Judge: Mark A. Young, Case: 21STCV22185, Date: 2023-04-04 Tentative Ruling
Case Number: 21STCV22185 Hearing Date: April 4, 2023 Dept: M
CASE NO.: 21STCV22185
MOTION: Demurrer
to the First Amended Complaint
HEARING DATE: 4/4/2023
Legal
Standard
A
demurrer for sufficiency tests whether the complaint states a cause of action.
(Hahn v. Mirda (2007)
147 Cal.App.4th 740, 747.) When considering demurrers, courts read the
allegations liberally and in context. In a demurrer proceeding, the defects
must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed. (CCP §§
430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate
facts sufficient to apprise the defendant of the factual basis for the claim
against him. (Semole v. Sansoucie
(1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit
contentions, deductions or conclusions of fact or law alleged in the pleading,
or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen
(1964) 226 Cal.App.2d 725, 732, internal citations omitted.)
A
special demurrer for uncertainty is disfavored and will only be sustained where
the pleading is so bad that defendant cannot reasonably respond—i.e., cannot
reasonably determine what issues must be admitted or denied, or what counts or
claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s
of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if
the pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Ibid.)
Any party, within the time allowed
to respond to a pleading may serve and file a notice of motion to strike the
whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule
3.1322(b).) The court may, upon a motion or at any time in its discretion and
upon terms it deems proper: (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. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a
pleading which is not essential to the claim is surplusage; probative facts are
surplusage and may be stricken out or disregarded”].)
“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.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to
show in what manner plaintiff can amend the complaint,
and how that amendment will change the legal effect of the
pleading. (Id.)
Analysis
Assault
Defendant demurs to the assault cause of action on the grounds that it fails
to allege the essential elements of lack of consent, injury, and causation. “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 he 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.” (Carlsen v. Koivumaki (2014)
227 Cal.App.4th 879, 890, citing So v. Shin (2013) 212 Cal.App.4th 652,
668-69.) Physical injury is not required; rather, the tort of assault is
complete when anticipation of harm occurs. (Kiseskey v. Carpenters’ Trust
for Southern California (1983) 144 Cal.App.3d 222, 232.)
The first amended complaint (FAC) alleges that on November 22,
2019, Plaintiff was involved in a romantic relationship with Defendant Gallo.
Doe and Gallo had a verbal dispute at Gallo’s residence in Venice, California,
which escalated into a physical altercation whereby Mr. Gallo pushed and choked
Ms. Doe and caused Ms. Doe’s head to be impacted into the railing of a
stairway. Ms. Doe suffered head trauma and a laceration to the back of the
head. At that time, she asked Gallo for medical assistance but was not
assisted. When Ms. Doe located her phone and attempted to call 911, Gallo took
her phone from her to prevent her from calling 911 and eventually agreed to
transport her to the hospital on the condition she would not call 911. (FAC ¶
6.) Ms. Doe sustained physical injuries because of Gallo slamming her head into
the railing of the stairway, including laceration to the back of the head that
caused occipital headaches, spastic neck pain, and throbbing back and shoulder
pain, and extreme emotional and mental anguish. (¶ 12.)
The FAC further alleges that Gallo
intended to cause and did cause Plaintiff to suffer apprehension of an
immediate harmful contact. (FAC ¶ 17.) Gallo acted with the intent to create a
state of fear or danger to Plaintiff. (¶ 18.) Gallo’s actions caused Plaintiff
to have a reasonable belief and perceived that she would be harmed by him. (¶
19.) Plaintiff feared Gallo’s imminent action. (¶ 20.) Gallo’s actions were
harmful and offensive and presented a physical threat to Plaintiff. (¶ 21.) Plaintiff
did not consent to Defendants’ acts. (¶ 11.)
Defendant argues that this does not
allege three elements of assault -- lack
of consent, injury, and causation. However, Gallo “did cause” Plaintiff to
suffer apprehension of immediate harmful contact, and Plaintiff did not consent
to defendant’s actions. Thus, Plaintiff alleges lack of consent and her injury caused
by Defendant’s actions.
Accordingly, the demurrer is
OVERRULED as to the assault cause of action.
