Judge: Daniel M. Crowley, Case: 22STCV10646, Date: 2023-05-17 Tentative Ruling

Case Number: 22STCV10646    Hearing Date: May 17, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Anna Sahak’s demurrer to Plaintiff Robert Ware’s first amended complaint is sustained as to the 1st cause of action without leave to amend.  Defendant is directed to submit a judgment to the Court.

Defendant Anna Sahak’s motion to strike is denied as moot.

Defendant Anna Sahak (“Sahak”) (“Defendant”), in her official capacity as a Los Angeles County employee, demurs to pro per Plaintiff Robert Ware’s (“Ware”) (“Plaintiff”) first amended complaint (“FAC”).  (Notice of Demurrer, pgs. 1-3; C.C.P. §§430.10(e), (f).)  Specifically, Defendant demurs on the basis that Plaintiff’s 1st cause of action for “intentional tort” fails to state facts sufficient to constitute a cause of action against Defendant and is uncertain due to ambiguity.  (Notice of Demurrer, pg. 3.)

Defendant moves to strike portions of Plaintiff’s FAC.  (Notice MTS, pgs. 1-2; C.C.P. §§435 et seq.)  Specifically, Defendant moves to strike the words “punitive damages” at ¶14a(2) on page 3 of Plaintiff’s FAC.  (Notice MTS, pg. 2.)

Request for Judicial Notice

Defendant’s 8/30/22 request for judicial notice as to the second amended complaint in LASC Case No. BC675757, Ware v. County of Los Angeles (D-RJN, Exh. A), and the Declaration of John Julian (“Julian”) in support of the motion for summary judgment filed on August 2, 2018, in LASC Case No. BC675757, Ware v. County of Los Angeles (D-RJN, Exh. B) is granted.

Meet and Confer

Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer and/or motion to strike.  (C.C.P. §430.41, §435.5.)

Defendant failed to file a declaration regarding efforts to meet and confer prior to Court intervention.  However, failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer or grant or deny a motion to strike.  (C.C.P. §430.41(a)(4), §435.5(a)(4); Dumas v. Los Angeles County Board of Supervisors (2020) 45 Cal.App.5th 348, 355, citing text.)  As such, the Court will consider Defendant’s demurrer and motion to strike.

A.   Demurrer

Background

This action arises out of Defendant’s alleged actions as a confidential informant and making false accusations against Plaintiff by accusing Plaintiff of practicing law on Los Angeles County property both during and after work hours.  (FAC pg. 4, Exh. 1.)  Plaintiff alleges Defendant made a false statement that Plaintiff worked on his personal computer while working on cases and that Plaintiff used his cell phone often, whether at his desk or downstairs with his clients.  (FAC pg. 4.)  Plaintiff alleges Defendant defamed Plaintiff when she stated he was on the roof, riding his bike, even after he left the building for the day.  (FAC pg. 4.)  Plaintiff alleges he has been shunned and injured in his occupation.  (FAC pg. 4.)  Plaintiff alleges Defendant’s acts caused damage to Plaintiff on January 18, 2017, at 2415 W. 6th Street, Los Angeles, CA 90057.  (FAC pg. 4.)

On March 28, 2022, Plaintiff filed his initial complaint against Defendant.  On August 15, 2022, Plaintiff filed his operative FAC against Defendant alleging a single cause of action for an intentional tort.  On August 29, 2022, Defendant filed the instant demurrer and accompanying motion to strike.  On March 6, 2023, Plaintiff filed his oppositions to the demurrer and motion to strike.  On March 21, 2023, Defendant filed her replies.

Summary of Demurrer

Defendant demurs on the basis that Plaintiffs’ 1st cause of action for “intentional tort” for “defamation” fails to state facts sufficient to constitute a cause of action against Defendant and is uncertain due to ambiguity.  (Notice of Demurrer, pg. 3.)

