2012-00136405-CU-DF

Carlos Gonzales vs. Yeanina Olivia

Nature of Proceeding: Hearing on Demurrer

Filed By: Diaz, Luz

Defendant Luz Diaz’s demurrer to Plaintiff Carlos Gonzales’ complaint is ruled upon as
follows.

The Court received but did not consider Defendant’s reply served by regular mail four
court days before the hearing.

In the instant action, Plaintiff asserts causes of action against defendant and others
based on allegations that defendant, along with the others, published statements on
the internet accusing Plaintiff of being a child predator and posting his personal
identifying information along with pictures of him with his son. Plaintiff alleges that
these acts impaired his ability to find employment, damaged his reputation and unfairly
affected him in a child custody case.

Demurrer to Entire Complaint

At the outset, Defendant appears to demur to the entire compliant on the basis that the
facts disclose an affirmative defense. Indeed, he argues that the complaint “alludes to
restraining orders” and “[s]ince the only statements made about the plaintiff by the
defendant were made in open court at one of the restraining order hearings,
presumably these privileged statements are the ones made by defendant, and such
privilege would bar recovery by the plaintiff.” (Dem. 6:11-14.) However, the complaint does not seek recovery based on statements made during a
court proceeding. Rather, Plaintiff seeks recovery for statements made on the
Internet, in addition to identity theft. The fact that certain statements were referred to
in Plaintiff’s application for a TRO which was attached to the complaint does not
preclude Plaintiff from seeking recovery. Thus, to the extent Defendant demurs to the
entire complaint on the basis that the facts alleged disclose an affirmative defense, it is
overruled.

First and Second Causes of Action (Libel and Libel Per Se)

Defendant’s demurrer on the basis that these causes of action are vague and
ambiguous is overruled. While Defendant argues that there are no allegations
regarding any DOE defendant (Defendant was added to the complaint via a DOE
amendment), Plaintiff alleged that “Defendants” made the subject defamatory
statements. (Comp. ¶¶ 30, 40 [Between October 7, 2012 and October 9, 2012,
Defendants made the following false and defamatory statement, which were published
in writing, on the Internet, about Plaintiff Gonzales:…”].) Thus, contrary to Defendant’s
argument there are allegations regarding all defendants, including the DOE defendants
and there is nothing impermissibly vague or ambiguous.

Third Cause of Action (Invasion of Privacy-Intrusion)

Defendant’s demurrer on the basis that this cause of action is vague and ambiguous is
overruled. Again, Defendant argues that no allegation is made regarding him and that
there is no allegation that any alleged statement he made was published to a third
party. Here, Plaintiff alleged that “Defendants” used his image and personal
information to “impersonate him on the internet, maliciously defame his character, and
attempt to use his information to unlawfully obtain goods or credit in his
name.” (Comp. ¶ 54.) He also alleged that “Defendants” used his image to create a
Facebook account in his name and disseminated his personal identifying and private
information and a false image of him in such a manner as to make him “appear to be a
child predator and a pimp…” (Id. ¶ 55.) Defendant is one of the “Defendants” and
thus there are allegations regarding the conduct he is alleged to have engaged in. In
addition, Plaintiff alleged that “Defendants” disseminated the false depiction of him on
the Internet, contrary to Defendant’s argument that there is no allegation that anything
was published to a third party. The demurrer is overruled.

Fourth Cause of Action (Invasion of Privacy-False Light)

Defendant’s demurrer on the basis Plaintiff failed to state facts sufficient to constitute a
cause of action is overruled. Plaintiff was required to allege that Defendant published
information that showed Plaintiff in a false light in a manner that would be highly
offensive to a reasonable person in Plaintiff’s position; that Defendant knew the
publication would create a false impression about Plaintiff or that Defendant acted with
reckless disregard for the truth; that Plaintiff was harmed and; that Defendant was a
substantial factor in causing the harm. (E.g., CACI 1802.) Plaintiff made these
allegations. (Comp. ¶¶ 60-66.) Indeed, Plaintiff alleged that “Defendants” created the
Facebook page which depicted Plaintiff as a child predator thereby placing him in a
false light that would be highly offensive to a reasonable person in his position and that
“Defendants” knew the depiction was false. (Id. ¶¶ 60-62.) Plaintiff also alleged that
this conduct has subjected him to embarrassment, death threats, etc. (Id. ¶¶ 63-66.)
The demurrer is overruled. Fifth Cause of Action (Invasion of Privacy-Misappropriation of Name and Identity)

