Judge: Cynthia A Freeland, Case: 37-2023-00017209-CU-BT-NC, Date: 2024-02-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - January 18, 2024

01/19/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Business Tort Demurrer / Motion to Strike 37-2023-00017209-CU-BT-NC PANTAZIS VS. RUESCH PAVONE [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 08/18/2023

Defendants Karen A. Ruesch Pavone and Sales Vision, Inc. ('Sales Vision' and, together with Ms.

Ruesch Pavone, 'Defendants')'s demurrer to Plaintiff Steven Pantazis ('Plaintiff')'s First Amended Complaint (the 'FAC') is sustained.

The court declines to overrule the demurrer as untimely. Under California law, '[a] person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.' Cal. Code Civ. P. § 430.40(a). In this case, Plaintiff filed the FAC on May 17, 2023. See ROA No. 18. Defendants' counsel accepted service via Notice and Acknowledgment of Receipt on June 19, 2023. See ROA No. 21, Elia Decl., ¶ 4.

Consequently, the demurrer was due by July 19, 2023. California Code of Civil Procedure ('CCP') § 430.41(a)(2) provides that: The parties shall meet and confer at least 5 days before the date the responsive pleading is due. If the parties are not able to meet and confer at least 5 days before the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.

Cal. Code Civ. P. § 430.41(a)(2).

On July 19, 2023, Defendants filed a declaration under CCP § 430.41(a)(2) seeking a 30-day extension of time to file a responsive pleading to the FAC. See ROA No. 21. The declaration and attached exhibits demonstrate that while the parties attempted various meet and confer efforts via e-mail between June 1 and July 14, 2023, they never met and conferred telephonically, in person, or via video conference at least 5 days before Defendants' responsive pleading was due (it appears that the parties agreed to meet and confer telephonically on July 17, 2023 – only two days before the responsive pleading was due).

See Cal. Code Civ. P. § 430.41(a). On that basis, it was appropriate for Defendants to file their CCP § 430.41(a)(2) declaration, which they accomplished the same day their demurrer was due. CCP § 430.41(a)(2)'s 30-day extension is automatic, meaning that Defendants' deadline for filing and serving the demurrer was automatically extended to August 18, 2023. Defendants filed and served the demurrer on August 18, 2023. See ROA No. 25. Consequently, the court finds that the demurrer was timely.

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3010282 CASE NUMBER: CASE TITLE:  PANTAZIS VS. RUESCH PAVONE [IMAGED]  37-2023-00017209-CU-BT-NC A demurrer tests the legal sufficiency of a pleading. See McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1469. When reviewing a demurrer, the court 'give[s] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court 'treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law.' Durell v. Sharp Healthcare (2010) 183 Cal. App. 4th 1350, 1358. The court's analysis is limited to the complaint, exhibits attached to the complaint and incorporated by reference, and matters properly subject to judicial notice. See Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal. App. 4th 659, 665; Thorburn v. Department of Corrections (1998) 66 Cal. App. 4th 1284, 1287-1288; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994. '[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.' Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal. App. 4th 1125, 1135. Such demurrers are strictly construed since ambiguities can be clarified during discovery. See Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 616.

Demurrer to the First Cause of Action for Conversion The demurrer to the first cause of action for conversion is sustained. 'Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages[.]' Welco Electronics, Inc. v. Mora (2014) 223 Cal. App. 4th 202, 208 (quoting Los Angeles Federal Credit Union v. Madatyan (2012) 209 Cal. App. 4th 1383, 1387).

The court finds that the FAC fails to state facts sufficient to constitute a conversion claim against Sales Vision or Ms. Ruesch Pavone. The FAC alleges that Plaintiff was Sales Vision's President and CEO, holding approximately 10% of the company's common stock shares. See FAC, ¶ 8. Don Ruesch, Sales Vision's former CFO who held roughly 80% of the company's shares, passed away in early 2022. Ibid., ¶ 9. Upon Mr. Ruesch's passing, his sister, Ms. Ruesch Pavone, took over some of Sales Vision's transactions as Mr. Ruesch's power of attorney and executor of his estate. Ibid., ¶ 10. Plaintiff initially trusted that Ms. Ruesch Pavone would act in Sales Vision's best interests. Ibid., ¶¶ 10, 16. In October 2022, Ms. Ruesch Pavone notified Plaintiff that she intended to dissolve Sales Vision. As a result, in January 2023, Plaintiff requested that he be paid his vacation balance of approximately 1,400 hours (estimated at $87,500.00). Ms. Ruesch Pavone refused. Ibid., ¶¶ 13, 17. In addition, Ms. Ruesch Pavone has taken over Sales Vision's bank account and paid herself sums of money for various reasons and without prior approval. Ibid., ¶¶ 10, 16, 18-21. On May 14, 2023, Plaintiff e-mailed Ms. Ruesch Pavone his notice of separation. He followed that with a certified letter the next day. Ibid., ¶¶ 14, 23.

