Judge Lee S. Arian, Case Number: 23STCV16507, Date: 2025-01-10 Tentative Ruling

On November 28, 2023, Plaintiff filed his first amended complaint (“FAC”) alleging that he was attacked and detained by employees of Defendant Viva Bargain Center and Florence Bargain, Inc. after being accused of stealing a lighter. In the FAC, Plaintiff sought punitive damages against Defendant Viva Bargain Center.

On June 13, 2024, the Court sustained Defendant Viva Bargain Center’s motion to strike punitive damages with leave to amend.

On July 12, 2024, Plaintiff filed the operative second amended complaint (“SAC”) alleging the following causes of action: (1) VIOLATION OF CIVIL CODE § 51 ET SEQ. [UNRUH CIVIL RIGHTS ACT]; (2) VIOLATION OF CIVIL CODE § 52.1 [BANE ACT]; (3) ASSAULT; (4) BATTERY; (5) NEGLIGENCE; (6) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; and (7) FALSE IMPRISONMENT.

On October 17, 2024, Defendant Florence Bargain, Inc. (“Florence”) filed the instant Demurrer to Plaintiff’s SAC with motion to strike portions of the SAC.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) However, a demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f).)

In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) Where the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) 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 complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Before filing a demurrer, the demurring party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a).) The party filing the demurrer must include a supporting memorandum of points and authorities. (Cal. Rules of Court, rule 3.1113(a).)

Florence’s counsel declares that he met and conferred with Plaintiff’s counsel via email and telephonically on multiple occasions, and sent a meet and confer letter regarding Florence’s issues with Plaintiff’s Second Amended Complaint on August 16, 2024. (Declaration of Trevor D. DeBus, ¶ 5.) Florence has satisfied the meet and confer requirement.

Florence requests that the Court take Judicial Notice of the following in support of the Demurrer and the Motion to Strike:

Exhibit A: Screen shot of the review referenced in Plaintiff’s Second Amended Complaint alleging that “security" was "rude" and " aggressive." Exhibit B: Screen shot of the review referenced in Plaintiff’s Second Amended Complaint alleging that "an employee" was "racist," written five years ago.

Exhibit C: Screen shot of the review referenced in Plaintiff’s Second Amended Complaint alleging that "staff' was "rude to black people," written six years ago.

Evidence Code section 452 states: “Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451:

(a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state.

(b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.

(c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.

(d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.

(e) Rules of court of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.

(f) The law of an organization of nations and of foreign nations and public entities in foreign nations.

(g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.

(h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.

Florence seeks judicial notice pursuant to California Evidence Code §452 subdivisions (d), (g), and (h). However, public Google reviews of a business are not court records, nor are they facts of such common knowledge that they cannot reasonably be the subject of dispute. Florence also does not explain how these reviews are not reasonably subject to dispute and are capable of immediate and accurate determination. Thus, these exhibits are not the proper subject of judicial notice.

Plaintiff alleges that he is a black eighty-seven-year-old man who walks with a cane. (SAC, ¶ 14.) Plaintiff’s SAC alleges that on July 22, 2021, he was a customer shopping at Viva Bargain Center and/or Florence Viva Bargain Center when non-black employees and/or security guards employed by Defendants aggressively confronted him and accused him of stealing a lighter. (SAC, ¶¶ 14-16.) Plaintiff alleges that Defendants’ employees used physical force against him by detaining him and restricting his freedom of movement. (SAC, ¶ 16.) Plaintiff alleges that Defendants trained, allowed, and/or incentivized their store employees to discriminate against African Americans and use racism, intimidation, and unreasonably violent force. (SAC, ¶¶ 14, 18.)

Plaintiff alleges a wide-spread company culture of racism against African Americans, referencing public Google reviews of the Viva Bargain Center where the incident occurred, which mention staff’s negative behavior towards African Americans. (SAC, ¶ 18.) Plaintiff alleges that these reviews state, in relevant part: (1) From seven months ago, “Security…Was very. Rude. Aggressive....; (2) From 5 years ago, “Racist employees. Followed around while shopping…;” and (3) From 5 years ago, “Staff is rude to black people.” (SAC, ¶ 18.) Plaintiff alleges he sustained injuries as a result of the incident for which he has sought treatment and incurred medical and incidental expenses. (SAC, ¶ 16.)

