Court of Appeal:
Bendix Says Decision Not to Permit Allegation of Additional Facts to Fortify Complaint Was Appropriate
By a MetNews Staff Writer
The Court of Appeal for this district has declared that a Los Angeles Superior Court judge did not err in denying a motion to add new factual allegations to a cause of action for intentional infliction of emotional distress at the eleventh hour in a case in which a former model is suing a billionaire over allegedly causing vandalism surrounding her home in an effort to intimidate her.
Justice Helen I. Bendix of Div. One authored the opinion, which was filed Tuesday and not certified for publication. It affirms a summary judgment granted by Judge Robert B. Broadbelt III in favor of Louis Bacon, an investor and hedge fund manager with assets reported to amount to $1.81 billion.
Plaintiff Bianca McKinney appealed solely on the basis of the rejection of her cause of action for emotional distress, although another cause of action—for violation of the Tom Bane Civil Rights Act—also fell when Broadbelt granted summary judgment, and two other causes of action had been eliminated through the sustaining of demurrers without leave to amend.
Beefing Up Complaint
McKinney contended on appeal that her cause of action might have survived summary judgment if Broadbelt had allowed her to add allegations. The vandalism—with which Bacon disavowed any involvement and which the plaintiff was unable to tie to him with hard evidence supporting her suspicion—was purportedly in revenge for her efforts in 2015 and 2016 to uncover circumstances underlying a lawyer, Michael H. Artan, seeking her out and filing a 2011 Los Angeles Superior Court complaint in her name against Canadian fashion designer/clothing manufacturer Peter Nygard.
Bacon and Nygard, both of whom own properties in the Bahamas, have been engaged in bitter litigation and feuding.
McKinney’s 2011 complaint against Nygard was dropped six months after it was filed.
In McKinney’s 2016 suit against Bacon, it is alleged that “believing that Artan was representing her interests,” she disclosed to the lawyer and his investigator “highly confidential, private and intimate personal information and details of her experiences traveling with Nygard in complete confidence in the context of an attorney-client relationship.”
The July 5, 2011 complaint was filed, it is asserted, “without disclosing to McKinney certain false allegations it contained or providing her with a copy of it.”
The third amended complaint (“TAC”) in the action against Bacon sets forth that McKinney “was shocked” when she learned in 2015 that Artan, in 2011, “was acting as an agent of Bacon to advance his interests.” It avers that “McKinney promptly sought out Artan, who evaded her until March 2016 when they finally met at his office in Los Angeles” and that Artan “confessed” that he and the investigator “had actually been working for Bacon when he solicited her and she disclosed to him highly confidential and private personal information.” The first paragraph of the pleading says:
“Louis Bacon, founder of Moore Capital Management and a billionaire with purported ties to the Ku Klux Klan, is perversely obsessed with his neighbor, apparel mogul Peter Nygard. Over the past decade. Bacon has engaged in a vicious and unrelenting smear campaign against Nygard, routinely filing lawsuits against him with completely unsubstantiated and over-the-top allegations, all in an attempt to ruin Nygard’s reputation.”
In seeking leave to amend for a fifth time, by adding factual allegations as to an additional event causing emotional distress, McKinney maintained that she had wanted to include those allegations earlier, but her then-lawyer resisted. Broadbelt said in his order denying the motion:
“Even accepting as true that McKinney and her previous counsel disagreed about whether it was appropriate to include the additional allegations, the court finds that McKinney has unduly delayed adding the new allegations and that Bacon would be prejudiced by adding them now….”
He observed that the new allegations by McKinney—that “Bacon sent two men who claimed to be Homeland Security agents to her home to intimidate her”—would, if allowed, “add an entirely new theory of liability to McKinney’s cause of action for intentional infliction of emotional distress.” Broadbelt noted that trial was set for only 90 days off, that “Bacon has relied on the allegations made in McKinney’s TAC by filing a motion for summary judgment on the TAC” that was then pending after having been continued pursuant to a request by McKinney, and that “the case is now almost two and half years old.”
“McKinney does not address—let alone refute—the trial court’s rationale for denying her motion for leave to amend. She thus fails to demonstrate any abuse of discretion.”
Predicated on Vandalism
As Broadbelt perceived it—and reasonably so, Bendix said—the emotional distress of which McKinney complained was alleged solely on the basis of the vandalism that occurred on a day in late 2015 or early 2016. The allegation of vandalism was contained in ¶18 of her TAC.
That paragraph tells of a racial epithet and swastikas appearing on two houses by hers and depictions of male organs painted on her fence. It continues:
“Graffiti was also painted on the asphalt entry to McKinney’s residential gate and several bullet casings were left outside a relative’s home at the time when McKinney was staying at that home. The threats prompted McKinney’s landlord to ask her if she has enemies. McKinney reported the incidents to the LAPD. As a result of the threats, McKinney fears for her life and has suffered, and continues to suffer, severe emotional distress.”
McKinney asserted that her cause of action for emotional distress was not limited to “a single allegation of harassment,” insisting that other instances of harassment were recounted in the complaint, and that enough was put forth to raise triable issues of fact, even without the allegations she wanted to add.
“This litigation has always been about a billionaire investment banker intentionally harassing, intimidating, and stalking a poor disabled Black woman to further his selfish vendetta against another billionaire.”
Incorporation by Reference
Bendix said that the “[m]ere wholesale incorporation of the third amended complaint’s entire factual background” is insufficient “to alert Bacon” to a contention that other recited facts contributed to causing emotional distress.
“[W]e conclude that the trial court’s order granting summary judgment was based on a fair reading of the third amended complaint—that the graffiti and bullet casing incidents identified in paragraph 18 were the sole basis of McKinney’s two remaining causes of action,” Bendix wrote.
The case is McKinney v. Bacon, B303144.
McKinney was in pro per. Representing Bacon were Davida Brook of Susman Godfrey, Christopher M. Egleson of Sidley Austin, and Nancy Chung and Christina Prusak.
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