Vaupen v. Branston

Filing 48

ORDER by Magistrate Judge Donna M. Ryu granting 39 Motion to Dismiss with Leave to Amend. (dmrlc2, COURT STAFF) (Filed on 5/10/2018)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

KIMBERLY VAUPEN,
Plaintiff,

8
v.

9
10

PHIL BRANSTON,

ORDER RE DEFENDANT'S MOTION
TO DISMISS FIRST AMENDED
COMPLAINT
Re: Dkt. No. 39

Defendant.

11
United States District Court
Northern District of California

Case No. 17-cv-05463-DMR

12

Defendant Phil Branston moves to dismiss Plaintiff Kimberly Vaupen’s claims for

13

negligence per se, negligent infliction of emotional distress, and intentional infliction of emotional

14

distress, as well as her request for punitive damages in the First Amended Complaint (“FAC”).

15

[Docket No. 39]. In the alternative, Branston moves for a more definite statement of these claims.

16

Vaupen opposes. [Docket No. 40]. This matter is suitable for resolution without a hearing. Civ.

17

L.R 7-1(b). For the reasons stated below, the court grants Branston’s motion to dismiss in part,

18

with leave to amend. The motion for a more definite statement is denied as moot.

19

I.

BACKGROUND
Vaupen makes the following allegations in the FAC, all of which are taken as true for

20
21

purposes of this motion.1 On March 1, 2016 at 6:00 p.m., Vaupen was running southbound on the

22

right side of the Iron Horse Regional Trail in Danville, California. FAC, ¶ 10 [Docket No. 38].

23

Branston was riding a bicycle in Vaupen’s lane of travel without any bright lights, and on the

24

wrong side of the trail, i.e., the left lane instead of the right lane. He was traveling at a “high and

25

unreasonable rate of speed” when he collided with her, causing her to violently fall face first into

26
1

27
28

When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all
of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(per curiam) (citation omitted)

1

the asphalt. FAC, ¶ 10. As a result, Vaupen sustained personal injuries including the loss of her

2

front tooth, deep lacerations and bruises to her face, lip, and hands, and torn ligaments. Id.

3

Vaupen received several stitches to the inside and outside of her upper lip. She also had two

4

cortisone injections in her left hand and underwent several months of physical therapy to retrain

5

her left hand. Id. She still continues to experience pain when she eats, and has stiffness in her left

6

hand when performing basic activities, such as lifting or closing her hand. Id.
Following the collision, Branston did not call for emergency assistance or notify the police,

7
8

nor did he provide his name or contact information to Vaupen, the emergency team that arrived to

9

assist her, or any persons that stopped to help. Id., ¶ 12. Vaupen eventually located Branston by

10

posting about the incident on nextdoor.com, a social media website. Id., ¶ 13.

United States District Court
Northern District of California

11

According to Vaupen, Branston gave a statement to the police about the incident on March

12

6, 2016, in which he presented conflicting accounts of the collision.2 Id. He initially stated that he

13

was cycling northbound in the middle of the Iron Horse Trail when his bike light illuminated a

14

jogger on the trail. Id. At that point, he realized that he was going to collide with the jogger, but

15

could not “alter his course.” Id. Branston later stated that he “did not notice the jogger prior to the

16

collision.” Id.

17

On September 20, 2017, Vaupen filed this lawsuit alleging claims for negligence and

18

negligence per se. Compl. [Docket No. 1]. Branston moved to dismiss the negligence per se

19

claim, as well as Vaupen’s requests for punitive damages and attorneys’ fees. [Docket No. 9]. On

20

January 26, 2018, the court granted Branston’s motion to dismiss with leave to amend the

21

negligence per se claim only. Order Granting Defendants’ Motion to Dismiss with Leave to

22

Amend (“January 26, 2018 Order”) [Docket No. 36].
Vaupen filed a timely FAC alleging four state law claims: 1) negligence and recklessness;

23
24

2) negligence per se; 3) negligent infliction of emotional distress (“NIED”); and 4) intentional

25

infliction of emotional distress (“IIED”).3 The FAC also contains a request for punitive damages.

26
27

2

Vaupen did not attach a copy of Branston’s statement.

