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ELECTRONICALLY FILED
Superior Court of California
1 Catherine L. Deter (State Bar No. 297680) County of Santa Barbara
cdeter@wshblaw.com Darrel E. Parker, Executive Officer
2 Briana J. Kutinsky (State Bar No. 340723) 3/20/2023 1:45 PM
bkutinsky@wshblaw.com By: Yuliana Razo , Deputy
3 WOOD, SMITH, HENNING & BERMAN LLP
6A Liberty Street, Suite 200
4 Aliso Viejo, California 92656
Phone: 949-757-4500 ♦ Fax: 949-757-4550
5
Attorneys for Defendant, LEFT COAST
6 INSPECTIONS, LLC
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SANTA BARBARA – ANACAPA DIVISION
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11 KIMBERLY M. JONES, an individual Case No. 23CV00522
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 949-757-4500 ♦ FAX 949-757-4550
12 Plaintiff, DEFENDANT’S NOTICE OF
ALISO VIEJO, CALIFORNIA 92656
6A LIBERTY STREET, SUITE 200
DEMURRER AND DEMURRER TO
13 v. PLAINTIFF’S COMPLAINT;
Attorneys at Law
DECLARATION OF BRIANA J.
14 LEFT COAST INSPECTIONS, LLC, a KUTINSKY
California Limited Liability Company,
15 WOOD ENVIRONMENTAL SERVICES, [Assigned for All Purposes to Judge Colleen K. Sterne,
LLC, a California Limited Liability Company; Dept. SB 5]
16 JUDITH WOOD, an individual; AND does 1 -
15, Date: June 5, 2023
17 Time: 10:00 a.m.
Defendants. Dept: 5
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Action Filed: 2/7/2023
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Trial Date: None Set
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21 TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD:
22 PLEASE TAKE NOTICE that on June 5, 2023, at 10:00 a.m., or as soon thereafter as
23 counsel may be heard in Department SB 5 of the above-entitled court. Defendant LEFT COAST
24 INSPECTIONS, LLC (hereinafter “Defendant”) will and hereby do demur to the Complaint filed
25 by Plaintiff, KIMBERLY M. JONES (hereinafter “Plaintiff”), on the following ground:
26 1. Plaintiff’s Negligent Infliction of Emotional Distress against Defendant does not
27 state facts sufficient to state a cause of action against Defendant. Code of Civil Procedure §
28 430.10(e).
27834734.1:11656-0047
DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT;
DECLARATION OF BRIANA J. KUTINSKY
1 Defendant complied with Code of Civil Procedure § 430.41. Counsel met and conferred
2 regarding the issue raised by this instant Demurrer.
3 This Demurrer is based on this Notice of Demurrer and Demurrer, the attached
4 Memorandum of Points and Authorities, the Attached Declaration of Briana J. Kutinsky, the
5 records and files in this action and any further evidence and argument that this Court will receive
6 at or before the hearing on this Demurrer.
7 DEMURRER
8 Cross-Defendants demur to the following Cause of Action within the Complaint pursuant
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to California Code of Civil Procedure (“CCP”) § 430.10(e)as follows:
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DEMURRER TO THE THIRD CAUSE OF ACTION FOR NEGLIGENT INFLICTION
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WOOD, SMITH, HENNING & BERMAN LLP
OF EMOTIONAL DISTRESS
TELEPHONE 949-757-4500 ♦ FAX 949-757-4550
12
ALISO VIEJO, CALIFORNIA 92656
6A LIBERTY STREET, SUITE 200
1. Plaintiff’s Third Cause of Action for Negligent Infliction of Emotional Distress
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Attorneys at Law
against Defendant is subject to demurrer because the Complaint fails to allege facts sufficient to
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constitute a cause of action for Negligent Infliction of Emotional Distress.
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DATED: March 20, 2023 WOOD, SMITH, HENNING & BERMAN LLP
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By:
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CATHERINE L. DETER
20 BRIANA J. KUTINSKY
Attorneys for Defendant, LEFT COAST
21 INSPECTIONS, LLC
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DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT;
DECLARATION OF BRIANA J. KUTINSKY
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Defendant, LEFT COAST INSPECTIONS, LLC (hereinafter “Defendant” or "LCI")) will
4 and hereby demurs to the Complaint filed by Plaintiff KIMBERLY M. JONES (hereinafter
5 “Plaintiff”). Plaintiff filed this instant action asserting: (1) Professional Negligence; (2) Breach of
6 Contract; and, (3) Negligent Infliction of Emotional Distress, arising out of the purchase of a
7 property located at 828 Ballard Canyon Road in Solvang, California (the “Property.”) With respect
8 to Defendant Left Coast Inspections, LLC, Defendant performed a general home inspection of the
9 Property before it was purchased, pursuant to a contract that specifically excluded inspecting for
10 mold. In fact, the contract stated that "CLIENT understands that INSPECTOR will NOT be
11 testing for mold. Plaintiff also named Wood Environmental Services ("WES') in her Complaint.
