Maria R., et al. v. William Nulick, et al.

Filing 30

ORDER signed by District Judge John A. Mendez on 5/11/2016 GRANTING 26 Motion to Dismiss the tenth and eleventh causes of action WITH LEAVE TO AMEND; DENYING 26 Motion to Dismiss all other causes of action; GRANTING the plaintiffs twenty days to file an amended complaint curing the defects identified in the tenth and/or eleventh causes of action; ORDERING the defendants to file a responsive pleading twenty days thereafter; ADVISING the plaintiffs that a failure to cure the defects identified in this Order may be grounds for dismissal of those claims without further leave to amend; SANCTIONING Defendants' counsel $100.00, to be paid within five days, for exceeding the page limit re 28 Reply as outlined in the Order re Filing Requirements (ECF 19-1). (Michel, G.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARIA R., an individual; KARI
R., an individual; VICKY P.,
an individual; NATASHA P., an
individual,

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Plaintiffs,
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No. 1:15-cv-01378-JAM-EPG

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS AND/OR STRIKE

v.
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WILLIAM NULICK, an
individual; TULARE COUNTY
SHERIFF, a California
governmental entity; COUNTY
OF TULARE, a California
governmental entity; and DOES
1 to 50, inclusive,

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Defendants.
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Tulare County Sheriff’s Deputy and defendant William Nulick

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(“Nulick”) allegedly exploited his position as a police officer

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by sexually assaulting plaintiffs Maria R. (“Maria”), Kari R.

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(“Kari”), Vicky P. (“Vicky”), and Natasha P. (“Natasha”)

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(collectively “Plaintiffs”).

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Nulick’s employers, defendants County of Tulare (“Tulare”) and

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Tulare County Sheriff (“Sheriff”) (collectively “Defendants”) are

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vicariously liable for Nulick’s abuse and subsequent efforts to

At issue in this motion is whether

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cover-up his wrongdoing.

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Plaintiffs’ complaint pursuant to Federal Rules of Civil

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Procedure (“Rule”) 12(b) and 12(f).

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below, the Court grants in part and denies in part the motion. 1

Defendants seek dismissal of

For the reasons stated

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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

The Court takes the following facts as true for purposes of
this motion.

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Defendants engaged in “continuous, ongoing and systematic

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abuse of a targeted class of persons [Plaintiffs] . . . who were

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all sexually violated and repeatedly threatened by Defendants.”

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Compl. ¶ 15.

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course of his duties as a Tulare County Sheriff and the Sheriff’s

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Department engaged in an “intentional cover-up designed to

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prevent Plaintiffs and other victims from feeling secure enough

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to come forward in their community and bring a lawsuit for the

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wrongdoings.”

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followed, and intimidated” by Defendants.

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Nulick sexually assaulted Plaintiffs during the

Id. ¶ 44.

Plaintiffs are still being “harassed,
Id. ¶ 18.

Vicky claims that Nulick forced her to watch pornography

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with him when Nulick came to Vicky’s home to look for her

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husband.

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Vicky were pulled over by Nulick for a routine traffic stop.

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¶ 19.

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their car and to the right of Nulick’s car and conducted a pat-

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down search during which he sexually groped both Plaintiffs’

Id. ¶ 16.

Additionally, in April 2013, Natasha and
Id.

Nulick separately took Natasha and Vicky to the back of

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for April 5, 2016.
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vaginas.

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Natasha and Vicky when he saw them on the street and by

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repeatedly parking outside their homes.

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Id. ¶ 22.

Following the incident, Nulick harassed

Id. ¶ 24.

On or about July 2013, Nulick executed an arrest warrant for

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Kari without probable cause or special permission just after

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midnight and outside the normal hours for executing an arrest

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warrant.

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bedroom, was woken by Nulick, who demanded that she come down to

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the station.

Id. ¶¶ 26-27.

Kari, who was asleep naked in her

Id. ¶¶ 27-28.

Nulick refused to hand Kari clothing

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so she could get dressed or to turn around to give Kari privacy

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while she dressed.

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naked body in front of Nulick, who watched her get dressed while

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biting his lip.

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pat-down where he pulled down Kari’s bra and sexually groped her

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vagina with his palms and fingers.

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Id.

Id. ¶ 29.

