Filed 5/7/14 Johnson v. Vallco Shopping Mall CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Va llco) and its security company, defendant IPC International Corporation (IPC). Plaintiff contends that he should be allowed to try his action for intentional and negligent inflic tion of emotional distress against IPC, even though he was not present when his son wa s injured by IPC secur ity 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 brothe r, Ronald R. All were minors at that time. 1 The R. brothers had
been banned from the mall, so when they were spo tted by IPC officer Shawn Johnson,

1 Desmond is no longer a minor, havi ng turned 18 in July 2012.2 they were told to leave. As Officer Johns on escorted the three youths out of the mall, Ronald threatened Johnson and his family, a nd he lifted his right arm as if to throw a punch. The officer raised his arm to defend himself, and unintenti onally 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 ot her IPC security guards, Stas Plotnikov and Jason Robinson, responded to Johnson's radio calls for assistance. Plotnikov, who had seen Desmond hitting Le severa l times, grabbed Desmond and put him in a sleeper hold until Desmond passed out. When Johnson regained consciousne ss and got up, he
restrained Desmond and told Plotnikov to te nd 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, pl aintiff filed an ame nded complaint against

2 Plaintiff named both himself and Desmond as plaintiffs, but in a demurrer IPC pointed out that Desmond was not represented by coun sel, nor did the complaint specifically name plaintiff as guardian ad litem. 3 The document provided in the respondents' appe ndix is represented to be the original complaint, but it includes only an allega tion of "Intentional Tort," whereas IPC's demurrer indicates that there were initia lly two causes of action, for "General Negligence" and "Intentional Tort ." Either we have not been provided with a complete copy of the original co mplaint or plaintiff accurately re presented the complaint to contain only three pages, with no indication that anyt hing other than an intentional tort (of uncertain nature) was the subject of the action.3 only IPC. That pleading contained one caus e of action, for "Intentional and Negligent Infliction of emotional distress." Referring to the injury to Desmond, plaintiff alleged an
intentional "vicious and excessive us e of force used on the plaintiff [ sic ] . . . which could have easily resulted in his death." The co mplaint then added, "And because of the intentional infliction and negl igent 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 ame nded 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 bo th thereafter moved for summary judgment. As to intenti onal infliction of emotional distress, they argued that the claim was legally unsupportab le because plaintiff had admitted that he was not present at the scene of the melee when his son was in jured. The superior court found this undisputed fact dispositive and granted the moti on. 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 neg ligent infliction of emotional di stress 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 Ci v. Proc., § 437c, subd s. (a), (p)(2).) If the

4 Plaintiff filed two premature notices of appeal following th e 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 burd en then shifts to th e 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, 85 0.) "The plaintiff . . . ma y 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 sh owing that a triable issue of material fact exists as to that cause of action . . . ." (C ode Civ. Proc., § 437c, su bd. (p)(2).) On appeal, we independently review the r ecord to "determine with resp ect to each cause of action whether the defendant seeking summary judgm ent has conclusively negated a necessary element of the plaintiff's case, or has dem onstrated that under no hypothesis is there a material issue of fact that requires the proce ss 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 compla int (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 misp laced designation of the amended action as one for "Intentional and Negligent Inflicti on of emotional distress." Liability for intentional infliction of emotional distress, th e apparent gravamen of plaintiff's pleadings, requires "(1) extreme and outrageous conduc t by the defendant; (2) extreme or severe emotional distress to the plaintiff; and (3) actual and proximate causation between the two." ( Spinks v. Equity Residen tial Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1045.) Plaintiff's allegation that the IPC gua rds' conduct was "outrageous" was not
sufficient. For intentional in fliction of emotional distress, "[i]t is not enough that the
conduct be intentional and outra geous. It must be conduct di rected 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 othe r words, " 'The law limits claims of
intentional infliction of emotional di stress to egregiou s conduct toward plaintiff proximately caused by defendant.' [Citation.] The only exception to this rule is that recognized when th e 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 ar e 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 th eory of liability for in tentional 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 amende d complaint (nor, evid ently, in the origin al complaint that included Vallco). Although he called his ca use of action "Intentional and Negligent Infliction of emotional distress," the attach ment to the amended complaint asserts only one cause of action, "Intentional Tort." The facts alleged within that heading describe
intentional conduct toward De smond, not plaintiff, and nothi ng involving negligence is alleged until the final sentence: "And becaus e of the intentional in fliction and negligent emoti[on]al distress caused by the defendant , the plaintiff is se eking compensatory damages [of] $645,405.00 and $1,00 0,000 in punitive damages."6 Because the pleadings define the issues in a summary judgme nt proceeding, the opposition may not be predicat ed 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 asse rtion, 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 reco rd, against either defendant in the original complaint -- summary adjudica tion was not necessary on a theory of negligen t infliction of em otional 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 elem ents of duty, breach of duty, causation, and damages apply.' " ( Burgess v. Superior Court (1992) 2 Cal.4th 1064, 10 72.) "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. 98 4-985 [italics added]; Burgess v. Superior Court, supra, 2 Cal.4th at p. 1072; Spinks v. Equity Residentia l 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 br each 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 sp ecifically, as plaintiff was not present at the scene of Desmond's injury, respondents es tablished that plaintiff would not be able to prove a duty7 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 ad mitted that the allegedly torti ous 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 distre ss 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.