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Pinheiro v. Williams

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Feb 14, 2018
No. H043247 (Cal. Ct. App. Feb. 14, 2018)

Opinion

H043247

02-14-2018

HENRY PINHEIRO et al., Plaintiffs and Appellants, v. SHIRLEY WILLIAMS, Defendant and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 1-14-CV272438)

This action arises out of a physical altercation occurring on August 9, 2014, in which Daniel Gunther (Gunther) allegedly assaulted Henry Pinheiro (Henry) and damaged the truck owned by Henry and his wife, Cindy Pinheiro. (Collectively, Henry and his wife are referred to as the Pinheiros.) The incident occurred as Gunther was leaving the San Jose residence of his girlfriend, Shirley Williams (Williams), the Pinheiros' next door neighbor. In November 2014, the Pinheiros brought suit against Gunther (as a Doe defendant) and Williams. As against Williams, the Pinheiros asserted a claim for negligence, alleging that she (1) invited Gunther to her home, (2) knew or should have known of his propensity for violence, (3) was aware of previous conflicts between Gunther and Henry, (4) was aware of Gunther's having previously threatened Henry, and (5) stood by and watched as Gunther assaulted Henry. After demurrers by Williams to two complaints were sustained with leave to amend, the Pinheiros filed a second amended complaint (Complaint) that included a negligence claim against Williams. On July 14, 2015, the court sustained without leave to amend Williams's demurrer to the Complaint.

On the same day, the Pinheiros filed a cross-complaint in this action against Williams and Gunther; they later filed a first amended cross-complaint (Cross-Complaint). Williams filed a demurrer and motion to strike. The court granted the motion to strike the Cross-Complaint without leave to amend. A judgment was thereafter entered in favor of Williams on the Complaint and Cross-Complaint.

The Pinheiros on appeal challenge the order sustaining the demurrer to the Complaint and the order striking the Cross-Complaint. They argue that they alleged facts sufficient to constitute a cause of action against Williams for negligence. And the Pinheiros contend that they alleged distinct claims against Williams in the Cross-Complaint based upon occurrences after the August 14, 2014 incident that was the subject of the Complaint, and therefore the court erred in striking the Cross-Complaint without leave to amend.

We conclude that the court did not err in sustaining the demurrer to the Complaint. Since the Pinheiros do not argue that the court abused its discretion by denying leave to amend the Complaint, we hold that any such contention has been abandoned. We hold further that the court did not abuse its discretion by granting the motion to strike the Cross-Complaint without leave to amend. We will therefore affirm the judgment entered in favor of Williams.

I. PROCEDURAL BACKGROUND

The Pinheiros filed their Judicial Council form complaint on November 4, 2014. They alleged in the first cause of action against Gunther (named as John Doe 1) claims for battery and trespass to chattels. The Pinheiros also alleged a second cause of action for negligence against Williams. On January 6, 2015, Williams filed a demurrer to the complaint and a motion to strike, pursuant to Code of Civil Procedure section 430.30, subdivision (a) and section 435, respectively. On March 24, 2015, the court sustained the ...demurrer to the second cause of action with leave to amend, concluding that the Pinheiros had "fail[ed] to allege any facts showing that Williams owed them a duty of care to support their claim of negligence."

All further statutory references are to the Code of Civil Procedure unless otherwise stated.

On or about April 1, 2015, the Pinheiros filed a first amended complaint that again included a claim for negligence against Williams. Williams's demurrer to that pleading was again sustained by the court with leave to amend.

On May 21, 2015, Gunther, as a self-represented litigant, filed a Judicial Council form cross-complaint against the Pinheiros. He alleged claims for negligence and intentional tort. In that pleading, Gunther alleged that Henry "premeditatedly and deliberately incited the entire confrontation [on August 9, 2014]" and was the aggressor in the fight between the two of them.

There is nothing in the record indicating that Williams filed a cross-complaint against any party in this action.

The Pinheiros filed a (Second Amended) Complaint on May 29, 2015. In their negligence claim against Williams, they alleged, among other things, the following facts, which are admitted for purposes of demurrer to be true (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214 (Committee on Children's Television)): (1) there had been prior conflicts between Henry and Gunther that Williams had witnessed; (2) Gunther had made threats of violence against Henry in Williams's presence; (3) Gunther had previously committed violent acts on several occasions that made Williams aware of his violent tendencies; (4) the Pinheiros and Williams live in a private gated community and no third parties, including Gunther, have the right to enter the property; (5) Williams had a duty to keep "the property shared with [the Pinheiros] safe for her neighbors"; (6) said duty included "not creating a danger to [the Pineiros] by inviting [Gunther]" to Williams's home; (7) Williams, with knowledge of the facts as alleged, invited Gunther to her home on August 9, 2014; and (8) after creating "the dangerous situation" by inviting Gunther, she "stood by and watched" as Gunther damaged the Pinheros' truck and physically injured Henry.

Williams demurred to the Complaint on the ground that it failed to state facts sufficient to constitute a cause of action (§ 430.10, subd. (a)). She again contended that no claim for negligence was stated because the Pinheiros had not alleged facts demonstrating a legal duty owed by Williams to them. Williams filed a concurrent motion to strike portions of the Complaint. On July 14, 2015, the court sustained Williams's demurrer without leave to amend and denied the motion to strike as moot. In its order, the court concluded that there was no allegation that Williams had a special relationship with the Pinheiros or with Gunther from which a legal duty could have arisen. Specifically, the court held that the Complaint's allegations did not establish that Williams had a special relationship that "would [have] require[d] her to control Gunther or to protect [the Pinheiros] simply because they were neighbors."

Although the Pinheiros challenge the court's order sustaining the demurrer to the Complaint, they did not include in appellants' appendix (1) the demurrer and supporting papers filed by Williams, (2) any opposition to the demurrer filed by the Pinheiros, (3) any reply papers filed by Williams, or (4) the transcript from the hearing on demurrer. It is only because Williams included it in respondent's appendix that we have before us the demurrer to Complaint.

