Garaventa v. Binswanger

1

JOSEPH GARAVENTA, Plaintiff and Appellant, v. WALTER BINSWANGER, III, Defendant and Respondent.

A165750

California Court of Appeals, First District, Fifth Division

February 29, 2024

NOT TO BE PUBLISHED

(Contra Costa County Super. Ct. No. MSC18-01289)

SIMONS, J.

Plaintiff Joseph Garaventa appeals following the trial court's orders sustaining without leave to amend the demurrers of defendant Walter Binswanger, III. We affirm.

BACKGROUND^[1]

Joseph Garaventa is one of five adult siblings; the others are Silvio Garaventa, Jr., Marie Louise Adler, Louisa Binswanger and Linda Colvis.^[2] In 2015, after the siblings' surviving parent died Louisa became the trustee of the family trust (Trust). The Trust controls 70 percent of the shares of the family business (the Company) and the remaining 30 percent is divided equally among the five siblings.

The terms of the Trust provide for the equal distribution of the Trust's interest in the Company to the five siblings, and for the distribution of the Trust estate to subtrusts for the benefit of the five siblings. Louisa, as trustee, has not made these distributions, but has paid herself substantial trustee fees and has paid significant additional fees to the law firm representing her, where her son, respondent Walter Binswanger III (Walter III), works as an attorney.

Walter III advises Louisa and, in 2017, drunkenly bragged that he had put together a plan whereby he; Louisa; Louisa's husband, Walter Binswanger II (Walter II); and Silvio would disadvantage Joseph, Linda, and Linda's husband.

In 2018, Joseph was removed as CEO of the Company after expressing concerns about Louisa's actions as trustee. This removal was planned by Louisa, Silvio, and Marie; and implemented by Louisa using her supermajority control in the Company as trustee.

In 2019, bullets were fired at a trailer on property owned by Louisa, Walter II, and/or Walter III. More than six months later, Joseph received an anonymous letter referring to the shooting, detailed below (part I.A, post).

In 2020, Joseph filed the underlying lawsuit against Louisa, Walter II, Silvio, and Walter III (collectively, Defendants), alleging claims for violations of the federal Racketeer Influenced and Corrupt Organizations Act (RICO; 18 U.S.C. § 1962, subds. (b)-(d)), intentional infliction of emotional distress, breach of fiduciary duty, unfair business practices (Bus. &Prof. Code, § 17200), constructive fraud, unjust enrichment, accounting, and negligence. After Defendants filed a demurrer to the original complaint, Joseph filed a first amended complaint, realleging the claims in the original complaint and adding a claim for deceit.

The trial court granted the parties' stipulation to permit Joseph to file a second amended complaint, which alleged the same claims. Defendants demurred. The trial court sustained the demurrer with leave to amend as to all causes of action against Walter III.

The third amended complaint (3AC) alleged, as relevant here, claims for RICO violations, breach of fiduciary duty, unjust enrichment, and intentional infliction of emotional distress. Defendants filed a demurrer. With respect to Walter III, the trial court sustained the demurrer without leave to amend as to the RICO claims; sustained the demurrer with leave to amend as to the intentional infliction of emotional distress and unjust enrichment claims; and overruled the demurrer as to the breach of fiduciary duty claim.

The fifth amended complaint (5AC)^[3] alleged, as relevant here, claims for intentional infliction of emotional distress and breach of fiduciary duty. Defendants demurred. The trial court sustained the demurrer without leave to amend in its entirety as to Walter III, and subsequently entered judgment dismissing Walter III from the case.

Joseph appeals, challenging the orders sustaining without leave to amend Walter III's demurrers to the intentional infliction of emotional distress, RICO, and breach of fiduciary duty claims.

DISCUSSION

We review an order sustaining a demurrer de novo "independently examin[ing] the operative complaint 'to determine whether it alleges facts sufficient to state a cause of action under any legal theory.'" (Rincon, supra, 70 Cal.App.5th at p. 1085.)

