Preview
ELECTRONICALLY FILED
Superior Court of California
1 HAIG A. HARRIS, JR., SBN 40494 County of Santa Barbara
NEILS. TURNER, SBN 75152 Darrel E. Parker, Executive Officer
2 SCAMPINI, MORTARA & HARRIS 11/1/2022 4:50 PM
235 Montgomery Street, Suite 715 By: Narzralli Baksh , Deputy
3 San Francisco, California 94104
Tel: (415) 421-8556
4 Fax: (415) 296-9322
E-Mail: hharris smhlaw.net
5 ntumer smhlaw.net
6
7 Attorneys for Defendant PETER SINGER
8
9 SUPERIOR COURT OF CALIFORNIA - COUNTY OF SANTA BARBARA
10 CITY OF SANTA BARBARA
ANACAP A DIVISION
UNLIMITED JURISDICTION
13
) CASE NO: 22CV01792
14 KARENDAWN )
)
15 Plaintiff, )
)
16 vs. )
)
17 )
PETER SINGER )
18 )
Defendant. )
19 )
20
21
DEFENDANT'S POINTS AND AUTHORITIES
22 IN SUPPORT OF DEMURRER
23 December 16, 2022
Date:
24 Time: 10:00 AM
Dept.: 4
25 Judge: Hon. Donna Geck
26 Date Action Filed: May 10, 2022
Trial Date: None Set
27
28
1 TABLE OF CONTENTS
2
3 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4
SUMMARY OF THE COMPLAINT'S PROPERLY
5 PLEADED FACTS ............................................................. 5
6
DISCUSSION ................................................................. 8
7
8
A. Dawn's Complaint is barred by California's
9 public policy against litigation over affairs of the heart. . . . . . . . . . . . . . . . . . . . . . . . 8
10
B. Insults, made in private between two parties, arc not,
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it: .... ~ 11 as a matter of law, outrageous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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18
STATUTES
19
Civil Code section 43.5 .................................................... 4, 8, 9, I 1
20
21
TREATISES
22
23
Restatement Third of Torts, section 46, comment d, p. 138........................... 12, 14
24
25
26
27
28
3
1 INTRODUCTION
2
3 Plaintiff, Karen Dawn ("Dawn"}, has filed this action against defendant Peter Singer
4 ("Singer"), seeking Four Million Dollars in damages: Two Million Dollars in "Compensatory
5 Damages," One Million in "General Damages," all for her alleged severe emotional distress, and
6 One Million Dollars in "Punitive Damages" to punish Singer for his alleged conduct. (Complaint
7 pages 21 and 22.)
8 The Complaint alleges a single Cause of Action for "Intentional Infliction of Emotional
9 Distress."
10 Such a cause of action will not lie, as a matter of law, for the following three reasons:
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ii: .,... ~ 11 (1) The gravement of Dawn's Complaint is that Singer seduced and then abandoned her.
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17 these ... utterances [that defendant was spying on him] the complaint fails to allege that these
18 statements were ever published or made known to any third person ... Thus, an action for intentional
19 infliction of emotional distress would not lie for the mere utterance of these statements".] Here,
20 Singer's alleged comment that Dawn was "crazy" and, when relating to the fact that she flashed
21 herself to him on a train, he used the word "cunt," were admittedly made during a "private chat."
22 (Complaint 1,r 100-108); and (3) The intentional termination of a romantic relationship is not the
23 type of "extreme and outrageous" conduct that is required to support a cause of action for
24 intentional infliction of emotional distress. ( Unterberger v. Red Bull North America, Inc. (2008}
25 162 Cal. App. 4 th 414,423 ("[T]he conduct that plaintiffs allege caused them distress, i.e., the
26 termination of a business relationship, is, as [a] matter of law, not the type of 'outrageous' conduct
27 that is required to support a cause of action for intentional infliction of emotional distress."]}
28 For all the foregoing reasons, Dawn has failed to allege facts sufficient to constitute a cause of
4
I action for Intentional Infliction of Emotion Distress and this Demurrer must be sustained.
2
3 SUMMARY OF THE COMPLAINT'S PROPERLY PLEADED FACTS
4
5 Dawn met Singer at an animal rights conference in 2002 (ii 14.) Dawn, at that time, "ran an
6 animal media e-mail alert list." {,r 16.) Before this first meeting, Dawn expressed anxiety to Singer
7 about meeting him because of his status as the Father of the modem animal rights movement and
8 "because he was her hero." (ii 15 and 17.) Dawn was accompanied at the conference, along with a
9 lunch meeting with Singer, by Dawn's "partner of three years." (i! 18.) Dawn communicated bye~
10 mail to Singer that she "adored her partner" and he provided her with "financial and emotional
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support." (if 19.) After the conference, Singer called Dawn daily at her home in California for a
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12 period of weeks. Dawn was flattered by Singer's attention. (,r 20-22.) Singer knew that Dawn's
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17 Singer later informed her that he had no such arrangement with his wife. (,r 26.) Dawn also
18 learned, during the affair, that she was one of three women who received daily attention from
19 Singer and with whom he was sexually involved at that time. (ii 27.) Dawn also learned that she
20 was one of thirty women within the animal rights movement with whom Singer had been involved.