The court recited that its order resulted from the adoption of its tentative ruling, which was posted the day before the hearing and was not contested by any party.

On July 14, 2015—the same day the court sustained Williams's demurrer to the Complaint without leave to amend—the Pinheiros filed a cross-complaint against Williams and Gunther. Williams filed a demurrer and motion to strike the cross-complaint. Before there was a hearing on that demurrer and motion to strike, the Pinheiros filed a (First Amended) Cross-Complaint.

In the Cross-Complaint, the Pinheiros alleged claims against Williams and Gunther for intentional infliction of emotional distress (hereafter, sometimes IIED) and negligent infliction of emotional distress (hereafter, sometimes NIED). The factual allegations common to (and the sole bases for) both causes of action were that (1) the Pinheiros and Williams were neighbors; (2) Williams invited Gunther to her home on August 9, 2014; (3) on that date, Gunther threw objects at Henry's truck, causing damage to it, and injured Henry by punching and kicking him; (4) Gunther was criminally prosecuted as a result of his battery of Henry, and Williams attended the hearings with Gunther; (5) after the August 9, 2014 incident, Gunther in Williams's presence, threatened to kill Henry; (6) with knowledge of the facts and with the purpose of intimidating and threatening the Pinheiros, Williams invited Gunther to move into her home, notwithstanding that Gunther owned a home nearby; and (7) after Gunther moved into Williams's home, Williams and Gunther "taunted and intimidated" the Pinheiros.

Williams again demurred and moved to strike the Cross-Complaint and moved for sanctions under section 128.5, and the Pinheiros opposed the demurrer and motions. On December 11, 2015, the court granted the motion to strike without leave to amend, denied the motion for sanctions, and deemed the demurrer moot. A judgment was entered in favor of Williams as to the Complaint and Cross-Complaint on January 29, 2016.

Although no motion to strike the Cross-Complaint was included in the appellants' appendix or respondent's appendix before us, Appellants' appendix includes the demurrer to the Cross-Complaint, including the memorandum in support thereof in which Williams argued, inter alia, that the pleading should be stricken pursuant to section 436. The Pinheiros' opposition included the argument that the request to strike the Cross-Complaint should be denied for the reasons the demurrer should be overruled. And the court in its order specifically stated that Williams had filed a demurrer and motion to strike the Cross-Complaint upon which the court specifically ruled. We therefore infer that Williams filed a motion to strike the Cross-Complaint, and that it was based upon the argument contained in her demurrer to the Cross-Complaint and in her motion to strike the original cross-complaint, which pleadings are part of the record before us.

The Pinheiros filed a timely notice of appeal.

II. DISCUSSION

A. Applicable Law and Standards of Review

1. Demurrers

A party against whom a complaint or cross-complaint has been filed may file a demurrer to the pleading on particular grounds specified by statute, including the ground that the challenged pleading fails to allege facts sufficient to constitute a cause of action. (§ 430.30, subd. (e).) A demurrer does not "test the truth of the plaintiff's allegations or the accuracy with which he [or she] describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading." (Committee on Children's Television, supra, 35 Cal.3d at p. 213.) As such, "the facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation.]" (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)

We perform an independent review of a ruling on a demurrer and decide de novo whether the challenged pleading states facts sufficient to constitute a cause of action. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) "In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); see also Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1075.)

On appeal, we will affirm a "trial court's decision to sustain the demurrer [if it] was correct on any theory. [Citation.]" (Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 808, fn. omitted.) Thus, "we do not review the validity of the trial court's reasoning but only the propriety of the ruling itself. [Citations.]" (Orange Unified School Dist. v. Rancho Santiago Community College Dist. (1997) 54 Cal.App.4th 750, 757.)

An appellate court reviews the denial of leave to amend after the sustaining of a demurrer under an abuse of discretion standard. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) When a demurrer is sustained without leave to amend, the reviewing court must determine whether there is a reasonable probability that the complaint could have been amended to cure the defect; if so, it will conclude that the trial court abused its discretion by denying the plaintiff leave to amend. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 39; Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708, 719.) " '[W]here the nature of the plaintiff's claim is clear, and under substantive law no liability exists, a court should deny leave to amend because no amendment could change the result.' " (Buchanan v. Maxfield Enterprises, Inc. (2005) 130 Cal.App.4th 418, 421 (Buchanan).) The plaintiff bears the burden of establishing that it could have amended the complaint to cure the defect. (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320 (Campbell).)

2. Motions to Strike Pleadings

Section 436 provides as follows: "The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." As explained by one court, "A trial court has authority to strike sham pleadings, or those not filed in conformity with its prior ruling." (Ricard v. Grobstein, Goldman, Stevenson, Siegel, LeVine & Mangel (1992) 6 Cal.App.4th 157, 162.) Thus, "[a] court may, by virtue of its inherent power to prevent abuse of its processes, strike an amended complaint which is filed in disregard of established procedural processes. [Citation.]" (Loser v. E. R. Bacon Co. (1962) 201 Cal.App.2d 387, 390.)

We review for abuse of discretion a trial court's order under section 436 striking a complaint. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.) "This means that the reviewing court will disturb the ruling only upon a showing of a ' " 'clear case of abuse' " ' and a ' " 'miscarriage of justice.' " ' [Citations.] Discretion is abused only when, in its exercise, the trial court ' "exceed[ed] the bounds of reason, all of the circumstances before it being considered." ' [Citation.]" (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1282 (Quiroz); see also Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1497.)

B. The Pinheiros' Noncompliant Briefs

Preliminarily, we address the Pinheiros' noncompliance with the rules of appellate procedure. Their opening brief is not in compliance in a number of respects with the California Rules of Court or with the rules of appellate practice. The opening brief contains a several-page statement of facts with no proper citations to the appellate record (i.e., appellants' appendix) in support of the assertions of fact. These omissions are in violation of rule 8.204(a)(1)(C), under which all parties filing appellate briefs must "[s]upport any reference to any matter in the record by a citation to the volume and page number of the record where the matter appears." (See also In re S.C. (2006) 138 Cal.App.4th 396, 406-407 ["an appellate court need not search through the record in an effort to discover the point purportedly made"].) Such failure to include citations to the appellate record in their brief may result in this appellate court deeming the Pinheiros' appellate claims forfeited. (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 800-801.)

