Judge: Elaine Lu, Case: 22STCV30230, Date: 2025-01-30 Tentative Ruling

Case Number: 22STCV30230    Hearing Date: January 30, 2025    Dept: 9

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 9

Procedural Background

This is a racial discrimination action.  Plaintiffs Delbert Webb, Melody Treadwell, and Cleveland Smith (collectively “Plaintiffs”) allege that Defendant Mrs. Gooch’s Natural Food Markets, Inc. (“Defendant”) operates a Whole Foods Market in Pasadena.  Plaintiffs further allege that Defendant engaged in unlawful racial discrimination by banning Supplemental Nutrition Assistance Program (“SNAP”) recipients from using their Electronic Benefits Transfer (“EBT”) cards to pay for their purchases at self-checkout machines at Defendant’s store.  

On September 15, 2022, Plaintiffs filed their class action complaint.  In the complaint, Plaintiffs asserted the following causes of action: (1) discrimination in violation of the Unruh Civil Rights Act (“Unruh Act”); (2) violation of the Unfair Competition Law (“UCL”); and (3) intentional infliction of emotional distress (“IIED”).

On February 3, 2023, Defendant filed a demurrer to Plaintiffs’ complaint.  On April 18, 2023, the Court – presided by the Honorable Yvette M. Palazuelos – sustained Defendant’s demurrer and granted Plaintiffs leave to amend.  (Order 4/18/23.)

On May 3, 2023, Plaintiffs filed their First Amended Complaint (“FAC”), which was again a class action complaint. In the FAC, Plaintiffs asserted the following causes of action: (1) discrimination in violation of the Unruh Act; (2) violation of the UCL; (3) violation of 42 U.S.C. section 1981; and (4) violation of California Civil Code section 51.5.

On June 6, 2023, Defendant filed a demurrer to the FAC.  On August 28, 2024, the Court sustained Defendant’s demurrer to the FAC with leave to amend.  (Order 8/28/24.) 

On September 30, 2024, Plaintiffs filed the operative Second Amended Complaint (“SAC”).  The SAC asserts two causes of action for: (1) discrimination in violation of the Unruh Act; and (2) violation of 42 U.S.C. section 1981.

On October 30, 2024, Defendant filed the instant demurrer to the SAC.  On November 13, 2024, Plaintiffs filed an opposition.  On January 16, 2025, Defendant filed a reply.

Allegations of the Operative Complaint

            The SAC alleges the following:

            Defendant operates a Whole Foods Market in Pasadena.  (SAC ¶ 1.)  Plaintiffs are African Americans domiciled in Los Angeles County.  (SAC ¶ 2.) 

            Plaintiffs frequently shop at Defendant’s Whole Foods Market in Pasadena.  (SAC ¶ 7.)  Plaintiff Delbert Webb prefers to shop at Whole Foods due to its organic produce and other healthy products that he cannot find in other grocery stores.  (SAC ¶ 8.)  Plaintiff Delbert Webb also shops at the Whole Foods store located in Downtown Los Angeles.  (SAC ¶ 8.)

            “Plaintiffs have been customers of the [Whole Foods Market in Pasadena] for years. Since they started shopping at the store, and within the relevant [sic] statute of limitation period, they suffered severe discrimination. Racial profiling at the Whole Foods Pasadena location is commonplace which is characterized by Plaintiffs being followed by security personnel for no reason and being asked inappropriate questions by Whole Foods store’s employees.”  (SAC ¶ 9.)  “[O]n several occasions within the relevant statute of limitation period, Mr. Webb went to the store with his loved ones, Plaintiffs Cleveland Smith and Melody Treadwell. They were all subjected to the same racial profiling.”  (SAC ¶ 10.)

