Case Number: BC667349 Hearing Date: September 09, 2019 Dept: 37

HEARING DATE: September 3, 2019

CASE NUMBER: BC667349

CASE NAME: Anthony A. Patel v. Patrick Decarolis, et al.

TRIAL DATE: October 22, 2109

PROOF OF SERVICE: OK

DEFENDANT SUMEET BHATIA’S DEMURRER TO THE THIRD AMENDED COMPLAINT

MOVING PARTY: Defendant Sumeet Bhatia

OPPOSING PARTY: Plaintiff Anthony A. Patel

MOTION: Filed June 11, 2019

OPPOSITION: Filed August 20, 2019

REPLY: Filed August 26, 2019

TENTATIVE: The demurrer to the first, third, fourth, fifth, and sixth cause of action in the third amended complaint is SUSTAINED. Counsel for Defendant to give notice.

Background

Plaintiff Anthony A. Patel (“Plaintiff”) and Defendant Sonya Bhatia (“Bhatia”) were married in October 2006. Patel filed for dissolution of the marriage in Los Angeles County in or about July 2013. The judge who presided over the divorce matter was the Honorable Randall Pacheco (“Pacheco”). This action arises out of allegations that Defendants engaged in a conspiracy to deprive Patel of equal custody and equal parenting time of Patel and Bhatia’s minor children.

Patel sued Bhatia in California state court in a separate matter in June 2014. That civil action was settled in or about October 2015. Patel additionally sued Pacheco in federal court in or about September 2014, alleging violation of Patel’s civil rights and for discrimination. The federal court case has since been dismissed.

The third amended complaint (“TAC”) alleges causes of action for: (1) violation of civil rights; (2) assault and battery; (3) infliction of emotional distress; (4) privacy violations; (5) custody & parent interference; and (6) defamation.

Defendant Sumeet Bhatia (“Defendant”) now demurs to the first, third, fourth, fifth, and sixth cause of action alleged in the TAC on the grounds that (1) the causes of action fail to state facts sufficient to constitute a cause of action against Defendant; (2) Plaintiff’s first cause of action for violation of civil rights was already brought against Defendant in a separate lawsuit; (3) this court lacks jurisdiction over the subject of the causes of action; and (4) the causes of action are uncertain. Plaintiff opposes the demurrer.

Meet and Confer Requirements

Before filing a demurrer, 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).) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. (Id. § 430.41 subd. (a)(1).) The demurring party shall file and serve with the demurrer a declaration stating either of the following:

(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.

(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.

(Id. § 430.41 subds. (a)(3)(A)-(B).)

In support of the demurrer, Defendant submits the Declaration of David Dworsky. (“Dworsky Decl.”). The Dworsky Declaration states that on May 31, 2019, Dworsky emailed Plaintiff to schedule a meet and confer teleconference to address the issues raised in Defendant’s demurrer (Dworsky Decl. ¶ 3) and on June 5, 2019, the parties conducted the meet and confer teleconference. (Id. ¶ 4.) The Dworsky Declaration further states that during the teleconference Dworsky outlined the arguments that Defendant raises in this demurrer, but despite the parties’ best efforts, they were unable to resolve any of the relevant issues. (Id. ¶ ¶ 5-6.) The Dworsky Declaration is sufficient to satisfy the meet and confer requirements set forth in section 430.41 of the California Code of Civil Procedure.
Request for Judicial Notice

When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading. (Code Civ. Proc. § 430.30.) When the ground of demurrer is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, such matter shall be specified in the demurrer, or in the supporting points and authorities for the purpose of invoking such notice, except as the court may otherwise permit. (Id. § 430.70.)

Defendant requests that this court take judicial notice of the following documents:

Response and Request for Dissolution filed by Sonya Bhatia Patel in Los Angeles Superior Court Case No. BD585163 on July 25, 2013.

Complaint for Damages filed by Plaintiff Anthony Patel Los Angeles Superior Court Case No.BC548778 on June 13, 2014.

Notice of Dismissal of Sonya Bhatia Patel filed by Plaintiff Anthony Patel Los Angeles Superior Court Case No. BC548778.

Complaint for Damages and Other Relief filed by Anthony Patel in the United States District Court for the Central District of California, Case No. CV 1407372, on September 19, 2014.

