Judge: Deborah C. Servino, Case: 30-2021-01234873, Date: 2023-01-06 Tentative Ruling

Defendant Lisa Kieu’s demurrer to the second and third causes of action in the Plaintiffs Rosalina and Martin Lydsters’ Complaint, is sustained with 15 days leave to amend.  The motion to strike is therefore moot.

A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.) On demurrer, a complaint must be liberally construed. (Code Civ. Proc., § 452; Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) All material facts properly pleaded, and reasonable inferences, must be accepted as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)

Second Cause of Action for Intentional Infliction of Emotional Distress

“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; CACI no. 1600.)

“[T]he trial court initially determines whether a defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Where reasonable men can differ, the jury determines whether the conduct has been extreme and outrageous to result in liability. Otherwise stated, the court determines whether severe emotional distress can be found; the jury determines whether on the evidence it has, in fact, existed.” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1614.)

“Liability for IIED does not extend to ‘ “ ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ ” ’ Malicious or evil purpose is not essential to liability for IIED.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007, internal citations omitted.)

Plaintiffs allege more than insults and threats. They allege a threat to destroy them that was acted upon.  They allege concerted activity and defamation designed to “take them down” in retaliation for failure to repay a loan.  (Complaint, at ¶¶ 7-12.)  Accepting these allegations as true, they are sufficient to plead outrageous conduct.

But Defendant also contends that such a claim is duplicative of Plaintiffs’ defamation cause of action.  (Dem., at p. 9.)  The two causes of action are based on the same conduct.  And both would permit recovery of Plaintiffs’ emotional distress damages.  (See Selleck v. Globe International, Inc. (1985) 166 Cal.App.3d 1123, 1136; Wong v. Jing (2010) 189 Cal.App.4th 1354, 1379.)  Plaintiffs do not address the issue of duplicative causes of action in their opposition.

Because the intentional infliction of emotional distress cause of action does appear to be duplicative of the defamation cause of action, the demurer to this cause of action is sustained with 15 days leave to amend, on the ground that it is surplusage.

Third Cause of Action for Negligent Infliction of Emotional Distress

For a claim for negligent infliction of emotional distress, courts analyze this claim under a direct victim theory versus a bystander.  In direct victim cases, there is no independent tort for negligent infliction of emotional distress.  Rather, it simply becomes part of the tort of negligence. The plaintiff must prove the usual elements of negligence, namely the defendant owed a duty of care and breached it proximately causing the emotional distress damage to the plaintiff.  (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 127; Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 204; Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 206.)  Furthermore, “unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 985.) “Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests.” (Ibid.)

Here, Plaintiffs failed to allege the necessary elements for a negligence cause of action. (See Complaint, at p. 5.)  The demurrer to this cause of action is sustained with 15 days leave to amend.

Kieu shall give notice of the rulings.