Nanda v. Hack CA1/1

Filed 12/17/14 Nanda v. Hack CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

ASHWIN NANDA, Plaintiff and Appellant, A140647 v. MICHAEL HACK et al, (San Francisco County Super. Ct. No. CGC-12-527591) Defendants and Respondents.

Plaintiff Ashwin Nanda, D.D.S., appeals a judgment of dismissal entered after the trial court sustained a demurrer filed by Michael Hack, D.M.D., and the other defendants. He contends the trial court erred in sustaining the demurrer on the basis that the parties’ dispute was conclusively resolved in a binding arbitration proceeding. We disagree and affirm. BACKGROUND Dr. Nanda is a dental surgeon who subleased property in San Francisco from defendants for his dental practice. In his complaint, he alleged defendants breached subleasing contracts, and he sought injunctive relief and damages totaling $3.59 million. The subleasing contracts included a sublease agreement dated March 5, 2005 (Sublease), and an addendum to the Sublease dated November 2007 (Addendum), which the parties entered after “a dispute [arose] between Sublessor and Sublessee as to the relative rights and obligations of the Sublessee under the Sublease.” The verified complaint alleged that “[o]n February 29, 2012[,] Dr. Nanda served Dr. Hack with an arbitration demand . . . assert[ing] his rights to arbitration and recovery of liquidated damages at the rate of

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$2,000 per day from the period December 1, 2005 to October 31, 2010. [¶] . . . [¶] . . . On July 24, 2012, the various issues and disputes of the parties were arbitrated in front of Arbitrator Shelley A. Gordon. The arbitration was unsuccessful and resulted in an erroneous, rushed (?); denial to exchange no rebuttal; decision in favor of Dr. Hack.” Defendants filed a demurrer to the complaint asserting that Dr. Nanda’s action was barred by the previous arbitration. They further argued that Dr. Nanda should not be given leave to amend the complaint because he acknowledged that arbitration had occurred and was resolved against him. The next month, defendants followed up by filing a motion for sanctions against Dr. Nanda under Code of Civil Procedure, section 128.71 on the ground that the complaint was frivolous. After a hearing, the trial court sustained the demurrer without leave to amend2 and granted defendants’ motion for sanctions in the form of attorney fees and costs in the sum of $4,900.3 A judgment in defendants’ favor was subsequently entered. DISCUSSION We apply “two separate standards of review on appeal from a judgment of dismissal after a demurrer is sustained without leave to amend. [Citation.] We first review the complaint de novo to determine whether the complaint alleges facts sufficient to state a cause of action under any legal theory or to determine whether the trial court erroneously sustained the demurrer as a matter of law. [Citation.]” (Aguilera v. Heiman (2009) 174 Cal.App.4th 590, 595.) In reviewing the complaint, we may consider any exhibits attached to the complaint as well as any matters that must or may be judicially noticed. (See Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400.)