Judge Gail Killefer, Case 23STCV02390 2023-05-18 Tentative Ruling

MOTION: Defendant’s Demurrer to the First Amended Complaint; Motion to Strike First Amended Complaint

TENTATIVE: Defendant’s demurrer is sustained. Plaintiff is granted 30 days leave to amend. Defendant is to give notice.

This is a dispute arising in connection with the work of Sonia I. Zaldivar (“Defendant”) as an Immigration Consultant in California. Immigrant Rights Defense Council, LLC (“Plaintiff”)alleges that Defendant, while operating as an Immigration Consultant, has failed to comply with the Immigration Consultants Act (“ICA”) of California.

Plaintiff brings this claim for injunction on behalf of the general public as authorized by Bus. & Prof. Code § 22446.5(a). Plaintiff asserts that Defendant has violated multiple provisions of the ICA and as such Plaintiff seeks an injunction on behalf of the general public.

Plaintiff’s operative First Amended Complaint (“FAC”), filed March 30, 2023 alleges the lone cause of action for injunctive relief against Defendant.

Defendant also moves to strike the lone cause of action of the FAC. However, it is improper to strike a whole cause of action pursuant to a motion to strike. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.) Such challenges must be made by demurrer. (Id.) Accordingly, the motion to strike is moot and disregarded by this court.

5. Exhibit J: Date and Time of Filing of Plaintiff's First Amended Complaint for Injunctive Relief.

6. Exhibit K: Sebastian Medvei's Filing of Articles of Organization of a Limited Liability Company, namely, Plaintiff Immigration Rights Defense Council, LLC, with the California Secretary of State September 21, 2015 as "Organizer".

7. Exhibit L: Sebastian Medvei's Filing of Statement of Information Naming IRDC Holdings, LLC as Plaintiff Immigration Rights Defense Council's Foreign LLC Manager on 11/3/2015 as "Authorized Rep"

8. Exhibit M: Sebastian Medvei's Filing of Statement of Information Naming IRDC Holdings, Inc as Plaintiff Immigration Rights Defense Council's Foreign Corporate Manager on 8/31/2021 as "Attorney for LLC"

11. Exhibit P: California Secretary of State Search for “IRDC Holdings, Inc”

12. Exhibit Q: California Secretary of State Search for “IRDC Holdings, LLC”

14. Exhibit S: Certified Articles of Incorporation and Certificate of Formation for IRDC Holdings, LLC

Plaintiff objects to these requests for judicial notice, claiming them to be irrelevant, lacking personal knowledge and foundation, and hearsay. These are not an evidentiary objections. Plaintiff further completely fails to explain the basis for their opposition to these requests for judicial notice, nor does Plaintiff expend any efforts whatsoever to explain any of the conclusory assertions regarding these requests. The court therefore disregards Plaintiff’s arguments.

Defendant’s request is granted. The existence and legal significance of these documents are proper matters for judicial notice. (Evid. Code § 452(h).) However, the court may not take judicial notice of the truth of the contents of the documents. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to show their existence and what orders were made. The truth of the facts and findings within the documents are not judicially noticeable. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.)

Plaintiff here further objects to the Declarations of Colleen O’Hara, and Defendant Zaldivar in their entirety for irrelevance, hearsay, and lacking foundation and/or personal knowledge.

These objections are entirely incorrect, as they fail to follow the format set by California Rules of Court, Rule 3.1354. Not only does Plaintiff fail to identify each specific objection, but then asks this court to embark on a fishing expedition to connect the blanket objections with each statement. Therefore, the objections are entirely unfounded and denied wholly.

Defendant also attempts to object to Plaintiff’s entire Opposition, and the alleged hearsay statements within, contending the Opposition does not have an accompanying declaration or demonstrated foundation. This is not an evidentiary objection either. This objection further fails to follow California Rules of Court, Rule 3.1354, is entirely unfounded in its blanket requests, and fails to put forth a cognizable explanation as to why an Opposition should hold evidentiary objections. The forum to dispute assertions made in the Opposition is in the reply briefs and during hearing before this court, not as an evidentiary objection. The objection is also denied entirely.

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, 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.)

“An injunction is a writ or order requiring a person to refrain from a particular act. It may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court. (CCP § 525.) A party seeking injunctive relief must show the absence of an adequate remedy at law. (Dep’t of Fish & Game v. Anderson-Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1564.) “[A]n injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff.” (Id. at 1565.)

An injunction is an order requiring a person to refrain from a particular act or to do a particular act. (People ex rel. Gwinn v. Kothari (2000) 83 Cal. App. 4th 759, 765.) A provisional or preliminary injunction can issue when the standards of CCP § 526(a) are met. Additionally, a court may grant injunctive relief based on declarations showing sufficient factual grounds for relief. (CCP § 527 (a).) “Where [a] [preliminary] injunction is authorized by statute, a violation thereof is good and sufficient cause for its issuance.” (Paul v. Wadler (1962) 209 Cal.App.2d 615, 625, emphasis added.)

“The theory is that when a legislative body has authorized the injunctive remedy for violation of a statute, it has determined as a matter of law that irreparable injury attends the violation of the statute.” (Id.) “[C]ourts of this state have upheld preliminary injunctions . . . in a variety of statutory contexts without expressly balancing the actual harms to the parties.” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 70, emphasis added.)

