Case Number:?BC617344????Hearing Date:?January 29, 2019????Dept:?K
Defendant’s unopposed MSJ is GRANTED.? If both parties wish to submit without appearance, Plaintiff counsel to call Darian at 310-255-1876 by Mon. 1/28 and inform her thereof.? Defendant to submit proposed judgment.
Case Number:?BC709614????Hearing Date:?January 29, 2019????Dept:?K
|CASE NAME: Carter Beal v. Amy Beal, et al., & related cross-action???|
|CASE NO.:??????BC709614||Complaint filed:?5/2/2018|
|HEARING DATE:??1/29/2019||Trial date:?CMC also this date|
|MEET & CONFER??No||Discovery cutoff per CCP ?2024.020(a) C/O:?n/a|
|NOTICE??per CCP ?1005(b):?ok||Motion cutoff per CCP ?2024.020(a):n/a|
SUBJECT:?????????????????DEMURRER TO CROSS-COMPLAINT FOR DAMAGES FOR: 1. TORT OF DOMESTIC VIOLENCE UNDER CIVIL CODE??1708.6; 2. TORT OF STALKING PURSUANT TO CIVIL CODE??1708.7; 3. ASSAULT; 4. BATTERY; 5. FALSE IMPRISONMENT; AND 6. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
????????????????????????????????????MOTION TO STRIKE PORTIONS OF AMY BEAL?S CROSS-COMPLAINT FILED ON JULY 17, 2018
MOVING PARTY:??Plaintiff/Cross-Defendant Carter Beal
RESP. PARTY:????????Defendant/Cross-Complainant Amy Beal
Dispute between married couple. Divorce action is pending.
Complaint: (1) Tort of Domestic Violence under?Civil Code ? 1708.6?and?Penal Code?? 13700; (2) Assault; (3) Battery; (4) Negligence; (5) Attempt to Aide, Advise or Encourage Suicide under?Penal Code??? 401 and 21A; and (6) Intentional Infliction of Emotional Distress.
Cross-Compl.: (1) Tort of Domestic Violence under Civil Code ? 1708.6; (2) Tort of Stalking Pursuant to Civil Code ? 1708.7; (3) Assault; (4) Battery; (5) False Imprisonment; (6) Intentional Infliction of Emotional Distress.
This Motion:?Plaintiff/Cross-Defendant demurs to all six causes of action in Amy Beal?s cross-complaint, and also moves to strike portions of the cross-complaint.
Plaintiff/Cross-Defendant Carter Beal?s Demurrer to Cross-Complaint for Damages is?OVERRULED.
Plaintiff/Cross-Defendant Carter Beal?s Motion to Strike Portions of Amy Beal?s Cross-Complaint Filed on July 17, 2018 is?DENIED.
Defendant/Cross-Complainant Amy Beal to give notice.
Plaintiff/Cross-Defendant Carter Beal (?Cross-Defendant?) demurs to each of the six causes of action in Defendant/Cross-Complainant Amy Beal?s (?Cross-Complainant?) cross-complaint.
As an initial matter, movant Carter Beal failed to meet and confer before filing this demurrer and therefore the demurrer must be OVERRULED on that basis alone.??As to the merits of the demurrer, for the reasons below, his demurrer must again be OVERRULED.
First Cause of Action for Tort of Domestic Violence under Civil Code ? 1708.6
The elements of a cause of action for the tort of domestic violence are: (1) the infliction of injury upon the plaintiff resulting from abuse, as defined in Penal Code section 13700, subdivision (a); and (2) the abuse was committed by the defendant, a person having a relationship with the plaintiff as defined in Penal Code section 13700, subdivision (b). ?Abuse? is ?intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.? (Pen. Code, ??13700, subd. (a).) The following relationships qualify under this statute: ?spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.? (Pen. Code, ? 13700, subd. (b).)
Here, Cross-Defendant argues the cross-complaint fails to allege sufficient facts to show abuse occurred. The cross-complaint alleges four specific instances, including the following: during a ?heated argument,? Cross-Defendant punched through a glass shower door with enough force to dislocate a bone, scaring Cross-Complainant and placing her in imminent fear of personal injury. (Cross-Compl., ? 7.) During another argument, Cross-Complainant tried to leave the room, but Cross-Defendant blocked her exit, told her that ?if she left he would have to kill her,? and grabbed her body and both arms hard enough to leave bruises. (Cross-Compl., ?? 8-9.)
