Judge: Andrew E. Cooper, Case: 24CHCV00362, Date: 2024-09-10 Tentative Ruling

Case Number: 24CHCV00362    Hearing Date: September 10, 2024    Dept: F51

DEMURRER

Demurrer filed: 5/23/24

MOVING PARTY: Defendants Michael J. Doubet; and Carter R. Taylor (collectively, “Defendants”)

RESPONDING PARTY: Plaintiff Jamie Mahjobi, in pro per (“Plaintiff”)

NOTICE: OK 

RELIEF REQUESTED: Defendants demur to Plaintiff’s entire first amended complaint (“FAC”).

TENTATIVE RULING: The demurrer is sustained with 30 days leave to amend.

BACKGROUND 

Plaintiff alleges that Defendants, attorneys who represent nonparty David Fermelia in an underlying case, “intrude[d] into [the] private record of plaintiff such as medical, personal, financial and other privileged and private information” on an unspecified date. (FAC ¶ 1.)

On 2/6/24, Plaintiff filed her original complaint against Defendants, alleging the following causes of action: (1) Intrusion into Privacy; and (2) Harassment. On 4/17/24, Plaintiff filed her FAC, alleging against Defendants the following causes of action: (1) Invasion of Privacy; (2) Aiding and Abetting Invasion of Privacy; (3) Intentional and Negligent Infliction of Emotional Distress; (4) Harassment; (5) Defamation; (6) Violation of Civil Rights; and (7) Conspiracy to Interfere with Civil Rights.

On 5/23/24, Defendants filed the instant demurrer and request for judicial notice. On 8/28/24, Plaintiff filed her opposition and objections thereto. On 9/3/24, Defendants filed their reply.

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ANALYSIS

As a general matter, a party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action” and is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) and (f).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

“A demurrer tests the pleading alone, and not the evidence or 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. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Here, Defendants demur to the entire FAC on the bases that it is uncertain and that Plaintiff fails¿to allege facts sufficient to state any cause of action therein.

A.    Meet-and-Confer

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Here, Defendant’s counsel declares that he sent Plaintiff a meet and confer letter on 3/14/24 discussing the issues raised in Defendant’s demurrer and special Anti-SLAPP motion to strike against Plaintiff’s original complaint. (Decl. of Michael J. Doubet, ¶¶ 45–47.) However, counsel fails to make any showing of any meet and confer efforts regarding defects in Plaintiff’s FAC. Nevertheless, “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. § 430.41, subd. (a)(4).)

B.     Litigation Privilege

As a preliminary matter, Defendants argue that “Plaintiff’s causes of action are barred by the litigation privilege enumerated under Civil Code section 47.” (Dem. 16:9–10.) Civil Code section 47 makes privileged any publication or communication made “in any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law.” (Civ. Code ¶ 47, subd. (b); Silberg v. Anderson (1990) 50 Cal.3d 205, 212 [“The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.”].)

Here, Defendants argue that the instant action is based on their representation of nonparty David Fermelia in an underlying medical malpractice action filed by Plaintiff, Los Angeles Superior Court Case No. 20STCV36767, namely that Defendants served document subpoenas to obtain Plaintiff’s medical records in the underlying action. Defendants argue that “it is clear that any cause of action in the FAC, as claimed by Plaintiff, is in relation to the basic discovery relative to the underlying lawsuit and the conduct of Moving Defendants made within their capacity as attorneys in the underlying lawsuit. Moving Defendants have had zero contact or interactions with Plaintiff outside of the aforementioned conduct, and therefore Plaintiff’s allegations fit squarely within the litigation privilege.” (Dem. 18:1–5.)

