Moving Party:               Cross-Defendants, Yvette Hitchens, Kathryn Robinson, and Marta McCoy

Opposing Party:           Cross-Complainant, Ariel Portley

Notice:                         OK

 

1. Background Facts

Plaintiff, Yvette Hitchens filed this action against Defendants, Windward Village Homeowners Association, Ariel Portley, and Jacqueline Lakhdar for libel per se and IIED.  Plaintiff alleges Defendant, without any basis, accused Plaintiff of criminal acts including fraud.  Plaintiff alleges she, as a real estate agent, has suffered damages to her personal and professional reputation as a result of the wrongful accusations.  Plaintiff’s operative complaint is her First Amended Complaint, which she filed on 6/13/22. 

 

There are two cross-complaints in this action.  The cross-complaint at issue today was filed by Portley, and is against Hitchens, Robinson, McCoy, and Windward Village Homeowners Association.  The crux of the cross-complaint is that the individual cross-defendants, all of whom were members of the HOA board, accused Portley of theft, fraud, and other criminal activity relating to the HOA’s financial dealings and transactions.  Portley filed a first amended cross-complaint (“FACC”) alleging causes of action for defamation per se, defamation per quod, intentional infliction of emotional distress, negligent infliction of emotional distress, false light, and aiding and abetting tort. 

 

The HOA filed a cross-complaint, not at issue today, against Hitchens, Robinson, McCoey, Portley, and Lakhdar for equitable indemnity, contribution, and declaratory relief, essentially seeking a ruling that, to the extent it is liable on either the complaint or the cross-complaint, these individuals were the true cause of the harm suffered. 

 

On December 30, 2022, Cross-Defendants Yvette Hitchens, Marta McCoy, and Kathryn Robinson filed a demurrer to Cross-Complainant Ariel Portley’s FACC.  On March 21, 2023, Cross-Complainant filed an opposition.  As of March 29, 2023, no reply has been filed.

 

2. Demurrer

a.     Meet and Confer

Defendants submits the Declaration of Gabrielle M. Lashly, which adequately shows Counsel attempted to meet and confer prior to bringing this demurrer.

 

b.     Legal Standard on Demurrer

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.  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.

 

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.)  No other extrinsic evidence can be considered (i.e., no “speaking demurrers”).  A demurrer is brought under CCP § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50(a) [can be taken to the entire complaint or any cause of action within].  Specifically, a demurrer may be brought per CCP § 430.10(e) if insufficient facts are stated to support the cause of action asserted.  Per CCP §430.10(a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading.  Furthermore, demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond.  CCP § 430.10(f). 

 

However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.  (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)  And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control.  Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief.  Special demurrers are not allowed in limited jurisdiction courts.  (CCP § 92(c).)

 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Id.)

 

Finally, CCP section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.”  (CCP § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due.  (CCP § 430.41(a)(2).)  Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts.  (CCP § 430.41(a)(3).)

 

c.     First and Second Cause of Action: Defamation Per Se and Defamation Per Quod

The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.  (See Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369.)  “The general rule is that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.”  (Gilbert v. Sykes¿(2007) 147 Cal.App.4th 13, 31.)  However, “[l]ess particularity is¿required¿when it appears that defendant has superior knowledge of the facts, so long as the¿pleading¿gives notice of the issues sufficient to enable preparation of a defense.”  (Okun v. Superior Court¿(1981) 29 Cal.3d 442, 458.)  Defamation “can be charged by alleging the substance of the defamatory statement.”  (Id.)  “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly's of California, Inc.¿(1993) 14 Cal.App.4th 612, 616.) 

 

“‘When a defamation action is brought by a public figure, the plaintiff, in order to recover damages, must show that the defendant acted with actual malice in publishing the defamatory communication.’  [Citation.]  ‘A person may become a public figure in several different ways.  Some persons have achieved such pervasive fame or notoriety that they become public figures for all purposes and in all contexts.’  [Citations.]  A person may also become a ‘“limited” purpose public figure [ ].’  [Citation.]”  (Cabrera v. Alam (2011) 197 Cal.App.4th 1077, 1091.) 

