Judge Robert S. Draper, Case 22STCV10827 2023-05-11 Tentative Ruling

Plaintiff has not served the following Defendants, and filed the proof of service, in violation of California Rules of Court, rule 3.110: Nina Mendoza, Steven Hannigan, Patrick Westgate, Claudia Velasquez, Dave Henry, and Michele Wilson. The Court issues an Order to Show Cause why the listed defendants should not be dismissed for violation of rule 3.110, and lack of prosecution under Code of Civil Procedure sections 581 and 583. The OSC hearing shall be held on July 12, 2023, at 8:30 a.m.

Plaintiff may appear remotely or in-person. The Court provides notice that if Plaintiff does not file proof of service on or before July 5, 2023, and attend the hearing, either remotely or in-person, absent good cause, the Court will dismiss the listed defendants without prejudice.

This is an action for defamation and harassment. Juliana Payne (“Plaintiff”) filed suit on March 30, 2022 against Naima Richardson (“Defendant”) and several Does. The First Amended Complaint (“FAC”) is the operative complaint here and was filed on April 14, 2022.

The FAC stems from an April 1, 2021 incident where Defendant hosted a Twitch Stream on which Defendant allegedly made numerous malicious statements of purported facts about Plaintiff that Defendant knew were false. (FAC, ¶ 17.) Defendant also began posting on social media that Plaintiff was stalking Defendant. (FAC, ¶ 20.) Plaintiff further alleges that after having been provided evidence that Defendant’s statements were false, Defendant refused to retract her defamatory statements and instead chose to continue publishing said statements. (FAC, ¶ 20.)

On October 12, 2022, Plaintiff filed an amendment to the FAC in order to correct the name of a Doe to Les Talusan Olmedo (“Defendant Olmedo”). On March 20, 2023, Defendant Olmedo filed a Demurrer to the FAC. No opposition papers have been filed by Plaintiff.

1. Demurrer of Defendant Naima Richardson filed on August 26, 2022 in this Court, including copies of the transcript of the trial held in small claims court on January 21, 2022, and judgement entered against Plaintiff on February 25, 2022.

“Before filing a demurrer…the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 430.41(a)).

According to the Declaration of James K. Kawahara (“Kawahara Dec.”), the parties attempted to engage in a meet and confer process between March 7 and March 16 of 2023. However, no agreement was reached. (Kawahara Dec., ¶ 3.)

The Kawahara Dec. does not mention whether the parties specifically spoke in-person, or over the telephone as CCP § 430.41(a) requires. Therefore, the meet and confer requirement remains unsatisfied, however, per CCP § 430.41(a)(4), “A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.”

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Here, Defendant Olmedo’s main argument is that because Plaintiff previously brought this case with the same facts and asserted the same primary right, then lost, that Plaintiff is barred by collateral estoppel from adjudicating the same issues against derivative “Doe” defendants like Defendant Olmedo. The Court agrees.

The rule of collateral estoppel requires that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. (People v. Zavala, (2008) 168 Cal.App4th 772, at 776-777.) “Thus, res judicata and collateral estoppel require three common elements: “ ‘(1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding.” (Zevnik v. Superior Court, (2008) 159 Cal.App.4th 76, at 82-83, citing People v. Barragan (2004) 32 Cal.4th 236, 253, 9 Cal.Rptr.3d 76, 83 P.3d 480.)

Defendant has requested and the Court has granted judicial notice of Defendant Naima Richardson’s Demurrer that includes a judgment in small claims court entered in favor of Defendant Richardson, against Plaintiff. The Court also granted judicial notice of the ruling regarding Defendant Richardson’s Demurrer on November 14, 2022, which was in favor of Defendant Richardson who demurred arguing that Res Judicata barred Plaintiffs claims. Defendant Olmedo’s arguments are similar and attempt to fulfill the required elements.

First, the claim or issue raised in the present action is identical to the claim or issue litigated in the prior proceeding. Here, Plaintiff puts forth seven causes of action, all based on the same facts presented in small claims court. (See generally, Defendant Richardson’s Demurrer to the Plaintiff’s Complaint, Hearing Transcripts of January 21, 2022, Case Number 21STSC03816.)

Second, the prior proceeding resulted in a final judgment on the merits. The small claims court ruled in favor of Defendant and against Plaintiff. (See Notice of Entry of Judgment for Small Claims Case No: 21STSC03816.) Additionally, in the judicially noticed Demurrer by Defendant Naima Richardson, Defendant Richardson attached an order from the Court of Appeal denying Plaintiff’s petition for writ of mandate as to the small claims’ court order. Therefore, the judgment is final.

Third, the party against whom the collateral estoppel is being asserted was a party in the prior proceeding. Plaintiff was a party in the prior small claims court proceeding. The Court finds here that the allegations constituting the Complaint in the small claims court affect the same primary rights as those constituting the instant FAC.

Finally, the Court will note California Rules of Court 8.54(c): A failure to oppose a motion may be deemed a consent to the granting of the motion. Plaintiff filed no opposition papers to the instant Demurrer.