JOCELYN ALMEIDA VS MELANAT RAFIEI

Tentative Rulings

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.