Judge: Christopher K. Lui, Case: 21STCV40904, Date: 2023-04-11 Tentative Ruling
Case Number: 21STCV40904 Hearing Date: April 11, 2023 Dept: 76
Pursuant to California Rule of Court 3.1308(a)(1),
the Court does not desire oral argument on the demurrer and motion addressed herein. As required by Rule 3.1308(a)(2), any party seeking
oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their
intent to appear and argue. Notice to Department
76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of intention to appear is not given
and the parties do not appear, the Court will adopt the tentative ruling as the
final ruling.
Plaintiff brings this action based upon breach of three separate agreements.
Defendant Kin Hui filed a Cross-Complaint against Plaintiff alleging a threat via a text.
Plaintiff/Cross-Defendant Yonghong Wang demurs to the First Amended Cross-Complaint and moves to strike portions thereof.
TENTATIVE RULING
On its own motion, the Court orders stricken from the First Amended
Cross-Complaint new Cross-Complainants Newlife Consulting, LLC and Invest LA
Regional Center, LLC, and the first, second and fourth causes of action.
Plaintiff/Cross-Defendant Yonghong Wang’s demurrer to the remaining third cause of action is SUSTAINED without leave to amend,
The First Amended Cross-Complaint is ordered DISMISSED with prejudice.
Given the ruling on the demurrer, the motion to strike is MOOT.
ANALYSIS
Demurrer
Meet and Confer
The Declaration of Sa’id
Vakili reflects that Cross-Defendant’s counsel satisfied the meet and confer
requirement set forth in CCP § 430.41.
Discussion
Plaintiff/Cross-Defendant
Yonghong Wang points out that the First Amended Cross-Complaint (“1AXC”) was untimely
filed in violation of this Court’s order. However, the notice of the Court’s
minute order giving Cross-Complainant 30 days’ leave to amend was mailed on
November 3, 2023 by the clerk. With an additional 5 days for service by mail
(Civ. Proc. Code, § 1013(a)), the deadline to file the 1AXC was December 8,
2023. The 1AXC was filed on December 7, 2022.
1. Entire
First Amended Cross-Complaint.
Cross-Defendant
demurs to the entire First Amended Cross-Complaint (“1AXC”) on the ground that
new Cross-Complainants Newlife and Invest LA were named and claims were
asserted on their behalf without prior court approval or other legal authority
to do so.
While this
is properly the subject of a motion to strike. (Civ. Proc. Code, § 436(b)(part
of a pleading not drawn or filed in conformity with the laws of this state, a
court rule, or an order of the court), on the Court’s own motion, the Court orders
the additional Cross-Complainants Newlife Consulting, LLC and Invest LA
Regional Center, LLC stricken from the First Amended Cross-Complaint as having
been added without leave of Court after the Court ruled on the demurrer to the
Cross-Complaint.
Cross-Defendant also objects that
the first cause of action for breach of written contract, second cause of
action for breach of implied covenant of good faith and fair dealing, and
fourth cause of action for declaratory relief were added without the Court’s
permission. While this is also properly the subject of a motion to strike, on
the Court’s own motion, the Court orders the first, second and fourth causes of
action stricken from the 1AXC as having been added without leave of court
following the Court’s sustaining of the demurrer to the sole cause of action
for intentional infliction of emotional distress in the Cross-Complaint.
Following an order sustaining a demurrer or a motion for judgment on the
pleadings with leave to amend, the plaintiff may amend his or her complaint
only as authorized by the court's order. (Citation omitted.) The plaintiff may
not amend the complaint to add a new cause of action without having obtained
permission to do so, unless the new cause of action is within the scope of the
order granting leave to amend. (Citation omitted.) Here, the new cause of
action is not within the scope of the order granting leave to amend.
(Harris v.
Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)
This leaves only the third cause of
action for intentional infliction of emotional distress (“IIED”).
The
demurrer is largely based on evidentiary objections to the translation and facts
extrinsic to the 1AXC, and the failure to establish causation or recoverable
damages with evidence.