28

3

The FAC erroneously labels the IIED claim as the “third cause of action.”
2

Branston moves to dismiss the claims for negligence per se, NIED, and IIED, as well as

1
2

the request for punitive damages. [Docket No. 39].

3

II.

LEGAL STANDARD
A.

5

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal

6

sufficiency of the claims alleged in the complaint. Ileto v. Glock Inc., 349 F.3d 1191, 1199–200

7

(9th Cir. 2003). When reviewing a motion to dismiss for failure to state a claim, the court must

8

“accept as true all of the factual allegations contained in the complaint,” Erickson, 551 U.S. at 94

9

(citation omitted), and may dismiss the case “only where there is no cognizable legal theory or an

10

absence of sufficient facts alleged to support a cognizable legal theory.” Shroyer v. New Cingular

11
United States District Court
Northern District of California

4

Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citation and quotation marks omitted).

12

When a complaint presents a cognizable legal theory, the court may grant the motion if the

Motion to Dismiss

13

complaint lacks “sufficient factual matter to state a facially plausible claim to relief.” Id. (citing

14

Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A claim has facial plausibility when a “plaintiff pleads

15

factual content that allows the court to draw the reasonable inference that the defendant is liable

16

for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted).

17

B.

18

Federal Rule of Civil Procedure 12(e) provides that “a party may move for a more definite

Motion for Definite Statement

19

statement of a pleading . . . which is so vague or ambiguous that the party cannot reasonably

20

prepare a response.” Motions for a more definite statement are “viewed with disfavor” and are

21

rarely granted. Cellars v. Pac. Coast Packaging, Inc., 189 F.R.D. 575, 578 (N.D. Cal. 1999).

22

However, courts may require a more definite statement “when the pleading is so vague or

23

ambiguous that the opposing party cannot respond, even with a simple denial, in good faith or

24

without prejudice to himself.” Cellars, 189 F.R.D. at 578 (quotation and citation omitted).

25

C.

26

Under Federal Rule of Civil Procedure 15(a), leave to amend should be granted as a matter

Leave to Amend

27

of course, at least until the defendant files a responsive pleading. Fed. R. Civ. P. 15(a)(1). After

28

that point, Rule 15(a) provides generally that leave to amend the pleadings before trial should be
3

1

given “freely . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This policy is to be applied

2

with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir.

3

2003) (quotation omitted). In the absence of an “apparent” reason, such as undue delay, bad faith

4

or dilatory motive, prejudice to the opposing party, futility of the amendments, or repeated failure

5

to cure deficiencies in the complaint by prior amendment, it is an abuse of discretion for a district

6

court to refuse to grant leave to amend a complaint. Foman v. Davis, 371 U.S. 178, 182 (1962);

7

Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir. 1999).

8

III.

9
10

DISCUSSION
Branston moves to dismiss the claims for negligence per se, NIED, and IIED, as well as

the request for punitive damages.

United States District Court
Northern District of California

11

A.

12

“[T]he doctrine of negligence per se is not a separate cause of action, but creates an

Negligence Per Se

13

evidentiary presumption that affects the standard of care in a cause of action for negligence.”

14

Millard v. Biosources, Inc., 156 Cal. App. 4th 1338, 1353 n.2 (2007). “[A]n underlying claim of

15

ordinary negligence must be viable before the presumption of negligence of Evidence Code

16

section 669 can be employed.” Spencer v. DHI Mortg. Co., Ltd., 642 F. Supp. 2d 1153, 1162

17

(E.D. Cal. 2009) (citing Cal. Serv. Station & Auto Repair Ass’n v. Am. Home Assurance Co., 62

18

Cal. App. 4th 1166, 1178 (1998)). The evidentiary presumption arises if: (1) the defendant

19

violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused

20

death or injury to a person or property; (3) the death or injury resulted from an occurrence of the

21

nature the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering

22

the death or the injury to his or her person or property was one of the class of persons for whose

23

protection the statute, ordinance, or regulation was adopted. Cal. Evid. Code § 669; Jacobs

24

Farm/Del Cabo, Inc. v. W. Farm Serv., Inc., 190 Cal. App. 4th 1502, 1526 (2010).

