Opinion
A112652, A114646, San Francisco County Super. Ct. No. 431608.
Parrilli, Acting P. J.
These consolidated appeals are from orders granting summary judgment and denying motions for reconsideration and to amend the pleadings in a case involving five causes of action: (1) intentional infliction of emotional distress; (2) negligent infliction of emotional distress; (3) trade libel; (4) respondeat superior; and (5) injunction –harassment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant David Russo is the owner of residential property located on Market Street in San Francisco. Russo’s property consists of a building containing his residence and two rental units. Respondent Fred Grimaldi is the live-in manager of a multi-unit residential building located next door to Russo’s property. Respondent Cyndie Earl Palacio is Grimaldi’s employer and the owner of the building, which she inherited from her father, Donovan Earl, after his death in 2004.
The Donovan G. Earl 1996 Revocable Trust is also identified as a respondent in this matter.
For several years, Russo and Grimaldi enjoyed an amicable neighbor relationship. However, their relationship had soured by 2002, at which time began the course of conduct at the center of this lawsuit, filed May 20, 2004. According to Russo’s complaint, Grimaldi, among other things: (1) washed weeds and other debris from Palacio’s property onto Russo’s property; (2) permitted tenants of Palacio’s property to throw cigarette butts and other debris out their windows onto Russo’s property; (3) called the San Francisco Department of Building Inspection three times in one week to report alleged building code violations on Russo’s property; (4) called the San Francisco Police Department to make false complaints that Russo had made certain statements; (5) called the San Francisco Fire Department to make a false complaint that Russo had stacked dry wood on Palacio’s property; (6) made threatening poses and rude gestures toward Russo; (7) made statements impugning Russo’s integrity to Russo’s prospective tenants; and (8) verbally harassed Russo’s existing tenants.
Grimaldi allegedly told Russo’s prospective tenants Russo was violent and dishonest.
Russo sought to hold Palacio and the Donovan G. Earl 1996 Revocable Trust (Earl Trust) vicariously liable for Grimaldi’s alleged misconduct under a theory of respondeat superior. Russo allegedly complained about Grimaldi’s conduct several times to Palacio, who advised Grimaldi to avoid contact with Russo.
Russo sought to recover from respondents, among other things, income he allegedly lost when prospective tenants declined to rent units in his building due to Grimaldi’s statements impugning his integrity.
Discovery proceeded, and the parties, among other things, took the depositions of Russo and Palacio. On June 24, 2005, Grimaldi filed a motion for summary judgment. On August 23, 2005, Grimaldi’s deposition was taken. Following a hearing, the trial court granted Grimaldi’s summary judgment motion on September 26, 2005. The trial court found as a matter of law that Russo could not prove respondents owed him any legal duty, that respondents’ conduct was not outrageous, and that he sustained no damages as a result of respondents’ conduct.
On October 7, 2005, Russo filed motions to reconsider and to amend the complaint to add causes of action for trade libel per se and slander per se. Judgment in favor of Grimaldi was entered October 28, 2005, and a hearing on Russo’s motions to reconsider and to amend was held November 3, 2005. The trial court denied both motions, and Russo filed a timely notice of appeal.
On December 16, 2005, Palacio and the Earl Trust filed a motion for summary judgment or, in the alternative, for summary adjudication as to all causes of action. The trial court granted their motion without a hearing after Russo failed to contest the tentative ruling against him. Judgment was entered in their favor on June 30, 2006. This appeal, consolidated with the appeal of the rulings in Grimaldi’s favor, followed.
DISCUSSION
Russo contends the trial court erred in: (1) granting summary judgment in favor of respondents; (2) denying his motion for reconsideration of the order granting summary judgment in Grimaldi’s favor; and (3) denying his motion to amend the complaint to add causes of action for trade libel per se and slander per se. We disagree.
I. Grant of Summary Judgment in Favor of Respondents was Proper.
A trial court’s summary judgment rulings are subject to de novo review. (Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) “In performing [the] de novo review, [the appellate court] must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [his] evidentiary submission while strictly scrutinizing [defendant’s] own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s favor.” (Ibid.)
