Judge Gail Killefer, Case 22STCV08788 2022-09-29 Tentative Ruling

Judge: Gail Killefer, Case: 22STCV08788, Date: 2022-09-29 Tentative Ruling

Case Number: 22STCV08788 Hearing Date: September 29, 2022 Dept: 37

HEARING DATE: September 29, 2022

CASE NUMBER: 22STCV08788

CASE NAME: Jeffrey J. Olin v. Commissioner Glenda Veasey, et al.

MOVING PARTIES: Defendants, Rombro & Manley, LLP, Roger Rombro, Melinda A Manley

OPPOSING PARTY: Plaintiff, Jeffrey J. Olin

TRIAL DATE: Not Set

PROOF OF SERVICE: OK

MOTION: Defendants’ Demurrer to the Complaint; Defendant’s Motion to Strike Portions of the Complaint; Defendants’ Special Motion to Strike pursuant to CCP § 425.16

OPPOSITION: Untimely filed—September 16, 2022 [Deadline was September 15, 2022.]

REPLY: September 21, 2022

Tentative: RM Defendants’ demurrer is sustained as to the entire Complaint without leave to amend. RM Defendants’ motion to strike and special motion to strike are both rendered moot. RM Defendants are to provide notice.

Background

This action arises out of an alleged conspiracy to violate the rights of Jeffrey J. Olin (“Plaintiff”), who is an alleged victim of parental alienation. Plaintiff claims that a conspiracy began three and a half years ago to commit these violations of Plaintiff’s constitutional and statutory rights. Plaintiff names as Defendants, Commissioner Glenda Veasey, Judge Lawrence Riff, the Superior Court of California County of Los Angeles, Deputy David Wing, Detective David Wing, Los Angeles County Sheriff’s Department [“LASD”], Kelley Rene Olin (“Kelley”) [Plaintiff’s ex-wife], Rombro & Manley, LLP (a law firm), Roger Rombro, Melinda A Manley, and Does 1-50.

Plaintiff’s complaint alleges the conspiracy began shortly after Plaintiff sent ex parte notice to Kelley via text message of the parental alienation on July 21, 2018. Plaintiff further alleges the conspiracy grew to include LASD detectives and judicial officers. On October 3, 2019, a restraining order was filed against Plaintiff. Plaintiff alleges the conspirators plotted to have Plaintiff involuntarily committed (“5150 Hold”). On October 4, 2019, Plaintiff was put under a 72-hour 5150 Hold, and his property was allegedly seized and converted.

Plaintiff’s operative Complaint includes the following causes of action: (1) publication of private facts, concerning the 5150 hold, (2) intrusion into private matters, (3) false imprisonment, (4) intentional infliction of emotional distress, (5) intentional interference with parent-child relationship (Civ. Code § 49), (6) denial of due process, (7) violation of civil rights (42 USC § 1983), (8) interference with exercise of civil rights (Civ. Code § 52.1), and (9) Monell liability. The caption lists the 8th cause of action for interference with exercise of civil rights (Civ. Code § 52.1), as the 7th cause of action, and lists the 7th cause of action for violation of civil rights (42 USC § 1983), as the 8th cause of action.

Defendants Rombro & Manley, LLP, Roger Rombro, and Melinda A Manley (“RM Defendants”) now demur to Plaintiff’s Complaint, and move to strike portions of the Complaint. RM Defendants also specially move to strike portions of the Complaint pursuant to CCP § 425.16. Plaintiff opposes the motions.

Discussion

I. Meet and Confer Efforts

CCP § 430.41 provides that a Defendant, prior to filing a demurrer, “shall meet and confer in person or by telephone” with Plaintiff to determine whether an agreement can be reached regarding the objections to be raised in the demurrer. (CCP § 430.41.) Further, as part of the meet and confer process, the demurring Defendant “shall identify all of the specific causes of action that it believes are subject to the demurrer and identify with legal support the basis of the deficiencies.” (CCP § 430.41(a)(1).) The Plaintiff is then to respond by providing “legal support for its position that the pleading is legally sufficient,” or, alternatively, “how the complaint…could be amended.” (Id.) This meet and confer shall occur “at least five days before the date the responsive pleading is due.” (CCP § 430.41(a)(2).) Finally, the demurring Defendant is to file and serve a declaration with the demurrer stating either:

“(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.

(B) That the party who filed the pleading subject to the demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.”

(Code Civ. Proc. § 430.41(a)(3)(A)-(B).)

RM Defendants submit the declaration of Counsel Gretchen S. Carner (“Carner”) to demonstrate that they have fulfilled their statutory meet and confer obligations pursuant to CCP § 430.41 prior to filing the instant demurrer. Carner attests that they met and conferred by sending a letter dated July 26, 2022 to the plaintiff, and the parties corresponded through email about the issues raised but were unable to reach a resolution. (Carner Decl. ¶¶2-4.)

The Carner Declaration is sufficient for purposes of CCP § 430.41.

