Judge: John J. Kralik, Case: 23BBCV01600, Date: 2024-01-19 Tentative Ruling
Case Number: 23BBCV01600 Hearing Date: January 19, 2024 Dept: NCB
North
Central District
|
john mcgee, Plaintiff, v. universal city
studios, llc,
et al., Defendants. |
Case No.: 23BBCV01600 Hearing Date: January 19, 2024 [TENTATIVE] ORDER: demurrer |
BACKGROUND
A.
Allegations
Plaintiffs John
McGee, Marisol McGee, and Dylan McGee (minor) (collectively, “Plaintiffs”)
allege that they were at Defendant Universal City Studios, LLC’s theme park
Universal Studios Hollywood. They allege
that on July 18, 2021, Defendant “Beetlejuice Doe,” an employee of Defendant
Universal City Studios, LLC, acting in the course and scope of employment, was
dressed as the fictional Beetlejuice character from the 1988 film. Plaintiffs allege that they stopped to take a
picture with Defendant Beetlejuice Doe.
Marisol McGee (a Latin-American woman) posed with Defendant Beetlejuice
Doe, while John McGee (an African-American man) took the photo. When taking the picture, they allege that
Defendant Beetlejuice Doe displayed a racist, offensive “White Power” hand
gesture.
The complaint
includes an example of the allegedly offensive hand gesture at issue:
(See Compl. at p.3.)
The complaint, filed July 14, 2023,
alleges causes of action for: (1) violation of the Unruh Civil Rights Act (Civ.
Code, § 51 et seq.); (2) IIED: and (3) negligence.
B.
Motion on Calendar
On October 12, 2023, Universal City
Studios LLC (“UCS”) filed a demurrer to the complaint as to the 1st
to 3rd causes of action.
On January 5, 2024, Plaintiffs filed an
opposition brief.
On January 11, 2024, UCS filed a reply
brief.
REQUEST
FOR JUDICIAL NOTICE
UCS requests
judicial notice of the hand gesture shown on page 3 of the complaint. Specifically, UCS requests that the Court
take judicial notice of the fact that this is a standard gesture in American
culture for “okay” or “ok” pursuant to Evidence Code, § 451(e) and (f). Section
451 states in relevant part that judicial notice shall be taken of the
following:
(e) The true signification of all English words and
phrases and of all legal expressions.
(f) Facts and propositions of generalized knowledge
that are so universally known that they cannot reasonably be the subject of
dispute.
(Evid. Code, § 451(e)-(f).)
Plaintiffs
object to UCS’s request for judicial notice, arguing that UCS has not provided
any authority to show that the Court may take judicial notice of hand
gestures. They argue that hand gestures
are not the same as English words and phrases pursuant to subsection (e). Further, they argue that the hand gesture at
issue in the complaint is a fact/proposition that is in dispute, such that
subsection (f) does not apply.
All
that is before the Court on this question at present is Defendants’ request for
judicial notice and a reference to some web pages of the Anti-Defamation
League. On that record and on this motion, the Court finds it unnecessary to decide
that the “signification” of the “ok” gesture at issue or that either meaning
attributed to that gesture “cannot reasonably be the subject of dispute.” (See Evid. Code § 451(e) and (f).) For
purposes of this motion, the Court will consider the facts of the complaint to
be true as alleged. UCS’s request for
judicial notice is denied without prejudice.
Plaintiffs
also object to UCS’s references to the Anti-Defamation League’s website
referenced in the demurrer papers with the website, as UCS did not request
judicial notice of the website and the documents on the website, nor were they attached
to the request for judicial notice. To
the extent that UCS relies on documents in the Anti-Defamation League’s
website, the objection is sustained. The
website will not be relied upon in ruling on this demurrer.
DISCUSSION
UCS
demurs to the complaint, on the ground that it fails to allege sufficient facts
to constitute causes of action against it.
UCS argues that
the purportedly offensive hand gesture alleged to have been used by Defendant
Beetlejuice Doe is commonly used in American culture to represent “okay” based
on the Anti-Defamation League website. However,
as discussed above, the Court declines to take judicial notice of the website
as UCS did not request judicial notice of it nor did it provide a copy of the
website page at issue.
A.
1st cause of action
With
respect to the 1st cause of action for violation of the Unruh Act,
UCS argues that the Court need not accept Plaintiffs’ “subjective”
interpretation of the hand gesture’s meaning based on Plaintiffs’
allegations. The hearing on demurrer may
not be turned into a contested evidentiary hearing through the guise of having
the court take judicial notice of documents whose truthfulness or proper
interpretation are disputable. (Fremont Indem. Co. v. Fremont Gen. Corp. (2007)
148 Cal.App.4th 97, 114.) At the
demurrer stage, “All material allegations of the complaint are accepted as
true.” (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 976.) As such, this will not be a basis to sustain
the demurrer.
Next, UCS argues that Plaintiffs
have not alleged any facts showing that Defendant Beetlejuice Doe made the
“white power” symbol or intended discriminatory meaning, as opposed to making
the “okay” symbol or that the hand gesture was substantially motivated by race.