Plaintiff received his last paycheck on May 15, 2023; however, he has not yet received his full vacation pay. Instead, Plaintiff received a handwritten check from Ms. Ruesch Pavone without a proper pay stub.

Ibid., ¶¶ 15, 24. Ms. Ruesche Pavone has failed to return Sales Vision's money or provide an accounting of same notwithstanding Plaintiff's repeated requests. Ibid., ¶ 25. Plaintiff alleges that Defendants have committed conversion through the foregoing acts as to 'monies, properties, sponsors, contacts of Plaintiff.' Ibid., ¶¶ 26-27.

The foregoing is insufficient to survive the pleading stage. To start, the court agrees with Defendants that the first cause of action as presently pled is, in part, a derivative claim to the extent that Plaintiff has alleged harm Ms. Ruesch Pavone allegedly has caused Sales Vision. More specifically, the FAC alleges that Ms. Ruesch Pavone has withdrawn/embezzled large sums of money from Sales Vision, but there is no allegation that all the funds she withdrew constituted money that Plaintiff had a right to possess for accrued vacation time. Moreover, as to Sales Vision, the FAC fails to sufficiently allege that Sales Vision exercised dominion over property to which Plaintiff had a right to possess. If anything, the FAC, fairly read, alleges that Ms. Ruesch Pavone, not Sales Vision, is the one who exercised such control.

Furthermore, to the extent that Plaintiff's conversion claim is predicated upon unpaid wages, such cause Calendar No.: Event ID:  TENTATIVE RULINGS

3010282 CASE NUMBER: CASE TITLE:  PANTAZIS VS. RUESCH PAVONE [IMAGED]  37-2023-00017209-CU-BT-NC of action sounds in contract rather than the tort of conversion. See Voris v. Lampert (2019) 7 Cal. 5th 1141, 1156.

Finally, to the extent Plaintiff contends that this is not a derivative claim because Ms. Ruesch Pavone meets the definition of an employer under California Labor Code ('CLC') § 558.1, the argument is not well taken. The FAC alleges in conclusory fashion that 'Defendant KAREN A. RUESCH PAVONE is a 'person acting on behalf of the employer' within the meaning of California Labor Code §558.1.' See FAC, ¶ 2. CLC § 558.1 provides that: (a) Any employer or other person acting on behalf of an employer, who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or violates, or causes to be violated, Sections 203, 226, 226.7, 1193.6, 1194, or 2802, may be held liable as the employer for such violation.

(b) For purposes of this section, the term 'other person acting on behalf of an employer' is limited to a natural person who is an owner, director, officer, or managing agent of the employer, and the term 'managing agent' has the same meaning as in subdivision (b) of Section 3294 of the Civil Code.

(c) Nothing in this section shall be construed to limit the definition of employer under existing law.

Cal. Lab. Code § 558.1.

In this case, aside from the conclusory allegation set forth in ¶ 2 of the FAC, Plaintiff fails to allege that Ms. Ruesch Pavone meets the definition of a 'person acting on behalf of the employer' under CLC § 558.1(b). The FAC merely alleges that Ms. Ruesch Pavone has power of attorney over Mr. Ruesch's affairs and is the executor of Mr. Ruesch's estate and, as such, has taken over some of Sales Vision's transactions. However, the FAC fails to allege that Ms. Ruesch Pavone is an owner, director, officer, or managing agent of Sales Vision. Plaintiff, in his opposition, points to certain representations Ms. Ruesch Pavone made in her May 3, 2023 declaration in support of her opposition to Plaintiff's ex parte application for a temporary restraining order (see ROA No. 15) to establish that Ms. Ruesch Pavone is Sales Vision's CFO. However, the court, in ruling on the pending demurrer, is limited to the four corners of the FAC as well as matters to which the court may properly take judicial notice. While the court may take judicial notice of the existence of Ms. Ruesch Pavone's declaration, it cannot take judicial notice of the truth of any assertions contained within the declaration.

Accordingly, the court sustains the demurrer to the first cause of action with leave to amend to address the foregoing deficiencies, if possible. See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 967.

