United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTIONS TO DISMISS AND MOTION TO
STRIKE; AND DENYING MOTION FOR LEAVE TO AMEND
LAB SON FREEMAN United States District Judge.
action arises out of child custody proceedings in the
California state courts. Plaintiff Tanya Nemcik
(“Nemcik”) alleges that based on an erroneous
child support order against her in family law proceedings in
Santa Clara County Superior Court she faces a mountain of
debt she cannot possibly pay. She further alleges that she
has been charged with contempt of that child support order
and believes that she will be incarcerated as a form of
retaliation by Defendants. See Second Am. Compl.
(“SAC”) ¶ 16, 34, ECF 100.
lawsuit, Nemcik brings several causes of actions grounded in
the state court's allegedly improper calculation of her
child support, conspiracy among lawyers and family law judges
in Contra Costa and Santa Clara counties to deprive Nemcik of
her constitutional rights, and failure by the California
Commission on Judicial Performance to discipline the
identified judges. In this Order, the Court addresses the
following motions: (1) Defendant Stacey Stevens'
(“Stevens”) anti-SLAPP motion to strike the
tenth, thirteenth, and fourteenth causes of action, ECF 103;
(2) Stevens' motion to dismiss, ECF 105; (3) Defendant
Commission on Judicial Performance's motion to dismiss,
ECF 111; (4) Defendant Team Legal's motion to dismiss,
ECF 114; and (5) Nemcik's motion for leave to amend the
complaint, ECF 127.
reasons stated herein, the Court rules as follows: (1) GRANTS
Stevens' motion to strike; (2) GRANTS Stevens' motion
to dismiss; (3) GRANTS Commission on Judicial
Performance's motion to dismiss; (4) GRANTS Team
Legal's motion to dismiss; and (5) DENIES Nemcik's
motion for leave to file a third amended complaint. Pursuant
to Civ. L.R. 7-1(b), the Court finds Team Legal's motion
to dismiss suitable for submission without oral argument and
hereby VACATES the hearing scheduled for August 24, 2017.
instant motions to dismiss are evaluated based solely on the
Second Amended Complaint (“SAC”), the operative
complaint in this case. ECF 100.
Allegations against the Commission on Judicial Performance
states that Nemcik brings this action to assert, vindicate,
and secure the benefit and enjoyment of constitutional rights
against those who commit crimes. SAC ¶ 10, at
3.Nemcik alleges she has been harmed in
Contra Costa and Santa Clara County. Id. ¶ 11,
at 3. As a result, Nemcik seeks monetary damages and
equitable relief for occurrences in her ongoing family law
March 16, 2010, Nemcik filed a complaint with the CJP against
Contra Costa Superior Court Judge Fenstermacher alleging bias
and unlawful acts. Id. ¶ 11, at 3-4. Nemcik
filed a second complaint with the CJP on March 22, 2010.
Id. ¶ 24. On July 7, 2010, the CJP responded to
her complaint in a letter stating that it would not take
action. Id. ¶ 25. Nemcik states that on June
25, 2013, the Court of Appeal determined that Judge
Fenstermacher abused her discretion and denied Nemcik of her
constitutional rights of due process. Id. ¶ 11,
at 3-4. Further, Nemcik states that Judge Fenstermacher
created unlawful orders that gave Brian Krippendorf, the
father of her children, custody. Id. ¶¶ 6,
12, at 6-7. Nemcik alleges that her rights under the Fifth,
Sixth, Seventh, Eighth, Ninth, and Thirteenth Amendments have
been violated because of the CJP's failure to perform its
duty. Id. ¶ 31.
21, 2012, Nemcik's child support case was moved from
Contra Costa County to Santa Clara County. Id.
¶ 17, at 8. Nemcik claims that she was never informed of
this and had no opportunity to object to jurisdiction.
Id. As a result, Nemcik alleges that the trial date
was moved without giving her time to serve key witnesses.
Id. ¶ 66. Nemcik claims that Stevens conspired
with the commissioners, clerks, and others to change the
child support venue to Santa Clara County. Id.
