Helgah V. Yeff v. Alexander Grinberg, M.D.

“This will be your last notification prior to further action by Ms. Yeff. You have failed to respond, which leaves little choice but to move forward. The State Medical Board will have a complaint filed initially.” (FACC at ¶ 7, Ex. C.)

In the underlying action, Yeff retained Grinberg as a medical expert witness in the Kipnis Lawsuit. She alleges that Grinberg failed to disclose that he was not qualified due to violations of the licensing boards of four states. As a consequence, Yeff was forced to settle the Kipnis Lawsuit for a fraction of what it was worth.

On August 21, 2025, Grinberg filed the operative FACC against Cross-Defendants alleging causes of action for:

• Breach of Contract; • Breach of Implied Covenant of Good Faith and Fair Dealing; • Unfair Business Practices under Bus. & Prof. Code sections 17200, et seq.; • Extortion Through Threatening Letters; • Defamation; • Intentional Interference with Contractual Relations; • Negligent Interference with Prospective Economic Relations; • Equitable Indemnification; • Contribution; and • Conspiracy to Commit Extortion.

On September 11, 2025, Cross-Defendants filed the motions presently before the court, a special motion to strike and demurrer to the FACC. Grinberg filed written oppositions and a request for judicial notice. Cross-Defendants filed reply papers.6

A case status review is also scheduled for August 14, 2026.

Special Motion to Strike to the FACC

Cross-Defendants move to strike each cause of action in the FACC on the ground that the pleading arises from protected activity and Grinberg will be unable to demonstrate a probability of success on the merits.

Request for Judicial Notice

Grinberg’s request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (d); see Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file].)

Legal Standard

6 The court declines to consider the reply declaration of attorney Barrett in support of the special motion to strike as it constitutes new evidence being raised for the first time in the reply papers. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 [the general rule of motion practice is that new evidence is not permitted with reply papers]; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [improper to introduce new evidence in reply].)

Code of Civil Procedure section 425.16 provides for a “special motion to strike” when a plaintiff’s claims arise from certain acts constituting the exercise of the constitutional rights of freedom of speech and petition for the redress of grievances, “unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subds. (a) & (b)(1).)

“Consistent with the statutory scheme, ruling on an anti-SLAPP motion involves a two-step procedure. First, the moving defendant must identify ‘all allegations of protected activity’ and show that the challenged claim arises from that activity. [Citations.] Second, if the defendant makes such a showing, the ‘burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.’ [Citation.] Without resolving evidentiary conflicts, the court determines ‘whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.’ [Citation.]” (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 934.)

First Prong: Protected Activity

Law

“A defendant meets his or her burden on the first step of the anti-SLAPP analysis by demonstrating the acts underlying the plaintiff’s cause of action fall within one of the four categories spelled out in [Code of Civil Procedure] section 425.16, subdivision (e).” (Collier v. Harris (2015) 240 Cal.App.4th 41, 50-51 (Collier).) That section provides that an “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ.

Proc., § 425.16, subd. (e).) “These categories define the scope of the anti-SLAPP statute by listing acts which constitute an ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.’ ” (Collier, supra, 240 Cal.App.4th at p. 51, citing Code Civ. Proc., § 425.16, subd. (e).)

“A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.] Critically, ‘the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.’ [Citations.] ‘[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.’ [Citations.] Instead, the focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’ [Citation.]” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062-1063 (Park).)

“[A] claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park, supra, 2 Cal.5th at p. 1060.) To determine whether the speech constitutes the wrong itself or is merely evidence of a wrong, “in ruling on an anti- SLAPP motion, courts should consider the elements of the challenged claim and what actions by defendant supply those elements and consequently form the basis for liability.” (Id. at p. 1063.)

“In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ ” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 670.)

