Judge Stephen Morgan, Case 22AVCV00843 2023-04-25 Tentative Ruling

This appears to be a racketeering (“RICO”) action. Plaintiffs Frank Cockrell (“Frank”)[1], John Downy (“Downy”), Gary Loucks (“Loucks”), Lance Cooley (“Cooley”), Harry Davis (“Davis”), Tabetha Cockrell (“Tabetha”), and Willard Langham (“Langham” and collectively “Plaintiffs”) allege a multitude of allegations pertaining to the actions taken by Defendants Victor Martinez & Associates, LLC (“Victor Martinez & Associates”); Victor Martinez (“Martinez”), individually; Hoge Family Bypass Trust (“Hoge Family Trust”); Kerri Hoge Anderson (“Anderson”); Daniel Hoge (“Daniel”)[2]; Brandon Hoge (“Brandon”); Mario Rivera Esparza (“Mario”)[3]; Stephanie Rivera Esparza (“Stephanie”); and Michael Esparza (“Michael”) related to the maintenance of a senior mobile home community.

On October 28, 2022, Plaintiffs filed their Complaint alleging five causes of action for: RICO; (2) Intentional Infliction of Emotional Distress (“IIED”); (3) Creating Rules that are Intended to Remove Older Mobile Homes so They Can Raise the Rents to Increase Values for Owners of the Californian Mobile Home Senior Park; (4) Grand Theft under Cal. Pen. Code §§ 186 and 486/Violation of Constitutional Rights to Life, Liberty and Pursuit of Happiness/Insider Unfair Trade Advantage; and (5) Violation of the Unruh Civil Rights Act and Federal Fair Housing Act by Moving Children into a Senior Housing Facility.

On March 17, 2023, Victor Martinez & Associates, Inc.; Victor Martinez, individually; Mario Rivera; Stephanie Rivera Esparza; and Michael Esparza (“Defendants”) filed this Demurrer.

On April 10, 2023, Plaintiffs filed a document titled “Response to Demurrer.” The Court believes this is Plaintiffs’ Opposition.

No Reply has been filed. “. . .[A]ll reply papers [shall be filed with the court and a copy served on each party] at least five court days before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) “Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section.” (Ibid.) The hearing is set for April 25, 2023. Accordingly, a Reply was due by April 18, 2023. Should a Reply be filed, it is now untimely.

On April 20, 2023, Defendants filed a Notice of Non-Opposition, indicating that defense counsel, Sam M. Swinford (“Swinford”), did not receive an Opposition. Specifically, received an email on April 13, 2023 that appeared to be a forwarded “failed email” with the subject line “electronic proof of service Plaintiff's response to demurrer park litigation.” Swinford expressed that, because he believed the email to be related to this action, he emailed the sender of the email, but did not receive a response. Swinford expresses that it appears Plaintiffs have filed other documents on April 14, 2023, but those documents have not been served.

The Court notes that the following defendants have neither been served nor responded: Hoge Family Bypass Trust, Kerri Hoge Anderson, Daniel Hoge, and Brandon Hoge.

Standard for Demurrer – A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v.¿Mirda¿(2007) 147 Cal.App.4th 740, 747.) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal. App. 4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.¿ (Cal. Code Civ. Proc. § 430.30(a).)¿A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ (SKF Farms v. Superior Court¿(1984) 153 Cal.App.3d 902, 905.)¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.¿¿(Ibid.)¿¿The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.¿ (Hahn,¿supra,¿147 Cal.App.4th at 747.)¿¿¿¿¿¿¿

A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿ Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer.¿¿(Del E. Webb Corp. v. Structural Materials Co.¿(1981) 123 Cal.App.3d 593, 604.)¿ Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.¿¿(Vance v. Villa Park¿Mobilehome¿Estates¿(1995) 36 Cal.App.4th 698, 709.)¿ A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿¿¿¿¿¿¿¿

Pursuant to¿Code Civ. Proc.¿§430.10(e), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action.¿ It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment.¿¿(Schifando¿v. City of Los Angeles¿(2003) 31 Cal.4th 1074, 1082,¿as modified (Dec. 23, 2003).)¿¿¿¿¿¿

Application – The Court first addresses what it believes to be issues within the Complaint.