Further rule references are to the California Rules of Court.

Second, insofar as this appeal concerns the Pinheiros' challenge to the trial court's order sustaining the demurrer to the Complaint, we are concerned only with the facts alleged in that pleading, presumed to be true, in deciding whether the Complaint stated a cause of action against Williams. (See Blank, supra, 39 Cal.3d at p. 318.) Likewise, in reviewing the order in connection with Williams's demurrer and motion to strike challenging the Cross-Complaint, we are concerned with the facts pleaded in the Cross-Complaint. (Ibid.) It is readily apparent that the unsupported recitation of alleged facts in the Pinheiros' opening brief includes a number of details concerning the underlying incident of August 9, 2014, and details allegedly occurring after that date, that do not appear in the Complaint and Cross-Complaint, respectively. "Factual matters that are not part of the appellate record will not be considered on appeal and such matters should not be referred to in the briefs." (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102.) We will therefore disregard any of the Pinheiros' factual assertions that are not contained in the record, i.e., in the Complaint and/or the Cross-Complaint. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1.)

Third, the appendix filed by the Pinheiros is noncompliant with the California Rules of Court. Under rule 8.124(b)(1)(A), the Pinheiros, as appellants, were required to include in their appendix all items required to be included in a clerk's transcript under rule 8.122(b)(1). The required documents—not included by the Pinheiros here—include all record designation notices and the clerk's register of actions. (Ibid.) Further, the Pinheiros were required to provide in the appendix items "necessary for proper consideration of the issues, including . . . any item that the appellant should reasonably assume the respondent will rely on." (Rule 8.124(b)(1)(B).) As is evident from the issues raised in the opening brief, the Pinheiros violated this rule by failing to include such key documents as the demurrer to the Complaint and the moving and opposing papers in connection with that demurrer. (See fn. 3, ante.) And appellants failed to include their notice of election as required. (Rule 8.124(b)(1)(C).)

Fourth, the Pinheiros have failed to procure an adequate appellate record. One of their two challenges on appeal relates to the court's sustaining without leave to amend Williams's demurrer to the Complaint. Yet, as noted (see fn. 3, ante), they have not presented the relevant documents from the court below necessary to adequately address their challenge, namely, Williams's demurrer to Complaint and supporting memorandum, the Pinheiros' opposition to the demurrer, any reply memorandum filed by Williams, and the reporter's transcript from the hearing on demurrer. The party challenging a ruling by the trial court has the burden of showing reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) When there is an inadequate record, we must presume any matters that could have been presented to support the trial court's order were in fact presented, and we may affirm the trial court's determination on that basis. (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) An appellant's failure to present an adequate record will result in the issue being resolved against appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [appellants' failure to procure adequate record of attorney fee proceedings mandated that their challenge be resolved against them]; see also Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259 [failure of appellant to include transcript of hearing foreclosed court's review of claim of error].)

Based upon the Pinheiros' noncompliance with the rules of appellate procedure, it would be appropriate to entirely disregard their contentions as having been forfeited. (See State Comp. Ins. Fund v. WallDesign Inc. (2011) 199 Cal.App.4th 1525, 1528-1529, fn. 1.) But their challenges to the rulings on the demurrer to Complaint and to the motion to strike Cross-Complaint are of a legal nature—i.e., (1) whether they adequately pleaded in the Complaint the element of duty to support a negligence claim against Williams, and (2) whether the court properly granted the motion to strike the Cross-Complaint without leave to amend. Additionally, Williams has, in her respondent's appendix, supplied some of the missing documents. Therefore, notwithstanding the Pinheiros' noncompliance with appellate procedures, in the interests of addressing the merits of the case, we will address their contention that the judgment should be reversed.

C. No Error in Sustaining Without Leave Demurrer to Complaint

1. Introduction

A complaint for negligence requires allegations of the elements of (1) the defendant's owing a duty of care, (2) a breach of that duty, and (3) that breach of duty being the proximate cause of the plaintiff's resulting injury. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 292 (Nally).) The first element, duty, is at issue in this case.

As a panel of this court has summarized: "Duty 'is an essential element' of the tort of negligence. [Citation.] Duty 'may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.' [Citation.] The existence of a legal duty ' " 'depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.' " ' [Citation.]" (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529-530 (Melton).) "The existence of a duty and foreseeability, when analyzed to determine the scope of a duty, is a question of law that an appellate court will determine de novo. [Citation.]" (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1146 (Wiener).) Where the plaintiff fails to plead that defendant owed a duty of care, a demurrer to a complaint for negligence is properly sustained. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526-527 (Berkley).)

The Pinheiros contend that the trial court erred in sustaining the demurrer to the Complaint based upon its view that the Pinheiros had failed to plead the existence of a duty owed by Williams. They argue, inter alia, that they adequately pleaded duty based allegations that Williams "knew of Gunther's dangerous tendencies; that he had made threats against [Henry], of which [Williams] was aware; that she had witnessed other confrontations between them; and that she actually created the risk to [Henry] by inviting Defendant Gunther to her house, which is in a private community." The Pinheiros argue that Williams owed a duty "to not create harm to her neighbors, the [Pinheiros], by bringing this danger to [them]."

Citing Pamela L. v. Farmer (1980) 112 Cal.App.3d 206, 209 (Pamela L.), the Pinheiros contend that they alleged facts showing Williams's misfeasance, i.e., that she took steps to actively worsen the Pinheiros' position and increased the risk of harm to them. Alternatively, the Pinheiros argue that even if they did not allege misfeasance, they showed a special relationship between Williams and them under which liability for negligence based upon Williams's nonfeasance was adequately pleaded.