Demurrer to the Second Cause of Action for Breach of Fiduciary Duty The demurrer to the second cause of action for breach of fiduciary duty is sustained. 'The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.' Gutierrez v. Girardi (2011) 194 Cal. App. 4th 925, 932 (quoting Stanley v. Richmond (1995) 35 Cal. App. 4th 1070, 1086).

The court finds that the FAC fails to state facts sufficient to constitute a breach of fiduciary duty claim against Sales Vision or Ms. Ruesch Pavone. The FAC alleges that, as alleged in ¶¶ 8-25 of the FAC, 'Plaintiff had a financial relationship of trust and confidence such that Plaintiff relied on Defendants to treat him fairly. Plaintiff reasonably relied on the fact that Defendants would carry out their duties and agreements in a professional and honest manner in furtherance of the best interests of Plaintiff. As a result of the claims and representations of Defendants as aforesaid, Plaintiff was induced to place trust and confidence in Defendants. The acts and omissions of Defendants as alleged above breached said fiduciary duty owed to Plaintiff.' See FAC, ¶ 31.

The foregoing is insufficient to survive the pleading stage. More specifically, the court finds that the FAC, Calendar No.: Event ID:  TENTATIVE RULINGS

3010282 CASE NUMBER: CASE TITLE:  PANTAZIS VS. RUESCH PAVONE [IMAGED]  37-2023-00017209-CU-BT-NC as presently pled, fails to allege the existence of a fiduciary relationship between Plaintiff and Defendants. 'A fiduciary relationship is 'any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party.

Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latter's knowledge or consent . . . .'' Wolf v. Sup. Ct. (2003) 107 Ca. App. 4th 25, 29 (quoting Herbert v. Lankershim (1937) 9 Cal. 2d 409, 483).

In this case, the FAC fails to allege the existence of a fiduciary relationship between Plaintiff and Sales Vision. More specifically, under California law, a corporation is a separate legal entity that is run by its board of directors and officers – it does not owe fiduciary duties to shareholders such as Plaintiff. See Cal. Corp. Code § 300(a). Consequently, Plaintiff cannot maintain a breach of fiduciary duty claim against Sales Vision. Plaintiff does not address this issue in his opposition.

As to Ms. Ruesch Pavone, the court likewise finds that the FAC, as presently pled, fails to allege the existence of a fiduciary relationship between her and Plaintiff. Under California law, 'corporate directors owe a fiduciary duty to the corporation and its shareholders and now as set out by statute, must serve 'in good faith, in a manner such director believes to be in the best interests of the corporation and its shareholders.'' Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal. App. 4th 1020, 1037 (quoting Cal. Corp. Code § 309(a)). Here, the FAC alleges that Ms. Ruesch Pavone served as Mr. Ruesch's power of attorney and executor of his estate. The power of attorney lapsed upon Mr. Ruesch's death (see Cal. Prob. Code § 4236) and, as executor of his estate, Ms. Ruesch Pavone owes certain fiduciary duties to the estate. In addition, while the FAC alleges that Plaintiff trusted Ms. Ruesch Pavone to act in Sales Vision's best interests, such trust does not create a fiduciary relationship between Ms. Ruesch Pavone and Plaintiff. To the extent that Plaintiff alleges the existence of a fiduciary relationship by way of Ms.

Ruesch Pavone's role as an officer/director of Sales Vision, the FAC fails to allege facts demonstrating that she held such a role within the company.

Accordingly, the court: (1) sustains the demurrer to the second cause of action without leave to amend as to Sales Vision, and (2) sustains the demurrer with leave to amend as to Ms. Ruesch Pavone to address the foregoing deficiencies, if possible. See Aubry, 2 Cal. 4th at 967.

Demurrer to the Third Cause of Action for Negligence The demurrer to the third cause of action for negligence is sustained. 'To succeed in a negligence action, the plaintiff must show that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff's damages or injuries.' Thomas v. Stenberg (2012) 206 Cal. App. 4th 654, 662.

The court finds that the FAC fails to allege sufficient facts demonstrating the existence of a legal duty of care. Indeed, the FAC is entirely devoid of such allegations. Plaintiff, in his opposition, argues that: (1) Ms. Ruesch Pavone was acting in her capacity as Sales Visions' CFO when she made the decision to not pay Plaintiff his accrued vacation pay, and (2) Plaintiff had a financial relationship of trust and confidence such that he relied on Defendants to treat him fairly (see FAC, ¶ 31). However, as set forth above, the FAC has failed to allege that Ms. Ruesch Pavone was/is, in fact, Sales Vision's CFO.

