Judge Wesley L. Hsu, Case 23PSCV00546 2023-05-09 Tentative Ruling

Judge: Wesley L. Hsu, Case: 23PSCV00546, Date: 2023-05-09 Tentative Ruling

Case Number: 23PSCV00546 Hearing Date: May 9, 2023 Dept: L

Defendant Composites Horizons, LLC’s Demurrer to Plaintiff’s Complaint is SUSTAINED. The court will hear from Plaintiff as to whether leave to amend is requested, and will require an offer of proof if so.

Background

Plaintiff Jeffrey Ito (“Plaintiff”) alleges as follows:

On February 7, 2022, Plaintiff contacted Defendant Composites Horizons, LLC (“Defendant”) and advised Tim Shumate (“Shumate”), Defendant’s Vice President of Business Development, that one of Defendant’s employees, Joel Waltz, was “spying on the contents of [Plaintiff’s] conscious experience using parallel distributed processing (PDP) also known as connectionism. Plaintiff followed up with Shumate via email but did not receive a response. Plaintiff also subsequently contacted Defendant’s business support on its Facebook page regarding the above, but never received any follow-up and was subsequently intentionally blocked from making any further contact.

On February 27, 2023, Plaintiff filed a complaint, asserting a cause of action against Defendant for:

1. Invasion of Privacy

A Case Management Conference is set for July 19, 2023.

Legal Standard

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) & (f).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

Defendant demurs to Plaintiff’s complaint, on the basis that it fails to state facts sufficient to constitute a cause of action and is uncertain.

At the outset, Plaintiff’s complaint that Defendant’s demurrer was untimely filed is incorrect. While a demurrer is due 30 days after service (Code Civ. Proc., § 430.40), California Rules of Court rule 1.10 provides that “[t]he time in which any act provided by these rules is to be performed is computed by excluding the first day and including the last, unless the last day is a Saturday, Sunday, or other legal holiday, and then it is also excluded.” Here, court records reflect that personal service was effectuated on Defendant on March 1, 2023. The 30th day fell on Friday, March 31, 2023, which was a court holiday. The time to respond was automatically extended by operation of the rule to the next court day, which was Monday, April 3, 2023, the day the demurrer was filed.

Plaintiff’s complaint is comprised of one cause of action, for Invasion of Privacy.“[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40.) Plaintiff has not alleged that Defendant engaged in conduct constituting a serious invasion of his privacy; rather, Defendant is identified as the entity to whom Plaintiff reached out on three occasions (i.e., via a phone call and email on February 7, 2023 and a text exchange via Facebook Messenger on March 4, 2023) to report that Defendant’s employee, Joel Waltz (“Waltz”) was “spying on the contents of his conscious experience using parallel distributed processing (PDP) also known as connectionism.” (Complaint, ¶¶ 6-8).

Additionally, although Plaintiff has alleged that Waltz was Defendant’s employee, Plaintiff has nowhere alleged that Defendant is vicariously liable for Waltz’s actions. “Under the doctrine of respondeat superior, an employer is vicariously liable for his employee's torts committed within the scope of the employment.” (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967.) Plaintiff has not alleged that Waltz was acting within the scope of his employment when he allegedly invaded the content of Plaintiff’s conscious experience.

Although not identified as a distinct cause of action, Plaintiff alleges Defendant’s negligence in the body of the complaint. “The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.” (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) Plaintiff has alleged that Defendant “owed a reasonable duty of care to him as an individual and ha[s] been negligent in providing the Plaintiff with further support” in addressing his allegations of Waltz’s conduct. (Complaint, ¶ 10.) Plaintiff has further alleged that Defendant “failed to properly supervise, control, and direct its employees as follows (1) failure to provide business support in a timely manner (2) failure to provide resources at the time of communication or connect the Plaintiff with relevant resources thereafter (3) failure to establish and enforce a policy to limit the invasion of privacy concerns that the Plaintiff is bringing to the Superior Court of the State of California and (4) such other negligence as may be discovered in preparation of the trial of this matter.” (Id., ¶ 11). Plaintiff, however, has failed to set forth a basis for any duty Defendant somehow owed to him to provide business support, investigate his claims or otherwise follow his instructions, including his recommendation for Waltz’s “demotion and placement into prison for his actions.” (Id., Exh. A.)

Plaintiff also references “negligent infliction of emotional distress.” (Id., ¶ 10). “There is no independent tort of negligent infliction of emotional distress; rather, the tort is negligence. . .” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4^th 182, 205 [quotation marks and citation omitted].) Further, it appears that Plaintiff is asserting a “direct victim” claim for negligent infliction of emotional distress, which involves “cases in which the plaintiff's claim of emotional distress is not based upon witnessing an injury to someone else, but rather is based upon the violation of a duty owed directly to the plaintiff.” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205.) Again, however, Plaintiff has not alleged any legal duty owed by Defendant.

Defendant’s demurrer is sustained.