Judge: Michael D. Washington, Case: 37-2021-00006529-CU-MC-NC, Date: 2024-05-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - May 16, 2024

05/17/2024  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael D Washington

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Civil - Unlimited  Misc Complaints - Other Demurrer / Motion to Strike 37-2021-00006529-CU-MC-NC LEAHY VS MOLINA-WILLIAMS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 04/25/2024

The Demurrer to First Amended Complaint brought by defendants Crystal Jackson (Jackson) and Shelisa Williams (Williams) is OVERRULED.

The Demurrer to First Amended Complaint brought by defendants Ricardo Franco (Franco), Cullen Tiernan (Tiernan), and Susana Williams (Williams) is OVERRULED.

The Demurrer to First Amended Complaint brought by defendants Basil Kimbrew (Kimbrew) and Lizet Angulo (Angulo) is OVERRULED.

Jackson, Williams, Franco, Tiernan, Williams, Kimbrew and Angulo shall have until Friday, May 31, 2024 to answer or otherwise plead.

The Case Management Conference set for hearing today is continued to Friday, June 14, 2024 at 1:30 p.m. in Department N-31 to coincide with what appears to be a final Motion to Set Aside Default when it appears the case may formally be at issue.

In addition, the Court will issue an Order to Show Cause re Why Case Should Not Be Stayed Pending the Outcome of the Appeal of the Anti-SLAPP Motion Brought by Defendant Joshua Cameron and said hearing shall be set for Friday, June 14, 2024 at 1:30 p.m. in Department N-31. Any party wishing to brief the issue of whether a stay of this case is appropriate pending the outcome of the anti-SLAPP appeal shall file and serve a response (via means similar to serving an opposition or reply under Code of Civil Procedure § 1005(c)), limited to 5 pages, at least 5 court days prior to the hearing.

Merits of Demurrers – Uncertainty All three of the pending demurrers raise 'uncertainty' as a ground for demurrer under Code of Civil Procedure § 430.10(f). 'A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond – i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.' (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) § 7:85, citing Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App. 612, 616, also citing A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695 (emphasis in original).) The stronger of these two arguments as applied to this case is the latter – that it is difficult to tell what counts or claims are directed against which of the defendants. Plaintiff Robert Leahy (Plaintiff) has commingled 17 different defendants in his allegations, and, though Plaintiff provides voluminous content, the parsing-out of that content as applied to each particular defendant leaves something to be desired. Nonetheless, 'judges usually make short Calendar No.: Event ID:  TENTATIVE RULINGS

3120818 CASE NUMBER: CASE TITLE:  LEAHY VS MOLINA-WILLIAMS [IMAGED]  37-2021-00006529-CU-MC-NC shrift of demurrers for uncertainty' because '[t]hey expect counsel to clear up any ambiguities though discovery... rather than by demurrer.' (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) § 7:86.) This Court is of the view that discovery is the better outlet for resolving any confusion or uncertainty than multiple rounds of demurrer and amendment.

Merits of Demurrers – Failure to State a Claim As to the remaining arguments, which, notably, are not necessarily brought by each of the demurring parties but which the Court will address in an omnibus fashion here, there are four that stand out substantively: defamation and slander, judicial restraint when it comes to involvement in the political processes, the statute of limitations and doctrine of laches, and the fraud claim.

