Belken v. Belken CA1/4

Filed 12/28/15 Belken v. Belken CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

ERIN DAWN BELKEN, Plaintiff and Appellant, A143159 v. CASEY BELKEN, (Alameda County Super. Ct. No. HG14717123) Defendant and Respondent.

Erin Dawn Belken (wife) appeals from an order sustaining a demurrer to her first amended complaint and dismissing the action.1 She contends that her first amended complaint states a viable cause of action for intentional and negligent infliction of emotional distress. We disagree and affirm. I. FACTS On March 10, 2014, wife filed a complaint seeking damages from Casey Belken (husband) for intentional infliction of emotional distress. 2 Wife alleged: The parties used husband’s computer to store family photographs and utilized a photo and video storing program called Picasa. Wife also used husband’s computer because it had internet access. In June 2012, the parties were having marital troubles and

1 We construe wife’s notice of appeal liberally in favor of its sufficiency and interpret it as being from a judgment of dismissal. (See Bame v. City of Del Mar (2001) 86 Cal.App.4th 1346, 1353, fn. 5.) 2 The parties also have a marital dissolution case pending in Alameda County, Case No. HF12641864.

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were attending marital counseling. At the June 11, 2012 marital counseling session, husband demanded that wife move out of the marital home. When wife returned home, she logged onto husband’s computer and opened the Picasa program. She found photographs and videos of defendant and another woman having unprotected sexual relations. Wife recognized the woman as someone with whom husband had a business relationship. Wife became extremely upset and had difficulty breathing upon seeing the photographs and videos. She called her neighbor, who came over to her house and also became agitated and emotional upon seeing the videos on the computer. About a month later, wife went to her doctor, who prescribed two types of antibiotics after seeing screen shots of the videos. Wife suffered an adverse reaction to one of the antibiotics and had to have steroid injections. She suffered constant anxiety for three to four weeks until she was told she did not have a sexually transmitted disease. Husband should have known that wife would see the videos, and that his act of downloading the videos onto the computer was extreme and outrageous. As a result, she suffered severe humiliation, mental anguish, and emotional and physical distress. She also suffered damages in the cost of therapy and medical treatment. Husband demurred to the complaint on May 6, 2014 on the ground that the allegations in the complaint failed to state a cause of action because they did not amount to extreme, outrageous conduct or exceed all possible bounds of decency. On June 9, 2014, wife filed a first amended complaint.3 She repeated the same allegations as her original complaint but added that husband had threatened that if she did not move out of their home, he would make her life miserable. Wife felt that she had no choice but to move out because husband had started to break and hide her belongings and throw things at her. She further alleged that the videos and photographs that husband downloaded onto the computer spanned a period of several months. Wife also alleged