Case Name: Sandy Kopanos v. David Rolph
Case No.: 16-CV-290139

Defendant David Rolph’s Demurrer to the First Amended Complaint of Plaintiff Sandy Kopanos

Plaintiff Sandy Kopanos (“Plaintiff”) inherited a single family residence in Lake Tahoe, California. (First Amended Complaint (“FAC”), ¶ 6.) She “engaged [defendant David Rolph (“Defendant”)] to raze the property to the ground[] and to rebuild a new residence.” (Ibid.) Once the new residence was completed, “Plaintiff listed the property for short term rentals utilizing the services and website of Vacation Rentals By Owner … and continues to do so.” (Ibid.) Defendant is “suing Plaintiff based upon his assertion that he owns or otherwise has some interest in the Rental Business” and “Plaintiff disputes these assertions.” (Id., at ¶ 7.)

Additionally, Defendant lived with Plaintiff for a number of years in her home in San Jose, California. (FAC, ¶ 13.) Plaintiff alleges that Defendant verbally abused her and his “conduct radically accelerated in or about late September 2015 and continues through to the present.” (Ibid.) “Defendant’s incessant verbal abuse includes, but is … not limited to, screaming and yelling” various obscene expletives at Plaintiff. (Ibid.) As a result of Defendant’s verbal abuse, Plaintiff “felt compelled to vacate her own home until such time as … Defendant vacated.” (Ibid.) Since Plaintiff left her home, Defendant “ratcheted up the heat while leaving the doors open;” left “all of the lights on;” “installed video surveillance in [her] house;” “locked certain rooms in [her] house so that she could not access them;” “ordered excessive pay-per-view cable programming;” “opened [her] mail;” and “sabotaged [her] air conditioning unit.” (Ibid.) All of Defendant’s conduct was allegedly done with the intent to cause Plaintiff severe emotional distress. (Id., at ¶ 14.) Plaintiff further alleges that “Defendant’s outrageous conduct has caused, and continues to cause, … [her] severe emotional distress.” (Id., at ¶ 15.)

On February 25, 2016, Plaintiff filed the operative FAC against Defendant, alleging causes of action for: (1) declaratory relief/accounting; and (2) intentional infliction of emotional distress (“IIED”). On March 16, 2016, Plaintiff filed a dismissal of the first cause of action of the FAC without prejudice.

Currently before the Court is Defendant’s demurrer to the FAC. Plaintiff filed an opposition to the demurrer on April 15, 2016. Defendant filed a reply on April 18, 2016.

I. Procedural Issue

As an initial matter, though not raised by the parties, the Court notes that the notice of demurrer fails to set forth the grounds for issuance of the order; each ground for demurrer is not set forth in a separate paragraph; and the notice of demurrer does not identify whether each ground for demurrer is applicable to the entire FAC or to specific causes of action. (See Cal. Rules of Court, rules 3.1110, subd. (a), 3.1320, subd. (a).) Nonetheless, Defendant sets forth the grounds for demurrer in his memorandum of points and authorities. Moreover, there does not appear to have been any prejudice to Plaintiff as a result of these defects as she filed a detailed opposition addressing each ground for demurrer raised in Defendant’s memorandum of points and authorities. Given the absence of prejudice and in deference to the principle that matters should be decided on the merits, the Court will overlook these defects and reach the merits of the demurrer. (See Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 237 [court may reach merits of a dispute despite a violation of the California Rules of Court].) Defendant is admonished that all future filings must comply with the California Rules of Court.

II. Legal Standard

“In reviewing the sufficiency of a [pleading] against a general demurrer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’ ” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the [pleading]; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)

III. Uncertainty

Defendant demurs to the FAC in its entirety on the ground of uncertainty. (See Code Civ. Proc., § 430.10, subd. (f).) Defendant argues that the FAC is uncertain because: “[t]he pleading is titled ‘First Amended Complaint[,]’ … [but] listed in paragraph 3 of the pleading as the ‘Second Amended Complaint’ ” (Mem. Ps. & As., p. 3); and “[w]ith the dismissal of the First Cause of Action for Declaratory Relief it is unclear whether [Plaintiff] is also dismissing the ancillary relief sought in Paragraph 10 of the Amended Complaint that is included under the heading of ‘Requests for Declaratory Relief[’] ” (Mem. Ps. & As., pp. 3-4).

