Filed 9/12/16 Felix v. Fernandez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



EDITH FELIX,                                                        D068505

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2014-00011367-
                                                                    CU-NP-CTL)
RODRIGO J. FERNANDEZ,

         Defendant and Respondent.


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

Gregory W. Pollack, Judge. Affirmed.

         Keith H. Rutman for Plaintiff and Appellant.

         Sheppard, Mullin, Richter & Hampton, Edward D. Vogel and Karin Dougan

Vogel for Defendant and Respondent.

                                                             I.

                                                 INTRODUCTION

         Edith Felix filed a form complaint against Dr. Rodrigo Fernandez alleging two

causes of action, one styled as "intentional tort" and the second as "general negligence."
Felix's claims were premised on several statements that Dr. Fernandez allegedly made to

her in the workplace, which Felix claimed caused her emotional distress. Dr. Fernandez

filed a demurrer in which he maintained that Felix had failed to allege facts sufficient to

state either claim. The trial court sustained the demurrer without leave to amend, and

subsequently entered judgment in favor of Dr. Fernandez.

       On appeal, Felix claims that Dr. Fernandez's remarks1 were sufficiently

outrageous to support a claim for intentional infliction of emotional distress. Felix also

claims that her allegation that Dr. Fernandez breached a duty owed to her was sufficient

to support a claim for negligent infliction of emotional distress.

       We conclude that while the remarks that Felix attributes to Dr. Fernandez were

"highly offensive," (Hughes v. Pair (2009) 46 Cal.4th 1035, 1049 (Hughes), they were

not so "outrageous" as to " ' " 'exceed[s] all bounds of that usually tolerated in a civilized

community,' " ' " as is required to state a claim for intentional infliction of emotional

distress. (Id. at p. 1051.) We also conclude that Felix has failed to adequately allege that

Dr. Fernandez owed her a legal duty sufficient to support her negligence claim. Finally,

Felix has not demonstrated that she could amend her complaint to remedy these defects.

Accordingly, we affirm the judgment.




1       In his demurrer, Dr. Rodriguez denied making the statements, but stated "for
purposes of this demurrer only, the statements will be considered to be true." Further,
given that we are reviewing an order sustaining a demurrer without leave to amend, we
accept as true all material facts alleged in the complaint.
                                              2
                                               II.

                     FACTUAL AND PROCEDURAL BACKGROUND

A. The complaint

       Felix filed a form complaint against Dr. Rodriguez in April 2014 alleging claims

for "intentional tort" and "negligence." As an attachment to the complaint, Felix

provided a narrative containing the following allegations, which formed the factual basis

for her complaint.

       Since February 2011, Felix has been employed as a unit secretary at Fresenius

Medical Care (FMC), Chula Vista Dialysis Center South (CVDCS). At the time of the

filing of the complaint, Felix was 23 years old.

       Dr. Fernandez, is a nephrologist affiliated with Sharp HealthCare who, pursuant to

a contract with FMC, makes monthly rounds at CVDCS to attend to the medical needs of

some of his patients. Shortly after meeting Dr. Fernandez, Felix "developed a feeling of

unease in his presence due to his constant comments concerning h[is] perception of her

young age." The comments included statements such as " 'why do have [sic] a high

schooler working here,' " " 'she looks like she's still in high school,' " and " 'hola nina.' "2

Dr. Fernandez made such comments in the presence of other staff and patients.