21 (,r 28.) In late 2002, Dawn called off the affair but expressed a wish to stay friends. (ii 30.) Dawn
22 continued to express to Singer that she had "Fallen deeply in love" with him. (1 31.) In September
23 2002, Singer asked Dawn for her thoughts on possible chapter authors for an anthology he was
24 editing titled, "In Defense of Animals: the Second Wave," and sent her a preliminary list he had
25 drawn up. (133.) Dawn expressed surprise to one of Singer's proposed co-authors on one chapter
26 because she believed that another person, whom Singer "had parted on bad terms with," was more
27 qualified than the one he proposed, for which he had expressed, on "various occasions," that he had
28 sexual interest in. Ultimately, Singer selected the one he had sexual interest in over the one he had
5
1 broken up with. Singer did give Dawn a co-author credit on one chapter while Dawn was still on
2 "loving" tenns with him. Dawn believes that all, or a majority, of Singer's female co-authors were
3 women with whom Singer has been sexually involved, or to whom he had made clear his sexual
4 interest. In May 2003, Singer asked Dawn to "work with him" on a piece for the Los Angeles
5 Times, and that she would receive a co-writing credit. (i[ 33-51.) While Singer and Dawn worked
6 together on the Los Angeles Times op-ed article, they again "became sexually involved" and Dawn
7 agreed to be part of Singer's "harem as long as she was his favorite, the lead in his orchestra, as he
8 called it." In 2003, Singer told her that while he still wished to be sexually involved with her, that
9 she had been replaced "as the main recipient of his affection" by a women who was thirty while
10 Dawn was forty. Singer knows that Dawn's mother committed suicide and that her paternal
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o~ciio:g state too close to craziness, and be laughing about it together." Dawn states that she "occasionally
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17 became infested and rendered her ill for weeks. Dawn stated that unable to bear, alone, all of the
18 pain she expressed to Singer, she "shared news of the long-tenn affair with her partner, now a
19 partner of four years." As a result, the relationship with her partner "was strained beyond repair";
20 plans of marriage "were put on hold"; instead of buying for her the four million dollar home they
21 were renting, he bought the home in his name alone; and the relationship with her partner
22 "eventually dissolved." (ii 70-82.) Dawn and Singer co-authored numerous op-eds and book
23 chapters during their relationship. Dawn alleges that she "did the bulk of the work." However,
24 Singer's name appeared first on the byline. Dawn was "uncomfortable with the byline
25 arrangement." In 2016, Dawn states tha~ despite her doing most of the work, Singer was able to
26 persuade her that he would take "untoward credit" for the work because the article would be "more
27 widely read and doing more good." Dawn believes that this was damaging to her self-esteem and
28 her professional standing. (iJ 83-91.) In 2016, Singer agreed to be on the Board of Dawn's newly
6
formed nonprofit, Dawn Watch. The understanding was that his very presence on it would be
2 helpful with regard to prestige and funding. On December 15, 2018, Singer arranged a multiple-
3 hour layover in Los Angeles in order to attend a fund raising dinner for DawnWatch. "During a
4 private chat at that dinner," Dawn shared with Singer that she was doing well, to which Singer
5 replied that Dawn had always had strong self-esteem. In response, "Dawn finally told Singer that
6 her period of hospitalization had been for a facelift and resulting skin infection, which Dawn had
7 undergone after her self-confidence was shattered when Singer had replaced her as his main love
8 interest with a 30 year old woman. Feeling unjustly blamed for Dawn's pain, Singer attempted to
9 put the blame for their relationship on Dawn, reminding her of a time she had flashed herself to him
10 on a train, as she attempted to reignite his affection. He used the word "cunt" as he reminded her of
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ii: ... :! 11 the event. 1 Singer left the dinner, with Dawn asking that they hug goodbye for appearances sake.
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17 had been viewing the silence between them. A copy of that email is attached as Exhibit E to the
18 Complaint. Dawn was, at that time, living in an RV in Santa Barbara. Singer's response to that e-
19 mail, which is part of Exhibit E to the Complaint, stated the following with regard to the December
20 15, 2018 fund raising dinner: "You ask me to break my journey to Australia to speak at a fund-
21 raising event for DW, and when I am there, you harangue and abuse me in front of the few wealthy
22 supporters - or was there only one wealthy supporter? - who actually came to the event. I go back
23 to Australia, and over the next few days, check my inbox for some kind of apology. Nothing,
24 weeks, months, go by.. .It's true that I used to think your work was valuable. That's why I agreed to
25 be a member of your board, and donated some money to you. I still think you have the talent to do
26 valuable work for the movement, but I no longer think you have the consistency or perseverance
27
28 Defendant apologizes for having to use the very distasteful word noted above in this demurrer, but
because the word forms an important part of Plaintiff's Complaint, he had no choice.
7
I required to do enough of it, so I cannot, in good conscience, support you or ask anyone to support
2 you. I hereby resign my position as a member of the Board ofDawnwatch. [f.l Want to prove me
3 wrong? OK, for the rest of 2020, produce a regular DW email every week, on the same day of the
4 week, summarizing what is happening about animals in the media, plus a supplementary special
5 alert whenever there is a big breaking story that you want people to respond to ... When you've done
6 that, you can ask me again for my support." (,r I00-124.)
7
8 DISCUSSION
9
10 Dawn reveals in her Complaint that she met Singer at an animal rights conference in 2002 and
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17 publications if you agree to have a sexual relationship with me.
18 Dawn doesn't allege any such bargain because no such bargain was ever made. It is clear that
19 Dawn willingly involved herself in a sexual affair with Singer because she fell "deeply in love"
20 with him. Nor does she allege any unwelcome sexual advances by Singer.
21 This suit is nothing more than a later-day incarnation of the seduction of a person over the age
22 of consent and is therefore barred under California's anti-heart-balm statutes.
