Judge: James L. Crandall, Case: 20-1173258, Date: 2022-10-06 Tentative Ruling

Motion for Summary Judgment and/or Adjudication

Defendant Mother’s Market and Kitchen, Inc.’s motion for summary judgment, or in the alternative summary adjudication, is GRANTED as to Plaintiff Gregg Homer’s first, third, and fourth causes of action as well as  Plaintiff’s claim for punitive damages, but, DENIED as to Plaintiff’s second cause of action for violation of the Unruh Act.

Objections

Defendant filed “Objections to Plaintiff’s Additional Material Facts and Supporting Evidence” under ROA 113. However, the objections do not comply with California Rules of Court, Rule 3.1354(b), which states that written objections to evidence at summary judgment must specifically identify the evidence objected to. Rule 3.1354 provides an example of how objections should be formatted. Here, Defendant objects to Plaintiff’s additional material facts, which include citations to evidence. Many of the additional facts which Defendant objects to cite multiple items of evidence, but Defendant fails to clearly specify what evidence is being objected to and on what grounds. Therefore, the Court declines to rule on Defendant’s objections.

Plaintiff attempts to raise objections within Plaintiff’s separate statement, filed under ROA 105. Plaintiff’s objections also do not comply with Rule 3.1354, which states written objections to evidence must be served and filed separately from the other opposition papers. Moreover, it is unclear what evidence Plaintiff is objecting to because, like Defendant, Plaintiff objects to Defendant’s facts rather than identifying specific items of evidence. Therefore, the Court also declines to rule on Plaintiff’s objections.

Legal Standard

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.11 That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. (See Evid.Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

Code of Civil Procedure section 437c(p)(2) states,

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”

Here, Defendant moves for summary judgment, or in the alternative, summary adjudication, as to each of Plaintiff’s four causes of action as well as Plaintiff’s claim for punitive damages.

1st COA – Assault

Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890, holds:

“The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in causing the plaintiff's harm. (So v. Shin (2013) 212 Cal.App.4th 652, 668–669, 151 Cal.Rptr.3d 257.)”

Here, Plaintiff’s complaint arises from a dispute between customers at Defendant’s grocery store which led to a confrontation between Plaintiff and Defendant’s manager outside the store. The first cause of action against Defendant is based on the conduct of Defendant’s manager Mr. Amies (erroneously spelled “Aimes” in the complaint), as alleged at paragraphs 28-29 of the complaint:

“28. Aimes threatened to touch Plaintiff in a harmful manner, including when Aimes charged at Plaintiff, stopping about a foot from Plaintiff’s face, shouting, “Get out of here or I’ll call the police,” and when Aimes walked around behind a column (where the security camera could not follow him) and said to Plaintiff, “Why don’t you come back here and say that to me?”

29. It reasonably appeared to Plaintiff that Aimes was about to carry out the threat.”

Defendant contends the following regarding Plaintiff’s assault claim at page 12 of its motion:

“[T]he statements allegedly made by Amies do not rise to the level of assault. At plaintiff's deposition, plaintiff explained that by his allegation that Amies "threatened to touch him in a harmful manner" plaintiff referred to Amies' conduct in "running up to [him] and stopp[ing] a foot in front of [plaintiff's] face and the shouting. [UMF 5]. Plaintiff alleges that Amies shouted “you're a terrible customer, and you're banned from the store for life, now get out of here.” [UMF 11] At no time on December 24, 2018 did Amies say to plaintiff that he would physically harm plaintiff. [UMF 10].

Further, plaintiff’s second allegation of Assault consisted of Amies allegedly going behind a column and stating, “Why don't you come here and say that to me." [UMF 6] However, plaintiff admits that he cannot be sure it was Amies who said this, as he did not see Amies at the time these words were allegedly spoken. [UMF 6-7].”

Plaintiff generally does not dispute Defendant’s summary of his testimony regarding Mr. Amies’ actions and statements, although Plaintiff points out that he testified he believed it was Amies’ voice from behind the column and that Amies was nearby when he spoke from behind the column. (Plaintiff’s Response to UMF 6, 7.)