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 949-757-4500 ♦ FAX 949-757-4550
12 Per Plaintiff's Complaint, WES conducted an indoor mold assessment and prepared a Mold/
ALISO VIEJO, CALIFORNIA 92656
6A LIBERTY STREET, SUITE 200
13 Moisture Assessment Report (See, Complaint at p.2: 25:27.) Despite identifying WES as the party
Attorneys at Law
14 that completed the mold assessment, Plaintiff confusingly alleges that Defendant LCI did not
15 disclose mold conducive conditions in its general home inspection report.
16 In connection with the alleged failure to discover mold at the Property, Plaintiff improperly
17 alleges a cause of action for Negligent Infliction of Emotional Distress, despite the fact that it is
18 well-settled in California law that claims for property damage do not give rise to emotional
19 distress damage. Plaintiff attempts to twist the facts of this simple property damage case into a
20 claim for emotional distress of her son, who is not even a plaintiff to the Complaint. The gravamen
21 of Plaintiff's Complaint is a professional negligence claim for the alleged failure of the home
22 inspector and mold inspector to discover mold at the Property.
23 As explained below, Plaintiff’s Third Cause of Action for Negligent Infliction of
24 Emotional Distress against Defendant is subject to demurrer because the Complaint fails to allege
25 facts sufficient to constitute a cause of action for Negligent Infliction of Emotional Distress
26 pursuant to Code of Civil Procedure (“CCP”) § 430.10(e).
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27834734.1:11656-0047 -3-
DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT;
DECLARATION OF BRIANA J. KUTINSKY
1 II. STANDARD ON DEMURRER
2 CCP § 430.50(a) provides that a demurrer to a complaint may be taken to the whole
3 complaint or to any causes of action stated therein. Specifically, a demurrer challenges defects
4 that appear on the "face of the Complaint," or from matters outside the complaint that are
5 judicially noticeable. Harboring Villas Homeowners Ass'n v. Sup. Ct. (1998) 63 Cal.App.4th 426,
6 429. The purpose of a demurrer is to test the legal sufficiency of factual allegations in a
7 complaint. CCP § 589(a).
8 For the purpose of testing the sufficiency of the cause of action, the demurrer admits the
9 truth of all material facts properly pleaded, i.e., all ultimate facts alleged, but not contentions,
10 deductions, or conclusions of fact or law. Serrano v. Priest (1987) 5 Cal.3d 584, 591. A demurrer
11 may lie because the complaint alleges either too little, or too much, or it can be used where the
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 949-757-4500 ♦ FAX 949-757-4550
12 complaint is incomplete, i.e., a plaintiff has failed to allege some "ultimate fact" required to state a
ALISO VIEJO, CALIFORNIA 92656
6A LIBERTY STREET, SUITE 200
13 cause of action, or, it can be used where the plaintiff has included allegations that clearly disclose
Attorneys at Law
14 some defense or bar to recovery. Crosstalk Productions, Inc. v. Jacobsen (1998) 65 Cal.App.4th
15 631, 635. Accordingly, Defendant has authority to bring the instant demurrer to challenge
16 Plaintiff’s third cause of action for negligent infliction of emotional distress.
17 III. PLAINTIFF’S THIRD CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF
18 EMOTIONAL DISTRESS FAILS TO STATE A CAUSE OF ACTION AND IS
19 DUPLICATIVE OF PLAINTIFF’S FIRST CAUSE OF ACTION FOR
20 PROFESSIONAL NEGLIGENCE.
21 Under California law, no independent tort of NIED exists. (Potter v. Firestone Tire &
22 Rubber Co. (1993) 6 Cal.4th 965, 984; McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509; Gu
23 v. BMW of North America (2005) 132 Cal.App.4th 195, 204. In Lawson v. Management Activities,
24 Inc. (1999) 69 Cal.App.4th 652, 656, the Court emphasized that there is "danger in treating
25 'negligent infliction of emotional distress' as an independent tort or, at least, an independent tort
26 doctrine, with a life of its own." The Court continued, "[i]ndeed, civilized life would not be possible
27 if there were such a tort. To borrow a phrase from Blake, if tort damages were available for anything
28 which could foreseeably cause our fellow human beings’ emotional distress, “then ‘who can stand?'
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DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT;
DECLARATION OF BRIANA J. KUTINSKY
1 No one, saint or sinner, can go through life without 'negligently' inflicting emotional distress on
2 others." Id.
3 Accordingly, "there is no independent tort of negligent infliction of emotional
4 distress…[t]he tort is negligence…" Potter, supra, 6 Cal.4th at 984. "The traditional elements of
5 duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a
6 question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of
7 policy considerations for and against imposition of liability [Citations]." McMahon, supra, 176
8 Cal.App.4th at 1509. Only two theories of Negligent Infliction of Emotional Distress are recognized
9 in California, the "bystander theory" and "direct victim" theory. Gu, supra, 132 Cal.App.4th at 204.
