Judge: Daniel M. Crowley, Case: 22SMCV00649, Date: 2023-03-21 Tentative Ruling
Case Number: 22SMCV00649 Hearing Date: March 21, 2023 Dept: 207
Background
This is an action for the partition of real estate located
at 10337 Wilshire Boulevard, Los Angeles, California 90024. Plaintiff Chateau
de Monte Cristo, LLC, (“Plaintiff”) purports to own a 99.98% interest in the
subject property, with the remaining .02% interest held by Defendant Justus
Senftner. Plaintiff’s operative Complaint, filed May 6, 2022, asserts a single
cause of action for partition. Defendant Martinez Law Group, LLP was named as a
Defendant in this action as it claims an interest in the property by virtue of
an attorney’s fee lien. On November 28, 2022, Martinez Law Group
(“Cross-Complainant”) filed a Cross-Complaint against Plaintiff and Curtis
Olson (collectively “Cross-Defendants”) alleging causes of action for fraud,
fraud on creditors, violation of Penal Code § 496, constructive trust,
cancellation of written instruments, declaratory relief, and unjust enrichment.
Cross-Defendants now demurrer to each of these causes of
action pursuant to Code Civ. Proc. §§ 430.10(e)-(f) arguing they fail to state
sufficient facts to constitute a cause of action against them and are
uncertain. Cross-Complainant opposes the demurrer.
Request for Judicial Notice
Cross-Defendants request the Court take judicial notice of
various court records in other litigation involving the parties. Cross-Complainant
requests the Court take judicial notice of court filings from other litigation
and public records from the Los Angeles Records Office. Courts can take
judicial notice of the existence of Court records, including Court dockets. (Arce
ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471,
483; Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 790
n.10.) The Court may take judicial notice of the records of any Court of record
in the United States. (Salazar v. Upland Police Dept.¿(2004) 116
Cal.App.4th 934, 946.) Courts may take judicial notice of official acts and
public records but cannot take judicial notice of the truth of the matters
stated therein. (In re Joseph H.¿(2015) 237 Cal.App.4th 517, 541.)
Cross-Defendants’ requests are unopposed and are GRANTED.
Cross-Defendants object to Cross-Complainant request for judicial notice on the
basis of relevance. Cross-Defendants’ objection is overruled and
Cross-Complainant’s request for judicial notice is GRANTED.
Legal
Standard
When considering demurrers, courts read the allegations
liberally and in context. (Wilson v. Transit Authority of City of Sacramento
(1962) 199 Cal.App.2d 716, 720-21.) 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 on 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. (Id.) However, it does not accept as true
deductions, contentions, or conclusions of law or fact. (Stonehouse Homes
LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)
The general rule is that the plaintiff need only allege
ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles
(2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter
of pleading, even as against a special demurrer, is that his complaint set
forth the essential facts of the case with reasonable precision and with
sufficient particularity to acquaint the defendant with the nature, source and
extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp.
(1945) 26 Cal.2d 149, 156-157.)
A special demurrer
for uncertainty under Section 430.10(f) is disfavored and will only be
sustained where the pleading is so unintelligible that a defendant cannot
reasonably respond—i.e., cannot reasonably determine what issues must be
admitted or denied, or what counts or claims are directed against him/her. (Khoury
v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even
if the pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Id.)
Analysis
1. Meet and
Confer Requirement
The Court finds Cross-Defendants
have satisfied the meet and confer obligations imposed by Code Civ. Proc. § 430.41. (Shaw Decl. at ¶¶2-8.)
2. Litigation
Privilege
Cross-Defendants argue each of Cross-Complainant’s
causes of action are barred by the litigation privilege as codified at Civil
Code § 47. The Court agrees.
Under Civil Code § 47(b), a privileged
publication or broadcast is one made “[i]n 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 and reviewable pursuant
to Chapter 2…of Title 1 of Part 3 of the Code of Civil Procedure…” The
litigation privilege applies to communications made (1) in a judicial or quasi-judicial
proceeding; (2) by litigants or other participants authorized by law; (3) to achieve
the objects of litigation; and (4) with some connection or logical relation to the
action. (Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 681-82.) The
privilege is not limited to statements made during a trial or other proceeding
but may extend to steps taken prior to the commencement of litigation. (Id.
at p. 682.) “The test is: ‘To be protected by the litigation privilege, a communication
must be “in furtherance of the objects of the litigation.” [Citation.] This is “part
of the requirement that the communication be connected with, or have some logical
relation to, the action, i.e., that it not be extraneous to the action.” [Citation.]’
” (Id.)
“Although originally enacted with reference to defamation actions
alone [citation], the privilege has been extended to any communication, whether
or not it is a publication, and to all torts other than malicious prosecution.”
(Edwards v. Centex Real Estate Corp. (1997) 53 Cal. App. 4th 15, 29; Bonni
v. St. Joseph Health System (2022) 83 Cal.App.5th 288, 306 [“Courts have consistently
emphasized the privilege, when applicable, is absolute and precludes all
tort theories of recovery except malicious prosecution”]; Kenne v. Stennis (2014)
230 Cal.App.4th 953, 964-965.) The privilege is
so broad it applies to the presentation of potentially false evidence. (Seltzer
v. Barnes (2010) 182 Cal.App.4th 953, 969-70.) Furthermore, “where the cause of action is based on a
communicative act, the litigation privilege extends to those noncommunicative
actions which are necessarily related to that communicative act.” (Rusheen
v. Cohen (2006) 37 Cal. 4th 1048, 1052.)
