Judge: Lynette Gridiron Winston, Case: 24PSCV02944, Date: 2025-01-23 Tentative Ruling

Case Number: 24PSCV02944    Hearing Date: January 23, 2025    Dept: 6

CASE NAME:  Sarah Reaves v. Angela Moses 

Defendant Angela Moses’ Demurrer to Plaintiff’s Complaint 

TENTATIVE RULING 

The Court OVERRULES Defendant’s demurrer to the First and Third Causes of Action. The Court SUSTAINS Defendant’s demurrer to the Second, Fourth, and Fifth Causes of Action with 30 days’ leave to amend. 

             Defendant is ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND 

This case involves child custody and supervised visits. On September 10, 2024, plaintiff Sarah Reaves (Plaintiff) filed this action against defendant Angela Moses dba Legal Solutions LDA Paralegal & Family Mediation Services, aka Angela Slack, aka Angela Slack Moses, aka Angela Bumpus (Defendant), alleging causes of action for breach of contract, negligence and child endangerment, defamation, intentional infliction of emotional distress, and breach of fiduciary duty. 

On November 25, 2024, Defendant demurred to the complaint. On December 12, 2024, Plaintiff opposed the demurrer. On January 8, 2025, Defendant replied. 

LEGAL STANDARD 

            A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (Donabedian).) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id. at pp. 993-994.) 

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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].) 

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits”].) 

A demurrer can only be sustained when it disposes of an entire pleading, cause of action, or affirmative defense. (See Cal. Rules of Court, rule 3.1320, subd. (a); Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046-1047.)  

PRELIMINARY ISSUES 

            The Court notes that the demurrer portion of Defendant’s motion is nine pages long before it gets to the memorandum of points and authorities, and contains many substantive arguments. This is improper. The place for substantive arguments is the memorandum of points and authorities, which also has page limits. (Cal. Rules of Court, rule 3.1113, subds. (b), (d).) The excessively long demurrer section is effectively an attempt to evade the page limits of subdivision (d) of Rule 3.1113 of the California Rules of Court. The Court will still consider Defendant’s motion, but nevertheless admonishes Defendant to comply with the requirements of the California Rules of Court going forward. 

The Court also notes that Defendant’s reply attaches additional exhibits. Generally, new evidence is not permitted on reply unless it fills in gaps in the evidence created by the opposing party’s opposition and is not raising new substantive issues for the first time; otherwise, a further hearing would be required to permit the opposing party to respond. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) The Court declines to consider the additional evidence submitted with Defendant’s reply, as it largely addresses matters irrelevant to the material substantive issues of this motion. Further, the Court does not consider evidence on a demurrer. The review is limited to the facts alleged in the Complaint, exhibits attached thereto, and matter proper for judicial notice. 

DISCUSSION 

Meet and Confer 

Per Code of Civil Procedure section 430.41, subdivision (a), Defendant was required to meet and confer in person, by telephone, or by video conference before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court notes that Defendant did not submit a declaration indicating whether she attempted to meet and confer with Plaintiff before bringing this demurrer, as is required by subdivision (a)(3) of section 430.41 of the Code of Civil Procedure. (Id., § 430.41, subd. (a)(3).) Nevertheless, the Court may not overrule a demurrer for failure to adequately meet and confer. (Id., § 430.41, subd. (a)(4).) The Court will still consider Defendant’s demurrer, but the Court admonishes Defendant to comply with the requirements of the Code of Civil Procedure going forward. 

First Cause of Action – Breach of Contract 

“A cause of action for breach of contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintiff resulting therefrom. A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489, internal citations omitted.) 

Defendant demurs to the First Cause of Action for breach of contract on the grounds that the complaint fails to allege whether the contract is written, oral, or is implied by conduct, and fails to state facts sufficient to constitute a cause of action. Defendant contends the complaint fails to allege the specific terms of the contract or how Defendant’s actions constituted a breach. 

In opposition, Plaintiff contends the complaint alleges facts demonstrating that Plaintiff hired Defendant for professional supervised visitation services and signed a contract outlining the terms of the agreement, which agreement was provided to the Court. Plaintiff contends the complaint alleges Defendant overcharged Plaintiff for the agreed upon services, and that Defendant also breached the agreement by failing to terminate the visit when she suspected Plaintiff was intoxicated. 

