Filed 5/7/14 Johnson v. Vallco Shopping Mall 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 

KENNETH JOHNSON, 

Plaintiff and Appellant, 

v. 

VALLCO SHOPPING MALL, LLC, et al., 

Defendant and Respondent. 

 H038513 

 (Santa Clara County 

 Super. Ct. No. 1-11-CV194784) 

 Plaintiff Kenneth Johnson appeals from a judgment entered after the court granted 

summary judgment to Vallco Fashion Mall (Vallco) and its security company, defendant 

IPC International Corporation (IPC). Plaintiff contends that he should be allowed to try 

his action for intentional and negligent infliction of emotional distress against IPC, even 

though he was not present when his son was injured by IPC security officers during an 

altercation at the mall. We will affirm the judgment. 

Background 

 In the evening of February 18, 2010, plaintiff's son, Desmond, went to Vallco with 

Kevin R. and his brother, Ronald R. All were minors at that time.1 The R. brothers had 

been banned from the mall, so when they were spotted by IPC officer Shawn Johnson, 

 

1 Desmond is no longer a minor, having turned 18 in July 2012. 
2

they were told to leave. As Officer Johnson escorted the three youths out of the mall, 

Ronald threatened Johnson and his family, and he lifted his right arm as if to throw a 

punch. The officer raised his arm to defend himself, and unintentionally hit Ronald with 

his walkie-talkie. A melee erupted, during which Johnson was repeatedly hit and kicked 

and briefly lost consciousness. At some point Desmond joined the attack on Johnson. 

He also attacked Paul Le, a former Vallco security guard who had followed the group as 

they were being escorted outside. Two other IPC security guards, Stas Plotnikov and 

Jason Robinson, responded to Johnson's radio calls for assistance. Plotnikov, who had 

seen Desmond hitting Le several times, grabbed Desmond and put him in a sleeper hold 

until Desmond passed out. When Johnson regained consciousness and got up, he 

restrained Desmond and told Plotnikov to tend to a head wound he had received in the 

attack. 

 The minors involved in the attack were arrested and taken to juvenile hall. There a 

nurse noted a "minor eye injury" to Desmond's right eye. Desmond was eventually found 

to have committed a felony during the incident. 

 Plaintiff initiated this action in propria persona on February 18, 2011, naming both 

Vallco and IPC as defendants.2 IPC filed a demurrer,3 the outcome of which is not in the 

appellate record. Subsequently, however, plaintiff filed an amended complaint against 

 

2 Plaintiff named both himself and Desmond as plaintiffs, but in a demurrer IPC pointed 

out that Desmond was not represented by counsel, nor did the complaint specifically 

name plaintiff as guardian ad litem. 

3The document provided in the respondents' appendix is represented to be the original 

complaint, but it includes only an allegation of "Intentional Tort," whereas IPC's 

demurrer indicates that there were initially two causes of action, for "General 

Negligence" and "Intentional Tort." Either we have not been provided with a complete 

copy of the original complaint or plaintiff accurately represented the complaint to contain 

only three pages, with no indication that anything other than an intentional tort (of 

uncertain nature) was the subject of the action. 
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only IPC. That pleading contained one cause of action, for "Intentional and Negligent 

Infliction of emotional distress." Referring to the injury to Desmond, plaintiff alleged an 

intentional "vicious and excessive use of force used on the plaintiff [sic] . . . which could 

have easily resulted in his death." The complaint then added, "And because of the 

intentional infliction and negligent emoti[on]al distress caused by the defendant, the 

plaintiff is seeking compensatory damages [of] $645,405.00 and $1,000,000 in punitive 

dam[a]ges." 

 Although only IPC was named in the amended complaint, presumably the original 

complaint remained in effect as to Vallco; no party states otherwise. For some reason, 

however, Vallco as well as IPC answered the amended complaint, and both thereafter 

moved for summary judgment. As to intentional infliction of emotional distress, they 

argued that the claim was legally unsupportable because plaintiff had admitted that he 

was not present at the scene of the melee when his son was injured. The superior court 

found this undisputed fact dispositive and granted the motion. This appeal followed.4

Discussion 

1. Standard and Scope of Review 

 In reviewing the superior court's ruling, we adhere to established principles of 

review. Our focus on appeal is directed at whether respondents established that plaintiff's 

claims of intentional and negligent infliction of emotional distress could not succeed as a 

matter of law. A defendant moving for summary judgment has the initial burden of 

showing that the action has no merit—that is, "that one or more elements of the cause of 

action, even if not separately pleaded, cannot be established, or that there is a complete 

defense to that cause of action." (Code Civ. Proc., § 437c, subds. (a), (p)(2).) If the 

 

4 Plaintiff filed two premature notices of appeal following the court's preliminary ruling. 

On our own motion, however, we construed plaintiff's notice of appeal as having been 

filed as of September 4, 2012, the date of entry of judgment. 
4

moving defendant makes that showing, the burden then shifts to the plaintiff to make a 

prima facie showing that there exists a triable issue of material fact. (Aguilar v. Atlantic 

Richfield Co. (2001) 25 Cal.4th 826, 850.) "The plaintiff . . . may not rely upon the mere 

allegations or denials of its pleadings to show that a triable issue of material fact exists, 

but, instead, shall set forth the specific facts showing that a triable issue of material fact 

exists as to that cause of action . . . ." (Code Civ. Proc., § 437c, subd. (p)(2).) On appeal, 

we independently review the record to "determine with respect to each cause of action 

whether the defendant seeking summary judgment has conclusively negated a necessary 

element of the plaintiff's case, or has demonstrated that under no hypothesis is there a 

material issue of fact that requires the process of trial, such that the defendant is entitled 

to judgment as a matter of law." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 

334; Daly v. Yessne (2005) 131 Cal.App.4th 52, 58.) 

