* A demurrer is a formal objection attacking the legal sufficiency of an opponent's pleadings. It is an
assertion, made without disputing the facts, that the pleading does not state a cause of action, and that the demurring party is entitled to judgment. Ananda being the demurring party was attempting to stop or stay the Malicious Prosecution Suit from proceeding. The following Ruling by a Nevada County Superior Court Judge was overwhelmingly favorable to the plaintiff thereby denying and overruling Ananda's request for dismissal of the Complaint in this case.

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF NEVADA

plaintiff, an individual,

Plaintiff,

J. DONALD WALTERS a/k/a SWAMI KRIY ANANDA, individually and as an employee of ANANDA CHURCH OF
SELF-REALIZATION; etc. et al.,

Defendants.

Preliminary Issues

Case No. 60439

RULING ON DEMURRERS AND MOTION TO STRIKE

The court has received the December 10, 1998 correspondence from the Hub Law Office.

It has not been reviewed and has been returned unfiled and uncopied. In the future, no post- hearing briefs shall be filed absent a prior court order. And, where more than one law firm is representing a party, only one set of papers shall be filed on behalf of that party absent a prior court order based upon a showing good cause. In this ruling the court considers the demurrers of defendants Ananda Church of Self Realization of Palo Alto (hereinafter Ananda Palo Alto), the Pravers, the Novaks, Walters, the Smallens, Parajinog and Parsons, and the motions to strike of all defendants except Walters (who did not move to strike). It will consider the motion to strike of Parsons even though it was not so denominated or separated out from his demurrer. The motion for gag order of defendants Novaks, Smallens, Parojinog and Walters will be decided separately.

page 2

Any requests or motions for joinder are denied. The court takes judicial notice of Exhibits A, B and C to Ananda Palo Alto's and Pravers' demurrer and motion to strike as amended November 5, 1998, and the reporter's transcript of the San Mateo action filed on November 4, 1998 by defendants Walters, Novaks, Smallens and Parojinog. The court does not take judicial notice of the documents requested by plaintiffs on December 2, 1998. No facts outside the complaint or documents not judicially noticed have been considered, whether in declarations, points and authorities or otherwise.

1. Status of the Ananda Entities.

Pursuant to allegations of the complaint, Ananda Palo Alto and Ananda Church of Self Realization located in Nevada City (hereinafter Ananda Nevada City) are separate entities. It appears that Ananda Nevada City was a party in the San Mateo action and filed bankruptcy but Ananda Palo Alto was not a party and did not file bankruptcy. Due to the bankruptcy stay, Ananda Nevada City is not an active party in this litigation and none of the attorneys herein have appeared on behalf of or
represent Ananda Nevada City herein.'

2. Effect of Ananda Nevada City Bankruptcy.

The automatic stay does not apply to officers, shareholders, directors, agents or employees of a bankrupt corporation even where a plaintiff seeks to pierce the corporate veil of a bankrupt corporation to reach such individuals' assets. Cortland Line v. Israel (Tex. 1994: 874 S.W.2d 178; In re Nashville Album Productions, Inc. (D.C. Tenn. 1983) 33 B.R. 123 The stay applies to non-bankrupt officers, directors or shareholders only if it is successful~ established that proceeding would cause irreparable injury to the debtor's estate, impair successful reorganization, result in little harm to the opposing party, serve the public interest and the individual debtor had not sought relief. In re Ronald Perlstein Enterprises, Inc (Bank. E.D. Pa. 1987) 70 B.R. 1005.
Since, these factors cannot be established upon demw~e or a motion to strike, it is determined that the stay does not apply to the agents, employees officers, directors and shareholders of Ananda Nevada City and Ananda Palo Alto. Moreover

'It is noted Exhibits A, B & C, judicially noticed per Ananda Palo Alto's and Pravers' request, variously name Ananda Church of Self-Realization of Nevada City, Ananda Church of Self-Realization with communities in Nevada City, Palo Alto and other locations, and Ananda Church of God Realization.

page 3

the stay does not preclude piercing the corporate veil. The effect of the alter ego doctrine is to reach the assets of the persons behind the bankrupt corporation not the assets of the bankrupt corporation.

