Case Number: BC683377 Hearing Date: August 06, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEMURRER TO FIRST AMENDED CROSS COMPLAINT; SUSTAINED WITHOUT LEAVE TO AMEND

I. BACKGROUND

On November 13, 2017, plaintiff Janice Townsend (“Townsend”) filed a complaint against defendant John Heffernan (“Heffernan”) (erroneously sued as John Hefferman) alleging a cause of action for domestic violence based on Civil Code section 1708.6. On January 8, 2018, Heffernan filed a cross complaint against Townsend. On June 4, 2018, Heffernan filed a first amended cross complaint (“FACC”) after the Court sustained Townsend’s demurrer and granted Townsend’s motion to strike. The FACC alleges causes of action for (1) domestic violence based on Civil Code section 1708.6(a) and California Penal Code section 13700(a), (2) assault, (3) battery and (4) intentional infliction of emotional distress (“IIED”). The FACC includes a prayer for punitive damages.

The FAC alleges that Heffernan and Townsend are husband and wife who were married on July 27, 2013 and separated on March 30, 2017. (Cross-Complaint ¶ 4.) Throughout the marriage, Townsend engaged in a pattern of domestic violence, assault, battery and IIED against Heffernan, often including erratic behavior filed by excessive alcohol consumption as well as prescription abuse and this conduct continued until the parties separated in March 30, 2017. (Id. ¶ 6.) The FACC details five separate incidents of alleged abuse.

First, in or around 2011 or 2012, the parties were in Heffernan’s condominium when during a verbal argument, Townsend grabbed a picture frame and slammed it in the bathroom floor thereby shattering the frame’s glass. (Id. ¶ 18.)

Second, in or around March 2014, during a vacation to Alaska, Townsend became angry and came within three or four inches on Heffernan’s face and began screaming at Heffernan which caused Heffernan to raise his forearm to protect his face because Townsend was approaching him in a manner that Heffernan reasonably believed would lead to bodily harm to him. (FACC ¶ 11.)

Third, on November 23, 2014, after Townsend and Heffernan had a verbal argument in the living room of their home, Heffernan decided to leave and go to the guestroom when Townsend got up and blocked Heffernan from leaving while screaming at Heffernan. (Id. ¶¶ 10, 14.) After getting away from Townsend and rejecting Townsend’s sexual advances, Heffernan eventually reached the guestroom but as he was closing the door, Townsend forcefully placed her foot in between the door and the doorframe thus preventing Heffernan from closing the door. (Id.) Townsend finally relented and allowed the door to close, however, Townsend retrieved a hammer and began to strike the guestroom door and the door knob with the hammer in order to enter the guestroom. (Id.) After hearing the banging on the door, Heffernan opened the door and saw Townsend holding the hammer mid-swing and realized that she had damaged the door and the doorknob. (Id.) When Heffernan opened the door, he saw Townsend holding the hammer mid swing and asked Townsend to put down the hammer. (Id.) Instead of stopping or putting down the hammer, Townsend continued to recklessly swing the hammer and in the process hit the doorframe again. (Id.) After the door was open, Townsend dropped the hammer on a nearby table and yelled that she just wanted to hold Heffernan. (Id.) Townsend then began to grab Heffernan’s arm despite Heffernan’s attempts to get away from this unconsented touching. (Id.) Heffernan eventually relented to Townsend’s unwanted touching and advances and the parties eventually slept in the same bed that same night. (Id.) Townsend then falsely accused Heffernan of sexual assault and filed two false police reports and made similar false allegations to Heffernan’s family members. (Id.)

The Fourth event occurred on or around December 2014, after Townsend had been drinking alcohol and initiated a verbal argument with Heffernan. (Id. ¶ 16.) In an effort to calm Townsend, Heffernan reach for her hand but Townsend forcibly yanked her hand away from Heffernan’s hand. Townsend later falsely accused Heffernan of injuring her hand. (Id.)

The final event occurred on March 30, 2017, when Townsend exploded into a fit of rage because Heffernan arrived home forty-five minutes late. (Id. ¶ 17.) Townsend followed Heffernan throughout the house and taunted him by taking the television remote and turning off the television. (Id.) Townsend demanded that Heffernan leave the house or she would call the police. (Id.) The police eventually arrived and suggested that Heffernan leave the house for the night. (Id.) When Heffernan returned the next day, he found that the locks to his home had been changed and thus he was denied entry into his home. (Id.)