23 In Atienza v. Taub, MD (1987) 194 Cal. App. 3d 388, a physician was sued by one of his
24 patients for medical malpractice and intentional infliction of emotional distress. The trial court
25 sustained the defendant's demurrer to the complaint without leave to amend. The Court of Appeal
26 affirmed the judgment of dismissal, stating: "Essentially, appellant complains that she had an
27 unhappy affair with a man who happened to be her doctor. This is plainly insufficient to make out
28 a cause of action for professional negligence under any of the theories presented. Accordingly, we
affirm the dismissal of appellant's action with respect to the cause of action for professional
2 negligence. [fl Similarly, we affirm dismissal of appellant's second cause of action for intentional
3 infliction of emotional distress. The core of the second cause of action is an allegation of
4 seduction. Indeed, in paragraph 5 of the complaint, incorporated by reference into the second cause
5 of action, appellant alleges that respondent 'seduced [her] into having sexual relations and an affair
6 with her... ' Such an action for seduction has been abolished by Civil Code section 43.5, which, in
7 part, states: 'No cause of action arises for: [,rJ ... [fl (c) Seduction of a person over the age oflegal
8 consent.' (Civ. Code,§ 43.5, subd. (c).)" (Id, pp. 393-394.)
9 Here, as in Atienza, Dawn complains of an unhappy affair with a man who happened to be a
10 prominent professor at Princeton. The sexual relationship, according to Dawn, was a result of his
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17 not lie for the mere utterance of these statements." (Id p. 291-292.)
18 Here, as in Scott, Singer's alleged statements to Dawn, during a private argument over their
19 relationship, that she was "crazy" and used the word "cunt" were never "published," i.e., stated in
20 the presence of a third person.
21 Such private insults between fonner lovers are not, as a matter of law, sufficiently outrageous
22 to support a cause of action for intentional infliction of emotion distress.
23 As stated by the Supreme Court in Agarwal v. Johnson ( 1979) 25 Cal. 3d 932: "The modem
24 rule is that there is liability for conduct exceeding all bounds usually tolerated by a decent
25 society, of a nature which is especially calculated to cause, and does cause, mental distress. (See
26 Prosser, Law of Torts (4th ed. 1971) p. 54). Ordinarily mere insulting language, without more,
27 does not constitute outrageous conduct. The Restatement view is that liability does not extend to
28 mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities ... There is no
12
1 occasion for the law to intervene... where some one's feelings are hurt.' (Rest. 2d Torts, § 46, d)."
2 (Id. p. 946) (Emphasis added).
3 In summary, a private altercation involving "insults" between former lovers, does not, as
4 matter of law, constitute "outrageous conduct" to support a cause of action for intentional infliction
5 of emotional distress.
6
7 C. The intentional termination of a romantic relationship is not the type of "outrageous"
8 conduct that is required to support a cause of action for intentional infliction of emotional
9 distress.
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17 distress. The Unterbergers claimed that RBNA's 'change in credit terms to bring extreme financial
18 pressure on plaintiffs to qui~ and then refusing to ship the paid for product anyway, meaning we
19 obviously would not be able to service our customers even though we arranged costly emergency
20 financing, would necessarily and naturally result in emotional distress to the intended victims ... '
21 However, a cause of action for intentional infliction of emotional distress arises when a defendant
22 'intentionally or recklessly causes 'severe emotional distress' to another by 'extreme and
23 outrageous conduct.' (5 Witkin, Summary of Cal. Law, supra, § 450, p. 668, quoting Rest. 2d,
24 Torts§ 46). "To be 'outrageous,' conduct 'must be so extreme as to exceed all bounds of that
25 usually tolerated in a civilized community' (Fowler v. Varian Associates, Inc. (1987) 196 Cal. App.
26 3d 34, 44, 241 Cal. Rptr. 539), and the court is to determine, in the first instance, whether
27 conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.
28 (Ibid). On this record, we find it impossible to disagree with the trial court's conclusion,
13
1 namely: 'fTJhe conduct that plaintiffs allege caused them distress, i.e., the termination of a
2 business relationship, is, as [a] matter of law, not the type of 'outrageous' conduct that is
3 required to support a cause of action for intentional infliction of emotional distress."'
4 (Emphasis added).
5 Restatement Third of Torts, Section 46, comment d, states, with regard to "extreme and
6 outrageous conduct," the following: "To be held liable under this Section, an actor must do more
7 than intentionally or recklessly cause emotional harm. The actor must act in a way that is extreme
8 and outrageous. [411] Section 46 of the Second Restatement, on which this Section is based,
9 employed the 'extreme and outrageous conduct' standard. That standard has been widely adopted,
10 has been employed satisfactorily, and has become familiar. For these reasons, it is retained in this
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17 outrageous and that the conduct be sufficiently unusual to be extreme. [fl Under§ l(b), an
18 actor is charged with intending a consequence if the actor 'acts knowing that the consequence is
19 substantially certain to result.' Under this definition of intent, liability could extend to a wide
20 variety of conduct without regard to the legitimacy or social utility of the conduct. For example, a
21 person who breaks a marriage engagement may be substantially certain that the rejection
22 will cause severe emotional harm, but that conduct is not a proper basis for liability.
23 Important policies support protecting the freedom to end an engagement. Indeed, the larger
24 point is that unless liability under this Section is appropriately limited, freedom and socially
25 productive conduct could be impeded. Individuals participating in society must be prepared to
26 suffer emotional trauma - even as serious as that resulting from a broken engagement - without
27 legal recourse, in order to encourage freedom and, specifically, in the case of engagement, to avoid
28 marriages that are likely to fail. The difficulty with this tort is that the 'substantially certain'
14
element of intent does not balance the social utility of the actor's conduct against the risk of
2 causing emotional harm." (pp. 138-139.) (Emphasis added)
3 Here, the tennination of a romantic relationship, is, as a matter oflaw, not the type of
4 "extreme and outrageous" conduct that is required to support a cause of action for intentional
5 infliction of emotional distress.