Plaintiff argues in opposition that the litigation privilege set forth under Civil Code section 47 is inapplicable because “this is not about anything that was communicated in court. This is about a plan by defendants and their clients to intrude, abuse, defame , intimidate the plaintiff into submission.” (Pl.’s Opp. 4:11–14.) Looking to the allegations made in the FAC, the Court observes that Plaintiff generally alleges that Defendants “invade and intruded into plaintiff’s privacy, in that intrude into private record of plaintiff such as medical, personal, financial and other privileged and private information including Department of Social Services and transmitted that information to third parties.” (FAC ¶ 1.) While the Court agrees with Defendants that the litigation privilege protects Defendants’ discovery efforts in the underlying action from being challenged in the instant action, this argument hinges on matters extrinsic to the four corners of the FAC, which makes no direct reference to discovery or the subject subpoenas. However, as set forth below, Plaintiff has not sufficiently alleged facts to constitute any of the causes of action in her FAC.

C.    Invasion of Privacy

Plaintiff’s first cause of action alleges Invasion of Privacy, and her second cause of action alleges Aiding and Abetting Invasion of Privacy. “An actionable claim [for invasion of privacy] requires three essential elements: (1) the claimant must possess a legally protected privacy interest; (2) the claimant’s expectation of privacy must be objectively reasonable; and (3) the invasion of privacy complained of must be serious in both its nature and scope.” (County of Los Angeles v. Los Angeles County Employee Relations Commission (2013) 56 Cal.4th 905, 926.)

Patients have a right to privacy in their medical information under the California Constitution, although this right is not absolute. Invasion of a privacy interest is not a violation of the California constitutional right to privacy when the invasion is justified by a competing interest. (Fett v. Medical Bd. of Cal. (2016) 245 Cal.App.4th 211, 221.) Matters that would otherwise be protected by the constitutional right to privacy are discoverable only if they are directly relevant to the plaintiff’s claim and essential to a fair resolution of the action. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.)

Here, Plaintiff alleges that she holds a right to privacy under the California Constitution, and that Defendants “invade and intruded into plaintiff’s privacy, in that intrude into private record of plaintiff such as medical, personal, financial and other privileged and private information including Department of Social Services and transmitted that information to third parties.” (FAC ¶ 1.)

Defendants argue that “here, Plaintiff’s medical records from various medical providers are relevant to this instant action for they contain information about injuries and subsequent medical treatment as a result of the injuries Plaintiff is suing for in the underlying lawsuit.” (Dem. 19:12–14.) “Despite the fact that Plaintiff herself has placed her physical and mental condition at issue, Plaintiff now supposedly contends that moving Defendants violated her privacy rights by virtue of seeking her medical records and medical billing records in a lawsuit, voluntarily filed, alleging medical negligence.” (Id. at 19:20–23.) “The Court in the underlying lawsuit ruled that her medical records and medical billing records are subject to discovery, and that Defendants, acting in capacity as attorneys representing a Defendant in the underlying lawsuit, were permitted to obtain Plaintiff’s medical and billing records. … the Court in the underlying lawsuit has already ruled that Plaintiff’s medical conditions are at issue and are discoverable.” (Id. at 20:1–6.)

In opposition, Plaintiff argues that “here, the primary issue Is not only malicious subpoenas but actions taken ‘Outside the scope of the subpoenas’ to obtain private and confidential information.” (Pl.’s Opp. 5:19–20.) The Court again notes that the FAC contains no specific allegations concerning the discovery efforts taken by Defendants to obtain Plaintiff’s medical records in the underlying medical malpractice action. However, to the extent that Plaintiff disagrees with Judge Long’s substantive rulings on discovery matters in the underlying LASC Case No. 20STCV36767, this Court lacks the jurisdiction to interfere with those rulings. (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 631 [“one department of the superior court cannot enjoin, restrain or otherwise interfere with the judicial act of another department in the same court.”].) To the extent that Plaintiff argues that Defendants invaded her privacy through any other act or omission, such conduct is not sufficiently alleged in the FAC.

Based on the foregoing, the Court finds that Plaintiff has not alleged facts sufficient to constitute a cause of action for Invasion of Privacy or Aiding and Abetting Invasion of Privacy. Accordingly, the demurrer is sustained against Plaintiff’s first and second causes of action.

