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TENTATIVE RULING

HEARING DATE: October 6, 2020

CASE NUMBER: 19STCV29458


CASE NAME: CHRISSIE CARNELL BIXLER, et al. v. CHURCH OF
SCIENTOLOGY INTERNATIONAL, et al.

MOVING PARTY: Defendant Daniel Masterson (“Masterson”)

RESPONDING PARTY: Plaintiffs Chrissie Carnell Bixler (“Bixler”), Cedric Bixler-


Zavala (“Bixler-Zavala”), Jane Doe #1, Marie Bobette Riales
(“Riales”), and Jane Doe #2 (collectively, “Plaintiffs”)

TRIAL DATE: None Set

MOTION: (1)Masterson’s demurrer to Plaintiffs’ first amended


complaint and (2) motion to strike portions of Plaintiffs’ first
amended complaint

THE DEMURRER AND MOTION TO STRIKE ARE NOT TEXT-SEARCH ENABLED

The first amended complaint is not text-search enabled, as required by the


Presiding Judge’s Order re Electronic Filing which made it very time-consuming to sort
through the 55 pages of the first amended complaint. Counsel are admonished to
comply with this order in future filings.1

ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

According to the first amended complaint, Defendants stalked, harassed, invaded


the privacy of Plaintiffs and Plaintiffs’ families, and intentionally inflicted emotional
distress on Plaintiffs, who are four women2 who claim to have been sexually assaulted

1
See the May 3, 2019 First Amended General Order “In re Los Angeles Superior Court
– Mandatory Electronic Filing for Civil”, page 4, par. 6(a), which states “” Electronic
documents must be electronically filed in PDF, text searchable format when
technologically feasible without impairment of the document’s image.”
2Except Plaintiff Cedric Bixler-Zavala, who is the husband of Plaintiff Chrissie Carnell
Bixler.

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by Defendant Daniel Masterson, a “field staff member” or recruiter for Church of
Scientology and Religious Technology, which organizations are allegedly led by
Defendant David Miscavige (collectively “Defendants”). Defendants’ conduct was
allegedly to retaliate against Plaintiffs for reporting the alleged sexual assaults to the
Los Angeles Police Department (“LAPD”).

Plaintiffs allege Defendant Masterson, a high-ranking member of Church of


Scientology and Religious Technology, sexually assaulted Plaintiff Chrissie Bixler at
various times between 1996 and 2002 while the two were dating and cohabitating.
Plaintiffs allege David Miscavige, Church of Scientology, and Religious Technology and
their agents coerced, by threats of violence and ostracization, Plaintiff Bixler not to
report the sexual assaults to law enforcement. In 2016, Bixler reported the assaults by
Masterson to the Los Angeles Police Department (“LAPD”). Following Bixler’s 2016
report to the present, Plaintiffs Bixler and Bixler-Zavala suffered various trespasses,
invasive surveillance, stalking, threats of violence, defamation, sexual harassment,
destruction of property (including pets, identity theft, assaults using automobiles,
harassing phone calls, text messages, and social media messages, and wire tapping;
all purportedly from agents of the Defendants. Plaintiffs allege this conduct is designed
to dissuade Bixler from, and punish Bixler for, cooperating with law enforcement.

Plaintiffs allege that: in September 2002 Masterson drugged and sexually


assaulted Plaintiff Jane Doe #1; and in April 2003 Masterson drugged and sexually
assaulted Jane Doe #1 while strangling her and threatening her with a firearm. Agents
for Defendants attempted to coerce, with threats of violence and ostracization, Jane
Doe #1 to not report the sexual assaults to law enforcement. In June 2004, Jane Doe #1
reported the sexual assaults to the LAPD. Agents of Defendants coerced Jane Doe #1
to sign a non-disclosure agreement regarding the sexual assaults. In 2016, Jane Doe
#1 asked the LAPD to reopen the investigation into Masterson’s sexual assaults against
her. Following Jane Doe #1’s 2016 request to the present, Jane Doe #1 suffered
harassing phone calls, text messages, and social media messages, stalking, witness
tampering, invasive surveillance, defamation, various trespasses, larceny, property
damage, identity theft, threats of violence, assaults, sexual harassment, and wire
tapping; all purportedly from agents of the Defendants. Plaintiffs allege this conduct is
designed to dissuade Jane Doe #1 from, and punish Jane Doe #1 for, cooperating with
law enforcement.

