Maliauka v. Essex Property Trust CA2/6

Filed 1/4/21 Maliauka v. Essex Property Trust CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
AGATA RATAJCZAK 2d Civil No. B304539
MALIAUKA, (Super. Ct. No. 56-2019-
00529047-CU-PO-VTA)
Plaintiff and Appellant, (Ventura County)
v. ORDER MODIFYING
OPINION AND DENYING
ESSEX PROPERTY TRUST, PETITION FOR REHEARING
INC., [NO CHANGE IN
JUDGMENT]
Defendant and Respondent.
THE COURT:
It is ordered that the opinion filed herein on
December 14, 2020, be modified as follows:
On page 8, first full paragraph, after “Respondent
shall recover its costs on appeal” insert footnote 2 as follows:
²In her petition for rehearing, appellant erroneously
contends, “The opinion erred as a matter of law in awarding
respondents costs without a finding that the action was clearly
frivolous and totally lacking in merit.” (Capitalization omitted.)
As the prevailing party, respondent is entitled to its costs on
appeal pursuant to the California Rules of Court, rule 8.278(a)(1)
[“Except as provided in this rule, the party prevailing in the
Court of Appeal in a civil case other than a juvenile case is
entitled to costs on appeal”].
There is no change in judgment.
Appellant’s petition for rehearing is denied.
GILBERT, P.J. YEGAN, J. TANGEMAN, J.
2
Filed 12/14/20 Maliauka v. Essex Property Trust CA2/6 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
AGATA RATAJCZAK 2d Civil No. B304539
MALIAUKA, (Super. Ct. No. 56-2019-
00529047-CU-PO-VTA)
Plaintiff and Appellant, (Ventura County)
v.
ESSEX PROPERTY TRUST,
INC.,
Defendant and Respondent.
Proceeding in propria persona, Agata Ratajczak Maliauka
appeals from a judgment of dismissal entered after the trial court
had sustained without leave to amend the demurrer of her former
landlord, respondent Essex Property Trust, Inc. We conclude
that the trial court properly sustained the demurrer without
leave to amend because appellant had engaged in impermissible
forum shopping. After the original trial court judge had ruled
against her, appellant voluntarily dismissed the action without
prejudice and made unfounded accusations that the judge was
biased and corrupt. In the hope that a different judge would rule
in her favor, she filed a second action based on the same facts as
the first action. A different judge was assigned to the second
action, and he ruled against her based on her forum shopping.
We affirm the judgment dismissing the second action.
Procedural Background
Appellant filed a small claims action against respondent.
Appellant sought to recover moving expenses she had incurred
after respondent had refused to renew her lease. In February
2018 judgment was rendered in respondent’s favor.
One month later, appellant filed against respondent a
complaint alleging five causes of action: legal fraud,
discrimination, defamation, endangerment to life, and intentional
infliction of emotional distress (IIED). (This lawsuit is hereafter
referred to as “the first action.”) As to the cause of action for
legal fraud, the trial court granted respondent’s anti-SLAPP
motion. As to the cause of action for IIED, the court sustained
respondent’s demurrer with leave to amend. As to the remaining
causes of action, the court sustained respondent’s demurrer
without leave to amend. The court granted respondent’s motion
to strike from the complaint, without leave to amend, appellant’s
request for punitive damages.
Appellant filed a first amended complaint. The trial court
sustained respondent’s demurrer with leave to amend.
Appellant filed a second amended complaint alleging a
cause of action for IIED and new causes of action for negligent
infliction of emotional distress, negligence, nuisance, constructive
eviction, and breach of implied warranty of habitability.
Appellant sought both general and punitive damages. Because
the court had not granted leave to allege the new causes of action,
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it struck them without leave to amend. It also struck the request
for punitive damages without leave to amend. As to the cause of
action for IIED, it sustained respondent’s demurrer with leave to
amend.