            The core question here is whether Cross-Complainant sufficiently alleges malice.  Cross-Defendants do not contest the sufficiency of the pleadings as to the defamation claims, rather they claim that their statements are privileged on their face based on the common interest privilege and due to Cross-Complainant’s status as a limited purpose public figure.  On the other hand, Cross-Complainant argues that Cross-Defendants’ statements were made with actual malice given that they “made these statements with the knowledge that the statements were false or with reckless disregard of whether the statements were false or not.”  (FACC ¶ 24.)  In her opposition, Cross-Complainant further explains: “[Cross-]Defendant Robinson and [Cross-]Defendant McCoy were members of the board and they had access to the HOA’s financial records.  A basic review of those records would have shown that [Cross-Complainant] did not embezzle money from the HOA accounts.  It would also show how the HOA funds were spent.  Moreover, [Cross-]Defendant McCoy and [Cross-]Defendant Robinson had direct and personal knowledge about the other previous transactions in which they claimed were improper (e.g., [Cross-Complainant’s] request for reimbursement; the decision to hire outside vendors and pay them for their services).”  (Opp. p. 8:17-23.)  Cross-Complainant also argues that Cross-Defendants made a decision to specifically target Cross-Complainant, which further demonstrates their malice: “[Cross-Complainant] was a member of a seven-person board and many of the decisions [Cross-]Defendants attacked were approved by the board.  Yet [Cross-]Defendants specifically accused [Cross-Complainant] of embezzlement.  They did not accuse the chief financial officer or property manager of embezzlement, even though those people had direct access to the HOA’s bank accounts and financial records.  They did not report their unfounded suspicions about embezzlement to the chief financial officer’s employer.  They only targeted [Cross-Complainant].  That is evidence of malice in both the sense that it is a reckless disregard for the truth and it shows ill-will towards [Cross-Complainant].  Stationers Corp. v Dun & Bradstreet, Inc. (1965) 62 Cal. 2d 412, 418 (malice may be inferred if the defendant does not have reasonable or probable cause to believe the defendant’s statements to be true).”  (Opp. p. 9:4-15.) 

 

            Cross-Defendants do not provide any arguments in reply.

 

            The Court finds that Cross-Complainant’s allegations regarding actual malice is sufficient for purposes of demurrer.  “[A] demurrer tests the sufficiency of the pleadings and, in some instances, material allegations may be pleaded in the form of ultimate facts and in conclusionary language.”  (Fisher v. Larsen (1982) 138 Cal.App.3d 627, 634; comparing to summary judgment which “is designed to determine whether triable issues facially raised by the pleading are ‘real or merely the product of an inept pleading.’  [Citation.]”.)  Cross-Defendants fail to provide any authority which requires a clear and convincing showing of actual malice at the demurrer stage.  The cases that Cross-Defendants cite deal with appeals from judgment or anti-SLAPP motions.  (See Lundquist v. Reusser (1994) 7 Cal.4th 1193 [where Supreme Court reversed the Court of Appeal’s judgment that jury instruction requiring the defendants to bear the burden of proving no malice for common interest privilege constituted reversible error]; Reed v. Gallagher (2016) 248 Cal.App.4th 841 [where Court of Appeal held there was an inference of actual malice in anti-SLAPP motion]; Hicks v. Richard (2019) 39 Cal.App.5th 1167 [where Court of Appeal held that statements were not made with malice in anti-SLAPP motion].)  The showing of malice in an anti-SLAPP is “similar to that of a party opposing a motion for summary judgment.”  (Hicks, supra 39 Cal.App. 5th at 1177 [“Regarding the second step of the anti-SLAPP motion analysis,” the movant must “demonstrate his claims [are] both legally sufficient and supported by evidence that, if credited, would be sufficient to sustain a favorable judgment.”].)  As mentioned earlier, Cross-Defendants fail to demonstrate that the same level of showing — clear and convincing evidence of actual malice — is required at the demurrer stage.  The Court finds that Cross-Complainant’s allegations are sufficient to support a cause of action for defamation and show actual malice.  (See FACC ¶¶ 15-31, 38-52.) 

 

            Accordingly, the Court OVERRULES Cross-Defendants’ demurrer as to the first and second causes of action.

d.     Third Cause of Action: Intentional Infliction of Emotional Distress

A cause of action for intentional infliction of emotional distress (“IIED”) “requires proof of: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the possibility of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant’s extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.  [Citation.]”  (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.)  

 

Conduct is considered “outrageous” if it is “so extreme as to exceed all bounds of that usually tolerated in a civilized community.”  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51.)  “Generally, conduct will be found to be actionable where the ‘recitation of facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim “Outrageous!” ’ [Citations.]”  (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.)  “There is no bright line standard for judging outrageous conduct and ‘ “…its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility.  The process evoked by the test appears to be more intuitive than analytical…”  [Citation.]’  [Citation.]”  (Id.)  

