JOCELYN ALMEIDA VS MELANAT RAFIEI

Tentative Rulings

Case Number: 18STLC14522    Hearing Date: February 02, 2021    Dept: 25

HEARING DATE: Tue., February 2, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Almeida v. Rafiei COMPL. FILED: 12-03-18

CASE NUMBER: 18STLC14522 DISC. C/O: NONE

PROCEEDINGS: (1) DEMURRER TO THIRD AMENDED COMPLAINT

(2) MOTION TO STRIKE PUNITIVE DAMAGES

MOVING PARTY: Defendant Malahat Rafiei

RESP. PARTY: Plaintiff Jocelyn Almeida

DEMURRER WITH MOTION TO STRIKE

(CCP §§ 430.10, et seq; 435)

TENTATIVE RULING:

Defendant Malahat Rafiei’s Demurrer to Plaintiff’s Third Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. As a result, Defendant’s Motion to Strike is DENIED AS MOOT.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

Demurrer

OPPOSITION: Filed on January 26, 2021 [X] Late [ ] None

REPLY: Filed on January 28, 2021 [ ] Late [ ] None

Motion to Strike

OPPOSITION: Filed on December 11, 2020 [ ] Late [ ] None

REPLY: Filed on January 28, 2021 [ ] Late [ ] None

ANALYSIS:

1. Background

On December 3, 2018, Plaintiff Jocelyn Almeida (“Plaintiff”) filed an action against Defendant Malahat Rafiei (“Defendant”). Plaintiff filed a First Amended Complaint (“FAC”) on March 22, 2019.

Defendant filed a demurrer to the FAC on April 24, 2019. On December 3, 2019, the Court found Plaintiff “did not allege facts in the amended complaint to support any cause of action.” (12/3/19 Minute Order.) The demurrer was sustained with 30 days’ leave to amend on the condition that Defendant established Plaintiff was given notice of the continued December 3rd hearing. (Id.)

On December 23, 2019, Plaintiff filed a Second Amended Complaint (the “SAC”). At the August 5, 2020 hearing on Defendant’s motions to compel discovery, the Court granted Plaintiff leave to file a third amended complaint within fifteen (15) days of that hearing. (8/5/20 Minute Order.) Plaintiff’s Third Amended Complaint (“TAC”) was filed on August 7, 2020.

On September 8, 2020, Defendant filed the instant Demurrer to Plaintiff’s Third Amended Complaint (the “Demurrer”) with Motion to Strike Punitive Damages (the “Motion to Strike”). Plaintiff filed an opposition to the Motion to Strike on December 11, 2020 and to the Demurrer on January 26, 2021. Defendant filed replies on January 28, 2021.

1. Legal Standard

A. Demurrer

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

B. Motion to Strike

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (Code Civ. Proc. §§ 435; 436, subd. (a).) Motions may also target pleadings or parts of pleadings that are not filed or drawn in conformity with applicable laws, rules, or orders. (Code Civ. Proc. § 436, subd. (b).) However, motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc. § 92, subd. (d).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (Code Civ. Proc. § 436.)

Finally, Code of Civil Procedure section 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc. § 435.5, subd. (a).)

1. Discussion

As an initial matter, the Court notes that the Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41, subdivision (a). (Dem., Nguyen Decl., ¶¶ 2-5, Exh. A.)

A. Demurrer – Libel Per Se and Libel Per Quod

“ ‘ “The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” ’ [Citations.] ‘In general,…a written communication that is false, that is not protected by any privilege, and that exposes a person to contempt or ridicule or certain other reputational injuries, constitutes libel.’ [Citation.] The defamatory statement must specifically refer to, or be ‘of or concerning’ the plaintiff.’ [Citation.]” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1259-1260.)

