Cairns v. Legal Aid Society of San Diego CA4/1 ( 2022 )

Filed 4/21/22 Cairns v. Legal Aid Society of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
NIGEL CAIRNS, D078441
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2019-
00069067-CU-PO-CTL)
LEGAL AID SOCIETY OF SAN
DIEGO, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Gregory W. Pollack, Judge. Affirmed.
Nigel Cairns, in pro. per., for Plaintiff and Appellant.
Klinedinst, Heather L. Rosing and Robert M. Shaughnessy for
Defendant and Respondent.
INTRODUCTION
Nigel Cairns sued the Legal Aid Society of San Diego (Legal Aid) for
intentional infliction of emotional distress, after he was twice denied Legal
Aid services in connection with a landlord-tenant matter.1 He appeals from
the trial court’s ruling sustaining Legal Aid’s demurrer to his third amended
complaint (TAC) without leave to amend. The trial court found the
allegations of the TAC were “ ‘uncertain, ambiguous, and unintelligible’ ”
(Code Civ. Proc.,2 § 430.10, subd. (f)); the mere denial of legal services does
not constitute “ ‘outrageous conduct’ ” sufficient to state a viable cause of
action for intentional infliction of emotional distress (§ 430.10, subd. (e)); and
there was no reasonable possibility that Cairns can cure these deficiencies by
amendment. We affirm.
BACKGROUND
I.
Cairns’s Allegations Against Legal Aid3
Cairns alleged he is a retired physician who lost a large part of his
retirement savings in the 2008 recession. In May 2017, he moved into the
Manor, “a 140-unit apartment complex” in San Diego owned by Lions
Community and subsidized by “HUD” (i.e., the United States Department of
1 In the same lawsuit, Cairns also asserted a cause of action for
intentional infliction of emotional distress against Lions Community Service
Corporation (Lions Community), the owner of the building where he was
living when he received notices of eviction. The trial court denied Lions
Community’s anti-SLAPP motion to strike (Code Civ. Proc., § 425.16). Lions
Community’s appeal of this ruling is proceeding separately under case
number D078310.
2 Unspecified statutory references are to the Code of Civil Procedure.
3 Because this appeal arises from the trial court’s ruling sustaining Legal
Aid’s demurrer, we recite the relevant factual allegations as it pertains to
Cairns’s claim against Legal Aid and exclude extraneous details that relate to
his claim against Lions Community arising from his tenancy at the Lions
Community Manor (the Manor).
2
Housing and Urban Development). Cairns received a monthly rent subsidy of
“nearly $1K.”
In July 2017, Cairns received what he alleged was an “eviction notice.”
He attached a partial copy of this notice to his second amended complaint.
The notice bore the title, “Notice to Permanently Perform Covenant or Quit,”
and informed Cairns that to comply, he was required, within 10 days, to
cease and desist any behavior that interfered with others’ quiet enjoyment of
the premises, cease and desist aggressive and/or harassing behavior with
staff, and abide by the terms of his lease. (Capitalization omitted.)
Cairns alleged he consulted with a lawyer and “got the eviction
changed to a warning.” However, in September 2017, his rent was refused
“without explanation.” But he was able to “solve[ ]” the problem of the rent
refusal when he sent a “complaint to [Lions Community] management sent
via the BBB [Better Business Bureau].” In January 2018, he received a 90-
day notice of eviction. In April 2018, the manager for the Manor refused his
rent and precluded him from completing “[r]e-certification papers” which “are
required every year.”
In connection with his problems at the Manor, Cairns applied twice for
free legal assistance from Legal Aid. The first time was in September 2017,
after his rent was refused. He alleged he “was unable to find out” why he
was refused but “presumed that fewer assets was better.” He applied again
in April 2018, with “only $7K remaining,” but was again refused. Believing
he was facing “certain eviction, [he] gave up[,] gave away EVERYTHING,
and set off on foot for Mexico.”