II. Legal Authority

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

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.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3 (Mahan), citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

III. Analysis

A. Demurrer to the Entire Complaint & Barring of Claims by Privilege

RM Defendants first contend that the claims against them in Plaintiff’s Complaint are barred entirely by the litigation privilege as defined by Civ. Code § 47. (Demurrer, 10-11.) RM Defendants contend “each of Plaintiff’s causes of action against the R&M Defendants is predicated upon the privileged conduct of preparing and filing the Kelly Declaration,” and as such, “the litigation privilege bars each cause of action.” (Id.)

Litigation privilege applies to communications made in a judicial proceeding and confers absolute immunity on to defendants as to all tort suits with the exception of malicious prosecution. (Civ. Code §¿47(b); Silberg v. Anderson (1990) 50 Cal.3d 205, 215-16.)

Further, RM Defendants contend the “only allegations referencing the R&M Defendants involve assisting Defendant Kelly Olin in preparing and filing the ‘Kelly Declaration” in the underlying family law case...” (Demurrer, 12.) Defendants contend the litigation privilege applies here as “the filing of the Kelly Declaration is a ‘privileged publication’ in a ‘judicial proceeding,’ and therefore, each cause of action asserted against the R&M Defendants fails as a matter of law.” (Id.; citing Albertson v. Raboff (1956) 46 Cal.2d 375, 381 [holding the litigation privilege includes and extends beyond “the pleadings, the oral or written evidence, to publications in open court or in briefs or affadavits”].) RM Defendants further cite Jacob B. v. County of Shasta, (2007) 40 Cal.4th 948, 952-960 as support to show that the litigation privilege has not only been broadly applied to encourage “full communication with the courts,” but has also applied specifically to family law proceedings. (Demurrer, 12-13.) RM Defendants also assert that any reliance on Cutter v. Brownbridge, (1986)183 Cal.App.3d 836 will be unhelpful as the Jacob B. court specifically disapproved of the balancing analysis done in Cutter and as such,

“Jacob B. is binding precedent disproving Cutter, and therefore, Jacob B. mandates that the litigation privilege protects the R&M Defendants’ conduct in assisting in the preparation and filing of the Kelly Declaration in the underlying family law case — barring each of Plaintiff’s causes of action against the R&M Defendants.”

(Demurrer, 14; citing Jacob B., supra, 40 Cal.4th at 962-3.)

RM Defendants also contend any assertion that any alleged disclosure of 5150 records were an improper disclosure of confidential information is also not persuasive as Welfare and Institutions Code § 5328(a)(6) provides for a specific exception when such disclosures are made before a court “as necessary to the administration of justice,” which they were here in the underlying family law matters. (Demurrer, 15-16.)

Lastly, RM Defendants contend, to the extent Plaintiff bases his claims on an alleged conspiracy between RM Defendants and Kelly, their client, Plaintiff has failed to allege any of the elements of a conspiracy and has further failed to obtain a pre-filing order which is required when alleging an attorney-client civil conspiracy pursuant to Civil Code § 1714.10(a). (Demurrer, 16-18.) Civil Code § 1714.10 states in relevant part,

(a) No cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorney's representation of the client, shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes the claim for civil conspiracy to be filed after the court determines that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action. The court may allow the filing of a pleading claiming liability based upon such a civil conspiracy following the filing of a verified petition therefor accompanied by the proposed pleading and supporting affidavits stating the facts upon which the liability is based. The court shall order service of the petition upon the party against whom the action is proposed to be filed and permit that party to submit opposing affidavits prior to making its determination. The filing of the petition, proposed pleading, and accompanying affidavits shall toll the running of any applicable statute of limitations until the final determination of the matter, which ruling, if favorable to the petitioning party, shall permit the proposed pleading to be filed.

(b) Failure to obtain a court order where required by subdivision (a) shall be a defense to any action for civil conspiracy filed in violation thereof. The defense shall be raised by the attorney charged with civil conspiracy upon that attorney's first appearance by demurrer, motion to strike, or such other motion or application as may be appropriate. Failure to timely raise the defense shall constitute a waiver thereof.”

Thus, RM Defendants contend “there is no dispute that Plaintiff failed to obtain a court order prior to alleging conspiracy against the R&M Defendants...” and as such, the conspiracy claim against RM Defendants must fail as a matter of law. (Demurrer, 18.)

In opposition, Plaintiff makes the conclusory claim that no Defendants can avail themselves of the exception found within the Welfare & Institutions Code § 5328(a)(6) “because the ‘administration of justice’ is the purview of the Courts and no Court has ever made that ruling regarding Plaintiff.” (Opp., 5.) However, Plaintiff fails to explain and further fails to point to any supporting authority that a court ruling regarding a hypothetical “administration of justice” is a prerequisite to the exception; this court further notes that requiring such a step may run contrary to the equities and merits which necessitate such an exception in the first place. Plaintiff also contends that RM Defendants do not “have any role in the administration of justice,” but again fails to explain how RM Defendants’ representation of their client before another court in a family law proceeding is not necessarily an involvement in the administration of justice before the laws of this state. (Opp., 5.) Plaintiff also cites Komarova v. National Credit Acceptance, Inc., (2009) 175 Cal.App.4th 324, 337-339 to contend that the litigation privilege must yield to statutes which are more specific than the privilege and which would be “inoperable” if the privilege applied. (Opp., 7-8.) Plaintiff contends the application of the litigation privilege would make section 5328 wholly inoperable. (Id.)