6
7 CONCLUSION
8
9 Singer's Demurrer to Dawn's Complaint must be sustained without leave to amend because:
10 (1) California, as a matter of public policy, has barred litigation of affairs of the heart; (2} Insults,
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II. 14 sexual relationship is not the type of "extreme and outrageous" conduct so as to satisfy the first
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by: ---:-:,...,-:--;:'--,---:~--:-;E."\::-,:,.....-;=---1':r-
21
NEIL S.
22 Attorneys for Defendant
PETER SINGER
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l PROOF OF SERVICE
2 I am a citizen of the United States and an employee in the City and County of San Francisco,
State of California. I am over the age of eighteen and not a party to the within action. My business
3
address is that of Scampini, Mortara & Harris, 235 Montgomery Street, Suite 715, San Francisco,
4 California 94104.
5 On November 1, 2022, I caused to be served on all interested parties the following:
6
DEFENDANT'S POINTS AND AUTHORITIES
7 IN SUPPORT OF DEMURRER
8 By: L (Electronic Mail) I caused said documents(s) to be transmitted to the e-mail
address(es) of the below addressee(s):
9
(Facsimile) I sent a true copy thereof via telephone facsimile transmission to the
10 following number(s).
11 (Federal Express) I sent a true copy thereof enclosed in a sealed envelope to be
delivered to Federal Express for overnight courier service to the office(s) of the
12 addressee(s).
13 ~ (Mail) I placed a true copy thereof enclosed in a sealed envelope with postage thereon
fully prepaid. I deposited said envelope in the United States Mail in the City and
14 County of San Francisco, California.
15 (Hand-Delivery) I placed a true copy thereof enclosed in a sealed envelope. caused
such envelope to be delivered to the offices of the addressee.
16
addressed to:
17
Karen Dawn
18 409 Camino de) Remedio, Unit G
Santa Barbara, CA 93110
19 E-mail: news@dawnwatch.com
20
I am familiar with the mail collection practices of the law offices of Scampini, Mortara &
21 Harris, and pursuant to those practices, the envelope would be deposited with the United States
22 Postal Service the same day.
I declare under penalty of perjury that the foregoing is true and correct. Executed on
23
November 1, 2022 at San Francisco, California.
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ELECTRONICALLY FILED Superior Court of California 1 HAIG A. HARRIS, JR., SBN 40494 County of Santa Barbara NEILS. TURNER, SBN 75152 Darrel E. Parker, Executive Officer 2 SCAMPINI, MORTARA & HARRIS 11/1/2022 4:50 PM 235 Montgomery Street, Suite 715 By: Narzralli Baksh , Deputy 3 San Francisco, California 94104 Tel: (415) 421-8556 4 Fax: (415) 296-9322 E-Mail: hharris smhlaw.net 5 ntumer smhlaw.net 6 7 Attorneys for Defendant PETER SINGER 8 9 SUPERIOR COURT OF CALIFORNIA - COUNTY OF SANTA BARBARA 10 CITY OF SANTA BARBARA ANACAP A DIVISION UNLIMITED JURISDICTION 13 ) CASE NO: 22CV01792 14 KARENDAWN ) ) 15 Plaintiff, ) ) 16 vs. ) ) 17 ) PETER SINGER ) 18 ) Defendant. ) 19 ) 20 21 DEFENDANT'S POINTS AND AUTHORITIES 22 IN SUPPORT OF DEMURRER 23 December 16, 2022 Date: 24 Time: 10:00 AM Dept.: 4 25 Judge: Hon. Donna Geck 26 Date Action Filed: May 10, 2022 Trial Date: None Set 27 28 1 TABLE OF CONTENTS 2 3 INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 4 SUMMARY OF THE COMPLAINT'S PROPERLY 5 PLEADED FACTS ............................................................. 5 6 DISCUSSION ................................................................. 8 7 8 A. Dawn's Complaint is barred by California's 9 public policy against litigation over affairs of the heart. . . . . . . . . . . . . . . . . . . . . . . . 8 10 B. Insults, made in private between two parties, arc not, UJ in it: .... ~ 11 as a matter of law, outrageous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 0:: ,_ - 8in ~:e-Ou- E!!:; - c,z 15 z-~ - C: Q. 0 II. :I (I) N 17 18 STATUTES 19 Civil Code section 43.5 .................................................... 4, 8, 9, I 1 20 21 TREATISES 22 23 Restatement Third of Torts, section 46, comment d, p. 138........................... 12, 14 24 25 26 27 28 3 1 INTRODUCTION 2 3 Plaintiff, Karen Dawn ("Dawn"}, has filed this action against defendant Peter Singer 4 ("Singer"), seeking Four Million Dollars in damages: Two Million Dollars in "Compensatory 5 Damages," One Million in "General Damages," all for her alleged severe emotional distress, and 6 One Million Dollars in "Punitive Damages" to punish Singer for his alleged conduct. (Complaint 7 pages 21 and 22.) 8 The Complaint alleges a single Cause of Action for "Intentional Infliction of Emotional 9 Distress." 10 Such a cause of action will not lie, as a matter of law, for the following three reasons: C1J 10 ii: .,... ~ 11 (1) The gravement of Dawn's Complaint is that Singer seduced and then abandoned her. a:: r-,. .- <( !!! ;g :c ·5 <12 However, while Singer's conduct may have caused her emotional distress, California, as a matter of en- u.olS.f o~mo1g 1/J GJ LI. 13 public policy, has barred litigation of affairs of the heart. (Civ. Code §43.5 - "No cause of action w <( ~:::i'I' ~ ... cn~N u. a:: ~o• 14 arises for ... (c) seduction of a person over the age of legal consent"); (2) Insults, made in private oo GJutn !