Judge: Teresa A. Beaudet, Case: BC565480, Date: 2023-05-16 Tentative Ruling

Case Number: BC565480    Hearing Date: May 16, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Mostafavi Law Group, APC filed this action on December 2, 2014 against Defendants Larry Rabineau, a Professional Corporation and Larry Rabineau.   

Plaintiffs Mostafavi Law Group, APC and Amir Mostafavi (jointly, “Plaintiffs”) filed the operative Second Amended Complaint (“SAC”) on November 6, 2015. The SAC asserts causes of action for (1) inducing breach of contract, (2) interference with contractual relations, (3) intentional interference with prospective economic relations, (4) negligent interference with prospective economic relations, and (5) defamation per se.[1] 

On May 4, 2018, Defendants Law Offices of Larry Rabineau, a Professional Corporation and Larry Rabineau (jointly, “Defendants”) filed a Third Amended Answer to Complaint.

Plaintiffs now move pursuant to Code of Civil Procedure section 438 for judgment on the pleadings with respect to the eleventh affirmative defense of Defendants’ Third Amended Answer. Defendants oppose.

Discussion

As an initial matter, the Court notes that Plaintiffs’ notice of motion indicates that Plaintiffs move, “pursuant to California Code of Civil Procedure, section 438, for a judgment on the pleading with respect to the Eleventh Affirmative Defense of Defendants Larry Rabineau and Law Offices of Larry Rabineau’s…Third Amended Answer in this action.” (Notice of Mot. at   p. 2:4-6.) The caption page of the motion also indicates that Plaintiffs’ motion is for judgment on the pleadings “to strike the affirmative defenses of the conditional privilege of the common interest in the third amended answer to the Complaint.”

However, the Court notes that Plaintiffs’ motion also states that “[t]he court has the authority to permit the filing of this motion in limine at this time and good cause exists for this request.” (Mot. at p. 6:7-8.) To the extent Plaintiffs are filing a motion in limine, the Court does not find that Plaintiffs have provided proper notice of such a motion. The Court notes that “the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.” (Code Civ. Proc., § 1010; see also Cal. Rules of Court, Rule 3.1110, subd. (a), “[a] notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.”)

Based on the foregoing, the Court construes the instant motion as a motion for judgment on the pleadings.

A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. Except as provided by ¿Code of Civil Procedure section 438¿, the rules governing demurrers apply.¿

 If the moving party is a plaintiff, a motion for judgment on the pleadings may be made on the grounds that “the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., § 438, subd. (c)(1)(A).) The motion may be made as to “[t]he entire answer or one or more of the affirmative defenses set forth in the answer.” (Code Civ. Proc., § 438, subd. (c)(2)(B).) A motion for judgment on the pleadings “¿tests the pleadings alone and not the¿evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.¿”¿(¿SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [regarding demurrers]¿.)

“A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: (a) The answer does not state facts sufficient to constitute a defense. (b) The answer is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible. (c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.” (Code Civ. Proc., § 430.20.) Every affirmative defense “shall be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.” (Code Civ. Proc., § 431.30, subd. (g).)

“Demurring to an answer is a commonly recognized practice. Unlike the usual general demurrer to a complaint the inquiry is not into the statement of a cause of action. Instead it is whether the answer raises a defense to the plaintiff’s stated cause of action. A general demurrer raises the objection that the answer does not state facts sufficient to constitute a defense . . . .” (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879-880 [internal citations and quotations omitted; emphasis in original].) As a general rule, defendants must allege facts in support of affirmative defenses. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384 [affirmative defenses “proffered in the form of terse legal conclusions, rather than as facts ‘averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint’” are not well pled and cannot survive a demurrer].)

