Judge: Melvin D. Sandvig, Case: 24CHCV00849, Date: 2024-05-28 Tentative Ruling
Case Number: 24CHCV00849 Hearing Date: May 28, 2024 Dept: F47
Dept. F47
Date: 5/28/24
Case #24CHCV00849
DEMURRER & MOTION TO STRIKE TO THE ORIGINAL COMPLAINT
Demurrer & Motion to Strike filed on 4/12/24.
MOVING PARTY: Defendant Mahasti Saghizadeh, D.D.S.
RESPONDING PARTY: Plaintiff Julian Lawrence Colberg
NOTICE: ok
Demurrer is to the entire complaint:
1. Trespass
2. Negligence
3. Intentional Infliction of Emotional Distress
4. Subversion
5. Unjust Enrichment
6. Racketeering (c.f., Conspiracy)
RELIEF REQUESTED IN MOTION TO STRIKE: An order striking the prayer for damages in the amount of $10,000,000.
RULING: The demurrer is sustained without leave to amend. The motion to strike is placed off calendar as moot.
SUMMARY OF FACTS & PROCEDURAL HISTORY
On 3/14/24, Plaintiff Julian Lawrence Colberg (Plaintiff), representing himself, filed this action against Defendant Mahasti Saghizadeh, D.D.S. (Defendant) for: (1) Trespass, (2) Negligence,
(3) Intentional Infliction of Emotional Distress, (4) Subversion, (5) Unjust Enrichment and (6) Racketeering (c.f., Conspiracy). After Plaintiff failed to respond to Defendant’s counsel’s meet and confer efforts regarding the issues Defendant has with the complaint, on 4/12/24, Defendant filed and served the instant demurrer to the entire complaint and motion to strike which seeks an order striking the prayer for damages in the amount of $10,000,000. (See Hanson Decl.).
On 5/2/24, Plaintiff filed a document titled “On Denial of Defendant’s Demurrer: Plaintiff Motions the Court for Summary Judgment (c.f., Declaration of Default) for Plaintiff and on 5/9/24, Plaintiff filed a document titled “On The Overruling of The Defendants Demur, The Plaintiff motions The Court for Summary Judgment (c.f, Declaration of Default Judgment) for the Plaintiff. On 5/20/24, Defendant filed a combined reply regarding the demurrer and Defendant’s Vexatious Litigant Motion which is scheduled to be heard on the same date as the demurrer and motion to strike.
ANALYSIS
A complaint must contain a statement of the facts constituting the cause of action in ordinary and concise language. CCP 425.10.
Plaintiff’s complaint consists of a single page setting forth a list of the above-mentioned six causes of action and a prayer for $10,000,000 in damages. Plaintiff has set forth no other facts to support or explain the basis for any claim against Defendant.
As such, the complaint is subject to demurrer because it fails to state facts sufficient to constitute any of the causes of action set forth and because it is so uncertain that Defendant cannot reasonably respond. See CCP 430.10(e), (f).
Plaintiff bears the burden of showing how the defects in the complaint can be cured by amendment. See Hedwall (2018) 22 CA5th 564, 580; Rakestraw (2000) 81 CA4th 39, 43-44. The documents mentioned above that Plaintiff has filed seemingly in response to the demurrer fail to indicate how Plaintiff can cure the defects in the pleading. These documents each consist of one page which merely sets forth the title of each document as set forth above and Plaintiff’s signature
CONCLUSION
The demurrer is sustained without leave to amend.
The motion to strike is placed off calendar as moot due to the ruling on the demurrer.
Dept. F47
Date: 5/28/24
Case #24CHCV00849
MOTION FOR AN
ORDER DECLARING PLAINTIFF A VEXATIOUS LITIGANT
&
FOR AN ORDER
REQUIRING PLAINTIFF TO POST SECURITY
Motion filed on 4/12/24.
MOVING PARTY: Defendant Mahasti
Saghizadeh, D.D.S.
RESPONDING PARTY: Plaintiff Julian Lawrence Colberg
NOTICE: ok
If this action
is not dismissed, Defendant requests that the Court issue a pre-filing order
requiring Plaintiff to post a bond in the amount of $20,000.00 prior to
proceeding with this action.
RULING: The motion is denied.
SUMMARY OF FACTS & PROCEDURAL HISTORY
On 3/14/24, Plaintiff Julian Lawrence Colberg
(Plaintiff), representing himself, filed this action against Defendant Mahasti
Saghizadeh, D.D.S. (Defendant) for: (1) Trespass, (2) Negligence,
(3) Intentional Infliction of Emotional Distress, (4)
Subversion, (5) Unjust Enrichment and (6) Racketeering (c.f., Conspiracy). After Plaintiff failed to respond to
Defendant’s counsel’s meet and confer efforts regarding the issues Defendant
has with the complaint, on 4/12/24, Defendant filed and served a demurrer to
the entire complaint and motion to strike which seeks an order striking the
prayer for damages in the amount of $10,000,000. The demurrer and motion to strike are also
scheduled to be heard on 5/28/24.
