Filed 7/23/20 Mireskandari v. Gilbert CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SHAHROKH MIRESKANDARI,

Plaintiff and Appellant,

v.

LAURIE A. GILBERT et al.,

Defendants and Respondents.

D074976

(Super. Ct. No. 37-2015-00029990- CU-FT-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, John S. Meyer, Judge. Reversed and remanded with directions.

James & Associates, Becky S. James, Lisa M. Burnett; Law Offices of Bernard R. Schwam and Bernard R. Schwam for Plaintiff and Appellant.

Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Linceberg & Rhow and Thomas V. Reichert for Defendants and Respondents.

This is an appeal from a judgment of dismissal following the sustaining of a demurrer without leave to amend. Plaintiff Shahrokh Mireskandari (Plaintiff) sued defendants Laurie A. Gilbert, a paralegal, and her law firm employer, defendant Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg, PC (Bird, Marella), (together Defendants) based on professional services Defendants performed for their clients who took action against Plaintiff based in part on these services. In the operative second amended complaint (SAC), Plaintiff alleged two causes of action against Defendants—invasion of privacy and intentional infliction of emotional distress (IIED).

As we explain, the trial court erred in ruling that the litigation privilege (Civ. Code, § 47, subd. (b)) applied, barring both causes of action. As we further explain, Plaintiff has alleged sufficient facts to state a cause of action for invasion of privacy, Plaintiff has not alleged sufficient facts to state a cause of action for IIED, and the trial court did not abuse its discretion in denying leave to amend the IIED claim. Accordingly, we will reverse the judgment and remand with directions to enter an order overruling the demurrer as to the cause of action for invasion of privacy and sustaining the demurrer without leave to amend as to the cause of action for IIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff received an undergraduate degree from National University in California, graduated from the American University of Hawaii law school in 1997, and attended London Guildhall University Law School in London in 1998. He qualified as a solicitor in 2000, and by 2006 he was the managing partner of a London firm with mostly “black, minority, or ethnic origin” (BME) solicitors and staff.

In 2007, Plaintiff publicly disclosed to a member of Parliament problems BME solicitors experienced “at the hands of the Legal Society of England and Wales (‘LSE’) and the Solicitors Regulatory Authority (‘SRA’)” (together, LSE/SRA). As a result, an internal review was commenced relating to the allegedly discriminatory and racist practices of the LSE/SRA toward BME solicitors. In retaliation, the LSE/SRA began a campaign to discredit Plaintiff. As part of its effort to obtain Plaintiff’s “confidential information,” and as a pretext for intervening in Plaintiff’s law practice, the LSE/SRA retained Bird, Marella. More specifically, “LSE/SRA instructed Bird[,] Marella to illegally access” a specific website “to obtain Plaintiff’s educational records without notice to or knowledge of Plaintiff.”

On September 22, 2008, Bird, Marella’s paralegal, Gilbert, “unlawfully and illegally created a user profile” on the website “to gain access to Plaintiff’s confidential educational records.” In order to create the user profile, Gilbert agreed to specified terms and conditions of the website, despite Bird, Marella’s knowledge that, based on these terms and conditions, Bird, Marella did not have the requisite authority to access Plaintiff’s private and confidential educational records. Using her newly created profile and stating that she had the requisite authority to do so (see fn. 3), Gilbert concealed the following actions from Plaintiff: Gilbert requested Plaintiff’s “education records” from George Mason University and from George Washington University; Gilbert accessed Plaintiff’s “education records” from George Mason University; and Gilbert communicated the information she received to the LSE/SRA.

Within two weeks of Defendants requesting and accessing these educational records, LSE/SRA demanded from Plaintiff information regarding his “educational and work background.”

Approximately two months later, on December 15, 2008, the LSE/SRA intervened in Plaintiff’s law practice.

More than two years later, in early April 2011, the Solicitor’s Disciplinary Tribunal (SDT) “initiated the proceedings against Plaintiff regarding the intervention of Plaintiff’s legal practice and his license to practice law in the United Kingdom” (SDT proceedings). After approximately three weeks of testimony, the SDT adjourned the SDT proceedings until June 2012.