First, Plaintiffs have designated further plaintiffs under the fictitious names of “Does 50 thru 140.” Cal. Code Civ. Proc. § 474 defines fictitious names:

When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly; provided, that no default or default judgment shall be entered against a defendant so designated, unless it appears that the copy of the summons or other process, or, if there be no summons or process, the copy of the first pleading or notice served upon such defendant bore on the face thereof a notice stating in substance: “To the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the fictitious name of (designating it).” The certificate or affidavit of service must state the fictitious name under which such defendant was served and the fact that notice of identity was given by endorsement upon the document served as required by this section. The foregoing requirements for entry of a default or default judgment shall be applicable only as to fictitious names designated pursuant to this section and not in the event the plaintiff has sued the defendant by an erroneous name and shall not be applicable to entry of a default or default judgment based upon service, in the manner otherwise provided by law, of an amended pleading, process or notice designating defendant by his true name.

Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.

Regarding fictitious names for plaintiffs in civil actions, California courts have allowed plaintiffs to proceed with a pseudonym in a variety of cases. California statutory law specifically allows a party to bring a lawsuit using a pseudonym in cases: (1) involving juveniles (Cal. Rules of Court, Rule 8.401); (2) health care patients and staff (Cal. Civ. Code § 3427.3); (3) victims who were deliberately infected with HIV (Cal. Health & Saf. Code § 120291); (4) circumstances where nondisclosure of identity protects an individual from stigmatization (See Hooper v. Deukmejian (1981) 122 Cal.App.3d 987 [a person convicted of the lesser included offense of maintaining a place for the use or sale of a narcotic (stipulated to be marijuana) brought suit as a “John Doe” to determine whether he was entitled to the benefits and protections of the marijuana reform legislation]; Doe v. Saenz (2006) 140 Cal.App.4th 960 [a convicted robber, having obtained a certificate of rehabilitation, filed a civil suit as “Jane Doe 1” to challenge a state agency's refusal to allow her to work as a social worker with a licensed community care facility]; Cherrigan v. City etc. of San Francisco (1968) 262 Cal.App.2d 643 [allowing woman to prosecute wrongful death lawsuit in her former surname rather than her current “true” surname to avoid inadmissible inferences that she had remarried]); (5) circumstances involving the World Wide Web (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531 [former Boy Scouts sued under pseudonyms based on allegations that city police officer sexually assaulted them while they were teenagers]; Johnson v. Superior Court (2000) 80 Cal.App.4th 1050 [parents entitled to depose sperm donor with family history of kidney disease, but donor's name protected from disclosure to outsiders through an appropriate order “which maintains the confidentiality of John Doe's identity … .”]); and “in special circumstances when the party's need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity” (See Does I thru XXIII v. Advanced Textile Corp. (9th Cir. 2000) 214 F.3d 1058). The Court notes that Doe designations may be appropriate even where sealing orders are not. (See H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879.

Accordingly, the Court exercises its discretion and strike the Doe designations as “part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court” under the authority granted to it in Cal. Code Civ. Proc. 436(b).

Next, the Court is concerned as it appears that while all named plaintiffs are proceeding in pro per, only Cockrell is drafting the Complaint. It appears that Cockrell is representing the interests of the other six named plaintiffs. (See Complaint [focuses on Cockrell’s actions then discusses the issues other Plaintiffs have and states that “many or most residents are not affluent or knowledgeable about the laws [and] bullies in this world”].) Further supporting the Court’s interpretation of the Complaint is that the header of the Complaint lists only Cockrell and Downey and includes only Cockrell’s address for mailing. (Id. at p. 1.) The Court also takes notice of the Opposition though it has no Proof of Service, addressed infra. The Opposition, though signed by all Plaintiffs, is written only by Cockrell as evidenced by the header which only lists Cockrell and Cockrell’s own declaration.