The Court disagrees with Defendant regarding whether the alleged contract was oral, written, or implied by conduct. The complaint attached signed copies of a written agreement between the parties, which the Court finds sufficient. (Compl., Ex. E, pp. 48-52 of pdf.) The complaint further alleges that Defendant breached the contract by overcharging Plaintiff for visits and failing to provide documentation or an accounting. (Compl., ¶¶ 3, 4.) These alleges are sufficient to state a cause of action for breach of contract. 

Therefore, the Court OVERRULES the demurrer to the First Cause of Action. 

Second Cause of Action – Negligence and Child Endangerment 

To state a cause of action for negligence, the plaintiff must allege facts demonstrating the existence of a duty, a breach of that duty, causation, and damages. (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.) Child endangerment is child abuse by direct assault or child endangering by extreme neglect. (People v. Felton (2004) 122 Cal.App.4th 260, 269.) 

Defendant demurs to the Second Cause of Action for negligence and child endangerment on the grounds that it fails to allege facts sufficient to state a cause of action and is uncertain. Defendant contends that Plaintiff has not established a duty of care beyond the contractual obligations or that Defendant’s alleged conduct caused harm. Defendant also contends that child endangerment is a criminal offense and does not provide a private right of action. 

In opposition, Plaintiff contends that the complaint alleges Defendant owed a duty as a supervised visitation monitor to ensure the safety and well-being of the minor child during the visits, and that Defendant breached this duty by failing to adequately address Plaintiff’s alleged intoxication during the visit in question. 

The Court agrees with Defendant that the complaint does not allege sufficient facts to state a cause of action for negligence or child endangerment. The complaint makes conflicting and confusing allegations here, claiming on the one hand that Plaintiff’s intoxication during the visit in question required Defendant to terminate the visit and that Defendant’s alleged failure to terminate the visit caused Plaintiff and her child to suffer emotional distress and the loss of parent-child bonding time. (Compl., 12:5-14.) Plaintiff cannot use her own alleged intoxication as a basis for her claim against Defendant, nor is it clear how Defendant’s alleged failure to terminate the visit caused Plaintiff and her son to suffer emotional distress and the loss of parent-child bonding time. (Ibid.; see Civ. Code, § 3517.) Also, the law does not recognize loss of filial consortium, i.e., emotional distress arising from the loss of relationship with the child, as a basis for damages. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 937.) While the law does recognize interference with a relationship with the child as a primary right, that is a matter to be addressed in family court, not in a civil action for damages. (See In re Marriage of Segel (1986) 179 Cal.App.3d 602, 608.) 

Moreover, the complaint does not allege sufficient facts demonstrating that Defendant owed Plaintiff or Plaintiff’s child a duty of care in this matter or that Defendant’s actions caused harm. Plaintiff did not cite any authority, nor is the Court aware of any, that a supervised visitation monitor owes an independent duty of care to the parent or the parent’s child. Defendant’s obligations to Plaintiff and Plaintiff’s son, if any, appear to be based solely on the agreement between the parties. (See Compl., Ex. E.) This is not enough, as a duty of care in a negligence claim must be independent of a contractual relationship. (Stop Loss Ins. Brokers, Inc. v. Brown & Toland Med. Grp. (2006) 143 Cal.App.4th 1036, 1041-1043.) The complaint does not allege any facts demonstrating Defendant owed such an independent duty of care. Additionally, Defendant’s alleged court-appointment does not necessarily mean she owes a duty of care to Plaintiff or Plaintiff’s child. (See Compl., ¶ 2.) 

Furthermore, even if Plaintiff had alleged the existence of an independent duty of care, the complaint still does not allege facts showing that Defendant’s actions caused Plaintiff or Plaintiff’s child to suffer a cognizable harm. As noted above, Plaintiff cannot benefit from her own wrongdoing vis-à-vis her intoxication, and the law does not recognize loss of filial consortium as a basis for recovering monetary damages. (Civ. Code, § 3517; In re Marriage of Segel, supra, 179 Cal.App.3d at p. 608; Zavala v. Arce, supra, 58 Cal.App.4th at p. 937.) 

With respect to child endangerment, Defendant is wrong regarding the private right of action aspect, as Code of Civil Procedure section 376 provides parents of an unmarried minor child the right to bring a claim against another person for injuring the minor child. (Code Civ. Proc. § 376.) Nevertheless, the complaint still does not allege any facts demonstrating that Defendant’s actions harmed Plaintiff’s minor child for the same reasons set forth above. 

Finally, although not mentioned in the parties’ respective briefs, the complaint combines two causes of action into one. Defendant did demur to the Third Cause of Action on the additional basis of uncertainty, and the law provides that two causes of action combined into one are subject to demurrer for uncertainty. (Zumbrun v. Univ. of S. California (1972) 25 Cal.App.3d 1, 9.) 