            “Mr. Webb has had Whole Foods check-out clerks ask him in front of other customers ‘if [he] qualifies to buy certain items.’ The most humiliating incident occurred with Mr. Webb and his brother [Plaintiff] Cleveland Smith, when they arrived at the store to do some shopping and were immediately followed by the Platinum Security Officer for no reason.”  (SAC ¶ 11.)  “[O]n one occasion, during the checkout process the clerk used the ‘N’ word under his breath while bagging Plaintiffs’ groceries. After that incident, Plaintiffs did not come back to the store for a while.”  (SAC ¶ 12.) 

            “Plaintiffs are Black. Plaintiffs suffered discriminatory treatment and racial profiling on multiple occasions during the relevant statute of limitations period. Plaintiffs. have been emotionally harmed because of Defendants’ actions. On at least one occasion, Plaintiffs exited the store without purchasing anythong [sic] because of the discriminatory treatment they received.”  (SAC ¶ 28.)

Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts “give the complaint a reasonable interpretation, and read it in context.”  (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)  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 pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at 747.) 

Meet and Confer Requirement

Code of Civil Procedure § 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer¿in person or by telephone¿with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” 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.  (CCP § 430.41(a)(2).)  The demurring 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 demurrer may be filed to the amended pleading.  (Id.¿at (a).) 

Defendant has satisfied the meet and confer requirement.  (Vernazza Decl. ¶ 7, Exh. 6.)

Discussion

First Cause of Action – Discrimination in Violation of the Unruh Act

            Defendant contends that the first cause of action – Discrimination in Violation of the Unruh Act – fails because Plaintiffs (1) fail to allege that Defendant made a distinction between Plaintiffs and other shoppers, and (2) fail to allege that Defendant deprived Plaintiffs of full and equal accommodations based on Plaintiffs’ race. 

The Unruh Act protects Californians from arbitrary and intentional discrimination by California business establishments.  (Civ. Code, §§ 51, 52.)  “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.)  “The Act is to be given a liberal construction with a view to effectuating its purposes.”  (Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 28.)  Thus, the Unruh Act prohibits intentional discrimination “made by a ‘business establishment’ in the course of furnishing goods, services or facilities to its clients, patrons or customers.”  (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 500.)

“[T]he Unruh Civil Rights Act ‘can be violated in a number of ways by words alone.’”  (Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 150.)  “It can also be violated by a business establishment's unequal treatment of its patrons on impermissible grounds.”  (Id. at pp.150-151.) 

            Here, Plaintiffs allege that they are regular customers of Defendant’s Whole Foods location in Pasadena.  (SAC ¶ 9.)  During Plaintiffs’ time shopping at Defendant’s Whole Foods location in Pasadena, Plaintiffs were targeted based on their race.  For example, store employees asked Plaintiffs inappropriate questions, and security personnel followed Plaintiffs for no reason.  (SAC ¶ 9.)  Plaintiff Delbert Webb was asked in front of other customers “if [he] qualifies to buy certain items” based on being black.  (SAC ¶ 11.)  During another incident, Plaintiffs Delbert Webb and Cleveland Smith were followed by the security officer for Defendant’s Whole Foods location in Pasadena for no reason.  (SAC ¶ 11.)  Finally, a checkout clerk called Plaintiffs a racist epithet while bagging Plaintiffs’ groceries resulting in Plaintiffs not going to Defendant’s Whole Foods location in Pasadena for a while.  (SAC ¶ 12.) 

Plaintiffs’ allegations clearly set forth that Defendant’s employees racially profiled Plaintiffs.  For example, security followed Plaintiffs throughout the store for no legitimate reason, and store employees questioned Plaintiffs whether they were qualified to buy certain items and directly used racial slurs targeted at Plaintiffs.  Reading these allegations in context as a whole, a reasonable inference can be drawn that Plaintiffs were treated differently than other non-black customers.  In reviewing a complaint, “[w]e assume the truth of the properly pleaded factual allegations, [and] facts that reasonably can be inferred from those expressly pleaded.”  (Liapes v. Facebook, Inc. (2023) 95 Cal.App.5th 910, 919 [bold and italics added].)  It can be easily and readily inferred based on the express allegations – such as the use of racial epithets targeted at Plaintiffs being black – that Plaintiffs were treated differently than non-black customers. 
            Nor is it fatal that Plaintiffs do not allege that they were expressly denied the right to purchase goods from Defendant’s Whole Foods location in Pasadena.  “The Unruh Civil Rights Act does not require that a victim of business establishment's discriminatory, unequal treatment be denied services or demand equal treatment to state a claim under the act.”  (Smith, supra, 64 Cal.App.5th at p.153.)  Rather, “the Unruh Civil Rights Act mandates ‘equal treatment of patrons in all aspects of the business.’”  (Ibid., [emphasis in original].) 