~ls~i - cnz 15 between two parties, do not, as a matter of law, constitute extreme and outrageous conduct. (Scott z--~ -c ll. 0 LI. ::i!l~z v. McDonnell Douglas Corporation (1974) 37 Cal. App. 3d 277, 291-292 ["However, as [to] 1/J CIJN 17 these ... utterances [that defendant was spying on him] the complaint fails to allege that these 18 statements were ever published or made known to any third person ... Thus, an action for intentional 19 infliction of emotional distress would not lie for the mere utterance of these statements".] Here, 20 Singer's alleged comment that Dawn was "crazy" and, when relating to the fact that she flashed 21 herself to him on a train, he used the word "cunt," were admittedly made during a "private chat." 22 (Complaint 1,r 100-108); and (3) The intentional termination of a romantic relationship is not the 23 type of "extreme and outrageous" conduct that is required to support a cause of action for 24 intentional infliction of emotional distress. ( Unterberger v. Red Bull North America, Inc. (2008} 25 162 Cal. App. 4 th 414,423 ("[T]he conduct that plaintiffs allege caused them distress, i.e., the 26 termination of a business relationship, is, as [a] matter of law, not the type of 'outrageous' conduct 27 that is required to support a cause of action for intentional infliction of emotional distress."]} 28 For all the foregoing reasons, Dawn has failed to allege facts sufficient to constitute a cause of 4 I action for Intentional Infliction of Emotion Distress and this Demurrer must be sustained. 2 3 SUMMARY OF THE COMPLAINT'S PROPERLY PLEADED FACTS 4 5 Dawn met Singer at an animal rights conference in 2002 (ii 14.) Dawn, at that time, "ran an 6 animal media e-mail alert list." {,r 16.) Before this first meeting, Dawn expressed anxiety to Singer 7 about meeting him because of his status as the Father of the modem animal rights movement and 8 "because he was her hero." (ii 15 and 17.) Dawn was accompanied at the conference, along with a 9 lunch meeting with Singer, by Dawn's "partner of three years." (i! 18.) Dawn communicated bye~ 10 mail to Singer that she "adored her partner" and he provided her with "financial and emotional fl) support." (if 19.) After the conference, Singer called Dawn daily at her home in California for a IC) &;..-~ 11 0:: r-- ... < Q). - :J:·5,c OI oil Cl) z 12 period of weeks. Dawn was flattered by Singer's attention. (,r 20-22.) Singer knew that Dawn's II. • a: O~qjo:g en w wu.; ... :::J 13 partner was in the midst of a divorce in Texas, and often away, which allowed Dawn to "welcome U~u,<..- Ii: UN u. a: ~o• 14 the daily phone conversations" and, in one of those calls, Singer told Dawn "that he had sexual o ~ i EGJuin en ... o6~ :5 - - e>z z-~ 15 interest in her." (,r 23-24.) When Dawn expressed surprise, Singer said that he and his wife had a - c D. 0 II. :E :E z "Don't ask, don't tell" arrangement. (ii 25.) Dawn then entered into an "affair" with Singer, and < Ll) < 16 0 M Cl> fl) N 17 Singer later informed her that he had no such arrangement with his wife. (,r 26.) Dawn also 18 learned, during the affair, that she was one of three women who received daily attention from 19 Singer and with whom he was sexually involved at that time. (ii 27.) Dawn also learned that she 20 was one of thirty women within the animal rights movement with whom Singer had been involved. 21 (,r 28.) In late 2002, Dawn called off the affair but expressed a wish to stay friends. (ii 30.) Dawn 22 continued to express to Singer that she had "Fallen deeply in love" with him. (1 31.) In September 23 2002, Singer asked Dawn for her thoughts on possible chapter authors for an anthology he was 24 editing titled, "In Defense of Animals: the Second Wave," and sent her a preliminary list he had 25 drawn up. (133.) Dawn expressed surprise to one of Singer's proposed co-authors on one chapter 26 because she believed that another person, whom Singer "had parted on bad terms with," was more 27 qualified than the one he proposed, for which he had expressed, on "various occasions," that he had 28 sexual interest in. Ultimately, Singer selected the one he had sexual interest in over the one he had 5 1 broken up with. Singer did give Dawn a co-author credit on one chapter while Dawn was still on 2 "loving" tenns with him. Dawn believes that all, or a majority, of Singer's female co-authors were 3 women with whom Singer has been sexually involved, or to whom he had made clear his sexual 4 interest. In May 2003, Singer asked Dawn to "work with him" on a piece for the Los Angeles 5 Times, and that she would receive a co-writing credit. (i[ 33-51.) While Singer and Dawn worked 6 together on the Los Angeles Times op-ed article, they again "became sexually involved" and Dawn 7 agreed to be part of Singer's "harem as long as she was his favorite, the lead in his orchestra, as he 8 called it." In 2003, Singer told her that while he still wished to be sexually involved with her, that 9 she had been replaced "as the main recipient of his affection" by a women who was thirty while 10 Dawn was forty. Singer knows that Dawn's mother committed suicide and that her paternal u, ~ ... ll') D: ,.._ ... ~ 11 grandmother had committed suicide. On October 25, 2003, Dawn sent Singer an e-mail stating, "I ct.!li ::t:·s< oo- 12 don't think we will ever look back on this period, my emotional collapse, the antidepressants, the u. o5 _j o~ciio:g state too close to craziness, and be laughing about it together." Dawn states that she "occasionally "' w GJ u. on < ... :I Cl\' 13 u1-ci5<.,.. ii: UN LI- D: 2:-c;"" struggled with suicidal depression." Dawn also states that she remained involved with Singer OQ Clluii 14 r2-Ou- E!!!; - CIZ 15 "despite her uneasiness, because of the dependency that had developed." (,I 52-69). In 2004, z-~ - C: Q. 0 II. :l:i!:z 16 "feeling old compared to his brand new young replacement," Dawn had a facelift at age 41 which ct II)< 0Mfll U)N 17 became infested and rendered her ill for weeks. Dawn stated that unable to bear, alone, all of the 18 pain she expressed to Singer, she "shared news of the long-tenn affair with her partner, now a 19 partner of four years." As a result, the