Judge Gail Killefer, Case Number: 23STCV02390, Date: 2025-01-06 Tentative Ruling

TENTATIVE: Defendant’s demurrer to the TAC is overruled. Defendant’s Motion to strike is granted in part and denied in part. The court denies Defendant’s motion to strike the TAC in its entirety and grants the motion to strike Paragraph 21(n), Exhibit 5, and the word “spoliated” in Paragraph 17, line 23 with leave to amend. Plaintiff is granted 10 days leave to amend. The court sets the OSC RE: Amended Complaint for January 24, 2025, at 8:30 a.m. Defendant to give notice.

This is a dispute arising from Defendant Sonia I. Zaldivar’s (“Zaldivar”) operating as an Immigration Consultant in California. Plaintiff, Immigrant Rights Defense Council, LLC, (“Plaintiff”) alleges that Defendant has operated as an Immigration Consultant not in conformity with the Immigration Consultants Act of California (“ICA”).

Plaintiff brings this claim for an injunction on behalf of the general public as authorized by Business and Professions Code § 22446.5(a).¿ Plaintiff asserts that Defendant has violated multiple provisions of the ICA and as such Plaintiff is entitled to obtain an injunction on behalf of the general public.¿¿

On June 14, 2023, Plaintiff filed a Second Amended Complaint (“SAC”) alleging a single cause of action for injunctive relief for violation of the Immigration Consultant Act (“ICA”). Plaintiff filed a Doe amendment, adding Z Legal Services Inc. (“Z Legal”) as a defendant.

After Defendant moved for summary judgment, on its own motion, the court reconsidered its November 15, 2023, Order denying Z Legal’s motion to quash the Doe amendment, rendering the motion for summary judgment moot. The court also granted Plaintiff leave to add Defendant Z Legal as a new Defendant.

On September 23, 2024, Plaintiff filed the operative Third Amended Complaint (“TAC”) alleging the same a single cause of action for injunctive relief for violation of ICA. Defendant Z Legal was added as a new defendant, but no proof of service upon Z Legal has been filed with the court.

Defendant Zaldivar has filed a demurrer and seeks to strike the TAC. Plaintiff opposes the Motion. The matter is now before the court.

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (c), (d), and (h).) “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

Exhibit A: a true and correct copy of the Transcript of Court’s Ruling on Defendant’s Demurrer to, and Motion to Strike the First Amendment Complaint (FAC).

Exhibit B: a true and correct copy of the Court’s Ruling on Defendant’s Demurrer to, and Motion to Strike the First Amended Complaint (FAC).

Exhibit D: a true and correct copy of the Plaintiff’s First Amended Complaint (FAC).

Exhibit F: a true and correct copy of the Plaintiff’s Second Amended Complaint (SAC).

Exhibit G: a true and correct copy of the Date and Time of Filing of Plaintiff’s FAC.

Exhibit H: a true and correct copy of the Transcript of Hearing on Demurrer and Motion to Strike the Second Amended Complaint.

Exhibit I: a true and correct copy of Ruling on Demurrer and Motion to Strike the Second Amended Complaint, dated August 8, 2023.

Exhibit J: a true and correct copy of the AB 1159 Legislative History of Immigration Consultant Act.

Exhibit K: a true and correct copy of the Business and Professions Code §22446.5 with Suggested Form Pleading that Contains CCP §526(a) Pleading Allegations.

Exhibit M: a true and correct copy of the Secretary of State’s Acknowledgment of Immigration Bond.

Exhibit R: a true and correct copy of the Public Portal Printout from LASC Website.

Exhibit S: a true and correct copy of the Defendant’s Request for Admissions, Set One, Propounded on March 13, 2023.

Exhibit T: a true and correct copy of the Plaintiff’s Supplemental Response to Defendant’s Request for Admissions, Set One, Served on June 13, 2023.

Exhibit U: a true and correct copy of the Defendant’s Special Interrogatories, Set One, Propounded on March 13, 2023.

Exhibit V: a true and correct copy of the Plaintiff’s Response to Special Interrogatories, Set One, Served on April 14, 2023 [as to SPROGS 4 and 5).

Exhibit W: a true and correct copy of Ruling on Defendant Z Legal Services Inc’s Motion for Summary Judgment, Which Authorized an Amendment to add Defendant Z Legal Services, dated September 13, 2024.

Exhibit X: a true and correct copy of Defendant’s Form Interrogatories, Set One, Propounded On March 13, 2023.

