Judge Michael P. Linfield, Case Number: 23STCV24677, Date: 2024-01-31 Tentative Ruling

Judge: Michael P. Linfield, Case: 23STCV24677, Date: 2024-01-31 Tentative Ruling

Case Number: 23STCV24677 Hearing Date: January 31, 2024 Dept: 34

SUBJECT: Demurrer to the Complaint

Moving Party: Defendant Bridget L. Jones

Resp. Party: Plaintiff Morgan Cain

The Demurrer is SUSTAINED in part. The Demurrer is SUSTAINED to the first cause of action for deprivation of custody and visitation, without leave to amend the Complaint. The Demurrer is OVERRULED as to all else.

BACKGROUND:

On October 10, 2023, Plaintiff Morgan Cain, in propria persona, filed a Complaint against Defendant Bridge L. Jones on causes of action of: (1) deprivation of custody and visitation, pursuant to Penal Code section 278.5; (2) intentional infliction of emotional distress, pursuant to Civil Code section 527.6, subdivision (b); and (3) defamation of character, pursuant to Civil Code sections 44, 45a, and 46.

On November 7, 2023, Defendant, in propria persona, filed her Demurrer to the Complaint.

No opposition or other response has been filed to the Demurrer.

ANALYSIS:

I. Legal Standard

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of” various grounds listed in statute. (Code Civ. Proc., § 430.10.)

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).)

“A demurrer to a complaint or cross-complaint may be taken to the whole complaint or cross-complaint or to any of the causes of action stated therein.” (Code Civ. Proc., § 430.50, subd. (a).)

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed. Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, citations and internal quotation marks omitted.)

II. Discussion

A. The Complaint

Plaintiff, who is litigating this matter in propria persona, filed a handwritten complaint. The Complaint states the following. (The Court has kept the same formatting and spelling as used in the handwritten Complaint so as to help preserve Plaintiff’s original meaning and intent.)

“Plaintiff brings for the following counts and allegations supporting Plaintiff’s cause of action.

“Count 1:

“In general Violation of Penal Code 278.5 PC

“Deprivation of Custody and Visitation,

“Penal Code 278.5 states that it is a crime to maliciously to deprive another adult of their lawful right to custody of or visitation with a child.

“Defamation of character, Civil Code 44, 45a, 46

“Count 2: Violation of Civil Code 527.6(b)

“Defendant intentionally inflicted emotional distress onto my children, family, and parental relationship.

“Plaintiff has suffered anguish, horror, nervousness, grief, anxiety, extreme anxiety attacks, extreme worry, shock, humiliation, and mental health decline.

“Count 3

“Violation of Civil Code Section 44ss, 45a, 46

“Defamation of Character. Plaintiff has endured unfathomable pain, mental anguish, and uncomprisable loss of Plaintiff’s family estrangement due to the untrue deceitful statements in general + in reports used by social workers’ to dismember the Plaintiffs family.”

B. The Demurrer

Defendant demurs to the pleading on the following grounds:

(1) that the Complaint does not state facts sufficient to constitute a cause of action;

(2) that the Complaint is barred by res judicata (otherwise known as “claim preclusion”);

(3) that there are various procedural failings with the Complaint, such as that the caption page mistakes Defendant’s name, that Plaintiff did not sign or verify the Complaint, that Plaintiff is suing the wrong person or entity, and that this is not a “defamation complaint”; and

(4) that there is an issue here with the statute of limitations.

(Demurrer, pp. 3:3–4, 4:14–24, 5:7–17.)

The Court considers each of these arguments.

C. Failure to Sufficiently State a Cause of Action

1. Legal Standard

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: . . . (e)¿The pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., 430.10, subds. (e)–(f).)

2. Discussion

Defendant generally demurs to the Complaint, arguing that it does not allege facts sufficient to state a cause of action. (Demurrer, p. 3.)

The Court considers the causes of action individually to determine if they state a cause of action.

a. Deprivation of Custody and Visitation

i. Legal Standard

“Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.” (Pen. Code, § 278.5, subd. (a).)

“Nothing contained in this section limits the court’s contempt power.” (Pen. Code, § 278.5, subd. (b).)

“A custody order obtained after the taking, enticing away, keeping, withholding, or concealing of a child does not constitute a defense to a crime charged under this section.” (Pen. Code, § 278.5, subd. (c).)

ii. Discussion

Plaintiff pleads a cause of action for deprivation of custody and visitation pursuant to Penal Code section 278.5.

Penal Code section 278.5 authorizes the City Attorney or District Attorney to prosecute a criminal action; it does not authorize an individual to file a civil action.

