Yang v. Escamilla

Defendant Presents Improper Extrinsic Information in the Demurrer

In a long “Introduction” to the Demurrer, Defendant presents an array of purported facts that are not proper to present on demurrer.  Information is offered that is entirely extrinsic to the allegations of the Complaint.  The Court disregards the entire Introduction, as the limited scope of a demurrer is review of the facts in the “four corners” of the Complaint, and matters sought to be judicially noticed.  See Thorburn v. Department of Corrections(1998) 66 Cal.App.4th 1284, 1287-88 (“we accept as true all the material facts properly pleaded and we do not go beyond the four corners of the complaint, except as to matters which may be judicially noticed”); Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th968, 994 (“In reviewing the ruling on a demurrer, a court cannot consider. . .  the substance of declarations, matter not subject to judicial notice, or documents judicially noticed but not accepted for the truth of their contents”); Ion Equip. Corp. v. Nelson (1980) 110 CA3d 868, 881 (objection can be raised “by demurrer only when plaintiff’s complaint discloses the matter relied upon to support the plea, … and not in a memorandum in support of demurrer”).

Demurrer to 1st C/A for Negligence

The demurrer is OVERRULED.

According to Defendant, the complaint does not demonstrate that he owed any legal duty to the Plaintiffs.  The Court disagrees.  Plaintiffs allege that Defendants entered their residential property without a warrant and without any permission, and held the Plaintiffs at gunpoint while conducting an unauthorized search of their residence.  The Court cannot say that the law does not impose a duty on persons to refrain from such activity at this time.See Salinas v. Martin (2008) 166 Cal.App.4th 404, 411 (“Generally, one owes a duty of ordinary care not to cause an unreasonable risk of harm to others….”); Civil Code §1714(a) (“[e]veryone is responsible . . .  for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself…“).

Demurrer to 2nd C/A for Arrest without Warrant

The demurrer is OVERRULED.

Defendant is correct that false arrest is not a separate tort but it is a specific way in which a false imprisonment can occur.  Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1104; Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 752.

Defendant seems to attack this claim by referring to the next claim, for false imprisonment.  Since Plaintiffs haven’t stated a false imprisonment claim in their next cause of action (the 3rd) Defendant argues this one fails too.

Defendant is incorrect.  First, the CACI Jury Instruction No. 1403 makes clear that one may assert a false arrest claim against a private citizen.  (CACI No. 1403, called False Arrest Without Warrant by Private Citizen).  The instruction refers to Penal Code § 834 to define what an arrest is. (See CACI No. 1403, Sources and Authority, referring to Penal Code § 834). An arrest is taking a person into custody in a case and manner that is authorized by law; it can be made by a peace officer or by a private person.  (Penal Code §834).  No definitions of custody were readily located,  however, Penal Code § 835 states:  “an arrestis made by an actual restraint of a person, or by submission to the custody of an officer.  The person arrested Amy be subjected to such restraint as is reasonable for his arrest and detention.”  (Pen Code § 835).

The CACI Instruction notes, “A private person does not need to physically restrain a suspect in order to make a citizen’s arrest. A private person can make a citizen’s arrest by calling for a peace officer, reporting the offense, and pointing out the suspect.”  (CACI No. 1403).  Thus, there seem to be variations such as where the private person himself physically restrains the plaintiff, or where he summons a police officer to arrest the plaintiff.

Here, Plaintiffs have alleged a physical restraint by the Defendants, in their Complaint which alleges that they were held at gunpoint in their home, and ordered not to move.  (Compl ¶ 11, 12).  Under the above definitions, it appears that allegations that Plaintiffs’ property and home were invaded by Defendants who restrained them with guns drawn and pointed at them, while being ordered not to move, is sufficient to allege restraint and false arrest.  (Compl. ¶ 11, 12)

This cause of action survives the pleading challenge.

Demurrer to 3rd C/A for False Imprisonment

The demurrer is OVERRULED.

Defendant assumes that this 3rd cause of action is alleging a theory of false imprisonment committed by a false arrest.  Defendant contends the Plaintiff cannot allege false imprisonment because there was no arrest or imprisonment that occurred.  As noted, arrest means physically restraining a person including where a private person physically restrains a person.  (Penal Code § 834; CACI No. 1403).  For the reasons stated above, the allegations are sufficient to show this occurred.

Even if the alleged events do not qualify as an arrest, Plaintiffs still allege enough facts to state a claim for false imprisonment with no arrest.  CACI No. 1400 defines the elements of a false imprisonment where no arrest was involved, as follows: (1) defendant intentionally deprived plaintiff of freedom of movement by use of threats of force, duress, or menace, (2) that this compelled plaintiff to stay in place for some time, however, short, (3) that plaintiff did not consent, (4) that plaintiff was harmed, and (5) that defendant’s conduct was a substantial; factor in the harm.  CACI No. 1400; see also Penal Code § 236 (defining the crime of false imprisonment as “the unlawful violation of the personal liberty of another”).

