Judge: Armen Tamzarian, Case: 21STCV33200, Date: 2022-12-09 Tentative Ruling

Case Number: 21STCV33200    Hearing Date: December 9, 2022    Dept: 52

Demurrers and Motions to Strike Portions of the Third Amended Complaint by Defendants (1) Paramount Plaza, LLC and Jamison Services, Inc.; (2) Fabio Lopez and SP Plus Corporation; (3) Crown Maintenance Co.; and (4) Universal Protection Service, LP

I. Demurrers

            Four groups of defendants, (1) Paramount Plaza, LLC and Jamison Services, Inc.; (2) Fabio Lopez and SP Plus Corporation; (3) Crown Maintenance Co.; and (4) Universal Protection Service, LP demur to the third amended complaint by plaintiff John Doe.  The court’s ruling addresses them jointly because they rely on common arguments.

Summary of Allegations

            The third amended complaint alleges 14 causes of action against all seven named defendants, all arising from the same repeated factual allegations:

The acts of discrimination and harassment that DEFENDANTS, Does Nos [1-20, 21-40, etc.] incited, aided, abetted, agreed to direct, conspired to direct and directed at PLAINTIFF, on account of his race, national origin, color and/or ancestry, includes, inter alia, as follows: Smashing the window of PLAINTIFF’s SUV and stealing PLAINTIFF compact disc and compact disc holder. Then entering PLAINTIFF’s car, over one year later, to return the CD and CD holder that they had stolen, in order to intimidate PLAINTIFF.  Arranging for a robber to steal PLAINTIFF’s cell phone, from his pocket. Flooding the parking lot where PLAINTIFF regularly parked his car.  Changing the combination to PLAINTIFF’s brief case to read 800911.  Spraying unhealthy and noxious substance in PLAINTIFF’s office, on multiple occasions, while PLAINTIFF was in his office.   Using their trash brute to block PLAINTIFF’s pathway.  Blocking PLAINTIFF’s pathway, on multiple occasions, in the courtyard of the building.  Stalking PLAINTIFF, on an almost daily basis.  Placing cockroaches in PLAINTIFF’s office, in the bathroom, and in the hallway when they know that PLAINTIFF was about visit those locations.  Using racially harassing black garbage liners on PLAINTIFF’s trash can while they used transparent liners for other tenants in 3550.  Refusing to service PLAINTIFF’s trash can between about October, 2020 until present.  Committing battery on PLAINTIFF, by hitting PLAINTIFF with their trash brute.  Eavesdropping in PLAINTIFF’s meeting with his customers.  Stealing PLAINTIFF’s mail from the mail room.  Making prank calls to PLAINTIFF’s home and office phone.  Turning off PLAINTIFF’s key card so PLAINTIFF will not have automatic access to 3550 Wilshire Blvd.  Blocking PLAINTIFF’s car in the parking lot.  Denying PLAINTIFF access into 3550 Wilshire Blvd.  Hiring people to tell PLAINTIFF “we are watching YOU” as PLAINTIFF was walking within the premises of 3550 Wilshire Blvd.  Setting up a contraption to look like a noose in the parking lot of 3550 Wilshire Blvd.  Defaming PLAINTIFF to destroy his reputation and to increase the amount of people that were harassing PLAINTIFF.  Blocking PLAINTIFF’s path, as PLAINTIFF was walking in the premises of 3550 Wilshire.  Taking trash, from PLAINTIFF’s trash bag and placing it next to PLAINTIFF’s car.  It was bizarre. The harassment was almost on daily basis, and continues until today.

(TAC, ¶¶ 30, 49, 67, 88, 107, 125.)

            Plaintiff alleges each entity defendant employs a group of 20 individuals who used their positions around Paramount Plaza to “direct” those acts because of plaintiff’s race and national origin.  (TAC, ¶¶ 29, 48, 66, 87, 105, 124, 139.)  Does 1-20 work for Paramount Plaza, LLC (TAC, ¶ 16); 21-40 work for Crown Building Maintenance Co. (¶ 35); 41-60 work for Universal Protection Service, LP (¶ 53); 61-80 work for SP Plus Corporation (¶ 71); 81-100 work for Jamison services, Inc. (¶ 92); and 101 to 120 work for U.S. Metro Bank (¶ 111).  Plaintiff alleges each entity “knew about the subject harassment” described at length above “and/or should have known about it, and failed to take prompt remedial action.  Instead, they ratified it.”  (TAC, ¶¶ 30, 49, 67, 88, 107, 125.)