2013 to 2016, Nemcik alleges that Stevens and Contra Costa
Judge Fannin conspired regarding various matters including:
attaining a domestic violence restraining order against
Nemcik, calculating erroneous child support payments, and
denying Nemcik her due process rights to a fair trial.
Id. ¶¶ 14, 16, 66, at 8, 16. Nemcik claims
that attorneys and judges routinely conspire together to
steal children for their personal financial gain.
Id. ¶ 9, at 7. Specifically, Nemcik alleges
that Stevens conspired with Santa Clara Commissioner Mills to
set child support at an amount higher than she was able to
pay, causing her cruel and unusual punishment. Id.
¶ 20, at 9. Further, Nemcik alleges that Stevens
conspired, again, with Commissioner Mills to gain his
approval to harass Nemcik and her employer. Id.
¶ 128. Nemcik believes that Stevens intentionally
interfered with an economic relationship between her and her
employer due to the constant litigation, requests for
sanctions, and attorneys' fees thereby interfering with
her ability to do work. Id. ¶¶ 126-27.
2015, Contra Costa Superior Court Judge Landau became the
judge for Nemcik's state court case. Id. ¶
40. Nemcik alleges that Judge Landau conspired with Stevens
to issue an order deeming Nemcik a vexatious litigant and to
deny her request for trial. Id. ¶ 40. Nemcik
blames the CJP for having failed to do its duty to properly
discipline the judges. Id. ¶ 42. According to
Nemcik, if the judges had been properly trained, they would
not have allowed Stevens to “continue her malicious
rampage against [Nemcik].” Id. Nemcik claims
that the CJP knew its conduct created a substantial risk of
harm, but failed to take adequate action to prevent it.
Id. ¶¶ 45-6. As a result, Nemcik states
that the CJP committed crimes that caused her to lose her
house, money, property, and time with her children.
Id. ¶ 55. Additionally, Nemcik states that
these crimes have caused her great emotional trauma.
believes that she has been denied due process and an
impartial judge. Id. ¶ 72. Specifically, Nemcik
states that Contra Costa Judge Fenstermacher, Judge Fannin,
and Judge Landau concealed documents with the intent of
denying her constitutional rights. Id. ¶ 74.
Nemcik alleges that she was discriminated against based on
her disability, recognized by the Americans with Disabilities
Act (“ADA”). Id. ¶ 36. Nemcik
states that she requested accommodations and was provided
them under the ADA; however, Nemcik also alleges that she was
discriminated against because Santa Clara Commissioner Mills
denied certain accommodations including: a tape recorder,
extra time to listen and understand court hearings, and
“plain English orders.” Id. ¶¶
93, 98. Once again, Nemcik alleges that the CJP had an
obligation to train and supervise its employees, but failed
to do so, resulting in ADA violations. Id. ¶
Allegations against Team Legal and Thompson Reuters
addition to Defendants CJP and Stevens, Nemcik has asserted
claims against Team Legal and Thompson Reuters. Id.
¶ 122, and p. 28.
Team Legal is a company that provides legal services
including service of process. See SAC ¶¶
106-07. Nemcik alleges that Team Legal acted in concert with
the judges and judicial officers to notify her of a change in
venue for her child custody case. Id. ¶¶
108-09. Nemcik avers that Team Legal failed to properly train
and supervise its employee, Rick Secrist, and knew that he
claimed proper service even though Nemcik claims she was
never served. Id. ¶¶ 107, 121-2. Nemcik
further alleges that the court either reasonably relied on
the representation of Team Legal or that they conspired
together to purposely harm her. Id. ¶ 124.
Thompson Reuters, is a company that owns software made to
calculate child support. See SAC at 28. Nemcik seeks
monetary damages for the amount of child support calculated
through its software program and instructions. Id.
Allegations against all Defendants
alleges that all Defendants intentionally acted in ways to
cause her emotional stress by yelling at her and making
unreasonable orders, requests, and false statements.
Id. ¶ 135. Nemcik also alleges that the
Defendants acted with reckless disregard as to the
probability that she would suffer emotional distress.
Id. ¶ 136. Nemcik specifically claims that the
CJP was negligent in its obligations and has been a
substantial factor in causing her serious emotional distress.
