Judge Audra Mori, Case 19STCV44747 2022-09-14 Tentative Ruling

Plaintiff Julio Barrenzuela (“Plaintiff”) filed this action against defendants Alfred Last Name Unknown, et al., for damages arising from a motor vehicle accident. Plaintiff has filed an Amendment to Complaint naming Alfred Issagholian as Doe 1. Plaintiff’s operative First Amended Complaint (“FAC”) alleges causes of action for (1) motor vehicle negligence, (2) negligence, (3) intentional tort- battery, and (4) intentional infliction of emotional distress (“IIED”). The FAC includes a prayer for punitive damages.

Defendant Alfred Issagholian (“Defendant”) now demurs to the FAC arguing the third cause of action for battery and fourth cause of action for IIED fail to state sufficient facts to constitute a claim against Defendant. Additionally, Defendant moves to strike the prayer for punitive damages relating to the third and fourth causes of action. Plaintiff opposes the demurrer and motion, and Defendant filed a reply to each.

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

The court finds Defendant has fulfilled this requirement prior to filing the demurrer. (Demurrer Natividad Decl. ¶¶ 2-4.)

“The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890; see also Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495 [contact is unlawful if unconsented to].)

Here, the FAC alleges that on January 22, 2018, Defendant operated his vehicle as to cause “a collision with the person of the Plaintiff.” (FAC at p. 5.) Further, the FAC pleads that “The violent acts committed against Plaintiff by Defendant while he was performing his job duties, including his battery of Plaintiff with the use of his vehicle amounted to a series of harmful and offensive contacts to Plaintiff, all of which were done intentionally and without Plaintiff’s consent.” (Id. at p. 6.)

As Defendant contends, the FAC alleges in conclusory fashion that Defendant’s actions constituted a battery, but there are no factual allegations setting forth what the purported conduct of Defendant was that constituted the battery. This is insufficient to show that Defendant intentionally touched Plaintiff, or caused to be touched, with the intent to harm Plaintiff. Further, while the FAC alleges that Defendant committed unspecified violent acts against Plaintiff, the FAC does not set forth any facts showing that a reasonable person in Plaintiff’s position would have been offended by the touching. (Carlsen, 227 Cal.App.4th at 890.)

The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress. Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590.)

The California Supreme Court has held that a defendant’s actions could be characterized as "outrageous" for purposes of tort liability for intentional infliction of emotional distress, if he “(1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 [overruled on other grounds].) And again, a defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community, and the defendant must either intend his or her conduct to inflict injury or engaged in it with the realization that injury will result. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [citations and quotations omitted].)

Here, the FAC merely alleges that “By their actions and conduct, Defendant’s employee intended to and did intentionally and recklessly cause Plaintiff to suffer severe emotional distress.” (FAC at p. 7.) This is insufficient to state a claim for IIED. The FAC does not allege with any facts outrageous conduct by Defendant or any purported employee of Defendant.

Furthermore, the FAC does not support its claim that Plaintiff suffered “severe emotional distress” any facts. This is insufficient to meet the high bar to allege severe emotional distress. (See e.g., Pittman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047 [mere allegation that plaintiff suffered shame, humiliation and embarrassment without further factual explanation fails to state claim for intentional infliction of emotional distress]; see also Hughes (2009) 46 Cal.4th at 1051.) This alleged distress does not rise to the level of “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes, 46 Cal.4th at 1051.)

Accordingly, the demurrer is sustained as to the fourth cause of action for IIED.

The burden is on Plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)

In this case, Plaintiff requests leave to amend the FAC. Because this is the first challenge to the pleadings, and there is a reasonable possibility Plaintiff can assert additional facts to support the battery and IIED claims, the demurrer is sustained is with to amend.

Defendant’s demurrer is sustained to the third cause of action for battery and fourth cause of action for IIED with 20 days leave to amend.

In light of the above ruling sustaining the demurrer to the third and fourth causes of action in the FAC, the motion to strike the allegations and request for punitive damages in the battery and IIED claims is moot.

Hon. Audra Mori

Judge of the Superior Court