Luca Foschini vs Shalini Ananda
Case No: 19CV00857
Hearing Date: Wed Oct 02, 2019 9:30

Nature of Proceedings: Motion to Strike

Tentative Ruling: The court denies defendant Shalini Ananda’s motion to strike portions of plaintiff Luca Foschini’s first amended complaint.

First Amended Complaint (FAC): Plaintiff Luca Foschini commenced this action on February 14, 2019. In his first amended complaint, plaintiff asserts causes of action for intentional infliction of emotional distress (IIED) and defamation against defendant Shalini Ananda. Plaintiff alleges:

Plaintiff and defendant work in the field of health technology in different areas of specialization. They never worked for the same company and are not connected professionally or personally. They met on July 18, 2013, at Rock Health, a company that supports start-ups in health technology. [FAC ¶6] After some social media contacts, plaintiff blocked defendant. [FAC ¶¶7-9] Defendant sent messages to plaintiff asking why he blocked her. [FAC ¶10] In 2015, she contacted Evidation, a company plaintiff co-founded, and the director of Rock Health asked her to stop. [FAC ¶11] In 2015, she sent hundreds of messages to Evidation’s other co-founder, Alessio Signorini, who “filed” them with the Santa Barbara Police Department. [FAC ¶12] On May 19, 2017, defendant again contacted plaintiff, accusing him of tracking her GPS and making derogatory comments about her, at times defendant was “in full manic mode.” [FAC ¶¶13-17]

Plaintiff reported harassment by defendant to Santa Barbara police but defendant continued to harass him with messages. [FAC ¶18] Plaintiff asked defendant to cease further communications, but she continued to send messages, some threatening and some with sexual connotations. [FAC ¶¶19, 20] Given the lack of interactions from plaintiff’s side, the large emotional swings perceivable from defendant’s messages, and the timing of the messages (sent in bursts at any time of day and night), plaintiff experienced emotional apprehension as to his personal safety and suffered emotional distress. [FAC ¶22] Defendant contacted plaintiff’s social circle. [FAC ¶23] Defendant mentioned she has been looking for plaintiff at places and events he goes to. [FAC ¶24]

On October 16, 2017, defendant publicly posted on social media, with a “#MeToo” hashtag, that plaintiff had been sending her strange messages, mostly sexual. [FAC ¶25] Defendant continued to contact plaintiff. [FAC ¶¶26-28] In October 2017, defendant contacted Signorini and threatened that, if plaintiff did not communicate with her and resolve the alleged “issue,” defendant would report plaintiff to human resources and the CEO at his employment. [FAC ¶29] While apprehensive about defendant’s mental state, plaintiff tried to ignore her threats and attempts to contact him. [FAC ¶30]

Plaintiff arranged a conference with defendant in November 2017, with plaintiff’s attorney present, in an attempt to get her to rescind defamatory statements and to cease further attempts at contact and harassment. [FAC ¶¶31, 32] This resulted in a brief cessation but defendant continued making false allegations of sexual misconduct, stealing intellectual property, and plaintiff misrepresenting others’ work as his own. [FAC ¶¶33, 34]

In November 2018, defendant posted on the twitter feed of an expert in the field connected with plaintiff’s line of work allegations that plaintiff marketed work of others as his own, “you chose to gaslight a female assaulted by your roommate while you were in the house”, and “your project fails because you take other people’s work and try and make it your own without involving them.” Plaintiff had to contact the expert to explain his side about the false reports. [FAC ¶35] In December 2018, defendant continued the allegations of sexual misconduct. [FAC ¶36, 37] Plaintiff tried to contact one of the persons to whom defendant made allegations to explain his side, but that person indicated she believed the accusations. [FAC ¶¶38-40]

Defendant contacted plaintiff and accused him of “having a condition called misogyny” and that his work copied defendant’s IP. [FAC ¶41] Defendant continued her defamatory conduct, as late as an April 20, 2019, in email to a well-known investor in the health sector, sending the email to others, some of whom forwarded it to more individuals. [FAC ¶44]

Motion: Defendant moves to strike allegations in 24 paragraphs in the FAC on the ground that they are irrelevant, false, or improper matter, specifically, ¶¶7-22, 24, 26, 31, 33, 38, 39, 41, and 42. These are parts of general allegations incorporated into both causes of action. Defendant contends that allegations regarding statements made before February 14, 2018, are irrelevant because they cannot serve as the basis for a claim of defamation, which is subject to a one-year statute of limitation. Defendant contends allegations regarding statements made directly to plaintiff cannot serve as the basis for a claim of defamation, and allegations regarding actions of third parties and speculation regarding defendant’s mental health are irrelevant to a claim of defamation.