Based on the foregoing, the Court SUSTAINS the demurrer to the Second Cause of Action with leave to amend. 

Third Cause of Action – Defamation 

To state a cause of action for defamation, the plaintiff must allege facts demonstrating a publication that is false, defamatory, unprivileged, and has a natural tendency to injure or cause special damage. (J-M Mfg. Co. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87, 97.) 

Defendant demurs to the Third Cause of Action for defamation on the grounds that the complaint fails to allege facts sufficient to state a cause of action and is uncertain. Defendant contends Plaintiff has not specified the allegedly defamatory statements, the context in which they were made, or how they caused damages. Defendant also contends that if the alleged statements were made in connection with a legal proceeding that they would be privileged under Civil Code section 47, subdivision (b). 

In opposition, Plaintiff contends the complaint clearly identifies the false and defamatory statements Defendant made on Yelp, accusing Plaintiff of being intoxicated during the supervised visit and questioning her fitness as a parent. Plaintiff contends these statements were published to a third party with the clear intent to harm Plaintiff’s reputation. Plaintiff contends Defendant’s malicious intent is evidenced by her threats to publish sensitive information regarding Plaintiff’s case if Plaintiff did not remove her yelp review. Plaintiff contends Defendant’s threats are particularly egregious given the sensitive nature of the information she threatened to disclose, and the disclosure of such information is potentially damaging to both Plaintiff and her child. 

The Court finds the complaint alleges sufficient facts to state a cause of action for defamation. A publication is libelous per se where its libelous nature is apparent on the face of the publication, i.e., without any additional explanation or facts. (Civ. Code, § 45a; Barnes-Hind, Inc. v. Superior Ct. (1986) 181 Cal.App.3d 377, 386.) Damages are presumed in cases of libel per se, such that the plaintiff does not need to plead them. (See Brown v. Kelly Broad. Co. (1989) 48 Cal.3d 711, 747.) 

The complaint alleges that Defendant stated on Yelp, a public third-party platform, that Plaintiff had been intoxicated during a then recent supervised visit with Plaintiff’s child and that this statement was false. (Compl., 12:19-21, Ex. G.) The Court finds this would be defamatory on its face, as it does not require any special knowledge of the situation to determine or understand it as harmful to Plaintiff’s character and reputation. (Civ. Code, § 45a; Barnes-Hind, Inc. v. Superior Ct., supra, 181 Cal.App.3d at p. 386.) Thus, damages are presumed, and Plaintiff need not plead them. (See Brown v. Kelly Broad. Co., supra, 48 Cal.3d at p. 747.) While any report Defendant may have submitted to the family law court regarding Plaintiff’s alleged intoxication would fall under the litigation privilege, the publication on Yelp is a separate publication not made in a judicial or quasi-judicial proceeding. (Civ. Code, § 47, subd. (b)(2); People ex rel. Gallegos v. Pac. Lumber Co. (2008) 158 Cal.App.4th 950, 958.) Alternatively, this would also be sufficient to state a cause of action for public disclosure of private facts, as there was no reasonable public concern for Defendant to disclose Plaintiff’s alleged intoxication in the Yelp post. (Morrow v. Los Angeles Unified Sch. Dist. (2007) 149 Cal.App.4th 1424, 1440.) 

Based on the foregoing, the Court OVERRULES the demurrer to the Third Cause of Action. 

Fourth Cause of Action – Intentional Infliction of Emotional Distress 

To state a cause of action for intentional infliction of emotional distress, the plaintiff must allege facts demonstrating, “(1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress.” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273 (Berry).) “Whether a defendant's conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous. [Citation.]” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534 (Berkley); but see Berry, supra, 90 Cal.App.5th at p. 1273 [“’[W]hether conduct is ‘outrageous’ is usually a question of fact.’ [Citation]”.) 

Defendant demurs to the Fourth Cause of Action for intentional infliction of emotional distress on the grounds that the complaint fails to state a cause of action and is uncertain. Defendant contends Plaintiff has not alleged any conduct by Defendant that meets this high standard or facts showing that Plaintiff suffered severe or extreme emotional distress caused by Defendant’s actions. 