3. Vicarious Liability/Agency Allegations.

The uniform practice in pleading respondeat superior liability is to allege the fact of agency or employment. Numerous cases have approved a general statement to the effect th wrongdoer was the agent or employee of the defendant principal acting within the scope of his employment whether or not negligence or intentional torts are alleged. Likewise, allegations o ratification, adoption, direction, assistance and aiding and abetting support an award of puniti damages. 5 Witkin, California Procedure, Pleading, Sections 873, 874. Plaintiffs' allegations o agency, employment and ratification are not conclusory but allegations of fact. Individual defendants acting as agents or employees may be sued for their indivi participation in torts or their authorization or direction that the wrong be done irrespective o potential respondeat superior liability of their principal or employer. Michaelis v. Benavid (1998) 61 Cal.App.4th 681, 686.

4.Alter Ego Allegations/Liability.

The argument that alter ego cannot be asserted as a separate cause of action is technically correct. It is not a separate cause of action. The normal practice is to set forth additional of improper domination in the complaint. This may be accomplished by aseparate paragraph i the preliminary allegations of the complaint. 5 Witkin, ibid, Section 881. The alter allegations are contained in Paragraphs 10, 81 - 89 of the first amended complaint under title of "Seventh Theory of Liability for Recovery of Damages". Since this is not an allegation of a cause of action, the demurrer is overruled. The motion to strike is denied.
Demurring and moving parties argue without citation of authority that the alter eg doctrine cannot be applied to a non-profit corporation. Although the court has not found a specifically holding the alter ego doctrine applies to non-profit corporations, at least one has allowed a procedure to amend judgment to include a non-profit corporation as a judgment debtor based on the
alter ego doctrine. Hall, Goodhue, Haisley & Barker;-Inc.-v. Marconi
page 4

Conf. Center Bd. (1996) 41 Cal.App.4th 1551. And, numerous cases have assumed such potential liability without discussion.
City of Ontario v. Superior Court (1970) 2 Cal.3d 335; Westminster Memorial Park v. County of Orange (1960) 54 Cal.2d 488; Cavin Memorial Corp. v. Requa (1970) 5 Cal.App.3d 345; San Diego Adult Educators v. Public Employment Relations Board (1990) 223 Cal.App.3d 1124. The court sees no reason to distinguish between for-profit and non-profit corporations.
No compelling reason is cited to protect alleged perpetrators of fraud and inequity merely because they were able to form a non-profit corporation versus a for-profit corporation to allegedly hide behind. A recent example in the news is the non-profit corporation that obtained donated cars. Instead of applying the proceeds to the non-profit corporation, the individuals operating it allegedly took them for their own benefit. The inescapable conclusion is that the alter ego doctrine may be applied to certain officers and directors of non-profit corporations if the plaintiff can prove the elements of alter ego liability.

5. Res Judicata/Collateral Estoppel Effect of the San Mateo Court's Ruling on the Alter Ego
Allegations in this Action.

The court has taken judicial notice of Exhibits A, B and C as noted above.

Plaintiff relies on Sosinsky v. Grant (1992) 6 Cal.App.4th 1548. That case holds the truth of a finding of fact may not be judicially noticed. Irrespective of this holding and any conflict perceived by Sosinsky on this issue, the case further stands for the proposition that this is a different question than whether the truth of a factual finding may or may not be litigated ; second time. It stated at page 1569:

"The doctrines ofresjudicataand collateral estoppel will, when they apply, serve to bar relitigation of a factual dispute even in those instances where the factual dispute was erroneously decided in favor of a party who did not testify truthfully. (Citations omitted.)"

