Filed 1/4/21 Maliauka v. Essex Property Trust CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

AGATA RATAJCZAK 

MALIAUKA,

 Plaintiff and Appellant,

v.

ESSEX PROPERTY TRUST, 

INC.,

 Defendant and Respondent.

2d Civil No. B304539

(Super. Ct. No. 56-2019-

00529047-CU-PO-VTA)

(Ventura County)

ORDER MODIFYING 

OPINION AND DENYING

PETITION FOR REHEARING

[NO CHANGE IN 

JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on 

December 14, 2020, be modified as follows:

On page 8, first full paragraph, after “Respondent 

shall recover its costs on appeal” insert footnote 2 as follows: 

2In her petition for rehearing, appellant erroneously 

contends, “The opinion erred as a matter of law in awarding 

respondents costs without a finding that the action was clearly 

frivolous and totally lacking in merit.” (Capitalization omitted.) 
2

As the prevailing party, respondent is entitled to its costs on 

appeal pursuant to the California Rules of Court, rule 8.278(a)(1)

[“Except as provided in this rule, the party prevailing in the 

Court of Appeal in a civil case other than a juvenile case is

entitled to costs on appeal”].

There is no change in judgment.

Appellant’s petition for rehearing is denied.

GILBERT, P.J. YEGAN, J. TANGEMAN, J.
Filed 12/14/20 Maliauka v. Essex Property Trust CA2/6 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

AGATA RATAJCZAK

MALIAUKA,

 Plaintiff and Appellant,

v.

ESSEX PROPERTY TRUST, 

INC.,

 Defendant and Respondent.

2d Civil No. B304539

(Super. Ct. No. 56-2019-

00529047-CU-PO-VTA)

(Ventura County)

Proceeding in propria persona, Agata Ratajczak Maliauka 

appeals from a judgment of dismissal entered after the trial court 

had sustained without leave to amend the demurrer of her former 

landlord, respondent Essex Property Trust, Inc. We conclude 

that the trial court properly sustained the demurrer without 

leave to amend because appellant had engaged in impermissible 

forum shopping. After the original trial court judge had ruled 

against her, appellant voluntarily dismissed the action without 

prejudice and made unfounded accusations that the judge was 
2

biased and corrupt. In the hope that a different judge would rule 

in her favor, she filed a second action based on the same facts as 

the first action. A different judge was assigned to the second 

action, and he ruled against her based on her forum shopping. 

We affirm the judgment dismissing the second action.

Procedural Background

Appellant filed a small claims action against respondent. 

Appellant sought to recover moving expenses she had incurred 

after respondent had refused to renew her lease. In February 

2018 judgment was rendered in respondent’s favor. 

One month later, appellant filed against respondent a 

complaint alleging five causes of action: legal fraud, 

discrimination, defamation, endangerment to life, and intentional 

infliction of emotional distress (IIED). (This lawsuit is hereafter 

referred to as “the first action.”) As to the cause of action for 

legal fraud, the trial court granted respondent’s anti-SLAPP 

motion. As to the cause of action for IIED, the court sustained 

respondent’s demurrer with leave to amend. As to the remaining 

causes of action, the court sustained respondent’s demurrer 

without leave to amend. The court granted respondent’s motion 

to strike from the complaint, without leave to amend, appellant’s 

request for punitive damages. 

Appellant filed a first amended complaint. The trial court 

sustained respondent’s demurrer with leave to amend. 

Appellant filed a second amended complaint alleging a 

cause of action for IIED and new causes of action for negligent 

infliction of emotional distress, negligence, nuisance, constructive 

eviction, and breach of implied warranty of habitability. 

Appellant sought both general and punitive damages. Because 

the court had not granted leave to allege the new causes of action, 
3

it struck them without leave to amend. It also struck the request 

for punitive damages without leave to amend. As to the cause of 

action for IIED, it sustained respondent’s demurrer with leave to 

amend. 

Appellant filed a third amended complaint for IIED. The 

complaint did not seek punitive damages. Eight days after the 

complaint had been filed, at appellant’s request it was dismissed 

without prejudice by the court clerk. In her request for dismissal, 

appellant wrote, “‘[T]his lawsuit voluntarily was terminated due 

to the serious concerns and fitness of Judge Kevin DeNoce [the 

trial court judge] who is and there’s no doubt in clear bias and 

prejudice toward [appellant], suspicions of Fraud on the Court by 

such Judge [sic].’” 

