Judge: Douglas W. Stern, Case: 23STCV22732, Date: 2024-01-08 Tentative Ruling

Case Number: 23STCV22732    Hearing Date: January 8, 2024    Dept: 68

Zhoie Perez vs. Keenan Trayvon Corothers, et al.; 23STCV22732

MOVING PARTIES: Defendants Keenan Trayvon Corothers and Wilshire Boulevard Temple

Demurrer to Complaint

I. BACKGROUND

            Plaintiff Zhoie Perez (Plaintiff) filed this complaint after she alleges that Defendant Keenan Trayvon Corothers pushed her back from the property line of Defendant Wilshire Boulevard Temple, located at 3663 Wilshire Boulevard. The alleged incident happened on April 30, 2022.

            Plaintiff alleges that she is a credentialed member of the press and a transgender woman of color. (Comp., ¶ 10.) Plaintiff alleges that she was filming outside the Wilshire Boulevard Temple as a part of a journalistic piece that she was doing on the lack of congregants adhering to health mandates in relation to the global pandemic. (Comp., ¶ 11.) Plaintiff was filming a vehicle entering the property and standing at the property line when Defendant Keenan, who is a security guard for the Temple, pushed Plaintiff back twice, and after each time Plaintiff pushed Keenan’s hand off of her. (Comp., ¶ 12.) Some unknown time later, the police arrived and Plaintiff was arrested, though she was not prosecuted because the prosecution was able to view the incident on Plaintiff’s camera, which she used to record the whole incident. (Comp., ¶¶ 13-18.)

            Plaintiff is now alleging six causes of action against Defendants Keenan Trayvon Corothers and Wilshire Boulevard Temple. The causes of action include assault and battery, negligence, three civil rights causes of action, and false imprisonment. Plaintiff filed her complaint on September 20, 2023. Though it is unclear how this factors into the incident based on the facts alleged in Plaintiff’s complaint, Plaintiff is alleging that Defendants pushed her back because she is a transgender woman of color.

            Defendants filed their demurrer on October 16, 2023. No opposition has been filed.

II. ANALYSIS

A. The Demurrer

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

1.    First Cause of Action for Assault and Battery

Defendants demur to the First Cause of Action on the basis that it fails to state facts sufficient to constitute a cause of action against Defendants and is uncertain and ambiguous.

The elements for a cause of action for assault and battery are (1) that the defendant touched the plaintiff with the intent to harm or offend; (2) that the plaintiff did not consent to the touching; (3) that the plaintiff was harmed by the defendant’s conduct; and (4) that a reasonable person in the plaintiff’s situation would have been offended by the touching. (CACI No. 1300.)

Defendants argue that Plaintiff’s complaint does not allege sufficient facts to indicate that Defendants intended harm to Plaintiff. Plaintiff own complaint states that “Keenan pushes the Plaintiff’s chest camera in an effort to push the Plaintiff backwards [off the property line].” (Comp., ¶ 12.) Plaintiff’s complaint does not allege that Defendants intended harm, only that they wished to push Plaintiff back from the property line. Plaintiff also does not allege that she was harmed by this conduct; rather, she alleges that her shoulder was hurt by the police handcuffs. (Comp., ¶ 23.) Plaintiff also never states what her specific injuries were, only that she suffered some non-specific injuries. (Comp., ¶ 29.)

The Court requires that there be allegations of the necessary elements.  It is particularly important given the necessity that there be claimed damage that Plaintiff include factual allegations regarding the claimed harm suffered.

Based on the foregoing, Defendants’ demur to Plaintiff’s First Cause of Action is sustained with leave to amend.

2.    Second Cause of Action for Negligence

Defendants demur to the Second Cause of Action on the basis that it fails to state facts sufficient to constitute a cause of action against Defendants and is uncertain and ambiguous.

“The elements of a cause of action for negligence are (1) a legal duty to use reasonable care, (2) breach of that duty, and (3) proximate cause between the breach and (4) the plaintiff's injury.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339.)

Plaintiff’s complaint does not state what legal duty Defendants owed to Plaintiff or how that legal duty was breached. Further, as discussed above, Plaintiff has not detailed how her alleged injuries were due to any breach of Defendants’ duty to Plaintiff.

Defendant’s demurrer to Plaintiff’s Second Cause of Action is sustained with leave to amend.

3.    Third Cause of Action for Violations of the Ralph Civil Rights Act, Civ. Code § 51.7

Defendants demur to the Third Cause of Action on the basis that it fails to state facts sufficient to constitute a cause of action against Defendants. Defendants also demur on the basis that this cause of action is time-barred by the statute of limitations.