Bus. & Prof. Code, § 22446.5 provides: “[a] person claiming to be aggrieved by a violation [of] [the] [ICA] by an immigration consultant may bring a civil action for injunctive relief” on their behalf or on behalf of the general public. Bus. & Prof. Code § 22441 states that immigration consultants are limited to giving non-legal assistance or advice on an immigration matter. Immigration consultants are limited to: (1) completing forms but not advising a person as to their answers; (2) translating a person’s answers to questions posed [on] those forms; (3) securing a person’s supporting documents; (4) submitting completed forms on a person’s behalf and at their request to the United States Citizenship and Immigration Services; and (5) referring persons to individuals who can undertake legal representation activities for a person in an immigration matter. Any other actions taken by immigration consultants with respect to rendering legal assistance or advice is a violation of Bus. & Prof. Code § 22441. The ICA also sets forth numerous other grounds in which the ICA may be violated under Bus. & Prof. Code, §§ 22440 et seq.

Section 22440 governs nonlawyers who offer non-legal assistance in immigration matters in California. Under Bus. & Prof. Code, § 22440 et seq., it is unlawful for any person, for compensation, other than persons authorized to practice law or authorized by federal law to represent persons before the Board of Immigration Appeals or the United States Citizenship and Immigration Services, to engage in the business or act in the capacity of an immigration consultant within this state. To plead a cause of action under this statute, plaintiff must plead: (1) defendant’s violation of the statute, 2) direct and proximate cause, 3) resulting injury to plaintiff. (Bus & Prof. Code § 22446.5.)

Bus & Prof. Code § 22441(a) provides: “A person engages in the business or acts in the capacity of an immigration consultant when that person gives nonlegal assistance or advice on an immigration matter. That assistance or advice includes, but is not limited to, the following:

(1) Completing a form provided by a federal or state agency but not advising a person as to their answers on those forms.

(3) Securing for a person supporting documents, such as birth certificates, which may be necessary to complete those forms.

(4) Submitting completed forms on a person's behalf and at their request to the United States Citizenship and Immigration Services.

(5) Making referrals to persons who could undertake legal representation activities for a person in an immigration matter.”

Bus & Prof. Code § 22441(d) further provides: “ Every person engaged in the business or acting in the capacity of an immigration consultant shall only offer nonlegal assistance or advice in an immigration matter…. Any act in violation of subdivision (a) is a violation of this chapter.”

First, Defendant contends the first cause of action is insufficiently pled because it alleges fraud and concealment without the requisite particularity. (Demurrer, 20-21.) However, no fraud cause of action is pled; the court disregards this argument.

Next, Defendant contends the first cause of action is insufficiently pled because Plaintiff fails to allege a basis for injunctive relief. (Dem., 21-22.) Additionally, Defendant contends that this cause of action fails because Plaintiff fails to establish standing to sue. (Dem., 22-24.)

Further, Defendant contends the first cause of action is insufficiently pled as it alleges as ultimate facts a series of allegations which purportedly occurred until 2017, after the statute of limitations of four years on the ICA claims would have run. (Dem., 26.) Therefore, Defendant contends the allegations are time-barred, and seeks to impose the current statutory scheme on a set of circumstances when the now defunct statutory scheme would apply. (Dem., 26.)

In opposition, Plaintiff correctly contends Section 22446.5 “deputizes any member of the public with information and belief that a person has violated the ICA to bring qui tam civil actions for injunctive relief on behalf of the general public, to enjoin violations and enforce compliance with the ICA.” (Opp., 4, 7-8.) Plaintiff further contends the first cause of action is sufficiently pled,

“to put the Defendant on notice that she is being accused of operating a business that is engaged in the unauthorized practice of law because it prepares immigration petitions for its customers for more than a “nominal fee.” Further, the complaint puts Defendant on notice of the other statutory requirements she is alleged to have failed to comply with, including the advertising requirements, the contract requirements, and the registration and bonding requirements. The complaint puts Defendant on notice that all of the above are deemed violations of the ICA sufficient to warrant the imposition of injunctive relief under the statute.” (Opp., 8.)

Further, Plaintiff contends correctly it is entitled to injunctive relief by the language of the ICA, and not CCP § 526. (Opp., 10-11; citing Paul v. Wadler (1962) 209 Cal. App. 2d 615, 625.) Also, Plaintiff contends the four-year statute of limitations does not bar these claims as Bus. & Prof. Code § 22445 tolls the statute of limitations to start “after discovery of the commission of the offense” and “there is no allegation as to the discovery date of the offense” in the FAC. (Opp., 11.)

Here, a review of the FAC shows no discovery date of the commission of these alleged offenses was pled, and that the first cause of action is supported wholly by conclusory claims regarding Defendant’s alleged nonconformity with the ICA. (See FAC, ¶¶13-14.) Therefore, the court finds the cause of action does not include sufficient material facts, which if taken to be true at this stage, would establish a violation of the strict liability regime of the ICA.

The court agrees with Defendant that the first cause of action is insufficiently pled because Plaintiff fails to allege sufficient facts to show these claims are not time-barred, and fails to allege sufficient facts to show a violation of the ICA as alleged. A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].) Thus, Defendant’s demurrer to this cause of action is sustained.

Defendant’s demurrer is sustained. Plaintiff is granted 30 days leave to amend. Defendant is to give notice.

[1] Defendant submits the declaration of her counsel, Colleen O’Hara (“O’Hara”), to demonstrate her compliance with statutory meet and confer obligations prior to filing the instant demurrer. O’Hara attests that on March 10, 2023, she sent a meet and confer letter to Plaintiff’s counsel regarding the original Complaint, to which Plaintiff’s counsel responded on March 13, 2023 declining to meet and confer. (O’Hara Decl.) The O’Hara Declaration is insufficient for the purposes of this demurrer as it makes clear that the parties have failed to meet and confer around the issues raised in this demurrer. However, as failure to meet and confer is not grounds to overrule a demurrer, the court continues with the merits of the papers.