Judge Michelle Williams Court, Case 21STCV18438 2022-09-16 Tentative Ruling

Judge: Michelle Williams Court, Case: 21STCV18438, Date: 2022-09-16 Tentative Ruling

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Case Number: 21STCV18438 Hearing Date: September 16, 2022 Dept: 74

21STCV18438 SHAHRAM KAYWANFAR vs SHAWN ARIANPOUR

Demurrer to the First Amended Complaint

TENTATIVE RULING: The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

Background

On May 14, 2021, Plaintiff Shahram Kaywanfar, in propria persona, filed this action against Defendants Shawn Arianpour, Amid Bahadori, and Bryan Thomas asserting causes of action for breach of contract, common counts, fraud, and legal malpractice. On September 27, 2021, Plaintiff dismissed Defendant Bryan Thomas without prejudice. The first three causes of action were asserted against Arianpour and the fourth cause of action was asserted against Thomas.

On January 6, 2022, Judge Elaine Lu issued an order on Defendant Shawn Arianpour’s demurrer to the complaint. Judge Lu sustained the demurrer without leave to amend as to the first and second causes of action and sustained the demurrer with leave to amend as to the third cause of action.

On February 3, 2022, Plaintiff filed a First Amended Complaint asserting causes of action for: (1) breach of contract; (2) common counts, (3) fraud by false representation; and (4) legal malpractice. The first, second, and third causes of action are asserted against Arianpour and Does 1 through 250 and the fourth cause of action is asserted against Bahadori and Does 251 through 500.

On February 17, 2022, Plaintiff filed a document entitled “Plaintiff Shahram Kaywanfar’s Disqualification Statement as to Los Angeles Superior Court Judge Elaine Lu Pursuant to California Code of Civil Procedure section 170.3(c)(1).”

On February 22, 2022, Judge Lu entered an “Order Striking Statement of Disqualification; Verified Answer.”

On March 10, 2022, Plaintiff filed a Fictitious Name Amendment that substituted Judge Elaine Lu as Defendant Doe 1.

On July 25, 2022, Judge Elaine Lu filed a demurrer to the first amended complaint.

On August 1, 2022, the Court issued an order providing: “Defendant Elaine Lu's demurrer is referred to Department 1 for a ruling on the demurrer.”

On August 8, 2022, the Court accepted Plaintiff’s Code of Civil Procedure section 170.6 challenge to Judge David J. Cowan, who is the judicial officer assigned to Department 1. The August 8, 2022 order referred the demurrer to this department for a ruling.

Demurrer

On July 25, 2022, Defendant the Honorable Elaine Lu, Judge of the Superior Court of California, County of Los Angeles filed the instant demurrer to the First Amended Complaint arguing the FAC is barred by judicial immunity, this Court lacks jurisdiction to review the demurrer order, and the FAC fails to state a cause of action against Judge Lu.

Opposition

In opposition, Plaintiff contends the demurrer ruling is void, there was extrinsic fraud, the claims against Judge Lu arise from an administrative act that deprived Plaintiff of due process, and immunity does not apply.

Reply

In reply, Defendant reiterates the arguments made in the initial demurrer.

Meet and Confer

On June 23, 2022, Defendant filed the declaration of Sarah L. Overton, which complies with the requirements of Code of Civil Procedure section 430.41.

Judicial Notice

The parties request the Court take judicial notice of various documents filed in this action. The request is GRANTED as to the existence of these documents, but not the truth of the matters asserted therein. (Evid. Code § 452(d); Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 (“while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.”).)

Discussion

Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A complaint need not allege evidentiary facts noting plaintiff’s proof. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)

A special demurrer to a complaint is appropriate when the grounds of the pleading are uncertain, ambiguous, or unintelligible. (Code Civ. Proc. § 430.10(f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191.) Courts typically disfavor demurrers based on uncertainty, which the court strictly construes even when the pleading is uncertain in some respects. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Any Claim Plaintiff Asserts is Barred by Judicial Immunity

On February 3, 2022, Plaintiff filed the First Amended Complaint, which contained the following paragraph:

