Judge: Audra Mori, Case: 22STCV31117, Date: 2023-02-24 Tentative Ruling

Case Number: 22STCV31117    Hearing Date: February 24, 2023    Dept: 31






















      CASE NO: 22STCV31117




Dept. 31

1:30 p.m.

February 24, 2023


1. Background

Plaintiff Kelajae Kareem McClain (“Plaintiff”) filed this action against County of Los Angeles (the “County”), Los Angeles County Sheriff’s Department (“LASD”), and Brian Scott Bank (“Bank”) for damages arising from a motor vehicle accident.  The Complaint alleges that Bank, while in the course and scope of his employment with the County and LASD, crashed into the rear of Plaintiff’s vehicle.  The Complaint alleges claims for (1) negligence, (2) negligence per se, (3) negligence per se, (4) negligent training/supervision, and (5) negligent infliction of emotional distress (“NIED”). 


Defendants the County and Bank (collectively, “Defendants”) now demur to the Complaint arguing the fifth cause of action for NIED fails to state sufficient facts to constitute a claim against them.  Additionally, Defendants move to strike the NIED cause of action.  Plaintiff filed an omnibus opposition to the demurrer and opposition.  Any reply to the opposition was due on or before February 16, 2023.  As of February 17, 2023, no reply has been filed.


Defendants argue that California law does not recognize NIED as an independent tort.  Defendants contend that NIED is the tort of negligence, so Plaintiff cannot seek relief through the fifth cause of action.  Defendants move to strike the fifth cause of action on the same grounds. 


In opposition, Plaintiff contends that while NIED is not an independent tort, it does give rise to a claim for damages.  Plaintiff argues that the fifth cause of action for NIED is distinct from the other claims because of the nature of the relief requested, which includes relief for severe emotional distress.  


2. Demurrer

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.)


a. Meet and Confer

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 Thomas Decl. at lines 10-19.)


b. Analysis

“ ‘Negligent infliction of emotional distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply…’ ”  (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129-130.)  “The law of negligent infliction of emotional distress in California is typically analyzed…by reference to two ‘theories' of recovery: the ‘bystander’ theory and the ‘direct victim’ theory.”  (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071.)  The key distinction between a “bystander” and a “direct victim” case is whether the defendant owed a duty uniquely to the plaintiff, due to a preexisting relationship or otherwise (a “direct victim” case), or whether the plaintiff was a stranger to whom defendant owed only the general tort duty of care that each person owes each other person (a “bystander” case).  (Id. at p. 1073.)


The California Supreme Court has established that the negligent causation of emotional distress is not an independent tort; rather it is the tort of negligence.  (See Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072 [“We have repeatedly recognized that "[t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence. [Citation.] The traditional elements of duty, breach of duty, causation, and damages apply.”]; see also Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984 [“there is no independent tort of negligent infliction of emotional distress. The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element.”] [citations omitted.]) 


Here, Defendants demurrer to the fifth cause of action on the grounds that there is no independent cause of action for NIED.  Defendants are correct that there is no independent tort for NIED.  An NIED claim by a direct victim is simply a negligence claim in which severe emotional distress is alleged; it does not constitute an independent tort. (See, e.g., Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.)  The Complaint is clearly alleging NIED on a direct victim theory.  However, the complaint already alleges that because of Bank’s reckless driving, “Plaintiff suffered great bodily and mental/emotional injury,” and the first cause of action for negligence incorporates this allegation.  (Compl. ¶¶ 18, 23.)  Accordingly, the NIED claim, which merely alleges that Defendants caused Plaintiff to suffer emotional distress, adds nothing Plaintiff’s negligence claim that is not already alleged or that could be alleged in the first cause of action. 


Therefore, Defendants demurrer to the Complaint is sustained as to fifth cause of action for NIED.  As requested by Plaintiff, Plaintiff is given leave to amend to assert allegations supporting emotional distress claims under the first cause of action for negligence.   


Defendant’s demurrer is sustained with twenty (20) days leave to amend. 


In light of the ruling above ruling, Defendants’ motion to strike is moot.  Further, the Court notes that the appropriate vehicle to challenge an entire cause of action is a demurer, not a motion to strike. 


Moving Defendants are ordered to give notice. 




Dated this 24th day of February 2023





Hon. Audra Mori

Judge of the Superior Court