Filed 4/21/22 Cairns v. Legal Aid Society of San Diego CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

NIGEL CAIRNS,

Plaintiff and Appellant,

v.

LEGAL AID SOCIETY OF SAN 

DIEGO, INC.,

Defendant and Respondent.

 D078441

 (Super. Ct. No. 37-2019-

00069067-CU-PO-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Gregory W. Pollack, Judge. Affirmed.

Nigel Cairns, in pro. per., for Plaintiff and Appellant.

Klinedinst, Heather L. Rosing and Robert M. Shaughnessy for 

Defendant and Respondent.

INTRODUCTION

Nigel Cairns sued the Legal Aid Society of San Diego (Legal Aid) for 

intentional infliction of emotional distress, after he was twice denied Legal 
2

Aid services in connection with a landlord-tenant matter.1 He appeals from 

the trial court’s ruling sustaining Legal Aid’s demurrer to his third amended 

complaint (TAC) without leave to amend. The trial court found the 

allegations of the TAC were “ ‘uncertain, ambiguous, and unintelligible’ ” 

(Code Civ. Proc.,2 § 430.10, subd. (f)); the mere denial of legal services does 

not constitute “ ‘outrageous conduct’ ” sufficient to state a viable cause of 

action for intentional infliction of emotional distress (§ 430.10, subd. (e)); and 

there was no reasonable possibility that Cairns can cure these deficiencies by 

amendment. We affirm.

BACKGROUND

I.

Cairns’s Allegations Against Legal Aid3

Cairns alleged he is a retired physician who lost a large part of his

retirement savings in the 2008 recession. In May 2017, he moved into the 

Manor, “a 140-unit apartment complex” in San Diego owned by Lions 

Community and subsidized by “HUD” (i.e., the United States Department of 

1 In the same lawsuit, Cairns also asserted a cause of action for 

intentional infliction of emotional distress against Lions Community Service 

Corporation (Lions Community), the owner of the building where he was 

living when he received notices of eviction. The trial court denied Lions 

Community’s anti-SLAPP motion to strike (Code Civ. Proc., § 425.16). Lions 

Community’s appeal of this ruling is proceeding separately under case 

number D078310.

2 Unspecified statutory references are to the Code of Civil Procedure.

3 Because this appeal arises from the trial court’s ruling sustaining Legal 

Aid’s demurrer, we recite the relevant factual allegations as it pertains to

Cairns’s claim against Legal Aid and exclude extraneous details that relate to 

his claim against Lions Community arising from his tenancy at the Lions 

Community Manor (the Manor).
3

Housing and Urban Development). Cairns received a monthly rent subsidy of 

“nearly $1K.”

In July 2017, Cairns received what he alleged was an “eviction notice.” 

He attached a partial copy of this notice to his second amended complaint. 

The notice bore the title, “Notice to Permanently Perform Covenant or Quit,” 

and informed Cairns that to comply, he was required, within 10 days, to 

cease and desist any behavior that interfered with others’ quiet enjoyment of 

the premises, cease and desist aggressive and/or harassing behavior with 

staff, and abide by the terms of his lease. (Capitalization omitted.)

Cairns alleged he consulted with a lawyer and “got the eviction 

changed to a warning.” However, in September 2017, his rent was refused 

“without explanation.” But he was able to “solve[ ]” the problem of the rent 

refusal when he sent a “complaint to [Lions Community] management sent 

via the BBB [Better Business Bureau].” In January 2018, he received a 90-

day notice of eviction. In April 2018, the manager for the Manor refused his 

rent and precluded him from completing “[r]e-certification papers” which “are 

required every year.”