Analysis

“Where a defendant moves to strike the entire complaint and fails to identify, with reasoned argument, specific claims for relief that are asserted to arise from protected activity, the defendant does not carry his or her first-step burden so long as the complaint presents at least one claim that does not arise from protected activity.” (Park v. Nazari (2023) 93 Cal.App.5th 1099, 1108 (Nazari).)

“[W]hile courts may strike less than the entirety of a complaint or pleaded cause of action, the trial court is not required to take on the burden of identifying the allegations susceptible to a special motion to strike. If a defendant wants the trial court to take a surgical approach, whether in the alternative or not, the defendant must propose where to make the incisions. This is done by identifying, in the initial motion, each numbered paragraph or sentence in the complaint that comprises a challenged claim and explaining ‘the claim’s elements, the actions alleged to establish those elements, and wh[y] those actions are protected.’ [Citation.]” (Nazari, supra, 93 Cal.App.5th at p. 1109, emphasis added.)

More recently, in Pechkis v. Trustees of California State University (2026) 119 Cal.App.5th 497 (Pechkis), the Third Appellate District affirmed the trial court’s denial of a special motion to strike two retaliation causes of action because the challenged claims were not shown to arise exclusively from protected conduct:

“Through an elemental analysis, the speech must form the basis of liability for the two challenged causes of action. [Citation.] Defendant provides no analysis of the elements necessary to prove each cause of action, how allegations related to the speech supply the necessary elements of each cause of action, and whether there are other allegations supporting the cause of action that are not protected conduct. Defendant incorrectly assumes one drop of protected conduct fatally poisons both challenged causes of action.” (Pechkis, supra, at p. 506, emphasis added.)

Here, Cross-Defendants argue each cause of action in the FACC arises from protected activity under Code of Civil Procedure section 425.16, subdivision (e)(1) – (4). (See Motion at pp. 6:15-7:4.) They further contend that:

“Here Prong One is satisfied where the Court record reveals that all cause of actions in GRINBERG’s FACC arose from the protected activity of YEFF’s suit against GRINBERG wherein he was a medical expert in her original litigation wherein all conduct took place.” (Id. at p. 7:21-24.)

But, like Nazari and Pechkis, Cross-Defendants do not set forth any analysis of the elements necessary to prove each cause of action and explain how those allegations constitute protected activity. In reply, Cross-Defendants appear to narrow their focus to the fifth, sixth, seventh, eighth, ninth, and tenth causes of action as arising from protected activity under section 425.16, subdivision (e)(2). (See Reply at pp. 2:16-21, 3:13-20.) Even so, the argument in reply, like the moving papers, remains undeveloped and fails to specifically identify the protected activity in each cause of action. (See Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 [“We are not required to examine undeveloped claims or to supply arguments for the litigants”].)

Nor does characterizing the FACC as a retaliatory pleading transform each cause of action into protected activity:

“It is not sufficient that the challenged cross-claims were filed in response to the cross- defendant’s claims. [Citation.] Likewise, it is not sufficient that the cross-claims may have been triggered by, or filed in retaliation for, the cross-defendant’s litigation conduct. [Citation.] Otherwise, nearly all cross-claims would satisfy the first prong of the anti-SLAPP statute’s two-step analysis, regardless of what conduct in fact forms the basis for the cross-claims. [Citation.] Instead, the focus under section 425.16’s first prong is on the cross-defendant’s conduct that gives rise to his or her asserted liability, and whether that conduct constitutes protected speech or petitioning activity. [Citations.] ‘In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the [moving party] supply those elements and consequently form the basis for liability.’ [Citation.]” (Gumarang v.

Braemer on Raymond, LLC (2025) 110 Cal.App.5th 370, 382.)

Furthermore, the motion’s extensive discussion of the litigation privilege does not have any bearing on the first prong as that defense is addressed only in connection with the second prong regarding whether Grinberg can establish a probability of success on the merits of his claims. (See G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 617 [“[T]he litigation privilege has bearing upon the second prong of the Code of Civil Procedure section 425.16 test.”]; see also Birkner v. Lam (2007) 156 Cal.App.4th 275, 284 [affirmative defenses, such as the litigation privilege, are not relevant to the first-prong inquiry].)

