Judge: Mel Red Recana, Case: 22STCV25707, Date: 2024-11-20 Tentative Ruling
Case Number: 22STCV25707 Hearing Date: November 20, 2024 Dept: 45
Hearing
date: November 20, 2024
Moving
Party: Defendant Big Block Realty
Responding
Party: Plaintiff Yevgeny Ostrovskiy
(1) Demurrer to the Second Amended
Complaint
(2) Motion to Strike Attorneys’ Fees
and Punitive Damages from the Second Amended Complaint
The court
considered the moving papers and opposition.
The court OVERRULES Big Block Realty’s demurrer
to the first, second, third, and fourth causes of action of the Second Amended
Complaint.
The court GRANTS
Big Block Realty’s motion to strike punitive damages and attorney fees from the
Second Amended Complaint, WITHOUT LEAVE
TO AMEND.
Background
Plaintiff Yevgeny
Ostrovskiy (Plaintiff) filed this action on August 9, 2022 against Defendants
Mikhail Siretskiy; The Siretskiy Organization, LLC; Siretskiy Real Estate Inc.;
and Big Block Realty, Inc. (Big Block), alleging causes of action for (1)
Breach of Contract; (2) Fraud; (3) Breach of Fiduciary Duty; and (4) Theft. On
September 11, 2023, Plaintiff filed a First Amended Complaint (FAC) alleging
the same causes of action. Big Block demurred to the FAC, and the court
sustained the demurrer to the first and second causes of action. (06/06/2024 –
Minute Order.)
On July 10,
2024, Plaintiff filed the operative Second Amended Complaint (SAC) against Defendants
Mikhail Siretskiy; The Siretskiy Organization; Siretskiy Real Estate Inc.; Big
Block Realty, Inc. (Big Block); and Ronny Santana, (collectively Defendants),
alleging causes of action for the same causes of action. The SAC alleges Plaintiff
invested $100,000.00 with the Siretskiy Defendants pursuant to a Real Estate
Investment Agreement on August 21, 2018. (SAC, ¶ 25.) Defendants allegedly only
returned $60,000.00 and have not repaid $40,000.00, despite Plaintiff’s
demands. (SAC, ¶ 27.)
On August 13,
2024, Big Block filed its Demurrer and Motion to Strike the SAC. On November 7,
2024, Plaintiff filed an opposition. No reply has been filed.
Legal
Standard
Demurrer
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. (Code Civ. Proc., § 430.30, subd. (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.) “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.” (Code Civ. Proc., § 452.) 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 [internal quotation omitted].) In applying these standards, the court
liberally construes the complaint to determine whether a cause of action has
been stated. (Picton v. Anderson Union
High School Dist. (1996) 50 Cal.App.4th 726, 733.)
Motion to Strike
Motions to strike are used to reach defects or objections to pleadings
that are not challengeable by demurrer (i.e., words, phrases, prayer for
damages, etc.). (Code Civ. Proc., §§ 435-437.) A motion to strike lies only
where the pleading contains irrelevant, false, or improper matters, or has not
been drawn or filed in conformity with the law. (Code Civ. Proc., § 436.) The
grounds for moving to strike must appear on the face of the pleadings or by way
of judicial notice. (Code Civ. Proc., § 437.) A party may file a motion to
strike in whole or in part within the time allowed to respond to a pleading,
however, if a party serves and files a motion to strike without demurring to
the complaint, the time to answer is extended. (Code Civ. Proc., §§ 435, subd.
(b)(1), 435, subd. (c).)
Meet
and Confer
Before filing a
demurrer or motion to strike, the moving party must meet and confer in person,
by telephone, or video conference 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 and
motion to strike. (Code Civ. Proc., § 430.41, subd. (a).)
Here, Big
Block’s counsel attests that he and opposing counsel met and conferred on
August 9, 2024 regarding the issues in Plaintiff’s SAC. (Declaration of Nicolas
H. Pak, ¶ 4, Exh. A.) The parties were unable to come to an agreement. (Id.
¶ 5.) The court finds Big Block satisfied the meet-and-confer requirements.