In the within case, for instance, the court is not asked to take judicial notice of facts to b utilized in support of or opposition to a motion for summary judgment. Instead, it is asked~ whether or not the facts determined in the prior case may be relitigated. It is appropriate to take

page 5

judicial notice of the judgment and records in a prior case to determine the application of res judicata or collateral estoppel.
Flores v. Arroyo (1961) 56 Cai.2d 492, 496; Carroll v.Puritan Leasing Co. (1978) 77 Cal.App.3d 481, 486; Frommhagen v. Board of Supewisors (1987) 197 Cal.App.3d 1292; Evidence Code Section 452(d). The records from the prior action which may be considered include but are not limited to the judgment, pleadings and other documents prepared and filed in the case, agreements of counsel on file, court reporter reports or minutes of testimony, evidence submitted, respective contentions of the parties, testimony of the judge and jury who tried the case, rulings and findings of the court, jury instructions, the verdict, and any appellate record. Goodman v. Dam (1931) 112 Cal.App. 244, 246; Hamilton v. Carpenter (1940) 15 Cal.2d 130; Lynn v. Cable (1950) 95 Cal.App.2d 696, 698. Res judicata and collateral estoppel are issues to be determined by the court and not a jury. Windsor Square Homeowners Association v. Citation Homes (1977) 54 Cal.App.4th 547, 557, 558. Although res judicata is an affirmative defense, if all facts are before the court in the complaint or via judicial notice, the issue may be determined on a general demurrer. Olwell v. Hopkins (1946) 28 Cal.2d 705- 710; Legg v. United Benefit Life Ins. Co. (1960) 182 Cal.App.2d 573, 580; Carrol v. Puritan Leasing Co., supra, 77 Cal.App.3d at 485. The complaint and judicially noticed documents in this case are sufficient to raise the issues of res judicata and collateral estoppel. a. Res Judicata.

In order for res judicata to constitute a bar, the same cause of action must be asserted. 7 Witkin, California Procedure, Judgment, Section 348. That presupposes that the prior adjudication involved a cause of action. As correctly pointed out by demurring and moving parties, alter ego does not constitute a cause of action. Hennessey's Tavern, Inc. v. American Air Filter Co. (1988) 204 Cal.App.3d 1351. Hence, to the extent res judicata has been raised by the parties, it does not apply to the alter ego issue

page 6

b. Collateral Estoppel.

The allegations ofthe first amended complaint and Exhibits A, B and C are insufficient to show that plaintiffs are collaterally estopped from raising the alter ego issue. 2

There are three requirements for the application of collateral estoppel: identical issues, a final judgment on the merits and the party against whom the plea is asserted was a party in or in privity with a party to the prior adjudication. Children's Hospital v. Sedgwick (1996) 45 Cal.App.4th 1780, 1788. From the allegations and judicially noticed materials, it is unknown if the San Mateo judgment is final. If the San Mateo judgment has been appealed, it is not final unless it has been abandoned or dismissed.
7 Witkin, California Procedure, Judgment, Section 307. On the issue of party or privies, the San Mateo complaint named Ananda Nevada County only as a defendant via Paragraph 2 (Exhibit A):

". . . defendant Ananda Church of Self Realization ("ANANDA CHURCH") was a California not-for-profit corporation located in County of Nevada, City of Nevada City, State of California."

The first amended complaint makes this same allegation in Paragraph 8 but further alleges in Paragraph 9 that the "Ananda Church of Self Realization of Palo Alto" is a not-for-profit corporation located in Palo Alto. Paragraph 10, 81-89 allege both entities were the alter egos of defendant Walters. The statement of decision and the judgment (Exhibit C) refer to "Ananda Church of God Realization." On these facts alone, there is confusion between Ananda Nevada City and Ananda Church of God Realization, it appears that Ananda Palo Alto was not a party to the prior action, and there are insufficient facts to determine whether Ananda Palo Alto is sufficiently close to the original case to afford application of the principle of preclusion. See 7 Witkin, ibid, Sections 388-393. The demurrers to the alter ego allegations on the issues of res judicata and collateral estoppel are overruled and the motions to strike are denied.

