California law: Davis and Pulver cases

David A. Szwak

California law: Davis and Pulver cases

Postby David A. Szwak » Fri Dec 02, 2005 4:58 am

Davis v. Maryland Bank,
Not Reported in F.Supp.2d
2002 WestLaw 32713429
N.D.Cal., Jun 19, 2002

This matter comes before the Court on Defendant's Motion to Dismiss Third and Eighth Causes of Action of First Amended Complaint and All Claims of Ace Recovery Systems [Doc. No. 75-1] and Defendant's Motion for Summary Judgment or in the Alternative, for Ruling that Certain Matters are Without Substantial Controversy [Doc. No. 77-1]. Having read and considered all of the parties' papers and being fully informed, the Court finds the matter is appropriate for resolution without a hearing. See Fed.R.Civ.P. 78. The Court hereby GRANTS Defendant's motion to dismiss and motion for summary judgment.
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d. Intentional Infliction of Emotional Distress

*17 Defendant also moves for summary judgment on Plaintiff's claim for intentional infliction of emotional distress. It contends that Plaintiff has failed to present sufficient evidence that there was outrageous conduct. The Court agrees.

The elements for a claim of intentional infliction of emotional distress are: "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." Ess v. Eskaton Properties, Inc., 97 Cal.App.4th 120, 129, 118 Cal.Rptr.2d 240 (2002) (citing Cervantez v. J.C. Penney Co., 24 Cal.3d 579, 593, 156 Cal.Rptr. 198, 595 P.2d 975 (1979)); see also Cummings v. Pinder, 574 A.2d 843, 845 (Del.1990) (recognizing tort of intentional infliction of emotional distress as presented in Restatement (Second) of Torts § 46(1) (1965)). "Conduct, to be " 'outrageous' " must be so extreme as to exceed all bounds of that usually tolerated in a civilized society." Trerice v. Blue Cross of Cal., 209 Cal.App.3d 878, 883, 257 Cal.Rptr. 338 (1989) (citing Fowler v. Varian Associates, Inc., 196 Cal.App.3d 34, 44, 241 Cal.Rptr. 539 (1987)); see also Mattern v. Hudson, 532 A.2d 85, 85-86 (Del.Super.1987). "While the outrageousness of a defendant's conduct normally presents an issue of fact to be determined by the trier of fact the court may determine in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery." Trerice, 209 Cal.App.3d at 883, 257 Cal.Rptr. 338 (citations omitted); Mattern, 532 A.2d at 86.

Plaintiff's intentional infliction of emotional distress claim is based on the allegation that an MBNA employee called Plaintiff a "liar" on two occasions. (Davis Decl., ¶ 13.; Davis Depo., 229:9-21; 272:7-14.) [FN11] However, mere insults, without more, are insufficient as a matter of law to allege a claim of intentional infliction of emotional distress. See Cole v. Fair Oaks Fire Prot. Dist., 43 Cal.3d 148, 155, n. 7, 233 Cal.Rptr. 308, 729 P.2d 743 (1987) (citing inter alia, Rest.2d Torts, § 46, com. d.)). For example, in Yurick v. Superior Court (Antonetti), the California appellate court found that defendant's comments to plaintiff that he was senile and a liar were not "so egregiously outside the realm of civilized conduct as to give rise to actionable infliction of mental distress." 209 Cal.App.3d 1116, 1129, 257 Cal.Rptr. 665 (1989). The two accusations that Davis is a liar, no matter how unfounded they may be, are not so "extreme" as to be beyond the bounds of that normally tolerated in civilized society. See Yurick, 209 Cal.App.3d at 1129, 257 Cal.Rptr. 665. For these reasons, the Court finds there is no triable issue of fact that MBNA's conduct was outrageous such that Plaintiff's claim of intentional infliction of emotional distress fails as a matter of law.

