TENTATIVE RULING

Defendant Lotem Stevens’ Demurrer to Plaintiff’s Complaint is SUSTAINED with thirty (30) days leave to amend.

Plaintiff Jacob Stevens may amend his complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendant Lotem Stevens to give notice. 

REASONING

Defendant Lotem Stevens (“Defendant”) demurs to each cause of action alleged in Plaintiff Jacob Stevens (“Plaintiff”)’s complaint. Plaintiff has not filed an opposition to Defendant’s demurrer. While the moving party generally bears the initial burden of proof on its motion, and lack of opposition will not automatically entitle the moving party to prevail on its motion, a party’s failure to file an opposition can be considered a concession that the motion is meritorious. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

First Cause of Action: Intentional Infliction of Emotional Distress

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

Plaintiff alleges that he married Defendant on November 22, 2019, but later discovered that Defendant married him purely to obtain United States citizenship. (Compl., p. 4.) Plaintiff states he suffered emotional distress and that Defendant’s conduct was outrageous. (Ibid.) The Court is not convinced that the alleged conduct rises to the level of outrageous conduct that exceeds what is usually tolerated in a civilized community. Put simply, it appears Plaintiff is suing Defendant as a sort of alternative to marriage dissolution proceedings, and if the Court were to conclude that Defendant’s conduct makes her liable for intentional infliction of emotional distress, it would seem that the Court would be faced with a paired tort case for each dissolution action. Plaintiff has also failed to sufficiently alleged harm, i.e., Plaintiff provides only a conclusory statement that he suffered emotional distress, but he does not allege any damages such as mental health treatment or inability to work due to the emotional distress. Accordingly, Defendant’s demurrer to the first cause of action is SUSTAINED with thirty (30) days leave to amend.

Second Cause of Action: Fraud

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

The second cause of action largely mirrors the first except to state that Defendant represented she was marrying Plaintiff for love, not a business transaction, thereby defrauding Plaintiff. In addition to the concerns raised above, Plaintiff has failed to state any specific representations made to him by Defendant or specific facts concealed by Defendant, nor does Plaintiff states the specific damages he incurred by relying on those statements or concealments, i.e., there are no specific allegations about the harm suffered. Thus, Defendant’s demurrer to the second cause of action is also SUSTAINED with thirty (30) days leave to amend.