Case Number: 13CS0204 Hearing Date: May 15, 2014 Dept: 77

Defendant Joseph Folender’s Motion for Summary Judgment is DENIED. Defendant’s Motion for Summary Adjudication is GRANTED IN PART. CCP § 437c.

Plaintiff’s evidentiary objections are sustained. Further, Defendant’s supplemental separate statement will be considered. The Court finds that no new evidence was submitted in the supplemental separate statement, and Plaintiff had notice and an opportunity to respond. The facts are not complex. In fact, Plaintiff’s separate statement in opposition addresses Defendant’s supplemental separate statement. Accordingly, Plaintiff will suffer no prejudice if the supplemental separate statement is considered.

The Motion for Summary Judgment is denied. When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. CCP § 437c(p)(2). Defendant has not produced sufficient evidence to show that Plaintiff cannot prevail on all the causes of action stated in the First Amended Complaint. As such, Summary Judgment is denied.

Defendant’s Motion for Summary Adjudication is granted in part. CCP § 437c(f). Specifically, the separate statement, the Material Facts, and the declaration of Joseph Folender and evidence attached to it, provide sufficient evidence to demonstrate that Defendant is entitled to summary adjudication as to the causes of action for assault, intentional infliction of emotional distress, and negligent infliction of emotional distress.

An assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present. A civil action for assault is based upon an invasion of the right of a person to live without being put in fear of personal harm. (Lowry v. Standard Oil Co. of California (1944) 63 Cal.App.2d 1, 6-7.) To establish a claim for assault, plaintiff must establish: (1) that defendant acted, intending to cause harmful contact; (2) that plaintiff reasonably believed that he/she was about to be touched in a harmful or offensive manner or threatened to touch plaintiff in a harmful or offensive manner; (3) that it reasonably appeared to plaintiff that defendant was about to carry out the threat; (4) that plaintiff did not consent to defendant’s conduct; (5) that plaintiff was harmed; and (6) that defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI 1031.) In this case, at a minimum, Defendant has produced sufficient evidence to show that Plaintiff was not harmed. Material Facts Nos. 20-32.

The elements of intentional infliction of mental distress are: (1) 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 emotional distress. The right to recover for emotional distress without physical injury is recognized in California in situations involving extreme and outrageous conduct. The modern rule is that liability exists for conduct exceeding all bounds usually tolerated by a decent society, of a nature especially calculated to cause, and that does cause, mental distress. Behavior may be considered outrageous if a defendant: (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. (See Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903; Fuentes v. Perez (1977) 66 Cal.App.3d 163.) In this case, Defendant has produced sufficient evidence to show that Defendant did not engage in extreme and/or outrageous conduct that would give rise to a claim for intentional infliction of emotional distress. Material Facts Nos. 20-32.

The negligent causing of emotional distress is not an independent tort, but the tort of negligence, involving the usual duty and causation issues. In this case, Defendant has produced sufficient evidence to show that Plaintiff cannot prevail on a claim of negligent infliction of emotional distress. Specifically, the Amended Complaint only alleges intentional conduct. Material Facts Nos. 1-37.

As to the above three causes of action, the burden has shifted to Plaintiff to raise a triable issue of material fact. Although Plaintiff has filed an opposition to this motion, she has not raised a triable issue as to her claims for assault, intentional infliction of emotional distress, and negligent infliction of emotional distress. Accordingly, summary adjudication is proper as to these three causes of action.

A nuisance under CC § 3479 is any act or thing that is “injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . .” A private nuisance is one which affects only a single party and is otherwise not properly deemed a public nuisance which is affecting or causing similar problems to an entire community or neighborhood. CC §§ 3480, 3481. A nuisance may arise from a course of conduct or a single act. And, unlike the related theory of trespass, a claim for nuisance need not include an actual physical invasion or injury to real property. In further distinction to trespass, however, liability for private nuisance requires proof of two additional elements. First, the plaintiff must prove that the invasion of his or her interest in the use and enjoyment of the land was substantial. The degree of harm is judged by an objective standard, i.e., what effect would the invasion have on persons of normal health and sensibilities living in the same community? This is a question of fact turning on the circumstances of each case. Second, the substantial interference must be unreasonable.

In this case, the nuisance cause of action is the only one that involves conduct beyond that occurring only during the incident on November 20, 2012. Specifically, there is no dispute that Defendant blocked Plaintiff’s vehicle 15-20 times before the November 20 altercation. Material Fact No. 33. Repeatedly blocking a vehicle may constitute an obstruction to the free use of property so as to interfere with its comfortable enjoyment. Given the facts provided, it is a triable issue as to whether that blocking was objectively substantial and unreasonable. Defendant thus has not produced sufficient evidence to show that Plaintiff cannot prevail on a claim of nuisance. Accordingly, summary adjudication is denied as to this cause of action.

As such, this Motion for Summary Adjudication is granted in part. There is no triable issue of material fact that Plaintiff cannot establish a prima facie case of assault, intentional infliction of emotional distress and negligent infliction of emotional distress. Therefore, Defendant is entitled to summary adjudication as a matter of laws on these claims. However, the Motion for Summary Adjudication is denied as to the cause of action for nuisance.

Moving party to prepare order and give notice.