Case Number: 18LBCV00006 Hearing Date: March 07, 2019 Dept: S27

DEMURRER

INTRODUCTION

Defendants State Bar of California and its employees Edward McIntyre, Kelly Gerner, Agustin Hernandez, Erika Hiramatsu, and Leah Wilson demur to every cause of action in the complaint of Plaintiff David Elias, acting in propria persona:

1. Negligence

2. Negligence Per Se

3. “Unruh Act

4. Libel

5. Breach of Contract

6. Fraud

7. Specific Performance

8. Petition to Disbar

9. Declaratory Relief

10. “Restraint on Trade

11. Breach of Contract

12. Unruh Act

13. 42 USC 1983

14. Unclear what theory if any, this is.

15. Unfair Business Practices

16. Injunctive Relief

17. Conversion

18. Negligent Hiring

19. Misappropriation of Likeness

20. IIED AND NIED

21. “Oppression”

22. Civil Rico.

ALLEGATIONS

This is not a well-pled complaint in that is disregards many of the fundamental rules. CCP §425.10:

“(a) A complaint or cross-complaint shall contain both of the following:

(1) A statement of the facts constituting the cause of action, in ordinary and concise language.

(2) A demand for judgment for the relief to which the pleader claims to be entitled. If the recovery of money or damages is demanded, the amount demanded shall be stated.”

The rambling complaint, far from containing ordinary and concise language, runs over 60 pages not counting the evidentiary material appended as exhibits. The court agrees with the moving parties that the complaint borders on unintelligible. The complaint is filled with legal citation and argument. Plaintiff should be aware that the complaint should not include contentions, deductions or conclusions of law, case quotes or discussions of case law.

What can be ascertained is that Plaintiff was enrolled as a law student at Co-Defendant Pacific Coast University School of Law (“PCU”). He was eventually disqualified academically. He has a myriad of issues including:

1. He was required to take a course in real property but later learned he was exempt. The Dean allegedly concealed this fact fraudulently.

2. PCU discriminated against him because he is a “dark skinned Hispanic, a Christian, and a Male.”

3. After Plaintiff suffered a heart attack he was not accommodated.

4. “Professor Olson failed Plaintiff for personal vindictive reasons.”

5. His grades were unreasonably and improperly withheld, and he had not been informed he could challenge the grades.

There are more allegations of misconduct by PCU, its employees, the Long Beach Police Department, and the City Attorney’s Office.

As to the State Bar and its employees, it appears that Plaintiff alleges PCU was the Bar’s agent and ratified its wrongful conduct. Plaintiff also alleges the State Bar failed to protect him from “known criminals” and “obvious mental patients.” These are not facts, and invective is entirely inappropriate. It also appears that Plaintiff alleges an insufficient investigation into his complaints.

DISCUSSION

No viable cause of action is stated against the State Bar and its employees for many reasons. Not all of the causes of action are charged against these Defendants, but those which are require facts establishing agency and a duty owed to Plaintiff.

There are no facts supporting these legal conclusions. “Agency” is not established without facts such as employer/employee relationships, express agency agreements, broker/client relationships. The State Bar accredits law schools, but that doesn’t make the schools its agents any more than a driver’s license makes the driver an agent of the DMV. There are no facts of ratification. Failure to satisfy Plaintiff’s complaints about the school is not ratification as a matter of law.

In sum, despite the myriad of facts none establish agency or duty. The allegations of statutes and regulations supporting negligence per se, which is technically an evidentiary presumption and not a cause of action (See Evidence Code §669), do not satisfy the element of the presumption. General statements of policy – i.e. protection of the public, is insufficient.

The Bar, a government agency is immune from charges of fraud (Gov’t Code §818). Its employees are immune under gov’t Code §822.2:

“A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.”

No claim is stated for violation of 18 USC 1983 et seq. because a government entity is not a “person” within the statutory meaning.