Discussion
Big Block
Realty’s Demurrer Heading
Big Block demurs
to the first, second, and fourth causes of action on the grounds that they fail
to state facts sufficient to constitute a cause of action. (Code Civ. Proc., §
430.10, subd. (e).) Big Block demurs to all causes of action on the grounds of
uncertainty. (Code Civ. Proc., § 430.10, subd. (f).)
First
Cause of Action – Breach of Contract
Big Block argues
the SAC does not state facts sufficient to constitute breach of contract
because the SAC fails to establish an actionable contract between Plaintiff and
Big Block. Big Block notes that it is not a party to the Investment Agreement
at issue (attached to the SAC as Exhibit C). Plaintiff and Defendant Siretskiy
executed the agreement on August 19, 2019, before Big Block was the Responsible
Broker for Siretskiy according to California Real Estate statutes and
regulations. (SAC, ¶ 7 [noting the SAC states “[Defendant Big Block], from
September 8, 2020, until April 25, 2022 (the “BBR Term”), was the Responsible
Broker under California Real Estate statutes and regulations for Siretskiy”].)
Big Block was not associated with Defendant Siretskiy until after the agreement
was executed. Additionally, it is unclear which allegations Big Block is
supposed to admit or deny in the SAC.
In opposition, Plaintiff asserts that the SAC is very clear in stating
that Big Block became a constructive new partner to the August 19, 2019
agreement, when Defendant Siretskiy, an agent for Big Block, created a new Real
Estate Investment Agreement via email on November 27, 2020. (See SAC, ¶ 16.) California
statutes make Responsible Brokers, here Big Block, liable for the actions and
negligence of their salespersons, like Defendant Siretskiy, when they perform
acts requiring a real estate license. Failure to supervise Defendant
Siretskiy’s actions subjects Big Block to liability. Siretskiy’s November 27,
2020 email created a new agreement because Defendant Siretskiy adjusted the
interest rate from 16% to 25%. (Ibid.)
To plead breach of contract, the complaint must establish (1) the
existence of a contract; (2) plaintiff’s performance or excuse for failure to
perform; (3) defendant’s breach; and (4) damage to plaintiff resulting from
defendant’s breach. (Crossroads
Investors, L.P. v. Federal National Mortgage Ass’n (2017) 13 Cal.App.5th 757, 792.)
If the claim is based upon a written contract, the complaint must set out the
contract’s terms verbatim or the plaintiff must attach a copy of the written
contract to the complaint and incorporate it by reference. (Otworth v.
Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 459.)
The court finds
Big Block’s argument is without merit. The SAC alleges that Siretskiy is a
licensed California real estate agent and has been a licensed agent of Big
Block. (SAC, ¶ 2.) Siretskiy was subject to Big Block’s supervision when Big
Block became Siretskiy’s Responsible Broker, under Business and Professions
Code section 10015.1, on September 8, 2020. (SAC, ¶ 2.) The SAC further alleges
that although Big Block was not Siretskiy’s Responsible Broker on the date the
original Real Estate Investment Agreement was signed, after Big Block and
Siretskiy signed the Big Block Realty Independent Contractor Agreement dated
September 8, 2024, Big Block assumed the benefits and obligations of
Siretskiy’s licensed contracts, including those Siretskiy entered during the
term of the Siretskiy-Big Block Agreement. (SAC, ¶ 9.) Big Block became a party
to a new contract between Siretskiy and Plaintiff when Siretskiy amended the
existing Real Estate Investment Agreement by email in November 2020. (SAC, ¶¶ 9,
16.) Siretskiy’s subsequent changes to the original Real Estate Investment
Agreement and misrepresentations occurred during the Big Block period,
specifically via emails on November 19 and November 27, 2020.
The facts are
sufficient to state a cause of action for breach of contract because Siretskiy’s
subsequent amendments to the Real Estate Investment Agreement and the
misrepresentations occurred while Big Block was Siretskiy’s Responsible Broker.