During this break, Plaintiff travelled to California. He became seriously ill and requested that the SDT proceedings be further adjourned. Despite “compelling medical evidence from several California physicians of his illness, his inability to travel to England, and inability to participate in the SDT proceedings,” the SDT rejected Plaintiff’s request and in June 2012 conducted the continued SDT proceedings in Plaintiff’s absence. As a result of the SDT proceedings, the SDT struck Plaintiff from the roll of solicitors, thereby preventing Plaintiff from practicing law in the United Kingdom. This caused in the permanent closing of the law firm of which he was a partner. Plaintiff suffered damages in excess of $500 million in damages.

In September 2015, Plaintiff filed the underlying action against Defendants and one other (see fn. 4). The operative complaint is the SAC, and in the SAC Plaintiff alleges causes of action against Defendants for invasion of privacy and IIED.

In support of his invasion of privacy claim, Plaintiff alleges that, in 2008, on behalf of the LSE/SRA and without his knowledge, consent, or authorization, Defendants “invaded Plaintiff’s right to privacy by unlawfully and illegally creating a user profile on the . . . website to gain access to Plaintiff’s educational records.” Further, “[t]he access and disclosure of Plaintiffs private and confidential educational records was offensive and objectionable to Plaintiff and would also be offensive and objectionable to a reasonable person of ordinary sensibilities[.]” Finally, “[a]s direct, legal and proximate result of Ms. Gilbert’s unauthorized and illegal access and disclosure of Plaintiff’s confidential and private educational records . . . , Plaintiff has been damaged[.]”

In support of his IIED claim, Plaintiff incorporates by reference the allegations in the claim for invasion of privacy and alleges that, “[a]s a direct, legal and proximate result of Ms. Gilbert’s unauthorized and illegal access and disclosure of Plaintiff’s confidential and private educational records . . . , and the outrageous conduct engaged in by Defendants which was knowing, intentional, and willful and done with a reckless disregard of the probability of causing Plaintiff severe emotional distress[,] . . . Plaintiff has been damaged[.]” Plaintiff’s damages include “loss of reputation and standing in the community and caused him humiliation, embarrassment, extreme mental distress, and suffering.”

In short, both of Plaintiff’s claims are based on Defendants’ access to and disclosure of certain of Plaintiff’s confidential and private records of his education.

Defendants demurred to Plaintiff’s SAC. They contended that each of the causes of action: was barred by the litigation privilege (Civ. Code, § 47, subd. (b)); failed to allege facts sufficient to constitute a cause of action (Code Civ. Proc., § 430.10, subd. (e)); and was uncertain (Code Civ. Proc., § 430.10, subd. (f)). Following briefing, the court entertained oral argument, at the conclusion of which the court sustained the demurrer without leave to amend. In a written order, the court first granted Defendants’ request for judicial notice and Plaintiff’s two requests for judicial notice and then substantively ruled both that the litigation privilege is a bar to each of Plaintiff’s claims and that each of Plaintiff’s claims fails to allege facts sufficient to constitute a cause of action.

The court entered a judgment in favor of Defendants, and Plaintiff timely appealed.

II. DISCUSSION

On appeal, Plaintiff presents four arguments: (1) the litigation privilege does not apply to the claims at issue; (2) Plaintiff alleged facts sufficient to state a cause of action for invasion of privacy; (3) Plaintiff alleged facts sufficient to state a cause of action for IIED; and (4) in the event he did not sufficiently allege IIED, Plaintiff is entitled to amend the SAC. As we explain, governed by the applicable standards in reviewing the sufficiency of a complaint subject to demurrer, on the present record: (1) the litigation privilege is not a bar to Plaintiff’s claims; (2) Plaintiff sufficiently alleged a cause of action for invasion of privacy; (3) Plaintiff did not sufficiently allege a cause of action for IIED; and (4) the trial court did not abuse its discretion in denying leave to amend the IIED claim.

