Judge: Mark A. Young, Case: 22SMCV02003, Date: 2024-02-06 Tentative Ruling
Case Number: 22SMCV02003 Hearing Date: February 6, 2024 Dept: M
CASE NAME: Juan Gabriel
Casio Togle v. Ed Fishman, et al.
CASE NO.: 22SMCV02003
MOTION: BDO
USA, PC’s Demurrer to Second Amended Complaint
HEARING DATE: 02/06/2024
Background
Plaintiff
Juan Gabriel Casio Togel (“Plaintiff”) filed his original complaint in this
instant action on October 26, 2022, alleging eight causes of action against BDO
USA, PC (“Defendant”). Plaintiff alleges that Defendants’ alleged use of a
remote-neural-monitoring device read all of his thoughts and memories. (Second
Amended Complaint “SAC” ¶ 63.)
On December 27, 2022, BDO sent
Plaintiff a detailed letter setting forth the grounds for a demurrer to his
initial complaint. (Declaration of Melvin B. Wu (“Wu Decl.”) at ¶ 2.) Plaintiff
responded to BDO’s letter on December 30, 2022, and agreed to file an amended
complaint. (Id. at ¶ 3.) On January 12,
2023, Plaintiff filed the First Amended Complaint (“FAC”). On January 19, 2023,
BDO sent Plaintiff a detailed meet and confer letter setting forth the grounds
for a demurrer to Plaintiff’s FAC and offered to discuss the issues with
Plaintiff by phone. (Id. at ¶ 4.) Plaintiff confirmed receipt of BDO’s
letter but did not agree to dismiss or amend his FAC. (Id. at ¶ 5.) BDO
consequently filed a demurrer to Plaintiff’s FAC which was sustained without
leave to amend as to one cause of action and sustained with leave to amend as
to the remainder. (Id. at ¶ 6.)
On July 31, 2023, Plaintiff filed
the Second Amended Complaint (“SAC”) which was mislabeled as the First Amended
Complaint. (Id. at ¶ 7.) On August 25, 2023, BDO sent Plaintiff a
detailed correspondence setting forth the grounds for a demurrer to Plaintiff’s
SAC. (Id. at ¶ 8.) Plaintiff agreed to amend his SAC but as of the
filing of BDO’s Demurrer to Plaintiff’s SAC, Plaintiff has not sought leave to
amend his SAC. (Id. at ¶ 9.)
Legal
Standard
A demurrer for sufficiency
tests whether the complaint alleges facts sufficient to constitute a cause of
action. (Code Civ. Proc.,
§ 430.10; Young v. Gannon (2002) 97 Cal.App.4th 209,
220. The court
“may consider all material facts pleaded in the complaint and those arising by
reasonable implication therefrom; it may not consider contentions, deductions
or conclusions of fact or law. (Young v. Gannon (2002)
97 Cal.App.4th 209, 220 (citing Moore v. Conliffe (1994)
7 Cal.4th 634, 638; Montclair Parkowners Assn. v. City of Montclair (1999)
76 Cal.App.4th 784, 790).) The court treats all facts alleged in the
complaint to be true. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 732.)
When considering demurrers, courts “are required to
construe the complaint liberally to determine whether a cause of action has
been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School
Dist. (1996) 50 Cal.App.4th 726, 733 (citing Rogoff v. Grabowski
(1988) 200 Cal.App.3d 624, 628.)) “The
burden is on the plaintiff to demonstrate the manner in which the complaint can
be amended.” (Ross v. Creel Printing & Publishing Co. (2002) 100
Cal.App.4th 736, 748.)
Analysis
Defendant BDO demur to the first,
second, third, fourth, and fifth causes of action for failure to state a valid
cause of action under Code of Civil Procedure, section
430.10 (e)(f). (Not. of Mot. p.2-3.) Moreover, Defendant argues that these
causes of action are uncertain. (Id.)
In opposition, Plaintiff argues that he sufficiently plead the causes of
actions because of California Corporations Code §16301 and the Continuing
Violations Doctrine. (Opp. p.17.) Lastly, Plaintiff argues that he has already
provided BDO's lawyers with documents and records to support his claims and
will continue to provide additional supporting documents and records. (Id.)
Meet and Confer
“Before filing a demurrer . . . the demurring party shall
meet and confer in person or by telephone with the party who
filed the pleading . . . for the purpose of determining whether an agreement
can be reached that would resolve the objections to be raised in the demurrer.”
(Code Civ. Proc., § 430.41.)
Here, on August 25, 2023, Defense
counsel sent a detailed correspondence setting forth the grounds for a demurrer
to Plaintiff’s SAC. (Dec. Wu ¶ 8.) Plaintiff agreed to amend his SAC but has
failed to do. (Id. at ¶ 9.) Since the meet and confer was not done
telephonically or in person, the letter is insufficient to satisfy the
requirement. Nevertheless, the Court will analyze the merits below.