25

The court dismissed the original negligence per se claim because the complaint failed to

26

identify the specific regulation, statute or local ordinance that Branston violated, and also failed to

27

allege that “Vaupen’s injuries resulted from the kind of occurrence that the statute, ordinance, or

28

regulation was designed to prevent.” January 26, 2018 Order at 4:25-5:6.
4

1

Vaupen’s amended negligence per se claim alleges that Branston violated California

2

Vehicle Code Section 21201(d)(1) (“Vehicle Code Section 21201”) and Ordinance 38 Section

3

409.8(a), (b), (f), (h), (i), (j)(1), (j)(2), and (j)(3) (“Ordinance No. 38”); that he violated Section

4

21201 and Ordinance No. 38 by riding a bicycle in the wrong lane at an unsafe speed; that Vaupen

5

was in the class of persons protected by Section 21201 and Ordinance No. 38; and that Branston’s

6

violation of Section 21201 and Ordinance No. 38 was a direct, legal, and proximate cause of

7

Vaupen’s injuries and damages. FAC, ¶¶ 25-27.

8
9

Branston argues that this claim remains insufficiently pleaded because the FAC does not
contain allegations explaining how Section 21201 and Ordinance No. 38 apply here. He also
contends that the FAC fails to identify the occurrences that Section 21201 and Ordinance No. 38

11
United States District Court
Northern District of California

10

were designed to prevent, nor does it explain why Vaupen falls in the class of people these laws

12

were designed to protect. Vaupen asserts that the claim is adequately pleaded because she has

13

identified a statute and ordinance, and explained how they apply throughout the FAC. She does

14

not respond to Branston’s remaining arguments.

15

The court finds that Vaupen has adequately pleaded her negligence per se claim to the

16

extent she bases it on Section 21201. The FAC alleges facts sufficient to show how Section 21201

17

applies to this incident. California Vehicle Code Section 21201(d)(1) provides that:

18

(d) A bicycle operated during darkness upon a highway, a sidewalk
where bicycle operation is not prohibited by the local jurisdiction, or
a bikeway, as defined in Section 890.4 of the Streets and Highways
Code, shall be equipped with all of the following:

19
20
21
22
23
24
25
26

(1) A lamp emitting a white light that, while the bicycle is in motion,
illuminates the highway, sidewalk, or bikeway in front of the
bicyclist and is visible from a distance of 300 feet in front and from
the sides of the bicycle.
Cal. Veh. Code § 21201(d)(1). California Streets and Highways Code Section 890.4 (“Section
890.4”) defines a “bikeway” as any “facilit[y] that provide[s] primarily for, and promote[s],
bicycle travel.” Cal. Sts. & High. Code § 890.4. Vaupen’s negligence per se claim “realleges and
incorporates” all prior allegations, including that (1) the accident occurred on a trail shared by

27
pedestrians and bicyclists, which could be reasonably construed for pleading purposes as a
28
5

1

“bikeway” under Section 890.4; (2) the bike Branston rode “did not have any bright lights” as

2

required by Section 21201(d)(1); and (3) had he been traveling at a reasonable speed, and had he

3

equipped the bicycle with a bike light, he would have seen Vaupen earlier and avoided a collision

4

with her. FAC, ¶ 11 at 3:11-4:3.
Vaupen need not allege additional facts showing what kinds of occurrences Section 21201

6

was designed to prevent, that Vaupen was in the class of persons it was designed to protect, or that

7

her injuries were the result of the kinds of occurrences the statute was designed to prevent,

8

because these facts are self-evident from the plain language of Section 21202 and the allegations

9

in the FAC. Section 21201 requires bicycles operated in darkness on bikeway to have a bike light

10

to illuminate cyclists to other persons on the bikeway such as pedestrians, and thus was designed

11
United States District Court
Northern District of California

5

to protect cyclists and pedestrians on trails at night. Cal. Veh. Code § 21201(d)(1). According to

12

the FAC, Vaupen was a pedestrian using a trail shared by cyclists such as Branston at night, which

13

therefore places her in the class of persons Section 21201 was designed to protect. FAC, ¶ 10.

