1 PEPPERDINE ASSOCIATES 2 Telephone: 3
Attorneys for Defendants Benno Ashrafi (Bar No. 123456) Section B2 (310) 555-5555 Facsimile: (310) 555-5556
4 City of Monrovia, and DOES 1 through 10, inclusive 5 6 7 8 9 10 11 RAYMOND TONNER and JULIA TONNER, ) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on February 24, 2004, at 8:30 a.m., or as soon ) ) Plaintiffs, ) ) v. ) ) CITY OF MONROVIA, a municipal ) corporation, and DOES 1 through 10, inclusive, ) ) Defendants. ) ) ) ) ) individuals, Case No.: BC267727 Date: Time: Dept: Judge: February 22, 2004 8:30 a.m. G Hon. Judy James SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES
CITY OF MONROVIA’S AND DOES’ 1 THROUGH 10 HEARING ON DEMURRER AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
Action filed: January 6, 2004
27 thereafter as the matter may be heard, in Department G of the above entitled court located at 123 28 Main Street, Los Angeles, California 90012, defendants City of Monrovia, and Does 1 through
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1 10, inclusive (collectively, “CITY”), will, and hereby do, generally and specifically demur to the 2 complaint of plaintiffs Raymond Tonner and Julia Tonner (collectively, “Plaintiffs”) on file in 3 4
(e), on the grounds that the complaint against CITY fail to state facts sufficient to constitute a
this action. This demurrer is made pursuant to California Civil Procedure Code Section 430.10
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cause of action against CITY. Because Plaintiffs cannot cure the defects in the complaint,
7 CITY’s demurrer should be sustained without leave to amend. 8
This demurrer is based on this notice, the accompanying demurrer and
9 memorandum of points and authorities, all matters of which this Court may take judicial notice, 10 the pleadings and other papers on file in this action, and such further evidence and arguments as 11
may be presented at or before the hearing on this demurrer.
12 13 14 Dated: January 30, 2004 15 16
By PEPPERDINE ASSOCIATES, LLP
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Benno Ashrafi (Section B2) Attorney for Defendant City of Monrovia
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1. CITY demurs to the purported complaint of Negligent Infliction of Emotional DEMURRER
Defendants, City of Monrovia and DOES 1 through 10 inclusive (collectively “CITY”), hereby demur to the complaint on the following grounds:
8 Distress on the grounds that it fails to state facts sufficient to constitute a cause of action. See 9 Cal. Civ. Proc. Code § 430.10(e). 10 11 12 13 14 15 DATED: January 30, 2004 16 17 18 19 20 21 22 23 24 25 26 27 28
3 By Benno Ashrafi (Section B2) Attorney for Defendant City of Monrovia PEPPERDINE ASSOCIATES, LLP amend. WHEREFORE, CITY prays that its demurrer be sustained without leave to
1 2 3 Preliminary Statement 4 Allegatins of the Complaint 5 Argument 6 I. 7 8 9 10 11 12 13 Conclusion 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
4 PLAINTIFFS’ COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO MEET ALL THE REQUIRED ELEMENTS FOR A CAUSE OF ACTION FOR NIED A. The Plaintiffs Cause Of Action Fails Because They Are Not Closely Related To The Injury Victim 1. The plaintiffs are not closely related to the injury victim because they are not members of an immediate family unit The plaintiffs do not meet the exceptional circumstances required to qualify as closely related to the injury victim TABLE OF CONTENTS
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Preliminary Statement This is a case about greed. The plaintiffs Raymond Tonner and Julia Tonner (“Plaintiffs”) are attempting to callously profit from the unfortunate result of the police protecting innocent neighborhood children by suing the defendant, City of Monrovia (“CITY”). The court should sustain the demurrer because the complaint fails to state facts sufficient to MEMORANDUM OF POINTS AND AUTHORITIES
11 constitute a cause of action. 12
Plaintiffs claim for negligent infliction of emotional distress (“NIED”) is fatally
13 defective. Under California law, a third party plaintiff can collect damages in a case of NIED 14 only if: (1) the plaintiff is closely related to the injury victim; (2) is contemporaneously aware of 15
the injury-producing event and its traumatic consequences; and, (3) suffers serious emotional
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distress. Plaintiffs can not meet the first element because, as a matter of law, they can not claim
