Judge: Stephen I. Goorvitch, Case: 20STCV30847, Date: 2023-03-13 Tentative Ruling

Case Number: 20STCV30847    Hearing Date: March 13, 2023    Dept: 39

Diane S. D’Amore, et al. v. David N. D’Amore, et al.

Case No. 20STCV30847

Defendants’ Motion for Summary Judgment

INTRODUCTION

            Plaintiffs Diane S. D’Amore (“Diane D’Amore”) and Brad Bose (“Bose”) (collectively, “Plaintiffs”) filed this action against David N. D’Amore (“David D’Amore”) Marty Lemon (“Defendant Lemon”), and Defendant Ronnen Sigal (“Defendant Sigal”), among others, asserting causes of action for stalking, invasion of privacy, intentional infliction of emotional distress, negligent infliction of emotional distress, injunctive relief, and conspiracy.  This action stems from the divorce case of Diane D’Amore and David D’Amore.  David D’Amore hired Ronnen Sigal to take photographs of Diane D’Amore’s vehicles at Bose’s residence to attempt to prove they were cohabitating in order to reduce David D’Amore’s spousal support.  Previously, Plaintiffs sought to add David D’Amore’s family law attorney as a defendants, which the Court denied pursuant to Civil Code section 1714.10.  Now, Defendants move for summary judgment, which Plaintiffs oppose.  The motion is granted. 

LEGAL STANDARD 

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.”  (Code Civ. Proc., § 437c, subd. (f)(1).) 

EVIDENTIARY ISSUES

            The Court sustains Plaintiff’s objections, which were filed on February 27, 2023.  Defendants filed no objections. 

DISCUSSION

            A.        Stalking

            Plaintiffs’ first cause of action is for stalking.  In order to prevail on a civil stalking claim, Plaintiffs must demonstrate that: (1) Defendants engaged in a pattern of conduct with the intent of following, alarming, or harassing Plaintiffs; (2) As a result, Plaintiffs reasonably feared for their safety or the safety of a family members; and (3) Defendants “made a credible threat” intended to place Plaintiffs in reasonable fear for their safety or the safety of a family member and, on at least one occasion, Plaintiffs “clearly and definitively” demanded that Defendants cease their activities.  (Civ. Code, § 1708.7(a); see also In re Brittany K. (2005) 127 Cal.App.4th 1497, 1510.)

            Defendants rely on David D’Amore’s declaration, which states that he hired his friend, Defendant Sigal, who is not a licensed private investigator, to take photographs of Diane D’Amore’s unoccupied vehicle at Bose’s residence.  (Defendants’ Exhibits, Exh. A, ¶ 4.)  David D’Amore states that he also took video of Diane D’Amore driving to and from Bose’s residence.  (Ibid.)  David D’Amore establishes that there was no contact between him/Sigal and Plaintiffs during these surveillance activities.  (Id., ¶¶ 4, 6.)  Accordingly, this evidence is sufficient to establish that Defendants made no “credible threat” intended to place Plaintiffs in reasonable fear for their safety after they “clearly and definitively” demanded that Defendants cease the surveillance.  Plaintiffs do not advance any evidence to the contrary.  There is no “credible threat.”  There is no evidence Defendants’ surveillance was intended to terrorize Plaintiffs.  To the contrary, the evidence is that Defendants’ surveillance was for litigation purposes.  There is no evidence that the surveillance continued after Plaintiffs demanded that it cease.  Therefore, the Court grants summary adjudication of the first cause of action.

            B.        Invasion of Privacy

            Plaintiffs’ second cause of action is for invasion of privacy.  In order to prevail, Plaintiffs must demonstrate that Defendants trespassed onto Plaintiffs’ property “in order to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person.”  (Civ. Code, § 1708.8; see also (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.)  As discussed, Defendants’ evidence suggests that the surveillance was conducted from public places.  Bose’s testimony suggests that Defendant Sigal may have entered a shared parking garage to take photographs of Diane D’Amore’s unoccupied car.  Even if this constitutes a trespass, Plaintiffs’ claim still fails.  There is no evidence that Defendants took videos of Plaintiffs engaging in private, personal, or familial activities.  Nor is entering a shared parking garage to take photographs of an unoccupied vehicle without disturbing the owner offensive.  Therefore, the Court grants summary adjudication of the second cause of action.    