Exhibit Y: a true and correct copy of Plaintiff’s Response to Form Interrogatories, Set One, Served on April 14, 2023.

Exhibit Z: a true and correct copy of the Minute Order on Defendant Sonia Zaldivar’s Demurrer and Motion to Strike the Second Amended Complaint.

Exhibit AA: a true and correct copy of the Minute Order on Defendant Z Legal Services, Inc’s Motion for Summary Judgment, Dated September 23, 2024.

Exhibit BB: a true and correct copy of the Minute Order Nunc Pro Tunc on Defendant Z Legal Services, Inc’s Motion for Summary Judgment, Dated September 23, 2023.

Exhibit CC: a true and correct copy of the Transcript of the Hearing on Defendant Z Legal Services, Inc’s Motion for Summary Judgment.

Exhibit EE: a true and correct copy of Plaintiff’s Opposition to Motion to Quash Service of Summons.

Exhibit FF: a true and correct copy of the hearing on Defendant Z Legal Services, Inc’s Motion to Quash Service of Summons.

Judicial notice of Exhibits, H, CC, and FF are denied as because the relevant portions of the transcripts are not highlighted, contain hearsay and controverted facts that require formal proof and are not the proper subject for judicial notice. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.)

Judicial notice of Exhibit K is denied as Defendant fails to explain where she obtained the suggested form pleading for Bus. & Prof. Code § 22446.5 and whether the form is the proper subject for judicial notice. Nor does the form suggest that CCP § 526(a) applies to Bus. & Prof. Code § 22446.5.

Defendant also fails to show that the court may take judicial notice of Exhibit L, therefore the request is denied.

“It is true that a court may take judicial notice of a party's admissions or concessions, but only in cases where the admission “can not reasonably be controverted,” such as in answers to interrogatories or requests for admission, or in affidavits and declarations filed on the party's behalf.” (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485.) While Exhibits S, T, U, V, X, and Y as these are discovery responses, Defendant fails to explain how each of these exhibits are relevant to the Motions at issue. (See American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 441, fn. 7 [“Although a court may judicially notice a variety of matters (Evid. Code, §¿450 et seq.), only relevant material may be noticed.”] [italics original].)

Therefore, the request for judicial notice of Exhibits S, T, U, V, X, and Y is denied.

The court further overrules Plaintiff’s objections to the request for judicial notices as it a broad objection that fails to object to specific materials.

Exhibit HH: Minute Order in IRDC v Young, Case Number 24STCV15196, dated September 24, 2024.

Exhibit HH is a trial court ruling in another case that has no precedential value in this court and is improperly submitted as precedent. This is beyond the scope of judicial notice and is legally improper. (See Budrow v. Dave & Buster's of California, Inc. (2009) 171 Cal.App.4th 875, 884–885.) Exhibit II is irrelevant as the delayed discovery rule does not apply to this action. Lastly, the court does not consider matters submitted on reply. “Points raised for the first time in a reply brief will not be considered.” (Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187 Cal.App.3d 299, 320.)

The request for judicial notice is granted as to Exhibits A to G, I, J, M, R, W, Z, AA, BB, EE, and GG. The request for judicial notice is denied as to Exhibits H, K, L, S, T, U, V, X, Y, CC, and FF.

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, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿

¿Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP, § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP, § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿

Demurrer[1]

Defendant alleges that Plaintiff improperly amended the TAC by adding new allegations against Defendant Zaldivar that went beyond the court’s September 13, 2024, Order that permitted Plaintiff to add Defendant Z Legal as a new Defendant rather than a Doe Defendant. “The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

While Plaintiff may have added new allegations to support the single cause of action for violations of ICA, Plaintiff did not add a new cause of action, and the allegations are within the scope of permitted amendment as they added particularity to the ICA claim. Defendant fails to cite case law to support the contention that the TAC should be dismissed due to Plaintiff adding new allegations that support the cause of action already pled.

First, Defendant asserts that the demurrer to the TAC should be sustained because the TAC includes allegations that were previously stricken. (Demurrer, at p. 15.) While the court struck certain allegations and exhibits from the SAC with leave to amend, Plaintiff did not timely amend and the inclusion of these stricken allegations in the TAC violate the August 8, 2023, Order such that the demurrer should be sustained.