10 "Under the bystander theory, the plaintiff seeks to recover damages for serious emotional
11 distress suffered as a result of an injury to a close family member. Recovery is limited as a matter
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 949-757-4500 ♦ FAX 949-757-4550
12 of public policy to those cases where the plaintiff was present at the scene of the injury-producing
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6A LIBERTY STREET, SUITE 200
13 event and was aware that the event was causing injury to the victim." Id. citing Burgess v. Superior
Attorneys at Law
14 Court (1992) 2 Cal.4th 10064, 1071. Here, Plaintiff states in her background allegations, and not
15 within her claim for negligent infliction of emotional distress, that her son had a severe medical
16 reaction upon stepping into the Property in Spring 2022 after purchasing the Property. (See,
17 Complain at pg. 6, line 49.) However, Plaintiff did not state that she was aware that the event - here,
18 mold intrusion - was causing the injury. In fact, Plaintiff states that she “was forced to stop her
19 move-in plans” and “the contractor discovered that was mold was present.” Clearly, Plaintiff was
20 not aware that mold was causing injury to the victim, unless Plaintiff already knew there was mold
21 infestation before purchasing the property. Also see, Ra v. Superior Court (2007) 154 Cal.App.4th
22 142. Thus, Plaintiff does not fall under the bystander category of persons to whom a duty to avoid
23 causing emotional distress is owed.
24 The second theory is a "direct victim" situation, where "the emotional distress damages result
25 from a duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a
26 matter of law, or that arises out of a relationship between the two." McMahon, supra, 176
27 Cal.App.4th at 1510. Negligent infliction of emotional distress suffered by a direct victim is not an
28 independent tort but is simply an aspect of the tort of negligence. Burgess v. Superior Court (1992)
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DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT;
DECLARATION OF BRIANA J. KUTINSKY
1 2 Cal. 4th 1064, 1072. The direct victim theory of liability is easily dispensed with here as Plaintiff
2 has already alleged a negligence cause of action.
3 Further, Plaintiff's Complaint is devoid of specific allegations regarding the nature and
4 extent of the severe emotional distress she allegedly suffered. Plaintiff only makes general and
5 conclusory allegations that he has suffered, and continues to suffer, emotional distress. (See
6 Plaintiff’s Complaint, pg. 6, line 49.) Plaintiff makes uncertain, ambiguous, and unintelligible
7 allegations showing no substantial or enduring emotional distress. Such ambiguous and boilerplate
8 allegations are insufficient to meet the high standards of extreme and severe distress required to
9 allege a Negligent Infliction of Emotional Distress claim.
10 The gravamen of the allegations makes it clear Plaintiff named LCI for alleged wrongdoing
11 in the rendering of professional services in his capacity of a home inspector for Plaintiff. Therefore,
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 949-757-4500 ♦ FAX 949-757-4550
12 the third cause of action for negligent infliction of emotional distress is duplicative of the first cause
ALISO VIEJO, CALIFORNIA 92656
6A LIBERTY STREET, SUITE 200
13 of action for professional negligence because it adds nothing new by way of fact or theory and
Attorneys at Law
14 subject to demurrer. Both causes of action are asserted on behalf of the Plaintiff and are based on
15 the same facts.
16 Plaintiff has thus failed to state sufficient facts constituting her Negligent Infliction of
17 Emotional Distress claim against Defendant, and, accordingly, Defendant’s demurrer as to
18 Plaintiff’s third cause of action should be sustained.
19 IV. EMOTIONAL DISTRESS DAMAGES ARE NOT RECOVERABLE IN
20 PROPERTY DAMAGE CLAIMS
21 It is well-settled in California that emotional distress damages are not recoverable for
22 claims arising from property damages. Erlich v. Menezes (1999) 21 Cal.4th 543, 547. In Erlich,
23 plaintiff homeowners filed suit against contractor a breach of contract, fraud, negligent
24 misrepresentation and intentional infliction of emotion distress. The homeowners in Erlich
25 retained a contractor to construct their 'dreamhouse' on an ocean-view. When they moved in, rain
26 came in and the house leaked from "every conceivable location" and the home was structurally
27 unsound. Id. at 548. Although plaintiffs in Erlich alleged tort theories in addition to contractual
28 theories, the Court noted that the plaintiff homeowners could have avoided the threatened injury
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DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT;
DECLARATION OF BRIANA J. KUTINSKY
1 by moving out of the house until necessary repairs had been completed. If plaintiff homeowners
2 moved out, the relocation expenses would have been part of their damages. Id. at 555.
3 Like the plaintiff homeowners in Erlich, Plaintiff here alleges that the house was not
4 salvageable, apart from the roof, and that the slope of the pool was not to code, causing water to
5 drain to the home. Here, Plaintiff alleges she immediately halted her move-in plans (Complaint,
6 p.3:8:9) and thus apparently did not move into the home. Thus, the relocation expenses, if
7 anything, should be part of her damages – not emotional distress damages.
8 “No California case has allowed recovery for emotional distress arising solely out of
9 property damage” (Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 1012, 200 Cal.Rptr.