            C.        Intentional Infliction of Emotional Distress

            Plaintiffs’ third cause of action is for intentional infliction of emotional distress.  In order to prevail, Plaintiffs must demonstrate the following: (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 of severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)  Defendants’ evidence satisfies their burden of establishing that there was no outrageous conduct with the intention of causing emotional distress. 

Plaintiffs rely on Diane D’Amore’s deposition testimony.  Diane D’Amore testified that she received an anonymous text that “David [D’Amore] had a video camera in front of my home and was taking a video of me.”  (Declaration of S. Roger Rombro, Exh. A, p. 19.)  Diane D’Amore testified: “All I was told was that David [D’Amore] had a video camera in front of my house and was taking video of me.”  (Id., Exh. A, p. 20.)  However, there is no evidence that this anonymous text was sent by any defendant (especially since it was not accurate).  Nor is there any evidence that Defendants intentionally or recklessly caused Plaintiffs emotional distress.  Secretly taking photographs of empty cars in order to prove cohabitation in a family law case, and secretly video recording someone driving to and from the alleged residence, is not the type of conduct giving rise to an IIED claim. 

The Court does not interpret Plaintiffs as predicating their third cause of action on David D’Amore’s use of the photographs and related statements during the family law case.  To the extent Plaintiffs intend to do so, there still is no viable claim based upon the litigation privilege.  To be privileged, a statement must be made in a judicial proceeding, by a litigant or other authorized participant, with the aim of achieving the litigation’s objectives, and with some logical connection or relation to the proceeding.  (See Silk v. Feldman (2012) 208 Cal.App.4th 547, 555.)  The evidence is clear that David D’Amore sought to develop this evidence in order to prove that Diane D’Amore was cohabitating and therefore was not entitled to as much spousal support.  (See Plaintiff’s Exhibits, Exh. #2.)  Accordingly, the Court grants summary adjudication of the third cause of action.

            D.        Negligent Intention of Emotional Distress

            Plaintiff’s fourth cause of action is for negligent infliction of emotional distress.  There is no independent tort of negligent infliction of emotional distress; the tort is negligence.  (Christensen v. Superior Court (1991) 54 Cal.3d 868, 884.)  The traditional elements of negligence apply: Duty, breach, causation, damages.  (Ericksson v. Nunnink (2015) 233 Cal.App.4th 708, 729.)  There is no evidence of any duty under these circumstances.  Therefore, the Court grants summary adjudication of the fourth cause of action.

            E.         Injunctive Relief

            Plaintiff’s fifth cause of action is for injunctive relief.  This is a remedy, not an independent cause of action.  (Batt v. City and County of San Francisco (2007) 155 Cal.App.4th 65, 82.)  Therefore, the Court grants summary adjudication of the fifth cause of action.

            F.         Conspiracy

            Plaintiff’s sixth cause of action is for conspiracy.  “Civil conspiracy is not an independent tort.”  (Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 206.)  Therefore, the Court grants summary adjudication of the sixth cause of action.

CONCLUSION AND ORDER

            Based upon the foregoing, the Court orders as follows:

            1.         The Court grants Defendants’ motion for summary judgment. 

            2.         The Court enters judgment in favor of Defendants David D’Amore, Marty Lemon, and Ronnen Sigal, and against Plaintiffs Diane S. D’Amore and Brad Bose.  Defendants may lodge a proposed judgment if necessary.

            3.         The remaining defendants are in default.  Therefore, the Court issues an Order to Show cause why these defendants should not be dismissed without prejudice for failure to submit a default judgment packet, which is a lack of prosecution under Code of Civil Procedure sections 581 and 583.  The Court orders Plaintiffs’ counsel to file a default judgment packet or a request for dismissal of these defendants on or before March 30, 2023. 

            4.         The Court shall hold a hearing on the OSC re: Dismissal on April 7, 2023, at 8:30 a.m. at the following location:

Stanley Mosk Courthouse

111 North Hill Street

Department #39 (Goorvitch, J.)

Los Angeles, California 90012

Plaintiffs’ counsel may appear remotely or in-person.  The Court provides notice that if Plaintiffs’ counsel has not submitted a default judgment packet supported by admissible evidence, absent good cause, the Court will dismiss the defaulted defendants without prejudice.  The Court provides notice that if Plaintiffs’ counsel does not appear at the hearing, either remotely or in-person, absent good cause, the Court will dismiss the defaulted defendants without prejudice.

            5.         Defendants’ counsel shall provide notice and file proof of such with the Court.