Appellant filed a third amended complaint for IIED. The
complaint did not seek punitive damages. Eight days after the
complaint had been filed, at appellant’s request it was dismissed
without prejudice by the court clerk. In her request for dismissal,
appellant wrote, “‘[T]his lawsuit voluntarily was terminated due
to the serious concerns and fitness of Judge Kevin DeNoce [the
trial court judge] who is and there’s no doubt in clear bias and
prejudice toward [appellant], suspicions of Fraud on the Court by
such Judge [sic].’”
Appellant initiated the present lawsuit (“the second
action”) by filing a new complaint against respondent alleging
causes of action for IIED, breach of contract, and false promise.
Appellant requested punitive damages as to the cause of action
for false promise.
In the second action the original complaint, but not the
operative first amended complaint, said that appellant had
voluntarily dismissed the first action because of “a wide spread
corruption” by Judge “DeNoce and possibly the Superior Court
itself.” Appellant threatened: “[M]ake no mistake, additional
complaints will follow against the Judge Kevin DeNoce and
[respondent’s] Counsel in different Courts and I can assure this,
all action is heading to a national scandal. A wide spread
Corruption and innocent people suffering must stop and believe
me, and no one can’t shut down any longer [appellant] by judicial
harassment, intimidation, fraud and further cover ups . . . .”
3
The second action was assigned to Judge Mark Borrell.
Respondent demurred to the operative first amended complaint.
The trial court took judicial notice of the original complaint in the
second action and the contents of the court file in the first action.
The court noted: “[Appellant] alleges in the original complaint in
[the second action] essentially the same facts as she asserted in
[the first action]. Additionally, she alleges in the [original]
complaint [in the second action] that she dismissed [the first
action] to have this case assigned to a new department because,
she claims, Judge DeNoce committed judicial misconduct in that
earlier case.”
The trial court sustained without leave to amend
respondent’s demurrer to the first amended complaint because
“in [her] own words, [appellant] has acknowledged that [the
second action] was filed as a means of avoiding the properly
assigned judge in [the first action] in hopes of seeking more
favorable rulings elsewhere.” The court observed that, instead of
filing the second action, “if [appellant] believed [Judge DeNoce’s]
rulings were unwarranted she ‘properly should have instituted
appropriate proceedings for review in the [first] action.’”
Judgment was entered dismissing the second action with
prejudice.
Standard of Review
“‘A demurrer tests the legal sufficiency of the complaint.
[Citation.] Therefore, we review the complaint de novo to
determine whether it contains sufficient facts to state a cause of
action. [Citation.] “We treat the demurrer as admitting all
material facts properly pleaded, but not contentions, deductions
or conclusions of fact or law.” [Citation.] The trial court exercises
its discretion in declining to grant leave to amend. [Citation.] If
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it is reasonably possible the pleading can be cured by
amendment, the trial court abuses its discretion by not granting
leave to amend. [Citation.] The plaintiff has the burden of
proving the possibility of cure by amendment.’” (Czajkowski v.
Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173.)
The Demurrer Was Properly Sustained
Without Leave to Amend
Appellant contends that, in ruling on the demurrer, Judge
Borrell should have considered only the first amended complaint
in the second action. We disagree. “[A] demurrer reaches not
only the contents of the complaint, but also such matters as may
be properly considered under the doctrine of judicial notice. ‘The
pleading must be read as if it contained all matters of which the
court could properly take judicial notice even in the face of
allegations in the pleading to the contrary . . . .’ [Citation.] It is
not enough that, absent any reference to [her] earlier action [or
the original complaint in her second action], appellant[’s] new
pleading might be facially sufficient.” (Ricard v. Grobstein,
Goldman, Stevenson, Siegel, LeVine & Mangel (1992) 6
Cal.App.4th 157, 160 (Ricard); see also Henry v. Clifford (1995)
32 Cal.App.4th 315, 322, [appellate court rejected claim that in
ruling on demurrer “the trial court erred in going beyond the
complaint and taking judicial notice of the prior action”];
Wilkinson v. Zelen (2008) 167 Cal.App.4th 37, 43 [“In ruling on a
demurrer, the court may ‘“take judicial notice of a party’s earlier
pleadings and positions”’”].)
