Judge Randolph M. Hammock, Case 22STCV19747 2023-02-09 Tentative Ruling

Judge: Randolph M. Hammock, Case: 22STCV19747, Date: 2023-02-09 Tentative Ruling

Plaintiff Tom Maksemous attended the same high school as Defendant Jazmin Escobar. Nearly a decade after graduating, the two connected on the internet dating website OKcupid.com. In a message to Defendant Escobar, Plaintiff made a sexual reference and commented on Defendant’s weight. In response, Escobar posted a screenshot of the conversation and posted it to her Tumblr blog. Plaintiff later learned that the screenshot depicting his lewd messages could be found by a Google search. Plaintiff now brings this action against Defendant Escobar and Tumblr’s owner, Defendant Automattic, Inc.

If a plaintiff wishes to amend a complaint after the answer has been filed or after the demurrer has been filed and after the hearing on the demurrer, or if he or she has already amended the complaint “of course,” permission of the court must be obtained before the amendment will be allowed. (CCP §§ 473(a)(1), 576.)

Motions for leave to amend the pleadings are directed to the sound discretion of the court. “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading . . . .” (CCP § 473(a)(1); see CCP § 576.) Policy favors liberally granting leave to amend so that all disputed matters between the parties may be resolved. (See Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) Absent prejudice to the adverse party, the court may permit amendments to the complaint “at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761 [internal quotes omitted].)

Although denial is rarely justified, a judge has discretion to deny leave to amend if the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party. (Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530; see also Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490). An opposing party is prejudiced where the amendment would necessitate a trial delay along with a loss of critical evidence, added preparation expense, increased burden of discovery, etc. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.

A motion for leave to amend must state with particularity what allegations are to be amended. Namely, it must state what allegations in the previous pleading are proposed to be deleted and/or added, if any, and where, by page, paragraph, and line number. (CRC, Rule 3.1324(a)(2)-(3).) The motion must be accompanied by a declaration specifying: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. (CRC, Rule 3.1324(b).) The motion must also be accompanied by the proposed amended pleading, numbered to differentiate it from the prior pleadings or amendments. (CRC, Rule 3.1324(a)(1).) It is within the court’s discretion to require compliance with Rule 3.1324 before granting leave to amend. (Hataishi v. First American Home Buyers Protection Corp.¿(2014) 223 Cal.App.4th 1454, 1469.)

On November 28, 2022, this court sustained Defendant Escobar’s demurrer to the Complaint’s first cause of action for Revenge Porn without leave to amend. Thus, according to the Complaint, the causes of action remaining against Defendant Escobar are for (2) intrusion into private affairs, (3) false light, (4) public disclosure of private facts, and (5) misappropriation of Plaintiff’s name and likeness.

On December 21, 2022, this court sustained Defendant Automattic’s demurrer to the Complaint in its entirety, but granted Plaintiff leave to amend as to only the proposed causes of action for (1) violation of California Penal Code section 632.7 and (2) misappropriation of Plaintiff’s name and likeness, to be filed within 30 days and as to Defendant Automattic only. [FN 1] (See 12/21/2022 Ruling.) The ruling further instructed that Plaintiff’s FAC could not assert any new causes of action against Defendant Escobar without a joint stipulation, or, without seeking leave to amend from this court. (Id.)

Plaintiff now seeks leave to amend to file a FAC asserting the remaining four causes of action in the Complaint against Defendant Escobar, as well as the following four new causes of action: (1) violation of California Penal Code section 632.7 against both Defendants Automattic and Escobar; (2) common law misappropriation of name and likeness against both Defendants; (3) civil extortion against Defendant Escobar only; and (4) intentional infliction of emotional distress against Defendant Escobar only. [FN 2]

First, Plaintiff has already been given leave to amend to assert the two proposed causes of action against Defendant Automattic—violation of Penal Code section 632.7 and common law misappropriation of name and likeness—the only permitted causes of action against this Defendant. (See Final Ruling on Demurrer, 12/21/2022.)

Thus, the issue to be addressed is whether Plaintiff should be given leave to also assert these two claims against Defendant Escobar, plus the two additional claims against Escobar for IIED and civil extortion. Thus, of the seven causes of action in the Proposed First Amended Complaint, Plaintiff only needs leave of court to assert these four against Defendant Escobar: (a) violation of Penal Code section 632.7, (b) common law misappropriation of name and likeness, (c) IIED, and (d) civil extortion.

It is unclear if this modification has any practical effect—Plaintiff does not address it at all, and Defendant does not address why the modification is remarkable. The court therefore allows the amendment. Be that as it may, the modification may give raise to the “sham pleading” argument in an appropriate motion. “A plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false. [Citation.] Likewise, the plaintiff may not plead facts that contradict the facts or positions that the plaintiff pleaded in earlier actions or suppress facts that prove the pleaded facts false. [Citation.]” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal. App. 4th 336, 344). The Doctrine is not “intended to prevent honest complainants from correcting erroneous allegations ... or to prevent correction of ambiguous facts.” ’ [Citation.] Instead, it is intended to enable courts ‘to prevent an abuse of process.’” [Citation.]” (Id.) Application of this doctrine will be addressed if and when the time comes.

As to the proposed cause of action for extortion against Defendant Escobar, it appears Plaintiff admits the facts “arose entirely from incidents that occurred after the original complaint was filed.” (Mtn. p. 2.) Thus, the proper procedure is not an amended complaint, but a supplemental complaint.

“A ‘supplemental’ pleading is used to allege facts occurring after the original pleading was filed. [Citation.] In contrast, the additional allegations in an ‘amended’ pleading address matters that had occurred before the original pleading was filed.” (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1032.) Code of Civil Procedure section 464, subdivision (a) provides: “The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer.” As with amended pleadings, a motion to file supplemental pleadings is addressed to the sound discretion of the court and the same policy favoring liberality in amending pleadings applies. (Louie Queriolo Trucking, Inc. v. Sup.Ct. (1967) 252 Cal.App.2d 194, 197.)

As the motion is substantively unopposed, and in light of the “policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits,” this court will permit the amendment as to all four new causes of action against Defendant Escobar. (Bd. of Trustees v. Superior Ct. (2007) 149 Cal. App. 4th 1154, 1163.) Although this court continues to express its doubts to the validity of these claims, the “better course of action” is to permit the amendment, “and then let the parties test its legal sufficiency in other appropriate proceedings.” (Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 760.)

Judge of the Superior Court

FN 1- These causes of action were contained in the untimely and now stricken First Amended Complaint, which this court considered as Plaintiff’s “offer of proof” regarding leave to amend.

FN 2 - Unfortunately, the Plaintiff appears to not have taken seriously this Court’s “Concluding Observations,” as contained in its 12/21/22 Final Ruling. Indeed, on the contrary, he wants to “double down,” and vastly increase the intensity of this litigation. So be it. Let’s see how this all turns out.