TENTATIVE RULING

Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street
P.O. Box 21107 
Santa Barbara, CA  93121-1107

CIVIL LAW & MOTION

Nature of Proceedings: Demurrer; Motion to Strike

Demurrer & Motion to Strike
			      
Ruling

The court sustains the demurrer of defendants R&O Construction Co., dba Rocon Co. 
(R&O) and Slade Opheiken to plaintiff Tim King’s complaint. The motion to strike is, 
therefore, moot.

Analysis: 

Intentional tort: The complaint leaves defendants to speculate as to what intentional tort 
plaintiff pleads. Without knowing the elements of the tort, defendants cannot defend the 
claim. There is a reference to retaliation, but it is not clear if he means wrongful discharge 
in violation of public policy as discussed in Tameny v. Atlantic Richfield Co. (1980) 27 
Cal.3d 167, 178. Plaintiff does not allege that he was an employee and the 1099 form (as 
opposed to a W-2) belies a suggestion that he was. Independent contractors cannot assert 
Tameny claims. Sistare-Meyer v. Young Men's Christian Ass'n (1997) 58 Cal.App.4th 10, 
19. The elements of a prima facie case for the tort of 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; (3) and actual and proximate 
causation of the emotional distress by the defendant's outrageous conduct. Cervantez v. J. 
C. Penney Co. (1979) 24 Cal.3d 579, 593. Conduct to be outrageous must be so extreme 
as to exceed all bounds of that usually tolerated in a civilized community. Alcorn v. Anbro 
Engineering, Inc. (1970) 2 Cal.3d 493, 499 n5. Plaintiff does not allege which defendant did 
what. He does not allege facts supporting the allegation of extreme emotional distress. The 
court and defendants are speculating about the elements of the “intentional tort” because 
the tort is not specified. He must identify his cause of action and specify what facts satisfy 
each element of that tort.

Negligence: To state a cause of action for negligence, a plaintiff must allege that the 
defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the 
breach proximately caused the plaintiff's injuries. John B. v. Superior Court (2006) 38 
Cal.4th 1177, 1188. “[T]there is no independent tort of negligent infliction of emotional 
distress. [Citation] The tort is negligence, a cause of action in which a duty to the plaintiff is 
an essential element.” Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 985. 
Plaintiff has not described his relationship with either defendant or what duty they owe to 
him.

Fraud: The elements of fraud are: (1) a misrepresentation (false representation, 
concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, 
i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. Robinson 
Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990. Actionable deceit exists 
where a promise is made “without any intention of performing it.” Civ. Code § 1710(4). 
Building Permit Consultants, Inc. v. Mazur (2004) 122 Cal.App.4th 1400, 1414. A party must 
plead fraud specifically; general and conclusory allegations do not suffice. Lazar v. Superior 
Court (1996) 12 Cal.4th 631, 645. “This particularity requirement necessitates pleading 
facts which 'show how, when, where, to whom, and by what means the representations 
were tendered.” Id. The pleading should be sufficient “to enable the court to determine 
whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge 
of fraud.” Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 362 [citation omitted].

Plaintiff alleges that defendants represented and promised that they would send accurate 
1099 forms to the IRS. He does not say who said or promised this, when, how or to whom. 
Given the rather vague allegation of a representation and promise of future truthfulness in 
preparation of documents to be sent to a federal agency, it is even more important that the 
representation and promise be described with particularity.

The court will sustain the demurrer to all three causes of action with 20 days leave to 
amend.

Motion to Strike

Defendants move to strike the exemplary damages attachment to the complaint. The court 
has sustained the demurrer to the entire complaint, rendering the motion to strike moot. 
However, the issue is likely to resurface upon the filing of an amended complaint, if any. 
Plaintiff should be mindful that a pleading devoid of any factual assertions supporting a 
conclusion that defendants acted with oppression, fraud or malice is insufficient to state a 
claim for punitive damages. Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042. 
Again, the complaint is short on facts that would establish malice, oppression or fraud.