Judge Robert B. Broadbelt, Case Number: 22STCV33631, Date: 2024-11-21 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 22STCV33631, Date: 2024-11-21 Tentative Ruling

The court considered the moving, opposition, and reply papers filed in connection with the demurrer and motion to strike.

Defendant University of Southern California (“Defendant”) moves the court for an order sustaining its demurrer to the Complaint filed in this action by plaintiff Jeffrey Ito (“Plaintiff”).

The court sustains Defendant’s demurrer to Plaintiff’s Complaint because it does not state facts sufficient to constitute a cause of action since (1) to the extent that Plaintiff is alleging an invasion of privacy claim, Plaintiff has not alleged facts establishing that Defendant intruded into a private matter or place in a manner highly offensive to a reasonable person, instead alleging, without sufficient supporting facts, that Defendant and the other nonmoving defendants “were spying on the contents of [Plaintiff’s] conscious experience” and invaded his genomic privacy (Compl., ¶¶ 23, 39),[1] and (2) to the extent that Plaintiff is alleging negligence (see Compl., ¶¶ 36, 38, 44), Plaintiff has not (i) identified a legal duty on the part of Defendant “to connect [Plaintiff] with a vision research laboratory” (Compl., ¶ 36) and has not alleged facts—instead alleging his belief—that Defendant has intercepted emails sent from Plaintiff’s USC email address (Ibid.), (ii) alleged facts establishing that Defendant knew or should have known that hiring employees Michele Morgan, Ben Larson, Yannis Yortsos, Steve Schrader, and Carol Folt created a particular risk or hazard that materialized (Compl., ¶ 38), or (iii) alleged the existence of a legal duty on the part of Defendant not to communicate with Kaiser Permanente (Compl., ¶ 44). (Code Civ. Proc., § 430.10, subd. (e); Mezger v. Bick (2021) 66 Cal.App.5th 76, 87 [elements of common law invasion of privacy claim]; Romero v. Los Angeles Rams (2023) 91 Cal.App.5th 562, 567 [elements of negligence]; McKenna v. Beesley (2021) 67 Cal.App.5th 552, 566 [describing liability based on theory of negligent hiring, supervision, and retention of an unfit employee].)

The court notes that, in his opposition to Defendant’s demurrer, Plaintiff has argued that his Complaint states causes of action for invasion of privacy, negligence, and intentional infliction of emotional distress. (Opp., pp. 10:26-11:9.) As to the invasion of privacy and negligence causes of action, the court has found, as set forth above, that the Complaint does not state facts sufficient to constitute those causes of action. As to intentional infliction of emotional distress, the court notes that Plaintiff did not fairly identify that cause of action in his Complaint, instead alleging only a single sentence that Defendant intentionally caused his emotional distress. (Compl., ¶ 38.) In addition, the court finds that Plaintiff has not stated facts sufficient to constitute a cause of action for intentional infliction of emotional distress since he has not alleged that Defendant’s conduct was so extreme as to exceed all bounds of decency in a civilized community and therefore has not alleged the element of extreme and outrageous conduct. (Code Civ. Proc., § 430.10, subd. (e); Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273 [elements of intentional infliction of emotional distress].)

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”¿ (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)¿ To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The court finds that Plaintiff has not met his burden to show how he can amend his Complaint to render it sufficient against Defendant. The court therefore sustains Defendant’s demurrer without leave to amend.

Defendant moves the court for an order striking from Plaintiff’s Complaint (1) the allegations that Defendant failed to comply with various statutes, (2) the request for interest, and (3) the request for attorney’s fees.

For the reasons set forth above, the court has sustained Defendant’s demurrer to Plaintiff’s Complaint without leave to amend. The court therefore denies as moot Defendant’s motion to strike.

The court sustains defendant University of Southern California’s demurrer to plaintiff Jeffrey Ito’s Complaint without leave to amend.

The court denies as moot defendant University of Southern California’s motion to strike portions of plaintiff Jeffrey Ito’s Complaint.

The court orders defendant University of Southern California to prepare, serve, and lodge a proposed judgment of dismissal no later than 10 days from the date of this order.

The court orders defendant University of Southern California to give notice of this ruling.

[1] The court notes that it appears that Plaintiff has alleged that the person that committed the subject intrusion is Joel Waltz, not Defendant. (Compl., ¶ 19; Compl., Ex. A, pp. 7, 9.)

jeffrey ito ; Plaintiff, vs. michele morgan , et al.; Defendants.	Case No.:	22STCV33631

	Hearing Date:	November 21, 2024

	Time:	10:00 a.m.

	[tentative] Order RE: (1) defendant’s demurrer to complaint (2) defendant’s motion to strike portions of complaint