Superior Court of California

County of Los Angeles

Department 26

elva villa,

Plaintiff,

WENDY’S RESTAURANT, et al.

Defendants.

Case No.: 22STCV24207

Hearing Date: March 6, 2023

[TENTATIVE] order RE:

Defendant’s motion to strike portions of the complaint

Procedural Background

On September 6, 2022, Plaintiff Elva Villa (“Plaintiff”) filed the instant Civil Rights violation action against Defendant Wendy’s Restaurant (“Defendant”). The complaint asserts five causes of action for (1) Violation of the Unruh Civil Rights Act (Civil Code § 51, et. seq.), (2) Violation of the Ralph Act (Civil Code § 51.7), (3) Assault, (4) Battery, and (5) Intentional Infliction of Emotional Distress.

On November 4, 2022, Defendant filed the instant motion to strike portions of the complaint. On February 17, 2023, Plaintiff filed an opposition. On February 27, 2023, Defendant filed a reply.

Allegations of the Operative Complaint

The complaint alleges that:

On October 11, 2021, Plaintiff drove to one of Defendant’s restaurants and ordered a breakfast sandwich and drink through Defendant’s Drive-Thu. (Complaint ¶ 5.) “Plaintiff provided her debit card to the Cashier at the Drive-Thru window. As the Cashier was handing Plaintiff s drink to her, Plaintiff noticed the cup was dripping/leaking so she asked the Cashier if she could wipe down the outside of the cup. The Cashier unexpectedly screamed at Plaintiff, ‘Fuck Mexican!’ and then threw Plaintiff’s drink at Plaintiff. Luckily, the drink avoided hitting Plaintiff, but hit and skidded across the hood of Plaintiff s car, before landing on the ground.” (Id. ¶ 5.)

“Within several minutes, another employee whom Plaintiff believes was a Supervisor approached Plaintiff. Plaintiff showed the Supervisor the video she recorded on her phone, showing the spilled liquid from the drink on Plaintiff s car and the drink on the ground. The Supervisor responded, ‘Oh my god!’ Plaintiff is informed and believes, and herein alleges that the Supervisor called the General Manager, Jose DOE. Jose DOE apologized to Plaintiff and stated, ‘I think she [the Cashier] was having an anxiety attack.’ Plaintiff responded that the Cashier should not be treating customers in that manner.” (Id. ¶ 6.) Defendant still charged Plaintiff for her breakfast sandwich. (Id. ¶ 7.)

Plaintiff called Defendant’s complaint hotline and explained what happened but to Plaintiff’s knowledge Defendant never investigated or addressed the incident. (Id. ¶ 8.)

Legal Standard

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). (See CCP §§ 435-437.) A party may file a motion to strike in whole or in part within the time allowed to respond to a pleading, however, if a party serves and files a motion to strike without demurring to the complaint, the time to answer is extended. (CCP §§ 435(b)(1), 435(c).)

A motion to strike lies only where the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (CCP § 436.) The grounds for moving to strike must appear on the face of the pleadings or by way of judicial notice. (CCP § 437.)

Meet and Confer Requirement

Code of Civil Procedure section 435.5, subdivision (a) requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer¿in person or by telephone¿with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion to strike.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension. (Code Civ. Proc., § 435.5(a)(2).) The moving party must also file and serve a declaration detailing the meet and confer efforts. (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a motion to strike may be filed to the amended pleading. (Id.¿at (a).)

Here, Defendant has sufficiently met and conferred. (Shirinian Decl. ¶¶ 5-6.)

Discussion

Defendant seeks to strike the request for punitive damages under the first cause of action and attorneys fees under the third, fourth, and fifth causes of action.

Punitive Damages as to the First Cause of Action

Defendant asserts that the first cause for Violation of the Unruh Act, Civil Code section 51 et seq., seeks to improperly recover double punitive damages.

A “plaintiff cannot recover both punitive damages and statutory penalties, as this would constitute a prohibited double penalty for the same act.” (De Anza Santa Cruz Mobile Estates Homeowners Assn. v. De Anza Santa Cruz Mobile Estates (2001) 94 Cal.App.4th 890, 912.) Moreover, “[a] plaintiff who relies solely on a cause of action for a statutory violation may be deemed to have waived punitive damages.” (Id. at p.913.)

“The Unruh Act, codified at [Civil Code] section 51, was ‘enacted to prohibit discriminatory conduct by individual proprietors and private entities offering goods and services to the general public.’ [Citations.]” (Thurston v. Omni Hotels Management Corporation (2021) 69 Cal.App.5th 299, 305.) “California's Unruh Act creates a cause of action for any person who is denied the right to ‘full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever’ based on that person's ‘sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.’ (Civ. Code, §§ 51, subd. (b), 52.)” (Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 660.)

Pursuant to Civil Code section 52, “[w]hoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to [Unruh Act], is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorney's fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in [the Unruh Act].” (Civ. Code, § 52(a), [italics added].) As noted by the Supreme Court, “the damages provision [in Civil Code section 52(a)] allowing for an exemplary award of up to treble the actual damages suffered with a stated minimum amount reveals a desire to punish intentional and morally offensive conduct.” (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1172 superseded by statute on other grounds.) “Section 52 was again amended two years later to provide for a punitive award of ‘up to a maximum of three times the amount of actual damages but in no case less than two hundred fifty dollars ($250)’ as well as attorney fees.” (Id. at p.1153, Fn. 5 [italics added].)