Complaint for Damages filed by Plaintiff Anthony Patel in Los Angeles Superior Court Case No. 18TRCV00090, on November 13, 2018.

Complaint for Damages filed by Plaintiff Anthony Patel in the United States District Court for the Central District of California, Case No. 2:19-cv-00080, on January 4, 2019.

Amended Court Order granting Motion to Dismiss filed by Parul Bhatia and Sumeet Bhatia in Case No. 2:19-cv-00080, on June 4, 2019.

The request for judicial notice is GRANTED. The existence and legal effect of these documents are judicially noticeable; reasonably disputable assertions of fact contained therein are not. (Evid. Code, § 452, subds. (d).)

Discussion
I. Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th 740, 747 (Hahn).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550 (Doe).) 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 (Berkley).) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

“All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Lickiss, ibid., citing Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 (Poizner).) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
II. Analysis

Defendant Sumeet Bhatia demurs to the first cause of action for violation of civil rights, the third cause of action for infliction of emotional distress, the fourth cause of action for privacy violations, the fifth cause of action for custody and parent interference, and the sixth cause of action for defamation. (Dem. at pp. 1-2.) Defendant argues that each of the causes of action listed above fail to state sufficient facts to constitute a cause of action against Defendant and that each of the causes of action are uncertain. (Ibid.) Defendant also argues that the causes of action fail because the court has no jurisdiction over the subject of Plaintiff’s claim and that the first cause of action fails because Plaintiff has asserted the same cause of action against Defendant in a separate lawsuit. (Ibid.)

In opposition, Plaintiff argues that all of the various demurrer issues raised by Defendant were already adjudicated with respect to his co-defendant Sonya Bhatia. (Opp. to Dem. at p. 2.) Plaintiff further argues that “[t]he Demurrer fails for the same reasons that Sonya Bhatia’s demurrer already failed in this case . . . [and] re-litigating past demurrer issues is totally improper. [Defendant’s] entire Demurrer retraces the same frivolous arguments that were already made by Ms. Bhatia . . . and previously rejected by this court.” (Opp. to Dem. at p. 3.)

Here, the only allegations in the TAC that specifically reference Defendant Sumeet Bhatia are stated in paragraph 8, paragraph 9, and paragraph 22. Paragraph 8 simply identifies Defendant as an individual who maintains a place of business or residence in Los Angeles County and paragraph 22 merely alleges that Sonya “grew up in New York and fled with Raksha and Sumeet to live in California . . .” (TAC ¶¶ 8, 22.) Additionally, paragraph 9 states “[t]he named parties Sonya, Akshai, Amit, Divya, Raksha and Sumeet are together and collectively referred to herein as “Bhatia” in this Complaint.” (TAC ¶ 9.)

In the demurrer, Defendant sets forth the elements for each cause of actions at issue in this demurrer and establishes that each cause of action fail as a matter of law because the TAC fails to allege conduct by Defendant Sumeet Bhatia that would satisfy the requisite elements. (Dem. at pp. 5-9.) Furthermore, Defendant contends that the allegation defining “Bhatia” in paragraph 9 renders the entire TAC uncertain. (Id. at p. 13.) Specifically, Defendant argues that despite including this allegation, “the use of “Bhatia” throughout the TAC is clearly in reference to Sonya Bhatia” and no use of the name “Bhatia” in the TAC includes references to any conduct by Sumeet, Sonya, Akshai, Amit, Divya, or Raksha. (Ibid.) In support of this argument, Defendant cites to the following allegations in the TAC:

” … Bhatia herself did not have a father, however, she claims to be an authority (supported by Pacheco) on the role of fathers for children.” (TAC, ¶ 32).

“Bhatia’s egregious conduct has included, without limitation, the following since January 1, 2016: — she has made vile and degrading threats against Patel…” (see remainder and entirety of paragraph) (TAC, ¶ 36).

“Bhatia became particularly incensed when the family court issued the divorce on January 19, 19 201 7 and Patel made a comment to her after court that “it looks like the time for fairy tales is over” and “sadly reality begins at noon tomorrow …” (TAC, ¶ 47).