Plaintiff relies on authority that supports striking the offending allegations in the TAC, but the cited authorities do not permit the court to sustain a demurrer without leave to amend. (See Ricard v. Grobstein, Goldman, Stevenson, Siegel, LeVine & Mangel (1992) 6 Cal.App.4th 157, 161[“A trial court has authority to strike sham pleadings, or those not filed in conformity with its prior ruling.”]; Janis v. California State Lottery Com. (1998) 68 Cal.App.4th 824, 829 [accord].)

The proper basis to object to the improperly included allegations is by a motion to strike, not via demurrer. 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.) Therefore, the demurrer will not be sustained on the basis that the entire TAC should be stricken.

Second, Defendant asserts the TAC violates the sham pleading doctrine and the demurrer should be sustained. “[T]he policy against sham pleading permits the court to take judicial notice of the prior pleadings and requires that the pleader explain the inconsistency. If he fails to do so the court may disregard the inconsistent allegations and read into the amended complaint the allegations of the superseded complaint.” (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384.) “Plaintiffs therefore may avoid the effect of the sham pleading doctrine by alleging an explanation for the conflicts between the pleadings.” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 344.) The purpose of the sham pleading doctrine is to prevent the abuse of process but it is “‘not intended to prevent honest complainants from correcting erroneous allegations ... or to prevent correction of ambiguous facts.’ [Citation.]” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 426 (Deveny).)

Defendant asserts the TAC is a sham pleading because the “TAC omit allegations fatal to the First Cause of Action; they add ultimate facts where no ultimate facts existed, and adds ultimate facts which contradict other ultimate facts in the original Complaint.” (Demurrer, at p. 15:23-25.)

A specific allegation that Defendant asserts is a sham pleading is alleging that Z Legal was a Doe 1 in the SAC and then adding that Z Legal as a new defendant in the TAC. On September 13, 2024, the court recognized it erred in permitting Defendant Z Legal to be added as a Doe defendant because Z Legal did not exist at the time the original Complaint was filed. Accordingly, the court granted Plaintiff leave to add Z Legal as new defendant because the statute of limitations had not yet run. (See Order 09/13/2024 at pp. 6-7.) Adding Z Legal as a new Defendant rather than alleging it is Doe 1 is an allegation that has an explanation and is not a sham pleading.

Furthermore, Plaintiff posits that because the Doe 1 amendment was quashed for failing to comply with CCP § 474, the amendment was void and “the sham pleading doctrine cannot apply here because, by virtue of the DOE substitution being quashed, Defendant Z Legal was not named in the SAC as DOE 1 or otherwise.” (Opp. at pp. 5:24-6:2.) As the Doe amendment was quashed, the amendment is void and the Doe 1 substitution never occurred. “If the terms of Code of Civil Procedure section 474 have not been complied with, the purported defendant has not been named as such in the complaint.” (Maier Brewing Co. v. Flora Crane Service, Inc. (1969) 270 Cal.App.2d 873, 875.)

The court fails to see how now that Defendant Z Legal has been added as a new defendant, the allegations made against Doe 1 are inconsistent. The TAC continues to allege that Does 1 to 5 are employees who failed to submit a background check to the Secretary of State. (TAC, ¶ 21(f).) The TAC identifies Defendant Z Legal as an agent of Defendant Zaldivar and continues to assert that Defendant Zaldivar uses the corporate entity to violate the ICA. (TAC, ¶ 5.) The TAC further alleges that Defendant Z Legal is the corporate alter ego of Defendant Zaldivar. (Id. ¶ 3.) That Plaintiff was mistaken in alleging that Defendant Z Legal was Doe 1 does not mean Plaintiff cannot correct the error, nor that the court must strike the entire TAC when the court authorized Plaintiff to correct its error.

Defendant further asserts that the TAC is a sham pleading because it omitted the allegation that Defendants failed to maintain a bond of $100,000.00 as pled in the original Complaint. However, the TAC continues to allege that Defendants have not complied with the bond requirement:

The court fails to find that above allegations related to the bond requirement violate the sham pleading doctrine.

Defendant Zaldivar attempted to provide evidence that she complied with the bond requirement. (O’Hara Decl., Ex. M, L.) Exhibit L is a letter from Merchant’s Bonding Company and Defendant fails to show that this is a type of document of which the court can take judicial notice. Exhibit M is from the California Secretary of State website merely stating that Defendant “Sonia I. Zaldivar” doing business as “Z Legal Services.”

