Judge: Teresa A. Beaudet, Case: 23STCV10729, Date: 2025-01-28 Tentative Ruling

Case Number: 23STCV10729    Hearing Date: January 28, 2025    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On July 3, 2024, Plaintiff P.V.B.B. (“Plaintiff”) filed this action against Defendants Odilia N. Smith and Inti Immigration Services, Inc. The Complaint alleges one cause of action for violation of the Immigration Consultant Act.

The Complaint alleges, inter alia, that “Plaintiff consulted with Defendant Smith in connection with an ‘immigration matter’ as that term is defined in the ICA…Plaintiff consulted with Defendant Smith based on representations made by Defendants in their advertisements and store dress to the effect that they are competent to perform immigration legal services. Defendants are, in fact, not permitted to provide legal services, by law… Moreover, Defendants are not even registered or bonded as immigration consultants.” (Compl., ¶ 9.)

Plaintiff further alleges that “[d]uring the course of consulting with Defendant Smith, Defendant Smith represented to Plaintiff that Defendant Smith had special knowledge and skill in handling immigration matters and provided legal advice to Plaintiff. Defendant Smith specifically advised the Plaintiff that she was competent to prepare a motion to reopen a case after a deportation order was entered in abstentia as to Plaintiff. Defendant Smith prepared the motion to reopen without using any of the information and evidence available from Plaintiff and in general. The motion was denied. Following the denial of the motion, Defendant Smith advised that she could appeal the denial and continue to appeal the case to prevent Plaintiff from being deported. The preparation of motions and appeals in Immigration Court constitutes the unauthorized practice of federal immigration law.” (Compl., ¶ 9.) 

Odilia Smith and Inti Immigration Services, Inc. (jointly, “Defendants”) now demur to the Complaint. Plaintiff opposes.

Discussion

A.    Legal Standard

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. ((Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” ((C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. ((Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” ((Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A pleading is uncertain if it is ambiguous or unintelligible. (¿Code Civ. Proc., § 430.10, subd. (f)¿.) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2¿.) However, “¿[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¿.)¿¿ 

B.    Demurrer

Defendants first assert that “Plaintiff has not pleaded any facts showing that Defendant is an immigration consultant or engaged in the business of immigration consultant. Without such allegations, Defendant is not subject to The Act, and Plaintiff’s first cause of action fails.” (Demurrer at p. 5:15-17.) Defendants cite to Business and Professions Code section 22440, which provides that “[i]t is unlawful for any person, for compensation, other than persons authorized to practice law or authorized by federal law to represent persons before the Board of Immigration Appeals or the United States Citizenship and Immigration Services, to engage in the business or act in the capacity of an immigration consultant within this state except as provided by this chapter.”

Business and Professions Code section 22441, subdivision (a) provides that “[a] person engages in the business or acts in the capacity of an immigration consultant when that person gives nonlegal assistance or advice on an immigration matter. That assistance or advice includes, but is not limited to, the following: (1) Completing a form provided by a federal or state agency but not advising a person as to their answers on those forms. (2) Translating a person’s answers to questions posed in those forms. (3) Securing for a person supporting documents, such as birth certificates, which may be necessary to complete those forms. (4) Submitting completed forms on a person’s behalf and at their request to the United States Citizenship and Immigration Services. (5) Making referrals to persons who could undertake legal representation activities for a person in an immigration matter.” Business and Professions Code section 22441, subdivision (d) provides that “[e]very person engaged in the business or acting in the capacity of an immigration consultant shall only offer nonlegal assistance or advice in an immigration matter as defined in subdivision (a). Any act in violation of subdivision (a) is a violation of this chapter.”

