2012-00117013-CU-PN

Garr Ooley vs. Charles Edward Bauer

Nature of Proceeding: Hearing on Demurrer

Filed By: Strong, Alissa J.

Defendant Charles Edward Bauer’s Demurrer to Plaintiff Garr Ooley’s Third Amended
Complaint (“TAC”) is ruled upon as follows.

Defendant’s request for judicial notice is granted.

Plaintiff’s form TAC sets forth three causes of action: general negligence (legal
malpractice), intentional infliction of emotional distress, and negligent infliction of
emotional distress.

Plaintiff engaged Defendant to represent him as counsel in connection with three legal
proceedings: requests for restraining orders by Dreama C. Larish and Michelle R.
Kirwan, and a criminal proceeding against Plaintiff for trespass. Defendant Bauer’s
representation as to each of the three proceedings is alleged to have fallen below the
standard of care.

In this motion Defendant demurs only to the cause of action for intentional infliction of
emotional distress. In order to prevail on a claim for IIED, a Plaintiff must demonstrate:
(1) outrageous conduct by the defendant, (2) intent to cause or reckless disregard of
the probability of causing emotional distress, (3) severe emotional suffering, and (4)
actual and proximate causation of emotional distress. (Bartling v. Glendale Adventist
Medical Center (1986) 184 Cal.App.3d 961, 970.) “’Outrageous conduct’ denotes
conduct which is so extreme as to exceed all bounds of decency and which is to be
regarded as “atrocious, and utterly intolerable in a civilized community.’” (Id. quoting
Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 616.) “Whether a
defendant’s conduct can reasonably be found to be outrageous is a question of law
that must initially be determined by the court; if reasonable persons may differ, it is for
the jury to determine whether the conduct was, in fact, outrageous.” (Berkley v. Dowds
(2007) 152 Cal.App.4th 518, 534.)

The Court previously sustained the demurrer to this cause of action as alleged in the
Second Amended Complaint with leave to amend. Plaintiff had alleged that Defendant
intentionally failed to appear at the restraining order hearing, and intentionally failed to
present certain evidence in the course of the criminal representation. The Court
determined these factual allegations did not state a cause of action for intentional infliction of emotional distress.

Defendants now contend that although Plaintiff has amended the complaint to add new
allegations in support of this cause of action, the conduct alleged still does not rise to
the level of “extreme and outrageous.” Plaintiff added allegations that during the week
before the restraining order proceedings, Defendant intentionally avoided Plaintiff’s
calls, and that Defendant’s explanation for why he could not attend the restraining
order hearing was false. Plaintiff also alleges that Defendant never stated that he did
not represent Plaintiff in the restraining order proceedings.

As the Court previously concluded, while these allegations indicate that Defendant’s
representation of Plaintiff was inadequate, they do not reflect conduct that can be
considered “atrocious, and utterly intolerable in a civilized community.”

The demurrer to this cause of action is sustained. The Court having previously granted
leave to amend to address the defects identified here, the demurrer is sustained
without leave to amend.

Defendant shall answer any remaining causes of action in the TAC no later than
October 18, 2013.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item 6 2012-00117013-CU-PN

Garr Ooley vs. Charles Edward Bauer

Nature of Proceeding: Motion to Strike

Filed By: Strong, Alissa J.

Defendant Charles Edward Bauer’s Motion to Strike portions of Plaintiff Garr Ooley’s
Third Amended Complaint (“TAC”) is granted.

Defendant moves to strike Plaintiff’s claims for punitive damages.

Plaintiff’s punitive damages claim is based upon the cause of action for intentional
infliction of emotional distress. The Court having sustained the demurrer to that cause
of action without leave to amend, the punitive damage claim must be stricken.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.