            Plaintiff alleges individual defendant Fabio Lopez “was a managing agent of SP Plus Corporation” (TAC, ¶ 7) and its “operations manager” (¶ 72) and that he directed SP Plus Corporation’s employees, Does 61-80, to do the conduct plaintiff alleges (¶ 87).

Uncertainty and Failure to Allege Sufficient Facts

            Each demurrer makes overlapping arguments that the third amended complaint is uncertain and Plaintiff alleges sufficient facts for each cause of action against the demurring

            The third amended complaint is not uncertain.  “Demurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.”  (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695, internal quotes and alterations omitted.)  The complaint must sufficiently apprise defendants of the claims against them.  (Ibid.) 

            The third amended complaint is not so incomprehensible that these defendants cannot reasonably respond.  They argue it is uncertain because plaintiff repeatedly alleges each group of defendants did the same actions (TAC, ¶¶ 30, 49, 67, 88, 107, 125.), which makes it impossible to know who did what.  Instead of uncertainty, this argument amounts to asserting the allegations are not plausible.  What plaintiff alleges is clear: every defendant’s employees did or directed others to do all of those things, and the defendant entities authorized or ratified that conduct.

Plaintiff may struggle to prove that each of these entities directed a group of 20 employees to, for example, enter his office to place cockroaches and spray noxious substances.  But plaintiff alleges they did.  Those allegations are factual, not conclusory.  Defendants can reasonably respond to these allegations by simply denying them. 

Each demurrer also argues plaintiff fails to allege sufficient facts for his causes of action because he does not specifically allege that any defendant did any of the conduct alleged.  To the contrary, he alleges all the entity defendants employed people who did or directed the alleged misconduct.  He alleges the entity defendants each authorized or ratified their employees’ misconduct.  Plaintiff further alleges Fabio Lopez is a managing agent of SP Plus Corporation and he directed the corporation’s employees to do the acts alleged.  Again, there may be a problem of plausibility, but these allegations are sufficient against each of the demurring defendants.

Except for the 12th cause of action for defamation, the court finds it unnecessary to address each cause of action separately.  Plaintiff alleges all defendants authorized and ratified the numerous acts alleged in 30, 49, 67, 88, 107, 125.  Those acts suffice for each cause of action.  For example, the third amended complaint alleges defendants’ employees “hit[] plaintiff with their trash” can.  That is battery.  The third amended complaint further alleges defendants sprayed noxious substances and put cockroaches in plaintiff’s office.  That conduct violates plaintiff’s right to quiet enjoyment of the premises, is extreme and outrageous behavior sufficient for intentional infliction of emotional distress, and suffices to constitute a nuisance.

Statutes of Limitations

            Each demurrer argues the causes of action against defendants are barred by the applicable statutes of limitations.  A demurrer should be sustained where “the complaint shows on its face that the statute [of limitations] bars the action.”  (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.)  “[T]he defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.”  (Id. at p. 1316.) 

            Any defects based on the statutes of limitation do not appear on the face of plaintiff’s third amended complaint.  Defendants argue plaintiff does not allege when the incidents happened, he fails to allege they occurred within the statutes of limitations.  When liberally construed, plaintiff does allege the incidents occurred within one year of filing this action on September 8, 2021.  He alleges, “[B]etween 2019 and present,” defendants’ employees used their positions around Paramount Plaza “to direct the very serious and pervasive racial/national origin/color/ancestry discrimination and harassment, that is specified in” other paragraphs “at plaintiff.”  (TAC, ¶¶ 29, 48, 66, 87, 105, 124.)  He further alleges the harassment “was almost on [a] daily basis, and continues until today.”  (TAC, ¶¶ 30, 49, 67, 88, 107, 125.)

