Judge Audra Mori, Case 22STCV15228 2022-08-22 Tentative Ruling

Plaintiffs Emily Shields, Chelsea Kovinsky, and Hannah Upshaw (collectively, “Plaintiffs”) filed this action against defendants University of Southern California (“USC”) and Tim Ojeda (“Ojeda”) for injuries Plaintiffs sustained as former student athletes on a lacrosse team at USC. Plaintiffs allege they were diagnosed with rhabdomyolysis after an excessive and punitive workout on September 6, 2019, led by USC employee Ojeda. The complaint alleges causes of action for negligence against all defendants and intentional infliction of emotional distress (“IIED”) against Ojeda. Plaintiffs allege Ojeda’s conduct warrants an award of punitive damages against him.

Defendant Ojeda now demurs to the complaint arguing the second cause of action for IIED fails to state sufficient facts to constitute a claim against him. Additionally, Ojeda moves to strike the claim for IIED and the request for punitive damages. Plaintiffs oppose the demurrer and motion, and Ojeda filed a reply to each opposition.

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 Gupta Decl. ¶¶ 3-4.)

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].) Moreover, 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, Ojeda contends that the complaint does not allege any extreme or outrageous conduct against him, and that Plaintiffs do not allege an intent by Ojeda to cause emotional distress. Further, Ojeda contends that the complaint does not allege any conduct directed solely at them, as the alleged conduct was directed at all members of the lacrosse team that attended the subject workout, and that the complaint fails to allege Plaintiffs suffered any severe emotional distress.

3. In early September of 2019, PLAINTIFFS and their teammates returned from their summer break to begin practice for the new lacrosse season. On September 6, 2019, the lacrosse team was expected to complete a cardio workout followed by a workout in the weight room. The workout was scheduled to go from 7:00 a.m. to 11:00 a.m. As athletes began their workouts, Defendant OJEDA appeared.

4. When Defendant OJEDA learned that four athletes had forgotten to turn in a form, he forced the entire team to complete forty (40) burpees as punishment. However, if one of the teammates' form was slightly off or the count was not loud enough to his liking, Defendant OJEDA forced the student-athletes, including PLAINTIFFS, to start over with their burpees.

5. Exhausted from the unnecessary and punitive aerobic workout, PLAINTIFFS and their teammates proceeded to the weight room to complete their weightlifting workout. Each team member received a card detailing their training for that day, and Defendant OJEDA picked a student to count out loud for the team. If PLAINTIFFS or their teammates were off the pace or erred in the workout in any other way, Defendant OJEDA made the team start the sequence repeatedly for each exercise.

6. After a grueling weightlifting session, the team then had to perform eccentric pullups. Less than half of the team could do more than two pullups. The PLAINTIFFS and their teammates were tired and unable to stay in unison. Blatantly and willfully ignoring PLAINTIFFS' and their team members' fatigue, OJEDA made them restart their workout multiple times. It was evident the students grew exhausted. However, Defendant OJEDA failed to adjust their workouts and even mocked Ms. Upshaw for faltering after 15 pullups. Defendant OJEDA disregarded the students' physical condition and thereafter had the students perform deadlifts and TRX rows. Ms. Upshaw was physically unable to hold a 25-pound plate during her deadlift, and her arms shook with great intensity. Rather than stopping the workout or adjusting it, OJEDA's aggression increased, and he mocked the students. Other coaches joined in. When PLAINTIFFS and their team members attempted to rest, DEFENDANT OJEDA told the student-athletes that such action showed they did not care for the team. As a result, PLAINTIFFS and their teammates were pressured to continue working out without rest, putting more strain, fatigue, and overload on their muscles. After the grueling workout, the head coach, Lindsey Munday, told the team not to discuss the incident under any circumstance.