A motion for summary judgment must be granted if all of the papers submitted show “there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, . . . and all inferences reasonably deducible from the evidence . . . .” (Code Civ. Proc., § 437c, subd. (c).) A defendant has met its burden of showing a cause of action has no merit if it “has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show . . . a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show . . . a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists . . . .” (Id. at subd. (p)(2).)
“Summary judgment law in this state . . . require[s] a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854 [fn. omitted].) However, “[t]here is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id. at p. 850; see also Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [“[o]nly when the inferences are indisputable may the court decide the issues as a matter of law”].) Thus, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.) Circumstantial evidence supporting a defendant’s summary judgment motion may consist of “factually devoid” discovery responses from which an absence of evidence can be inferred. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 106-107.)
A. Summary Judgment in Favor of Grimaldi.
The trial court granted summary judgment in favor of Grimaldi after finding no triable issue of material fact existed as to whether: (1) Grimaldi owed a duty to Russo, a prerequisite to a viable cause of action for negligent infliction of emotional distress; (2) Grimaldi’s conduct was outrageous, a prerequisite to a viable cause of action for intentional infliction of emotional distress; or (3) Grimaldi caused Russo to sustain special damages, a prerequisite to a viable cause of action for trade libel. We agree.
Negligent Infliction of Emotional Distress: Duty.
As set forth above, a defendant may qualify for summary judgment by showing that an essential element of plaintiff’s cause of action cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2); see also, e.g., Weil & Brown Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) [¶] 10:240, pp. 10-90 – 10-91.) Here, Russo sued for negligent infliction of emotional distress. An essential element of Russo’s cause of action is thus the existence and breach of a duty owed to Russo by respondents. (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 590 [“[d]amages for severe emotional distress . . . are recoverable in a negligence action when they result from the breach of a duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two”].)
We note negligent infliction of emotional distress is a “species of negligence,” not an independent tort. (Lawson v. Management Activities, Inc. (1999) 69 Cal.App.4th 652, 656.)
“ ‘Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.’ [Citation.]” (Marlene F., supra, 48 Cal.3d at p. 588.) These policy considerations, applicable to all negligence cases, include “ ‘[1] [the] extent to which the transaction was intended to affect the plaintiff, [2] the foreseeability of harm to him, [3] the degree of certainty that the plaintiff suffered injury, [4] the closeness of the connection between the defendant’s conduct and the injury suffered, [5] the moral blame attached to the defendant’s conduct, and [6] the policy of preventing future harm.’ ” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.)
In negligence cases based on emotional distress, California courts have required “something more than foreseeability . . . to raise a duty of care . . . .” (Krupnick v. Hartford Accident & Indemnity Co. (1994) 28 Cal.App.4th 185, 202.) Further, in such cases, “the degree of certainty that plaintiff suffered injury is diminished.” (Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 495.)
In support of his claim that Grimaldi owed him a duty of care, Russo relies on two facts: Russo and Grimaldi were neighbors, and Grimaldi’s employer, Palacio, instructed him to avoid contact with Russo after hearing Russo’s complaints of mistreatment. Neither party directs us to a case, and we have found none, recognizing a duty of care under these or similar circumstances. We note, however, policy considerations have been found insufficient to support a duty under circumstances where a more substantial relationship has existed between a plaintiff and defendant in an emotional distress case. (E.g. Fluharty, supra, 59 Cal.App.4th at p. 496 [“[a] family relationship alone is not a sufficient basis for imposing a duty of care to refrain from negligently causing emotional distress”]; Huggins v. Long Drug Stores, Inc. (1993) 6 Cal.4th 124, 133 [no duty of care owed by a pharmacist to the parents of a child whose prescription the pharmacist filled]; Weseloh Family Ltd. v. K.L. Wessel Construction Co., Inc. (2004) 125 Cal.App.4th 152, 163-164 [no duty of care owed by design engineers to the property owner or the general contractor].)
Russo points to no duty assumed by Grimaldi or imposed as a matter of law. We therefore assume Russo is claiming a duty arising out of his relationship with Grimaldi. (Marlene F., supra, 48 Cal.3d at p. 590.)