“Plaintiff’s First Amended Complaint fails to state a claim upon which relief can be granted against defendant State Bar because it is an agency or instrumentality in the judicial branch of government of the State of California, functioning as an administrative arm of the Supreme Court of California in matters relating to the admission, discipline, and reinstatement of attorneys; and defendant HN1 State Bar therefore is not a ‘person’ amenable to suit within the purview of 42 U.S.C. § 1983. Clark v. State of Washington, 366 F.2d 678, 681 (9th Cir. 1966).” (Silverton v. Department of Treasury (C.D.Cal. 1978) 449 F.Supp. 1004, 1006.) Likewise, a state official acting in an official capacity are not subject to liability.

Defendants are correct that this court lacks subject matter over attorney discipline. This court cannot disbar anyone, no matter the cause. It cannot suspend or discipline attorneys for professional misconduct.

There is no conduct by the moving defendants which rise to the level of extreme or outrageous.

There are no allegations establishing a contract between Plaintiff and the moving defendants.

The allegations do not establish racketeering activity by these defendants for purposes of “RICO.”

These are illustrative points and not exhaustive. The court concludes that no cause of action is properly stated against the moving defendants. Unless Plaintiff can offer specific facts for a viable amendment, the court will sustain the demurrer in its entirety without leave to amend.

MOTIONS TO QUASH

The pro per Plaintiff was a
law student at Pacific Coast University. Andrea Lua is the Dean. He alleges he
was wrongfully removed from the program and sues multiple entities including
the State Bar of California and the City of Long Beach.

Maren Carmona, whose motion
was set for 2/14, filed a notice that no opposition had been received.
Plaintiff filed the opposition one day before the hearing and it will be
discussed below. I briefly address each motion:

SONIA GOMEZ
– She is the Executive Director of PCU and declares she has not been personally
served nor received a copy of the summons and complaint by mail. Both the
original complaint and the FAC were served by handing them to Sherry Diamond,
PCU’s Dean of Academics – the original service was on 10/12/18 and the FAC was
on 10/26/18. Plaintiff mailed an unconformed copy of the FAC on 10/26.

A. Gomez was never personally
served.

B. Purported substitute
service was improper. CCP §415.20(b):

“If a copy of the summons and complaint cannot with reasonable diligence
be personally delivered to the person to be served, as specified in Section
416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of
the summons and complaint at the person’s dwelling house, usual place of abode,
usual place of business, or usual mailing address other than a United States
Postal Service post office box, in the presence of a competent member of the
household or a person apparently in charge of his or her office, place of
business, or usual mailing address other than a United States Postal Service
post office box, at least 18 years of age, who shall be informed of the
contents thereof, and by thereafter mailing a copy of the summons and of the
complaint by first-class mail, postage prepaid to the person to be served at
the place where a copy of the summons and complaint were left. Service of a
summons in this manner is deemed complete on the 10th day after the mailing.”

No reasonable effort was made
to personally serve Gomez. When and if substitute service is made, the POS must
include a statement of diligence listing the efforts for personal service. None
is present.

But even if there was diligence
(but not declared) substitute service must be at either residence, usual place
of business or usual mailing address. This was merely delivery to Dean Diamond
without subsequent mailing to Defendant.

“When a defendant challenges
the court’s personal jurisdiction on the ground of improper service of process
‘the burden is on the plaintiff to prove the existence of jurisdiction by
proving, inter alia, the facts requisite to an effective service.’”

(Summers v. McClanahan
(2006) 140 Cal.App.4th 403, 413.)

Sherry Diamond –
She was formerly Dean of PCU. She declares she was handed a summons and an
unconfirmed copy of the FAC on 10/26/18. That same day she received an e-mail
copy of the unconformed FAC.

Her issue is that the summons
was defective. It is attached as Exhibit A. The defect is that the summons
lists PCU, Diamond and “et al.” There are over 20 defendants and none are
listed save PCU and Diamond. CCP §412.20:

“(a) Except as otherwise
required by statute, a summons shall be directed to the defendant, signed by
the clerk and issued under the seal of the court in which the action is
pending, and it shall contain:

(1) The title of the court in
which the action is pending.

(2) The names of the parties
to the action.

(3) A direction that the
defendant file with the court a written pleading in response to the complaint
within 30 days after summons is served on him or her.”

When there is no room to list
all parties, the Plaintiff must include the “additional party’s amendment.”