These facts certainly allege ?abuse? under the domestic violence statute, as Cross-Complainant plainly alleges facts that would at least place another person under reasonable apprehension of imminent serious bodily injury to herself. Cross-Defendant?s arguments to the contrary border on frivolous.??For example, Cross-Defendant argues that the threat ?if she left he would have to kill her,? is not abuse under this statute because ?it is unclear what the threat means.???This is unpersuasive and absurd.??Therefore, Cross-Defendant?s Demurrer to the first cause of action for Tort of Domestic Violence is?OVERRULED.
Second Cause of Action for Tort of Stalking
The element of a cause of action for the tort of stalking are:
(1) The defendant engaged in a pattern of conduct the intent of which was to follow, alarm, place under surveillance, or harass the plaintiff. [?]
(2) As a result of that pattern of conduct, either of the following occurred:
(A) The plaintiff reasonably feared for his or her safety, or the safety of an immediate family member. For purposes of this subparagraph, ?immediate family? means a spouse, parent, child, any person related by consanguinity or affinity within the second degree, or any person who regularly resides, or, within the six months preceding any portion of the pattern of conduct, regularly resided, in the plaintiff’s household.
(B) The plaintiff suffered substantial emotional distress, and the pattern of conduct would cause a reasonable person to suffer substantial emotional distress.
????????????(3) One of the following:
(A) The defendant, as a part of the pattern of conduct specified in paragraph (1), made a credible threat with either (i) the intent to place the plaintiff in reasonable fear for his or her safety, or the safety of an immediate family member, or (ii) reckless disregard for the safety of the plaintiff or that of an immediate family member. In addition, the plaintiff must have, on at least one occasion, clearly and definitively demanded that the defendant cease and abate his or her pattern of conduct and the defendant persisted in his or her pattern of conduct unless exigent circumstances make the plaintiff’s communication of the demand impractical or unsafe.
(B) The defendant violated a restraining order, including, but not limited to, any order issued pursuant to Section 527.6 of the Code of Civil Procedure, prohibiting any act described in subdivision (a).
(Civ. Code, ? 1708.7.)
Here, Cross-Defendant argues Cross-Complainant did not provide ?independent corroborating evidence.???This argument is frivolous as this is a demurrer and corroboration is not required at the pleading stage.
Cross-Defendant also argues the cross-complaint does not support her claim she feared for her safety. But the cross-complaint alleges Cross-Complainant reasonably feared for her safety for reasons including: Cross-Defendant was tracking her activities, surveilling her computer, threatening her when she discovered the surveillance and confronted him, secretly recording her with his phone, threatening and physically obstructing and assaulting her when she tried to leave the area where he was recording. (Cross-Compl., ?? 18-25.) These facts sufficiently state the reasonable fear element of a stalking tort claim.
Cross-Defendant?s remaining arguments are equally unpersuasive, as the cross-complaint alleges each of the elements with sufficient detail: (1) a pattern of conduct intending to follow, alarm, place under surveillance, or harass Cross-Complainant (Cross-Compl., ?? 18-21, 23); (2) Cross-Complainant reasonably feared for her safety and suffered substantial emotional distress, as a reasonable person would under the circumstances (Cross-Compl., ?? 19-20, 22, 23, 25, 27); and (3) Cross-Defendant made a credible threat to Cross-Complainant?s safety and Cross-Complainant told him at least once to stop (Cross-Compl., ?? 21, 22).
Therefore, Cross-Defendant?s Demurrer to the second cause of action is?OVERRULED.
Third Cause of Action for Assault
?The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.? (So v. Shin?(2013) 212 Cal.App.4th 652, 668?669.)
The Cross-Complaint alleges (1) intent to cause harmful or offensive contact or the threat to do so (Cross-Compl., ?? 31-43), (2) reasonable belief Cross-Complainant was about to be touched in a harmful or offensive manner (?? 31-33, 35), (3) no consent (?? 31-33, 36), (4) harm (?? 31-33, 37), and (5) causation (?? 31-33, 38). Cross-Defendant?s arguments to the contrary are unpersuasive. Thus, the Demurrer to the third cause of action is?OVERRULED.
Fourth Cause of Action for Battery
?The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.? (So v. Shin,?supra, 212 Cal.App.4th at p. 669.)