2 This does not preclude future utilization of other procedures where facts outside the complaint or judicially noticed may be considered.
page 7

6. Conspiracy Allegations.

There is no question that conspiracy allegations cannot stand absent an underlying wrongful act giving rise to a cause of action.
There is some authority for the proposition that plaintiff may state a cause of action for conspiracy merely by alleging the named defendants committed the acts without mentioning "conspiracy." On the other hand, allegations of conspiracy are useful and if plaintiff elects to sue on the theory of conspiracy, the complaint should allege (1) the formation and operation of the conspiracy, (2) the wrongful act or acts of any of the conspirators pursuant to the conspiracy, and (3) the resulting damage. 5 Witkin, California Procedure, Pleadings, Sections 875-876. The allegations contained in the 6th theory for liability, paragraphs 73-80, are sufficient to state a cause of action for conspiracy as long as causes of action for the underlying wrongs state a cause action.

7. Status of Stolen Trash.

A crucial issue in all causes of action is the status of the stolen trash.

The complaint alleges 2 - 10 bags of trash were taken from plaintiffs attorney's premises. Contained in the bags were private, confidential, attorney-client communications including a 20 page witness summary and draft attorney-client communication, audio tapes video tapes. The trash was in an enclosed bin located on enclosed private property behind gated fence on the law firm's premises. The area was not used by other tenants and was no accessible to the public. Absent a trespass, the area was accessible only to law firm personne and the firm's trash collection agency. In order to reach the enclosed bin, it was necessary t physically break into the property by unlocking the sealed, gated entry. A private servi disposed of the trash. It had been informed by the law firm of the need to preserve confidentiality of the documents.
Paragraphs 2, 24, 33, 39-40, 44-45. a. Ownership or Possession of Documents. The complaint alleges the trash included material covered by the attorney-client privil and work product doctrine. The basic policy of the attorney-client privilege is to promote relationship between attorney and client by safeguarding the confidential disclosures of the

page 8

client and the advice given by the attorney. 2 Witkin, California Evidence, Witnesses, Sections 1107-1108. The work product doctrine protects disclosure of documents containing an attorney's impressions, conclusions, opinions or legal theories and offers qualified protection for general work product. 2 Witkin, Ibid, Section 1145. The client is the holder of the lawyer-client privilege but a lawyer must claim it for the client whenever the lawyer is present and authorized to make the claim. The attorney is the person protected by the work product doctrine. 2 Witkin, Ibid, Sections 1113, 1145. It follows that the client owns attorney-client communications but the attorney may have possession of same as the client's agent and the work product belongs to the attorney but may benefit and be utilized by the client. The court is disinclined to accept technical arguments about ownership and possession in the context of protecting parties in litigation from unscrupulous litigants and their attorneys who would gain an advantage in litigation by stealing privileged and protected documents. It must be emphasized that the information contained in the documents was presumably retained by plaintiffs attorneys and subject to plaintiffs and her attorney's ownership and right to possession unless they were abandoned or not protected by the right to privacy, as more thoroughly discussed below. Moore v. Regents of University of California (1990) 51 Cal.3d 120, 136-137, cited by the Ananda Palo Alto and Pravers, is inapposite. In Moore the issue was whether or not a patient retained an ownership right to excised cells. The court stated he did not expect to retain a right of possession and ownership could not be analogized by reference to privacy rights. Moreover, the case involved a statute greatly limiting a patient's control over excised cells. Here, even though documents containing confidential and privileged information were placed in the trash, plaintiff and her attorney's had reasonable expectations of a right to possession and ownership of the information contained therein where such information was in all probability retained in the attorney's files. It is concluded that the complaint alleges sufficient facts showing ownership or right possession in both plaintiff and her attorneys.

page 9

b. Value of the Discarded Documents.

One might argue, as defendants do, that the documents, having been disposed of, were worthless. That presupposes they had no value to anyone. Obviously, defendants believed they had enough value to steal them. More importantly, the documents represent attorney-client communications and work product which are extremely valuable in the context of pending litigation. An adverse party stealing such information could gain an unfair advantage. If defendants believe such information is de minimis non curat lex, then the court would ask how they would feel if an adverse party trespassed on their attorney's property, stole confidentiai documents and then used the information against them in pending litigation? It is imagined there would be ensuing outrage, not a shrug of the shoulders that the matter should be disregarded as a trifle.

