SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Spring Street Courthouse, Department 32
21STCV42301 July 14, 2022
MAMIE MITCHELL, AN INDIVIDUAL vs RUST MOVIE 1:30 PM
PRODUCTIONS, LLC., A DOMESTIC LIMITED LIABILITY
COMPANY, et al.
Judge: Honorable Michael E. Whitaker CSR: None
Judicial Assistant: I. Yin ERM: None
Courtroom Assistant: None Deputy Sheriff: None
APPEARANCES:
For Plaintiff(s): Carlos Hernandez for John C. Carpenter (via CourtConnect via Teams)
For Defendant(s): Virginia Wong for Dana Fox (via CourtConnect via Teams); Kevin Wheeler
for Nicole Whyte (via CourtConnect via Teams)
NATURE OF PROCEEDINGS: Hearing on Demurrer - with Motion to Strike (CCP 430.10)
(Court Specially Set 07/14/22)
Pursuant to Government Code sections 68086, 70044, California Rules of Court, rule 2.956, and
the stipulation of appearing parties, Jennifer Tat (License Number 13773), certified shorthand
reporter is appointed as an official Court reporter pro tempore in these proceedings, and is
ordered to comply with the terms of the Court Reporter Agreement. The Order is signed and
filed this date.
Counsels do not object to remote reporting.
Matter is called for hearing.
Matter proceeds by way of arguments as to the Court's tentative ruling.
After reading and considering all moving documents, hearing arguments, and conferring with
counsel for plaintiff and counsel for defendant, the Court adopts the tentative ruling as order of
the Court.
Court order as follows:
MOTIONS: Demurrer to First Amended Complaint -
MOVING PARTIES: Defendants Anjul Nigam and Brittany House Pictures
Minute Order Page 1 of 8
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Spring Street Courthouse, Department 32
21STCV42301 July 14, 2022
MAMIE MITCHELL, AN INDIVIDUAL vs RUST MOVIE 1:30 PM
PRODUCTIONS, LLC., A DOMESTIC LIMITED LIABILITY
COMPANY, et al.
Judge: Honorable Michael E. Whitaker CSR: None
Judicial Assistant: I. Yin ERM: None
Courtroom Assistant: None Deputy Sheriff: None
OPPOSING PARTY: Plaintiff Mamie Mitchell
MOTION
Plaintiff Mamie Mitchell sued Defendants Anjul Nigam (“Nigam”) and Brittany House Pictures
(“BHP”) (collectively, “Demurring Defendants”) based on injuries Plaintiff alleges she sustained
when Defendant Alexander R. Baldwin, III (“Baldwin”) discharged a loaded gun towards
Plaintiff. Demurring Defendants demurer to Plaintiff’s first amended complaint. Plaintiff
opposes demurrer.
After hearing on June 2, 2022, the Court continued the hearing on the demurrer and ordered
supplemental briefing as to whether, under New Mexico law, the first and second causes of
action in the first amended complaint state facts sufficient to constitute causes of action for
assault and intentional infliction of emotional distress (“IIED”) against Demurring Defendants.
ANALYSIS
1. DEMURRER
“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”
(Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the court
must “liberally construe[]” the allegations of the complaint. (Code Civ. Proc., § 452.) “This rule
of liberal construction means that the reviewing court draws inferences favorable to the plaintiff,
not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)
Demurring Defendants demur to the first cause of action for assault and second cause of action
for IIED for failure to state facts sufficient to constitute a cause of action and as uncertain.
Specifically, Demurring Defendants assert that the first and second causes of action are premised
solely upon Baldwin’s conduct of pointing and discharging a loaded gun towards Plaintiff
without any allegation of conduct by Demurring Defendants to satisfy the elements for either
assault or IIED under New Mexico law. Demurring Defendants contend that Plaintiff’s
allegations in the first amended complaint with respect to Baldwin fail to constitute assault or
IIED, and that Plaintiff’s allegations with respect to Demurring Defendants sound in negligence.