relationship with her partner "was strained beyond repair"; 20 plans of marriage "were put on hold"; instead of buying for her the four million dollar home they 21 were renting, he bought the home in his name alone; and the relationship with her partner 22 "eventually dissolved." (ii 70-82.) Dawn and Singer co-authored numerous op-eds and book 23 chapters during their relationship. Dawn alleges that she "did the bulk of the work." However, 24 Singer's name appeared first on the byline. Dawn was "uncomfortable with the byline 25 arrangement." In 2016, Dawn states tha~ despite her doing most of the work, Singer was able to 26 persuade her that he would take "untoward credit" for the work because the article would be "more 27 widely read and doing more good." Dawn believes that this was damaging to her self-esteem and 28 her professional standing. (iJ 83-91.) In 2016, Singer agreed to be on the Board of Dawn's newly 6 formed nonprofit, Dawn Watch. The understanding was that his very presence on it would be 2 helpful with regard to prestige and funding. On December 15, 2018, Singer arranged a multiple- 3 hour layover in Los Angeles in order to attend a fund raising dinner for DawnWatch. "During a 4 private chat at that dinner," Dawn shared with Singer that she was doing well, to which Singer 5 replied that Dawn had always had strong self-esteem. In response, "Dawn finally told Singer that 6 her period of hospitalization had been for a facelift and resulting skin infection, which Dawn had 7 undergone after her self-confidence was shattered when Singer had replaced her as his main love 8 interest with a 30 year old woman. Feeling unjustly blamed for Dawn's pain, Singer attempted to 9 put the blame for their relationship on Dawn, reminding her of a time she had flashed herself to him 10 on a train, as she attempted to reignite his affection. He used the word "cunt" as he reminded her of (I) LO ii: ... :! 11 the event. 1 Singer left the dinner, with Dawn asking that they hug goodbye for appearances sake. u: ~ ... c( .!3 ::c ·s < 12 Singer obliged with the hug, but also told Dawn, "You're crazy." None of the other diners had u. 115(1)~ - o~-a;o:g GJu...,, been aware of the altercation, until Dawn, for the sake of authenticity, shared that Singer had U) Wc(~::J'°'i 13 2.,_(I)<.- LI. UN LI. 0:: ~0-.r oo GJuin 14 departed after an argument, though she did not elaborate. (i! 99-108.) There was no ~:E.o~- E~:r - C) 15 communication between Dawn and Singer from the evening of December 15, 2018, until May 9, z-i:! - c 0. 0 u. :E ~z 16 2020, when Dawn reached out via email to Singer to ''take his temperature," having no idea how he c( in< 0 MIO U)N 17 had been viewing the silence between them. A copy of that email is attached as Exhibit E to the 18 Complaint. Dawn was, at that time, living in an RV in Santa Barbara. Singer's response to that e- 19 mail, which is part of Exhibit E to the Complaint, stated the following with regard to the December 20 15, 2018 fund raising dinner: "You ask me to break my journey to Australia to speak at a fund- 21 raising event for DW, and when I am there, you harangue and abuse me in front of the few wealthy 22 supporters - or was there only one wealthy supporter? - who actually came to the event. I go back 23 to Australia, and over the next few days, check my inbox for some kind of apology. Nothing, 24 weeks, months, go by.. .It's true that I used to think your work was valuable. That's why I agreed to 25 be a member of your board, and donated some money to you. I still think you have the talent to do 26 valuable work for the movement, but I no longer think you have the consistency or perseverance 27 28 Defendant apologizes for having to use the very distasteful word noted above in this demurrer, but because the word forms an important part of Plaintiff's Complaint, he had no choice. 7 I required to do enough of it, so I cannot, in good conscience, support you or ask anyone to support 2 you. I hereby resign my position as a member of the Board ofDawnwatch. [f.l Want to prove me 3 wrong? OK, for the rest of 2020, produce a regular DW email every week, on the same day of the 4 week, summarizing what is happening about animals in the media, plus a supplementary special 5 alert whenever there is a big breaking story that you want people to respond to ... When you've done 6 that, you can ask me again for my support." (,r I00-124.) 7 8 DISCUSSION 9 10 Dawn reveals in her Complaint that she met Singer at an animal rights conference in 2002 and f/) It) ii:.,... X 11 knew him as the '"Father of the modern animal rights movement;" that she expressed anxiety at °'< .!! i~ r-- :c ·5 :!i 12 meeting him "because of his status, and because he was her hero"; that, nonetheless, she met Singer u. O!S Cl) -11: z 0~10:s (IJ U. IO 13 for lunch along with her "partner of three years" who provided her with "financial and emotional wci;.:-=:ic, ~ .,_ CfJ,'h. u. OQ 2:-°' ci"" lllorn 14 support"; that Singer thereafter called the plaintiff daily for a period of weeks and told her "he had ~~§~i - z--~ CIZ 15 sexual interest in her"; that she and Singer thereafter entered into a consensual sexual relationship - C: Q. 0 u. :E :E z U,N 17 publications if you agree to have a sexual relationship with me. 18 Dawn doesn't allege any such bargain because no such bargain was ever made. It is clear that 19 Dawn willingly involved herself in a sexual affair with Singer because she fell "deeply in love" 20 with him. Nor does she allege any unwelcome sexual advances by Singer. 21 This suit is nothing more than a later-day incarnation of the seduction of a person over the age 22 of consent and is therefore barred under California's anti-heart-balm statutes. 