Judge Kerry Bensinger, Case Number: 23STCV04603, Date: 2023-12-15 Tentative Ruling

This case arises from the alleged unauthorized use of photographic images. On March 2, 2023, Plaintiff, Arami Cheyenne Walker,[1] filed a Complaint against Defendant, The Regents of the University of California (erroneously sued as Board of Regents, University of California), alleging causes of action for: (1) Appropriation (Civil Code section 3344); (2) Breach of Contract; and (3) Negligent Infliction of Emotional Distress.¿

As alleged, Plaintiff was a student University of California, Los Angeles (UCLA). On May 28, 2015, Plaintiff was approached by a photographer at UCLA to take images of her. Plaintiff agreed and the photographer, Elena Zhukova, took a few images and asked for Plaintiff to sign a release. The release authorized use of the images so long as they were not defamatory. Years later, on March 20, 2020, Plaintiff learned that UCLA Giving was using her photographic image as part of a funding campaign in response to Covid-19. Plaintiff claims this use of her likeness was unauthorized and defamatory within the meaning of the release.

Defendant demurred to all three causes of action in the Complaint. On September 12, 2023, the Court sustained the demurrer in its entirety with leave to amend.

On September 26, 2023, Plaintiff timely filed the First Amended Complaint (FAC).

Defendant demurred to the FAC. On December 15, 2023, the court sustained Defendant’s demurrer. The court granted leave to amend as to Plaintiff’s breach of contract claim. Leave to amend was denied as to Plaintiff’s appropriation and negligent infliction of emotional distress claims.

On January 3, 2024, Plaintiff timely filed the Second Amended Complaint (SAC). The SAC asserts causes of action for Breach of Contract (Promissory Estoppel), and an “Appropriation and Invasion of Privacy 2022” claim.

On February 5, 2024, Defendant filed a Demurrer to the SAC and concurrently filed a Motion to Strike portions of the SAC.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3d 764, 769.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Defense counsel has complied with the meet and confer requirement. (See Declaration of Jason Scupine, ¶¶ 4-6.)

Defendant demurs to the SAC on the ground that the breach of contract claim fails to state facts sufficient to constitute a cause of action. Given that the court sustained Defendant’s demurrer to the FAC, the court compares the allegations in the FAC and the SAC.

In sustaining the demurrer to the breach of contract claim, the court noted that Plaintiff had not alleged anything new to show the use of her image was defamatory. The sole issue to be decided is whether Plaintiff now states a claim for promissory estoppel.

The elements of a claim for promissory estoppel are: (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” (Joffe v. City of Huntington Park (2011) 201 Cal.App.4th 492, 513.)

“Promissory estoppel is a doctrine which employs equitable principles to satisfy the requirement that consideration must be given in exchange for the promise sought to be enforced. Because promissory estoppel is an equitable doctrine to allow enforcement of a promise that would otherwise be unenforceable, courts are given wide discretion in its application.” (Id. [cleaned up].)

Plaintiff promissory estoppel claim is predicated on Defendant’s promise to discontinue use of her image. The promise was made on March 25, 2022. The court found that Plaintiff had not sufficiently pled the fourth element: injury from reliance. Here, Plaintiff now alleges that she relied on Defendant’s promise to not use her image and thereafter deleted all her records related to Defendant’s use of her image in 2020. (SAC, ¶ 16.) Upon learning Defendant had not honored their promise, Plaintiff “spent seven months recovering the images and emails related to the case. The process of recovering the evidence related to the case has caused Plaintiff to feel anxiety, anger, and sadness.” (SAC, ¶ 17.) Further, Plaintiff “has spoken to two different therapists based on experiences of rage, exhaustion, humiliation, and distress. These therapists have also helped Plaintiff through the process of collecting and recovering the evidence related to the case.” (SAC, ¶ 18.) “Plaintiff has seen Dr. Jenna Beam multiple times during the legal process to help with changes in sleep, menstruation, and emotional harm inflicted by the Defendant’s actions on March 12, 2022.” (SAC, ¶ 19.)

Defendant argues the allegations of the SAC still not dot not satisfy the injury element of a promissory estoppel claim because damages for mental suffering and emotional distress are not recoverable in an action for breach of an ordinary commercial contract. For this proposition, Defendant cites Erlich v. Meneses (1999) 21 Cal.4th 543, 558. Erlich is distinguishable. Erlich concerned a breach of contract of the defective construction of a house. The Supreme Court specifically held that “available damages for defective construction are limited to the cost of repairing the home, including lost of use or relocation expenses, or the diminution in value.” (Id. at p. 561.)

The present issue does not concern a contract, let alone a contract for the construction of a home. This is a promissory estoppel claim. “The Courts of Appeal likewise have treated promissory estoppel and contract claims as fundamentally different.” (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 244 (Douglas E. Barnhart).) “Because the doctrine [of promissory estoppel] is equitable in nature, the court should have broad judicial discretion to fashion remedies in the interests of justice.” (Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 693.) A plaintiff may recover damages solely under an equitable doctrine of promissory estoppel when there is no contract. (Kajima/Ray Wilson v. Los Angeles County Metropolitan Transportation Authority (2000) 23 Cal.4th 305, 317.) However, a promise enforceable under the doctrine of promissory estoppel may be appropriately treated as a contract for the purpose of fashioning an appropriate remedy. (Douglas E. Barnhart, supra, 211 Cal.App.4th at p. 248.)

Here, the SAC pleads an agreement whereby Defendant promised to discontinue using Plaintiff’s image. Relying on Defendant’s promise, Plaintiff disposed of her files concerning Defendant’s use of her image in 2020. Upon learning Defendant was still using her image in 2022, Plaintiff suffered mental distress and bodily harm. (See SAC, ¶ 19.) That Plaintiff suffered, in part, emotional distress is not fatal to her promissory estoppel claim. Rather, a court is empowered to fashion an appropriate remedy for Plaintiff’s injury. Plaintiff pleads a cause of action for promissory estoppel.

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.¿ (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322(b).)¿ On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.¿ (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)¿¿¿

“The grounds for a motion to strike are limited to matters appearing on the face of the challenged pleading or matters which must or may be judicially noticed. (§ 437, subd. (a); Evid. Code, §§ 451, 452.).” (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 20.)

Defendant moves for an order striking the “Appropriation and Invasion of Privacy 2022” claim on the grounds that Plaintiff was not given leave to amend her appropriation claim or add a claim for invasion of privacy. The court agrees. The court sustained Defendant’s demurrer to the FAC without leave to amend the appropriation claim. (See Minute Order, 12/15/23.) The court’s order also did not state that Plaintiff could add further causes of action. Absent that order, Plaintiff must seek leave of court.

Plaintiff argues her appropriation claim is not barred because it is based on Defendant’s conduct in 2022 which the court’s December 15, 2023 does not address. Plaintiff is correct. The court’s December 15, 2023 order does not address her appropriation claim in connection to Defendant’s conduct in 2022. In effect, however, Plaintiff seeks to add a separate misappropriation claim for other conduct. Plaintiff must seek leave of court.

Kerry Bensinger

Judge of the Superior Court

[1] Plaintiff is self-represented.

[2] Plaintiff filed a sur-reply. Defendant filed an objection to Plaintiff’s filing. Plaintiff was not granted leave to file the sur-reply. The court therefore does not consider Plaintiff’s belated filing in the disposition of this demurrer.