Kiseskey v. Carpenters' Trust for So. California

• Decision Date: 22 June 1983
• Citation: 192 Cal.Rptr. 492,144 Cal. App. 3d 222
• Court: California Court of Appeals
• Parties: Peter E. KISESKEY, et al., Plaintiffs and Appellants, v. CARPENTERS' TRUST FOR SOUTHERN CALIFORNIA, et al., Defendants and Respondents. Civ. 66721.

Page 492

192 Cal.Rptr. 492

144 Cal.App.3d 222

Peter E. KISESKEY, et al., Plaintiffs and Appellants, v.CARPENTERS' TRUST FOR SOUTHERN CALIFORNIA, et al., Defendants and Respondents.

Civ. 66721.

Court of Appeal, Second District, Division 4, California.

June 22, 1983.

Hearing Denied Aug. 18, 1983.

Boies & O'Rourke and Ronald K. Miyamoto, Los Angeles, for plaintiffs and appellants.

Haight, Dickson, Brown & Bonesteel, Roy G. Weatherup and Robert L. Washburn, Santa Monica, for defendants and respondents.

McCLOSKY, Acting Presiding Justice.

PlaintiffsPeter Kiseskey and Susan Kiseskey appeal from an order of dismissal entered after the general demurrer of Carpenters Local UnionNo. 1506 to plaintiffs' fifth amended complaint (hereafter FAC) was sustained without leave to amend on the basis of the statute of limitations.(SeeCode Civ.Proc., § 340, subd. (3).)

By that FAC, Peter Kiseskey sought damages for the intentional infliction of emotional distress, and his wife Susan M. Kiseskey sought damages for loss of consortium.

In the first cause of action of the FAC, plaintiffs alleged, among other things, that Earl Mitchell, Douglas McCarron and others were "agents and/or employees" of respondents and others acting within the scope of their employment at the time of their tortious conduct toward plaintiffs.On or about October 17, 1977, November 20, 1977 and December 20, 1977, Douglas McCarron and certain Does called Peter Kiseskey and insulted him and threatened his life and health and that of his family, if he did not sign another agreement with the Union.

The foregoing conduct of defendants, and each of them, was part of a continuous course of conduct which was intentional, outrageous, malicious and done with ill will on the part of the defendants, and each of them, done with the intent of causing plaintiffPeter Kiseskey to suffer humiliating mental anguish, and emotional and physical distress, and with knowledge that plaintiffPeter Kiseskey's emotional and physical distress would thereby increase.It alleged further that the foregoing conduct was in wanton and reckless disregard of the consequences to plaintiffPeter Kiseskey.

It was further alleged that the conduct of defendants, and each of them, was so severe and outrageous that as a proximate result thereof plaintiffPeter Kiseskey suffered humiliation, mental anguish and emotional and physical distress, and was caused "to incur" a heart attack on January 9, 1978, as a result of which he was admitted to a hospital on that date where he remained until January 24, 1978.

Defendants, and each of them, since March 18, 1977, up to and including the present time, have constantly harassed and threatened plaintiffPeter Kiseskey.

He also sought punitive damages on the basis that all of defendants' aforesaid acts were intentional, wilful, wanton, malicious, outrageous, and done with ill will, evil motive and desire to harm.

In the second cause of action, Susan Kiseskey incorporated the foregoing allegations of her husband's cause of action and alleged that as a result of her husband's severe injuries which he suffered as a result of defendants' foregoing conduct, she has suffered and will continue to suffer a loss of consortium for which she seeks compensatory damages.

CONTENTIONS

Plaintiffs contend that (I) an action for intentional infliction of emotional distress is governed by the one-year statute of limitations found in California Code of Civil Procedure section 340, subdivision (3);(II)the statute of limitations does not commence to run until the cause of action accrues; (III) a cause of action ordinarily accrues when the party owning it is entitled to begin and prosecute thereon; (IV) a cause of action for emotional distress does not accrue until there exists outrageous conduct by a defendant resulting in severe or extreme emotional distress to the plaintiff; (V) whether a defendant's conduct is so outrageous and the plaintiff's distress so severe as to give rise to an action for emotional distress are questions of fact to be decided by a trier of fact and not by the court at the hearing on demurrer; (VI) the lower court erroneously, and to plaintiff's prejudice, sustained defendants' demurrer on the statute of limitations ground.This, they contend is so because the questions of whether defendants' conduct was outrageous, and if so at which point plaintiff's emotional distress was so severe as to give rise to a cause of action for intentional infliction of emotional distress are questions of fact to be decided by a trier of fact; and (VII)the statute of limitations on a cause of action for loss of consortium is one year from the date of the injury giving rise to the action.Since plaintiff's second cause of action was filed within one year from the date of injury, the trial court committed prejudicial error in sustaining defendants' demurrer on the grounds of statute of limitations.