14

The FAC also alleges that she sustained injuries when she collided with a cyclist (Branston) on a

15

trail at night. FAC, ¶ 10. Given the language of Section 21201, Vaupen adequately has pleaded

16

that her injuries were the kinds of occurrences Section 21201 were designed to prevent.

17

To the extent that Vaupen intends to base her negligence per se claim on a violation of

18

Ordinance No. 38, some aspects of this claim are adequately pleaded while others are not.

19

According to the FAC, Ordinance No. 38 provides in relevant part that it is “unlawful to ride or

20

operate any bicycle . . . at any place within the District . . . [i]n a negligent, unsafe or reckless

21

manner or in a way that endangers the life, limb, or property of any person or in violation of the

22

provisions of [Section 21201].” FAC, ¶ 26(a). It then sets forth a series of restrictions on where,

23

when, and how bicycles can travel on any District property. Id., ¶¶ 26(a) through (j).

24

To begin with, a basic pleading problem persists: the FAC still does not adequately

25

identify Ordinance No. 38 with sufficient specificity despite the court’s prior instruction. January

26

26, 2018 Order at 4:22-24. The only identifying information is the ordinance number and

27
28
6

1

section.4 If Vaupen intends on relying on a violation of Ordinance No. 38 as the basis for this

2

claim, she must identify the full title of Ordinance No. 38 in her next amended pleading.
However, assuming that Ordinance No. 38 is a regional park district ordinance that applies

3
4

to this incident, Vaupen need not allege additional facts showing what kinds of occurrences

5

Ordinance No. 38 was designed to prevent, that Vaupen was in the class of persons Ordinance No.

6

38 was designed to protect, or that her injuries were the result of the kinds of occurrences

7

Ordinance No. 38 was designed to prevent, because these facts are self-evident from the plain

8

language of Ordinance No. 38 and the FAC. According to the FAC, Ordinance No. 38 outlines

9

rules that cyclists must follow on trails for the benefit of pedestrians, and thus is designed to
prevent bike accidents between cyclists and pedestrians on trails. FAC, ¶ 26. According to the

11
United States District Court
Northern District of California

10

FAC, Vaupen was a pedestrian using a trail shared by cyclists such as Branston, which therefore

12

places her in the class of persons Ordinance No. 38 was designed to protect. Id., ¶ 10. The FAC

13

also alleges that she sustained injuries when she collided with a cyclist (Branston) on a trail. Id., ¶

14

10. Since the text of Ordinance No. 38 suggests that it is designed to ensure a safe coexistence

15

between cyclists and pedestrians on trails, it is clear that her bike accident-related injuries were the

16

kinds of occurrences Ordinance No. 38 was designed to prevent.
To the extent that Vaupen relies on certain sections of Ordinance No. 38 such as section

17
18

409.8(b), (h), or (j) as the basis for this claim, the FAC sufficiently alleges how these sections

19

apply to this incident. For example, the FAC asserts that Branston violated section 409.8(b) and

20

(h), which prohibit cyclists from traveling at excessive speeds, i.e., over 15 mph over the posted

21

speed limit, especially when passing other trail users, or traveling in an irresponsible manner in

22

violation of published trail etiquette or posted bicycle speed limit. FAC, ¶ 26. According to the

23

FAC, Branston, a cyclist, was riding a bicycle on a trail at night at a “high and unreasonable rate

24

of speed,” i.e., greater than 15 mph, when he collided with Vaupen. FAC ¶ 10 at p.2:10-23 and

25
4

26
27
28

In her opposition, Vaupen identifies the ordinance as East Bay Regional Park District Ordinance
38. Opp’n at 2:21, 5:26. The court disregards this allegation because it is not contained in the
FAC. Schneider v. Calif. Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (“In
determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint
to a plaintiff’s moving papers, such as a memorandum in opposition to a defendant’s motion to
dismiss.”) (emphasis omitted).
7

1

p.3:24-4:3. Additionally, the FAC also asserts that Branston violated section 409.8(j), which

2

requires that any bicycle operated during darkness on any District property “shall be equipped

3

with lighting as specified in California Vehicle Code Section 21201(d).” FAC, ¶ 26. According

4

to the FAC, the bicycle that Branston rode did not have any bright lights as required by Section

5

21201(d)(1). Id., ¶ 10 at 3:24-4:4.