Moreover, the court agrees with Defendants that Plaintiff is conflating the legal duty of care for a negligence theory with the requirements establishing a fiduciary duty in conjunction with the second cause of action. To the extent Plaintiff if alleging a breach of the same duty, the second and third causes of action are duplicative.

Accordingly, the court sustains the demurrer to the third cause of action with leave to amend to address the foregoing deficiencies, if possible. See Aubry, 2 Cal. 4th at 967.

Demurrer to the Fourth (Violation of CLC §§ 200 and 227.3), Fifth (Violation of CLC §§ 202 and 203), Calendar No.: Event ID:  TENTATIVE RULINGS

3010282 CASE NUMBER: CASE TITLE:  PANTAZIS VS. RUESCH PAVONE [IMAGED]  37-2023-00017209-CU-BT-NC and Sixth (Violation of CLC §§ 202, 203) Causes of Action The demurrer to the fourth, fifth, and sixth causes of action, which has been brought as to Ms. Ruesch Pavone only, is sustained. As to the fourth cause of action, CLC § 227.3 provides that: Unless otherwise provided by a collective-bargaining agreement, whenever a contract of employment or employer policy provides for paid vacations, and an employee is terminated without having taken off his vested vacation time, all vested vacation shall be paid to him as wages at his final rate in accordance with such contract of employment or employer policy respecting eligibility or time served; provided, however, that an employment contract or employer policy shall not provide for forfeiture of vested vacation time upon termination. The Labor Commissioner or a designated representative, in the resolution of any dispute with regard to vested vacation time, shall apply the principles of equity and fairness.

Cal. Lab. Code § 227.3. As to the fifth cause of action, CLC § 203(a) provides that: If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 201.6, 201.8, 201.9, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. An employee who secretes or absents themselves to avoid payment to them, or who refuses to receive the payment when fully tendered to them, including any penalty then accrued under this section, is not entitled to any benefit under this section for the time during which the employee so avoids payment.

Cal. Lab. Code § 203(a). 'A willful failure to pay wages within the meaning of Labor Code Section 203 occurs when an employer intentionally fails to pay wages to an employee when those wages are due.' Naranjo v. Spectrum Security Services, Inc. (2023) 88 Cal. App. 5th 937, 944.

As to the sixth cause of action, CLC § 226(a) provides that: An employer, semimonthly or at the time of each payment of wages, shall furnish to their employee, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately if wages are paid by personal check or cash, an accurate itemized statement in writing showing (1) gross wages earned, (2) total hours worked by the employee, except as provided in subdivision (j), (3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and only the last four digits of their social security number or an employee identification number other than a social security number, (8) the name and address of the legal entity that is the employer and, if the employer is a farm labor contractor, as defined in subdivision (b) of Section 1682, the name and address of the legal entity that secured the services of the employer, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee and, beginning July 1, 2013, if the employer is a temporary services employer as defined in Section 201.3, the rate of pay and the total hours worked for each temporary services assignment. The deductions made from payment of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement and the record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. For purposes of this subdivision, 'copy' includes a duplicate of the itemized statement provided to an employee or a computer-generated record that accurately shows all of the information required by this subdivision.

Cal. Lab. Code § 226(a).

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3010282 CASE NUMBER: CASE TITLE:  PANTAZIS VS. RUESCH PAVONE [IMAGED]  37-2023-00017209-CU-BT-NC The FAC, as presently pled, fails to state facts sufficient to establish Plaintiff's Labor Code violations as to Ms. Ruesch Pavone. To start, the FAC alleges in a conclusory fashion that Ms. Ruesch Pavone meets the definition of an employer under CLC § 558.1; however, CLC § 558.1 does not expressly hold an employer liable for a violation of CLC § 227.3. Furthermore, as explained above, the FAC is devoid of facts establishing that Ms. Ruesch Pavone was an 'other person acting on behalf of an employer.' Again, Plaintiff's references to statements made in Ms. Ruesch Pavone's May 3, 2023 declaration are insufficient for purposes of the pending demurrer.

Accordingly, the court sustains the demurrer to the fourth, fifth, and sixth causes of action to address the foregoing deficiencies, if possible. See Aubry, 2 Cal. 4th at 967.

