Judge Daniel M. Crowley, Case Number: 23STCP02746, Date: 2024-05-15 Tentative Ruling

Defendant Dr. Emelou C. Sagaral, M.D.’s demurrer to Plaintiff Ferdinand U. Doria’s complaint is sustained with leave to amend as to the 6th and 7th causes of action.

Defendant Dr. Emelou C. Sagaral, M.D. (“Sagaral”) (“Defendant”) demurs to Plaintiff Ferdinand U. Doria’s (“Doria”) (“Plaintiff”) complaint (“Complaint”) on the basis the 6th and 7th causes of action fail to state facts sufficient to allege causes of action against Defendant. (Notice of Demurrer, pgs. 1-2; C.C.P. §430.10(e).)

Plaintiff filed his operative Complaint on July 31, 2023, alleging eight causes of action: (1) specific performance or damages based upon breach of express contract; (2) constructive trust based on breach of express contract; (3) constructive trust or damages based on breach of implied in fact contract; (4) declaratory relief; (5) fraud and deceit; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; and (8) partition.[1]

This Marvin action arises out of parties’ oral agreement on or about August 26, 2008, to maintain their relationship as ostensible husband and wife. (See Complaint ¶6.) Plaintiff alleges they agreed Plaintiff would render further services, which included but was not limited to companion, confidante, homemaker, housekeeper, cook, social companion, and advisor to Defendant. (Complaint ¶6.) Plaintiff alleges the parties further agreed that in the event of the dissolution of their relationship by death, separation or otherwise, that all Defendant’s property acquired during the period of time the parties’ relationship as a result of her skills, efforts, labor and earnings would be divided equally. (Complaint ¶6.) Plaintiff alleges Defendant would then and thereafter provide for all Plaintiffs financial support and need for the rest of his life in the same style and manner that was established during the parties’ relationship consistent with Defendant’s annual earnings and accumulations; Defendant would provide finances for the benefit of Plaintiff; and Plaintiff and Defendant would be married. (Complaint ¶7.)

On October 27, 2023, Defendant filed the instant demurrer. On May 7, 2024, Plaintiff filed his opposition. Defendant filed her reply on May 8, 2024.

Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (C.C.P. §430.41(a), emphasis added.) A declaration must be filed with a demurrer regarding the results of the meet and confer process. (C.C.P. §430.41(a)(3).)

Defendant’s counsel declares that Plaintiff’s counsel failed to respond to her request to meet and confer or otherwise failed to meet and confer in good faith. (See Decl. of Newman ¶2b.) Defendant’s counsel’s declaration is sufficient under C.C.P. §430.41(a)(3)(B). Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (C.C.P. §430.41(a)(4); Dumas v. Los Angeles County Board of Supervisors (2020) 45 Cal.App.5th 348, 355; Olson v. Hornbrook Community Services District (2019) 33 Cal.App.5th 502, 515.) Accordingly, the Court will consider the instant demurrer.

Defendant demurs to Plaintiffs’ 6th and 7th causes of action on the basis the causes of action fail to state facts sufficient to constitute causes of action against Defendant. (Demurrer, pgs. 5-9; C.C.P. §430.10(e).)

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

“A cause of action for intentional infliction of emotional distress exists when there is ‘(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.’ 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’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

Plaintiff alleges on or about August 4, 2021, Defendant repudiated her agreement with Plaintiff. (Complaint ¶52.) Plaintiff alleges on information and belief and based thereof alleges that Defendant willfully, maliciously, and knowingly engaged in the aforementioned acts with a conscious design to deprive Plaintiff of his rights. (Complaint ¶53.) Plaintiff alleges Defendant’s conduct was intentional, malicious, unprivileged, outrageous and done for the purpose of causing Plaintiff to suffer humiliation, anguish and emotional and physical distress. (Complaint ¶54.) Plaintiff alleges Defendant’s conduct as hereinabove set-forth, was done with knowledge that Plaintiff would suffer mental anguish and emotional and physical distress and Defendant’s conduct was with a wanton and reckless disregard for the consequences of said actions to Plaintiff. (Complaint ¶54.)

Plaintiff alleges as a direct and proximate result of the aforementioned acts, Plaintiff has suffered humiliation, mental anguish, and emotional and physical injuries, and Plaintiff has suffered loss of energy, loss of sleep, severe tension, profound shock and anxiety, all to Plaintiff’s damages in a sum within the jurisdictional requisites of this Court. (Complaint ¶54.) Plaintiff will ask leave of Court to amend this Complaint at time of trial to insert the exact amount of said damages. (Complaint ¶54.)

Plaintiff fails to allege a cause of action for intentional infliction of emotional distress against Defendant because the conduct in question—that she terminated her relationship with Plaintiff, denied that she had any agreement with Plaintiff for future support and/or division of assets, and refused to provide future support or divide her assets with Plaintiff—does not constitute conduct that is “outrageous” or so “extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Complaint ¶¶8, 11, 12, 16; Hughes, 46 Cal.4th at pgs. 1050-1051.)

