Hughes v. Pair (2009) 46 Cal.4th 1035; CACI No. 1600
Intentional infliction of emotional distress — and why workplace claims usually fail
A claim in California superior courts · Last verified August 26, 2026
This claim is pleaded constantly and succeeds rarely, and both facts have the same cause: the standard is not "badly," it is "outrageously."
Conduct must be so extreme as to exceed all bounds of that usually tolerated in a civilised community. Rude, cruel, dishonest, humiliating, and unfair all fall short. Courts decide as a matter of law whether alleged conduct can qualify, so these claims are frequently gone on demurrer.
And there is a second obstacle that removes most of the remaining cases. Where the distress arose at work, workers' compensation exclusivity generally bars the claim outright — no matter how badly the employer behaved.
What the claim is
Someone engaged in outrageous conduct intending to cause you severe emotional distress, or in reckless disregard of the probability of causing it, and you suffered severe emotional distress as a result.
Where the right comes from
Common law. Hughes v. Pair (2009) 46 Cal.4th 1035 states the modern standard for both outrageousness and severity.
What a plaintiff has to prove — CACI No. 1600
- The defendant's conduct was outrageous.
- The defendant intended to cause emotional distress, or acted with reckless disregard of the probability of causing it.
- The plaintiff suffered severe emotional distress.
- The defendant's conduct was a substantial factor in causing it.
Outrageous means outrageous
The conduct must be so extreme as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilised community.
Whether conduct can meet that standard is a question of law in the first instance. The court decides whether reasonable people could differ; only then does the jury weigh it. That gate is why so many of these claims end at the pleading stage.
Two factors can make otherwise ordinary conduct outrageous: a defendant in a position of authority over the plaintiff, and a defendant who knew the plaintiff was peculiarly susceptible to emotional distress and exploited it.
Severe means severe
Severe emotional distress means distress of such substantial quality or enduring quality that no reasonable person in a civilised society should be expected to endure it.
Hughes is explicit that discomfort, worry, anxiety, upset, worry, annoyance, and grief do not suffice. Physical manifestation is not required, but its absence makes the showing harder in practice.
How long you have to file
Two years, under CCP § 335.1, as a personal injury claim.
Accrual is on the outrageous conduct, not on when the distress became severe.
Continuing conduct can extend it where the course of conduct is continuing rather than a series of discrete acts with lingering effects — a distinction courts apply strictly against plaintiffs.
What has to happen before you file
Nothing.
Unless a public entity is a defendant — then the Government Claims Act six-month presentation requirement applies, and it is the first thing to check. A claim against a public employee for outrageous conduct is subject to it even though the two-year period is nowhere near expiring.
Who can be sued — and the exclusivity problem
Anyone whose conduct was outrageous. There are no thresholds and no categorical exclusions in the tort itself.
But workers' compensation exclusivity removes most workplace claims. Where the emotional distress arose out of and in the course of employment, the exclusive remedy provisions of the Labor Code generally bar a civil action — including where the conduct was intentional, and including where the employer behaved appallingly. Demotions, terminations, criticism, discipline, and performance management are normal parts of the employment relationship, and injuries flowing from them fall inside the compensation bargain.
What survives exclusivity:
- Conduct that contravenes a fundamental public policy — most importantly, FEHA harassment and discrimination, which are not a normal part of the employment relationship and are not barred.
- Conduct that exceeds the risks inherent in the employment relationship.
- Claims against a coworker acting outside the scope of employment for personal reasons.
The practical result: in a workplace case, plead the FEHA claim. It reaches the same conduct, it allows uncapped emotional distress damages, it permits individual liability for harassment, and it pays your attorney's fees. An IIED count added alongside it usually adds exposure to a demurrer and little else.
Common defenses
The conduct was not outrageous as a matter of law. The dominant defense, resolved on demurrer.
The distress was not severe — upset, anxiety, and humiliation are not enough under Hughes.
Workers' compensation exclusivity.