The court however need not consider the second prong as Cross-Defendants fail to meet their initial burden in demonstrating that each cause of action in the FACC arises from protected activity. (See Nam v. Regents of University of California (2016) 1 Cal.App.5th 1176, 1185 [“If defendant fails to meet its burden, we need not assess plaintiff’s likelihood of prevailing on the merits.”].)

Consequently, the special motion to strike the FACC is DENIED. (See Shahbazian v. City of Rancho Palos Verdes (2017) 17 Cal.App.5th 823, 830 [“If the moving party fails to demonstrate that any of the challenged causes of action arise from protected activity, the court denies the motion.”].) Having denied the motion on its merits, the court declines to consider Grinberg’s timeliness argument raised in opposition.

Request for Attorney’s Fees and Costs

Cross-Defendants’ request for attorney’s fees and costs is DENIED as they did not prevail on the merits of the special motion to strike.

Demurrer to the FACC

Cross-Defendants argue each cause of action in the FACC is subject to demurrer on the following grounds: (1) failure to state a cause of action; (2) uncertainty; and (3) the claims are barred by the litigation privilege.

Legal Standard

A complaint must contain substantive factual allegations sufficiently apprising the defendant of the issues to be addressed. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2 (Williams).)

“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

“ ‘It is not the ordinary function of a demurrer to test the truth of the plaintiff’s allegations or the accuracy with which he describes the defendant’s conduct. A demurrer tests only the legal sufficiency of the pleading. [Citation.]’ [Citation.] In reviewing the ruling on a demurrer, ‘the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court [citations] ... .’ [Citation.] ‘To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. [Citation.]’ [Citation.] A complaint’s allegations are construed liberally in favor of the pleader. [Citations.]” (Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341.)

Also, “ ‘it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.’ [Citations.]” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)

Failure to State a Cause of Action

“ ‘The absence of any allegation essential to a cause of action renders it vulnerable to a general demurrer. A ruling on a general demurrer is thus a method of deciding the merits of the cause of action on assumed facts without a trial.’ [Citation.] ‘Conversely, a general demurrer will be overruled if the complaint contains allegations of every fact essential to the statement of a cause of action, regardless of mistaken theory or imperfections of form that make it subject to special demurrer.’ [Citation.]” (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 291-292 (Morris).)

“A complaint, with certain exceptions, need only contain a ‘statement of the facts constituting the cause of action, in ordinary and concise language’ [citation] and will be upheld ‘ “so long as [it] gives notice of the issues sufficient to enable preparation of a defense.” ’ [Citation.] ‘[T]o withstand a demurrer, a complaint must allege ultimate facts, not evidentiary facts or conclusions of law.’ [Citation.]” (Morris, supra, 78 Cal.App.5th at p. 292.)

First Cause of Action: Breach of Contract

To prevail on a cause of action for breach of contract, the plaintiff must allege and prove: (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

Cross-Defendants argue the first cause of action fails to state a claim as Grinberg does not allege which terms of the contract were breached. This argument however is not persuasive as Grinberg alleges Yeff breached the written contract by failing to make payment for services in the amount of $24,250. (FACC at ¶¶ 15-20.) Therefore, the demurrer to the first cause of action on the ground that it fails to state a valid claim is OVERRULED.

Second Cause of Action: Breach of Implied Covenant of Good Faith and Fair Dealing

“[E]very contract imposes upon each party a duty of good faith and fair dealing in the performance of the contract such that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” (Storek & Storek, Inc. v. Citicorp Real Estate, Inc. (2002) 100 Cal.App.4th 44, 55.)