18 that they are closely related to the chimpanzee. 19
Because the Plaintiffs can not cure these defects in their entirety, the demurrer
20 should be sustained without leave. 21 22 23 24 25
Parties. On January 6, 2004 Plaintiffs Raymond Tonner and Julia Tonner Allegations of the First Amended Complaint
26 (collectively “Plaintiffs”) flied their complaint against defendants City of Monrovia and Does 1 27 through 10 (collectively “Defendants”). 28
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At all times herein material, Plaintiffs were the owners of a chimpanzee named “ZOE.” On or about January 22, 2003, two police officers employed by Defendant
CITY’S police department appeared at Plaintiffs’ home and informed Plaintiffs that ZOE was being taken into custody to protect the children of Plaintiffs’ neighborhood. While both
6 Plaintiffs watched, one police officer shot ZOE with a Taser gun, resulting in ZOE’S death. 7 8 9 10 11 12 13 14
In 1989 the Supreme Court of California set forth 3 necessary elements that must ALL THE REQUIRED ELEMENTS FOR A CAUSE OF ACTION FOR NIED I. PLAINTIFFS’ COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO MEET Argument
15 be met in a cause of action for NIED. A third party plaintiff may recover damages for NIED if 16 the plaintiff: (1) is closely related to the injury victim; (2) is present at the injury producing 17 18
Thing v. La Chusa, 48 Cal. 3d 644, 667-68 (1989). Here, the Plaintiffs fail to meet the first
event and is then aware of the injury; and, (3) as a result suffers serious emotional distress. See
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6 not members of an immediate family unit 1. The plaintiffs are not closely related to the injury victim because they are A. The Plaintiffs Cause Of Action Fails Because They Are Not Closely Related To The Injury Victim requirement as they are not a close relative of the injury victim, the monkey.
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In 2002 a California Court of Appeals limited the scope of recovery in third party
2 plaintiff NIED cases to the immediate family unit, such as parents, spouses, siblings, children, 3 th
and grandparents of the victim. See Moon v. Guardian Postacute Services, Inc., 95 Cal.App.4 1005, 1011 (2002). Here, the Plaintiffs and the monkey are not part of an “immediate family unit” as determined by the court.
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The plaintiffs do not meet the exceptional circumstances required to qualify as closely related to the injury victim
In Moon the court extended the plaintiffs allowed recovery, in third party NIED cases, beyond the immediate family unit when exceptional circumstances exist. See id. at 1008. The plaintiff in Moon was the son-in-law of the injury victim. Plaintiff’s mother-in-law became
15 malnourished and lost significant weight before dying in an assisted living facility. See id. The 16 court held that the plaintiff could not recover because absent exceptional circumstances recovery 17 is limited to blood relatives. See id. 18 In Elden v. Sheldon, the plaintiff attempted to plead exceptional circumstances in 19 20 21
the time of the accident he had an unmarried cohabitation relationship with the decedent which an action for NIED caused by witnessing the death of his girlfriend. The plaintiff claimed that at
22 was both stable and significant and parallel to a marital relationship. See Elden v. Sheldon, 46 23 Cal. 3d 267, 269 (1988). The court did not allow recovery because they did not feel the 24 exceptional circumstance exception was met. The court concluded that an unmarried cohabitant 25 may not recover damages based on a claim for NIED. See id. at 273. 26 27 28
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Here the Plaintiffs can not show a close relationship sufficient to recover damages
2 in a third party claim for NIED. The courts have not recognized such a relationship in cases of 3
unmarried human cohabitants, nor have they recognized such a relationship between a son-in-
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law and his mother-in-law. The court should not recognize such a relationship between an owner
5 6 7 8 9 10 11 12 13 14 DATED: January 30, 2004 15 16 17 18 19 20 21 22 23 24 25 26 27 28
8 By Benno Ashrafi (Section B2) Attorney for Defendant City of Monrovia PEPPERDINE ASSOCIATES, LLP For all the forgoing reasons, CITY respectfully requests that the Court sustain this demurrer in its entirety, without leave to amend. Conclusion and a monkey.