On July 3, 2018, Townsend filed a demurrer to the FACC and a motion to strike portions of the FACC. Heffernan filed oppositions on July 26, 2018.

II. REQUEST FOR JUDICIAL NOTICE

The Court grants Townsend’s request for judicial notice of the original cross complaint filed by Heffernan pursuant to Evidence Code section 452(d).

III. LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP § 436.)

IV. DISCUSSION

a. Meet and Confer Requirement

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (CCP §§ 430.41 and 435.5.) The Court notes that Townsend has complied with the meet and confer requirement. (See Decl. Jaafari.)

b. Statute of Limitations

i. First Cause of Action: Domestic Violence

Townsend contends that Heffernan’s domestic violence cause of action is barred by the applicable three-year statute of limitation set forth by CCP section 340.15. Townsend argues that the allegations regarding the incident on March 30, 2017 do not arise to the level of “abuse” required to state a claim for domestic violence and thus the last act of domestic violence occurred on November 23, 2014. Since Heffernan did not file his original complaint until January 8, 2018, Townsend argues that the domestic violence cause of action is barred.

Heffernan opposes on the ground that since the most recent acts of abuse occurred on November 23, 2014 and since Townsend filed her complaint on November 13, 2017, Heffernan’s causes of action are timely pursuant to CCP section 340.15. Heffernan also seems to argue that if the incident that occurred on March 30, 2017 is coupled with the incident that occurred on November 23, 2014, it can be induced that Heffernan experienced a reasonable apprehension of imminent serious bodily injury thus constituting abuse. Thus, while not explicitly stated in the opposition papers, it seems that Heffernan is attempting to argue that March 30, 2017 may also constitute the last act of abuse and thus that is when the limitations period began to run, effectively meaning that Heffernan’s claims are timely.

Code Civil Procedure section 340.15 provides that:

(a) In any civil action for recovery of damages suffered as a result of domestic violence, the time for commencement of the action shall be the later of the following:

(1) Within three years from the date of the last act of domestic violence by the defendant against the plaintiff.

(2) Within three years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act of domestic violence by the defendant against the plaintiff.

(b) As used in this section, “domestic violence” has the same meaning as defined in Section 6211 of the Family Code.

Here, the FACC alleges that Heffernan was subjected to domestic violence on: (1) 2011 or 2012; (2) March 2014; (3) November 23, 2014; (4) December 2014 and (5) March 30, 2017. The Court notes that where a tort involves a continuing wrong, such as domestic violence, the statute of limitations does not begin to run until the date of the last injury or when the tortuous acts cease. (Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444, 1452, 1455-56.)

Thus, the question before the Court is whether the alleged abuse which occurred on March 30, 2017 constitutes abuse for the purposes of domestic violence.

Civil Code section 1708.6 in relevant part provides:

(a) A person is liable for the tort of domestic violence if the plaintiff proves both of the following elements:

(1) The infliction of injury upon the plaintiff resulting from abuse, as defined in subdivision (a) of Section 13700 of the Penal Code.

(2) The abuse was committed by the defendant, a person having a relationship with the plaintiff as defined in subdivision (b) of Section 13700 of the Penal Code.

(b) A person who commits an act of domestic violence upon another is liable to that person for damages, including, but not limited to, general damages, special damages, and punitive damages pursuant to Section 3294.

Pursuant to Penal Code section 13700:

(a) “Abuse” means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.

(b) “Domestic violence” means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.

Here, the FACC in relevant part alleges that on March 30, 2017, Townsend became angry because Heffernan arrived home forty-five minutes late and proceeded to follow Heffernan throughout the house and taunted him by taking the television remote and turning off the television. (FACC ¶ 17.) Townsend then threatened to call the police if Heffernan did not leave and Townsend eventually called the police who instructed Heffernan to leave. (Id.) The next day Heffernan found that the locks to his home had been changed. (Id.)

