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Tentative Ruling
Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Regina Moxley vs Sant Pallan

Case No: 1385732
Hearing Date: Fri Jul 26, 2013 9:30

Nature of Proceedings: Motion: Strike Second Amended Cross-Complaint; Demurrer to Second Amended Cross-Complaint

Complaint: Plaintiff Regina Moxley filed her complaint against defendant Sant Ram Pallan for battery, sexual harassment (Civil Code § 51.9), sexual battery (Civil Code § 1708.5), false imprisonment, infliction of emotional distress, and physical abuse of a dependent adult. First Amended Cross-Complaint (FACC) and Demurrer: On January 23, 2013, Pallan filed a cross-complaint against cross-defendants Moxley, Kenneth Stein, Joseph DeLeo and Julian Nyfal, aka Julian Nafal (“Nafal”). When three demurrers were pending, on March 14, 2013, Pallan filed a first amended cross-complaint and, on April 2, 2013, he filed another first amended cross-complaint (FACC). The causes of action in the FACC were 1) breach of rental contract (against Moxley), 2) breach of contract for care giving services (Moxley, DeLeo, 3) fraud – intentional misrepresentation (Moxley, DeLeo), and 4) extortion (all cross- defendants). On May 17, 2013, the court sustained Moxley’s demurrer to the first and fourth causes of action in Pallan’s FACC, with leave to amend, sustained the demurrer to the second cause of action, without leave to amend (because it is barred by the statute of limitation), and overruled the demurrer to the third cause of action. The court granted, in part, cross- defendant Moxley’s motion to strike portions of the FACC and ordered stricken from the complaint prayer #5 for punitive damages for extortion [FACC 12:16-18] and prayer #6 for attorney fees [FACC 12:19], with leave to amend, and the words “both” and “and the County of Santa Barbara Welfare Department” from ¶ 25 [FACC 7:1-2] and prayer #8 regarding demurrers [FACC 13:1-3], without leave to amend. The court gave Pallan until May 28, 2013, to file a second amended cross-complaint. The court sustained cross-defendant DeLeo’s demurrer to the second and third causes of action in the FACC, without leave to amend. Second Amended Cross-Complaint (SACC): Pallan filed a SACC on May 22, 2013. Contrary to the court’s ruling, Pallan reasserted the second cause of action. He also maintained the words “both” and “and the County of Santa Barbara Welfare Department” in ¶ 27 [SACC 8:22-23] Because Pallan filed the SACC in violation of the court’s May 17 order, the court granted Moxley’s motion for sanctions re: second amended complaint and ordered Pallan to pay a monetary sanction in the amount of $1,540, payable to Moxley’s counsel, in $250 monthly installments, to be paid off by January 2014. Pallan’s motion for leave to file a third amended complaint is set for hearing on August 9, 2013. Demurrer: Moxley demurs to all four causes of action because Pallan fails to state facts sufficient to constitute the causes of action and because they are uncertain, ambiguous and unintelligible. Pallan has filed no opposition to the demurrer. 1. Breach of Rental Agreement: Pallan attaches a written Landlord’s and Tenant’s Agreement as Exhibit 3 to the SACC. On its face, the agreement says it is entered into on May 3, 2010. Pallan alleges that the parties entered into the contract “on or about May 17, 2010.” [SACC ¶ 1] Moxley contends this inconsistency renders the first cause of action uncertain, ambiguous and unintelligible. But Pallan only alleges one agreement and the term “on or about May 17, 2010” is not fatally inconsistent with “May 3, 2010.” Pallan says that, on June 29, 2010, he served’s Notice of Belief of Abandonment of Rental Property [Exhibit 7], which indicates that the lease was terminated on July 14, 2010. This is inconsistent with his claim for rent for 11 days in August. But that reduces the rent owing from $300.61 to $70.05. It does not eliminate the cause of action. Moxley argues that the notice of belief of abandonment was not properly served. But if the notice regarding abandonment is not proper, it is possible that Moxley would owe more rent since Pallan alleges that she had not left the premises by July 1, 2010. Like the rent owing, the $150 moving and cleaning charge and the $40 fuel cost charge, this is an issue of the amount of damages. A demurrer is not the proper vehicle for challenging the relief sought in a complaint. Venice Town Council v. City of L.A., 47 Cal.App.4th 1547, 1562 (1996). In the proposed TACC, Pallan has dropped the moving and cleaning charge and the fuel cost charge. So it appears that his claim for breach of the rental agreement is only for $70.05. Nevertheless, he has stated a claim for breach of the rental agreement and it is not uncertain, ambiguous or unintelligible. The court overrules the demurrer to the first cause of action. 