Case Name: John Doe v. Marcella Fossella, et al.
Case No.: 18CV334161
I. Background
Self-represented litigant John Doe (“Plaintiff”) commenced this action against defendant Marcella Fossella and her employer Sedgwick Claims Management Services, Inc. (collectively, “Defendants”). He alleges the following :
Plaintiff John Doe is currently receiving Workers Compensation Benefits from an on the job injury through Gallagher Bassett. It was believed that there was no private plan insurance in place so that John Doe was paid by Sedgwick. This turned out to be an error and he was moved back Gallagher Bassett. Allegations are made by Marcella Fossella, Ms. Bonea and Sedgwick that Plaintiff Doe must return this money. Has has exerted his legal right to a hearing but this did not happen. Ms. Marcell Fosella, personally, and as an agent to Sedgwick Claims Management, reported these funds “due” and damaged his credit. A legal hearing was never administered for a judicial determination and Fosella and Sedgwick played Judge, Jury and Executioner at one As a result of this unlawfully damaged credit record Plaintiff Dow was unable to obtain a bond to be the guardian and conservator of his mother and father who are in home hospice. He lost control of his parents and they became wards of the state.
(Compl., ¶ 2.)
Plaintiff asserts causes of action against Defendants for slander per se and intentional infliction of emotional distress. Currently before the Court is Defendants’ demurrer, which is accompanied by a request for judicial notice.
II. Request for Judicial Notice
Defendants request judicial notice of the complaint. A court may take judicial notice of court records pursuant to Evidence Code section 452, subdivision (d). With that said, it is unnecessary to take judicial notice of the operative pleading because the Court necessarily must consider it. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.) Consequently, Defendants’ request for judicial notice is DENIED.
III. Demurrer
Defendants demur to the complaint as a whole as well as the individual causes of action asserted therein.
A. Complaint as a Whole
Defendants demur to the complaint on the purported ground “Plaintiff does not have standing to sue because, as a ‘John Doe,’ he is not the real party in interest.” (Dem. at p. 2:8–10.) Their demurrer is problematic for a number of reasons.
First, Defendants fail to set forth a statutory ground for their demurrer. The statutory grounds for demurrer are set forth in Code of Civil Procedure section 430.10. A lack of standing is not one of them. Standing to sue—meaning a party’s right to relief—goes to the existence of a cause of action. (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1604.) Thus, in actuality, “[t]he defect of a lack of standing to sue makes a complaint subject to general demurrer for failure to state a cause of action.” (Tarr v. Merco Constr. Engineers, Inc. (1978) 84 Cal.App.3d 707, 713.)
Second, Defendants’ supporting argument about the impropriety of Plaintiff’s use of a pseudonym does not establish there is a lack of standing. “Code of Civil Procedure section 367 states that ‘[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.’” (Doe v. Lincoln Unified School Dist. (“Lincoln Unified”) (2010) 188 Cal.App.4th 758, 765.) That statute does not require a party to sue using his or her own name. (Ibid.) As used therein, the phrase “in the name of” means “on behalf of” or “by authority of.” (See, e.g., State ex rel. Harris v. PricewaterhouseCoopers, LLP (2006) 39 Cal.4th 1220, 1223–28; see also Merriam-Webster Online Dictionary, at
It follows that “[t]he question for purposes of standing is not the name used by the party suing but whether the party suing is the party possessing the right sued upon.” (Lincoln Unified, supra, 188 Cal.App.4th at p. 765.) Defendants do not actually argue Plaintiff is not pursuing his own injuries and legal rights in this action. They solely raise his improper use of a pseudonym, which does not establish a lack of standing. (Ibid.) Accordingly, there is no basis for concluding Plaintiff lacks standing to bring this action.
In conclusion, Defendants do not identify a proper ground for their demurrer and do not establish a standing defect that warrants sustaining the demurrer on the ground of failure to state facts sufficient to constitute a cause of action. Their demurrer to the complaint as a whole is, therefore, OVERRULED.