Plaintiff’s additional fact no. 40 further states, “Plaintiff testified that Amies threatened to touch Plaintiff in a harmful manner: when Amies charged at Plaintiff, stopping about a foot from Plaintiff’s face, shouting, “Get out of here or I’ll call the police”; and when Amies walked around behind a column (where the security camera could not follow him) and said to Plaintiff, “Why don’t you come back here and say that to me?””

Defendant cites Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1604, a decision of the Fourth District, Division 3 of the Court of Appeal, which states the following:

“The Meihaus brothers aggressively approached Plotnik and threatened to both beat and kill him and the family dog. But Plotnik did not testify that either brother displayed a weapon, took a swing at him, or otherwise attempted to touch him.

Penal Code section 240 defines the crime of assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” “In tort actions for assault ..., the courts usually assume that th [is] Penal Code definition[ ] and related criminal cases are applicable. [Citations.]” (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 381, p. 598.) The Supreme Court has held proof of a criminal assault “requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (People v. Williams (2001) 26 Cal.4th 779, 790, 111 Cal.Rptr.2d 114, 29 P.3d 197; see also People v. Chance (2008) 44 Cal.4th 1164, 1169, 81 Cal.Rptr.3d 723, 189 P.3d 971 [assault “ ‘established upon proof the defendant wilfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery’ ”].) Furthermore, Witkin notes the general rule that “while apprehension of that contact is the basis of assault [citation], [m]ere words, however threatening, will not amount to an assault. [Citations.]” (5 Witkin, Summary of Cal. Law, supra, Torts, § 383, pp. 599–600.)

The brothers' actions and words were aggressive and threatening, and while their behavior might support relief on some other ground, neither committed an act that could or was “inten[ded] ... to inflict immediate injury on” Plotnik. (Lowry v. Standard Oil Co. of California, supra, 63 Cal.App.2d at p. 6, 146 P.2d 57.) Therefore the portion of the judgment awarding David Plotnik damages against Greg Meihaus and John Meihaus III for assault must be reversed.”

Plaintiff doesn’t cite case authority contrary to Plotkin on this point. However, at page 12 of his opposition, Plaintiff attempts to distinguish Plotkin as follows: “Unlike Plotkin, however, Amies’ assault of Plaintiff was not limited to mere words. Amies charged at Plaintiff, stopping a foot in front of Plaintiff’s face and shouting “you’re a terrible customer, and you’re banned from the store for life, now get out of here.” (AMF-19-21.) Amies then went behind a column and said to Plaintiff, “Why don’t you come here and say that to my face.” (AMF-23.)”

Defendant has met its burden of showing that the first element of the assault cause of action, i.e. that defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner, cannot be established.

Plaintiff hasn’t met his burden of demonstrating a triable issue of material fact as to this cause of action. Plaintiff’s undisputed testimony regarding the actions and statements of Mr. Amies is insufficient to create a triable issue as to whether Amies acted with intent to cause harmful or offensive contact or threatened to touch Plaintiff in a harmful or offensive manner. The fact that Mr. Amies approached Plaintiff and stopped a foot away before telling Plaintiff to leave and that he was banned for life is not sufficient. This evidence shows that Mr. Amies’ intent was for Plaintiff to leave the premises rather than to cause harmful or offensive contact to Plaintiff. Plaintiff also relies on Mr. Amies’ subsequent statement from behind the column, “Why don’t you come back here and say that to me?” While this statement could indicate an intent to escalate the confrontation, it is still insufficient to show that Amies acted with intent to cause harmful or offensive contact, and the statement does not constitute a threat to touch Plaintiff in a harmful or offensive manner.

Finally, Plaintiff asks the Court to deny the motion based on Defendant’s alleged spoliation or failure to produce evidence including surveillance footage of the incident outside Defendant’s store. Code of Civil Procedure section 437c(h) states,

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.”