Appellant initiated the present lawsuit (“the second 

action”) by filing a new complaint against respondent alleging 

causes of action for IIED, breach of contract, and false promise. 

Appellant requested punitive damages as to the cause of action 

for false promise. 

In the second action the original complaint, but not the 

operative first amended complaint, said that appellant had 

voluntarily dismissed the first action because of “a wide spread 

corruption” by Judge “DeNoce and possibly the Superior Court 

itself.” Appellant threatened: “[M]ake no mistake, additional 

complaints will follow against the Judge Kevin DeNoce and 

[respondent’s] Counsel in different Courts and I can assure this, 

all action is heading to a national scandal. A wide spread 

Corruption and innocent people suffering must stop and believe 

me, and no one can’t shut down any longer [appellant] by judicial 

harassment, intimidation, fraud and further cover ups . . . .” 
4

The second action was assigned to Judge Mark Borrell. 

Respondent demurred to the operative first amended complaint. 

The trial court took judicial notice of the original complaint in the 

second action and the contents of the court file in the first action. 

The court noted: “[Appellant] alleges in the original complaint in 

[the second action] essentially the same facts as she asserted in 

[the first action]. Additionally, she alleges in the [original] 

complaint [in the second action] that she dismissed [the first 

action] to have this case assigned to a new department because, 

she claims, Judge DeNoce committed judicial misconduct in that 

earlier case.” 

The trial court sustained without leave to amend 

respondent’s demurrer to the first amended complaint because 

“in [her] own words, [appellant] has acknowledged that [the 

second action] was filed as a means of avoiding the properly 

assigned judge in [the first action] in hopes of seeking more 

favorable rulings elsewhere.” The court observed that, instead of 

filing the second action, “if [appellant] believed [Judge DeNoce’s] 

rulings were unwarranted she ‘properly should have instituted 

appropriate proceedings for review in the [first] action.’” 

Judgment was entered dismissing the second action with 

prejudice. 

Standard of Review

“‘A demurrer tests the legal sufficiency of the complaint. 

[Citation.] Therefore, we review the complaint de novo to 

determine whether it contains sufficient facts to state a cause of 

action. [Citation.] “We treat the demurrer as admitting all 

material facts properly pleaded, but not contentions, deductions 

or conclusions of fact or law.” [Citation.] The trial court exercises 

its discretion in declining to grant leave to amend. [Citation.] If 
5

it is reasonably possible the pleading can be cured by 

amendment, the trial court abuses its discretion by not granting 

leave to amend. [Citation.] The plaintiff has the burden of 

proving the possibility of cure by amendment.’” (Czajkowski v.

Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173.)

The Demurrer Was Properly Sustained 

Without Leave to Amend

Appellant contends that, in ruling on the demurrer, Judge 

Borrell should have considered only the first amended complaint 

in the second action. We disagree. “[A] demurrer reaches not 

only the contents of the complaint, but also such matters as may 

be properly considered under the doctrine of judicial notice. ‘The 

pleading must be read as if it contained all matters of which the 

court could properly take judicial notice even in the face of 

allegations in the pleading to the contrary . . . .’ [Citation.] It is 

not enough that, absent any reference to [her] earlier action [or 

the original complaint in her second action], appellant[’s] new 

pleading might be facially sufficient.” (Ricard v. Grobstein,

Goldman, Stevenson, Siegel, LeVine & Mangel (1992) 6 

Cal.App.4th 157, 160 (Ricard); see also Henry v. Clifford (1995) 

32 Cal.App.4th 315, 322, [appellate court rejected claim that in 

ruling on demurrer “the trial court erred in going beyond the 

complaint and taking judicial notice of the prior action”]; 

Wilkinson v. Zelen (2008) 167 Cal.App.4th 37, 43 [“In ruling on a 

demurrer, the court may ‘“take judicial notice of a party’s earlier 

pleadings and positions”’”].)