“There are generally two types of libel recognized in California – libel per se and libel per quod. ‘A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such an inducement, innuendo, or other extrinsic fact, is said to be libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves he has suffered special damage as a proximate result thereof.’ [Citations.] The distinction has been described as follows: ‘If no reasonable reader would perceive in a false and unprivileged publication a meaning which tended to injure the subject’s reputation in any of the enumerated respects, then there is no libel at all. If such a reader would perceive a defamatory meaning without extrinsic aid beyond his or her own intelligence and common sense then (under section 45a and the cases, such as MacLeod, which we have construed) there is a libel per se. But if the reader would be able to recognize a defamatory meaning only by virtue of his or her knowledge of specific facts and circumstances, extrinsic to the publication, which are not matters of common knowledge rationally to all reasonable persons, then (under the same authorities) the libel cannot be libel per se but will be libel per quod.’ [Citations.]” (Bartholomew v YouTube, LLC (2017) 17 Cal.App.5th 1217, 1226-27.)

An action for libel must be brought within one year. (Code Civ. Proc., § 340, subd. (c).) (Emphasis added.)

Here, Plaintiff alleges, in pertinent part, the following: (1) that Plaintiff was present at Defendant’s office with her former colleague, Taylor Honrath, “at the exact moment [a client] list was taken from [Defendant’s] database without permission”; (2) that Defendant admitted to accusing Plaintiff of taking the list from a database that was not Defendant’s property; (3) that the accusation is false; (4) that Defendant “published the false accusation against [Plaintiff] through [Defendant’s] nonsecure communication”; (5) that Plaintiff does not know when the alleged defamatory statements were made; (6) that “people” reasonably understood “the statement” was about Plaintiff; (7) that any person that read Defendant’s accusation “can reasonably accuse [Plaintiff] of theft and deceitful behavior”; (8) that Plaintiff’s occupational pursuit “to build relationships of trust and reputation has been injured in the industry and her community by Defendant’s accusation”; (9) that Defendant failed to use reasonable care to determine the truth of the accusation, i.e., failed obtain the IP address of the computer responsible for downloading the allegedly stolen list to eliminate Plaintiff as a suspect; and (10) that Plaintiff quit her employment in July 2016. (TAC., p. 4, ¶ IT-1; Attach., pp. 1-5.)

However, the Court notes that in her first Complaint, Plaintiff alleged Defendant made the defamatory statements on or about 2016. (Compl., Attach. 1.) Where a demurrer to an amended complaint is filed, the Court may consider the factual allegations of prior complaints, “which a plaintiff may not discard or avoid by making ‘ “ ‘contradictory averments, in a superseding, amended pleading.’”’’” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.) Without explanation and in an apparent effort to avoid the statute of limitations issue, Plaintiff’s amended complaints state she does not know the date the alleged libelous statements were made. In addition, Plaintiff’s Opposition appears to state that Defendant allegedly published the libelous statements sometime between September 2015 and October 2015. (Oppo., p. 2.) Nothing in the Opposition demonstrates how the TAC can further be amended to properly state a cause of action against Defendant.

Plaintiff’s Complaint, amended Complaints, and Opposition demonstrate that her libel claim is time-barred by the applicable one-year statute of limitation. Accordingly, the Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

B. Motion to Strike

As Defendant’s Demurrer is sustained without leave to amend, the Motion to Strike is DENIED AS MOOT.

1. Conclusion & Order

For the foregoing reasons, Defendant Malahat Rafiei’s Demurrer to Plaintiff’s Third Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. As a result, Defendant’s Motion to Strike is DENIED AS MOOT.

Moving party is ordered to give notice.

Case Number: 18STLC14522    Hearing Date: August 05, 2020    Dept: 25

HEARING DATE: Wed., August 5, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Almeida v. Rafiei COMPL. FILED: 12-03-18

CASE NUMBER: 18STLC14522 DISC. C/O: 12-26-20

NOTICE: OK/NO (Discovery Motions) MOTION C/O: 01-10-21

PROCEEDINGS: (1) MOTION TO DISMISS

MOVING PARTY: Defendant Melahat Rafiei

RESP. PARTY: Plaintiff Jocelyn Almeida, in pro per

MOTION TO DISMISS

(CCP § 581)