Here, Plaintiff has not shown Defendant’s surveillance footage, or other unavailable evidence, is essential to support his opposition. Plaintiff was present during the encounter and Defendant relies on Plaintiff’s own description of the incident for purposes of this motion. Therefore, for purposes of this motion, the Court assumes Plaintiff’s version of events to be true. There is no evidence the surveillance footage would demonstrate a triable issue as to the first element of Plaintiff’s cause of action for assault.

Therefore, the motion is granted as to the first cause of action.

2nd COA – Violation of Unruh Act

The Unruh Act, Civil Code section 51 et seq., provides, “(b) All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration 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).)

The elements of a claim for discrimination of the Unruh Act include the following:

1. That [name of defendant] [denied/aided or incited a denial of/discriminated or made a distinction that denied] full and equal [accommodations/advantages/facilities/privileges/services] to [name of plaintiff];

2. [That a substantial motivating reason for [name of defendant]'s conduct was [its perception of] [name of plaintiff]'s [sex/race/color/religion/ancestry/national origin/ medical condition/genetic information/marital status/sexual orientation/ citizenship/primary language/immigration status/[insert other actionable characteristic]];]

[That the [sex/race/color/religion/ancestry/national origin/medical condition/genetic information/marital status/sexual orientation/ citizenship/primary language/immigration status/[insert other actionable characteristic]] of a person whom [name of plaintiff] was associated with was a substantial motivating reason for [name of defendant]'s conduct;]

Here, Plaintiff’s cause of action for violation of the Unruh Act is based on the following allegations regarding Mr. Amies’ conduct at paragraphs 36-37 of the complaint:

“36. Aimes denied full and equal facilities and services to Plaintiff by, inter alia, shouting at Plaintiff, “No, you’re a terrible customer, and you’re banned from the store for life, now get out of here.”

37. A substantial motivating reasons for Aimes’s conduct were Plaintiff’s age, that Customers 1 and 2 were female, that Customer 1 was emotional, that Plaintiff was a male, and that Plaintiff’s hands were shaking due to his medical condition.”

Paragraph 25 of Plaintiff’s declaration states, “I walked past the column towards my car and saw Amies behind the column.

Amies pointed at my hands, laughed, and mockingly said, “Get out of here, you old loser. Your hands are even shaking.” At page 93 of his deposition, Plaintiff testified, “He called me an old loser.” (See Plaintiff’s Additional Fact No. 24.)

The parties have not cited legal authority discussing what type of evidence is sufficient to demonstrate that the plaintiff’s protected characteristic was a substantial motivating reason for denial of services under the Unruh Act. However, in the analogous context of an age discrimination claim under the FEHA, the Court of Appeal has held, “The general requirement is that the employee offer circumstantial evidence such that a  reasonable inference of age discrimination arises.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002.)

Here, Plaintiff’s testimony that Mr. Amies told him he was banned from the premises along with Amies’ statement that Plaintiff was an “old loser” is sufficient to demonstrate a triable issue of material fact as to whether Defendant denied Plaintiff full and equal access to its facilities because of Plaintiff’s age. Therefore, the motion is denied as to the second cause of action.

3rd COA – Violation of Ralph Act

The Ralph Civil Rights Act, Civil Code section 51.7, states in part:

“(b)(1) All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive.”

Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1291, states:

“Under the Ralph Act, a plaintiff must establish the defendant threatened or committed violent acts against the plaintiff or their property, and a motivating reason for doing so was a prohibited discriminatory motive, or that the defendant aided, incited, or conspired in the denial of a protected right. (See CACI No. 3063; Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 880-881, 57 Cal.Rptr.3d 454.)”

At paragraphs 42-44 of the complaint, Plaintiff alleges:

“42. Aimes intentionally threatened violence against Plaintiff, whether or not Aimes actually intended to carry out the threat.

43. A substantial motivating reason for Aimes’s conduct was his perception of Plaintiff’s sex, age, and/or disability.

44. A reasonable person in Plaintiff’s position would have believed that Aimes would carry out his threat.”

Like the first cause of action, this cause of action is based on the conduct of Mr. Amies during his confrontation with Plaintiff outside of Defendant’s store.