3
When he returned to San Diego in September 2018, he “read about the
Shriver Project”4 and learned it had an “income criterion of $28K” which was
“far above” his income. However, he did not know “the separate asset
criterion.” “So in [the] Fall of 2018 [he] applied again, and decided to play a
trick on [Legal Aid].” He provided Legal Aid with the financial information
he had provided when he unsuccessfully applied in April 2018. This time, he
“was accepted without reservations or conditions!” He received a call from
Legal Aid the next day, and told the Legal Aid representative “that it was a
trick.” That evening, he received a call from a Legal Aid lawyer. He asked
why Legal Aid “did not use emails as that would have prevented the apparent
serious mistake in [his] application” and received the response, “ ‘Too busy.’ ”
Cairns then visited the Legal Aid office and spoke to its director. When
the director “read the entry” from when Cairns applied in April 2018, Cairns
learned Legal Aid had purportedly made a mathematical mistake in
considering his reported assets. Cairns had reported assets of “between $5K
and $8K” but the intake worker, he alleges, “wrote $5K and $8K equals
$13K.” He was “rejected” because “the limit was $10K.” He alleged he was
then “ejected” from the office after arguing with the director.
Cairns alleged “[t]he inappropriate refusal of legal aid ensured [his]
eviction, homeless[ness] and distress.” He sued Legal Aid, asserting
intentional infliction of emotional distress as the sole cause of action.
To further support his claim against Legal Aid, Cairns alleged he
believes “there are factors which indicate possible co-ordination [sic] of
4 Legal Aid explains that Cairns’s reference to the “Shriver project”
appears to be a reference to “the Civil Counsel Program initiated under the
Sargent Shriver Civil Counsel Act,” which “funds pilot projects to provide
representation to low-income Californians on legal issues affecting basic
human needs.”
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behavior between” Legal Aid and Lions Community. He alleged “[i]t would
be to [Lions Community’s] advantage if [he] were refused Legal Aid” because
“[his] eviction would be simpler” and it “would also ensure [his] distress.” He
further alleged that a lawyer who worked with the law firm that represented
Lions Community used to work at Legal Aid, and a partner in the same law
firm, “wrote in 2016 about the increased delays and work now involved in
evictions because more clients had representation.”
II.
Legal Aid’s Demurrer to the TAC
Legal Aid demurred to the TAC. On October 9, 2020, the trial court
sustained the demurrer on two independent grounds.
First, the trial court found the allegations against Legal Aid
“ ‘uncertain, ambiguous, and unintelligible’ ” and sustained the demurrer
pursuant to section 430.10, subdivision (f).
Second, the trial court ruled that Legal Aid’s “fail[ure] to provide
services to Cairns does not constitute the requisite ‘outrageous conduct’
sufficient to state a viable cause of action for intentional infliction of
emotional distress.” Thus, it sustained the demurrer on the ground that the
TAC failed to state facts sufficient to constitute a cause of action for
intentional infliction of emotional distress, pursuant to section 430.10,
subdivision (e).
The trial court sustained the demurrer without leave to amend, finding
there is not a “reasonable possibility that Cairns can state a good cause of
action against Legal Aid.” On January 22, 2021, the trial court entered a
judgment of dismissal in favor of Legal Aid.5
5 Cairns filed his notice of appeal on December 3, 2020, before the
judgment of dismissal was entered. We exercise our discretion under rule
5
DISCUSSION
I.
Principles of Law
“In reviewing an order sustaining a demurrer, we examine the
operative complaint de novo to determine whether it alleges facts sufficient to
state a cause of action under any legal theory.” (T.H. v. Novartis
Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.) “ ‘We treat the demurrer
as admitting all material facts properly pleaded[.]’ ” (Blank v. Kirwan (1985)
39 Cal.3d 311, 318 (Blank).) We “accept as true not only those facts alleged
in the complaint but also facts that may be implied or inferred from those
expressly alleged.” (Marshall v. Gibson, Dunn & Crutcher (1995) 37
Cal.App.4th 1397, 1403.) “We do not, however, assume the truth of
contentions, deductions, or conclusions of fact or law.” (Moore v. Regents of
University of California (1990) 51 Cal.3d 120, 125; accord Blank, at p. 318.)
“In considering a trial court’s order sustaining a demurrer without
leave to amend, ‘ “we review the trial court’s result for error, and not its legal
reasoning.” ’ ” (Morales v. 22nd Dist. Agricultural Assn. (2018) 25
Cal.App.5th 85, 93.) We “ ‘affirm the judgment if it is correct on any theory.’ ”
(Ibid.) “And when [a demurrer] is sustained without leave to amend, we
decide whether there is a reasonable possibility that the defect can be cured
by amendment: if it can be, the trial court has abused its discretion and we
reverse; if not, there has been no abuse of discretion and we affirm.” (Blank,
supra, 39 Cal.3d at p. 318.) “The burden of proving such reasonable
possibility is squarely on the plaintiff.” (Ibid.)
8.308(c) of the California Rules of Court and treat the premature notice of
appeal as though it was “filed immediately after the rendition of judgment.”
