Case Number: BC714748    Hearing Date: January 02, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

SANDRA MEZGER, etc., et al.,

Plaintiffs,

vs.

 

RANDY RALPH BICK, JR., etc., et al. 

 

Defendants.

 

AND RELATED CROSS-ACTION

        CASE NO.: BC714748

 

[TENTATIVE] ORDER RE: DEMURRER TO SECOND AMENDED CROSS-COMPLAINT

 

Date:  January 2, 2020

Time: 8:30 a.m.

Dept. 56

FSC: April 21, 2020

Jury Trial: May 4, 2020

 

MOVING PARTY: Cross-Defendant Jeffrey Mezger

OPPOSING PARTY: Cross-Complainant Kathleen Griffin

            The Court has considered the moving, opposition, and reply papers.

BACKGROUND

            Plaintiffs filed a complaint arising from alleged unsubstantiated noise complaints lodged against them by Defendants, as well as Defendants’ secretly recording audio and video of Plaintiffs’ home and backyard.  Plaintiffs’ complaint alleges causes of action for: (1) nuisance; (2) violation of California Penal Code, Section 632; (3) invasion of common law right of privacy; (4) invasion of California constitutional right of privacy; (5) invasion of privacy, false light; and (6) nuisance in violation of municipal code.

            Cross-Complainant filed the operative Second Amended Cross-Complaint (“SAXC”) against Cross-Defendant arising from the alleged wrongful actions of Cross-Defendant, alleging a single cause of action for: (1) intentional infliction of emotional distress (“IIED”).

            Cross-Defendant filed a demurrer to the first cause of action in the SAXC.  Cross-Defendant contends that: (1) Cross-Complainant does not allege any “extreme and outrageous” conduct; (2) most of the conduct alleged in the SAXC was not directed at Cross-Complainant; and (3) Cross-Complainant is not entitled to special treatment afforded to protected classes.

            Initially, the Court finds that Cross-Complainant’s original cross-complaint did not make any allegations that Cross-Complainant was emotionally vulnerable due to: (1) governmental investigations and political extremists; or (2) the death of her sister as is alleged in the SAXC.  (SAXC at ¶¶ 49-55.)  Also, the original cross-complaint did not allege that Cross-Defendant “aggressively punched [Cross-Complainant} on her shoulder while mockingly saying you can take it.”  (SAXC at ¶ 17.)  As indicated below pursuant to the Banis case, Cross-Complainant cannot omit harmful allegations or make inconsistent allegations with respect to earlier pleadings.  Cross-Defendant’s motion for judgment on the pleadings with respect to the first cause of action in the cross-complaint was granted with leave to amend.  Additionally, prior to filing the operative SAXC, Cross-Complainant filed a First Amended Cross-Complaint (“FAXC”).

EVIDENTIARY OBJECTIONS

            The Court SUSTAINS Cross-Complainant’s evidentiary objections numbers 1, 2, 3, and 4 to Cross-Defendant’s evidence submitted in support of his demurrer to the SAXC.

DEMURRER

“A demurrer tests the sufficiency of a complaint as a matter of law.”  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.”  (Id.)  “The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.”  (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)  With respect to a demurrer “[t]he complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.”  (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.)  “[W]hen a complaint contains allegations that are fatal to a cause of action, a plaintiff cannot avoid these defects simply by filing an amended complaint that omits the problematic facts or pleads facts inconsistent with those alleged earlier.”  (Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th 1035, 1044.)  “[M]any cases have dismissed intentional infliction of emotional distress cases on demurrer, concluding that the facts alleged do not amount to outrageous conduct as a matter of law.”  (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235.)

