Judge: Mark A. Young, Case: 19SMCV01861, Date: 2022-10-11 Tentative Ruling
Case Number: 19SMCV01861 Hearing Date: October 11, 2022 Dept: M
CASE NO.: 19SMCV01861
MOTION: Demurrer
to the First Amended Cross-Complaint
HEARING DATE: 10/11/2022
Legal
Standard
A
demurrer for sufficiency tests whether the complaint states a cause of action.
(Hahn v. Mirda (2007)
147 Cal.App.4th 740, 747.) When considering demurrers, courts read the
allegations liberally and in context. In a demurrer proceeding, the defects
must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed. (CCP §§
430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate
facts sufficient to apprise the defendant of the factual basis for the claim
against him. (Semole v. Sansoucie
(1972) 28 Cal. App. 3d 714, 721.) 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.)
A
special demurrer for uncertainty is disfavored and will only be sustained where
the pleading is so bad that defendant cannot reasonably respond—i.e., cannot
reasonably determine what issues must be admitted or denied, or what counts or
claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s
of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if
the pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Ibid.)
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); Cal. Rules of Court, 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”].)
“Liberality in permitting amendment
is the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to
show in what manner plaintiff can amend the complaint,
and how that amendment will change the legal effect of the
pleading. (Id.)
MEET
AND CONFER
Before filing a demurrer or motion to strike, the moving party must meet
and confer in person or by telephone with the party who filed the pleading to
attempt to reach an agreement that would resolve the objections to the
pleading. (CCP §§ 430.41, 435.5.)
Murrey fails to provide a declaration regarding meet and confer efforts.
Murrey provides in the notice that a meet and confer letter was sent to Lee on
March 4, 2021, prior to the filing of the FACC. Thus, Murrey fails show a meet
and confer effort was made as to this pleading. On this occasion, the Court
will proceed to address the merits of the demurrer despite the insufficiency of
the meet and confer effort. The Court cautions the parties that a
code-compliant meet and confer effort is required for each demurrer and motion
to strike on subsequent pleadings.
Analysis
Objections
The Court will not consider the
extrinsic evidence submitted in support of the demurrer and motion to strike,
such as Murrey’s declaration only attempts to contradict the pled allegations.
Demurrer
On February 14, 2022,
Defendant/Cross-Complainant Jenney Lee filed a First Amended Cross-Complaint (FACC)
against Plaintiff/Cross-Defendant Dr. Stewart Lucas Murrey, stating eight
causes of action for: 1) breach of oral employment contract; 2) wrongful
discharge; 3) quantum meruit; 4) conversion; 5) defamation/slander per se; 6)
unjust enrichment; 7) false light; and 8) abuse of process and malicious
prosecution. Generally, the
cross-complaint alleges three categories of offenses. First, Murrey and
his company breached oral employment contracts with Lee, intentionally
interfered with those contracts and her employment with SPR, LLC, and
wrongfully took a substantial portion of Lee’s equity in certain settlements
procured by Lee’s efforts. (FACC ¶¶ 3-12, 21-37, 43[breach of contract], 49
[wrongful discharge], 53 [quantum meruit], 68 [unjust enrichment].) Second, Lee alleges that Murrey borrowed items of
clothing from Lee and refused to bring any of the items back. (FACC ¶¶ 13, 58
[conversion].) Lastly, Lee alleges that in September 2020, Murrey
defamed Lee to the Los Angeles Police Department, Michael Moran, and Murrey’s
friends, when he falsely told them that he had a restraining order and a $10,000.00
judgement against Lee. (FACC ¶¶ 14, 38-41, 62-64 [defamation], 71-72 [false
light], 77-79 [abuse of process/malicious prosecution].) Lee found out about
this defamation in or about December of 2020. (Id.)
Murrey demurs to each cause of
action. Murrey argues that the doctrine of res judicata bars re-litigation of
the claims and issues decided, or could have been brought, in a prior action. The doctrine of res
judicata generally precludes parties, or their privies, from
relitigating a cause of action determined with finality in a prior proceeding.