As to defamation and slander, there is argument that Plaintiff is alleging three separate causes of action for libel, slander, and defamation. While these are terms of art, 'defamation' is essentially an umbrella term that covers both 'libel' (which is written) and 'slander' (which is spoken). 'It is not necessary that the cause of action be the one intended by plaintiff. The test is whether the complaint states any valid claim entitling plaintiff to relief. Thus, plaintiff may be mistaken as to the nature of the case, or the legal theory on which plaintiff can prevail. But if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer.' (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) § 7:41, citing Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38-39, also citing New Livable Calif. v. Association of Bay Area Governments (2020) 59 Cal.App.5th 709, 714-715, also citing Adelman v. Associated Int'l Ins. Co. (2001) 90 Cal.App.4th 352, 359, also citing Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 (emphasis in original).) As to judicial restraint when it comes to involvement in the political processes, Kimbrew and Angulo cite the case of Oakland Raiders v. National Football League (2001) 93 Cal.App.4th 572, 576, which in turn relies upon California Dental Assn. v. American Dental Assn. (1979) 23 Cal.3d 346, for the proposition that courts – the judiciary – generally take a reserved approach and decline to become embroiled in disputes involving political associations. While the claims brought here certainly stem from a fact pattern involving a caucus of the California Democratic Party, the claims themselves are largely framed in a manner that falls outside of the concern of becoming embroiled in political machinations. The claims Plaintiff asserts include: defamation (including libel and slander), property damage, fraud and deceit, and civil conspiracy. The only claim outside of these money-damage-based claims is for injunctive relief. In that claim, Plaintiff: '[p]rays for injunctive relief and equitable relief that would allow him to have a safe return to the Veterans Caucus without the fear of harassment by any Defendant, Plaintiff requests that if any of them hold leadership positions that they immediately resign by order to the court.' (ROA 42, ¶ 190.) However, alongside this request, Plaintiff also 'prays for a restraining order to prevent Defendants from harassing him.' (ROA 42, ¶ 192.) The Court can issue civil restraining orders, but whether it can make orders about who occupies the leadership positions of the Veteran's Caucus of the California Democratic Party is more suspect under the Oakland Raiders and California Dental cases cited by Kimbrew and Angulo. Ultimately, what is before the Court is a demurrer, and '[a] general demurrer does not lie to only part of a cause of action.' (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) § 7:42.2, citing Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167 (disapproved on other grounds by Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 948 (emphasis in original).) The California Dental case was a writ of mandate to the superior court to review a decision by the American Dental Association. It was resolved by a decision on the petition – not by demurrer or even summary judgment. The Oakland Raiders case was resolved on summary judgment, which brings it a bit closer to within the ambit of the instant case. It ultimately appears from the language of the Oakland Raiders case that the question of whether a court should consider claims about membership in a private voluntary organization is a matter of some discretion that involves a balancing test in which a court 'may decline to exercise jurisdiction.' Oakland Raiders, supra, 93 Cal.App.4th at 581-582, citing California Dental, supra, 23 Cal.3d at 353 (emphasis added). That balancing test requires inquiry into: '(1) the interest in protecting the aggrieved party's rights against (2) the infringement on the organization's autonomy and the burdens on the courts that will result from judicial attempts to settle such internal disputes.' Oakland Raiders, supra, 93 Cal.App.4th at 581, citing Calendar No.: Event ID:  TENTATIVE RULINGS

3120818 CASE NUMBER: CASE TITLE:  LEAHY VS MOLINA-WILLIAMS [IMAGED]  37-2021-00006529-CU-MC-NC California Dental, supra, 23 Cal.3d at 350. On demurrer, the facts must be indulged in favor of the complaining party. As such, before the Court can engage in a balancing test as described in California Dental and its progeny, some amount of factual development is necessary – making demurrer inappropriate.

As to the statute of limitations and doctrine of laches, Kimbrew and Angulo argue that the defamation claims are barred by a one-year statute of limitations and the fraud claim(s) are barred by a three-year statute of limitations. Plaintiff challenges this by arguing that the emergency rules passed during the Covid-19 pandemic tolled the applicable statute of limitations. Kimbrow and Angulo have not filed a reply addressing this argument. As the argument has gone unchallenged, the Court concludes that Plaintiff's responsive argument is meritorious – at least on demurrer.

There is also some argument that as to the fraud claim, Plaintiff has not sufficiently alleged justifiable reliance. Plaintiff's response in opposition argues that Kimbrew falsely represented to Plaintiff that Kimbrew had the authority to remove Plaintiff from the Bylaws Committee and that Plaintiff reasonably relied upon this representation. On demurrer, this is sufficient.

Procedural Issues The Court notes significant argument in the briefing by Plaintiff about whether the respective defendants engaged in adequate meet and confer efforts and whether they served documents in an appropriate and timely manner. There are certain professional courtesies that are generally expected and extended within the legal profession between and among skilled and professional counsel. Lasalle v. Vogel (2019) 36 Cal.App.5th 127. Some of these courtesies are enforced via ethical obligations imposed by the California State Bar – a body which has no authority over pro per litigants like the plaintiff and some of the defendants in this case. Id. Because of this, there are certain professional courtesies and/or efforts (such as the obligation to meet and confer in a meaningful and good faith manner) that cannot be enforced via traditional channels or mechanisms. As a result, the Court finds that it is appropriate in this case to apply its discretion in a manner that encourages professionalism in the adversarial process where possible, but also in a way that does not overly burden one side with professional obligations that the other is not bound by.