2. Breach of Care Giving Contract: This cause of action was the primary subject of the motion for sanctions the court heard last week. On May 17, 2013, the court sustained the demurrer to this cause of action without leave to amend because it is barred by the statute of limitation. The court sustains the demurrer to it again without leave to amend. 3. Fraud: The elements of fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure) of material fact; (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. Robinson Helicopter Co., Inc. v. Dana Corp., 34 Cal.4th 979, 990 (2004). Pallan’s fraud cause of action is based on the following allegations: Moxley represented that Pallan would be paid for care giving expenses by the County of Santa Barbara. [SACC ¶¶ 21, 33.i.] This was not true as Moxley had authorized a third party care giver to bill the County and receive payment for her care, which payments were kicked back to her. [SACC ¶¶ 22, 27] Moxley did not reveal that being a caregiver under the County’s in-home health care program required training and was a lengthy procedure or that care giving service were already being billed to the County by someone else. [SACC ¶¶ 17, 33.ii.] Moxley knew that her representations were false when she made them and intended that Pallan rely on them. [SACC ¶¶ 33.iii., iv.] Pallan reasonably relied on the promises and provided care giving services. [SACC ¶ 33.v.] Pallan was harmed as he did not receive compensation for services he rendered. [SACC ¶ 33.vi.] Moxley emphasizes that Pallan alleges that she did not say she would pay him and, therefore, he has no claim against her. But this is not a contract claim. He alleges that she made representations that the County would pay him to get him to provide services. Moxley says this allegation is, at most, an allegation that Moxley expressed an inaccurate opinion. But it is not alleged as a statement of opinion, but a statement of fact – the County would pay Pallan. Moxley claims that the cause of action is defective because Pallan did not delete the words “both” and “County of Santa Barbara Welfare Department” from SACC ¶ 27, as ordered on May 17, 2013. Again, that was part of the subject of the sanctions motion for failure to follow the court’s earlier order. But the court ordered those words stricken because they were surplus and irrelevant. The words have no impact on the cause of action. Moxley claims that Pallan has failed to allege justifiable reliance because he could have determined that he was not eligible to be paid as a care giver. “[T]he contention that publicly available information cannot form the basis for a concealment claim is mistaken. The mere fact that information exists somewhere in the public domain is by no means conclusive.” Vega v. Jones, Day, Reavis & Pogue, 121 Cal.App.4th 282, 295 (2004). “As a general rule negligence of the plaintiff is no defense to an intentional tort. [Citation] The fact that an investigation would have revealed the falsity of the misrepresentation will not alone bar his recovery [citation], and it is well established that he is not held to constructive notice of a public record which would reveal the true facts. [Citation]” Seeger v. Odell, 18 Cal.2d 409, 414-415 (1941). Moxley claims that Pallan has not alleged damage because he would not have been eligible for County payments. But that appears to be Pallan’s point about the failure to disclose the requirements for payment. He alleges that he would not have rendered the services had he known the truth. Pallan has stated facts sufficient to constitute a cause of action for fraud. The court will overrule the demurrer to the third cause of action. 