Case Name: Roxanne Wilson v. Alette Kaschemekat

Case No.: 17CV320754

Motion for Summary Judgment

Factual and Procedural Background

This action arises out of an altercation between plaintiff Roxanne Wilson (“Plaintiff”) and her neighbor, Alette Kaschemekat (“Defendant”).

According to the complaint, Plaintiff, who is Latina, and Defendant, who is white, live in the same Vizcaya townhome complex in Campbell, California. The complex has a community pool. Plaintiff’s guests, who were racial minorities, were using the pool when Defendant began questioning them in a racially hostile manner. Plaintiff was alerted to this issue and came to the pool to inquire about what was happening. After some discussion, Defendant lunged at her and forcefully grabbed her arm. These actions were racially motivated.

On December 19, 2017, Plaintiff filed a complaint asserting causes of action against Defendant for assault, battery, and intentional infliction of emotional distress.

On January 18, 2018, Defendant filed an answer to Plaintiff’s complaint.

On December 10, 2018, Defendant filed the motion now before the court, a motion for summary judgment/ adjudication of Plaintiff’s complaint.

IV. Defendant’s motion for summary judgment is DENIED.

A. Assault and Battery.

The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant’s conduct; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (So v. Shin (2013) 212 Cal.App.4th 652, 668–669, 151 Cal.Rptr.3d 257.) The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant’s conduct; and (4) a reasonable person in the plaintiff’s position would have been offended by the touching. (Id. at p. 669, 151 Cal.Rptr.3d 257.)

(Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)

In moving for summary judgment/adjudication of the assault and battery causes of action, Defendant proffers evidence that she did not intend to cause harmful or offensive contact with Plaintiff. Defendant begins by recounting the events leading up to the incident. At the time of the subject incident, Defendant was 82 years old. On the date in question, Defendant heard loud voices of boys splashing and jumping in the pool. Defendant did not recognize the boys from the complex and they appeared to be unsupervised. Defendant was concerned at the time that the boys were violating several pool rules, among others, (1) engaging in noisy behavior; (2) diving/ running, and (3) using large flotation devices. One of the boys was jumping into the pool onto a flotation device. Defendant walked to the pool area to speak to the boys and try to determine whether they were affiliated with residents of the complex. Defendant said words to the effect that one of the young males, “looked like our President.” In doing so, Defendant was referring to the Homeowners’ Association President Michael Nixon, and was questioning whether the young man was related to him in order to determine whether it was appropriate for the boys to be there. At some point one of the boys made a phone call on a cell phone and Plaintiff came to the pool area. Plaintiff appeared agitated and accused Defendant of being a racist. In order to try and calm Plaintiff down and explain the situation with the boys, Defendant lightly placed her left (i.e., non-dominant) hand on Plaintiff’s shoulder. At the time, Defendant was 82 years old and had a broken and casted right arm.

On the issue of her intent, Defendant submits her declaration that she did not intend to cause any harmful or offensive contact to Plaintiff. Defendant was simply trying to get Plaintiff’s attention, and get her to calm down so they could discuss the situation. The nature of Defendant’s contact was merely letting her hand rest on Plaintiff’s shoulder. Defendant did not apply any force or pressure whatsoever. According to a witness, Defendant “barely touched” the upper arm of Plaintiff. Plaintiff sustained no physical injuries in the incident.

“The usages of decent society determine what is offensive. Thus, as Lord Holt observed, ‘the least touching of another in anger’ or the laying of hands in a rude or insolent manner may amount to a battery, whereas a touching or other contact in a courteous or merely casual manner for a legitimate purpose or one unavoidably made is no wrong. Thus, it is not a battery to touch another for the purpose of attracting his attention, nor to grasp another by the hand or arm as a gesture of friendship. These are usual and common customs and, therefore, are ordinarily not offensive to a normal person.” (1 Harper, James & Gray, The Law of Torts (2d ed. 1986) § 3.2, pp. 269-270, fns. omitted.)

(Barouh v. Haberman (1994) 26 Cal.App.4th 40, 46, fn. 5.)