No person shall practice law in California unless the person is an active licensee of the State Bar.

Drake v. Superior Court (1994) 21 Cal.App.4th 1826, 1830-31 describes the history behind the passage of the State Bar Act which regulates the unauthorized practice of law:

Since the passage of the State Bar Act in 1927, it has been well settled that persons may represent their own interests in legal proceedings but may not " ' "practice law [for another] in this State unless [they are] active member[s] of the state bar." ' " ( J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 965 [22 Cal.Rptr.2d 527], quoting Abar v. Rogers (1981) 124 Cal.App.3d 862, 865 [177 Cal.Rptr. 655], and Bus. & Prof. Code, § 6125.) Prohibiting unlicensed practice is within the "police power [of the state] and is designed to assure the competency of those performing [legal] services." ( J.W. v. Superior Court, supra, 17 Cal.App.4th at p. 969.) In line with that prohibition, courts have held, among other examples, that a nonattorney mother cannot represent her minor son in propria persona in a paternity action (ibid.), a juvenile cannot have his nonlawyer father assist in his defense or represent him ( In re Gordon J. (1980) 108 Cal.App.3d 907, 914 [166 Cal.Rptr. 809, 11 A.L.R.4th 711]), and a nonlawyer representing his mother's estate as conservator and executor cannot appear in propria persona on behalf of the estate ( City of Downey v. Johnson (1968) 263 Cal.App.2d 775, 779 [69 Cal.Rptr. 830]).

Plaintiffs proceeding in pro per may file their own complaints to represent their individual interests, but cannot rely on Cockrell to represent them as Cockrell may only represent his own interest. A continuation of representation of other individuals by Cockrell would sanction criminal conduct. (See Cal. Bus. & Prof. Code § 6126.)

Accordingly, the Court strikes Downy, Loucks, Cooley, Davis, Tabetha, and Langham from the Complaint as “part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court” under the authority granted to it in Cal. Code Civ. Proc. 436(b).

Defendants argue that the demurrer should be sustained on the basis of the uncertain, ambiguous, or intelligible pleadings of Plaintiff as to a variety of factual and legal allegations as to each claim presented in the Complaint.

(a) In case of service by mail, the notice or other paper shall be deposited in a post office, mailbox, subpost office, substation, or mail chute, or other like facility regularly maintained by the United States Postal Service, in a sealed envelope, with postage paid, addressed to the person on whom it is to be served, at the office address as last given by that person on any document filed in the cause and served on the party making service by mail; otherwise at that party’s place of residence. Service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California, 10 calendar days if either the place of mailing or the place of address is outside the State of California but within the United States, 12 calendar days if the place of address is the Secretary of State’s address confidentiality program (Chapter 3.1 (commencing with Section 6205) of Division 7 of Title 1 of the Government Code), and 20 calendar days if either the place of mailing or the place of address is outside the United States, but the extension shall not apply to extend the time for filing notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 663a, or notice of appeal. This extension applies in the absence of a specific exception provided for by this section or other statute or rule of court.

(c) In case of service by Express Mail, the notice or other paper shall be deposited in a post office, mailbox, subpost office, substation, or mail chute, or other like facility regularly maintained by the United States Postal Service for receipt of Express Mail, in a sealed envelope, with Express Mail postage paid, addressed to the person on whom it is to be served, at the office address as last given by that person on any document filed in the cause and served on the party making service by Express Mail; otherwise at that party’s place of residence. In case of service by another method of delivery providing for overnight delivery, the notice or other paper shall be deposited in a box or other facility regularly maintained by the express service carrier, or delivered to an authorized courier or driver authorized by the express service carrier to receive documents, in an envelope or package designated by the express service carrier with delivery fees paid or provided for, addressed to the person on whom it is to be served, at the office address as last given by that person on any document filed in the cause and served on the party making service; otherwise at that party’s place of residence. Service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document served by Express Mail or other method of delivery providing for overnight delivery shall be extended by two court days. The extension shall not apply to extend the time for filing notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 663a, or notice of appeal. This extension applies in the absence of a specific exception provided for by this section or other statute or rule of court.

