Judge Peter A. Hernandez, Case 21STCV11742 2023-04-04 Tentative Ruling

1. Defendants Henry Chiu, Jean Chow, Lap Man Lee, Mia Lei, Araceli Monge, Sarina Pan, Ah Chin Pee, Karlyn K. Phan and Jeannie Quan’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED in part (i.e., as to Chow, Lee, Lei, Monge, Pan, Pee, Phan and Quan) and OVERRULED as MOOT in part (i.e., as to Chiu). The court will hear from Plaintiff as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.

2. Defendant Henry Chiu’s Special Motion to Strike Pursuant to Code of Civil Procedure Section 425.16 is GRANTED. The court awards attorney’s fees to Chiu in the reduced amount of $1,000.00, payable within 30 days from the date of the “Notice of Ruling.”

3. Defendants Denise Poon and Vannarith P. Khiev’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED in part (i.e., as to Poon) and OVERRULED as MOOT in part (i.e., as to Khiev). The court will hear from Plaintiff as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.

4. Defendant Vannarith P. Khiev’s Special Motion to Strike Pursuant to Code of Civil Procedure Section 425.16 is GRANTED. The court awards attorney’s fees to Khiev in the reduced amount of $1,000.00, payable within 30 days from the date of the “Notice of Ruling.”

5. Defendants the Honorable Annabelle G. Cortez, the Honorable Philip L. Soto and the Honorable Tara Newman, Judges of the Superior Court of California, County of Los Angeles, Victor G. Viramontes, Judge of the Superior Court of California, County of Los Angeles (erroneously sued as Vict Vianonte) and Stephen C. Marpet’s, Commissioner of the Superior Court of California, County of Los Angeles Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED, without leave given to amend.

6. Defendant Johnny H. Wen’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED. The court will hear from Plaintiff as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.

7. Defendants Marcellous Glasper’s, Gibran Bouayad’s and Jackie Montano’s Motion to Quash Service of Summons is GRANTED.

The present lawsuit arises out of the removal of Plaintiff Dehui Zeng’s (“Plaintiff”) minor children from their home following abuse accusations.

On September 22, 2022, Plaintiff Dehui Zeng (“Plaintiff”) filed a 715-page First Amended Complaint (“FAC”), asserting causes of action against Henry Chiu (“Chiu”), Mia Lei (“Lei”), Araceli Monge (“Monge”), Vannarith Khiev, Ah Chin Pee (“Pee”), Linda Baik, Vict Vianonte, Annabelle G. Cortez, Philip L. Soto, Stephen Marpet, Marcellous Glasper (“Glasper”), Gibran Bouayad (“Bouayad”), Jackie Montano (“Montano”), Lap Man Lee (Tony Lee) (“Lee”), Karlyn Phan (“Phan”), Sarina Pan (“Pan”), Jean Chow (“Chow”), Denise Poon, Jannie Quan (“Quan”), Nancy Whang, Mr. Lai & Mrs. Lai (Miles Zeng and Grace Zeng’s Caregiver), Mr. Chang & Ms. Wu (Rosie Zeng and Mike Zeng’s Caregiver), Juan Guzman, Jacqueline I. Castle, Johnny H. Wen, Sun H. Lui, Wendy Dang, Tara Newman, Shyan Chao, Tian Jiao Sun and Does 1-30.

On November 2, 2022, this case was transferred from 29 of the Personal Injury Court to this instant department.

Plaintiff’s FAC is 715 pages long, in contravention of Code of Civil Procedure § 425.10, subdivision (a)(1) (i.e., “[a] complaint. . .shall contain . . . [a] statement of the facts constituting the cause of action, in ordinary and concise language”). It is not paginated; as such, any reference by the court to page numbers herein means the .pdf pages.

Further, Plaintiff’s FAC is partially written in English and partially in Mandarin Chinese. Pages 4, 10, 16, 17, 78, 154, 163, 170, 180, 185, 188, 195, 206, 234, 244, 247, 254, 265, 270, 278, 288-289, 294-295, 320, 325, 327, 335, 338, 340, 348, 354-356, 363, 369, 376, 386, 400-401, 447, 453, 460, 482, 485, 487, 492, 497, 504-506, 508, 524, 540, 542, 553, 560, 566, 574, 580, 587, 599, 602, 607, 611, 619, 629, 693, 698, 704 and 712 contain statements that “[t]he following English content is translated by GOOGLE.” Code of Civil Procedure § 185, subdivision (a), provides, in relevant part, that “[e]very written proceeding in a court of justice in this state shall be in the English language, and judicial proceedings shall be conducted, preserved, and published in no other.” The translation of Plaintiff’s statements written in Mandarin Chinese by Google is not a translation certified under oath by a qualified translator under Evidence Code § 751.