A. Standards of Review

After assuming the truth of the allegations in the SAC and the facts that can be inferred from those pleaded (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 (Zelig)), “we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162). (Accord, Mathews, supra, 8 Cal.5th at p. 762.) We review for an abuse of discretion the trial court’s decision to deny leave to amend the complaint. (Zelig, at p. 1126.)

The trial court’s judgment is “presumed to be correct.” (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) Thus, the appellant has the burden of affirmatively establishing reversible error (ibid.), including whether the court abused its discretion in denying leave to amend following the sustaining of a demurrer (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320 (Campbell); Zelig, supra, 27 Cal.4th at p. 1126).

B. The Litigation Privilege

The litigation privilege provides that any “publication” or “broadcast” made in “any . . . judicial proceeding” is “privileged.” (Civ. Code, § 47, subd. (b).) ” ‘The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.’ ” (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955 (Jacob B.), quoting Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (Silberg).) As potentially applicable here, the privilege also applies to statements made in preparation for litigation, so long as the litigation “is contemplated in good faith and under serious consideration.” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251 (Action Apartment).)

The privilege is a matter of substantive law, not a rule of evidence, and when applicable “provides absolute protection from tort liability for statements made during the course of litigation.” (Wegner, et al., Cal. Practice Guide: Civil Trials & Evidence (The Rutter Group 2019) ¶ 8:1852.6, p. 8E-3); accord, Haning, et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2019) ¶ 2:3202, p. 2(IV)-1 [“litigation privilege provides absolute immunity”].) The privilege is characterized as “absolute,” because it applies regardless of the communicator’s “motives, morals, ethics or intent.” (Silberg, supra, 50 Cal.3d at p. 220; accord, Jacob B., supra, 40 Cal.4th at p. 955.)

The litigation privilege applies to all tort claims except malicious prosecution (Silberg, supra, 50 Cal.3d at pp. 215-216) and virtually all litigation-related communications, including those that are “perjurious or meant to be kept confidential” (Jacob B., supra, 40 Cal.4th at p. 959). If applicable, the litigation privilege is a bar to both of the specific claims Plaintiff asserts in this action—namely, invasion of privacy (Jacob B., at p. 960) and IIED (Silberg, at p. 215).

The underlying purposes of applying the litigation privilege include: (1) affording litigants and witnesses the “utmost freedom of access” to courts without fear of “being harassed subsequently by derivative tort actions”; (2) promoting the effectiveness of judicial proceedings by encouraging “open channels of communication and the presentation of evidence”; (3) encouraging attorneys to “zealously protect” their clients’ interests; and (4) enhancing the finality of judgments and avoiding “an unending roundelay of litigation.” (Silberg, supra, 50 Cal.3d at pp. 213-214.) These purposes, and thus the privilege, also apply to communications made prior to, or in anticipation of, litigation—but only when the prospect of litigation advances from being “a mere possibility” to “a contemplated reality.” (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 34.)

Here, all of Defendants’ actions at issue were taken prior to any litigation. Both of the claims alleged in the SAC are based on Defendants’ access to and disclosure of Plaintiff’s confidential education record in September 2008; yet the SDT did not initiate the proceedings against Plaintiff until April 2011. We will assume, without deciding, that Defendants’ access and disclosure of Plaintiff’s private and confidential education records involved communications by a litigant or other participant authorized by law to achieve the objects of the anticipated litigation and have some connection or logical relation to the proposed action. (See Jacob B., supra, 40 Cal.4th at p. 955 [elements of litigation privilege].) Thus, we consider only whether, at the time of Defendants’ 2008 communications, the SDT’s 2011 litigation was “contemplated in good faith and under serious consideration.” (Action Apartment, supra, 41 Cal.4th at p. 1251; accord, Strawn v. Morris, Polich & Purdy, LLP (2019) 30 Cal.App.5th 1087, 1095-1096 (Strawn).)