In connection with his problems at the Manor, Cairns applied twice for

free legal assistance from Legal Aid. The first time was in September 2017, 

after his rent was refused. He alleged he “was unable to find out” why he 

was refused but “presumed that fewer assets was better.” He applied again 

in April 2018, with “only $7K remaining,” but was again refused. Believing 

he was facing “certain eviction, [he] gave up[,] gave away EVERYTHING, 

and set off on foot for Mexico.”
4

When he returned to San Diego in September 2018, he “read about the 

Shriver Project”4 and learned it had an “income criterion of $28K” which was 

“far above” his income. However, he did not know “the separate asset 

criterion.” “So in [the] Fall of 2018 [he] applied again, and decided to play a 

trick on [Legal Aid].” He provided Legal Aid with the financial information 

he had provided when he unsuccessfully applied in April 2018. This time, he 

“was accepted without reservations or conditions!” He received a call from 

Legal Aid the next day, and told the Legal Aid representative “that it was a 

trick.” That evening, he received a call from a Legal Aid lawyer. He asked 

why Legal Aid “did not use emails as that would have prevented the apparent 

serious mistake in [his] application” and received the response, “ ‘Too busy.’ ”

Cairns then visited the Legal Aid office and spoke to its director. When 

the director “read the entry” from when Cairns applied in April 2018, Cairns 

learned Legal Aid had purportedly made a mathematical mistake in 

considering his reported assets. Cairns had reported assets of “between $5K 

and $8K” but the intake worker, he alleges, “wrote $5K and $8K equals 

$13K.” He was “rejected” because “the limit was $10K.” He alleged he was 

then “ejected” from the office after arguing with the director.

Cairns alleged “[t]he inappropriate refusal of legal aid ensured [his] 

eviction, homeless[ness] and distress.” He sued Legal Aid, asserting 

intentional infliction of emotional distress as the sole cause of action. 

To further support his claim against Legal Aid, Cairns alleged he 

believes “there are factors which indicate possible co-ordination [sic] of 

4 Legal Aid explains that Cairns’s reference to the “Shriver project” 

appears to be a reference to “the Civil Counsel Program initiated under the 

Sargent Shriver Civil Counsel Act,” which “funds pilot projects to provide 

representation to low-income Californians on legal issues affecting basic 

human needs.”
5

behavior between” Legal Aid and Lions Community. He alleged “[i]t would 

be to [Lions Community’s] advantage if [he] were refused Legal Aid” because 

“[his] eviction would be simpler” and it “would also ensure [his] distress.” He 

further alleged that a lawyer who worked with the law firm that represented 

Lions Community used to work at Legal Aid, and a partner in the same law 

firm, “wrote in 2016 about the increased delays and work now involved in 

evictions because more clients had representation.” 

II.

Legal Aid’s Demurrer to the TAC

Legal Aid demurred to the TAC. On October 9, 2020, the trial court 

sustained the demurrer on two independent grounds. 

First, the trial court found the allegations against Legal Aid 

“ ‘uncertain, ambiguous, and unintelligible’ ” and sustained the demurrer 

pursuant to section 430.10, subdivision (f). 

Second, the trial court ruled that Legal Aid’s “fail[ure] to provide 

services to Cairns does not constitute the requisite ‘outrageous conduct’ 

sufficient to state a viable cause of action for intentional infliction of 

emotional distress.” Thus, it sustained the demurrer on the ground that the 

TAC failed to state facts sufficient to constitute a cause of action for 

intentional infliction of emotional distress, pursuant to section 430.10, 

subdivision (e).

The trial court sustained the demurrer without leave to amend, finding 

there is not a “reasonable possibility that Cairns can state a good cause of 

action against Legal Aid.” On January 22, 2021, the trial court entered a 

judgment of dismissal in favor of Legal Aid.5

5 Cairns filed his notice of appeal on December 3, 2020, before the 

judgment of dismissal was entered. We exercise our discretion under rule 
6

DISCUSSION

I.