12th Cause of Action for Defamation

            Plaintiff alleges sufficient facts for this cause of action.  “The tort of defamation ‘involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.’”  (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) 

In addition to the arguments discussed above (which are common to all causes of action) defendants’ demurrers argue plaintiff fails to allege the defamatory statement, when it was made, or to whom it was made.  Plaintiff alleges Lopez and Does 1-120 and 241-300, “while working in the course and scope of their employment as employees/agents of” each entity defendant, “defamed PLAINTIFF by telling people that worked at, and/or were located around 3550 Wilshire Blvd., that PLAINTIFF was, inter alia, harassing DEFENDANT DOE No. 21.”  (TAC, ¶ 195.)  The purportedly defamatory statement was thus that plaintiff was harassing a janitor at Paramount Plaza.  Plaintiff need not allege specifically where, when, and to whom the statement was published.  He alleges the ultimate facts as required.     

Defendants also argue the alleged statement does not tend to injure plaintiff.  Defamation includes a “publication that exposes the plaintiff to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”  (Brodeur v. Atlas Entertainment, Inc. (2016) 248 Cal.App.4th 665, 678, internal quotes omitted.)  Plaintiff alleges defendants’ employees made the defamatory statement that he “was harassing” a janitor (TAC, ¶ 195) “to destroy [plaintiff’s] reputation and to increase the amount of people that were harassing” him (¶¶ 30, 49, 67, 88, 107, 125).  On demurrer, alleging a false accusation of harassment suffices as a statement that naturally exposes someone to contempt, ridicule, or causes him to be shunned or avoided.

Finally, defendants argue the alleged statement is a mere opinion.  “If an expression of opinion ‘implies a false assertion of fact, the opinion can constitute actionable defamation.’ ”  (Brodeur v. Atlas Entertainment, Inc., supra, 248 Cal.App.4th 665, 680.)  Stating plaintiff was “harassing” Doe No. 21 implies facts that he was doing something to vex and annoy Doe No. 21.  Though the details are not specified, the word “harassing” is enough for a listener to understand plaintiff engaged in objectionable behavior.

Disposition

The demurrers by defendants (1) Paramount Plaza, LLC and Jamison Services, Inc.; (2) Fabio Lopez and SP Plus Corporation; (3) Crown Maintenance Co.; and (4) Universal Protection Service, LP are overruled. 

II. Motions to Strike

            The same four groups of defendants, (1) Paramount Plaza, LLC and Jamison Services, Inc.; (2) Fabio Lopez and SP Plus Corporation; (3) Crown Maintenance Co.; and Universal Protection Service, LP, each move to strike portions of the third amended complaint by plaintiff John Doe.  The court’s ruling again addresses them jointly because they rely on common arguments.

Punitive Damages

            Each motion seeks to strike the allegations regarding punitive damages.  Courts may strike allegations related to punitive damages where the facts alleged “do not rise to the level of malice, oppression or fraud necessary” to recover punitive damages under Civil Code section 3294.  (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) 

The third amended complaint alleges each defendant “knew about the subject harassment and/or should have known about it, and failed to take prompt remedial action.  Instead, they ratified it.”  (TAC, ¶¶ 30, 49, 67, 88, 107, 125.)  Plaintiff alleges those acts “were authorized and/or ratified by” the entities.  (¶¶ 33-34, 52, 70, 91, 110, 128).  Finally, plaintiff alleges the Doe defendants themselves were managing agents” of the entities.  (¶¶ 9-14.)  Plaintiff therefore alleges sufficient facts for punitive damages against the moving defendants.  Acts such as hitting plaintiff with a trash can, spraying noxious substances in his office, and stealing his cell phone are malicious and oppressive.

Fabio Lopez and SP Plus Corporation’s Motion to Strike Paragraphs 85-91

            In addition to the allegations related to punitive damages, Lopez and SP Plus Corporation move to strike paragraphs 85-91 of the third amended complaint.  They argue the allegations are superfluous or abusive and “baseless.”  (Motion, p. 14.)  They are not superfluous.  These paragraphs allege Lopez and other employees of SP Plus Corporation worked together to do the numerous acts plaintiff alleges, did so in the course of their employment or agency, and that the entities defendants authorized or ratified those acts.  When ruling on a motion to strike, the court must accept these factual allegations as true. 

