Tentative Rulings

Case Number: *******0920 Hearing Date: April 10, 2025 Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date: April 10, 2025

Case Name: Migliorini v. Zale

Case No.: *******0920

Matter: Demurrer with Motion to Strike

Moving Party: Defendant Steven Zale

Responding Party: None

Tentative Ruling: The Demurrer to the Complaint is sustained. The Motion to Strike is moot.

This is a defamation action. On January 14, 2025, Plaintiff Barry Migliorini filed a Complaint against Defendants Steven Zale, Go Daddy, and the County of Los Angeles.

On February 27, 2025, Defendant Zale demurred to the entire Complaint. Defendant also moved to strike portions of the Complaint. No opposition has been filed.

The demurrer is sustained. The motion to strike is moot.

Legal Standard for Demurrers

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., ; 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc., ; 452.) The court " ' "treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . ." ' " (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Analysis

First Cause of Action for Defamation:

Defendant demurs to the first cause of action on the grounds that Plaintiff failed to state a claim.

Defamation " 'involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.' " (Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 970; Grenier v. Taylor (2015) 234 Cal.App.4th 471, 486.)

The Complaint alleges that Defendant Zale "caused false and defamatory stories about Plaintiff to be posted or hosted on Go Daddy platforms or domains, intending to destroy Plaintiff's reputation permanently and irreversibly. The content included false statements accusing Plaintiff of criminality, fraud, and other wrongdoing." (Compl., p. 4.)

Here, the Complaint fails to specifically allege the defamatory statements. As such, the pleadings are deficit. (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 457, fn. 1 [quoting 5 Witkin, Cal. Procedure (5th ed. 2008), Pleading, ; 739, p. 159.].) Thus, the demurrer to this cause of action is sustained.

Second Cause of Action for Conspiracy:

First, as argued by Defendant, "[c]onspiracy is not a cause of action, but a legal doctrine that imposes liability on person who, although not actually committing a tort themselves, share with the immediate tortfeasors a common law or design in its perpetration." (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510.)

Moreover, this theory of liability is entirely dependent on the existence of a cognizable claim for defamation (Compl., p. 5.) and it cannot stand without this predicate cause of action. Thus, as a result of the Court sustaining the demurrer to the first cause of action -- the demurrer to this cause of action is also sustained.

Third Cause of Action for Hate Crime/Violation of Civil Rights:

Defendant demurs to this cause of action on the grounds that "there is no adequate or viable allegation of libel/slander so the hate crime claim must fail." (Dem., 7:18-21.)

Citing Penal Code sections 422.55 and 422.6, the Complaint alleges that Defendant's false police reports, defamatory publications, and malicious prosecution actions were motivated by Plaintiff's protected characteristics as an individual of African descent. (Compl., p.5.)

However, there is no private right of action under Penal Code section 422.6.[1] (Dillingham v. Flores (E.D. Cal., May 4, 2023, No. 120CV01164HBKPC) 2023 WL 5020503, at *4 ["To the extent Plaintiff seeks to allege a claim under Cal. Penal Code 422.6(a), the state hate crime statute, he is barred from doing so because courts have found no private right of action under California Penal Code ; 422.6."]; Hoffman v. Lassen Adult Detention Facility (E.D. Cal., June 12, 2017, No. 215CV1558JAMKJNP) 2017 WL 2535461, at *3, fn. 1; Nible v. Fink (S.D. Cal., May 9, 2017, No. 16CV2849-BAS (PCL)) 2017 WL 1885740, at *3.)

Therefore, the demurrer to this cause of action is sustained.

Fourth Cause of Action for "Any other Applicable Causes of Action:"

Defendant demurs to this "cause of action" on the grounds it is uncertain.

The Code of Civil Procedure permits a defendant to demur to a complaint on the ground that it is uncertain, a term that includes pleadings that are "ambiguous and unintelligible." (Code Civ. Proc., ; 430.10; see also Code Civ. Proc., ; 425.10, subd. (a)(1) [a complaint must include a "statement of the facts constituting the cause of action, in ordinary and concise language"].) Demurrers for uncertainty are generally disfavored (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822) because "under our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend" (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2 [italics added].)

Here, the Complaint does not identify any fourth cause of action except for in the caption of the Complaint. Even looking beyond the unusual format of the Complaint, there remains an uncertainty problem-one of ambiguity. The operative complaint does not identify factual allegations and correlate such allegations to a legal theory of liability. It is not enough for a pleading to set out a disjointed narrative of events divorced from grounds for liability and hope the Court or opposing party will do the work of connecting the dots - assuming there are dots to connect -- between the two.

Thus, the demurrer to this cause of action is sustained.

Conclusion

The demurrer is sustained. As a result of the ruling on the demurrer, the motion to strike is moot. Plaintiff shall have leave to amend. Plaintiff shall file and serve an amended pleading by May 12, 2025.