In opposition, Plaintiff argues that paragraphs 40, 59, 82 and 84 of the first amended complaint
allege facts showing Baldwin committed an unlawful act or menacing conduct that caused
Minute Order Page 2 of 8
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Spring Street Courthouse, Department 32
21STCV42301 July 14, 2022
MAMIE MITCHELL, AN INDIVIDUAL vs RUST MOVIE 1:30 PM
PRODUCTIONS, LLC., A DOMESTIC LIMITED LIABILITY
COMPANY, et al.
Judge: Honorable Michael E. Whitaker CSR: None
Judicial Assistant: I. Yin ERM: None
Courtroom Assistant: None Deputy Sheriff: None
Plaintiff to reasonably believe she was in danger of being killed sufficient to constitute a cause of
action for assault under New Mexico law.
Plaintiff then argues that paragraphs 66 and 84 the first amended complaint allege an agency,
employment, and/or joint venture relationship between Baldwin and Demurring Defendants that
imputes liability to Demurring Defendants for Baldwin’s tortious conduct. Plaintiff claims that
the first amended complaint alleges, in essence, that Demurring Defendants aided and abetted
Baldwin in committing the alleged assault by providing Baldwin with the loaded gun.
Regarding her claim for IIED, Plaintiff argues that the first amended complaint alleges
Demurring Defendants acted with reckless disregard of the probability that Plaintiff would suffer
emotional distress, and so caused Plaintiff emotional distress, when they intentionally acted or
failed to act to ensure that firearms were handled according to industry-wide protocols due to
their decision to prioritize profits over the safe handling of weapons. (See First Amended
Complaint, ¶¶ 5, 49, 60, 62, 63.)
A. First Cause of Action: Assault
Under New Mexico Statutes Annotated section 30-3-1, “[a]ssault consists of either: A. an
attempt to commit a battery upon the person of another; B. any unlawful act, threat or menacing
conduct which causes another person to reasonably believe that he is in danger of receiving an
immediate battery; or C. the use of insulting language toward another impugning his honor,
delicacy or reputation.” (N.M. Stat. Ann., § 30-3-1.) “Battery is the unlawful, intentional
touching or application of force to the person of another, when done in a rude, insolent or angry
manner.” (N.M. Stat. Ann., § 30-3-4.)
Demurring Defendants rely on Baca v. Velez (1992) 114 N.M. 13 (hereafter, “Baca”), to argue
that Plaintiff first fails to allege facts sufficient to constitute the underlying cause of action for
assault because Plaintiff does not allege that she reasonably believed that she was in danger of
receiving an immediate battery prior to the discharge of the loaded weapon. (See Baca, 114 N.M.
at p. 15 [finding no assault to have occurred, and summary judgment to have been proper, in the
absence of evidence that plaintiff “felt scared” before the battery occurred].)
Paragraph 79 of the first amended complaint states, “Plaintiff is informed and believes, and
thereon alleges, that DEFENDANT BALDWIN assaulted her by intentionally acting without just
cause when pointing and discharging a loaded gun towards her that was reasonably expected to
Minute Order Page 3 of 8
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Spring Street Courthouse, Department 32
21STCV42301 July 14, 2022
MAMIE MITCHELL, AN INDIVIDUAL vs RUST MOVIE 1:30 PM
PRODUCTIONS, LLC., A DOMESTIC LIMITED LIABILITY
COMPANY, et al.
Judge: Honorable Michael E. Whitaker CSR: None
Judicial Assistant: I. Yin ERM: None
Courtroom Assistant: None Deputy Sheriff: None
result in injury to her and others.” (First Amended Complaint, ¶ 79.)