The court therefore OVERRULES Big Block’s
demurrer to the first cause of action because it states facts sufficient to
constitute a cause of action and is not uncertain. (Code Civ. Proc., § 430.10,
subds. (e), (f).)
Second
Cause of Action – Fraud
Big Block argues the SAC fails to state facts sufficient to constitute
a fraud claim because (1) the SAC is duplicative of and arises from the same
duty as Plaintiff’s breach of contract claim; (2) the SAC admits Big Block was
not the responsible broker when the Real Estate Investment Agreement was
executed; (3) the SAC sets forth conclusory statements lacking specificity; and
(4) the SAC fails to plead particular facts showing Big Block’s intent to
defraud Plaintiff.
In opposition, Plaintiff asserts that as the Responsible Broker, Big
Block is vicariously liable for Siretskiy’s misrepresentations from
September 8, 2020, until April 25, 2022. (Opposition, p. 9:8-12 [citing Civ.
Code, § 2338; Bus. & Prof. Code, § 10177.5.].) Siretskiy fraudulently
induced Plaintiff to invest $100,000. Plaintiff also asserts that the SAC’s
factual allegations state where (via telephone and online platforms via text
and email), how (using false sales listings), by what means (by manipulating
financial statements and projections), and when (specific dates ranging from
November 19, 2020 to April 15, 2022) Siretskiy’s misrepresentations occurred.
(SAC, ¶ 19(K)-(W).) The SAC also pleads specific misrepresentations including
the text of the misrepresentations. (SAC, ¶¶ 18-19.)
The elements of fraud are: “(a) misrepresentation (false
representation, concealment, or nondisclosure); (b) knowledge of falsity (or
‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable
reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [internal quotation
marks omitted] [citing 5 Witkin, Summary
of Cal. Law (9th ed. 1988)
Torts, § 676, p. 778; Civ. Code, § 1709.].) In California, fraud,
including negligent misrepresentation, must be pleaded with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity
demands that a plaintiff plead facts which show how, when, where, to whom, and
by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469 [quoting Lazar, supra, 12 Cal.4th at p. 645, internal quotation marks
omitted.].)
“A person may not ordinarily recover in tort for the breach of duties
that merely restate contractual obligations. Instead, courts will generally
enforce the breach of a contractual promise through contract law, except when
the actions that constitute the breach violate a social policy that merits the
imposition of tort remedies. (Citation)” (Stop Loss Ins. Brokers, Inc. v. Brown & Toland
Medical Group (2006) 143
Cal.App.4th 1036, 1041 [internal quotations omitted].)
“[A] principal is responsible to third persons for the negligence of
his agent in the transaction of the business of the agency, including wrongful
acts committed by such agent in and as a part of the transaction of such
business, and for his willful omission to fulfill the obligations of the
principal.” (Civ. Code, § 2338.) “When a final judgment is obtained in a civil
action against any real estate licensee upon grounds of fraud,
misrepresentation, or deceit with reference to any transaction for which a
license is required under this division, the commissioner may, after hearing in
accordance with the provisions of this part relating to hearings, suspend or
revoke the license of such real estate licensee.” (Bus. & Prof. Code, §
10177.5.) “
The court finds that Big Block’s arguments have merit. The SAC alleges
the breach of contract claim arises from amendments to the Real Estate
Investment Agreement which occurred between September 2020 and April 2022. The
SAC also alleges that Siretskiy told Plaintiff “Your money is safe with me and
will be returned in one year, guaranteed.” (SAC, ¶ 18(A).) The SAC also alleges
Plaintiff relied on these misrepresentations in deciding whether to execute the
original Real Estate Investment Agreement and agree to the November 2020
amendments. (SAC, ¶ 17.) However, the SAC does plead that Siretskiy made
specific misrepresentations about payouts even though he had no intention or
ability to make the payouts. (SAC, ¶ 19(G), (O), (V).) The SAC pleads Plaintiff’s
reliance on these misrepresentations in deciding to enter the Investment
Agreement, investing $100,000, and the resulting damages of only receiving
$60,000.00 of his investment back. (SAC, ¶ 27.)