(Smith v. ExxonMobil Oil Corp. (2007) 153 Cal.App.4th 1407, 1413-14; Wright
v. Ripley (1998) 65 Cal.App.4th 1189, 1193.) The doctrine has two aspects:
it applies to both a previously litigated cause of action, referred to as claim
preclusion, and to an issue necessarily decided in a prior action, referred to
as issue preclusion. (Vandenberg v. Superior Court (1999) 21 Cal.4th
815, 828.) “[R]es judicata does not merely bar relitigation of identical
claims or causes of action. Instead, in its collateral estoppel aspect, the
doctrine may also preclude a party to prior litigation from redisputing issues
therein decided against him, even when those issues bear on different claims
raised in a later case. Moreover, because the estoppel need not be mutual, it
is not necessary that the earlier and later proceedings involve the identical
parties or their privies. Only the party against whom the doctrine is invoked
must be bound by the prior proceeding. [Citations.]” (Ibid.)
“In California the phrase ‘cause of action’ is often used indiscriminately ... to mean counts
which state [according to different legal theories] the same cause of
action....” (Eichler Homes of San Mateo, Inc. v. Superior Court (1961)
55 Cal.2d 845, 847.) For purposes of applying the doctrine of res judicata, the
phrase “cause of action” has a more precise meaning: The cause of action is the
right to obtain redress for a harm suffered, regardless of the specific remedy
sought or the legal theory (common law or statutory) advanced. (Bay Cities
Paving & Grading, Inc. v. Lawyers' Mutual Ins. Co. (1993) 5 Cal.4th
854, 860.) “[T]he ‘cause of action’ is based upon the harm suffered, as opposed to
the particular theory asserted by the litigant. [Citation.] Even where there
are multiple legal theories upon which recovery might be predicated, one injury
gives rise to only one claim for relief. ‘Hence a judgment for the defendant is
a bar to a subsequent action by the plaintiff based on the same injury to the
same right, even though he presents a different legal ground for
relief.’ [Citations.]” Thus, under the primary rights theory, the determinative
factor is the harm suffered. When two actions involving the same parties seek
compensation for the same harm, they generally involve the same primary right.
(Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798.)
Small claims courts generally provide a more limited
preclusive effect. In the small claims’ context, issue preclusion
generally does not apply. (Sanders v. Walsh (2013) 219 Cal.App.4th 855;
See Pitzen v. Superior Court (2004) 120 Cal.App.4th 1374 [under certain circumstances, collateral estoppel may preclude
relitigation of an issue decided in a small claims action]; see also Sanderson v. Niemann (1941) 17 Cal.2d 563.)
Murrey argues that res judicata bars
all of the claims because on
November 19, 2019, the Court entered judgment against Jane Doe’s first amended
claim, stating that “Defendant Stewart Lucas Murrey does not owe the plaintiff
Jane Doe any money on plaintiff’s claim.” (RJN Ex. 1.) Lee’s “Claim and ORDER
to Go to Small Claims Court” alleged she sought $6,620.00 for services
rendered, resources used, money owed, including “rent, bills, supplies, food,
hours worked.” (Id.)
Reviewing
the record shows that the FACC asserts certain claims that are not barred by
claim preclusion. Lee appears to concede that she would be precluded on some of
her claims, as she brought the small claims case based on the money owed for
work in certain cases, but not as to an entire cause of action. Lee points out, however, that the FACC is
based on other cases which could not be heard in that small claims
action because at the time of filing, they had not been resolved or settled.
Indeed, the FACC alleges that Lee worked on helping Murrey prosecute
2:19-CV-02501. (FACC ¶ 5.) Murrey allegedly settled this action in 2020. (Id.)
The FACC alleges that Lee would receive 20% of gross settlements, or hourly
salary, whichever was greater, reimbursement for any work and personal
expenses” among other terms. (FACC ¶3.) As Lee alleges she was owed money on
the settlement, not all of her contract claims she asserts here could have been
reasonably brought with the small claims action. As such, the allegations show
that the contract-based causes of action would not be entirely precluded.
