On 01/29/2020 NAORA BEN-DOV filed a Property - Other Property Fraud lawsuit against ALLEN PHILIP SRAGOW. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Disposed - Dismissed.
Disposed - Dismissed
Spring Street Courthouse
Los Angeles, California
JAMES E. BLANCARTE
SRAGOW ALLEN PHILIP
3/17/2021: Declaration (name extension) - Declaration by Plaintiff
3/17/2021: Exhibit List - Exhibit List
3/17/2021: Motion to Strike (not initial pleading) - Motion to Strike (not initial pleading)
3/17/2021: Declaration (name extension) - Declaration of Plaintiff
4/23/2021: Reply (name extension) - Reply to Defendant's Non-Reply
4/29/2021: Memorandum of Points & Authorities - Memorandum of Points & Authorities
5/6/2021: Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))
5/6/2021: Notice of Ruling - Notice of Ruling
4/20/2020: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment
4/20/2020: Motion to Strike (not initial pleading) - Motion to Strike (not initial pleading)
4/20/2020: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike
4/21/2020: Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment
3/10/2020: Declaration (name extension) - Declaration OF GOOD FAITH ATTEMPT OF ALLEN P. SRAGOW TO MEET AND CONFER
2/21/2020: Proof of Personal Service - Proof of Personal Service
2/4/2020: Summons - Summons on Complaint
2/4/2020: Civil Case Cover Sheet - Civil Case Cover Sheet
1/29/2020: First Amended Standing Order - First Amended Standing Order
1/29/2020: Complaint - Complaint
DocketHearing on Motion - Other Motion to Strike Demurrer, Motion to Strike Anti-SLAPP, and Motion to Strike Hearing scheduled for 07/22/2021 at 10:00 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 07/16/2021Read MoreRead Less
DocketNon-Jury Trial scheduled for 07/28/2021 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 07/16/2021Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 02/01/2023 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 07/16/2021Read MoreRead Less
DocketNotice of Ruling; Filed by: Allen Philip Sragow (Defendant)Read MoreRead Less
DocketNotice of Ruling; Filed by: Allen Philip Sragow (Defendant)Read MoreRead Less
DocketMinute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))Read MoreRead Less
DocketHearing on Demurrer - with Motion to Strike (CCP 430.10) scheduled for 05/06/2021 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 05/06/2021; Result Type to HeldRead MoreRead Less
DocketMemorandum of Points & Authorities; Filed by: Allen Philip Sragow (Defendant)Read MoreRead Less
DocketReply to Defendant's Non-Reply; Filed by: Naora Ben-Dov (Plaintiff)Read MoreRead Less
DocketOpposition to Demurrer; Filed by: Naora Ben-Dov (Plaintiff)Read MoreRead Less
DocketDeclaration OF GOOD FAITH ATTEMPT OF ALLEN P. SRAGOW TO MEET AND CONFER; Filed by: Allen Philip Sragow (Defendant)Read MoreRead Less
DocketProof of Personal Service; Filed by: Naora Ben-Dov (Plaintiff); As to: Allen Philip Sragow (Defendant); Service Date: 02/12/2020; Service Cost: 65.40; Service Cost Waived: NoRead MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Naora Ben-Dov (Plaintiff)Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: Naora Ben-Dov (Plaintiff)Read MoreRead Less
DocketNon-Jury Trial scheduled for 07/28/2021 at 08:30 AM in Spring Street Courthouse at Department 25Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 02/01/2023 at 08:30 AM in Spring Street Courthouse at Department 25Read MoreRead Less
DocketCase assigned to Hon. James E. Blancarte in Department 25 Spring Street CourthouseRead MoreRead Less
DocketComplaint; Filed by: Naora Ben-Dov (Plaintiff); As to: Allen Philip Sragow (Defendant)Read MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketFirst Amended Standing Order; Filed by: ClerkRead MoreRead Less
Case Number: 20STLC00941 Hearing Date: May 6, 2021 Dept: 25
PROCEEDINGS: (1) DEMURRER TO PLAINTIFF’S COMPLAINT
(2) SPECIAL MOTION TO STRIKE PLAINTIFF’S COMPLAINT
MOVING PARTY: Defendant Allen Philip Sragow
RESP. PARTY: Plaintiff Naora Ben-Dov, in pro per
(CCP § 430.10, et seq.)
SPECIAL MOTION TO STRIKE
(CCP § 425.16)
Defendant Allen Philip Sragow’s Special Motion to Strike is DENIED. However, Defendant’s Demurrer to Plaintiff’s Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.
[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
OPPOSITION: Filed on March 22, 2021 [ ] Late [ ] None
REPLY: Filed on April 29, 2021 [ ] Late [ ] None
On January 29, 2020, Plaintiff Naora Ben-Dov (“Plaintiff”), in pro per, filed an action alleging fraud against Defendant Allen Philip Sragow (“Defendant”).
Defendant filed the instant Demurrer to Plaintiff’s Complaint (the “Demurrer”) and Special Motion to Strike Plaintiff’s Complaint under Anti-SLAPP Statute (the “Motion to Strike”) on April 20, 2020.
It appears the hearing on the Demurrer and Motion to Strike was inadvertently not scheduled, likely because they were filed during the COVID-19 pandemic court closures. On March 4, 2021, the Court scheduled the Demurrer and Motion to Strike for hearing for May 6, 2021.
Plaintiff filed oppositions on March 22 and Defendant filed a reply brief on April 29.
