Judge Ralph C. Hofer, Case Number: 23GDCV01135, Date: 2023-09-29 Tentative Ruling

Plaintiff Tabitha De La Torre alleges that in 1991 plaintiff joined defendant Peter K. Robbins as a 50/50 partner in an advertising and branding agency, which came to be known as Bird Design, Inc. (Bird). By 1998, the company had become profitable enough that the parties decided to invest in commercial real estate, and created a new company for the new enterprise, Lucas King, LLC (Lucas King). Plaintiff alleges that she did not set up a separate Lucas King email accounts, but used her Bird email accounts for communications relating to either company.

In 2017, Bird was dissolved pursuant to a Dissolution Agreement, which provided that all Bird creative and infrastructural data (Shared Assets) were assigned to and jointly owned by plaintiff and defendant, to be managed and stored by defendant and made available to plaintiff upon request, with defendant to provide plaintiff with prior written notification of any planned change in status or location of the Shared Assets.

In 2018, defendant began urging plaintiff to sell the property held by Lucas King, but plaintiff did not desire to sell, but spoke of a buy-out. The parties could not agree on a price, and on June 2, 2020, defendant and the another interested party filed a lawsuit against plaintiff and Lucas King in Los Angeles Superior Court, which is currently pending as Case No. 20 STCV20770. That lawsuit alleges that plaintiff De La Torre, as the sole manager of Lucas King, had abused her authority, looting the company for her own benefit, and stole hundreds of thousands of dollars.

The complaint alleges that on June 7, 2020, a couple of days after plaintiff was served with the Lucas King lawsuit, plaintiff suddenly lost access to her Bird email accounts. Plaintiff alleges that these were her primary email accounts, containing the vast majority of her communications with defendant relating to Lucas King, and contained all the emails plaintiff would need to counter plaintiff’s allegations in the Lucas King lawsuit. Plaintiff assumed her loss of access was some kind of error, and immediately contacted Google, the host of the accounts, but was never able to regain access.

Plaintiff alleges that without access to her emails, refuting the Lucas King lawsuit turned into a nightmare, as plaintiff was forced to spend extra time and attorney’s fees to litigate her defense while attempting to recreate evidence to show that defendant’s claims against her were unfounded. This resulted in plaintiff’s motion for summary judgment being denied when the court found triable issues regarding a certain transaction that was undetailed and unsubstantiated by other written records, records that likely existed in plaintiff’s emails.

In November of 2021, plaintiff received interrogatory responses in the Lucas King lawsuit which revealed for the first time that it was defendant Robbins who removed plaintiff’s access to her emails, and plaintiff realized that her long-time business partner had surreptitiously locked her out of her email accounts so she could not access the emails she would need to defend herself against his lawsuit. Plaintiff demanded that defendant return control of her email account, but defendant refused, and instead sent a purportedly complete copy of her email accounts, which plaintiff alleges is insufficient. Plaintiff alleges that she will need access to her individual Bird email accounts as well as the overall administration account, to determine whether defendant deleted or altered emails critical to her defense.

The complaint alleges that this conduct breached the Bird Dissolution Agreement, as well as the covenant of good faith and fair dealing, and constitutes conversion of plaintiff’s email accounts.

The file shows that on August 18, 2023, defendant filed a Notice of Related Case, indicating that this case is related to LASC Case No. 20 STCV20770, Fleming, et al. v. De La Torre, et al., an unlimited civil case pending in Department 40, which the Notice indicates involves the same parties and is based on the same or similar claims. On August 23, 2023, a Notice of Related Case was filed in the other case.

This matter was originally heard on September 29, 2023. The matter was continued to this date, October 27, 2023, to permit the parties to seek and obtain a related case determination in the other matter, LASC Case No. 20 STCV20770, pending in Department 40. The parties were ordered to seek a related case determination in the other matter, and file and serve a notice in this matter concerning the status of the related case determination in this matter in advance of the continued hearing date.