Plaintiffs allege that at various times between 2002 and 2004 Masterson drugged
and sexually assaulted Plaintiff Marie Bobette Riales (“Riales”). In April 2017, Riales
reported the assaults by Masterson to the LAPD. Following her April 2017 report, Riales
suffered stalking, stalking of her children, harassing phone calls, text messages, and
social media messages, invasive surveillance, property damage, various trespasses,
identity theft, defamation, sexual harassment, threats of violence, arson, destruction of
property – particularly pets, and wire taping; all purportedly from agents of the
Defendants.

Plaintiffs allege that some time before 2004 Masterson drugged and sexually

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assaulted Plaintiff Jane Doe #2. In 2017, Jane Doe #2 reported the assault by
Masterson to the LAPD. Following her 2017 report, Jane Doe #2 suffered wire taping,
harassing phone calls, text messages, and social media messages, property damage,
invasive surveillance, stalking, threats of violence, defamation, and identity theft; all
purportedly from agents of the Defendants. Plaintiffs allege this conduct is designed to
dissuade Jane Doe #2 from, and punish Jane Doe #2 for, cooperating with law
enforcement.

Procedural History

On August 22, 2019, Plaintiffs Chrissie Carnell Bixler (“Bixler”), Cedric Bixler-
Zavala (“Bixler-Zavala”), Jane Doe #1, Marie Bobette Riales (“Riales”), and Jane Doe
#2 (collectively, “Plaintiffs”) filed a complaint against Defendants Church of Scientology
International and Church of Scientology Celebrity Centre International (collectively,
“Church of Scientology”), Defendant Religious Technology Center (“Religious
Technology”), Defendant Daniel Masterson (“Masterson”), Defendant David Miscavige
and Does 1-25 (collectively, “Defendants”) for (1) stalking in violation of Civ. Code §
1708.7, (2) physical invasion of privacy in violation of Civ. Code § 1708.8, (3)
constructive invasion of privacy in violation of Civ. Code § 1708.8, (4) intentional
infliction of emotional distress, and (5) loss of consortium.

On February 28, 2020, Plaintiffs filed a first amended complaint against


Defendants for the same causes of action: (1) stalking in violation of Civ. Code §
1708.7, (2) physical invasion of privacy in violation of Civ. Code § 1708.8, (3)
constructive invasion of privacy in violation of Civ. Code § 1708.8, (4) intentional
infliction of emotional distress, and (5) loss of consortium.

On April 7, 2020, Church of Scientology filed a demurrer to only Plaintiff Riales’s


claims in the first amended complaint. On April 7, 2020, Religious Technology filed a
joinder to Church of Scientology’ demurrer but titled the joinder as a “demurrer”. On
April 30, 2020, Defendant Masterson filed the instant demurrer with motion to strike to
the first amended complaint. Oppositions and replies followed.

IMOVING PARTY’s GROUNDS FOR THE DEMURRER AND MOTION TO STRIKE

Masterson’s Demurrer to the First Amended Complaint

Masterson demurs to Plaintiffs’ First Amended Complaint on numerous grounds.


The Jane Doe Plaintiffs have not pleaded facts showing any “exceptional
circumstances” apply that allow a complaint to be filed anonymously. Plaintiffs fail to
plead facts sufficient to state any of their causes of action because Plaintiffs fail to
allege Masterson committed any of the stalking, harassing, privacy-invading, or
emotionally distressing actions of which Plaintiffs complain. Instead, the Complaint
alleges the undifferentiated “Defendants” and several unidentified “agents”. Further,
Plaintiffs’ allegations on information and belief are legally insufficient because they do

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not allege the information that leads Plaintiffs to form the alleged belief. The only
individuals (Miller, Seidler, Macgregor, Gold, Rinder, Miskovich) allegedly harassing
Plaintiffs are not named as defendants. The allegations against, variously, Masterson’s
attorney, publicist, business partner, and friend do not amount to a cause of action.
Similarly, Plaintiffs fail to allege that all Scientologists are agents of each other by failing
to allege the requisite degree of control over the actions of other Scientologists.

Plaintiffs fail to allege facts sufficient for their First Cause of Action for stalking
because Plaintiffs lack allegations that Masterson personally engaged in any conduct or
made any threat to Plaintiffs. Plaintiffs fail to allege facts sufficient for their Second
Cause of Action for physical invasion of privacy. Jane Doe #2 fails to allege any
instance of being photographed or recorded on her property. Bixler and Jane Doe #1
allege being photographed and recorded but only in public or near their houses, but not
on their properties. Riales fails to allege photography or recording that occurred in
California or captured Riales engaging in private, personal or familial activity. Plaintiffs
fail to sufficiently allege their Third Cause of Action for constructive invasion of privacy
because Plaintiffs do not allege being recorded in a way that could not have been
achieved without a trespass. Plaintiffs fail to sufficiently allege their Fourth Cause of
Action for intentional infliction of emotional distress because Plaintiffs do not allege the
nature or extent of any mental suffering. Plaintiff Bixler-Zavala’s loss of consortium
claim fails with Plaintiff Bixler’s first through fourth causes of action.