None of these allegations involve Townsend touching Heffernan, and as to the yelling and screaming, there are no allegations that Townsend threatened to injure Heffernan and took steps to do so. Thus, these allegations cannot form the basis for a domestic violence cause of action because such allegations do not establish that Townsend caused or attempted to cause Heffernan bodily injury and because mere words, however threatening are insufficient to place a person in a reasonable apprehension of imminent serious bodily injury. (See generally Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1604.) Furthermore, calling the police is a protected activity. (Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 364 [stating that the overwhelming majority of cases conclude that when a citizen contacts law enforcement personnel to report suspected criminal activity and to instigate law enforcement personnel to respond, the communication also enjoys an unqualified privilege under Civil Code section 47(b).].) Finally, even taking into consideration the allegations that Townsend swung a hammer on November 23, 2014, the Court finds that Townsend’s alleged conduct of following Heffernan around the house while screaming at him and turning the television off are insufficient to constitute “abuse” since it is not alleged that on March 30, 2017, Townsend picked up an object and swung the object at Heffernan the same way she did with the hammer on November 23, 2014.

Therefore, since the remaining incidents of alleged domestic violence occurred on 2011 or 2012, March 2014, November 23, 2014 and December 2014, and because Heffernan filed his original cross complaint more than three years afterwards on January 8, 2018, Heffernan’s claims for domestic violence based on these incidents are barred by the three-year limitations period pursuant to CCP section 340.15 regardless of whether the allegations concerning these incidents constitute domestic violence. The Court notes that while it is true that Townsend’s complaint was filed within three years of these incidents, for Heffernan to assert his personal claims, Heffernan’s original cross complaint must have been filed within three years of these incidents. (CCP section 340.15.)

Accordingly, the demurrer to the first cause of action based on statute of limitations is SUSTAINED without leave to amend.

ii. Second, Third and Fourth Causes of Action: Assault, Battery and IIED

Townsend argues that the assault, battery and IIED causes of action are barred by the applicable two-year statute of limitations period. Heffernan opposes on the ground that the three-year limitations period pursuant to CCP section 340.15 applies and thus these claims were timely filed.

Causes of action for assault, battery and intentional infliction of emotional distress are governed by the two-year statute of limitations set forth in Code of Civil Procedure section 335.1. (Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444, 1450.) As noted before, where a tort involves a continuing wrong, the statute of limitations does not begin to run until the date of the last injury or when the tortuous acts cease. (Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444, 1452, 1455-56.)

Similar to the analysis of the domestic violence cause of action, the prevalent issue is whether the allegations concerning March 30, 2017 are sufficient to constitute the “last act” of wrongful conduct. Here, the Court finds that the allegations regarding the incident on March 30, 2017 do not constitute either assault, battery or IIED. Regarding assault and battery, as analyzed above, Townsend following Heffernan around the house while yelling at him and while turning the television off does not establish that Townsend caused or attempted to cause Heffernan bodily injury and furthermore mere words, however threatening are insufficient to place a person in a reasonable apprehension of imminent serious bodily injury. (See generally Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1604.) As for IIED, the tort does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) Turning off the television, yelling and demanding that Heffernan leave the house and threatening to call the police are threats, petty oppression and/or trivialities that IIED does not extend to. Furthermore, as noted before, calling the police is a protected activity. (Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 364.)

Thus, since the remaining incidents of alleged assault, battery and IIED occurred on 2011 or 2012, March 2014, November 23, 2014 and December 2014, and because Heffernan filed his original cross complaint more than three years afterwards on January 8, 2018, Heffernan’s claims for assault, battery and IIED based on these incidents are barred by both the two and the three-year limitations period.

Accordingly, the demurrer to the assault, battery and IIED causes of action based on statute of limitations is SUSTAINED without leave to amend.

c. Failure to State Facts Sufficient

The Court notes that Townsend also contends that the first cause of action for domestic violence and the fourth cause of action for IIED fail to state facts sufficient. However, since all four causes of action are barred by the applicable statute of limitations period, there is no need to reach the issue of whether the FACC sufficiently alleges facts to constitute domestic violence and IIED.

d. Motion to Strike

In light of the Court sustaining the demurrer to the FACC on statute of limitations grounds, the motion to strike is MOOT.

V. CONCLUSION

Accordingly, the demurrer to all four causes of action is SUSTAINED on statute of limitation grounds without leave to amend. The motion to strike is MOOT. No leave to amend is granted because the FACC cannot be reasonably amended to defeat the statute of limitations bar.

Parties who intend to submit on this tentative must send an email to the Court at sscdept7@lacourt.org as directed by the instructions provided on the Court website at www.lacourt.org.

Moving Party is ordered to give notice.