2. Intentional Infliction of Emotional Distress 

 Both the original complaint (which included Vallco as a defendant) and the 

amended complaint (against IPC) appear to assert only one cause of action, for 

"Intentional Tort," notwithstanding the misplaced designation of the amended action as 

one for "Intentional and Negligent Infliction of emotional distress." Liability for 

intentional infliction of emotional distress, the apparent gravamen of plaintiff's pleadings, 

requires "(1) extreme and outrageous conduct by the defendant; (2) extreme or severe 

emotional distress to the plaintiff; and (3) actual and proximate causation between the 

two." (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 

1045.) 

 Plaintiff's allegation that the IPC guards' conduct was "outrageous" was not 

sufficient. For intentional infliction of emotional distress, "[i]t is not enough that the 

conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or 

occur in the presence of a plaintiff of whom the defendant is aware." (Christensen v. 

Superior Court (1991) 54 Cal.3d 868, 903 (Christensen); Potter v. Firestone Tire & 
5

Rubber Co. (1993) 6 Cal.4th 965, 1002.) In other words, " 'The law limits claims of 

intentional infliction of emotional distress to egregious conduct toward plaintiff

proximately caused by defendant.' [Citation.] The only exception to this rule is that 

recognized when the defendant is aware, but acts with reckless disregard, of the plaintiff 

and the probability that his or her conduct will cause severe emotional distress to that 

plaintiff. [Citations.]" (Christensen, supra, 54 Cal.3d at pp. 905-906.) Here, as in 

Christensen, plaintiff has "not alleged that the conduct of any of the defendants was 

directed primarily at [him], was calculated to cause [him] severe emotional distress, or 

was done with knowledge of [his] presence and of a substantial certainty that [he] would 

suffer severe emotional injury." (Id. at p. 906.) 

 Plaintiff acknowledges that the absence of these elements precludes his recovery, 

but he urges this court to disregard the Christensen rule as "unworkable." Even if we 

were inclined to do so, we are bound by stare decisis and the holdings of our high court. 

(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.) Accordingly, the 

superior court properly rejected plaintiff's theory of liability for intentional infliction of 

emotional distress. 

3. Negligent Infliction of Emotional Distress 

 As respondents pointed out in their moving papers, there is no allegation of 

negligence in plaintiff's amended complaint (nor, evidently, in the original complaint that 

included Vallco). Although he called his cause of action "Intentional and Negligent 

Infliction of emotional distress," the attachment to the amended complaint asserts only 

one cause of action, "Intentional Tort." The facts alleged within that heading describe 

intentional conduct toward Desmond, not plaintiff, and nothing involving negligence is 

alleged until the final sentence: "And because of the intentional infliction and negligent 

emoti[on]al distress caused by the defendant, the plaintiff is seeking compensatory 

damages [of] $645,405.00 and $1,000,000 in punitive damages." 
6

 Because the pleadings define the issues in a summary judgment proceeding, the 

opposition may not be predicated on allegations that are not pleaded in the operative 

complaint. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 

648; see Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265 ["If the opposing 

party's evidence would show some factual assertion, legal theory, defense or claim not 

yet pleaded, that party should seek leave to amend the pleadings before the hearing on the 

summary judgment motion"].) Accordingly, as plaintiff's amended complaint did not 

contain a negligence claim against IPC -- nor, according to the record, against either 

defendant in the original complaint -- summary adjudication was not necessary on a 

theory of negligent infliction of emotional distress. 

 But even if we were to construe the amended pleading extremely liberally to 

include a theory of negligence, it cannot succeed. It is settled that " '[t]he negligent

causing of emotional distress is not an independent tort, but the tort of negligence. 

[Citation.] The traditional elements of duty, breach of duty, causation, and damages 

apply.' " (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) "The lesson of these 

decisions is: unless the defendant has assumed a duty to plaintiff in which the emotional 

condition of the plaintiff is an object, recovery is available only if the emotional distress 

arises out of the defendant's breach of some other legal duty and the emotional distress is 

proximately caused by that breach of duty." (Potter v. Firestone Tire & Rubber Co., 

supra, 6 Cal.4th at pp. 984-985 [italics added]; Burgess v. Superior Court, supra, 2 

Cal.4th at p. 1072; Spinks v. Equity Residential Briarwood Apartments, supra, 171 

Cal.App.4th at pp. 1044-1045.) 

 Plaintiff pleaded no facts suggesting the elements of negligence -- a duty of care 

owed to the plaintiff, a breach of that duty, causation, and damages. (Cf. Huggins v. 

Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124; Behr v. Redmond (2011) 193 

Cal.App.4th 517, 532.) More specifically, as plaintiff was not present at the scene of 

Desmond's injury, respondents established that plaintiff would not be able to prove a duty 
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owed to him on either a bystander theory or a direct victim theory. (See Burgess v. 

Superior Court, supra, 2 Cal.4th at pp. 1072-1074.) Plaintiff offered no facts to the 

contrary; indeed, he readily admitted that the allegedly tortious conduct was directed at 

Desmond, not him, and that he did not witness it. Accordingly, to the extent that a theory 

of negligent infliction of emotional distress was actually pleaded, it was properly 

adjudicated in IPC's favor. 

Disposition 

 The judgment is affirmed. 

 ________________________________ 

 ELIA, Acting P. J. 

WE CONCUR: 

 _______________________________ 

 MIHARA, J. 

 _______________________________ 

 GROVER, J.