These alleged facts are sufficient to state a cause of action for fraud
because they are based upon conduct used to induce Plaintiff to agree to
execute the investment agreements.
The court therefore OVERRULES Big Block’s demurrer to the second cause
of action because it states facts sufficient to
constitute a cause of action and is not uncertain. (Code Civ. Proc., § 430.10,
subds. (e), (f).)
Third
Cause of Action - Breach of Fiduciary Duty
Big Block argues the SAC’s third cause of action is uncertain because
Big Block is unclear about which alleged contract gives rise to a fiduciary
duty owed by Big Block to Plaintiff. It is unclear whether Defendant Big Block
allegedly owes a fiduciary duty to Plaintiff arising from the Investment
Agreement, an amended Investment Agreement, a “new contract” or “new Real
Estate Investment Agreement,” or a combination thereof.
In opposition, Plaintiff argues that the court already overruled Big
Block’s previous demurrer to this cause of action in the original Complaint.
Plaintiff notes the language is almost identical in both the Complaint and the
SAC and that Big Block changed tactics demurring on the ground of uncertainty
without merit.
The court agrees with Plaintiff that the SAC’s language is almost
identical to the original Complaint. The court also notes the SAC contains more
specific than the Complaint in that it alleges facts showing Big Block was the Responsible
Broker supervising Siretskiy at the time of the alleged misrepresentations that
occurred when Plaintiff and Siretskiy entered into an amended Investment
Agreement on November 27, 2020. The SAC states: “BBR became the constructive
party to a new contract between Siretskiy and Plaintiff when Siretskiy, as
agent for BBR, the Responsible Broker, created a new Real Estate Investment
Agreement via email, on November 27, 2020, when he adjusted the interest rate
from 16% to 25%, and the term from 13 months to 15 months.” (SAC, ¶ 16.)
Because the SAC alleges this new Investment was formed after September 21,
2020, the court finds that no uncertainty exists regarding which agreement
gives rise to Big Block’s fiduciary duty to Plaintiff.
The court therefore OVERRULES Big Block’s demurrer to the third cause
of action because it states facts sufficient to
constitute a cause of action and is not uncertain. (Code Civ. Proc., § 430.10,
subd. (f).)
Fourth
Cause of Action – Theft
Big Block argues the SAC fails to sufficiently plead theft because the
SAC says nothing more than conclusory allegations that because “Defendants were
guilty of theft as defined by § 484 of the Penal Code, § 496(c) of the Penal
Code provides that Plaintiff is entitled to his damages $40,000.00 trebled, and
Attorneys’ fees.” (SAC, ¶ 47.) The SAC’s allegations are mere unfulfilled
promises and/or misrepresentations made by Defendant Siretskiy. The SAC also
alleges Big Block received or would have received, through reciprocal benefit,
the proceeds of Plaintiff’s investment. (SAC, ¶ 48.) Big Block also raises the
uncertainty argument as to which contract the theft claim arises.
In opposition, Plaintiff asserts that Big Block received or would have
received the proceeds of Plaintiff’s “investment” while knowing that the funds
had been obtained from Plaintiff based on false pretenses. (SAC, ¶ 48.)
Plaintiff asserts the contracts at issue are not uncertain. The SAC is clear
that Big Block expected Plaintiff’s money from the Real Estate Investment
Agreement until November 27, 2020, when their licensed agent Siretskiy replaced
that Agreement with a New Investment Contract with new rates. (SAC, ¶¶15-16.)
“To prove theft, a plaintiff must establish criminal intent on the part
of the defendant beyond ‘mere proof of nonperformance or actual falsity.’
[Citation] This requirement prevents ‘[o]rdinary commercial defaults’ from
being transformed into a theft. [Citation] If misrepresentations or unfulfilled
promises ‘are made innocently or inadvertently, they can no more form the basis
for a prosecution for obtaining property by false pretenses than can an
innocent breach of contract.’ [Citation]” (Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333, 361-362.)