Kari was forced to expose her

After Kari was dressed, Nulick conducted a

Id. ¶ 30.

Maria was driving on or about August 2013 with her boyfriend

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when she was pulled over by Nulick.

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to the back of her car and to the front right of Nulick’s car.

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Id. ¶ 32.

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that Maria pull down her dress and bra to expose her breasts so

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that he could look for hidden weapons or drugs.

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Nulick then sexually groped Maria’s breasts, buttocks, and

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vagina.

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that he knew where she lived and propositioned that they have

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sex.

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for Nulick’s card.

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Id.

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Id. ¶ 31.

Nulick took Maria

Nulick, without reasonable suspicion, then demanded

Id. ¶ 35.

Id. ¶ 36.

Id. ¶ 33.

After Nulick groped Maria, he then told Maria

Maria asked what he was going to do and asked
Id. ¶ 37.

Nulick refused and let her go.

Following these incidents, Nulick and other officers engaged
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in intimidation tactics to cover up Nulick’s actions.

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For example, after Nulick heard that Natasha and Vicky were

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questioning the legality of his pat downs, Nulick “barged into

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the front door” of Natasha’s house and verbally threatened that

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Natasha and Vicky should remain quiet about how Nulick sexually

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assaulted them.

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Plaintiffs’ homes and shined a spotlight into the windows of

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Natasha, Vicky, and Kari’s homes to let them know he was there.

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Id. ¶¶ 16, 41.

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Id. ¶ 40.

Id. ¶ 39.

Nulick also parked outside of

Following Nulick’s arrest in October 2013, the Sheriff’s

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department continued to “conceal and cover-up its knowledge

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concerning past complaints made against Nulick.”

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Sheriff’s deputies have also “driven by Plaintiffs’ homes for the

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sole purpose of intimidating and harassing Plaintiffs.”

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44.

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Defendants even up to the time Plaintiffs filed the complaint.

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Id. ¶ 48.

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Id. ¶ 43.

Id. ¶

Plaintiffs’ safety and security were threatened by

In light of these intimidation efforts, Plaintiffs were

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fearful to report Nulick’s actions.

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constantly around Plaintiffs, making it difficult for Plaintiffs

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to report Defendants’ wrongdoing.

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recently that Plaintiffs, after meeting with counsel and learning

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of other victims, felt safe enough “to share their stories of

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sexual violation and departmental corruption.”

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Id. ¶ 49.

Id. ¶ 50.

Defendants were

It was only

Id. ¶ 46.

Plaintiffs’ complaint contains the following twelve causes

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of action: (1) assault; (2) battery; (3) sexual battery; (4)

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false imprisonment; (5) intentional infliction of emotional

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distress (“IIED”); (6) violation of civil rights 42 U.S.C. § 1983
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(“Section 1983”); (7) intentional violation of civil rights –

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Monell; (8) violations of civil code § 52.1; (9) violations of

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the Unruh Act; (10) negligent hiring and supervision;

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(11) negligent training; and (12) negligent infliction of

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emotional distress

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twelfth causes of action are brought against all defendants,

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while the tenth and eleventh causes of action are brought only

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against Sheriff and Tulare.

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(“NIED”).

The first through ninth and the

Id. at 21-25.

Sheriff and Tulare (collectively “Defendants”) now move to

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dismiss and/or strike Plaintiffs’ complaint (Doc. #26).

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Defendants move to dismiss all causes of action pursuant to Rule

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12(b)(6) because Plaintiffs failed to file the case within the

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applicable statute of limitations.

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Defendants move to dismiss all causes of action because the

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claims are time-barred pursuant to the California Government Tort

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Claims Act (“Tort Claims Act”).

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move to dismiss the ninth cause of action for violation of the

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Unruh Act.

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tenth and eleventh causes of action pursuant to Rule 12(b)(6)

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because there is no statutory basis for these claims or,

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alternatively, to strike one of the two causes of action pursuant

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to Rule 12(f) because they are duplicative.

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Fifth, Defendants seek dismissal of the twelfth cause of action

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for failure to state a claim upon which relief can be granted.

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Id. at 14-15.

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#27).

Id. at 12-13.

Mot. at 5-10.

Id. at 11.

First,

Second,

Third, Defendants

Fourth, Defendants move to dismiss the

Id. at 13-14.