Further, it is well established that damages for mental suffering as a general rule are not recoverable where the essential nature of the dispute is breach of contract. In such cases, damages are limited to economic losses. (Erlich v. Menzies (1999) 21 Cal.4th 543, 554-555.) Here, Plaintiff alleges a Marvin action, which sounds in contract and not in tort. (See Marvin v. Marvin (1976) 18 Cal.3d 660, 670.) Therefore, damages for mental suffering is not recoverable.

Accordingly, Defendant’s demurrer to Plaintiff’s 6th cause of action is sustained with 20 days leave to amend.

“‘[The] negligent causing of emotional distress is not an independent tort but the tort of negligence . . ..’ ‘The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.’” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588, internal citations omitted.)

“In our view, this articulation of ‘serious emotional distress’ is functionally the same as the articulation of ‘severe emotional distress’ [as required for intentional infliction of emotional distress]. Indeed, given the meaning of both phrases, we can perceive no material distinction between them and can conceive of no reason why either would, or should, describe a greater or lesser degree of emotional distress than the other for purposes of establishing a tort claim seeking damages for such an injury.” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1378.)

Plaintiff alleges the aforesaid conduct of Defendant, if not intentional, was negligent on part of Defendant, was reckless and without due regard for the health and welfare of Plaintiff. (Complaint ¶58.) Plaintiff alleges Defendant had a duty to act with due care towards Plaintiff in light of the parties’ confidential relationship which existed between the parties in that Plaintiff reposed the greatest confidence and trust in Defendant, and in light of their relationship, and engagement to be married. (Complaint ¶59.) Plaintiff alleges said duty was breached as a result of the conduct alleged herein, which has continued through the filing of this Complaint. (Complaint ¶59.)

Plaintiff alleges Defendant acted negligently, carelessly, wrongfully, and without justification in carrying out her scheme designed to deprive Plaintiff of his rights and property interests. (Complaint ¶60.) Plaintiff alleges Defendant knew or should have known that Plaintiff would suffer emotional distress as a direct and proximate result of Defendant’s conduct. (Complaint ¶60.)

Plaintiff alleges as a direct and proximate result of said negligence and carelessness by Defendant, Plaintiff has suffered humiliation, mental anguish, and emotional and physical injuries including loss of sleep, loss of energy, severe tension, profound shock, and anxiety, all to Plaintiffs damage within the jurisdictional requisites of this Court. (Complaint ¶61.) Plaintiff will ask leave of Court to amend this Complaint at time of trial to insert the exact amount of said damages. (Complaint ¶61.)

Plaintiff fails to allege a cause of action for negligent infliction of emotional distress because Plaintiff fails to allege a cognizable legal duty owed by Defendant to Plaintiff. (Complaint ¶59.) In Maglica v. Maglica, the Court of Appeal stated,

[I]n family law matters involving dissolution of marriage, punitive damages are not available to remedy breaches of fiduciary duty in the management and control of community property (though there are, of course, other remedies). Punitive damages, however, are sometimes available in other breach of fiduciary duty cases. [Citation omitted.] It is unthinkable, given California’s abolition of common law marriage, that an unmarried, cohabiting partner should have a more powerful remedy than a spouse.

Here, Plaintiff does not allege the formerly cohabitating parties were married or allege a fiduciary duty Defendant owed to Plaintiff that is recognized by California law. (See also Civ. Code §43.4 [“A fraudulent promise to marry or to cohabit after marriage does not give rise to a cause of action for damages”.]; Civ. Code §43.5 [“No cause of action arises for: . . . (d) Breach of promise of marriage.”].)

Further, emotional distress damages are not usually available in breach of contract cases or other cases where the claimed injury is primarily economic. (See Ehrlich, 21 Cal.4th at pg. 552 [preexisting contractual relationship, without more, will not support recovery for emotional distress where tortious conduct has resulted only in economic loss]; Sutherland v. Barclays American/Mortgage Corp. (1997) 53 Cal.App.4th 299, 316 [stating breach of contract does not allow recovery of damages for negligent infliction of emotional distress]; Butler-Rupp v. Lourdeaux (2005) 134 Cal.App.4th 1220, 1226 [stating award of damages to commercial tenants in action against landlords was predicated solely on economic injury to tenants, precluding recovery of damages for negligent infliction of emotional distress in absence of physical injury or intentional conduct].)

Accordingly, Defendant’s demurrer to Plaintiff’s 7th cause of action is sustained with 20 days leave to amend.

Defendant’s demurrer to Plaintiff’s Complaint is sustained with 20 days leave to amend as to the 6th and 7th causes of action.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes Defendant only demurs to the 6th and 7th causes of action.