1

Filed 2/29/16 Chu v. Martin CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

LI CHING CHU et al.
, Plaintiffs and Appellants,

v. JEFF MARTIN et al
., Defendants and Respondents. A145317
(San Mateo County Super. Ct. No. CIV508888)

Cindy K. Hung (Cindy) was found dead at her workplace on October 21, 2010. 1
Her death was initially ruled a suicide by the coroner. Cindy’s parents, appellants Li Ching Chu and Ro bert Ching Liang Hung (Plaintiffs), are convinced that their daughter was murdered and the true cause of her death has been covered up by an ongoing conspiracy by her co workers and others

. Plaintiffs have attempted, largely without success, to pursue clai ms against various coworkers they contend were complicit in Cindy’s death. This case has been before us on several prior occasions

. ( Chu v

. Naik (May 26, 2015, A142837) [nonpub. opn.]; Chu v. Tribal Brands, Inc. (Mar. 12, 2015, A141730) [nonpub. opn.] ; C hu v. Tribal Technologies, Inc. (Mar. 6, 2015, A1 43749) [order dismissing appeal] ; Chu v. Glenborough 400 ECR, LLC (Apr. 9, 2014, A139167)

1 We refer to the decedent by her first name, consistent with appellants’ briefing. We intend no disrespect.2

[nonpub. opn.] ; Hung v. Superior Court (July 22, 2013, A139224) [order denying writ petition].) 2

T he trial court previously sustained demurrers to Plaintiffs’ amended complaint
without leave to amend as to nearly all individual defendants , and we have affirmed. ( Chu v

. Naik

, supra, A142837; Chu v. Tribal Brands, Inc. , supra, A141730.) At issue
here are demurrers su stained by the trial cour t without leave to amend as to individual
defendants J eff Martin, Susan Pfendt, Sohail Suleman, Sheryl Friesz and Michael Hales (collectively Respondents)

. 3 We again affirm.
I. B ACKGROUND Plain ti ffs’ claims arise from Cindy’s death at her workplace in October 2010. Cindy’s body was found on the rooftop of a breezeway in the office building where she worked for Tribal Technologies. Her death was initially deemed a suicide. 4 Plaintiffs allege that Tr ibal Technologies employees Joseph Vierra and Victoria Dinovich murdered Cindy with the assistance of Doe defendants and all defendants covered up the
crime. Martin, Pfendt, Suleman and Hales , among others, we re named as Doe defendants in a July 9, 2012 a mendment to Plaintiffs’ f irst a mended c omplaint ; Friesz and others

2 Our prior opinion s are law of the case on the issues decided therein and are citable for that purpose. (See San Francisco Forty

- Niners v. Nishioka (1999) 75 Cal.App.4th 637, 645

– 646 & fn. 7; Cal. Rules of Court, rule 8.1115(b)(1).)

3 Plaintiffs assert in their opening brief that Respondents are employed by corporate defendant Tribal Technologies : Martin
, the chief executive officer; Suleman
, a
v ice president; Pfendt
, a human r esources manager; Friesz , a h uman resources employee; and Hales , an engineer.

4 The initial death certificate listed the manner of death as suicide, resu lting from a “[j]ump from great height to second story roof top.” The death certificate was later amended to change manner of death to “pending investigation” and the circumstances as “unwitnessed jump or fall from great height to second story roof top.” The certificate was again amended to list the circumstances of death as “accident,” again “pending investigation.” Nothing in the record reveals a final determination.3

were named as a Doe defendant s in a further amendment filed on July 19, 2012

. 5 Respondents demurred to the first a mended c omplaint , and t he d emurrers were sustained
with leave to amend

. A s econd a mended complaint for d amages was filed on December 4, 2012

. A t hird a mended c omplaint was filed on December 14, 2012

. Respondents again demurred. The c ourt sustained the demurrers in part
, and gave Plain ti ff s a further opportunity to amend

. A fourth a mended c omplaint was filed on July 16, 2013
, assert ing causes of action for assault, battery, intentional infliction of emotional distress, negligen ce , negligent supervision and retention, and wrongful death

. Respondents were
named in the t hird c ause of a ction for i ntentional infliction of e motional d istress and the
f ourth c ause of a ction for n egligence. Martin and Pfendt were also named in a fifth c ause of action for n egligent s upervision and retention