2. Liability for Third-Party Torts , Generally

We begin by reviewing the following general propositions: "Under traditional tort law principles, one is ordinarily not liable for the actions of another and is under no duty to protect another from harm, in the absence of a special relationship of custody or control. [Citations.] Moreover, in determining the existence of a duty of care in a given case, we must consider several factors, including the 'foreseeability of harm to [the injured party], the degree of certainty that [he] suffered injury, the closeness of the connection between [defendants'] conduct and the injury suffered, the moral blame attached to [defendants], the policy of preventing future harm, the extent of the burden to the defendant[s] and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.' [Citation.]" (Nally, supra, 47 Cal.3d at p. 293, quoting Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

But, "[a]n affirmative duty to protect another from harm may arise . . . where a 'special relationship' exists. [Citations.] Such a special relationship is typically where the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff's welfare. [Citation.]" (Kockelman v. Segal (1998) 61 Cal.App.4th 491, 498-499; see also Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.) There are two "special relationship" categories: (1) between the defendant and the actor whose conduct needs to be controlled, and (2) between the defendant and the foreseeable victim of such conduct. (Wise v. Superior Court (1990) 222 Cal.App.3d 1008, 1013 (Wise).) In such instances of a special relationship, "the court considers the foreseeability of risk from the third party conduct." (Melton, supra, 183 Cal.App.4th at p. 532.) In general, "a duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated." (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676, disapproved on another ground in Reid v. Google (2010) 50 Cal.4th 512, 527, fn. 5.) Moreover, "in the case of criminal conduct by a third party, an extraordinarily high degree of foreseeability is required to impose a duty on the landowner, in part because 'it is difficult if not impossible in today's society to predict when a criminal might strike.' " (Garcia v. Paramount Citrus Ass'n, Inc. (2008) 164 Cal.App.4th 1448, 1457, original italics, quoting Wiener, supra, 32 Cal.4th at p. 1150.)

3. Liability Based Upon Misfeasance

In Pamela L., the plaintiffs, three minor girls, sued defendants husband and wife after they were sexually molested by the husband at the couple's home while the wife was at work. (Pamela L., supra, 112 Cal.App.3d at p. 208.) They alleged that defendant wife (1) knew that her husband had a history of molesting women and children; (2) knew that the children were being invited to swim in the defendants' swimming pool while she was at work; (3) knew that the minors would be alone with the husband in the home; (4) knew that there was a serious danger of sexual misconduct by the husband unless reasonable steps were taken; (5) failed to warn the plaintiffs or their parents of the potential danger; (6) encouraged the minors to visit her husband alone by assuring the minors' parents that they would be safe with her husband in the home in her absence; and (7) prepared food and refreshments for the minors to encourage their attendance. (Id. at pp. 208-209.)

The appellate court in Pamela L. reversed the dismissal of the action as to defendant wife after the sustaining of her demurrer. It rejected the wife's contention that she could not be liable for negligence because she had no duty to control a third person's (her husband's) conduct in the absence of a special relationship either to the third party or the victim. (Pamela L., supra, 112 Cal.App.3d at p. 209.) The Pamela L. court held that this rule applied to nonfeasance, but had "no application where the defendant, through his or her own action (misfeasance) has made the plaintiff's position worse and has created a foreseeable risk of harm from the third person." (Ibid.; see also Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 716 [" '[m]isfeasance exists when the defendant is responsible for making the plaintiff's position worse, i.e., defendant has created a risk' "].) The court in Pamela L. relied on Restatement Second of Torts, section 302B for the proposition that " '[a]n act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.' [Citation.]" (Pamela L., supra, at pp. 209-210.) It concluded that the plaintiffs had alleged more than defendant wife's failure to prevent the harm; they had alleged that the wife "by her own acts increased the risk of such harm occurring" by, inter alia, encouraging the children to come over to her home by giving assurances to their parents that the minors would be perfectly safe with their husband and by preparing food and refreshments for the children to entice them to swim in her pool, notwithstanding her knowledge of her husband's past sexual misconduct. (Id. at p. 210.) The court emphasized that under the circumstances alleged, the foreseeability of harm was great, and the defendant wife could have prevented the risk by simply stating that the plaintiffs should not come to the house when she would be absent. (Id. at p. 211; but see Chaney v. Superior Court (1995) 39 Cal.App.4th 152, 157-158 [no duty alleged where negligence claim against wife who invited minors to home who were sexually assaulted by husband; assault not reasonably foreseeable to wife who did not have actual knowledge of husband's deviant proclivities].)

Pamela L. does not support the Pinheiros' position. Here, while the Pinheiros alleged that Williams knew of Gunther's violent tendencies and of his prior conflicts with, and threats made toward, Henry, they alleged no conduct by Williams that potentially increased the risk of harm to Henry beyond her inviting Gunther to her home. There were, for instance, no allegations in the Complaint that Williams fomented, encouraged, or facilitated the ultimate confrontation between Henry and him by, for example, inviting Henry to her home as well or by urging Gunther to confront Henry. And it was not even alleged that Williams at the time she invited Gunther, knew that Henry would be nearby when Gunther visited. Williams's alleged role was far different from the defendant wife's in Pamela L., where she actively encouraged vulnerable minors to come to her home knowing that they would be alone with her husband who had previously sexually molested women and children. (See Pamela L., supra, 112 Cal.App.3d at p. 211 [the minor plaintiffs, '[b]eing of tender years[,] . . . were particularly vulnerable to this sort of misconduct and not fully able to protect themselves against it"].) And there is no comparison between the two cases concerning the factors of foreseeability of harm and defendant's burden to avoid the harm; there was a much closer nexus between the defendant wife's conduct and the ultimate harm in Pamela L. than Williams's alleged conduct and the harm here.

We are therefore not persuaded that negligence liability may be imposed against Williams under the facts alleged in the Complaint based upon alleged misfeasance by creating or increasing the risk of harm to the Pinheiros of an assault by Gunther.

