Guilarte v. Monti et al

Filing 44

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT MONTI'S MOTION TO DISMISS; VACATING HEARING. To the extent the motion seeks dismissal of the Second, Third, Fourth and Fifth Causes of Action as alleged against Monti, the motion is granted. To the extent the motion seeks dismissal of the First Cause of Action as alleged against Monti, the motion is denied. Signed by Judge Maxine M. Chesney on January 3, 2017. (mmclc1, COURT STAFF) (Filed on 1/3/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EDUARDO GUILARTE,
Plaintiff,

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v.

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ANDREA MONTI, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 16-cv-01726-MMC
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT
MONTI'S MOTION TO DISMISS;
VACATING HEARING
Re: Dkt. No. 32

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Before the Court is defendant Andrea Monti's ("Monti") "Motion . . . to Dismiss

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Plaintiff's Second Amended Complaint," filed September 14, 2016. Plaintiff Eduardo

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Guilarte has not filed opposition.1 Having read and considered the papers filed in support

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of the motion, the Court finds the matter suitable for decision on the moving papers,

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VACATES the hearing scheduled for January 6, 2017, and rules as follows:

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1. Contrary to Monti's argument, the First Cause of Action, titled "Slander Per Se,"

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is not subject to dismissal, as the alleged statements by Monti on which plaintiff relies

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reasonably could be understood as accusing plaintiff of committing criminal trespass.

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See Cal. Penal Code § 602(l). Additionally, plaintiff has sufficiently cured the deficiency

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identified in the Court's order of August 2, 2016, specifically, by alleging Monti was out of

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the state on "vacation" for "at least three days" during the applicable one-year limitations

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period. (See Second Amended Complaint ("SAC") ¶¶ 9-12, Exs. B-C); 2 Cal. Civ. Proc.

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The deadline for plaintiff to file opposition was December 2, 2016. (See Order,
filed November 29, 2016.)
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Plaintiff alleges the assertedly slanderous statements were made "[o]n or about
April 3, 2015" (see SAC ¶¶ 22-23), and the initial complaint was filed on April 6, 2016.

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Code § 351 (providing that "if, after [a] cause of action accrues, [the defendant] departs

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from the State, the time of his absence is not part of the time limited for the

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commencement of the action"); Filet Menu, Inc. v. Cheng, 71 Cal. App. 4th 1276, 1283

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(1999) (holding § 351's tolling provisions applicable only where "out-of-state travel [is]

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unrelated to interstate commerce," such as "vacation trips").

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2. The Second Cause of Action, titled "False Light," is subject to dismissal. As

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explained in the Court's prior order, where, as here, a false light claim is based solely on

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allegations supporting a claim for slander, the false light claim is "superfluous and should

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be dismissed." See Kappellas v. Kaufman, 1 Cal. 3d 20, 35 n.16 (1969).

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3. The Third Cause of Action, titled "False Imprisonment," is subject to dismissal,

United States District Court
Northern District of California

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as plaintiff has failed to cure the deficiency identified in the Court's prior order,

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specifically, a failure to allege facts to support a finding that Monti deprived plaintiff of his

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"personal liberty" by "unlawful means," i.e., "by means of physical force, threat of force or

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of arrest, confinement by physical barriers, or by means of any other form of

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unreasonable duress." See Fermino v. Fedco, Inc., 7 Cal. 4th 701, 715 (1994) (setting

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forth elements of tort of false imprisonment).

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4. The Fourth Cause of Action, titled "Intentional Infliction of Emotional Distress,"

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is subject to dismissal, as plaintiff has failed to cure the deficiency identified in the Court's

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prior order, specifically, a failure to allege facts to support a finding that Monti engaged in

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conduct "so outrageous in character and so extreme in degree as to go beyond all

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possible bounds of decency and to be regarded as atrocious and utterly intolerable in a

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civilized community." See Melorich Builders, Inc. v. Superior Court, 160 Cal.App.3d 931,

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936 (1984).

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5. The Fifth Cause of Action, titled "Negligent Infliction of Emotional Distress," is

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subject to dismissal, given plaintiff's failure to cure the deficiency identified in the Court's

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prior order, specifically, a failure to allege facts to support a finding that Monti owed

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plaintiff a duty. See Burgess v. Superior Court, 2 Cal. 4th 1064, 1072 (1992) (holding

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"negligent causing of emotional distress is not an independent tort, but the tort of
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negligence"; requiring plaintiff alleging entitlement to damages based on "negligent

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causing of emotional distress" to establish all elements of negligence claim, including

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"duty"). As noted in the Court's prior order, a duty did not arise from Monti's alleged

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failure to honor plaintiff's ticket. See North American Chemical Co. v. Superior Court, 59

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Cal. App. 4th 764, 774 (1997) (citing "general rule" that "where the 'negligent'

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performance of a contract amounts to nothing more than a failure to perform the express

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terms of the contract, the claim is one for breach of contract, not negligence").
CONCLUSION

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United States District Court
Northern District of California

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For the reasons stated above, Monti's motion to dismiss is hereby GRANTED in
part and DENIED in part, as follows:
1. To the extent the motion seeks dismissal of the Second, Third, Fourth and Fifth
Causes of Action as alleged against Monti, the motion is GRANTED.
2. To the extent the motion seeks dismissal of the First Cause of Action as
alleged against Monti, the motion is DENIED.
IT IS SO ORDERED.

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Dated: January 3, 2017
MAXINE M. CHESNEY
United States District Judge

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