It is concluded that the element of damages or value is sufficiently alleged.

Demurrers to the First and Second Causes of Action -

Conversion and Claim and Delivery

Based on the court's analysis of the status of the trash, the demurrers to the first and second causes of action for conversion and claim and delivery on the ground of failure to set forth facts sufficient to constitute a cause of action are overruled. The demurrers for uncertainty are overruled. The agency allegations objected to by the Palo Alto Ananda group of defendants have been previously discussed. Regarding the demurrer of the Novaks, Smallens and Paojinog, the complaint is sufficiently certain to show what was taken and how damage was suffered.

Demurrers to Third and Fourth Causes of Action - Privacy Rights

The question presented on the privacy causes of action is whether or not plaintiff had reasonable expectation of privacy in documents and tapes containing privileged and protect information under the attorney-client privilege and the work product rule where the documents were relevant to pending litigation, were discarded by plaintiffs attorneys, were placed plastic bags, and dropped into a closed trash bin in a fenced and gated area accessible only to personnel of the law firm and a private trash collection entity who had be informed of the

page 10

need to preserve client confidentiality. The court concludes, based on the facts alleged in the complaint, it cannot determine as a matter of law that plaintiff did not have a reasonable expectation of privacy.

An exhaustive review and analysis of the law of privacy in California is contained in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1. The Supreme Court's review and analysis shows the privacy protected by the Privacy Initiative (Cal.Const. Art. I, Section 13) is no broader in the area of search and seizure than the privacy protected by the 4th Amendment of the United States Constitution. It further shows there is no federal right to privacy unless state action is involved but the California
Privacy Initiative creates a right of action against private as well as public entities. It discusses the pre-initiative development of the right to privacy as developing along two lines: the common law right and the federal constitutional right. Although it opines the common law right to privacy does not circumscribe the state constitutional right, it drew from the 100 years of legal experience surrounding the common law tort of invasion of privacy as a guide to constitutional privacy litigation. From this analysis, it identified the essential elements of a cause of action for invasion of the constitutional right of privacy as: the identification of a specific, legally protected privacy interest (a legal question); a reasonable expectation of privacy on the plaintiffs part (mixed question); and, conduct of the defendant constituting a serious invasion of privacy (mixed question). Hill v. National Collegiate Athletic Assn., supra, at pages 20, 23-27, 29-30, 35-40.

As a starting point, absent abandonment or unreasonable expectations of privacy, the plaintiff had a specific, legally protected privacy interest in the attorney-client communications and work product documents described in the complaint. The closer question is whether the court can determine as a matter oflaw that the plaintiff did not have a reasonable expectation of privacy under the facts of this case. The court has concentrated on five cases in its analysis: California v. Greenwood (1988) 486 U.S. 35 [108 S.Ct. 1625, 100 L.Ed.2d 30]; People v. Edwards (1969) 71 Cal.2d 1096; United States v. Redmon (7th Cir. 1998) 138 Fed.3d 1109; McCafferty's, Inc. v. The Bank of Glen Burnie

page 11

(1998 Md.) 179 F.R.D. 163; and Suburban Sew 'N Sweep, Inc. v. Swiss-Bernia (1981 N.D 111.)91 F.R.D. 254.
Greenwood was a drug arrest case where the defendants had placed items indicative of narcotics use in trash bags on the street in front of their house for pick up by the garbage collector. Greenwood held any expectation of privacy defendants had was not objectively reasonable, concluding the defendants had exposed their garbage to the public sufficiently to defeat their Fourth Amendment protection. At pages 40-41 it quoted United States v. Reicherter (Cir. 3d 1981) 647 Fed.2d 397, 399, for the proposition that there could be no reasonable expectation of privacy where the items had been placed ". . .in an area particularly suited for public inspection and, in a manner of speaking, public consumption for the express purpose of having strangers take it . . ."' Unlike our case, Greemvood and the many cases it relied on involved trash left in a public street outside the home and
curtilage, e.g. garbage completely accessible to any member ofthe public walking down the street. The earlier case of People v. Edwards, supra, came to an opposite conclusion where the officers walked down railroad tracks behind defendants' residence, entered into "the open bac yard area" of the residence, and found marijuana in a trash can two or three feet from the porch door. After reviewing the "open fields" doctrine upholding searches and seizures earlier cases,3 the court adopted the "reasonable expectation of privacy" standard an concluded the search was unlawfUl.4 Facts relied on were the closeness of the trash to the door, the trespass, the trash was an adjunct to the domestic economy, the placement of th marijuana in the trash was not an abandonment except to persons having permission to remove it, and the marijuana itself was not visible without rummaging. A more recent search and seizure case, United States v. Redmond, supra, is instructive Defendant, who lived in a townhouse, placed cocaine in a trash container on a common driveway between his garage and his neighbor's garage. His and his neighbor's front doors