Because the litigation privilege does not attach prior to the filing of an actual lawsuit, for purposes of determining whether the privilege applies when the challenged communication occurs prior to the lawsuit, the issue is whether the litigation is ” ‘ “no longer a mere possibility, but has instead ripened into a proposed proceeding that is actually contemplated in good faith and under serious consideration as a means of obtaining access to the courts for the purpose of resolving the dispute.” ‘ ” (Strawn, supra, 30 Cal.App.5th at pp. 1096, 1097.) In determining whether ” ‘ “imminent litigation was seriously proposed and actually contemplated in good faith as a means of resolving the dispute between [the parties],” ‘ ” courts consider three factors. (Id. at pp. 1095-1096, quoting Action Apartment, supra, 41 Cal.4th at p. 1251.) First, ” ‘it is necessary that there be proof of “some actual verbalization of the danger that a given controversy may turn into a lawsuit,” ‘ ” since ” ‘the “mere possibility or subjective anticipation” of litigation is insufficient.’ ” (Strawn, at pp. 1095-1096.) Second, even though ” ‘an actual ‘threat’ of litigation” ‘ ” is not necessary, ” ‘there must be a “serious, good faith proposal.” ‘ ” (Id. at p. 1096.) Finally, ” ‘the contemplated litigation must be imminent.’ ” (Ibid.)

Where, as here, Defendants attempt ” ‘ “to take advantage of the [litigation] privilege by applying it to their own communications, they must establish that at the time they made the subject communications, they themselves actually contemplated prospective litigation, seriously and in good faith.” ‘ ” (Strawn, supra, 30 Cal.App.5th at pp. 1097-1098.) ” ‘ “This is a question of fact that must be determined before the privilege is applied.” ‘ ” (Id. at p. 1096.)

Accepting the facts of the SAC as true, as we must (Mathews, supra, 8 Cal.5th at p. 762; Zelig, supra, 27 Cal.4th at p. 1126), we conclude that the trial court erred. Defendants’ communications occurred in September 2008, and the SDT did not initiate the litigation by which Plaintiff lost his ability to practice law in the United Kingdom until April 2011, more than two and a half years later. Thus, at the time of Defendants’ communications, there is no factual basis on which to find either that Defendants acted in good faith or that the prospective litigation was sufficiently serious. Stated differently, based on the three factors set forth in Strawn, supra, 30 Cal.App.5th at pages 1095-1096, at the time of Defendants’ communications, the record lacks evidence of: (1) actual verbalization that the controversy may turn into a lawsuit; and (2) a serious, good faith proposal to resolve the dispute; and (3) the contemplation of any imminent litigation.

For these reasons, we cannot conclude as a matter of law that, when Defendants accessed and disclosed Plaintiff’s private and confidential education records, litigation was “contemplated in good faith and under serious consideration.” (Action Apartment, supra, 41 Cal.4th at p. 1251.) Accordingly, the trial court erred in applying the litigation privilege to bar the claims against Defendants on the record before the court and the standards to be applied in ruling on Defendants’ demurrer.

C. The Right to Privacy

The California Constitution provides a right to privacy: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” (Cal. Const., art. I, § 1, italics added.)

The elements of a cause of action for a violation of this constitutional right to privacy are: “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40 (Hill).) The first element “is a question of law to be decided by the court.” (Hill, supra, 7 Cal.4th at p. 40.) The second and third elements “are mixed questions of law and fact. If the undisputed material facts show no reasonable expectation of privacy or an insubstantial impact on privacy interests, the question of invasion may be adjudicated as a matter of law.” (Ibid.)

As we explain, because the current record does not support any of the three elements, the trial court erred in applying the privilege as a matter of law.

1. Reasonable Expectation of Privacy; and
Conduct Constituting a Serious Invasion of Privacy

The second and third elements of the cause of action, which involve mixed questions of law and fact, are whether the plaintiff has a reasonable expectation of privacy in the circumstances and whether the defendant’s conduct constitutes a serious invasion of privacy. (Hill, supra, 7 Cal.4th at p. 40.) Defendants have not established that both of these elements fail as a matter of law.