PROCEEDINGS: (2) MOTION TO COMPEL DISCOVERY RESPONSES TO SPECIAL INTERROGATORIES, SET ONE, AND REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE

MOVING PARTY: Plaintiff Jocelyn Almeida, in pro per

RESP. PARTY: None

MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS

(CCP §§ 2030.290; 2031.300)

TENTATIVE RULING:

Defendant Melahat Rafiei’s Motion to Dismiss is GRANTED. Plaintiff’s Fourth Amended Complaint filed on April 27, 2020 is HEREBY STRICKEN. (Code Civ. Proc., 436, subd. (b).)

Having granted Defendant’s motion to dismiss, Plaintiff’s discovery motions are PLACED OFF CALENDAR AS MOOT.

SERVICE:

[ ] Proof of Service Timely Filed (CRC, rule 3.1300) NO (Disc. Motions)

[ ] Correct Address (CCP §§ 1013, 1013a) NO (Disc. Motions)

[ ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO (Disc. Motions)

Motion to Dismiss

OPPOSITION: Filed on July 27, 2020 [ ] Late [ ] None

REPLY: None filed as of August 3, 2020 [ ] Late [X] None

Motions to Compel Discovery

OPPOSITION: None filed as of August 3, 2020 [ ] Late [X] None

REPLY: None filed as of August 3, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On December 3, 2018, Plaintiff Jocelyn Almeida (“Plaintiff”) filed an action, in pro per, for defamation of character and employer retaliation against Defendant Melahat Rafiei (“Defendant”). On March 22, 2019, Plaintiff filed a First Amended Complaint for infliction of emotional distress.

On December 3, 2019, the Court sustained Defendant’s Demurrer to the First Amended Complaint, noting that Plaintiff appeared to be asserting a cause of action for intentional infliction of emotional distress, but finding that she failed to state sufficient facts for such cause of action. (12/3/19 Minute Order.) Plaintiff was granted 30 days to amend the complaint. (Id.)

On January 15, 2020, Plaintiff filed the instant Motion to Compel Responses to Special Interrogatories, Set One. On April 8, 2020, Plaintiff filed a Motion to Compel Response to Request for Production of Documents or Things. On April 9, 2020, Plaintiff appears to have refiled her Motion to Compel Responses to Special Interrogatories, Set One. To date, no oppositions to the discovery motions have been filed.

In addition, on February 20, 2020, Defendant filed a Motion to Dismiss Plaintiff’s Complaint (the “Motion to Dismiss”). To date, no opposition has been filed.

Finally, although there is no third amended complaint on file, Plaintiff filed a Fourth Amended Complaint on April 27, 2020.

1. Motion to Dismiss

The Court may dismiss a complaint as to a defendant when, after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the Court and either party moves for dismissal. (Code Civ. Proc., § 581, subd. (f)(2).)

Defendant moves to dismiss Plaintiff’s action on the basis that, following the Court’s December 3, 2019 order sustaining Defendant’s demurrer, Plaintiff did not file and serve an amended complaint within the time allowed. (Mot., p. 1, ¶ 7.) Plaintiff was not present at the hearing on the demurrer, but Defendant served a notice of ruling on Plaintiff on December 11, 2019 via regular mail. (12/11/19 Notice of Ruling, Proof of Service.) Despite receiving notice, Plaintiff did not file her amended complaint until April 27, 2020 and without the Court’s permission.

Plaintiff filed an unexecuted declaration in opposition to Defendant’s Motion to Dismiss that largely details her unsuccessful efforts to obtain discovery from Defendant. (7/27/20 Almeida Decl., ¶¶ 1-11.) Notably, she acknowledges she received notice of the Court’s December 3^rd Minute Order, but does not attempt to argue she complied with the Order requiring her to file an amended complaint within 30 days. (See id.)

Thus, Defendant’s Motion to Dismiss is GRANTED.

1. Motions to Compel Discovery

Having granted Defendant’s Motion to Dismiss, Plaintiff’s discovery motions are PLACED OFF CALENDAR AS MOOT.