Although there is a potential fine associated with conviction under Penal Code section 278.5, the language of the statute does not authorize an individual to bring a civil action for liability. (Compare with a civil action for conversion pursuant to Pen. Code, § 496, subd. (c) [“Any person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by plaintiff, costs of suit, and reasonable attorney’s fees.].)

As this is not a cognizable civil cause of action, this issue cannot be remedied by amendment.

The Court SUSTAINS the Demurrer to the first cause of action for deprivation of custody and visitation, without leave to amend the Complaint.

b. Intentional Infliction of Emotional Distress

i. Legal Standard

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (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. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

ii. Discussion

Plaintiff pleads a cause of action for intentional infliction of emotional distress pursuant to Civil Code section 527.6, subdivision (b).

The Court first notes that the Civil Code does not contain a section 527.6. In addition, Code of Civil Procedure section 527.6, subdivision (b) only contains definitions, not a cause of action. Thus, the Court is unaware of any statutory authority for this cause of action.

However, as described above, California common law does recognize a cause of action for intentional infliction of emotional distress.

Here, Plaintiff alleges: (1) that Defendant intentionally inflicted emotional distress on Plaintiff’s children, family, and parental relationship; (2) that Defendant did this by defaming Plaintiff; and (3) that Plaintiff has suffered in various ways because of this. (Complaint, p. 2.)

These allegations sufficiently state a cause of action for intentional infliction of emotional distress.

The Court OVERRULES the Demurrer to the second cause of action for intentional infliction of emotional distress.

c. Defamation

i. Legal Standard

“Defamation is effected by either of the following: (a) Libel. (b) Slander.” (Civ. Code, § 44.)

“Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” (Civ. Code, § 45.)

“A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. Special damage is defined in Section 48a of this code.” (Civ. Code, § 45a.)

“Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

“1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

“2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

“3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;

“4. Imputes to him impotence or a want of chastity; or

“5. Which, by natural consequence, causes actual damage.”

(Civ. Code, § 46.)

“‘The sine qua non of recovery for defamation . . . is the existence of falsehood.’ Because the statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion¿for purposes of defamation liability.¿Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected.” (McGarry v. Univ. of San Diego (2007) 154 Cla.App.4th 97, 112, quoting Letter Carriers v. Austin (1974) 418 U.S. 264, 283.)

“[T]he question is not strictly whether the published statement is fact or opinion. Rather, the dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385, citations omitted.)

“Whether a statement declares or implies a provable false assertion of fact is a question of law for the court to decide, unless the statement is susceptible of both an innocent and a libelous meaning, in which case the jury must decide how the statement was understood.” (Franklin, supra, at p. 385, citations omitted.)

“To determine whether a statement is actionable fact or nonactionable opinion, we apply a totality of the circumstances test pursuant to which we consider both the language of the statement itself and the context in which it is made.” (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 696, citation omitted.)

ii. Discussion

Plaintiff pleads a cause of action of defamation. Specifically, Plaintiff alleges that he has suffered because Defendant has made untrue statements about him to harm his relationship with his family. (Complaint, p. 2.)

These allegations sufficiently state a cause of action for defamation.

Contrary to Defendant’s argument, Plaintiff is entitled to allege defamation as a cause of action in the Complaint. (Demurrer, p. 4:24.) A complaint may have multiple different sets of conduct and causes of action. While the Court must assume the truth of the matters asserted for the purposes of ruling on a demurrer, it will ultimately be Plaintiff’s burden to prove that he is entitled to the relief that he seeks.

The Court OVERRULES the Demurrer to the third cause of action for defamation.

D. Defendant’s Remaining Arguments

Defendant’s remaining arguments involve res judicata, procedural issues, and the statute of limitations.

At this time, these arguments are unmeritorious.

As to res judicata, Defendant has not presented the Court with any information as to any prior case that would prohibit Plaintiff from bringing this cause.

As to procedural issues, “[t]he court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties.” (Code Civ. Proc., § 475.) Minor procedural mistakes, such as incorrectly spelling Defendant’s name, are not proper grounds for demur. More importantly, Plaintiff need not verify the Complaint, and Plaintiff need not sue everyone involved in his allegations.

Finally, Defendant touches upon an issue with the statute of limitations. (Demurrer, p. 5:8–15.) Although it might be that there is a statute of limitations issue here, the Complaint does not state when the conduct at issue occurred, and Defendant does not provide the Court with any additional discussion on this matter. Without more, Defendant has not met her burden to bring up this issue at the demurrer stage of these proceedings.

III. Conclusion