Case Number: BC690120 Hearing Date: May 31, 2018 Dept: 51

Background

Plaintiff Mary Jones sues defendant Rena Desai Callahan for damages based on allegations that defendant blackmailed non-party John Barstis into not speaking with plaintiff.

On January 12, 2018, plaintiff filed a complaint and on February 5, 2018, the operative first amended complaint for (1) intentional personal injury and (2) intentional infliction of emotional distress (IIED).

On April 12, 2018, defendant filed this opposed demurrer for insufficient facts and uncertainty. Defendant’s counsel submitted a compliant meet and confer declaration. Gherini Decl. ¶ 4. The Court considered the moving, opposition, and reply papers and rules as follows.

Plaintiff is self-represented. Self-represented litigants are held to the same standards that apply to licensed attorneys. Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1056; Lombardi v. Citizens Nat’l Trust & Sav. Bank (1955) 137 Cal.App.2d 206, 208-209 (stating that self-represented litigants are “restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts.”)

Request for Judicial Notice

Plaintiff’s request for judicial notice for four documents filed in another action are DENIED as superfluous. The Court notes in passing that none of the files appear in the online docket for the other action, although it does not draw any inference from this observation.

Standard

A demurrer tests the sufficiency of the pleading at issue as a matter of law. City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 1719. A demurrer may be sustained where the complaint fails to state facts sufficient to constitute a cause of action or the pleading is uncertain. CCP § 430.10(e), (f). The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 (stating that “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true.”) However, the Court does not assume the truth of allegations expressing conclusions of law or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709.

Additionally, a special demurrer to a complaint may be brought on the ground the pleading is uncertain, ambiguous, or unintelligible. CCP § 430.10(f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191. A demurrer based on uncertainty is disfavored and will be strictly construed even when the pleading is uncertain in some respects. Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616. A demurrer for uncertainty may be sustained when a defendant cannot reasonably determine to what he or she is required to respond. For example, when a plaintiff joins multiple causes of action as one, fails to properly identify each cause of action, or fails to state against which party each cause of action is asserted if there are multiple defendants, a complaint is uncertain. Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.

If the demurrer is sustained, plaintiff “has the burden of proving the possibility of cure by amendment.” Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 (citing Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79.) Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.

Analysis

Timeliness

Plaintiff argues that the demurrer was untimely filed, stating that defendant was served with the FAC by mail on February 5, 2018. OPP 1:28. On March 12, 2018, the original deadline to file a responsive pleading, plaintiff filed a declaration stating that the parties have been unable to meet and confer. The declaration triggered an automatic 30-day extension. CCP § 430.41(a)(2). The demurrer was filed, however, on April 12, 2018, one day after the extended deadline.

The demurrer is therefore untimely. Because plaintiff has fully responded to the demurrer in opposition, however, the defect was waived. See Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7; Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.

First COA: “Intentional Physical Injury”

The FAC alleges that for years, defendant has been threatening and blackmailing Barstis, telling him that if he did not do what she demanded she would “tell the world his secrets.” FAC 2:2.

The Court construes “intentional physical injury” to possibly mean battery or negligence (namely, negligent infliction of emotional distress on a theory of bystander liability). This cause of action does not state either.

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” Yun Hee So v. Sook Ja Shin (2013) 212 Cal.App.4th 652, 669, as modified on denial of reh’g (Jan. 28, 2013).

No cause of action for battery is stated because the FAC does not allege that defendant ever physically harmed plaintiff. Rather, the FAC alleges that plaintiff’s harm is generally a result of defendant’s blackmailing Barstis. See, e.g., FAC 2:3-4 (“All causes of actions and damages to [plaintiff] in this case, are a direct link to [defendant’s] blackmail and threats to John Barstis that [if] he does not do exactly what [defendant] demands him do, [defendant] will expose all his ‘awful’ secrets.”)

Negligent infliction of emotional distress (NIED) is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply, and the existence of a duty is a question of law. Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.

“In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.” Thing v. La Chusa (1989) 48 Cal.3d 644, 647.

Recovery on a NIED cause of action is limited to close relatives or those living in the same household as the victim. Thing, supra, 48 Cal.3d at 668 fn.10 (“Absent exceptional circumstances, recovery should be limited to relatives residing in the same household, or parents, siblings, children, and grandparents of the victim.”); see also Elden v. Sheldon (1988) 46 Cal.3d 267, 273 (holding that “an unmarried cohabitant may not recover damages for emotional distress based on such injury.”)