Paragraph 10 of Plaintiff’s FAC, which is filed on Judicial Council Form PLD-PI-001, indicates that causes of action for General Negligence and Intentional Tort are attached. The aforesaid paragraph provides, in parenthesis, that “each complaint must have one of more causes of action attached.”

There are no cause of action attachments attached, however; instead, Plaintiff’s FAC attaches a six-page “directory,” which references various LASC Case numbers (including 20CCLP02356A-I, BC681551, 21STCV05998, 21STCV11742 and 22CCJP01087A, followed by “Annex 1” through “Annex 66,” which are respectively entitled as follows:

“Open letter to Judges and Juries,” “The actual ruling Chinese in the U.S. is the shadow government of the Manchu CCP,” “Accuse DCFS of being a criminal group controlled by Manchu CCP spies,” “Accuse DCFS of being a criminal group controlled by Manchu CCP spies (Supplementary material 1),” “Request for judicial verification whether DCFS forged judge’s warrant,” “Sue DCFS Henry Chiu for murdering my wife and the unborn TWINS,” “Accuse Manchu spies for controlling Jiang Yuqing to murder and frame my family,” “Accuse DCFE Henry Chiu for framed RACHEL and was sexually assaulted by his father, and Heshu neglected to care for tooth decay,” “Accused Manchu CCP spies for manipulating school staff, assaulting students and intimidating Rachel,” “Accuse DCFS Henry Chiu for framed by daughter GRACE ZENGE with language barrier and injuries,” “Accuse DCFS Ah Chin Pee for falsifying the case, murdering and framing my family,” “Summary table of problems found during children’s visits during DCFS foster care,” “Reply to Judge Annabelle G. Cortez 12/09/2020 The court verdict on 3 course for family reunification services,” “Request to change SOSW VAN and Korean foster parents,” “Psychological assessment designated by the judge. Dr. WEN’s work procedures violated the law and framed by wife and me,” “Accuse the psychological assessment Dr. WEN designated by Judge CORTEZ for making a false report and framed my family,” “Accuse Manchu CCP for controlling parent-child class Shyan Chao (Mrs. Zhao) and framed by family,” “Sued the Manchu CCP for controlling the sexual assault classTeacher SUN H. LUI (Mr. Shen) cooperated with DCFS and others to murder and frame my family,” “Sued the Manchu CCP for controlling the one-to-one psychological counseling teacher of the Chinatown Service Center to cooperate with DCFS to frame and murder my family,” “To Judge Cortez, authorization letter of YING LIANG not being able to appear in court 08/03/2021,” “Responding to and suing the status report of DCFS SOSW Lap(Tony) Lee on 06/09/2021,” “Revocation of signature files deceived by DCFS Araceli Monge,” “Sue children’s court judges and lawyers for murder and frame my family,” “Three time ask to replace SOSW TONY LEE,” “Sued DCFS for forging YING LIANG application: apply to the court for the immigration status of my son WEIJIAN ZENG,” “Sued DCFS for violating children’s human rights,” “Respond and suing DCFS CS CSW Lap(Tony) Lee 08/03/2021 Status Review Report,” “Respond and suing DCFS DI CSW Karlyn Phan 08/03/2021 Status Review Report,” “To Arcadia Mental Health Center request to change social worker Wendy Deng,” “Respond and suing DCFS CS CSW Lap(Tony) Lee 10/25/2021 Status Review Report,” “Request DCFS and the court to prohibit SOSW Jean Chow from participating in my child’s visitation work and investigating her criminal behavior,” “Demand that DCFS and the court immediately replace Grace Zeng, Miles Zeng’s caregiver Mr./Mrs. Lai, and investigate their criminal conduct,” “Reply to DCFS CS CSW Lap(Tony) Lee 02/01/2022 status review report framed me and my wife,” “Reply to DCFS Asia Pacific Project 366.26 WIC of 03/17/2022 Report Framed Me and My Wife,” “Dissatisfied with the judgment of Judge LUI, P.J. 03/11/2022, appealed,” “Against the Judgment of the Trial 03/17/2022: Appeal,” “Reply to DCFS CS CSW Lap(Tony) Lee 05/18/2022 status review report framed me and my wife,” “My wife and I reject DCFS’s motion for hearing on 5/31/2022! Please DCFS to check and correct,” “Reply to DCFS Karlyn Phan 05/31/2022 Jurisdiction/Disposition Report Framed My Family. And make requests for hearing on 06/30/2022,” “About AIDEN’s illness in foster family 06/04/2022,” “Request Investigate the conspiracy of caregiver Nancy and her husband and the ophthalmologist to turn by daughter Rachel’s normal eye into a crime of myopia,” “Request an investigation into the serious crime of Nancy and her husband’s abuse of my Baby Aiden,” “REQUESTS: Investigate the criminal conduct of Dr. Lopez MD, Raul and Nancy couple,” “Appeal from Judge Tara Newman’s 06/30/2022 decision,” “Dissatisfied with the judgment of Judge LUI, P.J. 07/05/2022 to dismiss the appeal, request an appeal,” “Because until now there is no report of DCFS hearing on 07/14/2022! Mu wife and I propose the following four motions,” “Appeal against Judge Tara Newman’s 07/14/2022 decision.” “Reply to DCFS Tony Lee 08/02/2022 Status Review Report Framed My House and Request for Hearing,” “Demand that all court notices and court reports handed to me and my wife by DCFS must be signed,” “Accuse Manchu CCP spies for poisoning my son OSCAR to become autistic,” “Accuse the Manchu Chinese spies of poisoning and murdering my family in the United States,” “Accuse the Manchu CCP spy of falsifying my wife’s entry and exist records in the U.S. I-94 and murdering my family,” “Sued California Welfare Bureau for being a criminal group controlled by Manchu CCP spies,” “Accuse the Manchu Chinese spies for controlling American EDD and not giving me unemployment benefits,” “Sued Manchu CCP spies for controlling U.S. employment agencies and jobs,” “Accuse the Manchu CCP spies for controlling the US police, neighbors and landlords to cooperate in the frame and murder of my family,” “Accuse the Manchu CCP spies for controlling American doctors, clinics and pharmacies to cooperate in the frame and murder of my family,” “Accused Manchu CCP spies for controlling U.S. DMV so that I can’t get my driver’s license,” “Sued the CCP spies for controlling Wells Fargo Bank to freeze my stock account,” “1. Accused Manchu CCP spies for controlling Golden Vision and deliberately ruining my eyes 2. Accusation: Manchu CCP spies controlled Judge Thomas D. Long and D. Rosas acting to make an excuse to protect the Gordon criminal group and reject my application for default judgment 3. Against Judgment and Appeal of Judge Audra Mori 03/28/2022,” “Accuse DCFS of being a criminal group controlled by Manchu CCP spies (Supplementary material 2),” “”Flow chart of Manchu CCP destroying the United States and controlling the world,” “Reply to attorney Kenny Brooks and people around the world,” “Deny the Court of Appeal to appoint a lawyer for me,” “Claim details” and “Case conclusion.”

