Judge James L. Crandall, Case 21-1238419 2022-07-21 Tentative Ruling

Judge: James L. Crandall, Case: 21-1238419, Date: 2022-07-21 Tentative Ruling

Demurrer to Complaint

Defendant Jeffrey Allen Markow’s demurrer to Complaint filed by plaintiff Vanessa Nicole Dimitropoulos is SUSTAINED in part and OVERRULED in part.

No opposition was received from the plaintiff.

Defendant demurrer is made pursuant to Code of Civil Procedure section 430.10(e) & (f).

First Cause of Action for Private Nuisance:

“A private nuisance cause of action requires the plaintiff to prove an injury specifically referable to the use and enjoyment of his or her land.” Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal. App. 5th 248, 262.

Elements of an action for private nuisance are: (1) plaintiff must prove an interference with his use and enjoyment of his property; (2) invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, that is, that it causes plaintiff to suffer substantial actual damage; (3) interference with the protected interest must not only be substantial, but it must also be unreasonable, that is, it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land. Id. at 262-263.

Defendant alleges that Plaintiff and Defendant were in a relationship and that “[b]oth parties provided a loving home to themselves, they were meeting their needs for stability and continuity. Plaintiff further committed almost everything she had into the relationship to be successful.” (Complaint, ¶ 9.)

Plaintiff further alleges that “[s]ometime in 2019, Defendant began to act strange towards the Plaintiff” and that “Defendant invaded Plaintiff’s home, Defendant took away Plaintiff’s TV and internet. Defendant further removed Plaintiff’s bed and the couch so that Plaintiff had nothing to sleep on. As if that was not enough, Defendant took the refrigerator and threw all of Defendant’s food into Styrofoam coolers.” (Complaint, ¶¶ 10-11.)

Plaintiff further alleges that Defendant took Plaintiff’s cat and “left his rabbit habitat which had been neglected for over 2 months, leaving Plaintiff to live in the stench of urine and feces of Defendant’s rabbit.” (Complaint ¶¶ 11-12.)

These facts do not sufficiently allege an interference with use and enjoyment of land.

Accordingly, the demurrer to the first cause of action is SUSTAINED with 20-days leave to amend.

Second Cause of Action for Intentional Infliction of Emotional Distress:

The elements for intentional infliction of emotional distress (“IIED”) are: (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. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.)

“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] intended to inflict injury or engaged in with the realization that injury will result.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–51.)

However, “sometime in 2019, Defendant began to act strange towards the Plaintiff. Defendant bullied and disgraced Plaintiff in the eyes of the public.” (Complaint, ¶ 10.)

Plaintiff further alleges that “Defendant invaded Plaintiff’s home, Defendant took away Plaintiff’s TV and internet. Defendant further removed Plaintiff’s bed and the couch so that Plaintiff had nothing to sleep on. As if that was not enough, Defendant took the refrigerator and threw all of Defendant’s food into Styrofoam coolers.” (Complaint, ¶¶ 10-11.)

Defendant further alleges that Defendant conspired with his sister and that as a result Plaintiff was falsely arrested for hitting Defendant’s sister. (Complaint, ¶¶ 14-19.) The Complaint also alleges that “Defendant invaded Plaintiff room and left Plaintiff window open when Plaintiff was away, Defendant took relevant documents and assets belonging to the Plaintiff.” (Complaint, ¶ 21.)

These allegations suggest that Plaintiff and Defendant were in a relationship and living together but that in 2019 the relationship ended at which time Defendant moved out and took Plaintiff’s property.

These allegations are insufficient to allege conduct so extreme as to exceed all bounds of what is usually tolerated. Therefore, Plaintiff has not sufficiently alleged outrageous conduct.

Accordingly, the demurrer to the second cause of action is SUSTAINED with 20-days leave to amend.

Third Cause of Action for Intrusion Upon Seclusion:

The action for intrusion has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person. Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231.

The Complaint alleges that “Defendant intentionally intruded upon the Plaintiff’s solitude or seclusion in that Defendant took information from the privacy of the Plaintiff’s home.” (Complaint, ¶ 44.)