“The
demurrer admits the facts pleaded in the complaint and raises the question
whether those facts are sufficient to state a cause of action on any legal
theory. . . . ‘The function of a demurrer is to test the sufficiency of the complaint
alone and not the evidence or other extrinsic matters. [Citation.]’ (Citation
omitted.)” (Hellum v. Breyer
(2011) 194 Cal.App.4th 1300, 1308-09.) “Because a demurrer challenges
defects on the face of the complaint, it can only refer to matters outside the
pleading that are subject to judicial notice.” (Arce v. Kaiser Foundation
Health Plan, Inc. (2010) 181
Cal.App.4th 471, 482.) “The
sole issue raised by a general demurrer is whether the facts pleaded state a
valid cause of action, not whether they are true. No matter how unlikely or
improbable, plaintiff's allegations must be accepted as true for the purpose of
ruling on the demurrer. (Citation omitted.) Furthermore, plaintiff's possible
inability or difficulty in proving the allegations of the complaint is of no
concern. (Citation omitted.)” (Kerivan v.
Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229.)
Cross-Defendant
also argues that the language does not give rise to a claim for IIED:
“The elements of the tort of intentional
infliction of emotional distress 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. …” Conduct to be outrageous
must be so extreme as to exceed all bounds of that usually tolerated in a
civilized community.’ [Citation.]” (Citation omitted.) “It is not enough that
the conduct be intentional and outrageous.
It must be conduct directed at the plaintiff, or occur in the presence of a
plaintiff of whom the defendant is aware.” (Ibid.)
(Catsouras v. Department of
California Highway Patrol (2010) 181 Cal.App.4th 856, 874-75.)
“‘Liabilities of course cannot be extended
to every trivial indignity. … [¶] Accordingly, it is generally held that there can be no recovery for mere profanity,
obscenity, or abuse, without circumstances of aggravation, or for insults,
indignities or threats which are considered to amount to nothing more than mere
annoyances. The plaintiff cannot recover merely because of hurt feelings.’”
(Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128 [257 Cal. Rptr.
665].)
(Plotnik v. Meihaus (2012)
208 Cal.App.4th 1590, 1610 [bold emphasis and underlining added].)
“Ordinarily mere insulting language,
without more, does not constitute outrageous conduct.” (Kiseskey v. Carpenters'
Trust for So. California (1983) 144 Cal.App.3d 222, 230 [192 Cal. Rptr. 492].)
But, it has long been recognized “a cause of action is established when it is
shown that one, in the absence of any privilege, intentionally subjects another
to the mental suffering incident to serious
threats to his physical well-being, whether or not the threats are made
under such circumstances as to constitute a technical assault.” (State Rubbish
etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 336 [240 P.2d 282].) Under the
circumstances of this case, the jury could reasonably conclude the Meihaus
brothers' words and actions [*1614] combined “d[id] not constitute
mere violations of the niceties of polite conversation,” but rather
“constitute[d] outrageous conduct intended to inflict emotional distress … .”
(Kiseskey v. Carpenters' Trust for So. California, supra, 144 Cal.App.3d at p.
230.)
(Plotnik, supra, 208 Cal.App.4th
at 1613-14 [bold emphasis added].)
In the instant
case, there is only a general reference in the text message to angry investors,
regrets and endless troubles, a guilt trip for deceiving people, murders in
debt collection, and an appeal to conscience, but there is no immediate and
direct threat upon Cross-Complainant’s life specifically. (1AXC, ¶ 20.) Rather,
the text was calling upon Cross-Complainant to face up to the situation and
answer the investors’ questions. (Id.) This is insufficient to
constitute extreme and outrageous conduct as a matter of law.
The demurrer to
the third cause of action is SUSTAINED without leave to amend.
The First
Amended Cross-Complaint is ordered DISMISSED with prejudice.
Motion To Strike
Meet and Confer
The Declaration of Sa’id
Vakili reflects that Cross-Defendant’s counsel satisfied the meet and confer
requirement set forth in CCP § 435.5.
Discussion
Given the
ruling on the demurrer, the motion to strike is MOOT.