Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from a dispute between neighbors.  Plaintiffs Stefanie Gamberg and Brian Lamb own real property located at 22349 Mulholland Drive, Woodland Hills, California 91634 (the “Subject Property”).  (Compl. ¶¶ 1, 11.)  Plaintiffs purchased the Subject Property in September 2022.  (Id. ¶11.) 

Warren Braithwaite owns the property located at Mulholland Drive, Woodland Hills, California 91634 (“Braithwaite Property”).  (Id. ¶¶ 2, 12.)  The Subject Property and Braithwaite Property adjoin each other.  (Id. ¶ 14.)  The Subject Property is elevated by several feet above the Braithwaite Property and allegedly received lateral support from the Braithwaite Property.  (Id.)  Plaintiffs claim that Warren Braithwaite bought the Braithwaite Property intending to flip it for a profit. (Id. ¶ 12.)  Warren Braithwaite used J. Baron Construction for grading, excavation and construction work. (Id. ¶ 13.) Plaintiffs allege that the grading and excavation work (which took place before Plaintiff purchased the Subject Property) was improperly done, as it allegedly deprived the Subject Property of its lateral support, was unpermitted, encroached onto the Subject Property, and was performed in an incompetent manner. (Id. ¶¶ 16 17.)  Plaintiffs allege that as a result of this excavation and grading, the Subject Property has suffered soil erosion and land subsidence. (Id. ¶¶ 18, 19.)  The soil on Plaintiffs’ Property has cracked, subsided and is continually sliding away from its former natural level, resulting in property damage.  (Id. ¶19.)  Additionally, Plaintiffs claim the Los Angeles Department of Building and Safety issued a Notice of Code Violation on June 24, 2022 and an Order to Comply on August 9, 2022. (Id. ¶ 21.)  

Following their purchase of the Subject Property, Plaintiffs claim they communicated with Warren Braithwaite, J. Baron, and other unnamed DOE defendants regarding the loss of lateral support, requesting a retaining wall be promptly built to prevent further alleged subsidence. (Id. ¶ 20.)  Warren Braithwaite, J. Baron, and other unnamed DOE defendants did not remedy the loss of lateral support or build the retaining wall as requested, despite Plaintiffs’ many requests. (Id. ¶ 20.)  This action ensued. 

Plaintiffs’ original complaint only named Warren Braithwaite and J. Baron Construction as defendants.  On July 24, 2024, Plaintiffs amended their complaint by naming Tyler Braithwaite (“Moving Defendant”), the son of Warren Braithwaite, as DOE Defendant 6. (Decl. Hagle. Ex. A.)  The operative complaint alleges claims for negligence, trespass/encroachment, nuisance and intentional infliction of emotional distress (“IIED”). 

This hearing is on Moving Defendant’s demurrer to the IIED claim.  Moving Defendant argues that emotional distress damages are not available for purely property damage, that Plaintiff has not alleged extreme and outrageous conduct on the part of Moving Defendant, and Plaintiff’s allegations of severe emotional distress are too conclusory.  There was no opposition filed as of the posting of this tentative ruling.   

MEET AND CONFER 

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving party “shall meet and confer in person or by telephone” 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.  (Code Civ. Proc. § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)  Moving Defendant submits the Declaration of Eric Hagle, which shows the parties met and conferred by telephone on November 14, 2024 which is more than five days from the date the demurrer was filed (on December 2, 2024).  This satisfies the meet and confer requirements of § 430.41.       

LEGAL STANDARD 

“[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 Ins. 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 Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)   

DISCUSSION 

Citing Erlich v. Menezes (1999) 21 Cal.4th 543, Moving Defendant argues that Plaintiff’s IIED claim fails because emotional distress damages are not recoverable for losses arising solely from property damage.  The Court disagrees. 

Erlich involved emotional distress damages in the context of a negligent breach of contract.  As clarified in Robinson Helicopter v. Dana Corp. (2004) 34 Cal.4th 979, Erlich does not apply to bar recovery of tort damages in connection with intentional fraud and misrepresentation, even if the intentional acts of fraud were committed in the context of a contractual relationship.  (Id. at 989, 992-993.)  “In each of these cases, the duty that gives rise to tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to harm.”  (Id. at 989-991.) 