Defendants cite an unpublished case, Green v. Betz, No. C 13 1671 MMC, in support of their contention that actions under the Ralph Civil Rights Act have a one year statute of limitations. The Court shall not consider non-published authority.  Rule of Court 8.1115 essentially provides that only published California Supreme Court or Cout of Appeal decisions may be cited.  Other cases “must not be cited or relied on by the court or a party in any other action.”

CCP § 338(n) states that “[a]n action commencing under Section 51.7 of the Civil Code (the Ralph Civil Rights Act)” have a three year statute of limitations period. Therefore, the statute of limitations has not run on this cause of action because the incident happened on April 30, 2022, and Plaintiff filed her complaint on September 20, 2023.

The elements of a cause of action under the Ralph Civil Rights Act are (1) that the defendant committed a violent act against the plaintiff; (2) that a substantial motivating reason for the defendant’s conduct their perception of plaintiff’s protected characteristic; (3) that the plaintiff was harmed; and (4) that defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (CACI No. 3063.)

Plaintiff’s alleges that Defendant Keenan pushed her back for being too close to the property line, or because she was filming a particular vehicle entering the property. Therefore, it is unclear from Plaintiff’s complaint whether Defendants’ perception of her protected characteristics was a substantial motivating reason for Defendants’ conduct. It is also unclear what the specific injury was that Plaintiff suffered.

Plaintiff should make clear allegations that show that she has a valid cause of action.  The present allegations suggest otherwise.

Defendants’ demurrer to Plaintiff’s Third Cause of Action is sustained with leave to amend.

4.    Fourth Cause of Action for Violations of the Bane Civil Rights Act, Civ. Code § 52.1

Defendants demur to the Fourth Cause of Action on the basis that it fails to state facts sufficient to constitute a cause of action against Defendants.

The elements for a claim under the Bane Civil Rights Act are that by threats, intimidation, or coercion, the defendant caused the plaintiff to reasonably believe that if she exercised her right, defendant would commit violence against her and that defendant could carry out the threats; or the defendant acted violently to prevent the plaintiff from exercising her right, the defendants intended to deprive plaintiff of her enjoyment of that right, and the plaintiff was harmed. (CACI No. 3066.)

Plaintiff has not made sufficient allegations to support this claim.  Quite the contrary.  Accepting the truth of the present allegations suggests that there is no such valid claim.  Nor has she alleged how she was injured.

Defendants’ demurrer to Plaintiff’s Fourth Cause of Action is sustained with leave to amend.

5.    Fifth Cause of Action for Violations of the Unruh Act, Civ. Code § 51, 52

Defendants demur to the Fifth Cause of Action on the basis that it fails to state facts sufficient to constitute a cause of action against Defendants.

The elements for a claim under the Unruh Civil Rights act are that the defendant denied the plaintiff full and equal accommodations, facilities, privileges, services, etc., because of a protected characteristic. (CACI No. 3060.)

Plaintiff’s complaint is unclear as to whether Defendants denied her access to any accommodations or facilities. She claims that they denied her access to the public sidewalk next to the Wilshire Boulevard Temple (Comp., ¶ 67), but another part of her complaint indicates that she was pushed back from the property line after she filmed a vehicle entering the premises. Nor is there any indication in her complaint that she was pushed back due to any protected characteristics. Plaintiff has not stated sufficient facts to maintain this cause of action.

Defendants’ demurrer to Plaintiff’s Fifth Cause of Action is sustained with leave to amend.

6.    Sixth Cause of Action for False Imprisonment

Defendants demur to the Sixth Cause of Action on the basis that it fails to state facts sufficient to constitute a cause of action against Defendants. Defendants also demur on the basis that this cause of action is time-barred by the statute of limitations.

The statute of limitations for an action for false imprisonment is one year. (CCP § 340(c).) Plaintiff alleges that the events that form the basis for her complaint took place on April 30, 2022. Plaintiff did not file this suit until September 20, 2023, well over a year after the events took place. Therefore, Plaintiff’s cause of action for false imprisonment is barred by the statute of limitations.

Defendants’ demurrer to Plaintiff’s Sixth Cause of Action is sustained without leave to amend due to the cause of action being barred by the statute of limitations.

III. ORDER

1.    Defendants’ demurrer to Plaintiff’s First, Second, Third, Fourth, and Fifth Causes of Action is sustained with leave to amend.

2.    Defendants’ demurrer to Plaintiff’s Sixth Cause of Action is sustained without leave to amend.

3.    Plaintiff is given 20 days to amend her complaint.