23 In Atienza v. Taub, MD (1987) 194 Cal. App. 3d 388, a physician was sued by one of his 24 patients for medical malpractice and intentional infliction of emotional distress. The trial court 25 sustained the defendant's demurrer to the complaint without leave to amend. The Court of Appeal 26 affirmed the judgment of dismissal, stating: "Essentially, appellant complains that she had an 27 unhappy affair with a man who happened to be her doctor. This is plainly insufficient to make out 28 a cause of action for professional negligence under any of the theories presented. Accordingly, we affirm the dismissal of appellant's action with respect to the cause of action for professional 2 negligence. [fl Similarly, we affirm dismissal of appellant's second cause of action for intentional 3 infliction of emotional distress. The core of the second cause of action is an allegation of 4 seduction. Indeed, in paragraph 5 of the complaint, incorporated by reference into the second cause 5 of action, appellant alleges that respondent 'seduced [her] into having sexual relations and an affair 6 with her... ' Such an action for seduction has been abolished by Civil Code section 43.5, which, in 7 part, states: 'No cause of action arises for: [,rJ ... [fl (c) Seduction of a person over the age oflegal 8 consent.' (Civ. Code,§ 43.5, subd. (c).)" (Id, pp. 393-394.) 9 Here, as in Atienza, Dawn complains of an unhappy affair with a man who happened to be a 10 prominent professor at Princeton. The sexual relationship, according to Dawn, was a result of his U, ID ii: .... ;! 11 seduction of her (i.e., his knowing that he was her hero; calling her every day for a week and stating 0::: r-,. .... uui' E .,, ;;: 5 - - or;- matter of law, such as would distress a reasonable man of ordinary sensibilities. (Prosser, The Law o,z z-~ 15 - C: 11. 0 I.I. :E :ii:z 16 of Torts, supra, § 12, p. 59.) Thus, an action for intentional infliction of emotional distress would ct II) ,c 0MII) U)N 17 not lie for the mere utterance of these statements." (Id p. 291-292.) 18 Here, as in Scott, Singer's alleged statements to Dawn, during a private argument over their 19 relationship, that she was "crazy" and used the word "cunt" were never "published," i.e., stated in 20 the presence of a third person. 21 Such private insults between fonner lovers are not, as a matter of law, sufficiently outrageous 22 to support a cause of action for intentional infliction of emotion distress. 23 As stated by the Supreme Court in Agarwal v. Johnson ( 1979) 25 Cal. 3d 932: "The modem 24 rule is that there is liability for conduct exceeding all bounds usually tolerated by a decent 25 society, of a nature which is especially calculated to cause, and does cause, mental distress. (See 26 Prosser, Law of Torts (4th ed. 1971) p. 54). Ordinarily mere insulting language, without more, 27 does not constitute outrageous conduct. The Restatement view is that liability does not extend to 28 mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities ... There is no 12 1 occasion for the law to intervene... where some one's feelings are hurt.' (Rest. 2d Torts, § 46, d)." 2 (Id. p. 946) (Emphasis added). 3 In summary, a private altercation involving "insults" between former lovers, does not, as 4 matter of law, constitute "outrageous conduct" to support a cause of action for intentional infliction 5 of emotional distress. 6 7 C. The intentional termination of a romantic relationship is not the type of "outrageous" 8 conduct that is required to support a cause of action for intentional infliction of emotional 9 distress. IO en It') ii:,....~ 11 In Unterherger v. Red Bull North America, Inc. (2008) 162 Cal. App. 4 th 414 a beverage 0::: "" .... ce Bi :c ·5< 12 distributor sued a California company alleging defendant terminated a business relationship without '° w; u. 0~1uo:g • U) Q) !!: .,, 13 good cause resulting in the distributor suffering severe emotional distress. w,c(~..J"i' ~~~c'.hi II. 0 o·• a>8in 14 On the cause of action for Intentional Infliction of Emotional Distress, the Court affirmed the ~:EE~~ .au- - e>z 15 trial court's grant of summary adjudication stating: "The trial court likewise correctly granted z-~ -r: D.. 0 u. :E :!: z summary adjudication of the Unterbergers' cause of action for intentional infliction of emotional ,c( It)< 16 0 C') (IJ U,N 17 distress. The Unterbergers claimed that RBNA's 'change in credit terms to bring extreme financial 18 pressure on plaintiffs to qui~ and then refusing to ship the paid for product anyway, meaning we 19 obviously would not be able to service our customers even though we arranged costly emergency 20 financing, would necessarily and naturally result in emotional distress to the intended victims ... ' 21 However, a cause of action for intentional infliction of emotional distress arises when a defendant 22 'intentionally or recklessly causes 'severe emotional distress' to another by 'extreme and 23 outrageous conduct.' (5 Witkin, Summary of Cal. Law, supra, § 450, p. 668, quoting Rest. 2d, 24 Torts§ 46). "To be 'outrageous,' conduct 'must be so extreme as to exceed all bounds of that 25 usually tolerated in a civilized community' (Fowler v. Varian Associates, Inc. (1987) 196 Cal. App. 26 3d 34, 44, 241 Cal. Rptr. 539), and the court is to determine, in the first instance, whether 27 conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. 28 (Ibid). On this record, we find it impossible to disagree with the trial court's conclusion, 13 1 namely: 'fTJhe conduct that plaintiffs allege caused them distress, i.e., the termination of a 2 business relationship, is, as [a] matter of law, not the type of 'outrageous' conduct that is 3 required to support a cause of action for intentional infliction of emotional distress."' 