In Hutson v. Owl Drug Co. (1926) 79 Cal.App. 390, an African-American plaintiff was provided service and permitted to order at the soda fountain of the defendant’s establishment.  (Id. at p.392.)  However, the defendant’s employee placed plaintiff’s order “amongst dirty dishes on the counter;” another called the plaintiff same racial epithet alleged in the instant action before throwing a cup of coffee at her injuring the plaintiff’s jaw.  (Ibid.)  “The Hutson court held that the defendant violated the Unruh Civil Rights Act because the plaintiff ‘was not accorded the same accommodations, advantages, facilities and privileges’ on account of her race, even though she was not denied any services.”  (Smith, supra, 64 Cal.App.5th at p.153.)  As explained by the Supreme Court, “[i]t would be absurd to conclude that such civil rights act violations occurred only when the African–American patrons expressly demanded that their treatment be equivalent to that accorded the White patrons in those situations. Actionable discrimination obviously occurred in these early cases—and such conduct would constitute discrimination under the current [Unruh] Act.”  (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 169–170 [citing to Hutson].) 

Defendant’s claim that Plaintiffs fail to allege intent to discriminate is not supported by the SAC.  Plaintiffs’ allegations clearly set forth that Defendant’s security employees followed Plaintiffs throughout the store, and Defendant’s employees questioned if Plaintiffs were qualified to buy certain items and used racial epithets targeted at Plaintiffs’ race.  (SAC ¶¶ 9-12.)  These are allegations of intentional acts.  At the very least, a reasonable inference from these allegations and the repeated nature of Defendant’s actions is that they were intentional.  (Liapes, supra, 95 Cal.App.5th at p.919.)  The fact that these allegations are “on information and belief” due not belie this inference of intent.  A “[p]laintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true.”  (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  Plaintiffs’ factual allegations – i.e., that Defendant’s security and other employees followed Plaintiffs throughout the store without a legitimate reason, asked whether Plaintiffs were qualified to buy certain items, and used a racial epithet targeted at Plaintiffs’ race – clearly provide sufficient factual basis to support the claim that Defendant’s conduct was intentional and based on Plaintiffs’ race.

Accordingly, Defendant’s demurrer to the first cause of action for violation of the Unruh Act is OVERRULED.

Second Cause of Action – Violation of  42 USC Section 1981

            Defendant contends that the second cause of action for violation of 42 USC Section 1981 fails because Plaintiff was not denied the right to make purchases at Defendant’s Whole Foods location in Pasadena.

Section 1981(a) of the Civil Rights Act provides: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . .”  (42 U.S.C. § 1981(a).)  Section 1981(b) clarifies that “‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” (Id. at (b).)  To state a section 1981 discrimination claim, Plaintiffs must allege that “(1) [they] [are] a member of a protected class, (2) [they] attempted to contract for certain services, and (3) [they] w[ere] denied the right to contract for those services.”  (Lindsey v. SLT Los Angeles, LLC (9th Cir. 2006) 447 F.3d 1138, 1145.)

