Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant and Cross-Complainant James Thomas 

 

RESPONDING PARTY: Plaintiff and Cross-Defendant Sian Mitchell 

 

BACKGROUND 

This case arises from a bitter dispute between former spouses.  Plaintiff Sian Mitchell and Defendant James Thomas were married.  (Cross-Compl. ¶6.)  Mitchell invested $145,000 in a company owned and controlled by Thomas, known as WTC LA, Inc. (“WTC”).  (Id. ¶¶ 9, 11.)   

The alleged terms of the investment were that (1) Mitchell could invest her cash in inventory for WTC and if WTC earned a profit on such funds, Mitchell would be entitled to the profit so earned, payable at the end of each calendar year; (2) Mitchell could withdraw the funds at her discretion, provided WTC had sufficient liquid assets to return the amount of the investment; (3) WTC did not guarantee a return on the investment; (4) the transaction was not a loan and there was no guarantee of repayment; and (5) Thomas was not personally responsible to repay the investment.  (Id. ¶¶ 9-10.)   

Mitchell then presented Thomas with a back-dated written promissory note (“the Note”) which she allegedly falsely represented was to assist her with her petition for increased child support from her prior husband.  (Id. ¶¶ 17-19.)  Mitchell represented the Note needed to be signed immediately, and there was no time for Thomas to have the document reviewed.  (Id. ¶ 17.)   

Thomas did not receive any monies in connection with the Note, and based on Mitchell’s representations, he understood his execution would not require him to make payment on the Note.  (Id. ¶ 19.)  Mitchell did not tell Thomas the Note was related in any way to the monies invested by Mitchell in WTC.  (Id. ¶ 18.)  In reality, Thomas alleges the Note was not needed for any child support dispute but was intended solely to give Mitchell a basis to later improperly demand payment from Thomas for monies he never received and did not owe.  (Id. ¶ 19)  

Mitchell also had Thomas sign a confidentiality agreement and non-disparagement agreement (the “NDA”).  (Id. ¶ 15.)  Mitchell represented that she needed the NDA so that Thomas could not be forced to respond to inquiries from the press as her divorce from her former husband was getting a lot of publicity, particularly as to the quasi-criminal contempt proceeding against Mitchell for denying her former husband court-authorized access to their son   (Id.)  The NDA was prepared by Mitchell’s criminal attorney who unbeknownst to Thomas, was also Mitchell’s lover.   (Id. ¶¶ 14-15.)  In reality, Thomas allegedly intended to use the NDA to harass and intimidate Thomas following her planned divorce from him.  (Id. ¶¶ 15.)  Indeed, after the commencement of their divorce proceeding, Mitchell has regularly used the NDA to threaten Thomas with lawsuits and monetary damages should he violate its terms.  (Id.) 

Since the divorce petition, Thomas alleges Mitchell has also regularly harassed and intimidated him by (1) texting him throughout the day with demands for payment of $240,000, threats to take half of Thomas’ business if he did not pay the extorted demands, threats of litigations, and threats to cause Thomas to lose his immigration status; (2) stalking Thomas while on errands and then physically confronting and challenging him in public places including parking lots, grocery stores and restaurants; (3) constantly calling Thomas, then engaging in screaming fits, repeating the same threats as her texts; (4) showing up at Thomas’ work to harass him, and (5) issuing demands for payment to Reklaim LLC, a company in which Jamie holds an interest, which severely disrupted Thomas’ relationship with the company.  (Id. ¶ 22.) 

The operative cross-complaint alleges claims for (1) declaration that the Note is unenforceable, (2) declaration that the Note is unenforceable based on fraud, (3) declaration that the NDA is unenforceable, (4) declaration that the NDA is unenforceable based on fraud, (5) fraud and deceit, and (6) intentional infliction of emotional distress.              

This hearing is on Mitchell’s demurrer and motion to strike the cross-complaint.  Mitchell argues that (1) Thomas’ declaratory relief claims fail because they seek to determine issues which will be determined in the underlying action; they fail to allege the essential elements of the Note and NDA or attach a copy of them; they fail to allege that no other adequate remedy at law exists; they do not provide narrow, precise questions to guide the Court in its examination of the declaratory relief sought, and they are uncertain and unintelligible because they seek both a declaration and a rescission; (2) Thomas’ claim for fraud and deceit fails because it does not allege with particularity the elements of fraud; and (3) Thomas’ claim for intentional infliction of emotional distress claim fails because there are no allegations that any of Mitchell’s conduct is outrageous, Mitchell intended to cause Thomas emotional distress, Thomas suffered emotional distress or Mitchell’s conduct was a substantial factor in causing Thomas’ purported severe emotional distress.  

As to her motion to strike, Mitchell seeks to strike as irrelevant, prejudicial or lacking legal or factual basis: (1) allegations concerning Mitchell’s prior marriage, her child custody proceedings, and her receipt of monthly spousal support, (2) Mitchell’s purchase of a Rolex, (3) Mitchell’s withdrawal of funds from WTC, (4) Mitchell’s affair with her criminal attorney, (5) allegations about the Note and NDA which are not attached to the Complaint, (6) allegations that the Note was fraudulently obtained; (7) Thomas’ requests for attorneys’ fees; (8) Thomas’ request for rescission of the Note and NDA; (9) conclusory allegations of fraud and deceit; and (10) Thomas’ request for compensatory and punitive damages.   

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 Ins. 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 Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a).)  The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).)  The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws.  (Code Civ. Proc., § 436.)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”); Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 (“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

 

MEET AND CONFER¿ 

Code Civ. Proc. §430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, 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.” (CCP § 430.41(a).)¿ The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).)¿ Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP § 430.41(a)(3).)¿ Mitchell submits the declaration of Edward Lyman attesting that the parties met and conferred by letter, e-mail and telephone.  Accordingly, the meet and confer requirements have been met. 

DISCUSSION 

On May 30, 2023, Thomas filed and served by mail the cross-complaint.  Any responsive pleading was due on July 5, 2023.  The parties agreed to extend the deadline to respond to July 17, 2023.  (Lyman Decl. ¶ 2.)  Mitchell did not file her demurrer and motion to strike until July 18, 2023.  Accordingly, the demurrer and motion to strike are untimely.    

CONCLUSION 

Based on the foregoing, the Court OVERRULES Cross-Complainant Sain Mitchell’s demurrer as untimely and DENIES her motion to strike as untimely.   

 

IT IS SO ORDERED. 

 

DATED: August 29, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court