Case Name: Manishkumar Ankola v. Priyanka Ankola
Case No.: 17-CV-319410

Currently before the Court are the demurrer and motion to strike by defendant Priyanka Ankola (“Defendant”).

Factual and Procedural Background

This is an action for assault and battery, negligence, defamation, malicious prosecution, and intentional infliction of emotional distress (“IIED”).

Defendant and plaintiff Manishkumar Ankola (“Plaintiff”) met in August 2013, and began a romantic relationship in the following months. (First Amended Complaint (“FAC”), ¶¶ 6-10.) During their relationship, Defendant allegedly knew she was a carrier of Hepatitis B. (Id. at ¶¶ 10-11 and 49-51.) Defendant “intentionally initiated unprotected sex with [Plaintiff]” and “did not disclose her condition as a carrier of a sexually transmitted disease to [Plaintiff].” (Ibid.)

After Plaintiff proposed marriage to Defendant in November 2013, Defendant disclosed her medical condition to Plaintiff. (FAC, ¶¶ 13-15 and 54.)

Some time prior to their marriage, Defendant allegedly told Plaintiff that “she loved him and wanted to spend the rest of her life married to him.” (FAC, ¶ 82.) Plaintiff alleges that “[t]he true facts were that [Defendant] only wanted to get help getting a green card, never loved him, never really wanted to become his wife, and never intended to remain married after she obtained a green card.” (Id. at ¶ 83.) Defendant allegedly “concealed her true intentions” from Plaintiff and “made the foregoing misrepresentations and omissions … to induce [Plaintiff] to help her enter the U.S. and obtain a green card from the U.S. government so she could permanently reside and work in the U.S.” (Id. at ¶¶ 83-84.)

The parties eventually married in June 2014. (FAC, ¶ 17.)

During the course of their marriage, the parties’ relationship deteriorated and Defendant moved out of the family home. (FAC, ¶¶ 19-25.) “After November 20, 2015,” Defendant “intentionally struck [Defendant] and tried to run him down with her car.” (Id. at ¶¶ 32-33 and 44.) Thereafter, Defendant allegedly made numerous defamatory statements about Plaintiff to multiple individuals, including Defendant’s family members, friends, and law enforcement. (Id. at ¶¶ 67-79.)

In or about December of 2015, Plaintiff “filed a Petition in Family Court (Santa Clara County Case No. 15-FL-173072) to have his marriage with [Defendant] declared a nullity.” (FAC, ¶ 29.) “By this time [Plaintiff] was convinced that [Defendant] had married him just to get a green card and had never loved him.” (Ibid.)
On December 30, 2016, Defendant allegedly telephoned the police and complained that Plaintiff was violating a domestic violence prevention order restraining Plaintiff from being near Defendant. (FAC, ¶ 91.) Defendant also told the responding police officer that Plaintiff “raped her and otherwise physically abused her, causing [Defendant] fear that he might have to stand trial in criminal court against these serious accusations.” (Ibid.) Defendant’s complaint to the police was allegedly made without probable cause and with malice in order to vex, harass, and harm Plaintiff. (Id. at ¶¶ 92-93.) The “police determined that there was in fact no restraining order and released [Plaintiff] without charging him with any crime, but not until after he had been detained and questioned and treated like a criminal by a uniformed police officer and feared he could be charged with serious crimes.” (Id. at ¶ 94.)

Based on the foregoing allegations, Plaintiff filed a complaint against Defendant on November 20, 2017. Subsequently, Plaintiff filed the operative FAC, alleging causes of action for: (1) assault and battery; (2) sexual battery; (3) negligence; (4) defamation; (5) deceit; (6) malicious prosecution; and (7) IIED.

On May 14, 2018, Defendant filed the instant demurrer and motion to strike. Thereafter, Defendant filed a supplemental memorandum of points and authorities in support of her demurrer and motion to strike on August 29, 2018. Plaintiff filed an opposition to the demurrer on September 7, 2018. On September 13, 2018, Defendant filed a reply in support of her demurrer.

Discussion

I. Request for Judicial Notice

Defendant asks the Court to take judicial notice of the following court records: a DV-109 Notice of Court Hearing; a DV-110 Temporary Restraining Order; a DV-100 Request for Domestic Violence Restraining Order filed on February 22, 2017; and a DV-130 Restraining Order After Hearing filed on August 15, 2017.