Plaintiffs oppose the motion in its entirety (Doc.

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II.

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A.

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OPINION

Analysis
1.

Statute of Limitations

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Defendants move to dismiss the entire case on the basis that

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the complaint was filed after the two-year statute of limitations

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expired on all of the causes of action.

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argue that Natasha’s allegations that Nulick “verbally threatened

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and intimidated” her in the “months following” her attack are not

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actionable because they are conclusory and because verbal

Mot. at 6-8.

Defendants

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harassment is insufficient to state a cause of action under

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Section 1983.

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delayed discovery rule does not apply in this case because

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Plaintiffs “had reason to suspect a factual basis for a claim at

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the moment of the alleged physical batteries.”

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Lastly, Defendants argue that the Court should refuse to apply

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the equitable tolling doctrine because the alleged reasons for

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failing to file the complaint within the statute of limitations

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are “bare assertions” that do not specify “what specific

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statements or acts constituted the threats to their safety and

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security.”

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Id. at 7-8.

Defendants further argue that the

Id. at 9.

Id. at 9-10.

In opposition, Plaintiffs argue that they have sufficiently

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alleged that Defendants engaged in a “pattern of systematic and

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continuous abuse preventing [Plaintiffs’] ability to come

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forward” and assert their claims against the Defendants.

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3.

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felt safe coming forward and learned Defendants could be

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responsible for Nulick and Defendants’ agents/employees’

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conduct.”

Opp. at

Plaintiffs assert that it was not until May 2015 when “they

Id.

Thus, the delayed discovery rule should apply and
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the date of accrual should be May 2015.

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Alternatively, Plaintiffs argue that the statute of limitations

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should be equitably tolled given that intimidation was used to

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prevent Plaintiffs from filing their claims.

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Id. at 4.

Id. at 5-6.

In civil rights cases such as this one, state law determines

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the length of the statute of limitations period and federal law

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determines when a claim accrues.

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Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008).

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date on which the statute of limitations begins to run; under

Lukovsky v. City & Cty. of San
“Accrual is the

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federal law, a claim accrues when the plaintiff knows or has

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reason to know of the injury which is the basis of the action.”

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Id.

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applicable statute of limitations for all of the claims in this

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case is two years.

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2015, the date of accrual must be after September 9, 2013, in

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order for the claims to survive Defendants’ challenge.

Defendants allege, and Plaintiffs do not contest, that the

Since the Complaint was filed on September 9,

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Though Defendants are correct that some instances of

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Nulick’s alleged sexual assaults occurred before September 9,

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2013, the Complaint also alleges significant and different

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misconduct after this alleged abuse.

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alleges that Nulick “in the months following” the assault on her

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barged into her door and threatened her.

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the Plaintiffs allege that Nulick harassed them on the street

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after the assaults and would park outside their homes.

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Even after Nulick’s arrest in October 2013, Defendants allegedly

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undertook efforts to cover up Nulick’s actions and to intimidate

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Plaintiffs into dropping their lawsuit.

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Plaintiffs specifically allege that even up until the date of
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For example, Natasha

Compl. ¶ 40.

All of

Id. ¶ 41.

Id. ¶¶ 43-44.

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filing the Complaint, “Defendants would continue to prey on

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Plaintiffs and threatened their safety and security.”

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Read as a whole, the Complaint clearly alleges plausible

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wrongdoing that accrued after September 9, 2013.

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Id. ¶ 48.

Defendants argue that the alleged efforts by County to

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conceal and cover up Nulick’s conduct are not actionable under

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Section 1983 because Plaintiffs failed to allege that they were

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deprived of a right.

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Circuit cases for the proposition that a Section 1983 claim

Mot. at 8.

Defendants cite two Seventh

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requires allegations of a conspiracy and a deprivation of rights.

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Id.

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they were, the Court finds that Plaintiffs have met their burden

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of alleging that they were deprived of a constitutional right.

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Plaintiffs allege that “Defendants were acting under color of law

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and authority in violating Plaintiffs’ constitutional

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rights . . .

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Plaintiffs also specifically allege that Defendants violated

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their Fourth Amendment rights to be free from unreasonable

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searches and seizures when Defendants “intentionally intruded

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within Plaintiffs’ intimate space by means of improper and

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unwanted touching and forcible sexual assault in the absence of

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probable cause.”