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Further, on appeal, we presume the trial court’s judgment to be correct.
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is therefore the
burden of the party challenging the judgment to affirmatively demonstrate
error. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113,
1125.) “ ‘In so doing, he must raise claims of reversible error or other defect
[citation], and “present argument and authority on each point made.” ’ ”
(Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fn. 8; Cal. Rules of
Court, rule 8.204(a)(1)(B).) “We are not required to examine undeveloped
claims or to supply arguments for the litigants.” (Allen v. City of Sacramento
(2015) 234 Cal.App.4th 41, 52; Paterno v. State of California (1999) 74
Cal.App.4th 68, 104.) “Nor is an appellate court required to consider alleged
error where the appellant merely complains of it without pertinent
argument.” (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119 (Berger).)
An appeal may be deemed forfeited or abandoned where it fails to
comply with the essential requirements of an appeal, including the
requirement of providing a “reason to reverse or even modify the orders in
question.” (Conservatorship of Ben C., supra, 40 Cal.4th at p. 544, fn. 8; see
Berger, supra, 163 Cal.App.3d at p. 1120 [deeming appeal abandoned where
appellant’s brief “simply failed to make any arguments to support any theory
of error”].)
These rules apply equally to self-represented litigants like Cairns.
“The same burdens are imposed uniformly and equally on all appellants, and
self-represented parties are ‘ “held to the same restrictive procedural rules as
an attorney.” ’ ” (Burkes v. Robertson (2018) 26 Cal.App.5th 334, 344–345
(Burkes); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985
(Rappleyea) [“the rules of civil procedure must apply equally to parties
represented by counsel and those who forgo attorney representation”].)
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II.
The Trial Court Did Not Err in Sustaining
the Demurrer Without Leave to Amend
On appeal, Cairns does not challenge the grounds upon which the trial
court sustained Legal Aid’s demurrer or identify any error in the trial court’s
ruling. Rather, Cairns’s appellate arguments consist of identifying what he
believes are “misleading” statements by Legal Aid in its briefing on the
demurrer in the trial court. Because we conclude the trial court correctly
sustained the demurrer without leave to amend and Cairns has failed to
demonstrate any reversible error, we affirm.
A. Mere Denial of Legal Services Does Not Constitute Outrageous Conduct
Required to State a Claim of Intentional Infliction of Emotional Distress
“A cause of action for intentional infliction of emotional distress exists
when there is ‘ “ ‘ “(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.” ’ ” ’ ” (Hughes v. Pair (2009) 46 Cal.4th
1035, 1050 (Hughes).)
“A defendant’s conduct is ‘outrageous’ when it is so ‘ “ ‘extreme as to
exceed all bounds of that usually tolerated in a civilized community.’ ” ’ ”
(Hughes, supra, 46 Cal.4th at pp. 1050–1051.) It is not enough for the
defendant to intentionally cause emotional harm. (Rest.3d, Torts: Liability
for Physical and Emotional Harm § 46, com. d.) To satisfy this element of a
claim of intentional infliction of emotional distress “requires both that the
character of the conduct be outrageous and that the conduct be sufficiently
unusual to be extreme.” (Ibid.) “A great deal of conduct may cause emotional
harm, but the requisite conduct for this claim—extreme and outrageous—
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describes a very small slice of human behavior.” (Id., com. a.) “ ‘Liability has
been found only where the conduct has been so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.’ ”
(Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.)
Several cases are illustrative of the degree to which a defendant’s
conduct must exceed accepted norms to serve as the predicate for a claim of
intentional infliction of emotional distress. In Hughes, for example, the
trustee of the decedent’s estate made sexual advances on the decedent’s
former wife, the mother of the estate’s sole beneficiary, and told her publicly
and crudely that he would “get [her] on [her] knees eventually” and have
sexual intercourse with her. (Hughes, supra, 46 Cal.4th at pp. 1039–1040.)
Our high court held that while the trustee’s comments were “inappropriate,”
they “[fell] far short of conduct that is so ‘outrageous’ that it ‘ “ ‘exceed[s] all
bounds of that usually tolerated in a civilized community.’ ” ’ ” (Id. at
p. 1051.)
In Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594(Mintz), an insurer was alleged to have denied benefits for an investigational
treatment to the insured, a terminally ill patient, and then failed to advise
him of his statutory right to independent review of the denial. (Id. at
p. 1609.) The court held that while the alleged conduct “may arouse our
sympathy,” it was not “extreme, outrageous, beyond the bounds of decency,
atrocious, or intolerable in a civilized society.” (Ibid.)