D.    Intentional Infliction of Emotional Distress

Plaintiff’s third cause of action alleges against Defendants Intentional and Negligent Infliction of Emotional Distress. “The negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law.” (Spates v. Dameron Hosp. Ass’n (2003) 114 Cal.App.4th 208, 213.)

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) “In order to avoid a demurrer, the plaintiff must allege with ‘great[ ] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160–161.)

Here, Plaintiff alleges that “by reckless and malicious intrusion in to plaintiff’s privacy, defendants caused and knew that that their action would cause plaintiff mental and emotional injuries.” (FAC ¶ 8.) “Defendant’s action was with malice, outrageous and was known to named defendants as attorneys to violate plaintiff’s Constitutional right of privacy, and did so with careless disregard of their sworn duties.” (Id. at ¶ 9.)

Defendants argue that “the alleged conduct stems from a protected activity, the conduct of Moving Defendants made within their capacity as attorneys in the underlying lawsuit (See Code of Civil Procedure section 47(b)), and the alleged conduct cannot meet the requite intention to either inflict injury or engage in conduct with the realization that injury will result.” (Dem. 21:6–9, citing Christenson v. Superior Court (1991) 54 Cal.3d 868, 903 [“The defendant must have engaged in ‘conduct intended to inflict injury or engaged in with the realization that injury will result.’”].)

Plaintiff argues in opposition that “the conduct is by definition outrageous , violation of constitution rights , that is known to lead to mental and emotional distress.” (Pl.’s Opp. 6:11–12.) However, the Court notes that Plaintiff cites to no legal authority standing for her proposition that “the conduct is by definition outrageous.” (Ibid.) Indeed, the Court reiterates that despite Plaintiff’s failure to allege that her action stems from Defendants’ discovery efforts in the underlying action, to the extent that it does, this Court may not disturb Judge Long’s rulings on those discovery matters. To the extent that Plaintiff argues that Defendants engaged in any other extreme or outrageous conduct through any other act or omission, giving rise to a cause of action for Intentional Infliction of Emotional Distress, such conduct is not sufficiently alleged in the FAC. Nor has Plaintiff pled the requisite elements of a cause of action for Negligent Infliction of Emotional Distress.

  Based on the foregoing, the Court finds that Plaintiff has not alleged facts sufficient to constitute a cause of action for Intentional and Negligent Infliction of Emotional Distress. Accordingly, the demurrer is sustained against Plaintiff’s third cause of action.

E.     Harassment

Plaintiff’s fourth cause of action alleges against Defendants Harassment. Civil harassment includes “a knowing and willful course of harassing conduct directed at a specific person that serves no legitimate purpose.” (CCP 527.6(b)(3).) Here, Plaintiff alleges that “Defendant’s conduct which is continuing ,was and is intended to harass , abuse defame, violate civil and conditional rights, cause anguish , intimidate in to causing the plaintiff to relinquish her right to take action against Fermelia in the malpractice action.” (FAC ¶ 11.)

Defendants argue that “Plaintiff fails to identify any course of conduct, directed at a specific person, that serves no legitimate purpose, that would cause a reasonable person to suffer substantial emotional distress, which is not a constitutionally protected activity.” (Dem. 22:4–7.) “Not only is the presumed conduct done for a legitimate purpose, in defending Dr. Fermelia in the underlying lawsuit and in the course of basic civil discovery, but the presumed conduct is a constitutionally protected activity.” (Id. at 22:10–12.)

The Court notes that at a demurrer proceeding, the Court does not weigh the merits of a plaintiff’s factual allegations, but their sufficiency. Here, the Court declines to make any finding regarding the legitimacy of Defendants’ conduct at this stage. However, as set forth above, the Court finds that Plaintiff has not sufficiently alleged the acts or omissions giving rise to the instant action.

Based on the foregoing, the Court finds that Plaintiff has not alleged facts sufficient to constitute a cause of action for Harassment. Accordingly, the demurrer is sustained against Plaintiff’s fourth cause of action.