Florence filed the instant Demurrer arguing that all seven (7) causes of action in the SAC fail to state a cause of action against Defendants and are uncertain and ambiguous under Cal. Code Civ. Proc. § 430.10, subds. (e) and (f).

Florence argues that its demurrer should be sustained on the basis of uncertainty as Plaintiffs’ SAC is vague and ambiguous for failing to indicate which employees interacted with him, which defendants employed those employees, or which defendants allegedly discriminated against him. As a result, Florence argues that it cannot ascertain if these allegations apply to it or one of the various co-defendants, and as a result, cannot competently respond to the Complaint as alleged.

In Opposition, Plaintiff argues that the complaint is not uncertain or completely vague and ambiguous because Plaintiff cannot reasonably be expected to know all the specific facts, including names of the Defendant’s employees, that are only within Defendant’s knowledge, without engaging in discovery.

The Court finds that the SAC contains factual allegations sufficiently apprising Florence of the issues it is being asked to meet, and all causes of action are clearly labeled as against all Defendants, including Florence. Thus, the Court will not sustain the demurrer on the basis of uncertainty.

1st Cause of Action: Violation of Civil Code § 51 et seq. (Unruh Civil Rights Act)

“The Unruh Civil Rights Act was enacted to ‘create and preserve a nondiscriminatory environment in California business establishments by ‘banishing’ or ‘eradicating’ arbitrary, invidious discrimination by such establishments.’” (Flowers v. Prasad (2015) 238 Cal.App.4th 930, 937.) The Unruh Act provides that “[a]ll 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).)

Unruh Civil Rights Act “‘must be construed liberally in order to carry out its purpose’ to ‘create and preserve a nondiscriminatory environment in California business establishments by ‘banishing’ or ‘eradicating’ arbitrary, invidious discrimination by such establishments. [Citation.] The Unruh Civil Rights Act ‘serves as a preventive measure, without which it is recognized that businesses might fall into discriminatory practices.’” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 666.)

To establish a claim for violation of the Unruh Civil Rights Act, plaintiff must prove the following: (1) that defendant denied, aided or incited a denial of, discriminated, and/or made a distinction that denied, full and equal accommodations, advantages, facilities, privileges, and/or services of the defendant’s business to plaintiff, (2) that a substantial motivating reason for defendant’s conduct was their perception of plaintiff’s race, color, disability, and/or age, (3) that plaintiff was harmed as a direct and proximate result of the conduct of defendant, and (4) that defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (See CACI 3060.)

Plaintiff incorporated and re-alleged the above facts in support of his first cause of action. (SAC, ¶ 21.) Plaintiff also alleges that Defendants denied him full and equal accommodations, advantages, facilities, privileges, and/or services of Defendants’ business because of his race, color, disability, and/or age. (SAC, ¶ 22.) Plaintiff further alleges that a substantial motivating reason for Defendants’ conduct was their perception of Plaintiff’s race, color, disability, and/or age. (SAC, ¶ 24.) Plaintiff alleges that Defendants ratified the tortious conduct of DOE DEFENDANTS 26 to 30 (the employees) by training them to use unreasonably violent force in the course and scope of providing store business and security services and knew or should have known that employees had a propensity to use, and a history of using, unreasonably violent force in the course and scope of providing store business and/or security services, and failed to intercede in their known pattern of using such force. (SAC, ¶ 27.) Additionally, Plaintiff alleges that the Defendants knew that DOE DEFENDANTS 26 to 30 (employees) used unreasonably violent force against Plaintiff and failed to investigate or discipline the employees for their uses of force. (SAC, ¶ 27.) Plaintiff further alleges that Defendants knew that employees used unreasonably violent force against Plaintiff and took actions to cover up such conduct by either failing to preserve or actively destroying video recordings depicting their conduct. (SAC, ¶ 27.)

