Judge: Latrice A. G. Byrdsong, Case: 23STLC02828, Date: 2024-02-28 Tentative Ruling

Case Number: 23STLC02828    Hearing Date: February 28, 2024    Dept: 25

Hearing Date:                         Wednesday, February 28, 2024

Case Name:                             Mollie Avinger-Anderson v. Cassandra Bible

Case No.:                                23STLC02828

Motion:                                   Defendant’s Demurrer to Plaintiff’s Second Amended Complaint

Moving Party:                         Defendant Cassandra Bible

Responding Party:                   N/A - Unopposed

Notice:                                    OK

 

Tentative Ruling:                    Defendant’s Demurrer to Plaintiff’s Second Amended Complaint is SUSTAINED without leave to amend.

  

Counsel for Plaintiff is ordered to electronically submit to the Court a proposed form of Judgment of Dismissal as to the Complaint within 10-days of notice of this Court’s Ruling.

                                                

 

BACKGROUND

 

            On April 28, 2023, Mollie Avinger-Anderson (Plaintiff) filed an initial Complaint against Cassandra Bible (Defendant) for defamation. Plaintiff filed a First Amended Complaint (FAC) on May 18, 2023.  After the demurrer to the FAC was sustained, Plaintiff filed the operative Second Amended Complaint (SAC) on December 1, 2023, which appears to allege one cause of action for a form of defamation. Defendant has demurred to the SAC as well. No opposition papers were filed.   

 

MOVING PARTY POSITION

 

            Defendant’s arguments upon Demurrer are two-fold: (1) the report made to the DMV is protected under litigation privilege and (2) the Complaint fails to state a cause of action for defamation.

 

DISCUSSION

 

 

Legal Standard and Analysis for Meet and Confer

 

            “Before filing a demurrer…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).) Defendant submits the Declaration of Bahram Madaen (Madaen Decl.) which states that Defense counsel sent a meet and confer letter to Plaintiff, but never heard back. (Madaen Decl., ¶ 4.) The requirements of CCP § 430.41(a) remain unsatisfied. However, per CCP § 430.41(a)(4), “A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” Therefore, the Court now turns its attention to the Demurrer.    

 

Legal Standard for Demurrer

 

            “[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.)

 

Analysis for Demurrer

 

            As an initial note, the SAC is ambiguous and unintelligible. Defendant makes two arguments upon Demurrer: (1) the report made to the DMV is protected under litigation privilege and (2) the Complaint fails to state a cause of action for defamation. As explained below, the Court agrees with both and sustains the Demurrer without leave to amend.

 

A.    The “Litigation Privilege” applies       

            The incident before the Court appears to have stemmed from a report made to the DMV that Plaintiff’s vehicle was stolen. Defendant is alleged to have made this report. Defendant argues that the statement is not defamation because it is protected by the “litigation privilege”. The litigation privilege provides that a “publication or broadcast” made as part of a “judicial proceeding” is privileged. (Action Apartment Assn., Inc., v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) The privilege is not limited to statements made during trial but may extend to steps taken prior to trial. (Id.) “The principal purpose of [the litigation privilege] is to afford litigants and witnesses the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” (Id.) The litigation privilege “derives from common law principles establishing a defense to the tort of defamation.” (Id.) The reporting of a vehicle that may have been stolen falls well within the scope of this privilege because it is the reporting of a crime, which if prosecuted triggers litigation within the courts. The privilege operates as an absolute privilege; therefore, the reporting of the alleged stolen vehicle is protected. 

B.      The SAC is ambiguous and unintelligible     

            “The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. The defamatory statement must specifically refer to, or be of and concerning, the plaintiff.” (John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312, quotation marks and citation omitted.)

           

            Defendant’s second argument is that the SAC fails to state a cause of action. The Court agrees. The SAC is ambiguous and unintelligible. The SAC describes how Plaintiff received the vehicle from her brother who had passed away (SAC, pg. 1, lines 27-28), then notes that Plaintiff had been in contact with an investigator by the name of “Mr. Madrid” from the DMV (Id. at lines 25-26.) However, at no point are the elements for defamation articulated, nor are the facts to support them. Therefore, the Demurrer to Plaintiff’s SAC is sustained.  

 

 

Legal Standard and Analysis for Leave to Amend

 

            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”]. As noted in the Minute Order regarding the ruling on the FAC, if the Demurrer to the SAC was sustained, the Court would consider denying leave to amend. (Minute Order for November 8, 2023, pg. 4.) “Pro. per. litigants are held to the same standards as attorneys.” (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) This is Plaintiff’s third attempt at submitting an intelligible complaint, however, the Court finds that none of the complaints filed articulate a proper cause of action. As such, the Court will deny leave to amend the SAC.

 

CONCLUSION

 

            Accordingly, Defendant’s Demurrer to Plaintiff’s Second Amended Complaint is SUSTAINED without leave to amend.

 

Counsel for Plaintiff is ordered to electronically submit to the Court a proposed form of Judgment of Dismissal as to the Complaint within 10-days of notice of this Court’s Ruling.

 

Moving Party is ordered to give notice.