Judge: Gail Killefer, Case: 21STCV27294, Date: 2023-01-04 Tentative Ruling

Case Number: 21STCV27294    Hearing Date: January 4, 2023    Dept: 37

HEARING DATE:                 January 4, 2023   

CASE NUMBER:                  21STCV27294

CASE NAME:                        Kario Harris v. Paul Luntumbuez

TRIAL DATE:                        None

PROOF OF SERVICE:          OK

MOTION:                               Defendant’s Demurrer to the Complaint

MOVING PARTY:                Defendant, Paul Luntumbuez 

OPPOSING PARTY:             Plaintiff, Kario Harris

OPPOSITION:                       December 8, 2022

REPLY:                                  None filed as of January 3, 2023.

TENTATIVE: Defendant’s demurrer is sustained. Plaintiff is granted 30 days leave to amend. Defendant is to give notice.

Background

This action arises out of alleged sexual advances made by Kario Harris (“Plaintiff”) to Paul Luntumbuez (“Defendant”) and Defendant’s communications of the alleged hostile work environment beginning in 2016. According to the Complaint, Plaintiff is a retired U.S. Army Forces Major, and Defendant is a U.S. Army Reservist SFC and Human Resources Specialist in the Human Resources Department of the Department of Veterans Affairs. Plaintiff alleges that beginning in 2016 and “continuing,” Defendant made false statements and gave knowingly false testimony regarding these alleged sexual advances to third parties. Plaintiff further contends Defendant’s statements have been published on several websites and that these statements will be published again in the future.  

Plaintiff’s Complaint alleges the following causes of action: (1) defamation, (2) intentional infliction of emotional distress, (3) intentional interference with prospective economic advantage, and (4) declaratory relief.

Defendant now demurs to all causes of action of the Complaint, and moves to strike the fourth cause of action. Plaintiff opposes the motion. 

DEMURRER

Discussion[1]

I.                   Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice.  (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.”  (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)  The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .”  (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)  “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”  (CCP § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.)  “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.”  (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.) 

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts.  (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.”  (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)  “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.”  (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.)  In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) 

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.”  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)  “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) 

II.                Analysis

A.     First Cause of Action: Defamation

Defamation has two forms—libel and slander.  (Civ. Code, § 44.)  “Libel is a false and unprivileged publication by writing, printing … which [in relevant part] exposes any person to hatred, contempt, ridicule, or obloquy, … or which has a tendency to injure him in his occupation.”  (Civ. Code, § 45.)  “Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which [in relevant part]: … 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits….”  (Civ. Code, § 46, subd. (3).)   

“To prevail on a claim for defamation, plaintiff must show four elements: that defendants published the statements; that the statements were about plaintiff; that they were false; and that defendants failed to use reasonable care to determine the truth or falsity.” (Hecimovich v. Encinal School Parent Teacher Org. (2012) 203 Cal.App.4th 450, 470.)   

California courts have held that statements of opinion cannot subject the speaker to liability for making a defamatory statement.  (John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1313.)  “Though mere opinions are generally not actionable [citation], a statement of opinion that implies a false assertion of fact is [citation].”  (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 289  [“simply couching such statements in terms of opinion does not dispel these false, defamatory implications because a speaker may still imply a knowledge of facts which lead to the defamatory conclusion,” internal brackets, quotation marks, and citations omitted].) 

Civil Code, § 47 creates two privileges: “(1) an absolute privilege, commonly called the litigation privilege, that applies irrespective of the speaker’s motive (§ 47(b)), and (2) a qualified privilege that ‘applies only to communications made without malice’ (see id., subd. (c)).”  (Schep v. Capital One, N.A., (2017) 12 Cal.App.5th 1331, 1337.)  “For the purposes of section 47’s qualified privilege, ‘malice’ means that the defendant (1) ‘was motivated by hatred or ill will towards the plaintiff,’ or (2) ‘lacked reasonable grounds for [its] belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights.’ ”  (Ibid., internal quotation marks omitted.) Civil Code § 47’s qualified privilege applies only where “the communicator and the recipient have a common interest and the communication is of a kind reasonably calculated to protect or further that interest.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118-1119.) “ “The defendant has the initial burden of showing the allegedly defamatory statement was made on a privileged occasion, whereupon the burden shifts to the plaintiff to show the defendant made the statement with malice.”” (Id. at 1119.)

Defendant first contends the first cause of action is insufficiently pled because this cause of action is barred by the one-year statute of limitations in CCP § 340(c). (Demurrer, 5-6.) Pursuant to CCP § 340(c), the statute of limitations is one year for “[a]n action for libel, slander, false imprisonment...” Defendant explains that the Complaint alleges the incidents “took place in 2016 and Plaintiff claims that they are continuing,” but has failed to provide additional factual allegations as to how they are continuing. (Dem., 6.) Thus, Defendant correctly points out the alleged incidents took place “over six years ago” and contends the cause of action is barred by the statute of limitations. (Id.)