In ruling upon the Demurrer to the original Complaint in this matter, the presently assigned Judge, the Honorable Elaine Lu (“Lu’), engaged in the imposition of, (and not as a matter of legal error but as a matter of illegality in violation of Title 18 United States Code Sections 241 and 242, extrinsic fraud upon the institution of the court by deprivation of my federal constitutional 14th Amendment right of Procedural Due Process, specifically by deprivation of that right’s component of having a meaningful opportunity to be heard, by Lu (1) playing make-believe with the wording of the allegations of the original Complaint in this matter to try to unduly strike the First and Second Causes of Action of the original Complaint, and (2) by unduly refusing to allow the First and Second Causes of Action of the original Complaint to be amended to refute the imposed make-believe. Consequently, this First Amended Complaint includes an amended First Cause of Action and an amended Second Cause of Action, as Lu’s order purporting to not provide leave to amend the First Cause of Action and the Second Cause of Action, is legally null and void, as Lu has no authority to play make-believe with the allegations of any document filed with the court, especially the allegations of a complaint.

(FAC at 1:20-2:8.) On March 10, 2022, Plaintiff substituted Judge Lu for Defendant Doe 1.

Judicial immunity bars Plaintiff’s claims against Judge Lu based upon her ruling on the demurrer or the handling of Plaintiff’s case. As summarized in Frost v. Geernaert (1988) 200 Cal.App.3d 1104:

It is well established judges are granted immunity from civil suit in the exercise of their judicial functions. (Tagliavia v. County of Los Angeles (1980) 112 Cal.App.3d 759, 761, 169 Cal.Rptr. 467; Oppenheimer v. Ashburn (1959) 173 Cal.App.2d 624, 629, 343 P.2d 931.) This rule applies even where the judge's acts are alleged to have been done maliciously and corruptly. (Tagliavia, supra, 112 Cal.App.3d at p. 761, 169 Cal.Rptr. 467; accord, Turpen v. Booth (1880) 56 Cal. 65, 68.) The rule is based on “‘a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequence to himself.’ ” (Tagliavia, supra, 112 Cal.App.3d at p. 762, 169 Cal.Rptr. 467, quoting from Bradley v. Fisher (1871) 80 U.S. (13 Wall.) 335, 347, 20 L.Ed. 646.) Judicial immunity is a principle of common law which is necessary for the welfare of the state and the peace and happiness of society. (Tagliavia, supra, 112 Cal.App.3d at pp. 762–763, 169 Cal.Rptr. 467; Singer v. Bogen (1957) 147 Cal.App.2d 515, 523–524, 305 P.2d 893.)

(Frost, supra 200 Cal.App.3d at 1107–1108.) “Our cases make clear that the immunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. [Citations.] Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.’” (Regan v. Price (2005) 131 Cal.App.4th 1491, 1496 quoting Soliz v. Williams (1999) 74 Cal.App.4th 577, 592.) Neither exception applies here.

“[C]ourts look at the nature of the challenged act which a judge has performed to determine if it is truly judicial and therefore deserving of judicial immunity.” (Howard v. Drapkin (1990) 222 Cal.App.3d 843, 853.) “Immunity exists for judicial actions; those relating to a function normally performed by a judge and where the parties understood they were dealing with the judge in [her] official capacity.” (Olney v. Sacramento County Bar Assn. (1989) 212 Cal.App.3d 807, 811 citing Stump v. Sparkman (1978) 435 U.S. 349, 362.) The allegations in the FAC, and in Plaintiff’s opposition, are entirely based upon Judge Lu’s function as a judicial officer acting in her official capacity.

Plaintiff’s contention that Judge Lu violated his due process rights is not sufficient to avoid judicial immunity. (See e.g. Decker v. Hillsborough County Attorney's Office (1st Cir. 1988) 845 F.2d 17, 21 (“A judge does not lose immunity because an action is erroneous, malicious, in excess of his authority, or disregardful of elementary principles of procedural due process, as long as the judge had jurisdiction over the subject matter before him.”).)

