PLAINTIFF/CROSS-DEFENDANT’S AMENDED DEMURRER TO SECOND AMENDED CROSS-COMPLAINT
FRAGOZA v TREVINO
PLAINTIFF/CROSS-DEFENDANT’S AMENDED DEMURRER TO SECOND AMENDED CROSS-COMPLAINT
This matter involves a real property dispute between Cruz Fragoza (“Fragoza”) and Stevino Real Estate Investment, LLC (“LLC”), Steven C. Trevino (“Trevino”), Angela M. Barry (“Barry”) and William Carter (“Carter”) (collectively “Cross-Complainants.”) Now before the Court is a demurrer filed by Fragoza as to the fifth cause of action in the Second Amended Cross-Complaint (“SACC”) for intentional infliction of emotional distress. The Court grants Fragoza’s request for judicial notice (“RJN”). Cross-Complainants have not filed any opposition to either the RJN or Motion.
I. Facts
These facts are compiled from the SACC. Plaintiff and Cross-Defendant Cruz Fragoza (“Fragoza”) filed this action on or about July 3, 2025, concerning adjacent parcels commonly known as 2912 and 2920 Heinemann Drive, Valley Springs, California. (SACC ¶ 1.) LLC is the owner of 2920 Heinemann Drive (“APN 2”) and Trevino is the manager of APN2 and the residence thereon. (Id. ¶ ¶ 2, 3.) Barry and Carter have been tenants since 2010 and 2017 respectively. (Id. ¶ ¶ 4, 5.)
Next to APN 2 is an unimproved lot with a septic system (“APN 1”), which serves the residence on APN 2. (SACC ¶ 6.) Since 2008, Cross-Complainants have “openly and continuously” used the septic system on APN 1 as reasonably necessary to the care and maintenance of the system serving APN 2. (Id. ¶ 7.) They allege that Fragoza knew or should have known of this use and maintenance of APN 1 to serve APN 2 and has nevertheless claimed rights adverse to their own. (Id. ¶ ¶ 12, 13.)
On July 28, 2011, Fragoza notified LLC that he was the owner of APN 1 and that he had intentions to sell APN 1. (SACC ¶ 16.) Later in 2017, Fragoza again wrote to LLC
referring to the Tenants on APN2 and threatening to install a cross-fence. (Ibid.) In 2024, Fragoza’s attorney apparently contacted the LLC stating that Fragoza owned APN1 and that Cross-Complainants only owned a septic easement. (Id. ¶ 17.) In or around the spring of 2025, Fragoza appeared over various times at the residence on APN 2, including the curtilage of APN 2’s home, and attempting to interfere with APN 2. (SACC ¶ 18.) During those visits from Fragoza, Barry and Carter were present, and witnessed Fragoza use a chainsaw and other loud tools to cut fencing, install posts, and erect new fencing that interfered with access to the septic system serving APN 2. (Id. ¶ 19.) Fragoza allegedly continued to return and threaten APN 2 despite being told to stop. (Id. ¶ 20.) Cross-Complainants seek continued use of the septic system on APN 1 and damages.
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II. Legal Standard
“A demurrer tests the sufficiency of a complaint and admits all facts properly pleaded.” (Setliff v. E.I.Du Pont de Nemours & Co. (1995) 32 Cal. App. 4th 1525, 1533.) The court assumes the truth of the allegations asserted but does not assume the truth of “contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State of California (2008) 161 Cal. App. 4th 242, 247.) The court can further look at those facts that “reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken.” (Fremont Indemnity Co., 148 Cal. App. 4th 100, 111.) In considering the demurrer, the court must accept the allegations set forth in the complaint as true. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)
III.
Discussion
To assert a cause of action for intentional infliction of emotional distress, the SACC must allege: 1) extreme and outrageous conduct by the cross-defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) cross-complainants’ suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the cross-defendant's outrageous conduct. (Ess v. Eskaton Properties (2002) 97 Cal.App.4th 120, 129-130.)
“Generally, conduct will be found to be actionable where the ‘recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028 [citing Rest.2d Torts, § 46, com. d].) The conduct must not only
be outrageous, but also “directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Christensen v. Superior Court (1991) 54 Cal.3d 868. 903.)
Here, the SACC alleges that Fragoza entered APN 2, where Barry and Carter were living, “used a chainsaw and other loud tools to cut, damage, and remove perimeter fencing serving APN 2, install new posts and wire fencing in or adjacent to the curtilage and septic-access area serving APN 2, and place items in a manner that interfered with access to the septic system serving APN 2.” (SACC ¶ 46.) They allege that this behavior, under the circumstances of an active dispute between the party, was outrageous behavior. (Id. ¶ 47.)
The only parties who could arguably raise this cause of action would be Barry and Carter, who were the only Cross-Complainants on the property at the time of the alleged fence cutting. However, the fact that the tenants were at home and disturbed by Fragoza’s actions simply does not give rise to the level of outrageous conduct required for this tort. Indeed, liability “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092. 1122 [citing Rest.2d Torts, § 46, com. d.])
Further, the Court notes that Cross-Complainants have not filed an opposition and the Court may consider this failure as consent to the granting of the motion. (Cal. Rule. Court 8.54(c).)
IV.
Conclusion
The demurrer is SUSTAINED, WITHOUT leave to amend, for the fifth cause of action for intentional infliction of emotional distress. The clerk shall provide notice of this ruling to the parties forthwith. Cross-Defendants to submit a formal Order and Judgment complying with Rule 3.1312 in conformity with this Ruling.