       On February 19, 2014, Dr. Fernandez approached a nurse's station where Felix,

Estela Gamboa (the charge nurse), and Sonia Barrera (another unit secretary) were

working. Dr. Fernandez remarked to Gamboa, " 'Why do you have a little girl working



2      Felix explained that "hola nina" is Spanish for "hello little girl."
                                               3
here?' " Felix interjected, " 'I'm not a little girl doctor. I'm 22 years old.' " Dr. Fernandez

responded, " 'You look like you would still be in high school.' "

       Dr. Fernandez asked Gamboa for a patient list. Gamboa asked Felix to print the

list. As Felix began to comply with Gamboa's request, Dr. Fernandez again commented

to Gamboa about Felix's age. Gamboa responded, " 'Doctor[,] she has two kids.' "

       As Felix started to step away from the nurse's station, Dr. Fernandez then stated,

" 'What?! That must have been rape.' "

       Felix was shocked and extremely hurt by the comment. However, she calmly

replied, " 'Well no[,] I was 18 years old when I had my first child and I had already

graduated high school.' "

       Dr. Fernandez asked Felix, " 'Do you have any brothers?' " After Felix replied that

she had two brothers, Dr. Fernandez stated, " 'They must not have loved you, to have let

you get pregnant.' " Dr. Fernandez then stated, " 'My daughter is 18 years old and she

knows that I own a Glock-45.' "

       Felix was immediately upset by the comments. Shortly after the exchange with

Dr. Fernandez, Felix went into a lunch room and began to cry. According to Felix, she

had "never felt so belittled, disrespected, and degraded by a doctor."

       Felix complained to her supervisors about Dr. Fernandez's conduct. The following

Monday, when Dr. Fernandez arrived at the CVDCS facility, he greeted Felix by saying,

" 'Hola Nina.' " This caused Felix to leave the facility in tears. She was gone for

approximately 45 minutes while she gained her composure. Felix continued to feel

"extremely uncomfortable" during subsequent interactions with Dr. Fernandez at the

                                               4
facility. Eventually, "someone decided that Dr. Fernandez was no longer welcome at the

CVDCS facility," and Felix has not seen him work at the facility since.

       In an "exemplary damages attachment" to the complaint, Felix alleged that

Dr. Fernandez's conduct was outrageous and went "beyond all possible bounds of

decency." In support of this allegation, Felix alleged that Dr. Fernandez "abused a

position of authority or a relationship (physician-medical secretary) that gave him real or

apparent power to affect [Felix's] interests," and/or that Dr. Fernandez "knew that . . .

[Felix] was particularly vulnerable to emotional distress," and/or Dr. Fernandez "knew

that his conduct would likely result in harm" to Felix due to mental distress.

B. Dr. Fernandez's demurrer

       Dr. Fernandez filed a demurrer to both causes of action. Dr. Fernandez interpreted

Felix's "intentional tort" claim as an attempt to state a claim for intentional infliction of

emotional distress. Dr. Fernandez argued that Felix's allegations in support of this claim

fell "woefully short" because the comments she attributed to him did not constitute

"outrageous conduct" sufficient to state a cause of action for intentional infliction of

emotional distress. In support of this argument, Dr. Fernandez maintained that the

statements were "significantly less offensive" than statements that the Supreme Court in

Hughes had concluded were not sufficient to support a cause of action for intentional

infliction of emotional distress. Dr. Fernandez also argued that Felix had failed to

sufficiently allege that she had suffered severe emotional distress, as required to state a

claim for intentional infliction of emotional distress.



                                               5
       Dr. Fernandez argued that Felix's negligence cause of action failed because there

is no duty under California law to avoid negligently causing emotional distress to

another. Dr. Fernandez further argued that because "no duty exists, . . . [Felix's]

negligence claim fails."

C. The trial court's ruling

       After further briefing and a hearing,3 the trial court sustained Dr. Fernandez's

demurrer without leave to amend. With respect to Felix's intentional tort claim, which

the court interpreted as a claim for intentional infliction of emotional distress, the court

cited Hughes and concluded that Felix had "fail[ed] to allege outrageous behavior

sufficient to state a cause of action for intentional infliction of emotional distress." With

respect to Felix's negligence claim, the court ruled that there was "no special relationship

between [Felix] and [Dr. Fernandez] that imposed a legal duty on the part of

[Dr. Fernandez] to not cause [Felix] emotional distress." The court further noted that

there is no independent tort for negligent inflection of emotional distress. In addition,

with respect to both causes of action, the court ruled that Felix had failed to sufficiently

allege that she had suffered severe emotional distress, which would be required to

adequately state either claim.