6

However, to the extent that she relies on section 409.8(f), (g), (i), (j)(2), or (j)(3) of

7

Ordinance No. 38 as the basis for this claim, the FAC does not provide a sufficient factual basis to

8

support a claim based on any of these sections. For example, the FAC alleges that Branston

9

violated section 409.8(f) and (g) of Ordinance No. 38, FAC, ¶ 26 at 4:20-23, which prohibit
cyclists from riding in restricted areas of the park, or areas temporarily closed to cyclists for safety

11
United States District Court
Northern District of California

10

reasons. However, there are no allegations that Branston was cycling in a restricted or off-limits

12

area of the trail, so it is unclear whether this section applies. Similarly, the FAC asserts that

13

Branston violated section 409.8(i), which provides that bicycles “must travel in a single file when

14

passing others and in single file on the right side of the trail when in turns, blind corners, or when

15

being passed.” FAC, ¶ 26. But, it does not allege that Branston was turning, in a blind corner, or

16

being passed when he encountered Vaupen on the trail, so it is unclear what action Branston took

17

that violated this section. The FAC only asserts, without explanation, that he was riding on the

18

wrong side of the trail (on the left, instead of the right right). Furthermore, since there are no

19

allegations about verbal warnings or other sound warnings, it is unclear how Branston violated

20

section 409.8(j)(2), which requires a verbal warning or the sounding of an audible device by

21

approaching bicyclists no less than 50 feet away when approaching or passing other trail users,

22

FAC, ¶ 26. Finally, although the FAC alleges that Branston violated section 409.8(j)(3), it does

23

not provide any information about this section, so it is entirely unclear whether this section

24

applies.

25

Therefore, the court grants the motion to the extent that Vaupen intends to base her

26

negligence per claim on a violation of Ordinance No. 38, and grants leave to amend, but only to

27

address the deficiencies related to the Ordinance No. 38-based claim identified in this order.

28
8

B.

1
2
3
4
5

Punitive Damages

On January 26, 2018, the court dismissed the request for punitive damages “without
prejudice to seeking timely leave to amend based on later-discovered facts.” January 26, 2018
Order at 7:3-4 (emphasis added). The court found that the facts did not “support a punitive
damages award as a matter of law” because, “[a]t most, the allegations amount[ed] to negligent
behavior.” Id. at 6:16-18.

6
Branston argues that the court should dismiss the request for punitive damages because
7
Vaupen failed to seek prior leave of court. He also contends that the request fails on the merits
8
because she has not pleaded any new facts to support the request, and, as currently pleaded, the
9
allegations only establish negligence. Vaupen contends that she was not required to seek leave
10

United States District Court
Northern District of California

11

because she had the “right” to amend the FAC. She also asserts that the FAC alleges “laterdiscovered facts” supporting the request for punitive damages.

12
Vaupen was required to seek prior leave of court to add a request for punitive damages.
13
January 26, 2018 Order at 7:3-4. Because she failed to do so, the court dismisses the request for
14

punitive damages without prejudice and declines to consider the parties’ remaining arguments.

15
C.

16

1.

17
18

NIED and IIED
Rule 15

Branston contends that Vaupen’s NIED and IIED claims should be dismissed because she
failed to obtain prior leave of court to add these new claims. Vaupen does not address Branston’s

19
Rule 15 argument. Instead, she argues that she believed she had the right to add new claims
20
because the January 26, 2018 order did not state that she could not add new claims.
21

Rule 15(a)(1) provides that a party “may amend its pleading once as a matter of course

22
within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is
23
required, 21 days after service of a responsive pleading or 21 days after service of a motion under
24
25
26

Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(A), (B). “In all other cases,
a party may amend its pleading only with the opposing party’s written consent or the court’s
leave.” Fed. R. Civ. P. 15(a)(2)5. “The court should freely give leave when justice so requires.”

27
28

5

Branston contends that the right to amend a pleading once as a matter of course terminates upon
9

1

Fed. R. Civ. P. 15(a)(2).