Because IIED is an intentional tort, the holding in Erlich is likewise inapplicable here. “Erlich v. Menezes and other cases disallowing emotional distress damages in cases of property damage involved negligent infliction of emotional distress. The rule does not apply to intentional infliction of emotional distress[.]”  (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 203.) 

Alternatively, Moving Defendant argues that Plaintiff has not alleged extreme and outrageous conduct on the part of Moving Defendant.  On this point, the Court agrees. 

The elements of an IIED claim 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.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) Under California law, for conduct to be “outrageous” it must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (See Ess v. Eskaton Props., Inc. (2002) 97 Cal.App.4th 120, 130.) Whether conduct is sufficiently extreme and outrageous so as to be actionable may be determined as a matter of law.  (Cochran v. Cochran (1998) 65 Cal. App. 4th 488, 494.) To avoid demurrer, the plaintiff must allege such acts with great specificity. (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal. App. 4th 144, 160-61.)  Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) 

Here, Plaintiffs have alleged DOE Defendants engaged in grading and excavation that removed the lateral support on the Subject Property.  Plaintiffs further allege the DOE Defendants failed to remedy the problem, after Plaintiffs’ many requests that they do so.  The Court is not convinced that defective construction work, even one that violates safety rules, is extreme and outrageous and “exceeds all bounds of that usually tolerated in a civilized community.”  Even assuming it was, the construction work took place before Plaintiffs owned the Subject Property, and therefore it could not conceivably be done “with the intention of causing, or reckless disregard of the probability of causing, emotional distress” to Plaintiffs.  As to DOE Defendants’ failure to remedy the problem, even if that were extreme and outrageous, Plaintiffs have not alleged specific facts showing Moving Defendant even knew of her requests to remedy the problem nor that he ignored the requests.  The requests were communicated to Moving Defendant’s father, and while Plaintiffs allege that the father was the agent of the DOE Defendants, these allegations are entirely conclusory.  (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125 (court need not assume the truth of contentions, deductions, or conclusions of fact or law).) 

The Court also finds that Plaintiffs failed to set forth sufficient facts that they suffered severe emotional distress.  “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.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051; see also Wong v. Tai Jin (2010) 189 Cal.App.4th 1354, 1377; Keys v. Alta Bates Summit Med. Ctr. (2015) 235 Cal.App.4th 484, 491.)  In alleging distress, courts have required the plaintiff to set forth facts indicating the nature or extent of any mental suffering, and they have sustained demurrers where such factual allegations were lacking. (See Michaelian v. State Comp. Ins. Fund (1996) 50 Cal.App.4th 1093, 1113-1114 (affirming judgment after demurrer without leave to amend; although plaintiff alleged he “sustained injury to his health, strength, and emotional condition,” he “did not plead specific facts that establish severe emotional distress resulting from defendant's conduct”); Bogard v. Employers Cas. Co. (1985) 164 Cal.App.3d 602, 607, 617-618, fn.2 (trial court did not err in sustaining demurrer to emotional distress claim where plaintiffs alleged they suffered “suffered mental anguish and emotional distress, and became ill, nervous and upset” without any facts indicating the nature or extent of their suffering, but it was error not to give leave to amend).)   

Here, Plaintiffs allege that “[a]s a direct and proximate result of Defendants’ acts and omissions, Plaintiffs have suffered and continue to suffer severe emotional distress and are entitled to damages in an amount to be determined at trial.”  (Compl. ¶ 52.)  Based on the foregoing cases, these allegations are entirely conclusory and cannot survive a demurrer.  Plaintiffs fail to allege any specific facts to show that they in fact suffered severe emotional distress, including the nature and severity of the alleged distress.   

Accordingly, the Court sustains the demurrer to the IIED claim with 30 days’ leave to amend. 

CONCLUSION 

Because Plaintiffs fail to allege several elements of an IIED claim, the Court SUSTAINS the demurrer to the IIED claim with 30 days’ leave to amend.   

 

DATED:  February 4, 2025 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court