Case Name: Corinna Reyes, et al. v. Kim Kruger, et al.
Case No.:? 16CV293460
This action arises from a prior landlord/tenant lawsuit.? Currently before the Court is the demurrer by Defendant Alex Alonzo (?Defendant?) to the Complaint filed by Self-Represented Litigants,? Plaintiffs Corinna Reyes and Golden State Care Collective, Inc. (?Plaintiffs?)
As an initial matter the Court notes the following.? First, Defendant appears to have failed to comply with Code of Civil Procedure (?CCP?) ?430.41, effective on January 1, 2016, as the Demurrer filed on May 13, 2016 is not accompanied by the now required declaration regarding the parties? efforts to meet and confer on the issues raised.? The absence of such a declaration is not noted in Plaintiffs? Opposition.? The Court will overlook?in this instance only?the parties? presumed failure to meet and confer.? The parties are directed to comply with applicable law in the future.? Second, ?when a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys.? Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.?? (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267, internal citations omitted.)? Plaintiffs? opposition, filed May 27, 2016, was due by May 26, 2016, nine court days before the hearing date.? The Court will exercise its discretion to consider the late-filed opposition.? Third, as Plaintiffs? acknowledge in the opposition, ?it is well-established in California that a corporation cannot represent itself in a court of record either in propria persona or through an officer or agent who is not an attorney.? (Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101, citing among others Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724.)? Unless and until Plaintiff Golden State Care Collective, Inc. acquires counsel it may not proceed in this matter.? Only Plaintiff Reyes may proceed while representing herself, and she cannot represent the corporation.
Requests for Judicial Notice
Defendant?s request for judicial notice is GRANTED in part and DENIED in part.? Defendant?s request for the Court to take notice of a file endorsed copy of the Complaint in the prior unlawful detainer action, case no. 113CV253086 (exhibit 1 to the request), the October 18, 2013 Judgment of the trial court (Hon. Woodhouse) in favor of the Plaintiff in the unlawful detainer action (exhibit 2) and a copy of the published Dec. 17, 2014 appellate division opinion reversing the trial court judgment (exhibit 3) is GRANTED pursuant to Evidence Code ?452(d) (court records).? Only the trial court judgment and appellate opinion are noticed as to their contents.? The request for notice of ?matters shown in exhibits attached to plaintiff Corinna Reyes? complaint and incorporated by reference, or in a superseded complaint in this action,? Defendant?s request at 2:7-8, is DENIED.
Plaintiffs? request for judicial notice of an apparent copy of the operative complaint in this action is DENIED. The attached copy (exhibit 1 to the request) is not file endorsed and so is not noticeable as a court record.? The Court may already consider the file endorsed copy of the Complaint present in the court file in ruling on the demurrer.
Demurrer to the Complaint
The Court in ruling on a demurrer to the Complaint treats it ?as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.?? Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.? ?A demurrer tests only the legal sufficiency of the pleading.? It admits the truth of all material factual allegations in the complaint; the question of plaintiff?s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.?? (Committee on Children?s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)
Allegations are not accepted as true on demurrer if they contradict or are inconsistent with facts judicially noticed.? Similarly, facts appearing in exhibits attached to the complaint (part of the ?face of the pleading?) are given precedence over inconsistent allegations in the complaint.? (See Holland v. Morse Diesel Int?l, Inc. (2001) 86 Cal.App.4th 1443, 1447; Barnett v. Fireman?s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [?[T]o the extent the factual allegations conflict with the content of the exhibits to the complaint, we rely on and accept as true the contents of the exhibits and treat as surplusage the pleader?s allegations as to the legal effect of the exhibits.?]? See also Witkin, California Evidence (4th Ed., 2000) 1 Judicial Notice ?3(3) [?It has long been established in California that allegations in a pleading contrary to judicially noticed facts will be ineffectual; i.e., judicial notice operates against the pleader.?])
Other than material properly subject to judicial notice, the Court may not consider extrinsic evidence in ruling on a demurrer.? Accordingly the Court has not considered the declaration filed by Plaintiff Corinna Reyes or the attached exhibit.? The Court has also not considered the declaration by Defense Counsel Richard Kutche submitted with Defendant?s Reply or the attached exhibit.
Defendant?s demurrer to the Complaint?s first cause of action for Malicious Prosecution and second cause of action for Aiding and Abetting on uncertainty grounds is OVERRULED as to both causes of action.
Uncertainty is a disfavored ground for demurrer and is typically sustained only where the pleading is so bad the responding party cannot reasonably respond.? (See Khoury v. Maly?s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616 [?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.?])? Here, it is apparent from Defendant?s other arguments that he understands what both causes of action at least attempt to allege and there is no true uncertainty.
Defendant?s demurrer to the first cause of action for Malicious Prosecution on the ground that it fails to state sufficient facts is SUSTAINED with 10 days? leave to amend.
Three elements must be pleaded and proved to establish the tort of malicious/wrongful prosecution: (1) a lawsuit was commenced by or at the direction of the defendant which was pursued to a legal termination in the plaintiff?s favor; (2) the prior lawsuit was brought without probable cause; and (3) the prior lawsuit was initiated with malice.? (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 216.)? Whether a plaintiff in a malicious prosecution case has established a lack of probable cause requires a judicial determination of the objective reasonableness of the prior lawsuit. (Sheldon Appel Co. v. Albert Oliker (1989) 47 Cal.3d 863, 884.) The question of whether probable cause existed is a question of law. (Zamos v. Stroud (2004) 32 Cal.4th 958, 971.)? Therefore it may be resolved by the Court on demurrer.