And in McMahon v. Craig (2009) 176 Cal.App.4th 1502 (McMahon), an
owner whose dog died while under the care of veterinarians alleged that the
veterinarians had taken steps to cover up their malpractice. (Id. at pp. 1515–
1517.) The court held that the veterinarians’ efforts to hide their malpractice
9
did not “rise to the extremity” required of a claim for intentional infliction of
emotional distress. (Id. at p. 1517.)
A comparison of the conduct held insufficiently outrageous in the
foregoing cases with the conduct alleged in this case confirms that the trial
court was correct in concluding the allegations of the TAC failed to state a
cause of action for intentional infliction of emotional distress. Cairns alleged
he was denied legal services because Legal Aid’s intake worker made a
mistake when calculating his assets, and that he lost the opportunity to
correct the mistake because Legal Aid personnel were “ ‘[t]oo busy’ ” to
communicate with him about the reason for the denial. At most, Legal Aid’s
denial of services would arguably be the result of the intake worker’s math
error, which is not conduct that is “extreme, outrageous, beyond the bounds
of decency, atrocious, or intolerable in a civilized society.” (Mintz, supra, 172
Cal.App.4th at p. 1609.) Similarly, the failure to send Cairns an email
explaining why he had been denied falls far short of “ris[ing] to the
extremity” necessary to support this claim. (McMahon, supra, 176
Cal.App.4th at p. 1517.)
Cairns does not challenge this aspect of the trial court’s decision.
Instead, he makes contentions that are somewhat difficult to understand.6
He asserts “that [he] suffered [intentional infliction of emotional distress]
because [he] received numerous eviction notices and was refused legal aid.”
He provides the following overview of his contentions on appeal: “In my last
6 We appreciate that self-represented litigants like Cairns face a difficult
burden in attempting to present an appropriate appellate argument.
However, as we have mentioned, we are required to apply the same rules to
self-represented parties that we apply to parties represented by counsel.
(Burkes, supra, 26 Cal.App.5th at pp. 344–345; Rappleyea, supra, 8 Cal.4th at
pp. 984–985.)
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submission to the court [i.e., his opposition to Legal Aid’s demurrer to the
TAC], I marshaled my arguments. In [Legal Aid’s] reply [to his opposition
brief, Legal Aid] makes the statements which I allege are misleading.”
In other words, Cairns’s appellate arguments consist of contentions
that Legal Aid, in the reply brief it filed in the trial court, in support of its
demurrer to the TAC, mischaracterized or distorted his own positions as set
forth in his brief opposing the demurrer. He does not attempt to connect
Legal Aid’s alleged distortions to the trial court’s ruling. But this court is
tasked with identifying errors in trial court rulings, not mistakes in briefs
filed in the trial court. Cairns’s arguments therefore do not present a
cognizable theory of reversible error. (See Conservatorship of Ben C., supra,
40 Cal.4th at p. 544, fn. 8 [appeal may be deemed abandoned where appellant
fails to “raise claims of reversible error or other defect” in the orders appealed
from]; Berger, supra, 163 Cal.App.3d at p. 1120 [deeming appeal abandoned
where appellant’s brief “simply failed to make any arguments to support any
theory of error”].)
B. Trial Court Did Not Err in Sustaining the Demurrer For Uncertainty in
the TAC
Section 430.10, subdivision (f), provides that a party may demur to a
pleading on the ground that “[t]he pleading is uncertain,” and that
“ ‘uncertain,’ ” as used in this subdivision, “includes ambiguous and
unintelligible.” “ ‘A demurrer for uncertainty is strictly construed, even
where a complaint is in some respects uncertain, because ambiguities can be
clarified under modern discovery procedures.’ ” (Chen v. Berenjian (2019) 33
Cal.App.5th 811, 822.) “ ‘ “[D]emurrers for uncertainty are disfavored, and
are granted only if the pleading is so incomprehensible that a defendant
cannot reasonably respond.” ’ ” (A.J. Fistes Corp. v. GDL Best Contractors,
Inc. (2019) 38 Cal.App.5th 677, 695 (A.J. Fistes).) This is that rare case
11
where the operative pleading is too incomprehensible for Legal Aid to
reasonably respond.