4. Extortion: Pallan alleges that “Moxley and DeLeo would join in two other gentlemen in an attempt to extort money from [Pallan].” These two were Nafal and Stein. [SACC ¶¶ 38, 39] These men came to move Moxley’s possessions from her room. [SACC ¶ 40] Nafal told Pallan he had observed building code violations and made the accusations in such a way as to cause Pallan fear that he would report them to the Building Department. [SACC ¶ 44] Nafal stated that he and Stein were part of a network of Santa Barbara businessmen who could operate outside the jurisdiction of the court system to “get things done.” This was a veiled threat that Pallan could be physically harmed by vigilante action. [SACC ¶ 45] Stein cheered and made animated gestures as Nafal made his threats. [SACC ¶ 46] Moxley is not alleged to have directly engaged in the extortion. Pallan relies on a conspiracy theory to hold her liable. There are three elements of a claim for civil conspiracy: “(1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct.” Kidron v. Movie Acquisition Corp., 40 Cal.App.4th 1571, 1581 (1995). “‘The sine qua non of a conspiratorial agreement is the knowledge on the part of the alleged conspirators of its unlawful objective and their intent to aid in achieving that objective.’” Id. at 1582 [citations omitted]. “While knowledge and intent ‘may be inferred from the nature of the acts done, the relation of the parties, the interest of the alleged conspirators, and other circumstances’ [citation], ‘[c] onspiracies cannot be established by suspicions. There must be some evidence. Mere association does not make a conspiracy. There must be evidence of some participation or interest in the commission of the offense.’ [Citation].” Id. Pallan alleges: Moxley, Stein and Nafal appeared to have caucused prior to coming to Pallan’s residence and had a well scripted plan to extort money from Pallan. [SACC ¶ 46] Moxley filed a false complaint with the building department and appeared at Pallan’s residence with Nafal and a building inspector, who found no violations. [SACC ¶ 47] Moxley “had the scienter and knowledge of wrongdoing” in the extortion. [SACC ¶ 50] “Moxley was the person with the scienter of the execution of the extortionate plan which was performed by [Stein and Nafal].” [SACC ¶ 51] Moxley told Stein and Nafal that she was looking for reprisals against Pallan. She carefully selected Nafal because of his reputation as a “thug.” Stein was selected for his legal expertise and both men were selected to intimidate Pallan. [SACC¶ 54] Pallan has alleged the formation of the plan and Moxley’s selection of her alleged co- conspirators. He has alleged wrongful conduct in furtherance of the conspiracy and damages. The court overrules the demurrer to the fourth cause of action. Motion to Strike: Moxley moves to strike portions of the SACC. Pallan has not filed an opposition to the motion to strike. Moxley moves to strike the second cause of action. The motion is moot in this regard as the court has again sustained the demurrer to the second cause of action without leave to amend. Moxley again asks the court to strike the words “both” and “and the County of Santa Barbara Welfare Department” from SACC ¶ 27, 8:22-23. This language is irrelevant and, pursuant to CCP § 436(a), the court orders it stricken, without leave to amend. Moxley moves to strike the claims for punitive damages on the same grounds as her demurrers to the fraud and extortion causes of action. For the same reasons the court has overruled the demurrers to those causes of action, the court denies the motion to strike these claims. Moxley moves to strike prayer #8 – that Moxley and Stein be ordered to file an answer to the SACC, “which incorporates all causes of action” of the original cross-complaint and FACC, within 10 days. This is improper for at least two reasons. The Code of Civil Procedure and court rules govern pleadings and the prayer in the complaint is unnecessary. Further, the reference to incorporation of the two earlier pleadings may be an attempt to incorporate causes of action not stated in the SACC. The SACC must stand alone, without reference to prior pleadings. The court will strike this language from the SACC. Tentative Ruling: 1) The court sustains cross-defendant Regina Moxley’s demurrer to the second cause of action in cross-complainant Sant Ram Pallan’s second amended cross-complaint, without leave to amend, and overrules the demurrer to the first, third and fourth causes of action. 2) The court grants, in part, cross-defendant Regina Moxley’s motion to strike portions of cross-complainant Sant Ram Pallan’s second amended cross-complaint and orders stricken from the complaint the words “both” and “and the County of Santa Barbara Welfare Department” from ¶ 27 [SACC 8:22-23] and prayer #8 [SACC 18:11-14], without leave to amend.