In the event Plaintiff is permitted leave to file a Second Amended Complaint (“SAC”) against any of the defendants, said pleading must be substantially shorter in length (i.e., not to exceed 50 pages in length).

Further, should Plaintiff elect to utilize a Judicial Council form complaint going forward, Plaintiff is instructed to attach and complete the appropriate cause of action attachments.

Should any SAC filed by Plaintiff fail to comply with the court’s directives, the court may elect to strike out said SAC on its own motion pursuant to Code of Civil Procedure § 436.

A demurrer may be made on grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) 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] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Chiu, Chow, Lee, Monge, Pan, Pee and Phan demur to Plaintiff’s FAC, on the basis that it fails to state facts sufficient to constitute causes of action and that it is barred under claim and issue preclusion. It does not appear that Plaintiff has filed any opposition.

At the outset, the demurrer is summarily overruled as moot in part (i.e., as to Chiu), based on the ruling made on the Special Motion to Strike [see below].

Chow, Lee, Monge, Pan, Pee and Phan’s (hereinafter collectively, “Social Worker Defendants”) demurrer on the first ground is sustained. Plaintiff has alleged that his children were removed from his custody and placed into foster care pursuant to a warrant issued by the Superior Court following accusations of sexual abuse of Plaintiff’s daughter. (FAC, pp. 17-18). Plaintiff accuses Social Worker Defendants of being “CCP spies” conspiring with the “Manchu CCP” to “frame, murder and destroy” Plaintiff’s family. (Id. at 17.) Plaintiff’s FAC does not appear to plead elements of causes of action for General Negligence or Intentional Tort.

Social Worker Defendants’ demurrer on the latter ground, however, is overruled. “If all of the facts necessary to show that an action is barred by res judicata are within the complaint or subject to judicial notice, a trial court may properly sustain a general demurrer.” (Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1299.)

