Judge: Thomas D. Long, Case: 22STCV13626, Date: 2023-02-07 Tentative Ruling

Case Number: 22STCV13626    Hearing Date: February 7, 2023    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On July 25, 2022, Plaintiff Immigrant Rights Defense Council, LLC filed a first amended complaint (“FAC”) against Defendant Carlos A. Lainez for violation of the Immigration Consultant Act (“ICA”).

 On October 26, 2022, Defendant filed a demurrer to the FAC.

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, accepting the alleged facts as true.  (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)  A special demurrer for uncertainty under Code of Civil Procedure section 430.10, subdivision (f) is disfavored and will only be sustained where the pleading is so bad that defendant or plaintiff cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.  (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

The FAC alleges that Defendant is “in the business of acting as [an] immigration consultant[].”  (FAC ¶ 7; see FAC ¶ 12.)  It then sets forth the requirements of the ICA.  (FAC ¶¶ 8-9.)  In the sole cause of action, the FAC alleges that Defendant engaged in certain conduct that violates the ICA.  (FAC ¶¶ 13-14.)  However, this is nothing more than a recitation of the possible violations, with no supporting facts showing how Plaintiff allegedly violated the ICA.  “[F]acts in support of each of the requirements of a statute upon which a cause of action is based must be specifically pled.”  (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604; see also  Hawkins v. TACA Internat. Airlines, S.A. (2014) 223 Cal.App.4th 466, 478 [“[S]imply parroting the language of [a statute] in the complaint is insufficient to state a cause of action under the statute.”].)

Plaintiff argues, “When a ‘special statute’ provides for injunctive relief upon its violation, the plaintiff needs only to show that the requisite violation occurred in order to be granted the injunction.”  (Opposition at p. 6.)  However, Plaintiff’s cited authority involved an appeal following summary judgment, affirming a determination that there was no illegal, unfair, or fraudulent conduct that warranted an award of injunctive relief.  (See Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965.)  It does not say anything about the pleading stage in an action for injunctive relief and does not authorize a plaintiff to avoid pleading facts.

Plaintiff argues that “to state a cause of action under [the ICA], a party must plead the following: 1) that the defendant has violated some provision(s) of the ICA; and, 2) that the plaintiff is seeking an injunction.”  (Opposition at p. 7.)  Plaintiff cites Business and Professions Code section 22446.5, subdivision (b), which provides only that “[a]ny other party who, upon information and belief, claims a violation of this chapter has been committed by an immigration consultant may bring a civil action for injunctive relief on behalf of the general public and, upon prevailing, shall recover reasonable attorneys’ fees and costs.”  It does not say anything about the pleading standards for such an action.

Plaintiff also argues that Paragraphs 13 and 14 of the FAC set forth the ultimate facts for its cause of action.  (Opposition at p. 7.)  The FAC contains no facts regarding Defendant’s actual conduct, and these paragraphs and subsections merely restate the law and statutorily prohibited conduct.

In Paragraph 13, Plaintiff alleges that Defendant was “[n]ot practicing in conformity with the ICA.”  (FAC ¶ 13(a).)  This is a general contention restating the overall cause of action for Violation of the ICA.  Defendant “[a]dvis[ed] clients how to answer on immigration forms  (FAC ¶ 13(b); cf. Bus. & Prof. Code, § 22441, subd. (a)(1)); “[held] out as an attorney to the public” and “[p]rovid[ed] legal advice” (FAC ¶¶ 13(c)-(d); cf. Bus. & Prof. Code, §§ 22440, 22441); “[f]ail[ed] to submit a background check to the Secretary of State” (FAC ¶ 13(e); cf. Bus. & Prof. Code, § 22441.1, subd. (a)); “[f]ail[ed] to provide a written contract meeting the requirements of the ICA” (FAC ¶ 13(f); cf. Bus. & Prof. Code, § 22442); “[f]ail[ed] to provide receipts and accountings in conformity with the ICA” (FAC ¶ 13(g); cf. Bus. & Prof. Code, § 22442.1); “[f]ail[ed] to conspicuously display the notices required under the ICA,” “[f]ail[ed] to provide the written disclosures required under the ICA,” and “[f]ail[ed] to conspicuously state in advertisements that Defendants are not attorneys” (FAC ¶¶ 13(h)-(j); cf. Bus. & Prof. Code, § 22442.2); “[t]ranslat[ed] from English to another language the words proscribed by the ICA, including, without limitation, the words ‘notary,’ ‘licensed,’ and ‘attorney’” (FAC ¶ 13(k); cf. Bus. & Prof. Code, § 22442.3); “[f]ail[ed] to submit to the Department of Justice fingerprint images for the purposes of a background check” (FAC ¶ 13(l); cf. Bus. & Prof. Code, § 22442.4); “[f]ail[ed] to maintain a client trust account as required under the ICA” (FAC ¶ 13(m); cf. Bus. & Prof. Code, § 22442.5); “[d]emand[ed] advance payment for certain services as proscribed by the ICA” (FAC ¶ 13(n); cf. Bus. & Prof. Code, § 22442.6); “[f]ail[ed] to maintain a bond of $100,000” and “[a]dvertis[ed] as an immigration consultant without maintaining the abovementioned bond” (FAC ¶¶ 13(o)-(p); cf. Bus. & Prof. Code, § 22443.1); “[made] false and misleading statements to a client while providing services to the client” (FAC ¶ 13(q); cf. Bus. & Prof. Code, § 22444, subd. (a)); “[made] oral guarantees and promises to a client, and/or written guarantees and promises not based in any supportable fact” (FAC ¶ 13(r); cf. Bus. & Prof. Code, § 22444, subd. (b)); and “[c]harg[ed] a fee for referrals” (FAC ¶ 13(s); cf. Bus. & Prof. Code, § 22444, subd. (d)).

Paragraph 14 rephrases some of the same allegations, still without facts: “Defendants have been operating an unlicensed law firm for decades wherein Defendants provide legal immigration services . . . all of which services necessarily require the provision of legal advice to complete and constitute the unauthorized practice of law by Defendants”; “Defendants employ immigration consultants who have not been bonded throughout the time they have worked for Defendants”; and “Defendants’ advertisements do not include required statements that would tend to alleviate any confusion about whether the Defendants are attorneys.”  (FAC ¶ 14.)  This is an alternative way of paraphrasing some of the potential statutory violations recited in Paragraph 13.

Plaintiff asserts that it “has successfully civilly prosecuted hundreds of violating immigration consultants,” and “[i]n each of those actions, Plaintiff has used a similar form complaint for purposes of initiating its actions.”  (Opposition at pp. 4-5.)  This highlights the form nature of the complaint and its lack of facts relating to this Defendant.

The demurrer is SUSTAINED with 20 days’ leave to amend.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

         Dated this 7th day of February 2023