FN11. As a result, Davis alleges he suffered emotional distress which was manifested in an upset stomach and "a little anxiety." He also sometimes would break out in sweats. (Davis Depo., 236:7-239:1.) However, Plaintiff's doctor stated that Plaintiff's upset stomach began prior to alleged discovery of the billing error in 1998 and that his stomach problems were associated with eating foods late at night, particularly "grease, pizza, pepper, and especially hot pepper, and pork." (Weickhardt Decl., Ex. O, 10:17-24.)

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Pulver v. Avco Financial Services, 182 Cal.App.3d 622, 227 Cal.Rptr. 491 [Cal. App. 2d Div. 1986]

Borrower brought action against lender which had allegedly made false reports to credit reporting agencies. The Superior Court entered judgment of dismissal. The Court of Appeal affirmed in part and reversed in part, holding that: [1] FCRA did not apply; [2] borrower's allegations raised jury issue as to whether action was barred by applicable statute of limitations, precluding dismissal; [3] borrower's allegation was insufficient to state claim for breach of covenant of good faith and fair dealing; [4] borrower's allegations sufficiently pleaded special damages to support her libel claim; and [5] borrower's allegation was insufficient to state claim for fraud. Lender had allegedly wrongfully "reported" to credit reporting agencies that borrower failed to pay her sister's debt. Borrower's allegation that she suffered severe emotional distress after lender wrongfully reported to credit agency that she had failed to pay her sister's debt was sufficient to state claim for intentional infliction of emotional distress. Although lender's report to credit reporting agencies regarding borrower's failure to pay her sister's debt was not defamatory on its face, borrower's allegations that as result of lender's report she was denied credit, suffered permanent damage to her credit rating, sustained economic damage and incurred loss of earnings and earning capacity sufficiently pleaded special damages to support borrower's libel claim. Borrower's allegation that statements made by lender to credit reporting agencies caused harm to her credit rating stated cause of action for slander.

David A. Szwak

Postby David A. Szwak » Sun Dec 04, 2005 9:18 am

Showalter v. Chase Manhattan/Providian
Slip Copy, 2005 WL 2000943
N.D.Cal.,2005.

The elements of the cause of action for intentional infliction of emotional distress are as follows: (1) the defendant engaged in extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, severe emotional distress to the plaintiff; (2) the plaintiff actually suffered severe or extreme emotional distress and (3) the outrageous conduct was the actual and proximate cause of the emotional distress. To be outrageous, conduct must be "so extreme as to exceed all bounds of that usually tolerated in a civilized community." Cervantez v. J.C. Penney Co., 24 Cal.3d 579, 593, 156 Cal.Rptr. 198, 595 P.2d 975 (1979).

David A. Szwak

Showalter

Postby David A. Szwak » Sun Dec 04, 2005 9:18 am

Plaintiff has not made sufficient allegations of outrageous conduct. The complaint merely makes a conclusory statement that "defendants' conduct was intentional, outrageous, malicious and done with ill will with the intent of causing Plaintiff to suffer humiliation, mental anguish and emotional and physical distress" (Compl.21). The factual allegations in the complaint do not support this conclusion. With regard to MBNA, plaintiff alleged that defendant continued to report debt after receiving notice of dispute. This alleged conduct does not meet the definition of extreme and outrageous conduct. Plaintiff also alleged that MBNA began "harassing Plaintiff into paying debt that was not his." This alleged fact, however, is irrelevant to the analysis, as the plaintiff does not bring a claim against MBNA for violating duties with regard to debt collecting; plaintiff only brings a claim against MBNA for violating duties relating to furnishing credit information. With regard to Chase, plaintiff only alleges that defendants continued to report false and/or inaccurate information to credit agencies. Again, this conduct does not meet the definition of extreme and outrageous conduct.
Defendants also contends that the intentional infliction claim is preempted with regard to the FCRA claims. Having decided that the alleged facts do not support a claim of intention infliction of emotional distress, this order declines to decide this issue. Notably, plaintiff, in his opposition to defendants' motion to dismiss, has not attempted to show how his complaint proves a set of facts to support a claim of intentional infliction of emotional distress. This order holds that plaintiff has failed to state a claim of intentional infliction of emotion distress and dismisses the claim with leave to amend.


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