Judge: Lee W. Tsao, Case: 23NWCV01639, Date: 2024-03-07 Tentative Ruling
Case Number: 23NWCV01639 Hearing Date: March 7, 2024 Dept: C
LEFKOWITH v. BROWN
CASE NO.: 23NWCV01639
HEARING: 03/07/24
#9
I.
Defendants BENJAMIN AND KRISTY BROWN’s Demurrer
to Plaintiffs’ Complaint is OVERRULED in part and SUSTAINED with 30 days
leave to amend in part.
II.
Although Defendants’ reservation is for a
Demurrer with Motion to Strike, no Motion to Strike has been filed/lodged with
this Court. The Motion to Strike is taken OFF-CALENDAR.
Opposing Party to give notice.
Defendants’ Request for Judicial Notice is GRANTED.
This action for defamation was filed by Plaintiffs DEREK
LEFKOWITH and JENNIFER LEFKOWITH (“Plaintiffs”) against Defendant BENJAMIN
BROWN and KRISTY BROWN (“Defendants”) on May 26, 2023. Plaintiffs and
Defendants reside on neighboring properties. (Complaint ¶¶3-4.) Plaintiffs
allege that “[o]n or about March 19, 2022, Defendants created a social media
posting listing Plaintiffs’ Subject Residence as the location for a sex party.
As a result, eight different unknown males showed up in the evening hours at Plaintiffs’
Subject Residence.” (Complaint ¶5.) “Plaintiffs then approached Defendant
BENJAMIN who brandished a firearm at Plaintiffs.” (Complaint ¶8.) Defendant
Benjamin was taken into custody, and a restraining order was issued in favor of
Plaintiffs and against Defendant Benjamin. (Complaint ¶¶9-10.) The Brown
Defendants allegedly wrongfully obtained a civil harassment restraining order
against Plaintiffs. (Complaint ¶20.)
Plaintiffs’ Complaint asserts the following causes of
action:
(1) Intentional
Infliction of Emotional Distress;
(2) Negligent
Infliction of Emotional Distress;
(3) Assault;
(4) Abuse
of Process;
(5) Trespass;
and
(6) Defamation
Defendants (in pro per) specially and generally demur to
each cause of action.
Uncertainty
Defendants argue that Plaintiff’s causes of action are fatally
uncertain. This argument lacks merit because
“[a]
special demurrer for uncertainty is not intended to reach the failure to
incorporate sufficient facts in the pleading, but is directed at the
uncertainty existing in the allegations actually made.” (Butler v. Sequeira
(1950) 100 Cal.App.2d 143, 145-146.) Moreover, demurrers for uncertainty are
disfavored and will only be sustained where the pleading is so bad that the
defendant cannot reasonably respond, i.e. he or she cannot reasonably determine
what issues must be admitted or denied, or what counts or claims are directed
against him or her. (Khoury v. Maly’s of Calif. Inc. (1993) 14
Cal.App.4th 612, 616.) 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.” (Ibid.) Here, it is clear
from Defendants’ other arguments that they understand what Plaintiffs are at
least attempting to allege, and there is no true uncertainty. The demurrer is
not sustained on the basis of uncertainty.
Misjoinder
A complaint is subject to a demurrer for misjoinder of parties when a
party is sued in the wrong capacity. (Schlicker v. Hemenway (1965) 110
Cal.579, 580-582.)
Here, Defendants state that there is a misjoinder of parties, but they fail
to provide any substantive arguments in support of this theory. It is unclear
which parties, if any, are improperly joined. The demurrer is not sustained on
grounds of misjoinder.
CCP §430.10(c)
Defendants also argue that the demurrer should be sustained
because there is another action pending between the same parties on the same
causes of action.
A special demurrer to a complaint may be brought on the ground that
another action is pending between the same parties on the same causes of
action. (CCP § 430.10(c); see also People ex rel. Garamendi v. American
Autoplan, Inc. (1993) 20 Cal.App.4th 760, 770 [“plea in abatement”].) The
other pending action must involve the same parties in the same relationship,
i.e., as plaintiff or defendant (Plant Insulation Co. v. Fibreboard Corp.
(1990) 224 Cal.App.3d 781, 789), and must involve the identical cause of action
in both suits such that a judgment in the first would be res judicata on the
claim in the second (Bush v. Superior Court (1992) 10 Cal.App.4th 1374,
1384).
The demurrer is not sustained pursuant to CCP §430.10(c). The criminal
and family actions do not concern the same parties in the same relationships,
and do not involve identical causes of action.