Id. ¶ 140.
result, Nemcik brings this suit against the following
entities and individuals: (1) against the CJP, for malice,
oppressive, and fraudulent conduct of the CJP, judges,
commissioners, and Stevens; (2) against Stevens, for malice
and fraudulent conduct; (3) against Team Legal, for
fraudulent conduct and conspiring for the purpose of causing
her harm; and (4) against Thompson Reuters, for allowing
judges to use its software program and instructions. SAC at
law provides for the pre-trial dismissal of certain actions,
known as Strategic Lawsuits Against Public Participation, or
SLAPPs, that masquerade as ordinary lawsuits but are intended
to deter ordinary people from exercising their political or
legal rights or to punish them for doing so.”
Makaeff v. Trump University, LLC, 715 F.3d 254, 261
(9th Cir. 2013) (internal quotation marks and citations
omitted). Section 425.16 of the California Code of Civil
Procedure, also referred to as the anti-SLAPP statute,
provides in relevant part that:
A cause of action against a person arising from any act of
that person in furtherance of the person's right of
petition or free speech under the United States Constitution
or the California Constitution in connection with a public
issue shall be subject to a special motion to strike, unless
the court determines that the plaintiff has established that
there is a probability that the plaintiff will prevail on the
Cal. Civ. P. Code § 425.16(b)(1).
of an anti-SLAPP motion is a two-step process. Baral v.
Schnitt, 1 Cal. 5th 376');">1 Cal. 5th 376, 384 (2016). “First, the
defendant must establish that the challenged claim arises
from activity protected by section 425.16.”
Id. (citing Taus v. Lofton, 40 Cal.4th 683,
712 (2007)). Second, “[i]f the defendant makes the
required showing, the burden shifts to the plaintiff to
demonstrate the merit of the claim by establishing a
probability of success.” Id. Under the second
step, “the claim should be dismissed if the plaintiff
presents an insufficient legal basis for it, or if, on the
basis of the facts shown by the plaintiff, no reasonable jury
could find for the plaintiff.” Makaeff, 715
F.3d at 261 (internal quotation marks and citation omitted).
motion to dismiss for failure to state a claim under Rule
12(b)(6) tests the legal sufficiency of a complaint.
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
In considering whether the complaint is sufficient to state a
claim, the Court must accept as true all of the factual
allegations contained in the complaint. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). However, the Court need
not accept as true “allegations that contradict matters
properly subject to judicial notice or by exhibit” or
“allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences.” In
re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th
Cir. 2008). While a complaint need not allege detailed
factual allegations, it “must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible when it “allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678.
“Determining whether a complaint states a plausible
claim for relief . . . [is] a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
Court addresses each of the pending motions below.
Stevens' Motion to Strike (ECF 103)
Stevens was an attorney representing Brian Krippendorf in
Nemcik's state court child custody and support case. Mem.
in support of Mot. to Strike (“MTS”) 1, 4, ECF
104. She moves to strike Nemcik's eighth cause of action
for intentional interference with prospective economic
advantage, and ninth cause of action for intentional
infliction of emotional distress pursuant to California's
anti-SLAPP statute. Id. at 1. According to Stevens,
Nemcik's SAC has not cured the deficiencies of her FAC,
and the allegations still relate to Stevens' litigation
related activity, which should be stricken under the
anti-SLAPP statute. Id. at 4-5.
opposes the motion, arguing that Stevens is liable for these
claims despite being a private actor, as she conspired with
the state court judges who are state actors. Opp'n to MTS
2, ECF 109. Nemcik further argues that Stevens' conduct
went beyond the scope of petitioning the court. Id.
at 3. Nemcik explains that she recently received documents
from a subpoena that were used to “determine custody in
closed sessions hearings.” Id. According to
Nemcik, she had no opportunity to engage to those hearings.
Id. Nemcik argues that this is evidence of
Stevens' conspiracy to deny her due process. Id.
anti-SLAPP statute applies to litigation related conduct,
provided those statements are made in connection with pending
or anticipated litigation. See, e.g.,
Semiconductor Equip. and Materials Int'l, Inc. v. The
Peer Grp., Inc., No. 15-00866-YGR, 2015 WL 5535806.