Paragraphs 81 and 82 of the first amended complaint state as follows:
“At no time did Plaintiff consent to having a loaded gun pointed and discharged towards her by
DEFENDANT BALDWIN while standing 4 feet away from him, including, without limitation,
because, based upon information and belief, there was no warning prior to having the gun
pointed and discharged when Plaintiff was standing approximately 4 feet away from
DEFENDANT BALDWIN, the script for the upcoming scene did not call for the discharge of a
gun, no ear protectors were provided to Plaintiff and other nearby crew members, and there was
insufficient plexiglass inside the church at the time of discharge to ensure her safety. Had
Plaintiff known that DEFENDANT BALDWIN would point and discharge a weapon in her
direction, Plaintiff would not have been inside the church but would have instead been outside of
the church viewing DEFENDANT BALDWIN’S actions on an exterior screen with other crew
members.
At the time DEFENDANT BALDWIN pointed and discharged the gun, neither filming nor
rehearsal had commenced. Plaintiff was standing less than four feet away from DEFENDANT
BALDWIN. At the moment of discharge, Plaintiff was standing adjacent to Hutchins, who was
fatally shot and killed as a result of the discharged gun. Plaintiff was terrified and feared for her
life.”
(First Amended Complaint, ¶¶ 82-83.)
But in paragraphs 56 and 58-60, Plaintiff alleges the following:
“Immediately prior to DEFENDANT BALDWIN’S deliberate, but to Plaintiff unexpected,
discharge of the loaded gun, the cast and crew, including, without limitation, DEFENDANT
BALDWIN, Plaintiff, Hutchins, and Souza, were in very close proximity with one another inside
the church for the afternoon scene. Specifically, DEFENDANT BALDWIN was in the church
sitting in a pew wearing a holster with a gun that had been handed to him earlier by
DEFENDANT HALLS. Several other crew members were also inside the church, including, but
not limited to, a wardrobe person, a camera operator, and a gaffer. At that time, Plaintiff was less
than 4 feet from where DEFENDANT BALDWIN was seated, and she had Hutchins to her left
and Souza behind Hutchins.
Minute Order Page 4 of 8
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Spring Street Courthouse, Department 32
21STCV42301 July 14, 2022
MAMIE MITCHELL, AN INDIVIDUAL vs RUST MOVIE 1:30 PM
PRODUCTIONS, LLC., A DOMESTIC LIMITED LIABILITY
COMPANY, et al.
Judge: Honorable Michael E. Whitaker CSR: None
Judicial Assistant: I. Yin ERM: None
Courtroom Assistant: None Deputy Sheriff: None
Shortly before DEFENDANT BALDWIN fired the loaded gun, Plaintiff was looking both at a
picture of DEFENDANT BALDWIN on her phone and at DEFENDANT BALDWIN in front of
her, including while he was moving the loaded gun within approximately 4 feet in front of her, to
ensure continuity with the upcoming afternoon scenes. At the time, Hutchins was leaning down
in line with the camera setting up the upcoming scene. Souza was behind Hutchins.
Suddenly and without warning, Plaintiff heard and felt a shocking and deafening sound from the
gunshot, unlike anything she had ever heard in her life. Plaintiff was terrified and feared for her
life. The gunshot caused Plaintiff to experience pain in her ears and head and, shortly thereafter,
Plaintiff began to hear loud ringing in her ears
Soon after, Plaintiff witnessed the horror of what had occurred. Plaintiff heard what sounded like
moaning and, as she turned toward the moaning sound, Plaintiff saw Souza doubled over.
Plaintiff understood that he had been shot. Plaintiff then turned her head and saw Hutchins on the
ground, not moving. It was then that Plaintiff knew that both Hutchins and Souza had been shot
by the gun that PLAINTIFF BALDWIN had taken out of the holster, pointed in their direction,
and discharged.”
(First Amended Complaint, ¶¶ 56, 58-60.)
In short, Plaintiff alleges that she witnessed Baldwin “moving the loaded gun within
approximately 4 feet in front of her” but did not experience any fear or apprehension until after
he fired it. Plaintiff does not allege that Baldwin, after having fired the weapon, then engaged in
any unlawful act, threat, or menacing conduct that caused Plaintiff to reasonably believe that she
was in danger of receiving an immediate battery. Consequently, the Court finds the first cause of
action fails to allege facts sufficient to constitute the underlying cause of action for assault
against Plaintiff by Baldwin. Without the underlying tort, the Court does not reach the question
of Demurring Defendants’ liability. The Court therefore sustains the demurrer to the first cause
of action.