Plaintiffs’ claims are improperly joined because the first amended complaint
details discrete events experienced by each individual plaintiff at different times and
places. Thus, Plaintiffs’ claims do not arise from the same transaction or series of
transactions. The improper joinder is prejudicial to Masterson by allowing Plaintiffs to
allege Masterson masterminded and coordinated a campaign of harassment, which
evokes an emotional bias against Masterson as an individual with very little effect on the
issues, maligning Masterson by association.

Masterson’s Motion to Strike Portions of the First Amended Complaint

Masterson moves to strike various references to sexual assault and criminal


investigations of sexual assault from the first amended complaint because none of the
causes of action allege sexual assault, so sexual assault is irrelevant because it is not
an essential element of the five causes of action pled. Any claims of sexual assault are
time-barred, so cannot be used to support a cause of action. Despite Plaintiffs’
statement that the alleged harassment is a conspiracy to cover up any sexual assaults,
Plaintiffs do not plead a conspiracy cause of action, further making the references to
sexual assault irrelevant. Also, the graphic descriptions of sexual assault are prejudicial
and included only to garner media attention and shame Masterson. In criminal cases,
California courts preclude evidence of irrelevant sexual assaults, as it is uniquely
prejudicial. Plaintiffs’ requests for injunctive relief, punitive damages, attorney’s fees,
and treble damages are based on inapplicable statutes and unsupported by Plaintiffs’
allegations. Plaintiffs’ request for injunctive relief is based on two statutes that apply to
only consumers who suffer damages from the unlawful sale or lease of goods and

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services. Plaintiffs’ request for punitive damages is based on (1) the inapplicable
Consumer Legal Remedies Act, and (2) Civil Code § 1708.5(3)(b) detailing damages for
a sexual battery, when Plaintiffs fail to allege a cause of action for sexual battery.
Plaintiffs’ prayer for attorney fees similarly cites the inapplicable Consumer Legal
Remedies Act and Civil Code § 1708.5(3)(b), as well as CCP § 1021.5 (important right
affecting public interest) and Civil Code §§ 51.7 (Ralph Civil Rights Act), 51 (Unruh Civil
Rights Act), and 52.4 (gender violence). However, Plaintiffs have failed to allege a
violation of civil rights or an important right affecting the public interest. The parties do
not have a contract creating a right to attorney fees. Lastly, Plaintiffs’ request for treble
damages are based on two statutes addressing human trafficking, another cause of
action Plaintiffs do not allege.

THE DEMURRER

As a general matter, in a demurrer proceeding, the defects must be apparent on


the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the
evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153
Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s
properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v.
Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a


reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18
Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be
amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.)
However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause
of action, it is error to sustain a demurrer without leave to amend.” (Youngman v.
Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).3

A. Permissive Joinder of Parties

Masterson argues all Plaintiffs’ claims are improperly joined in the first amended
complaint because each Plaintiffs’ claims arise from different alleged actions at different
times and in different locations from the other Plaintiffs.

a. Legal Standard

CCP § 378(a) allows all persons to join one action as plaintiffs if: (1) they assert
any right to relief jointly, severally, or in the alternative, in respect of or arising out of the
same transaction, occurrence, or series of transactions or occurrences and if any

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Masterson spends much time discussing matters outside of the complaint, impugning
Plaintiffs’ methods and motives.

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question of law or fact common to all these persons will arise in the action; or (2) they
have a claim, right, or interest adverse to the defendant in the property or controversy
which is the subject of the action.

The requirement that the right to relief arise from the same transaction or series
of transactions is construed broadly. It is sufficient if there is any factual relationship
between the claims joined. (Petersen v. Bank of America (2014) 232 Cal.App.4th 238,
249.) 950 plaintiffs were properly joined in a suit against their mortgage lender because
they alleged their homes were overvalued in appraisal and they were misled into taking
out loans they could not repay, which established common issues of liability–whether
the lender encouraged high appraisals and concealing or misleading the plaintiffs about
the loans’ terms. (Id. at pp. 250-253.)