?Probable cause is a low threshold designed to protect a litigant?s right to assert arguable legal claims even if the claims are extremely unlikely to succeed. The standard of probable cause to bring a civil suit is equivalent to that for determining the frivolousness of an appeal, i.e., probable cause exists if any reasonable attorney would have thought the claim tenable. This rather lenient standard for bringing a civil action reflects the important public policy of avoiding the chilling of novel or debatable legal claims. Attorneys and litigants have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win. Only those actions that any reasonable attorney would agree are totally and completely without merit may form the basis for a malicious prosecution suit.?? (Mendoza v. Wichmann (2011) 194 Cal.App.4th 1430, 1449 [internal citations and quotation marks omitted].) ?In determining whether the prior action was legally tenable, i.e., whether the action was supported by probable cause, the court is to construe the allegations of the underlying complaint liberally, in a light most favorable to the malicious prosecution defendant.? (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 165.)
Defendant argues that the first cause of action fails to state sufficient facts because Plaintiffs as a matter of law cannot establish that the prior unlawful detainer lawsuit was brought without probable cause because the plaintiff in that action (a different party than Defendant) was successful at the trial court level and obtained a judgment in their favor (see exhibit 2 to Defendant?s request for judicial notice).
?California courts have held that victory at trial, though reversed on appeal, conclusively establishes probable cause to bring the underlying action.? ?The rationale is that approval by the trier of fact, after a full adversary hearing, sufficiently demonstrates that an action was legally tenable.? To put it differently, success at trial shows that the suit was not among the least meritorious of meritless suits, those which are totally meritless and thus lack probable cause.?? ?Because malicious prosecution suits have the potential to penalize and deter the legitimate invocation of the judicial process for redress of grievances, only claims that a reasonable litigant or attorney would have seen as lacking all merit should form the basis for such a suit. Claims that have succeeded at a hearing on the merits, even if that result is subsequently reversed by the trial or appellate court, are not so lacking in potential merit that a reasonable attorney or litigant would necessarily have recognized their frivolousness.??? (Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1052 [internal citations omitted but citing among others Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 817-818 (Wilson.)])? ?This presumption?referred to by some authorities as the ?interim adverse judgment? rule?is subject to an exception where the underlying victory was obtained by fraud or perjury.?? (Id. at 1053.)? However, ?where claims of fraud or perjury are litigated and rejected by a fact finder in an underlying case, those same claims cannot be relied on to establish the absence of probable cause in a subsequent malicious prosecution suit. Stated differently, one cannot relitigate adversely decided factual matters for purposes of establishing the fraud exception to the interim adverse judgment rule.?? (Id. at 1056.)
The Complaint does not currently contain any allegations of fraud or perjury in the prior lawsuit.? As Plaintiffs argue in the opposition that they can amend to ?allege facts that the trial court ruling was procured with materially false information through material false, fraudulent and/or perjurious acts during trial,? Opposition at 6:17-18, leave to amend is granted.
Plaintiffs are cautioned that when a demurrer is sustained with leave to amend, the leave must be construed as permission to the pleader to amend the causes of action to which the demurrer has been sustained, not add entirely new causes of action.? (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.)? To raise claims entirely unrelated to those originally alleged requires either a new lawsuit or a noticed motion for leave to amend.? Absent prior leave of court an amended complaint raising entirely new and different causes of action may be subject to a motion to strike.? (See Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023 [?Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.?])
Defendant?s demurrer to the second cause of action for Aiding and Abetting on the ground that it fails to state sufficient facts is SUSTAINED with 10 days? leave to amend.
Plaintiffs? aiding and abetting claim fails to state sufficient facts because the claim it is dependent upon?the first cause of action?presently fails to state sufficient facts.? ?California courts have long held that liability for aiding and abetting depends on proof the defendant had actual knowledge of the specific primary wrong the defendant substantially assisted. . . .? ?The words ?aid and abet? as thus used have a well understood meaning, and may fairly be construed to imply an intentional participation with knowledge of the object to be attained.??? (Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1145-1146, emphasis in original, internal citations omitted.? ?In the civil arena, an aider and abettor is called a cotortfeasor.? To be liable as a cotortfeasor, a defendant must have knowledge and intent.? . . .? A defendant can be held liable as a cotortfeasor on the basis of acting in concert only if he or she knew that a tort had been, or was to be, committed, and acted with the intent of facilitating the commission of that tort.?? Of course, a defendant can only aid and abet another?s tort if the defendant knows what ?that tort? is.? . . .? [T]he defendant must have acted to aid the primary tortfeasor ?with knowledge of the object to be attained.??? (Id. at 1146, emphasis in original, internal citations omitted.)? ??Mere knowledge that a tort is being committed and the failure to prevent it does not constitute aiding and abetting.? ?As a general rule, one owes no duty to control the conduct of another.??? (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 879, internal citations omitted.)? In order to hold a defendant responsible as an aider and abetter a plaintiff must plead and prove all of the following: 1) that defendant knew that a tort was going to be committed by the primary defendant against plaintiff; 2) that defendant gave substantial assistance or encouragement to the primary defendant, and; 3) that defendant?s conduct was a substantial factor in causing harm to plaintiff.? (See CACI 3610 [?Aiding and Abetting Tort?Essential Factual elements?].)