The parties have not cited any legal authority defining “violence” under the Ralph Act. However, the first definition of violence in the Merriam-Webster dictionary is, “the use of physical force so as to injure, abuse, damage, or destroy.”

Here, the facts discussed above under the first cause of action do not demonstrate a triable issue as to whether Mr. Amies threatened or committed violent acts against Plaintiff. There is no evidence that Mr. Amies used physical force or threatened to use physical force against Plaintiff. Therefore, the motion is granted as to the third cause of action.

4th COA – Negligence

The elements of negligence are (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff's damages or injuries. (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.)

Here, Plaintiff alleges the following bases for his negligence claim against Defendant at paragraphs 49-54 of the complaint:

“49. Plaintiff is informed and believes, and thereon alleges, that at all times herein mentioned, Aimes was the duly authorized and managing agent of Mother’s and, as such, was acting within the course, scope, and authority of his agency, employment, and/or venture with Mother’s.

50. Aimes’s acts and omissions were negligent.

51. Plaintiff was harmed by Aimes’s negligence.

52. Aimes’s negligence was a substantial factor in causing Plaintiff’s harm.

53. Mother’s was negligent in the selection, hiring, training, and/or supervision of Aimes.

54. Plaintiff was harmed by Mother’s negligence.”

Negligent Hiring/Retention/Supervision

Defendant argues there is no triable issue as to Plaintiff’s claim for negligent hiring, training, and retention of Mr. Amies.

The elements of such a claim are set out in CACI 426:

1. [That [name of employer defendant] hired [name of employee];]

2. That [name of employee] [[was/became] [unfit [or] incompetent] to perform the work for which [he/she/nonbinary pronoun] was hired/[specify other particular risk]];

3. That [name of employer defendant] knew or should have known that [name of employee] [[was/became] [unfit/ [or] incompetent]/[other particular risk]] and that this [unfitness [or] incompetence/ [other particular risk]] created a particular risk to others;

4. That [name of employee]’s [unfitness [or] incompetence/ [other particular risk]] harmed [name of plaintiff]; and

5. That [name of employer defendant]'s negligence in [hiring/ supervising/ [or] retaining] [name of employee] was a substantial factor in causing [name of plaintiff]’s harm.

C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 878, states:

“Additional duty limits are suggested by the Rowland considerations of the extent of moral blame and the policy balance between the prevention of future harm and the burdens created by imposing a duty of care. (See Cabral v. Ralphs Grocery Co., supra, 51 Cal.4th at pp. 781–782, 122 Cal.Rptr.3d 313, 248 P.3d 1170.) Unless the individual alleged to be negligent in a hiring or retention decision knew or should have known of the dangerous propensities of the employee who injured the plaintiff, there is little or no moral blame attached to the person's action or inaction. And unless the employee's propensities posed a substantial risk of personal injury to the plaintiff or others in the same circumstances, there is again little moral blame to assign, and the undesirable consequences of imposing potential liability—the possible chilling of recommendations and proposals for hiring and retention—will tend to outweigh the policy of preventing harm by imposing costs on negligent conduct. (See Randi W. v. Muroc Joint Unified School Dist., supra, 14 Cal.4th at p. 1081, 60 Cal.Rptr.2d 263, 929 P.2d 582.)”

In opposition, Plaintiff relies on the following evidence: (1) a reference check note in Amies’ employment file stating, “emotions, has opinions” (Exhibit K), (2) a 2019 performance review (Exhibit L), and (3) testimony of Defendant’s employee Ms. Solomua (Exhibit J).

Exhibit K is insufficient to demonstrate a triable issue as to the negligent hiring, retention, and supervision claim against Defendant. The document appears to be a 3/2/18 cover letter from Mr. Amies to Defendant’s Hiring Manager. The letter has several handwritten notes, one of which states, “smart, well versed, works hard, emotions, has opinions. . .” Plaintiff contends the note was “apparently written by Mother’s personnel based on a conversation with someone at Marcus’ previous employer, Jimbo’s natural food market in San Diego, California.” (Opposition, p. 9.)

