Judge: Jon R. Takasugi, Case: 22STCV11306, Date: 2023-04-10 Tentative Ruling

Case Number: 22STCV11306    Hearing Date: April 10, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendants’ demurrer is SUSTAINED in part, OVERRULED in part:

Defendants’ demurrer is SUSTAINED, with 20 days leave to amend, as to the first cause of action.

Defendants’ demurrer is OVERRULED as to the second cause of action.

            On April 4, 2022, Plaintiff Pablo Rivero filed a Complaint against Defendants Paul Rivero and Amaya Rivero for elder abuse and intentional infliction of emotional distress.

Defendants now demur to both causes of action for failure to state facts sufficient to constitute a cause of action.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) ¿When considering demurrers, courts read the allegations liberally and in context.¿  (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal.App.4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿ (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿ “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)¿ “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿ (Hahn, supra, 147 Cal.App.4th at p. 747.)

Discussion

Plaintiff alleges that Defendants are the adult biological children of Plaintiff and that in January 2020, Defendants misappropriated Plaintiff’s financial information and used it to steal over $800,000 from Plaintiff’s financial accounts.

a.      Financial Elder Abuse

Financial elder abuse occurs when a person takes the property of an elder for a wrongful use or with intent to defraud or by undue influence. (See Welf. & Inst. Code § 15610.30(a).) A person is deemed to have taken the property when he or she has deprived an elder of any property right. (See id. at § 15610.30(c).) Although bad faith or intent to defraud is no longer required, wrongful use of property must still be alleged. (Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 527-28.) “A person . . . shall be deemed to have taken . . . property for a wrongful use if . . . the person  . . . takes  . . . the property and the person . . . knew or should have known that this conduct is likely to be harmful to the elder . . . .” (Id. at § 15610.30(b).)

            Plaintiff has not sufficiently alleged this cause of action. Defendants make conclusory allegations without the requisite specificity for statutory claims. Further, Plaintiff fails to allege any specific facts to support a wrongful taking and fails to allege that any of the Defendants knew or should have known that their conduct would harm Plaintiff.

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

b.      Intentional Infliction of Emotional Distress

The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Moncada, supra, 221 Cal.App.4th at 780 (quoting Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883).)

“Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (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.” (McDaniel v. Gile (1991) 230 Cal.App.3d 363, 372.)

“[I]t is not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Id.) While there is no bright-line as to what constitutes outrageous conduct and thus this involves a case-by-case analysis, courts can determine whether conduct was sufficiently outrageous at the demurrer stage. (Id. at 494.)

However, when reasonable persons may differ, it is for the jury, subject to the control of the Court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.¿ (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.)

Here, Plaintiff has alleged that they knew their father required full time care and stole $800,000 from his financial accounts even though they knew these actions would cause him emotional distress. Based on these facts, reasonable persons may differ in determining whether the conduct is sufficiently extreme and outrageous to result in liability. Thus, the demurrer to the second cause of action is OVERRULED.

It is so ordered.

Dated: April    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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