MARGARET & STEVEN LEWIS v. ROBERT C. LEWIS, ET AL.
Case No.: 1-12-CV-216004
DATE: June 26, 2014
TIME: 9:00 a.m.
DEPT.: 3

As an initial matter the Court in ruling on a demurrer or motion to strike considers only the pleading under attack, any attached exhibits (part of the “face of the pleading”) and any facts or documents for which judicial notice is properly requested and may be granted. Any purported requests for judicial notice that do not comply with Rule of Court 3.1113(l) and 3.1306(c) are denied. Requests for judicial notice that were granted in conjunction with prior motions do not remain in effect in perpetuity; material must be resubmitted for judicial notice to be considered with these demurrers and motions to strike The Court cannot consider extrinsic evidence in ruling on a demurrer or motion to strike. Accordingly, the Court has not considered the declarations submitted by Plaintiffs Counsel Kathryn Diemer and Defense Counsel Terrence Kenney.

Special Motions to Strike
The joint request for judicial notice by Defendants Robert C. Lewis, Anni Working and Gary Vandeweghe is GRANTED solely as to the attached exhibits A-C pursuant to Evid. Code §452(d). Exhibit A is a copy of the prior Feb. 2, 2014 Order of the Court (Hon. McKenney) granting (among other things) these defendants’ prior special motions to strike. Exhibit B is a copy of a supplemental declaration by Plaintiff Counsel Kathryn Diemer in opposition to the prior special motion to strike by Defendant Lewis. Exhibit C is a copy of the prior Sept. 16, 2013 Order of the Court (Hon. McKenney) on Defendant Vandeweghe’s special motion to strike, demurrer and regular motion to strike. Only the court orders are noticed as to the truth of their contents; notice is not taken of the contents of the prior Diemer declaration or its attached exhibit.

The Special Motion to Strike the 1st and 3rd causes of action in the SAC and the purported Amendment by Defendant Robert C. Lewis, unopposed by Plaintiffs, is GRANTED.

The Special Motion to Strike the 3rd cause of action in the SAC and purported amendment (the sole claim alleged against her) by Defendant Anni Working, unopposed by Plaintiffs, is GRANTED.

Defendants Lewis and Working are entitled to recover their reasonable attorneys fees and costs incurred in filing both these special motions to strike and their previous special motions to strike granted by the Court (Hon. McKenney) in its February 2, 2014 Order pursuant to CCP §425.16(c). Once again neither defendant has submitted any declaration of other evidence establishing what those fees and costs are. Accordingly, their requests for attorneys’ fees and costs incurred in bringing the present special motions to strike are denied without prejudice to both Defendants bringing a motion for such fees and costs supported by evidence.

Demurrers to the SAC and “Amendment”

Lewis Demurrer: Given the above rulings on the Special Motions to Strike, the Demurrer to the SAC by Defendant Lewis, unopposed by Plaintiffs, is MOOT as to the 1st cause of action (Negligence) and 3rd cause of action (Interference with Prospective Economic Advantage) as alleged against Defendant Lewis in the SAC and the purported “Amendment to The Third Cause of Action.” The Lewis demurrer is SUSTAINED with 10 days’ leave to amend as to the 4th (Interpleader) and 5th causes of action (Declaratory Relief) in the SAC and purported “Amendment” as alleged against Defendant Lewis.

Plaintiffs are directed to file a single Third Amended Complaint as the filing of the “Amendment to the Third Cause of Action” was not authorized by the Court’s Feb. 2, 2014 Order and having the operative pleading exist in more than one document causes unnecessary confusion. Any such Third Amended Complaint shall comply with the Court’s orders and remove Defendants Lewis and Working from the 1st and 3rd causes of action that have now been struck as alleged against them for the second time. Further noncompliance with Court orders may result in the Court striking all or portions of Plaintiffs’ operative pleading (such as further “amendments” filed as separate documents) on its own motion pursuant to CCP §436.

Vandeweghe Demurrer: Defendant Vandeweghe’s request for judicial notice solely in support of his own demurrer (“Request for Judicial Notice #3”) is considered only as to the attached exhibits provided (A-G). See Rule of Court 3.1113(l) and 3.1306(c). Furthermore, a precondition to judicial notice in either it’s 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. None of the broad categories that Vandeweghe seeks notice of are relevant to the narrow arguments made in his demurrer.

Notice of Exhibits A, B and G is GRANTED pursuant to Evid. Code §452(d), but only Ex. G is noticed as to its contents. Notice of Ex. C is DENIED. Documents which memorialize private acts do not become official acts just because they are filed with government agencies. See People v. Thacker (1985) 175 Cal App 3d 594, 598-599 (copies of articles of incorporation, statement by domestic corporation, and notice of issuance of shares were materials prepared by private persons, merely on file with state agencies, and not official acts); Stevens v. Superior Court (1999) 75 Cal App 4th 594, 607-608 (applications and supporting documents filed by private parties with Dept. of Insurance were not official acts of department subject to judicial notice). Notice of Exhibits D and F are DENIED. They are simply copies of internet search results and as Ex. D itself states “[t]he data provided is not a complete or certified record of an entity.” See Searles Valley Minerals Operations, Inc. v. State Bd. of Equalization (2008) 160 Cal App 4th 514, 519 (refusing to take notice of web site pages of the American Coal Foundation and the U.S. Dept. of Energy); Duronslet v. Kamps (2012) 203 Cal App 4th 717, 737 (refusing to take judicial notice of information on the Cal. Bd. of Registered Nursing web site). Notice of Ex. E is DENIED. An “abstract” of a document is not an official government act or record.