However, Plaintiff has not presented evidence authenticating the note, demonstrating who wrote the note, or showing what its significance was in the hiring process. Even assuming the note shows that Defendant was aware Mr. Amies had “emotions and opinions,” this is insufficient to demonstrate that Mr. Amies was unfit or posed a particular risk of harm to Plaintiff.

The performance review, Exhibit L, is also insufficient to demonstrate a triable issue as to the negligent hiring, retention, and supervision claim. The performance review, dated 12/19/19, gave Mr. Amies an “outstanding” grade in the categories “Aligns with Company Values” and “Work Quality & Productivity” and a “satisfactory” grade in the categories “Customer Service & Initiative” and “Interpersonal Relationships & Communications.” Plaintiff points to a note in the latter category stating, “He can get frustrated at times, but does a nice job putting things into perspective and not overreacting.” Evidence that Mr. Amies “can get frustrated at times” is insufficient to demonstrate that Mr. Amies was unfit or posed a particular risk of harm to Plaintiff.

Finally, Plaintiff relies on the deposition testimony of Defendant’s cashier Ms. Solomua, which Plaintiff summarizes as follows:

“Amies worked almost exclusively in the store office upstairs; that disputes between customers and between employees and customers (including line-cutting allegations) occurred on an almost-daily basis; the unwritten store policy was to call Amies whenever these disputes occurred, and Amies would come downstairs and handle them; Solomua rarely saw Amies except when he came downstairs to handle a dispute; and Amies often shouted at customers and resorted to calling the police when he intervened. (AMF-41.)” (Opposition, p. 9.)

Plaintiff mischaracterizes Ms. Solomua’s deposition testimony as stating that Mr. Amies “often shouted at customers.” Rather, Ms. Solomua testified, “If a customer -- I have heard him raise his voice at a customer, but it was never with profanities or anything as such. It was more of -- like a ‘You need to leave,’ type of situation.” (Solomua Deposition, p. 33:13-19.) Ms. Solomua further testified that if a customer was asked to leave and refused, “the protocol was to call the police and stand by and then the police would get involved.” (Id. at 34:20-35:1.) Ms. Solomua’s deposition testimony is insufficient to demonstrate that Mr. Amies was unfit or posed a particular risk of harm to Plaintiff.

Plaintiff also argues that the motion should be denied or continued under Code of Civil Procedure section 437c(h), quoted above, because Defendant has not produced Mr. Amies’ 2018 performance review. Paragraph 46 of Plaintiff’s declaration states, “Mother’s has refused to produce Amies’ Annual 2018 Employee Performance Review and has refused to explain what happened to that document.” However, Plaintiff has failed to show that the 2018 performance review is likely to contain facts essential to justify the opposition. Plaintiff also has not shown that he has acted with reasonable diligence in attempting to obtain the 2018 performance review. (See Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 257 [“We agree with the majority of courts holding that lack of diligence may be a ground for denying a request for a continuance of a summary judgment motion hearing.”])

Therefore, the Court grants the motion for summary adjudication as to Plaintiff’s direct negligence claim for negligent hiring, supervision, and retention against Defendant.

Vicarious Liability

Plaintiff’s opposition states at pages 18-19, “Mother’s motions challenge only direct negligence ground (2), and Mother’s neither mentions nor disputes vicarious negligence ground (1). (Mother’s P&A, at 15-18.) Accordingly, vicarious negligence ground (1) is not before this Court, and Mother’s has failed to meet its burden of showing no triable issue of material fact with respect thereto.”

Plaintiff adequately alleges vicarious liability of Defendant for the negligent acts and omissions at paragraphs 49-52 of the complaint. However, Defendant addresses the vicarious liability theory in its motion as follows:

“[P]laintiff cannot establish his cause of action for negligence against Mother's Market either on a direct or vicarious liability theory. Plaintiff cannot establish that the store employee, Amies breached a duty to plaintiff when, after another customer expressed fear of plaintiff waiting for her outside the store, Amies told plaintiff to leave or he will call the police. Plaintiff's claim that Amies could have handled the situation differently does not establish negligence on the part of Amies, for which Mother's Market could be vicariously liable.” (Motion, p. 6.)

