Plaintiff/Cross-Defendant’s Motion for Judgment on the Pleadings

Moving Party:             Plaintiff/Cross-Defendant Evelyn Lozada

Responding Party:      Defendant/Cross-Complainant Ogom Chijindu

Ruling:            Plaintiff/Cross-Defendant Lozada’s Motion for Judgment on the Pleadings is denied.   

This matter was set for hearing on September 25, 2020. The Court noted that Lozada made no declaration as to efforts to meet and confer prior to bringing this motion, continued the hearing, and ordered Lozada to meet and confer in good faith with Chijindu and to file a declaration five court days prior to the present hearing date.

As a preliminary matter, on November 13, 2020, Lozada filed an “Opposition to Defendant/Cross-Complainant Ogom Chijindu’s Motion for Judgment on the Pleadings.” The Court record does not reflect that Chijindu has filed such motion, nor has a hearing been reserved for such. Counsel shall provide further clarification on this issue at the hearing.

Meet and Confer

 Pursuant to this Court’s September 22, 2020, order, Lozada was required to meet and confer with Chijindu, and to file a declaration five court days prior to this hearing.

On October 14, 2020, counsel for Chijindu, Jeffrey Schwartz, filed a declaration in which counsel declares that “[o]n September 15, 2020, I emailed a Meet and Confer letter to Lozada’s counsel ( stating that, based upon my research, Lozada’s cause of action for Defamation should be dismissed because Chijindu’s statements that Lozada was a racist bigot were not provably false assertions of fact,” and attached a copy of the email as Exhibit A. (Schwartz Decl. ¶ 3.) Schwartz also declares that on September 29, 2020, he discussed with opposing counsel the issues of the motion. (Id. ¶ 4.) However, the parties were unable to reach an agreement. (Id. ¶ 5.)

The Court considers the merits below.

Judicial Notice

Lozada requests that the Court take judicial notice of the following:

  1. a Temporary Restraining Order filed with this Court;
  2. an October 24, 2017, article entitled “Sauti Yeti Center for African Women;”
  3. the harassing and disparaging statements on social media about Lozada; and
  4. the loss of several brand enforcement deals along with suffering severe emotional distress.

Lozada’s request for judicial notice is granted as to the TRO pursuant to Evid. Code § 452(d). The request is denied as to the remainder, which consist of items and legal contentions which are not properly subject to judicial notice.

First Cause of Action for Intentional Interference with Contractual Relationship

The elements for the tort of intentional interference with contractual relationship are “(1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 289.)

In this motion for judgment on the pleadings, Lozada merely recites the elements of a claim for intentional interference with a contractual relationship and quotes two cases. She provides no argument or analysis to show that the allegations in the cross-complaint are insufficient to meet any particular elements of this claim. For purposes of this motion, the Court is satisfied that this cause of action satisfies the pleadings requirements. Therefore, the motion as to the first cause of action in Chijindu’s cross-complaint is denied.

Second Cause of Action for Intentional Infliction of Emotional Distress

“A cause of action for IIED requires proof of: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant’s extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.) A defendant’s conduct is considered outrageous if it is so “extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id.) Liability for IIED does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Id.)

First, after a recitation of law, Lozada argues that “LOZADA’s conduct was not outrageous and she did not abuse any position of authority.” (Motion 7:27.) Lozada then asserts in similarly conclusory manner that “LOZADA’s conduct was not outrageous and so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id. 8:3-4.) These two assertions, sandwiched between general recitations of the law pertaining to intentional infliction of emotional distress, do not carry Lozada’s burden of proving that the claims as alleged are untenable.

Second, Lozada argues that she is not responsible for Chijindu’s harm because “LOZADA has a legal right to free speech in social media posts. LOZADA’s conduct was lawful and consistent with community standards; and LOZADA had a good-faith belief that she had a legal right to engage in the conduct.” (Motion 9:2-5.) Again, Lozada provides a general recitation of law, and no application of the law to the allegations of the Cross-Complaint or the facts at hand. The aforementioned arguments are contained within the “Statement of Law” portion of the motion. However, the “Argument” section contains virtually nothing but a recitation of law pertaining to motions for judgment on the pleadings.

In one final paragraph, Lozada makes various factual arguments pertaining to when Chijindu began work on “Basketball Wives,” and how none of the various social media posts were targeted towards Chijindu. Lozada’s assertions are fact based and more properly suited for a motion for summary judgment or trial.

Based on the foregoing, Lozada’s Motion for Judgment on the Pleadings is denied in its entirety.

Date: November 20, 2020  
  Honorable Stuart M. Rice

Judge of the Superior Court