The litigation privilege, Civil Code § 47(b), which is absolute and bars an IIED claim founded on communications in or about a judicial proceeding. A claim based on what someone said in a lawsuit, a demand letter, or a report to authorities fails outright.
Anti-SLAPP, under CCP § 425.16, where the conduct was speech or petitioning activity — with a mandatory fee award against the plaintiff if the motion succeeds. IIED claims attached to speech are among the most common anti-SLAPP targets.
Constitutional protection, where the claim would penalise protected expression on a matter of public concern.
The two-year period, and the Government Claims Act where a public entity is involved.
What the claim pays
Emotional distress damages, which are the substance of the claim.
Physical injury damages, where the distress produced them.
Consequential economic loss — lost earnings, treatment costs.
Punitive damages under Civil Code § 3294, on clear and convincing proof of oppression, fraud, or malice. Conduct outrageous enough to establish liability will usually support the showing, which is one of the few structural advantages of the claim.
No fee-shifting. A losing plaintiff on an anti-SLAPP motion pays the defendant's fees.
Jury trial: yes — if you get there.
What people get wrong
"What they did was outrageous." Colloquially, perhaps. Legally, the standard is conduct beyond all possible bounds of decency and utterly intolerable in a civilised community.
"I was devastated." Severe distress means more than grief, anxiety, humiliation, or worry, however real.
"My boss made my life miserable, so I'll sue for emotional distress." Workers' compensation exclusivity almost certainly bars it. Plead FEHA instead if there is a protected characteristic involved.
"They lied about me in court papers." The litigation privilege is absolute.
"I need a doctor's diagnosis." Physical manifestation is not required, though it helps.
"I'll add IIED to strengthen the complaint." It usually invites a demurrer and, where speech is involved, an anti-SLAPP motion with fees against you.
"It's a public agency, so I have two years." You have six months to present a claim.
Where it came from
For most of its history the common law refused to compensate emotional harm standing alone, on the reasoning that such claims were too easy to fabricate and too hard to measure. Distress was recoverable only as a parasitic element of some other tort.
The independent tort was recognised in the twentieth century, and the extraordinarily high threshold was the price of recognition — a filter substituting for the physical injury requirement it replaced. That is why the standard is stated in such emphatic language: it is doing the work that "physical impact" used to do.
California added the workers' compensation overlay, and it is what most limits the tort in practice. The compensation bargain trades the right to sue for a no-fault remedy, and courts have read it to cover the emotional consequences of ordinary employment decisions even when made cruelly.
The important carve-out came from the anti-discrimination statutes. Because harassment and discrimination are not normal incidents of employment, they escape exclusivity — which is why the statutory claim has largely replaced the common law one in the workplace, and why FEHA rather than IIED is where these cases are now fought.
Common questions
What counts as outrageous conduct?
Conduct so extreme it goes beyond all possible bounds of decency and would be regarded as atrocious and utterly intolerable in a civilised community. Rudeness, cruelty, dishonesty, and unfairness do not meet it, and the court decides in the first instance whether the alleged conduct can.
Can I sue my employer for emotional distress?
Usually not through this claim. Workers' compensation exclusivity generally bars IIED claims arising from the employment relationship, including intentional conduct. Harassment and discrimination are the main exceptions, and those are FEHA claims.
How severe does my distress have to be?
Substantial or enduring enough that no reasonable person should be expected to endure it. Hughes v. Pair holds that anxiety, worry, upset, humiliation, and grief are not enough on their own.
Do I need to have seen a doctor?
No. Physical manifestation is not required, though evidence of treatment makes the severity showing considerably easier.
How long do I have?
Two years from the outrageous conduct. If a public entity is involved, you must present a government claim within six months, which will expire long before the two years.
What is the risk of adding this claim?
If the conduct was speech or petitioning activity, the defendant can bring an anti-SLAPP motion and recover attorney's fees from you. The litigation privilege will also bar any claim based on statements made in or about a lawsuit.