Judge Robert B. Broadbelt, Case BC724250 2023-05-16 Tentative Ruling

(2) Defendants Los Indios de San Gabriel Inc., d/b/a Gabrieleno Band of Mission Indians, and Andrew Salas

The court considered the moving, opposition, and reply papers filed in connection with this motion. The court considered the supplemental opposition filed by defendant Alexandra R. McIntosh, APC and the supplemental reply papers filed by plaintiff Emilio Reyes. Defendants Los Indios de San Gabriel Inc., d/b/a Gabrieleno Band of Mission Indians and Andrew Salas elected not to file supplemental opposition papers.

The court grants defendant Alexandra R. McIntosh, APC’s request for judicial notice as to Exhibits A through C. (Evid. Code, § 452, subd. (d).) The court denies defendant Alexandra R. McIntosh, APC’s request for judicial notice as to matters 4 through 10 because defendant Alexandra R. McIntosh, APC did not provide the court with copies of those materials. (Cal. Rules of Ct., rule 3.1306, subd. (c) [“A party requesting judicial notice of material under Evidence Code sections 452 or 453 must provide the court and each party with a copy of the material”].)

Plaintiff Emilio Reyes (“Plaintiff”) moves the court for an order granting him leave to file a Third Amended Complaint (1) to include new facts discovered since filing the Second Amended Complaint; (2) to add four new causes of action for (i) conversion, (ii) aiding and abetting, (iii) malicious prosecution, and (iv) abuse of process; (3) to remove the cause of action for negligent handling of legal matter; (4) to delete allegations that are irrelevant to this action; (5) to remove defendant Alexandra R. McIntosh (“McIntosh”) from the causes of action for defamation, invasion of privacy, intentional infliction of emotional distress, and unfair business practices; and (6) to remove as defendants Board for Certification of Genealogists, Joseph Villalobos, Lesa Green, and Kizh Nation Resources Management.[1] (Reyes Decl., ¶¶ 3-8, 11.)

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect…. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars….” (Code Civ. Proc., §¿473, subd. (a)(1).) “This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.)

The court finds that (1) Plaintiff has shown that it is in the furtherance of justice to allow Plaintiff to file his proposed Third Amended Complaint, and (2) the opposing defendants will not be substantially prejudiced by this amendment. The court therefore exercises its discretion to permit Plaintiff to file his proposed Third Amended Complaint and grants Plaintiff’s motion. (Code Civ. Proc., § 473, subd. (a)(1).)

First, the court notes that defendant McIntosh contends that Plaintiff is attempting to circumvent the court’s order granting McIntosh’s special motion to strike by requesting leave to file a Third Amended Complaint that adds causes of action for intentional torts based on the same general facts at issue in the special motion to strike.

Plaintiff filed his First Amended Complaint against, inter alia, McIntosh on July 31, 2020, alleging seven causes of action for (1) negligence, (2) defamation, (3) invasion of privacy, (4) unfair business practices, (5) intentional infliction of emotional distress, (6) stalking, and (7) professional negligence and malpractice. On June 4, 2021, the court granted McIntosh’s special motion to strike as to each of the seven causes of action alleged in Plaintiff’s First Amended Complaint. Plaintiff filed his operative Second Amended Complaint on August 13, 2021. Thereafter, on August 12, 2022, the Court of Appeal (1) reversed the court’s order granting McIntosh’s special motion to strike as to the professional negligence and negligence causes of action, and (2) affirmed the court’s order granting McIntosh’s special motion to strike the remaining causes of action.

McIntosh contends that Plaintiff is attempting to circumvent the court’s order, and the Court of Appeal’s ruling affirming the court’s order, granting McIntosh’s special motion to strike all causes of action except the negligence causes of action. McIntosh contends that the proposed causes of action are supported by “claims based on constitutionally protected activity despite the Court of Appeal’s opinion which is now the law of the case[.]” (Supp. Opp., p. 6:13-16.) Specifically, McIntosh contends that Plaintiff’s proposed allegations that his private documents were converted, unlawfully distributed and disseminated, and unlawfully published are based on protected activity and show that Plaintiff is attempting to revive stricken claims concerning this activity.