In moving for summary judgment, Grimaldi showed no duty existed to support a negligence claim based on the undisputed fact that he and Russo were merely neighbors. Grimaldi further pointed out that, even assuming Palacio’s instructions to Grimaldi to avoid contact with Russo were sufficient to create a duty between Palacio and Grimaldi, it was not sufficient to create a duty between Grimaldi or Palacio and Russo. We conclude his showing was sufficient to shift the burden to Russo to offer policy reasons in support of his claim that such a duty existed. (Code Civ. Proc., § 437c, subd. (p)(2); Marlene F., supra, 48 Cal.3d at p. 588.) Russo, however, has offered none. Instead, Russo suggests Grimaldi was required to articulate pubic policy reasons why a duty of care was not owed by respondents. In other words, Russo asks us to assume pubic policy reasons exist for finding a duty of care, and to put the onus on respondents to prove otherwise.
That is not the law. Rather, to avoid summary judgment, “it is incumbent upon plaintiffs to articulate why, as a legal proposition, a common law duty of care was owed them by defendants.” (Krupnick, supra, 28 Cal.App.4th at p. 202.) Accordingly, because Russo failed to come forward with policy reasons why a duty of care in his favor should be recognized by the common law, we conclude he has failed to set forth material facts sufficient to establish an actionable claim for negligent infliction of emotional distress.
Intentional Infliction of Emotional Distress: Outrageous Conduct .
Russo also sued for intentional infliction of emotional distress. Russo thus must prove respondents’ conduct toward him was “outrageous.” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1123.) Under California law, outrageous conduct is “conduct so extreme that it goes beyond all bounds of decency. Conduct is outrageous if a reasonable person would regard the conduct as intolerable in a civilized community. Outrageous conduct does not include trivialities such as indignities, annoyances, hurt feelings, or bad manners that a reasonable person is expected to endure.” (Judicial Council of Cal. Civ. Jury Instns. (2006-2007), CACI No. 1602 [emphasis added].)
Otherwise stated, “there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances. The plaintiff cannot recover merely because of hurt feelings. [Fns. omitted.]” (Yurick, supra, 209 Cal.App.3d at p. 1128.)
Generally whether conduct is outrageous is a question of fact for a jury. However, California courts have not hesitated to decide this question as a matter of law in cases where no reasonable person could find the requisite degree of outrageousness. (E.g., Yurick, supra, 209 Cal.App.3d at pp. 1129-1130; Cochran v. Cochran (1998) 65 Cal.App.4th 488, 497-498.) We believe this is such a case.
Russo claims the following conduct by Grimaldi, considered together, was sufficiently outrageous to support a claim for intentional infliction of emotional distress: (1) washing weeds and other debris from Palacio’s property onto Russo’s property; (2) permitting tenants of Palacio’s property to throw cigarette butts and other debris out their windows onto Russo’s property; (3) calling the San Francisco Department of Building Inspection, Police Department and Fire Department to make false complaints regarding Russo’s property; (4) making threatening poses and rude gestures toward Russo; (5) making statements to Russo’s prospective tenants that, among other things, Russo had a propensity for violence and was dishonest; and (6) verbally harassing Russo’s existing tenants.
We conclude such conduct, while perhaps offensive and contrary to common standards of civility, was not so egregiously outside the realm of civilized conduct as to give rise to the tort of intentional infliction of mental distress. Grimaldi’s alleged statements and gestures contain no indication of actionable threat or menace. Rather, they are unfortunate, but typical, examples of negative actions taken by closely-situated persons once their relationship has soured and regular contact remains unavoidable. Absent allegations that Grimaldi attempted to act on his purported threats, his actions are thus “the mere insults, threats, annoyances and petty oppressions which fall outside the tort of intentional infliction of emotional distress.” (Cochran, supra, 65 Cal.App.4th at p. 499.)
As one court has aptly stated: “ ‘The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. . . .’ [Citations.]” (Cochran, supra, 65 Cal.App.4th at p. 496.)
We thus conclude no reasonable inference of outrageous conduct is present here to defeat summary judgment for Grimaldi.
Trade Libel: Special Damages.
Russo’s cause of action for trade libel requires a showing that he has suffered special damages or loss to his business. (Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 573 [trade libel is “based on pecuniary damage and lies only where such damage has been suffered”].)