“The doctrine of res judicata has a double aspect. First. It precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction. Second. Under the doctrine, any issue that has been necessarily decided in such litigation is deemed to have been conclusively determined as to the parties or their privies even though such issue is involved in a subsequent lawsuit on a different cause of action. (Safeco Insurance Co. v. Tholen (1981) 117 Cal.App.3d 685, 696.) The first aspect is known as claim preclusion, whereas the second aspect is known as issue preclusion. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.)

“Claim preclusion prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Claim preclusion arises if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit. If claim preclusion is established, it operates to bar relitigation of the claim altogether.” (Id. [emphasis in original; internal quotations and citations omitted].) “Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action. . . issue preclusion applies: (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” (Id. at 824-825 [emphasis in original; internal quotations and citations omitted].) “An adjudication is not final if an appeal is pending or could still be taken.” (Contreras-Velazquez v. Family Health Centers of San Diego, Inc. (2021) 62 Cal.App.5^th 88, 103 [internal quotations and citation omitted].)

Although Social Worker Defendants reference both claim and issue preclusion, their argument is focused on issue preclusion. Significantly, Social Workers’ demurrer is not accompanied by any request for judicial notice; as such, the court must determine that all of the facts necessary to show that the action is barred are within Plaintiff’s FAC. The court is unable to make this determination at this juncture, particularly with respect to the element of final adjudication, inasmuch as Social Workers Defendants merely argue, without more, that “[i]n the case at bar, the first prong (‘final adjudication’) is met because California dependency cases are litigated in the Superior Court of the State of California, which is a ‘court of competent jurisdiction.’ Cal. Welf. & Inst. Code §§ 245, 300; Cal. Const. art. VI, § 4.” (Dem., 7:12-14).

“A special motion to strike under section 425.16—the so-called anti-SLAPP statute—allows a defendant to seek early dismissal of a lawsuit that qualifies as a SLAPP.” (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1035.)

“A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).)

“When determining whether to grant an anti-SLAPP motion, the trial court engages in a two-step process. First the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Kronemyer v. Internet Movie Database Inc. (2007) 150 Cal.App.4th 941, 946 [internal quotation marks and citation omitted].)

Chiu moves the court for an order striking Plaintiff’s FAC, on the basis that the conduct alleged against Chiu arises from Chiu’s acts in furtherance of his right to petition by filing or assisting in the filing of documents in a judicial proceeding and that Plaintiff cannot establish a probability of prevailing on the merits of his claim. Chiu also seeks attorney fees and costs in the amount of $1,750.00.

Chiu’s Application to File Request for Judicial Notice Under Seal is denied. Chiu concedes that Exhibits A-G are public records.

The anti-SLAPP statute is designed to protect “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e).) A “public interest” must be demonstrated only with respect to the activities described in subdivisions (e)(3) and (4). (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117-1121.)

“The anti-SLAPP protection for petitioning activities applies not only to the filing of lawsuits, but extends to conduct that relates to such litigation, including statements made in connection with or in preparation of litigation.” (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1532.) All conduct alleged against Chiu, a County of Los Angeles (“County”) Children’s Social Worker II assigned to the Los Angeles County DCFS and currently assigned to the Placement Support Division—Placement Stabilization Team (Chiu Decl., ¶,¶ 1 and 4), transpired during or was connected with acts made in furtherance of the dependency case described and admitted to in Plaintiff’s FAC. (See FAC, generally).[2]

The court finds that Chiu has made a threshold showing that the challenged causes of action arise from protected activity pursuant to subdivision (e)(1).

Again, once a claim is shown to fall within the ambit of the anti-SLAPP law, the burden shifts to the plaintiff (or cross-complainant) to establish a “probability” of prevailing on that claim.

In determining whether a plaintiff (or cross-complainant) has established a probability of prevailing on the claim, the court will “consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2). “In opposing an anti-SLAPP motion, the plaintiff cannot rely on the allegations of the complaint but must produce evidence that would be admissible at trial.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212 [emphasis added].)

“In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. In denying a motion to strike on the ground that the plaintiff has established the requisite probability of success, therefore, the trial court necessarily concludes that the plaintiff has substantiated a legally tenable claim through a facially sufficient evidentiary showing and that the defendant's contrary showing, if any, does not defeat the plaintiff's as a matter of law.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

Plaintiff has not met his burden of demonstrating a probability of prevailing on his FAC. Plaintiff’s FAC is purportedly comprised of two causes of action, for General Negligence and Intentional Tort. “The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.” (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) It is unclear what specific “intentional tort” Plaintiff is pleading. Plaintiff’s FAC does not appear to plead elements of causes of action for General Negligence or Intentional Tort. Plaintiff, moreover, has failed to set forth any admissible evidence in support of his claims in his opposition to the motion.