Principles of Law

“In reviewing an order sustaining a demurrer, we examine the 

operative complaint de novo to determine whether it alleges facts sufficient to 

state a cause of action under any legal theory.” (T.H. v. Novartis 

Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.) “ ‘We treat the demurrer 

as admitting all material facts properly pleaded[.]’ ” (Blank v. Kirwan (1985) 

39 Cal.3d 311, 318 (Blank).) We “accept as true not only those facts alleged 

in the complaint but also facts that may be implied or inferred from those 

expressly alleged.” (Marshall v. Gibson, Dunn & Crutcher (1995) 37 

Cal.App.4th 1397, 1403.) “We do not, however, assume the truth of 

contentions, deductions, or conclusions of fact or law.” (Moore v. Regents of

University of California (1990) 51 Cal.3d 120, 125; accord Blank, at p. 318.)

“In considering a trial court’s order sustaining a demurrer without 

leave to amend, ‘ “we review the trial court’s result for error, and not its legal 

reasoning.” ’ ” (Morales v. 22nd Dist. Agricultural Assn. (2018) 25 

Cal.App.5th 85, 93.) We “ ‘affirm the judgment if it is correct on any theory.’ ” 

(Ibid.) “And when [a demurrer] is sustained without leave to amend, we 

decide 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; if not, there has been no abuse of discretion and we affirm.” (Blank, 

supra, 39 Cal.3d at p. 318.) “The burden of proving such reasonable 

possibility is squarely on the plaintiff.” (Ibid.)

8.308(c) of the California Rules of Court and treat the premature notice of 

appeal as though it was “filed immediately after the rendition of judgment.”
7

Further, on appeal, we presume the trial court’s judgment to be correct. 

(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is therefore the 

burden of the party challenging the judgment to affirmatively demonstrate 

error. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 

1125.) “ ‘In so doing, he must raise claims of reversible error or other defect 

[citation], and “present argument and authority on each point made.” ’ ” 

(Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fn. 8; Cal. Rules of 

Court, rule 8.204(a)(1)(B).) “We are not required to examine undeveloped 

claims or to supply arguments for the litigants.” (Allen v. City of Sacramento 

(2015) 234 Cal.App.4th 41, 52; Paterno v. State of California (1999) 74 

Cal.App.4th 68, 104.) “Nor is an appellate court required to consider alleged 

error where the appellant merely complains of it without pertinent 

argument.” (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119 (Berger).) 

An appeal may be deemed forfeited or abandoned where it fails to 

comply with the essential requirements of an appeal, including the 

requirement of providing a “reason to reverse or even modify the orders in 

question.” (Conservatorship of Ben C., supra, 40 Cal.4th at p. 544, fn. 8; see 

Berger, supra, 163 Cal.App.3d at p. 1120 [deeming appeal abandoned where 

appellant’s brief “simply failed to make any arguments to support any theory 

of error”].) 

These rules apply equally to self-represented litigants like Cairns.

“The same burdens are imposed uniformly and equally on all appellants, and 

self-represented parties are ‘ “held to the same restrictive procedural rules as 

an attorney.” ’ ” (Burkes v. Robertson (2018) 26 Cal.App.5th 334, 344–345

(Burkes); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985 

(Rappleyea) [“the rules of civil procedure must apply equally to parties 

represented by counsel and those who forgo attorney representation”].)
8

II.

The Trial Court Did Not Err in Sustaining

the Demurrer Without Leave to Amend

On appeal, Cairns does not challenge the grounds upon which the trial 

court sustained Legal Aid’s demurrer or identify any error in the trial court’s 

ruling. Rather, Cairns’s appellate arguments consist of identifying what he 

believes are “misleading” statements by Legal Aid in its briefing on the 

demurrer in the trial court. Because we conclude the trial court correctly 

sustained the demurrer without leave to amend and Cairns has failed to 

demonstrate any reversible error, we affirm.