Disposition

The motions to strike by defendants (1) Paramount Plaza, LLC and Jamison Services, Inc.; (2) Fabio Lopez and SP Plus Corporation; (3) Crown Maintenance Co.; and (4) Universal Protection Service, LP are denied.

Defendants are ordered to answer within 15 days.

Order to Show Cause Re: Plaintiff’s Use of a Fictitious Name

Plaintiff is using the fictitious name “John Doe” to bring this action.  On November 2, 2022, the court set this order to show cause regarding plaintiff’s use of a fictitious name. 

Where no statute provides for plaintiff’s anonymity, “the trial court must conduct a hearing and apply the overriding interest test” to determine whether the plaintiff may remain anonymous.  (Department of Fair Employment and Housing v. Superior Court of Santa Clara County (2022) 82 Cal.App.5th 105, 111 (DFEH).) 

A party’s request for anonymity should be granted only if the court finds that an overriding interest will likely be prejudiced without use of a pseudonym, and that it is not feasible to protect the interest with less impact on the constitutional right of access.  [Fn.]  In deciding the issue the court must bear in mind the critical importance of the public’s right to access judicial proceedings.  Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur “only in the rarest of circumstances.”

(Id. at pp. 111-112.)  “[S]ubstantial risk of harm to the [plaintiff] would be sufficient to allow for anonymity.”  (DFEH, supra, 82 Cal.App.5th at p. 112.)

Courts “should determine the need for anonymity by evaluating the following factors: (1) the severity of the threatened harm, [citation]; (2) the reasonableness of the anonymous party’s fears, [citation]; and (3) the anonymous party’s vulnerability to such retaliation.”  (Does I thru XXIII v. Advanced Textile Corp. (9th Cir. 2000) 214 F.3d 1058, 1068.) 

Plaintiff fails to show a privacy interest that overrides the public’s right to access judicial proceedings.  In this action, plaintiff alleges many people in and around the building where he leases an office have engaged in a campaign of harassing and abusing him because of his race.  Rather than providing evidence of threatened future harm, plaintiff’s declaration attests to the facts underlying his allegations of past harassment and authenticates various photographs purportedly documenting the harassment.  Moreover, any threatened harm is not severe.  His evidence includes, for example, photos showing the building’s custodial staff used a black liner for his waste basket but a white liner for his assistant’s.  Plaintiff shows no threat of bodily harm. 

Plaintiff also does not show his fear of retaliation is reasonable.  He fails to show causation: that using his true name in this action would likely cause future harm.  As he acknowledges, the defendants who have allegedly harassed him already know his identity.  Making plaintiff use his name in this case is not likely to change anything. 

Finally, plaintiff does not show he is particularly vulnerability to retaliation. 

            Plaintiff cannot remain anonymous in this action.  Plaintiff’s operative complaint therefore “must be amended to state [his] true name.”  (DFEH, supra, 82 Cal.App.5th at p. 111, fn. 1.)

Application to Seal

            Plaintiff applied to seal the declaration he filed in response to this order to show cause.  Courts may only seal records when “[t]here exists an overriding interest that overcomes the right of public access to the record.”  (Cal. Rules of Court, rule 2.550(d)(1).)  As discussed above, plaintiff’s interest in remaining anonymous does not overcome the right of public access. 

            Furthermore, plaintiff’s proposed sealing is not narrowly tailored.  (Cal. Rules of Court, rule 2.550(d)(4).)  He proposes sealing his entire declaration—not just the few portions that reveal his identity.

Disposition

            Plaintiff is hereby ordered to file an amended complaint stating his true name within 20 days.

Plaintiff’s application to seal records is denied.  Unless plaintiff notifies the court within 10 days that he wants his conditionally sealed declaration to be filed unsealed, the court will return or destroy it.  (Cal. Rules of Court, rule 2.551(b)(6).)