       The trial court subsequently entered a judgment in favor of Dr. Fernandez.

D. The appeal

       Felix timely appeals from the judgment.


3      Neither Felix's opposition nor the reporters' transcript from the demurrer hearing is
contained in the record.
                                              6
                                               III.

                                         DISCUSSION

A. The trial court properly sustained Dr. Fernandez's demurrer to Felix's intentional
   infliction of emotional distress cause of action4

       Felix claims that the trial court erred in sustaining, without leave to amend,

Dr. Fernandez's demurrer to her intentional infliction of emotional distress cause of

action. Specifically, Felix claims that she alleged that Dr. Fernandez engaged in

"conduct [that] was so extreme as to exceed all bounds of that usually tolerated in a

civilized society," as required to support a claim for intentional infliction of emotional

distress.

       1. The law governing review of an order sustaining a demurrer without leave to
          amend

       In Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, the

court outlined the following well-established law governing the review of an order

sustaining a demurrer without leave to amend:

            "A demurrer tests the legal sufficiency of the complaint. We review
            the complaint de novo to determine whether it alleges facts sufficient
            to state a cause of action. For purposes of review, we accept as true
            all material facts alleged in the complaint, but not contentions,
            deductions or conclusions of fact or law. We also consider matters
            that may be judicially noticed. [Citation.] 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.' [Citation.]
            Plaintiff has the burden to show a reasonable possibility the


4      In her brief, Felix makes clear that her claim, which is styled in her complaint as a
claim for "intentional tort," is a claim for "intentional infliction of emotional distress."
                                                7
          complaint can be amended to state a cause of action." (Id. at pp.
          1608-1609, fn. omitted.)

       2. The tort of intentional infliction of emotional distress

       In Hughes, supra, 46 Cal.4th at page 1050, the Supreme Court outlined the

elements of a claim for 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." ' " ' "

       In defining the outrageous conduct element of the tort, the Hughes court stated:

          "A defendant's conduct is 'outrageous' when it is so ' " 'extreme as to
          exceed all bounds of that usually 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.' " ' [Citation.] [¶] Liability for intentional
          infliction of emotional distress ' "does not extend to mere insults,
          indignities, threats, annoyances, petty oppressions, or other
          trivialities." ' " (Hughes, supra, 46 Cal.4th at pp. 1050-1051.)

       The Hughes court applied this law in considering whether a trial court had

properly granted summary judgment on a plaintiff's claim of intentional infliction of

emotional distress.5 (Hughes, supra, 46 Cal.4th at p. 1050.) In Hughes, the defendant

was one of three trustees of a trust established by the plaintiff's ex-husband, before his

death, for the benefit of their son, Alex. (Id. at p. 1039.) Plaintiff requested that the



5      The Hughes court also considered whether the trial court properly granted
summary judgment on plaintiff's sexual harassment claim. (Hughes, supra, 46 Cal.4th at
pp. 1048-1050.)
                                              8
trustees approve her request that the trust provide money for the two-month rental of a

beach house in Malibu. (Ibid.) The trustees denied the request, but approved money to

cover a one-month rental. (Id. at p. 1039-1040.) Approximately five days after the

trustees conveyed this information to plaintiff's attorney, the following occurred:

          "[P]laintiff received a telephone call from defendant, to whom she
          had not spoken for at least three years. Defendant said he was
          calling to invite Alex, who was then 13 years old, to accompany him
          and his nine-year-old son to a private showing of the King Tut
          exhibit that evening at the Los Angeles County Museum of Art. The
          sponsor of the event was an investment bank, Goldman Sachs, which
          managed the assets of Alex's trust.