These documents are generally proper subjects of judicial notice under Evidence Code section 452, subdivision (d). That statute states that courts may take judicial notice of “[r]ecords of any court of this state.” (Evid. Code, § 452, subd. (d).) That provision permits the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455.) Consequently, Court will only take judicial notice of the existence of the subject documents and the truth of the results reached in any court order. The Court will not take judicial notice of the truth of hearsay statements in those documents.

Accordingly, Defendant’s request for judicial notice is GRANTED as to the existence of the subject documents and the truth of the results reached in any court order.

II. Procedural Issue

As a preliminary matter, the Court declines to consider Defendant’s supplemental memorandum of points and authorities.

Moving papers must be filed and served 16 court days before the noticed hearing date. (Code Civ. Proc., § 1005, subd. (b).) Thus, with a hearing date of September 20, 2018, timely service on Plaintiff via mail would have been no later than August 28, 2018. Here, Defendant filed and served her supplemental memorandum of points and authorities one-day late on August 29, 2018.

The Court has discretion to refuse to consider a late-filed paper such as Defendant’s supplemental memorandum of points and authorities. (Cal. Rules of Ct., rule 3.1300(d).) Here, Plaintiff appears to have been prejudiced by the late service as his opposition does not address the additional arguments raised in Defendant’s supplemental memorandum of points and authorities. Therefore, the Court, in its discretion, refuses to consider Defendant’s supplemental memorandum of points and authorities.

III. Demurrer

Defendant demurs to each and every cause of action of the FAC on the ground of failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).) In addition, Defendant demurs to the first, fourth, and seventh causes of action on the ground of uncertainty. (See Code Civ. Proc., § 430.10, subd. (f).) Lastly, Defendant also demurs to the fifth cause of action on the ground of another action pending between the same parties on the same cause of action. (See Code Civ. Proc., § 430.10, subd. (c).)

A. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see also Code Civ. Proc., § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the [ ] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. [ ] Thus, [ ] the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.)

B. First Cause of Action

With respect to the first cause of action for assault and battery, Defendant initially argues that the claim is uncertain. Defendant points out that the first cause of action alleges that she struck Plaintiff and tried to run him down with her car after November 20, 2015. Defendant asserts that this allegation appears to refer to two separate incidents. Defendant points out that the general allegations of the complaint state that she struck Plaintiff on July 23, 2014, and she tried to run Plaintiff down with her car in April 2016. Based on the foregoing, Defendant contends that it is “unclear and uncertain as to what incidents are being alleged[ ] and on what dates they occurred … .” (D’s Mem. Ps. & As., p. 4:3-6.)

Defendant further argues that the first cause of action, to the extent it is predicated on the “allegation that [she] intentionally struck [Plaintiff],” is time-barred by the statute of limitations “because this incident is alleged to have occurred on July 23, 2014.” (D’s Mem. Ps. & As., p.)

Defendant’s arguments are not well-taken. First, “demurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Reg. Authority (2012) 208 Cal.App.4th 1125, 1135; Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616 [“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”].) While the FAC is not a model of clarity, it is clear from Defendant’s arguments that she understands what the first cause of action at least attempts to allege and that there is no true uncertainty. Specifically, Defendant acknowledges that the first cause of action, as pleaded, appears to be based on two incidents that occurred in approximately July 2014 and April 2016. Thus, the allegations adequately apprise Defendant of the nature of the claim alleged against her. Furthermore, to the extent that the specific dates of the incidents is unclear from the pleading, that ambiguity can be clarified during discovery.

Second, Defendant’s statute of limitations argument only address part of the first cause of action. Defendant asserts that the claim is time-bared to the extent it is based on the July 23, 2014 incident. But the claim is also predicated on Defendant’s alleged attempt to strike Plaintiff with her car, which allegedly occurred in April 2016. (See FAC, ¶¶ 32-33 and 44.) As Defendant’s argument does not address this second incident, it fails to dispose of the first cause of action in its entirety and the demurrer cannot be sustained on this basis. (See PHII, Inc. v. Super. Ct. (1995) 33 Cal.App.4th 1680, 1682 (PHII) [a demurrer does not lie to only a portion of a claim].)