Even if Defendant could show that all Defendants have complied with the Bond requirement or are excused from complying, the demurrer could not be sustained as it fails to dispose of the entire ICA claim. “A demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.) That Defendant can show that certain provisions of ICA were not violated does not mean that other provisions of ICA were also not violated, and that Plaintiff cannot show any violation of the ICA.

Defendant further asserts that certain ICA violations alleged in the SAC and certain allegations related to Paragraph 19 in the SAC are omitted from the TAC because Plaintiff relied on Defendant’s discovery responses to find there are no violations of those provisions. (Demurrer, at p. 19:10-23.) Defendant asserts that this is a sham pleading because said disproved allegations were omitted from the TAC, but Defendant fails to cite any legal authority that requires Plaintiff to continue to include disproven facts in subsequent pleadings. Moreover, Defendant fails to show that the allegations and purported ICA violations that remain in the TAC are materially inconsistent with the allegations in the previous pleadings and that the inconsistencies are without explanation. (See Deveny, supra, 139 Cal.App.4th at p. 426 [sham pleading doctrine does not prevent correction of erroneous allegation or prevent the correction of ambiguous facts].

Defendant also asserts that because the original Complaint was devoid of facts and the demurrer sustained, the TAC itself is a sham pleading:

In Davaloo v State Farm, 37 Cal.Rptr.3d 528 (2005), the Court of Appeals ruled on the legal effect of an amended complaint that had been filed after the original complaint. The original complaint had been conclusory, generic, and devoid of specific factual allegations. Id. The Court of Appeals described the amended complaint as a “sham” pleading. Id. Accordingly, the amended complaint could not cure its defects because the original compliant violated CCP §425.10.

Davaloo v. State Farm (2005) stands for the proposition that the courts “compare the factual allegations in the original and amended complaint” to determine “whether an amended complaint should be deemed filed as of the date of the original pleading.” (Davaloo, supra, 135 Cal.App.4th at pp. 415-416.) “An amended complaint relates back to a timely filed original complaint, and thus avoids the bar of the statute of limitations, only if it rests on the same general set of facts and refers to the same ‘offending instrumentalities,’ accident and injuries as the original complaint.” (Id. p. 415.) Here, the statute of limitations for ICA has not yet accrued and the relation back doctrine is not at issue. Therefore, Davaloo is not applicable and does not support Defendant’s proposition that the TAC cannot be properly amended, and the demurrer must be sustained without leave to amend.

As Defendant fails to show that the TAC is a sham pleading, the demurrer is on this basis is overruled.

Defendant demurs to the TAC by asserting the TAC is devoid of ultimate facts and because ICA is a statutory violation, it requires violations to be pled with specificity.

While Defendant alleges that the TAC fails to allege ultimate facts, Defendant fails to explain what ultimate facts are missing from the TAC. Paragraph 21 of the TAC sets out the specific ICA violations Defendant Zaldivar violated. As to the specific date, and how many times Defendant Zaldivar violated each specified ICA provision, those specific facts are yet to be discovered and if known, are known only by the Defendant. “Under this doctrine of less particularity, less specificity is required in pleading matters of which the defendant has superior knowledge.” (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1028.) “A plaintiff ‘need not particularize matters ‘presumptively within the knowledge of the demurring defendant. [Citations.]’ [Citation.] This includes matters such as a defendant's knowledge or notice or intent.” (Thomas v. Regents of University of California (2023) 97 Cal.App.5th 587, 611.)

An ultimate fact “‘refers to a core fact, such as an element of a claim or defense, without which the claim or defense must fail.’” (People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 82.) Here, Defendant fails to identify which ultimate facts are missing from the TAC that makes the ICA claim fail as a matter of law. “What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)

Having read the TAC, the court fails to find that TAC is devoid of ultimate facts and is conclusory and uncertain. The demurrer on this basis is overruled.

Defendant asserts that Plaintiff’s claim for injunctive relief fails because the Complaint fails to allege irreparable harm. The court previously explained that Plaintiff’s right to injunctive relief stems from the ICA and not CCP § 526. (5/18/2023 Order at p. 6.) Consequently, Plaintiff is not required to show irreparable injury.

In Paul v. Wadler (1962) 209 Cal.App.2d 615, 26 Cal.Rptr. 341, the court borrowed half of the aforementioned federal rule and held that, “irreparable injury need not be shown in cases involving a preliminary injunction, where the injunction is authorized by statute, and the statutory conditions are satisfied. [Citations.]” [Citation.] Here we borrow the remainder of the federal rule and hold that inadequacy of a remedy at law need not be shown to obtain injunctive relief authorized by statute [] where the statutory conditions for issuance are satisfied.

