Judge: Nathan Vu, Case: 2020-01127166, Date: 2022-10-03 Tentative Ruling

Demurrer

Cross-Defendants Roy Fenn’s, Peter Dang’s, Chris Hammerstone’s, and Jesse Dean’s demurrer to the First Amended Cross-Complaint is SUSTAINED with leave to amend, as to the 1st, 2nd, 3rd, 4th, 5th, and 6th causes of action, and OVERRULED as to the request for injunctive relief and on the basis of uncertainty.

Cross-Complainant Gary Freedline shall have until October 18, 2022, to file a second amended cross-complaint. Any cross-complaint filed by Cross-Complainant Gary Freedline after this deadline may be dismissed, unless the parties stipulate to the filing or the court grants prior leave to file. (See Civil Proc. Code, § 581, subd. (f)(2).)

Cross-Defendants Roy Fenn, Peter Dang, Chris Hammerstone, and Jesse Dean (collectively, Cross-Defendants) demur to the 1st through 6th causes of action and the request for injunctive relief of the First Amended Cross-Complaint (FACC), and on the basis of uncertainty.

Standards for Demurrer

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)

Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)

Although courts should take a liberal view of inartfully drawn complaints, (see Civil Proc. Code, § 452), it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought, (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413). Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Civil Proc. Code, § 425.10, subd. (a).)

1st Cause of Action (Intentional Infliction of Emotional Distress)

To state a claim for intentional infliction of emotional distress, a plaintiff must establish: (i) extreme and outrageous conduct; (ii) intention to cause or reckless disregard of the probability of causing emotional distress; (iii) severe emotional suffering; and (iv) actual and proximate causation of the emotional distress. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)

“With respect to the requirement that a plaintiff show severe emotional distress, [the Supreme Court] has set a high bar. ‘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.’” (Hughes v. Pair, supra, 46 Cal.4th at p. 1051, quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004.)

The behavior must “‘go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499, fn. 5, quoting Rest. 2d Torts, § 46, com. d.) The complaint must plead specific facts that establish severe emotional distress resulting from defendant's conduct.” (Michaelian v. State Comp. Ins. Fund (1996) 50 Cal. App. 4th 1093, 1114.)

Here, the FACC, adequately pleads extreme or outrageous conduct –

specifically that Cross-Defendant Gregory Larson (Larson) and others engaged in a campaign of harassment and ostracization of Cross-Complainant Gary Freedline (Freedline) and his family for a year or more. (See Cross-Compl., ¶¶ 33, 35-36, 49-50, 54-56, 58-62, 78-79, 84, & 87.)

However, the FACC, does not allege facts indicating that Freedline suffered severe or extreme emotional distress. (Hughes v. Pair, supra, 46 Cal.4th at p. 1051 [holding that “discomfort, worry, anxiety, upset stomach, concern, and agitation” were insufficient to support claim for intentional infliction of emotional distress].)

2nd Cause of Action (Negligent Infliction of Emotional Distress)

Negligent infliction of emotional distress is a form of negligence and the elements of the cause of action are the same: (i) duty; (ii) breach of that duty by the defendant; (iii) breach as the proximate cause of harm to the plaintiff; and (iv) the plaintiff’s damages. (Huggins v. Longs Drug Stores Cal., Inc. (1993) 6 Cal.4th 124, 151.)

In determining “duty” in negligent infliction of emotional distress cases, courts typically analyze the issue by reference to two theories of recovery: the “bystander” theory and the “direct victim” theory. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071.) The distinction between the bystander and direct victim cases is found in the source of the duty owed by the defendant to the plaintiff. Direct victim cases involve the breach of a duty owed to the plaintiff that was assumed by the defendant, imposed on the defendant as a matter of law, or arose out of a preexisting relationship between the two. (Huggins v. Longs Drug Stores Cal., Inc., supra, 6 Cal.4th at pp. 129–130.)

The 2nd cause of action of the FACC alleges that Cross-Defendants negligently engaged in certain actions, which resulted in injury and emotional distress to Cross-Complainant. (FACC, ¶ 101.) However, the FACC does not state facts sufficient to show that Cross-Defendants owed a duty to Freedline.

3rd Cause of Action (Slander Per Se)

The elements of a claim for slander or defamation are: (i) a publication that is (ii) false; (iii) defamatory; (iv) unprivileged; and (v) has a natural tendency to injure, or which causes special damages. (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) Slander is “per se” if it charges plaintiff with any of the following: criminal activity, contagious, infectious or loathsome disease, unethical or incompetent business conduct, and impotence or unchastity. (Civil Code, § 46.)

