Judge: Shirley K. Watkins, Case: 22VECV01914, Date: 2023-03-14 Tentative Ruling

Case Number: 22VECV01914    Hearing Date: March 14, 2023    Dept: T

            [TENTATIVE] ORDER:  Defendants Forouzandeh Makarehchi and Tannaz Makarehchi’s Demurrer to the Complaint is OVERRULED as to the first cause of action and SUSTAINED WITHOUT LEAVE TO AMEND as to the second cause of action.

Defendants Forouzandeh Makarehchi and Tannaz Makarehchi’s Request for Judicial Notice submitted with the Demurrer is GRANTED but not as to any hearsay or facts in dispute.

Defendants Forouzandeh Makarehchi and Tannaz Makarehchi’s two Requests for Judicial Notice submitted with the Reply are DENIED due to relevance.

Introduction

            Defendants Forouzandeh Makarehchi (Forouzandeh[1]) and Tannaz (Tannaz) Makarehchi (collectively, Defendants) demurred to Plaintiffs Leila Javadpour (Javadpour) and Taraneh Bolourchian’s (Bolourchian) (collectively, Plaintiffs) Complaint.  Defendants placed into issue both causes of action (COA) for libel per se and “civil entrapment & frame-up.” 

            Discussion 

            Defendants argued that the litigation privilege bars the entire action.  (Code Civ. Proc. sec. 47(b).)  The litigation privilege “applies to any communication made (a) in judicial or quasi-judicial proceedings; (b) by litigants or other participants authorized by law; (c) to achieve the objects of the litigation; and (d) having some connection or logical relation to the action.” The privilege applies “even though the publication is made outside the courtroom and no function of the court or its officers is involved.”  (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.)  The first COA alleged that both Defendants communicated to a third party/family member in Iran that Plaintiffs were doing “illegal things.”  (Compl. pars. 8 and 18; Exh. 1.)  Defendants argued that the communication was related to a Temporary Restraining Order (TRO) application filed by Forouzandeh to protect Audrey and Gerald Parker, both elders, from Javadpour.  (Audrey Parker v. Leila (AKA Helen) Javadpour (Super. Ct. Orange County, 2022, No. 30-2022 01283172.)  The TRO was granted on September 30, 2022, and Javadpour was to stay away from Mrs. Parker. (Compl. Exh. 2 and Defendant’s Request for Judicial Notice submitted with the Demurrer (RJN,) Exh. B.)  However, the “litigation privilege does not apply where [the] publication is to persons in no way connected with the proceeding.”  (Abuemeira v. Stephens (2016) 246 Cal.App.4th 1291, 1299.)  Defendants do not present any facts (whether it is within the Complaint or documents judicially noticeable) to show that the third-party family member in Iran was a party to the TRO application or a witness that testified in the TRO application/hearing.  Without facts/argument showing that the recipient of the text message was connected to the TRO application, Defendants failed to show that the text message was communicated to achieve the objects of the litigation; or had some connection or logical relation to the action.

Defendants asserted that the litigation privilege encompasses statements made to nonparties.  (Summerfield v. Randolph (2011) 210 Cal.App.4th 127, 136 (Summerfield.))  However, Defendants misconstrue the opinion in Summerfield, as well as, Defendants’ citation to Rutter Group’s practice guide.  The statute being referenced in the Summerfield opinion and the practice guide was the SLAPP statute (Code Civ. Proc. sec. 425.16) and not the Litigation Privilege.  Because the SLAPP statute is not at issue in this demurrer, the opinions reviewing the SLAPP statute are irrelevant. 

The demurrer to the first COA on the grounds of Litigation Privilege is OVERRULED.

