Case Name: Mark Migdal v. Robert Putnam, et al.
Case No.: 16CV297506

I. Background

This case brought by Mark Migdal (“Plaintiff”) against Robert Putnam (“Putnam”) and Michael Roberts Construction, Inc. (“MRC”) (collectively “Defendants”) arises from damage intentionally caused to Plaintiff’s vehicle.

According to the allegations of the First Amended Complaint (“FAC”), in June 2015, a mediation was conducted between Plaintiff and MRC. Putnam attended as the representative for MRC, and became infuriated with Plaintiff during the mediation. At some point Putnam went to the parking garage where Plaintiff’s vehicle was located and slashed and punctured his tires.
His conduct caused Plaintiff emotional distress, including fear for his personal safety.

The FAC alleges causes of action against Defendants for (1) Intentional Tort-Assault; (2) Intentional Infliction of Emotional Distress; (3) Negligent Infliction of Emotional Distress; (4) Elder Abuse; and (5) Vicarious Liability.

Currently before the Court is Defendants’ demurrer to each cause of action and motion strike the prayer for punitive damages.

II. Request for Judicial Notice

Both Defendants and Plaintiff request judicial notice of the FAC. Defendants’ request is made in support of both the demurrer and the motion to strike while Plaintiff’s request is made only in connection with the motion to strike. Generally, court records are proper subjects for judicial notice. (Evid. Code, § 452, subd. (d).) However, it is unnecessary to take judicial notice of the FAC since it is the pleading under review. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.) Accordingly, the requests for judicial notice are DENIED as unnecessary.

III. Demurrer

Defendants specify in their notice of demurrer that they are demurring to the first, second, third and fourth causes of action on the ground of failure to state sufficient facts to constitute a cause of action. The notice does not mention the fifth cause of action. In their supporting memorandum of points and authorities, however, Defendants address the fifth cause of action as well. A notice of demurrer must set forth in the opening paragraph “the nature of the order being sought and the grounds for issuance of the order,” and the demurrer itself must state what matter it is directed to and the grounds therefor. (Cal. Rules of Court, rules 3.1110(a), 301320(a).) While Defendants failed to comply with those requirements relative to the fifth cause of action, the Court will overlook the defect since the claim is clearly addressed in Defendants’ supporting memorandum as well as Plaintiff’s opposition. (See Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.) Thus, the Court treats the demurrer as directed to all causes of action.

A. First Cause of Action for Assault

The first cause of action for assault alleges that Putnam’s actions at the mediation, particularly slashing and puncturing the tires on Plaintiff’s vehicle, “were intentional and meant to willfully and intentionally assault [Plaintiff] by causing apprehension of an immediate harmful or offensive contact to [Plaintiff].” (FAC, ¶20.)

Defendants argue that no claim for assault has been stated because Plaintiff has not alleged any intent to cause harmful or offensive contact to Plaintiff himself and instead merely alleges property damage. Defendants add that there are no facts indicating Plaintiff was even present when the damage to his vehicle occurred. Plaintiff counters that he alleged all elements of a cause of action for assault.

In general an assault occurs, where one person threatens to immediately inflict harm on the person of another. (See Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1603–1604.)One element of a cause of action for assault is “the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.) Another is the victim must reasonably believe the perpetrator is “about to” touch the victim or carry out the threat. (Ibid.)

The FAC contains no allegation of any intent to cause physical harm or threatening statement between Putnam and Plaintiff. Although Plaintiff’s argument is not clear, Plaintiff’s theory seems to be that because Putnam’s actions damaged Plaintiff’s property, and the damage caused Plaintiff to be afraid, Putnam therefore committed an assault.

Plaintiff relies on general law emphasizing that assault is an offense based upon the fear of personal harm. However, this general point does not support the conclusion that damage to distant property qualifies as an assault on a person. Although damage to personal property may certainly create anxiety of future property damage or general insecurity it is not a specific fear of immediate harm that is “about to” occur.