4. Liability Based Upon Nonfeasance (Special Relationship)

The Pinheiros do not argue there was a special relationship between Williams and Gunther that gave rise to an affirmative duty on Williams's part to control her boyfriend's actions. Indeed, such a position would lack merit. (See Hamsra v. Superior Court (1992) 7 Cal.App.4th 630, 644-646 [mother and brother of assailant who killed wife and himself had no special relationship with assailant implicating a duty to control his actions]; Wise, supra, 222 Cal.App.3d 1008 [wife had no special relationship with husband who injured plaintiffs in sniper attack, alleged to have history of instability and violent behavior, to control his conduct].) In general, "one owes no duty to control the conduct of another, nor to warn those endangered by such conduct." (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203 (Davidson).)

Instead, the Pinheiros argue Williams had a special relationship with them, the alleged victims, because Williams and the Pinheiros were "tenants-in-common over the land where the tort occurred." It is plain from a reading of the Complaint that the Pinheiros did not allege the existence of a special relationship between them and Williams founded on the parties being tenants in common. This subject was not addressed in Williams's demurrer. And because of the inadequate appellate record furnished by the Pinheiros (see fn. 3, ante), we are unable to identify the extent to which this tenants-in-common theory may have been discussed and argued in any opposition or reply papers or at the hearing on the demurrer to the Complaint.

The trial court, however, did address the theory—noting that the Pinheiros had raised it in their written opposition to the demurrer. The court concluded that it could not consider this theory because there were no allegations in the Complaint to support it. We agree with the trial court that the Pinheiros did not plead a special relationship with Williams based upon a tenants-in-common relationship. Since "[a] demurrer tests the pleading alone, and . . . will be sustained only where the pleading is defective on its face" (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459), the court may not consider facts extraneous to the complaint contained in the plaintiff's memorandum opposing the demurrer. (See SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 ["demurrer tests the pleadings alone and not the evidence or other extrinsic matters"]; see also Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [because complaint determines complaint's sufficiency and "the court should only rule on matters disclosed in that pleading," court cannot rely on facts asserted in memorandum in support of demurrer].) We therefore uphold the trial court's conclusion that it could not consider this unpleaded theory of a tenants-in-common relationship in ruling on the demurrer.

Putting aside this unpleaded theory, the Complaint fails to allege facts supporting the existence of a special relationship between Williams and the Pinheiros that obligated her to control a third party's (Gunther's) actions. The allegations that they were neighbors and that they lived in a private gated community do not establish such a relationship. Nor is the existence of a special relationship established by the allegations that Williams invited Gunther to her home with knowledge of his violent tendencies, prior conflicts with Henry, and his having threatened Henry. This is not a case where there was a special relationship between defendant and victim because, for instance, the defendant had invited children "of tender years" into her home in the sole presence of her deviant husband (Pamela L., supra, 112 Cal.App.3d at pp. 211-212); the defendants, as individual owners of property as tenants in common, owed a duty to the victim (a motorist on an adjacent road) to exercise ordinary care in managing their property to prevent a horse from escaping their property (Davert v. Larson (1985) 163 Cal.App.3d 407, 410); the defendant, as landlord, owed a duty to the invitee victim (bitten by a dog on the property) to inspect the premises and remove or restrain the tenant's dangerous guard dog (Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1135); or the defendants, as individual condominium unit owners, owed a duty to the victim (woman severely injured from a slip and fall on a stairway in the common areas of the complex) to manage property by exercising ordinary care (Ruoff v. Harbor Creek Community Assn. (1992) 10 Cal.App.4th 1624, 1628-1631).

Because the Pinheiros failed to allege facts supporting the existence of a duty, the trial court did not err in sustaining the demurrer to the negligence cause of action of the Complaint against Williams.

5. Denial of Leave to Amend

Because the record before us does not include any opposition to the demurrer, we have no way of knowing whether the Pinheiros argued below that, if the demurrer were sustained, they should be granted leave to amend. And the Pinheiros fail to argue here that the court erred in denying leave to amend when it sustained the demurrer to the Complaint. Accordingly, even assuming they argued below that they were entitled to leave to amend the Complaint, the Pinheiros have abandoned any such challenge here. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [appellate court treats as abandoned arguments made at trial level that are not asserted on appeal]; see Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [plaintiff's failure to argue on appeal how it could amend complaint to state viable claim results in forfeiture of challenge to denial of leave to amend].)

D. No Abuse of Discretion in Striking Cross-Complaint

As noted, the same day that the court sustained without leave to amend Williams's demurrer to the Complaint, the Pinheiros filed a cross-complaint against Williams and Gunther. The Pinheiros avoided defending a demurrer and motion to strike filed by Williams attacking that pleading by filing a (First Amended) Cross-Complaint. On December 11, 2015, the court granted Williams's motion to strike the Cross-Complaint without leave to amend, concluding that "[the Pinheiros] did not have a right to circumvent the trial court's ruling by reinserting [sic] the allegations from the [Complaint] into their [Cross-Complaint]."

The Pinheiros contend the trial court erred because the claims alleged in the Cross-Complaint were "separate and distinct" from the claims alleged in the Complaint, and "none of the claims that form[ed] the basis of the [Cross-Complaint] had arisen at the time the original complaint was filed, and some had still not arisen when the demurrer to the [Complaint] had been sustained." They argue that because they sought through their Cross-Complaint damages for post-complaint injuries resulting from a violation of primary rights different from the primary rights violation that was the subject of the Complaint (and the prior, superseded complaints), the trial court's reasoning in striking the Cross-Complaint was flawed. Contrary to the court's ruling (they argue), the Cross-Complaint did not represent an attempt to circumvent the court's order sustaining without leave to amend the demurrer to the Complaint.

Below, Williams argued that the Cross-Complaint should be stricken because it was a sham pleading intended to circumvent the order sustaining the demurrer to the Complaint after having had three opportunities to plead a cause of action against Williams, and "[t]hey should not be permitted to take a fourth bite at the apple." On appeal, Williams makes a very different argument: She asserts that the Cross-Complaint was properly stricken as a pleading not in conformity with California law. Williams argues that it was not a valid cross-complaint under section 428.10.