In a civil suit alleging sexual battery by a doctor and brought by multiple patients
against a doctor and the doctor’s employer, permissive joinder was improper as to the
allegations against the doctor because the plaintiffs did not allege a single transaction
when they alleged separate and distinct sexual batteries at different times and did not
allege a related series of transactions when they failed to allege these batteries were
committed in the same manner. (Moe v. Anderson (2012) 207 Cal.App.4th 826, 833-
834.) On the related series of transactions question, the court distinguished between
allegations that the doctor touched the breasts and vagina of both plaintiffs–which was
insufficient for a series of transactions–and hypothetical allegations that the doctor’s
sexual batteries were “exactly similar in kind and manner of operation”–which would
have constituted a series of transactions. (Id. at p. 834 (quoting Aldrich v.
Transcontinental Land Etc. Co. (1955) 131 Cal.App.2d 788).)

A common question of law or fact alone is likely not sufficient grounds for joinder.
In dicta, the Court of Appeals in David v. Medtronic, Inc. (2015) 237 Cal.App.4th 734
stated multiple plaintiffs claiming injury from the same medical device did not allege a
series of transactions because the plaintiffs had “different surgeries, performed by
different surgeons, with different knowledge and exposure to different representations
by [the device manufacturer].” (237 Cal.App.4th at pp. 740-741.) Additionally, CCP §
378(a)(1) allows joinder where the action arise out the same transaction or “series of
transactions or occurrences and if any question of law or fact common to all these
persons will arise in the action. CCP § 378(a)(1) (emphasis added).

b. The First Amended Complaint

The Court is of the view that Plaintiffs can join their claims, because they arise
from a related “series of transactions” that raise common questions of fact, and present
at least one common question of law.

All four plaintiffs allege facts which follow a similar pattern. All allege that they
were victims of sexual abuse by Masterson in the late 1990’s and early 2000’s and
reported his acts to the LAPD. They all allege that they reported these acts to the LAPD.
They all allege asking the LAPD to reopen the matters in 2016 or 2017. After doing so,

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they were each subjected to a campaign of severe harassment, as detailed above. They
allege that the campaign was orchestrated by the Church of Scientology. They allege
that Masterson and others were involved in the orchestration.

Several common factual issues come to mind. Did persons of authority at the
Church of Scientology become aware of Plaintiffs’ reports to the LAPD? Was a decision
made to retaliate against Plaintiffs for the reporting? Who was involved in the decision?
Was Masterson involved? What decision was made? What was the plan? What
methods were to be employed? Were there substantial similarities among the methods
used that would evidence the existence of a plan? Were there any actors who can be
identified as committing acts towards one or more of the plaintiffs?

There are common legal issues as well. If it can be proved that one or more
persons were involved in creating and executing a common plan, to what extent can the
Church be held liable? To what extent can various actors be considered agents of the
others?

There are practical considerations as well. There may be evidence that may be
relevant to claims of all the Plaintiffs. If each Plaintiff had their own case, the evidence
would need to be adduced four times. If the testimony of each Plaintiff were admissible
in the other cases, each Plaintiff would need to testify four times. This would be a poor
use of judicial resources.

The Court finds that the claims of the Plaintiffs are not improperly joined.

c. Agency Relationships

Generally, an allegation of agency is an allegation of ultimate fact and is, of itself,


sufficient to avoid a demurrer. (Garton v. Title Ins. & Trust Co. (1980) 106 Cal.App.3d
365, 376.) Plaintiffs alleging each of the defendants were the agents of each other and
were acting in the course and scope of their agency and with the permission and
consent of the other defendants is typically sufficient, unless the specific allegations of
the complaint overcome the general allegation of agency by showing no such
relationship existed. (Ibid.) However, the test on demurrer is not whether the allegations
are likely to be proven, but whether the allegations preclude liability, and the allegations
must be construed liberally in favor of the pleader. (Ibid.)

Here, Plaintiffs allege their tormenters are agents of the Scientology Defendants,
Miscavige, and Masterson. (FAC ¶ 12.) Plaintiffs allege Miscavige controls the
Scientology Defendants, including two subsets of agents–called the Sea Organization
and the Office of Special Affairs–allegedly ordered to undertake criminal actions beyond
their religious practices. (FAC ¶¶ 19-23.)

(i) Agency Allegations Against Masterson

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Plaintiffs allege that Plaintiff’s tormentors are also agents of Masterson.

