Case Name: Drew Moxon, et al. v. Alana Pague, et al.
Case No.: 17CV312553

I. Introduction

Drew Moxon (“Moxon”) and his girlfriend Cynthia Than (“Than”) commenced this action against defendants Alana Pague (“Alana”), Moxon’s ex-girlfriend, Ana Pague (“Ana”), Alana’s mother, and several doe defendants identified by Twitter handle, including “Doe 1 aka @Desimarcello1.” (Compl. at p. 1:20.) Gloria Romero has now been substituted for Doe 1. (Doe Am. at p. 2:4–9.) The parties had a private, offline, domestic dispute that devolved into an online dispute over Twitter. Moxon and Than (collectively, “Plaintiffs”) assert causes of action against Alana, Ana, and Gloria Romero (collectively, “Defendants”) for: (1) defamation (against all defendants); (2) invasion of privacy (against all defendants); (3) violation of the Tom Bane Civil Rights Act (against Alana); (4) civil extortion (against Alana and Ana); (5) unauthorized computer access (against Alana); and (6) intentional infliction of emotional distress (against all defendants). Currently before the Court is Plaintiffs’ motion for summary judgment. Defendants oppose the motion, and Gloria Romero belatedly filed a request for judicial notice in support of her opposition.

II. Legal Standard

A plaintiff may move for summary judgment on the ground there is no defense to the action. (Code Civ. Proc., § 437c, subd. (a)(1).) The moving plaintiff bears the initial burden of showing there is no defense to the action. (Code Civ. Proc., § 437c, subd. (p)(1).) To do so, the plaintiff must present “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken” to “prove[ ] each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subds. (b)(1), (p)(1).) “Once the plaintiff [ ] has met that burden, the burden shifts to the defendant [ ] to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).) “The defendant [ ] shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).) Ultimately, “the motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

III. Request for Judicial Notice

After Plaintiffs filed their original and amended reply, Ms. Romero filed a request for judicial notice in support of her opposition. Ms. Romero requests judicial notice pursuant to Evidence Code section 452, subdivision (h), which authorizes judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” “These include, for example, facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter.” (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.) But Ms. Romero does not seek judicial notice of such facts.

Ms. Romero’s request is apparently directed to an order denying Mr. Moxon’s request for a restraining order against Alana Pague (which is not clearly identified or attached to her request) and a minute order from a hearing before the Honorable Carol Overton (which is attached). A court may take judicial notice of court records. (Evid. Code, § 452, subd. (d).) But in doing so, a court does not take judicial notice of the truth of statements or findings in the records; rather, it takes judicial notice of the fact that the records say what they say. (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1608, fn. 3; accord Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) To illustrate, while a court may subsequently “take judicial notice that [another] judge did in fact make that particular finding in favor of A, the taking of judicial notice that the judge made a particular factual finding is a far cry from the taking of judicial notice that the ‘facts’ found by the judge must necessarily be the true facts, i.e. must necessarily be ‘the truth.’” (Sosinsky, supra, 6 Cal.App.4th at p. 1565, original italics.) “To state this a bit more simply, the taking of judicial notice that the judge believed A (i.e. that the judge ruled in favor of A on a particular factual dispute) is different from the taking of judicial notice that A’s testimony must necessarily have been true simply because the judge believed A and not B.” (Ibid.) Here, Ms. Romero does not appear to be requesting judicial notice of the fact that a ruling was made or the fact of the proceedings. Rather, she seems to ask the Court to accept as true and rely on underlying factual findings. This is improper.

Based on the foregoing, Ms. Romero’s request for judicial notice is DENIED.

IV. Merits of Motion

In Plaintiffs’ memorandum of points and authorities, they present the following argument

Plaintiffs are entitled to summary judgment regarding liability on all claims in the Complaint. Plaintiffs have established all elements of their defamation per se cause of action against Ana Pague, Alana Pague, and Gloria Romero, and that as a matter of law there are no defenses. Plaintiffs are also entitled to summary judgment regarding the causes of action of invasion of privacy, violation of the Bane Act, civil extortion, unauthorized access to computer intrusion, and intentional infliction of emotional distress, because there is no triable issue as to any material fact.
(Mem. of Pts. & Auth. at p. 6:3–10.)

It is insufficient to simply assert a point or conclusion without providing any legal authority or analysis in support. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282; Cal. Rules of Court, rule 3.1113(b); see also Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–85.) Plaintiffs fail to provide a legally-substantiated discussion of the essential elements of their claims to show how the evidence they present establishes those elements. The court has “no obligation to undertake its own search of the record ‘backwards and forwards to try to figure out how the law applies to the facts’ of the case. [Citation.]” (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934; see also Varshock v. Cal. Dept. of Forestry and Fire Protection (2011) 194 Cal.App.4th 635, 652–53.) The fact that Plaintiffs are representing themselves does not excuse them from explaining how the undisputed facts and the law entitled them to summary judgment. (See Kobayashi v. Super. Ct. (2009) 175 Cal.App.4th 536, 543.) Consequently, their conclusory presentation is insufficient to show there is no defense to the action.

To be sure, Plaintiffs’ separate statement does not cure this deficiency. The Court acknowledges evidentiary sanctions have been imposed. Nevertheless, Plaintiffs do not demonstrate and it is not otherwise obvious that the evidence they present and facts established by the evidentiary sanctions completely and accurately correspond with the essential elements of their claims. Thus, while they present a separate statement, they fail to provide an accompanying explanation and legal support to bridge the gap between the evidence and its legal significance. The points advanced in their reply and amended reply do not fill this gap.

In conclusion, Plaintiffs do not carry their initial burden of showing there is no defense to the action. It follows that it is unnecessary to consider whether Defendants raise a triable issue of material fact in opposition. Plaintiffs’ motion is DENIED.