Judge: David A. Hoffer, Case: 30-2021-1178780, Date: 2022-08-08 Tentative Ruling
The court must first note that plaintiff Indya Wade’s (“Plaintiff”) oppositions to the Demurrer and Motion to Strike (“MTS”) were served three court days late, which is improper. The court has the authority to disregard such late filed documents. The court will consider the late filed oppositions on this occasion, but warns Plaintiff that future late filed pleadings will not be considered.
Additionally, the court has taken judicial notice of the U.S.D.C.’s ruling on Plaintiff’s complaint in that court. Although that complaint was dismissed following a Rule 12(b)(6) motion, the U.S.D.C. specifically did not rule on Plaintiff’s causes of action (“COA”) for IIED or NIED, instead noting those matters are proper for a state court determination. Plaintiff since dropped her NIED claim and added a claim for general Negligence, which was not part of the U.S.D.C. case. This case and Plaintiff’s COA are before this court at this time for first review.
A) Demurrer
Defendants U.S. Bank National Association (“Bank” individually) and Marci Groves’ (“Groves” individually; “Defendants” together) Demurrer to Plaintiff’s First Amended Complaint (“FAC”) is SUSTAINED with 20-days leave to amend.
Defendants demur to both COA on the basis that they fail to state sufficient facts to support a cause of action. (Civ. Proc. Code § 430.10(e).)
1) COA No. 1 – Intentional Infliction of Emotional Distress
The elements to a claim for 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.” (Hughes v. Pair (2009) 46 Cal. 4th 1035, 1050.)
“Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” [Citation.] “Generally, conduct will be found to be actionable where the 'recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'” (Ess v. Eskaton Properties, Inc. (2002) 97 Cal. App. 4th 120, 130.)
None of the allegations in the complaint rise to the level of “outrageous conduct” that is required to support this COA. It is unclear what “racial and negative body language” Plaintiff alleges as sucking one’s teeth and pointing a finger is not generally outrageous conduct. (FAC ¶¶ 20-21, 47.) There are also no allegations supporting that any alleged emotional distress suffered by Plaintiff is severe or extreme.
The
Demurrer is sustained with leave to amend as to this COA.
2) COA No. 2 – Negligence
Plaintiff has failed to allege any legal duty owed by Defendants to Plaintiff. Plaintiff also alleged “Defendant” failed to exercise reasonable care fulfilling its duty, but did not identify either the duty, breach, or which specific defendant she was referring to. (FAC ¶ 59.) Plaintiff has also failed to allege any damages that she allegedly suffered from the actions of Defendants that would support this COA.
The Demurrer is sustained with leave to amend as to this COA.
B) Motion to Strike
In light of the rulings above, the Motion to Strike is MOOT.
Defendants are ordered to give notice of this ruling.