          "During the conversation, defendant called plaintiff 'sweetie' and
          'honey,' and said he thought of her 'in a special way, if you know
          what I mean.' When plaintiff asked why the trustees had authorized
          payment for the Malibu house rental for just one month, defendant
          suggested that he could be persuaded to cast his vote for an
          additional month if plaintiff would be 'nice' to him. He added: 'You
          know everyone always had a thing for you. You are one of the most
          beautiful, unattainable women in the world. Here's my home
          telephone number and call me when you're ready to give me what I
          want.' Responding to plaintiff's retort that his comments were
          'crazy,' defendant said: 'How crazy do you want to get?'

          "That evening, plaintiff took Alex to the private showing at the
          museum. Defendant was there with his son. After greeting Alex,
          defendant told plaintiff: 'I'll get you on your knees eventually. I'm
          going to fuck you one way or another.' " (Id. at p. 1040.)

       The Supreme Court stated that "this crude statement, considered in the context in

which it allegedly was made, is most reasonably construed as a threat that, unless plaintiff

granted him sexual favors, he would use his authority, as a trustee of the trust set up for

plaintiff's son Alex, to deny plaintiff's requests for funds." (Hughes, supra, 46 Cal.4th at




                                              9
p. 1050.)6 Nevertheless, the Hughes court unanimously held that "defendant's

inappropriate comments fall 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, italics added.) Accordingly, the Hughes court concluded that the trial court

properly had granted the defendant's motion for summary judgment. (Id. at p. 1050.)

       In Haberman v. Cengage Learning, Inc. (2009) 180 Cal.App.4th 365 (Haberman),

the Court of Appeal applied Hughes in concluding that the trial court had properly

granted judgment as a matter of law for defendant on plaintiff's claim of intentional

infliction of emotional distress "because the record does not contain any evidence

showing Haberman was subjected to 'extreme or outrageous conduct' by defendants as a

matter of law." (Id. at p. 369.) In Haberman, the plaintiff (Haberman), a sales

representative for a textbook publisher, brought claims for sexual harassment and

intentional infliction of emotional distress against her employer's national sales manager

(Bredenberg). (Id. at pp. 368-369.) The Haberman court noted that Haberman's claims

were premised on evidence of 13 instances of alleged harassment:

           "(1) at [a] 2005 conference, Bredenberg asked Haberman how she
           looked so pretty so early in the morning; (2) in 2005, Bredenberg
           spoke of his wife's recurrent battle with cancer and said he thought
           the next time around he would go for the younger ones because
           women in their 40's get sick; (3) in 2005, Bredenberg commented
           that a school administrator was 'hot for being an older woman'; (4) in
           August or September 2006, in response to a customer's compliment


6       The Supreme Court offered this interpretation of the defendant's alleged statement
in the context of concluding that the trial court had properly granted defendant judgment
as a matter of law on plaintiff's sexual harassment claim. (Hughes, supra, 46 Cal.4th at p.
1050.)
                                              10
          of Haberman, Bredenberg told the customer that Haberman was
          amazing and had five children with no father in the picture; (5) at a
          conference in August 2006, he joked that his father, Richard, is
          referred to as 'Big Dick,' as opposed to Bredenberg (whose official
          first name is also Richard); (6) in the fall or winter of 2006, [another
          employee] asked Haberman whether she was seeing Bredenberg
          because he had said Haberman was ' "drop dead" gorgeous'; (7) on
          March 12, 2007, while they were separately parking for a
          convention, Bredenberg called Haberman on her cell phone and told
          her that he was coming right up behind her and it felt pretty good;
          (8) in 2007, Bredenberg asked Haberman if she was getting married;
          (9) in mid-April 2007 at the end of a conference, Bredenberg told
          her that an author of one of the textbooks they were selling had the
          'hots' for her and asked whether she or Avery would ever go out with
          the author; (10) on May 16, 2007, Bredenberg told Haberman that
          his grief counselor advised him not to make any changes for one
          year, said he was not ready for a relationship, and said he just
          wanted to have sex, and Bredenberg asked Haberman what she
          thought, whether she had any friends who just wanted to have sex,
          and how she knew whether anyone was good in bed; (11) on July 26,
          2007, Bredenberg and [Haberman's former supervisor] conducted a
          role-playing training session at Bredenberg's house; (12) on July 26,
          2007, Bredenberg asked Haberman if she had any friends who just
          wanted to have sex; and (13) on October 13, 2007, Bredenberg told
          her that a customer's contractor had the 'hots' for her and wanted to
          date her." (Id. at pp. 383-384.)

