Judge: Michael Shultz, Case: 22CMCV00505, Date: 2024-03-15 Tentative Ruling
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Case Number: 22CMCV00505 Hearing Date: March 15, 2024 Dept: A
22CMCV00505
Chatman V. Hammond
[TENTATIVE] ORDER DENYING REQUEST FOR DEFAULT
JUDGMENT
The
complaint alleges claims for slander and slander per se arising from statements
allegedly made by Defendant in the course of a prior proceeding for a domestic
violence restraining order alleged as Case No. 22CMRO00933. (Complaint, ¶ 7.) The Clerk entered default against
Defendant on February 28, 2023. Plaintiff now seeks judgment of $35,000.
The
court last reviewed Plaintiff’s request for court judgment filed on February
21, 2023, and rejected the request for Plaintiff to submit a completed request.
Plaintiff filed a request for court judgment on February 1, 2024, and a
proposed order.
A
defendant’s failure to answer a complaint admits all matters well pleaded in
the complaint. (Kim v.
Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 281).
Therefore, the complaint must be examined. (Carlsen v.
Koivumaki (2014) 227 Cal.App.4th 879, 899–900).
The
complaint does not allege an actionable claim because it is barred by the
litigation privilege. The Civil Code defines a “privileged publication” as one
made “[i]n any … judicial proceeding … .” (Civ. Code, § 47,
(b)(2)). Under
those circumstances, the privilege is absolute and applies regardless of
malice. (Jacob
B. v. County of Shasta (2007) 40 Cal.4th 948, 955). However, the privilege does not apply in
cases of malicious prosecution. (Jacob
B. at 960).
The
complaint does not allege facts supporting a claim for malicious prosecution of
a civil proceeding. To prevail on such a claim, Plaintiff must plead and prove
that Defendant commenced the prior action, the action terminated in Plaintiff’s
favor, the action was brought without probable cause, and was initiated with
malice. (Bertero
v. National General Corp. (1974) 13 Cal.3d 43, 50.) A claim is unsupported by probable cause
“only if any reasonable attorney would agree that the claim is totally and
completely without merit.” (Parrish
v. Latham & Watkins (2017) 3 Cal.5th 767, 776.).
Plaintiff
has not alleged facts to support that the prior proceeding terminated in
Plaintiff’s favor and was brought without probable cause. The Court, on its own
motion, takes judicial notice of the Court’s records in Case No. 22CMRO00933. (Code Civ. Proc., § 452 subd.
(d).) The Case Information reflects
that on January 24, 2023, the Hon. Alfred A. Coletta granted the request for a
restraining order brought by Syadia Hammond, Defendant herein. (Ord. 1/24/23.) The disposition precludes Plaintiff
from alleging a claim for malicious prosecution because the proceeding did not
terminate in Plaintiff’s favor.
Based
on the foregoing, the Request for Court Judgment is DENIED. As Plaintiff has
not alleged a well-pleaded complaint capable of being cured, the action is
DISMISSED.