“The implied covenant of good faith and fair dealing rests upon the existence of some specific contractual obligation.” (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031.) “The covenant of good faith is read into contracts in order to protect the express covenants or promises of the contract, not to protect some general public policy interest not directly tied to the contract’s purpose.” (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 690.) “In essence, the covenant is implied as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party’s rights to the benefits of the contract.” (Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1153.)

“In California, the factual elements necessary to establish a breach of the covenant of good faith and fair dealing are: (1) the parties entered into a contract; (2) the plaintiff fulfilled his obligations under the contract; (3) any conditions precedent to the defendant’s performance occurred; (4) the defendant unfairly interfered with the plaintiff’s rights to receive the benefits of the contract; and (5) the plaintiff was harmed by the defendant’s conduct.” (Rosenfeld v. JPMorgan Chase Bank, N.A. (N.D. Cal. 2010) 732 F. Supp.2d 952, 968; CACI No. 325.)

Here, Cross-Defendants do not set forth any substantive argument addressing the second cause of action on the ground that it fails to state a claim in their supporting memorandum of points and authorities. (See Mangano v. Verity, Inc. (2009) 179 Cal.App.4th 217, 222, fn. 6 [“He provides no substantive argument or citation to authority to support this contention, and we therefore deem it abandoned.”]; see also Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1008 [“[F]ailure to offer reasoned analysis of the issue constitutes a waiver.”].)

Accordingly, the demurrer to the second cause of action on the ground that it fails to state a valid claim is OVERRULED.

Third Cause of Action: Unfair Business Practices

“The UCL defines ‘unfair competition’ to ‘mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising’ and any act prohibited by [Business and Professions Code] section 17500. [Citation.]” (Searle v. Wyndham Int’l (2002) 102 Cal.App.4th 1327, 1332-1333 (Searle).) “Section 17200 ‘is not confined to anticompetitive business practices, but is also directed toward the public’s right to protection from fraud, deceit, and unlawful conduct. [Citation.] Thus, California courts have consistently interpreted the language of section 17200 broadly.’ [Citation.]” (South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal.App.4th 861, 877-878.) “The statute prohibits ‘wrongful business conduct in whatever context such activity might occur.’ [Citation.]” (Searle, supra, at 102 Cal.App.4th at p. 1333.)

Here, Cross-Defendants assert the UCL cause of action fails because Grinberg does not allege the terms of the subject contract. But, the court overruled the pleading challenge on demurrer to the first cause of action for reasons articulated above. Nor does Grinberg need to allege the contract terms verbatim in the pleading as the alleged contract is attached to the FACC. (See FACC at Ex. A; see also Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 459 [“If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.”].)

Consequently, the demurrer to the third cause of action on the ground that it fails to state a valid claim is OVERRULED.

Fourth Cause of Action: Extortion

Extortion is defined as “the obtaining of property from another, with his consent ... induced by a wrongful use of force or fear ...” (Pen. Code, § 518.) It includes “the making of threats that, in and of themselves, may not be illegal,” but which “ ‘nevertheless becomes illegal when coupled with a demand for money.’ ” (Flatley v. Mauro (2006) 39 Cal.4th 299, 326.) Although extortion is a crime, case law has recognized the existence of a civil cause of action for extortion. (Ibid.; Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 426 (Fuhrman) [“However denominated (e.g., extortion, menace, duress), our Supreme Court has recognized a cause of action for the recovery of money obtained by the wrongful threat of criminal or civil prosecution”], disapproved on another ground in Silberg v. Anderson (1990) 50 Cal.3d 205, 219.)

A civil cause of action for extortion “is essentially a cause of action for moneys [or other consideration] obtained by duress ...” (Fuhrman, supra, 169 Cal.App.3d at p. 426; see Leeper v. Beltrami (1959) 53 Cal.2d 195, 207.) The doctrine “may come into play upon the doing of a wrongful act which is sufficiently coercive to cause a reasonably prudent person ...to succumb to the perpetrator’s pressure.” (Rich & Whillock, Inc. v. Ashton Development, Inc. (1984) 157 Cal.App.3d 1154, 1157.)

