Demurrer to Amended Complaint; Motion to Strike Complaint
The unopposed general and special demurrer by Defendant Young Hee Pak-Suh, D.D.S. (“Dr. Pak-Suh”) to the seventh cause of action for intentional infliction of emotional distress alleged in the Third Amended Complaint (“TAC”) filed by Plaintiff Andrew Joseph Farnum (“Plaintiff”) is overruled in part and sustained in part with leave to amend.
Dr. Pak-Suh’s requests for the Court to take judicial notice of documents filed in this action, Exhibits A, B, C, D, and E, are denied because it is unnecessary to ask the court to take judicial notice of materials previously filed in this case. A party may “simply call the court’s attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2025) ¶ 9:53.1a.)
Dr. Pak-Suh’s request for the Court to take judicial notice of December 11, 2025 meet and confer letter is also denied. A meet and confer letter is not a proper matter for judicial notice. To the extent Dr. Pak-Suh contends the letter was attached to the declaration in support of this demurrer, judicial notice is not necessary for the same reason set forth above. Sufficiency of allegations in support of Plaintiff’s seventh cause of action for intentional infliction of emotional distress
The elements to plead a cause of action for intentional infliction of emotional distress are: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.)
“‘Behavior may be considered outrageous if a defendant (1) abuses a relation or position that gives him power to damage the plaintiff’s interests; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. . . .’” (Molko v. Holy Spirit Ass’n (1988) 46 Cal. 3d 1092, 1122 [superseded by statute on other grounds].)
“The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and duration of the distress are factors to be considered in determining the severity.” (
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“Discomfort, worry, anxiety, upset stomach, concern, and agitation” as the result of defendant’s conduct do not constitute emotional distress of “such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 105.) “[O]rdinary defendants are not liable for mere insult, indignity, annoyance, or even threats, where the case is lacking in other circumstances of aggravation. The reasons are not far to seek.
Our manners, and with them our law, have not yet progressed to the point where we are able to afford a remedy in the form of tort damages for all intended mental disturbance. Liabilities of course cannot be extended to every trivial indignity.... Accordingly, it is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances. The plaintiff cannot recover merely because of hurt feelings.” (Yurick v.
Superior Court (1989) 209 Cal.App.3d 1116, 1128.)
In addition, it is “not enough that the conduct be intentional and outrageous. It must be conduct 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.)
Plaintiff did not allege sufficient facts to state this cause of action against Dr. Pak-Suh. Demurrer is sustained. Plaintiff is granted one final opportunity to amend within 15 days of notice of this ruling. The Court reminds the parties that leave to amend is limited to the scope of this ruling and does not constitute leave to add additional causes of action or parties. The Court orders a conference of the parties to discuss the amendment of this cause of action before Plaintiff files another amended pleading. (Code Civ. Proc., § 430.41, subd. (c).)
Statute of limitations “Intentional infliction of emotional distress has a two-year statute of limitations. (Code Civ. Proc., § 335.1; Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444, 1450, 53 Cal.Rptr.3d 681.) ‘A cause of action for intentional infliction of emotional distress accrues, and the statute of limitations begins to run, once the plaintiff suffers severe emotional distress as a result of outrageous conduct on the part of the defendant.’ (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 889, 6 Cal.Rptr.2d 151.)” (Wassmann v.
South Orange County Community College District (2018) 24 Cal.App.5th 825, 852-853.) Pursuant to CCP section 335.1, the statute of limitations for an action for “assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another” is two years. Dr. Pak-Suh did not contend this cause of action is governed by the 1-year statute of limitations for professional negligence.
Plaintiff commenced this action on September 28, 2022. Plaintiff did not name Dr. Pak-Suh as a defendant until Plaintiff filed Plaintiff’s First Amended Complaint on February 21, 2023. The parties do not dispute whether the relation back doctrine applies.
