Judge Virginia Keeny, Case 21VECV01072 2023-01-06 Tentative Ruling

Judge: Virginia Keeny, Case: 21VECV01072, Date: 2023-01-06 Tentative Ruling

Case Number: 21VECV01072 Hearing Date: January 6, 2023 Dept: W

ALEJANDRA MORENO v. MARIA ARROYO

demurrer

Date of Hearing: January 6, 2023 Trial Date: None set.

Department: W Case No.: 21VECV01072

Moving Party: Defendant Maria Arroyo

Responding Party: Plaintiff Alejandra Moreno

Meet and Confer: Yes. (Kritzer Decl. ¶¶8.)

BACKGROUND

Plaintiff Alejandra Moreno alleges Defendant Morano contacted two of her relatives to let them know that Plaintiff’s son had vandalized her car. Plaintiff alleges Defendant provided video of the home surveillance, but you cannot see the face of the person throwing rocks at her car. Plaintiff further alleges that one of her relatives without investigation, confronted Plaintiff and told Plaintiff her son vandalized Defendant’s car. Plaintiff asked her son what he had done and he denied it. As a result of Defendant’s false accusations, Plaintiff alleges she has suffered economic loss and exposed Plaintiff to necessary and unfair damages.

On August 13, 2021, Plaintiff filed a complaint against Defendant for defamation. The court sustained the demurrer to the complaint and on March 25, 2022, Plaintiff filed a first amended complaint. On November 21, 2022, Plaintiff filed a second amended complaint asserting causes of action for civil harassment, emotional distress, and defamation.

[Tentative] Ruling

Defendant Arroyo’s Demurrer is SUSTAINED, in part.

DISCUSSION

Defendant demurs on the grounds the second amended complaint and all causes of action are uncertain and fail to state facts sufficient to constitute a cause of action against Defendant.

Civil Harassment

Although the caption page of the second amended complaint alleged three causes of action, including one for civil harassment, the body of the complaint only alleges two causes of action against Defendant – emotional distress and defamation.

As a result, the court will only address the demurrer as to the emotional distress and defamation claim. Any allegations regarding harassment will be addressed in the motion to strike.

Emotional Distress

Defendant first argues the cause of action is untimely. Defendant contends it isn’t until the second amended complaint that Plaintiff alleged a supposed traumatic event that occurred in 2020. Moreover, although the SAC is dated October 20, 2022 (it was not signed with a real signature), it was not served on Defendant’s counsel until November 10, 2022 and was not filed with the Court until November 21, 2022 which presents issues regarding whether this claim is barred under the statute of limitations entirely.

When a demurrer to a complaint is sustained, the sustaining court has the authority to grant leave to amend the defective pleading, and set a time within which an amended complaint must be filed. (Cal. Code of Civ. Proc. §473(a) (1).) If the amended complaint is untimely filed according to the deadline set by the court, it is vulnerable to a demurrer or a motion to strike and may be properly dismissed without leave to amend. (Cal. Code of Civ. Proc. §§430.10, 436, 581(f)(2).) Such a dismissal, however, is discretionary on the part of the court. (Harlan v. Department of Transportation (2005) 132 Cal.App.4th 868, 873-874.) A court may, if it determines that the facts warrant, waive the untimeliness of the amended complaint.

Accordingly, the court will not sustain the demurrer for Plaintiff’s failure to timely file and serve the second amended complaint. The court admonishes Plaintiff, however, to follow all orders of the court moving forward.

Next, Defendant argues Plaintiff fails to join indispensable parties. The proper test for determining whether a party is indispensable is defined by Code of Civil Procedure section 389, whereby a court first determines whether a third party is necessary to the action, and then determines whether the action may proceed with the action with the third party (third party not indispensable) or must instead be dismissed (for failure to join the indispensable third party).¿ (See CCP §¿389(a)-(b).)¿The court finds neither Gonzalez nor Hernandez are indispensable parties. Any relief, if granted, would not injure or affect Arroyo if either were not joined. However, the court does note that the harassment allegations in 2020, if relief was granted against Arroyo, would injure Defendant. The court will discuss these allegations in the motion to strike.

Lastly, Defendant argues Plaintiff has failed to state a claim. The court agrees. The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Moncada, supra, 221 Cal.App.4th at 780 (quoting Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883).) The statute of limitations for intentional infliction of emotional distress is two years. (See CCP § 335.1; Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444, 1450.) Negligent infliction of emotional distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply. (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.)