Plaintiff also contends that Cutter remains good precedent, and “Cutter was only disproved to the effect that it contradicted [the Jacob B. ruling].” (Opp., 10-12.) Plaintiff again makes the conclusory claim that section 5328 did not consider the kind of disclosures made by RM Defendants in the underlying family law action, but again fails to explain how their preparation of their client’s declaration in a family law matter cannot be defined as part of the “administration of justice.” (Opp., 13-16.)

In their reply, RM Defendants first correctly point out Plaintiff’s Opposition is untimely by one day pursuant to CCP § 1005(b) and procedurally defective as it exceeds the 15-page limit as defined by Cal. Rules of Court, rule 3.1113 (d) & (e). (Reply, 6.) As such, RM Defendants request the court to disregard Plaintiff’s opposition. (Id.) The court agrees Plaintiff’s opposition is untimely and procedurally defective and thus may immediately find the Complaint to be insufficiently pled, and Plaintiff’s claims to fail as a matter of law in disregarding any of Plaintiff’s contentions in his opposition. The court will, however, continue to analyze the merits of the parties’ arguments.

In their reply, RM Defendants correctly explain section 5328’s definition to include “information and records obtained in the course of providing services,” and thus correctly contend that the Kelly Declaration did not disclose any information that would have been obtained in the course of providing services, assuming arguendo that such an alleged disclosure even took place. (Reply, 6-7.) Further, RM Defendants then correctly contend that even if such a disclosure took place, the subdivision (a)(6) exception “allowed Kelly to disclose to the family law court all information relevant to the issue of whether a forensic psychiatrist should be appointed to ‘evaluate what had been done to Plaintiff’s relationship with his son.’” (Reply, 7.) RM Defendants also point to Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 380 to finally contend that section 5328 “does not create a private cause of action.” (Reply, 8.)

Next, RM Defendants correctly explain Jacob B. “expressly disapproves of Cutter’s holding ‘that which interest prevails—the constitutional right to privacy or the litigation privilege—must be decided on a case-by-case basis.’” (Reply, 8-9.) RM Defendants then contend that the litigation privilege does not frustrate the purpose of section 5328 and especially within the family law context, all efforts shall be made to provide family law courts with “the maximum amount of relevant information.” (Reply, 9; citing Jacob B., supra, at 956.) As such, RM Defendants reassert the expansive definition of litigation privilege applies here and bars Plaintiff’s causes of action. (Reply, 10.) The court agrees.

RM Defendants also point out Plaintiff failed to address RM Defendants’ defense as to the conspiracy claims regarding Plaintiff’s failure to obtain a pre-filing order pursuant to Civil Code § 1714.10(a). (Reply, 11-12.) The court also agrees.

In sum, liberally construing the allegations of the Complaint in favor of Plaintiff, the court finds that the Defendant’s contentions regarding section 5328’s specific exception for any alleged disclosures made by RM Defendants, Plaintiff’s failure to obtain a pre-filing order, as well as the imposition of the litigation privilege to bar all claims against RM Defendants to be correct. As Plaintiff has failed to obtain a pre-filing order before alleging claims of attorney-client conspiracy, RM Defendants’ defense is absolute and any of Plaintiff’s claims involving any alleged conspiracy involving RM Defendants must fail as a matter of law. Further, as Plaintiff has failed to explain how Welfare & Institutions Code § 5328(a)(6) does not specifically empower RM Defendants to have acted as alleged in representing their client, any claims against RM Defendants regarding the preparation of their client’s declaration must also fail as a matter of law. Lastly, as RM Defendants have correctly explained the litigation privilege to have an expansive reading meant to encourage the sharing of all available information with the court empowered to make its rulings, all of Plaintiff’s claims involving the actions of RM Defendants in representing their client before another court in this state must also fail as a matter of law.

As such, the court finds Plaintiff’s Complaint to be fatally uncertain, and insufficiently pled as to RM Defendants in its entirety.

For these reasons, RM Defendants’ demurrer is sustained, without leave to amend.

MOTION TO STRIKE

Having sustained RM Defendants’ demurrer, the court finds RM Defendants’ motion to strike

moot.

SPECIAL MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16

Having sustained RM Defendants’ demurrer in its entirety without leave to amend, the court also finds RM Defendants’ special motion to strike to be rendered moot.

Conclusion

RM Defendants’ demurrer is sustained as to the entire Complaint, without leave to amend. RM Defendants’ motion to strike and special motion to strike are both rendered moot. RM Defendants are to provide notice.