The Complaint further alleges that Defendant “recruited Plaintiff’s neighbor to track Plaintiff whereabout, lured Plaintiff out of the apartment so that he could enter Plaintiff’s home without Plaintiff knowledge.” (Complaint ¶ 47.)

Plaintiff also alleges that “Defendant’s unauthorized tracking of the Plaintiff’s home include[ed] . . . communications on sensitive topics, such as health and security is highly offensive to a reasonable person.” (Complaint, ¶ 49.) Therefore, Plaintiff has sufficiently alleged a cause of action for intrusion upon seclusion.

Defendant also contends that the third cause of action is barred by the 2-year statute of limitations. “A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]” (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)

Here, the Complaint on its face does not show that the cause of action is barred by the 2-year statute of limitations. The Complaint alleges that the alleged events occurred “sometime in 2019.” (Complaint, ¶ 10.) The Complaint was filed on 12/23/21, therefore, the Complaint does not show clearly and affirmatively on its face that the cause of action is barred but that the action may be barred if the events occurred in 2019, 2-years before 12/23/21.

Therefore, Plaintiff has sufficiently alleged a cause of action for Intrusion upon seclusion.

Accordingly, the demurrer to the third cause of action is OVERRULED.

Fourth Cause of Action for Intentional Interference with Prospective Economic Advantage and Relations:

“Intentional interference with prospective economic advantage has five elements: (1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant's action.” Roy Allan Slurry Seal, Inc. v. Am. Asphalt S., Inc. (2017) 2 Cal. 5th 505, 512.

Here, Plaintiff does not allege the existence between Plaintiff and a third party of an economic relationship or that Defendant interfered with an economic relationship between Plaintiff and a third party. Accordingly, Plaintiff has not sufficiently alleged a cause of action for intentional interference with prospective economic advantage.

Accordingly, the demurrer to the fourth cause of action is SUSTAINED with 20-days leave to amend.

Fifth Cause of Action for Negligent Interference with Prospective Economic Advantage:

“The elements of negligent interference with contract or prospective economic advantage are (1) the existence of a valid contractual relationship or other economic relationship between the plaintiff and a third party containing the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge (actual or construed) of the relationship; (3) the defendant's knowledge (actual or construed) that the relationship would be disrupted if the defendant failed to act with reasonable care; (4) the defendant's failure to act with reasonable care; (5) actual disruption of the relationship; and (6) resulting economic harm.” Nelson v. Tucker Ellis, LLP (2020) 48 Cal. App. 5th 827, 844, fn. 5.

Here, Plaintiff does not allege the existence between Plaintiff and a third party of a valid contractual relationship or an economic relationship. Accordingly, Plaintiff has not sufficiently alleged a cause of action for negligent interference with prospective economic advantage.

Accordingly, the demurrer to the fifth cause of action is SUSTAINED with 20-days leave to amend.

Sixth Cause of Action for Harassment:

The harassment cause of action is uncertain as to the legal basis of liability alleged. (Code Civ. Proc. § 430.10(f).)

Assuming plaintiff intended this cause of action as one for a civil harassment restraining order pursuant to Code Civ. Proc., section 527.6, this cause of action fails to state sufficient facts. (Code Civ. Proc., § 430.10, subd. (e).)

Code of Civil Procedure section 527.6, subdivision (b)(3) states: “ ‘Harassment’ is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.”

Unlawful violence is defined as “any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, but does not include lawful acts of self-defense or defense of others.” (Code Civ. Proc. § 527.6(b)(7.)

Course of conduct is defined as “a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email. Constitutionally protected activity is not included within the meaning of ‘course of conduct.’ ”

Plaintiff does not allege assault, battery or staking. Further, Plaintiff has not sufficiently alleged a pattern of conduct, but only conduct that occurred when the relationship between Plaintiff and Defendant ended in 2019.

Accordingly, the demurrer to the sixth cause of action is SUSTAINED with 20-days leave to amend.

Defendant to give notice.

Future hearing dates

8/2/22 – CMC