Here, Plaintiffs allege that “Plaintiffs are Black. Plaintiffs suffered discriminatory treatment and racial profiling on multiple occasions during the relevant statute of limitations period. Plaintiffs. have been emotionally harmed because of Defendants’ actions. On at least one occasion, Plaintiffs exited the store without purchasing anythong [sic] because of the discriminatory treatment they received.”  (SAC ¶ 28.)  Thus, Plaintiffs allege that due to Defendant’s discriminatory treatment, Plaintiffs left the store without purchasing anything – i.e., Defendant’s discriminatory treatment interfered with Plaintiffs right to contract and purchase goods from Defendant.  This is sufficient to withstand a demurrer.  (See e.g., Harrison v. Whole Foods Market (9th Cir. 2021) 854 Fed.Appx. 124, [“Harrison alleged that she was denied the opportunity to contract because she is African American, in contrast to similarly situated white customers. These allegations are sufficient to state a claim under 42 U.S.C. § 1981 for intentional discrimination.”].) 

Accordingly, Defendant’s demurrer to the second cause of action for violation of 42 USC section 1981 is OVERRULED.

CONCLUSION AND ORDER

Defendant Mrs. Gooch’s Natural Food Markets, Inc.’s demurrer to the Second Amended Complaint is OVERRULED.

Defendant is to file and serve its answer no later than March 3, 2025.

A Status Conference re filing of Defendants’ answers and a Trial Setting Conference are set for March 18, 2025 at 8:30 am in Department 9.  No later than March 3, 2025, the parties are to file a joint statement proposing a discovery plan, their willingness to mediate, and proposed trial dates.

On October 4, 2023, the Court continued and extended the deadline for Plaintiff to file and serve the Class Certification Motion to January 8, 2025.  A review of the docket reveals that Plaintiffs have not filed any Class Certification Motion.  Nor has Plaintiff ever requested a further extension of the deadline to do so.

Moreover, with one sole exception, it appears that the operative complaint -- the Second Amended Complaint filed on September 30, 2024 -- does not include any class allegation or reference to class claims.  All the class allegations of the prior versions of the complaint have been deleted from the operative Second Amended Complaint with the sole exception of one phrase in the prayer. 

Accordingly, the Court finds that Plaintiffs have voluntarily elected not to pursue any class claims and that Plaintiffs have elected to pursue their claims on an individual basis.  Accordingly, the action will no longer proceed as a class action.  Instead, the action will proceed on an individual basis as to the named Plaintiffs only.

The prayer of the Second Amended Complaint still includes a request "[f]or an order certifying this action as a class action."  Although it is not completely clear, it appears that this isolated request for an order certifying this action as a class action is an aberrant vestige that Plaintiffs inadvertently neglected to delete in drafting the Second Amended Complaint.  Accordingly, the Court hereby sets an OSC re striking of the phrase "[f]or an order certifying this action as a class action."  The OSC is set for at March 18, 2025 at 10 am.  Any party who opposes the Court sua sponte striking the phrase "[f]or an order certifying this action as a class action" from the prayer of the Second Amended Complaint is ordered to: (a) file a brief no later than March 11, 2025 explaining why such phrase should not be stricken notwithstanding the absence of any class allegations remaining in the Second Amended Complaint; and (b) appear on March 18, 2025 at 10 am and show cause why such phrase should not be stricken.

In addition, the Court will require Plaintiffs' Counsel to comply with California Rules of Court Rule 3.770 so that the Court may determine whether notice to putative class members is required.  Specifically, Plaintiffs' Counsel must file a declaration by no later than March 11, 2025 addressing the Rule 3.770 factors, including whether Plaintiffs have received any consideration from Defendants in exchange for the dismissal of class claims and allegations, whether any putative class members are likely to have received notice of the pendency of the class claims in the instant action, whether dismissal of the class claims is with or without prejudice, and whether putative class members will be prejudiced by the dismissal of class claims and class allegations.

The Court hereby sets a Status Conference on March 18, 2025 at 10 am re whether notice of dismissal of class claims to putative class members is necessary.

Defendant is ordered to download the instant signed order from the Court's website and to file proof of service of the instant order on all other parties within five (5) days.

DATED:  January 30, 2025                                                    ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court