Filed 4/9/15 Hernandez v. Mallchok CA2/8 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION EIGHT 

LOUIS HERNANDEZ, 

 Plaintiff and Appellant, 

 v. 

SHELLEY MALLCHOK, 

 Defendant and Respondent, 

 B255580 

 (Los Angeles County 

 Super. Ct. No. BC532838) 

 APPEAL from a judgment of the Superior Court of Los Angeles County. 

Barbara A. Meiers, Judge. Affirmed. 

Louis Hernandez, in pro. per., for Plaintiff and Appellant. 

Bryan Cave, James C. Pettis and Nancy Franco for Defendant and Respondent. 

__________________________ 
2 

 Plaintiff and appellant Louis Hernandez appeals from the judgment of dismissal 

after the court sustained without leave to amend the demurrer of defendant and 

respondent Shelley Mallchok to Hernandez’s complaint. We conclude that Hernandez 

failed to state a viable cause of action against Mallchok and therefore affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

 This case arises from actions allegedly taken by Mallchok in one or more prior 

proceedings. Mallchok is the Vice President of Finance and Chief Financial Officer of 

MALDEF Property Management Corporation (landlord).1 Hernandez is the President of 

Community Family Counseling Programs (tenant), which provides assistance to members 

of the low-income Latino community. Tenant rented office space from landlord. 

 At some point, landlord sought to relocate tenant’s office to a different floor of its 

building. Although tenant did not want to move to the different space, the record 

suggests that an agreement was reached under which tenant moved from the seventh floor 

to the ninth floor of the building. 

 Thereafter, tenant allegedly fell behind in its rent payments, causing landlord, on 

July 12, 2013, to bring a complaint in unlawful detainer against tenant (the unlawful 

detainer action). The case was to be tried on August 20, 2013, at which time a settlement 

was reached. Hernandez signed the settlement agreement on behalf of tenant, and 

consented to the agreement in open court, with the presence of counsel. Judgment was 

 

1 Hernandez contends that Mallchok acted improperly by using the term 

“MALDEF” as a shorthand reference to landlord, in that use of the term “MALDEF” 

deceptively suggested that landlord should be accorded the dignity and respect given the 

Mexican American Legal Defense and Educational Fund. There was no deception. 

Landlord is not improperly relying on the MALDEF name; Hernandez previously alleged 

that landlord was a subsidiary of the Mexican American Legal Defense and Educational 

Fund. Regardless of the presence or absence of any relationship between the two entities, 

it is undisputed that the first word of landlord’s full name is, in fact, MALDEF; there is 

therefore nothing inappropriate in using the word in reference to the entity. 
3 

entered pursuant to the agreement.2 The terms of judgment required tenant to leave the 

premises by October 4, 2013. 

 On October 24, 2013, Hernandez, in his individual capacity, brought a small 

claims action against landlord, seeking damages for landlord’s alleged failure to return 

his security deposit and breach of an alleged agreement to pay his moving expenses (the 

small claims action). Hernandez also alleged, in that action, that landlord had harassed 

and intimidated him in order to illegally eject him from the seventh floor office space in 

order to better accommodate tenants it preferred, in violation of his civil rights. On 

January 14, 2014, judgment was entered in favor of landlord in the small claims action. 

 On January 9, 2014, shortly before judgment was entered in the small claims 

action, Hernandez, acting in pro. per., brought the current action against Mallchok. His 

complaint alleges that Mallchok engaged in a course of deliberate bullying and malicious 

action in order to force tenant out of its seventh floor office in landlord’s building. 

Hernandez purported to plead three causes of action: (1) fraud, in connection with a 

January 2012 notice to quit which allegedly falsely indicated Hernandez owed Mallchok

$1,983.15, and an unidentified August 13, 2013 fraudulent document Mallchok submitted 

to the court in connection with the unlawful detainer action; (2) violation of civil rights, 

in that Mallchok allegedly forced Hernandez into a less favorable office in order to give 

the better, seventh floor, space to a non-Latino tenant; and (3) coercion, in that Mallchok, 

on August 30, 2013, [sic] “while surrounded by lawyers,” coerced Hernandez into 

signing a document containing fraudulent numbers.3

 

2 The terms of the judgment were to be confidential, unless tenant breached them. 

Because of the confidentiality, when Mallchok sought judicial notice of the judgment, she 

submitted it conditionally under seal. The trial court in this matter ordered the judgment 

unsealed. We take judicial notice of the superior court file in this case, as it includes the 

unlawful detainer judgment and other relevant documents omitted from the clerk’s 

transcript. 