The only danger to Plaintiff alleged is that the damage to his tires could have resulted in far greater physical harm if Plaintiff did not notice the damage to his tires before driving. (FAC, ¶17.) This potential harm would not occur immediately after Defendant’s actions, but minutes or even hours away. What is alleged, at best, is that by damaging Plaintiff’s vehicle Putnam created some risk of harm to Plaintiff’s person in the future. This is not sufficient to allege a civil cause of action for assault.

Accordingly, the demurrer to the second cause of action for assault is SUSTAINED with 10 days leave to amend.

B. Second Cause of Action for Intentional Infliction of Emotional Distress

Defendants argue that the conduct alleged as the basis for the second cause of action for intentional infliction of emotional distress was not outrageous.

An essential element of a claim for intentional infliction of emotional distress is extreme and outrageous conduct. (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) Whether conduct is outrageous is usually a question of fact. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1045, 90 Cal.Rptr.3d 453.) However, many courts have dismissed intentional infliction of emotional distress claims on demurrer where the conduct is not outrageous as a matter of law. (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235.) “To be considered outrageous the conduct must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” (Ibid.; Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) Conduct that merely hurts another person’s feelings is not enough. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) Conduct is not outrageous simply because it is tortious, criminal, or intended to cause distress. (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1517.) Generally, the conduct must be such character that, if an ordinary member of the public was told the facts, he or she would exclaim “outrageous!” (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028; McMahon v. Craig, supra 176 Cal.App.4th at 1516.)

Defendants contend that the alleged act of slashing Plaintiff’s tires amounts to simple property damage and is not outrageous under applicable standards.

In opposition, Plaintiff states that “Putnam’s conduct at the mediation and the slashing of the car tires of Migdal was outrageous behavior which Putnam intended to cause harm and emotional distress to Migdal and that Migdal did suffer emotional distress…” (Opp., p. 5:15-18.) Plaintiff misunderstands the applicable standard. Causing intentional damage to another person’s property is not enough, in and of itself, to be considered sufficient to state a claim for intentional infliction of emotional distress absent sufficient factual allegations to demonstrate the conduct could be considered sufficiently outrageous to satisfy this element of the claim. (See CACI 1602.)

Plaintiff presents no factual allegations or argument that would make this allegation more than a claim for property damage, even if intentionally caused.

Accordingly, the demurrer to the second cause of action for intentional infliction of emotional distress is SUSTAINED with 10 days leave to amend.

C. Third Cause of Action for Negligent Infliction of Emotional Distress

Defendants assert that negligent infliction of emotional distress is not a cause of action but a subset of negligence. Defendants then argue that the allegations support intentional action rather than negligence, but if Plaintiffs have asserted negligence they have not alleged duty or breach. Additionally, Defendants contend that Plaintiff negligent infliction of emotional distress is only available under either bystander or direct victim theories, and Plaintiff has not alleged either.

First the Court addresses whether Plaintiff has pled intentional action or negligence. A negligence cause of action differs fundamentally from an intentional tort. (See Donnelly v. Southern Pac. Co. (1941) 18 Cal.2d 863, 869.) A negligent actor does not intend to cause the harm that results from his or her carelessness. (Ibid.) In contrast, someone who commits an intentional tort takes willful or intentional actions and intends to cause the resulting harm. (See ibid.) Pleading in the alternative is permitted in different counts. (Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 29.) Inconsistent pleading in the same count is improper because the opposing party is entitled to a distinct statement of the facts alleged. (Drake v. Morris Plan Co. (1975) 53 Cal.App.3d 208, 210–211.)

In his allegations common to all causes of action, Plaintiff pleads that security footage showed Mr. Putnam “intentionally damaging the personal property of MIGDAL including slashing and puncturing of the tires of MIGDAL’s car…” (FAC ¶14.) In the third cause of action Plaintiff repeatedly describes Putnam’s actions as negligent. (See FAC, ¶¶ 33-35.), Plaintiff also incorporates each and every prior allegation, including these allegations of intentional action, into the third cause of action. (FAC, ¶ 32.)