Plaintiffs allege Masterson was granted special treatment by Scientology


Defendants as a result of his acting on a television show beginning in 1998. (FAC ¶ 56.)
Plaintiffs allege Scientology Defendants “protect celebrity members”, a category that
presumably included Masterson. (FAC ¶ 57.) Plaintiffs allege Defendants other than
Masterson “worked with Defendant Masterson” to stalk, record, and inflict emotional
distress on Plaintiffs, under the moniker “fair game,” once Plaintiffs accused Masterson
of sexual assault. (FAC ¶ 58.) Plaintiffs allege Masterson is an agent and employee of
Scientology. Defendants paid a commission for recruiting new members. (FAC ¶ 59-63.)
However, Plaintiffs conclusory allegation that Scientology Defendants and Miscavige
are agents of Masterson is scantly supported by facts. (FAC ¶ 63.) The fact that (1)
Masterson was granted special treatment by the other Defendants, including protection;
(2) the other Defendants “worked with” Masterson against Plaintiffs; and (3) Masterson
was a commission-based employee of Scientology Defendants subject to the “same
discipline” and “code of ethics” as other employees of the Scientology Defendants fail to
allege Masterson had a right of control over Plaintiffs’ various tormentors.

Plaintiffs fail to allege that Masterson has the power to direct the actions by other
members of Scientology, the Sea Organization, or the Office of Special Affairs. Although
Plaintiffs’ opposition to Masterson’s demurrer refers to “common agents”, Plaintiffs do
not allege Masterson shares control over other members of Scientology, the Sea
Organization, or the Office of Special Affairs with Scientology Defendants or Miscavige,
nor that Scientology Defendants or Miscavige instructed any agents to follow
Masterson’s orders. Thus, Plaintiffs’ allegations that (1) all the Defendants are agents of
each other and (2) the unidentified harassers and the harassers identified merely as
“Scientologists” or “agents of Defendants” are agents of Masterson are contradicted by
Plaintiffs’ more specific factual allegations that Scientology Defendants and Miscavige
control the Sea Organization, the Office of Special Affairs, and the subset of
Scientologists tormenting Plaintiffs.

However, Plaintiffs also allege specific individuals are Masterson’s agents.


Masterson’s publicist forwarded a threatening and harassing letter to Bixler. (FAC ¶ 88.)
Masterson’s friend threatened Bixler-Zavala with publication of nude photos of an
underage Bixler. (FAC ¶ 118.) Masterson’s publicist encouraged Jane Doe #1 not to
pursue Jane Doe #1’s allegations against Masterson. (FAC ¶ 177.) Masterson’s former
personal assistant followed Jane Doe #1 through Larchmont Village for 20 minutes.
(FAC ¶ 180.) Masterson’s attorney–Marty Singer–told Jane Doe #1 she was violating
the terms of a non-disclosure agreement by cooperating with law enforcement and
denied her a copy of that agreement. (FAC ¶ 184.) Masterson’s friend–not necessarily
the one who spoke to Bixler-Zavala–yelled death threats at Jane Doe #1 in a parking
lot. (FAC ¶ 191.) Masterson’s business partner – Urbinati or Urbanati [spelling is
different in ¶ 237 and ¶ 255] – questioned Jane Doe #2’s motivations for filing a sexual
assault report. (FAC ¶ 255.)

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Under Garton, these allegations and the general allegation that the persons
allegedly stalking, recording, and distressing each Plaintiff were agents of Defendants
are sufficient to plead the ultimate fact that an agency relationship existed between
Masterson and his publicist, his friend, his former personal assistant, his attorney, his
other friend, and his business partner. (See Garton, supra, 106 Cal.App.3d at p. 376.)
These allegations are not contradicted by Plaintiffs’ allegations that Scientology
Defendants and Miscavige control the Sea Organization, the Office of Special Affairs,
and the subset of Scientologists tormenting Plaintiffs, because these allegations are
directed at specific people based on their personal relationships to Masterson instead of
their relationships to the Scientology Defendants. Therefore, Masterson’s demurrer
based on improper joinder of parties is OVERRULED. In that same vein, Masterson’s
argument that the demurrer should be sustained because Plaintiffs fail to allege that
Masterson personally engaged in any wrongful conduct is unavailing, because Plaintiffs
have sufficiently alleged facts that their tormentors were acting as agents of Masterson
to survive demurrer.

B. Use of Fictitious Names

Defendant Masterson argues that Plaintiffs Jane Doe #1 and Jane Doe #2 must
be forced to proceed using their legal names because there are no “exceptional
circumstances” justifying the use of a fictious name.