Florence argues that Plaintiff offers no facts to support the idea that he was targeted specifically because he is Black, elderly, or disabled as Plaintiff merely alleges the elements of a claim under the Unruh act, without showing any facts that would support such a claim. Florence argues that Plaintiff has not alleged that any of the security guards who interacted with him did so because he was Black, elderly or disabled, and only concludes that the various defendants violated the Unruh act.

In Opposition, Plaintiff states, “Plaintiff sufficiently alleges the following facts that support each of her claims against this demurring defendant:” and largely restates the allegations already contained in the SAC.

The Court finds that Plaintiff has not alleged sufficient facts supporting a cause of action for violation of Civil Code Section 51, the Unruh Civil Rights Act. Plaintiff concedes that it must prove “that a substantial motivating reason for defendant’s conduct was their perception of plaintiff’s race, color, disability, and/or age” per CACI 3060. (Opposition, 6:8-14.) However, Plaintiff fails to allege any facts showing that a substantial motivating reason for Florence’s conduct was it or its employees’ perception of Plaintiff’s race, color, disability, and/or age. Plaintiff makes conclusory allegations that “a substantial motivating reason for Defendant’s conduct was their perception of Plaintiff’s race, color, disability, and or age,” but fails to offer specific facts establishing that Defendants’ behavior in detaining him was based on those protected characteristics. (SAC, ¶ 24.)

Similarly, Plaintiff fails to identify how Florence “ratified the tortious conduct of DOE Defendants 26 to 30 by fostering a culture of racism, intimidation, and violence against African American patrons, training and incentivizing employees to discriminate and use racism, intimidation, and unreasonably violent force against African American patrons.” (SAC, ¶ 18.) Plaintiff offers legal conclusions rather than facts in support of the first cause of action. Plaintiff’s allegation regarding public Google reviews of the Viva Bargain Center where the incident occurred, which mention staff’s negative behavior towards African Americans, are not sufficient to establish Florence’s motive in the detention, or ratification of its employees acts. (SAC, ¶ 18.)

Therefore, Florence’s demurrer to the first cause of action is SUSTAINED with leave to amend.

The Tom Bane Civil Rights Act is codified at Civil Code section 52.1. It provides that an individual may bring a private right of action for damages, injunction, and equitable relief against a person if that person “interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.” (Civ. Code, § 52.1, subd. (a), (b), (h).)

“The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law. [Citation.]” (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 883.) Put simply, “[a] defendant is liable if he or she interfered with or attempted to interfere with the plaintiff's constitutional rights by the requisite threats, intimidation, or coercion.” (Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 956.)

To state a cause of action for violation of the Tom Bane Civil Rights Act, a plaintiff must show that: (1) defendant caused plaintiff to reasonably believe, by threats, intimidation, or coercion, that if plaintiff exercised a Constitutional right, defendant would commit violence against him while having the apparent ability to carry out the threats, or that defendant acted violently against plaintiff to prevent him from exercising a right, or retaliated against plaintiff for having exercised said right; (2) defendant intended to deprive plaintiff of his enjoyment of the interests protected by the right; (3) plaintiff was harmed; and (4) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI 3066.)

“It has been the rule that in a wrongful detention case, the coercion required to support a Bane Act claim must be coercion independent from that inherent in the wrongful detention itself. (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 981.) One court, however, did not apply this rule in a wrongful arrest case. The court instead held that the “threat, intimidation or coercion” element requires a specific intent to violate protected rights (Cornell v. City & County of San Francisco (2017) 17 Cal.App.5th 766, 790-804.)” (CACI 3066 Directions for Use.)

Plaintiff incorporated and re-alleged the above facts in support of his second cause of action. (SAC, ¶ 29.) Plaintiff further alleges that he had a constitutional right to movement and to leave Defendants’ premises. (SAC ¶ 33.) Plaintiff alleges that Defendants intentionally interfered with, and/or attempted to interfere with, Plaintiff's civil rights by threats, intimidation, or coercion by causing Plaintiff to reasonably believe that if he exercised his right to leave the premises, Defendants would commit violence against him and they had the apparent ability to carry out the threats. (SAC, ¶¶ 30-31.)