. Respondents again demurred. On
October 2, 2014, t he court again sustained the demurrers in part with leave to amend.
The court also granted a motion to strike the f ifth c ause of a ction without leave to amend
on the basis that Martin and Pfendt’s demurrer to this cause of action had already be en sustained without leave to amend on June 26, 2013

. The operative trial court pleading was Plaintiffs’ fifth a mended c omplaint , filed on October 31, 2014. Plaintiffs ’ remaining causes of action against Respondents were claims for i ntentional i nfliction of e motional d istress (the third c ause of a ction) and

n egligence ( the f

ourth c ause of a ction). Plaintiffs again ple ade d a f ifth c ause of a ction for

n egligent s upervision against “Does 1

- 50

. ” Respondents jointly demurred and moved to
strike.
After hearing on January 8, 2015 , t he court sustained Respondents’ demurrer
without leave to amend

. A j udgment of d ismissal was filed on April 6, 2015

. Plaintiffs
filed a timely n otice of a ppeal from the judgment and argue the trial court erred in sustaining R espondents’ dem urrer without leave to amend.

5 Martin was named as Doe #3, Pfendt as Doe #4, Hales as Doe #5, Suleman as Doe #6, an d Friesz as Doe #8.4 II. D ISCUSSION We review an order sustaining a demurrer de novo, exercising our independent judgment as to whether, as a matter of law, the complaint states a cause of action on any available legal theory. (Se e Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) In doing so, we assume the truth of all material factual allegations together with those matters subject to judicial notice. ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We do

not , however, assume the truth of contentions, deductions or conclusions of fact or law. ( Interinsurance Exchange v. Narula (1995) 33 Cal.App.4th 1140, 1143.) If the demurrer was sustained without leave to amend, “we must decide whether there is a reasonable possibil ity the plaintiff could cure the defect with an amendment.” ( Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) If we find that an amendment could cure the defect, we will conclude that the trial court abused its discretion and reverse. Pla intiffs have the burden of proving that an amendment would cure the defect. ( Ibid. )
A. Intentional Infliction of Emotional Distress
Plaintiffs do not provide a captioned section in their opening brief that discuss es the requisite elements of a claim for intentional infliction of emotional distress , nor do they pre sent any argument or analysis as to why they believe the necessary elements were pleaded in the third cause of action of the fifth amended complaint

. The only headi ng in Plaintiffs’ brief that m entions emotional distress is captioned: “ Defendants Are Liable for Intentional/Negligent Infliction of Mental Suffering Because They Failed to Prevent Cindy’s murder, Left Cindy to Die in the Breezeway of the Building and Subsequently Participated In Covering

- Up the Murder. ” After asserting (erroneously, and without any citation to the record ) 6 th at the trial court sustained Respondents’ demurrer on the ground

“ that covering up a m urder is not outrageous conduct,” Plaintiffs discuss only the tort of

n egligent infliction of emotional distress under this heading and cite case authority dealing with that tort. They fail to articulate why this authority is applicable to a claim of

6 The statement of facts in Plaintiffs’ opening brief does not contain a single citation to the record.5

intentional infliction of emotional distress . The case they argue is “most relevant to the
facts at hand” is Burgess v. Superior Court (1992) 2 Cal.4th 1064 ( Burgess )

. Burgess
discussed the distinction between “bystander” and “direct victim” cases regarding liability for negligent infliction of emotional distress. In a bystand er case , “ ‘[i] n the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim, (2) is present at the scene of the injury

- producin g event at the time it occurs and is then aware that it is causing injury to the victim
, and (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness. ’ ” ( Id. at
p. 1073 , fn. omitted .) B ystander liability is premised upon a defendant ’ s violation of a duty not to negligently cause emotional distress to people who observe conduct which
causes harm to another. ( I bi d .) Plaintiff s have never alleged in any iteration of their pleadings that they were present at the scene when Cindy ’s injury occurred.
In a direct victim case
, “ a cause of action to recover damages for negligently inflicted emotional distress will lie, notwithstanding the criteria imposed upon recovery by bystanders,

. . . where a duty a rising from a preexisting relationship is negligently
breached. ” ( Burgess , supra, 2 Cal.4th at p. 1074 , italics added.) Plaintiffs did not plead
the existence of any pre existing relationship that w ould impose a duty of care to Plaintiffs on Respondent s b eyond that owed to the public in general. 7 Plaintiffs’ only discussion of the tort of intentional infliction of emotional distress
is buried under a different heading addressing liability of Respondents for “Negligent Supervision and Retention.” California Rules of Court, rule 8.204(a)(1)(B) requires an appellant to state each point under a separate heading or s ubheading summarizing the point and support ing each point by argument. “ The purpose of requiring headings and