In support of his trade libel cause of action, Russo alleges Grimaldi made statements to Russo’s prospective tenants impugning his integrity. In fact, Grimaldi admitted telling various people, including Russo’s prospective tenants, that Russo was dishonest and had a violent manner. As a result of such conduct, Russo alleges he sustained damages in the form of lost rental income when certain prospective tenants declined to rent his apartment units. In particular, Russo alleged Pat Hacker, a prospective tenant who chose to rent another apartment, told him Grimaldi said “negative things” about him, yet she “declined to be specific.” We conclude these alleged facts are insufficient to avoid summary judgment.
For purposes of trade libel, general allegations that a plaintiff lost business due to a defendant’s disparaging comments are not enough; rather, the plaintiff must present facts showing that a prospective customer actually assigned the defendant’s disparaging comments as the reason for declining to conduct business with the plaintiff. (Erlich v. Etner (1964) 224 Cal.App.2d 69, 73.) As one court has observed: “It is nearly always held that it is not enough to show a general decline in his business resulting from the falsehood, even where no other cause for it is apparent, and that it is only the loss of specific sales that can be recovered. This means, in the usual case, that the plaintiff must identify the particular purchasers who have refrained from dealing with him, and specify the transactions of which he claims to have been deprived. [Citations.]” (Erlich, supra, 224 Cal.App.2d at p. 73 [emphasis added].)
Here, assuming as we must that Russo lost rental income during the relevant time period, he nonetheless failed to present facts tending to show his loss was in anyway attributable to Grimaldi’s conduct. Russo presented no statement from Pat Hacker or any other prospective tenant showing the decision to not rent his apartment was due to a remark by Grimaldi, as opposed to another circumstance, such as preferring a different apartment or neighborhood. Accordingly, the trial court properly concluded no triable issue of material fact existed as to Russo’s cause of action for trade libel.
Injunctive Relief: Harassment .
Russo also sought injunctive relief on the ground that Grimaldi’s conduct, described above, amounted to “harassment.” Code of Civil Procedure section 527.6, subdivision (b) defines harassment as: “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.” Further, to warrant injunctive relied, “[t]he course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.” (Ibid.)
For the same reasons we concluded Grimaldi’s conduct was not sufficiently outrageous to cause Russo actionable emotional distress, we now conclude his conduct did not amount to “harassment.” As such, the trial court’s summary judgment ruling in this regard was correct.
B. Summary Judgment in Favor of Palacio and the Earl Trust.
The trial court granted summary judgment in favor of Palacio and the Earl Trust after finding there could be no liability based on respondeat superior once Grimaldi, Palacio’s employee, was exonerated of liability. Further, Russo set forth no independent basis for holding Palacio and the Earl Trust liable for any of the causes of action raised in the complaint. We again agree.
Where liability is “based upon the wrongful conduct of the agent, the principal cannot be liable unless the agent is liable. Hence, a judgment which holds the principal liable and exonerates the agent is ‘self-stultifying’ and must be reversed.” (3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 167, p. 211; Roberts v. Ford Aerospace & Communications Corp. (1990) 224 Cal.App.3d 793, 800.) Under this law, no basis exists for holding Palacio or the Earl Trust liable for any of Grimaldi’s alleged actions, which we have already determined are not actionable.
Moreover, the only act performed by any respondent other than Grimaldi with which Russo finds fault is Palacio’s failure to fire Grimaldi based on his conduct towards Russo. But that act alone is insufficient to state a claim for any of the tort causes of action raised here. Russo does not contend otherwise. The trial court thus properly granted summary judgment in favor of Palacio and the Earl Trust.
II. Denial of Russo’s Motions for Reconsideration and To Amend.
Russo contends the trial court further erred by denying his motion for reconsideration of the order granting summary judgment in Grimaldi’s favor, and his motion to amend the complaint.
In denying the motion for reconsideration, the trial court rejected Russo’s argument that new facts gleaned from a previously-unavailable transcript of Grimaldi’s deposition warranted reconsideration. According to the trial court, because Grimaldi’s deposition was taken before the summary judgment hearing and was attended by Russo’s attorney, the facts revealed in it were not new.