Here, Cross-Defendants do not provide any substantive argument addressing the fourth cause of action on the ground that it fails to state a claim in their supporting memorandum of points and authorities.

Therefore, the demurrer to the fourth cause of action on the ground that it fails to state a valid claim is OVERRULED.

Fifth Cause of Action: Defamation

“Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.)

Cross-Defendants contend the defamation claim fails because: (1) truth is an absolute defense; and (2) any statements by Yeff and her counsel are protected speech.

“A general demurrer will lie where the complaint ‘has included allegations that clearly disclose some defense or bar to recovery.’ [Citation.]” (Cryolife, Inc. v. Super. Ct. (2003) 110 Cal.App.4th 1145, 1152 (Cryolife).) In cases of defamation, the truth of the offensive statements or communication is a complete defense against civil liability, regardless of bad faith or malicious purpose. (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 28.)

Here, Cross-Defendants do not identify allegations in the FACC that clearly disclose the defense of truth with respect to the defamation claim. Thus, the defense of truth remains a factual issue that cannot be decided on demurrer. (See Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 889-890 [resolution of factual issues is not appropriate on demurrer].) And, whether the alleged defamatory statements constitute protected speech, is not an issue for general demurrer.

Accordingly, the demurrer to the fifth cause of action on the ground that it fails to state a valid claim is OVERRULED.

Sixth Cause of Action: Intentional Interference with Contractual Relations

“To prevail on a cause of action for intentional interference with contractual relations, a plaintiff must plead and prove (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant’s knowledge of that contract; (3) the defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.)

Here, the sixth cause of action is based on alleged interference by attorney Barrett and the Law Office with respect to the written contract entered into between Grinberg and Yeff. (FACC at ¶¶ 54-59.) As stated above, the interference claim requires the existence of a valid contract. On demurrer, Cross-Defendants assert the alleged contract is void because Grinberg had his medical license suspended and thus he was never owed any money and cannot seek damages. Again, this is a factual argument raised by Cross-Defendants which cannot be resolved for purposes of this demurrer.

Consequently, the demurrer to the sixth cause of action on the ground that it fails to state a valid claim is OVERRULED.

Seventh Cause of Action: Negligent Interference with Prospective Economic Relations

“The elements of negligent interference with prospective economic advantage are (1) the existence of an economic relationship between the plaintiff and a third party containing the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) the defendant’s knowledge (actual or construed) that the relationship would be disrupted if the defendant failed to act with reasonable care; (4) the defendant’s failure to act with reasonable care; (5) actual disruption of the relationship; (6) and economic harm proximately caused by the defendant’s negligence.” (Redfearn v. Trader Joe’s Co. (2018) 20 Cal.App.5th 989, 1005.)

On demurrer, Cross-Defendants contend the alleged contract is void because Grinberg had his medical license suspended and thus he was never owed any money and cannot seek damages. The court however considered and rejected this contention in addressing the demurrer to the sixth cause of action.

Therefore, the demurrer to the seventh cause of action on the ground that it fails to state a valid claim is OVERRULED.

Eighth Cause of Action: Equitable Indemnification

“Equitable indemnity, which ‘requires no contractual relationship,’ ‘ “is premised on a joint legal obligation to another for damages” ’; it is ‘subject to allocation of fault principles and comparative equitable apportionment of loss.’ [Citation.] ‘ “The elements of a cause of action for [equitable] indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is ... equitably responsible.” ’ [Citation.]” (C.W. Howe Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700.)

On demurrer, Cross-Defendants argue the alleged contract is void because Grinberg had his medical license suspended and thus he was never owed any money. But, the court considered and rejected this argument in addressing the demurrer to the sixth cause of action.

Cross-Defendants next assert the indemnity claim is barred by the economic loss rule.