I. Intentional Infliction of Emotional Distress

Joseph argues the trial court erred in sustaining Walter III's demurrer to the intentional infliction of emotional distress claim. "The tort of intentional infliction of emotional distress is comprised of three elements: (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 suffered severe or extreme emotional distress; and (3) the plaintiff's injuries were actually and proximately caused by the defendant's outrageous conduct." (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494 (Cochran).) We agree with the trial court that Joseph fails to allege extreme and outrageous conduct.

A. Additional Background

The conduct on which this claim is based is an anonymous letter to Joseph, which is attached as an exhibit to the 5AC.^[4] The letter provides, in its entirety, as follows:

"We are contacting you to avoid a situation which will result in lifechanging ramification if our cautionary message is not taken seriously.

"As the father of Andrew, Steven and Katherine, you undoubtably wish to keep your children safe and protected. We too have family members that we wish to keep safe and protected.

"The Giacomelli family^[5] is part of our family. Many of us are very protective of Maria and her daughters since Ray's death. Ray's family is loved and respected by many in our community. Anyone who is important to Maria is important to us. This would include Maria's son-in-laws, [sic] their families and friends.

"This is a cordial communication to advise you, your family members, friends and caretaker against harassing, threatening or causing any harm or disturbance toward Maria's son-in-laws, [sic] friends or damaging any of their possessions or property in the upcoming hunting season. Maria's grandchildren will also being [sic] enjoying the hunting season on the property located across the levee from you. Do not allow anyone or anything disrupt [sic] their enjoyment. This includes making false complaints or allegations to the Game Warden against your neighbors in an effort to cause them problems.

"We are aware of the bullets that penetrated the trailers on Maria's son-in-law's land. The trajectory of the slugs are from your property. Let's be very clear, you must prevent this dangerous behavior from being repeated. We are holding you completely responsible for any harmful actions against Maria's family by one of your family members, guests or caretaker. Maria wants no harm to come to her family, as YOU do not want harm to come to Andrew, Steven or Katherine. Maria is not aware that we are contacting you. Do not contact her regarding this letter. You are not to cause her any anguish by involving her.

"This message is a friendly notification to prevent innocent people in your family and in Maria's family from become [sic] victims because of some escalating and ongoing feud. You, Mr. Garaventa need to control this situation. You are responsible for everyone's actions on your property. The repercussions of causing harm to any of the Giacomelli family or friends will not be pleasant. You can protect and keep your family safe by keeping all others safe and protected as well. Take this recommendation seriously."

B. Page Limitation

In its order sustaining with leave to amend Defendants' demurrer to the intentional infliction of emotional distress count as alleged in the 3AC, the trial court directed that additional allegations regarding this claim in a subsequent pleading "shall not exceed one page, double-spaced." Joseph argues the trial court erred in imposing this limitation. Both parties agree our review is for abuse of discretion.

The court did not abuse its discretion. Joseph had previously been granted leave to amend the claim, without page limitations, following the court's order sustaining Defendants' demurrer to Joseph's second amended complaint. The 3AC was more than 25 pages long. The trial court carefully considered the deficiencies in the allegations and we cannot say its determination that any cure could be made in one page or less was an abuse of discretion.

C. Extreme and Outrageous Conduct

"In order to meet the [extreme and outrageous conduct] requirement of the tort, the alleged conduct' " must be so extreme as to exceed all bounds of that usually tolerated in a civilized community." [Citation.] Generally, conduct will be found to be actionable where the "recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'" [Citation.]' [Citation.] That the defendant knew the plaintiff had a special susceptibility to emotional distress is a factor which may be considered in determining whether the alleged conduct was outrageous. [Citations.] [¶] There is no bright line standard for judging outrageous conduct and' ". . . its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser's values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical ...." '" (Cochran, supra, 65 Cal.App.4th at p. 494.) "In evaluating whether the defendant's conduct was outrageous, it is 'not . . . enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by...