“Every person . . . who shall fraudulently appropriates property which
has been entrusted to him or her, or who shall knowingly and designedly, by any
false or fraudulent representation or pretense, defraud any other person of
money, labor or real or personal property, or who causes or procures others to
report falsely of his or her wealth or mercantile character and by thus
imposing upon any person, obtains credit and thereby fraudulently gets or
obtains possession of money, or property or obtains the labor or service of
another, is guilty of theft.” (Penal Code, § 484, subd. (a).)
The court finds that the SAC sufficiently alleges a theft claim. The
SAC’s factual allegations include several statements and misrepresentations
where Siretskiy promised over and over to repay Plaintiff money. (See SAC, ¶
19(K)-(W).) These are not innocent or inadvertent misrepresentations. These
facts allege a pattern of conduct which resulted in Defendants only returning
$60,000.00 of Plaintiff’s $100,000 investment after promising income above and
beyond $100,000.
The court therefore OVERRULES Big Block’s demurrer to the fourth cause
of action because it states facts sufficient to
constitute a cause of action and is not uncertain. (Code Civ. Proc., § 430.10,
subd. (e), (f).)
Big Block
Realty’s Motion to Strike
Punitive Damages
Big Block moves
to strike the following provisions from the SAC:
·
Paragraph 36, page 19, lines 12-13,
which states “… reasonable attorneys’ fees; and punitive damages for their
intentional and/or wantonly negligent behavior.”
·
Paragraph 43, page 20, lines 9-16,
which states: “The conduct of Defendants, and each of them, was intentional,
wanton, fraudulent, malicious, oppressive, and/or done with reckless and in
conscious disregard for the rights and welfare of Plaintiff, and designed and
intended to unjustly benefit and enrich said Defendants and to gain improper
advantages for them at the expense of Plaintiff, and such conduct was knowingly
directed, ratified, condoned, and accepted by Defendants, such that an award of
punitive and exemplary damages is justified against said Defendants, and each
of them, in an amount according to proof, and sufficient to make an example of
their reprehensible conduct.”
·
Paragraph 44, page 20, lines 17-18,
which states: “Because of the conduct of Siretskiy and BBR, punitive damages
should be awarded against them in a sufficient amount to punish this despicable
conduct.”
·
Demand for Relief as to the Second
Cause of Action, Letter C, page 22, lines 3-5, “For punitive damages according
to proof at trial in an amount sufficient to punish and make an example of
Defendants for their wrongful conduct;”
·
Demand for Relief as to the Third
Cause of Action, Letter C, page 22, lines 12- 14, “For punitive damages
according to proof at trial in an amount sufficient to punish and make an
example of Defendants for their wrongful conduct;”
Big Block argues
the SAC fails to sufficiently plead grounds for punitive damages because
Plaintiff has not pleaded oppression, fraud, or malice by clear and convincing
evidence. The SAC must plead something beyond mere commission of a tort using conclusory
statements. Plaintiff’s conclusory allegations merely use buzzwords without
alleging facts showing conscious disregard for Plaintiff’s rights or welfare.
In opposition,
Plaintiff asserts the SAC sufficiently pleads punitive damages against Big
Block because Civil Code section 3294 awards punitive damages for vicarious
fraud. Plaintiff notes that the SAC alleges that negotiating licensed
transactions such as the Real Estate Investment Agreement and the Replacement
Contract was within the scope of agent Siretskiy’s employment. (See SAC ¶¶ 11,
16, 19(A), 19(L), 30.) The extent of the liability is a matter of fact to be
determined through discovery.
“When a statute
recognizes a cause of action for violation of a right, all forms of relief
granted to civil litigants generally, including appropriate punitive damages,
are available unless a contrary legislative intent appears.” (Commodore Home
Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 215 [authorizing
punitive damages in an FEHA action].) The statutory elements for punitive
damages require that a defendant is guilty of “fraud, oppression, or malice.”