Defendants contend that (I)the plaintiffs on appeal cannot rely on allegations contained in the superseded complaints; but the allegations of those complaints can be held against them; (II) contrary to the plaintiffs' contention, a demurrer does not give contentions and conclusions alleged in a complaint the status of admitted facts; (III) the alleged acts by the defendants, even assuming that they occurred, did not proximately cause the injuries of the plaintiffPeter Kiseskey; (IV)the statute of limitations for an action for intentional infliction of emotional distress is one year, and it accrues at the time of the wrongful act; (V) even assuming for the sake of argument, that the defendants' alleged acts did cause the plaintiff's heart attack, the cause of action for intentional infliction of emotional distress accrued when those acts led to Peter Kiseskey's emotional distress, not when that emotional distress was physically manifested some time later; (VI)plaintiffs' reliance on the case of Murphy v. Allstate Ins. Co.(1978)83 Cal.App.3d 38, 147 Cal.Rptr. 565, is misplaced; (VII) because Peter Kiseskey's injuries were not attributable to the acts of the defendants, Susan Kiseskey's cause of action for loss of consortium must fall because it is contingent upon Peter Kiseskey's cause of action; and (VIII)the acts alleged which did fall within one year of the filing of the plaintiffs' original complaint do not constitute emotional distress.

DISCUSSION

I

Ordinarily, a general demurrer should not be sustained unless the complaint liberally construed fails to state a cause of action on any theory.(Brousseau v. Jarrett(1977)73 Cal.App.3d 864, 141 Cal.Rptr. 200;Cameron v. Wernick(1967)251 Cal.App.2d 890, 60 Cal.Rptr. 102andCode Civ.Proc., § 452.)Material facts alleged in the complaint are treated as true for the purpose of ruling on the demurrer.(Gruenberg v. Aetna Ins. Co.(1973)9 Cal.3d 566, 572, 108 Cal.Rptr. 480, 510 P.2d 1032.)Also taken as true are facts that may be implied or inferred from those expressly alleged.(Harvey v. Holtville(1969)271 Cal.App.2d 816, 76 Cal.Rptr. 795.)However, contentions, deductions or conclusions of fact or law alleged in the complaint are not considered in judging its sufficiency.(Gruenberg v. Aetna Ins. Co., supra, 9 Cal.3d 566, 108 Cal.Rptr. 480, 510 P.2d 1032.)In short, the ruling on a demurrer determines a legal issue on the basis of assumed facts, i.e., all those material, issuable facts properly pleaded in the complaint, regardless of whether they ultimately prove to be true.The complaint will ordinarily be upheld even though the facts are not clearly stated, or are intermingled with a statement of irrelevant facts.(SeeGruenberg v. Aetna Ins. Co., supra, and also Colvig v. RKO General, Inc.(1965)232 Cal.App.2d 56, 66, 42 Cal.Rptr. 473.)

II

Defendants contend that there are factual contradictions between the earlier complaints and the FAC which must be held against plaintiffs.An amended complaint may be rendered defective by proof of attempted suppression in it of destructive matter set forth in a superseded pleading.Where the amended pleading attempts to avoid defects revealed in that prior pleading by ignoring those defects, the court may examine the prior complaint or complaints to ascertain whether the amended pleading is merely a sham.We have examined the superseded complaints and compared the allegations in them with the allegations of the FAC.We find no factual contradiction between them and conclude that defendants' contention in this regard is without merit.

III

Newby v. Alto Riviera Apartments(1976)60 Cal.App.3d 288, 296, 131 Cal.Rptr. 547, disapproved in part on other grounds inMarina Point, Ltd. v. Wolfson(1982)30 Cal.3d 721, 740-741, fn. 9, 180 Cal.Rptr. 496, 640 P.2d 115, cert. den., 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111, sets forth that "[t]he elements of a prima facie case of intentional infliction of mental distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress.(Golden v. Dungan(1971)20 Cal.App.3d 295, 302-311, 97 Cal.Rptr. 577;Fletcher v. Western National Life Ins. Co.(1970)10 Cal.App.3d 376, 89 Cal.Rptr. 78, 47 A.L.R.3d 286;Alcorn v. Anbro Engineering, Inc.(1970)2 Cal.3d 493, 497-498, 86 Cal.Rptr. 88, 468 P.2d 216;State Rubbish etc. Ass'n v. Siliznoff(1952)38 Cal.2d 330, 240 P.2d 282;Rest.2d Torts, § 46.)"

IV

There can be no question but that the FAC sufficiently alleged outrageous conduct.The FAC alleges, among other things, that on or about October 17, 1977, Douglas McCarron and others acting as "agents and/or employees" of respondent, within the scope of their employment telephoned Peter Kiseskey and stated "You are a no good son of a bitch and if you don't resign the agreement and get in set with the union, you'll be put in the hospital."It...