As an initial matter, Defendant cites no authority for the proposition that a


demurrer is the proper vehicle for challenging Plaintiffs’ use of fictitious names. A party
against whom a complaint has been filed may object by demurrer to the pleading only
on the following grounds: “(a) The court has no jurisdiction of the subject of the cause of
action alleged in the pleading; (b) The person who filed the pleading does not have the
legal capacity to sue; (c) There is another action pending between the same parties on
the same cause of action, (d) There is a defect or misjoinder of parties; (e) The pleading
does not state facts sufficient to constitute a cause of action; (f) The pleading is
uncertain; (g) In an action founded upon a contract, it cannot be ascertained from the
pleading whether the contract is written, is oral, or is implied by conduct; (h) No
certificate was filed as required by Section 411.35. (i) No certificate was filed as
required by Section 411.36.” (Code Civ. Proc., § 430.10.)

Under California case law, numerous factors can be considered in determining


whether to allow a plaintiff to proceed under a fictitious name. A demurrer seems a poor
mechanism to make that determination, insofar as the inquiry is to the sufficiency of the
allegations. The parties make arguments based on alleged conditions that are well
outside of the pleadings, and for which there is no evidence. The Court does not decide
at this point whether the two Doe defendants are entitled to proceed under fictitious
names.

C. Failure to State Facts Sufficient to Constitute a Cause of Action

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A general demurrer may be taken to a complaint where “[t]he pleading does not
state facts sufficient to constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).)
When considering demurrers, courts read the allegations liberally and in context.
(Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.)

Plaintiffs have the right to plead in the alternative (Mendoza v. Continental Sales
Co. (2006) 140 Cal.App.4th 1395, 1402.)

1. First Cause of Action for Stalking

Civil Code Section 1708.7 states the following:

A person is liable for the tort of stalking when the plaintiff proves all of the
following elements of the tort:
(1) The defendant engaged in a pattern of conduct the intent of which was
to follow, alarm, place under surveillance, or harass the plaintiff. In order to
establish this element, the plaintiff shall be required to support his or her
allegations with independent corroborating evidence.
(2) As a result of that pattern of conduct, either of the following occurred:
(A) The plaintiff reasonably feared for his or her safety, or the safety of an
immediate family member. . . .
(B)The plaintiff suffered substantial emotional distress, and the pattern of
conduct would cause a reasonable person to suffer substantial emotional
distress.
(3) One of the following:
(A) The defendant, as a part of the pattern of conduct specified in paragraph
(1), made a credible threat with either (i) the intent to place the plaintiff in
reasonable fear for his or her safety, or the safety of an immediate family
member, or (ii) reckless disregard for the safety of the plaintiff or that of an
immediate family member. In addition, the plaintiff must have, on at least
one occasion, clearly and definitively demanded that the defendant cease
and abate his or her pattern of conduct and the defendant persisted in his
or her pattern of conduct unless exigent circumstances make the plaintiff’s
communication of the demand impractical or unsafe.
(B) The defendant violated a restraining order. . . .

Masterson argues that Plaintiffs’ first cause of action fails because Plaintiffs fail to
allege that Masterson personally engaged in any conduct to be liable for stalking under
Civil Code Section 1708.7. However, as discussed previously, under Garton, Plaintiffs
have sufficiently alleged that the persons stalking, recording, and distressing each
Plaintiff were agents of Defendants, and are sufficient to plead the ultimate fact that an
agency relationship existed between Masterson and his publicist, his friend, his former
personal assistant, his attorney, his other friend, and his business partner. (See Garton,
supra, 106 Cal.App.3d at p. 376.) In addition, it is alleged that Masterson worked with
the Scientology Defendants to keep his sexual assault victims from reporting their

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abuse by participating in a “Fair Game” campaign against the victims once the sexual
assaults had been disclosed. (FAC, ¶ 58.) The demurrer to the first cause of action is
OVERRULED.

2. Second Cause of Action for Physical Invasion of Privacy

“A person is liable for physical invasion of privacy when the person knowingly
enters onto the land or into the airspace above the land of another person without
permission or otherwise commits a trespass in order to capture any type of visual
image, sound recording, or other physical impression of the plaintiff engaging in a
private, personal, or familial activity and the invasion occurs in a manner that is
offensive to a reasonable person.” (Civ. Code, § 1708.8, subd. (a).) “A person who
directs, solicits, actually induces, or actually causes another person, regardless of
whether there is an employer-employee relationship, to violate any provision of
subdivision (a), (b), or (c) is liable for any general, special, and consequential damages
resulting from each said violation.” (Civ. Code, § 1708.8, subd. (e).)