In opposition, Plaintiff proffers evidence depicting a different picture of the events, particularly with regard to whether Defendant had an intent to cause harmful or offensive contact. Plaintiff proffers her own declaration in which she states, “I calmly approached [Defendant] to try to find out what was going on. At no time did I accuse [Defendant] of being a ‘racist.’ I was simply responding to my nephew’s call to come to the pool area and I was trying to find out what was going on.” “I calmly asked [Defendant] what’s going on, or words to that effect. Before I knew it [Defendant] lunged at me, causing me immediate apprehension and fear for my safety.” “[Defendant] forcibly grabbed my left arm. The grabbing of my arm was not a light touching as alleged by defendant. It was a forceful grabbing of my left arm, which caused me pain. I did not consent to this. From the force of it, and strong pressure applied, it was clear to me that it was done in a bullying manner to intimidate me and cause me injury. It definitely was not done by [Defendant] to try to calm me down, as I was not upset prior to [Defendant] forcibly grabbing my left arm.” “I immediately told [Defendant], don’t touch me or words to that effect and broke free from [Defendant’s] grasp. I then tried to get away from her. Thereafter, I proceeded to call the police, who arrived a short time later.” “[Defendant’s] assault and battery of me was not merely a letting of her hand rest on my shoulder. [Defendant] did not just ‘barely touch’ me. [Defendant’s] grabbing of my arm was forceful and done with such force and pressure applied to my arm that my arm hurt badly.” “[Defendant’s] forceful grabbing of my arm, especially unexpected as it was, was painful and I suffered physical injury, as the pain intentionally inflicted by [Defendant] on my arm lasted for at least two days.”

Plaintiff also proffers the declaration of her nephew, Anthony Wilson, who states, in relevant part, “I saw [Defendant] lunge at [Plaintiff]. [Defendant] forcibly grabbed [Plaintiff’s] arm. [Defendant] did not just ‘barely touch’ [Plaintiff] by letting her hand rest on [Plaintiff’s] shoulder. The grab looked forceful, and from the way [Defendant] did it, it looked like [Defendant] was trying to intimidate [Plaintiff] and hurt her.”

The evidence submitted in opposition with regard to Defendant’s physical contact with Plaintiff is in conflict and creates a triable issue with regard to whether Defendant had an intent to cause harmful or offensive contact. Accordingly, Defendant’s motion for summary judgment is DENIED. Defendant’s alternative motion for summary adjudication of Plaintiff’s causes of action for assault and battery is DENIED.

B. Intentional Infliction of Emotional Distress.

“The tort of intentional infliction of emotional distress is comprised of three elements: (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 suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494; see also Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 744 – 745; see also CACI, Nos. 1600 and 1602.)

Defendant cites to the same evidence above to argue that her conduct was not extreme or outrageous she did not have any intent to inflict injury. “A defendant’s conduct is ‘outrageous’ when it is so ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” ’ [Citation.] And the defendant’s conduct must be ‘ “ ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” ’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051.)

Defendant argues the conduct at issue in this case does not amount to extreme or outrageous conduct. “There is no bright line standard for judging outrageous conduct and its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical.” (Cochran, supra, 65 Cal.App.4th at p. 494.)

In Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499, the court wrote, “Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.”

“Conduct, to be ‘outrageous’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. While the outrageousness of a defendant’s conduct normally presents an issue of fact to be determined by a trier of fact, the court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883; see also Unterberger v. Red Bull North America, Inc. (2008) 162 Cal.App.4th 414, 423—“[T]he conduct that plaintiffs allege caused them distress, i.e., the termination of a business relationship, is, as [a] matter of law, not the type of ‘outrageous’ conduct that is required to support a cause of action for intentional infliction of emotional distress.”)

Here, the court is not prepared to find on these facts which are in dispute, as a matter of law, that the conduct complained of was not “extreme and outrageous.” Accordingly, Defendant’s alternative motion for summary adjudication of Plaintiff’s cause of action for intentional infliction of emotional distress is DENIED.