Judge Stephen P. Pfahler, Case Number: 23CHCV00546, Date: 2023-08-31 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 23CHCV00546, Date: 2023-08-31 Tentative Ruling

Case Number: 23CHCV00546 Hearing Date: August 31, 2023 Dept: F49

Dept. F-49

Date: 8-31-23

Case # 23CHCV00546

Trial Date: Not Set

DEMURRER

MOVING PARTY: Defendant, Mark Process, pro per

RESPONDING PARTY: Plaintiff, The Las Canoas Company

RELIEF REQUESTED

Demurrer to the Complaint for Malicious Prosecution

SUMMARY OF ACTION

Plaintiff The Las Canoas Co. was somehow associated with prior contract work for the home of defendants Annette and Abraham Stuart Rubin (the Rubins) in Santa Barbara County. The contractor provided work ultimately led to litigation instituted by the Rubins. Defendant McCarrigle, Kenney & Zampielo, APC, is identified as the last of a succession of three prior law firms to represent the Rubins in the underlying litigation. Plaintiff was ultimately dismissed with prejudice “on the eve of trial.” (Other than identification of Plaintiff in paragraph one (1) of the complaint, the court finds no factual information or even name to Plaintiff.)

On February 27, 2023, Plaintiff filed a 73-paragraph complaint for Malicious Prosecution. On May 18, 2023, the clerk entered defaults against Abraham and Anette Rubin.

RULING: Overruled.

Defendant Mark Process, in pro per, brings the subject demurrer to the complaint for malicious prosecution on grounds of improperly naming Process in the subject action. More specifically, Process denies any “role” in the underlying Rubin litigation other than a “2 day deposition” as an “expert witness.” Process maintains an expert witness cannot be sued for presenting “factual evidence” in support of an action. Process also contends the complaint contains fabricated allegations, questions the extensive factual narration regarding the construction disputes, and denies any accusations of alleged factual misrepresentations in support of the action by the Rubins.

Plaintiff in opposition maintains the complaint properly articulates the “conspiracy” of Process and defendant law firm McCarrigle, Kenney & Zampielo, APC, in bringing an unsuccessful action on behalf of the Rubins. Plaintiff then proceeds to reiterate the elements of a malicious prosecution claim. Plaintiff also includes a statement for the standard regarding a motion to strike, and the right to seek punitive damages. Plaintiff alternatively moves for leave to amend.

The court electronic filing system shows no reply on file at the time of the tentative ruling publication cutofff.

On a preliminary note, the court assumes the only basis of jurisdiction with the court comes from the location of the McCarrigle, Kenney & Zampielo law firm given the property is located in Santa Barbara County, and no other parties apparently reside anywhere in Los Angeles County. On a second note, the court electronic filing system shows a motion to strike reserved and scheduled, but the system lacks any copy of a separately filed or even incorporated motion to strike. The court therefore only addresses the demurrer, and will not address the argument regarding the punitive damages claim in the opposition apparently raised in the non-filed motion to strike.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

The allegations against Process appear in the following paragraphs as follows:

“48. On information and belief, in June 2019, the DEFENDANTS solicited PROCESS, and PROCESS agreed to aid and abet them by making up facts that they would use as a basis to justify alleging causes of action against Plaintiff based on the fact that Slab Sensors had not been installed. On information and belief, PROCESS conspired with the DEFENDANTS to fabricate a phony “invoice” for eleven Slab Sensors, as well as a false and fraudulent story about allegedly delivering these 11 Slab Sensors to Plaintiff and “tasking” Plaintiff with installing them.

“49. Pursuant to and in furtherance of that plan and agreement, PROCESS proceeded to fabricate a phony “invoice” for eleven Slab Sensors, as well as a false and fraudulent story about allegedly delivering these 11 Slab Sensors to Plaintiff and “tasking” Plaintiff with installing them.

“70. When faced with Plaintiff’s motion for summary adjudication of each cause of action in the Prior Action, the defendants and each of them fabricated and filed a totally false and fraudulent declaration that purported to be signed by PROCESS (the Process Declaration). On information and belief, PROCESS agreed to put his name and scanned signature on the Process Declaration, and consented to it being filed, knowing it would perpetrate a fraud upon the Court. The Process Declaration was designed and intended by the defendants and each of them to and did in fact deceive the court in the Prior Action into finding a triable issue of fact existed concerning whether the Plans and Specs actually called for Slab Sensors when they absolutely did not. This was done deliberately because the DEFENDANTS had no evidence to support their causes of action against Plaintiff. The defendants and each of them resorted to inventing, fabricating and filing the Process Declaration in order to stave off summary judgment. This was a blatant and desperate fraud upon the Court, and was a desperate attempt to prevent what they knew was the inevitable malicious prosecution action that Plaintiff promised to file.”

The court appreciates the position of Process. Nevertheless, as provided in the standard, the court can only address the allegations in the complaint and remains unable to consider the factually extrinsic challenges to the veracity of said allegations. To the extent Process maintains the only participation arises from the provision of expert services, under California law, Process may not rely on the litigation privilege as a defense to a malicious prosecution action. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.) The out of state citation of authority in no way overrules California law on the subject matter.

The demurrer otherwise raises no challenge to the conspiracy claim and basis of liability. “Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510–511.) The conspiracy “must be activated by the commission of an actual tort.” (Id. at 511.) A conspiracy claim requires three elements: “(1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct.” (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581.)

“A party seeking to establish a civil conspiracy ‘must show that each member of the conspiracy acted in concert and came to a mutual understanding to accomplish a common and unlawful plan, and that one or more of them committed an overt act to further it. [Citation.] It is not enough that the [conspirators] knew of an intended wrongful act, they must agree—expressly or tacitly—to achieve it.’ (Citation omitted.) It must be recognized, however, that because of the very nature of a conspiracy, ‘its existence must often be inferentially and circumstantially derived from the character of the acts done, the relations of the parties and other facts and circumstances suggestive of concerted action.’ (Citation omitted.) While a complaint must contain more than a bare allegation the defendants conspired, a complaint is sufficient if it apprises the defendant of the ‘character and type of facts and circumstances upon which she was relying to establish the conspiracy.’ (Citations omitted.)” (Arei II Cases (2013) 216 Cal.App.4th 1004, 1022.)

The demurrer is therefore overruled. Process to answer the complaint within 10 days of this order.

Case Management Conference currently set for January 10, 2024. Defendant law firm McCarrigle, Kenney & Zampielo, APC, remains unserved. If the law firm remains unserved and/or the court dismisses the party, the court reserves the right to set an OSC re: Transfer of Venue or Jurisdiction.

Process to give notice to all appearing parties.