Accordingly, the demurrer to the first cause of action is OVERRULED.

C. Second and Third Causes of Action

Defendant argues that the second cause of action for sexual battery and the third cause of action for negligence are time-barred by the statute of limitations. Defendant contends that both claims are governed by the two-year statute of limitations set forth in Code of Civil Procedure section 335.1. Defendant further contends that the claims accrued at the time the alleged sexual battery occurred, i.e., between October and November 2013. Defendant concludes that the claims are barred by the statute of limitations because the claims accrued more than two years prior to the filing of the complaint. Defendant also acknowledges that the FAC alleges the statute of limitations was equitably tolled until December 26, 2015, the parties’ date of separation. Defendant takes issue with the allegations of equitable tolling because Plaintiff “did not provide legal support for [the allegation that the statute of limitations was equitably tolled until the date of the parties’ separation] other than to cite Addison v. State of California (1978) 21 Cal.3d 3 l 3,” which Defendant asserts is distinguishable from this case. (D’s Mem. Ps. & As., pp. 4:24-5:2.)

In opposition, Plaintiff appears to concede that the claims accrued in 2013, and are governed by the two-year statute of limitations set forth in Code of Civil Procedure section 335.1. Plaintiff argues only that “the doctrines of equitable tolling and/or equitable estoppel … should be applied during the time that Defendant held herself out to Plaintiff as his legitimate wife with whom he intended to live peacefully as a family.” (Opp’n., p. 3:19-22.)

Upon review of the FAC, it is apparent that Plaintiff has not alleged sufficient facts to warrant application of the doctrines of equitable estoppel or equitable tolling.

With respect to the doctrine of equitable estoppel, the focus is “on the actions of the defendant” and it “looks to the defendant’s representations or other conduct that prevents the plaintiff from suing before the statute of limitations has run. When the [trial court] is satisfied that this has occurred, the defendant will be estopped from pleading a statute of limitations defense.” (Sagehorn v. Engle (2006) 141 Cal.App.4th 452, 460-61.) To establish a basis for equitable estoppel, a plaintiff must plead each of the following elements: (1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had the right to believe that it was so intended; (3) the party asserting the estoppel must be ignorant of the true facts; and (4) he must rely upon the conduct to his injury. (Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th 1260, 1268.) Here, Plaintiff expressly alleges that he was informed of the true facts regarding Plaintiff’s medical condition after he proposed in November 2013. (FAC, ¶¶ 13-15 and 54.) Because Plaintiff fails to, and cannot, allege that he was ignorant of the true facts, he fails to plead facts warranting the application of the doctrine of equitable estoppel.

Next, “[e]quitable tolling ‘halts the running of the limitations period so long as the plaintiff uses reasonable care and diligence in attempting to learn the facts that would disclose the defendant’s fraud or other misconduct.’ [Citation] The doctrine ‘focuses primarily on the plaintiff’s excusable ignorance of the limitations period. [Citation.] [It] is not available to avoid the consequences of one’s own negligence.’ [Citation.] ‘To establish that equitable tolling applies, a plaintiff must prove the following elements: fraudulent conduct by the defendant resulting in concealment of the operative facts, failure of the plaintiff to discover the operative facts that are the basis of its cause of action within the limitations period, and due diligence by the plaintiff until discovery of those facts. [Citations.]’ [Citation.]” (Sagehorn v. Engle (2006) 141 Cal.App.4th 452, 460–61, italics omitted.) Here, Plaintiff fails to, and cannot, allege that he failed to discover the operative facts that form the basis of his causes of action because he expressly alleges that he was informed of the true facts regarding Plaintiff’s medical condition after he proposed in November 2013. (FAC, ¶¶ 13-15 and 54.) Thus, he fails to plead facts warranting application of the doctrine of equitable tolling.

Accordingly, the demurrer to the second and third causes of action is SUSTAINED, with 10 days’ leave to amend. (See City of Stockton v. Super. Ct. (2007) 42 Cal.4th 730, 747 (City of Stockton) [if the plaintiff has not had an opportunity to amend the complaint in response to a motion challenging the sufficiency of the allegations, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment].)