4 (Emphasis added). 5 Restatement Third of Torts, Section 46, comment d, states, with regard to "extreme and 6 outrageous conduct," the following: "To be held liable under this Section, an actor must do more 7 than intentionally or recklessly cause emotional harm. The actor must act in a way that is extreme 8 and outrageous. [411] Section 46 of the Second Restatement, on which this Section is based, 9 employed the 'extreme and outrageous conduct' standard. That standard has been widely adopted, 10 has been employed satisfactorily, and has become familiar. For these reasons, it is retained in this Cl) lO ~ ~ ~ ..... c( 2 il .. 11 Section. The adjectives 'extreme' and 'outrageous' are used together in a fashion that might ::c ·5 c( 12 suggest that each merely emphasizes the other, rather than serving a distinct role. However, some en- -i u.11/J O:il,o:g conduct that may be outrageous - for example, marital infidelity - sufficiently common that it could (I) GJ II. UJ c( II) !:: ::J 111' 13 "i..;cn< ii: UN ... II. a:: ~ci~ not be characterized as extreme (although today it may also not be outrageous). Similarly, some 0 o G>ur.;" 14 ~~g!!i - cnu z.,.Z 15 extreme conduct - climbing Mt. Everest, for example - is not outrageous. Thus, this double -ll. c~ 0 II. :& ~ z limitation, 'extreme and outrageous,' requires both that the character of the conduct be c( lO c( 16 (J (") (I) Cl) N 17 outrageous and that the conduct be sufficiently unusual to be extreme. [fl Under§ l(b), an 18 actor is charged with intending a consequence if the actor 'acts knowing that the consequence is 19 substantially certain to result.' Under this definition of intent, liability could extend to a wide 20 variety of conduct without regard to the legitimacy or social utility of the conduct. For example, a 21 person who breaks a marriage engagement may be substantially certain that the rejection 22 will cause severe emotional harm, but that conduct is not a proper basis for liability. 23 Important policies support protecting the freedom to end an engagement. Indeed, the larger 24 point is that unless liability under this Section is appropriately limited, freedom and socially 25 productive conduct could be impeded. Individuals participating in society must be prepared to 26 suffer emotional trauma - even as serious as that resulting from a broken engagement - without 27 legal recourse, in order to encourage freedom and, specifically, in the case of engagement, to avoid 28 marriages that are likely to fail. The difficulty with this tort is that the 'substantially certain' 14 element of intent does not balance the social utility of the actor's conduct against the risk of 2 causing emotional harm." (pp. 138-139.) (Emphasis added) 3 Here, the tennination of a romantic relationship, is, as a matter oflaw, not the type of 4 "extreme and outrageous" conduct that is required to support a cause of action for intentional 5 infliction of emotional distress. 6 7 CONCLUSION 8 9 Singer's Demurrer to Dawn's Complaint must be sustained without leave to amend because: 10 (1) California, as a matter of public policy, has barred litigation of affairs of the heart; (2} Insults, (I) IO 0: ,- ~ 11 made in private, between quarreling former lovers, do not, as a matter oflaw, constitute "extreme 0::: ,.._ .... ct .!! ol; ::c ·s"" en- 12 and outrageous" conduct so as to satisfy the first essential element of a cause of action for u.11/J .1 o~Jo:g (/J !:!: 1ft 13 intentional infliction of emotional distress; and (3} The intentional termination of a romantic and Wct;!:i..Jcp ~~ en ~ N 0::: ~ 0 "" II. 14 sexual relationship is not the type of "extreme and outrageous" conduct so as to satisfy the first oo a>uii> ~:EE!l; _ou- - c,z 15 essential element of a cause of action for intentional infliction of emotional distress. ~c~ 0. 0 u. :E ~ z 16 cCIO~ (.)M U)N 17 18 19 20 by: ---:-:,...,-:--;:'--,---:~--:-;E."\::-,:,.....-;=---1':r- 21 NEIL S. 22 Attorneys for Defendant PETER SINGER 23 24 25 26 27 28 15 l PROOF OF SERVICE 2 I am a citizen of the United States and an employee in the City and County of San Francisco, State of California. I am over the age of eighteen and not a party to the within action. My business 3 address is that of Scampini, Mortara & Harris, 235 Montgomery Street, Suite 715, San Francisco, 4 California 94104. 5 On November 1, 2022, I caused to be served on all interested parties the following: 6 DEFENDANT'S POINTS AND AUTHORITIES 7 IN SUPPORT OF DEMURRER 8 By: L (Electronic Mail) I caused said documents(s) to be transmitted to the e-mail address(es) of the below addressee(s): 9 (Facsimile) I sent a true copy thereof via telephone facsimile transmission to the 10 following number(s). 11 (Federal Express) I sent a true copy thereof enclosed in a sealed envelope to be delivered to Federal Express for overnight courier service to the office(s) of the 12 addressee(s). 13 ~ (Mail) I placed a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid. I deposited said envelope in the United States Mail in the City and 14 County of San Francisco, California. 15 (Hand-Delivery) I placed a true copy thereof enclosed in a sealed envelope. caused such envelope to be delivered to the offices of the addressee. 16 addressed to: 17 Karen Dawn 18 409 Camino de) Remedio, Unit G Santa Barbara, CA 93110 19 E-mail: news@dawnwatch.com 20 I am familiar with the mail collection practices of the law offices of Scampini, Mortara & 21 Harris, and pursuant to those practices, the envelope would be deposited with the United States 22 Postal Service the same day. I declare under penalty of perjury that the foregoing is true and correct. Executed on 23 November 1, 2022 at San Francisco, California. 24 25 26 27 28 16