The economic loss rule provides that “where a purchaser’s expectations in a sale are frustrated because the product he brought is not working properly, his remedy is said to be in contract alone, for he has suffered only economic losses.” (Robinson Helicopter Company v. Dana Corporation (2004) 34 Cal.4th 979, 988.) This doctrine hinges on a “distinction drawn between transactions involving the sales of goods for commercial purposes where economic expectations are protected by commercial and contract law, and those involving the sale of defective products to individual consumers who are injured in a manner which has traditionally been remedied by resort to the law of torts.” (Ibid.)

The rule requires a purchaser to recover solely in contract for purely economic loss due to disappointed expectations, unless the purchaser can demonstrate harm above and beyond a broken contractual promise. (Ibid.)

In support, Cross-Defendants contend that “[t]he economic loss rule prevents recovery to Grinberg as he would never have been hired by Yeff and her counsel and history of suspended medical licenses in three (3) states; and, accordingly would have been paid zero dollars.” (Demurrer at p. 19:10-14.) This contention however is undeveloped as it fails to articulate why the economic loss rule is applicable to the indemnity cause of action.

Furthermore, having reviewed the allegations, the court finds sufficient facts have been pled in support of the equitable indemnity cause of action.

Accordingly, the demurrer to the eighth cause of action on the ground that it fails to state a valid claim is OVERRULED.

Ninth Cause of Action: Contribution

“Typically, a right to contribution is recognized when two or more persons are liable to the same plaintiff for the same injury and one of the joint tortfeasors has paid more than his fair share of the common liability. Recognition of the right reflects the view that when two or more persons share responsibility for a wrong, it is inequitable to require one to pay the entire costs of reparation, and it is sound policy to deter all wrongdoers by reducing the likelihood that any will entirely escape liability.” (Northwest Airlines v. Transp. Workers Union (1981) 451 U.S. 77, 87-88.)

Here, Cross-Defendants state there is no contribution where there is not the same level of liability. This position is not supported by citation to legal authority in the memorandum though the court acknowledges this to be a correct statement of law. (See Pulte Home Corp. v. CBR Electric, Inc. (2020) 50 Cal.App.5th 216, 234, fn. 4 [“Contribution is available only between obligors who share the same level of liability.”].) That said, Cross-Defendants do not advance any substantive argument explaining why the contribution claim fails based on this legal principle and thus their position remains undeveloped for purposes of demurrer.

Consequently, the demurrer to the ninth cause of action on the ground that it fails to state a valid claim is OVERRULED.

Tenth Cause of Action: Conspiracy to Commit Extortion

“There is no separate tort of civil conspiracy and no action for conspiracy to commit a tort unless the underlying tort is committed and damage results therefrom. [Citation.] The significance of a conspiracy theory of liability is that each member may be held jointly liable as a tortfeasor, even though he or she may not have participated directly in the underlying tort. [Citation.] ‘The elements of an action for civil conspiracy are (1) formation and operation of the conspiracy and (2) damage resulting to plaintiff (3) from a wrongful act done in furtherance of the common design.’ [Citation.]” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1136.)

Cross-Defendants assert Grinberg cannot establish damages to support conspiracy. This assertion however fails as it relies on factual arguments which cannot be resolved on general demurrer.

Therefore, the demurrer to the tenth cause of action on the ground that it fails to state a valid claim is OVERRULED.

Uncertainty

“ ‘ “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is incomprehensible that a defendant cannot reasonably respond.” ’ [Citations.] ‘ “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” ’ [Citations.]” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)

“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend. (Williams, supra, 185 Cal.App.3d at p. 139, fn. 2.)

Here, the arguments in support of the special demurrer for uncertainty are incorporated with the arguments raised on general demurrer for failure to state sufficient facts. The court considered and rejected the arguments on general demurrer with respect to each cause of action for reasons stated above. And, to the extent that any ambiguities exist, the parties may seek further clarification through the process of civil of discovery. (See Davies v. Super. Ct. (1984) 36 Cal.3d 291, 299 [purpose of civil discovery is to take game element out of trial preparation and assist parties in obtaining facts and evidence necessary for expeditious resolution of their dispute].)