Defendant’s demurrer on the basis Plaintiff failed to state facts sufficient to constitute a
cause of action or allege any conduct on his part is overruled. Again, this cause of
action alleges that “Defendants” engaged in the subject conduct and thus there are
allegations regarding Defendant’s conduct. Further, to plead a cause of action for
misappropriation of name and identity, Plaintiff was required to allege that Defendant
used his name, likeness, or identity without his permission; that Defendant gained an
advantage by doing so; that Plaintiff was harmed; that Defendant’s conduct was a
substantial factor in causing the harm; and Plaintiff’s privacy interests outweigh the
public interest served by Defendant’s use of Plaintiff’s name. (E.g., CACI 1803.)
Plaintiff made the requisite allegations. (Comp. ¶¶ 69-75.) Plaintiff alleged that
“Defendants” used his “name, address, phone number, date of birth, and social
security number for monetary gain” and requested “a Bill Me Later credit account in his
name, purchase[d] goods on eBay.com using his name, [and] open[ed] a Facebook
page in his name.” (Id. ¶¶ 69-70.) He alleged that this was done without his
permission and that he was harmed by such conduct, and that such use was not done
in the public interest. (Id. ¶¶ 70-75.) The demurrer is overruled.

Sixth Cause of Action (Invasion of Privacy-Public Disclosure of Private Facts)

Defendant’s demurrer is overruled. Once again, this cause of action is alleged against
all “Defendants” which includes Defendant. Further, Plaintiff was required to allege
that Defendant publicized Plaintiff’s private information in a manner a reasonable
person would consider highly offensive; that Defendant knew that a reasonable person
would find the publicity highly offensive; that the private matter was not of legitimate
public concern; that plaintiff was harmed and Defendant’s conduct was a substantial
factor in causing that harm. (E.g., CACI 1801) Plaintiff has alleged all of these
elements. (Comp. ¶¶ 79-84.) The demurrer is overruled.

Seventh Cause of Action (Stalking)

While Defendant demurs to this cause of action, it is not alleged against him, only
against Defendants Oliva and Bernardino. As a result, the Court issues no ruling on
this cause of action.

Eighth Cause of Action (Intentional Infliction of Emotional Distress)

Defendant’s demur is overruled. Defendant argues that Plaintiff failed to allege any act
against him and also any behavior that could be considered outrageous. Again, the
cause of action is alleged against “Defendants” which includes Defendant. In addition,
Plaintiff alleged facts which a finder of fact could find to be outrageous for purposes of
this cause of action, specifically, publishing statements “accusing Plaintiff of being a
child predator and a pimp.” (Comp. ¶ 94.) The demurrer is overruled.

Ninth Cause of Action (Negligent Infliction of Emotional Distress)

Defendant’s demur is sustained with leave to amend for failure to state facts sufficient
to constitute a cause of action. Defendant argues that Plaintiff failed to allege the
elements of negligence because there is no allegation that Defendant owed a duty or
that any duty was breached. The Court agrees. Plaintiff fails to specifically allege in
this cause of action that Defendant owed him a duty or how any duty was breached,
instead alleging that “Defendants’ negligent conduct is the actual proximate cause of
Plaintiff’s injuries.” (Comp. ¶ 100.) It is unclear, however, what conduct is referred to
in this cause of action and how Defendants were negligent. The demurrer is sustained
with leave to amend.

Tenth Cause of Action (Injunctive Relief)

Defendant’s demurrer is overruled. Defendant argues that the cause of action is
deficient because it fails to allege any specific breaches of duty and what acts are to
be enjoined. The Court disagrees as Plaintiff clearly alleged that his rights were
invaded by Defendants through their use of his personal identifying information and
that he seeks to enjoin them from using that information (specifically, his address,
phone number, personal email address, etc.) (Comp. ¶¶ 105, 106, 109, 114.)

The Court declines to overrule the demurrer on the ground that it was untimely
pursuant to CCP 430.40. While a demurrer is to be filed and served within 30 days
after service, here, the demurrer was filed and served only a few days after the 30 day
timeframe. Further, “the untimeliness of a demurrer is a ground to strike it, not
overrule it” and the Court has the discretion to consider the demurrer which discretion
it has exercised in the instant case. (City of King City v. Community Bank of Central
th
California (2005) 131 Cal.App.4 913, 923 n. 4; Jackson v. Doe (2011) 192
Cal.App.4th 742, 750 (trial court had discretion to consider untimely demurrer because
the late filing “did not affect plaintiff’s ‘substantial rights,’ [as] plaintiff did not take steps
to obtain a default judgment or demonstrate the delay prejudiced her.”)

In sum, the demurrer is overruled as to every cause of action except the ninth as to
which it was sustained with leave to amend. Where leave to amend was given,
Plaintiff may file and serve an amended complaint no later than November 8, 2013.
Defendant shall file and serve his response within 15 days thereafter, 20 days if the
amended complaint is served by mail. (Although not required by any statute or court
rule, Plaintiff is requested to attach a copy of the instant minute order to the amended
complaint to facilitate the filing of the pleading.)

This minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.