Plaintiff contends “[s]trictly on the basis of Lu’s refusal to calendar my Motion, and for no other reason, on March 10, 2022, I named Lu a party defendant in place of DOE Number 1 . . . [T]he refusal of Lu to calendar my Section 663/Section 473 Motion was an administrative act, not an adjudicative act” citing various provisions of the California Rules of Court and the Standards of Judicial Administration. (Opp. at 9:24-10:1-15.) Control of the court’s docket and calendaring are judicial functions normally performed by a judge to which immunity applies. (See generally Olney, supra, 212 Cal.App.3d at 811 (“Immunity exists for judicial actions; those relating to a function normally performed by a judge and where the parties understood they were dealing with the judge in [her] official capacity.”); Rodriguez v. Weprin (2d Cir. 1997) 116 F.3d 62, 66 (“A court's inherent power to control its docket is part of its function of resolving disputes between parties. This is a function for which judges and their supporting staff are afforded absolute immunity.”).)

Plaintiff admits the calendaring issue is the only reason Judge Lu is a defendant in this case. Accordingly, Plaintiff’s claims are barred by judicial immunity. The demurrer is SUSTAINED without leave to amend. (McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 78 (“the burden of demonstrating a reasonable possibility that the defect can be cured by amendment is squarely on the plaintiff.”); Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636 (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”); Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1465 (“If there is no liability as a matter of law, leave to amend should not be granted.”).)

This Court Lacks Authority to Review the Demurrer Ruling

As argued by Defendant, another department of the Los Angeles Superior Court lacks the authority to review or overturn Judge Lu’s demurrer ruling. “As a general rule, a trial judge cannot overturn the order of another trial judge. . . . Because a superior court is a single entity comprised of member judges, one member of that court cannot sit in review on the actions of another member of that same court.” (Paul Blanco's Good Car Company Auto Group v. Superior Court of Alameda County (2020) 56 Cal.App.5th 86, 99 (quotations and citations omitted).)

Plaintiff’s contention that Judge Lu’s order is erroneous, does not render it void. (Wells Fargo & Co. v. City and County of San Francisco (1944) 25 Cal.2d 37, 40 (“A mere erroneous decision on a question of law, even though the error appears on the face of the record, does not make the judgment void, if the court had jurisdiction of the subject matter and of the person of the defendant.”); U.S. v. Holtzman (9th Cir. 1985) 762 F.2d 720, 724.) Plaintiff does not allege facts demonstrating extrinsic fraud as the alleged fraud, failing to calendar a motion, occurred entirely within the proceeding. (See Gale v. Witt (1948) 31 Cal.2d 362, 365, 367 (“Where the fraud practiced is collateral to and outside of court . . . it is extrinsic and equity will give relief. . . . Having had an opportunity to protect his interest, he cannot attack the judgment when the time has elapsed for appeal or other direct attack.”).) Plaintiff’s recourse is to seek appellate review, not initiate a civil action against the judicial officer who made an adverse ruling.

The First Amended Complaint Does Not Adequately Allege Any Causes of Action Against Judge Lu

As noted above, Plaintiff’s claims against Judge Lu are barred by judicial immunity.

The Court also finds the FAC does not allege facts sufficient to state a claim against Judge Lu, who was added to the FAC as Doe 1. The FAC asserted the first three causes of action for breach of contract, common counts, and fraud against Arianpour and Does 1 through 250. The First Amended Complaint does not contain any allegations upon which Judge Lu, as Doe 1, could be held liable for breach of the contract between Plaintiff and Arianpour or for misrepresentations made by Arianpour.

Judge Lu is not alleged to be a party to the contract and therefore cannot be held liable therefor absent additional facts not alleged here. (See e.g. Gordon Bldg. Corp. v. Gibraltar Sav. & Loan Ass'n (1966) 247 Cal.App.2d 1, 6 (“insofar as breach of contract is concerned, Gordon's cross-complaint is fatally defective, . . . because it fails to show that Gordon was a party to the contract.”).) The common count cause of action is duplicative of the breach of contract claim and therefore must fall with it. (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 (“When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.”).) Finally, the FAC does not contain any specific allegations to charge Judge Lu with false representations in connection with the loan at issue or any other false representations to Plaintiff. (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 231 (“Each element of a fraud count must be pleaded with particularity.”).)

Plaintiff’s claim that Judge Lu is a co-conspirator is not alleged in the FAC and Plaintiff provides no basis for the conclusion Plaintiff can truthfully allege Judge Lu was involved in Plaintiff’s dealings with Defendants Arianpour and Bahadori, outside her judicial function. Plaintiff’s claim that Judge Lu’s demurrer ruling was erroneous or that Judge Lu exercised improper control of the court docket does not provide a basis for a civil suit against her.