B. Second Cause of Action: IIED
To establish a claim for IIED under New Mexico law, Plaintiff must show “(1) the conduct in
question was extreme and outrageous; (2) the conduct of the defendant was intentional or in
Minute Order Page 5 of 8
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Spring Street Courthouse, Department 32
21STCV42301 July 14, 2022
MAMIE MITCHELL, AN INDIVIDUAL vs RUST MOVIE 1:30 PM
PRODUCTIONS, LLC., A DOMESTIC LIMITED LIABILITY
COMPANY, et al.
Judge: Honorable Michael E. Whitaker CSR: None
Judicial Assistant: I. Yin ERM: None
Courtroom Assistant: None Deputy Sheriff: None
reckless disregard of the plaintiff; (3) the plaintiff’s mental distress was extreme and severe; and
(4) there is a causal connection between the defendant’s conduct and the claimant’s mental
distress.” (Trujillo v. Northern Rio Arriba Elec. Co-op, Inc. (2001) 131 N.M. 607, 616.) Extreme
and outrageous conduct is that which is “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.” (Ibid.) The court first determines, as a threshold matter,
whether the conduct may reasonably be regarded as so extreme and outrageous that it will permit
recovery as a matter of law. (Padwa v. Hadley (1999) 127 N.M. 416, 419.) “When reasonable
persons may differ on that question, it is for the jury to decide, subject to the oversight of the
court.” (Ibid.)
Here, the first amended complaint alleges, in pertinent part,
“Plaintiff is informed and believes, and thereon alleges, that DEFENDANTS, including, without
limitation, DEFENDANT BALDWIN, engaged in, without limitation, intentional acts and/or
omissions, without any just cause or excuse, that were reasonably expected to result in the injury
suffered by Plaintiff with utter disregard for the harmful consequences (see Delgado v. Phelps
Dodge Chino, Inc. (2001) 34 P.3d 1148, 1156)
Plaintiff is informed and believes, and thereon alleges, that the conduct of DEFENDANT
BALDWIN when he pointed and discharged a loaded gun towards Plaintiff constituted extreme
and outrageous conduct under the facts and circumstances of the ‘Rust’ filmmaking.
Plaintiff is informed and believes, and thereon alleges, that DEFENDANT BALDWIN engaged
in intentional acts and/or omissions, without any just cause or excuse, that were reasonably
expected to result in the injury suffered by Plaintiff with utter disregard for the safety of Plaintiff
As a result of DEFENDANT BALDWIN’S intentional acts and/or omissions without
justification and in utter disregard for the consequences, Plaintiff suffered and continues to
suffer, without limitation, severe emotional distress.
As a result of DEFENDANT BALDWIN’s pointing and discharging the gun towards her,
Plaintiff has suffered compensable damages including, without limitation, extreme and severe
emotional distress for which she has had to employ medical treaters, including, without
limitation, mental health providers for her emotional and/or physical injuries. Plaintiff was
severely injured in, without limitation, her health, strength and activity and sustained serious
Minute Order Page 6 of 8
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Spring Street Courthouse, Department 32
21STCV42301 July 14, 2022
MAMIE MITCHELL, AN INDIVIDUAL vs RUST MOVIE 1:30 PM
PRODUCTIONS, LLC., A DOMESTIC LIMITED LIABILITY
COMPANY, et al.