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurer for uncertainty “should not be sustained if the allegations are sufficiently clear to apprise the defendant of the issues that must be met, even if the allegations of the complaint may not be as clear and as detailed as might be desired.” (Merlino v. West Coast Macaroni Mfg. Co. (1956) 90 Cal.App.2d 106, 108; see Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135 [a demurrer for uncertainty will be sustained only where the pleading is so incomprehensible that the opposing party cannot reasonably respond].)

While the FAC is not a model of clarity, the Court finds that it is not so uncertain that Defendant cannot reasonably respond. First, it is readily apparent that the reference to the “Second Amended Complaint” in the third paragraph of the operative pleading is a typographical error. At all other times in the pleading, Plaintiff refers to the subject document as the FAC. Moreover, it is undisputed that the pleading is, in fact, Plaintiff’s first attempt to amend her complaint. Furthermore, even if the identified discrepancy creates some ambiguity, Defendant fails to articulate why the ambiguity prevents him from responding to the pleading.

Second, Plaintiff’s dismissal of the first cause of action for declaratory relief included her “ancillary” request for an accounting set forth in paragraph 10 of the FAC because the request for an accounting was subsumed under the claim for declaratory relief. (See FAC, pp. 2-3.) Notably, in her opposition papers, Plaintiff admits that her request for an accounting was part of her first cause of action for declaratory relief, which has been dismissed. (See Opp’n., p. 3:20-25.) Thus, the dismissal did not create any uncertainty in the FAC.

For the foregoing reasons, the demurrer to the FAC on the ground of uncertainty is OVERRULED.

IV. Failure to Allege Facts Sufficient to Constitute a Cause of Action

Defendant demurs to the first cause of action for declaratory relief/accounting and the second cause of action for IIED on the ground of failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).)

As a preliminary matter, the general demurrer to the first cause of action is MOOT as the claim has been dismissed.

Next, with respect to the second cause of action for IIED, Defendant argues that Plaintiff fails to allege sufficient facts to state a claim because mere insults or profanity do not constitute outrageous conduct.

“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 (“Cochran”); see also Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 744-745.) In order for conduct to be considered “outrageous” for the purpose of tort liability for IIED, it must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34, 44.) “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.” (Cochran, supra, 65 Cal.App.4th at 494, internal quotations omitted.) The outrageousness of a defendant’s conduct normally presents an issue of fact to be determined by the jury; nevertheless, the court may determine the issue as a matter of law where it would be unreasonable to conclude that the defendant’s conduct rose to the requisite level of outrageousness. (See Trerice v. Blue Cross of Cal. (1989) 209 Cal.App.3d 878, 883.) For example, “[t]here is virtually unanimous agreement that … ordinary defendants are not liable for mere insult, indignity, annoyance, or even threats, where the case is lacking in other circumstances of aggravation. … Accordingly, it is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances.” (Yurick v. Super. Ct. (1989) 209 Cal.App.3d 1116, 1128.)

Here, Plaintiff’s claim for IIED is based, in large part, on mere insults, profanities, obscenities, and/or verbal abuse. As indicated above, were these the only allegations supporting her claim, Plaintiff would not be entitled to recovery. However, the claim is also based, in part, on conduct that arguably constitutes aggravating circumstances. Plaintiff alleges that Defendant “ratcheted up the heat while leaving the doors open;” left “all of the lights on;” “installed video surveillance in [her] house;” “locked certain rooms in [her] house so that she could not access them;” “ordered excessive pay-per-view cable programming;” “opened [her] mail;” and “sabotaged [her] air conditioning unit.” (FAC, ¶ 13.) Whether this conduct, in addition to the alleged verbal abuse, constitutes outrageous conduct is a question of fact to be determined by the jury and cannot properly be resolved on demurrer.

Accordingly, the general demurrer to the second cause of action for IIED is OVERRULED.