D. Fourth Cause of Action

Defendant argues that the Court should sustain his demurrer to the fourth cause of action for defamation because: the defamatory statement set forth in paragraph 67 of the FAC constitutes a privileged communication under Civil Code section 47, subdivision (b); the defamatory statements set forth in paragraphs 69-76 of the FAC are time-barred by the one-year statute of limitations set forth in Code of Civil Procedure section 340, subdivision (c); and the allegations in paragraph 76 of the FAC are uncertain.

Defendant’s arguments are not well-taken because they only address part of the fourth cause of action. First, Defendant does not address the alleged defamatory statements set forth in paragraph 68 of the FAC or demonstrate that those allegations are insufficient to state a claim. Second, Defendant merely asserts that the allegations set forth in paragraph 76 regarding specific defamatory statements are uncertain. Defendant does not contend that the allegations regarding other defamatory statements are uncertain or that the claim as a whole is rendered incomprehensible as a result of the uncertainty in paragraph 76. Because Defendant’s arguments do not address the claim in its entirety, the demurrer to the fourth cause of action cannot be sustained. (See PHII, supra, 33 Cal.App.4th at p. 1682 [a demurrer does not lie to only a portion of a claim].)

Accordingly, the demurrer to the fourth cause of action is OVERRULED.

E. Fifth Cause of Action

Defendant initially argues that the fifth cause of action for deceit is time-barred by the three-year statute of limitations set forth in Code of Civil Procedure section 338. Defendant points out that the cause of action is based on alleged misrepresentations made prior to the parties’ marriage in June 2014, which allegedly induced Plaintiff to enter into the marriage. Defendant asserts that the claim is time-barred by the statute of limitations because the parties’ marriage took place more than three years prior to the filing of the complaint. Defendant further argues that the demurrer should also be sustained on the ground that another action is pending because Plaintiff already filed a petition in family court for nullity of the marriage on grounds of fraud.

Defendant’s arguments are not well-taken. First, regarding the statute of limitations, Defendant does not adequately address the issue of accrual and Defendant fails to show that the claim is time-barred. With respect to the issue of accrual, Defendant simply states that the alleged misrepresentations that form the basis of the fifth cause of action were made prior to June 2014. However, under Code of Civil Procedure section 338, subdivision (d), a cause of action for fraud accrues once the aggrieved party discovers the facts constituting the fraud. (Britton v. Girardi (2015) 235 Cal.App.4th 721, 734; E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1318.) Here, the FAC alleges that Plaintiff did not discover the alleged fraud until December 2015. (FAC, ¶¶ 29, 88.) Defendant does not argue, or otherwise show, that Plaintiff’s allegations regarding delayed discovery are inadequate. Thus, Defendant has not established that the fifth cause of action is barred by the applicable statute of limitations.

Second, Defendant fails to demonstrate that there is another action pending between the same parties on the same cause of action. A demurrer on the ground that there is another action pending between the same parties on the same cause of action is not judicially favored. (Conservatorship of Pacheco (1990) 224 Cal.App.3d 171, 176.) “A demurrer raising this objection to a second action between the same parties ‘is strictly limited so that . . . the defendant must show that the parties, cause of action, and issues are identical, and that the same evidence would support the judgment in each case.’ ” (Pitts v. City of Sacramento (2006) 138 Cal App 4th 853, 856, italics omitted.) In support of this ground for demurrer, Defendant merely cites the allegation in the FAC that Plaintiff “filed a Petition in Family Court (Santa Clara County Case No. 15-FL-173072) to have his marriage with [Defendant] declared a nullity” in December of 2015. (FAC, ¶ 29.) This allegation does not demonstrate that the family law case asserts the same cause of action for fraud as the FAC such that judgment in the family law case would be a complete bar to the fifth cause of action.

For these reasons, the demurrer to the fifth cause of action is OVERRULED.

F. Sixth Cause of Action

Defendant argues that the sixth cause of action for malicious prosecution fails because there are no facts showing that she pursued an action against Plaintiff that was terminated in Plaintiff’s favor.