            Defendants then argued that the first COA failed to allege sufficient facts to plead the falsity of the publication.  Defendant argued that the allegation of falsity is conclusory.    It is undisputed that Plaintiff expressly alleged that the communication was a “false assertion.”  (Compl. par. 21.)  The Court notes that Defendants did not cite any legal authority for their contention that specific fact pleading is required to allege the falsity element.  It is undisputable that truth is a defense to a defamation action.  However, at the pleading stage, Plaintiff is not required to plead around Defendants’ affirmative defenses.  Without any legal authority to support Defendants’ contention as to the element of falsity, the argument is not persuasive. 

            Defendants’ demurrer against the first COA as to the falsity element is OVERRULED.

The second COA alleged that Forouzandeh demanded via text message that Javadpour and Bolourchian (as well as others not a party to this action) return the vehicle purchased under Audrey Parker’s name.  (Compl. pars. 10 and 27; Exh. 3.)  Preliminarily, the Court noted that no COA titled “civil entrapment & frame-up” appears to exist. To the extent that some viable COA is pled, the Court reviewed the pleadings in the second COA. 

Defendants argued that the Litigation Privilege bars the instant COA.  The communication at issue is again a text message from Forouzandeh to Defendants demanding the return of a vehicle titled to non-party Audrey Parker.  (Compl. pars. 10 and 27, Exh. 3.)  Bolourchian is not identified as a “Restrained Person” in the TRO.  (Compl. Exh. 2; RJN Exh. B.)  The “Restrained Person” is Javadpour.  As was the defect in the first COA, the Litigation Privilege is inapplicable to communications sent to persons in no way connected with the proceeding.  Because Bolourchian is not a named restrained person and because there are no facts presented to show any other connection Bolourchian may have to the TRO action, the litigation privilege is inapplicable to Bolourchian’s claims.  Defendants submitted another RJN with the Reply which attached a February 27, 2023, Restraining Order After Hearing showing that Bolourchian was a restrained person.  However, the 2/27/23 Restraining Order is irrelevant because the facts supporting Plaintiffs’ claims occurred in October 2022. 

The litigation privilege argument against the second COA as to Bolourchian is OVERRULED.

As to claims by Javadpour, Defendants’ litigation privilege argument is seen to be inapplicable for similar reasons reviewed in the first COA.  Here, the allegations show that Defendants’ communication was to a party to the TRO action - Javadpour.  However, the communication is seen to be directly contradictory to the object of the TRO.  The Court ordered Javadpour to stay away from Aubrey Parker and her residence.  However, Defendants demanded that Javadpour deliver the vehicle to Mrs. Parker’s residence.  The alleged facts in the Complaint plainly show that the third element of Litigation Privilege is not shown.  Because the communication at issue in the second COA did not promote the object of the TRO, the Litigation Privilege argument is inapplicable. 

Defendants’ demurrer to the second COA grounded on the Litigation Privilege is OVERRULED. 

            Defendants then argued that the second COA failed to allege facts to show damages.  Defendants argued that there are no facts to show that Plaintiffs complied with the demand and violated the TRO.  Preliminarily, the TRO only ordered Javadpour to stay away from Mrs. Parker.  (Compl. Exh. 2, RJN, Exh. B.)  The parties presented no facts to show that Bolourchian was the subject of any TRO.  Without any allegations or facts pleading that Bolourchian was the subject of a TRO, there is insufficient grounds to plead that Bolourchian was “entrapped” or “framed” or duped into violating a TRO.  Without facts to plead the basis for the claim, Bolourchian also failed to plead sufficient facts as to damages.

            The demurrer to the second COA alleged by Bolourchian is SUSTAINED WITHOUT LEAVE TO AMEND.

As reviewed above, Javadpour was the “Restrained Person” identified in the TRO.  However, the allegations in the second COA fail to allege any facts to show that Javadpour was damaged.  Javadpour did not allege facts to show that she was violated the TRO.  As Javadpour’s opposition failed to present any facts to show that this pleading defect can be cured, no leave to amend is granted. 

The demurrer to the second COA alleged by Javadpour is SUSTAINED WITHOUT LEAVE TO AMEND.