3 Hernandez’s complaint refers to August 30, 2013; Mallchok assumed this was 

simply a drafting error, and that Hernandez was referring to the unlawful detainer 

judgment of August 20, 2013. 
4 

 Mallchok demurred to the complaint on multiple grounds. Among other things, 

Mallchok argued that: (1) Hernandez lacked standing to bring causes of action 

belonging to tenant; (2) any causes of action arising out of the lease were mooted by the 

judgment in the unlawful detainer action; (3) Hernandez failed to plead the elements of 

the causes of action for fraud and violation of civil rights, and there is no cause of action 

for coercion; and (4) to the extent Hernandez alleges improper activity by Mallchok in 

connection with the unlawful detainer judgment signed on August 20, 2013, Mallchok 

was not even present at court that day. The motion was supported by a request for 

judicial notice of documents filed in the unlawful detainer and small claims actions, and a 

declaration of Mallchok’s counsel. Hernandez did not oppose the admission or 

consideration of any of the evidence on which Mallchok relied, and the court ultimately 

granted the request for judicial notice. 

 Hernandez opposed the demurrer, arguing that the prior course of litigation 

between landlord and tenant was irrelevant, as this action pertained only to Mallchok’s 

personal course of action of harassment, humiliation, coercion, and the submission of 

false documents to the court in order to force him out of the seventh floor of the building 

in favor of other tenants. Hernandez made no effort to argue that he had properly alleged 

the elements of his three causes of action, or that he could amend his complaint to do so, 

but simply stated that he was prepared to prove his allegations before a jury. He accepted 

Mallchok’s representation that she had not been present in court on August 20, 2013, 

arguing that this proved fraud, in that Mallchok was “fully aware” that the documents she 

had submitted for trial in the unlawful detainer action were fraudulent, and she did not 

attend trial because she feared committing perjury. 

 Argument was held on March 11, 2014. Mallchok’s counsel, who is located in 

San Francisco, appeared by telephone. Hernandez appeared in person, but was late, 

having mistakenly gone to the wrong courtroom. When he entered court, he heard the 

court conversing with Mallchok’s counsel. After the proceedings ended, Hernandez 

identified himself, and the court briefly discussed the matter with him. 
5 

 The court sustained the demurrer without leave to amend. Judgment was 

subsequently entered, dismissing the action. Thereafter, Hernandez moved to vacate the 

“default judgment,” although no default judgment had been entered, on the basis of his 

mistake in not timely attending argument. On April 17, 2014, the court heard argument 

on the motion to vacate, treating it as a motion for relief from the dismissal. The court 

permitted Hernandez to argue what he would have argued in response to the demurrer. 

Concluding Hernandez’s presentation added nothing to his papers and therefore made no 

difference to the trial court’s prior ruling, the court denied the motion. Hernandez filed a 

timely notice of appeal.4

DISCUSSION

1. Standard of Review

 “In reviewing the sufficiency of a complaint against a general demurrer, 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.] When a demurrer is sustained, we determine whether 

the complaint states facts sufficient to constitute a cause of action. [Citation.] And when 

it is sustained without leave to amend, we decide whether there is a reasonable possibility 

that the defect can be cured by amendment: if it can be, the trial court has abused its 

discretion and we reverse; if not, there has been no abuse of discretion and we affirm. 

 

4 In his designation of the record on appeal, Hernandez requested that the “[t]apes” 

of the hearings on Mallchok’s demurrer and his motion to vacate (which he described as 

the tapes of telephone conversations between the court and Mallchok’s counsel) be 

included in the clerk’s transcript. Hernandez infers some impropriety by the failure of 

the clerk to include these tapes in the clerk’s transcript. We make no such inference. The 

minute orders of the two hearings in question indicate that no court reporter or electronic 

recording monitor was present. Thus, no reporter’s transcript of the hearings could be 

prepared, and no recordings of the hearings exist. 
6 

[Citations.] The burden of proving such reasonable possibility is squarely on the 

plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

2. Hernandez’s Complaint Fails to State a Cause of Action

 Hernandez’s complaint purports to state three causes of action: fraud, violation of 

civil rights, and coercion. His allegations are insufficient as a matter of law to establish 

any of these causes of action. 

 A cause of action for fraud consists of the following five elements: 

(1) misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance on the 

misrepresentation, (4) justifiable reliance on the misrepresentation, and (5) resulting 

damages. (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.) 

Hernandez’s complaint fails to meet this standard. Although it makes reference to a 

purportedly fraudulent notice to quit served in January 2012, and unknown fraudulent 

documents submitted to court on August 13, 2013, it fails to allege any of the other 

elements. More importantly, a plaintiff cannot pursue a separate cause of action against a 

defendant for testifying falsely or proffering false evidence in a prior litigation. False 

evidence must be discovered and exposed in the first trial, in order to avoid multiplicity 

of litigation. (Kachig v. Boothe (1971) 22 Cal.App.3d 626, 633, 640-641.) The principle 

of finality of judgments prohibits attacking a prior judgment for intrinsic fraud. (Id. at 

pp. 632-633.) 

