Case Name: Raad Zuhair Rabieh v. Paragon Systems Inc., dba Parasys, Inc., et al.

Case No.: 18CV330894

Motion for Judgment on the Pleadings, to Abate the Action, or for Other Appropriate Relief

Factual and Procedural Background

This lawsuit arises out of the racial discrimination, assault, battery, and false imprisonment of plaintiff Raad Zuhair Rabieh (“Rabieh”), an American citizen of Middle Eastern descent. (Complaint, ¶1.) On April 12, 2016, plaintiff visited the Robert F. Peckham Federal Building located at 280 South 1st Street, San Jose to attend an appointment at the Social Security Administration Office. (Id.) On his way out of the building, plaintiff Rabieh accidentally exited an emergency exit door, which sounded an alarm. (Id.) One of the security guards, defendant Mario Ayala (“Ayala”)—an employee of defendant Paragon Systems, Inc., dba Parasys, Inc. (“Paragon”)—asked plaintiff Rabieh to re-enter the building and to wait while a second security guard took down his information. (Id.) As he waited for his personal information to be recorded, plaintiff Rabieh was insistently, aggressively and unjustifiably asked about his race and nationality by the second security guard, defendant Jose Leuterio (“Leuterio”), who didn’t appear to write this information down. (Id.) Moments prior to questioning plaintiff Rabieh about his race, defendant Leuterio had displayed his holstered gun and Taser to plaintiff, without any explanation or justification. (Id.)

Plaintiff waited approximately one hour and defendant Paragon’s employees refused to let plaintiff leave. (Complaint, ¶2.) Plaintiff asked to speak to a supervisor. (Id.) As plaintiff was taking down a supervisor’s telephone number, a third security guard—defendant Joseph Vegas (“Vegas”)—and defendants Leuterio and Ayala proceeded to physically batter and injure and handcuff plaintiff. (Id.) Defendant Vegas later falsely claimed to the San Jose Police Department that plaintiff was being physically combative and was detained because he refused to provide his identification. (Id.) However, plaintiff had complied with all instructions he received from the security guards, waited patiently for an hour while they claimed to process his information, and only asked about the wait and to speak to a supervisor. (Id.)

Plaintiff was singled out and intimidated because of his race, nationality, and national origin. (Complaint, ¶3.) Plaintiff was targeted and physically assaulted by the same security guards who identified plaintiff as Middle Eastern. (Id.) Defendants Leuterio and Vegas tightened plaintiff’s handcuffs into a “double-knot” after they physically assaulted plaintiff and plaintiff was already sitting handcuffed on a chair, injured and disoriented. (Id.) Defendants caused plaintiff Rabieh to receive a misdemeanor citation by making false representations to San Jose Police Department officers. (Id.)

On June 29, 2018, plaintiff Rabieh filed a complaint against defendants Paragon, Vegas, Leuterio, and Ayala asserting causes of action for:

(1) Violation of Civil Code section 51.7
(2) Violation of Civil Code section 43
(3) Violation of Civil Code section 52.1
(4) Assault and Battery
(5) False Imprisonment and False Arrest
(6) Negligent Infliction of Emotional Distress
(7) Negligent Hiring, Employment, Retention, and Supervision

On September 25, 2018, defendant Paragon filed an answer to plaintiff Rabieh’s complaint.

On April 9, 2019, defendant Paragon filed the motion now before the court, a motion for judgment on the pleadings, to abate the action, or for other appropriate relief.

I. Meet and confer.

“Before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.” (Code Civ. Proc., §439, subd. (a).)

In opposition, plaintiff Rabieh objects to defendant Paragon’s motion for judgment on the pleadings on the basis that defendant Paragon failed to meet and confer as required by Code of Civil Procedure section 439. In furtherance of judicial economy, the court will overlook defendant Paragon’s failure to comply with Code of Civil Procedure section 439 in this instance but hereby places defendant Paragon and its counsel on notice that they are required to comply with the Code of Civil Procedure in the future.

II. Defendant Paragon’s motion for judgment on the pleadings, to abate the action, or for other appropriate relief is DENIED.

“A motion for judgment on the pleadings is the functional equivalent of a general demurrer.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) A motion for judgment on the pleadings “may only be made on one of the following grounds: … If the moving party is a defendant, that either of the following conditions exist: (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint; (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.”

In moving for judgment on the pleadings, defendant Paragon has not identified either of these conditions as the basis for its motion. Instead, defendant Paragon’s stated grounds for this motion “is that plaintiff has unlawfully split his cause of action, in violation of the primary right doctrine, by filing three different Complaints, two in Federal Court and one in State Court, involving the same facts, legal theories, and parties.” (See page 1, line 27 to page 2, line 2 of the Notice of Motion and Motion for Judgment on the Pleadings, etc.)

In asking for abatement, defendant Paragon is essentially arguing or demurring on the ground that there is another action pending between the same parties on the same cause of action. (Code Civ. Proc. §430.10, subd. (c).) “A plea in abatement pursuant to section 430.10, subdivision (c), may be made by demurrer or answer when there is another action pending between the same parties on the same cause of action.” (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787.)

While this may be a basis for a demurrer, it is not one of the enumerated bases for a motion for judgment on the pleadings. Moreover, even if defendant Paragon timely demurred on this ground, this ground for demurrer does not lie where the other action is pending in a federal court or in a court of a sister state, as is the case here. (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶7:77.1, p. 7(I)-39 citing Gregg v. Superior Court (1987) 194 Cal.App.3d 134, 136—“such a plea in abatement ‘does not lie where the two actions are in courts of different states’ (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 1063, p. 477) or where one is in state court and the other in federal court. There, the principle of comity may call for a discretionary refusal of the court to entertain the second suit pending determination of the first-filed action.”)

a demurrer on the ground another action is pending is appropriate only where the other action is pending in this state; where it is pending in a foreign jurisdiction, the proper means of obtaining a stay is by motion, on which appropriate factual matter outside the pleadings may be submitted and considered. (Code Civ. Proc., § 430.10, subd. (c); Lord v. Garland, supra, 27 Cal.2d at p. 848.) A discretionary ruling on whether to stay must take into consideration matters outside the pleadings, such as the seriousness of the threat of multiple and vexatious litigation, the convenience of the parties, the status of the foreign action, and the competing interests of the two forums. (Engle v. Superior Court, supra, 140 Cal.App.2d at p. 83.)

(Leadford v. Leadford (1992) 6 Cal.App.4th 571, 575 (Leadford); see also Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶7:77.2, p. 7(I)-39 citing Code Civ. Proc., §§430.10, 418.10; et al.)

“When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.” (Code Civ. Proc., §410.30.) “Section 410.30 gives statutory recognition to the doctrine of forum non conveniens, which authorizes a court to decline to exercise its jurisdiction in appropriate instances on the ground that the plaintiff has unfairly or unreasonably invoked the jurisdiction of an inconvenient forum.” (Judicial Council Comment to Code Civ. Proc., §410.30.)

Even if this court were to consider the “other appropriate relief” being sought by defendant Paragon is a motion to stay or dismiss pursuant to Code of Civil Procedure section 410.30, defendant Paragon has not met his burden of proof or submitted any admissible evidence to warrant the relief sought. Defendant’s request for judicial notice is DENIED as the court does not find the requests to be necessary, helpful and/or relevant. (See Duarte v. Pacific Specialty Insurance Company (2017) 13 Cal.App.5th 45, 51, fn. 6—denying request where judicial notice is not necessary, helpful or relevant.)

Accordingly, defendant Paragon’s motion for judgment on the pleadings, to abate the action, or for other appropriate relief is DENIED.