2

A court has discretion to strike a complaint where it fails to comply with Rule 15(a). See

3

Sapiro v. Encompass Ins., 221 F.R.D. 513, 517 (N.D. Cal. 2004) (“On occasion, a party’s failure

4

to comply with the requirements of Rule 15(a) will prompt courts to strike amended pleadings—or

5

to ignore them outright.”); Brown v. Wireless Networks, Inc., No. C 07-4301 (EDL), 2007 WL

6

3105069, at *1 (N.D. Cal. Oct. 23, 2007) (“A court may strike a complaint where a plaintiff has

7

failed to comply with Rule 15(a).”) (citing Serpa v. SBC Telecomms., Inc., 318 F. Supp. 2d 865,

8

875 (N.D. Cal. 2004)). However, “many courts have accepted untimely amended pleadings, even

9

when the relevant party did not first obtain judicial permission or the consent of the opposing
party.” Sapiro, 221 F.R.D. at 517 (citing cases). “This is often true when ‘leave to amend would

11
United States District Court
Northern District of California

10

have been granted had it been sought and when it does not appear that any of the parties will be

12

prejudiced by allowing the change.’” Id. (quoting 6 Charles Alan Wright, Arthur R. Miller &

13

Mary Kay Kane, Federal Practice and Procedure, § 1484, at 601–02 (2d ed.)).

14

In the interests of justice, the court will consider the NIED and IIED claims. Although

15

Vaupen was required to obtain Branston’s written consent or prior leave of court to include the

16

NIED and IIED claims, see Fed. R. Civ. P. 15(a)(2), leave to amend would have been granted in

17

this instance, particularly because Branston will not be prejudiced by the amendment as the case is

18

still in the pleading stage.

19
20

2.

NIED

“Negligent infliction of emotional distress” is not an independent tort doctrine. See Potter

21

v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 984 (1993) (“[T]here is no independent tort of

22

negligent infliction of emotional distress”). Rather, “[n]egligent infliction of emotional distress is

23

a form of the tort of negligence, to which the elements of duty, breach of duty, causation and

24

damages apply.” Griffith v. Bank of Am., N.A., No. CV–11–5867 PA (FFMx), 2011 WL 6849048,

25
26
27
28

the granting of a motion to dismiss and the dismissal of claims or counterclaims, citing to Upek,
Inc. v. Authentec, Inc., No. 10-424-JF PVT, 2010 WL 2681734 (N.D. Cal. July 6, 2010). Upek,
Inc. is factually inapposite. Upek did not involve an amendment of a pleading pursuant to a
motion to dismiss. At issue in Upek, Inc. was the effect of an amended complaint on the right to
file an amended counterclaim as a matter of course.
10

1

at * 9 (C.D. Cal. Dec. 13, 2011) (quoting Huggins v. Longs Drug Stores Cal., Inc., 6 Cal. 4th 124,

2

129 (1993)). “The existence of a duty of care owed by a defendant to a plaintiff is a prerequisite to

3

establishing a claim for negligence.” Nymark v. Heart Fed. Savs. & Loan Ass'n, 231 Cal. App. 3d

4

1089, 1095 (1991). “[A]bsent a duty, the defendant’s care, or lack of care, is irrelevant.” Software

5

Design & Application, Ltd. v. Hoefer & Arnett, Inc., 49 Cal .App. 4th 472, 481 (1996). “The

6

existence of a legal duty to use reasonable care in a particular factual situation is a question of law

7

for the court to decide.” Castaneda v. Saxon Mortg. Servs., Inc., 687 F.Supp.2d 1191, 1198 (E.D.

8

Cal. 2009) (quoting Vasquez v. Residential Invs., Inc., 118 Cal. App. 4th 269, 278 (2004)).

9

Additionally, the plaintiff must allege that he or she suffered “serious” emotional distress. See
Molien v. Kaiser Found. Hosps., 27 Cal. 3d 916, 927-28 (1980). “[S]erious mental distress may

11
United States District Court
Northern District of California

10

be found where a reasonable man [or woman], normally constituted, would be unable to

12

adequately cope with the mental stress engendered by the circumstances of the case.” Molien, 27

13

Cal. 3d at 928; CACI 1920 (“Serious emotional distress exists if an ordinary, reasonable person

14

would be unable to cope with [the emotional distress].”).

