Case Number: KC066632 Hearing Date: May 23, 2014 Dept: J

Re: Antonio Geluz, et al. v. Lorenzo Gomez, etc., et al. (KC066632)

DEMURRER TO FIRST AMENDED COMPLAINT

Moving Parties: Defendants Lorenzo Gomez aka Lorie Gomez, Connie Dizon aka Concepcion Aves, and Alejandro Rocero aka Joni Rocero

Respondents: Plaintiffs Antonio Geluz and Erlinda Aquino

POS: Moving OK; “Revised” Opposition filed just 8 court days prior to the hearing and served by regular mail contrary to CCP §§ 1005 (b) and (c)

Plaintiffs allege that Defendants posted a defamatory comment on a Facebook page, causing Plaintiffs damages. The Complaint was filed on 1/30/14, and was amended once as a matter of right on 2/05/14. The First Amended Complaint (“FAC”), filed by Plaintiffs in propria persona, asserts causes of action for:

1. Libel
2. Defamation in Violation of CA Civil Code Section 45
3. False Light and Public Disclosure of Private Information Forms of Invasion of Privacy
4. Fraud
5. IIED
6. NIED
7. Violation of Occupation-Related Business and Professions Code
8. Civil Conspiracy
9. Injunctive and Declaratory Relief

The Case Management Conference is set for June 2, 2014.

Defendants Lorenzo Gomez aka Lorie Gomez; Connie Dizon aka Concepcion Aves; and Alejandro Rocero aka Joni Rocero now demurrer to all causes of action of the FAC on the grounds that they fail to state facts sufficient to constitute a cause of action pursuant to CCP Section 430.10(e), and that are uncertain pursuant to CCP Section 430.10(f).

FIRST CAUSE OF ACTION FOR LIBEL AND THE SECOND CAUSE OF ACTION FOR DEFAMATION IN VIOLATION OF CIVIL CODE § 45:

These causes of action fail to state facts sufficient to constitute a cause of action and are uncertain. In order to plead a claim for libel/defamation, Plaintiffs must sufficiently allege that the publication was a false and unprivileged statement of fact. Mann v. Quality Old Time Service Inc. (2004) 120 Cal.App.4th 90. A court will not impose liability where the statements are one of opinion. Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254. Overhill Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, mere name calling will not suffice, such as calling someone a racist. Here, the tenor of Defendant Gomez’ entire statement is that of a dispute between Defendant Gomez and ostensibly Plaintiff Erlinda Aquino. The statements appear to be mere name calling and/or statements of opinion. Plaintiffs appear to allege what they believe the statements attributed to Defendants imply, rather than setting for the exact words alleged to have been published by Defendants.

Moreover, Plaintiffs allege that the statements were made concerning Plaintiff “AQUINO and/or, alternatively, OCDM,” without defining the latter term in the FAC, thereby rendering the FAC uncertain. IF OCDM refers to non-parties to the action, Plaintiffs fail to demonstrate their standing to bring this action on their behalf. If intended to be filed as a class action lawsuit, Los Angeles Superior Court rule 2.3 requires that the action be filed in the Central District.

The demurrers to the first and second causes of action are sustained.

THIRD CAUSE OF ACTION FOR FALSE LIGHT AND PUBLIC DISCLOSURE OF PRIVATE INFORMATION:

In order for a plaintiff to recover damages for the tort of false light, the plaintiff must plead that there was a publication by the defendant to a third party of false, erroneous, or fictionalized material that places the plaintiff in a false and derogatory light. Forsher v. Bugliosi (1980) 26 Cal.3d 792, 811 n.7. Moreover, “the false light in which the plaintiff is placed must be highly offensive to a reasonable person.” Fellows v. National Enquirer, Inc. (1986) 42 Cal.3d 234, 238. Here, the tenor of Defendant Gomez’s entire statement appears to be that of a dispute between Defendant Gomez and Plaintiff Aquino. Without stating exactly what was allegedly published by Defendants, the FAC is too uncertain to allow Defendants to know what to admit and what to deny.

