Judge Michael P. Linfield, Case 22STCV13168 2022-09-29 Tentative Ruling

Judge: Michael P. Linfield, Case: 22STCV13168, Date: 2022-09-29 Tentative Ruling

Case Number: 22STCV13168 Hearing Date: September 29, 2022 Dept: 34

SUBJECT: Demurrer of Jill Marlene Janottta to Plaintiff’s Complaint

Moving Party: Defendant Jill Marlene Janotta

Resp. Party: None

SUBJECT: Defendant Jill Marlene Janottta’s Motion to Strike Punitive Damages and Request for Attorney’s Fees in Plaintiff Maha Moqaddem’s Complaint

Moving Party: Defendant Jill Marlene Janotta

Resp. Party: None

SUBJECT: Motion to Declare Plaintiff Vexatious Litigant [C.C.P. §§ 391-391.7], For Entry of Pre-Filing Order, and for an Order Requiring Plaintiff to Post $25,000 Security

Moving Party: Defendant Jill Marlene Janotta

Resp. Party: None

Defendant Jill Marlene Janotta’s Demurrer to Plaintiff Maha Moqaddem’s Complaint is OVERRULED.

Defendant Jill Marlene Janotta’s Motion to Strike Punitive Damages and Request for Attorney’s Fees in Plaintiff Maha Moqaddem’s Complaint is GRANTED in its entirety.

Defendant Jill Marlene Janotta’s Motion to Declare Plaintiff Vexatious Litigant [C.C.P. §§ 391-391.7], For Entry of Pre-Filing Order, and for an Order Requiring Plaintiff to Post $25,000 Security is DENIED.

I. BACKGROUND

On April 20, 2022, Plaintiff Maha Moqaddem filed a complaint in propria persona against Defendant Jill Marlene Janotta alleging the following causes of action:

1. Breach of Contract

2. Fraud—Intentional Misrepresentation

3. Professional Negligence

On September 2, 2022, Defendant Jill Marlene Janotta demurred to the Complaint filed by Plaintiff Maha Moqaddem. “This demurrer is brought pursuant to Code of Civil Procedure sections 430.10 and 430.30, and is based on the following independent and alternative grounds:

1) The First Cause of Action for Breach of Contract fails to state facts sufficient to support a claim against Janotta under Code of Civil Procedure § 430.10(e), is uncertain, ambiguous, and unintelligible under Code of Civil Procedure § 430.10(f), and it cannot be ascertained from the pleading whether the contract mentioned is written, oral, or is implied under Code of Civil Procedure § 430.10(g);

2) The Second Cause of Action for Fraud-Intentional Misrepresentation fails to state facts sufficient to support a claim against Janotta under Code of Civil Procedure § 430.10(e), is uncertain, ambiguous, and unintelligible under Code of Civil Procedure § 430.10(f), and it cannot be ascertained from the pleading whether the contract mentioned is written, oral, or is implied under Code of Civil Procedure § 430.10(g);

3) The Third Cause of Action for Professional Negligence fails to state facts sufficient to support a claim against Janotta under Code of Civil Procedure § 430.10(e), is uncertain, ambiguous, and unintelligible under Code of Civil Procedure § 430.10(f), and is duplicative of Plaintiff’s First Cause of Action for Breach of Contract as a matter of law.” (Demurrer, p. 2:1-17.)

On September 2, 2022, Defendant Jill Marlene Janotta also moved the Court “move to strike portions related to punitive damages and attorney’s fees in Plaintiff Maha Moqaddem’s Complaint pursuant to California Code of Civil Procedure § 435 – 437 and California Rules of Court Rule 3.1322. Defendant moves this Court for an order to strike the following portions of the Complaint:

· Paragraph 12, Page 5, Lines 7-9: “Plaintiffs will incur attorney fees and costs in this action. Pursuant to the terms of the written contract entered into with Defendant Jill Janotta, Plaintiff is entitled to recover their reasonable attorney fees and costs incurred in bringing this action.”