The facts in Ricard, supra, 6 Cal.App.4th 157, are similar
to the facts here. In sustaining the demurrer to the first
amended complaint in the second action, the trial court relied
upon Ricard. There, the trial court denied the plaintiffs’ request
5
to amend their malpractice complaint to add a new claim. “In
response, and in their conceded effort to avoid this ruling without
challenging it in an authorized manner, . . . [plaintiffs] filed [a
new] action in [a different district of the same superior
court] . . . . This new suit was limited to the identical claim they
had unsuccessfully sought to join in their malpractice action.
[¶] [Defendants] demurred on the ground . . . that this was but
[a] patent attempt to circumvent the prior ruling.” (Id. at p. 159.)
The new action was transferred to the trial court that had
denied plaintiffs’ request to amend the malpractice complaint.
The court sustained defendants’ demurrer without leave to
amend and dismissed the new action. The Court of Appeal
affirmed. It reasoned: “It is clear the [trial] court sustained the
demurrer because of [plaintiffs’] attempt to evade its prior ruling
by filing the second action . . . . We conclude it had authority to
do so. [¶] A trial court has authority to strike sham pleadings, or
those not filed in conformity with its prior ruling. [Citations.]
With almost frightening candor [plaintiffs] acknowledge that the
present suit was filed solely to circumvent the [trial] court’s prior
adverse ruling. Consequently, it could properly be struck and in
so doing, the court did not . . . improperly set itself up as a gate-
keeper to control all judicial access.” (Ricard, supra, 6
Cal.App.4th at p. 162.)
Ricard’s reasoning applies here. In voluntarily dismissing
the first action and filing the second action, appellant engaged in
blatant, impermissible forum shopping. She attempted to evade
Judge DeNoce’s adverse rulings by filing a second lawsuit based
on the same facts as the first lawsuit before Judge DeNoce. She
hoped that a different judge would rule in her favor. “Orderly
judicial procedure requires that multiplicity of litigation be
6
avoided . . . and that litigants be not encouraged to seek
another forum for the same relief if unsuccessful in the
first forum.” (Lazar v. Lazar (1969) 61 Misc.2d 36, 38 [304
N.Y.S.2d 819, 821].)
Because of appellant’s improper forum shopping, the first
amended complaint in the second action failed to state facts
sufficient to constitute a cause of action. The trial court therefore
properly sustained respondent’s demurrer without leave to
amend.
Appellant argues that the order sustaining the demurrer
was erroneous because respondent failed to comply with Code of
Civil Procedure section 430.41, subdivision (a), which provides,
“Before filing a demurrer . . . , the demurring party shall meet
and confer . . . with the party who filed the pleading that is
subject to demurrer for the purpose of determining whether an
agreement can be reached that would resolve the objections to be
raised in the demurrer.”1 We need not determine whether
respondent violated section 430.41. Even if respondent had
violated the statute, we would not reverse the judgment. Section
430.41, subdivision (a)(4) provides, “Any determination by the
court that the meet and confer process was insufficient shall not
be grounds to overrule or sustain a demurrer.”
Denial of Appellant’s Request for Sanctions
Appellant claims that the trial court erroneously denied her
motion to impose sanctions against respondent pursuant to
section 128.5. The claim is forfeited because it is not supported
by meaningful argument with citations to authority and the
record. “The . . . court’s judgment is presumed to be correct, and
All statutory references are to the Code of Civil
1
Procedure.
7
it is appellant’s burden to affirmatively show error. [Citation.]
To demonstrate error, appellant must present meaningful legal
analysis supported by citations to authority and citations to facts
in the record that support the claim of error. [Citations.] When a
point is asserted without argument and authority for the
proposition, ‘it is deemed to be without foundation and requires
no discussion by the reviewing court.’” (In re S.C. (2006) 138
Cal.App.4th 396, 408.)
Disposition
The judgment is affirmed. Respondent shall recover its
costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
8
Mark S. Borrell, Judge
Superior Court County of Ventura
______________________________
Agata Ratajczak Maliauka, in propria persona, for Plaintiff
and Appellant.
Gates, Gonter, Guy, Proudfoot & Muench and Richard A.
Muench, for Defendant and Respondent.