As the Court noted in its October 3, 2023 ruling sustaining Dr. Pak- Suh’s demurrer to the first, second, and third causes of action on the ground that they are time barred, the two-year statute of limitation would have run by August 28, 2022, a month before the Complaint was filed, even if Emergency Rule No. 9 applied. Plaintiff alleges no facts to show Plaintiff’s emotional distress cause of action accrued over six months after the alleged disfigurement. Based on the allegations of the TAC, the Court finds Plaintiff would have begun suffering emotional distress from Dr.
Pak-Suh’s dental procedure no later than March 3, 2020, the latest date Plaintiff alleged Dr. Pak-Suh performed dental treatments on Plaintiff and Plaintiff saw his teeth were extensively damaged upon returning home. (TAC, 33 and 35- 37.) In Plaintiff’s Second Amended Complaint, Plaintiff alleged he saw his teeth permanently disfigured in the mirror once he got home and every time Plaintiff attempts to brush or floss is teeth, the torture of 3/2/2020 causes continual suffering, pain, and emotional anguish. (SAC, 4:24-26.)
Accordingly, the unopposed demurrer is sustained. Plaintiff is granted one final opportunity to amend within 30 days of notice of this ruling. The Court reminds the parties that leave to amend is limited to the scope of this ruling and does not constitute leave to add additional causes of action or parties.
Uncertainty
Dr. Pak-Suh’s supporting memorandum does not address this ground. Accordingly, the special demurrer is overruled. (Cal. Rules of Ct., Rule 3.1113(a).)
Motion to Strike Complaint
The unopposed motion filed by Defendant Foruzan Bigdeli, D.D.S. (“Dr. Bigdeli”) for an order striking the Second Amended Complaint and Third Amended Complaint (“TAC”) and dismissing the action against Dr. Bigdeli is denied.
If a motion for judgment on the pleadings is granted with leave to amend and an amended complaint is filed after the time to file an amended complaint has expired, then the court may strike the complaint pursuant to Section 436 and enter judgment in favor of that defendant against that plaintiff or a plaintiff. (Code Civ. Proc., § 438, subd. (h)(4)(A).)
On October 17, 2025, the Court granted Dr. Bigdeli’s MJOP with 30 days leave to amend as to the second through seventh causes of action and ordered Dr. Bigdeli to give notice. (Bridwell Decl., ¶¶ 3 and 4, Exhibit B.) On October 20, 2026, Dr. Bigdeli served Dr. Bigdeli’s notice of the Court’s ruling by mail and electronic service. (Id., ¶ 4, Exhibit B.) The time for Plaintiff to file the TAC expired on November 24, 2026. Plaintiff did not file his TAC until December 2, 2025 and a copy was not served on Dr.
Bigdeli. (Id., ¶ 6, Exhibit C.) However, the proof of service attached to the TAC shows a copy was timely electronically served on Dr. Pak-Suh on November 17, 2025. (Id.) Dr. Pak-Suh’s demurrer to the TAC confirms service. (Lam Decl., ROA No. 443, ¶ 7, Exhibit D.) There is no dispute the TAC was not served on Dr. Bigdeli. (Code Civ. Proc., § 1014 [“After appearance, a defendant or the defendant’s attorney is entitled to notice of all subsequent proceedings of which notice is required to be given.”].)
Although the TAC was not timely filed, it was timely served on at least one party. Accordingly, in the interest of justice, Dr. Bigdeli’s unopposed motion is denied. Dr. Bigdeli shall file an answer within 30 days.
The Court reminds the parties that litigants who choose to represent themselves must be treated in the same manner as represented parties and must follow the correct rules of procedure. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) A self-represented litigant is not entitled to any greater consideration than other litigants and attorneys. (Petrosyan v. Prince Corp. (2013) 223 Cal.App.4th 587, 594 [selfrepresented litigants are entitled to same treatment as represented parties]; see Cal.
Rules of Court, Rule 1.6(15) [defines “parties” as including both self-represented persons and persons represented by an attorney of record without making any distinction between them].) The fact that Plaintiff is a self-represented litigant does not relieve him of the requirements, law, and procedures applied to all parties who appear in this court. Self-represented litigants are “held to the same standards as attorneys.” (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
Dr. Pak-Suh shall give notice.