Plaintiff fails to allege any extreme or outrageous conduct by Defendant Arroyo. Plaintiff alleges Defendant contacted her uncle, Gonzalez, and cousin, Hernandez, and informed them that Plaintiff Reyes had vandalized her car. Plaintiff fails to allege any conduct directly towards herself. Moreover, if Plaintiff is pleading negligent infliction, Plaintiff has failed to allege any duty owed towards her by Defendant.

The court also wants to note a plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. (See Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) As a result, the court finds the emotional distress claim is outside the scope of the amendment.

Accordingly, Defendant’s demurrer to the intentional infliction of emotional distress cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Defamation

This court has previously sustained the demurrer to Plaintiff Moreno’s claim for defamation based on lack of standing. Plaintiffs have now named Reyes Plaintiff in this action. However, the cause of action still names Plaintiff Moreno. As discussed below, the court strikes Moreno from the cause of action.

The court finds Plaintiff Reyes has sufficiently alleged facts sufficient a cause of action for defamation. The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) The court previously addressed this cause of action as to Plaintiff Reyes at the September 21, 2022 hearing. The court found:

As discussed above, it appears this cause of action is based on Defendant’s alleged false claim that Plaintiff Reyes had vandalized her vehicle. (Amended Complaint, p. 6: 3-10.) As Defendant’s claim appears to have been orally made to her uncle and cousin, it appears this defamation claim is based on slander. “‘Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: [¶] 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; [¶] 2. Imputes in him the present existence of an infectious, contagious, or loathsome disease; [¶] 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; [¶] 4. Imputes to him impotence or a want of chastity; or [¶] 5. Which, by natural consequence, causes actual damage.’” (Regalia v. Nethercutt Collection (2009) 172 Cal.App.4th 361, 367 (quoting Civil Code section 46).) “A slander that falls within the first four subdivisions of Civil Code section 46 is slander per se and require no proof of actual damages.” (Id.) “A [s]lander that does not fit into those four subdivisions is slander per quod, and special damages are required for there to be any recovery for that slander.” (Id.)

The alleged false claim Defendant made was that Plaintiff Reyes had vandalized her vehicle. (Amended Complaint, p. 3:27-28.) Given vandalism is a crime, Defendant’s alleged false claim tends to charge Plaintiff Reyes with a crime, meaning Defendant’s purportedly false claim constitutes slander per se under Civil Code section 46. To this extent, no actual damages have to be proved, much less pled, in order to recover damages. Plaintiff Reyes’ allegations that Defendant falsely claimed to her uncle and cousin that Reyes had vandalized her vehicle; that Defendant’s uncle and cousin believed that Plaintiff Reyes caused the altercation involving Defendant’s vehicle; that Plaintiff Reyes has been disowned by his family; and that this caused harm to Reyes are sufficient to plead defamation based on slander against Defendant.

Defendant argues that the alleged statement is a non actionable opinion. The Court is unpersuaded by Defendant’s argument at this stage of the action.

Statements of facts are actionable, while statements of opinion are not. (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369.) However, “where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation.” (Id. at 1370.) “The critical question is not whether a statement is fact or opinion, but ‘whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” (Id. (quoting McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 113).) “‘To determine whether the statement is actional fact or nonactionable opinion, courts use a totality of circumstances test of whether the statement in question communicated or implies a provably false statement of fact.’” (Id. (quoting McGarry, supra, 154 Cal.App.4th at 113).)

Here, as pled, the false claim is that Plaintiff Reyes had vandalized Defendant’s vehicle. Whether Reyes had in fact vandalized Defendant’s vehicle tends to be an assertion that can be proven false. To this extent, it would appear the purported false claim is actionable.

Accordingly, the demurrer to the defamation claim as to Defendant Reyes is OVERRULED.

Motion to Strike

As noted above, although the caption page of the second amended complaint alleges three causes of action, including one for civil harassment, the body of the complaint only alleges two causes of action against Defendant – emotional distress and defamation. Plaintiff only addresses some form of harassment in paragraph 8 of the second amended complaint. The court strikes paragraph 8 as irrelevant and does not bolster any claims in the action against Defendant. Plaintiff has not done anything to alleges sufficient facts to state a claim for harassment. Moreover, without naming Hernandez or Gonzalez, such allegations may injure Defendant Arroyo if an action for harassment were to proceed.

Conclusion

In sum, only Defendant Reyes claim for defamation may proceed. Plaintiff Reyes to file an amended complaint, removing the stricken allegations within 20 days. Plaintiff Reyes must sign the amended complaint. Defendant to answer 30 days after the complaint is filed and served.