Medina vs. American Multi-Cinema Inc.

Accordingly the demurrer to the 3rd and 5th causes of action is SUSTAINED, without leave to amend.

4th Cause of Action - Intentional Infliction of Emotional Distress

The elements of a cause of action for intentional infliction of emotional distress are that: (1) defendant engaged in extreme and outrageous conduct; (2) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (3) as a result, plaintiff suffered extreme or severe emotional distress. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001)

Defendants allege outrageous conduct has not been alleged. Plaintiff concedes that "delay or denial alone is not sufficiently outrageous.” (Opp. at 7:14-16, citing Coleman v. Republic Indem. Ins. Co., 132 Cal. App. 4th 403.) However, plaintiff claims the new allegations included in the FAC which demonstrate outrageous conduct are that the defendants “demanded records and an Examination Under Oath while threatening to “pull coverage” and threatening criminal prosecution” to coerce settlement. (Opp. at 7:7-8) Plaintiff points to three paragraphs in the FAC (49(d), 49(g) and 65) to demonstrate outrageous conduct.

First, these allegations are very vague. Second, the fact that an expert hired by an insurer is biased is hardly surprising and not outrageous conduct. Third, demanding documents and an examination under oath (EUO) are not unusual. Further, a threat to “pull coverage” is a normal result if the insured is unwilling to provide information about the claim or submit to an EUO. Finally, the fact plaintiff was advised that submitting a fraudulent claim may result in criminal prosecution is not sufficient to state a claim for intentional infliction of emotional distress. (See FAC ¶18)

Accordingly, the demurrer to the 4th cause of action for Intentional Infliction of Emotional Distress is SUSTAINED without leave to amend.

Integon shall give notice. 10 Wyant v. Cont. Marks 11 Medina vs. Defendant American Multi-Cinema Inc.’s (“AMC”) motion to strike American punitive damages language from plaintiff Raul Medina’s (“Plaintiff”) Multi-Cinema First Amended Complaint (“FAC”) is GRANTED. Inc. “Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. . .” (Civ. Proc. Code § 435(b)(1).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Civ. Proc. Code § 436(a).)

Regarding punitive damages under Civ. Code § 3294: “(a) In an action for the breach of an obligation not arising from contract,

where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. . .” (Civ. Code § 3294.)

There are no facts alleged in the FAC which might support the oppression, fraud, or malice required for punitive damages under Civ. Code § 3294. Further, “[w]hen nondeliberate injury is charged, allegations that the defendant's conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice. [Citations.]” (Smith v. Superior Ct. (1992) 10 Cal. App. 4th 1033, 1041.)

As there are no facts to support the requested punitive damages, the motion to strike is granted. Plaintiff is given leave to file an amended complaint within 14 days of written notice of the ruling.

Defendant to give notice. 12 Jahangiri v. The motion for judgment on the pleadings is DENIED. Vahidramezani “An accounting is an equitable proceeding which is proper where there is an unliquidated and unascertained amount owing that cannot be determined without an examination of the debits and credits on the books to determine what is due and owing. Equitable principles govern, and the plaintiff must show the legal remedy is inadequate. Generally, an underlying fiduciary relationship, such as a partnership, will support an accounting, but the action does not lie merely because the books and records are complex. Some underlying misconduct on the part of the defendant must be shown to invoke the right to this equitable remedy.”

Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425, 442-443 (Emphasis added.)

Here, as a shareholder with co-equal control over the KWS, Jahangiri owed Vahidramezani fiduciary duties, and the latter has alleged underlying misconduct. The 13th cause of action for accounting incorporates by reference each of the preceding allegations of the FAC, which include significant allegations that Jahangiri had breached his fiduciary duties to both KWS and Vahidramezani.

True, the non-accounting causes of action asserting these allegations were dismissed upon demurrer without leave to amend based on the fact they were derivative, rather than direct claims. But the Court did not pass on the truth of the allegations and indicated that its ruling on demurrer was without prejudice. More importantly, the Court held that the 13th cause of action was a direct, not derivative, cause of action.