7. As a result of the excessive, unnecessary, and punitive workouts led by USC Coach Tim Ojeda, the failure of Dr. Bernardez to adequately treat rhabdomyolysis, as well as the nonchalance and premature clearing of the athletic trainers, PLAINTIFFS now suffer severe and permanent injuries. PLAINTIFFS now bring this lawsuit for personal injuries against Defendant USC, Defendant Tim Ojeda, and DOES 1 through 50, inclusive.

(Compl. ¶¶ 3-7.) Pertaining to the IIED cause of action, the complaint alleges that Ojeda’s conduct was outrageous and intended to cause Plaintiffs emotional distress, or that Ojeda acted with reckless disregard of the probability Plaintiffs would suffer emotional distress, and that Ojeda’s physical abuse, harassment, and aggressive behavior caused Plaintiffs’ injuries. (Id. at ¶¶ 29-30.)

Even if it is assumed for the purposes of argument that outrageous conduct is alleged, concerning Plaintiffs’ claim they suffered emotional distress as a result of the incident, Plaintiffs merely allege that “PLAINTIFFS have been injured and hurt in their health, strength and activity, sustaining serious injuries to their bodies, and shock and injury to their nervous systems and all person, all of which said injuries have caused, and continue to cause PLAINTIFFS great physical and mental pain and suffering.” (Id. at ¶ 31.)

This is insufficient to meet the high bar to establish 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 (2009) 46 Cal.4th at 1051.)

Plaintiffs cite Fletcher v. Western Nat. Life Ins. Co., (1970) 10 Cal.App.3d 376, 397 (“Fletcher”), for the proposition that their allegations of emotional distress are sufficient. More specifically, Plaintiffs argue, “Just like the plaintiff in Fletcher, Plaintiffs have and will continue to suffer from fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, and worry long into the future as a result of Defendant Ojeda's conduct.” (Opp. at p. 10:19-21.) Putting aside the fact that the Fletcher case is distinguishable,[1] Plaintiffs have not actually alleged fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, or worry in their complaint, or the factual allegations to support those conclusions. Thus, they have not alleged the necessary element of severe emotional distress.

Accordingly, the complaint fails to state a claim for IIED against Ojeda. The demurrer is sustained as to the second cause of action for IIED.

The burden is on Plaintiffs to show in what manner they 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, Plaintiffs request leave to amend the complaint to fully set forth their claims. Given Plaintiffs’ arguments concerning the alleged incident, there is a reasonable possibility the above defects can be cured.

Defendant’s demurrer is sustained to the second cause of action for IIED with 20 days leave to amend.

In light of the above ruling sustaining the demurrer to the second cause of action in the complaint, the motion to strike the allegations and request for punitive damages in the IIED claim is moot.

[1] Fletcher involved a disability insurer’s admittedly outrageous “concerted course of conduct to induce plaintiff to surrender his insurance policy or enter into a disadvantageous ‘settlement’ of a nonexistent dispute by means of false and threatening letters and the employment of economic pressure based upon his disabled and, therefore impecunious, condition.” (Fletcher, 10 Cal.App.3d at 392.) The trial court denied motions for judgment notwithstanding the verdict that the defendants made on the ground that plaintiff failed to prove that he suffered severe emotional distress. In affirming the trial court’s denial of the motions, the appellate court found that the plaintiff provided evidence of the following consequences of defendants’ actions:

[plaintiff’s] family lacked food and clothing; his house payments became delinquent; he lost a parcel of real property in which he had invested in Arizona; he and his family found it necessary to subsist on macaroni, beans and potatoes from which plaintiff gained 47 pounds; his utilities were turned off and he had to "gather" money from friends and neighbors to get them turned back on; his wife was required to go to work; and one of his daughters had to miss school on the days the wife was working.

(Id. at 398.)

From these facts, the court concluded, “It would not appear unreasonable that a person with a prior history of industry and concern for his family would suffer substantial emotional distress in the nature of grief, humiliation, embarrassment, chagrin, disappointment and worry as a result of these occurrences.” (Id.)