A summons is not effective
unless all statutory requirements are met. See Schering (1975) 737, 741.

ANDREA LUA –
She is Dean of PCU. She was also served by handing her summons and complaint to
Dean Diamond. The same argument pertains re: improper substitute service due to
failure to diligently attempt personal service.

TERESA BARRY
– She is Assistant Registrar of PCU. Same arguments re: ineffective
sub-service. She was sub-served via Dean Diamond.

PACIFIC COAST UNIVERSITY – Andrea Lua, Dean of PCU, provides the supporting
declaration. She is the authorized agent for service of process of PCU. She was
not personally served on behalf of PCU and there is no diligence to support
substitute service.

PCU is a corporation. The methods
for serving corporations are set forth in CCP §416.10:

“A summons may be served on a
corporation by delivering a copy of the summons and the complaint by any of the
following methods:

(a) To the person designated
as agent for service of process as provided by any provision in Section 202,
1502, 2105, or 2107 of the Corporations Code (or Sections 3301 to 3303,
inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code, as in
effect on December 31, 1976, with respect to corporations to which they remain
applicable).

(b) To the president, chief
executive officer, or other head of the corporation, a vice president, a
secretary or assistant secretary, a treasurer or assistant treasurer, a
controller or chief financial officer, a general manager, or a person
authorized by the corporation to receive service of process.

(c) If the corporation is a
bank, to a cashier or assistant cashier or to a person specified in subdivision
(a) or (b).

(d) If authorized by any
provision in Section 1701, 1702, 2110, or 2111 of the Corporations Code (or
Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the
Corporations Code, as in effect on December 31, 1976, with respect to
corporations to which they remain applicable), as provided by that provision.”

According to the proof of
service, PCU was served on October 12, 2018 by handing the summons and
complaint to Sherry Allene Diamond, PCU’s Dean of Academics.

Ms. Diamond submits a
declaration stating she was not the president, chief executive officer, head
vice president, secretary, assistant secretary, treasurer or assistant
treasurer, controller or chief financial officer, or general manager of PCU.
She expressly avers she has never held any of these positions, and she is not
authorized to accept service on PCU’s behalf.

Andrea Lua, the Dean of PCU
and its authorized agent for service of process declares that on October 26,
2018 she received an e-mail from Plaintiff with an unconfirmed copy of the
complaint attached. She has never received a copy by way of first class mail.
Service by mail is a statutory requirement to perfect substituted service.

“On a motion to quash service
of summons, the plaintiff bears the burden of proving by a preponderance of the
evidence that all jurisdictional criteria are met. (Nobel Farms, Inc. v.
Pasero (2003) 106 Cal.App.4th 654, 657.)

MAREN GOMEZ
– This is the only one to which an opposition [untimely] was filed.

She is Dean of Students and
Registrar of PCU. She was not personally served nor mailed a copy of the
complaint. Same arguments as above.

OPPOSITION TO GOMEZ MOTION

Plaintiff makes the following
points in opposition:

1. He refers to this as a
“motion to squash.” He points out his health problems – 80% blockage in his
right carotid artery. His operation was continued to 2/26.

2. He thinks there is a
“possible mistake” – He mailed the summons and complaint with notice of
acknowledgment and receipt to six defendants and none returned the
acknowledgment. Gomez was NOT served in that manner and “may have been” served
by Sheriff’s deputies.

3. He objects to untimely
notice contending the notice was post-marked 2/6/19 and received 2/9/16. He is
incorrect – the POS reflects mail service on 11/20/18 (the same day the motion
was file stamped.)

4. Plaintiff also raises the
unclean hands doctrine. That is a defense to an action, not service of summons.
In any event, Elias is a Plaintiff, and not a defendant. Unclean hands has no
application to the present proceeding. His argument concerns the merits of the claim
against her.

TENTATIVE RULING

GRANT all of the motions for
the reasons offered. Illness does not excuse strict compliance with the rules
concerning a summons and service. The court has not acquired personal
jurisdiction and the issue is of Constitutional dimension.

Diamond was personally
served, but she is correct that the summons is technically defective. All
requirements for a summons and service are strictly construed.