(In re Marriage of Van Hook (1983) 147 Cal.App.3d 970, 985 [italics added] [foot note omitted].)

Here, the TAC alleges that Defendants violated Bus. & Prof. Code § 22441(d) by engaging in the unauthorized practice of the law. (TAC. ¶ 14.) Unauthorized practices include advising “customers as to which forms to use to receive the appropriate benefits, whether those benefits involve an adjustment of status from a temporary status to a permanent lawful status, or some other benefit, such as citizenship or a hardship waiver in the case of unlawful status.” (Ibid.) The TAC further alleges that Defendants continue to violate Bus. & Prof. Code § 22442.3(c)(1) by not including a clear and conspicuous statement that they are not attorneys in Instagram advertising. (Id., 16-19, Ex. 2-8.)

Accordingly, the court finds that by alleging that Defendants violated ICA, Plaintiff has alleged the public is harmed as the purpose of ICA is to protect consumers, thus Plaintiff is not required to allege a personal injury. (See Mendoza v. Ruesga (2008) 169 Cal.App.4th 270, 279.) Moreover, Bus. & Prof. Code § 22446.5(b) has a broader application than Bus. & Prof. Code 22446.5(a) because it confers standing to enforce ICA on:

Any other party who, upon information and belief, claims a violation of this chapter has been committed by an immigration consultant may bring a civil action for injunctive relief on behalf of the general public and, upon prevailing, shall recover reasonable attorneys’ fees and costs.

The fact that Plaintiff is not an aggrieved party, does not mean that Plaintiff cannot discover ICA violations. To find otherwise and accept Z Legal’s interpretation, would produce absurd consequences because it would make Section 22446.5 subdivisions (b) and(c) effectively void by depriving “[a]ny other party” and “[t]he Attorney General, a district attorney, or a city attorney” of standing to bring an ICA action. When interpreting a statute, “ ‘[w]e do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.’ ” (Meda v. Autozone, Inc. (2022) 81 Cal.App.5th 366, 378 [internal citation and quotation marks omitted].)

Therefore, because Z Legal was incorporated on February 3, 2023, the four-year statute of limitations articulated in Bus. & Prof. Code section 22448 has not yet run, and Plaintiff may amend the SAC to add Z Legal as a new defendant.

Defendant further alleges that the TAC makes references to events that are barred by the four-year statute of limitations. (Bus. & Prof. Code, § 22448.) One offending statement is the allegation stating: “Commencing in or around February 2023, Defendant Ms. Zaldivar started operating her unlawful immigration consultant enterprise via the Defendant Z Legal business entity.” (TAC, ¶ 3.) The court fails to see how the above allegation shows that the TAC is barred by ICA’s four-year statute of limitations or why the delayed discovery doctrine is applicable when the statute of limitations has not yet accrued.

The second offending statement is the allegation that “Defendant Ms. Zaldivar, herself, was unbonded for 17 years from 2000-2017.” (TAC, ¶ 21(n). While the court agrees that that above allegation is time barred, that alone is not a basis for sustaining a demurrer to the entire ICA cause of action. The proper basis for objecting to the allegation is via a motion to strike, not a demurrer as a demurrer cannot be sustained in part and must dispose of the entire cause of action to be sustained. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.)

The TAC further alleges that “[a]ll of the above-mentioned offenses were discovered on or after February 2, 2023” and “Defendant Z Legal was incorporated after the filing of this case and Defendants transition to using that business entity for the above-described unlawful immigration legal services enterprise occurred after the initial filing of this lawsuit.” (TAC, ¶ 23; see also SAC ¶ 22.) Defendant fails to show that the TAC on its face is barred by the statute of limitations. “‘A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily barred.’” (Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 224 [internal citations omitted].) “‘It must appear clearly and affirmatively that, upon the face of the complaint and matters of which the court may properly take judicial notice, the right of action is necessarily barred.’ [Citations.]” (Ibid.) Defendant fails to show that TAC is barred as pled.