In opposition, Plaintiff repeats the contentions in his Complaint that the allegedly “slanderous activity starting from 2016 has continued to date.” (Opposition, 4.) However, Plaintiff fails to explain how such activities have continued in the six years after the alleged incidents. Plaintiff has further failed to explain how this is a matter for “jury determination” as he concludes, without any supporting authorities. (Id.) Plaintiff repeats earlier claims and requests leave to amend. (Opp., 4-5.)

A review of the Complaint shows it to be lacking sufficient factual allegations to show how such alleged slander or defamatory activities have continued since 2016, and fails to plead such allegations to meet the elements required to establish a defamation claim. Therefore, the court finds the first cause of action to be insufficiently pled.

Defendant’s demurrer is sustained as to the first cause of action.

B.     Second Cause of Action: Intentional Infliction of Emotional Distress

“To state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144.) To satisfy the “outrageous conduct” element, the plaintiff must allege conduct “so extreme as to exceed all bounds of that usually tolerated in a civilized community . . . “ (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.)  

Defendant also contends the second cause of action is similarly time-barred by the applicable statute of limitations, here CCP § 335.1. (Dem., 6-7.) Defendant correctly contends the two-year statute of limitations applies to Plaintiff’s IIED claim. (Id.) Defendant further contends the second cause of action is insufficiently pled as Plaintiff fails to show sufficient factual allegations regarding outrageous or extreme conduct. (Id.)

CCP § 335.1 provides a two-year statute of limitations for any “action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” Therefore, because Plaintiff’s intentional infliction of emotional distress tort claims arise from Defendant’s alleged wrongful acts or neglect, the two-year statute of limitations applies to those claims. (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1205 [“It is settled that an employer's discharge of an employee in violation of a fundamental public policy embodied in a constitutional or statutory provision gives rise to a tort action”].) 

A review of the second cause of action of the Complaint again shows Plaintiff has failed to plead sufficient allegations to show how the outrageous behavior or conduct has continued since 2016, such that the claims would not be time-barred. Further, the Complaint fails to plead sufficient factual allegations to establish the elements of an IIED claim, namely a showing of outrageous conduct and an intention or reckless indifference to any harm caused to Plaintiff. Therefore, the court finds the second cause of action is insufficiently pled.

Defendant’s demurrer as to the second cause of action is sustained.

C.     Third Cause of Action: Intentional Interference with Prospective Economic Advantage

A cause of action for intentional interference with economic relationship (“IIER”) requires proof of (a) a valid and existing contract, (b) knowledge of the contract and intent to induce breach, (c) breach of contract, (d) breach caused by defendant’s unjustified or wrongful conduct, and (e) damages.  (Dryden v. Tri-Valley Growers (1977) 65 Cal.App.3d 990, 995.)  “While a plaintiff may satisfy the intent requirement for [IIER] by pleading specific intent, i.e., that the defendant desired to interfere with the plaintiff’s prospective economic advantage, a plaintiff may alternately plead that the defendant knew that the interference was certain or substantially certain to occur as a result of its action.”  (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1154, 1157 (Korea Supply).)  “While intentionally interfering with an existing contract is ‘a wrong in and of itself’ [citation], intentionally interfering with a plaintiff’s prospective economic advantage is not.  To establish a claim for interference with prospective economic advantage, therefore, a plaintiff must plead that the defendant engaged in an independently wrongful act.  [Citation.]”  (Id., at p. 1158.) 

Defendant contends that Plaintiff’s third cause of action is insufficiently pled because Plaintiff does not allege he was fired from his position, and therefore has not pled any actual disruption or resulting damages. (Demurrer, 7-8.) Alternatively, Defendant contends that the third cause of action is insufficiently pled because it is also time-barred by CCP § 335.1 (Id.) The court agrees.

Here, the Complaint fails to allege a disruption in Plaintiff’s employment, and only alleges a potential disruption or interference. (Complaint  ¶ 28.) Further, the Complaint fails to plead sufficient allegations to show the third cause of action is not also time-barred. (Complaint ­­¶¶26-31.) Therefore, liberally construing the allegations of the Complaint in favor of Plaintiff, the court finds that Plaintiff’s third cause of action is insufficiently pled for similar reasons as the second cause of action.

For these reasons, Defendant’s demurrer is sustained as to the third cause of action.

D.    Fourth Cause of Action: Declaratory Relief

Here, Plaintiff’s Complaint acknowledges the derivative nature of the fourth cause of action, as it relates to the first three causes of action. (Complaint ¶¶36-41.) As this court has sustained the demurrer to the first three causes of action, the court also sustains the demurrer to the claim for declaratory relief.

MOTION TO STRIKE 

Having sustained Defendant’s demurrer, the court finds Defendant’s motion to strike moot.  

Conclusion

Defendant’s demurrer is sustained. Plaintiff is granted 30 days leave to amend. Defendant is to give notice.