proof of service does not contain a date when Petitioners mailed the amended complaint to Defendant. (Amended Complaint pdf p. 37.) The court cannot determine when Petitioners served Defendant with the amended complaint, so the court cannot determine whether the demurrer is timely.

VI. DEMURRER 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 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).)

Defendant's declaration contains no statement showing Defendant met and conferred with Petitioners before filing the Motion. (Nadel Declaration.) "A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer." (Code Civ. Proc., Sec. 430.41, subd. (a)(4).) However, "trial courts are not required to ignore defects in the meet and confer process. If, upon review of a declaration under section 430.41, subdivision (a)(3), a court learns no meet and confer has taken place, or concludes further conferences between counsel would likely be productive, it retains discretion to order counsel to meaningfully discuss the pleadings with an eye toward reducing the number of issues or eliminating the need for a demurrer, and to continue the hearing date to facilitate that effort." (Dumas v.

Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 355, fn. 3.)

The court may not overrule a demurrer based on insufficient meet and confer efforts. As such, the court will consider the merits. In the future, Defendant must satisfy their meet and confer obligation or the court will consider continuing the hearing until the parties have an opportunity to properly meet and confer.

VII. DEMURRER LEGAL STANDARD

"A demurrer tests the pleading alone, and not the evidence or the facts alleged." (E-Fab, Inc. v. Accountants, Inc. Servs. (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 because the complaint "does not state facts sufficient to constitute a cause of action." (Code Civ. Proc., Sec. 430.10, subd. (e).)

VIII. DEMURRER DISCUSSION

Defendant argues the amended complaint lacks facts sufficient to state a cause of action against Defendant. (Motion p. 2.) Defendant further argues the amended complaint is ambiguous. (Motion pp. 15-16.) Finally, Defendant argues the court's leave to amend did not authorize additional causes of action. (Motion pp. 16-17.)

California Rules of Court, rule 3.1320(a) states "[e]ach ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses." Defendant's notice of demurrer does not satisfy these requirements because it states only that the amended complaint lacks facts sufficient to state a cause of action and does not specify that it applies to the entire amended complaint, does not specify causes of action and does not mention Defendant's arguments as to ambiguity and the court's authorization of additional causes of action. The court considers only whether Petitioners state facts sufficient to state causes of action against Defendant.

Fraud:

Defendant argues Petitioners fail to sufficiently allege a cause of action for fraud. (Motion pp. 18-19.) Petitioners' allege causes of action for fraudulent inducement/bait-and-switch scheme, intentional misrepresentation, concealment/fraudulent concealment, constructive fraud, and negligent misrepresentation.

The elements of a fraud cause of action are "(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage." (Rattagan v. Uber Technologies, Inc. (" Rattagan ") (2024) 17 Cal.5th 1, 32.) Fraud must be alleged with specificity. (Id. at p. 43.) "When affirmative misrepresentation fraud is alleged, 'This particularity requirement necessitates pleading facts which "show how, when, where, to whom, and by what means the representations were tendered."'" (Id. original italics.)

"The elements of negligent misrepresentation are '(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.'" (National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50.) "While there is some conflict in the case law discussing the precise degree of particularity required in the pleading of a claim for negligent misrepresentation, there is a consensus that the causal elements, particularly the allegations of reliance, must be specifically pleaded." (Id.)

The only specific allegations concerning Defendant are the allegations on page two, where Petitioners allege Defendant "is an attomey who, at all times relevant, advised and assisted Kobe Moving, Inc. and Zerbib in wrongfully retaining and preparing to sell Plaintiff's possessions" and Defendant "acting as attorney for Kobe Moving, Inc. and Zerbib, advised, directed, and assisted in preparing statutory lien notices and auction procedures despite knowing that Plaintiff disputed the charges and that Defendants' retention of property was wrongful." (Amended Complaint P.P. 4, 12.) On that same page, Petitioners allege that "Plaintiff contracted with Defendants Kobe Moving, Inc. and Zerbib to transport and store Plaintiff's personal property." (Amended Complaint P. 8.)

Under the fraud causes of action, Petitioners allege that "Defendants" engaged in the conduct, without specifying which Defendant or Defendant(s) engaged in the specific acts. (See Amended Complaint pp. 3-6.) Petitioners also fail to allege with specificity facts such as how, when, where, to whom, and by what means the representations were tendered. Petitioners fail to allege sufficient facts supporting the fraud causes of action against Defendant. The demurrer on this ground is sustained.