10 746); moreover, a preexisting contractual relationship, without more, will not support a recovery
11 for mental suffering *555 where the defendant's tortious conduct has resulted only in economic
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 949-757-4500 ♦ FAX 949-757-4550
12 injury to the plaintiff. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1040, fn. 1, 13
ALISO VIEJO, CALIFORNIA 92656
6A LIBERTY STREET, SUITE 200
13 Cal.Rptr.2d 133; Mercado v. Leong (1996) 43 Cal.App.4th 317, 324, 50 Cal.Rptr.2d 569.
Attorneys at Law
14 V. LEAVE TO AMEND SHOULD BE PROPERLY DENIED
15 The law regarding leave to amend upon Demurrer is well settled. "If there is a reasonable
16 possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to
17 sustain a demurrer without leave to amend. The burden is on the Plaintiff, however, to
18 demonstrate the manner in which the complaint might be amended." Assn. Community
19 Organizations for Reform Now v. State of California (1995) 41 Cal.App.4th 298 quoting Hendy v.
20 Losse (1991) 54 Cal.3d 723. Hence, the corollary is also true, that where the complaint shows
21 upon its face that there is no reasonable possibility to cure the defect, the Court should deny leave
22 to amend.
23 Here, no specific facts pled in the Complaint allege the cause of action described herein.
24 The Complaint is filled with boilerplate legal conclusions rather than facts. Plaintiff failed to meet
25 her burden for pleading the causes of action described herein for the reasons set forth herein.
26 Accordingly, this Demurrer should be sustained without leave to amend. There is no reasonable
27 possibility for Plaintiff to cure these defects. As such, leave to amend is properly denied.
28 / / /
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DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT;
DECLARATION OF BRIANA J. KUTINSKY
1 VI. CONCLUSION
2 For the foregoing reasons, this Court should sustain this demurrer and dismiss the third
3 cause of action for negligent infliction of emotional distress discussed herein without leave to
4 amend.
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6 DATED: March 20, 2023 WOOD, SMITH, HENNING & BERMAN LLP
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By:
9 CATHERINE L. DETER
BRIANA J. KUTINSKY
10 Attorneys for Defendant, LEFT COAST
INSPECTIONS, LLC
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WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 949-757-4500 ♦ FAX 949-757-4550
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ALISO VIEJO, CALIFORNIA 92656
6A LIBERTY STREET, SUITE 200
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DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT;
DECLARATION OF BRIANA J. KUTINSKY
1 DECLARATION OF BRIANA J. KUTINSKY
2 I, Briana J. Kutinsky, declare as follows:
3 1. I am an attorney at law duly admitted to practice before the courts of the State of
4 California. I am an associate with WOOD, SMITH, HENNING & BERMAN LLP, attorneys of
5 record for Defendant, LEFT COAST INSPECTIONS, LLC. I know the following facts to be true
6 of my own knowledge, and if called to testify, I could competently do so.
7 2. I make this declaration regarding my compliance with the meet and confer
8 requirements imposed by Code of Civil Procedure § 430.41 before any demurrer may be filed with
9 the Court.
10 3. On February 21, 2023, my office sent a detailed meet and confer letter setting forth
11 the basis for a Demurrer to the third cause of action in Plaintiff’s Complaint. Attached to this
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 949-757-4500 ♦ FAX 949-757-4550
12 declaration as Exhibit A is a true and correct copy of the February 21, 2023 correspondence sent
ALISO VIEJO, CALIFORNIA 92656
6A LIBERTY STREET, SUITE 200
13 by my office.
Attorneys at Law
14 4. On March 6, 2023, Plaintiff’s counsel responded to our meet and confer letter.
15 5. Despite the above-articulated meet and confer efforts, the parties were unable to
16 reach an agreement resolving the issues raised in the meet and confer letter.
17 I declare under penalty of perjury under the laws of the State of California that the
18 foregoing is true and correct.
19 Executed on this 15th day of March, 2023, at Aliso Viejo, California.
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Briana J. Kutinsky
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DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT;
DECLARATION OF BRIANA J. KUTINSKY
EXHIBIT "A"
Catherine L. Deter
6A Liberty Street • Suite 200 • Aliso Viejo, CA • 92656 direct dial (949) 757-4514
tel 949-757-4500 • fax 949-757-4550 • wshblaw.com email cdeter@wshblaw.com
refer to 11656-0047
February 21, 2023
Majed Dakak
Ryan Davis
Kesselman Brantly Stockinger LLP
1230 Rosecrans Ave., Manhattan Beach, CA 90266
mdakak@kbslaw.com
rdavis@kbslaw.com
Re: Kimberly M. Jones v. Left Coast Inspections LLC, et al.
