Judge: Mark A. Young, Case: 19SMCV01861, Date: 2023-01-10 Tentative Ruling
Case Number: 19SMCV01861 Hearing Date: January 10, 2023 Dept: M
CASE NO.: 19SMCV01861
MOTION: Demurrer to the Third Amended Complaint
HEARING DATE: 1/10/2023
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.)
Analysis
Lee demurs to the following causes asserted in Murrey’s Third Amended Complaint (TAC) due to uncertainty and failure to state sufficient facts: Intentional Interference with Contractual Relations (5th C/A), Intentional Interference with Prospective Economic Advantage (6th C/A), Negligent Interference with Prospective Economic Advantage (7th C/A), and Deprivation of Constitutional Rights Pursuant to Cal. Civ. Code § 52.1 (8th C/A). Lee additionally argues that this Court had previously sustained Defendant’s demurrer to the Abuse of Process cause of action (9th) without leave to amend.
Interference Causes – Fifth, Sixth and Seventh Causes of Action
The elements for a cause of action for intentional interference with contractual relations are as follows: (1) plaintiff had a valid and existing contract with a third party; (2) defendant had knowledge of the contract; (3) defendant committed intentional and unjustified acts designed to interfere with or disrupt the contract; (4) actual interference with or disruption of the relationship; and (5) resulting damages. (Davis v. Nadrich (2009) 174 Cal.App.4th 1, 10.)
The elements for interference with prospective economic advantage are: (1) the existence of a prospective economic relationship with the probability of future economic benefit to plaintiff; (2) defendant’s knowledge of the relationship and intent to disrupt it; (3) actual disruption of the relationship; (4) caused by the defendant’s wrongful and unjustified conduct; and (5) plaintiff suffered damages as a result. (Youst v. Longo (1987) 43 Cal.3d 64, 71.) Further, the interference must be wrongful by some measure beyond the fact of the interference itself. (Della Penna v. Toyota Motor Sales (1995) 11 Cal.4th 376, 393.) A plaintiff may plead a specific intent to interfere or, alternatively, that defendant knew the interference was certain or substantially certain to occur as a result of its action. (Korea Supply Co., supra, 29 Cal.4th at 1153; see CACI 2202.)
“A plaintiff must establish an existing relationship to establish a claim for intentional interference with prospective economic advantage.” (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1291.) Allegations regarding interference with potential customers are insufficient to state a cause of action for intentional interference with prospective economic advantage. (See Korea Supply Co., supra, 29 Cal.4th at 1164 [the tort “‘protects the expectation that the relationship eventually will yield the desired benefit, not necessarily the more speculative expectation that a potentially beneficial relationship will arise”]; Roth v. Rhodes (1994) 25 Cal.App.4th 530, 546 [allegation that the defendant interfered with relations with future customers is insufficient to show an existing relationship].)
The elements for the tort of negligent interference with prospective economic advantage are: “(1) an economic relationship existed between the plaintiff and a third party which contained a reasonably probable future economic benefit or advantage to plaintiff; (2) the defendant knew of the existence of the relationship and was aware or should have been aware that if it did not act with due care its actions would interfere with this relationship and cause plaintiff to lose in whole or in part the probable future economic benefit or advantage of the relationship; (3) the defendant was negligent; and (4) such negligence caused damage to plaintiff in that the relationship was actually interfered with or disrupted and plaintiff lost in whole or in part the economic benefits or advantage reasonably expected from the relationship.” (Venhaus v. Shultz (2007) 155 Cal.App.4th 1072, 1078.)
Murrey provides conclusory allegations of prospective and existing relationships. “Plaintiff has existing and prospective scholarly and business relationships with various publishers and clients in academia and education and real estate and the legal profession with the probability of economic benefit from those relationships.” (TAC ¶ 109.) Plaintiff references that he “received his real estate license in 2017 and that it was then still active and thus he had the potential to rehabilitate his good name and reputation to earn a living in this industry as well as in regard to his scholarly writings and teachings.” (TAC ¶ 110.) He also points out “insurance contracts and other contracts with UCLA et al. wherein plaintiff was a named beneficiary and or understood to be a recipient of money.” (TAC ¶ 111.) While these allegations obliquely reference economic relationships, Murrey provides no allegation of a specific link between any contract/relationship of Plaintiff’s, and any clear disruption of that contract/relationship by Defendant. Plaintiff does not state how the discovery request in his lawsuits against other parties, or any other conduct by Defendant, resulted in a disruption of any existing or prospective relationships.