In determining whether a complaint is uncertain, we consider whether
its substantive factual allegations are “sufficient to apprise” the defendant of
the basis of the claims against it. (See A.J. Fistes, supra, 38 Cal.App.5th at
p. 695.) Here, as Legal Aid persuasively argues on appeal, the TAC’s factual
allegations fail to allege facts sufficient to apprise Legal Aid of the basis of
Cairns’s sole claim of intentional infliction of emotional distress. As
discussed above, one of the elements of such a claim is that “the defendant’s
conduct must be ‘ “ ‘intended to inflict injury or engaged in with the
realization that injury will result.’ ” ’ ” (Hughes, supra, 46 Cal.4th at
p. 1051.) Cairns’s TAC, although replete with facts, fails to specify on what
basis he claims Legal Aid’s denial of services was intentional. Instead, it
appears Cairns intends the reader to infer from those facts he does allege
that Legal Aid was somehow acting in concert with, or under the direction of,
others who were collaborating to silence him. However, this aspect of
Cairns’s claim is left to surmisal. The TAC is thus uncertain, and the trial
court did not err in sustaining Legal Aid’s demurrer on this ground.
Rather than challenge the trial court’s ruling granting Legal Aid’s
demurrer for uncertainty, Cairns criticizes a statement that Legal Aid made
in the section of its reply brief filed in the trial court in which it argued that
the TAC was subject to demurrer for uncertainty. The statement was: “The
facts that [Cairns] believes [he] can substantiate, however, are of the phone
calls that he made to Legal Aid to challenge its application criteria — or, as
he puts it, he ‘presumed the office [he] called when [he] played a “trick” on
[Legal Aid] would have records,’ and his ‘phone call log shows the expected
occurrence and sequence of calls.’ ” (Italics added.) Cairns asserts that the
12
italicized words were not true, that he did make the referenced phone calls,
and that “Legal Aid has the records- I am just describing what they are.”
Cairns misperceives the issues presented by a demurrer for
uncertainty. A demurrer for uncertainty lies where “the essential facts upon
which a determination of the controversy depends” are not “stated with
clearness and precision so that nothing is left to surmise.” (Ankeny v.
Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531, 537.) Cairns
appears to be under the mistaken belief that Legal Aid’s demurrer for
uncertainty amounted to a contention that there was an absence of evidence
to support the allegations of the TAC.
His appellate argument thus fails, for two reasons. First, we discern no
distortion by Legal Aid of Cairns’s description of the evidence that existed to
support his claim. Second, any such distortion, even if it occurred, was
immaterial since the existence of evidence of Cairns’s phone calls to Legal Aid
(or any other fact alleged in the TAC) was irrelevant to whether the
allegations of the TAC were sufficiently clear and comprehensible to avoid a
demurrer for uncertainty.
C. Cairns Has Not Demonstrated Any Reasonable Possibility He Can
Amend to State a Cause of Action for Intentional Infliction of Emotional
Distress Against Legal Aid
When a demurrer is sustained without leave to amend, “we decide
whether there is a reasonable possibility that the defect can be cured by
amendment: if it can be, the trial court has abused its discretion and we
reverse; if not, there has been no abuse of discretion and we affirm.” (Blank,
supra, 39 Cal.3d at p. 318.) “Plaintiff has the burden to show a reasonable
possibility the complaint can be amended to state a cause of action.” (Reeder
v. Specialized Loan Servicing LLC (2020) 52 Cal.App.5th 795, 801.)
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Cairns did not seek leave to amend the TAC in the trial court. On
appeal, he does not contend the trial court abused its discretion by denying
him leave to amend. He does not assert that there is a possibility of
amending to cure the foregoing defects, and he does not attempt to show how
any such amendment would cure the defects in his TAC that caused the trial
court to sustain Legal Aid’s demurrer. We conclude the trial court did not
abuse its discretion by denying him the opportunity to file yet another
amended complaint.
D. Conclusion
In sum, Cairns’s arguments on appeal are limited to criticizing the
reply brief his opponent filed in the trial court. These are not the sorts of
arguments that have the potential to demonstrate reversible error. We have
reviewed the positions advanced by Cairns and do not find in them any basis
for concluding that the trial court erred when it sustained Legal Aid’s
demurrer to the TAC. Nor does Cairns present any argument supporting the
conclusion that the trial court abused its discretion when it denied him the
opportunity to file a fourth amended complaint. Because Cairns fails to
present this court with a reason for reversing the trial court’s decision, we
affirm the judgment.
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DISPOSITION
The judgment of dismissal is affirmed. Each side shall bear its own
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
DO, J.
WE CONCUR:
AARON, Acting P. J.
IRION, J.
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