The facts alleged in the Complaint are sufficient to meet each of these elements.  According to the pleading, Plaintiffs’ home was invaded by Defendants, they were ordered not to move, with the threats of guns pointed at them, while the home was searched.  (Compl. ¶¶ 8-14).  Even assuming these facts do not amount to an arrest, this is sufficient to allege false imprisonment with no arrest involved.

Demurrer to 4th C/A for Bane Act Violation – Civil Code § 52.1

The demurrer is OVERRULED.

Civ. Code §52.1, the Bane Act, states no person shall “whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.”   To obtain relief under Civil Code section 52.1, a plaintiff need not allege the defendant acted with discriminatory animus or intent; a defendant is liable if he or she interfered with the plaintiff’s constitutional rights by the requisite threats, intimidation, or coercion.  Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 882.  The essence of the claim is that the defendant by the improper means of threat, intimidation or coercion, tried to or prevented the plaintiff from doing something he or she had the right to do under the law, or to force the plaintiff to do something that he was not required to do under the law. King v. State (2015) 242 Cal.App.4th 265, 294.

According to Defendant, there are no facts showing that he threatened any plaintiff with violence or attempted to interfere with constitutional or statutory rights.  (Dem. p. 12)  Defendant is ignoring the facts plead in Paragraphs 8 to 15 of the Complaint.  Plaintiff alleges that Defendants held Plaintiffs in their own home, ordered them not to move, with guns drawn and pointed at Plaintiffs, while Defendants searched Plaintiff’s residence without consent and searched Plaintiff Andy Yang’s cell phone without his consent.

These allegations demonstrate the requisite elements of coercion, intimidation and threat, as well as interference with the constitutional rights of privacy, and the right to be free from unreasonable searches that are guaranteed pursuant to the Fourth Amendment of the US Constitution, Article 1 § 1 of the California Constitution (privacy) and Article 1 § 13 of the California Constitution (freedom from unreasonable searches).  Baughman v. State of California (1995) 38 Cal.App.4th 182, 190 (4th amendment of US Constitution prohibits unreasonable searches and seizures of property).

Demurrer to 5th C/A for Intentional Infliction of Emotional Distress

The demurrer is OVERRULED.

According to Defendant, the facts as alleged do not describe extreme and outrageous conduct by the defendant with the intent of causing, or with reckless disregard of the probability of causing, severe emotional distress.

“Extreme and outrageous conduct” is conduct that is so extreme as to exceed all bounds of that usually tolerated in a civilized community.  Hughes, 46 Cal.4th at 1051; McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1516; Berkley v. Dowds (2007) 152 Cal.App.4th 518, 528.  This is a question of law that must initially be determined by the court.  Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.

The facts alleged in the Complaint are sufficient to allege this element.  Defendant responds that he was securing and searching a home where a fugitive was believed to be living, the brother of the plaintiff and this was normal activity to prepare for recovering a potentially dangerous felon (Dem. p. 14).  These arguments fail because they are presenting information that is not properly before the Court at this time.  This is extrinsic information, and the Complaint does not allege that a dangerous fugitive was residing there.  In essence, Defendant is arguing his defense which is that the conduct was privileged [See CACI No. 1605 (Affirmative Defense of Privileged Conduct)].  This must be raised in a motion where he may introduce extrinsic evidence.  It is not proper argument at this time.

Demurrer to 6th C/A for Negligent Infliction fo Emotional Distress

The demurer is SUSTAINED with leave to amend.

There is no independent tort of negligent infliction of emotional distress.  Rather, the tort is negligence, a cause of action in which a duty to the plaintiff is an essential element.  That duty may be imposed by law, may be assumed by the defendant or may exist by virtue of a special relationship.  Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 205.

The law of negligent infliction of ED is typically analyzed by reference to two theories: bystanders and direct victim cases.  Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 204.  In direct victim cases, the plaintiff’s claim of emotional distress is not based on witnessing an injury to someone else, but is based on the violation of a duty owed directly to her by the defendant.  Ragland, at 205-206.

In bystander cases, the plaintiff seeks to recover damages for emotional distress that she suffered as a percipient witness of an injury to another person, rather than directly to herself from the defendant’s conduct.  CACI No. 1621 (Directions for Use); Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 204.

The Complaint here seems to allege that the Plaintiffs were all direct victims of the Defendants’ acts.  It describes that Defendants drew guns at all of the Plaintiffs and restrained all of the Plaintiffs at their home, (Compl. ¶ 11-12, 44).

In direct victim cases, there is no independent tort for negligent infliction of emotional distress.  Rather, it is simply the tort of negligence (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 204). Plaintiffs have already alleged a cause of action for Negligence making this theory redundant and duplicate assuming the above is so.