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proposed requirement that Plaintiffs plead that they were

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deprived of their rights in order to raise a plausible Section

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1983 claim. For these reasons,

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based on Plaintiffs’ alleged failure to abide by the applicable

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statute of limitations is denied.

While these cases are not binding on this Court, even if

under the Fourth Amendment.”

Id. ¶ 102.

Compl. ¶ 98.

These allegations meet Defendants’

Defendants’ motion to dismiss

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2.

Government Claims Act

Defendants separately move to dismiss all of Plaintiffs’

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state law causes of actions on the basis that Plaintiffs did not

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present their claims to Defendants within six months of the time

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the cause of action accrued, as is required by the Government

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Claims Act.

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argue that the delayed discovery rule applies and that their

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claims were appropriately submitted within six months of the time

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that Plaintiffs discovered their causes of action.

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Mot. at 11; see Cal. Gov’t Code § 911.2.

Plaintiffs

Opp. at 4.

Plaintiffs have pleaded that they properly complied with the

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Government Claims Act.

Paragraph 54 of the complaint clearly

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states that “Plaintiffs timely served Defendants with a claim for

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damages pursuant to Government Code Section 910 on June 5, 2015.

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A response was received by risk management for Defendants

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returning them without action.”

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causes of action may have accrued prior to six months before June

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5, 2015, this Court cannot reach such a conclusion without

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further factual development.

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the Court is precluded from engaging in such factual development

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and, instead, must assume that all allegations made in the

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complaint are true, i.e., Plaintiffs only bear the responsibility

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to plead a plausible claim.

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U.S. 544,570 (2007) (A plaintiff must plead “enough facts to

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state a claim to relief that is plausible on its face.”).

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Plaintiffs have met this burden, and the Court therefore denies

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Defendants’ motion to dismiss the state law claims due to an

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alleged failure to comply with the Government Claims Act.

Compl. ¶ 54.

While all of the

At this stage of the proceedings

Bell Atlantic Corp. v. Twombly, 550

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9

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3.

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Unruh Act

Plaintiffs’ ninth cause of action for violations of the

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Unruh Act alleges that Defendants “denied full and equal

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accommodations, advantages, facilities, privileges and/or

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services to Plaintiffs” because of Plaintiffs’ “sex, race,

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ancestry, and/or national origin.”

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Defendants seek dismissal of this claim for two reasons.

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Defendants argue that they cannot be liable under the Unruh Act

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because that law applies only to “business establishments” and

Compl. ¶¶ 127-128.
First,

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Sheriff and Tulare are not business establishments.

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13.

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“any conduct preventing [them] from accessing public

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accommodations,” which is also required by the Unruh Act.

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at 13.

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“member of an establishment” that discriminated against them

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based on their sex in a way that denied them equal

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accommodations.

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Mot. at 12-

Second, Defendants argue that Plaintiffs fail to allege

Id.

Plaintiffs argue in their opposition that Nulick was a

Opp. at 7.

The Unruh Act entitles all individuals to “full and equal

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accommodations, advantages, facilities, privileges, or services

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in all business establishments of every kind whatsoever.”

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Civ. Code § 51(b) (emphasis added).

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entities are covered by the Unruh Act is well-litigated.

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Cal.

Whether and when public

Some courts have exempted public entities from Unruh Act

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liability.

However, these cases do not stand for the categorical

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rule proposed by Defendants that “public entities are not

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considered business entities under the Act.”

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cases cited by Defendants only deal with state prisons or

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legislative acts, not actions taken by counties or law
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Mot. at 5.

The

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enforcement agencies.

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City of Anaheim, 187 Cal.App.4th 734, 765 (2010) (“Because the

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terms of the Unruh Act expressly apply to business

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establishments, we see no room for its application to the city's

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legislative action here.”); Carter v. City of Los Angeles, 224

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Cal.App.4th 808, 825 (2014) (“A state prison is not a business

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establishment for purposes of the act unless it engages in

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behavior involving sufficient businesslike attributes.”);

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Taormina v. Cal. Dep’t of Corr., 946 F. Supp. 829, 834 (S.D. Cal.

See, e.g., Qualified Patients Ass'n v.

