Judge: Olivia Rosales, Case: 21NWCV00237, Date: 2022-08-02 Tentative Ruling

Case Number: 21NWCV00237    Hearing Date: August 2, 2022    Dept: SEC

TAK v. JJB, INC., et al.

CASE NO.:  21NWCV00237

HEARING: 8/2/22 @ 1:30 PM

JUDGE:  MARGARET M. BERNAL

#5

TENTATIVE RULING

Defendant JJB, Inc.’s demurrer is MOOT.  Plaintiff has dismissed JJB, Inc. from the SAC.

Defendant Jung’s demurrer to Plaintiff’s second amended complaint is OVERRULED as to uncertainty, and SUSTAINED without leave to amend on the ground that the SAC fails to state facts sufficient to constitute a cause of action.

Defendant Jung to give NOTICE.

Defendants JJB, Inc. and Jung demur to the 1^st – 2^nd causes of action on the grounds that they fail to state facts sufficient to constitute a cause of action and are uncertain.

This action sounding in defamation was filed by Plaintiff Jae Dong Tak (pro per) on April 21, 2021. The operative Second Amended Complaint (“SAC”) alleges that on April 3, 2021, Tak was in the course of playing golf with crucial business partners, when Defendant Harry Jung intentionally and loudly yelled loudly in the Korean language.  (SAC, ¶¶ 6-8.)  The English version of the shouting in the previous complaints was “YOU Deadbeat Pay my money,” but in the SAC, it is, “Hey you bastard, just pay me my money back!  You, bastard.” (SAC, ¶ 17.)  Plaintiff alleges that Jung’s actions left Plaintiff feeling embarrassed and disgraced, and that all potential business deals for the day were “broken and destroyed.” (SAC, ¶ 10.)  Based on thereon, the SAC asserts causes of action:

1.    Defamation

2.    Intentional Infliction of Emotional Distress

As to JJB, Inc.:

The SAC does not name JJB, Inc. as a Defendant.  Therefore, Defendant JJB, Inc.’s demurrer is MOOT.

As to Jung:

SPECIAL DEMURRER:  UNCERTAINTY

“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.) A demurrer for uncertainty will be sustained only where the complaint is so bad that a defendant cannot reasonably respond. (Ibid.)

The court finds that the SAC is not so uncertain that Defendants cannot reasonably respond.  Accordingly, the demurrer based on uncertainty is OVERRULED.

GENERAL DEMURRER:  FAILURE TO STATE FACTS

1^st Cause of Action:

DEFAMATION:  “Slander is a form of defamation [cite], consisting of a false and unprivileged oral publication. [Cite.] To establish a prima facie case for slander, a plaintiff must demonstrate an oral publication to third persons of specified false matter than has a natural tendency to injure or that causes special damage. [Cite.]” (City of Costa Mesa v. D’Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 375-376.) “Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage.” (Ringler Associates, Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1179.) In order to be defamatory, statements must be provably false, and must be able to be reasonably interpreted as stating actual facts about an individual. (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 27.) “Thus, ‘rhetorical hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and imaginative expression[s] of… contempt,’ and language used ‘in a loose, figurative sense’ have all been accorded constitutional protection,” (Id.) It is a question of law for the Court to decide “whether statements contain provably false factual assertions and whether they would reasonably be understood as assertions of fact as opposed to hyperbole, or loose figurative expression. [Citation.]” (Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1002.)

As this Court has ruled on the previous demurrers, the statement, “YOU Deadbeat Pay my money” is not defamatory, but rather an opinion.  Plaintiff’s new allegation that the translation should have been, “Hey you bastard, just pay me my money back!  You, bastard.” (SAC, ¶ 17.)  The court finds this statement is also not defamatory, but an opinion.

Plaintiff has received multiple opportunities to amend, but failed to allege a proper defamation claim.  Accordingly, the demurrer based on the failure to state facts is SUSTAINED without leave to amend as to the 1^st cause of action.

2^nd Cause of Action:

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:  A cause of action for intentional infliction of emotional distress exists when there is: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) Plaintiff suffers severe or emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. The defendant must either intend his or her conduct to inflict injury or engage in it with the realization that injury will result. Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) “[T]he plaintiff must allege with great specificity the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in civilized community.” (Vazquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 809, 832.)

Plaintiff failed to allege sufficient facts to support a claim for intentional infliction of emotional distress. Specifically, the facts alleged do not rise to the level of outrageousness necessary to maintain this claim.

Plaintiff has received multiple opportunities to amend, but failed to allege a proper IIED claim.  Accordingly, the demurrer based on the failure to state facts is SUSTAINED without leave to amend as to the 2^nd cause of action.