Plaintiff has been given four opportunities to plead the existence and disruption of specific economic relationships or contracts. As Plaintiff has again failed to plead sufficient facts, the Court will not grant leave to amend. Plaintiff has repeatedly failed to make a sufficient allegation of at least one specific relationship and how Defendant disrupted that relationship.
Accordingly, Defendant’s demurrer is SUSTAINED without leave as to the fifth, sixth and seventh causes of action.
Bane Act: 8th Cause of Action
A claim for violation of the Bane Act can be brought by an individual against a private person, where that person interferes with the Plaintiff’s legal rights by threat, intimidation, or coercion. (Civ. Code § 52.1(a), (b).) To allege a cause of action under Civil Code section 52.1, the plaintiff must allege that “the defendant interfered with or attempted to interfere with the plaintiff’s legal right by threatening or committing violent acts.” (Doe v. State (2017) 8 Cal.App.5th 832, 842.) “[A] plaintiff need not allege the defendant acted with discriminatory animus or intent; a defendant is liable if he or she interfered with the plaintiff’s constitutional rights by the requisite threats, intimidation, or coercion.” (O’Toole v. Superior Court (2006) 140 Cal.App.4th 488, 502; see Doe, supra, 8 Cal.App.5th at 842 [coercion inherent in the alleged constitutional violation, i.e., an overdetention in jail, is insufficient to meet the statutory requirement].) “The statute requires a showing of threatening conduct independent from the alleged interference or violation of a civil right.” (Id. at 842-843.)
The TAC alleges that Defendant intentionally interfered with, or attempted to interfere with, Plaintiff’s “right to earn a living and his right to protection from battery, assault, false imprisonment, violence, the threat of violence, vandalism of his property by threats, intimidation, defamation and or coercion.” (TAC ¶123.) Plaintiff alleges that Defendant sent multiple threats, including threats on Plaintiff’s life. (See TAC ¶¶ 52, 55, 57, 63, 69.) However, the TAC does not support that any of the alleged threats interfered with Plaintiff's right to earn a living. Moreover, Plaintiff provides no authority that his “right to earn a living” is a protected constitutional right under section 52.1.
Accordingly, Defendant’s demurrer is SUSTAINED without leave to amend as to the Eighth Cause of Aciton.
Abuse of Process
The abuse of process claim is based on an allegedly frivolous lawsuit and a false police report. “[T]he mere filing or maintenance of a lawsuit—even for an improper purpose—is not a proper basis for an abuse of process action.” (JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1523 [noting that abuse of process claims are also subject to the litigation privilege of section 47].) Therefore, to the extent that this seeks to state a cause of action for abuse of process, the claim fails. The demurrer is SUSTAINED without leave to amend.
Motion to Strike
Defendant moves to strike Paragraph 49 of the TAC: “Lee’s fraudulent fee waiver from 9 December 2019, despite the relevant facts that Lee, who has not worked for a decade, has been given millions of dollars from her family, owns income properties, a luxury car, etc.” These allegations have no relevance to the causes of action. The motion to strike is GRANTED without leave to amend.
Leave to File a Fourth Amended Complaint
Plaintiff requests leave to re-raise causes of action for slander. Plaintiff contends that the new allegations provide an exception to the litigation privilege. Apparently, new evidence emerged regarding Lee’s “ongoing Cheaterreport-related conspiracy to severely harm plaintiff and his cases v. Cheaterreport.” However, Plaintiff does not provide sufficient information on what this new evidence is, when Plaintiff discovered this evidence, and why this motion was not made sooner. Plaintiff refers generally to “defendant’s custom and habit of severely slandering [him] to both police and civilians that further fits in with ongoing new evidence [he has] developed concerning Lee’s conspiracy with both those who exploited Cheaterreport’s defamation/extortion campaign against [him] as well as Cheaterreport’s own criminal partners such as Aaron Minc and Minc Law, Rivera, et al.”
However, the proposed new causes of action premise this liability on Lee’s statements made in her Cross-Complaint. (See FAC ¶ 80.) Plaintiff does not explain how this avoids the litigation privilege. Therefore, the Court concludes that Plaintiff not only failed to comply with the procedural requirements for leave to add such causes, but that Plaintiff’s amendment would be futile.
Accordingly, Plaintiff’s motion is DENIED.