Here, the first cause of action seeks damages for violations of the Unruh Act on the grounds that Defendant failed to provide Plaintiff full and equal accommodation based on race and association. (Complaint ¶ 9.) Plaintiff seeks treble damages under Civil Code section 52(a), civil penalty under Civil Code section 52(b)(2), and punitive damages. (Id. ¶¶ 17-19.) As noted by the Supreme Court, the treble damages under Civil Code section 52(a) are a penalty. Therefore, Plaintiff cannot obtain punitive damages based on the same statutory violation.

In opposition, Plaintiff contention that “Civil Code Section 52 does not indicate that punitive damages are unavailable. It states that whoever violates the Unruh Civil Rights Act/Section 51 is liable for damages, treble damages, exemplary damages, a civil penalty of $25,000.00, and attorney's fees. Accordingly, given that Section 52 already provides for both treble damages and a civil penalty of $25,000.00, Defendant's argument that treble damages is a penalty and, thus, cannot be granted to Plaintiff along with other damages that are punitive in nature is contrary to Section 52.” (Opp. at p.3:15-20.) This contention is incorrect.

Civil Code section 52 does not state that whoever violates the Unruh Civil Rights Act/Section 51 is liable for damages, treble damages, exemplary damages, a civil penalty of $25,000.00, and attorney's fees. Civil Code section 52 is split into two provisions for damages. For claims under the Unruh Act, a plaintiff may recover treble actual damages that are a minimum of $4,000.00 per violation and attorneys’ fees. (Civ. Code § 52(a).) Exemplary damages and the civil penalty of $25,000.00 are specifically limited to violations of the Ralph Act which prohibits violence or threats of violence based on protected characteristics. (Civ. Code § 52(b).) Plaintiff’s claim for violation of the Ralph Act is the second cause of action under which the prayer for punitive and the civil penalty of $25,000.00 would be proper. Moreover, while called a “civil penalty”, “the civil penalty mandated by section 52, subdivision (b)(2), appears designed to insure that the plaintiff will receive at least a minimum amount of compensation, even though there are little or no actual damages sustained[,]” and is thus not a punitive damage claim. (Los Angeles County Metropolitan Transportation Authority v. Superior Court (2004) 123 Cal.App.4th 261, 276.)

Finally, Plaintiff contends that punitive damages for the first cause of action are proper because “Unruh Act claims ‘are independent of any other actions, remedies, or that may be available to an aggrieved party pursuant to any other law.’” (emphasis added) Civ. Code, § 52, subd. (e).” (Opp. at p.3:21-23.) This code section does not permit double recovery of punitive damage. Rather, Civil Code section 52(e) merely provides Plaintiff is not prohibited for asserting other causes of action that may permit punitive damages – which notably Plaintiff has done so with second through fifth causes of action.

In sum, Plaintiff cannot obtain punitive damages based on violation of the Unruh Act but can and has asserted claims based on other statutes and common law claims as alleged throughout the complaint. Accordingly, Defendant’s motion to strike the prayer for punitive damages as to the first cause of action for punitive damages is GRANTED.

Attorneys’ Fees as to the Third through Fifth Causes of Action

Defendant seeks to strike the prayer for attorneys’ fees for the third through fifth causes of action.

Attorney’s fees shall only be recoverable as provided for by statute, contract or other law. (CCP §§1021, 1033.5(a)(10).)

The third through fifth causes of action identify Code of Civil Procedure section 1021.5 as the basis for attorneys fees. (Complaint ¶¶ 42, 53, 66.)

An award of attorney fees pursuant to Code of Civil Procedure section 1021.5 is appropriate if three requirements are met: “(a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (b) such fees should not in the interest of justice be paid out of the recovery, if any.” (CCP § 1021.5.) “[S]ection 1021.5 was not designed as a method for rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest.” (Bui v. Nguyen (2014) 230 Cal.App.4th 1357, 1367 [internal citations omitted].)

No facts are alleged as to any relief is sought as to the public; rather, only personal relief is alleged. Moreover, any public relief sought is merely coincidental to Plaintiff’s personal goals in the suit. In opposition, Plaintiff concedes as such. Accordingly, Defendant’s motion to strike the prayer for attorneys’ fees in the third through fifth causes of action is GRANTED.

Leave to Amend

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. (Goodman v. Kennedy, supra, 18 Cal.3d at p. 348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.)

Here, as noted above, there is no basis for punitive damages in addition to the statutory penalty for the Unruh Act violation. Thus, leave to amend would be futile. Similarly, as Plaintiff concedes the prayer for attorneys’ fees under Code of Civil Procedure section 1021.5 was improper, leave to amend would be futile. Moreover, leave to amend is unnecessary as Plaintiff is not precluded from punitive damages based on the allegations as to the claims from the second through fifth causes of action. Nor is Plaintiff precluded from recovering all of their attorneys’ fees based on the first and second causes of action which provide for attorneys fees. (Civ. Code § 52(a)-(b).) Accordingly, leave to amend is DENIED.

Conclusion and ORDER

Based on the foregoing, Defendant Wendy’s Restaurant’s motion to strike is GRANTED WITHOUT LEAVE TO AMEND.

Paragraphs 17, 42, 53, and 66 are stricken without leave to amend.

Defendant is to file an answer within twenty (20) days of notice of this order. The case management conference is continued to April 14, 2023 at 8:30 am.

Moving Party is to provide notice of this order and file proof of service of such.

DATED: March 6, 2023 ___________________________

Elaine Lu

Judge of the Superior Court