            Plaintiffs’ motion for judgment on the pleadings concerns the eleventh affirmative defense of Defendants’ Third Amended Answer to Complaint. The eleventh affirmative defense alleges that “[a]s an eleventh, separate and affirmative defense to the Complaint and the whole thereof, this answering defendant alleges that Plaintiffs cannot recover damages from Defendants even if the alleged statement(s) made by Defendants to Nena McMillian and/or any third party were false because the Qualified Privilege pursuant to California Civil Code §47(c) applies. The statement(s), if any, were made without malice, to person(s) interested therein by Defendants, who were also interested. Or, the statement(s), if any, were made without malice by Defendants, who stand in such a relation to the person(s) interested as to afford a reasonable ground for supposing the motive for the communication to be innocent. Or, the statement(s), if any, were made without malice by Defendants at the request of the person(s) interested and/or any other hearer of the statement(s).” (Defendants’ Third Amended Answer to Complaint, ¶ 13.)

            The eleventh affirmative defense further alleges that “Defendant, a duly licensed attorney referred his personal injury client, Nena McMillian to Plaintiff, Amir Mostafavi, also an attorney, for an employment dispute with her employer. As the referring attorney, Defendant knew case law existed that held he, as the referring attorney, owed a duty to McMillian and had an interest in the outcome of the employment dispute. After the referral, and after learning that Plaintiff refused to pay him a referral fee, and after learning that Plaintiff only recently became a licensed attorney, Defendant had serious concerns about Plaintiffs representation of McMillian in the employment case. He expressed to McMillian he had concerns about Mostafavi. McMillian expressed an interest to Defendant to learn more about Mostafavi’s concerns so Defendant

met with McMillian in person and explained to McMillian that he had a trust issue with Mostafavi based on a conversation he had with Mostafavi and did not feel confident about his representation of McMillian based on the fact that he had just recently learned Mostafavi had

only been practicing a short period of time.”  (Defendants’ Third Amended Answer to Complaint, ¶ 13.)

            In the instant motion, Plaintiffs assert that “[i]n response to Plaintiffs’ Requests for Admissions, Defendants DENIED the publication of defamatory statements…The denial of publications destroys the conditional privilege of common interest…The plaintiffs request the Court to strike the 11th affirmative defense of conditional privilege of common interest from the third amended Answer.” (Mot. at p. 3:5-9, emphasis in original.) In support of this assertion, Plaintiffs cite to Defendants’ responses to discovery propounded by Mostafavi Law Group, APC in this matter.

            As a threshold matter, the grounds for a motion for judgment on the pleadings under Code of Civil Procedure section 438 “shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 438, subd. (d).) As set forth above, Plaintiffs rely on matters outside the face of the challenged pleading in support of the instant motion, specifically, Defendants’ discovery responses. Moreover, Plaintiffs have not filed any request for judicial notice in support of the instant motion. Plaintiffs do not make any argument in the motion that the Court should take judicial notice of any matter. 

            Accordingly, the Court denies Plaintiffs’ motion.

            Lastly, in the opposition, Defendants assert that the instant motion is frivolous and seek sanctions under Code of Civil Procedure section 128.5. Code of Civil Procedure section 128.5, subdivision (a) provides that “[a] trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.”

Plaintiffs assert that Defendants’ request for sanctions is procedurally defective.

Indeed, a motion for sanctions under Code of Civil Procedure section 128.5 “shall be made separately from other motions or requests and shall describe the specific alleged action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc., § 128.5, subd. (f)(1)(A).) Defendants did not file a separate motion for sanctions pursuant to Code of Civil Procedure section 128.5. In addition, Plaintiffs assert that Defendants failed to     “provide the 21-day safe harbor notice as required by sections 128.5…” (Reply at p. 7:27-28.) Pursuant to Code of Civil Procedure section 128.5, subdivision (f)(1)(B), “[i]f the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.” As discussed, Defendants did not file a separate motion for sanctions under Code ofCivil Procedure section 128.5.

Conclusion

Based on the foregoing, Plaintiffs’ motion for judgment on the pleadings is denied. Defendants’ request for sanctions is denied.  

Plaintiffs are ordered to give notice of this order.

DATED:  May 16, 2023                                 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court