7 In Chu v

. Naik, supra, A 142837 , we found that Plaintiffs’ identical claims for negligent infliction of emotional distress as to ot her defendants failed because Plaintiffs alleged no preexisting relationship with th ose defendants that would give rise to a duty of care. Because the defendants’ preexisting relationship was with Cindy, not Cindy’s parents, Plaintiffs’ claim necessarily failed. The same is true here.6

coherent arguments in appel late briefs is ‘ to lighten the labors of the appellate [ courts ] by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty d evolves of ascertaining the rule of law to apply may be advised, as they read, o f the exact question under consideration, instead of being compelled to
extricate it from the mass. ’ ” ( Opdyk v. California Horse Racing Bd. (1995)
34 Cal.App.4th 1826, 1830

– 1831 , fn. 4.) Despite ample opportunit ies to develop at least a passing familiar ity with the rules of appellate practice, Plaintiffs apparently chose to ignore this requirement. “ [ W ] e do not consider all of the loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument. ” ( Provost v. R egents of U

niversity of C

alifornia (2011) 201 Cal.App.4th 1289, 1294; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 .) A rguments not properly presented may be treated as forfeited. ( Consolidated Irrigation Dist. v. City of
Selma (2012) 204 Cal.App.4th 187, 201 .) Plaintiffs could not, in any event, prevail on
the merit s. While Plaintiffs do not discuss the requisite elements of a claim for intentional
infliction of emotional distress , w e do. “A cause of action for intentional i nfliction of
emotional distress exists when there is ‘ “ ‘ “ (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotio nal distress; (2) the plaintiff’ s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emot ional distress by the
defendant’ s outrageous conduct. ” ’ ” ’ [Citations.] A defendant’ s conduct is ‘outrageous’ when it is so ‘ “ ‘ extreme as to exceed all bounds of that usual ly tolerated in a civilized community.’ ” ’ [Citation.] And the defendant ’ s conduct must be

‘ “ ‘ intended to inflict injury or engaged in with the realization that injury will
result.’ ” ’ ” ( Hughes v. Pair (2009) 46 Cal.4th 1035, 1050

– 1051 ; CACI No. 1600 .) “It 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
, it alics added

. )7

Plaintiffs primarily premise their direct claims for inflicti on of emotional distress

on Respondents ’ alleged cover up of Cindy’s murder. In their f ourth a mended complaint,
Plainti ffs allege d that defendants “lied to investigators about Cin dy being depressed[,] .

. . bribed the San Mateo County Coroner and the police[,] .

. . threatened to sue the coroner if [he or she] did not do their bidding[,] .

. . [and] lied to the police .

. . to deflect attention away from the real murderers and to p revent Cindy’s murder from being investigated.” As a result of these actions, Plaintiffs “were made to believe that their daughter
committed suicide
, ” and “Defendants ensured that Cindy’s murder would not be investigated.”
In Chu v

. Naik

, supra, A142837 , we affirmed demurrers of other defendants sustained by the trial court as to precisely the same allegations of the f ourth a mended complaint

— primarily on the basis that Plaintiffs failed to plead that any of the alleged
conduct was either directed at Plaintiffs or knowingly committed in their presence

. 8 In sustaining Respondents’ demurrers to the fourth amended c omplaint, the trial court granted Plaintiffs leave to amend “to allege facts showing that the post

- death conduct forming the basis of [their] claims for emotional distress was d irected at Plaintiffs.”
In the f ifth amended c omplaint, Plaintiffs reiterated the same alleg ations: Martin, Pfendt, Suleman, and Friesz, “covered

- up the murder and lied to investigat ors about Cindy being depressed”; “ M artin bribed the San Mateo County Coroner and the police ”;
and “ Pfendt threatened to sue the coroner if they did not do their bidding. ” Plaintiffs again alleged that Hales made false statements to the police that “ he had a crush on Cindy
so as to def

l ect attention away from the real murderers ” and to prevent the murder from being properly investigated. Plaintiffs further alleged that “ [t] he police and coroner
communicated Hales’ lies to [P] laintiffs [.] Hales knew or should have known that his