Further, Plaintiff’s FAC arises, in part, from Chiu’s actions during or in connection with a pending dependency action. This conduct a[[ears protected by the litigation privilege espoused in Civil Code § 47, subdivision (b) [i.e., “A privileged publication or broadcast is one made: . . . (b) In any . . . (2) judicial proceeding . . .”].) “[T]he litigation privilege is held to be absolute in nature.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 215.)

The court finds that Plaintiff has not met his burden of establishing a “probability of prevailing” on his FAC.

Chiu seeks attorney fees in the amount of $1,750.00 [calculated as follows: 5 hours preparing motion, plus 1 hour reviewing opposition and preparing reply, plus 1 hour attending hearing at $250.00/hour].

The court will award attorney’s fees in the reduced amount of $1,000.00 (i.e., 3.5 hours preparing motion, plus 0.5 hours attending hearing at $250.00/hour). The aforesaid fees are payable by Plaintiff within 30 days from the date of the “Notice of Ruling.”

Poon and Khiev demur to Plaintiff’s FAC, on the basis that it fails to state facts sufficient to constitute a cause of action and that it is barred under claim and issue preclusion. Again, it does not appear that Plaintiff has filed any opposition.

At the outset, the demurrer is moot as to Khiev, based upon the ruling made on the Special Motion to Strike [see below]. The demurrer is otherwise sustained as to Poon on the former ground and overruled on the latter ground, on the basis set forth in the analysis on Motion #1.

Khiev moves the court for an order striking Plaintiff’s FAC, on the basis that the conduct alleged against Khiev arises from Khiev’s acts in furtherance of his right to petition by filing or assisting in the filing of documents in a judicial proceeding and that Plaintiff cannot establish a probability of prevailing on the merits of his claim. Khiev also seeks attorney fees and costs in the amount of $1,750.00.

Khiev’s Application to File Request for Judicial Notice Under Seal is denied, for the same reason set forth in the analysis on Motion #2.

Khiev’s motion is granted, for the reasons set forth in the analysis on Motion #2. The court will award attorney’s fees in the reduced amount of $1,000.00 (i.e., 3.5 hours preparing motion, plus 0.5 hours attending hearing at $250.00/hour). The aforesaid fees are payable by Plaintiff within 30 days from the date of the “Notice of Ruling.”

See Motion #1. A demurrer may also be made on grounds that, inter alia, the court has no jurisdiction of the subject of the cause of action alleged in the pleading and that the pleading is uncertain. (Code Civ. Proc., § 430.10, subds. (a) and (f).)

Defendants the Honorable Annabelle G. Cortez (“Judge Cortez”), the Honorable Philip L. Soto (“Judge Soto”) and the Honorable Tara Newman (“Judge Newman”), Judges of the Superior Court of California, County of Los Angeles, Victor G. Viramontes, Judge of the Superior Court of California, County of Los Angeles (erroneously sued as Vict Vianonte) (“Judge Viramontes”) and Stephen C. Marpet, Commissioner of the Superior Court of California, County of Los Angeles (“Commissioner Marpet”) (hereinafter collectively, “Judicial Officer Defendants”) demur to Plaintiff’s FAC, on the basis that it fails to state facts sufficient to constitute a cause of action and is uncertain.

As a preliminary matter, the court declines to consider Plaintiff’s “Opposition to ‘Defendant’s

Reply to Opposition to Demurrer to First Amended Complaint on 02/15/2023’ and Exhibit A” filed on March 14, 2023 inasmuch as it constitutes supplemental briefing which was not requested by the court.