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1996) (stating that “a prison does not qualify as a business

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entity under Cal. Civ. Code section 51”); Gaston v. Colio, 883 F.

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Supp. 508 (S.D. Cal. 1995) (“[P]laintiffs cite no authority, nor

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any reasonable argument, that a state prison qualifies as a

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‘business establishment’ for the purposes of the statute.”).

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Defendants have provided the Court with no cases that are

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directly on point to the case presently before the Court.

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A more compelling analysis can be found in Gibson v. Cty. of

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Riverside, 181 F. Supp. 2d 1057, 1090 (C.D. Cal. 2002), in which

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the District Court concluded that “persons and entities who are

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not themselves business establishments are subject to” the Unruh

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Act.

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clearly states that discrimination is barred “in all business

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establishments,” not by all business establishments.

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(emphasis in original).

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only defines who is protected and where they shall be free from

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discrimination; it does not define--and limit-­what persons are

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liable for such discrimination.”

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by the Gibson court, “whoever denies . . . or makes any

The court pointed out that the text of the Unruh Act

Id.

The court explained that “the provision

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Id.

Moreover, as pointed out

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discrimination or distinction contrary to Section 51 . . .

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liable.”

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original)).

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action whenever “any person or group of persons is engaged in

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conduct of resistance to the full enjoyment of any of the rights

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hereby secured.”

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original)).

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“the term ‘business establishments’ must properly be interpreted

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in the broadest sense reasonably possible.”

is

Id. (citing Cal. Civ. Code § 52(a) (emphasis in
And Section 52(c) describes how to bring a civil

Id. (citing Cal. Civ. Code § 52(c) (emphasis in

This statutory language supports the conclusion that

Harrison v. City of

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Rancho Mirage, 243 Cal.App.4th 162, 173 (2015) (citing Curran v.

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Mount Diablo Council of the Boy Scouts, 17 Cal.4th 670, 689

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(1998)).

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Several courts have concluded that public entities may be

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held liable for Unruh Act violations even when they are not

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strictly considered to be business entities.

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“public schools are business establishments within the meaning of

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the Unruh Act.”

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Unified Sch. Dist., 964 F. Supp. 1369, 1388 (N.D. Cal. 1997);

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Walsh v. Tehachapi Unified Sch. Dist., 827 F. Supp. 2d 1107, 1123

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(E.D. Cal. 2011) (“[S]everal federal courts have concluded that a

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plaintiff's allegation that a public school failed to adequately

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respond to his or her complaints of harassment gives rise to a

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cognizable claim under the Unruh Civil Rights Act. This Court

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follows the lead of those courts.”).

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court has similarly concluded that a county’s legislative action

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is also subject to the Unruh Act.

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2007 WL 294132, at *14 (Cal. Ct. App. Feb. 2, 2007) (“In the

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circumstances here, which involve claims of discrimination in

For example,

Nicole M. By & Through Jacqueline M. v. Martinez

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At least one lower state

Travis v. Cty. of Santa Cruz,

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housing, we believe the County's Ordinance is subject to the

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Unruh Act.”).

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In light of the compelling textual analysis of the Gibson

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court and the multiple cases finding that public entities may be

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liable for Unruh Act violations, this Court concludes that

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Defendants are not exempt from liability for violations of the

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Unruh Act based on Defendants’ argument that “Plaintiffs do not

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allege conduct by any business establishment.”

Mot. at 13.

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The Court also disagrees with Defendants’ argument that

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Plaintiffs were required but failed to adequately plead that

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they were subject to intentional discrimination in public

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accommodations.

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that they were denied “full and equal accommodations.”

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¶ 127

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actions that prevent access to places of public accommodations.

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The Act also establishes that all individuals are entitled to

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equal privileges and services.

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allegations set forth in the complaint adequately describe

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multiple instances in which Defendants failed to provide equal

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services to Plaintiffs because of Plaintiffs’ sex and/or

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ethnicity.

22

motion to dismiss the Unruh Act cause of action.

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Mot. at 13.

Plaintiffs specifically pleaded
Compl.

and the Unruh Act does not simply bar discriminatory

Cal. Civ. Code § 51.

The

For all these reasons, the Court denies Defendants’

4.

