Filed 4/6/22 Cavuoto v. Rainford CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Plaintiffs Gina Marie Cavuoto and Evan R. Miller appeal from a judgment of dismissal following the trial court’s sustaining of a demurrer without leave to amend. We affirm.[1]

I. Background

In October 2019, plaintiffs, proceeding in pro per, filed a second amended complaint against defendants Sybil L. Rainford, James E. Andrews, Peggy Andrews, and “DOES 1-5” alleging eight causes of action: (1) “Terrorist Death Threat”; (2) “Scheme and Swindle”; (3) “Harassment”; (4) “Breach of Fiduciary Duty”; (5) “Economic Loss”; (6) “Intentional Infliction of Emotional Distress”; (7) “Slander and Deformation [sic] of Character”; and (8) “Fraud.”

Plaintiffs made a number of factual allegations. For the first cause of action, “terrorist death threat,” plaintiffs alleged receiving a phone call saying that the caller “wants to ‘hunt Cavuoto down, and to kill her’ . . . .” According to plaintiffs, the call was made by one defendant from “a smart device” owned by another defendant. The incident was reported to Capitola Police. Cavuoto was left emotionally and physically upset and sought medical attention.

For the second cause of action, “scheme and swindle,” plaintiffs alleged that James Andrews was previously in “a family/romantic relationship” with Cavuoto, but had a “breakup in 2008” after the relationship soured. Plaintiffs alleged that Cavuoto invested money into the purchase of real property in Santa Cruz, with Andrews promising to contribute toward the renovation of the property. According to plaintiffs, attempts were made to salvage the investment, but eventually they “were left with no other choice but to cut their losses,” resulting in in a loss. Plaintiffs further alleged that defendants forced them to “move out of a long term Capitola rental” based on defendants’ “trespassing, being a nuisance, intimidation and the need for safety.” Plaintiffs also alleged that a past girlfriend of one defendant, who was “a professional insurance agent,” “devised a plan to hit plaintiff’s car [to] gain monetarily via an insurance claim.”

For cause of action three, “harassment,” plaintiffs alleged receiving “[s]everal Phone calls, text messag[es], [and] instances [of] disturbing the peace ranging from on or about August 20th 2017 to present time.” Plaintiffs generally alleged a pattern of harassing behavior but provided no specific details.

For cause of action four, “breach of fiduciary duty,” plaintiffs alleged that James Andrews made “fiduciary promises of duty,” that he owed such duty, and that he breached that duty. Specifically, he once visited plaintiffs’ “Capitola rental unit ‘promising to make good his bullshit’ and [saying] that ‘he would divorce [his current partner] to reunite with us[.]” Plaintiffs also alleged that Andrews admitted to ruining plaintiffs’ lives and apologized, that he promised to pay plaintiffs, and that he admitted to lying under oath.

For cause of action five, “economic loss,” plaintiffs alleged that defendants’ “malic[ous] actions, trespassing and course of conduct that was a public nuisance to neighbors” caused plaintiffs to lose their housing. This resulted in moving and storage costs, the separation of Cavuoto and Miller, the death of the family dog “ ‘Zen,’ ” and loss of income.

For cause of action six, “intentional infliction of emotional distress,” plaintiffs generally (but with no specific details) alleged systematic conduct intended to cause harm and harass plaintiffs. Plaintiffs asserted loss of income and emotional distress.

For cause of action seven, “[s]lander and [d]eformation [sic] of [c]haracter,” plaintiffs alleged that Cavuoto was “registered . . . under the Lanham Act” as a “bona fide federal entity,” and that defendants “slandered” and “mock[ed] her.” Specifically, Cavuoto “had been seen at the hotel where later in a business meeting the owner of a major project she had just finished was heard saying ‘Oh Gina Cavuoto the one living in a hotel.’ ” Plaintiffs blamed defendants’ “tortious conducts” for the injury to Cavuoto’s reputation.

For cause of action eight, “[f]raud,” plaintiffs alleged that James Andrews admitted “on several occasions” to conducting “fraudulent scheme[s] . . . orchestrated along with other personal attorney client privileged information.” Specifically, he admitted: “ ‘his attorney would be mad if he knew I was talking to you as I spent 62k defending the case.’ ”; “I pissed of[f] the judge in chambers when I said ‘James makes more money than you at 10k a week.’ ”; “ ‘he had to lie under oath about the Valentine’s Day Card he made.’ ”; and Andrews “created a fraudulent document for IRS audit used also during discovery in last civil case # CV180888 in 2016[.]” Defendants filed a demurrer to the amended complaint. Plaintiffs opposed the demurrer.

