Judge: Marcella O. Mclaughlin, Case: 37-2023-00038808-CU-OE-CTL, Date: 2024-01-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 25, 2024

01/26/2024  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Other employment Demurrer / Motion to Strike 37-2023-00038808-CU-OE-CTL KEPLER VS SHIELD AI INC [E-FILE] CAUSAL DOCUMENT/DATE FILED: Demurrer, 10/30/2023

The demurrer to the complaint is SUSTAINED in part and OVERRULED in part.

A. The demurrer to count 3 is sustained with leave to amend.

'The elements of a cause of action for intentional infliction of emotional distress are (1) the defendant engages in extreme and outrageous conduct with the intent to cause, or with reckless disregard for the probability of causing, emotional distress; (2) the plaintiff suffers extreme or severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the plaintiff's extreme or severe emotional distress.' Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 204. In order to avoid a demurrer, the plaintiff must allege with 'great specificity' the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized society. Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.

In this case, plaintiff alleges that he was subjected to various retaliatory actions and ultimately terminated from his employment. (Complaint at ¶¶ 102-103.) While these actions may have been upsetting to plaintiff, the facts pled in the complaint do not rise to the level of 'extreme' and 'outrageous' conduct. See Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80 ('Managing personnel is not outrageous conduct beyond the bounds of human decency...even if improper motivation is alleged[.]'); see also KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028 ('Generally, conduct will be found to be actionable where the 'recitation of the facts to an average member of the community would arose his resentment against the actor, and lead him to exclaim, 'Outrageous!''') (citation omitted).

B. The demurrer to count 4 is overruled.

'The elements of a defamation claim are (1) publication of fact that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.' Murray v. Tran (2020) 55 Cal.App.5th 10, 37.

Here, the court is unable to conclude on this limited record that plaintiff's defamation claim fails in its entirety as a matter of law. See Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 123 ('[A]gainst a general demurrer the only requirement is that upon a consideration of all the facts stated it must appear plaintiff is entitled to some relief, notwithstanding that the facts may be inartfully stated, or may be intermingled with a statement of other facts irrelevant to the cause of action, or plaintiff may Calendar No.: Event ID:  TENTATIVE RULINGS

3044443  38 CASE NUMBER: CASE TITLE:  KEPLER VS SHIELD AI INC [E-FILE]  37-2023-00038808-CU-OE-CTL demand relief to which he is not entitled under the facts alleged.'); see also PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 ('A demurrer does not lie to a portion of a cause of action.').

Moreover, assuming without deciding that the common interest privilege applies to all four of the allegedly defamatory communications, plaintiff has sufficiently alleged facts showing malice on the part of his supervisor, Mike Fourie. (See Complaint at ¶¶ 69, 107, 110.) Whether plaintiff can prove these facts is a question for another day.

C. 'Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.' Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227. Accordingly, plaintiff is granted leave to amend count 3. Plaintiff must file and serve the first amended complaint by February 5, 2024.

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