Judge: Edward B. Moreton, Jr, Case: 24SMCV04902, Date: 2025-03-28 Tentative Ruling

Case Number: 24SMCV04902    Hearing Date: March 28, 2025    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

BACKGROUND

This case arises from a dispute over legal and agent fees.  Plaintiff Naima Nouidjem is a resident of Mexico.  She handled real estate sales, project management and legal representation for Defendant Daniel James Wood, a resident of California.  

In October 2022, Plaintiff alerted Defendant of potential mismanagement by his business partner Per Ove Ericson in Mexico in a construction project for seven homes where Plaintiff was the project manager.  Defendant had no written contract with his business partner, who was denying him access to critical financial information such as bank statements.  

In December 2022, Defendant gave Plaintiff full Power of Attorney (“POA”) to recover his investment in Mexico.  Plaintiff then took action using the POA to secure a “reimbursement contract” for Defendant where Per Ove Ericson finally recognized in writing Defendant’s injection of capital.

Between January 2023 to July 2024, Plaintiff spent more than 1,300 hours representing Defendant through the filing of seven lawsuits with the Mexican federal and state courts. She also represented Defendant in a criminal complaint for fraud against his business partner. Plaintiff now claims Defendant has “engaged into coercive behaviours toward the plaintiff including financial threats, withholding payments and other signed conditions causing significant financial duress.” 

Based on these allegations, the operative complaint alleges three claims for (1) breach of contract, (2) tortious interference with prospective economic advantage, and (3) threat of financial harm causing financial duress. 

Defendant now moves to dismiss the complaint on the grounds that (1) dismissal is proper under forum non conveniens; (2) Plaintiff’s claims are barred by accord and satisfaction; (3) Plaintiff’s claims fail due to the absence of a written contract; and (4) Plaintiff’s “clear pattern of vexatious litigation across jurisdictions.”  For her part, Plaintiff moves for sanctions against Defendant, claiming that Defendant’s motion to dismiss is an abuse of process and is replete with falsehoods and perjury. 

MOTION TO DISMISS

            Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving 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(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)  Defendant has not filed a meet and confer declaration.  Notwithstanding, the Court will consider Defendant’s motion on its merits.

            Defendant first argues that there is a binding settlement agreement which resolves the claims in this case.  He claims to attach the settlement agreement to his declaration.  But neither his declaration nor the settlement agreement is in the Court’s files.  Defendant does not quote the language in the settlement agreement that he believes releases Plaintiff’s claims.  The Court is not obligated to scour the record to support Defendant’s legal argument.

            Defendant next argues that dismissal is proper because Mexico is a more appropriate forum.  Under the doctrine of forum non conveniens, if the court determines that a suitable alternative forum exists, it must decide whether the private and public interests, on balance, favor retaining the action in California. “The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses.” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.)  The public interest factors include avoidance of overburdening California courts, protecting potential jurors who should not be called on to decide cases in which the local community has little concern, and weighing the competing ties of California and the alternate jurisdiction to the litigation. (Id.)  The burden of proof is on the defendant, as the party asserting forum non conveniens. (Id.) 

Here, Defendant argues that as to private interest factors, “[a]ll witnesses, evidence and property transactions are located in Mexico.”  But he does not cite any evidence in support this argument, including the identity of the witnesses who reside in Mexico or what evidence he claims is in Mexico.  It should be noted Defendant is a resident of California.  There is a “presumption of convenience to a defendant which follows from its residence in California.”  (Id. at 756.)

As to the public interest factors, Defendant argues Mexico has a greater interest in adjudicating disputes involving its property and business laws,” and “[t]he burden on California courts is unjustified when eight parallel proceedings are pending in Mexican courts.”  Defendant does not submit any evidence on the nature of the “eight parallel proceedings,” much less that they involve issues related to the instant action.  Moreover, while Mexico may have an interest in adjudicating disputes involving property located in Mexico, California has a parallel interest in governing the conduct of its residents who are alleged to have engaged in tortious conduct.

Defendant then argues that Plaintiff’s “claims for professional services fail because no written contract exists as required by Civil Code § 1624(a).”  Defendant does not explain which subdivision of the statute of frauds applies in this case.  Is it subdivision (1) which addresses an agreement that by its terms is not to be performed within a year from the making thereof?  Is it subdivision subdivision (4) which relates to an agreement authorizing an agent to purchase or sell real estate for a longer period than one year?  No elaboration is provided, and the  Court declines to make Defendant’s argument for him.

Lastly, Defendant argues that Plaintiff’s “pattern of vexatious litigation” and “privacy violations” warrant protective orders.  Again, the Court is left to decipher what lawsuits Defendant is referring to and why they are “vexatious.”  As to the “privacy violations,” Defendant does not identify any specific disclosure, and why the right of public access is outweighed by his right to privacy.  In sum, Defendant’s motion is a series of conclusory legal assertions, leaving the Court unable to assess its merits. 

MOTION FOR SANCTIONS

            Plaintiff seeks sanctions against Defendant, claiming his allegation that she engaged in vexatious litigation is false.  She argues that the lawsuits she filed in Mexico were for the sole purpose of recovering assets owed to Defendant in Mexico.  Plaintiff seeks sanctions pursuant to Code Civ. Proc. § 128.5, Cal. Penal Code § 118, and “other applicable laws.”

To the extent the motion seeks sanctions under § 128.5, it is procedurally defective. Plaintiff did not comply with the required safe-harbor procedure. “[A] notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.” (Code Civ. Proc., § 128.5(f)(1)(B).) Plaintiff has not filed a proof of service, much less one that shows she served the motion on Defendant in compliance with the safe harbor period.

To the extent the motion seeks sanctions under Cal. Penal Code § 118, the Court cannot conclude at the early stages of this litigation that Defendant has committed perjury.  Plaintiff requests judicial notice of various court records in Mexico which she claims proves Defendant lied to the Court.  While the Court may take judicial notice of the existence of these records, it cannot take judicial notice of the allegations in the records.  Courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, but they may not take judicial notice of the truth of hearsay statements in decisions and court files. (Williams v. Wraxall (1995) 33 Cal. App. 4th 120, 130, fn. 7.)  Such matters are reasonably subject to dispute and therefore require formal proof.  (See, e.g., Magnolia Square Homeowners Assn. v. Safeco Ins. Co. (1990) 221 Cal. App. 3d 1049, 1056-1057.)

CONCLUSION

Based on the foregoing, the Court DENIES Defendants’ motion to dismiss and DENIES Plaintiff’s motion for sanctions. 

IT IS SO ORDERED.

DATED: March 28, 2025                                                      ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court