This is an appeal following the sustaining of a demurrer, and the material facts before us are those in the SAC. These facts include, at paragraphs 76, 84, and 85, respectively: In 2008, without his knowledge, consent, or authorization, Defendants “invaded Plaintiff’s right to privacy by unlawfully and illegally creating a user profile on the . . . website to gain access to Plaintiff’s educational records”; “The access and disclosure of Plaintiffs private and confidential educational records was offensive and objectionable to Plaintiff and would also be offensive and objectionable to a reasonable person of ordinary sensibilities”; and Plaintiff has been damaged “[a]s a direct, legal and proximate result of Ms. Gilbert’s unauthorized and illegal access and disclosure of Plaintiff’s confidential and private educational records.” Thus, Plaintiff has alleged, at a minimum, the reasonableness of his expectation of privacy in this factual context and the seriousness of Defendants’ alleged invasion of this privacy. In short, each of these two elements of the cause of action presents a question of fact that cannot be resolved adversely to Plaintiff on demurrer.

Defendants attempt to convince us otherwise, by arguing that Plaintiff had no reasonable expectation of privacy and Defendants’ alleged invasion of privacy was not serious, because: “As [Plaintiff] himself alleges, Ms. Gilbert accessed the . . . website and did nothing more than verify his dates of attendance at two different American colleges.” (Italics added.) We are not persuaded; Defendants’ statement limiting the information Gilbert accessed to “dates of attendance” is not supported by the record. Defendants cite to paragraph 17 of the SAC, in which Plaintiff alleges three separate times that Defendants “requested education records” from the two universities (italics added); and Plaintiff does not mention “attendance” or “dates of attendance” in any of the SAC’s 89 numbered paragraphs.

At oral argument, Defendants’ counsel acknowledged that, in the SAC, Plaintiff alleges that Defendants accessed educational records, not dates of attendance as presented in Defendants’ brief on appeal. According to counsel, “it’s much more clear” in the original and first amended complaints that Plaintiff’s claim right to privacy claim is based on Defendants having accessed only dates of attendance.

Defendants’ counsel also relied on attachments to both earlier complaints that indicate Gilbert requested verification of Plaintiff’s dates of attendance at George Mason University and George Washington University. Counsel then suggested that the prior allegations and attachments are “admissions” by Plaintiff that the allegedly violative acts are limited to accessing his dates of attendance. (See, e.g., Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [allegations in prior pleadings]; Moran v. Prime Healthcare Management (2016) 3 Cal.App.5th 1131, 1145-1146 [attachment to complaint].) Similarly, counsel asserted that, where a complaint includes a general allegation (e.g., of an ultimate fact) and specific allegations (e.g., that add details or explanatory facts), then the specific allegation will control over an inconsistent general allegation. (See, e.g., Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 619.) None of these arguments applies to the pleadings in this case.

Only where the earlier allegation, the prior attachment, or the general allegation is inconsistent with the amended allegation do we consider it an admission that requires us to disregard the amended allegation. (Del E. Webb Corp. v. Structural Materials Co., supra, 123 Cal.App.3d at p. 604 [the amended allegation must be “inconsistent with attached documents, or allegations contrary to facts which are judicially noticed” (italics added)]; Moran v. Prime Healthcare Management, supra, 3 Cal.App.5th at p. 1145 [plaintiff’s allegations concerning what he expected to pay “are contradicted by the agreements he signed” and attached to the amended complaint (italics added)]; Medical Marijuana, Inc. v. ProjectCBD.com, supra, 6 Cal.App.5th at p. 619 [“specific allegations in a complaint control over an inconsistent general allegation” (italics added)].) Here, by alleging that Defendants accessed both Plaintiff’s dates of attendance and Plaintiff’s educational records, Plaintiff has not pleaded any inconsistency or contradiction.

Thus, on the present record, Plaintiff is not limited to the allegation that Defendants accessed only Plaintiff’s dates of attendance.