We conclude the trial court’s order denying reconsideration, based on Russo’s failure to raise new facts, is not appealable. (Crotty v. Trader (1996) 50 Cal.App.4th 765, 769 [“[i]f the court denied reconsideration because [appellant] failed to raise new facts, the reconsideration order would not be appealable”]; Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1459 [noting the same policy reasons for finding denials of motions for new trial nonappealable are applicable to denials of motions for reconsideration, including eliminating the possibility that “a party would have two appeals from the same decision”].) We thus turn to Russo’s motion to amend.
Russo moved to amend his complaint to add causes of action for trade libel per se and slander per se after the trial court granted summary judgment in Grimaldi’s favor. The hearing and subsequent ruling on the motion to amend came after the trial court had entered judgment for Grimaldi. As previously discussed, the trial court found judgment for Grimaldi appropriate based in part on the lack of evidence of special damages to support Russo’s trade libel cause of action. The torts of trade libel per se and slander per se, unlike trade libel, require no showing of special damages. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 107; 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts § 541, p. 794 [where the alleged statement’s defamatory character is apparent on its face, harm may be presumed].)
To the extent Russo claims a right to amend his complaint to set forth additional causes of action against Grimaldi, he is clearly mistaken. “Once judgment has been rendered, amendment of a pleading is only possible if the judgment is first vacated . . . .” (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 1139, p. 595; see also Young v. Berry Equipment Rentals, Inc. (1976) 55 Cal.App.3d 35, 38.) Here, Russo never moved to vacate the judgment, much less did the trial court order it vacated. As such, his belated request to amend the complaint against Grimaldi fails.
With respect to Russo’s request to set forth additional causes of action against Palacio and the Earl Trust, the following principles are relevant. A trial court’s decision on a motion to amend the complaint is reviewed for abuse of discretion. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486; Code Civ. Proc., § 576.) “Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only ‘[w]here no prejudice is shown to the adverse party. . . .’ [Citation.]” (Magpali, supra, 48 Cal.App.4th at p. 487.) Further, “[i]nexcusable delay in presenting a proposed amendment . . . constitutes grounds for denial of leave to amend.” (Young v. Berry Equipment Rentals, Inc., supra, 55 Cal.App.3d at p. 39; see also Magpali, supra, 48 Cal.App.4th at p. 487.)
We believe the trial court had discretion to deny Russo’s motion to amend his complaint against Palacio and the Earl Trust based on his inexcusable delay in bringing it. As set forth above, Russo sought to add causes of action for trade libel per se and slander per se, torts that require no proof of special damages, after the trial court granted summary judgment in Grimaldi’s favor. In doing so, Russo claimed Grimaldi’s conduct met the requirements of trade libel per se and slander per se based on facts revealed in Grimaldi’s deposition. According to Russo, even though judgment had been entered in Grimaldi’s favor, his conduct could nonetheless be used to hold Palacio and the Earl Trust liable under principles of respondeat superior.
As the trial court found, the facts revealed in Grimaldi’s deposition were available to Russo before the trial court ruled on Grimaldi’s summary judgment motion, even though the transcript had not yet been prepared. Russo’s attorney was present at the deposition and could have presented facts revealed in it to the trial court before the summary judgment hearing in the form of a declaration. Alternatively, Russo, through his attorney, could have moved for a continuance to permit preparation of the deposition transcript before the trial court ruled on summary judgment. Russo’s failure to take these actions constituted inexcusable delay, and thus justified the trial court’s decision to deny his motion to amend the complaint against Palacio and the Earl Trust, whose alleged liability was merely derivative of Grimaldi’s.
In fact, Russo’s attorney did present some facts revealed in Grimaldi’s deposition to the trial court by a declaration he submitted before the summary judgment hearing.
Russo’s claim on appeal that the proposed additional causes of action “are based upon the very same facts that have been before the [trial court] for the last 30 months,” is inaccurate. In arguing prima facie cases of trade libel per se and slander per se exist, Russo cites entirely to testimony from Grimaldi’s deposition, evidence we have already concluded he failed to present to the trial court until after it had granted summary judgment in Grimaldi’s favor.
DISPOSITION
The trial court’s orders granting summary judgment and denying motions for reconsideration and to amend the pleadings are affirmed.
We concur: Pollak, J., Siggins, J.