Demurrer (Judge Mary E. Arand)


Case Name:??? Derek Holbrook v. Orkut Buyukkokten

Case No.:??????? 16-CV-294531

  1. Background

This is an action brought by Derek Holbrook (?Plaintiff?) against Orkut Buyukkokten (?Buyukkokten?) and the Orkut Buyukkokten Trust (collectively, ?Defendants?) for breach of contract and related torts arising out of the breakup of their relationship.? On May 27, 2016, Buyukkokten filed a cross-complaint asserting a single cause of action against Plaintiff for negligent infliction of emotional distress.

According to the allegations in the cross-complaint, Plaintiff and Buyukkokten began dating in 2006 and were together until 2015.? (Cross-Compl., ? 3.)? Buyukkokten ended their relationship because he believed Plaintiff had several affairs.? (Cross-Compl., ?? 5-7.)? Buyukkokten was tested for sexually transmitted diseases upon learning of Plaintiff?s affairs.? (Cross-Compl., ? 9.)? Although the test results were negative, Buyukkokten alleges he suffered extreme emotional distress while waiting for his results because he worried he had a sexually transmitted disease.? (Cross-Compl., ? 10.)

Currently before the Court is Plaintiff?s demurrer to the cross-complaint on the ground of failure to state sufficient facts to constitute a cause of action.? Plaintiff also moves for relief from the Court?s prior order denying his untimely motion to compel an answer to a deposition question and the production of documents requested pursuant to a deposition notice.

  1. Demurrer?

??????????? Plaintiff asserts Buyukkokten?s claim for negligent infliction of emotional distress is defective because Buyukkokten ?does not properly set forth sufficient facts to apprise [him] as to the nature of breach of the intentional distress claim being asserted.?[1]? (Mem. of Pts. & Auth. at p.?5:22-23.)? In support of this assertion, Plaintiff argues Buyukkokten cannot prove his claim because he was not grossly negligent, he has never tested positive for a sexually transmitted disease, and it was unlikely Buyukkokten would contract a sexually transmitted disease.? (Mem. of Pts. & Auth. at pp. 5:18-20, 5:23-26.)

?A demurrer tests only the legal sufficiency of the pleading.? ?(Committee on Children?s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-14, superseded by statute on other grounds.) ??[A] general demurrer admits the truth of all material factual allegations in the complaint.? ?(Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.)? In ruling on a demurrer, a court does not consider a ?plaintiff?s ability to prove these allegations, or the possible difficulty in making such proof.? ?(Ibid.)

Plaintiff fails to articulate the manner in which the allegations on the face of the cross-complaint are inadequate.? ?Negligent infliction of emotional distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply.? ?(Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.)? Plaintiff does not address whether Buyukkokten has alleged facts with respect to each of these elements.? Plaintiff only argues Buyukkokten will be unable to prove his claim.? Plaintiff?s argument is flawed because a demurrer does not test a plaintiff?s ability to prove his or her claim.

 

Finally, Plaintiff argues damages for emotional distress are inappropriate because Buyukkokten would ?not more likely than not? have contracted a sexually transmitted disease.? (Mem. of Pts. & Auth. at p. 6:28.)? In support, Plaintiff cites Potter v. Firestone Tire & Rubber Co. (?Potter?) (1993) 6 Cal.4th 965 and Kerins v. Hartley (?Kerins?) (1994) 27 Cal.App.4th 1062.? In Potter and Kerins, which involved negligent infliction of emotional distress claims based on fear of exposure to carcinogens and human immunodeficiency virus, respectively, the courts held that a plaintiff?s emotional distress or fear of infection must arise out of his or her knowledge that it was more likely than not that he or she would become ill due to the alleged exposure to the carcinogen or infectious disease.? (Potter, supra, 6 Cal.4th at p. 990; see also Kerins, supra, 27 Cal.App.4th at p. 1074 [applying Potter standard to claims for negligent exposure to human immunodeficiency virus].)? While these cases are relevant and discuss the recoverability of emotional distress damages based on fear of a medical illness or infectious disease, Plaintiff does not explain how the allegations in the cross-complaint are deficient in light of these authorities.? Plaintiff simply asserts that, as a matter of fact, he never tested positive for a sexually transmitted disease and it was therefore not more likely than not that Buyukkokten would be infected.? This argument is also flawed as it addresses Buyukkokten?s ability to prove his claim and not whether a claim has actually been stated for pleading purposes.