Plaintiff has alleged, in relevant part, that on April 23, 2020 and June 8, 2020, Judge Viramontes signed protective custody warrants authorizing the removal of Plaintiff’s children. (FAC, pp. 155-162); that on May 6, 2020, Judge Soto “heard the hearing privately on the grounds of not being able to find me and his wife. After the hearing, no one told us the result of the hearing. This is Judge Philip L. Soto, Judge deliberately framed my wife and me” (Id., p. 297); that at a June 15, 2020 hearing, Judge Soto conducted a telephone hearing regarding two of Plaintiff’s children who were in the ICU but ignored Plaintiff’s speech, hung up on him without letting him speak and then closed the hearing (Id., p. 298); that Plaintiff thereafter received Judge Soto’s verdict on 6/15/2020 in which Judge Soto “lied” (Id., pp. 27, 298); that Judge Soto did not want to read the petition, refused to accept Plaintiff’s defense, did not ask Plaintiff or his wife any questions and would not allow them to speak (Id.); that during a December 9, 2020 hearing, Judge Cortez “only recognized DCFS framed testimony” (Id., pp. 35 and 37); that at that hearing Judge Cortez ordered family reunification services and a psychological assessment (Id., pp. 5 and 90-92); that on September 30, 2020, a trial was held and three lawyers requested that Plaintiff’s children be returned home but that, as a result of that request, Judge Cortez appointed a different lawyer to represent Plaintiff’s wife and that Plaintiff’s wife could not refuse the appointed lawyer (Id., p. 36); that this “proves that Judge Cortez manipulated the court to frame me and that the evil system of children’s court helped Judge Cortez destroy Chinese children, destroy Chinese families, and destroy the United States to protect the evil Manchu CCP regime” (Id., p. 36); that the judgment from that trial did not reflect the content of the 3.5 hour trial and that the verdict against him shows that the DCFS and Children’s Court are controlled by the “Manchu CCP” (Id., p. 39); that Judge Cortez ordered parenting classes and then cancelled Plaintiff’s class (Id., pp. 5 and 47); that Judge Cortez appointed a lawyer for Plaintiff for his appeal and Plaintiff was told he could not defend himself (Id., p. 47); that Plaintiff and his wife were not allowed to speak in court and that their cell phones were taken to prevent them from recording hearings (Id., pp. 83, 85 and 87); that Judge Cortez ordered the removal of a newborn baby from Plaintiff’s custody in May or June of 2021 (Id., pp. 84-85 and 88-89); and that Judge Cortez was replaced with a new judge after expressing an intent to return Plaintiff’s children to his custody (Id., p. 92.)

Plaintiff has further alleged, in relevant part, that Judge Newman issued an order terminating family reunification services and ordered permanent placement or adoption procedures and that the former is evidence of the “Manchu CCP’s” manipulation and destruction of Chinese families, Chinese children and of the United States (Id., p. 120); that Judge Newman does not allow Plaintiff to record hearings on grounds of privacy and does not allow Plaintiff to speak during hearings because he is represented by a lawyer (Id., p. 402); that Judge Newman denied visitation between the children and parents and ordered at least one child to see a psychiatrist (Id., p. 406); that Judge Newman did not investigate the DCFS’s forging of a protective custody warrant (Id., p. 410); that Judge Newman removed a baby from Plaintiff’s custody (Id., at 498-499 and 641); that on May 18, 2022, Judge Newman issued an order requiring Plaintiff to delete certain items from his Truth Social and Twitter account or else he would be arrested (Id., pp. 645-646); that Judge Newman ordered child visitation be conducted at the police station due to safety concerns for DCFS workers based on allegations that Plaintiff threatened the life of a social worker (Id., pp. 651-652) and that Judges Viramontes, Cortez and Soto and Commissioner Marpet “cannot comply with American values and DCFS regulations” are “CCP spies, who have a mission, plan, and premeditated [sic] to frame, murder and destroy my family” (Id., p. 295).

The Judicial Officer Defendants first assert that the court does not have subject matter jurisdiction to return all of Plaintiff’s children to his and his wife’s custody, as Plaintiff requests. (See FAC, pp. 18, 79, 497, 508, 524, 630 and 704). The court agrees. Code of Civil Procedure § 43 provides, in relevant part, that “[t]he Supreme Court, and the courts of appeal, may affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had. . .” Further, “as a general rule on trial judge cannot reconsider and overrule an order of another trial judge. There are important public policy reasons behind this rule. For one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court. The rule also discourages forum shopping, conserves judicial resources, prevents one judge from interfering with a case ongoing before another judge and prevents a second judge from ignoring or arbitrarily rejecting the order of a previous judge.” (Alvarez v. Superior Court (2004) 117 Cal.App.4th 1107, 1111 [quotations and citation omitted].) The court was not assigned to preside over the juvenile dependency proceedings related to Plaintiff’s children, nor is it an appellate court. The Judicial Officer Defendants’ demurrer is sustained on this basis.

