Juan Manuel Murillo Guerrero vs. Walsworth Property Management, Inc.

Opposition

Cal. Super. - 4th Dist.January 30, 2018

Mark B. Plummer, SBN 120098 LAW OFFICES OF MARK B. PLUMMER, PC 18552 Oriente Dreive ELECTRONICALLY FILED Yorba Linda, California 92886 HR edit lombp@hotmail.com Tel. (714) 970-3131 Fax (714) 970-3130 NAFTA at 0 23:00 PR Clerk of the Superior Court Clerk, Deputy Clerk 18552 Oriente Drive, Yorba Linda, CA 92886 Bye Cleric, Oeputy Ele lombp Attorney for Defendants and Cross-Complainants: ALBERT H. MARQUEZ and MARK A. MARQUEZ SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE — CENTRAL JUSTICE CENTER JUAN MANUEL GUERRO, an individual; and ) CASE NO. 30-2018-00970253-CU-PO-CIC] EDWIN YOVANI MERILLO CEJA, an ) individual, ) POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER Plaintiffs, Vs. WALWORTH PROPERTY MANAGEMENT, INC.; a California Corporation, WILLIAM WALSWORTH, an individual: SANDRA MARILL CHANDLER, An individual, MARK ALBERT MARQUEZ, ) ) ) ) ) Assigned to: Honorable Richard Lee ) ) ) an individual; ALBERT HINOJOSA ) ) ) ) ) ) ) ) ) Department C-32 MARQUEZ, an individual, and DOES 1 through 100, inclusive, Date: June 21, 2018 Defendants. Time: 1:30 p.m. Dept: €32 And related Cross-Actions. I PERTINENT FACTS Defendants and Cross-Complainants, ALBERT MARQUEZ, and his son, MARK MARQUEZ, provided Handyman Services. from time to time, to WALSWORTH PROPERTY] MANAGEMENT, INC., as well as to other companies. At no time were either of them ever OPPOSION TO DEMURRER -1- LF 18 19 20 2; 22 23 25 26 27 28 employees of WALSWORTH PROPERTY MANAGEMENT, INC. On occasion, when extra, unskilled labor was needed on a specific job, ALBERT and/or MARK MARQUEZ, would pick up a Day Laborer from in front of the local Home Depot. At no time have either of them ever been involved in any violent confrontations, either actual or threatened. On November 19, 2017, around 9:00 a.m., ALBERT MARQUEZ, stopped byj WALSWORTH PROPERTY MANAGEMENT, INC., located at 1420 East Edinger Avenue, Santa Ana, California 92704, to see if there was a check there for him for past services rendered] but the office was closed. On the way out, I saw two unknown persons, who have now been identified as the Plaintiffs, putting office furniture and construction debris into the complex dumpsters. ALBERT politely told them that they cannot be putting office furniture and construction debris in the dumpsters because the dumpsters were only for ordinary office trash and the other tenants could not use the dumpsters if they were filled with office furniture and construction debris, so they would need to haul it away. The older man (JUAN) just said he understood. Later that day, ALBERT MARQUEZ met his son, MARK, who had picked up a Day Laborer in front of the Home Depot located at Lyon and Edinger, and they worked at another] location for someone else. On their way home, at around 5:00 p.m., ALBERT and MARK MARQUEZ, as well as the Day Laborer, driving 2 separate vehicles, stopped by WALSWORTH| PROPERTY MANAGEMENT, INC. located at 1420 East Edinger Avenue, Santa Ana, California 92704, to pick up the check ALBERT had tried to pick up that morning. Now both dumpsters were overflowing with office furniture and construction debris such that the tenants had no place to throw away their normal trash. ALBERT mentioned to Mr. WALSWORTH that he had told the two unknown persons, who have now been identified as the Plaintiffs, that they could not use] the dumpsters and would have to haul away their office furniture and construction debris earlier that morning. Mr. WALWORTH appeared upset that the Plaintiffs had not only used the dumpsters improperly and without permission, but that they had actually been warned not to use them that morning, and immediately went out to tell them to haul their office furniture and construction debris away. ALBERT MARQUEZ followed because he was the one who had OPPOSION TO DEMURRER -2- 10 11 12 13 14 1 16 17 18 19 20 24 25 26 21 28 warned the Plaintiffs earlier in the day, and he was followed by MARK MARQUEZ and the Dayj Laborer. The subject confrontation took place behind the Plaintiffs’ van.. Mr. WALSWORTH told the Plaintiffs that the dumpsters were not for office furniture and construction debris and that they had to haul away their office furniture and construction debris sol