Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nemcik v. Stevens

United States District Court, N.D. California, San Jose Division

June 30, 2017

TANYA NEMCIK, Plaintiff,
STACEY STEVENS, et al., Defendants.


          BETH LAB SON FREEMAN United States District Judge.

         This 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.

         In this 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.

         For the 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.

         I. BACKGROUND

         The instant motions to dismiss are evaluated based solely on the Second Amended Complaint (“SAC”), the operative complaint in this case. ECF 100.

         A. Allegations against the Commission on Judicial Performance and Stevens

         The SAC 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.[1]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 case. Id.

         On 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.

         On June 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. ¶ 30.

         From 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.

         In 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. Id.

         Nemcik 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.

         Additionally, 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[2] 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. ¶ 101.

         B. Allegations against Team Legal and Thompson Reuters

         In addition to Defendants CJP and Stevens, Nemcik has asserted claims against Team Legal and Thompson Reuters. Id. ¶ 122, and p. 28.

         Defendant 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.

         Defendant, 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.

         C. Allegations against all Defendants

         Nemcik 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.

         As a 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 28.


         D. Anti-SLAPP

         “California 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 claim.

Cal. Civ. P. Code § 425.16(b)(1).

         Resolution 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).

         E. Rule 12(b)(6)

         A 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.


         The Court addresses each of the pending motions below.

         A. Stevens' Motion to Strike (ECF 103)

         Stacey 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.

         Nemcik 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.

         California's 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.

         As to 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.

         The 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.

         Turning 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 ยง 47(b) provides absolute privilege for Stevens' conduct that forms the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.