“The purposes of the litigation privilege are to afford litigants
and witnesses free access to the courts without fear of being harassed by later
derivative tort actions; encourage open channels of communication and zealous advocacy;
promote complete and truthful testimony; give finality to judgments; and avoid unending
litigation.” (People v. Persolve, LLC (2013) 218 Cal.App.4th 1267, 1274.)
A demurrer is properly sustained without leave to amend where a party’s claims
are barred by the litigation privilege. (Tom Jones Enterprises, Ltd. v.
County of Los Angeles (2013) 212 Cal.App.4th 1283, 1297.) Any
doubt about whether the Litigation Privilege applies is resolved in favor of
applying it. (Civ. Code § 47(b); Contreras v. Dowling (2016) 5 Cal. App.
5th 394.)
In Rusheen, supra, 37 Cal.4th
1048, the California Supreme Court held “Because the litigation privilege protects
only publications and communications, a ‘threshold issue in determining the applicability’
of the privilege is whether the defendant's conduct was communicative or noncommunicative.
[Citation.] The distinction between communicative and noncommunicative conduct hinges
on the gravamen of the action. [Citations.] That is, the key in determining whether
the privilege applies is whether the injury allegedly resulted from an act that
was communicative in its essential nature. [Citations.]” (Id. at 1058.)
Each of Cross-Complainant’s claims
here are premised on the allegation that Cross-Defendants improperly obtained
title to the subject property by misleading various Courts in prior litigation
through the submission of falsified evidence or misleading argument. The
general allegations incorporated into every one of Cross-Complainant’s causes
of action are focused on Cross-Defendants’ allegedly fraudulent or misleading
submissions to Courts in prior litigation. (CC at ¶12 [“Olson mislead the Court
with his Reply Brief, over 600 pages, in support of attorney’s fees, improperly
introduced ‘new’ falsified real estate exhibits, and causing the Court to
believe that Jane Doe, not Wilcox, owned the subject property”]; ¶13 [“Olson
fraudulently convinced the Court that Jane Doe was lying”]; ¶14 [alleging
Cross-Defendant “led the court down a rabbit hole of wild accusations that bore
little semblance to reality”]; ¶15 [alleging Cross-Defendant’s counsel
“submitted altered Realtor.com website exhibits” to the Court]; ¶16 [alleging
Cross-Defendant made “fraudulent and inflammatory misrepresentations to the
Court”]; ¶19 [“the Court had been fraudulently hoodwinked by Olson to believe
that Jane Doe owned the Property”].
These allegations of fraud also
specifically underpin each of the separate causes of action pled by
Cross-Complainant. (Id. at ¶27 [basing fraud claim on assertion
Cross-Defendants obtained the title to the subject property through the alleged
fraudulent statements to Courts in prior proceedings]; ¶¶31-32 [basing second
cause of action for fraud on creditors on allegations that Cross-Defendants
misled the Court and submitted fraudulent documents]; ¶39 [basing third cause
of action under Penal Code § 496 on allegation that Cross-Defendants
“unlawfully stole title to the Property” by fraudulently misleading the Court];
¶43 [basing fourth cause of action on allegation that Cross-Defendants
“committed multiple frauds upon the court”]; ¶51 basing fifth cause of action
on “the fraudulent and otherwise wrongful manner in which Cross-Defendants …
obtained their alleged right, claim or interest to the Property”]; ¶55 [seeking
declaratory relief nullifying Cross-Defendants’ ownership interest as procured
through fraud]; ¶57 [claiming Cross-Defendants were unjustly enriched by the
“multiple frauds” perpetrated on the Court].)
The gravamen of the
Cross-Complaint and each of its causes of action is that Cross-Complainant was
harmed by Cross-Defendants’ allegedly misleading and fraudulent statements and
exhibits submitted to the Court in prior litigation. The Court finds these acts
are communicative in their nature as they concern communications made by
Cross-Defendants to the Court, to Cross-Complainant, and to third parties.
Cross-Complainant offers no
argument as to the applicability of the litigation privilege, and thus does not
appear to dispute its causes of action are based on communicative acts alleged
to have been taken by Cross-Defendants in furtherance of their goals in other
litigation. Based on its review of the Cross-Complaint, the Court finds each of
the causes of action asserted therein are barred by the litigation privilege
and thus SUSTAINS Cross-Defendants’ demurrer to the entire Cross-Complaint for
failure to state facts sufficient to constitute a cause of action against
either Cross-Defendant. Cross-Complainant
bears the burden of demonstrating it can cure the defects in the
Cross-Complaint through further amendment. (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.) Cross-Complainant has made no such showing here.
Cross-Complainant does not argue it can provide an alternate basis for its
causes of action which would not be barred by the litigation privilege under Civil Code § 47.
For these reasons the Court does not
find any reasonable possibility that Cross-Complainant can state a cause of
action which is not barred by the litigation privilege and thus the Court
sustains Cross-Defendant’s demurrer without leave to amend.
As the Court has determined each
of Cross-Complainant’s causes of action are barred by the litigation privilege,
it need not address Cross-Defendants’ alternate arguments regarding the
sufficiency of each individual cause of action and declines to do so.
Conclusion
Cross-Defendants’ demurrer to the entire Cross-Complaint is
SUSTAINED without leave to amend.