 

            Cross-Defendants provide no arguments regarding the insufficiency of Cross-Complainant’s allegations as to the third cause of action.  Cross-Complainant argues that she has alleged sufficient facts to support a claim for intentional infliction of emotional distress: “[Cross-]Defendants, including the HOA, accused [Cross-Complainant] of serious criminal behavior.  Among other things, [Cross-]Defendants suggested and/or claimed that [Cross-Complainant] received HOA funds for personal travel expenses and personal credit card charges exceeding $20,000.00. Defendants suggested and/or claimed that Ms. Portley improperly altered or deleted HOA records.  [Cross-]Defendants suggested and/or claimed that [Cross-Complainant] held “illegal” meetings. Defendants suggested and/or claimed that [Cross-Complainant] deposited money (approximately $18,000.00; $25,000.00; $30,000.00) belonging to the HOA into her personal account.  These statements constitute extreme and outrageous conduct by the [Cross-]Defendants, including the HOA.  They made these statements with the intent of causing emotional distress in [Cross-Complainant] or with reckless disregard for [Cross-Complainant’s] emotional state.  Second, [Cross-Complainant] suffered severe or extreme emotional distress.  She has sustained

injuries to her body, health and mental well-being.  She has experienced emotional distress and

anxiety.  Third, Defendants’ conduct was a substantial factor in causing her severe and emotional

distress.”  (Opp. p. 9:27-28, 10:1-15; See also FACC ¶¶ 15-22, 53-59.) 

 

            The Court finds Cross-Complainant’s allegations to be sufficient in stating a claim for intentional infliction of emotional distress.

 

            Accordingly, the Court OVERRULES Cross-Defendants’ demurrer as to the third cause of action.

 

e.     Fourth Cause of Action: Negligent Infliction of Emotional Distress

Negligent infliction of emotional distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation, and damages apply.  (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.)  The existence of a duty is a question of law.  (Id.)  The distinction between the “bystander” and the “direct victim” cases is found in the source of the duty owed by the defendant to the plaintiff.  (Id.)  “Bystander” claims are typically based on a breach of a duty owed to the public in general.  In contrast, a right to recover for emotional distress as a “direct victim” arises from the breach of a duty assumed by the defendant or imposed on the defendant as a matter of law or that arises out of the defendant's preexisting relationship with the plaintiff.  (Id.)  Thus, the negligence at issue must be directed primarily at the plaintiff.  (Id., at 131.) 

 

Nevertheless, negligent infliction of emotional distress is not an independent tort; it is merely convenient terminology describing the context in which the negligence occurred.  (Long v. PKS, Inc. (1993) 12 Cal.App.4th 1293, 1297.)  Damages for severe emotional distress are recoverable in a negligence action when they result from the breach of a duty owed to the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law or that arises out of a relationship between the two.  (Id.)  If a cause of action is otherwise established, it is settled that damages are given for mental suffering naturally ensuing from the complained-of acts.  (Id.) 

 

            Here, the main issue is whether Cross-Defendants owed a duty to Cross-Complainant.  Cross-Defendants argue that the parties have no special relationship that would impose a duty on Cross-Defendants to avoid causing emotional distress to Cross-Complainant.  In opposition, Cross-Complainant argues that she had a relationship with Cross-Defendants as a former member of the HOA, that she served on the same board as Cross-Defendants Robinson and McCoy, and that she is also a member of the same community as Cross-Defendants.

 

            Cross-Complainant cites to no authority or otherwise provides any support for her assertion that this relationship imposes the duty required to support this cause of action.  Thus, Cross-Complainant’s allegations fail to set forth the requisite requirements for negligent infliction of emotional distress since there are no facts that impose a duty on Cross-Defendants in which the emotional condition of Cross-Complainant is the object.

 

            Accordingly, the Court SUSTAINS Cross-Defendants’ demurrer as to the fourth cause of action WITH LEAVE TO AMEND.

 

f.      Fifth Cause of Action: False Light

“False light is a species of invasion of privacy, based on publicity that places a plaintiff before the public in a false light that would be highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed.”  (De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 865.)  False light invasion of privacy requires publicity such that the statements must be communicated “to the public in general or to a large number of persons as distinguished from one individual or a few.”  (Catsouras v. Department of California Highway Patrol¿(2010) 181 Cal.App.4th 856, 904.)  “[T]he common law right of privacy may not be violated by word of mouth only and can be infringed only by printings, writings, pictures or other permanent publications.”  (Hill v. National Collegiate Athletic Assn.¿(1994) 7 Cal.4th 1, 27, fn. 7 (internal quotations omitted).) 