Our Client: Left Coast Inspections LLC
Dear Counsel,
Please be advised that Wood Smith Henning & Berman, LLP has been retained to
represent Left Coast Inspections, LLC ("Left Coast") with regards to the above-
referenced matter. This correspondence to serve as Left Coast's attempt to meet and
confer with Plaint
Preview
ELECTRONICALLY FILED Superior Court of California 1 Catherine L. Deter (State Bar No. 297680) County of Santa Barbara cdeter@wshblaw.com Darrel E. Parker, Executive Officer 2 Briana J. Kutinsky (State Bar No. 340723) 3/20/2023 1:45 PM bkutinsky@wshblaw.com By: Yuliana Razo , Deputy 3 WOOD, SMITH, HENNING & BERMAN LLP 6A Liberty Street, Suite 200 4 Aliso Viejo, California 92656 Phone: 949-757-4500 ♦ Fax: 949-757-4550 5 Attorneys for Defendant, LEFT COAST 6 INSPECTIONS, LLC 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SANTA BARBARA – ANACAPA DIVISION 10 11 KIMBERLY M. JONES, an individual Case No. 23CV00522 WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 949-757-4500 ♦ FAX 949-757-4550 12 Plaintiff, DEFENDANT’S NOTICE OF ALISO VIEJO, CALIFORNIA 92656 6A LIBERTY STREET, SUITE 200 DEMURRER AND DEMURRER TO 13 v. PLAINTIFF’S COMPLAINT; Attorneys at Law DECLARATION OF BRIANA J. 14 LEFT COAST INSPECTIONS, LLC, a KUTINSKY California Limited Liability Company, 15 WOOD ENVIRONMENTAL SERVICES, [Assigned for All Purposes to Judge Colleen K. Sterne, LLC, a California Limited Liability Company; Dept. SB 5] 16 JUDITH WOOD, an individual; AND does 1 - 15, Date: June 5, 2023 17 Time: 10:00 a.m. Defendants. Dept: 5 18 Action Filed: 2/7/2023 19 Trial Date: None Set 20 21 TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: 22 PLEASE TAKE NOTICE that on June 5, 2023, at 10:00 a.m., or as soon thereafter as 23 counsel may be heard in Department SB 5 of the above-entitled court. Defendant LEFT COAST 24 INSPECTIONS, LLC (hereinafter “Defendant”) will and hereby do demur to the Complaint filed 25 by Plaintiff, KIMBERLY M. JONES (hereinafter “Plaintiff”), on the following ground: 26 1. Plaintiff’s Negligent Infliction of Emotional Distress against Defendant does not 27 state facts sufficient to state a cause of action against Defendant. Code of Civil Procedure § 28 430.10(e). 27834734.1:11656-0047 DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; DECLARATION OF BRIANA J. KUTINSKY 1 Defendant complied with Code of Civil Procedure § 430.41. Counsel met and conferred 2 regarding the issue raised by this instant Demurrer. 3 This Demurrer is based on this Notice of Demurrer and Demurrer, the attached 4 Memorandum of Points and Authorities, the Attached Declaration of Briana J. Kutinsky, the 5 records and files in this action and any further evidence and argument that this Court will receive 6 at or before the hearing on this Demurrer. 7 DEMURRER 8 Cross-Defendants demur to the following Cause of Action within the Complaint pursuant 9 to California Code of Civil Procedure (“CCP”) § 430.10(e)as follows: 10 DEMURRER TO THE THIRD CAUSE OF ACTION FOR NEGLIGENT INFLICTION 11 WOOD, SMITH, HENNING & BERMAN LLP OF EMOTIONAL DISTRESS TELEPHONE 949-757-4500 ♦ FAX 949-757-4550 12 ALISO VIEJO, CALIFORNIA 92656 6A LIBERTY STREET, SUITE 200 1. Plaintiff’s Third Cause of Action for Negligent Infliction of Emotional Distress 13 Attorneys at Law against Defendant is subject to demurrer because the Complaint fails to allege facts sufficient to 14 constitute a cause of action for Negligent Infliction of Emotional Distress. 15 16 DATED: March 20, 2023 WOOD, SMITH, HENNING & BERMAN LLP 17 18 By: 19 CATHERINE L. DETER 20 BRIANA J. KUTINSKY Attorneys for Defendant, LEFT COAST 21 INSPECTIONS, LLC 22 23 24 25 26 27 28 27834734.1:11656-0047 -2- DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; DECLARATION OF BRIANA J. KUTINSKY 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Defendant, LEFT COAST INSPECTIONS, LLC (hereinafter “Defendant” or "LCI")) will 4 and hereby demurs to the Complaint filed by Plaintiff KIMBERLY M. JONES (hereinafter 5 “Plaintiff”). Plaintiff filed this instant action asserting: (1) Professional Negligence; (2) Breach of 6 Contract; and, (3) Negligent Infliction of Emotional Distress, arising out of the purchase of a 7 property located at 828 Ballard Canyon Road in Solvang, California (the “Property.”) With respect 8 to Defendant Left Coast Inspections, LLC, Defendant performed a general home inspection of the 9 Property before it was purchased, pursuant to a contract that specifically excluded inspecting for 10 mold. In fact, the contract stated that "CLIENT understands that INSPECTOR will NOT be 11 testing for mold. Plaintiff also named Wood Environmental Services ("WES') in her Complaint. WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 949-757-4500 ♦ FAX 949-757-4550 12 Per Plaintiff's Complaint, WES conducted an indoor mold assessment and prepared a Mold/ ALISO VIEJO, CALIFORNIA 92656 6A LIBERTY STREET, SUITE 200 13 Moisture Assessment Report (See, Complaint at p.2: 25:27.) Despite identifying WES as the party Attorneys at Law 14 that completed the mold assessment, Plaintiff confusingly alleges that Defendant LCI did not 15 disclose mold conducive conditions in its general home inspection report. 