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law.  (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

          Statute of Limitations

          A defamation action must be brought within one year.  (C.C.P. §340(c).)  The limitations period begins to run when the defamatory statement is made.  (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1237.)

The discovery rule delays the limitations period “until the plaintiff knew (or with reasonable diligence should have known) of the factual basis for the claim.”  (Id.)  Under California law the “discovery rule” to extend the statute of limitations is limited. The rule does not apply when a Plaintiff knew or with a reasonable investigation would have known of the basis of the cause of action.  (O’Connor v. Boeing North American, Inc. (9th Cir. 2002) 311 F.3d 1139, 1147, citing Angeles Chemical Co. v. Spencer & Jones (1996) 44 Cal.App.4th 112, 122.)

          Plaintiff alleges Defendant’s acts caused damage to Plaintiff on January 18, 2017, at 2415 W. 6th Street, Los Angeles, CA 90057.  (FAC pg. 4.)

          Plaintiff’s FAC violates the one-year statute of limitations per C.C.P. §340(c).  Plaintiff’s FAC alleges that Defendant’s acts caused damage to Plaintiff on January 18, 2017, and that Defendant’s signed affidavit is verified on January 18, 2017.  (FAC pgs. 4-5.)

Plaintiff filed a lawsuit against the County of Los Angeles in 2017 or 2018, LASC Case No. BC675757, Ware v. County of Los Angeles.  (D-RJN, Exh. A.)  In that case Plaintiff alleged false statements by Defendant in his Second Amended Complaint (“SAC”).  (D-RJN, Exh. A.)  Based on Plaintiff’s allegations in his SAC in LASC Case No. BC675757, Plaintiff knew prior to August 3, 2018, that Defendant had reported to the County that she overheard Plaintiff represent himself as an attorney.  (See D-RJN, Exh. A at ¶25f.)  Further, in LASC Case No. BC675757, Ware v. County of Los Angeles, the Declaration of Julian filed in support of the County of Los Angeles’ motion for summary judgment includes the declaration that Defendant made statements that should have put Plaintiff on notice in 2018.  (D-RJN, Exh. B at ¶8.)

The Court in Shively v. Bozanich held that when a formerly secret communication becomes public when published in a book then the cause of action has definitely accrued regardless of when Plaintiff becomes aware of book and read it.  (Shively, 31 Cal.4th at pg. 1237.)  Here, as in Shively, Plaintiff’s knowledge of Defendant reporting to the County that she overheard Plaintiff represent himself as an attorney, is sufficient to accrue the statute of limitations, regardless of whether Plaintiff read Defendant’s verified affidavit publishing the statements against Plaintiff.

Failure to State a Claim

Defamation (1st COA)

Defamation is an invasion of the interest in reputation.  The tort involves the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage.  (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645; Civ. Code §§45, 46.)  Publication, which may be written (libel) or oral (slander), is defined as a communication to some third person who understands both the defamatory meaning of the statement and its application to the person to whom reference is made.  Publication need not be to the public or a large group; communication to a single individual is sufficient.  (Smith, 72 Cal.App.4th at pg. 645; Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1179; see also Cunningham v. Simpson (1969) 1 Cal.3d 301, 306.) 

The general rule is that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.  (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 31, quoting Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1017 n.3.)

Plaintiff fails to allege where the false statement that “Plaintiff worked on his personal computer while working on cases and that Plaintiff used his cell phone often, whether at his desk or downstairs with his clients” was published, to whom the statement was published, and how Plaintiff was damaged.  (FAC pg. 4.)

Accordingly, Defendant’s demurrer to Plaintiff’s first cause of action failure to state a claim is sustained.

Conclusion

Defendant’s demurrer to Plaintiff’s SAC is sustained without leave to amend.  Defendant is directed to submit a judgment to the Court.

B.    Motion to Strike

In light of the Court’s ruling on Defendant’s demurrer, Defendant’s motion to strike is denied as moot.

Dated:  May ____, 2023

Hon. Daniel M. Crowley

Judge of the Superior Court