The Judicial Officer Defendants next assert that they are entitled to judicial immunity. Again, the court agrees. Judicial immunity “bars civil actions against judges for acts performed in the exercise of their judicial functions, and it applies to all judicial determinations, including those rendered in excess of the judge's jurisdiction, no matter how erroneous or even malicious or corrupt they may be.” (Howard v. Drapkin (1990) 222 Cal.App.3d 843, 851.) “The judge is immune unless he has acted in the clear absence of all jurisdiction” (Id., [quotations and citation omitted].) California courts have granted quasi-judicial immunity to court commissioners. (Id. at 852-853). “[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.) Here, Plaintiff’s allegations against the Judicial Officer Defendants concern the Judicial Officer Defendants’ statements, decisions and rulings made during the course of juvenile dependency proceedings, including issuing a protective custody warrant to remove Plaintiff’s children, continued detention of the children, and orders pertaining to reunification services, attendance of parenting classes, visitation, etc. The Judicial Officer Defendants’ demurrer is sustained on this basis.

The Judicial Officer Defendants then assert that Plaintiff’s FAC is barred to the extent that it does not include any facts alleging compliance with the claims filing requirements of the Government Claims Act. The court agrees. All claims against public entities for money or damages, or claims against public employees for injuries resulting from an act or omission in the scope of said employee’s employment are subject to the requirements of the Government Claims Act. (Govt. Code §§ 945.4, 950.2.) “The timely filing of a claim is an essential element of a cause of action against a public entity and failure to allege compliance with the claims statute renders the complaint subject to general demurrer.” (Wood v. Riverside General Hospital (1994) 25 Cal.App.4^th 1113, 1119.) The Judicial Officer Defendants’ demurrer is sustained on this basis.

The Judicial Officer Defendants finally assert that Plaintiff’s FAC fails to state facts sufficient to constitute a cause of action and is uncertain. The court agrees. Plaintiff’s FAC does not plead elements of causes of action for General Negligence or Intentional Tort. There are no specific facts alleged which inform the Judicial Officer defendants of the basis for the causes of action asserted against them. The Judicial Officer Defendants’ demurrer is sustained on this basis.

Wen demurs to the first and second causes of action in Plaintiff’s FAC, on the basis that they both fail to state facts sufficient to constitute causes of action and are uncertain.

As a preliminary matter, the court declines to consider Plaintiff’s “Opposition to Defendant’s Reply in Support of Defendant’s Demurret [sic] to Plaintiff’s First Amended Complaint and Exhibit A-B” filed on February 21, 2023 inasmuch as it constitutes supplemental briefing which was not requested by the court.

Plaintiff has alleged, in relevant part, that on or around March 16, 2021, Wen conducted a psychological assessment of Plaintiff and his wife pursuant to an appointment made by Judge Cortez in the context of juvenile dependency proceedings and determined that Plaintiff had a “delusion disorder” and was “not suitable for taking care of minors” (FAC, pp. 85, 90-94); that Wen forced Plaintiff and his wife to sign an “Informed Consent and Authorization Release” (Id., p. 90); and that Wen “framed” them as mentally ill (Id., p. 97).

Wen argues that Plaintiff’s FAC fails to state facts sufficient to constitute a cause of action and is uncertain. The court agrees. Plaintiff’s FAC does not plead elements of causes of action for General Negligence or Intentional Tort. Plaintiff fails to identify any conduct on Wen’s part that would subject Wen to civil liability. Wen’s demurrer is sustained.

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion. . . [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her. . .” (Code Civ. Proc., § 418.10, subd (a)(1).)

Glasper, Bouayad and Montano (hereinafter collectively, “Attorney Defendants”) move the court for an order quashing service of the summons and FAC on the basis that they were not properly served.

Code of Civil Procedure section 415.30 governs the requirements for service by mail and acknowledgment of receipt and requires Plaintiff to serve a copy of the summons and complaint by mail “to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender.” (Code Civ. Proc., § 415.30, subd. (a).) Subdivision (c) provides that “[s]ervice of a summons pursuant to this section is deemed complete on the date a written acknowledgment of receipt of summons is executed, if such acknowledgment thereafter is returned to the sender.”