Plaintiff further alleges that Defendants acted violently against Plaintiff to prevent him from exercising his right to leave the premises and/or to retaliate against Plaintiff for having exercised his right to leave the Premises. (SAC, ¶ 32.) Plaintiff alleges that Defendants intended to deprive Plaintiff of his enjoyment of the interests protected by the right to movement and to leave the premises. (SAC, ¶ 33.)

Plaintiff alleges that Defendants ratified the tortious conduct of DOE DEFENDANTS 26 to 30 (the employees) by training them to use unreasonably violent force in the course and scope of providing store business and security services and knew or should have known that employees had a propensity to use, and a history of using, unreasonably violent force in the course and scope of providing store business and/or security services, and failed to intercede in their known pattern of using such force. (SAC, ¶ 35.)

Additionally, Plaintiff alleges that the Defendants knew that DOE DEFENDANTS 26 to 30 (employees) used unreasonably violent force against Plaintiff and failed to investigate or discipline the employees for their uses of force. (SAC, ¶ 27.) Plaintiff further alleges that Defendants knew that employees used unreasonably violent force against Plaintiff and took actions to cover up such conduct by either failing to preserve or actively destroying video recordings depicting their conduct. (SAC, ¶ 35.)

Florence argues that Plaintiff offers only a conclusory allegation to support the second cause of action, which alleged that “Defendant intentionally interfered with, and or attempted to interfere with Plaintiff’s civil rights by threats, intimidation, or coercion." (SAC, ¶ 30.)

The Court finds that Plaintiff has not alleged sufficient facts supporting the second cause of action for violation of the BANE Act. Plaintiff alleges that he had a constitutional right to movement and to leave Defendants’ premises, but Defendants prevented him from doing so. However, Plaintiff does not allege any facts to establish that Defendants detained him with the specific intent to deprive him of his enjoyment of the interests protected by his purported right “to movement and to leave Defendants’ premises” as required by Cornell. (SAC ¶ 33.). Defendant concedes that Plaintiff was accused of shoplifting a lighter. (Demurrer, 4:27-28; 5:1-2.) Based on the face of the SAC, this appears to be the only specific fact, rather than legal conclusion, that Plaintiff has alleged as to Defendant’s possible motivations for detaining Plaintiff. Plaintiff fails to allege any facts showing that a motivating reason for his alleged detention was to deprive Plaintiff of his enjoyment of the interests protected by his purported right to leave the store.

Further, in wrongful detention cases such as Plaintiff’s, the coercion required to support a Bane Act claim must be coercion independent from that inherent in the wrongful detention itself per Bender. Plaintiff has failed to allege coercion independent from that inherent in the detention itself. Additionally, there are no specific allegations of any threats Florence or other Defendants made to Plaintiff, just that threats of force were made.

Similarly, Plaintiff fails to identify facts to support the legal conclusion that Defendants “ratified the tortious conduct of doe defendants” and that Defendants “knew or should have reasonably known that their store employees and/or security guards had a propensity to use, and a history of using, unreasonably violent force in the course and scope of providing store business and/or security services, and failed to intercede in their known pattern of using such force. (SAC, ¶ 35.) Plaintiff offers legal conclusions rather than facts in support of the second cause of action.

Therefore, Florence’s demurrer to the second cause of action is SUSTAINED with leave to amend.

To state a cause of action for assault, a plaintiff must show that: (1) Defendant intentionally caused plaintiff’s immediate apprehension of a harmful or offensive contact with the plaintiff’s body; (2) plaintiff did not consent to the contact; and (3) the contact caused injury, damage, loss or harm to plaintiff, such as emotional distress. (Lowry v. Standard Oil Co. (1944) 63 Cal.App.2d 1, 6. See also Kiseskey v. Carpenters' Trust for So. Cal. (1983) 144 Cal.App.3d 222, 232 (“The tort of assault is complete when the anticipation of harm occurs.”).)

Plaintiff incorporated and re-alleged the above facts in support of his third cause of action. (SAC, ¶ 37.) Plaintiff also alleges that 1) Defendants intended to place him in apprehension of a harmful and offensive contact with his person, and he was in fact placed in such apprehension; 2) Plaintiff did not consent to these acts; and 3) As a direct and proximate result of the conduct of Defendants, Plaintiff was injured in his health, strength, and activity, sustaining injury to his body and shock and injury to his nervous system and person, which have caused and continue to cause Plaintiff great mental, physical and nervous pain and suffering. (SAC, ¶¶ 38-40.)