The court acknowledges that the Court of Appeal concluded that (1) Plaintiff’s claims for defamation, invasion of privacy, and intentional infliction of emotional distress “turn[ed] on the alleged publication of the report and BIA letter with [Plaintiff’s] private information, quintessential protected activity[;]” (2) McIntosh’s publication of the report online constitutes protected activity under Code of Civil Procedure section 425.16, subdivision (e)(3); and (3) Plaintiff did not meet his burden to show that the trial court erred in finding that he did not show a probability of prevailing on those claims, and therefore ruled that the court did not err in granting McIntosh’s special motion to strike as to those causes of action. (Aug. 12, 2022 Court of Appeal ruling, pp. 25, 31, 32.) However, the court finds that McIntosh has not sufficiently shown that Plaintiff’s proposed Third Amended Complaint is an improper attempt to circumvent the court’s order granting its special motion to strike. Plaintiff is not attempting to reallege his stricken claims for defamation, invasion of privacy, and intentional infliction of emotional distress, and is instead seeking to allege new causes of action for conversion, aiding and abetting, malicious prosecution, and abuse of process.

The proposed cause of action for conversion is based on the allegations that each defendant interfered with Plaintiff’s property by taking possession of his property and failing to return his property upon demand. (Reyes Decl., Ex. D, Proposed Third Amended Complaint, ¶¶ 133-134, 138.) Thus, this cause of action does not appear to contravene the orders striking the challenged causes of action.

The proposed cause of action for aiding and abetting alleges that the defendants influenced McIntosh to breach her fiduciary duty by influencing her to represent defendants Lorraine Escobar and KNRM. (Reyes Decl., Ex. D, Proposed Third Amended Complaint, ¶ 276.) While it also alleges that McIntosh “provided substantial assistance and encouragement to the Seven Publications[,]” it appears that this cause of action is based on McIntosh’s breach of fiduciary duty owed to Plaintiff as Plaintiff’s former attorney. (Ibid.; Reyes Decl., Ex. D, Proposed Third Amended Complaint, ¶¶ 11 [McIntosh is Plaintiff’s former attorney], 25 [McIntosh made a verbal agreement with Plaintiff for representation and legal services], 67 [McIntosh breached its fiduciary duty and professional obligations not to distribute Plaintiff’s documents], 69 [McIntosh breached its professional and ethical duties].) Thus, this cause of action does not appear to reallege the stricken causes of action or contravene the court’s orders, but is more analogous to the causes of action alleging negligence and professional negligence, which were not stricken pursuant to the Court of Appeal’s order reversing the trial court’s order granting the special motion to strike as to those causes of action. (Aug. 12, 2022 Court of Appeal Order, pp. 20-25.)

The proposed cause of action for malicious prosecution is alleged only against defendant Lorraine Escobar, and thus does not circumvent the court’s order, and the Court of Appeal’s ruling affirming the court’s order, granting the special motion to strike the challenged causes of action as alleged against McIntosh. (Reyes Decl., Ex. D, Proposed Third Amended Complaint, p. 56:17-19 [alleging malicious prosecution action “Against ESCOBAR”].)

The proposed cause of action for abuse of process is based, in part, on allegations that McIntosh distributed the BIA documents, served unauthorized discovery requests on Plaintiff, and served an unlawful deposition notice on Ms. Muncy that was not authorized by the BIA. (Reyes Decl., Ex. D, Proposed Third Amended Complaint, ¶ 315.) Although the Third Amended Complaint references the allegedly unlawful distribution of Plaintiff’s statements, this cause of action cannot be based on those claims since an abuse of process cause of action “concerns the misuse of the tools the law affords litigants once they are in a lawsuit….” (S.A. v. Maiden (2014) 229 Cal.App.4th 27, 42 [emphasis in original].) Thus, the prelitigation distribution could not constitute an abuse of process. Moreover, even if these actions could constitute an abuse of process, it appears that Plaintiff is alleging that McIntosh breached her professional duty not to distribute his personal documents to others, which would not circumvent the court’s orders regarding McIntosh’s special motion to strike. (Reyes Decl., Ex. D, Proposed Third Amended Complaint, ¶ 83 [McIntosh “owed a duty to Plaintiff to maintain his secrets and not redistribute and publish his private BIA documents”].) The other allegations on which Plaintiff bases this cause of action (e.g., propounding the allegedly unauthorized discovery requests and unauthorized deposition) do not implicate or contravene the court’s order striking the challenged causes of action.