Demurrer to the Seventh Cause of Action for Unfair Business Practices The demurrer to the seventh cause of action for unfair business practices is sustained. California Business and Professions Code ('BPC') § 17200 defines unfair competition as 'any unlawful, unfair or fraudulent business act or practice . . . .' Cal. Bus. & Prof. Code § 17200. The law is 'sweeping, embracing anything that can properly be called a business practice and at the same time is forbidden by law.' Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Company (1999) 20 Cal. 4th 163, 180. Since BPC § 17200 is written in the disjunctive, Plaintiff states a cause of action provided any of the three prongs are satisfied. See Podolsky v. First Healthcare Corp. (1996) 50 Cal. App. 4th 632, 647; Berryman v. Merit Property Management, Inc. (2007) 152 Cal. App. 4th 1544, 1554.

The FAC alleges that Defendants have engaged in unfair, fraudulent, and deceptive business practices.

See FAC, ¶¶ 52-53. However, the court finds that the FAC, as presently pled, fails to sufficiently allege such conduct. As to the unfair prong, '[a]n 'unfair' business practice occurs when that practice 'offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.'' Candelore v. Tinder, Inc. (2018) 19 Cal. App. 5th 1138, 1157-1158 (quoting Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal. App. 4th 700, 718-719). See also Cel-Tech Communications, Inc., 20 Cal. 4th at 187 ('When a plaintiff who claims to have suffered injury from a direct competitor's 'unfair' act or practice invokes section 17200, the word 'unfair' in that section means conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition.'). As to the fraudulent prong, '[a] business practice is fraudulent under the UCL if a plaintiff can show that 'members of the public are likely to be deceived.'' Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal. App. 4th 830, 847 (quoting Bardin v. Daimlerchrysler Corporation (2006) 136 Cal. App. 4th 1255, 1261).

In this case, the FAC is devoid of allegations of unfair, fraudulent, and/or deceptive business practices as contemplated under BPC § 17200. Specifically, the FAC fails to allege how the purported misconduct, i.e., a failure to compensate vacation hours, alleged conversion of company funds, and interference with a business opportunity either offends an established public policy or is substantially injurious to consumers. Nor does the FAC identify a violation of an antitrust law. Moreover, the FAC fails to allege how Defendants' conduct was likely to deceive members of the public, particularly where, as here, the issue involves a private dispute between a former employee/shareholder and a corporation and its alleged officer.

Accordingly, the court sustains the demurrer to the seventh cause of action with leave to amend to address the foregoing deficiencies, if possible. See Aubry, 2 Cal. 4th at 967.

Demurrer to the Eighth Cause of Action for Intentional Infliction of Emotional Distress The demurrer to the eighth cause of action for intentional infliction of emotional distress is sustained.

The elements for IIED are: '(1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress Calendar No.: Event ID:  TENTATIVE RULINGS

3010282 CASE NUMBER: CASE TITLE:  PANTAZIS VS. RUESCH PAVONE [IMAGED]  37-2023-00017209-CU-BT-NC by the defendant's outrageous conduct.' Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal. App. 4th 144, 160. 'Extreme and outrageous conduct is conduct that is 'so extreme as to exceed all bounds of that usually tolerated in a civilized community' and must be 'of a nature which is especially calculated to cause, and does cause, mental distress.'' Chang v. Lederman (2009) 172 Cal. App. 4th 67, 86-87 (quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 1001; Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal. 3d 148, 155, fn. 7). 'Behavior may be considered outrageous if a defendant (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.' Smith v. BP Lubricants USA Inc. (2021) 64 Cal. App. 5th 138, 147. 'In order to avoid a demurrer, the plaintiff must allege with 'great[ ] specificity' the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized society.' Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal. App. 4th 819, 832 (quoting Schlauch v. Hartford Accident & Indemnity Co. (1983) 146 Cal. App. 3d 926, 936). 'Severe emotional distress means 'emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.'' Hughes v. Pair (2009) 46 Cal. 4th 1035, 1051 (quoting Potter, 6 Cal. 4th at 1004).

The court finds that the FAC, as presently pled, fails to state facts sufficient to constitute a cause of action for intentional infliction of emotional distress against Defendants. The FAC alleges in conclusory fashion that Defendants intentionally harassed, intimidated, discriminated, and retaliated against Plaintiff which caused him to suffer humiliation, mental anguish, and emotional distress. See FAC, ¶¶ 56-58. The foregoing is insufficient to survive the pleading stage. First, the FAC fails to sufficiently allege the requisite intent on Defendants' part. While the FAC alleges that Ms. Ruesch Pavone intended to: (1) dissolve Sales Vision, and (2) withdraw money from Sales Vision's business accounts, the FAC is devoid of factual allegations regarding Ms. Ruesch Pavone's intent to inflict emotional distress upon Plaintiff, inclusive of the allegation that she refused to fully compensate Plaintiff for his accrued vacation time. Additionally, the FAC is unclear/uncertain as to what conduct, if any, can be attributed to Sales Vision given that the FAC, as presently pled, suggests that these were actions taken by Ms. Rusch Pavone individually.