Masterson argues that Plaintiffs do not allege a physical invasion of privacy


against Masterson, and thus the cause of action fails. However, Plaintiffs allege various
events of alleged stalking by Defendants’ agents near or adjacent to their homes and, in
some instances, the agents looking through their windows. (See, e.g., FAC, ¶¶ 95, 121,
123, 178, 193, 226, 228.) It is alleged in the FAC that Defendants and their agents
placed Plaintiffs under surveillance and trespassed on their property to take
photographs and look in Plaintiffs’ windows. (FAC, ¶ 276.) While these allegations are
somewhat conclusionary, for purposes of the complaint they are sufficient. All
inferences are to be drawn in favor of Plaintiffs on demurrer.

However, Masterson’s contention that Plaintiff Riales’ Second Cause of Action


fails because the cause of action is premised on conduct that allegedly occurred outside
of California is well taken. Civil Code Section 1708.8, subdivision (f)(5) states: “This
section applies only to a visual image, sound recording, or other physical impression
that is captured or taken in California in violation of subdivision (a), (b), or (c) after
January 1, 2010, and shall not apply to any visual image, sound recording, or other
physical impression taken or captured outside of California.” Here, Riales allegedly lives
and works in the State of Indiana. (FAC, ¶ 5.) The alleged surveillance by individuals
allegedly occurred near her property and throughout her town (id., ¶¶ 228, 232) and
while on vacation in Delaware (id., ¶ 226.) She also alleges, for instance, that
individuals were taking photographs of her home and vehicles. (Id., ¶ 223.) The alleged
conduct, therefore, appears to take place outside of California and by the language of
the statute, cannot give rise to a cause of action for physical or constructive invasion of
privacy.

Accordingly, the demurrer to the Second Cause of Action is SUSTAINED without


leave to amend as to Riales; it is otherwise OVERRULED.

3. Third Cause of Action for Constructive Invasion of Privacy

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“A person liable for constructive invasion of privacy when the person attempts to
capture, in a manner that is offensive to a reasonable person, any type of visual image,
sound recording, or other physical impression of the plaintiff engaging in a private,
personal, or familial activity, through the use of any device, regardless of whether there
is a physical trespass, if this image, sound recording, or other physical impression could
not have been achieved without a trespass unless the device was used.” (Civ. Code, §
1708.8., subd. (b).)

All Plaintiffs allege that they were placed under surveillance under circumstances
falling within the statute. See ¶¶ 282, 283. The demurrer to the third cause of action is
OVERRULED.

4. Fourth Cause of Action for Intentional Infliction of Emotional Distress

“The elements of a prima facie case of intentional infliction of mental distress are
(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of
the probability of causing emotional distress, (3) severe emotional suffering and (4)
actual and proximate causation of the emotional distress.” (Bogard v. Employers
Casualty Co. (1985) 164 Cal.App.3d 602, 616.) The complained-of conduct must be
outrageous, that is, beyond all bound of reasonable decency. (Cervantez v. J.C.
Penney Co. (1979) 24 Cal.3d 579, 593.) Defendant must intend to cause emotional
distress or recklessly disregard the probability of causing it. (Hughes v. Pair (2009) 46
Cal.4th 1035, 1050.) Third, the plaintiff must demonstrate that he or she suffered
severe emotional distress. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946.) Severe
emotional distress means emotional distress of such quantity or enduring quality that no
reasonable man in a civilized society should be expected to endure it. (Fletcher v.
Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.)

Defendant Masterson argues that Plaintiffs’ Fourth Cause of Action fails to allege
intentional infliction of emotional distress because Plaintiffs do not include facts
indicating the nature or extent of any of their alleged mental suffering. The argument is
well taken. Here, Plaintiffs allege that Defendants’ conduct caused them to suffer
“severe emotional distress, suffering, anguish, anxiety, humiliation, and shame.” (FAC,
¶ 291.) Plaintiffs also points out in their opposition that they have alleged that each
plaintiff “continues to be in fear for her life and the safety of her family.” (FAC, ¶ 233.)
Fear for one’s life and the safety of one’s family can constitute severe emotional
distress.

The demurrer to the fourth cause of action is OVERRULED.

5. Fifth Cause of Action for Loss of Consortium

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“A cause of action for loss of consortium is, by its nature, dependent on the
existence of a cause of action for tortious injury to a spouse.” (Hahn v. Mirda (2007) 147
Cal.App.4th 740, 746.) A cause of action for loss of consortium “stands or calls based
on whether the spouse of the party alleging loss of consortium has suffered an
actionable tortious injury.” (Id.)

