Judge: Armen Tamzarian, Case: 22STCV16884, Date: 2023-08-10 Tentative Ruling

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Case Number: 22STCV16884    Hearing Date: November 2, 2023    Dept: 52

Plaintiff/Cross-Defendant Marshall Knoll’s Motion to Quash Service of Cross-Complaint

            Plaintiff/cross-defendant Marshall Knoll moves under Code of Civil Procedure section 418.10 to quash service of the cross-complaint against him. 

Marshall Knoll’s motion fails because he has generally appeared in this action.  Code of Civil Procedure section 418.10, subdivision (a)(1) provides that a defendant may move “[t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.”  There was no summons on the cross-complaint.  The court already acquired jurisdiction over Marshall Knoll because he invoked it in the first place by filing this action as the plaintiff. 

Neither a summons nor service of process is required for a cross-complaint against a preexisting party to the action.  Code of Civil Procedure section 428.60 provides, “A cross-complaint shall be served on each of the parties in an action in the following manner: (1) If a party has not appeared in the action, a summons upon the cross-complaint shall be issued and served upon him in the same manner as upon commencement of an original action.  (2) If a party has appeared in the action, the cross-complaint shall be served upon his attorney, or upon the party if he has appeared without an attorney, in the manner provided for service of summons or in the manner provided by” Code of Civil Procedure section 1010 et seq.  (Accord Adam v. Saenger (1938) 303 U.S. 59, 66 [noting “California decisions which hold that a cross-complaint may be served on the attorney of one who is already a party to the original action”]; In re Marriage of Aron (1990) 224 Cal.App.3d 1086, 1095 [“With respect to the plaintiff, jurisdiction is conferred by consent and generally extends beyond the plaintiff’s particular cause of action to encompass any cross-complaint of the defendant as well”].)

Plaintiff Marshall Knoll generally appeared in this action when he filed the complaint.  Any cross-complaint against him therefore was properly served upon him via his attorney in the manner of any ordinary notice or paper.  Defendant/cross-complainant Collins & Khan LLP electronically served a copy of the cross-complaint on Marshall Knoll’s counsel, John A. Schlaff, on June 30, 2023.  (Collins Decl., ¶ 3, Ex. 2.)  That service was effective. 

Plaintiff/cross-defendant Marshall Knoll’s motion to quash service of cross-complaint is denied. 

Defendants Marc A. Collins, Azim Khanmohamed, and Collins & Khan LLP’s Demurrer and Motion to Strike Portions of Third Amended Complaint

Demurrer

Defendants Marc A. Collins, Azim Khanmohamed, and Collins & Khan LLP demur to the second cause of action alleged in the third amended complaint by plaintiffs Marshall Knoll and Reni Knoll, as an individual and in his capacity as trustee of the Hawkland Living Trust.

            Plaintiffs do not allege sufficient facts for the second cause of action for intentional infliction of emotional distress.  Its 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.”  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 (Hughes).) 

Plaintiffs do not allege sufficient facts for the first element.  They must allege “outrageous conduct beyond the bounds of human decency.”  (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.)  “Liability for intentional infliction of emotional distress ‘ “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” ’ ”  (Hughes, supra, 46 Cal.4th at p. 1051.) 

Here, the alleged outrageous conduct was the culmination of an acrimonious attorney-client relationship.  Plaintiffs “hire[d] associated counsel … to attempt to assist Collins in an attempt to garner C.C.P. § 473 relief.”  (3AC, ¶ 16.)  “Defendants offered to waive their outstanding fees,” but later “decided to renege on this offer.”  (¶ 17.)  The third amended complaint alleges defendant Azim Khanmohamed threatened plaintiffs “in an effort to force Plaintiffs to pay fees previously waived due to Defendants’ failure to perform professionally.”  (¶ 18.)  It further alleges, “Among others, Khanmohamed threatened to cause the Knolls to be abandoned during trial in such a way as to deliberately prejudice them leaving them, as he put it, ‘fucked’.  Such threats were intended to, and did, cause severe emotional distress in each of the Plaintiffs.”  (Ibid.)  

These allegations constitute a mere insult, indignity, threat, or annoyance.  These allegations amount to no more than a somewhat heated business dispute.  Defendants’ alleged conduct may have been unprofessional, but it was not so outrageous that it goes beyond the bounds of human decency.     

Plaintiffs’ allegations are less severe than the facts the California Supreme Court held failed as a matter of law in Hughes.  There, the “defendant told plaintiff ‘I’ll get you on your knees eventually.  I’m going to fuck you one way or another.’ ”  (Hughes, supra, at p. 1040.)  The Court held, “Viewed in the context of plaintiff’s legal battles, over a five-year span, with defendant and the two other trustees regarding their allocation of the trust funds, defendant’s inappropriate comments fall far short of conduct that is so ‘outrageous’ that it ‘ “ ‘exceed[s] all bounds of that usually tolerated in a civilized community.’ ” ’ ”  (Id. at p. 1051.)  If those facts “fall far short,” plaintiffs’ allegations fall even shorter.             