F.     Defamation

Plaintiff’s fifth cause of action alleges Defamation against Defendants. The elements of a cause of action for defamation are: “(1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. The defamatory statement must specifically refer to, or be of and concerning, the plaintiff.” (John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312.)

Here, Plaintiff alleges that “Defendants falsely ,with malice and to intrude and obstruct due administration of justice and deprive the plaintiff of her right, transmitted and continue to transmit false and malicious allegations that plaintiff’s malpractice action against Fermelia is motivated by intend [sic] to Abuse and Harass Fermelia.” (FAC ¶ 13.)

To the extent that the alleged defamatory statements giving rise to Plaintiff’s cause of action stem from Defendants’ representation of Dr. Fermelia in the underlying action, the Court finds that these communications are protected by the litigation privilege under Civil Code 47, as discussed above. However, to the extent that the alleged defamatory statements are not within the scope of the litigation in the underlying action, the Court agrees with Defendants that Plaintiff has failed to sufficiently allege as such. “Without the precise content of the communication, one cannot discern whether it was a statement of fact, opinion, or hyperbole, nor whether it was true or false.” (Dem. 23:10–12.)

Based on the foregoing, the Court finds that Plaintiff has not alleged facts sufficient to constitute a cause of action for Defamation. Accordingly, the demurrer is sustained against Plaintiff’s fifth cause of action.

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G.    Violation of Civil Rights

Plaintiff’s sixth cause of action alleges Violation of Civil and Constitutional Rights against Defendants, and her seventh cause of action alleges Conspiracy to Interfere with Civil Rights, 42 U.S.C. 1985. Here, Plaintiff alleges that Defendants acted to prevent Plaintiff from retaining an attorney. (FAC ¶¶ 16–19.)

As Defendants observe, “Plaintiff’s cause of action for Violation of Civil Rights has no reference to any statute or case law. Based on the allegations contained within the FAC, the only statute implicated is 42 U.S.C. Section 1985, as it is cited in Plaintiff’s cause of action of conspiracy to interfere with civil rights.” (Dem. 23:26–28.) Defendants further argue that “Plaintiff has merely made conclusory allegations that a conspiracy existed and has failed to plead facts in support of her claim.” (Id. at 24:11–12.)

Plaintiff argues in opposition that “directing defendant Fermelia to sign a declaration known to be Perjury and other actions that may rise to the intimidation for personal gain to interfere with due administration of justice, does in fact violate Civil rights and constitute a conspiracy.” (Pl.’s Opp. 7:15–17.) However, the Court notes that Plaintiff fails to cite to any legal authority supporting this contention. Furthermore, the Court agrees with Defendants that the FAC is uncertain as to which civil or Constitutional rights Defendants allegedly violated, or what acts or omissions constituted any such violations.

Based on the foregoing, the Court finds that Plaintiff has not alleged facts sufficient to constitute a cause of action for Violation of Civil and Constitutional Rights or Conspiracy to Interfere with Civil Rights. Accordingly, the demurrer is sustained against Plaintiff’s sixth and seventh causes of action.

H.    Leave to Amend

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).¿

Here, the Court notes that this is the first demurrer heard in this action, and Plaintiff explicitly seeks leave to amend her FAC “if for any reason the court finds that any cause of action is deficient.” (Pl.’s Opp. 8:7–9.) Accordingly, under the Court’s liberal policy of granting leave to amend, the Court grants Plaintiff 30 days leave to amend the complaint to cure the defects set forth above.

Plaintiff is cautioned that to the extent that she intends to amend the FAC to allege any wrongdoing within the scope of the underlying case (LASC Case No. 20STCV36767) her claims are barred by the litigation privilege set forth by Civil Code section 47, and this Court also lacks any jurisdiction to disturb Judge Long’s rulings in the underlying action. Plaintiff is therefore cautioned that “following an order sustaining a demurrer … with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. … The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.)

CONCLUSION 

The demurrer is sustained with 30 days leave to amend.