(e) Service by facsimile transmission shall be permitted only where the parties agree and a written confirmation of that agreement is made. The Judicial Council may adopt rules implementing the service of documents by facsimile transmission and may provide a form for the confirmation of the agreement required by this subdivision. In case of service by facsimile transmission, the notice or other paper shall be transmitted to a facsimile machine maintained by the person on whom it is served at the facsimile machine telephone number as last given by that person on any document which they have filed in the cause and served on the party making the service. Service is complete at the time of transmission, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended, after service by facsimile transmission, by two court days, but the extension shall not apply to extend the time for filing notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 663a, or notice of appeal. This extension applies in the absence of a specific exception provided for by this section or other statute or rule of court.

(g) Electronic service shall be permitted pursuant to Section 1010.6 and the rules on electronic service in the California Rules of Court.

(1) An affidavit setting forth the exact title of the document served and filed in the cause, showing the name and residence or business address of the person making the service, showing that he or she is a resident of or employed in the county where the mailing occurs, that he or she is over the age of 18 years and not a party to the cause, and showing the date and place of deposit in the mail, the name and address of the person served as shown on the envelope, and also showing that the envelope was sealed and deposited in the mail with the postage thereon fully prepaid.

(2) A certificate setting forth the exact title of the document served and filed in the cause, showing the name and business address of the person making the service, showing that he or she is an active member of the State Bar of California and is not a party to the cause, and showing the date and place of deposit in the mail, the name and address of the person served as shown on the envelope, and also showing that the envelope was sealed and deposited in the mail with the postage thereon fully prepaid.

(3) An affidavit setting forth the exact title of the document served and filed in the cause, showing (A) the name and residence or business address of the person making the service, (B) that he or she is a resident of, or employed in, the county where the mailing occurs, (C) that he or she is over the age of 18 years and not a party to the cause, (D) that he or she is readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service, (E) that the correspondence would be deposited with the United States Postal Service that same day in the ordinary course of business, (F) the name and address of the person served as shown on the envelope, and the date and place of business where the correspondence was placed for deposit in the United States Postal Service, and (G) that the envelope was sealed and placed for collection and mailing on that date following ordinary business practices. Service made pursuant to this paragraph, upon motion of a party served, shall be presumed invalid if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing contained in the affidavit.

(4) In case of service by the clerk of a court of record, a certificate by that clerk setting forth the exact title of the document served and filed in the cause, showing the name of the clerk and the name of the court of which he or she is the clerk, and that he or she is not a party to the cause, and showing the date and place of deposit in the mail, the name and address of the person served as shown on the envelope, and also showing that the envelope was sealed and deposited in the mail with the postage thereon fully prepaid. This form of proof is sufficient for service of process in which the clerk or deputy clerk signing the certificate places the document for collection and mailing on the date shown thereon, so as to cause it to be mailed in an envelope so sealed and so addressed on that date following standard court practices. Service made pursuant to this paragraph, upon motion of a party served and a finding of good cause by the court, shall be deemed to have occurred on the date of postage cancellation or postage meter imprint as shown on the envelope if that date is more than one day after the date of deposit for mailing contained in the certificate.

“In De Luca v. Board of Supervisors (1955) 134 Cal. App. 2d 606, 609 [286 P.2d 395], the court stated that the ‘general rule is that one who has been notified to attend a certain proceeding and does do so, cannot be heard to complain of alleged insufficiency of the notice; it has in such instance served its purpose. This rule applies to one who appears in a lawsuit after defective service of process upon him [citation], to one who responds to a notice of motion without adequate notice [citation].’ ” (Carlton v. Quint (2000) 77 Cal. App. 4th 690, 697.)