Plaintiffs’ reliance on McDaniel v. Gile (1991) 230 Cal.App.3d 363 is misplaced.  There, the attorney “threatened to withhold legal services unless” his client “gave him sexual favors” and he “subjected her to repeated sexual harassment.”  (Id. at p. 374.)  Defendants did not threaten to withhold legal services unless plaintiffs gave them sexual favors.  They threatened to withhold legal services unless plaintiffs paid them more.  That is far less severe than demanding sexual favors before providing the services a client already paid for.  One who promises to pay for services would naturally expect that the service provider would not perform without being paid in full.  That was the agreement.  And it is not beyond the bounds of human decency for a service provider to demand more money than his clients think is fair, even if he did so in a rude manner.

Plaintiffs also do not allege sufficient facts for the second element, severe or extreme emotional distress.  “Only emotional distress of ‘such substantial quantity or enduring quality’ that an individual in civilized society should not be expected to endure it constitutes severe emotional distress.”  (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)  In Hughes, the California Supreme Court held the “plaintiff's assertions that she has suffered discomfort, worry, anxiety, upset stomach, concern, and agitation as the result of defendant’s comments to her” were insufficient.  (Hughes, supra, 46 Cal.4th at p. 1051.)  “Where … physical harm has not resulted from the emotional distress, the courts ‘tend to look for more in the way of extreme outrage as an assurance that the mental disturbance claimed is not fictitious.’ ”  (Grimes v. Carter (1966) 241 Cal.App.2d 694, 699–700.)

Though plaintiffs added some specific symptoms or details about their emotional distress, the allegations remain insufficient for this cause of action.  Plaintiffs now allege defendants caused them “to experience, terror, anxiety, nausea and headaches and to fear losing significant portions of some or all of their property.”  (3AC, ¶ 20.)  These allegations of distress are not of such substantial quality that no reasonable person should be expected to endure it.  They are ordinary.  Plaintiffs use the generic and conclusory term “terror” but offer no specific factual allegations showing the plaintiffs experienced distress so severe that people in a civilized society should not have to endure it.  As for the enduring quality of distress, plaintiffs do not allege how long they experienced any of these forms of emotional distress.    

Plaintiffs’ allegations are analogous to those held insufficient in Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047.  There, the court noted, “Being dismissed from a job is not an uncommon occurrence in modern society.  The allegation that plaintiff suffered shame, humiliation and embarrassment without further factual explanation does not meet the requirement of specificity.”  (Ibid.)  Anxiety over property—i.e., money—may be the most common form of anxiety that exists in modern society. 

Leave to Amend

            After a successful demurrer, where “there is a reasonable possibility that the defects can be cured by amendment, leave to amend must be granted.”  (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.)  The plaintiff bears the burden of “demonstrat[ing] how the complaint can be amended.”  (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.)  “Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law.”  (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436.)

            Plaintiffs do not meet their burden of showing they can cure the defects in their second cause of action.  This is their third amended complaint.  They have not offered any new factual allegations that could support this cause of action.  Plaintiffs have primarily attempted to use stronger words to characterize or describe the same events.  The events they allege constitute a business dispute, not intentional infliction of emotional distress.

Motion to Strike

            Defendants Marc A. Collins, Azim Khanmohamed, and Collins & Khan LLP move to strike portions of the third amended complaint.

            Defendants move to strike paragraphs 26 through 29, which assert new causes of action for breach of fiduciary duty and unfair business practices.  (3AC, ¶¶ 26-29.)  A party may move to “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”  (Code Civ. Proc., § 436, subd. (b).)  Courts may strike portions of a complaint that allege new causes of action outside the scope of the court’s order granting leave to amend.  (See Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.)  “The granting of leave to amend after a demurrer is sustained on one ground does not give the plaintiff a license to add any possible cause of action that might not be subject to dismissal on that ground.  Otherwise, there would be virtually no limitation on amendments following the sustaining of a demurrer.”  (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.)

The new causes of action for breach of fiduciary duty and unfair business practices do not “directly respond[] to the court’s reason for sustaining the earlier demurrer.”  (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.)  The court notes, however, that plaintiffs’ opposition to the prior demurrer attached a proposed third amended complaint including these very causes of action.  (Opp. to Demurrer to SAC, p. 2, Ex. A.)  Moreover, striking these portions of the third amended complaint would serve little purpose now.  The action is still not at issue.  Plaintiffs would have ample time to file a noticed motion for leave to amend their complaint to add these new causes of action. 

Defendants also move to strike the third amended complaint’s prayer for attorney fees.  A party may move to strike a “demand for judgment requesting relief not supported by the allegations of the complaint.”  (CCP § 431.10(b)(3).)  A plaintiff may only recover attorney fees when authorized by contract, statute, or other law.  (CCP § 1033.5(a)(10).)  When liberally construed, the third amended complaint alleges a contract between the parties permits recovering attorney fees: “the Engagement Agreement between [defendants], on the one hand, and Plaintiffs, on the other hand, which provides for attorneys fees if they are the prevailing party in this suit.  By operation of law, to the extent that that provision is enforceable, it establishes a mutual entitlement to attorneys fees in this matter.”  (3AC, ¶ 21.)  These allegations suffice to support a demand for attorney fees.       

Disposition

Defendants Marc A. Collins, Azim Khanmohamed, and Collins & Khan LLP’s demurrer to plaintiffs Marshall Knoll and Reni Knoll’s second cause of action is sustained without leave to amend.  Defendants’ motion to strike is denied.  Defendants are ordered to answer within 20 days.