The trial court sustained the demurrer without leave to amend as to causes of action one, two, four, and eight. As to the first and second causes of action, the court found that “Terrorist Death Threat” and “Scheme and Swindle” were not “cognizable, legally recognized[] causes of action.” Additionally, the court found that the second cause of action related to a prior action that defendants contended had been “dismissed with prejudice,” and plaintiffs “allege[d] was settled,” and therefore was “barred by accord and satisfaction.” For the fourth and eighth causes of action (breach of fiduciary duty and fraud), the court also found that they related to a prior action that “was settled and dismissed with prejudice,” and therefore also “barred by accord and satisfaction.”

The court sustained the demurrer with leave to amend as to causes of action three, five, six, and seven. For the third cause of action (harassment), the court found it failed to state a claim. “Other than the voicemail threat . . . , the claim is based on conclusory allegations of intimidation and trespassing rather than factual allegations. There is no common law claim for harassment; the only relief available for a statutory claim under California Code of Civil Procedure § 527.6 is injunctive relief, which [plaintiffs do] not seek.” As for the fifth cause of action (economic loss), the court found it was “not an independent cause of action,” and plaintiffs “failed to allege facts to support any legal theory of wrongdoing to support a damage claim.” For the sixth and seventh causes of action (intentional infliction of emotional distress) and (“[s]lander and deformation [sic]”), the court found plaintiffs “fail[ed] to allege sufficient facts to support the claims.”

Plaintiffs filed a second amended complaint, to which defendants again filed a demurrer. The second amended complaint contained the same eight causes of action as the first amended complaint, but ordered and numbered differently.[2] For the harassment cause of action, plaintiffs generally alleged that defendants had harassed plaintiffs “through intimidation and outrageous conduct,” made “slanderous untrue statements,” and engaged in a “ ‘historical pattern’ of tortious acts with a duration that encompasses a very long period of accrued time.” For the economic loss cause of action, plaintiffs generally asserted that they were “asked to leave their long-term rental” based on defendants’ “continuous malicious actions, invasion of privacy, trespassing and course of conduct as nuisances to Plaintiffs and neighbors.” For the “slander and deformation [sic] of character” cause of action, plaintiffs alleged that defendants engaged in “slanderous mockery of Cavuoto” by calling her a “ ‘loser with 5 jobs’ ” and an “ ‘Uber driver that fucks everybody.’ ” Plaintiffs also realleged that a person at a business meeting referred to Cavuoto as “ ‘the one living in a hotel.’ ” Finally, for intentional infliction of emotional distress, plaintiffs generally alleged that unspecified conduct led to a number of specified damages.

Defendants’ demurrer noted that plaintiffs’ second amended complaint included causes of action for which a demurrer had already been sustained without leave to amend. As for the remaining causes of action, defendants argued that plaintiffs’ “wandering narrative” nevertheless “fail[ed] to identify a legal theory under which recovery might be appropriate,” and “contain[ed] even fewer facts about the alleged actions of [defendants] than [the] last attempt.” The trial court thereafter sustained the demurrer to the second amended complaint without leave to amend and dismissed the action. Plaintiffs timely appealed from the judgment of dismissal.

II. Discussion

A. Demurrer

Plaintiffs have the burden of overcoming a presumption that the judgment is correct by affirmatively demonstrating prejudicial error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564–566.) “To demonstrate error, appellant[s] must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. [Citations.] When a point is asserted without argument and authority for the proposition, ‘it is deemed to be without foundation and requires no discussion by the reviewing court.’ ” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) These rules of appellate procedure apply to plaintiffs even though they elected to represent themselves on appeal. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 (Nwosu).) The law affords pro per litigants “ ‘the same, but no greater consideration than other litigants and attorneys. [Citation.]’ ” (Ibid.)

“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citations.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) When the trial court has sustained the demurrer without leave to amend, this court must determine “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. [Citation.]” (Ibid.) The burden is on the plaintiff to show a reasonable possibility of curing a defect. (Barroso v. Ocwen Loan Servicing, LLC (2012) 208 Cal.App.4th 1001, 1008.)