 

Plaintiff has failed to substantiate his demurrer to the cross-complaint and it is therefore OVERRULED.? ???????????

?

III.?????? Motion for Relief

?

??????????? Plaintiff also moves for relief, pursuant to Code of Civil Procedure section 473, subdivision (b), from the Court?s prior order denying his untimely motion to compel an answer to a deposition question and the production of documents at the deposition.

 

Code of Civil Procedure section 473, subdivision (b) states: ?The Court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.?

 

Previously, the Court denied Plaintiff?s motion to compel Buyukkokten to (1) answer a deposition question about investors in his company Hello Networks, Inc. and (2) produce bank records for a Turkish bank account in accordance with a document request in the deposition notice. ?Plaintiff made his motion to compel pursuant to Code of Civil Procedure section 2025.480, which states: ?If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent?s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production . . . no later than 60 days after the completion of the record of the deposition.?? (Code Civ. Proc., ??2025.480, subd. (a)-(b).)? Plaintiff?s motion was filed well beyond 60 days from the completion of the deposition record as well as after the parties? agreed upon deadline extension, and was therefore untimely.

 

Plaintiff argues the Court should excuse the untimely filing of his motion because it was the result of mistake, inadvertence, surprise, or excusable neglect.? Plaintiff asserts he could not have filed his motion sooner due to the transfer of the case to this Court and the departure of one of the attorneys at his counsel?s law firm.

 

With respect to his first argument, Plaintiff states he could not have filed his motion sooner because he was waiting for the Court to issue a case number following the transfer of this case from San Francisco County Superior Court.? According to Plaintiff, the deposition transcript was certified on February 23, 2016, the case was ordered transferred on February 25, 2016, and a case number was issued by this Court on April 29, 2016.? Plaintiff thus argues he could not have filed his motion within 60 days because he did not receive a case number until April 29, 2016.? Plaintiff also concedes, however, that he and Buyukkokten agreed to extend the time for him to file his motion until after the issuance of a case number in anticipation of the transfer of the action and that he thereafter failed to file his motion by the agreed upon deadline.[2]? Plaintiff?s argument is thus flawed because it does not explain how, regardless of the statutory deadline, he still failed to file his motion by the agreed upon deadline.

 

With respect to Plaintiff?s second argument, he generically asserts turnover at his attorney?s law firm prevented the timely filing of his motion because the turnover resulted in a larger workload for the remaining attorneys at the firm.? A mistake or failure to act as the result of having a busy practice does not provide a basis for relief. ?(See City of Fresno v. Superior Court (1988) 205 Cal.App.3d 1459, 1466-67.)? As one jurist observed: ??[I]f we are going to simply find that being busy, or not fully understanding the provision of a code section, or whatever it is, constitutes excusable neglect, why, you know, we just don?t have any rules.?? [Citation.]?? (Id. at p. 1467.)? Here, the fact that Plaintiff?s counsel simply became too busy does not provide a basis for relief under Code of Civil Procedure section 473.? Moreover, the Court does not understand why Plaintiff was unable to file his motion sooner given he had all of the information necessary to prepare the motion, including the certified deposition transcript, as early as February 23, 2016.? Plaintiff?s argument therefore lacks merit.

 

Finally, the Court rejects Plaintiff?s claim of injustice by stating, without more, that ?not allowing [him] to have his motion heard because of such circumstances does not allow him to have his case tried on its merits.?? (Mem. of Pts. & Auth. at p. 6:3-4.)? Plaintiff has provided absolutely no basis for the Court to conclude he will otherwise be unable to obtain the information he seeks or that the denial of his exceedingly untimely motion was otherwise unjust.? In any event, Plaintiff cites no authority and the Court is otherwise unaware of any authority authorizing a court to grant relief pursuant to Code of Civil Procedure section 473, subdivision (b), based solely on a claim of injustice and in the absence of a mistake or other statutory prerequisite for relief.

Plaintiff has failed to articulate any mistake, inadvertence, surprise, or excusable neglect that would justify relief from the Court?s prior order denying his untimely motion to compel.? Plaintiff?s motion for relief is therefore DENIED.

 

The Court will prepare the order.

[1]As an initial matter, the Court notes the cross-complaint asserts a cause of action for negligent infliction of emotional distress, and not intentional infliction of emotional distress.

 

[2]Plaintiff made the same concession in his underlying discovery motion.