that the other tenants in the complex would have a place to throw away their normal office trash. The Plaintiffs shouted profanities at Mr. WALSWORTH and told him that they can do whatever they want and he can’t do anything about it. At about the same time, the younger Plaintiff (EDWIN) started pushing the Day Laborer who pushed him back. The Plaintiffs’ were clearly] threatening violence and the younger Plaintiff (EDWIN) had already initiated violence, so Mr. WALSWORTH backed away and headed down the sidewalk towards his office. ALBERT alsol backed away, although he was in the parking lot. MARK MARQUEZ had not moved and was watching the younger Plaintiff (EDWIN) and the Day Laborer shove each other when he was punched in the right side of his neck by the older Plaintiff (JUAN), without any warning. In self-defense, MARK MARQUEZ wrapped his arms around JUAN GUERRERO, to prevent any more punches and pushed them both to the ground. MARK MARQUEZ then jumped up and backed away, while JUAN GUERRERO got up and went] to the driver’s door of his van. EDWIN CEJA and the Day Laborer had stopped shoving each other and EDWIN CEJA also went to the driver's door of their van. ALBERT MARQUEZ never touched anyone and no one ever touched him. Fearing that the Plaintiffs may be arming] themselves, ALBERT and MARK MARQUEZ, as well as the Day Laborer, left the area immediately in their two vehicles to avoid the Plaintiffs. ALBERT MARQUEZ went straight home, while MARK MARQUEZ dropped the Day LABORER off at the Home Depot at Lyon and Edinger, and then went home. ALBERT] MARQUEZ later received a call from the Santa Ana Police Department and they asked ALBERT] and MARK MARQUEZ to return to 1420 East Edinger Avenue, Santa Ana, California 92704 to answer some questions. ALBERT and MARK MARQUEZ promptly complied, but when they arrived, no questions were ever asked of them and they were both immediately handcuffed and placed under arrest. Not only did the police state that the Cross-Defendants had told them that ALBERT and MARK MARQUEZ had initiated the physical confrontation, but they both heard OPPOSION TO DEMURRER -3- 10 2] 13 14 15 17 18 20 21 22 23 24 25 26 27 28 and saw NORA OCHA pointing at them and stating to the police that ALBERT and MARK MARQUEZ had initiated the physical confrontation, even though said representations were nof true, which was a violation of Penal Code §148.5. As a direct result of JUAN GUERRERO, EDWIN CEJA and NORA OCHA'’S violation of Penal Code §148.5, ALBERT and MARK MARQUEZ spent the rest of November 19, 2017 in jail and were required to post bail. Cross-Complainants believe that NORA OCHA withheld thd fact that JUAN GUERRERO and EDWIN CEJA were her relatives from the Santa Ana Police in| order to make her false claims to the police, in violation of Penal Code §148.5, more credible. The next day, on November 20, 2017, JUAN GUERRERO and EDWIN CEJA haul awayj the office furniture and construction debris that they and NORA OCHA had improperly and without permission, placed in the two complex dumpsters, since it was never disputed that the complex dumpsters were not for office furniture and construction debris. Neither, ALBERT or MARK MARQUEZ have ever been charged with any crime. CROSS-COMPLAINATS Ea PLEAD SUFFICIENT FACTS A demurrer tests the pleading alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleadings or are judicially] noticed. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” SKF Farms v. Superior Court (1984) 153 Cal. App.3d 902, citing Griffith v. Department of Public Works (1956) 141 Cal. App.2d 376).” In SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 200 Cal. Rptr. 497, the Court stated: "A demurrer tests the pleading alone and not the evidence or other extrinsic maters. Therefore, it lies only where the defects appear on the face of the pleadings or are judicially noticed (Code Civ. Prod. §§430.30, 430.70). The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action (Griffith v. Department of Public Works (1956) 141 Cal. App. 2d 376)." OPPOSION TO DEMURRER -4- 10 al 12 1.3 14 15 16 17 18 23 24 25 26 27 28 In Domino v. Mobley (1956) 144 Cal.App.2d 24, 300 P.2d 324, the Court said: "While the complaint is far from a model pleading we think it states facts sufficient to constitute a cause of action. All that is necessary as against a general