On 4/12/24, Defendant also filed and served the instant
motion seeking an order determining that Plaintiff is a vexatious litigant and
for a prefiling order prohibiting Plaintiff from filing any new litigation in
California state courts in propria persona without first obtaining leave of the
presiding judge of the court in which the litigation is proposed to be filed. If this action is not dismissed, Defendant
requests that the Court issue a pre-filing order requiring Plaintiff to post a
bond in the amount of $20,000.00 prior to proceeding with this action. The instant motion was originally scheduled
for hearing on 12/2/24 but was rescheduled to 5/28/24 pursuant to Defendant’s
request. (See 4/17/24 Minute
Order).
On 4/22/24, Plaintiff filed a document titled “Objection
to Defendant’s motion to court ordered $20,000 bond for Plaintiff and Plaintiff
Motions the court to strike the defendant’s mischaracterizations of the
plaintiff as a vexing litigant.” On
5/13/24, Plaintiff filed a document titled “Plaintiff consents to, and/or
Motions the Court for sanctions to the defense attorney based on the erroneous
ex parte application. Plaintiff objects
to and opposes the ex parte application filed by the defendant.”
On 5/20/24, Defendant filed a combined reply regarding
the instant motion and the demurrer and motion to strike which, as noted above,
are scheduled to be heard on the same date.
ANALYSIS
Defendant’s Request for Judicial Notice (RJN) is granted.
Defendant argues that the Court should declare Plaintiff
to be a vexatious litigant under CCP 391(b)(1), (2) and/or (3) because in March
of 2024, representing himself, Plaintiff filed eight separate actions,
including the instant action, against different defendants which Defendant
contends are frivolous and have no merit.
(See RJN, Ex.A-H).
CCP 391(b) provides, in relevant part, that a “‘[v]exatious
litigant’ means a person who does any of the following:
(1) In the immediately preceding
seven-year period has commenced, prosecuted, or maintained in propria persona
at least five litigations other than in a small claims court that have been (i)
finally determined adversely to the person or (ii) unjustifiably permitted to
remain pending at least two years without having been brought to trial or
hearing.
(2) After a litigation has been
finally determined against the person, repeatedly relitigates or attempts to
relitigate, in propria persona, either (i) the validity of the determination
against the same defendant or defendants as to whom the litigation was finally
determined or (ii) the cause of action, claim, controversy, or any of the
issues of fact or law, determined or concluded by the final determination
against the same defendant or defendants as to whom the litigation was finally
determined.
(3) In any litigation while acting
in propria persona, repeatedly files unmeritorious motions, pleadings, or other
papers, conducts unnecessary discovery, or engages in other tactics that are
frivolous or solely intended to cause unnecessary delay.”
Defendant has failed to establish that Plaintiff
currently qualifies as a vexatious litigant under CCP 391(b)(1), (2), or (3).
With regard to CCP 391(b)(1), none of the eight actions
filed by Plaintiff and referenced in Defendant’s Request for Judicial Notice
have been finally determined adversely to Plaintiff: (1) while the Court has
issued a tentative ruling sustaining the demurrer in 24CHCV00849, the instant
action, without leave to amend, the litigation has not yet been finally
determined; (2) 24CHCV00646 (assigned to Dept. F43) has been removed to Federal
Court; (3) 24CHCV00790 (assigned to Dept. F51) is still pending; (4) 24CHCV00848
(assigned to Dept. F51) is still pending; (5) 24CHCV00886 (assigned to Dept.
F-49) was dismissed pursuant to Plaintiff’s request on 4/15/24; (6) 24CHCV00887
(assigned to Dept. F51) was dismissed on 4/15/24 pursuant to Plaintiff’s
request; (7) 24CHCV01056 (assigned to Dept. F47) is still pending and (8) 24CHCV01057
(assigned to Dept. F51) is still pending.
Additionally, none of the eight actions have been pending at least two
years.
With regard to CCP 391(b)(2), as noted above, none of the
eight actions have been finally determined against Plaintiff. Even if any of the eight actions could be
deemed to have been finally determined against Plaintiff, Defendant has not
shown that Plaintiff has relitigated or attempted to relitigate the validity of
the determination or the causes of actions, claims, controversies and/or issues
of fact or law against the same defendant or defendants.
With regard to CCP 391(b)(3), Defendant has not shown
that Plaintiff has repeatedly filed unmeritorious motions, pleadings or other
papers, etc. Only two of the eight cases
are pending in this department and of those two only the instant case has been
before the Court on demurrer. This Court
has no authority to make determinations regarding the validity/merits of the
pleadings pending before other departments in this court.
CONCLUSION
The motion is denied.