Judge: Michael P. Linfield, Case: 20STCV36221, Date: 2023-03-07 Tentative Ruling
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Case Number: 20STCV36221 Hearing Date: March 7, 2023 Dept: 34
SUBJECT: Demurrer and Motion to Strike Portions of Plaintiff’s Complaint
Moving Party: Defendant Mario Beltran
Resp. Party: Plaintiff From The Earth, LLC
Defendant’s Demurrer is OVERRULED.
Defendant’s Motion to Strike is DENIED.
Defendant to answer within seven days.
BACKGROUND:
On September 22, 2020, Plaintiff From The Earth, LLC filed its Complaint against Defendants City of Commerce and Mario Beltran on causes of action for violation of the Fourteenth Amendment of the United States Constitution and extortion.
On October 28, 2020, Defendant City of Commerce filed its Answer to the Complaint.
On February 6, 2023, Defendant Mario Beltran (“Defendant”) filed: (1) Demurrer to Plaintiff’s Complaint; and (2) Motion to Strike Portions of Plaintiff’s Complaint. Defendant concurrently filed: (1) Declaration of Jose Luis Fuentes; and (2) Proof of Electronic Service.
On February 22, 2023, Plaintiff filed its Oppositions to the Demurrer and the Motion to Strike.
On February 27, 2023, Defendant filed his Replies to the Demurrer and the Motion to Strike. Defendant concurrently filed his Proof of Electronic Service.
ANALYSIS:
I. Demurrer
A. Legal Standard
A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (Code Civ. Proc., §§ 422.10, 589.)
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under Code of Civil Procedure section 430.10 (grounds), section 430.30 (as to any matter on its face or from which judicial notice may be taken), and section 430.50(a) (can be taken to the entire complaint or any cause of action within).
A demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted. A demurrer for uncertainty (Code of Civil Procedure section 430.10, subdivision (f)), 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. (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.” (Id.)
B. Discussion
Defendant demurs to the second cause of action for extortion in the Complaint.
1. Legal Standard
“Extortion is the obtaining of property or other consideration from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.” (Pen. Code, § 518, subd. (a).)
“Fear, such as will constitute extortion, may be induced by a threat of any of the following: 1. To do an unlawful injury to the person or property of the individual threatened or of a third person. . . .” (Pen. Code, § 519.)
“Every person who, with intent to extort property or other consideration from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519 is punishable in the same manner as if such property or other consideration were actually obtained by means of such threat.” (Pen. Code, § 523, subd. (a).)
2. Discussion
Defendant demurs to the second cause of action for extortion, arguing: (1) that Plaintiff fails to state a cause of action for extortion because Plaintiff has not alleged that Defendant had a specific intent to commit extortion; and (2) that Plaintiff lacks capacity and standing to enforce Penal Code section 523 because the Legislature has not granted a private right of action to enforce Penal Code section 523. (Demurrer, pp. 5:23–27, 6:7–11.) Defendant cites Civil Code section 3369 and Animal Legal Defense Fund v. Mendes (2008) 160 Cal.App.4th 136 in support of its capacity and standing argument.
Plaintiff opposes the Demurrer, arguing: (1) that the Demurrer is untimely; and (2) that Plaintiff has properly alleged a cause of action for extortion against Defendant pursuant to Penal Code section 523. (Opposition to Demurrer, pp. 7:17, 8:1–3.) Plaintiff cites persuasive, but not binding authority, in support of its opposing arguments.
Defendant reiterates his arguments in his Reply. Defendant further argues that the Demurrer is timely. (Reply, p. 2:5.)
Neither Party has sufficiently discussed how the timing of the various appeals has affected the timing of the Demurrer. Furthermore, it is largely irrelevant whether the Demurrer is timely filed because Defendant could file a motion for judgment on the pleadings. Thus, the Court does not reach the question of whether the Demurrer was timely filed.
The Court considers: (1) whether the cause of action for extortion exists; and (2) whether Plaintiff has made sufficient allegations to constitute the cause of action.
a. Civil Extortion is a cause of action in California.
Defendant repeatedly characterizes the second cause of action as “criminal extortion.” (Id. at pp. 3:24, 5:13, 5:25, 6:10; see also Reply, pp. 3:9–11, 4:7–16, 4:22–24.)
The Court is not persuaded that this is an accurate characterization of the cause of action alleged in the Complaint.
The Complaint does not mention criminal punishment or prosecution. Rather, the Complaint discusses damages (including punitive damages), and Plaintiff’s prayer is for punitive damages, prejudgment interest on damages, interest thereon, and costs of suit incurred. (Complaint, pp. 9:25–28, 10:1–2, 10:6–8, 10:25–28, 11:1–5.) While Plaintiff might have written a much clearer pleading, the cause of action for the Complaint is clearly for civil extortion — not criminal extortion.