The file shows that on October 10, 2023, plaintiff filed a Notice of Ruling Re: Related Case Determination, which indicates that on October 10, 2023, Department 40 heard an ex parte application for related case determination filed jointly by plaintiffs Harriet Fleming and Peter Robbins, and defendant Tabitha De la Torre. The court granted the ex parte application. The minute order indicates that “After full consideration of the evidence and the written and oral submissions of the parties, and with good cause appearing… the Court hereby…deems the cases NOT RELATED.” [Notice, Ex. B, p. 2:4-10].

“not to relate the cases, on the basis that the second-filed action (1) arose out of facts occurring after the filing of the first action, (2) alleged different wrongdoing, and (3) was only just beginning, whereas the first-filed action has an upcoming trial date.”

CCP § 430.40(a) provides, “A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.”

“(2) The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.”

On July 5, defendant filed a Declaration of Stephen G. Preonas Re Meet and Confer Under CCP section 430 (a)(2), which indicated that the parties had been unable to meet and confer for at least five days prior to the date the responsive pleading was due, so that defendant was filing the declaration to obtain a 30-day extension to respond, which extension shall commence from the date the responsive pleading was previously due, which defendant acknowledged was July 5, 2023. [Preonas Decl., para. 4].

This would mean the demurrer was due no later than August 4, 2023. The demurrer was not filed and served until August 18, 2023, so was 14 days late. No further extension was obtained from the court upon a showing of good cause. The demurrer is untimely and could be overruled on this ground alone, but the court elects not to do so..

As noted above, Department 40 has determined that this matter is not related to the matter now pending there. This court will accordingly address the demurrer in this matter.

The demurrer is brought pursuant to CCP § 430.10 (c), which permits a party against whom a complaint has been filed to object by demurrer to the pleading on the ground, “(c) There is another action pending between the same parties on the same cause of action.”

Defendant argues that in this action plaintiff improperly seeks reconsideration of a denial of a discovery motion filed by plaintiff as a defendant in the action of Robbins, et al. v. De La Torre, et al. LASC Case No. 20 STCV20770, filed on June 2, 2020.

Defendant argues that in the discovery motion plaintiff sought terminating and monetary sanctions relating to her access to the e-mail accounts for the business formerly operated and jointly owned by plaintiff and defendant, and that after the other court entered its order to deny the discovery motion, plaintiff filed this action to seek the identical relief sought in the discovery motion.

Defendant does not submit to the court the operative complaint in the other action for consideration by the court with respect to whether this action involves the same parties and any same cause of action. Defendant submits only a minute order on a motion for terminating sanctions and a motion to compel further responses to interrogatories, and a declaration of counsel for Robbins in that action in support of the opposition to the motion for terminating sanctions. Without the operative pleading, the court does not have sufficient information to conclude that this action, or any part of it, is demurrable under CCP section 430.10 (c).

A review of the minute order shows that the dispute concerning the disclosure of the e-mails arose only well after the action in that case was filed, when discovery conducted after De La Torre experienced difficulty accessing her accounts finally revealed that access had been blocked by her litigation opponent, and De La Torre ultimately sought terminating sanctions based on abuse of the discovery process, arguing that the failure to provide De La Torre with access to her old Bird Gmail Account had provided plaintiffs in that action with an unfair litigation advantage and merited terminating sanctions.

The court in the other action found that under the circumstances presented by the motion there were not sufficient grounds to grant terminating sanctions, limited to the evidence then before the court. [RFJN, Ex. 1, pp. 10-11]. The court also stated, “To the extent that De La Torre is entitled to relief, e.g., access to the Gmail Account at issue, a terminating sanction motion is not the vehicle for such relief.” [RFJN, Ex. 1, Minute Order, p. 12].