Defendant’s argument is well-taken. “ ‘ “Malicious prosecution is a disfavored action. [Citations.] This is due to the principles that favor open access to the courts for the redress of grievances.” ’ [Citation.] ‘[T]he elements of the [malicious prosecution] tort have historically been carefully circumscribed so that litigants with potentially valid claims will not be deterred from bringing their claims to court by the prospect of a subsequent malicious prosecution claim.’ [Citation.] Three elements must be pleaded and proved to establish the tort of malicious prosecution: (1) [an action] was ‘ “ ‘commenced by or at the direction of the defendant [which] was pursued to a legal termination in … plaintiff’s [ ] favor’ ” ’; (2) the prior lawsuit ‘ “ ‘was brought without probable cause’ ” ’; and (3) the prior [action] ‘ “ ‘was initiated with malice.’ ” ’ [Citation.]” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 216.)

The sixth cause of action is based on allegations that Defendant telephoned the police on December 30, 2016, complaining that Plaintiff was violating a domestic violence prevention order and Plaintiff raped and physically abused Defendant. (FAC, ¶ 91.) Plaintiff expressly alleges that he was only detained and questioned by police as a result of Defendant’s complaint; he was not charged with any crime. (Id. at ¶ 94.) Plaintiff does not cite any legal authority, and the Court is aware of none, providing that temporary detainment and questioning constitutes the commencement of an “action” or “proceeding” as required to state a claim for malicious prosecution. (See Van Audenhove v. Perry (2017) 11 Cal.App.5th 915, 920 [an arrest is not a proceeding for purposes of a claim for malicious prosecution].)

Accordingly, the demurrer to the sixth cause of action is SUSTAINED, with 10 days’ leave to amend. (See City of Stockton, supra, 42 Cal.4th at p. 747 [if the plaintiff has not had an opportunity to amend the complaint in response to a motion challenging the sufficiency of the allegations, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment].)

G. Seventh Cause of Action

Defendant argues that the seventh cause of action for IIED fails to state a claim because: the claim is time-barred by the applicable statute of limitations to the extent it is based on the conduct alleged in paragraph 98 of the FAC; the allegation of wrongful conduct in paragraph 99 of the FAC is uncertain and does not constitute extreme and outrageous conduct; the conduct described in paragraphs 100-101 does not constitute extreme and outrageous conduct; and the conduct alleged in paragraph 101 is privileged under Evidence Code section 1014.

Defendant’s arguments fail to dispose of the seventh cause of action in its entirety. The claim is based, in part, on the allegation in paragraph 99 of the FAC that Defendant drove her car at Plaintiff, Defendant struck Plaintiff, and Defendant knew that her conduct would cause Plaintiff emotional distress. (FAC, ¶¶ 32-33, 44, and 99.) As Defendant acknowledges in her papers, this allegation addresses two incidents that occurred in approximately July 2014 and April 2016. Thus, the allegation is not uncertain as it adequately apprises Defendant of the nature of the claim alleged against her. Furthermore, driving a car at another person in an attempt to run the person over is conduct that may reasonably be regarded as extreme conduct sufficient to support a claim of IIED. (See Trerice v. Blue Cross of Cal. (1989) 209 Cal.App.3d 878, 883 [“Conduct, to be ‘outrageous,’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. While the outrageousness of a defendant’s conduct normally presents an issue of fact to be determined by the trier of fact, the court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.”], internal citations omitted.) Thus, the allegation set forth in paragraph 99 is sufficient to support the IIED claim and the demurrer fails to dispose of the cause of action as a whole. (See PHII, supra, 33 Cal.App.4th at p. 1682 [a demurrer does not lie to only a portion of a claim].)

Accordingly, the demurrer to the seventh cause of action is OVERRULED.

IV. Motion to Strike

Defendant moves to strike various portions of the FAC pursuant to Code of Civil Procedure section 436.

Plaintiff did not file an opposition to Defendant’s motion to strike and, therefore, impliedly concedes the merit of Defendant’s motion.

Accordingly, Defendant’s motion to strike is GRANTED, with 10 days’ leave to amend. (See City of Stockton, supra, 42 Cal.4th at p. 747 [if the plaintiff has not had an opportunity to amend the complaint in response to a motion challenging the sufficiency of the allegations, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment].)