Plaintiff opposes the motion, noting that defendant ignores the IIED cause of action. The opposition was filed one day late—on September 20, though it is dated September 16. There is no proof of service, so it is not clear when it was served.

1. Standards for Motion to Strike: “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” CCP § 436. “An ‘immaterial allegation’ means ‘irrelevant matter’ as that term is used in Section 436.” CCP § 431.10(c). An immaterial allegation is one “that is not essential to the statement of a claim or defense” and/or “that is neither pertinent to nor supported by an otherwise sufficient claim or defense.” CCP § 431.10(b)(1), (2). “The test of the materiality of an averment in a pleading is this: could the averment be stricken from the pleading without leaving it insufficient?”

Whitwell v. Thomas, 9 Cal. 499, 499 (1858). Allegations that, though they are not absolutely necessary, are proper if they lay the foundation for part of the relief. California Farm & Fruit Co. v. Schiappa-Pietra, 151 Cal. 732, 745 (1907).

“A motion to strike, like a demurrer, challenges the legal sufficiency of the complaint’s allegations, which are assumed to be true.” Blakemore v. Superior Court, 129 Cal.App.4th 36, 53 (2005).

2. Causes of Action: “Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage.” Smith v. Maldonado, 72 Cal.App.4th 637, 645 (1999). “[I]n order to support a defamation claim, the challenged statement must be found to convey ‘a provably false factual assertion.’” Vogel v. Felice, 127 Cal.App.4th 1006, 1019 (2005).

The elements of the IIED cause of action are “(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.” Hughes v. Pair, 46 Cal.4th 1035, 1050 (2009) [internal quotations and citations omitted]. “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. The defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result.” Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 1001 (1993) [internal quotations and citations omitted].

The statute of limitation for defamation is one year. CCP § 340(c). For intentional infliction of emotional distress, it is two years. CCP § 335.1; Wassmann v. S. Orange Cty. Cmty. Coll. Dist., 24 Cal.App.5th 825, 853 (2018).

3. Analysis: Some allegations predate the one-year limitation period and some predate the two-year limitation period. But without the foundational allegations, many of the allegations would make no sense.

While some allegations have nothing to do with defamatory statements, they are related to the IIED claim. Plaintiff says that defendant did not address the IIED claim in the motion. In her reply, defendant says she did, in Section C of the motion. (There are two Section Cs.) But the only reference to the IIED cause of action in the motion is in a description of the FAC and in the final, conclusory sentence of the second Section C. Defendant also says that the motion addresses certain paragraphs that are either protected speech or cannot support claims of defamation and IIED. There is no reference to protected speech in the motion. The court will not consider new issues raised in a reply.

It would be difficult to ascertain which averments could be stricken from the pleading without leaving the IIED claim insufficient given that plaintiff must plead extreme and outrageous conduct. Deleting the history of alleged conduct and allegedly repeated instances of conduct after repeated requests to stop could leave the cause of action open to demurrer for failure to allege extreme and outrageous conduct. “In order to avoid a demurrer, the plaintiff must allege with ‘great specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Vasquez v. Franklin Management Real Estate Fund, Inc., 222 Cal.App.4th 819, 832 (2013).

The court concludes that the allegations defendant seeks to strike from the FAC are not irrelevant, false, or improper matter. The court considers the pleadings only. This ruling is not an indication of the admissibility of evidence once the facts are fully developed.

For the foregoing reasons, the court denies defendant Shalini Ananda’s motion to strike portions of plaintiff Luca Foschini’s first amended complaint.