BB-11-b-16
CHARLES R. GARRY,
GARRY, DREYFUS, MCTERNAN, BROTSKY,
HERNDON & PESONEN, INC.
1256 Market Street at Civic Center
San Francisco, California 94102
Telephone: 864 3131
Attorneys for Defendant
PEOPLES TEMPLE OF THE DISCIPLES OF CHRIST,
a nonprofit corporation
SUPERIOR COURT OF CALIFORNIA IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
JAMES COBB, JR.,
Plaintiff,
vs.
PEOPLES TEMPLE OF THE DISCIPLES OF CHRIST, a nonprofit corporation; JAMES WARREN JONES, also known as JIM JONES; TERESA BUFORD; JEAN F. BROWN; PAMELA G. MOTON; and FIRST DOE through FIFTIETH DOE, inclusive,
Defendants.
NO. 739 907 POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT
Date: October 2, 1978
Time: 9:30 A.M.
Dept: 9 Law and Motion
I. WHEN ANY GROUND FOR OBJECTION TO A COMPLAINT APPEARS ON THE FACE THEREOF, THE OBJECTION ON THAT GROUND MAY BE TAKEN BY A DEMURRER TO THE COMPLAINT.
CCP § 430.30
II. THE PARTY AGAINST WHOM A COMPLAINT HAS BEEN FILED MAY OBJECT BY DEMURRER WHEN THE COMPLAINT DOES NOT STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION.
CCP § 430.10(e).
III. THE FIRST AND SECOND CAUSES OF ACTION DO NOT STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS BECAUSE THEY DO NOT ALLEGE OUTRAGEOUS AND EXTREME CONDUCT.
To constitute a cause of action for intentional infliction
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of emotional distress the conduct complained of must have been extreme and outrageous.
Alcorn v. Anbro Engineering, Inc.
2 C.3d 493, 498 (1970).
The conduct must have “gone beyond all reasonable bounds of decency.”
State Rubbish, etc. Ass’n.~ v. Siliznoff,
38 C.2d 330, 333-339 (1952)
The law intervenes only where the distress inflicted is so severe that no reasonable person could be expected to endure it.
4 Witkin 2d 2515
Rest. 2d, Torts § 46, comment j.
As pointed out in paragraph 2 of the demurrer, it is unclear what specific conduct of defendants plaintiff claims caused him severe emotional distress in the first cause of action. It appears from paragraphs 22-25 of the complaint, however, that he claims his injuries were all caused by the letter attached to the complaint as Exhibit A and quoted in full in paragraph 18 of the complaint. He claims that this letter caused him severe emotional distress because it caused him to fear that he would be murdered by supporters of Chris Lewis and supporters of Jim Jones.
A fear of being murdered would certainly cause most people severe emotional distress, and to threaten one with that possibility might well constitute “outrageous conduct.” But there is absolutely nothing in the letter allegedly sent to plaintiff by defendants which contains any explicit or implicit threats of or references to murder or any physical harm to
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plaintiff. There is no reason whatsoever that this letter would put plaintiff in fear of being murdered. The writer simply indicates that he or she and possibly others did not like what the plaintiff was doing and that his course of conduct would earn him bitter enemies. Such a letter would be a reasonable response to plaintiff’s efforts against the Peoples Temple since he left it in 1973. It certainly does not constitute outrageous conduct. Thus it appears from the face of the complaint, paragraph 18, and Exhibit A attached thereto, that no outrageous conduct is alleged in plaintiff’s first cause of action.
Similarly the acts which plaintiff alleges caused him severe emotional distress in the second cause of action were not outrageous. Plaintiff alleges that he was injured by the publi-cation of an open letter and a press release in which plaintiffs stated that the members of the Peoples Temple’s collective community in Guyana voted unanimously “to resist harrassment and persecution even if it means death.” Plaintiff does not allege that the members of that collective did not make that decision, but merely that the decision and its publication caused him emotional distress.
The press release of which plaintiff complains, which is attached to the complaint as Exhibit C, specifically attempts to explain this decision and to put it in the proper context. The press release made it clear that the decision of the collective members was a political decision comparable to that of Dr. Martin Luther King or Patrick Henry. Certainly no one would contend that
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the publication of the choice of King or Henry to fight harrassment and persecution to the death was outrageous conduct, though it may have been distressing to some who heard or read of it at the time.
Contrary to plaintiff’s allegations in paragraphs 29 and 32, there is nothing in either the open letter or the press release which even remotely approaches a “megalomaniacal threat of mass murder.” This appears clearly from the face of the complaint, paragraphs 27 and 28, and Exhibit B and C attached thereto. Thus though a threat of mass murder would certainly be outrageous, it is clear from the face of the complaint, that no such threat was made.
IV. THE PARTY AGAINST WHOM A COMPLAINT HAS BEEN FILED MAY OBJECT BY DEMURRER WHEN THE COMPLAINT IS UNCERTAIN, AMBIGUOUS, OR UNINTELLIGIBLE.
CCP § 430.10(f)
In pleading, the essential facts upon which a determination of the controversy depends should, be stated with clearness and precision so that nothing is left to surmise. Mere recitals, references to or allegations of material facts which are left to surmise are subject to a special demurrer for uncertainty.
Bernstein v. Piller
98 C.A.2d 441, 443-444 (1950)
Demurrer for uncertainty lies where a reading of the allegations fails to remove uncertainty as to which act caused plaintiff’s injuries.
Hitson v. Dwyer,
61 C.A.2d 803, 809 (1943)
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V. ALL OF THE CAUSES OF ACTION OF THE COMPLAINT ARE UNCERTAIN, AMBIGUOUS OR UNINTELLIGIBLE.
For all of the reasons set forth in paragraphs 2-13, 16-22, 24-27, 29 and 31 of the demurrer, the first, second, third, fourth and fifth causes of action are uncertain, ambiguous and unintelligible.
CONCLUSION
GARRY, DREYFUS, McTERNAN, BROTSKY, HERNDON & PESONEN. INC.By Charles R. Garry
Attorneys for Defendants
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PROOF OF SERVICE BY MAIL—1013(a), 2015.5 C.C.P.
I am a citizen of the United States; my business address is 1-256 Market Street at Civic Center, San Francisco 94102. I am employed in the City and County of San Francisco, where this mailing occurs; I am over the age of eighteen years and not a party to the within cause. I served the within
Points and Authorities in Support of Demurrer to Complaint
on the following person(s) on the date set forth below, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Post Office mail box at San Francisco, California, addressed as follows:
Timothy Oliver Stoen
120 Montgomery Street, Suite 1700
San Francisco, CA. 94104
I certify or declare under penalty of perjury that the foregoing is true and correct. Executed on September 18, 1978 at San Francisco, California.
Signature