TERRY vs FLORES, et al.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk

24CV011507: TERRY vs FLORES, et al. 12/17/2024 Hearing on Demurrer to Complaint in Department 53

will forward the form to the Court Reporter’s Office and an official reporter will be provided.

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving party is directed to contact opposing counsel and advise them of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving party is unable to contact opposing counsel prior to hearing, moving party is ordered to appear at the hearing. Defendant in pro per Saul Flores’s (“Defendant”) demurrer to Plaintiff Alan Terry’s (“Plaintiff”) complaint is ruled upon as follows.

Background

Plaintiff alleges he was in a relationship with Defendant’s mother, Maria Flores (“Flores”), for approximately 24 years. (Complaint ¶ 7.) At the time of the events giving rise to the complaint, Plaintiff lived with Defendant and Flores. (Id. ¶¶ 7, 8.) Plaintiff alleges on December 27, 2023, Defendant recorded a private conversation with Plaintiff at their home without Plaintiff’s knowledge or permission. (Id. ¶ 9.) On January 12, 2024, Defendant recorded Plaintiff’s private conversation with a third-party at their home by using a video camera, again without Plaintiff’s knowledge or permission. (Id. ¶ 10.)

Defendant then transcribed the conversations into written statements and provided them to Plaintiff at a hearing in a separate proceeding seeking a temporary restraining order against Plaintiff. (Id. ¶ 11.) Plaintiff alleges he has suffered emotional and economic damages as a result of Defendant’s conduct. (Id. ¶ 12.) Plaintiff asserts four causes of action against Defendant for 1) invasion of privacy; 2) eavesdropping in violation of Penal Code §§ 632 and 637.2; 3) negligent infliction of emotional distress; and 4) intentional infliction of emotional distress.

Defendant demurs to the entire complaint pursuant to Code of Civil Procedure sections 430.10(e) (failure to state facts sufficient to state a cause of action) and 420.10(f) (uncertainty). Plaintiff opposes, arguing the pleadings are not uncertain and that he has pled facts sufficient to state a claim for relief. Legal Standard on Demurrer A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) The purpose of a demurrer is to test the legal sufficiency of a claim. (Donabedian v.

Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (Code Civ. Proc. § 452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co. v. Stewart Title

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV011507: TERRY vs FLORES, et al. 12/17/2024 Hearing on Demurrer to Complaint in Department 53

Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7.) The Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d at 318; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.) A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank, supra, 39 Cal. 3d at 318, William S.

Hart Union High School Dist. v. Regional Planning Com. (1991) 226 Cal.App.3d 1612, 1616 fn.2.) Extrinsic evidence may not properly be considered on demurrer or on a motion to strike. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 C. 481, 482.) A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . ., we are not concerned with plaintiff's possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v.

Olsan (1978) 77 Cal.App.3d 690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726.) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action - not whether they are true. (Serrano v. Priest (1971) 5 Cal. 3d 584, 591.)

Discussion

Defendant’s Argument that the Complaint Fails to State Sufficient Facts Invasion of Privacy and Eavesdropping To prevail on a cause of action for invasion of privacy, plaintiff must plead and prove intentional intrusion into an area in which plaintiff has a reasonable expectation of privacy. (Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 295.) Similarly, in a civil action premised upon Penal Code Section 632 of the Invasion of Privacy Act (and allowed through Penal Code Section 637.2), a conversation is deemed confidential if a party to that conversation has a reasonable expectation that the conversation is not being overheard or recorded. (Pen.

Code § 632(c).) Defendant argues Plaintiff has not alleged facts sufficient to state a claim for invasion of privacy because the complaint “fails to provide specific factual allegations or evidence demonstrating Defendant’s direct involvement in the alleged recording.” (Demurrer 2:24-26.) This argument fails. First, neither cause of action requires a specific allegation of “direct involvement” to be made in the complaint. Plaintiff’s allegations are sufficient in this regard. Second, Plaintiff’s allegation that Defendant recorded Plaintiff’s conversation inside Plaintiff’s home without

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV011507: TERRY vs FLORES, et al. 12/17/2024 Hearing on Demurrer to Complaint in Department 53

Plaintiff’s knowledge or authorization, taken as true, is sufficient to withstand demurrer. Based upon the allegations of the complaint, and the absence of allegations stating the contrary, Plaintiff had a reasonable expectation of privacy in his conversations held at home. These allegations are sufficient to state a claim invasion of privacy as well as for eavesdropping pursuant to Penal Code sections 632 and 637.2. Defendant also argues the demurrer should be sustained because Plaintiff misrepresents the events described in his complaint.

However, this is not a valid basis for demurrer. At the pleading stage of the proceedings the Court must accept the factual allegations in the complaint as true. (Blank v. Kirwan (1985) 39 Cal.3d at 318; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.) Defendant’s demurrer as to the first two causes of action for invasion of privacy and eavesdropping made pursuant to Code of Civil Procedure section 430.10(e) is OVERRULED. Negligent Infliction of Emotional Distress (“NEID”) and Intentional Infliction of Emotional Distress (“IIED”) Although Defendant states that he demurs to the entire complaint pursuant to Code of Civil Procedure section 430.10(e), Defendant’s points and authorities contain no supporting argument as to the third and fourth causes of action for NIED and IIED.[1] Accordingly, the demurrer as to these causes of action is OVERRULED.

Defendant’s Argument that the Complaint is Fatally Uncertain “A special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (People v. Lim (1941) 18 Cal.2d 872, 883.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (Ibid.) “Uncertainty arising out of the legal effect of facts alleged is not a ground for demurrer.” (James v.

Herbert (1957) 149 Cal.App.2d 741, 750.) A demurrer for uncertainty does not lie as to immaterial matters or facts that are presumptively within the knowledge of the demurring parties. (Dumm v. Pacific Valves (1956) 146 Cal.App.2d 792, 799.) A special demurrer must be disregarded where it fails to specify the particular allegations or defects giving rise to the demurrer. (Taliaferro v. Salyer (1958) 162 Cal.App.2d 685, 688.) The demurrer on this ground is OVERRULED. While Defendant argues the complaint omits pertinent details about the events at issue, this is no basis for demurrer.

The allegations contained in the complaint are sufficient to apprise Defendant of the claims asserted against him in this action.

Disposition

The demurrer is OVERRULED in its entirety.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV011507: TERRY vs FLORES, et al. 12/17/2024 Hearing on Demurrer to Complaint in Department 53

Defendant shall file an answer no later than January 4, 2025. This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC, Rule 3.1312.)

[1] Defendant argues in his reply that the complaint lacks facts to show Plaintiff actually suffered

emotional distress as a result of Defendant’s conduct. The court will not consider issues and supporting arguments raised for the first time in a reply brief. “Fairness militates against allowing an appellant to raise an issue for the first time in a reply brief because consideration of the issue deprives the respondent of the opportunity to counter the appellant by raising opposing arguments about the new issue.” (In re R.Q. (2023) 96 Cal.App.5th 462, 462.) The Court finds no good cause to consider an issue and argument that Defendant could have and should have raised in its moving papers.