In addition, the FAC fails to sufficiently allege that Defendants' alleged extreme conduct caused Plaintiff severe emotional distress, i.e., emotional distress of such substantial or enduring quality that no reasonable person in civilized society should be expected to endure it. The FAC generally alleges that Plaintiff suffered humiliation, mental anguish, and emotional distress. However, under California law, a plaintiff must plead 'facts demonstrating the nature, extent or duration of her alleged emotional distress.' Angie M. v. Superior Court of San Diego County (1995) 37 Cal. App. 4th 1217, 1227. Plaintiff has failed to do so.

Accordingly, the court sustains the demurrer to the eighth cause of action with leave to amend to address the foregoing deficiencies, if possible. See Aubry, 2 Cal. 4th at 967.

Demurrer to the Ninth Cause of Action for Negligent Infliction of Emotional Distress The demurrer to the ninth cause of action for negligent infliction of emotional distress is sustained. Under California law, negligent infliction of emotional distress is not an independent cause of action; rather, it is a species of negligence. See Behr v. Redmond (2011) 193 Cal. App. 4th 517, 532; Delfino v. Agilent Technologies, Inc. (2006) 145 Cal. App. 4th 790, 818. Plaintiff, in his opposition, does not address this argument.

Accordingly, the court sustains the demurrer to the ninth cause of action without leave to amend as Plaintiff has failed to demonstrate a reasonable possibility that the foregoing deficiencies can be cured by amendment. See Aubry, 2 Cal. 4th at 967.

Demurrer to the Tenth Cause of Action for an Accounting Calendar No.: Event ID:  TENTATIVE RULINGS

3010282 CASE NUMBER: CASE TITLE:  PANTAZIS VS. RUESCH PAVONE [IMAGED]  37-2023-00017209-CU-BT-NC The demurrer to the tenth cause of action for an accounting, which has been brought as to Ms. Ruesch Pavone only, is sustained. 'An action for an accounting has two elements: (1) 'that a relationship exists between the plaintiff and defendant that requires an accounting' and (2) 'that some balance is due the plaintiff that can only be ascertained by an accounting.'' Sass v. Cohen (2020) 10 Cal. 5th 861, 842 (quoting Teselle v. McLoughlin (2009) 173 Cal. App. 4th 156, 179).

The FAC alleges that 'Plaintiff does not know the precise amount on which to base his claim for since such amounts and profits can only be determined by complete accounting/business evaluation of all financial books and records/receipts in the possession of Defendants. Plaintiff is informed and believe and thereon alleges that the amount due Plaintiff are excess of $200,000.00.' See FAC, ¶ 66. The foregoing is insufficient to survive the pleading stage. Notably, '[a]n action for accounting is not available where the plaintiff alleges that the right to recover a sum certain or a sum that can be made certain by calculation.' Teselle, 173 Cal. App. 4th at 179. Here, Plaintiff has indeed alleged that the amount purportedly owed to him can be made certain by reference to certain financial books/records/receipts in Defendants' possession. Consequently, a cause of action for an accounting is unnecessary.

Accordingly, the court sustains the demurrer to the tenth cause of action without leave to amend as Plaintiff has failed to demonstrate a reasonable possibility that the foregoing deficiencies can be cured by amendment. See Aubry, 2 Cal. 4th at 967.

In light of the foregoing, the court: (1) sustains the demurrer to the first, third, seventh, and eighth causes of action (as to both Defendants) with leave to amend; (2) sustains the demurrer to the second, fourth, fifth, and sixth causes of action (as to Ms. Ruesch Pavone only) with leave to amend; (3) sustains the demurrer to second cause of action (as to Sales Vision) without leave to amend; (4) sustains the demurrer to the ninth cause of action (as to both Defendants) without leave to amend; and (5) sustains the demurrer to the tenth cause of action (as to Ms. Ruesch Pavone only) without leave to amend.

Plaintiff shall file and serve a second amended complaint within ten (10) days of this hearing. See Cal. R. Ct. 3.1320(g).

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, January 19, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of January 19, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

Calendar No.: Event ID:  TENTATIVE RULINGS

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