Judge: Honorable Michael E. Whitaker CSR: None
Judicial Assistant: I. Yin ERM: None
Courtroom Assistant: None Deputy Sheriff: None
physical trauma and shock and injury to her nervous system and person, all of which injuries
have caused, and continue to cause Plaintiff extreme mental, physical and nervous pain
Plaintiff is informed and believes, and thereon alleges, that, without limitation, DEFENDANT
BALDWIN, at all relevant times, was aided by and through the agency, employment, and/or
joint venture between him and DEFENDANTS, including, without limitation, DEFENDANT
PRODUCERS, in assaulting Plaintiff with the loaded discharge of the gun that killed Hutchins
and injured Plaintiff. Plaintiff is informed and believes, and thereon alleges, that, without
limitation, DEFENDANT BALDWIN, by reason of his agency, employment, and/or joint
venture between him and DEFENDANTS, including, without limitation, DEFENDANT
PRODUCERS, was provided with a loaded gun that he aimed and shot towards Plaintiff,
Hutchins, and Souza.
Plaintiff is informed and believes, and thereon alleges, that the actions of DEFENDANT
BALDWIN constituted intentional acts and/or omissions, without any just cause or excuse, that
were reasonably expected to result in the injury suffered by Plaintiff with utter disregard for the
consequences and/or wanton conduct with utter indifference to and/or conscious disregard for the
rights and safety of others, including, without limitation, of Plaintiff, Hutchins, and Souza.”
(First Amended Complaint, ¶¶ 87-93.)
In Rael v. Cadena (1979) 93 N.M. 684 (hereafter, “Rael”), the New Mexico Court of Appeals
adopted the approach under the Restatement (Second) of Torts to extend civil liability “for harm
resulting to a third person for the tortious conduct of another” where the individual “knows that
the other’s conduct constitutes a breach of duty and gives substantial assistance or
encouragement to the other to so conduct himself.” (Rael, 93 N.M. at pp. 684-685; accord. GCM,
Inc. v. Kentucky Cent. Life Ins. Co. (1997) 124 N.M. 186, 190 [citing Rael’s adoption of
Restatement (Second) of Torts Section 876, “which recognizes the liability of third persons for
the tort of another if the person ‘knows that the other’s conduct constitutes a breach of duty and
gives substantial assistance or encouragement to the other so to conduct himself”].)
Demurring Defendants also rely on State Farm Mutual Automobile Insurance Co. v. Baldonado
(2003) 134 N.M. 197 (hereafter “State Farm”), to advocate for a four-step inquiry to establish
Demurring Defendants’ liability for Baldwin’s intentional conduct. State Farm, however,
addresses the specific issue of whether and under what circumstances a plaintiff in an uninsured
motorist can recover for a passenger’s intentional act within the coverage of uninsured motorist
Minute Order Page 7 of 8
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Spring Street Courthouse, Department 32
21STCV42301 July 14, 2022
MAMIE MITCHELL, AN INDIVIDUAL vs RUST MOVIE 1:30 PM
PRODUCTIONS, LLC., A DOMESTIC LIMITED LIABILITY
COMPANY, et al.
Judge: Honorable Michael E. Whitaker CSR: None
Judicial Assistant: I. Yin ERM: None
Courtroom Assistant: None Deputy Sheriff: None
endorsements. State Farm is therefore factually and legally distinct from this case.
Here, to establish Demurring Defendants’ liability for IIED in accordance with Rael, Plaintiff
must allege that Demurring Defendants (1) knew that Baldwin was going to point and fire the
loaded weapon towards Plaintiff, and (2) provided him either substantial assistance or
encouragement to do so. While Plaintiff alleges that Demurring Defendants assisted Baldwin by
supplying the loaded weapon, Plaintiff’s allegations fail to establish that Demurring Defendants
knew Baldwin would aim and fire the loaded weapon towards Plaintiff such that they would be
jointly liable for his intentional conduct. Accordingly, the Court sustains the demurrer to the
second cause of action.
CONCLUSION AND ORDER
Therefore, the Court sustains Demurring Defendants’ demurrer to the first and second causes of
action, with leave to amend, and orders Plaintiff to file and serve an amended complaint in
accordance with the Court’s ruling within 20 days of the hearing.
Demurring Defendants shall provide notice of the Court’s ruling and file a proof of service of
such.
Minute Order Page 8 of 8