A. Mere Denial of Legal Services Does Not Constitute Outrageous Conduct 

Required to State a Claim of Intentional Infliction of Emotional Distress

“A cause of action for intentional infliction 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, 

emotional distress; (2) the plaintiff’s suffering severe or extreme emotional 

distress; and (3) actual and proximate causation of the emotional distress by 

the defendant’s outrageous conduct.” ’ ” ’ ” (Hughes v. Pair (2009) 46 Cal.4th

1035, 1050 (Hughes).) 

“A defendant’s conduct is ‘outrageous’ when it is so ‘ “ ‘extreme as to 

exceed all bounds of that usually tolerated in a civilized community.’ ” ’ ” 

(Hughes, supra, 46 Cal.4th at pp. 1050–1051.) It is not enough for the 

defendant to intentionally cause emotional harm. (Rest.3d, Torts: Liability 

for Physical and Emotional Harm § 46, com. d.) To satisfy this element of a 

claim of intentional infliction of emotional distress “requires both that the 

character of the conduct be outrageous and that the conduct be sufficiently 

unusual to be extreme.” (Ibid.) “A great deal of conduct may cause emotional 

harm, but the requisite conduct for this claim—extreme and outrageous—
9

describes a very small slice of human behavior.” (Id., com. a.) “ ‘Liability has 

been found only where the conduct has been so outrageous in character, and 

so extreme in degree, as to go beyond all possible bounds of decency, and to be 

regarded as atrocious, and utterly intolerable in a civilized community.’ ” 

(Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) 

Several cases are illustrative of the degree to which a defendant’s 

conduct must exceed accepted norms to serve as the predicate for a claim of 

intentional infliction of emotional distress. In Hughes, for example, the 

trustee of the decedent’s estate made sexual advances on the decedent’s 

former wife, the mother of the estate’s sole beneficiary, and told her publicly 

and crudely that he would “get [her] on [her] knees eventually” and have 

sexual intercourse with her. (Hughes, supra, 46 Cal.4th at pp. 1039–1040.) 

Our high court held that while the trustee’s comments were “inappropriate,” 

they “[fell] far short of conduct that is so ‘outrageous’ that it ‘ “ ‘exceed[s] all 

bounds of that usually tolerated in a civilized community.’ ” ’ ” (Id. at 

p. 1051.) 

In Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594

(Mintz), an insurer was alleged to have denied benefits for an investigational 

treatment to the insured, a terminally ill patient, and then failed to advise 

him of his statutory right to independent review of the denial. (Id. at 

p. 1609.) The court held that while the alleged conduct “may arouse our 

sympathy,” it was not “extreme, outrageous, beyond the bounds of decency, 

atrocious, or intolerable in a civilized society.” (Ibid.)

And in McMahon v. Craig (2009) 176 Cal.App.4th 1502 (McMahon), an

owner whose dog died while under the care of veterinarians alleged that the 

veterinarians had taken steps to cover up their malpractice. (Id. at pp. 1515–

1517.) The court held that the veterinarians’ efforts to hide their malpractice 
10

did not “rise to the extremity” required of a claim for intentional infliction of 

emotional distress. (Id. at p. 1517.)

A comparison of the conduct held insufficiently outrageous in the 

foregoing cases with the conduct alleged in this case confirms that the trial 

court was correct in concluding the allegations of the TAC failed to state a 

cause of action for intentional infliction of emotional distress. Cairns alleged 

he was denied legal services because Legal Aid’s intake worker made a 

mistake when calculating his assets, and that he lost the opportunity to 

correct the mistake because Legal Aid personnel were “ ‘[t]oo busy’ ” to 

communicate with him about the reason for the denial. At most, Legal Aid’s 

denial of services would arguably be the result of the intake worker’s math 

error, which is not conduct that is “extreme, outrageous, beyond the bounds 

of decency, atrocious, or intolerable in a civilized society.” (Mintz, supra, 172 

Cal.App.4th at p. 1609.) Similarly, the failure to send Cairns an email 

explaining why he had been denied falls far short of “ris[ing] to the 

extremity” necessary to support this claim. (McMahon, supra, 176 

Cal.App.4th at p. 1517.)