The third cause of action alleges Cross-Defendants published statements indicating that “Freedline has a mental illness, does not qualify to act on the board, that the children of the neighborhood are unsafe around him, that Freedline is dangerous and about to go ‘Postal’, Freedline posted a negative Yelp review of [Cross-Defendant Handy], and that they had the IP address to prove it, that Freedline should not be a scout leader, and that he should be banned from activities and shunned from the community.” (FACC, ¶ 111.)

The statements that Cross-Defendants are alleged to have made do not fall within the categories of slander per se as they do not relate to criminal activity, contagious, infectious or loathsome disease, unethical or incompetent business conduct, and impotence or unchastity.

4th Cause of Action (Harassment)

Pursuant to Civil Procedure Code section 527.6, “[a] person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in this section.” (Civil Proc. Code, § 527.6, subd. (a).)

Cross-Defendants argue that Section 527.6 does not create a cause of action. However, the court of appeal has stated that requests for restraining orders, including those made under Section 527.6, are “essentially a ‘cause of action’.” (Nakamura vs. Parker (2007) 156 Cal.App.4th 327, 335, citing Thomas vs. Quintero (2005) 126 Cal.App.4th 635, 647.)

However, Section 527.6 only allows for the following limited relief:

(A) An order enjoining a party from harassing, intimidating, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, abusing, telephoning, including, but not limited to, making annoying telephone calls, as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, or coming within a specified distance of, or disturbing the peace of, the petitioner. On a showing of good cause, in an order issued pursuant to this subparagraph in connection with an animal owned, possessed, leased, kept, or held by the petitioner, or residing in the residence or household of the petitioner, the court may do either or both of the following:

(i) Grant the petitioner exclusive care, possession, or control of the animal.

(ii) Order the respondent to stay away from the animal and refrain from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.

(B) An order enjoining a party from specified behavior that the court determines is necessary to effectuate orders described in subparagraph (A).

(Civil Proc. Code, § 527.6, subd. (b)(6).)

By this cause of action, Freedline is seeking compensatory damages and punitive damages. (See FACC, ¶¶ 129-131 & 133.) In a portion of the FACC not associated with any specific cause of action, Freedline also requests injunctive relief. However, the injunctive relief requested consists of:

[A] Court order [that] Cross-Defendants and their agents, officers,

managers, representatives, employees, and anyone acting on their behalf to be preliminarily and permanently enjoined from operating, conducting, administering and/or moderating a Facebook Group, either generally or in the name of Rancho Mission Viejo or surrounding communities. The current FB Group should be deleted without warning to members.

(FACC, ¶ 167.) Compensatory damages, punitive damages, and the injunctive relief requested in the FACC are not available under Section 527.6.

Freedline also requests attorney’s fees, (see FACC, ¶ 132), and Section 527.6(s) states that “[t]he prevailing party in an action brought pursuant to this section may be awarded court costs and attorney's fees, if any.” (Civil Proc. Code, § 527.6, subd. (s).) However, Freedline is not requesting any other relief available under Section 527.6, so he cannot be the prevailing party on this cause of action.) (fn.1)

(fn.1) Should any party seek relief under Section 527.6 in the future, the court notes that the Judicial Council has issued forms that are labelled “Mandatory” for the Request for Civil Harassment Restraining Orders, Temporary Restraining Order, and Response to Request for Civil Harassment Restraining Order. (See Judicial Council Form CH-100, CH-110, & CH-120.)

5th Cause of Action (Stalking)

To state a cause of action for the tort of stalking, a plaintiff must allege, among other things, that the defendant engaged in a pattern of conduct the intent of which was to follow, alarm, place under surveillance, or harass the plaintiff. (Civil Code, § 1708.7, subd. (a)(1).) “ ‘Pattern of conduct’ means conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of ‘pattern of conduct.’” (Civil Code, § 1708.7, subd. (b)(1).)