Intentional
Infliction of Emotional Distress (IIED)
Defendant demurs to
the IIED cause of action. The
elements of an IIED cause of action are: (1) extreme and 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. (Moncada v. West Coast
Quartz Corp. (2013) 221 Cal.App.4th 768, 780.) To satisfy the element of
extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to
exceed all bounds of that usually tolerated in a civilized society.’” (Id.
at 780.)
“Behavior may be considered
outrageous if a defendant (1) abuses a relation or position which gives him
power to damage the plaintiff’s interest; (2) knows the plaintiff is
susceptible to injuries through mental distress; or (3) acts intentionally or
unreasonably with the recognition that the acts are likely to result in illness
through mental distress.” (McDaniel v. Gile (1991) 230 Cal.App.3d 363,
372.) “[I]t is not enough that the
defendant has acted with an intent which is tortious or even criminal, or that
he has intended to inflict emotional distress, or even that his conduct has
been characterized by ‘malice,’ or a degree of aggravation which would entitle
the plaintiff to punitive damages for another tort.” (Cochran v. Cochran
(1998) 65 Cal.App.4th 488, 496.) “Liability has been found only where the
conduct has been so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.” (Id.)
Generally, the question of whether the
conduct is in fact outrageous is a question of fact to be determined beyond the
pleading stage. (So v. Shin (2013) 212 Cal.App.4th 652.) Nonetheless,
“[w]hile those cases say that it is ‘usually’ a
question of fact, several cases have dismissed intentional infliction of emotional distress
claims on demurrer, concluding that the facts alleged did not amount to
outrageous conduct as a matter of law.” (Barker v. Fox & Associates
(2015) 240 Cal.App.4th 333, 355-356.)
Defendant argues that Plaintiff
does not allege any facts supporting the existence of “extreme and outrageous
conduct.” Indeed, the FAC does not allege the ultimate fact that Defendant
engaged in extreme and outrageous conduct. Instead, the FAC alleges that
Defendant engaged “in willful misconduct with the intention of causing severe
emotional distress.” (FAC ¶30.) While Gallo’s conduct could meet this
requirement, Plaintiff has not alleged this element of the cause of action.
Defendant also argues that there is
no allegation of severe or extreme emotional distress. The FAC alleges
Plaintiff “reasonably suffered from anxiety and stress caused by fear for her
safety and well-being.” (¶ 30.) Indeed, this does not allege facts supporting
extreme emotional distress. “Severe emotional
distress means emotional distress of such substantial quality or enduring
quality that no reasonable [person] in civilized society should be expected to
endure it.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th
965, 1004.) This only offers anxiety and stress, which does not state
distress of the required quality discussed in case law.
Accordingly,
Defendant’s demurrer is SUSTAINED with leave to amend.
Negligent Infliction
of Emotional Distress (NIED)
Plaintiff agrees that a special relationship did not exist such
that Plaintiff could make a claim of negligent infliction of emotional
distress. Accordingly, Defendant’s demurrer is SUSTAINED without leave to
amend.
Motion to Strike
– Entire FAC
Defendant argues that Plaintiff could not file the FAC pursuant to Code
of Civil Procedure section 472, and therefore it should be stricken. efendant argues that because he filed
a Motion to Strike to the initial complaint, with a hearing date for November
30, 2021, Plaintiff could file the FAC without leave of court only on or before
November 15, 2021, the date by which her opposition to the Motion to Strike was
due to be filed. However, Defendant does not dispute that on November 19, 2021,
Defendant took the motion to strike off calendar. Thus, the time to file a FAC
without leave of Court never expired. Further, Defendant addressed the merits
of the FAC prior to it being filed.
Accordingly, Defendant’s motion to
strike the entire FAC on this basis is DENIED.
Motion to Strike
– CCP § 998
Plaintiff seeks prejudgment interest and costs “[u]pon compliance with
Code of Civil Procedure section 998.” Plaintiff
notes that she “intends” on making such an offer. The Court concurs that this
statement of intent would not entitle Plaintiff to prejudgment interests or
costs. Thus, the statement would also be irrelevant, and would only risk
misleading a jury presented with the complaint.
Accordingly, Defendant’s motion to strike is GRANTED without leave to
amend.
Motion to Strike
– Punitive Damages
The motion to strike is MOOT pursuant to the Court granting leave to
amend with respect to the demurrer.
Plaintiff to file an amended complaint within 10 days.