Judge: Michael E. Whitaker, Case: 22STCV35768, Date: 2023-04-03 Tentative Ruling

Case Number: 22STCV35768    Hearing Date: April 3, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Esther K. Lee sued Defendants 2870 O Consortium, LLC, Arc City, Bryan E. Bohannan, and Central Reclamation (collectively, Defendants) based on injuries Plaintiff alleges she sustained as a result of long term construction being conducted in front of her residence.   Defendants Arc City and Bryan E. Bohannan (collectively, Defendants) demur to the fourth cause of action in Plaintiff’s first amended complaint for Intentional Infliction of Emotional Distress (IIED).  Plaintiff has not filed an opposition. 

ANALYSIS

1.      DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4^th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4^th 1228, 1238.) 

a.      Intentional Infliction of Emotional Distress (IIED)

Defendants demur to the fourth cause of action for IIED for failure to state facts sufficient to constitute a cause of action and as uncertain.

To prevail on the IIED cause of action, Plaintiff must prove : “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) A defendant’s conduct is outrageous when “it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Ibid. [cleaned up].) Further, the defendant’s conduct must be “intended to inflict injury or engages in with the realization that injury will result.” (Id. at p.1051 [cleaned up].)

The Complaint alleges in pertinent part the following:

• Repeatedly, on or about 10/2018, one of defendants, Real Estate Developer, “2870 O Consortium, LLC” (Hereinafter Developer) collected approximately $18,000,000.00 from the investors and/or Creditors and purchased existing old properties located Olympic Blvd. and Kenmore Ave. in the middle of Koreatown for purpose of condominium construction (i.e., 1010 S. Kenmore Ave., Los Angeles, CA 90006).
• The plaintiff Esther K. Lee (Hereinafter ESTHER) had been residing just other side of construction site of 1017 S. Kenmore Ave., Los Angeles, CA 90006) since 03/01/2013
• Developer’s construction started on or about 12/2019, of which lots of dust and unexpressive and undisputable noise was occurred starting from 6 AM in the morning to approximately 7 PM, which was continued more than three (3) months.
• ESTHER as a reasonable person could have not kept her usual life, absolutely including her privacy and quiet use and enjoyment.
• It was realistically and substantially difficulted that she, residing just front and opposite side of construction site (i.e., 1017 S. Kenmore Ave.), could have escaped from the hell (her house), almost the load (Kenmore Ave. to the Olympic Blvd.) was blocked.
• Especially, ESTHER and his family could have not moved out to the public road when their door was blocked by Concrete Mixer (i.e., Truck Agitator), which had been always parked in blocking of her driveway almost all day long from 7:00 AM to 6 PM, continuously more than three (3) months.
• Lots of trucks and trailers was rotating all day long approximately from 7:00 AM to 6 PM.  She was really in the hell more than three (3) months and it was also same life to Esther’s family (two adult sons and her mother).
• Two sons could have not worked in their working in the home during COVID-19 pandemic, where they have to pay hotel fee more than three (3) months, being separated from family meeting and enjoyment.
• Particularly, on 10/7/2020 (3:30 PM), cement and debris were pushed into her house from the Concrete Mixer (i.e., Truck Agitator), which had been always parked in blocking of her driveway.
• When Esther pushed them (debris and concrete) to the sewage, she was suddenly unconscious by her head injury, being hit by the connector part of agitator.
• Ambulance was dispatched and she was urgently carried to the Emergency Room (ER) of near hospital, where MRI showed serious head injury, causing neurologic disable to the area of left eye and face.
• Indeed, Esther’s Sequelae of head injury had been continued since 10/07/2021 and she could have not slept without painkiller, nor had she enjoyed her life in trauma.
• The construction is not completed and still working.  Esther’s life had since been in the hell with trauma and brain pain.
• Here, it is argued that defendants’ said conduct had been continuous almost all day long from 7:00 AM to 6 P.M. more than 3 months.
• She had been in the hell with serious head injury of above, where Defendants’ conduct could be reached to outrageous in nature and extreme in character modern construction company’s community.

(Complaint, ¶¶ 84-98.)  

            Defendants specifically argue that the FAC is devoid of facts indicating intentional or reckless actions on the part of Arc City or Bryan E. Bohannan towards Plaintiff.  The Court agrees.  While Plaintiff asserts in the FAC that Defendant 2870 O Consortium, LLC is connected to the construction, Plaintiff fails to allege how Defendants caused, contributed to, or were involved in the construction.  Without allegations of intentional or reckless actions on the part of Defendants which are connected to the construction, Plaintiff’s cause of action for IIED fails to state facts regarding Defendants.

b.      Leave to Amend

Plaintiff has the burden of showing in what manner the first amended complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) The plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.)  Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.”  (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff has not opposed the demurrer. Consequently, she has failed to meet her burden. Thus, the Court will deny Plaintiff leave to amend the FAC.

CONCLUSION AND ORDER

Therefore, the Court sustains Defendants’ demurrer to Plaintiff’s fourth cause of action in the first amended complaint without leave to amend.

Defendants shall provide notice of the Court’s ruling and file a proof of service of such.