Moreover, the record on the small
claims action does not show that Lee sought to adjudicate any rights related to
the conversion. (See Sanders, supra, 219
Cal.App.4th at 869-871.) Thus, this action would not re-litigate this cause of
action. Given the limited preclusive effect of small claims judgments,
and the issue itself was not clearly litigated, the Court cannot find that the
conversion claim is barred.
Moreover, the FACC does not show
that the alleged defamation claims accrued prior to 2019. Notably, the defamation
occurred after 2019. (FACC ¶ 62.) Thus, Lee could not have brought these claims
as part of the small claims action.
Accordingly, the demurrer is
OVERRULED on res judicata grounds.
Motion
to Strike
In large part, Murrey’s motion to
strike inappropriately attempts to dispute the veracity of the allegations,
simply claiming by declaration that these allegations are false. For example,
Murrey reasons that the motion to strike several paragraphs should be granted because
“Lee is bitter Dr. Murrey rejected her, [and] fabricated this entire paragraph
to harass Dr. Murrey” Murrey challenges many paragraphs and allegations by
contesting that Lee is a liar and contradicting evidence. The motion cannot be
granted for any such reasons.
Beyond such contentions, Murrey
targets allegations he sees as inappropriate, inflammatory or irrelevant. More
specifically, he targets “any allegations” related to a) Murrey’s girlfriend
who passed from cancer; b) Murrey’s sons; c) the confidential global
settlement; d) Murrey being racist or anti-Semitic; e) Murrey and pornography; and
f) Murrey’s education or career. Murrey does not explain which specific
paragraphs or lines should be stricken. (See Notice of Mot. at 12-15.) Without
this specificity, the Court will not rule on the motion.
Lastly, Murrey moves to strike the request
for punitive damages. He reasons that the factual allegations are insufficient.
Punitive damages may be imposed where it
is proven by clear and convincing evidence that the defendant has been guilty
of oppression, fraud, or malice. (Civ. Code, § 3294 (a).) “Malice” is conduct
intended by the defendant to cause injury to the plaintiff or despicable
conduct which is carried on with a willful and conscious disregard of the
rights or safety of others. (Civ. Code, § 3294(c)(1).) “As amended to include
[despicable], the [Civil Code section 3294] plainly indicates that absent an
intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and
conscious’ disregard of the plaintiffs’ interests. The additional component of
‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior
Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable
conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.)
Despicable conduct is “conduct which is so vile, base, contemptible, miserable,
wretched or loathsome that it would be looked down upon and despised by
ordinary decent people. Such conduct has been described as ‘having the
character of outrage frequently associated with crime.’” (Tomaselli v.
Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)
The
FACC alleges that Murrey lied to police officers investigating a report filed
by Lee that he had a restraining order and a $10,000.00 judgment against Lee,
and that Lee had slashed his tires. He repeated these lies to third parties
such as Michael Moran, Alexander Petale and other of Murrey’s friends. (FACC ¶
62.) Murrey also filed multiple restraining orders against Lee, one of which
led to a Temporary Restraining Order. (FACC ¶¶ 71-72.) Murrey did so to extort
money from Cross-Complainant, maliciously, and with a willful and conscious
disregard for Lee’s rights. (FACC ¶¶ 78, 82.) As a result, Lee suffered loss of
earning and attorneys’ fees and costs. (FACC ¶81.) The FACC therefore
alleges that, as a matter of fact, Murrey did the above actions with the intent
to extort Lee out of money, i.e., an intent to injure Lee. This intent to harm
is sufficient to support a claim for punitive damages, if proven.
Accordingly, the motion to strike is
DENIED.
Other
Matters
On
its own motion, the Court continues Plaintiff’s motion for leave to file a
fourth amended complaint January 10, 2023, at 8:30 a.m., so that it can be
heard in tandem with Defendant’s demurrer to Plaintiff’s Third Amended
Complaint.
In
addition, the Court will continue the OSC re proof of service of Chase Herran
until January 10, 2023, at 8:30 a.m.
Plaintiff has until that date to complete service of Mr. Herran.