16 In connection with the alleged failure to discover mold at the Property, Plaintiff improperly 17 alleges a cause of action for Negligent Infliction of Emotional Distress, despite the fact that it is 18 well-settled in California law that claims for property damage do not give rise to emotional 19 distress damage. Plaintiff attempts to twist the facts of this simple property damage case into a 20 claim for emotional distress of her son, who is not even a plaintiff to the Complaint. The gravamen 21 of Plaintiff's Complaint is a professional negligence claim for the alleged failure of the home 22 inspector and mold inspector to discover mold at the Property. 23 As explained below, Plaintiff’s Third Cause of Action for Negligent Infliction of 24 Emotional Distress against Defendant is subject to demurrer because the Complaint fails to allege 25 facts sufficient to constitute a cause of action for Negligent Infliction of Emotional Distress 26 pursuant to Code of Civil Procedure (“CCP”) § 430.10(e). 27 / / / 28 / / / 27834734.1:11656-0047 -3- DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; DECLARATION OF BRIANA J. KUTINSKY 1 II. STANDARD ON DEMURRER 2 CCP § 430.50(a) provides that a demurrer to a complaint may be taken to the whole 3 complaint or to any causes of action stated therein. Specifically, a demurrer challenges defects 4 that appear on the "face of the Complaint," or from matters outside the complaint that are 5 judicially noticeable. Harboring Villas Homeowners Ass'n v. Sup. Ct. (1998) 63 Cal.App.4th 426, 6 429. The purpose of a demurrer is to test the legal sufficiency of factual allegations in a 7 complaint. CCP § 589(a). 8 For the purpose of testing the sufficiency of the cause of action, the demurrer admits the 9 truth of all material facts properly pleaded, i.e., all ultimate facts alleged, but not contentions, 10 deductions, or conclusions of fact or law. Serrano v. Priest (1987) 5 Cal.3d 584, 591. A demurrer 11 may lie because the complaint alleges either too little, or too much, or it can be used where the WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 949-757-4500 ♦ FAX 949-757-4550 12 complaint is incomplete, i.e., a plaintiff has failed to allege some "ultimate fact" required to state a ALISO VIEJO, CALIFORNIA 92656 6A LIBERTY STREET, SUITE 200 13 cause of action, or, it can be used where the plaintiff has included allegations that clearly disclose Attorneys at Law 14 some defense or bar to recovery. Crosstalk Productions, Inc. v. Jacobsen (1998) 65 Cal.App.4th 15 631, 635. Accordingly, Defendant has authority to bring the instant demurrer to challenge 16 Plaintiff’s third cause of action for negligent infliction of emotional distress. 17 III. PLAINTIFF’S THIRD CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF 18 EMOTIONAL DISTRESS FAILS TO STATE A CAUSE OF ACTION AND IS 19 DUPLICATIVE OF PLAINTIFF’S FIRST CAUSE OF ACTION FOR 20 PROFESSIONAL NEGLIGENCE. 21 Under California law, no independent tort of NIED exists. (Potter v. Firestone Tire & 22 Rubber Co. (1993) 6 Cal.4th 965, 984; McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509; Gu 23 v. BMW of North America (2005) 132 Cal.App.4th 195, 204. In Lawson v. Management Activities, 24 Inc. (1999) 69 Cal.App.4th 652, 656, the Court emphasized that there is "danger in treating 25 'negligent infliction of emotional distress' as an independent tort or, at least, an independent tort 26 doctrine, with a life of its own." The Court continued, "[i]ndeed, civilized life would not be possible 27 if there were such a tort. To borrow a phrase from Blake, if tort damages were available for anything 28 which could foreseeably cause our fellow human beings’ emotional distress, “then ‘who can stand?' 27834734.1:11656-0047 -4- DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; DECLARATION OF BRIANA J. KUTINSKY 1 No one, saint or sinner, can go through life without 'negligently' inflicting emotional distress on 2 others." Id. 3 Accordingly, "there is no independent tort of negligent infliction of emotional 4 distress…[t]he tort is negligence…" Potter, supra, 6 Cal.4th at 984. "The traditional elements of 5 duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a 6 question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of 7 policy considerations for and against imposition of liability [Citations]." McMahon, supra, 176 8 Cal.App.4th at 1509. Only two theories of Negligent Infliction of Emotional Distress are recognized 9 in California, the "bystander theory" and "direct victim" theory. Gu, supra, 132 Cal.App.4th at 204. 