The Lasalle case specifically addressed taking a party's default too quickly. 'The State Bar Civility Guidelines deplore the conduct of an attorney who races opposing counsel to the courthouse to enter a default before a responsive pleading can be filed.' Lasalle, supra, 36 Cal.App.5th at 135, citing Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 702. The instant case has had an inordinate number of motions to set aside default considering there are two more pending after this court already ruled on two previous ones (which pertained to currently-demurring parties Franco and Tiernan). It appears that there was a fifth default – as to one defendant Richard Valdez – that was set aside by stipulation of the parties. (ROA 379.) That stipulation, however, included a $500.00 payment to Plaintiff by defense counsel – a payment that appears quite unusual and heavy-handed in comparison to typical modern civil practice.

The Court is also mindful of other tactics that have been at play in the instant lawsuit. For example, Plaintiff initially designated the case as 'complex,' which significantly increased fees on several defendants to make appearances and file motions in this case, while Plaintiff is on a fee waiver – creating a lopsided imbalance in terms of expense and burden on the parties. As another example, there has been previous dispute in this lawsuit about electronic service wherein Plaintiff has argued – correctly – that a pro per litigant is not required to accept electronic service, but that formal counsel are required to accept electronic service on behalf of their clients. Given that there is evidence in the record in this case that Plaintiff is otherwise willing to correspond via email, while Plaintiff has the legal right to refrain from agreeing to electronic service, the decision to do so appears to be tactical to, again, create a lopsided imbalance in terms of expense and burden on the parties.

The Court notes each of the above issues not to revisit them, but as a backdrop for how the Court views arguments that are made with regard to the present demurrers about whether or not the respective Calendar No.: Event ID:  TENTATIVE RULINGS

3120818 CASE NUMBER: CASE TITLE:  LEAHY VS MOLINA-WILLIAMS [IMAGED]  37-2021-00006529-CU-MC-NC defendants met and conferred in good faith prior to filing the demurrer. Plaintiff posits that: 'Defendants cannot get around the required meet and confer process by unilaterally declaring it futile.' (ROA 374, p. 4:25-26.) But '[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.' (Code of Civil Procedure § 430.41(a)(4).) As such, even if the meet and confer efforts were insufficient, the most the Court can do is continue the motion and order that the parties meet and confer. Here, the Court is not inclined to make such an order because the Court finds it persuasive that, in light of the overall tactical approach being employed by Plaintiff, meet and confer efforts would be futile.

The Court views the issue of service similarly. Plaintiff argues that he was not served with a copy of the Demurrer of Kimbrew and Angulo – at least not timely. Plaintiff admits that he 'found the demurrer papers left on [his] doorstep' on April 26, 2024. (ROA 374, Leahy Decl., ¶ 7.) The proof of service accompanying the Demurrer indicates that it was personally served on Plaintiff as well as electronically served. (POS 365.) As has been addressed previously, since Plaintiff does not accept electronic service, the Court views the electronic service reflected in the proof of service as a courtesy and commends Kimbrew and Angulo for their professionalism in attempting to ensure that Plaintiff had access to a copy of the papers via means additional to what was required. This is the kind of professional courtesy discussed above and discussed in the case of Lasalle v. Vogel (2019) 36 Cal.App.5th 127. In terms of official service, there is a proof of service on file indicating that Plaintiff was personally served, which renders the motion properly and timely served. (ROA 365.) Plaintiff vehemently denies this and states as follows: 8. I live in a gated, secure apartment complex where all visitors must register before entry. For Ms.

Chavez to have accessed my front door, she would have had to trespass on the property without permission.

9. I have also not been electronically served, notably, Defendants put in the wrong email on the proof of service, my email is RobeLeahy@me.com not RobLeahy@me.com. (ROA 374.) Based on these facts as presented, the Court must make a factual finding as to whether valid service was made and thus makes that finding in favor of Defendants. While it may be true that Plaintiff lives in a secure apartment complex, the fact that Plaintiff knew enough to find the papers left at his front doorstep within a day, suggests to the Court that Plaintiff has been evading or dodging service. To put this finding in context, the Lasalle case discusses civility and professionalism in the practice of law, and that reflects upon attorneys via their reputation. For a pro per litigant, who does not have a reputation within the legal community, the equivalent is the pro per litigant's credibility with the Court. Tactics of rushing defaults, of improperly designating cases as 'complex' to drive up fees on opponents, requiring payment before agreeing to set aside routine defaults, and communicating and serving electronically while not accepting electronic service each chip away at Plaintiff's credibility with the Court. That last one in particular – declining electronic service while utilizing electronic service to serve others – lends credence to the notion that Plaintiff is attempting to make it as burdensome as possible for other parties in this lawsuit to merely serve him with documents. That is improper, particularly as it is Plaintiff who initiated this lawsuit.