3 This includes a discussion of Katz v. United States (1967) 389 U.S. 347, 351 [19 L.Ed.2d 576, 582, 88 S.C 507] and Terry v. Ohio, 392 U.S.1, 9 C20 L.Ed.2d 889, 899, 88 S.Ct. 1868]. 4It also compared People v. Terry (1970) 70 Cal.2d 410, 427-428 where entry into an apartment house garagl used in common by tenants, resulting in the sighting of marijuana inside defendant's cariaaff-ashtray; was proper search even though it constituted a trespass.

 page 12

were accessible via sidewalks leading from the common driveway. The common driveway was a short distance from an intersection of two city streets. A local ordinance forbade placing garbage cans on the public streets.

The court held defendant had no reasonable expectation of privacy under those facts.~ in reaching that conclusion, the court discussed "curtilage" as a factor, defining it as an imaginary boundary line between privacy and accessibility to the public. It stated at page 1111:

"Sometimes that line may be easy to locate where, for instance, a fence or wall around the home keeps out the public."

It then noted that the zone of privacy or curtilage may be determined after considering all the factors,having previously stated the determination is primarily fact-based not lending itself to bright line rules.

The defendants argue search and seizure cases are not controlling in civil iitigation, relying on Suburban Sew 'N Sweep, Inc. v. Swiss-Bernina, Inc., supra. This court agrees, but as pointed out in McCafferty's, Inc. v. The Bank of Glen Burnie, those cases are useful in determining whether reasonable precautions were taken or whether plaintiff had a reasonable expectation of privacy.

This court is not bound by either case. However, it has considered the analysis in both cases to reach the conclusion that it cannot determine as a matter of law that no cause of action is stated for invasion of privacy. The court has some concerns about the Suburban Sew W Sweep analysis. It was decided before California v. Greenwood, supra. In light of Greenwood and subsequent cases, its bald statement at page 256 that "courts have nearly unanimously held that property placed in the garbage is no longer protected by the Fourth Amendment" and "such property is considered abandoned" is not a complete and accurate statement ofthe current law. Second, it construes the attorney-client privilege strictly, unlike the majority of cases in California. See 2 Witkin, California Evidence, Witnesses, Section 1108. Third, its facts are not as compelling as the facts of this case. The garbage container was placed in a docking area apparently accessible to other tenants. The entity discarding the material was the client. This was not an attortrey's office. On

page 13

the other hand, the client had torn up the document into pieces while there are no allegations in this case the documents were torn up or shredded.