In opposition, Plaintiff neither addresses the sufficiency of the allegations in the TAC nor attempts to rebut Defendants uncertainty argument. (see Opp. to Dem.) Instead, Defendant relies on his arguments raised in his previously filed opposition to Sonya Bhatia’s demurrer to the First Amended Complaint (see Id. at pp. 2-3; see also Exh. A.) The arguments raised in opposition to Sonya Bhatia’s demurrer to the First Amended Complaint are irrelevant to Defendant Sumeet Bhatia’s instant demurrer to the TAC. Accordingly, Plaintiff fails to rebut Defendant’s contentions that the allegations in the TAC are insufficient to constitute a cause of action against Defendant and that the entire TAC is uncertain.

As demonstrated in Defendant’s demurrer, the allegations in the TAC fail to state sufficient facts to constitute a cause of action for violation of Plaintiff’s civil rights, intentional infliction of emotional distress, privacy violations, custody and parent interference, and defamation because the TAC is void of any allegations of wrongdoing on behalf of Defendant Sumeet Bhatia. In addition, whether Plaintiff’s use of “Bhatia” in the TAC references conduct by Sonya Bhatia individually or conduct by Sumeet, Sonya, Akshai, Amit, Divya, or Raksha collectively is uncertain. As such, the TAC is unclear as to which of the claims are being asserted against Defendant Sumeet Bhatia. As this is sufficient grounds to sustain the demurrer the remaining arguments need not be addressed at this time. Accordingly, the demurrer to the first, third, fourth, fifth, and sixth cause of action is SUSTAINED.

First Cause of Action

Under the first cause of action, the TAC asserts claims for violation of civil rights under both 42 U.S.C. §§ 1983-1985 and the Unruh Civil Rights Act. (Civ. Code, § 15.)

To plead a claim under U.S.C. § 1983, a plaintiff must show (1) that defendants violated his federal civil rights and (2) that they acted under color of state law. (See West v. Atkins (1988) 487 U.S. 42, 48.) Here, the TAC fails to allege a cause of action under U.S.C. § 1983 because the TAC does not allege that Defendant acted under color of state law.

Additionally, to state a claim under U.S.C. § 1985, a plaintiff must show: (1) a conspiracy; (2) an act in furtherance of the conspiracy; (3) an intent to deprive any person of the equal protection of, or equal privileges and immunities under, the law; and ( 4) a resulting injury to a legal right or privilege. (See Great American Federal Savings & Loan Assoc. v. Novotny (1979) 442 U.S. 366, 373.) Here, the TAC also fails to allege that Defendant Sumeet Bhatia formed a conspiracy, committed an act in furtherance of a conspiracy, or had the requisite intent. Plaintiff’s claim under U.S.C. § 1985 fails as a matter of law.

Lastly, the essential factual elements of a cause of action for the violation of the Unruh Civil Rights Act are: (1) defendant denied, aided or incited a denial of, discriminated or made a distinction that denied full and equal accommodations, advantages, facilities, privileges, or services to plaintiff; (2) that a motivating reason for defendant’s conduct was its perception of plaintiffs sex, race, color, religion, ancestry, national origin, disability, medical condition, or other actionable characteristic; (3) that plaintiff was harmed; and ( 4) that defendant’s conduct was a substantial factor in causing plaintiffs harm. (See Belton v. Comcast Cable Holdings, LLC (2007) 151 Cal. App. 4th 1224, 123 8.) Here, the TAC also fails to sufficiently allege a violation of the Unruh Civil Right Act because the TAC does not allege that Defendant discriminated against Plaintiff

Third Cause of Action

The elements of a cause of action for intentional infliction of emotional distress include: (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 plaintiffs suffering severe or extreme emotional distress; and ( 4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 12 1268, 1289.) Here, the third cause of action for intentional infliction of emotional distress fails as a matter of law because the TAC does not allege any “outrageous conduct” by Defendant Sumeet Bhatia.

Fourth Cause of Action

The TAC does not allege any actions by Defendant to violate Plaintiff’s right to privacy..

Fifth Cause of Action

The TAC does not allege any actions by Defendant to interfere with his custody time. Any such matter should be brought in the Family Law court.

Sixth Cause of Action

The elements of any defamation claim are: (1) intentional publication of a statement of fact (2) that is false, (3) unprivileged, ( 4) has a natural tendency to injure or which causes special damage. (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 27.) Here, the sixth cause of action for defamation also fails as a matter of law because the TAC does not allege any intentional publication of a statement of fact that is false.