Case Number: BC695193 Hearing Date: June 27, 2018 Dept: 2

The Demurrer by Alberton’s LLC to the second cause of action for negligent infliction of emotional distress is SUSTAINED without leave to amend. Albertson’s LLC is ordered to file an answer within ten days of this order.

Background

On February 23, 2018, plaintiff Janet Felix (“Plaintiff”) filed a complaint against defendants Albertsons Companies LLC, Tier 1 Solutions (“Tier 1”) and Does 1 to 30 alleging causes of action for (1) negligence, (2) negligent infliction of emotional distress and (3) negligent hiring, training and supervision. On April 18, 2018, Plaintiff filed an amendment to the complaint by naming Albertson’s LLC (“Albertson’s”) as Doe 1.

The complaint alleges that on February 26, 2016, while on premises owned and controlled by Albertsons Companies LLC, Plaintiff was injured when a thief who had escaped from a security guard knocked Plaintiff to the ground thereby causing her head to strike the floor thereby rendering her unconscious. (Complaint ¶¶ 6-10.)

On May 15, 2018, Albertson’s filed a demurrer to the second cause of action for negligent infliction of emotional distress. Plaintiff failed to file an opposition.

Legal Standard

For a demurrer, the allegations of the complaint are read liberally and plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (See Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.)

Meet and Confer

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (CCP §§ 430.41 and 435.5.)

The Court notes that Albertson’s has complied with the meet and confer requirement. (See Decl. Lascola.)

Second Cause of Action: Negligent Infliction of Emotional Distress

Albertson’s argues that Plaintiff’s negligent infliction of emotional distress (“NIED”) claim fails because the NIED claim is duplicative of the first cause of action for general negligence. Albertson’s contends that the complaint fails to allege facts which distinguish the NIED claim from the general negligence claim.

A demurrer may be sustained when a cause of action is duplicative of another cause of action and thus adds nothing to the complaint by way of fact or theory of recovery. (Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

The Court finds that since Plaintiff has adequately pled his first cause of action for general negligence, the second cause of action for NIED is duplicative and subject to demurrer, as it adds nothing to the complaint by way of fact or theory of recovery. (Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

Notably, there is no independent tort of negligent infliction of emotional distress; rather, “[t]he tort is negligence, a cause of action in which a duty to the plaintiff is an essential element.” (Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 984.) The doctrine of “negligent infliction of emotional distress” is not a separate cause of action. It simply allows certain persons to recover damages for emotional distress only on a negligence cause of action even though they were not otherwise injured or harmed. (See Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 928.)

Here, both the first cause of action for general negligence as well as the second cause of action for NIED are based on the same facts alleged in paragraphs 6 through 10 of the complaint. The only difference between these causes of action is the conclusory allegation that Plaintiff suffered emotional distress. (Compare Complaint ¶¶ 10-15 with ¶ 16-19.) Furthermore, these causes of action share the same elements of duty, breach, causation and damages. As such, the NIED claim is duplicative of the first cause of action for negligence.

Therefore, the demurrer to the second cause of action for NIED is SUSTAINED. Since NIED is not a separate cause of action, but rather the tort of negligence, which is already alleged in the first cause of action, no leave to amend is granted.

Moving Party is ordered to give notice.