Judge: Christopher K. Lui, Case: 21STCV38708, Date: 2023-08-24 Tentative Ruling
Case Number: 21STCV38708 Hearing Date: August 24, 2023 Dept: 76
Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter. As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.
Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.
Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.
Plaintiff alleges that Defendant engaged in immigration consultant activities which violate the Immigration Consulting Act. Plaintiff seeks injunctive relief.
Defendant Lisett C. Gonzalez moves for summary judgment.
TENTATIVE RULING
Defendant
Lisett C. Gonzalez’s motion for summary judgment is DENIED.
ANALYSIS
Motion For Summary Judgment
Request For Judicial Notice
Defendant requests that the Court
take judicial notice of the following: (1) Exhibit “3” – Immigration
Consultants Act codified in Business & Professions Code §22440-§22449; (2) Exhibit
“4” – official Verification from City of Downey; (3) Exhibit “7” – Lisett C.
Gonzalez’s employment records from the City of Los Angeles; (4) Exhibit “8” –
Bond History for Immigration Consultant Lisett C. Gonzalez from the California
Secretary of State from 8/01/2012-8/1/2014 and subsequent renewal.
Request No. 1 is GRANTED per Evid.
Code, § 452(b).
Requests Nos. 2 and 3 are DENIED. Evid. Code § 452 provides:
“Judicial notice may be taken of the following matters to the extent that they
are not embraced within Section 451: .
. . (c) Official
acts of the legislative, executive, and judicial departments of the United
States and of any state of the United
States.” (Bold emphasis added.)
Under Evidence Code section 452,
judicial notice may be taken of decisional law and of public and private
official acts of any state. This provision is also applicable to counties since
they are, of course, legal departments of the state. (Watson v. Los Altos
School Dist., 149 Cal.App.2d 768, 772 [308 P.2d 782].) Cities, however, are municipal corporations which are distinct
individual entities and are not connected political subdivisions of the states.
As such, they do not have the legal status of counties. (Otis v. City of Los
Angeles, 52 Cal.App.2d 605, 611-612 [126 P.2d 954].) Therefore, the trial court properly refused to take
judicial notice of the records of the city's board of rights.
(Marino v. Los Angeles (1973) 34 Cal.App.3d 461, 465 [bold emphasis
added].)
However, the Court will consider
these documents as evidence, subject to any evidentiary objections asserted.
Request No. 4 is GRANTED. The Court
may take judicial notice of a business entity’s corporate status as reflected
in the Secretary of State’s records. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1286; Pedus
Bldg. Servs. v. Allen (2002)
96 Cal.App.4th 152, 156 n.2.)
Discussion
Defendant Lisett C. Gonzalez moves
for summary judgment as to the Complaint.
The Complaint states a single cause
of action, seeking injunctive relief for violation of the Immigration
Consultant Act, codified at Business and Professions Code, § 22440 et seq.
The Complaint alleges as follows:
12. Defendants are engaged in the business of an immigration
consultant.
13. Defendants, in addition to the conduct set forth above, have
engaged in the
following conduct:
a. Not practicing
in conformity with the ICA.
b. Advising clients
how to answer on immigration forms.
c. Holding out as
an attorney to the public.
d. Providing legal
advice.
e. Failing to
submit a background check to the Secretary of State.
f. Failing to
provide a written contract meeting the requirements of the ICA.
g. Failing to
provide receipts and accountings in conformity with the ICA.
h. Failing to
conspicuously display the notices required under the ICA.
i. Failing to
provide the written disclosures required under the ICA.
j.
Failing to conspicuously state in advertisements that Defendants are not
attorneys
k. Translating
from English to another language the words proscribed by the ICA,
including, without
limitation, the words "notary," "licensed," and
"attorney."
l. Failing to submit to the
Department of Justice fingerprint images for the purposes background check.
m. Failing to
maintain a client trust account as required under the ICA.
n. Demanding
advance payment for certain services as proscribed by the ICA.
o. Failing to
maintain a bond of $100,000.
p. Advertising as
an immigration consultant without maintaining the above-
mentioned bond.
q. Making
false and misleading statements to a client while providing services to the client.
r. Making oral
guarantees and promises to a client, and/or written guarantees and
promises not based
in any supportable fact.
s. Making a
statement that Defendants can secure special favors from government
officials for
clients.
t. Charging a fee
for referrals.
14. As such, Plaintiff seeks a judgment permanently enjoining
Defendants from
violating the above-listed
provisions of the ICA, and, from engaging in the business of an
immigration consultant.
15. Pursuant to section 22446.5(a) of the Business and
Professions Code, Plaintiff is entitled to recover its reasonable attorneys'
fees and costs in bringing this action.
(Complaint, ¶¶ 12 – 15 [bold
emphasis added].)
Moving
Defendant does not demonstrate in her moving papers that Plaintiff is not
entitled to recover reasonable attorney’s fees and costs in bringing this
action pursuant to Business and Professions Code, § 22446.6(a), which states as
follows:
(a) A person
claiming to be aggrieved by a violation of this chapter by an immigration
consultant may bring a civil action for injunctive relief or damages, or both. If
the court finds that the defendant has violated a provision of this chapter,
it shall award actual damages, plus an amount equal to treble the amount of
actual damages or one thousand dollars ($1,000) per violation, whichever is
greater. The court shall also grant a prevailing plaintiff reasonable
attorneys’ fees and costs.
(Bus..
& Prof. Code § 22446.5 [bold emphasis added].)
Moreover, the fact that Defendant
voluntary ceased her immigrant consultant practice does not necessarily render
injunctive relief improper: (Robinson v. U-Haul Co. of California
(2016) 4 Cal.App.5th 304, 314-17.) While Defendant does cite some evidence that
she did not violate the Immigration Consultant Act in some respects (see UF
Nos. 5 – 11), she does not negate every violation alleged at ¶¶ 13(a) – (t) of
the Complaint. As such, Defendant has not met her initial burden as the moving
defendant on summary judgment, and the burden does not shift to Plaintiff to
raise a triable issue of material fact.
A summary judgment or summary
adjudication motion must address the “issues framed by the pleadings since it
is these allegations to which the motion
must respond by establishing a complete defense or otherwise showing
there is no factual basis for relief on any
theory reasonably contemplated by the opponent's pleading.” (Carleton v. Tortosa (1993) 14
Cal.App.4th 745, 753 [bold emphasis and underlining added].)
Accordingly, the motion for summary
judgment is DENIED.