10 "Under the bystander theory, the plaintiff seeks to recover damages for serious emotional 11 distress suffered as a result of an injury to a close family member. Recovery is limited as a matter WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 949-757-4500 ♦ FAX 949-757-4550 12 of public policy to those cases where the plaintiff was present at the scene of the injury-producing ALISO VIEJO, CALIFORNIA 92656 6A LIBERTY STREET, SUITE 200 13 event and was aware that the event was causing injury to the victim." Id. citing Burgess v. Superior Attorneys at Law 14 Court (1992) 2 Cal.4th 10064, 1071. Here, Plaintiff states in her background allegations, and not 15 within her claim for negligent infliction of emotional distress, that her son had a severe medical 16 reaction upon stepping into the Property in Spring 2022 after purchasing the Property. (See, 17 Complain at pg. 6, line 49.) However, Plaintiff did not state that she was aware that the event - here, 18 mold intrusion - was causing the injury. In fact, Plaintiff states that she “was forced to stop her 19 move-in plans” and “the contractor discovered that was mold was present.” Clearly, Plaintiff was 20 not aware that mold was causing injury to the victim, unless Plaintiff already knew there was mold 21 infestation before purchasing the property. Also see, Ra v. Superior Court (2007) 154 Cal.App.4th 22 142. Thus, Plaintiff does not fall under the bystander category of persons to whom a duty to avoid 23 causing emotional distress is owed. 24 The second theory is a "direct victim" situation, where "the emotional distress damages result 25 from a duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a 26 matter of law, or that arises out of a relationship between the two." McMahon, supra, 176 27 Cal.App.4th at 1510. Negligent infliction of emotional distress suffered by a direct victim is not an 28 independent tort but is simply an aspect of the tort of negligence. Burgess v. Superior Court (1992) 27834734.1:11656-0047 -5- DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; DECLARATION OF BRIANA J. KUTINSKY 1 2 Cal. 4th 1064, 1072. The direct victim theory of liability is easily dispensed with here as Plaintiff 2 has already alleged a negligence cause of action. 3 Further, Plaintiff's Complaint is devoid of specific allegations regarding the nature and 4 extent of the severe emotional distress she allegedly suffered. Plaintiff only makes general and 5 conclusory allegations that he has suffered, and continues to suffer, emotional distress. (See 6 Plaintiff’s Complaint, pg. 6, line 49.) Plaintiff makes uncertain, ambiguous, and unintelligible 7 allegations showing no substantial or enduring emotional distress. Such ambiguous and boilerplate 8 allegations are insufficient to meet the high standards of extreme and severe distress required to 9 allege a Negligent Infliction of Emotional Distress claim. 10 The gravamen of the allegations makes it clear Plaintiff named LCI for alleged wrongdoing 11 in the rendering of professional services in his capacity of a home inspector for Plaintiff. Therefore, WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 949-757-4500 ♦ FAX 949-757-4550 12 the third cause of action for negligent infliction of emotional distress is duplicative of the first cause ALISO VIEJO, CALIFORNIA 92656 6A LIBERTY STREET, SUITE 200 13 of action for professional negligence because it adds nothing new by way of fact or theory and Attorneys at Law 14 subject to demurrer. Both causes of action are asserted on behalf of the Plaintiff and are based on 15 the same facts. 16 Plaintiff has thus failed to state sufficient facts constituting her Negligent Infliction of 17 Emotional Distress claim against Defendant, and, accordingly, Defendant’s demurrer as to 18 Plaintiff’s third cause of action should be sustained. 19 IV. EMOTIONAL DISTRESS DAMAGES ARE NOT RECOVERABLE IN 20 PROPERTY DAMAGE CLAIMS 21 It is well-settled in California that emotional distress damages are not recoverable for 22 claims arising from property damages. Erlich v. Menezes (1999) 21 Cal.4th 543, 547. In Erlich, 23 plaintiff homeowners filed suit against contractor a breach of contract, fraud, negligent 24 misrepresentation and intentional infliction of emotion distress. The homeowners in Erlich 25 retained a contractor to construct their 'dreamhouse' on an ocean-view. When they moved in, rain 26 came in and the house leaked from "every conceivable location" and the home was structurally 27 unsound. Id. at 548. Although plaintiffs in Erlich alleged tort theories in addition to contractual 28 theories, the Court noted that the plaintiff homeowners could have avoided the threatened injury 27834734.1:11656-0047 -6- DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; DECLARATION OF BRIANA J. KUTINSKY 1 by moving out of the house until necessary repairs had been completed. If plaintiff homeowners 2 moved out, the relocation expenses would have been part of their damages. Id. at 555. 3 Like the plaintiff homeowners in Erlich, Plaintiff here alleges that the house was not 4 salvageable, apart from the roof, and that the slope of the pool was not to code, causing water to 5 drain to the home. Here, Plaintiff alleges she immediately halted her move-in plans (Complaint, 6 p.3:8:9) and thus apparently did not move into the home. Thus, the relocation expenses, if 7 anything, should be part of her damages – not emotional distress damages. 