Accordingly, the demurrer to the FACC on the ground of uncertainty is OVERRULED.

Litigation Privilege

“Civil Code section 47, subdivision (b) defines what is commonly known as the ‘litigation privilege.’ ‘The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.’ [Citation.]” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 912 (Kashian).)

“The litigation privilege is absolute; it applies, if at all, regardless whether the communication was made with malice or the intent to harm. [Citation.] Put another way, application of the privilege does not depend on the publisher’s ‘motives, morals, ethics or intent.’ [Citation.] Although originally applied only to defamation actions, the privilege has been extended to any communication, not just a publication, having ‘some relation’ to a judicial proceeding, and to all torts other than malicious prosecution. [Citations.]” (Kashian, supra, 98 Cal.App.4th at p. 913.)

“The litigation privilege is not limited to the courtroom, but encompasses actions by administrative bodies and quasi-judicial proceedings. [Citation.] The privilege extends beyond statements made in the proceedings, and includes statements made to initiate action. [Citation.]” (Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296, 1303.)

“The litigation privilege furthers several public policies. The principal one is ensuring free access to the courts by prohibiting derivative tort actions. [Citation.] The privilege also promotes complete and truthful testimony, encourages zealous advocacy, gives finality to judgments, and avoids unending litigation. [Citation.]” (Budwin v. American Psychological Assn. (1994) 24 Cal.App.4th 875, 880.)

The litigation privilege is an acceptable ground for demurrer. (See Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17 [sustaining demurrer on ground that litigation privilege barred a fraudulent inducement claim where the inducing statement was made in the course of litigation]; see also Tom Jones Enterprises, Ltd. v. County of Los Angeles (2013) 212 Cal.App.4th 1283 [sustaining a demurrer to a negligence cause of action because government employee’s release of funds obtained via levy was privileged under Civil Code section 47].)

Here, Cross-Defendants argue, throughout the demurrer, that each and every cause of action is barred by the litigation privilege. For example, the moving papers, in some fashion, repeatedly state that:

“Every single cause of action within GRINBERG’S FACC entails facts that took place during litigation and pre-litigation, connection to litigation, and in anticipation to litigation, which is completely protected under the litigation privilege pursuant to California Civil Code § 47(b).” (See Demurrer at pp. 14:10-14, 15:7-9, 17:20-24, 18:9- 12, 25-28, 19:27-20:2, 20:20-23, 22:2-6.) But, like the defense of truth, a demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense. (Stella v.

Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 191; Cryolife, supra, 110 Cal.App.4th at p. 1152.) The problem is that Cross-Defendants have not persuasively demonstrated to the court that the litigation privilege clearly and affirmatively appears on the face of the FACC and that it necessarily bars all claims being asserted by Grinberg. In fact, one of the required elements for application of the litigation privilege is that the communication have some connection or logical relation to the action:

“[T]he ‘connection or logical relation’ which a communication must bear to litigation in order for the privilege to apply, is a functional connection. That is to say, the communicative act – be it a document filed with the court, a letter between counsel or an oral statement – must function as a necessary or useful step in the litigation process and must serve its purposes. This is a very different thing from saying that the communication’s content need only be related in some way to the subject matter of the litigation...” (Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1146.)

As the opposition points out, Cross-Defendants do not specifically identify the privileged communicative conduct in each cause of action for the litigation privilege to apply. Thus, the argument is undeveloped and the litigation privilege cannot be decided on the instant demurrer.

Consequently, the demurrer to the FACC on the ground that each cause of action is barred by the litigation privilege is OVERRULED.

Disposition

The special motion to strike the FACC is DENIED.

Cross-Defendants’ request for attorney’s fees and costs is DENIED.

The demurrer to the FACC is OVERRULED in its entirety.

The Court will prepare the Order.

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