Contrary to Defendant’s arguments, the common law of California has long established a cause of action for civil extortion. (Woodman v. Allen (1900) 130 Cal.194, 200, quoting Heckman v. Swartz (1880) 50 Wis. 267, 270–71 (“We think the complaint makes a clear and very strong case of extortion from an innocent person . . . . by threats of a criminal prosecution, and if sustained upon the trial entitles the plaintiff to recover.”).)
Defendant alludes to a more recent California case that also holds that extortion is a cause of action:
“In their demurrers, defendants contend ‘extortion’ is only a crime and cannot form the basis for a civil action in tort. We disagree. However denominated (e.g., extortion, menace, duress), our Supreme Court has recognized a cause of action for the recovery of money obtained by the wrongful threat of criminal or civil prosecution. [Citations omitted.] It is essentially a cause of action for moneys obtained by duress, a form of fraud.” (Fuhrman v. Cal. Satellite Sys. (1986) 179 Cal.App.3d 408, 426, disapproved on another ground in Silberg v. Anderson (1990) 50 Cal.3d 205, 219.)
(See Defendant’s Reply, p. 3:17–23.)
Although not mentioned in either parties’ briefs, there are numerous other California cases that hold that civil extortion is a cause of action. In Mendoza v. Hamzeh (2013) 215 Cal.App.4th 799, Plaintiff’s Compliant asserted causes of action including civil extortion. The Court of Appeal affirmed a denial of defendant’s anti-SLAPP motion. (Id. at p. 802.) In Stenehjem v. Sareen (2014) 226 Cal.App.4th 1405, the defendant cross-complained for civil extortion. The trial court granted an anti-SLAPP motion and struck the Cross-Complaint; the Court of Appeal reversed. (Id. at p. 1409.)
And just this week, in Geragos v. Abelyan (2023 DJDAR 1651), the Court of Appeal sustained the granting of an anti-SLAPP motion against a cross-complaint that alleged, inter alia, civil extortion. In that case, neither the trial court nor the Court of Appeal even questioned whether a cause of action for civil extortion existed.
The Court finds that a cause of action for civil extortion is recognized in the State of California.
b. Plaintiff makes sufficient allegations to constitute a cause of action for civil extortion.
Plaintiff alleges, inter alia, (1) that Defendant made threats to Plaintiff’s business interest through both telephonic and written communications; (2) that Plaintiff told Defendant it would not engage in Defendant’s scheme; (3) that Defendant’s application was denied as a direct and proximate result of Defendant’s conduct; and (4) that Defendant has thus suffered damages. (Complaint, ¶¶ 25–27.)
The Court must assume that the allegations of the Complaint are true for the purpose of the Demurrer. These allegations are sufficiently certain to constitute a cause of action for civil extortion.
The Court OVERRULES Defendant’s Demurrer to the second cause of action for civil extortion.
C. Conclusion
Defendant’s Demurrer is OVERRULED.
II. Motion to Strike
A. Legal Standard¿
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. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)¿¿¿¿
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The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)¿¿¿¿
B. Discussion
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Defendant moves the Court to strike references to punitive damages in Plaintiff’s Complaint. (Motion to Strike, p. 6:6–9.) Defendant argues: (1) that the second cause of action does not support a claim for punitive damages; (2) that Plaintiff does not have standing to bring this cause of action; and (3) that Plaintiff fails to allege facts sufficient to state a claim for punitive damages. (Id. at p. 4:8–9, 4:14–15.)
Plaintiff opposes the Motion, arguing: (1) that the Motion to Strike is untimely; and (2) that Plaintiff has properly requested punitive damages as a remedy. (Opposition to Motion to Strike, p. 8:5–7.)
Defendant reiterates his standing and capacity argument in his Reply. Defendant further argues: (1) that the Motion to Strike is timely; and (2) that Plaintiff fails to point to clear and convincing evidentiary facts in the Complaint to support oppression, fraud, or malice by Defendant except for mere conclusory allegations. (Reply, pp. 1:26, 3:17–19.)
The Court does not reach the timeliness argument for the same reasons as previously discussed regarding the Demurrer.
The Court disagrees with Defendant’s arguments. The standing and capacity arguments are without merit because a cause of action for civil extortion is recognized in California and Plaintiff’s allegations indicate that it has both capacity and standing to bring this cause of action. Moreover, Plaintiff does not need to meet a clear and convincing standard to overcome Defendant’s demur. Rather, Plaintiff is entitled to allege that Defendant acted with oppression, fraud, or malice; for purposes of the demurrer and motion to strike, the Court will assume these allegations to be true. It will ultimately be Plaintiff’s burden to prove that it is entitled to the relief it seeks.
The Court DENIES Defendant’s Motion to Strike.
C. Conclusion
Defendant’s Motion to Strike is DENIED.