Case Name: Amir Safakish v. Sanford Kingsley

Case No.: 19CV345944

Factual and Procedural Background

This lawsuit arises from alleged misrepresentations and promissory fraud during a mediation. Plaintiff Amir Safakish (“Plaintiff”), who is self-represented, alleges that Defendant Sanford Kingsley (“Defendant”) made false representations to him in his role as a mediator facilitating a settlement agreement in a prior lawsuit brought by Plaintiff against several individuals and a homeowners’ association, Safakish v. Vanni, et al., case no. 16CV294900. A motion to enforce the mediated settlement agreement in that lawsuit was granted by the Court (Hon. Arand) on April 5, 2019. A judgment was entered in that case on April 8, 2019, which Plaintiff has appealed.

Plaintiff’s original complaint in this action was filed on April 11, 2019 and stated three causes of action against Defendant and various Doe defendants: (1) Intentional Misrepresentation; (2) Negligent Misrepresentation and (3) Promissory Fraud. All three causes of action are based on the allegation that Defendant falsely and/or negligently told Plaintiff during the mediation that he had 72 hours to back out of the settlement agreement Plaintiff subsequently signed. Defendant filed a demurer to and motion to strike the Complaint, asserting in pertinent part that all claims against him were barred by the quasi-judicial immunity applicable to mediators. The demurrer and motion were heard by the Court (Hon. Pierce) on October 15, 2019. At that hearing, the Court sustained the demurrer with 30 days leave to amend and ordered the motion to strike off calendar without prejudice based on the ruling on the demurrer.

The Court’s formal order on the demurrer issued November 13, 2019 noted that Plaintiff’s late filed opposition had failed to “deal with the quasi-judicial privilege issue,” and also included the following language: “Plaintiff is reminded that when a demurrer is sustained with leave to amend, the leave must be construed as permission to the pleader to amend the causes of action to which the demurrer has been sustained, not add entirely new causes of action. To rise claims entirely unrelated to those originally alleged requires either a new lawsuit or a noticed motion for leave to amend. Absent prior leave of court an amended complaint raising entirely new and different causes of action may be subject to a motion to strike.” (Nov. 13, 2019 Order at p. 2:1-7, internal citations omitted.)

Plaintiff’s First Amended Complaint (“FAC”) filed November 14, 2019 added nine new causes of action without leave of court. Currently before the Court is Defendant’s demurrer to and motion to strike the FAC, which are opposed by Plaintiff. The Court’s prior order admonished Plaintiff “to file papers with the court in a timely manner, or risk them not being considered at all.” (Nov. 13, 2019 Order at p. 1:23-24.) Any timely opposition to the current demurrer and motion to strike had to be filed by no later than February 21, 2020. The Court notes that Plaintiff did file a timely opposition by that date, and that opposition has been considered. However, Plaintiff also filed additional documents after that date. Those additional documents filed after February 21, 2019 are untimely and have not been considered by the Court.

Discussion

The FAC’s fourth through twelfth causes of action were added without leave of Court. Once a demurrer to his original complaint was ruled on, Plaintiff could only amend as permitted by the Court, and the Court only granted leave to amend the three causes of action already alleged and expressly warned Plaintiff that any added claims could be subject to a motion to strike.

Code of Civil Procedure (“CCP”) §436 specifically authorizes a court to strike all or part of a pleading not filed in conformity with a court order on its own motion. (See Lodi v. Lodi (1985) 173 Cal.App.3d 628, 631; Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 573 [trial court properly “cancelled,” i.e., struck amended complaint “on its own motion because no court order or stipulation of the parties permitted” complaint to be filed].) Accordingly the Court on its own motion strikes the fourth (violation of Rule of Court 3.853), fifth (violation of Rule 3.855), sixth (“Coersion” [sic], based on an alleged violation of Rule of Court 3.853), seventh (“impartiality 3.855 & 3.853 Coersion” [sic]), eighth (“undue influenc purjery” [sic], based on the alleged violations of rules of court), ninth (violation of Rule 3.857), tenth (violation of Rule 3.857(f)), eleventh (“perjury conspiracy,” based the alleged rule violations), and twelfth (“undue influence 4th degree felony”) causes of action from the FAC as they were all added without leave of court as required in the Court’s order on the prior demurrer.

Leave to amend the fourth through twelfth cause of action is DENIED for three reasons.

First, as stated above, the fourth through twelfth cause of action were filed without the required leave of court.

