Judge: Elaine W. Mandel, Case: 22SMCV01932, Date: 2024-12-03 Tentative Ruling

Case Number: 22SMCV01932    Hearing Date: December 3, 2024    Dept: P

Tentative Ruling

Chun v. Smith, Case no. 22SMCV01932

Hearing date December 3, 2024

Plaintiff and Cross-Defendant Chun’s Demurrer to Second Amended Cross-Complaint

Plaintiff/cross-defendant Chun sues defendant/cross-complainant Smith, who is in pro per, for injuries arising out of an alleged assault. Defendant cross-complained for intentional tort arising from defendant’s arrest subsequent to the assault. Defendant filed a first amended cross-complaint for intentional tort and fraud arising from plaintiff’s police reports and filed a second amended cross-complaint for intentional infliction of emotional distress arising from his arrest. Plaintiff demurs. No opposition was filed.

“The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420. A complaint “is sufficient if it alleges ultimate rather than evidentiary facts,” Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550, but plaintiff must allege essential facts “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff’s claim. Doheny Park Terrace Homeowners Ass’n., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.

Plaintiff argues defendant fails to state facts sufficient to constitute a cause of action. The court previously noted defendant’s complaints sought to penalize plaintiff for protected activity under Cal. Code Civ. Proc §47(2). See Min. Order 9/10/24. Defendant repeats claims the court previously found unavailing, including arguing plaintiff’s claims were knowingly false without substantiating said argument and referring to videos that are not in evidence. Id.

As before, the crux of defendant’s claims stem from plaintiff’s reports to law enforcement, which are protected under Cal. Code Civ. Proc §47(2). Whether defendant suffered harm as a result of plaintiff’s report does not remove that protection. “An absolute privilege exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing.” Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296, 1303.

Defendant fails to offer allegations showing outrageous conduct by plaintiff sufficient to establish a cause of action for intentional infliction of emotional distress. Further, defendant’s allegations stem from plaintiff’s reports to law enforcement, which is protected activity. Defendant failed to state facts sufficient to constitute a cause of action despite being given multiple opportunities to amend his pleading.

Plaintiff’s demurrer to defendant’s second amended cross-complaint is unopposed and is SUSTAINED without leave to amend.