Plaintiff appears to be pleading in the alternative that the slashing of the tires was either intentional, as alleged in the first and second causes of action, or negligent as alleged in the third – although these alternative allegations are somewhat inartfully stated. Plaintiff does not appear to plead both intentional and negligent conduct in the third cause of action.

Next Defendants claim that if Plaintiff intends to allege negligence, he has not adequately alleged duty or breach. The Court reviews the law regarding negligent infliction of emotional distress and negligence to address this argument.

“A claim of negligent infliction of emotional distress is not an independent tort but the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply.” (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1377–78; see Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 356.) The traditional elements of negligence are duty, breach, causation and damages. (Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1249.) Damages for negligent emotional distress are only recoverable in a negligence action when they stem from the violation of some duty. (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 590.)

The FAC does not make any specific allegations regarding Defendants’ duty to Plaintiff, or their breach of that duty. Plaintiff admits he did not include “outright” allegations regarding negligence, but argues the facts alleged implicitly establish duty and breach. (See Opp., pp. 6:26-27, 7:2-4.) Plaintiff argues that Defendants owed him a duty to refrain from damaging his property, and failed to abide by that duty by slashing his tires.

In support of Plaintiff’s argument that the FAC should be read to imply duty and breach, Plaintiff quotes Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38–39, “[t]he test is whether the complaint states any claim entitling plaintiff to relief.” (Opp., pp. 6:28 through 7:1.) The case does not support the proposition the Court should read into a pleading facts that are not alleged. (See Id. at 38–39.)

The primary function of a pleading is to give the other party notice so that it may prepare its case. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) The terms duty and breach do not appear in the FAC. Nor does the FAC contain any allegations using other words that clearly identify Defendants’ obligation and how they breached it. Although Plaintiff argues in the Opposition that Plaintiff owed a legal duty not to injure Plaintiff’s property, this is not clearly alleged in the FAC. Plaintiff need not allege much, but must sufficiently identify the basis for his claim so that Defendants may respond.

Defendants also contend that Plaintiff may recover for emotional harm without physical harm only as a “direct victim” or “bystander,” and since neither applies Plaintiff may not recover. Plaintiff does not address this argument in opposition.

Negligent infliction of emotional distress is typically subdivided into two general theories, a bystander theory and a direct victim theory. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071.) The difference between the two is the source of the duty owed by the defendant to the plaintiff. (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129–130.) “ ‘Bystander’ claims are typically based on breach of a duty owed to the public in general, whereas a right to recover for emotional distress as a ‘direct victim’ arises from the breach of a duty that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of the defendant’s preexisting relationship with the plaintiff[.]” (Ibid.) Direct victim cases may be alleged without any physical impact to the plaintiff based upon a prior relationship between the parties. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1074.)

Although Plaintiff does not state whether he was a direct victim or a bystander, Plaintiff’s theory must be that he was a direct victim. The FAC does not include allegations of injury to any third party, and so the only rights that may have been violated were Plaintiff’s. Plaintiff presents no allegation of a pre-existing relationship that would support a cause of action for negligent infliction of emotional distress, nor does the FAC otherwise sufficiently allege all of the required elements of a claim for negligence or negligent infliction of emotional distress.

Accordingly, the demurrer to the third cause of action for negligent infliction of emotional distress is SUSTAINED with 10 days leave to amend.

D. Fourth Cause of Action for Elder Abuse

Plaintiff alleges that Defendants’ conduct constituted elder abuse in violation of Penal Code section 368, subdivision (b)(1), a criminal statute providing for imprisonment and/or fines when a person “who knows or should know that a person is an elder or dependent and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered.”

Defendants assume Plaintiff intended to state a claim for elder abuse under the Elder Abuse and Dependent Adult Civil Protection Act (“the Act”). (See Welf. & Inst. Code, § 15600 et seq.) That assumption was reasonable because the Act was enacted to provide a basis for civil recovery for elder abuse. (See Delaney v. Baker (1999) 20 Cal.4th 23, 33 [discussing legislative history of the Act and Legislature’s amendment “to encourage private civil enforcement of laws against elder abuse and neglect”].) Defendant argues the FAC does not allege facts sufficient to show conduct amounting to elder abuse under the Act.