Here, Nemcik's eighth and ninth causes of action relate
to Stevens' litigation-connected conduct. In support of
the eighth cause of action, the SAC states that Stevens
intentionally interfered with Nemcik's economic
relationships with employers due to constant litigation and
requests for sanctions and attorney's fees. See,
e.g., SAC ¶¶ 126-27. According to the SAC,
such conduct by Stevens interfered with Nemcik's ability
to do the work she contracted with her employer. Id.
As to the ninth cause of action, the SAC alleges that
Stevens' “shocking” behavior caused Nemcik
severe emotional distress. E.g., id.
¶¶ 133-135. Specifically, Stevens and other
defendants “yell[ed]” at Nemcik and made
“unreasonable orders and requests.” Id.
Nemcik also references Exhibits A and E in support of these
two causes of action. Exhibit A is a copy of a Contra Costa
Superior Court docket for Nemcik's child support and
custody case against Brian Krippendorf. Ex. A to SAC, ECF
100-1. Exhibit E contains third-party statements noting that
Stevens had “yelled” at Nemcik and made
“abrasive” and “snide” comments about
Nemcik. Ex. E to SAC, ECF 100-3. Even though these alleged
behaviors might not be pleasant to encounter, they remain
activities in connection with the litigation in Nemcik's
child support case. As such, Stevens has met her burden of
establishing that the challenged claims arose from activity
protected by California Civil Procedure Code § 425.16.
the allegations that the closed session hearings were
improper and suggestive of a conspiracy, such allegations do
not negate that Stevens' conduct was within the scope of
the litigation proceeding. Nemcik admitted at the hearing
that during the relevant times, she was represented by an
attorney who was present at the “closed
hearings.” See also Ex. O-220, ECF 100-5.
Given that an attorney representing Nemcik was present, the
mere occurrence of hearings off the record does not support
her conspiracy claims that Stevens' conduct was improper
and beyond the scope of litigation. Accordingly, this alleged
conduct is also related to Stevens' litigation activity
on behalf of her client in the context of judicial
proceedings and is protected conduct. Thus, Stevens has
satisfied the first prong of the anti-SLAPP motion.
burden shifts to Nemcik to demonstrate the merit of her claim
by establishing a probability of success - “a
summary-judgment-like procedure.” Baral, 1
Cal. 5th at 384. With regard to the eighth cause of action,
elements for a claim for intentional interference with
prospective economic advantage are: “(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., 29
Cal.4th 1134, 1153 (2003) (citation and internal quotations
omitted). Moreover, the California Supreme Court in Della
Penna v. Toyota Motor Sales, U.S.A., Inc. held that a
plaintiff seeking to recover damages for interference with
prospective economic advantage must plead and prove as part
of its case-in-chief that the defendant's conduct was
“wrongful by some legal measure other than the fact of
interference itself.” 11 Cal.4th 376, 393 (1995). Here,
the exhibits in combination with the complaint fail to
support that Stevens' actions and statements underlying
the family court litigation are wrongful. Further, California
Civil Code § 47(b) provides privileges for statements
made in judicial proceedings. See GeneThera, Inc. v. Troy
& Gould Prof'l Corp., 171 Cal.App.4th 901, 909
(2009). California Civil Code § 47(b) broadly applies to
“any communication and all torts other than malicious
prosecution.” Id. Accordingly, Nemcik has not
demonstrated likelihood of success on this claim based on
Stevens' litigation conduct.
to the ninth cause of action for intentional infliction of
emotional distress, the required elements are: “(1)
extreme and outrageous conduct by the defendant with the
intention of causing, or reckless disregard of the
probability of causing, emotional distress; (2) the
plaintiff's suffering severe or extreme emotional
distress; and (3) actual and proximate causation of the
emotional distress by the defendant's outrageous
conduct.” Christensen v. Superior Court, 54
Cal.3d 868, 903 (1991) (internal quotation marks and citation
omitted). The alleged conduct “must be so extreme as to
exceed all bounds of that usually tolerated in a civilized
community.” Id. (internal quotation marks and
citation omitted). Again, like the eighth cause of action
discussed above, California Civil Code § 47(b) provides
absolute privilege for Stevens' conduct that forms the