Defendant also asserts that the allegations against Defendant Z Legal are not properly pled. The TAC alleges that Defendant Z Legal is an alter-ego of Defendant Zaldivar, an allegation Defendant does not challenge in this Motion. (TAC, ¶ 3.) “An alter ego defendant has no separate primary liability to the plaintiff. Rather, plaintiff's claim against the alter ego defendant is identical with that claimed by plaintiff against the already-named defendant.” (Hennessey's Tavern, Inc. v. American Air Filter Co. (1988) 204 Cal.App.3d 1351, 135.) Therefore, because Defendant Z Legal is the alter ego of Defendant Zaldivar, Plaintiff is not required to allege which specific ICA violations Z Legal violated, as Z Legal's liability stems from Defendant Zaldivar’s ICA violations and abuse of the corporate form.

The demurrer on the basis that the TAC is barred by the statute of limitations is overruled.

Defendant demurs to the entire TAC on the basis that Exhibit 5 is in Spanish without a certified translation and is incorporated into Paragraph 18 of the TAC. (Demurrer, at p. 26:23-27.) The demurrer based on the reference to Exhibit 5 in Paragraph 18 is overruled as the proper procedure to object to this allegation is via a motion to strike and not a demurrer.

Defendant contends that Bus. & Prof. Code § 22449(a) and (b) expressly permit immigration consultants to provide services related to DACA, Adjustment of Status, Family Petitions, NACARA, and Citizenship. (Demurrer, at p. 27:3-8.) Consequently, Paragraph 14 of the TAC falsely alleges that immigration consultants cannot provide such services. Bus. & Prof. Code, § 22449 states in relevant part:

(a) Immigration consultants, attorneys, notaries public, and organizations accredited by the United States Board of Immigration Appeals shall be the only individuals authorized to charge clients or prospective clients fees for providing consultations, legal advice, or notary public services, respectively, associated with filing an application under the federal Deferred Action for Childhood Arrivals program announced by the United States Secretary of Homeland Security on June 15, 2012.

(b)(1) Immigration consultants, attorneys, notaries public, and organizations accredited by the United States Board of Immigration Appeals shall be prohibited from participating in practices that amount to price gouging when a client or prospective client solicits services associated with filing an application for deferred action for childhood arrivals as described in subdivision (a).

Nothing in the TAC states that Defendants are accredited by the Board of Immigration Appeals and can provide consultation pursuant to section 22449. Defendant provides no fact that is judicially noticeable that would permit the court to find that Defendant is accredited by the Board of Immigration Appeals. Defendants’ accreditation by the Board of Immigration Appeals remains a disputed issue of fact, as well as whether Defendants can provide consultation regarding DACA and other services. Therefore, whether Paragraph 14 makes false allegations is a disputed issue of fact which this court will not adjudicate on demurrer. (Fremont, supra, 148 Cal.App.4th at pp. 113-114.) Moreover, even if Paragraph 14 made false allegations, a demurrer could not be granted because it would fail to dispose of the entire ICA cause of action. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.) Moreover, even if the allegation were true, it would not dispose of the entire ICA claim and the demurrer must be overruled.

Similarly, Defendant alleges that Paragraph 17^{^[2]} of the TAC contains false allegations stating: “Following receipt of this lawsuit, Defendant spoliated the zlegalservices.com, entirely.” (TAC, ¶ 17.)

On August 8, 2023, the court ruled on Plaintiff’s motion for Terminating, Evidence and/or Monetary Sanctions regarding the deletion of the website. After the hearing, the court found that Defendant Zaldivar played no role in deleting the website and denied Plaintiff’s motion. (Order 8/8/2023.) While the court agrees that Paragraph 17 contains false allegations, the proper procedure to challenge the allegation is by motion to strike and not by demurrer as a demurrer would fail to dispose of the entire cause of action.

Defendant’s Motion to Strike fails to comply with Cal. Rules of Court, rule 3.1322(a) which states:

A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.

Defendant fails to specify what specific portions of the TAC she seeks to strike. The court nevertheless considers the Motion on the merits.

In denying Defendant’s demurrer, the court outlined why the TAC was not a sham pleading. Accordingly, the request to strike the TAC on the basis that it is a sham pleading is denied. Defendant also asserts the TAC violates the court’s August 8, 2023 Order, therefore the entire TAC should be stricken. On August 8, 2023, the court ordered that Paragraph 15, lines 7 to 10 of the SAC be stricken with leave to amend. The relevant portions of Paragraph 15, lines 7 to 10 stated:

On that page, Defendants detail how they “solved” that customer’s problems and legalized her immigration status and that of her family, despite the fact that immigration consultants are expressly prohibited from “solving” the legal problems of their customers.