In opposition, Plaintiff does not quarrel with the proposition that no cause of action has been stated under the Act. Rather, he maintains his claim is brought directly pursuant to Penal Code section 368, not the Act. In reply, Defendants argue that section 368 does not create a private right of action. The Court agrees.

“A violation of a state statute does not necessarily give rise to a private cause of action. Instead, whether a party has a right to sue depends on whether the Legislature has manifested an intent to create such a private cause of action under the statute. Such legislative intent, if any, is revealed through the language of the statute and its legislative history. … A statute may contain clear, understandable, unmistakable terms, which strongly and directly indicate that the Legislature intended to create a private cause of action. For instance, the statute may expressly state that a person has or is liable [sic ] for a cause of action for a particular violation. Or, more commonly, a statute may refer to a remedy or means of enforcing its substantive provisions, i.e., by way of an action. If the statute does not include explicit language regarding a private cause of action, [but contains] provisions [that] create some ambiguity, [courts may] look … to legislative history for greater insight.” (Noe v. Superior Court (2015) 237 Cal.App.4th 316, 336, internal quotation marks and citations omitted.)
Penal Code section 368 does not itself contain any language suggesting the Legislature intended to create a private right of action for a violation thereof. Plaintiff does not provide legal authority holding there is a private right of action under that criminal statute and the Court otherwise is not aware of any such authority. Nor does Plaintiff point to any legislative history materials showing the Legislature intended to create a private right of action. Thus, there is no basis for concluding that Plaintiff can bring an elder abuse claim pursuant to section 368.

Accordingly, the demurrer to the fourth cause of action for elder abuse is SUSTAINED without leave to amend.

E. Fifth Cause of Action for Vicarious Liability

The fifth cause of action is entitled “Vicarious Liability” and alleges that MRC is vicariously liable for Putman’s wrongful conduct.

Defendants argue that vicarious liability is not a cause of action but rather a theory of recovery. Defendants do not elaborate further and neglect to cite any legal authority whatsoever to substantiate their position. As such, their presentation is deficient. (See Cal. Rules of Court, rule 3.1113(b).) With that said, their position appears to be legally correct.

Vicarious liability is not a cause of action in and of itself; instead, it is a theory upon which a defendant may be liable for wrongful conduct committed by another. “Vicarious liability ‘means that the act or omission of one person … is imputed by operation of law to another[.]’ [Citation.] Thus, vicarious liability is a departure from the general tort principle that liability is based on fault. [Citation.] [¶] As an illustration, under the doctrine of respondeat superior, the employee’s fault is imputed to the employer. [Citation.] The employer is held vicariously liable for the employee’s torts committed within the scope of employment.” (Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 726-727.) “[W]here no underlying cause of action exists, no vicarious liability can exist either.” (Dyer v. Northbrook Property & Casualty Ins. Co. (1989) 210 Cal.App.3d 1540, 1553.)

In opposition, Plaintiff does not directly respond to the issue raised here. Rather, he merely states that all elements of vicarious liability have been alleged in order to establish MRC’s vicarious liability for Putnam’s actions. This is nonresponsive. The fifth cause of action is styled as an independent cause of action for vicarious liability despite the fact it is not a distinct cause of action. If any given cause of action is predicated upon that theory, the allegations should appear within the cause of action directly or by incorporation if averred in the background facts. Here, the preceding causes of action are already directed against MRC and there are vicarious liability allegations throughout the pleading. (See, e.g., FAC, ¶¶ 18, 24, 30, 36, 41.) The fifth cause of action simply does not assert a recognizable, independent cause of action.

Accordingly, the demurrer to the fifth cause of action is SUSTAINED without leave to amend.

IV. Motion to Strike

Defendants move to strike the prayer for punitive and exemplary damages on the basis the facts alleged in the FAC do not show malice, fraud, or oppression. Given the Court’s order sustaining the demurrer to all causes of action, the motion to strike is MOOT.