Defendant argues that Plaintiff
fails to allege facts sufficient to state a cause of action for invasion of
privacy upon seclusion and that the cause of action is uncertain. To state a
cause of action for the common law tort of intrusion upon seclusion, a
plaintiff must allege (1) that the defendant intentionally intruded into a
place, conversation, or matter as to which the plaintiff had a reasonable
expectation of privacy and (2) that intrusion was ‘highly offensive’ to a
reasonable person. (Hernandez v. Hillsides, Inc., 47 Cal. 4th 272, 286
(2009).) A legally recognized privacy interests exists in precluding the
dissemination or misuse of sensitive and confidential information. (Hill v.
Nat'l Collegiate Athletic Assn., 7 Cal. 4th 1, 35 (1994).) However, California courts have not recognized
a general privacy interest in communications. (Lopez v. Apple, Inc., 519
F. Supp. 3d 672, 690 (N.D. Cal. 2021) (finding that Plaintiff did not
sufficiently allege a legally cognizable privacy interest); see also In
re Yahoo Mail Litig., 7 F. Supp. 3d 1016, 1041 (N.D. Cal. 2014) (stating
that “[t]he conclusion that there is no legally protected privacy interest and
reasonable expectation of privacy in emails as a general matter is consistent
with well-established California law.”)
Here, the SAC alleges that BDO
employees accessed Plaintiff’s work laptop to “secretly film and photograph
Plaintiff without Plaintiff’s knowledge or consent” and remotely scanned
Plaintiff’s brain activity to “read all of Plaintiff’s thoughts.” (SAC at ¶
129-30.) These facts are insufficient to state a cause of action for invasion
of privacy upon seclusion because Plaintiff failed to identify any such
communications to which he has a protected privacy interest or reasonable
expectation of privacy. Moreover, Plaintiff’s allegations are conclusory.
Additionally, Plaintiff alleges that Defendant’s employees accessed his work
laptop but fails to show that this occurred during the scope of their
employment. (John Y. v. Chaparral Treatment Ctr., Inc., 101 Cal. App.
4th 565, 575 (2002) (stating that employers cannot be held liable for their
employees’ intentional tort that did not have a causal nexus to the employee’s
work).)
Thus, the Court sustains the
demurrer without leave to amend for failure to state facts sufficient for the
cause of action.
The statute of limitations for
civil actions for violations of the California Penal Code is one year. (Cal.
Civ. Proc. Code § 340(a).) Here, Plaintiff’s causes of action for
violations of the California Penal Code are barred by the statute of
limitations. Significantly, on January 15, 2020, Plaintiff discovered the
alleged violations. (Complaint ¶ 23.) Nevertheless, he waited about three years
to file his initial Complaint on October 26, 2022. (Complaint p.1.) Plaintiff
then alleged in his Second Amended Complaint that he discovered the alleged
violations around February 1, 2020. (FAC at ¶¶ 31, 34.) In Berman v.
Bromberg, the court noted that a “court may examine a prior complaint to
ascertain whether the amended complaint is a merely a sham where the amended
complaint attempts to avoid defects set forth in a prior complaint by ignoring
them.” (Berman v. Bromberg, 56 Cal. App. 4th 936 (1997).) Thus, it is
instructive that Plaintiff changes the dates of discovery in his complaints.
Additionally, Plaintiff does not allege that he worked for BDO at all after
November 16, 2020.
Further, the only specific communication that Plaintiff
alleges occurred within the applicable one-year statute of limitations is a
non-confidential conversation around July 1, 2022, between Plaintiff and a
detective at the Brentwood Police Department. (SAC at ¶ 105.) Significantly, in
his Reply In Support of the Opposition, Plaintiff acknowledged that he did not
file the complaint within the statute of limitations. (Reply In Support of Opp.
p.3.)
Thus, the Court sustains the
demurrer without leave to amend because it is barred by the statute of
limitations.
Plaintiff’s cause of action for
intentional infliction of emotional distress also fails because none of the
allegations of purported intentional infliction of emotional distress occurred
within the applicable two-year statute of limitations. (Cal. Civ. Proc. Code §
335.1.) The alleged intentional
infliction of emotional distress incidents occurred prior to the running of the
applicable two-year statute of limitations on October 26, 2020. (SAC ¶¶
66-72,76,97-98, 100-111.) Thus, the
Court sustains the demurrer without leave to amend.
CONCLUSION
Accordingly,
the Court SUSTAINS the demurrer as to all five causes of action without leave
to amend. Defendant to prepare a
proposed judgment.