1. Conclusion & Order

For the foregoing reasons, Defendant Melahat Rafiei’s Motion to Dismiss is GRANTED. Plaintiff’s Fourth Amended Complaint filed on April 27, 2020 is HEREBY STRICKEN. (Code Civ. Proc., 436, subd. (b).) Having granted Defendant’s motion to dismiss, Plaintiff’s discovery motions are PLACED OFF CALENDAR AS MOOT.

Moving party is ordered to give notice.

Case Number: 18STLC14522    Hearing Date: December 03, 2019    Dept: 94

DEMURRER TO AMENDED COMPLAINT

(C.C.P. §430.10)

TENTATIVE RULING:

Defendant Melahat Rafiei’s unopposed demurrer to Plaintiff Jocelyn Almeida’s amended complaint is sustained with 30 days leave to amend provided Defendant establishes Plaintiff was given notice of the continued hearing on the demurrer.

I. Background

On December 3, 2018, Plaintiff Jocelyn Almeida (“Plaintiff”) filed a complaint against Defendant Melahat Rafiei (“Defendant”).

On March 22, 2019, Plaintiff filed an amended complaint against Defendant.

On September 12, 2019, Defendant filed a demurrer to the amended complaint.

II. Legal Standard

The party against whom a complaint has been filed may object by demurrer to the pleading on several grounds, including that the complaint does not state sufficient facts to constitute a cause of action. (C.C.P. §430.10(e).)

“‘A demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice’ [Citations]; The allegations of the pleading demurred to must be regarded as true [Citations]; a demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading [Citations], or the construction placed on an instrument pleaded therein [Citation], or facts impossible in law [Citation], or allegations contrary to facts of which a court may take judicial knowledge. [Citations]” (South Shore Land Co. v. Peterson (1964) 226 Cal.App.2d 725, 732.)

“The following basic principle is also applicable to general demurrers, to wit: all that is

necessary against a general demurrer is that upon a consideration of all the facts stated, it appears that the party whose pleading is attacked by such a demurrer is entitled to any relief at the hands of the court against his adversary, notwithstanding the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action or defense shown, or although the plaintiff, in his complaint, or the defendant, in his answer, may demand relief to which he is not entitled under the facts alleged. [Citation]” (Id. at 732-733.)

III. Analysis

Defendant Melahat Rafiei (“Defendant”) demurs to the amended complaint of Plaintiff Jocelyn Almeida (“Plaintiff”) on the grounds that the complaint fails to allege sufficient facts to constitute a cause of action against Defendant and/or the complaint is uncertain.

Uncertainty

 

Special demurrers are not allowed in limited civil cases. (See C.C.P. §92(c).) Consequently, Defendant’s demurrer based on uncertainty is overruled.

Failure to State Sufficient Facts

Plaintiff failed to allege sufficient facts to constitute a cause of action against Defendant. Plaintiff filed an amended complaint on March 22, 2019. Plaintiff appears to be asserting a cause of action for intentional infliction of emotional distress against Defendant. Plaintiff checked the box for the intentional tort cause of action and alleged he suffered damages, including infliction of emotional distress. “‘[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.’ [Citation] ‘Conduct, to be ‘‘outrageous’’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’ [Citation]” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4^th 1228, 1259.)

Plaintiff’s amended complaint is three pages long. Plaintiff did not allege facts in the amended complaint to support any cause of action.

Based on the foregoing, Defendant’s unopposed demurrer to the amended complaint for failure to state sufficient facts is sustained with 30 days leave to amend provided Defendant establishes Plaintiff was given notice of the continued hearing on the demurrer.

IV. Conclusion & Order

Defendant Melahat Rafiei’s unopposed demurrer to Plaintiff Jocelyn Almeida’s amended complaint is sustained with 30 days leave to amend provided Defendant establishes Plaintiff was given notice of the continued hearing on the demurrer.

Defendant is ordered to give notice.