Here, Defendant Masterson argues that Plaintiff Bixler-Zavala’s cause of action


for loss of consortium fails because his wife has not alleged facts sufficient to constitute
any cause of action in the first amended complaint. However, the demurrer has been
overruled as to the first and third causes of action regarding Plaintiff Bixler.

Accordingly, the demurrer to the fifth cause of action is OVERRULED.

IV. MOTION TO STRIKE

Motions to strike are used to reach defects or objections to pleadings that are not
challengeable by demurrer (i.e., words, phrases, prayers for damages, etc.). (Code Civ.
Proc., §§ 436-437.) A motion to strike lies only where the pleading has irrelevant, false
or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ.
Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading
or by way of judicial notice.

A. Allegations Related to Alleged Sexual Assault by Masterson and


Subsequent Police Investigation

Defendant Masterson argues that the court must strike all portions of the First
Amended Complaint consisting of allegations of sexual assault by Masterson and the
subsequent police investigation because those allegations are immaterial to the causes
of action asserted in this lawsuit. The factual allegations at issue are Paragraphs 1, 15,
58, 64, 67-75, 78-82, 84-86, 88-89, 91, 104, 106, 126, 137-139, 141-154, 156-161, 164,
165, 169, 170, 175-177, 179, 191, 205-216, 240-244, 246-248, 251, 258-270, 273, 279,
285, and 293.

The parties do not dispute that this case is about alleged harassing and stalking
by Defendants. Defendant Masterson argues that allegations of his sexual assault
against the Plaintiffs, therefore, are irrelevant to Plaintiffs’ causes of action for stalking,
invasion of privacy, intentional infliction of emotional distress, and loss of consortium.
However, according to the first amended complaint, Defendants systematically stalked,
harassed, invaded the privacy of Plaintiffs and Plaintiffs’ families, and intentionally
inflicted emotional distress on Plaintiffs, who are four women4 sexually assaulted by
Defendant Masterson, allegedly to silence Plaintiffs’ about their alleged sexual assaults

4 Except Plaintiff Cedric Bixler-Zavala, who is the husband of Plaintiff Chrissie Carnell Bixler.

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by Masterson, and to intimidate them in retaliation for Plaintiffs reporting the alleged
sexual assaults. (See FAC, ¶¶ 1, 15.) As Plaintiffs argue, the sexual assaults are,
therefore, relevant to Plaintiffs’ allegations as to why Masterson and the other
Defendants began to allegedly stalk and torment the Plaintiffs. The alleged conduct by
Defendants only began after Masterson allegedly sexually assaulted some of the
Plaintiffs, and those Plaintiffs reported the said misconduct to the police. Therefore, the
allegations at issue are relevant.

The motion to strike allegations related to the alleged sexual assaults by


Masterson and subsequent police investigations is DENIED.

B. Prayer for Injunctive Relief, Punitive/Exemplary Damages, Attorney’s


Fees and Treble Damages

Defendant Masterson also moves to strike Plaintiffs’ prayer for injunctive relief
pursuant to Civil Code Sections 1770 and 1780; Plaintiffs’ prayer for punitive damages
pursuant to Civil Code Section 1782(2); attorneys’ fees pursuant to Civil Code Sections
51.7 (Ralph Civil Rights Act), 51 (Unruh Civil Rights Act), 52.4 (gender violence), and
Code of Civil Procedure Section 1021.5; and treble damages pursuant to Penal Code
Section 236.1 and Civil Code 52.5. Defendant moves on the ground that Plaintiffs’
requests are not supported by any of the causes of action brought by Plaintiff.

the motion is granted, as they are not supported by the allegations of the
complaint. The motion is denied as to the prayer for injunctive relief and punitive
damages generally. While punitive damages pursuant to the specific Civil Code sections
is unsupported, the allegations of the complaint support punitive damages generally per
Civil Code § 3294.

Requested damages which are unsupported by the plaintiff’s asserted causes of


action are improper. (See Weil & Brown, Cal. Prac. Guide: Civil Procedure Before Trial
(The Rutter Group 2011), § 7:182 [“A motion to strike can be used to attack claims for
damages that are not supported by the cause of action pleaded].) Here, Plaintiffs
request for remedies that that not supported by the causes of action they assert.

The demurrer to the first through fifth causes of action are OVERRULED, with
the exception of the second cause of action against Riales, which is SUSTAINED
without leave to amend.

The motion to strike is GRANTED with respect to attorney’s fees and/or


penalties, treble damages, and punitive/exemplary damages pursuant to Civil Code §§
1708.5 (3)(b) and 1782(2), and denied with respect to injunctive relief and punitive
damages generally.

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