· Paragraph 27, Page 8, Lines 25-26: “Plaintiffs are thus entitled to an award of punitive and exemplary damages according to proof”

· Prayer at Page 11, Line 8: “For reasonable attorney fees pursuant to contract”

· Prayer at Page 11, Line 14: “For punitive and exemplary damages according to proof at time of trial”

This Motion to Strike is made on the grounds that the statements and paragraphs improperly demand punitive damages per Code Civ. Proc. §§ 435-437; Code Civ. Proc. § 3294; PH II, Inc. v. Sup. Ct. (1982) 32 Cal.App.4th 1680, 1682-83; and in addition, on the grounds that Plaintiff’s request for attorney fees in the Complaint are unsupported by any statutory basis, written agreement, or law, and are therefore an improper claim for damages under Code Civ. Proc. § 1717 and Trope v. Katz (1995) 11 Cal.4th at p. 280, and therefore, must be stricken.” (Motion to Strike, p. 2:1-19.)

On September 2, 2022, Defendant Jill Marlene Janotta further moved the Court “for an order declaring Plaintiff Maha Moqaddem to be a vexatious litigant pursuant to Code of Civil Procedure §§ 391-391.7, for a pre-filing order against Plaintiff pursuant to Code Civ. Proc. § 391.7, prohibiting Plaintiff from filing any new litigation in the courts of this State in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed, and accordingly, for this case to be dismissed with prejudice or in the alternative, for an order requiring Plaintiff to post $25,000 security before proceeding with litigation in this case.” (Vexatious Litigant, p. 1:27—2:5.)

On September 20, 2022, Plaintiff Maha Moqaddem filed a Request for Dismissal in this action.

On September 26, 2022, Deputy Clerk of Court V. Galindo rejected Moqaddem’s Request for Dismissal.

II. ANALYSIS

A. Legal Standard

1. Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. (Cty. of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1008–09; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 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. (Unruh-Haxton v. Regents of Univ. of California (2008) 162 Cal.App.4th 343, 365, as modified (May 15, 2008).) For purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (CCP §§ 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 § 430.10 (grounds), § 430.30 (as to any matter on its face or from which judicial notice may be taken), and § 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 may be brought pursuant to Code of Civil Procedure section 430.10, subdivision (f). “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “In general, ‘demurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.’” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

The demurring party must file with the court, and serve on the other party, the: (1) demurrer; (2) notice of hearing; (3) memorandum of points and authorities; and (4) proof of service. (See Cal. Rules of Court, rule 3.1112(a), rule 3.1300(c), rule 3.1320; Code Civ. Proc., § 1005(b).) “A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint . . . are taken. Unless it does so, it may be disregarded.” (CCP § 430.60.)

2. Motion to Strike

"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, subd. (b)(1).) "The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) 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." (CCP § 436.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice." (CCP § 437, subd. (a).)

3. Declaration of Vexatious Litigant

“The vexatious litigant statute (§§ 391-391.7) was enacted in 1963 to curb misuse of the court system by those acting in propria persona who repeatedly relitigate the same issues. Their abuse of the system not only wastes court time and resources but also prejudices other parties waiting their turn before the courts.” (In re Bittaker (1997) 55 Cal.App.4th 1004, 1008.)

Pursuant to Code Civil Procedure section 391, subdivision (b), a “vexatious 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.” (CCP § 391, subd. (b).)

Under the statute, the term “litigation” means “any civil action or proceeding, commenced, maintained or pending in any state or federal court.” (Code Civ. Proc., § 391, subd. (a).) The term applies not only to civil actions and special proceedings in the trial court but also to appeals and writ proceedings. (In re Kinney (2011) 201 Cal.App.4th 951, 958; Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1168.) Accordingly, where for example a civil action results in an adverse determination to the plaintiff at the trial level, and the plaintiff subsequently realizes an adverse determination on appeal, two distinct “litigations” have occurred for purposes of subdivision (a) of section 391. (Fink, at pp. 1173-1174 [untimely appeal dismissed for lack of jurisdiction constitutes one “litigation”].)