demurrer is to plead facts entitling the plaintiff to some relief. The complaint is to be liberally construed. Surplusage is to be disregarded. If upon a consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendant, the complaint will be held good although the facts may not be clearly stated or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged." When ruling on a Demurrer, the properly plead material factual allegations, together with facts that may be properly judicially noticed, are accepted as true. Reversible error exists if facts were alleged showing entitlement to relief under any possible legal theory. Platt v. Coldwell Banker Residential Real Estate Services, (1990) 217 Cal. App.3d 1439, 1444 Where a Demurrer is sustained without leave to amend, the reviewing court must determine whether the Trial Court abused its discretion in doing so. Cooper v. Leslie Salt Co., (1969) 70 Cal.2d 627, 636. It is an) abuse of discretion to deny leave to amend if there is a reasonable possibility that the pleading can be cured by amendment. Goodman v. Kennedy, (1976) 18 Cal.3d 335, 349. Regardless of whether a request therefore was made, unless the Complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion. Roman v. County of Los Angeles, (2000) 85 Cal. App.4™ 316, 321 Certainly, Cross-Complainants have shown that they are entitled to some relief andl apprised the Cross-Defendants of the claims against them. Any further details should properly be obtained through discovery. III ATTEMPTED EXTORTION This cause of action is for “Attempted Extortion”, not for “Extortion” as the Plaintiff's seem to claim. Accordingly, they are not required to have succeeded in acquiring property, which is very broadly defined, including PIN numbers and other forms of permission. People v. Kozlowski (2002) 96 Cal. App.4" 518 In this case, the “Attempted Extortion”, caused Cross Complainants emotional distress damages for the arrest and time in jail, as well a financial damage in the form of bail. Another reason that the cause of action is for “Attempted Extortion” is that OPPOSION TO DEMURRER -5- 10 11 12 14 15 16 17 18 20 24. 22 23 24 25 26 28 neither ALBERT or MARK MARQUEZ had any authority to concede to the Plaintiffs’ threats and demands anyway, because they were just bystanders. In Flatley v. Mauro (2006) 39 Cal.4th 299, the California Supreme Court said: Extortion has been characterized as a paradoxical crime in that it criminalizes the making of threats that, in and of themselves, may not be illegal. “[I|n many blackmail cases the threat is to do something in itself perfectly legal, but that threat nevertheless becomes illegal when coupled with a demand for money.” (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1079, 267 Cal Rptr. 457.)13 The extortion statutes “all adopted at the same time and relating to the same subject matter, clearly indicate that the legislature in denouncing the wrongful use of fear as a means of obtaining property from another had in mind threats to do the acts specified in section 519, the making of which for the purpose stated is declared to be a wrongful use of fear induced thereby.” (People v. Beggs (1918) 178 Cal. 79,83, 172 P. 152.) “It is the means employed [to obtain the property of another] which the law denounces, and though the purpose may be to collect a just indebtedness arising from and created by the criminal act for which the threat is to prosecute the wrongdoer, it is nevertheless within the statutory inhibition. The law does not contemplate the use of criminal process as a means of collecting a debt.” (Id. at p. 84, 172 P. 152; *327 People v. Tufunga (1999) 21 Cal.4th 935, 955, - 987 P.2d 168 [In Beggs “we explained that because of the strong public policy militating against self-help by force or fear, courts will not recognize a good faith defense to the satisfaction of a debt when accomplished by the use of force or fear]; Lindenbaum v. State Bar (1945) 26 Cal.2d 565, 573, 160 P.2d 9 [For purposes of extortion “[i]t is immaterial that the money which petitioner sought to obtain through threats may have been justly due him”); Gomez v. Garcia (9th Cir.1996) 81 F.3d 95, 97 [The law of California was established in 1918 that belief that the victim owes a debt is not a defense to the crime of extortion™].) Moreover, threats to do the acts that constitute extortion under Penal Code section 519 are extortionate whether or not the victim committed the crime or indiscretion upon which the threat is based and whether or not the person making the threat could have reported the victim to the authorities or arrested the victim. (People v. Sanders (1922) 188 Cal. 744, 756, 207 P. 380; People v. Goldstein (1948) 84 Cal. App.2d 581, 587, 191 P.2d 102; People v. Hesslink (1985) 167 Cal. App.3d 781, 787. 