8 “No California case has allowed recovery for emotional distress arising solely out of 9 property damage” (Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 1012, 200 Cal.Rptr. 10 746); moreover, a preexisting contractual relationship, without more, will not support a recovery 11 for mental suffering *555 where the defendant's tortious conduct has resulted only in economic WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 949-757-4500 ♦ FAX 949-757-4550 12 injury to the plaintiff. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1040, fn. 1, 13 ALISO VIEJO, CALIFORNIA 92656 6A LIBERTY STREET, SUITE 200 13 Cal.Rptr.2d 133; Mercado v. Leong (1996) 43 Cal.App.4th 317, 324, 50 Cal.Rptr.2d 569. Attorneys at Law 14 V. LEAVE TO AMEND SHOULD BE PROPERLY DENIED 15 The law regarding leave to amend upon Demurrer is well settled. "If there is a reasonable 16 possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to 17 sustain a demurrer without leave to amend. The burden is on the Plaintiff, however, to 18 demonstrate the manner in which the complaint might be amended." Assn. Community 19 Organizations for Reform Now v. State of California (1995) 41 Cal.App.4th 298 quoting Hendy v. 20 Losse (1991) 54 Cal.3d 723. Hence, the corollary is also true, that where the complaint shows 21 upon its face that there is no reasonable possibility to cure the defect, the Court should deny leave 22 to amend. 23 Here, no specific facts pled in the Complaint allege the cause of action described herein. 24 The Complaint is filled with boilerplate legal conclusions rather than facts. Plaintiff failed to meet 25 her burden for pleading the causes of action described herein for the reasons set forth herein. 26 Accordingly, this Demurrer should be sustained without leave to amend. There is no reasonable 27 possibility for Plaintiff to cure these defects. As such, leave to amend is properly denied. 28 / / / 27834734.1:11656-0047 -7- DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; DECLARATION OF BRIANA J. KUTINSKY 1 VI. CONCLUSION 2 For the foregoing reasons, this Court should sustain this demurrer and dismiss the third 3 cause of action for negligent infliction of emotional distress discussed herein without leave to 4 amend. 5 6 DATED: March 20, 2023 WOOD, SMITH, HENNING & BERMAN LLP 7 8 By: 9 CATHERINE L. DETER BRIANA J. KUTINSKY 10 Attorneys for Defendant, LEFT COAST INSPECTIONS, LLC 11 WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 949-757-4500 ♦ FAX 949-757-4550 12 ALISO VIEJO, CALIFORNIA 92656 6A LIBERTY STREET, SUITE 200 13 Attorneys at Law 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27834734.1:11656-0047 -8- DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; DECLARATION OF BRIANA J. KUTINSKY 1 DECLARATION OF BRIANA J. KUTINSKY 2 I, Briana J. Kutinsky, declare as follows: 3 1. I am an attorney at law duly admitted to practice before the courts of the State of 4 California. I am an associate with WOOD, SMITH, HENNING & BERMAN LLP, attorneys of 5 record for Defendant, LEFT COAST INSPECTIONS, LLC. I know the following facts to be true 6 of my own knowledge, and if called to testify, I could competently do so. 7 2. I make this declaration regarding my compliance with the meet and confer 8 requirements imposed by Code of Civil Procedure § 430.41 before any demurrer may be filed with 9 the Court. 10 3. On February 21, 2023, my office sent a detailed meet and confer letter setting forth 11 the basis for a Demurrer to the third cause of action in Plaintiff’s Complaint. Attached to this WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 949-757-4500 ♦ FAX 949-757-4550 12 declaration as Exhibit A is a true and correct copy of the February 21, 2023 correspondence sent ALISO VIEJO, CALIFORNIA 92656 6A LIBERTY STREET, SUITE 200 13 by my office. Attorneys at Law 14 4. On March 6, 2023, Plaintiff’s counsel responded to our meet and confer letter. 15 5. Despite the above-articulated meet and confer efforts, the parties were unable to 16 reach an agreement resolving the issues raised in the meet and confer letter. 17 I declare under penalty of perjury under the laws of the State of California that the 18 foregoing is true and correct. 19 Executed on this 15th day of March, 2023, at Aliso Viejo, California. 20 21 Briana J. Kutinsky 22 23 24 25 26 27 28 27834734.1:11656-0047 -9- DEFENDANT’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; DECLARATION OF BRIANA J. KUTINSKY EXHIBIT "A" Catherine L. Deter 6A Liberty Street • Suite 200 • Aliso Viejo, CA • 92656 direct dial (949) 757-4514 tel 949-757-4500 • fax 949-757-4550 • wshblaw.com email cdeter@wshblaw.com refer to 11656-0047 February 21, 2023 Majed Dakak Ryan Davis Kesselman Brantly Stockinger LLP 1230 Rosecrans Ave., Manhattan Beach, CA 90266 mdakak@kbslaw.com rdavis@kbslaw.com Re: Kimberly M. Jones v. Left Coast Inspections LLC, et al. Our Client: Left Coast Inspections LLC Dear Counsel, Please be advised that Wood Smith Henning & Berman, LLP has been retained to represent Left Coast Inspections, LLC ("Left Coast") with regards to the above- referenced matter. This correspondence to serve as Left Coast's attempt to meet and confer with Plaint