Compounding that impropriety is the fact that Plaintiff is requesting that this Court 'issue an Order to show cause on how Ms Chavez got to Plaintiff's from [sic] door in a Gated and secured complex.' (ROA 374, p. 5:24-25.) If anything, the Court would be inclined to order that Plaintiff grant any agents of the defendants access to the gated community so that they can, in the course of ordinary business related to this lawsuit, serve documents on Plaintiff as necessary. This is a lawsuit. All parties need to be able to be served at their official address of record once they have made a personal appearance. Moreover, it is Plaintiff who initiated this lawsuit. Plaintiff cannot start the machinery of litigation and then evade basic efforts to serve him with documents pertinent to the case – particularly when such service is often legally required.

In light of the above, and in light of the lack of legal training of the parties, the Court notes that statutory law discourages 'actions or tactics, made in bad faith, that are frivolous or solely intended to cause Calendar No.: Event ID:  TENTATIVE RULINGS

3120818 CASE NUMBER: CASE TITLE:  LEAHY VS MOLINA-WILLIAMS [IMAGED]  37-2021-00006529-CU-MC-NC unnecessary delay.' (Code of Civil Procedure § 128.5(a).) Statutory law also discourages presenting papers 'primarily for an improper purpose, such as to harass or to cause unnecessary or needless increase in the cost of litigation.' (Code of Civil Procedure § 128.7(b)(1).) Where opposing parties have had to incur the expense of motion practice to set aside rushed defaults, have had to pay for a stipulation to set aside a default, have had improper 'complex' fees imposed upon them, and have had to incur the extra expense of serving by mail or personal delivery instead of electronic service, all while the party creating those expenses is on a fee waiver and is utilizing electronic service, there starts to become a concern that said actions are designed to cause unnecessary or needless increase in the cost of litigation and – with regard to the setting aside of defaults – are designed to cause unnecessary delay.

The Court does not, at this juncture, make any findings in this regard. All the Court today concludes is that to the extent there is a factual dispute between the parties about whether or not Plaintiff was properly personally served with the moving papers, and to the extent that such a dispute comes down to the credibility of Plaintiff versus the credibility of Ms. Chavez (who signed the proof of service), Plaintiff's own litigation tactics have weakened his credibility to the point that Ms. Chavez is more credible on this issue. Therefore, the Court FINDS that the motion was properly served.

Similarly, Plaintiff argues that 'Defendants counsel Daniel Dire refused to meet, he called Plaintiff to threaten Plaintiff, Defendants counsel has not tried to conduct a substantive meet and confer in person or by telephone, and continues to explicitly refuse to meet and confer under any circumstance.' (ROA 349, p. 13:21-25 (emphasis in original).) As it appears to the Court the Plaintiff is placing deliberate 'roadblocks' to communication and engaging in a 'scorched earth' litigation style that makes meet and confer efforts generally futile, Plaintiff lacks credibility when arguing that it is counsel that is refusing to engage in a substantive meet and confer.

To be blunt, to a legally-trained eye the 103-page First Amended Complaint fits with many of the characterizations it has been given by defense counsel as '[something that] reads more like a continuous loop of journal entries rather than a legal complaint' (ROA 274, p. 3:12-13) and 'a rambling, disjointed complaint filled with political narrative and intrigue...' (ROA 363, p. 5:2-3). And, as such, the arguments raised by the defendants are not without some merit, credibility, and persuasive value. But, as this Court previously represented to the parties when Plaintiff was demurring to an Answer that has been filed by one of the defendants, the legal standard for surviving a demurrer is quite liberal and, at the early stage of a lawsuit when a demurrer occurs, some amount of grace is afforded those litigants who are untrained in the nuances and rigors of the practice of law. It is for this reason that, even if Plaintiff's claims are much less than crystal clear, all that is necessary is that they state some facts that give rise to a cause of action to survive demurrer. (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) § 7:41, citing Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38-39, also citing New Livable Calif. v. Association of Bay Area Governments (2020) 59 Cal.App.5th 709, 714-715, also citing Adelman v. Associated Int'l Ins. Co. (2001) 90 Cal.App.4th 352, 359, also citing Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 (emphasis in original).) Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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