Despite this conclusion relative to the demurrer, Defendants’ argument that Plaintiff is not entitled to proceed using a pseudonym is otherwise well-taken. “The judicial use of ‘Doe plaintiffs’ to protect legitimate privacy rights has gained wide currency, particularly given the rapidity and ubiquity of disclosures over the World Wide Web.” (Starbucks Corp. v. Super. Ct. (2008) 168 Cal.App.4th 1436, 1452, fn. 7.) Nevertheless, there must be circumstances justifying the use of a pseudonym. (Lincoln Unified, supra, 188 Cal.App.4th at pp. 766–67.) For example, a plaintiff may proceed using a pseudonym in cases involving sexual assault or decisions about reproductive health. (Ibid., citing Starbucks Corp., supra, 168 Cal.App.4th at p. 1452, fn. 7 [compiling cases].)
Here, Plaintiff does not justify his use of a pseudonym. Plaintiff states he “has served the United States in a sensitive intelligence capacity in venues to include Afghanistan and Iraq.” (Opp. at p. 2.) According to him, knowledge of his location may result in “fear of, or actual, physical harm.” (Opp. at p. 2.) But this statement is not sworn and is inconsistent with Plaintiff’s inclusion of an address and contact information on publicly-accessible documents filed in this action. Additionally, Plaintiff’s assertion is inconsistent with his inclusion of a purported copy of his passport that shows his passport number and other identifying information, such as his date of birth. Also, Plaintiff identifies his employer as Tesla Motors in Fremont, California. (Compl. at p. 5.) Under these circumstances, the Court is not persuaded Plaintiff is entitled to proceed using a pseudonym. Accordingly, despite the erroneous demurrer, the Court concludes Plaintiff may not use a pseudonym in this action. He must proceed using his own name. (See Code Civ. Proc., §§ 422.30–422.40; see also Cal. Rules of Court, rule 2.550(c).)
B. Individual Causes of Action
Defendants demur to each cause of action on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action.
1. Uncertainty
“[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Reg. Authority (2012) 208 Cal.App.4th 1125, 1135.) This is because “ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Plaintiff’s first and second causes of action are not so incomprehensible Defendants cannot reasonably respond. This conclusion is buttressed by the fact that they respond to the substance of the allegations for the purpose of their demurrer on the ground of failure to state sufficient facts. In reaching this conclusion, the Court rejects Defendants’ contention that use of the term “reported” obfuscates the nature of the conduct upon which Plaintiff’s claim is based; that contention is specious. For these reasons, the demurrer to the first and second causes of action on the ground of uncertainty is OVERRULED.
2. Failure to State Sufficient Facts
i. First Cause of Action
Plaintiff’s first cause of action is labeled as a cause of action for slander per se. In evaluating the sufficiency of the allegations in the first cause of action, the Court applies the established principle that the label on a cause of action does not control. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Ibid.)
Slander is a species of the tort of defamation. (Civ. Code, § 44.) “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.” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369.) If the publication is made “by writing, printing, picture, effigy, or other fixed representation to the eye” it is known as libel (Civ. Code, § 45), while a publication “orally uttered, and also communications by radio or any mechanical or other means” are known as slander (Civ. Code, § 46).
Plaintiff alleges Defendants made a derogatory report to a credit reporting agency. But as Defendants articulate, he does not explicitly allege and it is not reasonable to infer he is alleging the derogatory report was false. Rather, he seems to focus on the inadequacy of procedural safeguards and the manner in which the report was made. Thus, although a false report to a credit reporting agency may constitute the basis for a defamation claim as a general matter (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 637–38), Plaintiff does not adequately allege Defendants made a false publication.
Next, Defendants argue they cannot tell whether the allegedly slanderous statements are privileged. “Where the existence of a privilege is not revealed on the face of the complaint, privilege may not be asserted by demurrer but must be pleaded as an affirmative defense.” (Pulver, supra, 182 Cal.App.3d at p. 639.) And so, Defendants’ argument does not justify sustaining the demurrer.