       The Haberman court concluded that evidence of such instances "fell far short of

establishing a hostile work environment," and "also fell 'far short of conduct that is so

"outrageous" that it " ' "exceed[s] all bounds of that usually tolerated in a civilized

community" ' " ' (Hughes, supra, 46 Cal.4th at p. 1051.)" (Haberman, supra, 180

Cal.App.4th at p. 389.)

       3. Application

       The comments that Dr. Fernandez made to Felix on February 19 were undoubtedly

crude, insensitive, and reflective of gender and age stereotyping that would offend any


                                              11
reasonable person. Such condescending and paternalistic comments concerning Felix's

sexual history and her familial status are highly inappropriate. However, under Hughes,

it is clear that Dr. Fernandez's conduct was not sufficiently outrageous to provide the

basis for a claim of intentional infliction of emotional distress. In Hughes, the defendant

abused his position of authority as a trustee in issuing a "threat" to plaintiff to engage in

sexual activity with him. (Hughes, supra, 46 Cal.4th at p. 1049.) Further, the defendant

in Hughes made a "vulgar and highly offensive" (ibid.) remark to plaintiff (" 'I'll get you

on your knees eventually. I'm going to fuck you one way or another.' ") (ibid.) that

directly reflected his aggressive sexual intent. Nevertheless, the Supreme Court

concluded that the comments fell "far short" of conduct that was sufficiently outrageous

to support an intentional infliction of emotional distress claim. (Id. at p. 1051.) In this

case, Dr. Fernandez is not alleged to have abused his authority in an attempt to engage in

sexual contact with Felix or to obtain some other benefit from her,7 he did not use

explicit language, and he did not threaten Felix.

       While the comments that Dr. Fernandez made on February 19 were highly

offensive, they occurred during a single short conversation. With respect to the remarks

made on other days concerning Felix's youthful appearance, these comments were, at

most, mildly insulting and annoying, and clearly do not support a claim for intentional


7      We are not persuaded by Felix's assertion in her brief that Dr. Fernandez "abused a
relation or position that g[ave] him power to damage the plaintiff's interests (master-
servant) . . . . " As discussed in part III.B, post, the complaint does not adequately allege
that Dr. Fernandez and Felix were in any type of master/servant relationship. Further, the
complaint does not allege that Dr. Fernandez made the offensive comments in order to
obtain some benefit from Felix.
                                              12
infliction of emotional distress. (See Hughes, supra, at p. 1051 [stating that a claim for

intentional infliction of emotional distress does not lie for " ' "insults," ' " or

" ' "annoyances" ' "]; Haberman, supra, 180 Cal.App.4th at p. 389 [concluding that

comments that reflected "mild innuendo" (id. at p. 385) and were "too personal and

[were] inappropriate for the workplace" (id. at p. 386) did not support a claim for

intentional infliction of emotional distress].)

       Felix's primary argument in her brief is that while a claim for intentional infliction

with emotional distress premised on "sexually suggestive remarks" is not actionable

under Hughes and Haberman, "comments about rape are actionable as a matter of law."