“An action which is ultimately dismissed by the plaintiff, with or without prejudice, is nevertheless a burden on the target of the litigation and the judicial system, albeit less of a burden than if the matter had proceeded to trial. A party who repeatedly files baseless actions only to dismiss them is no less vexatious than the party who follows the actions through to completion. The difference is one of degree, not kind.” (Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775, 779.) Therefore, voluntary dismissals without prejudice are counted for purposes of the vexatious litigant statutes. “Only where the dismissal leaves some doubt regarding the defendant's liability, as where the dismissal is part of a negotiated settlement, will the dismissal not be deemed a termination favorable to the defendant. (Id. at pp. 779-780.) Qualifying litigation includes both state and federal court cases. (Code Civ. Proc., § 391, subd. (a).

B. Discussion

1. Demurrer

Janotta’s Demurrer to Moqaddem’s Complaint includes a Notice of Hearing and a Memorandum of Points and Authorities but lacks the Demurrer. Janotta’s alleged Demurrer to Moqaddem’s Complaint violates California Rules of Court, Rules 3.1112 and 3.1320.

Further, the Notice of Demurrer violates CRC Rule 3.1320(a) which requires that “each ground of the demurrer must be in a separate paragraph.”

The Court OVERRULES the demurrer because it is in violation of CRC Rule 3.1320.

2. Motion to Strike

Under Trope v. Katz (1995) 11 Cal.4th 274, 280, a person litigating in propria persona may not incur attorney’s fees. Thus, the two references to attorney’s fees in Moqaddem’s Complaint (¶12, Page 5, Lines 7-9 and Prayer at Page 11, Line 8) must be stricken.

Further, the Court cannot discern any allegations in Moqaddem’s Complaint that reasonably suggest malice, fraud, or oppression by Janotta. The Court strikes the two references to punitive damages in Moqaddem’s Complaint (¶27, Page 8, Lines 25-26 and Prayer at Page 11, Line 14).

3. Vexatious Litigant

Janotta states that Moqaddem “has used another name under which she has filed multiple cases: Maha Visconti, from her first marriage. Plaintiff Moqaddem has had eight final determinations against her, under the name Visconti, in the last seven years:

· Maha Visconti v. LA County Dept. of Children (Docket No. BS167457) – Dismissed on 05/16/2017 for failure to appear at Final Status Conference.

· Maha Visconti Moqaddem v. Ubaldo Mendoza (Docket No. PS019279) – Dismissed on 04/05/2017, Failed Temporary Restraining Order.

· Maha Visconti v. Bijan Manouchehr & John Visconti (Docket No. RIC1701341) – Dismissed on 05/30/2017 for failure to file Proof of Service.

· Maha Visconti v. John Visconti (Docket No. 2:16-CV-07726) – Dismissed on 11/29/2016 for Failure to Prosecute.

· Maha Visconti v. U.S. Bank NA, et al. (Docket No. NC060742) – Dismissed on 10/04/2016 for failure to file Proof of Service.

· Maha Visconti v. First American Title Company, et al. (Docket No. NC060644) – Dismissed on 08/01/2016 for failure to file Proof of Service.

· Maha Visconti v. John C. Torjensen, et al. (Docket No. NC060628) – Dismissed on 05/11/2016 for failure to file Proof of Service.

· Maha Visconti v. Owen Kaye, et al. (Docket No. NC060293) – Dismissed on 11/07/2016.” (Vexatious Litigant Motion, p.4:7-25.)

Janotta offers the Court nothing except the explanation quoted above to explain the difference between the Plaintiff’s name and the name of the plaintiff in her provided case list. Janotta provides the Court no admissible evidence to bolster this claim: no public records, no declarations, no admissible testimony, no request for judicial notice. However, “an assertion is not evidence.” (Paleski v. State Dept. of Health Services (2006) 144 Cal.App.4th 713, 732; Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173 [“absolutely no evidence was submitted to support this factual claim . . . . Argument of counsel is not evidence.”])

The Motion to Declare Plaintiff a Vexatious Litigant is DENIED.

III. CONCLUSION

Defendant Jill Marlene Janotta’s Demurrer to Plaintiff Maha Moqaddem’s Complaint is OVERRULED.

Defendant Jill Marlene Janotta’s Motion to Strike Punitive Damages and Request for Attorney’s Fees in Plaintiff Maha Moqaddem’s Complaint is GRANTED.