213 Cal.Rptr. 465.) Furthermore, the crime with which the extortionist threatens his or her victim need not be a specific crime. “[T]he accusations need only be such as to put the intended victim of the extortion in fear of being accused of some crime. The more vague and general the terms of the accusation the better it would subserve the purpose of the accuser in magnifying the fears of his victim, and the better also it would serve to protect him in the event of the failure to accomplish his extortion and of a prosecution for his attempted crime.” (People v. Sanders, supra, at pp. 749-750, 207 P. 380; People v. Massengale (1968) 261 Cal.App.2d 758, 764-765, 68 Cal.Rptr. 415.) OPPOSION TO DEMURRER -6- 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 As the California Supreme Court notes, the essence of Extortion, and Attempted Extortion is the making of a threat or intimidating the other party, and the vaguer the threat the more onerous itis. Even if the Plaintiffs use of the complex dumpster was proper, as they claim, that is not a defense to Attempted Extortion. Nor is it a defense that the offending party had a good faith belief or that the victim did not have the ability to capitulate. Civil Attempted Extortion will lie whenever there is any threat or intimidation, of any kind, sufficient to cause fear to the victim(s). Any type of violence directed at a person or a family member clearly qualifies as threatening. Paragraph 15 of the Cross-Complaint clearly alleges threats, abusive conduct and actual violence against MARK] MARQUEZ, who is related to ALBERT MARQUEZ. Accordingly, the subject Demurrer should be overruled. (The Plaintiffs’ attorney’s wild accusations should be ignored because all they are} only baseless, wild accusations. Only a trial will determine what really happened; or as is mor often the situation, whose version of the truth makes more sense.) DATED: June 7, 2018 LAW OFFICES OF MARK B. PLUMMER, PC MARK B. PLUMMER, Attorney for Defendants, and Cross-Complainants, ALBERT H. MARQUEZ and MARK A. MARQUEZ OPPOSION TO DEMURRER i= 10 1d 1:2 13 14 15 16 LY 18 19 20 Zl 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. [ am over the age of 18 and not a party to the within entitled action; my business address is: LAW OFFICES OF MARK B. PLUMMER, PC 18552 Oriente Drive Yorba Linda, California 92886 On June 7, 2018, I served the foregoing document(s) described as follows: POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER On all interested parties as follows: SEE ATTACHED SERVICE LIST (BY MAIL) By mailing the above identified document via Express, Overni ght Mail, fully prepaid at the United States Post Office at Yorba Linda, California. X (BY MAIL) Iam “readily familiar” with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at Yorba Linda, California in the ordinary course of business. I am aware that on motion of the part served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. (BY FACSIMILE) By telecopying a true copy thereof to the party at the above facsimile number. xX (STATE) I Declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 7, 2018, at Yorba Linda, California w NN = 10 al 12 13 14 15 16 1% 18 19 20 21 22 23 24 29 26 27 28 SERVICE LIST Allen Sturgeon, Esq. STURGEON & WEHBE, LLP 28202 Cabot Road, Suite 300 Laguna Niguel, CA 92677 (FAX) 949-365-5601 Attorneys for Defendants WALSWORTH PROPERTY MANAGEMENT, INC., WILLIAM WALSWORTH and SANDRA MARILL CHANDLER Andy Beltran, Esq. 1801 Century Park East, 24" Floor Century City, California 90067 (FAX) 714-464-4646 Attorneys for Plaintiffs and Cross- Defendants, JUAN MANUEL GUERRO and EDWIN YOVANI MERILLO CEJA Christopher L. Wong, Esq. ACHUCHERT. KRIEGER, TRUONG, SPAGNOLA & KLAUSNER 2 Park Plaza, Suite 900 Irvine, California 92614 (FAX) 949-208-7125 Attorneys for Cross-Defendants NORA OCHOA aka NORA HERRERA and NH INVESTMENTS, INC.