Judge: Elaine Lu, Case: 22STCV22903, Date: 2023-01-30 Tentative Ruling

Case Number: 22STCV22903    Hearing Date: January 30, 2023    Dept: 26

Immunity

GEVORGYAN’s demurrer on grounds of immunity under Health & Safety Code section 103900 is OVERRULED.  GEVORGYAN’s report to the DMV does not fall within the mandatory provision of section 103900(a) because it did not reflect a diagnosis of a disorder characterized by lapses of “consciousness.”  Instead, GEVORGYAN’s report referenced lapses of “awareness,” which the Court cannot as a matter of law equate with “consciousness.” There can be losses of sensation without lapses of consciousness.  Nor does GEVORGYAN’s report qualify for immunity under the discretionary provision of section 103900(a), which applies only to surgeons who act “reasonably and in good faith,” which is directly contrary to the allegations of the complaint.

First Cause of Action

For the reasons stated in Plaintiff’s opposition, GEVORGYAN’s demurrer to the first cause of action for malicious prosecution for failure to state a claim is OVERRULED.

Second Cause of Action

            “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.)   With regard to the first element, intentional infliction of emotional distress “calls for intentional, or at least reckless conduct—conduct intended to inflict injury or engaged in with the realization that injury will result.”  (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210.) 

For “[c]onduct to be outrageous[, it] must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.”  (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.)  “[W]hether conduct is outrageous is ‘usually a question of fact’ … [however] many cases have dismissed intentional infliction of emotional distress cases on demurrer, concluding that the facts alleged do not amount to outrageous conduct as a matter of law.” (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235, [internal citations omitted].)  “‘Behavior may be considered outrageous if a defendant (1) abuses a relation or position that gives him power to damage the plaintiff’s interests; (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. . . .’” (Molko v. Holy Spirit Ass’n (1988) 46 Cal.3d 1092, 1122, superseded by statute on other grounds as noted in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, Fn. 19 [internal citation omitted].)  “[T]he requisite emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry.”  (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.) 

For the reasons stated in Plaintiff’s opposition, ALEXANDER GAREN GEVORGYAN’s demurrer to the second cause of action on this ground is OVERRULED.  GEVORGYAN’s alleged conduct is more than mere insulting language.  (See e.g., Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 disapproved of on other grounds by White v. Ultramar, Inc. (1999) 21 Cal.4th 563.)  GEVORGYAN’s fails to cite any authority indicating that as a matter of law the alleged conduct is insufficient to constitute outrageous conduct.  However, the only factual allegation against Virabov is that Virabov introduced Plaintiff to Gevorgyan with ill motives, which does not rise to the level of outrageous conduct.  Accordingly, Virabov’s demurrer to the second cause of action for IIED on this ground is SUSTAINED.

            However, Defendant GEVORGYAN’s demurrer to the second cause of action on the ground of litigation privilege under Civil Code section 47 is SUSTAINED.

CONCLUSION

For the foregoing reasons, Defendant Virabov’s demurrer to the second cause of action is sustained with 20 days leave to amend.

Defendant GEVORGYAN’s demurrer is overruled as to the first cause of action and sustained with 20 days leave to amend as to the second cause of action.

Plaintiff ANNETTE ZARGARYAN’s Complaint references Attachments A, B, and C.  However, Plaintiff failed to attach the referenced attachments to the complaint itself.  The form that Defendant ALEXANDER GAREN GEVORGYAN submitted to the DMV (Attachment A), the initial suspension order (Attachment B), and the reinstatement order (Attachment C), are important to the analysis of the issues raised in both demurrers.  Accordingly, Plaintiff should attach the referenced attachments in the amended complaint.

The case management conference is continued to April 6, 2023 at 8:30 am.

Defendants to give notice.