II. Request for Judicial Notice
Defendant’s request for judicial notice is GRANTED as to (1) the Second Amended Complaint filed in Ben-Dov v. Sragow, Case No. 8:17-cv-00122-DFM filed in the Central District of California (the “Federal Action”) on August 23, 2017; (2) Interrogatories, Set One, filed by Plaintiff on September 6, 2017 in the Federal Action; (3) Requests for Admission, Set One, filed on September 19, 2017 in the Federal Action; (4) Notices of Motion for Summary Judgment filed on September 6 and 19, 2017 in the Federal Action; (5) Plaintiff’s opposition briefs to Motions for Summary Judgment filed on September 8 and 28, 2017 in the Federal Action; (6) Plaintiff’s Appeal to the Ninth Circuit filed on December 3, 2017; (7) Plaintiff’s Ninth Circuit opening brief filed on April 11, 2018; and (8) Memorandum from the Ninth Circuit Court of Appeals filed on August 23, 2018. (Dem., pp. 2:7-3:17, Exhs. 1-8; Evid. Code, § 452, subd. (d).) However, because the internet docket printout is not a court record and does not fall within any other category of permissible judicial notice, it is DENIED. (Id., Exh. 9.)
III. Special Motion to Strike
Defendant moves to strike Plaintiff’s Complaint under the Anti-SLAPP statute. (Mot. to Strike, pp. 1:26-2:8.)
However, in a limited jurisdiction court, “[m]otions to strike are allowed only on the ground that the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc., § 92, subd. (d).) The Court of Appeal held: “Thus, construing section 92(d) to permit anti-SLAPP motions to be brought in limited civil cases would undermine the Legislature’s goal of efficient and cost-effective litigation in such cases. [¶] For all these reasons, we conclude that section 92(d) precludes a defendant from bringing a special motion to strike in a limited civil case.” (1550 Laurel Owner's Association, Inc. v. Appellate Division of Superior Court of Los Angeles County (2018) 28 Cal.App.5th 1146, 1158.)
Thus, Defendant’s Special Motion to Strike is DENIED.
A. Legal Standard
“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).)
The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41, subdivision (a). (Dem., Sragow Decl., ¶¶ 3-8.)
Plaintiff alleges a single cause of action for fraud against Defendant. (Compl., p. 1:3-8.) Defendant demurs on the basis that the Complaint fails to state a cause of action. (Dem., p. 4:3-5.)
“The elements fraud must be alleged with specificity such that the plaintiff pleads facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)
The documents Defendant submitted, which have been judicially noticed, demonstrate that Plaintiff filed an action against Defendant and two other defendants in federal court alleging causes of action for accounting and declaratory relief, breach of trustee duty, fraud, elder abuse and conversion, fraudulent misrepresentation and fraudulent concealment, and unjust enrichment. (Dem., RJN, Exh. 1.)
The gravamen of Plaintiff’s instant Complaint is (1) that Defendant copied and pasted her signature on a document that was submitted to an unspecified court and (2) that Defendant “committed fraud on the court within the paperwork for a hearing, that after proceeding, affected the Plaintiff.” (Id.) The factual background in Plaintiff’s Complaint is copied and pasted from a brief submitted to a different court and, confusingly, refers to defendants that are not parties to this action. (See Compl., pp. 1:24-9:8.) However, it is clear that Plaintiff’s allegations are based, in part, on Defendant’s alleged failure to meet and confer before filing a motion for summary judgment in a prior action and Defendant’s alleged misrepresentation to the court that he did so. (Compl., pp. 4:14-5:10.)
These alleged actions, however, are not actionable as they are protected by the litigation privilege.
A publication made or broadcast in a judicial proceeding is privileged. (Civ. Code § 47, subd. (b).) “The litigation privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citation.]” (Herterich v. Peltner (2018) 20 Cal.App.5th 1132, 1138.) This privilege also applies to forgery and the falsification of documents prepared for and presented in litigation. (Steiner v. Eikerling (1986) 181 Cal.App.3d 639, 64642-643.) In discussing the litigation privilege, the court in Herterich “ ‘ “recognize[d] the harsh result in extending a privilege to false and fraudulent statements made in the course of a judicial proceeding” ’ ” but also stated that the result should be accepted “ ‘ “on account of the overriding importance of the competing public policy in favor of enhancing the finality of judgments and avoiding unending postjudgment derivative litigation…” (Herterich v. Peltner, supra, 20 Cal.App.5th at p. 1142.) While courts do not condone intentionally deceptive conduct in judicial proceedings, “the litigation privilege is absolute.” (Id.)
Here, Plaintiff’s allegations demonstrate that Defendant’s alleged misrepresentation to the Court regarding his meet and confer efforts and the allegedly forged document presented to the Court were made in a prior judicial proceeding by Defendant as party to the prior action, to achieve Defendant’s goal in that prior action.
Plaintiff does not address Defendant’s arguments in her opposition; rather, she only argues that the Demurrer is untimely and that it was filed “only after [Defendant] received a notice of default judgment that had already been sent to the court.” (Oppo., p. 1:20-23.) However, at the time Defendant filed this Demurrer, no default against him had been entered yet. Only after default is entered is a defendant precluded from filing a responsive pleading. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1301.) Second, a trial court has discretion to consider an untimely demurrer. (Jackson v Doe (2011) 192 Cal.App.4th 742, 750.) Thus, it is not necessarily fatal that Defendant filed this Demurrer approximately eleven days after the expiration of the automatic extension provided under Code of Civil Procedure section 430.41, subdivision (a)(2).
Accordingly, Defendant’s Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.
VI. Conclusion & Order
For the foregoing reasons, Defendant Allen Philip Sragow’s Special Motion to Strike is DENIED. However, Defendant’s Demurrer to Plaintiff’s Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.
Moving party is ordered to give notice.
Get Deeper Insights on Court Cases