Second and more fundamentally, any attempt to amend these claims would be futile as alleged violations of the California rules of court do not give rise to private causes of action both as a general matter and specifically in the context of the rules applicable to mediators, found in article 2 of chapter 3 (General Rules relating to Mediation of Civil Cases) of the Civil Rules of Court. To illustrate this point the Court on its own motion takes judicial notice, pursuant to Evidence Code §452(e), of Rule of Court 3.850, the first rule of article 2, the rules of conduct for mediators. Rule of Court 3.850(b) (“Scope and limitations”) states: “These rules are not intended to: (1) Establish a ceiling on what is considered good practice in mediation or discourage efforts by courts, mediators, or others to educate mediators about best practices; (2) Create a basis for challenging a settlement agreement reached in connection with mediation; or (3) Create a basis for a civil cause of action against a mediator.” Rule of Court 3.850 thus makes clear that the rules in article 2 cannot be used in the way Plaintiff is attempting to use them in the FAC.

Third, because the civil rules of court generally and the rules in article 2 of chapter 3 referring to mediators specifically do not support civil causes of action, Plaintiff also cannot assert claims such as conspiracy based on purported violations of those rules, so leave to amend those claims is also properly denied. “Conspiracy is not an independent tort; it cannot create a duty or abrogate an immunity. It allows tort recovery only against a party who already owes the duty and is not immune from liability based on applicable substantive tort law principles.” (Applied Equipment Corp. v. Litton Saudi Arabia, Ltd. (1994) 7 Cal.4th 503, 514.) Here, the rules of court do not create a basis for a civil action against a mediator such as Defendant and, as discussed below, Defendant while acting in his capacity as a mediator, is also “immune for liability based on applicable substantive tort principles.”

I. Defendant’s Demurrer to the FAC
II.

In ruling on a demurrer the Court accepts as true a pleading’s allegations of material fact, but not its legal conclusions. “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.) Where a demurrer is to an amended complaint, the Court “may consider the factual allegations of prior complaints, which a plaintiff may not discard or avoid by making contradictory averments, in a superseding, amended pleading.” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034 [internal quotations omitted].)

In ruling on a demurrer or a motion to strike the Court may not consider extrinsic evidence, including declarations. (See Smiley v. Citibank (South Dakota) N.A. (1995) 11 Cal.4th 138, 146 [“[T]he trial court generally confines itself to the complaint and accepts as true all material facts alleged therein… [and] may extend its consideration to matters that are subject to judicial notice.”]) Accordingly, except to the extent they describe Defendant’s required meet and confer efforts, the Court has not considered the contents of either declaration submitted by Defense Counsel Charles Hellstrom. The Court has also not considered the contents of the declaration of Plaintiff submitted with his timely opposition.

A. Request for Judicial Notice

“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evidence Code §450.) A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.)

Among the timely opposition papers filed by Plaintiff is a request for judicial notice of three documents (attached as exhibits A-C) submitted in opposition to both the demurrer and motion to strike. Plaintiff asserts that all three documents can be noticed pursuant to Evidence Code §452(d) (court records). Defendant has submitted “objections” to the request with his reply. There is no statutory authority for such objections, but the Court will consider the request to be opposed by Defendant.

Notice of exhibit A, a copy of a memorandum decision of the U.S. Bankruptcy Court for the Northern District of California (Hon. Hammond) is DENIED. Plaintiff specifically requests that this Court take notice “of Hon. Judge Hammond analysis in rejection of mediation agreement.” (Request at p. 1:19-20.) This is not an appropriate request for judicial notice. Decisions of other state superior courts or federal district courts can be noticed as to their existence and legal effect (which here was to deny Plaintiff’s motion to reject the settlement agreement and to grant a motion to dismiss Plaintiff’s bankruptcy case as having been brought in bad faith) but they cannot be noticed as to the supposed correctness of their analysis on any particular point of law. (See Bolanos v. Superior Court (2008) 169 Cal.App.4th 744, 761 [a written trial court ruling has no precedential value]; In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 409 [there is no “horizontal stare decisis”].)

Exhibit B to Plaintiff’s request consists of copies of Cal. Rules of Court 3.853, 3.854, 3.855 and 3.857. Judicial notice of these rules is DENIED as they are irrelevant to the material issue before the Court: whether the three causes of action Plaintiff was given leave to amend, as now alleged in the FAC, state sufficient facts to support a claim against Defendant. As explained above, even if it is assumed that these rules were violated, no private civil cause of action exists to address such violations and the Court has now struck Plaintiff’s attempt to add such claims (the fourth through twelfth causes of action) from the FAC on its own authority as added in violation of the Court’s prior demurrer order.