2. Legally Recognized Privacy Interest

Once again, the first element of the cause of action for invasion of privacy under the California Constitution is whether Plaintiff has alleged a legally recognized privacy interest. (Hill, supra, 7 Cal.4th at pp. 39-40.) Because the determination of this element is a question of law (id. at p. 40), we are able to reach the merits of the parties’ arguments. As we explain, in ruling that the SAC “fails to identify [a] legally protected privacy interest,” the trial court erred.

We begin with the recognition that decisions of both the United States Supreme Court and the California Supreme Court “firmly establish the constitutionally enshrined status of freedom of speech and freedom of association in our nation’s universities and colleges.” (White v. Davis (1975) 13 Cal.3d 757, 760-761.) In White, the court noted that article I, section 1, of the California Constitution is aimed at curbing “the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party.” (Id. at p. 775.)

More to the point, in reliance on White, the court in Porten v. University of San Francisco (1976) 64 Cal.App.3d 825 (Porten) ruled that, by disclosing a student’s confidential records, the defendant university could be held liable for a violation of the state constitutional right of privacy. (Id. at p. 832, cited approvingly in Hill, supra, 7 Cal.4th at p. 18.) In Porten, the plaintiff college student sought damages from the defendant university, alleging that, without his permission or any good reason, the university had disclosed his academic transcript from another school to a state government agency. (Porten, at p. 827.) Reversing the trial court’s judgment following demurrer, the Court of Appeal held that the student had stated a cause of action against the university for violation of his state constitutional right to privacy by alleging the unauthorized and improper use of personal and confidential academic information for a purpose inconsistent with its creation or retention. (Id. at p. 832.)

Likewise, the allegations of the SAC, which for present purposes are deemed true (Mathews, supra, 8 Cal.5th at p. 762; Zelig, supra, 27 Cal.4th at p. 1126), also set forth a legally recognized privacy interest in Plaintiff’s “education records.” In later proceedings, Defendants will be free to contest any of the allegations of the SAC (which they have not yet answered), including whether the specific education records that Defendants actually accessed and disclosed are, indeed, sufficiently confidential and private to establish a legally recognized privacy interest for Plaintiff. (See Porten, supra, 64 Cal.App.3d at p. 832.)

3. Conclusion

In the cause of action for invasion of the constitutional right to privacy, Plaintiff alleged a legally recognized privacy interest, a reasonable expectation of privacy in the circumstances, and a serious invasion of this privacy interest. For this reason, the trial court erred in ruling that, in the SAC, Plaintiff did not allege facts sufficient to state a cause of action for invasion of privacy.

D. IIED

To recover on a cause of action for IIED, the plaintiff must show ” ‘ ” ‘ “(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 (Hughes).)

For purposes of an establishing an IIED claim, “[a] defendant’s conduct is ‘outrageous’ when it is so ‘ ” ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” ‘ ” (Hughes, supra, 46 Cal.4th at pp. 1050-1051.) In addition, as outcome-determinative in this case, an IIED plaintiff also must establish “severe emotional distress.” (Id. at p. 1051, italics added.) To meet this standard, our Supreme Court “has set a high bar”: ” ‘Severe emotional distress means ” ’emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’ ” ‘ ” (Id. at p. 1051; accord, CACI No. 1604 [” ‘Severe emotional distress’ is not mild or brief; it must be so substantial or long lasting that no reasonable person in a civilized society should be expected to bear it.”].)

Plaintiff alleges that Defendants’ outrageous conduct—namely, accessing and disclosing his confidential and private education records—caused him the following “severe emotional distress”: “loss of reputation and standing in the community[,] . . . humiliation, embarrassment, extreme mental distress, and suffering.” In the remainder of the paragraph in which he alleges the severity of the emotional distress, Plaintiff describes the following injuries from the emotional distress: being stricken from the rolls of solicitors in the United Kingdom; losing his ability to practice law; losing the law firm of which he was the managing partner; losing “millions of dollars of income” he would have received from his law practice; and losing additional “millions of dollars” in real estate investments he was unable to afford to keep. None of these alleged injuries support, or arguably result from, the generic allegations of loss of reputation, humiliation, embarrassment, mental distress, or suffering.