(SAC, ¶ 15.) The court struck portions of the Paragraph 15 in the SAC because Exhibit 2 did not state the alleged allegation as represented in Paragraph 15. (Order 8/8/2023) The August 8, 2023, Order also struck Exhibit 1 of the SAC with leave to amend because the document was in Spanish but there was no translation of Exhibit 1 certified under oath by a qualified interpreter, as required by Cal. Rules of Court rule 3.1110(g).

Plaintiff points out that because Exhibit 1 in the TAC is not the same as Exhibit 1 in the SAC, no translation is needed. Accordingly, the court finds that Defendant fails to provide a proper basis for striking Paragraph 15 and Exhibit 1 in the TAC.

The August 8, 2023, Order court also struck Paragraph 9(t) of the SAC at page 5, lines 1 to 12 and reference to “2443.3” on Paragraph 20(f) on Page 9 line 22 in the SAC. (Order 8/8/2023.)

That an immigration consultant may not advertise themselves as a consultant without maintaining the above-mentioned bond. Bus. & Prof Code § 22443.3.

(SAC, ¶ 9(f).) Defendant asserts that Paragraphs 10 and 21 in the TAC refrences the above allegations in violation of the August 8, 2023, Order.

Plaintiff states that Paragraph 9(t) in the SAC was a general statement of law that should not have been stricken. Plaintiff maintains that the allegations related to the bond requirement and references to Bus. & Prof Code § 22443.3, as alleged in Paragraph 10(t) of the TAC, are relevant to show the applicable law and support the allegation that Defendants advertised services without a bond.

That an immigration consultant may not advertise themselves as a consultant without maintaining the above-mentioned bond. Bus. & Prof Code § 22443.3.

While Paragraph 10(t) of the TAC references Bus. & Prof Code § 22443.3, the court agrees the allegation refers to a general statement of law that should not be stricken because Paragraph 10(t) is an accurate description of the law as codified in § 22443.3, which requires that any person who disseminates any statement that they are engaged in the business or acts in the capacity of an immigration consultant have on file with the Secretary of State a disclosure statement and bond. Therefore, the court agrees that it would be improper to strike a general and correct statement of the law.

The request to strike Paragraph 10(t) in the SAC and any references to the bond requirement is denied. The request to strike Paragraph 14 is denied because it presents triable issues of fact, as outlined above.

The court finds that the allegation that “Defendant Ms. Zaldivar, herself, was unbonded for 17 years from 2000-2017” should be stricken because it references conduct that occurred long after the statute of limitations passed. (TAC, ¶ 21(n). Plaintiff fails to explain why said allegation is relevant. The court strikes Paragraph 21(n) from the TAC with leave to amend.

The court also agrees that Exhibit 5 and references to Exhibit 5 in Paragraph 19 of the TAC should be stricken because there is no English translation of Exhibit 5 certified under oath by a qualified interpreter as required by Cal. Rules of Court rule 3.1110(g).

The court also agrees that the allegation related to spoliated evidence, as contained in Paragraph 17 line 23, should be stricken because on August 8, 2023, the court found that Defendant Zaldivar played no role in deleting the website and denied Plaintiff’s motion. (Order 08/08/2023.) The court strikes the word “spoliated” in Paragraph 17 with leave to amend.

Defendant’s Motion to strike is denied and granted in part. The court denies Defendant’s motion to strike the TAC in its entirety and grants the motion to strike Paragraph 21(n), Exhibit 5, and the word “spoliated” in Paragraph 17, line 23 with leave to amend.

Defendant’s demurrer to the TAC is overruled. Defendant’s Motion to strike is denied and granted in part. The court denies Defendant’s motion to strike the TAC in its entirety and grants the motion to strike Paragraph 21(n), Exhibit 5, and the word “spoliated” in Paragraph 17, line 23 with leave to amend. Plaintiff is granted 10 days leave to amend. The court sets the OSC RE: Amended Complaint for January 24, 2025, at 8:30 a.m. Defendant to give notice.

[1] Pursuant to CCP §§ 430.41 and 435.5(a), the meet and confer requirement has been met. (O’Hara Decl., ¶ 3, Ex. DD.)

[2] Defendant states the offending reference is in Paragraph 18 of the TAC, but the reference only appears in Paragraph 17 of the TAC.