2018-00237816-CU-CL

Arthur Scott Dockter vs. Jessica Lynne Langshaw

Nature of Proceeding: Hearing on Demurrer to First Amended Complaint

Filed By: Hansen, Bernard M.

** If any party requests oral argument, then at the time the request is made, the requesting party shall inform the court and opposing counsel of the specific issue(s) on which oral argument is sought. **

The demurrer of Defendant Isabella Garcia dba Alliance Financial, also sued as Jessica Lynn Langshaw, (Langshaw) is SUSTAINED in part and OVERRULED in part.

Langshaw’s request for judicial notice of court documents is GRANTED.

Overview

This case follows entry of a money judgment against plaintiff herein Arthur Scott Dockter (Dockter) in 1998. In his first amended complaint (FAC), Dockter alleges that the judgment creditor in the underlying case sold its rights as judgment creditor to “Alliance Financial.” He alleges that Langshaw purported to renew the judgment and made numerous demands for payment on the judgment. He further alleges, however, that Co-Defendant Carmen Torres (Torres) subsequently informed him that the renewed judgment belonged to Torres dba Alliance Financial, that Langshaw was a former Alliance Financial employee, and that Langshaw had misappropriated the renewal of judgment belonging to Torres. A process server allegedly informed Dockter that Langshaw forged the proof of service associated with the renewal of judgment.

Dockter’s FAC contains causes of action against Langshaw for fraud, negligent misrepresentation and declaratory relief. Langshaw, who refers to herself as “Garcia,” demurs to each of these causes of action on the ground that the allegations fail to state a valid cause of action. Dockter opposes the demurrer.

The court sustained Langshaw’s demurrer to the original complaint. Leave to amend was granted.

Discussion

The First and Second Causes of Action for Fraud and Negligent Misrepresentation

The demurrers are SUSTAINED without leave to amend.

To support the first and second causes of action, Dockter alleges that Langshaw falsely served him with a Notice of Renewal of Judgment and Application for the same. (See FAC, 25.) The court sustained Langshaw’s demurrer to the subject causes of action, as alleged in the original complaint, on the ground that the representations Langshaw made to Dockter were within the absolute litigation privilege in CC § 47(b). Although Dockter now alleges that Langshaw “was not and is not a party to the [underlying] litigation,” (FAC, ¶ 51), the court abides by its earlier conclusion that the litigation privilege in § 47(b) bars the causes of action based on misrepresentations.

As Dockter notes, litigation-related statements made by strangers to the litigation are not privileged. (See Wise v. Thrifty Payless, Inc. (App. 3 Dist. 2000) 83 Cal.App.4th 1296, 1304; LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 345.) Here, however, Dockter effectively concedes that Langshaw was made a party to the litigation, albeit by alleged deception. Exhibit 2 to the FAC is an Acknowledgment of Assignment of Judgment that Langshaw filed in Solano County Superior Court in October 2016. This document is the original judgment creditor’s acknowledgment that “Isabella Garcia, dba Alliance Financial” is the assignee entitled to “recover, compromise, settle and enforce” the judgment. Notwithstanding Dockter’s conclusory allegations to the contrary, it is beyond dispute that Langshaw was made a participant in the litigation. (Cf. Kashian v. Harriman (2002) 98 Cal.App.4th 892 [meritless lawsuits files on behalf of sham plaintiffs were within the privilege].)

But even if the first and second causes of action were not within the litigation privilege, the allegations would still be defective. To state intentional or negligent misrepresentation, a plaintiff must specifically allege resulting damage, i.e., damage flowing from the plaintiff’s reliance on the truth of the defendant’s statements. Here, however, there are no allegations that Dockter made any payments on the judgment based on Langshaw’s representations that she was the new judgment creditor. Instead, Dockter alleges that he has incurred costs “in attempting to clarify the true ownership of the” judgment.” (FAC, ¶¶ 49, 56.) Because such costs cannot be construed to have been incurred in reliance in the truth of Langshaw’s statements, they do not support the first or second causes of action.

The Third Cause of Action for Declaratory Relief

The demurrer is OVERRULED.

By the third cause of action, Dockter seeks a judicial declaration of the parties’ rights and duties in relation to the judgment against him. The court sustained Langshaw’s demurrer to this cause of action in the original complaint on the ground that the dispute was between Langshaw and Torres, not between either of these defendants and Dockter. The court now reconsiders that rationale and overrules the demurrer.

Dockter’s allegations establish his uncertainty about the party to whom he must direct payment on the judgment. Notwithstanding the potential availability of other remedies, such as a judgment in interpleader, the court is satisfied that declaratory relief is an appropriate means to settle the competing claims facing Dockter.

Disposition

The demurrers to the first and second causes of action are sustained without leave to amend.

The demurrer to the third cause of action is overruled.

Langshaw shall file and serve her answer to the third cause of action no later than 3/11/19.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or further notice is required.