Judge: Gail Killefer, Case: 21STCV39877, Date: 2022-08-17 Tentative Ruling

Case Number: 21STCV39877    Hearing Date: August 17, 2022    Dept: 37

HEARING DATE:                 August 11, 2022

CASE NUMBER:                  21STCV39877

CASE NAME:                       Michael Gee v. Anthem, Inc.


MOTION:                               Defendant’s Demurrer to the First Amended Complaint

OPPOSITION:                       March 16, 2022


TENTATIVE:                         Defendant’s demurrer to the First Amended Complaint is sustained. Plaintiff is granted 20 days leave to amend from this date. Defendant is to give notice.



This is an action for intentional torts brought by Michael Gee (“Plaintiff”) against Anthem, Inc. (“Defendant”). Plaintiff filed the operative First Amended Complaint (“FAC”) on February 3, 2022. The operative FAC, repeats the same allegations, that:

Anthem “through its agent, Doe 1, committed an attempted battery and assaulted Michael Gee. After a contested civil claims court trial at the Harbor Justice Center, the agent attempted to punch Michael Gee but missed due to Mr. Gee ducking out of the way, but his fist came within one inch of his face. The agent further gave Mr. Gee "the bird" and told him to "Fuck off, I can do what I want." Mr. Gee was intimated, humiliated and has had trouble sleeping and has anxiety since this incident. Hs made a police report with the local sheriff’s office. The agent attacked Mr. Gee after an adversarial court proceeding and was attempting to further intimidate and harass him under the scope of his duties of arguing against Mr. Gee in Court.”

Plaintiff’s FAC alleges three causes of action: (1) assault and attempted battery; (2) intentional infliction of emotional distress; and (3) threat causing mental distress.

Defendant now demurs to Plaintiff’s FAC on the ground that it fails to state facts sufficient to constitute the three causes of action. Plaintiff opposes the demurrer.


I.                   Meet and Confer Efforts

CCP § 430.41 provides that a Defendant, prior to filing a demurrer, “shall meet and confer in person or by telephone” with Plaintiff to determine whether an agreement can be reached regarding the objections to be raised in the demurrer. (CCP § 430.41(a).)  Further, as part of the meet and confer process, the demurring Defendant “shall identify all of the specific causes of action that it believes are subject to the demurrer and identify with legal support the basis of the deficiencies.” (CCP § 430.41(a)(1).) The Plaintiff is then to respond by providing “legal support for its position that the pleading is legally sufficient,” or, alternatively, “how the complaint…

could be amended.” (Id.) This meet and confer shall occur “at least five days before the date the responsive pleading is due.” (CCP § 430.41(a)(2).) Finally, the demurring Defendant is to file and serve a declaration with the demurrer stating either:


“(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.

(B) That the party who filed the pleading subject to the demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.”

(CCP§ 430.41(a)(3)(A)-(B).)

Here, Defendant submits a declaration of its counsel, Christy A. Markos (“Markos”), to show compliance with the meet and confer requirement. Markos attests that on February 22, 2022, counsel “met and conferred with Plaintiff’s counsel with respect to Anthem’s pending demurrer and the basis for the same. Plaintiff’s counsel informed me that he intends to oppose Anthem’s demurrer.” (Markos Decl. ¶2.) The Markos Declaration is sufficient for purposes of CCP § 430.41.

II.                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 (Berkley).)  “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 (Mahan), 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.) 

While Plaintiff alleges three different causes of action for intentional tort against Defendant, for the actions of Defendant’s employee, Defendant demurs to the entire FAC on the basis that Plaintiff has failed to allege facts sufficient to show the intentional torts to have a causal nexus to the employee’s work to justify the imposition of liability under respondeat superior. (Demurrer, 5-7, n.4.)  Defendant further contends:

“the agent’s alleged conduct is not typical or broadly incident to, or a generally foreseeable consequence of, Anthem’s enterprise. Anthem is engaged in the business of providing healthcare benefits to its members. To the extent that Anthem’s employee was representing its interest in small claims court, there is nothing about Anthem’s enterprise generally or as a litigant in small claims court that would make an alleged assault typical or foreseeable. ... Anthem certainly cannot be held liable for an alleged assault by its agent for its appearance in smalls claims court.”

(Demurrer, 6.)

In opposition, Plaintiff points to supporting authority generally holding an employer liable for intentional torts done by its agents or employees. (Demurrer, 3-5.)  Plaintiff fails, however, to point to any alleged facts that show a nexus between the alleged acts of Anthem’s agent and his work for Anthem as an employee.


As discussed above, Plaintiff’s form Complaint is unclear, but appears to vaguely allege that Defendant’s liability for the conduct of its agent. The Complaint contains no other factual allegations about the scope of the agent’s employment or the foreseeability of such alleged acts by Anthem’s agent.


For the reasons set forth above, Defendant’s demurrer is sustained.



Defendant’s demurrer to the Complaint is sustained. Plaintiff is granted 20 days leave to amend from this date. Defendant is to provide notice.