Although Defendant’s argument regarding vicarious liability is brief, the issue is adequately raised in the motion and the Court will address Defendant’s argument that it cannot be vicariously liable because Amies did not breach a duty to Plaintiff.

Plaintiff seeks damages for emotional distress and for physical injuries involving his recovery from an unrelated gum graft surgery. Plaintiff states at paragraph 28 of his declaration, “As a result of the extreme hypertension caused by Amies’ assault, the blood flow to my recent gum grafts was severely interrupted, causing the new gum tissue to detach and die over the following few days.” However, Plaintiff is not a medical expert qualified to opine on causation of such injuries, and Plaintiff hasn’t presented admissible evidence showing that Defendant caused any damages other than emotional distress. (See Evid. Code §§ 720, 801.)

Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984–985, states:

“Firestone first asks the court to expressly adopt the rule recently applied by the Supreme Court of Texas in Boyles v. Kerr (1993) 855 S.W.2d 593. There the court held that there is no duty to avoid negligently causing emotional distress to another, and that damages for emotional distress are recoverable only if the defendant has breached some other duty to the plaintiff. (Id., at p. 594.)

That is already the law in California. Indeed, the Texas court relied on recent decisions of this court in which we recognized that there is no independent tort of negligent infliction of emotional distress. [Citation] The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element. [Citations] That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship. [Citation]”

Therefore, Plaintiff must demonstrate a duty other than a general duty not to cause emotional distress. Generally, a possessor of land has a duty to use ordinary care to maintain the premises in a reasonably safe condition. (Beauchamp v. Los Gatos Go Course (1969) 273 Cal.App.2d 20, 27.) Similarly, a store owner owes patrons a duty to exercise reasonable care in keeping the premises reasonably safe. (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 476.) In an analogous context, the U.S. Supreme Court has declined to interpret employment law to expand to a “general civility code.” (See Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81.)

Here, the issue here is not the safety of Defendant’s premises or uncivil behavior between employees. It is whether Mr. Amies breached a duty to Plaintiff during the confrontation outside Defendant’s store.

Plaintiff’s opposition merely argues, incorrectly, that Defendant’s motion fails to address his vicarious liability theory. Plaintiff has failed to articulate a negligent breach of duty by Mr. Amies for which Defendant may be vicariously liable. Plaintiff’s complaint also does not articulate an applicable duty in support of the vicarious liability claim.

While Plaintiff has demonstrated a triable issue as to an Unruh Act violation, this doesn’t support the application of the presumption of negligence per se as to Mr. Amies’ actions because Plaintiff hasn’t demonstrated a triable issue as to whether the statutory violation “caused death or injury.” (Evid. Code § 669(a)(2).)

Defendant has met its burden of demonstrating there is no triable issue as to Plaintiff’s vicarious liability theory of negligence, and Plaintiff has failed to meet his burden of demonstrating a triable issue exists. Therefore, the motion is granted as to Plaintiff’s fourth cause of action.

Punitive Damages Claim

Defendant argues, briefly, that the facts do not support plaintiff's claim for punitive damages. (Motion, p. 7.)

Civil Code section 3294 states in part,

“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

Here, Plaintiff’s only remaining cause of action is for violation of the Unruh Act, Civil Code section 51. Civil Code section 52(b) states,

“(a) Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, 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 Section 51, 51.5, or 51.6.”

Plaintiff’s Unruh Act claim is limited to statutory damages, which do not include punitive or exemplary damages.

 Moreover, even assuming exemplary damages were permitted under Plaintiff’s Unruh Act claim, Plaintiff hasn’t demonstrated a triable issue as to whether Defendant’s manager Mr. Amies acted with malice, oppression, or fraud.

Therefore, Plaintiff has not demonstrated a triable issue of material fact as to this issue and the motion is granted as to the punitive damages claim.

Future hearing dates

3/3/23 – MSC

4/3/23 – Jury Trial