Defendants have not filed a reply. The defect in service as to Cockrell’s Opposition has not been waived. As such, the Court disregards Cockrell’s Opposition. The Court notes that, had it taken Cockrell’s Opposition into consideration, the opposing papers do not address the uncertainty argument.

Pursuant to Cal. Code Civ. Proc. § 430.10(f), “uncertainty” is a proper demurrer ground where the pleading is ambiguous and unintelligible. Demurrers for uncertainty will only be sustained where the complaint is so vague that the defendant cannot reasonably respond—i.e., determine what issues must be admitted or denied or what counts or claims are directed against him or her. (Khoury v. Maly’s Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

A special demurrer should not be sustained when the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet. (Lord v. Garland (1946) 27 Cal.2d 840, 853.) Such a demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. (People v. Lim (1941) 18 Cal.2d 872, 882.) A demurrer which attacks an entire pleading should be overruled if one of the counts therein is not vulnerable to the objection. (Lord, supra, 27 Cal.2d at 850.) The sole issue on a demurrer for ambiguity is whether “the allegations are sufficiently clear to apprise the defendant of the issues that must be met, even if the allegations of the complaint may not be as clear and as detailed as might be desired.” (Merlino v. West Coast Macaroni Mfg. Co. (1949) 90 Cal. App. 2d 106, 108.)

Here, the Complaint mixes criminal and civil law as well as federal and state law. The Complaint is unclear as to whether Cockrell has a private right of action to bring the alleged breaches of Cal. Pen. Code statutes. This applies to Cockrell’s Third Cause of action, the basis seeming to be a violation of a city ordinance which constitutes a misdemeanor under Cal. Gov. Code § 36900, and Cockrell’s Fourth Cause of Action. Regarding all causes of action, the Complaint lacks coherence as the individual rights of each Plaintiff are blended and various allegations are made. It is also unclear whether each cause of action pertains to all or some named defendants. The causes of actions also include ad hominem attacks as to certain defendants, rather than laying out actionable allegations. As pled, the Complaint would require Defendants to determine which claims are being asserted against it and which alleged actions not only apply to Defendants, but also comprise each claim.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy¿(1976), 18 Cal.3d 335, 348.) While under California law leave to amend is liberally granted, “leave to amend should not be granted where, in all probability, amendment would be futile.” (Vaillette v. Fireman's Fund Ins. Co. (1993), 18 Cal. App. 4th 680, 685).¿ “A trial court does not abuse its discretion when it sustains a demurrer without¿leave to amend¿if either (a) the facts and the nature of the claims are clear and no liability exists, or (b) it is probable from the nature of the defects and previous unsuccessful attempts to plead that the plaintiff cannot state a claim.” (Cantu v. Resolution Trust Corp.¿(1992)¿4 Cal.App.4th 857, 889.)

Here, the deficiencies in the Complaint may be rectified by an amendment which clarifies the causes of action against defendants and the allegations that make up each cause of action.

Defendants Victor Martinez & Associates, Inc.; Victor Martinez, individually; Mario Rivera; Stephanie Rivera Esparza; and Michael Esparza’s Demurrer is SUSTAINED with leave to amend.

[1] Plaintiffs Frank Cockrell and Tabetha Cockrell share the same surname. As such, the Court address each by their first name for the purpose of clarity. No disrespect is meant.

[2] Defendants Daniel Hoge and Brandon Hoge share the same surname. As such, the Court address each by their first name for the purpose of clarity. No disrespect is meant.

[3]Defendants Mario Rivera Esparza, Stephanie Rivera Esparza, and Michael Esparza share the same surname. As such, the Court address each by their first name for the purpose of clarity. No disrespect is meant.