 

            It is unclear what exactly Cross-Defendants appear to be arguing as they merely state the requirements for a false light claim.  On the other hand, Cross-Complainant sets forth specific facts which support each element for this cause of action: “[Cross-]Defendants, including the HOA, accused [Cross-Complainant] of serious criminal behavior.  Among other things, [Cross-]Defendants suggested and/or claimed that [Cross-Complainant] received HOA funds for personal travel expenses and personal credit card charges exceeding $20,000.00.  [Cross-]Defendants suggested and/or claimed that [Cross-Complainant] improperly altered or deleted HOA records.  [Cross-]Defendants suggested and/or claimed that [Cross-Complainant] held “illegal” meetings.  [Cross-]Defendants suggested and/or claimed that [Cross-Complainant] deposited money (approximately $18,000.00; $25,000.00; $30,000.00) belonging to the HOA into her personal account.  These statements constitute negligent conduct by [Cross-] Defendants, including the HOA.  They were negligent in making these statements about [Cross-Complainant].  These false disclosures put [Cross-Complainant] in a false light.  Second, [Cross-] Defendants’ conduct and the resulting false light would be offensive to a reasonable person in [Cross-Complainant’s] position.  [Cross-]Defendants accused her of criminal activity.  Third, there is clear and convincing evidence that [Cross-]Defendant knew the disclosure would create a false impression about [Cross-Complainant] or acted with reckless disregard for the truth of those disclosures.  [Cross-] Defendants, particularly [Cross-]Defendant McCoy and [Cross-]Defendant Robinson, as members of

the HOA board, knew or should have known that many of the accusations leveled against [Cross-Complainant] were false.  They had access to the information that would have confirmed or dispel those

accusations.  They knew or should have known that [Cross-Complainant] did not receive HOA funds for

personal travel expenses and personal credit card charges exceeding $20,000.00.  They also knew or

should have known that [Cross-Complainant] did not deposit more than $18,000.00 of HOA funds into her

personal account.  Fourth, [Cross-Complainant] was harmed.  She suffered reputational damage and experienced severe emotional distress.  She also suffered other financial losses.  Finally, [Cross-] Defendants’ conduct was a substantial factor in causing [Cross-Complainant’s] losses.”  (Opp. p.12:16-28, 13:1-14; See FACC ¶¶ 15-24, 64-70.)

 

            The Court finds Cross-Complainant’s explanations to be sufficient and also well supported by the FACC.  Thus, Cross-Complainant sufficiently alleges facts to maintain a cause of action for false light.

 

Accordingly, the Court OVERRULES Cross-Defendants’ demurrer as to the fifth cause of action.

 

g.     Sixth Cause of Action: Aiding and Abetting Tort

“[L]iability for aiding and abetting depends on proof the defendant had actual knowledge of the specific primary wrong the defendant substantially assisted.”  (Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1145.)  Specifically, “[t]o be held liable as a cotortfeasor, a defendant must have knowledge and intent . . . . A defendant can be held liable as a cotortfeasor on the basis of acting in concert only if he or she knew that a tort had been, or was to be, committed, and acted with the intent of facilitating the commission of that tort.”  (Id. 1146 [quoting Gerard v. Ross (1988) 204 Cal.App.3d 968, 983].)  “Of course, a defendant can only aid and abet another’s tort if the defendant knows what ‘that tort’ is .”  (Id. at 1146.)  

 

Given the Court’s finding that the FACC sufficiently sets forth facts showing Cross-Defendant’s engagement in torts such as defamation, false light, and intentional infliction of emotional distress, Cross-Complainant need only demonstrate that Cross-Defendants had actual knowledge of each other’s torts and their intent to facilitate those torts.  The FACC fails to do this.  Cross-Defendants argue that the FACC does not identify what each Cross-Defendant did to “aid and abet” the other Cross-Defendants and that the named Cross-Defendants cannot aid and abet the Association’s tortious acts given that the Association acts through its Board of Directors.  Cross-Complainant does not address Cross-Defendants’ arguments in her opposition.  Rather, she states that she set forth sufficient facts showing that Cross-Defendants engaged in several torts, that the HOA acted through Cross-Defendants Robinson and McCoy and that the same individuals encouraged and substantially assisted Cross-Defendant Hitchens by providing information about Cross-Complainant, holding a special meeting to elect Cross-Defendant Hitchens, and using the HOA’s resources to breach duties owed to Cross-Complainant.  The FACC does not adequately reflect these arguments as there are no facts which can sufficiently support Cross-Defendants’ assistance and encouragement to the other defendants.  The FACC merely states that “[Cross-] Defendants knew that the other defendants planned to engage in wrongful acts (e.g., defamation; false light).”  (FACC ¶ 72.)  The absence of any facts to support this conclusory statement is a defect apparent on its face and insufficient to support a cause of action for aiding and abetting.

 

Accordingly, the Court SUSTAINS Cross-Defendants’ demurrer as to the sixth cause of action WITH LEAVE TO AMEND.

 

h.     Conclusion

Cross-Defendants’ demurrer to the fourth and sixth causes of action is sustained with leave to amend.  Cross-Defendants’ demurrer to the first, second, third, and fifth causes of action is overruled.

 

Cross-Complainant is ordered to give notice.