Civil Code, § 51(b) or the Unruh Civil
Rights Act states: “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.” Subsection (e)(6) states: “‘Sex, race, color, religion, ancestry, national origin,
disability, medical condition, genetic information, marital status, sexual
orientation, citizenship, primary language, or immigration
status’ includes a perception that the
person has any particular characteristic or characteristics within the listed
categories or that the person is associated with a person who has, or is
perceived to have, any particular characteristic or characteristics within the
listed categories.” (Civ. Code, §
51(e)(6).) More succinctly, “Unruh Act claims include the following elements: (i) defendant denied
plaintiff full and equal accommodations, advantages, facilities, privileges, or
services; (ii) that a substantial motivating reason for defendant's conduct was
plaintiff's membership in a protected class; (iii) that plaintiff was harmed;
and (iv) that defendant's conduct was a substantial factor in causing
plaintiff's harm.” (Nia v. Bank of America, N.A. (S.D. Cal. 2022) 603
F.Supp.3d 894, 906; see CACI 3060.)
In the 1st cause of
action, Plaintiffs allege that Defendants’ perception of Plaintiffs’ race,
ethnicity, color, ancestry, and/or national origin was a substantial motivating
reason for Defendants’ conduct and that Defendants’ acts/omissions were the
legal cause of Plaintiffs’ damages.
(Compl., ¶¶14-15.)
As currently alleged, Plaintiffs
have not alleged sufficient facts to support a cause of action for violation of
the Unruh Act. At most, they allege the
general elements, but the allegations lack supporting facts regarding intent, a
substantial motivating reason, and whether Plaintiffs were discriminated
against such that they were denied full and equal accommodations, advantages,
facilities, privileges, or services.
Thus, the demurrer to the 1st cause of action is sustained
with leave to amend.
B.
2nd cause of action
The elements of intentional infliction of
emotional distress are: (1) outrageous conduct by the defendant; (2) the
defendant’s intention of causing or reckless disregard of the probability of
causing emotional distress; (3) the plaintiff suffered severe or extreme
emotional distress; and (4) the plaintiff’s injuries were actually and
proximately caused by the defendant’s outrageous conduct. (Vasquez
v. Franklin Mgmt. Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819,
832.) In order to avoid a demurrer, the
plaintiff must allege with great specificity, the acts which she believes are
so extreme as to exceed all bounds of behavior usually tolerated in a civilized
community. (Id.)
Conduct to be outrageous must be so
extreme as to exceed all bounds of behavior usually tolerated in a civilized
community. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) In addition, the outrageous conduct must be
of a nature which is especially calculated to cause, and does cause, mental
distress of a very serious kind. (Id.)
“Although emotional distress may consist of
any highly unpleasant mental reaction such as fright, grief, shame,
humiliation, embarrassment, anger, chagrin, disappointment or worry [citation],
to make out a claim, the plaintiff must prove that emotional distress was
severe and not trivial or transient.” (Wong v. Tai Jing (2010)
189 Cal.App.4th 1354, 1376.) Such distress must be “of such
substantial quality or enduring quality that no reasonable person in civilized
society should be expected to endure it.” (Potter v. Firestone Tire
& Rubber Co. (1993) 6 Cal.4th 965, 1004.)
In the 2nd cause of action for
IIED, Plaintiffs allege that Defendants either intended to cause Plaintiffs
harm or acted with reckless disregard of the probability that they would suffer
emotional distress because they either knew that emotional distress would
probably result from their conduct or gave little or no thought to the probable
effect of their conduct. (Compl.,
¶18.) Plaintiffs allege that they
suffered severe emotional distress, including anguish, fright, horror, nervousness,
etc. (Id., ¶19.)
UCS argues that a mere hand gesture cannot
support a cause of action for IIED.
“[I]t is generally held that there can be no recovery for mere
profanity, obscenity, or abuse, without circumstances of aggravation, or for
insults, indignities or threats which are considered to amount to nothing more
than mere annoyances.” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116,
1128.)
As currently alleged, the allegations of
the complaint, without more, fail to rise to the level of showing outrageous
conduct and that Plaintiffs suffered severe emotional distress as a
result. The demurrer to the 2nd
cause of action is sustained with leave to amend.
C.
3rd cause of action
The elements of a
negligence cause of action are “duty, breach of duty, proximate cause, and
damages.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892.)
In the 3rd cause of action for
negligence, Plaintiffs allege that Defendants had a duty to use reasonable care
to prevent harm or injury to Plaintiffs and that Defendants breached their duty
by their actions and inactions, which caused Plaintiffs to suffer severe
emotional distress. (Compl., ¶22.)
UCS argues that Plaintiffs cannot get
around the IIED requirements by attempting to allege negligence based on a hand
gesture. In opposition, Plaintiffs argue
that UCS’s employee intended to convey a symbol of racial discrimination.
For the reasons discussed above, the Court
will sustain the demurrer on the 3rd cause of action. The allegations are highly generalized and
should be amended to include supporting facts for the negligence claim. The demurrer to the 3rd cause of
action is sustained with leave to amend.
CONCLUSION
AND ORDER
Defendant Universal City
Studios LLC’s demurrer to the complaint is sustained as to the 1st,
2nd, and 3rd causes of action with 20 days leave to
amend.
Defendant shall provide notice of
this order.
DATED: January 19, 2024 ______________________
John J. Kralik
Judge of the Superior Court