8 “ ‘Under the doctrine of the law of the case, a principle or rule that a reviewing court states in an opinion and that is necessary to the reviewing court’s decision must be applied throughout all later proceedings in the same case, both in the trial court and on a later appeal.’ ” ( Water Replenishment Dist. of Southern California v. City of Cerritos (2012) 202 Cal.App.4th 1063, 1071.)8

lies to the police would be communicated directly to surviving [P] laintiffs who were suffered emotional distress upon hearing the abuse Hales perpetuated against Cindy
before and after her murder. ” They asserted that “[d] efendants

. . . communicat [ed] the
lie [s ] dir ectly to [P] laintiffs after Cind y’ s death” and that defendants’ conduct was

“ directed at surviving [P] laintiffs to ensure that they suffer emotional distress of the utmost degree

. . . , ” without indicating which “defendant” purportedly made this
communica tion and when it was made. Additional allegations in the f ifth a mended complaint included the assertion that Respondents “bribed the county coroner’s office and instructed [the pathol ogists] to telephone surviving [P] laintiffs to inform them that Cindy wa s an anorexic and severely depressed.” In sustaining Respondents’ demurrer,
the trial court noted that the only communication allegedly made to Plaintiffs at the behest of Respondents was the assertion that Cindy was depressed and anorexic, the alleged pu rpose of which was to cover up a homicide

— not to cause emotional distress

. Plaintiffs ’ only legal argument is that the rule enunciated in Christensen v. Superior Court

, supra, 54 Cal.3d 868, is unduly restrictive and that “ [ i ] mportant policy
considerations” favor broader liability. They cite a Tennessee case ( Doe 1 v. Roman
Catholic Diocese (Tenn. 2005) 154 S.W.3d 22) holding that the tort of “reckless infliction of emotional distress” did not require that the wrongful activit y be directed at a specific individual. ( Id. at pp. 38

– 39 .) Aside from the very different issues presented,
and the significant distinctions drawn by the Tennessee court in its discussion (“ a recklessness analysis is something unique which differs from a nalyses based strictly on either intent or negligence” ( i d . at p. 38) ) , we remain bound to follow our Supreme Court precedent (

Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 , 455 )

. The
third c a use of a ction in the fifth amended complaint continue s to suffer from t he same defects present in the f

ourth a mended c omplaint, and Respondents’ demurrer was properly s ustained.
B. Negligence
Plaintiff’s f

ourth cause of a ction for negligence alleged that Respondents “occupied positions in which eac h owed a duty to [Cindy]

. ” They assert that Martin,9

Pfendt
, and Suleman were Cindy’s “supervisors” and that “ [ e ] ach had a duty to prevent workplace harassmen t and violence against [Cindy], ” which they violated “by not only failing to prevent workplace har assment, violence and murder but created, fosted [ sic ] and encouraged a hostile work environment of violence and murder

. . . .”
Plaintiffs alleged that Hale s , Suleman and Frie s z “owed a duty toward [Cindy] not to interfere with the police investigation a nd the legal process
, ” which they breached by “lying and misleading the police a nd neglecting to tell the truth. ” Plaintiffs assert that as a consequence of these breaches of duty “Cindy sustained serious and permanent injuries to her person, which subseq uently led to her death

. . . .” The damages alleged are injuries to Cindy’s “reputation” (both before and after her death, and “serious mental
distress.” They also contend that Plaintiffs suffered injuries, including the expenses of the current litigati on, and “emotional distress” as a result of all Respondents’ participation in the “cover up” of the murder.
The trial court sustained t he most recent demurrer to the negligence claim on the basis that Plaintiffs had failed to pl ead causation as to Respondents: “ T he facts describing the ultimate injury to Cindy are that defendant Vierra yelled at an d verbally abused Cindy, beat her into unconsciousness, and then dumped her body from the rooftop.