As we discuss below, the grounds stated in the court's order—mirroring Williams's argument below—did not support striking the Cross-Complaint. But "[a] trial court's order [will be] affirmed if correct on any theory, even if the trial court's reasoning was not correct. [Citations.]" (J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997) 59 Cal.App.4th 6, 15-16 (J.B. Aguerre, Inc.); see Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329 ["a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason" and will be affirmed if correct "upon any theory of law applicable to the case"].) Accordingly, we will also consider Williams's rationale for the court's order as argued on appeal that it was appropriate to strike the Cross-Complaint because it was improper under section 428.10. Lastly, after rejecting Williams's alternative rationale, we will examine whether the Cross-Complaint was properly stricken because it failed to state a viable cause of action against Williams.

1. Circumvention of Order Sustaining Demurrer to Complaint

The trial court agreed with Williams's position below that the Cross-Complaint should be stricken because it represented an attempt to circumvent the court's order sustaining without leave the demurrer to the Complaint. In so concluding, the court relied on Richard v. Grobstein, Goldman, Stevenson, Siegel, LeVine & Mangel (1992) 6 Cal.App.4th 157 (Richard), cited by Williams in her moving papers.

Richard concerned a lawsuit against a law firm alleging claims, inter alia, for malpractice in which the plaintiffs sought punitive damages. (Ricard, supra, 6 Cal.App.4th at p. 159.) The trial court struck the punitive damages allegations in the first amended complaint without leave to amend. (Ibid.) It thereafter denied plaintiffs' motion for leave to file a second amended complaint alleging conspiracy to commit fraud, including a request for punitive damages. (Ibid.) The plaintiffs then—while the first action was pending and without filing a notice of a related case in violation of local rules—filed a second action in a different district of the same superior court, alleging the same claim for conspiracy to commit fraud and the same request for punitive damages they had unsuccessfully sought to add to their complaint in the first action. (Ibid.) The law firm demurred to the complaint in the second action, arguing that it was an attempt to evade the court's prior ruling in the first action. (Ibid.) After the second action was transferred to the district in which the first action was pending, the trial court there sustained the demurrer without leave to amend and entered a judgment of dismissal. (Id. at pp. 159-160.) On appeal from the judgment in the second action, the appellate court upheld the dismissal under the trial court's authority under section 436 to strike "sham pleadings, or those not filed in conformity with its prior ruling. [Citations.]" (Ricard, supra, at p. 162.) The Richard court concluded that the second "suit was filed solely to circumvent the court's prior adverse ruling." (Ibid.) In filing the second suit, the court held, the plaintiffs had ignored the primary rights theory "under which the invasion of one primary right gives rise to a single cause of action." (Ibid.) By filing the second suit, the plaintiffs had "split their cause of action in violation of the policy against misuse of court time. [Citation.]" (Ibid.)

Richard does not support the decision to strike the Cross-Complaint here. The allegations of the Cross-Complaint—while they include references to the August 9, 2014 incident involving the alleged battery that was the basis for the Pinheiros' claims in the Complaint—concerned purported claims that arose out of events subsequent to that incident. Those alleged events included (1) the later criminal prosecution of Gunther, the later civil suit by the Pinheiros against him and Williams, and Gunther's threat to kill Henry, all of which facts having been known to Williams, (2) Williams's having invited Gunther to move into her home, and (3) Williams's and Gunther's acts (after the latter's move) of "taunt[ing] and intimidat[ing]" the Pinheiros. Based upon these alleged events, the Pinheiros pleaded claims for intentional infliction of emotional distress and negligent infliction of emotional distress. Construing the Cross-Complaint liberally (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733), the claims involved alleged injuries that were different from those alleged in the Complaint and arose out of alleged conduct occurring after the August 9, 2014 incident out of which the claims alleged in the Complaint arose. The claims alleged in the Complaint and Cross-Complaint do not involve the same primary rights. Thus, unlike in Richard, where the challenged pleading concerned a claim identical to the one previously disallowed by the court, the Cross-Complaint did not allege claims identical to those contained in the Complaint. Circumvention of the prior court order sustaining the demurrer to the Complaint was therefore not a valid basis for striking the Cross-Complaint under section 436.

The trial court also relied on Panos v. Great Western Packing Co. (1943) 21 Cal.2d 636 (Panos) in support of striking the Cross-Complaint. That case involved an unsuccessful attempt by the plaintiff to bring a second personal injury suit after his first action, involving the same accident and injuries, was adjudicated against him. Panos does not support the striking of the Cross-Complaint here.

2. Conformance with Section 428 .10

Williams on appeal argues that the Cross-Complaint was properly stricken because it "was not a proper pleading and [did] not conform to basic procedural law." (Original italics and underscoring.) Williams asserts that it was an unauthorized filing under section 428.10 because (1) Williams never filed a cross-complaint in the action that could have served as a procedural basis for the Pinheiros' having filed their Cross-Complaint, and (2) the Cross- Complaint's claims did not "arise[] out of the same transaction, occurrence, or series of transactions or occurrences" (§ 428.10, subd. (b)) as the causes of action in the Complaint. Williams's argument lacks merit.

"A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth either or both of the following: [¶] (a) Any cause of action he has against any of the parties who filed the complaint or cross-complaint against him. . . . [¶] (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him." (§ 428.10.)

Williams does not make the argument that the Cross-Complaint was procedurally improper because it was filed by parties, as cross-complainants, who had previously filed a complaint in which they had named as defendants the same parties sued as cross-defendants. While this procedure appears unusual, in the abstract, the filing of a cross-complaint by the plaintiff against the same party he or she has previously sued in the same action in a complaint is not prohibited by the Code of Civil Procedure. (See § 428.10 ["[a] party against whom a cause of action has been asserted in a . . . cross-complaint may file a cross-complaint"]; cf. Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1127 [no error in striking plaintiff's cross-complaint where plaintiff was not a defendant or cross-defendant in the action].)

Under section 428.10, subdivision (a), a party who has been sued by a complaint or cross-complaint may file a cross-complaint alleging claims he or she may have "against any of the parties who filed the complaint or cross-complaint against him [or her]." Here, Gunther had filed a cross-complaint against the Pinheiros on May 21, 2015. It was therefore proper under section 428.10, subdivision (a) for the Pinheiros, as they did, to thereafter file a cross-complaint against Gunther.