The moving papers also appear to suggest that the court in the other action expressly denied De La Torre’s request for access to her Gmail Account, the same relief sought here. The court in fact denied a motion to compel further discovery responses providing De La Torre with login credentials to enter her Gmail Account, but denied the motion as untimely, filed one court day late. [RFJN, Ex. 1, Minute Order, p. 13]. The matter was not determined on its merits, and the minute order expressly states, “This does not foreclose De La Torre’s ability to pursue other avenues of relief under the Code of Civil Procedure.” [RFJN, Ex. 1, Minute Order, p. 13].

This presentation is an insufficient showing to establish any of defendant’s vague arguments, including that this complaint, or any cause of action stated in it, is barred under CCP § 430.10 (c), that there is some aspect of res judicata which bars the current action, or that plaintiff is required to bring this action as a compulsory cross-complaint in the other action, when the minute order relied upon acknowledges that De La Torre was unaware for a significant period in the other litigation that her inability to access her accounts was due not to some technical difficulty but due to the deliberate conduct of plaintiff in that action.

Plaintiff in opposition does submit the original complaint and First Amended Complaint in the other action. [Plaintiff’s RFJN, Exs. A, B]. A review of the pleadings suggests to the court that these pleadings were not submitted with the demurrer because they do not support the relief sought. The complaint alleges causes of action against defendant De La Torre related to her conduct characterized as abuse of her authority as managing member of the limited liability company for Conversion, Breach of Fiduciary Duty, Breach of the Operating Agreement, Accounting, and Dissolution of the Company. [Plaintiff’s RFJN, Ex. A].

The FAC alleges causes of action for Conversion, Breach of Fiduciary Duty, Breach of the 1998 and 2016 Operating Agreements, Accounting, Dissolution of the Company and Declaratory Relief. [Plaintiff’s RFJN, Ex. B].

As noted above, this action alleges causes of action by De La Torre, against Robbins, related to his specific alleged conduct with respect to denying access to De La Torre’s Gmail Account and other documentation, for Breach of Contract, Breach of Covenant of Good Faith and Fair Dealing, and Conversion.

Plaintiff also points out in opposition that not only are the causes of action, brought by and against different parties, not the same, but all parties are not the same, and the relief sought in each of the actions is distinct. As noted above, the other court’s determinations on a discovery motion were somewhat limited by the court itself, and not necessarily directed to the merits of anything in dispute in this matter.

This court is also mindful that the Notice filed in this action concerning the determination of Related Cases in the other matter represents, without objection or contradiction by defendant, that the other court, which has extensive experience with the other action, has observed that this action arises out of facts occurring after the filing of the first action, and alleges different wrongdoing. [See Notice, filed 10/10/2023].

It is difficult to determine why defendant would believe that very limited orders in discovery matters in another matter would give rise to demurrer either under CCP § 430.10 (c), res judicata, or an argument that the current action is a compulsory cross-claim, particular when this action had not yet arisen, and the facts giving rise to the distinct damages claimed in this action had been actively concealed from De La Torre at and beyond the time the previous action was filed.

Procedurally, the demurrer is untimely, as filed fourteen days beyond the 30-day extension defendant sought to respond to the complaint, without obtaining in advance a further extension by court order upon a showing of good cause, as required under CCP section 430.41(a)(2).

On its merits, the Court cannot find that there is another action pending between the same parties on the same cause of action or that the complaint fails to state facts sufficient to state a cause of action.

Defendant’s Request for Judicial Notice is GRANTED in part. Plaintiff takes judicial notice of the minute order and pleading filed in LASC Case No. 20STCV20770 to the extent permitted by Day v. Sharp (1975) 50 Cal.App.3d 904, 914 (e.g, the Court takes judicial notice of the existence of court records, but not the truth of hearsay allegations contained therein, except in connection with certain exceptions enumerated in that case, such as orders, findings of fact and conclusions of law, and judgments.)

Plaintiff’s UNOPPOSED Request for Judicial Notice is GRANTED, although, as noted above, the court does not take judicial notice of the truth of hearsay statements included in pleadings.

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