Issue No. 1: First Cause of Action

A cause of action for intentional infliction of emotional distress is present when there is: (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.  (Bock v. Hansen (2014) 225 Cal.App.4th 215, 232-233.)    “A defendant’s conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1610.)   “But [l]iability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.”  (Id.)  A cross-complainant “cannot recover [for IIED] merely because of hurt feelings.”  (Id.)  “In evaluating whether the defendant’s conduct was outrageous, . . .[l]iability has been found only where the conduct has been outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”  (Id. at 1611.) As a member of society, a person “must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind.”  (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.)  A “safety valve must be left through which irascible tempers may blow off relatively harmless steam.”  (Id.)  Where a threat is made but there are no “steps to either carry out [the] alleged threat or, at the least make the threat appear more real”, a threat does not constitute extreme and outrageous conduct for purposes of IIED and no liability for IIED exists.  (Id. at 498.)  One is not liable for IIED “for mere insult, indignity, annoyance, or even threats, where the case is lacking in other circumstances of aggravation.”  (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128.)  “A reasonable person must realize that complete emotional tranquility is seldom attainable, and some degree of transitory emotional distress is the natural consequence of living among other people in an urban or suburban environment.”  (Schild v. Rubin (1991) 232 Cal.App.3d 755, 763.)  “A reasonable person must expect to suffer and submit to some inconveniences and annoyances from the reasonable use of property by neighbors, particularly in the sometimes close living of a suburban residential neighborhood.”  (Id.)  Even where a cross-complainant alleges that they were emotionally vulnerable to emotional distress, a cross-complainant still must allege conduct that is “extreme, outrageous, beyond the bounds of decency, atrocious, or intolerable in a civilized society.”  (Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1609.)

             The Court finds that the SAXC, despite this being the third version of the cross-complaint, still has not alleged conduct that is “extreme and outrageous” for purposes of stating a cause of action for IIED.  Here, Cross-Complainant makes allegations that essentially fall into two categories of actions: (1) Cross-Defendant hosting parties and events that consisted of loud music and guests which disturbed Cross-Complainant; and (2) Cross-Defendant using foul language and directing insults and threats at Cross-Complainant.  The noise emanating from Cross-Defendant’s residence and the subsequent disturbances it caused Cross-Complainant are not sufficient to constitute extreme and outrageous behavior because under Schild noise and disturbance with one’s tranquility and quiet environment is not sufficient to be conduct that is extreme and outrageous for purposes of IIED.

March 4, 2017 Incident

The SAXC’s allegations with respect to the March 4, 2017 tent party is insufficient to rise to the level of extreme and outrageous conduct.  The SAXC alleges that: (1) on March 4, 2017, Cross-Defendant threw a large outdoor event at his home and it featured a large tent, a live DJ, continued until the early hours of the following morning , and it seemed as if at least 100 people were in Cross-Defendant’s backyard that night (SAXC at ¶ 19); (2) the music from the party was so loud that her windows were vibrating and she had to go to her basement because the noise was too loud for her to sleep upstairs (Id. at ¶ 19); (3) LAPD had to be called by Mr. Bick because the noise was so intense and persistent (Id. at ¶ 20); (4) the following day, Cross-Complainant discovered broken beer bottles and cigarette butts that had been thrown onto her property and it was located near the boundary wall to Cross-Defendant’s property (Id. at ¶ 21); and (5) she believes that the broken beer bottles and cigarette butts were thrown from Cross-Defendant’s property and possibly with Cross-Defendant’s knowledge or acquiescence (Id. at ¶ 21.)

Spring 2017 Incident

Cross-Complainant alleges that: (1) in September 2017, one evening, she overheard Cross-Defendant say in a very loud voice that carried over the wall that he has been to her house and could be in her house in eight seconds if he wanted to (Id. at ¶ 24); (2) Cross-Defendant is physically taller, heavier, and stronger than her (Id.); and (3) Cross-Defendant’s statement caused her to fear for her safety.  (Id. at ¶ 25.)

May 26, 2017 Incident

The SAXC alleges that on May 26, 2017: (1) the Mezgers and possibly others engaged in another loud and intrusive noisemaking event in the portion of their backyard nearest Cross-Complainant’s property (Id. at ¶ 27); (2) due to the excessively loud noises coming from the Mezgers backyard that night, Cross-Complainant and Mr. Bick sought assistance from the authorities (Id. at ¶ 28); and (3) she heard Cross-Defendant shout from his backyard “Close your doors, you stupid b****!” and he also shouted “Close your doors, you stupid b***h—or else.”  (Id. at ¶¶ 29-30.)

September 16, 2017 Incident[1]

The SAXC alleges that: (1) on September 16, 2017, the Mezgers held yet another noisy event at their home that went on all day and well into the night (SAXC at ¶ 40); (2) due to the excessive noise and frenzied, chaotic shouting by primarily adults from the Mezgers’ backyard,  Cross-Complainant and Mr. Bick eventually called the police (Id.); (3) while responding officers were still speaking to Mr. Bick in front of Cross-Complainant’s home, Cross-Defendant began going on a threatening rant (Id. at ¶¶ 43-45); (4) Cross-Defendant shouted at Mr. Bick to “go f***” himself” for calling the authorities on his grandkids, called Cross-Complainant a “f***ing bald dyke who Donald Trump kind of put the heat on,” and yelled “f*** you” to Mr. Bick and “f** Kathy” in reference to Cross-Complainant (Id. at ¶ 48); (5) Cross-Defendant yelled “Let’s declare war ***hole because we’ve got a lot to go for” and “Let’s bring it on you b****” and proceeded to call Cross-Complainant a “f****** c***”; and (6) Cross-Defendant yelled “f*** you” an additional two times and stated “war is happening” and said “[w]e’re going to bring some things on you . . . now f*** you.”  (Id.)