We are not persuaded. To begin with, Felix cites no authority for the proposition that

"comments about rape" are necessarily actionable, and we are aware of none. While

Felix is certainly correct that rape "is not something . . . to be joked about or made light

of," the mere fact that Dr. Fernandez's comment concerning rape was objectionable does

not establish that he engaged in " ' " 'extreme and outrageous conduct by the defendant

with the intention of causing, or reckless disregard of the probability of causing,

emotional distress . . . .' " ' " (Hughes, supra, 46 Cal.4th at pp. 1050-1051.)

       Accordingly, we conclude that the trial court properly sustained Dr. Fernandez's

demurrer to Felix's intentional infliction of emotional distress cause of action.8




8       Felix does not contend that she could amend her complaint to allege additional
facts to support the outrageous conduct element.
                                                13
B. The trial court properly sustained Dr. Fernandez's demurrer to Felix's negligence
   cause of action

       Felix claims that the trial court erred in sustaining Dr. Fernandez's demurrer to her

negligence cause of action without leave to amend. Felix argues that the trial court erred

"in determining a legal duty was lacking," and contends that she adequately alleged a

"master-servant" relationship, which "created the applicable legal duty." We apply the

standard of review outlined in part III.A.1, ante, in considering this claim.

       1. Governing law

       "[T]here is no duty to avoid negligently causing emotional distress to another,

and . . . damages for emotional distress are recoverable only if the defendant has breached

some other duty to the plaintiff." (Potter v. Firestone Tire & Rubber Co. (1993) 6

Cal.4th 965, 984 (Potter); see Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal

Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1264 ["The 'negligent causing of

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

usual duty and causation issues' "].) Thus, "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, supra, at pp. 984-985.)

       2. Application

       Felix clearly did not allege that Dr. Fernandez had assumed a duty whose object

was her emotional condition. (Potter, supra, 6 Cal.4th at pp. 984-985.) While Felix


                                             14
contends that she adequately alleged the existence of a "master-servant relationship"

between herself and Dr. Fernandez, her complaint alleged merely that she was a medical

secretary, that Dr. Fernandez was doctor, and that Dr. Fernandez made rounds at the

facility at which she worked "pursuant to a contract" with FMC, the entity for whom she

worked. She did not allege, and has not suggested that she could allege, that

Dr. Fernandez was her supervisor, her employer, or that he exercised any control over

her.

       More fundamentally, we are aware of no case law, and Felix cites none,

suggesting that an employer owes a duty to his employees to refrain from negligently9

inflicting distress.10 Felix has not identified any other duty that Dr. Fernandez could

have breached from which her emotional distress arose.




9      The Supreme Court has stated, with respect to the tort of intentional infliction of
emotional distress, "plaintiff's status as an employee should entitle him to a greater
degree of protection from insult and outrage than if he were a stranger to defendants."
(Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499, fn. 2.)
10     Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88 (Jacoves), which
Felix quotes in her brief, is clearly not such a case. Jacoves stated that a master-servant
relationship is a relationship that may give rise to a duty in the master to control the
conduct of his servants so as to avoid harming third parties. (Id. at pp. 114-115 [stating
that ordinarily a "defendant has no duty to control the conduct of another," but that "there
are judicially created exceptions which impose a duty on a defendant to control the
conduct of others when the defendant stands in some special relationship either with the
person whose conduct needs to be controlled or with the person who is the foreseeable
victim"].) Jacoves is inapposite because Felix has not sued her employer and does not
contend that Dr. Fernandez is liable for the conduct of a third party servant in harming
her.
                                            15
      Accordingly, we conclude that the trial court properly sustained Dr. Fernandez's

demurrer to Felix's negligence cause of action on the ground that Felix did not adequately

allege that Dr. Fernandez breached any legal duty owed to her.

                                           IV.

                                     DISPOSITION

      The judgment is affirmed. Felix is to bear costs on appeal.



                                                                     AARON, J.

WE CONCUR:

HALLER, Acting P. J.

O'ROURKE, J.




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