McCafferty's, Inc. v. The Bank of Glen Burnie, supra, held the attorney-client privilege was not waived when the client tore a confidential communication into sixteen pieces, discarded it in her trash can in her office from which it was taken to a trash dumpster located within the boundary of the client's property. The dumpster warned against unauthorized use and the parking lot warned against unauthorized entry. McCafferty's is likewise different from the within case. There is no indication in the opinion that the parking lot or trash areas were fenced and locked. It did not involve an attorney's office or trash. The entity removing the trash was not a party to pending litigation involving the client. On the other hand, the client had torn up the document into pieces while there are no allegations in this case the documents were torn up, shredded, or otherwise obscured. While the facts may ultimately show plaintiff had no reasonable expectation of privacy, the allegations of a fenced, gated
enclosure, requiring trespass and the unsealing of a lock to gain access, lack of public access, instructions to the trash collector concerning confidentiality, and the fact that this was an attorney's office, preclude sustaining of demurrers based on failure to set forth facts sufficient to constitute a cause of action. Defendants are correct that no federal cause of action for privacy is stated. However, since the allegation is contained within another legally sufficient cause of action, a general demurrer cannot be sustained. The demurrer for uncertainty by defendants Novaks, Smallen and Parojinog is overmled. Based on the above, the demurrers to the third and fourth causes of action brought. by Ananda Palo Alto, Pravers and Novaks, Smallen and Parojinog for failure to set forth facts sufficient to constitute a cause of action and for uncertainty are overruled.

Demurrer to Fifth Cause of Action - Malicious Prosecution The complaint alleges defendants prosecuted the cross-complaint for defamation, all defendants instigated the cross-complaint, all defendants knew or should have known of the falsity of the allegations, all defendants used the cross-complaint for the purpose of putting the
page 14

law in evolution and continuing the process for an improper purpose without probable cause, and the cross-complaint was dismissed, resulting in favorable termination.

The authorities cited in support of the demurrers of all defendants except Parsons are insufficient to support the sustaining of a demurrer.

On the issue of initiation, while Palo Alto Ananda and the Pravers cite authority for the proposition that a wife who did not
consent to being named as plaintiff can not be held liable for malicious prosecution5 and the rule that a party must have iaitiated the other action,b those cases do not offer a complete analysis of the element of initiation or instigation. Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 24 n. 26, cited by Novaks, Smallens and Parojinog, more accurately states a person who urges, procures or otherwise is actively instrumental in the filing of a lawsuit may be sued along with the actual plaintiff. As 5
Witkin, Summary o California Law, Torts, Section 418 states, one who procures a third person to institute litigatio is just as liable as if he had instituted it himself. The test is whether defendant was "actively instrumental." An allegation that defendants "instigated" the San Mateo cross-complaint is a sufficient allegation. Whether that can be shown by facts outside the complaint cannot be determined on demurrer.

The other elements of malicious prosecution are adequately alleged.

The demurrers of the PaloAlto Ananda, Pravers, Novaks, Smallens, and Parajinog on the ground of uncertainty and failure to set forth facts sufficient to constitute a cause of action are overruled as is the demurrer ofNovaks, Smallens and Parajinog for misjoinder. Defendant Parsons' demurrer to the fifth cause of action on the ground of failure to set forth facts sufficient to constitute a cause of action is overruled. As stated earlier, conspiracy is not a separate cause of action but must be based on an
underlying wrong. Defendant Parsons is not named in the conspiracy allegations. It is not necessary to plead civil conspiracy before bringing a malicious prosecution action against an attorney. And, Civil Code Section 1714.10

5 Citizens State Bank v. Hoffman (1941) 44 Cal.App 2d854

Lucchesi v. Giannini & Uniack (1984) 158 Cal.App.3d 777

page 15

does not apply to a malicious prosecution claim against an attorney. Westamco Investment Co. v. Lee 1999 Daily Journal D.A.R. 761, 763. (January 22, 1999).7

Eighth Causes of Action - Infliction of Emotional Distress

The demurrers to the eighth cause of action for intentional infliction of emotional distress on the Bounds of failure to set forth facts sufficient to constitute a cause of action and for uncertainty are overruled. Because demurrers have been overruled on underlying causes of action which allege outrageous conduct broader than conduct protected by the privilege in Civil Codc Section 47, the cause of action is adequately alleged. While the acts complained of occurred more than one year before filing the complaint, there are allegations the theft was kept from the plaintiffs. Given the authorities presented and the absence of a demurrer for uncertainty on this issue, any defects in the statute of limitations allegations cannot be reached on this demurrer.

Additional Issues Raised by Walters Demurrer

To the extent not covered in previous rulings, the demurrer of defendant Walters is ruled on as follows.