Negligent Hiring and Supervision; Negligent
Training

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25

Plaintiffs’ tenth cause of action for negligent hiring and

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supervision alleges that Defendants “failed to use reasonable

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care in hiring and supervising their employees . . . creat[ing]

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a dangerous environment for the general public, including
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1

Plaintiffs.”

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action for negligent training alleges that Defendants “neither

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had in place nor implemented an adequate system or procedure for

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investigating, training, and supervising employees . . . to

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prevent or remedy sexual abuse of its citizens.”

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Compl. ¶ 137.

Plaintiffs’ eleventh cause of

Id. ¶ 151.

Defendants argue that the tenth and eleventh causes of

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action should be dismissed because they are direct liability

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claims and “there is no statutory basis for declaring a public

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entity liable for negligence in its training, hiring, and

10

supervision practices.”

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Defendants move to strike one or both of the causes of action

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because they are duplicative.

13

motion and argue that Defendants have an established duty to

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protect Plaintiffs and “to not expose them to the danger of

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sexual abuse and threats [or] intimidation by its employees.”

16

Opp. at 6.

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this duty was breached, which is a factual issue that cannot be

18

decided at this stage of the proceeding.

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Mot. at 13-14.

Id. at 14.

Alternatively,

Plaintiffs oppose the

Plaintiffs contend that the only issue is whether

Id.

California case law makes it clear that public entities are

20

not directly liable for negligent hiring, supervision, or

21

training.

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252 (2007) (“We find no relevant case law approving a claim for

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direct liability based on a public entity's allegedly negligent

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hiring and supervision practices.”); Shoval v. Sobzak, 2009 WL

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2780155, at *4 (S.D. Cal. Aug. 31, 2009) ("California courts have

26

repeatedly held that there is no statutory basis for direct

27

claims against a public entity for negligent hiring and

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supervision practices.").

de Villers v. Cty. of San Diego, 156 Cal.App.4th 238,

Yet, as this Court pointed out in
14

1

Avila v. California, 2015 WL 6003289, at *6 (E.D. Cal. Oct. 14,

2

2015), “public entities can be held vicariously liable for the

3

conduct of their employees when committed within the scope of

4

their employment.”

5

specifically states that a “public entity is liable for injury

6

proximately caused by an act or omission of an employee of the

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public entity within the scope of his employment if the act or

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omission would, apart from this section, have given rise to a

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cause of action against that employee or his personal

10
11

representative.”

(emphasis added).

California law

Cal. Gov. Code § 815.2.

Plaintiffs clearly allege that Defendants are vicariously

12

liable pursuant to Section 815.2.

Compl. ¶¶ 134, 146

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(“Plaintiffs also contend that Defendants are vicariously liable

14

for the tortious sexual acts of Defendant Nulick flowing from his

15

employment with Defendants.”).

16

proper claim for negligent hiring or supervision” based on

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vicarious liability against a public entity, the plaintiff “must

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identify, if not join, the specific employee whose negligence is

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alleged and the specific negligent conduct underlying the claim.”

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Avila, 2015 WL 6003289, at *6.

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this pleading requirement and the motion to dismiss the tenth and

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eleventh causes of action is granted.

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be able to cure this defect, the Court dismisses these two causes

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of action without prejudice and with leave to amend.

25

Capital, LLC v. Aspeon Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)

26

(“Dismissal with prejudice and without leave to amend is not

27

appropriate unless it is clear on de novo review that the

28

complaint could not be saved by amendment.”).

However, “in order to state a

Plaintiffs have not satisfied

15

Because Plaintiffs might

Eminence

1
2

5.

Negligent Infliction of Emotional Distress

Defendants move to dismiss Plaintiffs’ twelfth cause of

3

action for negligent infliction of emotional distress (“NIED”),

4

arguing that Plaintiffs have not adequately pleaded facts that

5

would support either a bystander or non-bystander NIED claim.

6

Mot. at 7-8.

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employer may be vicariously liable for the torts of its

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employees and that Plaintiffs have therefore pled sufficient

9

facts to state an NIED claim.

10

Plaintiffs oppose dismissal by arguing that an

Opp. at 7.

NIED is not an independent tort in California, but a subset

11

of negligence.

12

(1992).

13

“traditional elements of duty, breach of duty, causation, and

14

damages.”