Cairns does not challenge this aspect of the trial court’s decision. 

Instead, he makes contentions that are somewhat difficult to understand.6 

He asserts “that [he] suffered [intentional infliction of emotional distress]

because [he] received numerous eviction notices and was refused legal aid.” 

He provides the following overview of his contentions on appeal: “In my last 

6 We appreciate that self-represented litigants like Cairns face a difficult 

burden in attempting to present an appropriate appellate argument. 

However, as we have mentioned, we are required to apply the same rules to 

self-represented parties that we apply to parties represented by counsel. 

(Burkes, supra, 26 Cal.App.5th at pp. 344–345; Rappleyea, supra, 8 Cal.4th at 

pp. 984–985.)
11

submission to the court [i.e., his opposition to Legal Aid’s demurrer to the 

TAC], I marshaled my arguments. In [Legal Aid’s] reply [to his opposition 

brief, Legal Aid] makes the statements which I allege are misleading.” 

In other words, Cairns’s appellate arguments consist of contentions 

that Legal Aid, in the reply brief it filed in the trial court, in support of its 

demurrer to the TAC, mischaracterized or distorted his own positions as set 

forth in his brief opposing the demurrer. He does not attempt to connect 

Legal Aid’s alleged distortions to the trial court’s ruling. But this court is 

tasked with identifying errors in trial court rulings, not mistakes in briefs

filed in the trial court. Cairns’s arguments therefore do not present a 

cognizable theory of reversible error. (See Conservatorship of Ben C., supra, 

40 Cal.4th at p. 544, fn. 8 [appeal may be deemed abandoned where appellant 

fails to “raise claims of reversible error or other defect” in the orders appealed 

from]; Berger, supra, 163 Cal.App.3d at p. 1120 [deeming appeal abandoned 

where appellant’s brief “simply failed to make any arguments to support any 

theory of error”].)

B. Trial Court Did Not Err in Sustaining the Demurrer For Uncertainty in 

the TAC

Section 430.10, subdivision (f), provides that a party may demur to a 

pleading on the ground that “[t]he pleading is uncertain,” and that 

“ ‘uncertain,’ ” as used in this subdivision, “includes ambiguous and 

unintelligible.” “ ‘A demurrer for uncertainty is strictly construed, even 

where a complaint is in some respects uncertain, because ambiguities can be 

clarified under modern discovery procedures.’ ” (Chen v. Berenjian (2019) 33 

Cal.App.5th 811, 822.) “ ‘ “[D]emurrers for uncertainty are disfavored, and 

are granted only if the pleading is so incomprehensible that a defendant 

cannot reasonably respond.” ’ ” (A.J. Fistes Corp. v. GDL Best Contractors, 

Inc. (2019) 38 Cal.App.5th 677, 695 (A.J. Fistes).) This is that rare case 
12

where the operative pleading is too incomprehensible for Legal Aid to 

reasonably respond. 

In determining whether a complaint is uncertain, we consider whether 

its substantive factual allegations are “sufficient to apprise” the defendant of 

the basis of the claims against it. (See A.J. Fistes, supra, 38 Cal.App.5th at 

p. 695.) Here, as Legal Aid persuasively argues on appeal, the TAC’s factual 

allegations fail to allege facts sufficient to apprise Legal Aid of the basis of 

Cairns’s sole claim of intentional infliction of emotional distress. As 

discussed above, one of the elements of such a claim is that “the defendant’s 

conduct must be ‘ “ ‘intended to inflict injury or engaged in with the 

realization that injury will result.’ ” ’ ” (Hughes, supra, 46 Cal.4th at 

p. 1051.) Cairns’s TAC, although replete with facts, fails to specify on what 

basis he claims Legal Aid’s denial of services was intentional. Instead, it 

appears Cairns intends the reader to infer from those facts he does allege 

that Legal Aid was somehow acting in concert with, or under the direction of, 

others who were collaborating to silence him. However, this aspect of 

Cairns’s claim is left to surmisal. The TAC is thus uncertain, and the trial 

court did not err in sustaining Legal Aid’s demurrer on this ground. 