First and Second Causes of Action – IIED and NIED
“The elements of a cause of action for intentional
infliction of emotional distress are: (1) 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.” (Wong v. Jing (2010) 189
Cal.App.4th 1354, 1376.) The conduct alleged must be “so extreme and outrageous
as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” (Coleman v.
Republic Indemnity Ins. Co. (2005) 132 Cal.App.4th 403, 416.)
The elements for a claim of negligent infliction of
emotional distress are: (1) Defendant engaged in negligent conduct; (2)
Plaintiff suffered serious emotional distress; and (3) Defendant’s conduct was
a cause of the serious emotional distress. (CACI No. 1620.)
Here, the Complaint alleges that Defendants listed
Plaintiffs’ home as the location for a sex party, and that Defendant Benjamin
brandished a firearm at Plaintiffs. (Complaint ¶¶5 and 8.)
The Complaint alleges that Defendants engaged in intentional
acts and have caused severe emotional distress. These allegations are
sufficient to support claims for IIED and NIED at this stage in the litigation.
The demurrer to the first and second causes of action is OVERRULED.
Third Cause of Action – Assault
“The elements of a cause of action for assault are: (1) the defendant
acted with intent to cause harmful or offensive contact, or threatened to touch
the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably
believed [she] was about to be touched in a harmful or offensive manner or it
reasonably appeared to the plaintiff that the defendant was about to carry out
the threat; (3) the plaintiff did not consent to the defendant’s conduct; (4)
the plaintiff was harmed; and (5) the defendant’s conduct was a substantial
factor in causing the plaintiff’s harm. [Cite.]” (Carlsen v. Koivumaki
(2014) 227 Cal.App.4th 879, 890.)
Plaintiffs allege that Defendant Benjamin Brown brandished a firearm at
Plaintiffs. (Complaint ¶8.) There are no facts to support a claim for assault
against Defendant Kristy Brown.
The demurrer to the third cause of action is OVERRULED as to Defendant
Benjamin Brown, but SUSTAINED with 30 days leave to amend as to Defendant
Kristy Brown.
Fourth Cause of Action – Abuse of Process
“[T]o establish a cause of action for abuse of process, a
plaintiff must plead two essential elements: that the defendant (1) entertained
an ulterior motive in using the process and (2) committed a willful act in a
wrongful manner.” (State Farm Mutual Automobile Ins. Co. v. Lee (2011)
193 Cal.App.4th 34, 40.)
Plaintiffs allege that Defendants made false reports to the
City of Lakewood and submitted doctored evidence in order to obtain a
restraining order. “Defendants have abused the civil process… by filing a false
Temporary Restraining Order.. application then altering evidence in support of
the false claims the TRO. [¶] Defendants’ conduct was done in retaliation of
the lawful conduct of Plaintiffs.” (See e.g., Complaint ¶¶45-46.)
The filing of a lawsuit is not the equivalent of abuse of
process. (Trear v. Sills (1999) 69 Cal.App.4th 1341, 1359.) Moreover, as
pled, Plaintiffs’ abuse of process cause of action is based on Defendants’
pursuit of restraining orders and based on reports to the City of Lakewood. The
litigation privilege of Cal. Civ. Code §47(b) applies to Plaintiffs’ abuse of
process claim. The demurrer to the fourth cause of action is SUSTAINED with 30
days leave to amend.
Fifth Cause of Action – Trespass
The elements of trespass are: (1) the plaintiff’s ownership
or control of the property; (2) the defendant’s intentional, reckless, or
negligent entry onto the property; (3) lack of permission for the entry or acts
in excess of permission; (4) harm; and (5) the defendant’s conduct was a
substantial factor in causing the harm. (Ralphs Grocery Store v. Victory
Consultants, Inc. (2017) 17 Cal.App.5th 245, 261-62.)
Here, Plaintiffs fail to sufficiently allege what actions
constitute Defendants’ trespass onto Plaintiffs’ property. The demurrer is
SUSTAINED with 30 days leave to amend.
Sixth Cause of Action – Defamation
“The elements of a defamation claim are (1) a publication
that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural
tendency to injure or causes special damage.” (John Doe 2 v. Sup. Ct.
(2016) 1 Cal.App.5th 1300, 1312.)
Here, Plaintiffs allege that the statements contained in
Exhibit F, which are attached to the Complaint constitute Defendants’
defamatory statements. Exhibit F is a picture of a window containing a number
of pieces of paper with writing taped to it.
The Court cannot make out what the pieces of paper say, or who the
pieces of paper are directed towards or about.
The demurrer to the sixth cause of action is SUSTAINED with
30 days leave to amend.