Moreover, the second element above requires a plaintiff to have contemporaneous awareness of a victim’s injury. Thus, “[a]lthough a plaintiff may establish presence at the scene through non-visual sensory perception, someone who hears an accident but does not then know it is causing injury to a relative does not have a viable bystander claim for negligent infliction of emotional distress, even if the missing knowledge is acquired moments later.” Ra v. Superior Court (2007) 154 Cal.App.4th 142, 149 (internal quotation marks and brackets omitted.)

Here, plaintiff is neither a relative a Barstis nor a cohabitant of his household, and plaintiff does not allege that she was present at all times during the years Barstis was allegedly blackmailed. Instead, in her opposition, plaintiff states that she only became aware of any alleged harm to Barstis in the prior two weeks (presumably, the two weeks before she filed the complaint.) OPP 9:2-4. This cause of action would therefore fail as one for NIED.

The first cause of action for “intentional physical injury” fails to state either battery or NIED. To the extent it aims to articulate another recognized theory of recovery, defendant would be unable to reasonably determine what claims are being directed at her, and the cause of action to this extent is uncertain.

Plaintiff requests leave to amend if the demurrer is sustained, but there does not appear to be a reasonable possibility of stating this cause of action.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

Second COA: IIED

“A cause of action for intentional infliction of emotional distress exists when there is (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 (2009) 46 Cal.4th 1035, 1050 (internal citations and quotation marks omitted.)

A cause of action for IIED must state with specificity the “acts which are so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Schlauch v. Hartford Accident & Indemnity Co. (1983) 146 Cal.App.3d 926, 936 (internal citation and quotation marks omitted.)

“It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.

Finally, to constitute “severe emotional distress,” it must be “emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.

Here, the FAC is replete with allegations that defendant harmed Barstis. As noted above, to the extent plaintiff alleges she was harmed, it was generally because of defendant’s alleged blackmail of Barstis. Defendant’s alleged blackmail of Barstis is not conduct directed at plaintiff nor conduct that occurred in the presence of plaintiff.

The FAC does suggest that certain of defendant’s conduct was directed at plaintiff. For instance, the FAC alleges that defendant obtained a temporary restraining order against plaintiff, directed Barstis to do the same, and “knew a TRO would be totally devastating to [plaintiff] and break her heart forever.” FAC ¶¶ 43, 160. To the extent plaintiff is basing this cause of action on these actions, it fails to state conduct “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Schlauch, supra, 146 Cal.App.3d at 936 (internal citation and quotation marks omitted.)

Furthermore, as defendant argues, the emotional distress on plaintiff amounts to a sense of bereavement, which, even if sincerely and strongly felt, does not exceed the bounds of what someone in a civilized society would be expected to endure. See FAC ¶ 156 (“[Plaintiff] suffered and will always for the rest of her life suffer extreme emotional distress and anguish as if her true love has died and she was left behind.”)

There does not appear to be a reasonable possibility of stating this cause of action.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

Statute of Limitations

Defendant argues that both causes of action separately fail because they are barred by the statute of limitations. Code of Civil Procedure section 335.1 provides that suits for personal injuries must be brought within two years. This is the same whether the injury was assault, battery, IIED, or NIED. See Pugilese v. Superior Court (2007) 146 Cal.App.4th 1444, 1450.

In her opposition, plaintiff argues that the delayed discovery rule should apply. OPP 7-9. Plaintiff also appears to argue that the continuous accrual rule applies. Ibid.

The first cause of action fails for uncertainty, as it is not clear what theory of liability plaintiff is articulating. The second cause of action fails in part because plaintiff does not allege that defendant’s conduct was directed at her. To this extent, a determination of whether the statute of limitations has passed would require assuming contrary facts, which the Court is disinclined to do. To the extent the second cause of action is based on the temporary restraining orders defendant and Barstis obtained against plaintiff, however, it would not be barred by the statute of limitations given that they were allegedly obtained in or around March 2017. Complaint ¶¶ 43, 160. Nevertheless, because the Court sustains the demurrer on other grounds, it does not reach the parties’ arguments regarding the statute of limitations.

Standing

Defendant contends that both causes of action separately fail because plaintiff lacks standing to pursue these causes of action. Code of Civil Procedure section 367 provides that “[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” Defendant argues that plaintiff “has, in essence, sued [defendant] for a broken heart, but has not sued the object of her affection.” MOT 1:8-9.

Because the Court sustains the demurrer on other grounds, it does not reach defendant’s arguments regarding standing.

Conclusion

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. If defendant has not already done so, it is ORDERED to submit a proposed order and judgment of dismissal within 10 days. The Court may impose a monetary sanction for failing to do so. Defendant to give notice.