Exhibit C to Plaintiff’s request is a copy of a brief filed by Plaintiff as part of his appeal of the judgment in case no. 16CV294900. Plaintiff wishes the Court to take notice of an argument made in that brief. This request is DENIED. Court records other than court orders or judgments cannot be noticed as to the truth of their contents. Judicial notice thus cannot be used a method for incorporating arguments made by a party in other motions or briefs. Plaintiff’s brief filed with the Court of Appeal could only be noticed as to its existence and filing date, which are not relevant to the material issue before the Court.

B. Analysis of Defendant’s Demurrer

Defendant’s demurrer to the three causes of action Plaintiff was given leave to amend (Intentional Misrepresentation, Negligent Misrepresentation and Promissory Fraud) and to the entire FAC on the ground that it “fails to state sufficient facts to constitute a cause of action under any theory, as the facts alleged show that Plaintiff’s entire [FAC], and each cause of action therein, is premised upon an alleged statement by Defendant that is absolutely privileged under the principles of quasi-judicial immunity.” (See Demurrer at pp. 2:28-3:3, brackets added.)

“The existence of a privilege is an affirmative defense that may be raised by demurrer only if the facts alleged in the complaint demonstrate the existence of a privilege.” (Redfearn v. Trader Joe’s Co. (2018) 20 Cal.App.5th 989, 1007, citations omitted but citing among others Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420 [“[a]lthough privilege is typically asserted as an affirmative defense, it may be raised by general demurrer where the existence of the privilege appears”].) As the FAC and all of the causes of action stated in it (including those already struck as added in violation of the Court’s prior order) are based on alleged statements and/or conduct by Defendant while serving as a mediator in case no. 16CV294900, the allegations of the FAC itself demonstrate the existence of the privilege provided by the quasi-judicial immunity which applies to Defendant while he is operating as a mediator.

By way of background judicial immunity bars civil actions against judges for acts performed during their judicial functions. (See Howard v. Drapkin (1990) 222 Cal.App.3d 843, 896-897 (Howard), citing Turpen v. Booth (1880) 56 Cal. 65, 68.) Quasi-judicial immunity is an extension of judicial immunity that provides persons who act in a judicial or quasi-judicial capacity the same absolute immunity against civil liability. (Howard, supra, 222 Cal.App.3d at pp. 852-853.) It is well-settled under California law that quasi-judicial immunity applies to claims brought against private mediators and arbitrators based on their provision of dispute resolution services. (See Howard, supra, 222 Cal.App.3d at p. 860 [“absolute quasi-judicial immunity is properly extended to neutral third parties for their conduct in performing dispute resolution services which are connected to the judicial process and involve either (1) the making of binding decisions, (2) the making of findings or recommendations to the court or (3) the arbitration, mediation, conciliation, evaluation or other similar resolution of pending disputes”]. Court’s emphasis.) The Court of Appeal in Howard upheld the trial court’s decision to sustain a demurrer without leave to amend. It is also well-settled under California law that, because the immunity is absolute, the “immunity applies even where the acts alleged are malicious or corrupt.” (La Serena Properties, LLC v. Weisbach (2010) 186 Cal.App.4th 893, 907, citing Howard in holding quasi-judicial immunity applicable to a private arbitrator who allegedly failed to disclose a conflict of interest, and upholding trial court’s decision to sustain demurrer without leave to amend.)

Defendant’s demurrer to the entire FAC on the basis that it fails to state sufficient facts to support a claim because quasi-judicial immunity provides Defendant a complete defense is SUSTAINED. It is clear that, even when the FAC’s allegations that Defendant intentionally made misrepresentations to Plaintiff and/or otherwise misled Plaintiff are accepted as true on demurrer, Defendant has no liability to Plaintiff as quasi-judicial immunity applies to him in his role as mediator and provides a complete defense to any claims Plaintiff has alleged or could allege arising from the mediation in case no. 16CV294900.

Further leave to amend is DENIED. Where the facts are not in dispute but no liability exists under substantive law it is appropriate for a court sustaining a demurrer to deny leave to amend. (See Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 535, disapproved on other grounds in Yvanona v. New Century Mortg. Corp. (2016) 62 Cal.4th 919.) Here, the quasi-judicial immunity applicable to Defendant while acting as a mediator establishes that he can have no liability to Plaintiff for any acts or omissions committed during the mediation session that led to the settlement agreement in case vo. 16CV294900. Also, Plaintiff bears the burden of demonstrating that an amendment could cure the defect identified on demurrer. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) That burden has not been met as, for the second time, Plaintiff’s opposition to the demurrer fails to address the issue of quasi-judicial immunity or explain how the pleading could be amended to state any recognized legal claim against Defendant based on Defendant’s alleged conduct as a mediator that would not be barred by that quasi-judicial immunity.