Attorney Defendants’ counsel Kenney Brooks (“Brooks”) represents, and/or the accompanying exhibits reflect, as follows: In May 2021, Plaintiff emailed the Attorney Defendants with a copy of the complaint. (Brooks Decl., ¶ 2). On May 24, 2022, Brooks emailed Plaintiff and advised Plaintiff that he was representing the Attorney Defendants and that emailing the summons/ complaint did not constitute service. (Id., ¶ 2, Exh. A.) Brooks also requested therein that Plaintiff provide him with a copy of a proof of service in the event Plaintiff believed he had properly served the Attorney Defendants. (Id.) Plaintiff did not request that the Attorney Defendants acknowledge service, nor did he effectuate personal service, after receiving this email. (Id., ¶ 3.) On September 5, 2022, Brooks received an email from Plaintiff regarding a hearing date in the case; Brooks, in turn, advised Plaintiff, in relevant part, that “[y]ou have still not served the Complaint on my clients. Personal service is required to effectuate service of a Complaint. Mail and Email do not suffice.” (Id., ¶ 4, Exh. B.) Plaintiff did not request that the Attorney Defendants acknowledge service, nor did he effectuate personal service, after receiving this email. (Id., ¶ 5.) On September 9, 2022, the court vacated the trial date, set an Order to Show Cause Re: Dismissal For Failure to File Proof of Service for March 27, 2023 and advised that “[f]ailure to file proof of service by the next hearing date, may result in the dismissal of the case.” (Id., Exh. C.) After the aforesaid order, Plaintiff did not request that the Attorney Defendants acknowledge service, nor did he effectuate personal service. (Id., ¶ 7.)

On September 22, 2022, Plaintiff filed the FAC. (Id., ¶ 8, Exh. D.) On October 25, 2022, Plaintiff filed a proof of service, which reflects that service of the FAC had been effectuated on the Attorney Defendants via service by mail and acknowledgement of receipt. (Id., ¶ 9, Exh. E.) Brooks never agreed to accept service on behalf of the Attorney Defendants, nor did he execute an acknowledgment. (Id., ¶ 10.)

The court finds that Plaintiff’s opposition was not properly translated from Mandarin Chinese into English; nevertheless, even if the court considers the English translation, it is evident therefrom that Plaintiff has not met his burden “to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Summers, supra, 140 Cal.App.4th at 413).

[1] Motion #1 was filed (and mail-served) on October 20, 2022 and originally set for hearing on December 21, 2022. Motion #2 was filed (and mail-served) on October 21, 2022 and originally set for hearing on December 9, 2022. Motion #3 was filed (and mail-served) on October 25, 2022 and originally set for hearing on January 9, 2023. Motion #4 was filed (and mail-served) on October 26, 2022 and originally set for hearing on January 23, 2024. On November 7, 2022, Motion #5 was filed (and mail-served) and originally set for hearing on February 2, 2023. On November 8, 2022, Motion #6 was filed (and mail-served) and originally set for hearing on January 5, 2023. On November 9, 2022, Khiev filed (and mail-served) a “Notice of Rescheduling” with respect to Motion #4, advising therein that the January 23, 2024 scheduled hearing date had been reset to January 5, 2023. On November 10, 2023, Chiu, et al. filed (and mail-served) a “Notice of Rescheduling” with respect to Motion #1, advising therein that the December 21, 2022 scheduled hearing date had been reset to January 11, 2023. On November 10, 2022, Khiev and Poon filed (and mail-served) a “Notice of Rescheduling” with respect to Motion #3, advising therein that the January 9, 2023 scheduled hearing date had been reset to January 4, 2023. On November 10, 2022, Chiu filed (and mail-served) a “Notice of Rescheduling” with respect to Motion #2, advising therein that the December 9, 2022 scheduled hearing date had been reset to December 8, 2022. On November 23, 2022, Motion #7 was filed (and served via email) and originally set for hearing on April 13, 2023. On December 5, 2022, the court continued the December 8, 2022 scheduled hearing on Motion #2, January 4, 2023 scheduled hearing on Motion #3, the January 5, 2023 scheduled hearing on Motions #4 and #6, the January 11, 2023 scheduled hearing on Motion #1, the February 2, 2023 scheduled hearing on Motion #5 and the April 13, 2023 scheduled hearing on Motion #7 to February 23, 2023; attorney Anita Brenner (“Brenner”) was instructed to provide notice. On December 8, 2022, Brenner filed (and served via email and mail) a “Notice of Ruling,” advising therein of the rescheduled February 23, 2023 hearing date on Motions #1-#7. On February 23, 2023, the court continued the hearing on Motions #1-#7 to March 20, 2023; Brenner was instructed to provide notice; that day, Brenner filed (and served via mail and email) a “Notice of Ruling,” advising therein of the reset March 20, 2023 hearing date on Motions #1-#7. On March 15, 2023, the court continued the March 20, 2023 hearing on Motions #1-#7 to April 4, 2023; notice was given by the court.

[2] Although not specifically raised, the court also notes that investigation and reports by a “mandated reporter” under the Child Abuse and Neglect Reporting Act (Pen.C. § 11164 et seq.), which includes social workers, are protected as “acts preparatory to or in anticipation of official proceedings, namely, an investigation by child protective services. . . and possible juvenile dependency proceedings. . .” (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 711.)