Here, plaintiffs have failed to demonstrate that the trial court erred by sustaining the demurrer without leave to amend. With respect to the causes of action that the trial court dismissed because the court had previously sustained a demurrer without leave to amend to those causes of action, plaintiffs do not challenge the dismissal of those causes of action on that ground. Nor do plaintiffs contest the prior underlying dismissal of these causes of action because they concerned matters that had been previously settled and dismissed with prejudice or were not legally cognizable causes of action. As a result, plaintiffs have forfeited the issue. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862; Behr v. Redmond (2011) 193 Cal.App.4th 517, 538.)

Turning to the remaining causes of action, for which leave to amend had been granted, we find no error in the trial court’s dismissal. First, as to the harassment cause of action, the trial court initially found that the first amended complaint failed to state a claim because the claim sought monetary damages, even though the civil harassment statute permits only injunctive relief. (Code Civ. Proc., § 527.6 [providing for injunctive relief]). The second amended complaint did not correct this error. Second, as to the economic loss cause of action, the trial court initially found that it was not an independent cause of action, but rather a damages claim, and that plaintiffs needed to allege facts that supported the claimed damages. The second amended complaint failed to allege any facts for this cause of action, instead setting forth conclusory allegations about unspecified conduct. Finally, as to the intentional infliction of emotional distress and “slander and deformation [sic]” claims, the trial court found that plaintiffs failed to allege sufficient facts to support the claims. In the second amended complaint, plaintiffs again failed to set forth any specific conduct supporting a claim of intentional infliction of emotional distress. For the slander and defamation cause of action,[3] while plaintiffs added allegations that defendants made certain specific statements, plaintiffs did not allege causation between the statements and the alleged damages, as required by statute. (Civ. Code, § 46 [requiring causation]). Nor did plaintiffs allege a publication, which was also required.[4] (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) In sum, dismissal was proper for the remaining causes of action because plaintiffs failed to state a claim for relief.

Finally, we consider whether the trial court acted within its discretion in sustaining the demurrer without leave to amend. Plaintiffs bear the burden of establishing a reasonable probability that an amendment could cure the defects in their complaint. Here, plaintiffs had already been permitted to amend their complaint to cure defects in the complaint. The second amended complaint suffered from the same defects as the first amended complaint. Because plaintiffs have offered no allegations to support the possibility of amendment and no legal authority showing the viability of the causes of action, we discern no abuse of discretion in denying leave to amend.

B. Trial Judge Recusal

Plaintiffs contend that the trial judge should have recused himself from the case “since he is mentioned as the mediation Judge in 2016 case CV1801888.” Plaintiffs assert that recusal is required “pursuant to 28 US §Code 455(a)” because the trial judge’s impartiality might reasonably be questioned. Plaintiffs, however, fail to identify any specific conduct on the part of the trial judge or controlling law. Plaintiffs, as pro per litigants, are not exempt from the rules of appellate practice, including the requirement that briefs contain arguments supported by proper citations to the record and to legal authority. (Nwosu, supra, 122 Cal.App.4th at p. 1247.) Accordingly, we consider the argument waived.

III. Disposition

The judgment of dismissal is affirmed.

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ELIA, ACTING P.J.

WE CONCUR:

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BAMATTRE-MANOUKIAN, J.

_____________________________

WILSON, J.

Cavuoto et al. v. Rainford et al.

H048174

[1] Plaintiffs have filed eight requests for judicial notice. The requests largely pertain to documents related to other cases involving plaintiffs or documents of which plaintiffs fail to explain the relevance. We deny the requests.

[2] “Terrorist Death Threat”; “Harassment”; “Slander and Deformation [sic] of Character”; “Intentional Infliction of Emotional Distress”; “Economic Loss”; “Scheme and Swindle”; “Breach of Fiduciary Duty”; and “Fraud.”

[3] “Defamation constitutes an injury to reputation; the injury may occur by means of libel or slander. (Civ. Code, § 44)” (Issa v. Applegate (2019) 31 Cal.App.5th 689, 696 fn. 2.)

[4] Indeed, plaintiffs’ own evidence, by way of a police report, showed that the alleged slanderous statements were made in a voicemail message left on plaintiff Cavuoto’s own cell phone, thus further undermining any possible publication allegation.