Further, when a cross-complaint is properly filed under section 428.10, the cross-complainant may join as additional cross-defendants anyone, regardless of whether he or she is already a party, for whom joinder would have been appropriate if the cross-complaint had been filed as an independent action. (§ 428.20; see 2 Cal. Civil Procedure Before Trial (Cont.Ed.Bar 4th ed. 2017) § 26.19, pp. 26-11 to 26-12.) And the rules of permissive joinder allow for an individual or entity to be joined with codefendants, inter alia, when it is claimed against the defendants "[a]ny right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action." (§ 379, subd. (a)(1).) Here, based upon the allegations of the pleading, the claims alleged in the Cross-Complaint (IIED and NIED) were ones which arose out of the same transaction or occurrence or series of transactions or occurrences—the alleged intimidation and taunting of the Pinheiros after Gunther moved into Williams's home—and present questions of law or fact common to the two cross-defendants. It was therefore proper under section 428.20 to join Williams as a cross-defendant in the Cross-Complaint appropriately filed against Gunther under subdivision (a) of 428.10. Because such joinder was appropriate, it is unnecessary for us to consider whether the Cross-Complaint against Williams was also procedurally proper under section 428.10, subdivision (b).

"When a person files a cross-complaint as authorized by Section 428.10, he may join any person as a cross-complainant or cross-defendant, whether or not such person is already a party to the action, if, had the cross-complaint been filed as an independent action, the joinder of that party would have been permitted by the statutes governing joinder of parties." (§ 428.20.)

3. Whether Cross-Complaint Alleged Viable Claims

In addition to other arguments raised below by Williams in support of her motion to strike and demurrer to the Cross-Complaint, she argued that the Pinheiros had failed to allege in the pleading facts sufficient to constitute a cause of action. We now turn to this issue: Whether the Cross-Complaint alleged facts sufficient to constitute a cause of action for intentional infliction of emotional distress and negligent infliction of emotional distress.

a. Intentional Infliction of Emotional Distress

To maintain an IIED claim, the plaintiff must show " ' "(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. . . ." ' " (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903; see also CACI No. 1602.) "Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citations.]" (Davidson, supra, 32 Cal.3d at p. 209; see also Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 498 (Alcorn) [recovery for IIED available where only emotional injuries are suffered "in cases involving extreme and outrageous intentional invasions of one's mental and emotional tranquility"].) The outrageous conduct must be perpetrated with the intent "to inflict injury or engaged in with the realization that injury will result." (Davidson, supra, at p. 210; see also Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 (Hughes).) The plaintiff's' burden of establishing severe emotional distress is "a high bar. 'Severe emotional distress means " 'emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.' " ' [Citation.]" (Hughes, supra, at p. 1051.)

It is established that "[o]rdinarily mere insulting language, without more, does not constitute outrageous conduct." (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 155, fn. 7.) Liability under an IIED claim " 'does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.' [Citation.]" (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1122 (Molko), overruled on another ground in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19; see also Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 617.) "Whether a defendant's conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous. [Citation.]" (Berkley, supra, 152 Cal.App.4th at p. 534, citing Alcorn, supra, 2 Cal.3d at p. 499.)

The alleged conduct of Williams as stated in the Pinheiros' Cross-Complaint consisted of her (1) inviting Gunther to move into her home, knowing that he had previously battered Henry, he had been criminally prosecuted for it, and he had later threatened to kill Henry; and, along with Gunther, and (2) "taunt[ing] and intimidat[ing]" the Pinheiros after his move. The invitation by Williams to Gunther to live with her did not constitute extreme or outrageous conduct, even crediting her knowledge of his prior conflicts with Henry. Indeed, finding such conduct potentially actionable would have constitutional implications. (See Roberts v. United States Jaycees (1984) 468 U.S. 609, 617-618 [constitutional right to freedom of association has two components, right to expressive association and right to intimate association].) Further, the allegation that after Gunther's move, he and Williams "taunted and intimidated" the Pinheiros did not present the element of extreme or outrageous conduct. (Molko, supra, 46 Cal.3d at p. 1122 [" 'mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities' " insufficient for IIED claim]; see, e.g., Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1108 [demurrer properly sustained where security guard's statement that "he needed to make a 'collar,' and his comments to [a detained customer] as she was escorted out of the store, 'that's what you get' and 'you're not welcome to shop here anymore,' " was legally insufficient to support IIED claim].) And we conclude as a matter of law that the alleged conduct of Williams, collectively was insufficient. (Berkley, supra, 152 Cal.App.4th at p. 534 [court may initially determine as issue of law whether conduct is extreme or outrageous].) There was no extreme or outrageous conduct alleged in the Cross-Complaint.

Apart from this first element, the Pinheiros failed to allege the second element required for an IIED claim, i.e., severe emotional distress. It is alleged in their Cross-Complaint that as a result of Williams's (and Gunther's) alleged conduct, the Pinheiros "have suffered severe emotional distress, are unable to sleep at night, live in constant fear of Cross-Defendants, and are afraid to come and go from [and to] their home." These minimal allegations do not meet the "high bar" established by our Supreme Court for the element of severe emotional distress in an IIED claim. (Hughes, supra, 46 Cal.4th at p. 1051; see Wong v. Jing (2010) 189 Cal.App.4th 1354, 1377 (Wong) [plaintiff's allegation that conduct "caused her to suffer 'severe emotional damage' " and her declaration that conduct " 'was very emotionally upsetting to [her], and has caused [her] to lose sleep, have stomach upset and generalized anxiety' " legally insufficient to support IIED claim].)