Although the court has taken judicial notice of the reporter's transcripts from the San Mateo action, the court cannot take judicial notice of the truth contained therein. Even if the court were to erroneously take judicial notice of the truth contained therein, that transcript shows the court cannot sustain a demurrer without leave to amend. See statement from defendant Parsons to the court indicating Mr. DiVita, a perpetrator of the theft, made a determination of what documents were relevant to the litigation before they were turned over to Parsons. That statement may reflect a belief of Parsons that all documents were returned but it does not state the truth that they were. The demurrer to the first and second causes of action for failure to set forth facts sufficient to constitute a cause of action is overruled. The demurrer to the third and fourth causes of action on the same ground is overmled. The imposition ofpreclusion sanctions based on discovery abuse or spoliation of evidence does

7 Cases holding an attorney can be sued separately for malicious prosecution include Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881; Weaver v. Superior Court (1979) 95 Cal.App.3d 166,192; Norton v. Hines (1975) 49 Cal.App.3d 917, 921.

page 16

not preclude litigation of a separate cause of action vindicating the underlying wrong. Neither res judicata nor collateral estoppel preclude the privacy causes of action.

The demurrer on the ground of failure to set forth facts sufficient to constitute a cause of action to the alter ego allegations and emotional distress causes of action are overruled.

Motion to Strike of Parsons

For the reasons stated above, Parsons' motion to strike under Civil Code Section 1714.10, contained in the body of his demurrer, is denied.

Motion to Strike of Ananda Palo Alto, Pravers

The motion to strike is denied on all grounds except the ground that the amount of punitive damages cannot be stated in the complaint. As to that ground, the amount of punitive damages alleged in Paragraphs 42, 53, 59, 80 and 94 are stricken without leave to amend.

On the Code of Civil Procedure Section 425.14 issue, these defendants admit that no punitive damages are alleged against the church but argue individual agents, employees, officers or directors are protected against allegations of punitive damages absent a motion allowing same. That section only protects religious organizations, not their members. Individuals are liable for their wrongs even if their principal cannot be held liable under the doctrine of vicarious liability.

Motion to Strike of Defendants Novak, Smallen, Parojinog and Walters

The court cannot consider the Weber declaration because it consists of facts outside the face of the complaint. As previously ruled, moving defendants may be liable for their individual tortz irrespective of the vicarious liability of Ananda. Moreover, concerning volunteer officers or directors, Code of Civil Procedure Section 425.15 clearly applies only to negligent acts or omissions. Only intentional torts are alleged in plaintiffs complaint. There are no allegationl of negligence. The motion to strike is
denied except for the specific amount of damages alleged ii Paragraphs 42, 52, 53, 58, 59, 72, 79, 80, 93 and 94. Those specific amounts only are stricken without leave to amend.

page 17

Other Grounds not Covered

To the extent the defendants' demurrers and motions to strike covered other issues or sought other relief not enumerated in the above ruling, such demurrers or motions to strike on those other issues are overruled and denied.

Preparation of Orders; Answers Due

Plaintiffs attorney is to prepare a formal order complying with this ruling and California Rule of Court 391. In addition to compliance with the time limits contained in that rule, the court expects the parties and their attorneys to cooperate fully and in good faith in determining approval as to form. If there are disputes concerning the form of the order, pursuant to the rule, plaintiffs attorney is to summarize the responses and disputes in a cogent and brief manner. Plaintiffs attorney is to thereafter prepare, file and serve notice of order. Defendants' answers shall be due 10 days from the date of service of notice of order.

Conclusion

As an instructional comment to the parties and their attorneys, the court spent considerable time and effort on this ruling. The length and breadth of this ruling is not to be taken by the parties or their attorneys as an indication that the court considers this case a complex one or one deserving of more attention than any other case. In reality, this case appears to be a simple one, one that should be prepared for trial and tried in an expeditious and straight forward manner. The court encourages the parties and their attorneys to proceed accordingly. It will not look favorably upon unnecessary and protracted pre-trial proceedings not warranted by the facts of this case.

DATED: February 16,1999.

John H. Darlington

Judge of the Superior Court

Back to top