Analysis

The Court finds that Cross-Complainant’s citation to Plotnik is meritless to support her argument that she has stated a cause of action for IIED, and that whether conduct is extreme and outrageous is a factual one and therefore must go to a jury. The Court fails to see the relevance of Plotnik because Plotnik did not involve the question of determining extreme and outrageous conduct for the purposes of a demurrer.  (Plotnik v. Miehaus (2012) 208 Cal.App.4th 1590.)  Thus, the procedural posture in Plotnik is different from the procedural posture in the instant action. Cross-Complainant’s citation to Bock is also meritless because, as indicated above, Bock gives the Court authority to dismiss an IIED cause of action via a demurrer and Bock involved an IIED cause of action in the context of an insurance claim.

In Plotnik, the court found that conduct of defendants was extreme and outrageous and thus IIED was present because: (1) there existed express threats of harm to plaintiff and his dog; (2) the actions of defendants rushing toward and confronting plaintiff while he was standing on the side of his property line photographing the fence; (3) making rude comments during the encounter where defendants rushed toward plaintiff; and (4) defendants made a veiled threat against plaintiff’s wife.  Here, there was no express threat made by Cross-Defendant to Cross-Complainant as was made in Plotnik on which Cross-Complainant relies.  Cross-Defendant did make statements consisting of insults with foul language; however, such expletives and language do not rise to the level of extreme and outrageous conduct under Plotnik.  Also, the SAXC does not plead any facts that show that Cross-Defendant took any initiative or action to carry out his threats against Cross-Complainant.  Under Cochran, mere threats without any accompanying action to carry such threat out do not constitute extreme and outrageous conduct.

 While Cross-Complainant alleges that at the time of Cross-Defendant’s threat on September 16, 2017, she was alone in her bedroom, it was dark outside, and she did not know where Mr. Bick was so she cried out twice because she was alone and afraid of Cross-Defendant (SAXC at ¶ 49) is not enough to state a cause of action for IIED.  Cross-Defendant’s foul language, loud events in his backyard, and threats without any indicia of action on Cross-Defendant’s behalf does not rise to the level of extreme and outrageous conduct. Cross-Complainant has not stated a cause of action for IIED.  Due to the SAXC not alleging facts sufficient to constitute extreme and outrageous conduct, pursuant to Mintz, the Court need not address Cross-Complainant’s argument that Cross-Defendant’s threat exploited her emotional vulnerabilities.

            The Court finds that the conduct of Cross-Defendant alleged in the SAXC does not rise to the level of extreme and outrageous conduct for purposes of IIED.  Therefore, the SAXC has not pled a cause of action for IIED.

            The Court SUSTAINS WITHOUT LEAVE TO AMEND Cross-Defendant’s demurrer to the first cause of action in the SAXC.  The Court sustains the demurrer to the first cause of action in the SAXC without leave to amend because Cross-Complainant has not met her burden in showing that there is a reasonable possibility that the first cause of action in the SAXC can be amended to state a sufficient cause of action for IIED.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  All Cross-Complainant relevantly asserts in her opposition with respect to leave to amend is that “any defects alleged in the [m]otion can be cured by amendment.”  (Opp. at 19:16.)  This is Cross-Complainant’s third version of her cross-complaint as she has filed the original cross-complaint and FAXC prior to the operative SAXC.

Moving party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

         Dated this 2nd day of January 2020

   
  Hon. Holly J. Fujie

Judge of the Superior Court

 

[1] The SAXC alleges that: (1) in early September 2017, Cross-Complainant shaved her head completely bald in sympathy with her sister who had been suffering from cancer; (2) her sister died from cancer on September 15, 2017; and (3) Cross-Complainant was traumatized by her sister’s death and at the same time she was grieving for her sister, she was caring for her elderly mother in the privacy of her home.  (SAXC at ¶¶ 37-39.)