Because of the absence of sufficient pleading of these two elements, the Pinheiros failed to allege in their Cross-Complaint facts sufficient to support a cause of action for intentional infliction of emotional distress.

b. Negligent Infliction of Emotional Distress

A purported claim for NIED is in actuality not a tort separate and apart from the tort of negligence. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984 (Potter).) "The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element. [Citations.] That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship. [Citation.]" (Id. at pp. 984-985.) As the California Supreme Court explained: "[U]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant's breach of some other legal duty and the emotional distress is proximately caused by that breach of duty. Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests. [Citations.]" (Id. at p. 985.) Thus, since the Pinheiros' purported NIED claim was merely "a species of negligence" (Wooden v. Raveling (1998) 61 Cal.App.4th 1035, 1046), the question to ask in appraising their NIED allegations is: "What are the circumstances under which a plaintiff can recover damages for emotional distress as a matter of the law of negligence?" (Lawson v. Management Activities, Inc. (1999) 69 Cal.App.4th 652, 657, original italics (Lawson).) The purported claim, in other words, may more properly be called "damages for emotional distress under a negligence theory." (Id. at p. 654.)

In Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 (Molien), the California Supreme Court made it clear that to recover damages for emotional distress on a claim of negligence where there is no accompanying personal, physical injury, the plaintiff must show that the emotional distress was "serious." (Id. at pp. 927-930; see also Potter, supra, 6 Cal.4th at p. 999; Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1073, fn. 6 (Burgess).) As a panel of this court has stated: "In our view, this articulation of 'serious emotional distress' is functionally the same as the articulation of 'severe emotional distress.' Indeed, given the meaning of both phrases, we can perceive no material distinction between them and can conceive of no reason why either would, or should, describe a greater or lesser degree of emotional distress than the other for purposes of establishing a tort claim seeking damages for such an injury." (Wong, supra, 189 Cal.App.4th at p. 1378.)

The Pinheiros alleged in their Cross-Complaint that Williams (and Gunther) "knew or should have known that [their conduct as alleged] would cause [the Pinheiros] emotional distress, which was a foreseeable consequence of Cross-Defendants' conduct." They also alleged that Williams (and Gunther) "had a duty not to engage in [the conduct as alleged]." To the extent that the Pinheiros attempted to allege a claim based upon a purported duty of Williams to control or otherwise restrain Gunther from taking action to harm them, such a claim fails for the same reasons we have discussed in detail with respect to the claim for negligence alleged in the Complaint (see pt. II.C., ante). And to the extent that their claim was that Williams owed a duty to them "not to" take the action she allegedly did take (i.e., inviting Gunther to move in with her, and "taunt[ing] and intimidat[ing]" them), this is a circuitous way of alleging that her affirmative, negligently performed actions caused them harm. But there is no allegation that Williams's "breach of . . . duty . . . threaten[ed] physical injury" to the Pinheiros. (Potter, supra, 6 Cal.4th at p. 985.) Thus, the Pinheiros failed to allege sufficient facts showing duty or its breach to support a purported NIED claim.

Even assuming that the Pinheiros alleged facts sufficient to meet the elements of duty and its breach, they were required in the Cross-Complaint to allege resulting serious or severe emotional distress. (Molien, supra, 27 Cal.3d at pp. 927-930; Wong, supra, 189 Cal.App.4th at p. 1378.) As noted above (see pt. see pt. II.D.3.a., ante), the Pinheiros' allegations that they had "suffered severe emotional distress, [were] unable to sleep at night, live[d] in constant fear of Cross-Defendants, and [were] afraid to come and go from [and to] their home" were insufficient to support a claim of serious or severe emotional distress. (Wong, supra, at p. 1378.)

Accordingly, the Pinheiros failed to allege facts sufficient to constitute a cause of action for negligent infliction of emotional distress.

4. Conclusion: Motion to Strike Properly Granted

Although we determine that the Cross-Complaint was not subject to a motion to strike on the ground that the pleading was filed to circumvent the court's prior order sustaining without leave the demurrer to the Complaint, we review the trial court's order, not its rationale. (J.B. Aguerre, Inc., supra, 59 Cal.App.4th at pp. 15-16.) The Cross-Complaint failed to allege facts sufficient to constitute claims for intentional infliction of emotional distress or negligent infliction of emotional distress. It would have been appropriate for the court to have sustained the demurrer to the Cross-Complaint rather than striking that pleading (Quiroz, supra, 140 Cal.App.4th at p. 1281); the "disposition in the end amounted to a [sustaining of Williams's demurrer], a correct result in this case." (Ibid.) Because this was not an instance of "a ' " 'clear case of abuse' " ' and a ' " 'miscarriage of justice' " ' " (id. at pp. 1282), we do not find the court's striking of the pleading to have been an abuse of discretion.

Lastly, the Pinheiros urge without specifics, as they did below, that assuming the court's striking the Cross-Complaint was proper, they should have been granted leave to amend. In support of this argument, they present the same quote made below, namely, "the circumstances are few indeed where a plaintiff should not be permitted to amend his complaint upon the sustaining of a demurrer if he desires to do so, and this is the rule of the courts to the end that cases may be tried upon the merits." (George v. Simpson (1936) 14 Cal.App.2d 571, 577.) But " '[w]here the nature of the plaintiff's claim is clear, and under substantive law no liability exists, a court should deny leave to amend because no amendment could change the result.' " (Buchanan, supra, 130 Cal.App.4th at p. 421.) The Pinheiros bore the burden of establishing that they could have amended their Cross-Complaint to state (a) viable cause(s) of action. (Campbell, supra, 35 Cal.4th at p. 320.) They failed to meet that burden, and the court therefore did not abuse its discretion in denying leave to amend.

III. DISPOSITION

The judgment in favor of Williams as against the Pinheiros is affirmed.

/s/_________

BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
PREMO, ACTING P.J. /s/_________
GROVER, J.


Summaries of

Pinheiro v. Williams

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Feb 14, 2018
No. H043247 (Cal. Ct. App. Feb. 14, 2018)
Case details for

Pinheiro v. Williams

Case Details

Full title:HENRY PINHEIRO et al., Plaintiffs and Appellants, v. SHIRLEY WILLIAMS…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Date published: Feb 14, 2018

Citations

No. H043247 (Cal. Ct. App. Feb. 14, 2018)