The Demurrer by Defendant Vandeweghe to the entire SAC (including the “Amendment”) and each cause of action on uncertainty grounds is OVERRULED. Uncertainty is a disfavored ground for demurrer and is typically sustained only where the pleading is so bad the responding party cannot reasonably respond. See 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.”) Here, despite the granting of other Defendants’ special motions to strike, it is clear that Defendant Vandeweghe understands the allegations made against him and there is no true uncertainty. The Court notes that Vandeweghe’s prior demurrers on uncertainty grounds have been overruled.

Vandeweghe’s Demurrer to the entire SAC (including the “Amendment”) on the ground that it fails to state sufficient facts to state claims against him solely because the Special Motions to Strike by Defendants Lewis and Working were granted is OVERRULED. Vandeweghe’s demurrers specifically to the 1st and 2nd causes of action on this same sole basis are also OVERRULED. Vandeweghe’s prior demurrers to the 1st and 2nd causes of action as pled in the SAC were overruled and only the 3rd cause of action has been amended. Vandeweghe and Defense Counsel Spitters are cautioned against further attempts at repeat demurrers.

Vandeweghe’s Demurrer to the 3rd cause of action for Intentional Interference with Prospective Economic Advantage on the ground that it fails to state sufficient facts is SUSTAINED. The elements for the tort of intentional interference with prospective economic advantage “are usually stated as follows: (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153. “To establish a claim for interference with prospective economic advantage . . . a plaintiff must plead that the defendant engaged in an independently wrongful act.” Id. at 1158. “[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” Id. at 1159.

Here, Plaintiffs’ general allegations that “Defendants” (including Vandeweghe) made unidentified “comments” or “derogatory statements” to the Del Grande Dealer Group and Sean Del Grande (collectively “Del Grande”) and others fails to sufficiently allege independently wrongful acts. Furthermore, to state a sufficient claim a plaintiff must establish that there was an existing relationship between the plaintiff and an identifiable third party that the defendant knew of and intended to disrupt. See Roth v. Rhodes (1994) 25 Cal App 4th 530, 546 (“[A]n essential element of the tort of intentional interference with prospective business advantage is the existence of a business relationship with which the tortfeasor interfered. Although this need not be a contractual relationship, an existing relationship is required.”) See also Salma v. Capon (2008) 161 Cal App 4th 1275, 1291 (“A plaintiff must establish an existing relationship to establish a claim for intentional interference with prospective economic advantage.”) Emphasis in original. It is apparent from the face of the SAC (including the “Amendment”) that Plaintiffs had no preexisting relationship with Del Grande, the only identified third party, when Defendants allegedly interfered by suggesting that Plaintiff Steve Lewis should not be given “a partnership/profit sharing/decision making role” in the expected new entity. The allegations that “defendants” “made comments” with the intent to interfere once Plaintiff Steve Lewis was employed by Del Grande also do not support this claim as at that point the relationship allegedly interfered with was a contractual employment relationship and not one of prospective economic advantage.

To the extent that the SAC (and “Amendment”) alleges interference with entities other than the Del Grande, Plaintiffs not only fail to individually identify these entities but also fail to allege their preexisting relationship with each of them and fail to identify any independently wrongful acts by Defendants done with the intent to interfere with each such relationship.

Further leave to amend the 3rd cause of action is DENIED. See Medina v. Safe-Guard Products (2008) 164 Cal App 4th 105, 112 fn. 8 (“As the Rutter practice guide states: ‘It is not up to the judge to figure out how the complaint can be amended to state a cause of action. Rather, the burden is on the plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.’”)

Bloyd Demurrer and Motion to Strike: The request for joinder in the Bloyd demurrer by Defendant Vandeweghe is GRANTED.

The Demurrer by Defendant William Bradley Bloyd (“Bloyd”) to the 3rd cause of action is SUSTAINED without further leave to amend on the same basis as the demurrer by Defendant Vandeweghe (failure to allege independently wrongful acts; failure to allege preexisting relationship with Del Grande; failure to allege preexisting relationship with any other identified third party).

Defendant Bloyd’s Motion to Strike the 4th cause of action as alleged in the purported “Amendment to the Third Cause of Action,” on the ground that it is “improper” and not “drawn in conformity with law” is DENIED as MOOT in light of the Court’s order above sustaining Defendant Lewis’ unopposed demurer to the 4th cause of action with leave to amend. A proper pleading challenge to an entire cause of action is by demurrer rather than a motion to strike under CCP §§435 and 436. See Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1281 (“where a whole cause of action is the proper subject of a pleading challenge, the court should sustain a demurrer to the cause of action rather than grant a motion to strike.”)