ORDER GRANTING DEFENDANT MARRIOTT HOTEL SERVICES, INC.'S MOTION TO DISMISS; DISMISSING COMPLAINT TO EXTENT ALLEGED AGAINST MARRIOTT HOTEL SERVICES, INC.

Re: Dkt. No. 33

MAXINE M. CHESNEY, District Judge.

Before the Court is defendant Marriott Hotel Services, Inc.'s ("Marriott") "Motion to Dismiss Plaintiff's Second Amended Complaint," filed September 19, 2016. Plaintiff Eduardo Guilarte has not filed opposition. Having read and considered the papers filed in support of the motion, the Court rules as follows.1

By order filed August 2, 2016, the Court dismissed, with leave to amend, the five causes of action alleged against Marriott in Guilarte's First Amended Complaint ("FAC"). Thereafter, Guilarte filed his Second Amended Complaint ("SAC"), in which he asserts two causes of action against Marriott. By the instant motion, Marriott argues that the SAC fails to state a cognizable claim against it. The Court considers the two causes of action asserted against Marriott, in turn.

A. "Intentional Infliction of Emotional Distress"

The Fourth Cause of Action,2 titled "Intentional Infliction of Emotional Distress," is based, as it pertains to Marriott, on Guilarte's allegations that he attended an event at a Marriott hotel, that the event organizer demanded he leave the event even though he had a ticket, and that, when he would not, Marriott employees caused him to be removed from the hotel.

To support a claim of intentional infliction of emotional distress, the plaintiff must establish that the defendant's conduct was "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community." See Melorich Builders, Inc. v. Superior Court, 160 Cal.App.3d 931, 936 (1984).

In its prior order, the Court found Guilarte had failed to allege, in the FAC, facts to support a finding that the manner in which Marriott employees removed him constituted the type of conduct necessary to support a claim for intentional infliction of emotional distress. Specifically, the Court found said claim was based on "conclusory allegations that Guilarte was `seized' at the event, `forced' to leave the event, `restrained and confined' in the `main lobby,' and, finally, `forced' to leave the hotel," and that, "[g]iven the paucity of the allegations," the Court could not find the alleged manner in which Guilarte was removed constituted the requisite outrageous conduct. (See Order, filed August 2, 2016, at 10:10-14 (quoting FAC ¶ 51).)

As Marriott correctly points out, the SAC includes no new factual allegations that could support a finding that the manner in which Guilarte was removed from the hotel constituted the requisite outrageous conduct. Indeed, the only new allegation pertinent to the removal is another conclusory assertion, in this instance, that a Marriott employee "forc[ed]" Guilarte "down to the lobby." (See SAC ¶ 24.) In short, the SAC, like the FAC, remains devoid of factual allegations to support a finding that the manner in which Guilarte was removed constituted the type of conduct necessary to support a claim for intentional infliction of emotional distress. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (holding complaint subject to dismissal where it lacks "sufficient factual matter" to support conclusions); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (holding "allegations must be enough to raise a right to relief above the speculative level").

Accordingly, the Fourth Cause of Action, as alleged against Marriott, is subject to dismissal.

B. "Negligent Infliction of Emotional Distress"

The Fifth Cause of Action is titled "Negligent Infliction of Emotional Distress." As the Court noted in its prior order, no such cause of action exists under California law; rather, a plaintiff seeking to recover damages for emotional distress based on an assertedly negligent act must establish the elements of a claim of negligence. See Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 984 (1993). Specifically, the plaintiff must show "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." See id. at 985.

In its prior order, the Court dismissed the negligence claim for the reason that Guilarte had alleged no facts to support a finding that Marriott owed Guilarte a duty. In the SAC, Guilarte now alleges Marriott, as the operator of the hotel in which the event was held, owed him a "duty to exercise reasonable care in the management of the premises." (See SAC ¶ 67.) Marriott argues, however, and the Court agrees, that the SAC fails to include facts to support a finding that Marriott breached any such duty. Indeed, nothing in the FAC suggests Marriott negligently managed the premises.

Moreover, as Marriott correctly points out, emotional distress damages are not recoverable, even where an alleged breach of duty has occurred, unless the breach "threaten[s] physical injury." See Potter, 6 Cal. 4th at 984-85 (holding plaintiffs entitled to seek emotional distress damages, where defendant, in violation of "duty imposed on it by law," placed carcinogens near plaintiffs' residences, thereby exposing plaintiffs to "future physical injury or illness," specifically, cancer).3 Here, Guilarte alleges he experienced emotional distress because his removal from the event "conveyed to all witnesses — members of Mr. Guilarte's social and professional groups — that Mr. Guilarte had acted in an unlawful or otherwise improper manner" (see SAC ¶ 28); he does not allege that his distress occurred as a result of a perceived threat of physical injury arising from Marriott's conduct. Consequently, his claim for emotional distress damages is not cognizable under a theory of negligence.4

Accordingly, the Fifth Cause of Action, to the extent alleged against Marriott, is subject to dismissal.

CONCLUSION

For the reasons stated above, Marriott's motion to dismiss is hereby GRANTED, and the complaint, to the extent alleged against Marriott, is hereby DISMISSED.

IT IS SO ORDERED.