The court therefore finds that McIntosh has not established, for purposes of this motion, that Plaintiff’s request to file a Third Amended Complaint is an impermissible attempt to circumvent the granting of McIntosh’s special motion to strike his previous claims for defamation, invasion of privacy, and intentional infliction of emotional distress.

The court further notes that Plaintiff’s filing of the Third Amended Complaint would not vacate or affect the court’s order granting McIntosh’s special motion to strike or the Court of Appeal’s ruling affirming, in part, that order.

Second, McIntosh and defendants Los Indios de San Gabriel, Inc., d/b/a Gabrieleno Band of Mission Indians and Andrew Salas (the “Los Indios de San Gabriel Defendants”) (together with McIntosh, “Defendants”) contend that permitting amendment would be futile because (1) some of the proposed causes of action are time-barred, and (2) the proposed Third Amended Complaint does not state facts sufficient to support the causes of action for conversion and aiding and abetting against the Los Indios de San Gabriel Defendants. (McIntosh Opp., pp. 7:24-26, 8:3-9:11; Los Indios de San Gabriel Defendants Opp., p. 5:21-5:26.) However, “‘the preferable practice [is] to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.’” (Kittredge Sports Co., supra, 213 Cal.App.3d at p. 1048.) Thus, Defendants may test the legal sufficiency of the Third Amended Complaint by filing a demurrer or other appropriate motion.

Third, the court finds that Defendants have not shown that the proposed Third Amended Complaint is a sham pleading. “Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.) McIntosh points out that Plaintiff alleged that he was misclassified as belonging to Diegueño or San Diego tribes in the First Amended Complaint, but alleges, in his proposed Third Amended Complaint, that he descends from the Diegueño (San Diego) Tribe and the Gabrielino (Tongva) Nation. (FAC ¶ 1; Reyes Decl., Ex. 4, Proposed Third Amended Complaint, ¶ 7.) These allegations may be inconsistent. However, McIntosh has not sufficiently established that any inconsistency demonstrates Plaintiff’s omission of “harmful allegations” “to avoid attacks raised in demurrers or motions for summary judgment.” (Deveny, supra, 139 Cal.App.4th at p. 425.) Thus, the court finds that Defendants have not shown that Plaintiff’s proposed Third Amended Complaint is a sham pleading.

Finally, the court finds that Defendants have not shown that they will be unduly prejudiced by this amendment. Although the court acknowledges the age of this case, and that Los Indios de San Gabriel Defendants have filed a demurrer and motion to strike directed to Plaintiff’s Second Amended Complaint, Defendants will still have the opportunity to refile their responsive pleadings directed to the Third Amended Complaint.

The court grants plaintiff Emilio Reyes’s motion for leave to file third amended complaint.

The court orders plaintiff Emilio Reyes to file his proposed Third Amended Complaint, in the form attached to the declaration of Emilio Reyes as Exhibit 4, within 5 days of the date of this order.

[1] The court notes that Plaintiff filed a Request for Dismissal on March 22, 2023 as to defendants Board for Certification of Genealogists, Joseph Villalobos, and Lesa Green. Those defendants were dismissed pursuant to Plaintiff’s request on March 23, 2023.

emilio reyes ; Plaintiff, vs. lorraine ann escobar , et al.; Defendants.	Case No.:	BC724250

	Hearing Date:	May 16, 2023

	Time:	10:00 a.m.

	[Tentative] Order RE: plaintiff’s motion for leave to file third amended complaint