As far as public disclosure of private facts is concerned, there are three required elements: (1) a disclosure in public, (2) of private facts, and (3) the matter made public must be one which would be offensive and objectionable to a reasonable person of ordinary sensibilities. (Forsher, supra at 808-809). Public means communication “to the public in general or to a large number of persons as distinguished from one individual or a few.” Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 828. In this case, Plaintiffs’ simply state that Defendants “disclos[ed] sensitive and personal information and confidential personal information including but not limited to plaintiff’s patient records in violation of HIPAA.” (FAC at Para. 63). How and to whom this information was disclosed, and to what number of individuals, is not alleged, rendering the cause of action uncertain.

The demurrer is sustained.

FOURTH CAUSE OF ACTION FOR FRAUD:

The elements of fraud are: a representation, usually of fact, which is false; knowledge of its falsity; intent to defraud; justifiable reliance upon the misrepresentation; and damages resulting from that justifiable reliance. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 72-73). Here, it is difficult to understand how Plaintiffs may have relied on any ostensible misrepresentations by Defendants given the fact that Plaintiffs would not believe and rely on misstatements about themselves. This argument is a non-sequitur. In addition, Plaintiffs never allege that they actually relied on the statements made by Defendants, or how. The demurrer is sustained.

FIFTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:

An individual is liable for the tort of intentional infliction of emotional distress when that individual intentionally or recklessly causes severe emotional distress to another by extreme and outrageous conduct. Unterberger v. Red Bull North America, Inc. (2008) 162 Cal.App.4th 414. The mere discomfort, worry, anxiety, upset stomach, concern and agitation caused by the alleged conduct is not sufficient to support the claim. (See e.g., Hughes v. Pair (2009) 46 Cal.4th 1035 (anxiety caused by alleged sexual advances and crude threats did not constitute severe emotional distress).) Here, Plaintiffs’ alleged that they “suffered embarrassment, anxiety, humiliation, and emotional distress.” (FAC at 79). Anxiety does not constitute severe emotional distress. Further, “[l]iability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 617.

The demurrer is sustained.

SIXTH CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS:

Negligent infliction of emotional distress is not an independent tort, but is rather a form of the tort of negligence. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984, “unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty.” Id. at 985). Here, Plaintiffs fail to demonstrate that Defendants breached a duty of care toward Plaintiffs that negligently caused emotional distress. The demurrer is sustained.

SEVENTH CAUSE OF ACTION FOR VIOLATION OF BUSINESS & PROFESSIONS CODE § 17200:

The Unfair Business Practices Act includes “any unlawful, unfair or fraudulent business act or practice.” B&P Section 17200. With the exception of specific government officials, standing to bring an maintain a Business and Professions Code Section 17200 claim is limited to “person[s] who ha[ve] suffered injury in fact and ha[ve] lost money or property as a result of the unfair competition.” B&P Code Section 17204. Here, Plaintiffs appear to allege that Defendants have committed violations of Section 17200, but do not allege any facts that demonstrate they have suffered a loss of money or property as a result of unfair competition. The only act of Defendants alleged appears to be the posting of a comment on a Facebook page. The demurrer is sustained.

EIGHTH CAUSE OF ACTION FOR CONSPIRACY:

There is no separate cause of action for civil conspiracy, and such action requires allegations of some other underlying tort. (See Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.) Here, Plaintiffs’ other causes of action fail to state sufficient facts to constitute a cause of action as discussed above. The demurrer is sustained.

NINTH CAUSE OF ACTION FOR INJUNCTIVE AND DECLARATORY RELIEF:

An injunction is not a cause of action. (See e.g., Shell Oil Co. v. Richter, (1942) 52 Cal.App.2d 164, 168.) Further, declaratory relief requires a present and actual controversy between the parties. CCP 1060. When past wrongs are involved there is no basis for declaratory relief. Baldwin v. Marina city Properties, Inc. (1978) 79 Cal.App.3d 393, 407. Here, Plaintiffs do not allege any present controversy amongst the parties, just an alleged statement apparently made on a Facebook page. The demurrer is sustained.

The court will hear from Plaintiffs as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof as to what additional facts can be alleged if so.