The Court sustains the demurrer to the 6th C/A. Plaintiffs should amend the pleading to make clear whether they are asserting a direct or bystander theory, and if each alleges direct victim status, there is no separate tort for Negligent Infliction of Emotional Distress; it is merely a Negligence theory which exists in the pleading.

Demurrer to 7th C/A for Assault

The demurrer is OVERRULED.

Generally speaking, an assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present.’  Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1603–04. The defendant can either intend to cause harmful contact or threaten to cause contact with plaintiff in a harmful manner.  CACI No. 1301.

Defendant argues that his only reasonable intent was to secure the home and provide for everyone’s safety while searching for a dangerous fugitive.  (Dem p. 16).  The argument fails because it relies on extrinsic facts and information that are not properly before the Court.

The facts in the Complaint are sufficient to plead an assault.  As one court stated, “A civil action for assault is based upon an invasion of the right of a person to live without being put in fear of personal harm. Every person has ‘the right of protection from bodily restraint or harm.’ [Citation.] … The pointing of a gun at another in a threatening manner is sufficient to cause fear of personal injury unless it is known by the person at whom the weapon is pointed that the gun is in fact unloaded.”  Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1604.  There are no allegations here by Plaintiffs that the guns pointed at them were unloaded, nor known to be such.

Demurrer to 8th C/A for Battery

The demurrer is SUSTAINED WITH leave to amend.

The distinction between assault and battery is this:  “Harmful or offensive contact, intentionally done, is the essence of battery (Rest.2d, Torts § 18), while apprehension of that contact is the basis of assault”.  5 Witkin, Summary 10th Torts § 383 (2005).  Battery requires that the defendant touched plaintiff or caused plaintiff to be touched so as to harm plaintiff thereby.  CACI No. 1300.  Battery is about contact.  It can be direct body-to-body contact or using an object or substance to make contact.  Mount Vernon Fire Insurance Corporation v. Oxnard Hospitality Enterprise, Inc. (2013) 219 Cal.App.4th 876, 881.

The Complaint is insufficient as it fails to state sufficient facts to describe the element of the physical contact.  Paragraph 56 alleges that Defendants touched Plaintiffs with intent to offend.  But this is a conclusion of law. Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219-20.  There are no facts describing the contact, and in the more specific facts describing the incident in ¶¶ 8 to 15, there is no contact alleged.  Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 827 (specific allegations control over general allegations in a pleading).

The demurrer is sustained for Plaintiffs to allege the facts describing the offensive contact.

Demurrer to 9th C/A for Violation of Ralph Act – Civil Code § 51.7

The demurer is SUSTAINED WITH leave to amend.

Civil Code 51.7 provides,  “All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, . . . . or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive.”

The characteristics referred to in this section are sex, race, color, region, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status. Civ. Code § 51(b).

The Complaint contains no well-pleaded facts to support the conclusory allegation that Plaintiffs’ national origin, ethnicity or race was the motivating factor for the conduct of Defendants.  (Compl. ¶ 63).  This is stated merely as a legal conclusion without factual support.  This is insufficient to state the claim.


Demurrer to 10th C/A for Trespass


The Demurrer is OVERRULED.


The Complaint alleges that Plaintiffs “leased and owned” the property at 9440 Clemente Drive in Oakland where the alleged trespass occurred.  Further, Plaintiffs “were lawfully at their residence” when the described events occurred.  (Compl. ¶ 67, 8)  Defendant complains that this is confusing as to whether Plaintiffs were living there under a lease or had title.  Such uncertainty is not so great that it prevents the Defendant from understanding the nature of the claims of purported wrong against him and answering the theory.  He may unravel the detail through verified discovery responses from the plaintiffs. See Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616 (“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.”); Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135 (We agree that demurrers for uncertainty are disfavored.”).


Defendant complains that he was acting reasonably in securing and searching the home where there were reasonable grounds to believe that a fugitive was hiding, and where Defendant was seeking to arrest the fugitive for violation of bail.  (Dem. p. 20)


This argument relies on purported facts that are extrinsic to the Complaint, and are not properly before the Court.  Therefore, the demurrer is overruled.  In essence, Defendant is arguing a defense of privilege or necessity (see CACI No. 2005).  To successfully demur based on a defense, the pleading would have to allege all of the necessary facts that would support the Defendant’s defense and the application of the defense.  Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145, 1152 (complaint must “clearly disclose … [the] defense or bar to recovery.’”); Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 183 (“a demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense”) (emphasis added).  The Complaint does not aid the Defendant in this endeavor.




The Court OVERRULES the demurrers to the 1st through 5th, 7th and 10th causes of action.


The Court SUSTAINS WITH LEAVE TO AMEND the demurrers to the 6th, 8th and 9th causes of action.


Plaintiffs are directed to file and serve an amended complaint within 10 days.


Defendant shall give notice.