The facts in Ricard, supra, 6 Cal.App.4th 157, are similar 

to the facts here. In sustaining the demurrer to the first 

amended complaint in the second action, the trial court relied 

upon Ricard. There, the trial court denied the plaintiffs’ request 
6

to amend their malpractice complaint to add a new claim. “In 

response, and in their conceded effort to avoid this ruling without 

challenging it in an authorized manner, . . . [plaintiffs] filed [a 

new] action in [a different district of the same superior 

court] . . . . This new suit was limited to the identical claim they 

had unsuccessfully sought to join in their malpractice action. 

[¶] [Defendants] demurred on the ground . . . that this was but 

[a] patent attempt to circumvent the prior ruling.” (Id. at p. 159.)

The new action was transferred to the trial court that had 

denied plaintiffs’ request to amend the malpractice complaint. 

The court sustained defendants’ demurrer without leave to 

amend and dismissed the new action. The Court of Appeal 

affirmed. It reasoned: “It is clear the [trial] court sustained the 

demurrer because of [plaintiffs’] attempt to evade its prior ruling 

by filing the second action . . . . We conclude it had authority to 

do so. [¶] A trial court has authority to strike sham pleadings, or 

those not filed in conformity with its prior ruling. [Citations.] 

With almost frightening candor [plaintiffs] acknowledge that the 

present suit was filed solely to circumvent the [trial] court’s prior 

adverse ruling. Consequently, it could properly be struck and in 

so doing, the court did not . . . improperly set itself up as a gatekeeper to control all judicial access.” (Ricard, supra, 6 

Cal.App.4th at p. 162.)

Ricard’s reasoning applies here. In voluntarily dismissing 

the first action and filing the second action, appellant engaged in 

blatant, impermissible forum shopping. She attempted to evade 

Judge DeNoce’s adverse rulings by filing a second lawsuit based 

on the same facts as the first lawsuit before Judge DeNoce. She 

hoped that a different judge would rule in her favor. “Orderly 

judicial procedure requires that multiplicity of litigation be 
7

avoided . . . and that litigants be not encouraged to seek 

another forum for the same relief if unsuccessful in the 

first forum.” (Lazar v. Lazar (1969) 61 Misc.2d 36, 38 [304 

N.Y.S.2d 819, 821].) 

Because of appellant’s improper forum shopping, the first 

amended complaint in the second action failed to state facts 

sufficient to constitute a cause of action. The trial court therefore 

properly sustained respondent’s demurrer without leave to 

amend.

Appellant argues that the order sustaining the demurrer 

was erroneous because respondent failed to comply with Code of 

Civil Procedure section 430.41, subdivision (a), which provides, 

“Before filing a demurrer . . . , the demurring party shall meet 

and confer . . . with the party who filed the pleading that is 

subject to demurrer for the purpose of determining whether an 

agreement can be reached that would resolve the objections to be 

raised in the demurrer.”1 We need not determine whether 

respondent violated section 430.41. Even if respondent had 

violated the statute, we would not reverse the judgment. Section 

430.41, subdivision (a)(4) provides, “Any determination by the 

court that the meet and confer process was insufficient shall not 

be grounds to overrule or sustain a demurrer.”

Denial of Appellant’s Request for Sanctions

Appellant claims that the trial court erroneously denied her 

motion to impose sanctions against respondent pursuant to 

section 128.5. The claim is forfeited because it is not supported 

by meaningful argument with citations to authority and the 

record. “The . . . court’s judgment is presumed to be correct, and 

1 All statutory references are to the Code of Civil 

Procedure.
8

it is appellant’s burden to affirmatively show error. [Citation.] 

To demonstrate error, appellant must present meaningful legal 

analysis supported by citations to authority and citations to facts 

in the record that support the claim of error. [Citations.] When a 

point is asserted without argument and authority for the 

proposition, ‘it is deemed to be without foundation and requires 

no discussion by the reviewing court.’” (In re S.C. (2006) 138 

Cal.App.4th 396, 408.) 

Disposition

The judgment is affirmed. Respondent shall recover its 

costs on appeal.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

TANGEMAN, J.
Mark S. Borrell, Judge

Superior Court County of Ventura

______________________________

Agata Ratajczak Maliauka, in propria persona, for Plaintiff 

and Appellant.

Gates, Gonter, Guy, Proudfoot & Muench and Richard A. 

Muench, for Defendant and Respondent.