The plaintiff must also allege either that the defendant violated a restraining order or that “the defendant, as a part of [the aforementioned] pattern of conduct [ ], made a credible threat with either (i) the intent to place the plaintiff in reasonable fear for his or her safety, or the safety of an immediate family member, or (ii) reckless disregard for the safety of the plaintiff or that of an immediate family member. In addition, the plaintiff must have, on at least one occasion, clearly and definitively demanded that the defendant cease and abate his or her pattern of conduct and the defendant persisted in his or her pattern of conduct unless exigent circumstances make the plaintiff’s communication of the demand impractical or unsafe.” (Civil Code, § 1708.7, subd. (a)(3).)

The fifth cause of action alleges that Cross-Defendants followed Freedline online and in-person, and photographed and videotaped Freedline and his family. (FACC, ¶¶ 136-137 & 139.) The FACC also alleges Cross-Defendants made statements that included a “call to lynch and boycott Freedline if he appeared at a ‘meet and greet’ provided by the HOA, and other community functions.” (FACC, ¶ 149.) The FACC also plead that Freedline demanded that Cross-Defendants cease and abate their conduct, but Cross-Defendants continued. (FACC, ¶ 157.)

Freedline’s allegations are general and contain no specific facts, including the specific Cross-Defendant who committed the act, when the act occurred, how often the act occurred, and where each such act occurred. The allegations are insufficient to demonstrate the required “pattern of conduct.”

6th Cause of Action (Declaratory Relief)

While the caption page of the FACC lists a 6th cause of action for declaratory relief, the body of the FACC contains no 6th cause of action or any allegations in support of a 6th cause of action. The FACC also contains no request or prayer for any specific declaratory relief or declaratory relief in general. The court will therefore sustain the demurrer to the 6th cause of action.

Request for Injunctive Relief

The FACC, contains a request for injunctive relief. (See FACC, ¶¶ 164-168.) An injunction “is an equitable remedy for certain torts or wrongful acts of a defendant where a damage remedy is inadequate. A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action for tort or other wrongful act against a defendant and that equitable relief is appropriate.” (Benasra v. Mitchell Silberberg & Knupp (2002) 96 Cal.App.4th 96, 110.)

Because “[i]njunctive relief is a remedy, not a cause of action (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 65), this request is not subject to demurrer. Any issues with the request for injunctive relief should be brought in a motion to strike.

Uncertainty

Cross-Defendants also demur to the FACC as uncertain.

“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.) Demurrers for uncertainty “are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) “[A] demurrer for uncertainty will not be sustained where the facts claimed to be uncertain or ambiguous are presumptively within the knowledge of the demurring party.” (Ching (Yee) v. Dy Foon (1956) 143 Cal.App.2d 129, 136.)

Here, no cause of action is so incomprehensible that Cross-Defendants cannot reasonably respond.

Motion to Strike

Cross-Defendants Peter Dang’s, Jesse Dean’s, Roy Fenn’s, and Chris Hammerstone’s motion to strike portions of the First Amended Cross-Complaint is taken OFF CALENDAR as moot.

Cross-Defendants Peter Dang’s, Jesse Dean’s, Roy Fenn’s, and Chris Hammerstone’s request for attorney’s fees is DENIED.

Cross-Defendants Roy Fenn, Peter Dang, Chris Hammerstone, and Jesse Dean (collectively, Cross-Defendants) move to strike the entirety of the First Amended Cross-Complaint (FACC), selected allegations of the FACC, and the prayer for punitive damages in the FACC of Cross-Complainant Gary Freedline.

The court has sustained the demurrer of Cross Defendants as to all causes of action contained in the FACC. Therefore, the motion to strike the entirety of the FACC or selected allegations of the FACC is moot. Even if some of the prayers for relief continue to stand, they cannot be granted without an operative cause of action.

Cross-Defendants assert that “Code of Civil Procedure § 575.2 authorizes courts to order a party or his or her counsel ‘to pay to the moving party the reasonable expenses in making the motion, including reasonable attorney fees.’” (Mot. to Strike at p. 9:24-26.)

However, Section 575.2 states that “[l]ocal rules promulgated pursuant to Section 575.1 may provide that if any counsel, a party represented by counsel, or a party if in pro se, fails to comply with any of the requirements thereof, the court on motion of a party or on its own motion may strike out all or any part of any pleading of that party, or, dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, or impose other penalties of a lesser nature as otherwise provided by law, and may order that party or his or her counsel to pay to the moving party the reasonable expenses in making the motion, including reasonable attorney fees.”

Here, Cross-Defendants point to no local rule that would allow the court to order the payment of attorney’s fees under these circumstances.

Cross-Defendants shall give notice of this ruling.