In opposition, Plaintiff contends the complaint clearly alleges that Defendant engaged in extreme and outrageous conduct by making false accusations of intoxication, denying Plaintiff due process, interfering with her parent-child relationship, and publicly defaming her. Plaintiff contends Defendant’s conduct has damaged Plaintiff’s relationship with her son, caused Plaintiff immense emotional distress, and has forced her into isolation and shame. Plaintiff contends she is unable to share pictures of her son online, experiences loneliness, and has withdrawn from her once vibrant social media presence. 

The Court agrees with Defendant. The Court does not find the complaint alleges sufficient facts demonstrating that Defendant engaged in extreme and outrageous conduct. Defendant’s alleged publication on Yelp! of Plaintiff’s intoxication during a supervised visit with her child, while arguably unfortunate and problematic, is not so extreme and outrageous as to exceed all bounds of decency. (Berkley, supra, 152 Cal.App.4th at p. 534 [whether conduct is outrageous is generally a question of law for the court to decide].) 

Moreover, as noted above, Plaintiff cannot rely on her alleged intoxication as a claim against Defendant for allegedly failing to terminate the visit with Plaintiff’s child. (Civ. Code, § 3517.) As also noted above, emotional distress arising from loss of filial consortium is not a basis for damages. (In re Marriage of Segel, supra, 179 Cal.App.3d at p. 608; Zavala v. Arce, supra, 58 Cal.App.4th at p. 937.) 

Based on the foregoing, the Court SUSTAINS the demurrer to the Fourth Cause of Action with leave to amend. 

Fifth Cause of Action – Breach of Fiduciary Duty 

To state a cause of action for breach of fiduciary duty, the plaintiff must allege facts demonstrating the existence of a fiduciary relationship, breach, and damages. (O'Neal v. Stanislaus Cnty. Employees' Ret. Assn. (2017) 8 Cal.App.5th 1184, 1215.) 

Defendant demurs to the Fifth Cause of Action for breach of fiduciary duty on the grounds that the complaint fails to state facts sufficient to constitute a cause of action and is uncertain. Defendant contends Plaintiff has not alleged facts showing a fiduciary relationship between the parties, as the Plaintiff’s allegations are based solely on the terms of the alleged contract, which does not create fiduciary obligations. 

In opposition, Plaintiff contends the complaint clearly alleges that Defendant, as a court-appointed supervised visitation monitor, owed a fiduciary duty to both Plaintiff and her child to act in their best interests and ensure the child’s safety and well-being during the visits. Plaintiff contends Defendant breached this duty by failing to act impartially, making false accusations, and interfering with the Plaintiff’s parent-child relationship. 

The Court finds the complaint does not allege sufficient facts to state a cause of action for breach of fiduciary duty. “[A] fiduciary relationship is any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latter's knowledge or consent....” (Cleveland v. Johnson (2012) 209 Cal.App.4th 1315, 1338, internal citations and quotation marks omitted.) “Traditional examples of fiduciary relationships in the commercial context include trustee/beneficiary, directors and majority shareholders of a corporation, business partners, joint adventurers, and agent/principal. [Citations.]” (Wolf v. Superior Ct. (2003) 107 Cal.App.4th 25, 30 (Wolf).) 

The complaint does not allege any facts demonstrating that Defendant owed Plaintiff or Plaintiff’s child a fiduciary duty, and Plaintiff cited no legal authority to support that contention. Just because Defendant was allegedly appointed by the family law court as a supervised visitation monitor does not automatically mean Defendant owes Plaintiff or Plaintiff’s child a fiduciary duty. (See Compl., ¶ 2, 14:9-13.) The extent of Defendant’s duties to Plaintiff appear to be limited to those set forth in the alleged agreement between them, which essentially only sets forth the fees owed for Defendant’s services and provides the conditions in which the visits may be terminated. (Compl., Ex. E.) Contractual obligations, including the implied covenant of good faith and fair dealing, in and of themselves are insufficient to establish the existence of a fiduciary relationship. (Wolf, supra, 107 Cal.App.4th at pp. 30-31.) Typical fiduciary relationships entail one person acting on behalf of another. (See ibid.) The complaint does not allege any facts demonstrating that Defendant was authorized to act on behalf of Plaintiff or Plaintiff’s child. 

Based on the foregoing, the Court SUSTAINS the demurrer to the Fifth Cause of Action with leave to amend. 

CONCLUSION 

The Court OVERRULES Defendant’s demurrer to the First and Third Causes of Action. The Court SUSTAINS Defendant’s demurrer to the Second, Fourth, and Fifth Causes of Action with 30 days’ leave to amend. 

             Defendant is ordered to give notice of the Court’s ruling within five calendar days of this order.