Judge: Robert B. Broadbelt, Case: 23STCV04548, Date: 2024-11-27 Tentative Ruling

Case Number: 23STCV04548    Hearing Date: November 27, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:              Cross-defendants Cathy Kay and Tina Vo    

RESPONDING PARTIES:    Cross-complainants Cristina Marie Dam and Liberate Hollywood, Inc.

Demurrer to Amended Cross-Complaint

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

DISCUSSION

Cross-defendants Tina Vo (“Vo”) and Cathy Kay (“Kay”) (collectively, “Cross-Defendants”) move the court for an order sustaining their demurrer to the sixth and seventh causes of action alleged by cross-complainants Cristina Marie Dam (“Dam”) and Liberate Hollywood, Inc. (collectively, “Cross-Complainants”) in their Amended Cross-Complaint.

The court sustains cross-defendant Vo’s demurrer to the fifth cause of action for intentional infliction of emotional distress because it does not state facts sufficient to constitute a cause of action against Vo since cross-complainant Dam has not alleged facts establishing that Vo’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 court finds that Dam’s allegations that Vo coerced Dam to enter into the second, illusory agreement (FACC ¶¶ 44-48) do not allege extreme and outrageous conduct.  The court also acknowledges that Dam has alleged that Vo “continued to harass, threaten, and coerce Ms. Dam to continue to make payments from her personal funds” (FACC ¶ 122) and that Vo “continued her campaign of harassment and psychological abuse” until 2022, including by appearing at Dam’s place of work to talk to employees about the financial condition of the business (FACC ¶ 124).  However, Dam did not allege facts establishing that Vo’s conduct rose to the level of harassment or abuse, and the court finds that the allegations regarding Vo’s alleged abuse and harassment are conclusory.  (Ibid.)

The court sustains Cross-Defendants’ demurrer to the sixth cause of action for negligent misrepresentation because it does not state facts sufficient to constitute a cause of action since Cross-Complainants have not alleged the elements of this cause of action with the requisite particularity.  (Code Civ. Proc., § 430.10, subd. (e); Foster v. Sexton (2021) 61 Cal.App.5th 998, 1028 [“For policy reasons, some causes of action, such as fraud and negligent misrepresentation, must be pleaded with particularity . . . .”].) 

For example, while Cross-Complainants have alleged that Vo misrepresented to Dam “that the alleged loan was to be paid when the business was able to make the payments” (FACC ¶ 135), Cross-Complainants did not allege (1) that Vo made this representation without reasonable ground for believing it to be true, (2) with the intent to induce Cross-Complainants’ reliance thereon, and (3) that Cross-Complainants justifiably relied on the representation.[1]  (Borman v. Brown (2021) 59 Cal.App.5th 1048, 1060 [elements of negligent misrepresentation].)  Further, while the court notes that Cross-Complainants have alleged that Vo coerced Dam into entering into the second agreement, those facts appear to allege not that Vo made a misrepresentation regarding the validity of the agreement to Dam, but rather, that Vo demanded that Dam enter into the agreement.  (FACC ¶¶ 38, 42, 45, 133.)  The court also finds that Cross-Complainants have not alleged any misrepresentations made, without reasonable ground for believing them to be true, by cross-defendant Kay.  (Borman, supra, 59 Cal.App.5th at p. 1060.)  Instead, the only misrepresentation alleged in support of this cause of action is the misrepresentation made by defendant Vo.  (FACC ¶ 153.)

The burden is on the plaintiff or the cross-complainant “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 or cross-complainant “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 Cross-Complainants have not met their burden to articulate how they can amend their fifth and sixth causes of action to render them sufficient against Vo and Cross-Defendants, respectively.  The court therefore sustains Cross-Defendants’ demurrer without leave to amend.

ORDER

            The court sustains cross-defendant Tina Vo’s demurrer to cross-complainant Cristina Marie Dam’s fifth cause of action for intentional infliction of emotional distress without leave to amend.

The court sustains cross-defendants Tina Vo and Cathy Kay’s demurrer to cross-complainants Cristina Marie Dam and Liberate Hollywood, Inc.’s sixth cause of action for negligent misrepresentation without leave to amend.

The court orders cross-defendants Tina Vo and Cathy Kay to file an answer to cross-complainants Cristina Marie Dam and Liberate Hollywood, Inc.’s Amended Cross-Complaint within 10 days of the date of this order.

            The court orders cross-defendants Tina Vo and Cathy Kay to give notice of this ruling.

IT IS SO ORDERED.

DATED:  November 27, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court