(Civ. Code, § 3294, subd. (a).) “Fraud” is “an intentional misrepresentation,
deceit, or concealment of a material fact known to the defendant with the
intention on the part of the defendant of thereby depriving a person of
property or legal rights or otherwise causing injury.” (Civ. Code, § 3294,
subd. (c)(3).) “‘Malice’ is defined as ‘conduct which is intended by the
defendant to cause injury to the plaintiff or despicable conduct which is
carried on by the defendant with a willful and conscious disregard of the
rights or safety of others’; ‘oppression’ is ‘despicable conduct that subjects
a person to cruel and unjust hardship in conscious disregard of that person's
rights.’” (Colucci, supra, 48 Cal.App.5th at p. 454 [quoting
Civ. Code, § 3294, subd. (c).].)
“An employer
shall not be liable for damages pursuant to subdivision (a), based upon acts of
an employee of the employer, unless the employer had advance knowledge of the
unfitness of the employee and employed him or her with a conscious disregard of
the rights or safety of others or authorized or ratified the wrongful conduct
for which the damages are awarded or was personally guilty of oppression,
fraud, or malice. With respect to a corporate employer, the advance knowledge
and conscious disregard, authorization, ratification or act of oppression,
fraud, or malice must be on the part of an officer, director, or managing agent
of the corporation.” (Civ. Code, § 3294, subd. (b).)
“When reviewing
award of punitive damages in favor of employee based on acts committed by
managing agent of corporate employer, [courts] must determine whether
substantial evidence supports finding, by clear and convincing evidence, that
actions were malicious or oppressive.” (Colucci v. T-Mobile USA, Inc. 48
Cal.App.5th 442, 443 [citing Civ. Code, § 3294, subds.
(a), (b), (c)].)
The court finds
that the SAC does not sufficiently state claims for punitive damages. The SAC
alleges Big Block was the responsible broker for Siretskiy from September 8,
2020 through April 25, 2022. (SAC, ¶ 8.) Siretskiy made intentional
misrepresentations to Plaintiff between November 2020 and April 15, 2022. (SAC,
¶ 19(K)-(W).) However, Plaintiff does not allege facts that Big Block “knew”
and consciously disregarded Siretskiy’s alleged unfitness as real estate agent or
about his fraudulent actions. The SAC also fails to allege that Big Block
knowingly ratified Sireitskiy’s actions.
The court therefore GRANTS Big Block’s motion to strike punitive
damages from the SAC.
Attorney Fees
Big Block moves
to strike the following provisions from the SAC:
·
Paragraph 32, page 18, lines 14-15,
which states “… and reasonable attorneys’ fees according to the Real Estate
Investment Agreement.”
·
Paragraph 36, page 19, lines 12-13,
which states “… reasonable attorneys’ fees; and punitive damages for their
intentional and/or wantonly negligent behavior.”
·
Demand for Relief as to the First
Cause of Action, Letter C, page 21, line 25, “For attorneys’ fees as permitted
by law;”
·
Demand for Relief as to the Second
Cause of Action, Letter D, page 22, line 6, “For attorneys’ fees as permitted
by law;”
·
Demand for Relief as to the Third
Cause of Action, Letter D, page 22, line 15, “For attorneys’ fees as permitted
by law;”
Big Block argues
the SAC fails to allege a proper basis for attorney fees because Plaintiff does
not plead an express agreement between the parties providing for attorney fees
or a statutory violation providing for attorney fees against Big Block. The
Investment Agreement (attached to the SAC as Exhibit C) expressly states “if
any payment obligation under this Note is not paid when due, the Investor
promises to pay all costs of collection, litigation including reasonable
attorney fees, whether or not a lawsuit is commenced as part of the collection
process.” Big Block also argues that Plaintiff cannot recover attorney fees for
breach of a fiduciary duty. In
opposition, Plaintiff asserts that the provision Big Block cites contains a typographical
error which is proof of Defendants’ attempt to defraud Plaintiff.
Attorneys’ fees are not available unless authorized by statute or an
agreement between the parties. (Code Civ. Proc., § 1021.)
The court finds that the SAC fails to allege facts awarding attorney
fees via statute or the investment agreements at issue.
The court therefore GRANTS Big Block’s motion to strike attorney fees
from the SAC.
It
is so ordered.
Dated:
_______________________
MEL RED RECANA
Judge of the Superior
Court