15

Branston contends that the NIED claim is insufficiently pleaded because Vaupen fails to

16

identify the specific duty he owed her, allege any facts supporting the allegations that she was in

17

the “specific zone of danger and at risk of physical harm,” or allege any facts supporting the

18

allegation that he caused her “severe emotional distress.” Vaupen responds in one conclusory

19

sentence that the NIED claim is adequately pleaded, and simply points to paragraph 33 as

20

identifying the facts relevant to the NIED claim.

21

In reviewing the NIED claim, the court finds that it is conclusory and merely restates the

22

elements of the claim, which is insufficient to defeat a motion to dismiss. See Gilmore v. Wells

23

Fargo Bank N.A., 75 F. Supp. 3d 1255, 1261 (N.D. Cal. 2014) (on a Rule 12(b)(6) motion to

24

dismiss, “the court need not accept legal conclusions, including ‘threadbare recitals of the

25

elements of a cause of action, supported by mere conclusory statements.’”) (quoting Ashcroft v.

26

Iqbal, 556 U.S. 662, 678 (2009)). In her next amended pleading, Vaupen must allege all facts

27

supporting each element of her claim.

28

Therefore, the court dismisses the NIED claim with leave to amend to address these
11

1

deficiencies.

2

3.

IIED

“To recover for intentional infliction of emotional distress a plaintiff must show: (1)

3
4

outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability

5

of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate

6

causation of the emotional distress.” McDaniel v. Gile, 230 Cal. App. 3d 363, 372 (1991). Courts

7

have emphasized that extreme and outrageous conduct is conduct that “go[es] beyond all possible

8

[bounds] of decency, and [is] regarded as atrocious, and utterly intolerable in a civilized

9

community.” Mintz v. Blue Cross of Cal., 172 Cal. App. 4th 1594, 1608 (2009) (quotation
omitted). “With respect to the requirement that the plaintiff show severe emotional distress [for

11
United States District Court
Northern District of California

10

an IIED claim],” the California Supreme Court “has set a high bar.” Hughes v. Pair, 46 Cal. 4th

12

1035, 1051 (2009). “Severe emotional distress means emotional distress of such substantial

13

quality or enduring quality that no reasonable [person] in civilized society should be expected to

14

endure it.” Hughes, 46 Cal. 4th at 1051 (citation and internal quotation marks omitted)).
Branston argues that Vaupen fails to state an IIED claim because she pleads no facts

15
16

showing that his conduct was outrageous or that she suffered the type of “severe emotional

17

distress” necessary to support this claim. As with the NIED claim, Vaupen responds in one

18

conclusory sentence that the IIED claim is adequately pleaded and points to paragraph 39 as

19

identifying the facts relevant to the IIED claim.
Vaupen has failed to plead facts sufficient to state an IIED claim. Vaupen simply recites

20
21

the elements of the claim, which is insufficient to survive a motion to dismiss. See Gilmore, 75 F.

22

Supp. 3d at 1261; Iqbal, 556 U.S. at 678.
Accordingly, the court dismisses the IIED claim with leave to amend.

23
24
25

IV.

CONCLUSION
In conclusion, the court grants Branston’s motion to dismiss with leave to amend, but only

26

to address the deficiencies in her negligence per se claim based on a violation of Ordinance No.

27

38, NIED and IIED claims discussed above. If Vaupen wishes to file a second amended

28

complaint, she must do so within 14 days of the date of this order. However, Vaupen must file
12

1

a motion for leave to amend the complaint if she wishes to revisit punitive damages or add

2

additional claims. The motion for a more definite statement is denied as moot.

3

S

ER

H

10
11
United States District Court
Northern District of California

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13

M. Ryu

R NIA

onna
Judge D

FO

RT

9

NO

8

LI

7

______________________________________
ERED
O ORD
S SDonna M. Ryu
IT I
United States Magistrate Judge

A

6

Dated: May 10, 2018

S DISTRICT
TE
C
TA

RT
U
O

5

IT IS SO ORDERED.

UNIT
ED

4

N

F
D IS T IC T O
R

C