Judge: Armen Tamzarian, Case: 22STCV39270, Date: 2023-04-20 Tentative Ruling
Case Number: 22STCV39270 Hearing Date: April 20, 2023 Dept: 52
Defendant
Fitness & Sports Club, LLC’s Demurrer and Motion to Strike
Demurrer
Defendant Fitness & Sports Club, LLC demurs to
plaintiff Dewey Demetro, Jr.’s complaint generally and for uncertainty.
General
Demurrer
A general demurrer should
be sustained “only if the complaint fails to state a cause of action under any possible
legal theory.” (Sheehan v. San
Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.) “If the complaint states a cause of action under
any theory, regardless of the title under which the factual basis for relief is
stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty
Co. (1998) 19 Cal.4th 26, 38.)
The complaint alleges
sufficient facts to constitute a cause of action under at least one legal
theory: the Unruh Civil Rights Act. “All
persons within the jurisdiction of this state are free and equal, and no matter
what their sex, race,” or other protected status “are entitled to the full and
equal accommodations, advantages, facilities, privileges, or services in all
business establishments of every kind whatsoever.” (Civ. Code, § 51(b).) “Whoever denies, aids or incites a denial, or
makes any discrimination or distinction contrary to Section 51” is liable. (Civ. Code, § 52(a).)
Plaintiff’s complaint
alleges he “was [at] LA Fitness working out,” when “a manager” interrupted him
and told him, “You have to go now!”
(Comp., p. 1.) Plaintiff asked
why. (Ibid.) The
manager answered, “Because I am a racist! And you are [wearing]
headphones, now remove your ear plugs! And kill your phone, you are breaking
the rules, now leave!” (Ibid.) Plaintiff replied, “But that man is [wearing]
headphones!” (Ibid.) The manager “Rogelio said, That man is my
friend Juan, and he is Spanish! Only you
can not [wear] headphones, now leave! … or I will call the police!” (Ibid.)
Plaintiff’s complaint concludes, “I got kicked out. Racial attack [at] LA Fitness.” (Comp., p. 2.)
These factual allegations
constitute a cause of action for violation of the Unruh Civil Rights Act. The gravamen of the complaint is that the
manager at an LA Fitness gym kicked plaintiff out because of his race. Though the manager claimed plaintiff broke a
rule against wearing headphones, at least one other person was permitted to
wear headphones because he was the manager’s friend and was “Spanish.” The complaint thus states defendant Fitness
& Sports Club, LLC denied plaintiff the right to full and equal
accommodations and facilities in its business establishment, an LA Fitness gym,
due to his race.
Defendant argues the
complaint fails to allege what damages plaintiff is seeking or how he was
damaged. At the bottom of its first two
pages, the complaint states “$8,000,000,000.00 eight billion dollars.” The plausibility of that amount is not a
proper consideration on demurrer.
Regardless of any actual damages, a plaintiff can recover a minimum of
$4,000 in statutory damages “for each and every” violation of the Unruh Civil
Rights Act. (Civ. Code, § 52(a).) “[B]y passing the Unruh Act, the Legislature
established that arbitrary … discrimination by businesses is per se injurious.” (Koire v. Metro Car Wash
(1985) 40 Cal.3d 24, 33.) “[T]he statute
provides for damages aside from any actual damages incurred by the plaintiff.” (Ibid.)
Uncertainty
Plaintiff’s complaint may
be imprecise but is not fatally 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 complaint
sufficiently apprises defendant of the claim against it: its employee forced
plaintiff to leave an LA Fitness location because of his race. That the complaint includes irrelevant matter,
such as a page that begins, “And now something completely [different]!”, does
not negate that the first two pages sufficiently apprise defendant of the basis
for plaintiff’s action against it.
Defendant also argues the
complaint is uncertain because it does not follow the California Rules of
Court’s rules on formatting papers.
Defendant relies on Grappo v. McMills (2017) 11 Cal.App.5th 996,
1014 (Grappo), which stated, “[T]he
complaint does not comply with the California Rules of Court. For example, California Rules of Court, rule
2.112 provides that each cause of action should be headed so as to identify
briefly the nature of the claim asserted; and if there is more than one, it
should identify the defendant or defendants against whom the cause of action is
being asserted. As the leading practical
treatise advises, failure to comply with rule 2.112 presumably renders a
complaint subject to a motion to strike (Code of Civ. Proc., § 436), or a
special demurrer for uncertainty.”
Here, plaintiff’s failure
to comply with rule 2.112 does not make the complaint uncertain. In Grappo, the complaint “purport[ed] to allege 10 causes of
action” (11 Cal.App.5th at p. 999) and “name[d] five defendants, two entities
and three individuals, not one of which or whom is described or identified.” (Id. at p. 1000.) The plaintiff did “not even identify himself,
or describe any claimed connection or relationship with any of the defendants.” (Ibid.)
The complaint in Grappo was not
uncertain solely because the plaintiff did not follow the Rules of Court. The failure to label the causes of action and
identify the defendants to each cause of action was one of several deficiencies. Here, despite the failure to label any cause
of action, the claim against each defendant is clear enough. Plaintiff was a patron at an LA Fitness gym. He alleges he was expelled from the gym because
of his race.
Moreover, Grappo was not an appeal
from an order regarding a demurrer. It
was an appeal from an order vacating a default judgment. In it, the Court of Appeal stated, “[W]e
publish this opinion, to remind trial courts that however burdened they be,
they must vigilantly attend to their duty in connection with the default
process, ‘ “to act as gatekeeper, ensuring that only the appropriate claims get
through.” ’ ” (11 Cal.App.5th at p. 1000.)
In contrast, on demurrer the complaint “must
be liberally construed, with a view to substantial justice between the parties.” (CCP § 452.)
The “court draws inferences
favorable to the plaintiff, not the defendant.”
(Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th
1228, 1238.) After drawing such
inferences, the complaint is not uncertain.
Motion to
Strike
Defendant moves to strike plaintiff Dewey Demetro,
Jr.’s entire complaint because he did not sign it. A court may “[s]trike out all or any part of
any pleading not drawn or filed in conformity with the laws of this state.” (CCP § 436(b).) Under this provision, courts may strike a
pleading that is not signed. (Vaccaro
v. Kaiman (1998) 63 Cal.App.4th 761, 768.)
“Every pleading shall be subscribed by the party or his or her
attorney.” (CCP § 446(a).) “An unsigned paper shall be stricken unless omission
of the signature is corrected promptly after being called to the attention of
the attorney or party.” (CCP §
128.7(a).) “[A]n unsigned complaint is
an irregularity, rather than a ‘nullity,’ that may be cured by amendment.” (Board of Trustees v. Superior Court
(2007) 149 Cal.App.4th 1154, 1164.)
Plaintiff
Dewey Demetro, Jr. did not sign or subscribe the complaint as required. His name only appears on the complaint’s
first page as part of his contact information showing he represents himself
(Cal. Rules of Court, rule 2.111(1)) and in the portion stating “the title of
the case” to identify himself as the plaintiff (rule 2.111(4)). The complaint does not bear plaintiff’s
signature anywhere.
Disposition
Defendant
Fitness
& Sports Club, LLC’s demurrer is overruled.
Defendant Fitness &
Sports Club, LLC’s motion to strike is granted with 20 days’ leave to amend. The court hereby strikes plaintiff Dewey Demetro, Jr.’s entire complaint. Plaintiff must file a first amended complaint
bearing his signature within 20 days of receiving notice of this order.