Cross-Defendant simply asserts the ?allegations are inadequate to state a claim for battery? and that the complaint fails to allege acts that constitute ?oppressive,? citing CC ?3294 (exemplary damages elements).??Oppression is not an element of battery and Carter?s bald assertion of inadequacy is again devoid of any merit.??OVERRULED?as to battery.
Fifth Cause of Action for False Imprisonment
The elements of false imprisonment are ?(1) nonconsensual, intentional confinement of a person, (2) without lawful privilege, (3) for an appreciable period of time, however brief.? (Bocanegra v. Jakubowski?(2015) 241 Cal.App.4th 848, 855;?Scofield v. Critical Air Medicine, Inc.?(1996) 45 Cal.App.4th 990, 1000?01.)
The cross-complaint alleges Cross-Defendant intentionally confined Cross-Complainant in her bedroom, without lawful privilege, for an appreciable period of time against her will. (Cross-Compl., ???51-52.) Cross-Defendant relies on a jury instruction (BAJI 7.60) for his argument Cross-Complainant must prove damages.??But Plaintiff alleges a false imprisonment and can plead a cause of action ?even where the damage is purely nominal.? (Scofield v. Critical Air Medicine, Inc.?(1996) 45 Cal.App.4th 990, 1008.) Cross-Defendant?s other arguments, essentially arguing Cross-Complainant has not pled facts to support each element of this cause of action, are not persuasive.??For example, Cross-Defendant seems to suggest that the alleged imprisonment of his wife in her bedroom could be interpreted as ?say keeping the marriage intact.? (Opp., p. 16, lns. 11-12.) This argument is not properly raised at the pleading stage. Thus, the Demurrer to the fifth cause of action is?OVERRULED.
Sixth Cause of Action for Intentional Infliction of Emotional Distress
The elements of a cause of action for intentional infliction of emotional distress are ?(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. [?] Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.? ((2017) 15 Cal.App.5th 214, 228?229 [internal citations and quotations omitted].)
Cross-Defendant argues his alleged conduct is not extreme or outrageous. Cross-Complainant alleges several incidents, including a road rage situation, a day when Cross-Defendant trapped her in the bedroom during a fight and threatened to kill her if she left, and that she discovered he was surveilling her and going through her belongings.?(Cross-Compl., ?? 55-59.) These facts adequately allege extreme and outrageous conduct for purposes of a demurrer.
Cross-Defendant also argues his conduct could not reasonably cause her to suffer emotional distress. The Court will not adjudicate this issue at the pleadings stage. Cross-Defendant also argues the cross-complaint does not allege he intentionally caused emotional distress, but it does. (Cross-Compl., ?? 61-62.) The Court finds the complaint adequately alleges a cause of action for intentional infliction of emotional distress. Therefore, Cross-Defendant?s Demurrer to the sixth cause of action is?OVERRULED.
Motion to Strike
Cross-Defendant?s Notice of Motion to Strike fails to set forth the portions sought to be stricken. (Cal. Rules of Court, rule 3.1322(a).) For this reason alone, Cross-Defendant?s Motion to Strike is?DENIED.
Even if the Court were to consider Cross-Defendant?s improper Motion to Strike, it would deny it. Cross-Defendant?s supporting memorandum seeks an order striking the prayer for punitive damages from each of the six causes of action.
The Court may strike ?improper matter inserted in any pleading.? (Code Civ. Proc. ? 436.) Civil Code section 3294 authorizes the award of punitive damages in non-contract cases ?where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.? (Civ. Code, ? 3294, subd. (b).)
?Malice? is ?conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.? (Civ. Code, ? 3294, subd. (c)(1).) ?Oppression? is ?despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.? (Civ. Code, ? 3294, subd. (c)(2).) ?Fraud? is ?an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.? (Civ. Code, ? 3294, subd. (c)(3).)
The Court finds the cross-complaint adequately alleges oppressive and malicious conduct supporting a prayer for punitive damages, including a death threat and a road rage incident.
Cross-Defendant also seeks an order striking an allegation that Cross-Complainant told Cross-Defendant she wanted a divorce, but he responded by saying she was ?stuck in the marriage and could not leave.? This allegation provides relevant background information and is not therefore ?improper matter inserted in a pleading.?
Therefore, Cross-Defendant?s Motion to Strike is?DENIED.