Rather than challenge the trial court’s ruling granting Legal Aid’s 

demurrer for uncertainty, Cairns criticizes a statement that Legal Aid made 

in the section of its reply brief filed in the trial court in which it argued that 

the TAC was subject to demurrer for uncertainty. The statement was: “The 

facts that [Cairns] believes [he] can substantiate, however, are of the phone 

calls that he made to Legal Aid to challenge its application criteria — or, as 

he puts it, he ‘presumed the office [he] called when [he] played a “trick” on 

[Legal Aid] would have records,’ and his ‘phone call log shows the expected 

occurrence and sequence of calls.’ ” (Italics added.) Cairns asserts that the 
13

italicized words were not true, that he did make the referenced phone calls, 

and that “Legal Aid has the records- I am just describing what they are.” 

Cairns misperceives the issues presented by a demurrer for 

uncertainty. A demurrer for uncertainty lies where “the essential facts upon 

which a determination of the controversy depends” are not “stated with 

clearness and precision so that nothing is left to surmise.” (Ankeny v. 

Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531, 537.) Cairns 

appears to be under the mistaken belief that Legal Aid’s demurrer for 

uncertainty amounted to a contention that there was an absence of evidence 

to support the allegations of the TAC. 

His appellate argument thus fails, for two reasons. First, we discern no 

distortion by Legal Aid of Cairns’s description of the evidence that existed to 

support his claim. Second, any such distortion, even if it occurred, was 

immaterial since the existence of evidence of Cairns’s phone calls to Legal Aid 

(or any other fact alleged in the TAC) was irrelevant to whether the 

allegations of the TAC were sufficiently clear and comprehensible to avoid a 

demurrer for uncertainty.

C. Cairns Has Not Demonstrated Any Reasonable Possibility He Can 

Amend to State a Cause of Action for Intentional Infliction of Emotional 

Distress Against Legal Aid

When a demurrer is sustained without leave to amend, “we decide 

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; if not, there has been no abuse of discretion and we affirm.” (Blank, 

supra, 39 Cal.3d at p. 318.) “Plaintiff has the burden to show a reasonable 

possibility the complaint can be amended to state a cause of action.” (Reeder 

v. Specialized Loan Servicing LLC (2020) 52 Cal.App.5th 795, 801.) 
14

Cairns did not seek leave to amend the TAC in the trial court. On 

appeal, he does not contend the trial court abused its discretion by denying 

him leave to amend. He does not assert that there is a possibility of 

amending to cure the foregoing defects, and he does not attempt to show how 

any such amendment would cure the defects in his TAC that caused the trial 

court to sustain Legal Aid’s demurrer. We conclude the trial court did not 

abuse its discretion by denying him the opportunity to file yet another 

amended complaint.

D. Conclusion

In sum, Cairns’s arguments on appeal are limited to criticizing the 

reply brief his opponent filed in the trial court. These are not the sorts of 

arguments that have the potential to demonstrate reversible error. We have 

reviewed the positions advanced by Cairns and do not find in them any basis 

for concluding that the trial court erred when it sustained Legal Aid’s 

demurrer to the TAC. Nor does Cairns present any argument supporting the 

conclusion that the trial court abused its discretion when it denied him the 

opportunity to file a fourth amended complaint. Because Cairns fails to 

present this court with a reason for reversing the trial court’s decision, we 

affirm the judgment. 
15

DISPOSITION

The judgment of dismissal is affirmed. Each side shall bear its own 

costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

DO, J.

WE CONCUR:

AARON, Acting P. J.

IRION, J.