Violation of California Business & Professions Code section 17200 et seq:

Petitioners allege a cause of action for violation of California Business & Professions Code section 17200 et seq. (Amended Complaint pp. 6-7.) Defendant does not argue in the memorandum of points and authorities that Petitioners fail to state facts sufficient to state a cause of action for violation of California Business & Professions Code section 17200 against Defendant. The court need not address this issue further. The demurrer on this ground is overruled.

Breach of Agreement:

Defendant argues Petitioners fail to allege facts showing a breach of contract cause of action. (Motion p. 18.) The elements of a breach of contract claim are: (1) existence of a contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) resulting damage. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

" 'A written contract may be pleaded either by its terms--set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference--or by its legal effect.' [Citation.] In order to plead a contract by its legal effect, plaintiff must 'allege the substance of its relevant terms.'"¿(Heritage Pacific Financial, LLC v. Monroy¿ (2013) 215 Cal.App.4th 972, 993.) ¿Pleading a contract by its legal effect "is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions." (Id.)

Under the breach of agreement cause of action, Petitioners allege: Plaintiff and Defendants entered into an agreement whereby Defendants agreed to perform moving services for agreed pricing and conditions. Plaintiff fully performed or substantially performed all obligations required. Defendants materially breached the agreement by: · charging amounts inconsistent with the quoted agreement; · unlawfully withholding Plaintiff's property; · imposing unauthorized storage fees; · threatening unlawful auction and liquidation; · and failing to release Plaintiff's property. As a direct result, Plaintiff suffered damages according to proof. (Amended Complaint p. 7.)

Petitioners also allege that "[o]n or about June 20TH 2024, Plaintiff contracted with Defendants Kobe Moving, Inc. and Zerbib to transport and store Plaintiff's personal property", "Plaintiff fully performed all obligations required of him, except as excused by Defendants' misconduct", "[w]ithout legal justification, Defendants wrongfully retained Plaintiff's possessions and threatened to sell them at auction" and "Plaintiff repeatedly demanded the return of his property, but Defendants refused." (Amended Complaint P.P. 8-11.)

Petitioners attach no contract to the amended complaint. Petitioners do not specify whether the contract was oral or written. Further, assuming the contract was written, Petitioners fail to plead the contract by its legal effect. Finally, the allegations on page 2 of the amended complaint indicate Petitioners entered into a contract with Defendants Kobe Moving, Inc. and Zerbib, not Defendant. The demurrer on this ground is sustained.

Unjust Enrichment/Restitution:

Petitioners allege a cause of action for unjust enrichment/restitution. (Amended Complaint pp. 7-8.) Defendant does not argue in the memorandum of points and authorities that Petitioners fail to state facts sufficient to state a cause of action for unjust enrichment/restitution against Defendant. The court need not address this issue further. The demurrer on this ground is overruled.

Conversion:

Petitioners allege a cause of action for conversion. (Amended Complaint pp. 8-9.) Defendant does not argue in the memorandum of points and authorities that Petitioners fail to state facts sufficient to state a cause of action for conversion against Defendant. The court need not address this issue further. The demurrer on this ground is overruled.

Civil Conspiracy:

Defendant argues Plaintiff fails to allege facts showing a civil conspiracy. (Motion pp. 17-18.) The amended complaint's caption mentions a cause of action for civil conspiracy. (Amended Complaint p. 1.) But Petitioners do not appear to allege a civil conspiracy cause of action in the amended complaint's body. The demurrer on this ground is sustained.

IX. 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 sustained Defendant's First Demurrer because the petition was uncertain. (08/21/25 Minute Order pp. 1, 7.) The court sustained the Hanover Demurrer because the petition was uncertain. (10/30/25 Minute Order pp. 2, 6.) This is Petitioners' third attempt to resolve issues relating to demurrers. The court, however, finds there is a reasonable possibility Petitioners can amend the complaint to state sufficient causes of action and will grant Petitioners one final opportunity to amend the complaint to state sufficient causes of action.

X. CONCLUSION

For the foregoing reasons, the court denies the special motion to strike pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP). The court sustains the demurrer to the fraudulent inducement/bait-and-switch scheme, intentional misrepresentation, concealment/fraudulent concealment, constructive fraud, negligent misrepresentation, breach of agreement, and civil conspiracy causes of action. The court overrules the demurrer to the violation of California Business & Professions Code section 17200, et seq., unjust enrichment/restitution, and conversion causes of action.

Dated: August 20, 2026 _______- ___________________________ Hon. Eric Harmon Judge of the Superior Court | Home -->)" -->