Defendants also argue Plaintiff does not adequately allege whether the publication was spoken or written. But that is not an independent pleading requirement. (See, e.g., Pulver, supra, 182 Cal.App.3d at pp. 638–39.) Indeed, Defendants do not cite authority establishing a demurrer is sustainable for failure to allege the means of publication.
In actuality, “[t]he effect of the distinction between libel and slander, i.e., written and oral defamation, is observed primarily in determinations as to whether particular language is actionable per se or requires the pleading of special damages; and it has been noted that ‘many charges which if merely spoken of another would not be actionable without proof of special damages, will be libelous per se when written or printed and published.’ [Citation.]” (Correia v. Santos (1961) 191 Cal.App.2d 844, 852.) “The term ‘per se’ when used in describing the effect of allegedly slanderous words means that the utterance of such words is actionable without proof of special damage.” (Id. at p. 851.) “Certain statements are deemed to constitute slander per se, including statements (1) charging the commission of crime, or (2) tending directly to injure a plaintiff in respect to the plaintiff’s business by imputing something with reference to the plaintiff’s business that has a natural tendency to lessen its profits.” (Gonzalez v. Fire Insurance Exchange (2015) 234 Cal.App.4th 1220, 1240, fn. 5, citing Civ. Code, § 46.)
The Court credits Defendants’ argument that Plaintiff does not adequately allege facts showing the report qualified as slander per se. (See, e.g., Gautier v. General Telephone Co. (1965) 234 Cal.App.2d 302, 309–10 [charge of failing to pay debts was not defamatory per se].) Even so, Plaintiff alleges he suffered special damages. (Compl., ¶¶ 2, 11 & prayer.) And, Defendants do not address these damages allegations. Thus, the distinction between slander and libel—which impacts whether special damages must be pleaded—is not material to the resolution of the demurrer.
In conclusion, Plaintiff does not plead facts sufficient to state a defamation claim of any kind because he does not allege the report that damaged his credit was false. Thus, the demurrer to the first cause of action is SUSTAINED with 10 days’ leave to amend. Plaintiff must use his own name in any amended pleading as required by the Code of Civil Procedure and California Rules of Court.
ii. Second Cause of Action
Plaintiff’s second cause of action is for intentional infliction of emotional distress. “To state a cause of action for intentional infliction of emotional distress, a plaintiff must allege: (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 severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ [Citations].” (Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 228–29.) “‘Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’” (Id. at p. 229, quoting Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.)
Defendants first state Plaintiff does not adequately allege they engaged in outrageous conduct. In support, they cast Plaintiff’s allegations as general and conclusory and state the conduct alleged is not outrageous as a matter of law. Defendants’ characterization of the pleading is inaccurate because Plaintiff alleges they made a derogatory credit report that damaged his credit and precluded him from assuming custody of and caring for his parents. Additionally, Defendants are incorrect that such conduct is not outrageous as a matter of law. (Pulver, supra, 182 Cal.App.3d at p. 637 [plaintiff adequately alleged outrageous conduct based on derogatory report to credit reporting agency].) Indeed, they cite no analogous authority to support their position. Thus, the demurrer is not sustainable based on a failure to allege outrageous conduct.
Defendants also take issue with Plaintiff’s allegation that he suffered humiliation, mental anguish, emotional and physical distress, and loss of sleep. They characterize his allegation as a legal conclusion. They do not offer a reasoned explanation or legal authority for their argument. Moreover, it is self-evident their characterization is inaccurate. (See generally Dino, Inc. v. Boreta Enterprises, Inc. (1964) 226 Cal.App.2d 336, 340 [comparing allegations of fact and legal conclusions]; Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 473.)
For these reasons, Defendants do not establish there is a basis for sustaining the demurrer to the second cause of action. The demurrer is therefore OVERRULED.
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