15

(N.D. Cal. Sept. 2, 2014) (“The elements of a claim of negligent

16

infliction of emotional distress are: (1) the defendant engaged

17

in negligent conduct; (2) the plaintiff suffered serious

18

emotional distress; and (3) the defendants' negligent conduct was

19

a cause of the serious emotional distress”).

20

Burgess v. Superior Court, 2 Cal.4th 1064, 1072

As such, Plaintiffs must adequately plead the

Id.; Hall v. Apollo Grp., Inc., 2014 WL 4354420, at *6

There are two possible theories of liability in an NIED

21

cause of action: the bystander theory and the direct victim

22

theory.

23

relief under a bystander theory because they allege that they

24

were directly harmed, not harmed due to witnessing another’s

25

injury.

Instead, Plaintiffs seek relief under the direct victim

26

theory.

In direct victim cases, a duty may be imposed by law, be

27

assumed by the defendant, or exist by virtue of a special

28

relationship.

Burgess, 2 Cal.4th at 1071.

Plaintiffs do not seek

Potter v. Firestone Tire & Rubber Co., 6 Cal.4th
16

1

965, 985 (1993); Burgess, 2 Cal.4th at 1073 (liability for NIED

2

can be imposed for “a breach of duty owed the plaintiff that is

3

assumed by the defendant or imposed on the defendant as a matter

4

of law, or that arises out of a relationship between the two”).

5

Additionally, “public policy considerations are relevant in

6

determining whether a particular plaintiff may recover damages

7

for emotional distress.”

8

Cal.3d 868, 885 (1991).

9
10
11
12
13
14

Christensen v. Superior Court, 54

[I]n considering the existence of ‘duty’ in a given
case several factors require consideration including
the foreseeability of harm to the plaintiff, the
degree of certainty that plaintiff suffered injury,
the closeness of the connection between the
defendant's conduct and the injury suffered, the moral
blame attached to the defendant's conduct, the policy
of preventing future harm, the extent of the burden to
the defendant and consequences to the community of
imposing a duty to exercise care with resulting
liability for breach, and the availability, cost, and
prevalence of insurance for the risk involved.”

15
16
17

Id. at 885-86 (1991) (citations omitted).
Here, Defendants seek dismissal of this cause of action

18

solely for the reason that “Plaintiffs do not allege any . . .

19

factual circumstances” that may give rise to a direct liability

20

NIED claim, including the “negligent breach of a duty arising out

21

of a preexisting relationship.”

22

Plaintiffs have clearly alleged that Defendants had a special

23

relationship with Plaintiffs and that Nulick was responsible for

24

maintaining this relationship.

25

allege that a duty may have been assumed by Defendants.

26

159-161.

27

concluding that a duty may be imposed in this case.

28

emotional harm caused by Defendants’ actions was foreseeable and

Mot. at 14-15.

Compl. ¶ 159.

However,

Plaintiffs further
Id. ¶¶

Additionally, the Christensen factors weigh in favor of

17

The alleged

1

certain, the alleged actions are morally blameworthy, and the

2

possibility of preventing future harm is compelling.

3

reasons, the Court denies Defendants’ motion to dismiss the NIED

4

cause of action.

For these

5
6
7

III.

ORDER

For the reasons set forth above, the Court GRANTS

8

Defendants’ motion to dismiss the tenth and eleventh causes of

9

action with leave to amend and DENIES Defendants’ motion to

10

dismiss the other causes of action.

11

the defects identified in their tenth and/or eleventh causes of

12

action, Plaintiffs’ amended complaint must be filed within twenty

13

days from the date of this Order.

14

pleadings are due within twenty days thereafter.

15

advises that failure to cure the defects identified in this Order

16

may be grounds for dismissal of those claims without further

17

leave to amend.

18

WL 5299180, at *6 (E.D. Cal. 2013).

If Plaintiffs desire to cure

Defendants’ responsive
The Court

Dick v. Am. Home Mortgage Servicing, Inc., 2013

19

Finally, Defendants’ reply brief is two pages longer than

20

the page limit allowed by the Court (Doc.#19-1). In accordance

21

with this Order Re Filing Requirements, Defendants counsel is

22

sanctioned in the amount of $100 which is to be paid within five

23

days of the date of this Order.

24
25

IT IS SO ORDERED.
Dated: May 11, 2016

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