. . . T he complaint contains no al legations describing any act by any of [ the Respondents] that could be deemed a substantial cause of Cindy’s death.” Plaintiffs do
not address this issue at all. Additionally, Plaintiffs submit no argument or authority here supporting the existence of an y direct duty of any of the R espondent s to Plaintiffs which would support a negligence claim

. Plaintiffs again provide no separate heading
, nor any discussion or legal argument
, dealing with the fourth ca use of action in the fifth amended complaint . Any claim of

error is therefore for feited. 9

9 We also observe that much of the conduct alleged occurred after Cindy’s death and coul d not have been the source of any cognizable injury to Cindy.10

C. Negligent Supervision and Retention Plaintiffs fail to identify exactly which order they challenge with rega rd to the f ifth

c ause of a ction in the fifth amended complaint

. H owever, it would appear that at issue is the June 26, 2013 order sustaining Martin, Pfendt, Suleman and Frie s z’s demurrer
without leave to amend as to the claim of negligent retention and supervision in the t hird
amended c omplaint

. The October 2, 2014 order strik ing without leave to amend the same allegations of t he f

ourth amended c omplaint was premised on the p rior sustained
demurrer

. In Chu v

. Tribal Brands , Inc. , supra, A141730, the trial court sustained demurrers
without leave to amend to the same fifth c ause of a ction in the f ourth amend ed c omplaint

. We affirmed, holding that while Cindy’s employer (Tribal Brands/Tribal Technologies) may have owed Cindy a duty of care (see Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815 [ “[ n ] egligence liability will be imposed upon the employer if it

‘ knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes ’ ” ]), “[n] either Tribal Technologies nor Tribal Brands, however, had a ny such duty to Plaintiffs. With no preexisting relationship with Plaintiffs and no corresponding duty of care to them, Tribal Brands cannot be held liable in negligence (including negligent supervision and retention) with respect to Plaintiffs.
Therefor e, the trial court correctly dismissed the direct claim for negligent supervision
and retention as to Tribal Brands. ”
In Ch u v

. Naik

, supra, A142837 , the trial court sustained demurrers to the identical
cause of action in the f

ourth a mended c omplaint , as alleged agai nst other individual
defendants

. We held that “[t] he trial court correctly dismissed these claims as to Respondents. ‘ [E]xcept where a statutory exception applies, an employee or former employee cannot sue other employees based on their condu ct relating to personnel actions, ’ even if the employees acted with malice. ( Sheppard v. Freeman (1998)
67 Cal.App.4th 339, 342; id. at pp. 346

– 347.) Plaintiffs argue they should be given an opportunity to conduct discovery regarding Respondents’ roles a t the company, but such information would not save the claims because it would not change the fact that11

Respondents are employees, not employers. Moreover, because Respondents could not have been held liable to Cindy for negligent supervision and retentio n, they also cannot be held liable to Plaintiffs for wrongful death action based on negligent supervision and retention. Plaintiffs argue Sheppard was wrongly decided, but at this point our adherence

to Sheppard is law of the case. ( Quackenbush v. Superi or Court (2000) 79 Cal.App.4th 867, 874.) ” Plaintiffs argue here that Respondents may nevertheless be held liable because they are supervisors. They cite no authority for their position , and they ignore the fact that our prior holdings are law of the cas e. Moreover, they fail to acknowledge our holding in Chu v

. Tribal Brands , Inc. , supra, A141730, that Plaintiffs could not state a direct claim for negligent retention and supervision because no duty was owed to Plaintiffs, as opposed to Cindy. In that same appeal, we also held a survival cause of action for negligent retention and supervision was precluded by Code of Civil Procedure
section 377.34
, 10 which limits recoverable damages for a successor in in terest to economic damages incurred prior to death

. ( Chu v

. Tribal Brands , Inc., supra, A141730 [ “ [t] he survival claim for negligent supervision and retention alleges Cindy suffered mental anguish, pain and suffering, and death, all damage s also barred by
section 377.34 ” ].) The demurrers were properly sustained and the motions to strike properly granted.
D. Denial of Leave to Amend Plaintiffs argue that they should have been given further leave to amend. Having repeatedly failed to address the fatal def iciencies in their pleading

— despite clear
statements from the trial court and this court identifying the defects

— Plaintiffs fail to suggest what additional facts could be now be alleged. The burden of proving a

10 “In an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable are limited to the loss or damage that t he decedent sustained or incurred before death , including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement .” (Code Civ. Proc., § 377.34, italics added.)12

reasonable possibility that a pleading defec t can be cured by amendment “ is squarely on
the [P laintiff s]

. ” ( Blank v. Kirwan , supra, 39 Cal.3d at p. 318

. ) The court did not abuse its discretion in denying further leave to amend.
III. D ISPOSITION The judgment for Respondents is affirmed. Respondents shall recover their costs on appeal

.

_________________________ BRUINIERS, J.

WE CONCUR:

_________________________ JONES, P. J.

_________________________ SIMONS, J.