Very simply, these generic allegations do not meet the “high bar” established by our Supreme Court for the element of severe emotional distress in an IIED claim. (Hughes, supra, 46 Cal.4th at p. 1051.) In Wong v. Jing (2010) 189 Cal.App.4th 1354 (Wong), for example, the plaintiff alleged that the defendant’s conduct “caused her to suffer ‘severe emotional damage.’ ” (Id. at p. 1377.) Even with the additional consideration of the plaintiff’s testimony that the defendant’s conduct ” ‘was very emotionally upsetting to me, and has caused me to lose sleep, have stomach upset and generalized anxiety,’ ” the court concluded that such a “minimal showing . . . does not constitute the sort of severe emotional distress of such lasting and enduring quality that no reasonable person should be expected to endure.” (Ibid.)

Likewise, here, too, Plaintiff’s allegation that Defendants’ conduct caused Plaintiff “severe emotional distress”—as evidenced by the generic allegations of loss of reputation, humiliation, embarrassment, mental distress, or suffering—does not suggest ” ‘ ” ’emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’ ” ‘ ” (Hughes, supra, 46 Cal.4th at p. 1051; accord, Wong, supra, 189 Cal.App.4th, at p. 1377.) Accordingly, the trial court did not err in ruling that the SAC lacks sufficient facts to state a cause of action for IIED.

Notably, on appeal, Plaintiff does not argue otherwise. In his opening brief, he did not discuss the severity requirement, despite having identified it as a required element of a cause of action for IIED. In their brief, Defendants presented a separately identified argument supported by legal authorities entitled, “Plaintiff has failed to allege ‘severe’ emotional distress.” Nonetheless, in his reply brief, Plaintiff did not respond to Defendants’ argument or discuss the severity requirement, despite again acknowledging it as a required element of the cause of action.

In both his opening and reply briefs, however, Plaintiff suggests that, if the trial court correctly concluded that he failed to allege facts sufficient to state a cause of action for IIED, then the court erred in denying him leave to amend. We disagree.

“If we see a reasonable possibility that the plaintiff could cure the defect by amendment, then we conclude that the trial court abused its discretion in denying leave to amend. If we determine otherwise, then we conclude it did not.” (Campbell, supra, 35 Cal.4th at p. 320; accord, Zelig, supra, 27 Cal.4th at p. 1126.) ” ‘ “The burden of proving such reasonable possibility is squarely on the plaintiff.” ‘ ” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 618 (Graham).) “To satisfy this burden, ‘ “a plaintiff ‘must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading’ ” ‘ by clearly stating not only the legal basis for the amendment, but also the factual allegations to sufficiently state a cause of action.” (Ibid.; accord, Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) By not explaining how he can amend his SAC to allege the requisite severity to state a claim for IIED, Plaintiff has not met his burden on appeal. (Goodman, at p. 346; Graham, at p. 618.)

Plaintiff points out that, even though he has had the opportunity to amend his complaint on two prior occasions, he only first alleged a cause of action for IIED in his SAC; thus, his argument continues, he should be allowed to amend this claim at least this once. Again, we disagree. The determination whether to grant leave to amend is not based on the number of prior amendments to the claim, but rather on the sufficiency of the showing how the pleading can be amended to overcome the existing deficiency. (Goodman, supra, 18 Cal.3d at p. 346; Graham, supra, 226 Cal.App.4th at p. 618.)

For these reasons, the trial court did not abuse its discretion in denying Plaintiff leave to amend to allege a claim for IIED.

III. DISPOSITION

The judgment is reversed. Upon issuance of the remittitur, the superior court is directed to vacate its order sustaining without leave to amend Defendants’ demurrer to the SAC and to enter a new order overruling Defendants’ demurrer to the fifth cause of action for invasion of privacy and sustaining without leave to amend Defendants’ demurrer to the sixth cause of action for intentional infliction of emotional distress. The parties shall bear their respective costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3), (a)(5).)

IRION, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.