In the first cause of action, Plaintiff alleges that “Defendants are engaged in the business of an immigration consultant as that is defined by the ICA. Defendants are not licensed attorneys and are not authorized to provide legal services.” (Compl., ¶ 14.) Defendants assert that this allegation is a legal conclusion and that “the facts simply do not establish that Defendants were engaged in the business of immigration consultants.” (Demurrer at p. 6:22-23.) Plaintiff does not appear to respond to this point in the opposition. The Court agrees that the allegation that “Defendants are engaged in the business of an immigration consultant as that is defined by the ICA” (Compl., ¶ 14) is conclusory. Defendants note that “[i]t is settled law that a pleading must allege facts and not conclusions…” ((Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531, 537.)

In light of the foregoing, the Court sustains Defendants’ demurrer to the Complaint, and the first cause of action alleged therein, with leave to amend.

The Court notes that Defendants also argue that “Plaintiff’s Complaint is uncertain because it uses a fictitious name for Plaintiff.” (Demurrer at p. 7:1-2.) Defendants assert that “[w]hen a Plaintiff elects to proceed under a fictitious name, the proper procedure is to file the complaint using the fictitious name, followed by a motion to proceed under the fictitious name.” (Demurrer at p. 7:3-5.) In support of this assertion, Defendants cite to Department of Fair Employment & Housing v. Superior Court (2022) 82 Cal.App.5th 105, 109-110, where the Court of Appeal noted that “[t]he names of all parties to a civil action must be included in the complaint…Because of the inherently sensitive nature of some proceedings, statutes specifically allow for keeping certain parties’ identities confidential.”

The Department of Fair Employment & Housing Court further noted that “[m]uch like closing the courtroom or sealing a court record, allowing a party to litigate anonymously impacts the First Amendment public access right. Before a party to a civil action can be permitted to use a pseudonym, the trial court must conduct a hearing and apply the overriding interest test: A party’s request for anonymity should be granted only if the court finds that an overriding interest will likely be prejudiced without use of a pseudonym, and that it is not feasible to protect the interest with less impact on the constitutional right of access…In deciding the issue the court must bear in mind the critical importance of the public’s right to access judicial proceedings. Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur only in the rarest of circumstances.” ((Id. at pp. 111-112 [internal quotations omitted].) The Court of Appeal further noted that “[p]rocedurally, because a hearing is required, a party who wants to proceed anonymously will file the initial complaint or petition conditionally under a pseudonym and then move for an order granting permission to proceed that way. If the request is granted, the initial pleading can remain. If pseudonym use is denied, the pleading must be amended to state the party’s true name.” (Id. at p. 111, fn. 1 [emphasis in original].)

Defendants contend that “[b]ecause Plaintiff has refused to file a motion to proceed under a fictitious name, and Defendants are unaware of the identity of Plaintiff, the Court must sustain this demurrer on the grounds that the aggrieved party is uncertain and ambiguous.” (Demurrer at p. 7:13-15.) But as set forth above, in Department of Fair Employment & Housing, the Court of Appeal noted that “a party who wants to proceed anonymously will file the initial complaint or petition conditionally under a pseudonym and then move for an order granting permission to proceed that way.” (Department of Fair Employment & Housing v. Superior Court, supra, 82 Cal.App.5th at p. 111, fn. 1 [emphasis in original].) As a Plaintiff may file a Complaint conditionally under a pseudonym, the Court does not see why the use of a pseudonym would render the Complaint subject to demurrer for uncertainty. However, as noted in Department of Fair Employment & Housing, Plaintiff must now “move for an order granting permission to proceed” with a pseudonym. (Department of Fair Employment & Housing v. Superior Court, supra, 82 Cal.App.5th at p. 111, fn. 1.)

Conclusion

Based on the foregoing, Defendants’ demurrer to the first cause of action of the Complaint is sustained, with leave to amend.

The Court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this Order. If no amended complaint is filed within 20 days, the Court orders Defendants to file and serve a proposed judgment of dismissal within 30 days of the date of this order. (¿Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 186 [“An order sustaining a demurrer without leave to amend is not a final judgment; a judgment of dismissal follows such an order as a matter of course.”]¿.)¿ 

Defendants are ordered to give notice of this Order.¿ 

DATED:  January 28, 2025                            ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court