 As to Hernandez’s cause of action for violation of his civil rights, his complaint 

simply enumerates several constitutional provisions, and alleges that Mallchok violated 

those rights by using coercive, malicious, and blackmail tactics to force him to move 

from his seventh floor office to the less favorable office on the ninth floor, in order to 

favor non-Latino tenants. Yet Hernandez had no right to occupy any office in landlord’s 

building because the lease was in the name of tenant. Hernandez makes no argument that 

the tenancy right somehow belonged to him, rather than tenant; he therefore has failed to 

state a cause of action for violation of his civil rights. 
7 

 Hernandez’s final cause of action is for coercion. Hernandez has not identified, 

nor has independent research disclosed, any authority supporting the proposition that 

California recognizes a cause of action for coercion. 

3. There is No Reasonable Probability that Hernandez Could Amend

 In his brief on appeal, Hernandez argues, for the first time, several other purported 

acts of wrongdoing on the part of Mallchok. Specifically, he contends: (1) Mallchok 

submitted a fraudulent accounting in the small claims action; (2) the unlawful detainer 

judgment was itself improper, in that, when tenant’s attorney could not be present, 

landlord’s attorney recruited another lawyer to represent tenant in settlement 

negotiations; (3) the small claims judgment was improper in that the trial court denied 

Hernandez the right to be heard; (4) in 2012, before any litigation began, a representative 

of landlord’s parent, the Mexican American Legal Defense and Educational Fund, had 

promised Hernandez a compromise regarding the office space dispute, which Mallchok 

refused to put into effect. None of these acts, even if established by Hernandez, could 

support the basis of a cause of action against Mallchok. 

 To the extent Hernandez challenges Mallchok’s alleged submission of a fraudulent 

document in the small claims action, the principle of finality of judgments prohibits this 

attack. (Kachig v. Boothe, supra, 22 Cal.App.3d at p. 633.) To the extent Hernandez 

contends he was denied fair hearings in the unlawful detainer and small claims actions, 

Hernandez is not seeking to set aside the judgments in those prior actions for extrinsic 

fraud, and – even if he sought to do so – could not bring such an action against Mallchok, 

who was not a party to either action. Indeed, as Hernandez concedes, because Mallchok 

was not present when the unlawful detainer action settled on August 20, 2013, she could 

in no way be responsible for the attorney who purportedly was selected by landlord to 

represent tenant at the last minute. Finally, as to any suggestion that Mallchok breached 

a promise regarding office space made to Hernandez by a representative of landlord’s 

parent organization, Hernandez does not allege that Mallchok was legally bound by that 
8 

promise and, in any event, the dispute regarding office space was resolved by settlement 

in the unlawful detainer action. 

4. Hernandez has Not Established He Was Denied a Fair Hearing

 Hernandez argues that he was denied a fair hearing in this case. He argues that he 

was denied a hearing on the demurrer when he arrived late. He further notes that, when 

he entered court in the middle of defense counsel’s argument to the court, the court’s 

conversation with counsel sounded friendly and cordial, which Hernandez believes to be 

suspicious. 

 Even if Hernandez was initially denied a hearing on the demurrer, when he 

subsequently moved to vacate the dismissal, he was given a full opportunity to make the 

arguments he would have made on demurrer. There was therefore no error. 

 Nor was there anything improper in the trial court conversing in a friendly manner 

with defense counsel, in open court, during the hearing on demurrer in which counsel 

made a telephonic appearance. Because Hernandez had not made a timely appearance, 

the court was authorized to go forward in Hernandez’s absence. Telephonic calendar 

appearances are expressly permitted by court rules. (Cal. Rules of Court, rule 3.670.) 

Nor is there anything inappropriate about a friendly court appearance, even by telephone. 

Civility between the court and counsel is to be encouraged (Code of Judicial Ethics, 

Canon 3B(4)), and there is nothing in the record to suggest the court was biased in favor 

of defense counsel. The burden is on the appellant to provide an adequate record on 

appeal. (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) Here, Hernandez has 

provided nothing more than his characterization of a conversation he partially overheard, 

having arrived late for the hearing, and not realizing his case was then being considered.5 

This is insufficient. 

 

5 Hernandez suggests that it appeared to him that defense counsel was “[d]ictating” 

to the court the ruling that counsel wanted. It is apparent from the record that the court 

did not simply give defense counsel the relief defendant had sought. In her demurrer, 

Mallchok had requested sanctions for a frivolous action. The court did not award 
9 

DISPOSITION 

 The judgment is affirmed. Hernandez is to pay Mallchok’s costs on appeal. 

 RUBIN, J. 

WE CONCUR: 

 BIGELOW, P. J. 

 GRIMES, J. 

 

sanctions. It may well be that, prior to Hernandez entering the courtroom, the court had 

indicated its ruling to defense counsel and asked defense counsel to prepare a proposed 

order. The supposed dictation Hernandez heard could have been counsel reading back to 

the court the terms of the proposed order, for confirmation. With no record establishing 

misconduct, we will not assume something untoward when an innocent explanation is 

easily available.