Florence argues that it is a corporation and cannot “assault" anyone. Further, Florence argues that Plaintiff’s Complaint alleges that unnamed security guards, without identifying which of the various defendants employed them, "assaulted" plaintiff when he was accused of shoplifting. Plaintiff does not allege any facts that would show that those unnamed security guards intended to cause him harm, which is required in such an allegation.

The Court finds that Plaintiff has not alleged sufficient facts supporting the third cause of action for assault as to Florence. Plaintiff offers a conclusory allegation that the security guard or employee of Florence who detained him intended to cause him harm but does not provide any facts supporting this legal conclusion. Additionally, since Florence is a corporation rather than a person who is capable of touching Plaintiff, Plaintiff must offer facts to establish that Florence is vicariously liable for its employee’s alleged tort of assault. However, Plaintiff fails to identify specific facts to support the legal conclusion that Florence “trained and incentivized their store employees and/or security guards to use unreasonably violent force in the course and scope of providing store business and security services.” (SAC, ¶ 41.)

Plaintiff also fails to identify facts to support the legal conclusion that Defendants “ratified the tortious conduct of doe defendants” and that Defendants “knew or should have reasonably known that their store employees and/or security guards had a propensity to use, and a history of using, unreasonably violent force in the course and scope of providing store business and/or security services, and failed to intercede in their known pattern of using such force. (SAC, ¶ 41.) Plaintiff offers legal conclusions rather than facts in support of the third cause of action.

Therefore, Florence’s demurrer to the third cause of action is SUSTAINED with leave to amend.

To state a cause of action for battery, a plaintiff must show that: (1) Defendant intentionally committed an act resulting in a harmful or offensive contact with the plaintiff’s body; (2) plaintiff did not consent to the contact; and (3) the contact caused injury, damage, loss or harm to plaintiff. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 526; Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 497l.)

Plaintiff incorporated and re-alleged the above facts in support of his third cause of action. (SAC, ¶ 43.) Plaintiff also alleges that Defendants acted with the intent to make contact with, and did make contact with, Plaintiff, which Plaintiff did not consent to. (SAC, ¶ 44.)

Florence argues that "battery" requires the touching of Plaintiff and Defendant is a corporation who cannot commit battery as it is not a corporeal person.

The Court finds that Plaintiff has not alleged sufficient facts supporting the fourth cause of action for battery as to Florence. Since Florence is a corporation rather than a person who is capable of touching Plaintiff, Plaintiff must offer facts to establish that Florence is vicariously liable for its employee’s tort of battery. However, Plaintiff fails to identify specific facts to support the legal conclusion that Florence “trained and incentivized their store employees and/or security guards to use unreasonably violent force in the course and scope of providing store business and security services.” (SAC, ¶ 47.)

Similarly, Plaintiff fails to identify facts to support the legal conclusion that Defendants “ratified the tortious conduct of doe defendants” and that Defendants “knew or should have reasonably known that their store employees and/or security guards had a propensity to use, and a history of using, unreasonably violent force in the course and scope of providing store business and/or security services, and failed to intercede in their known pattern of using such force. (SAC, ¶ 47.) Plaintiff offers legal conclusions rather than facts in support of the fourth cause of action.

Therefore, Florence’s demurrer to the fourth cause of action is SUSTAINED with leave to amend.

To state a cause of action for negligence, a plaintiff must show: (1) Defendant owed a legal duty to plaintiffs to use due care; (2) breach of duty;

(3) causation; and (4) damage to plaintiff. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

Plaintiff incorporated and re-alleged the above facts in support of his third cause of action. (SAC, ¶ 49.) Plaintiff also alleges that Florence, as owner of the premises that Plaintiff was lawfully on, owed Plaintiff a duty to exercise reasonable care to keep the premises in safe condition and to hire, train, and/or supervise employees so as to avoid and protect Plaintiff from employee conduct that would cause Plaintiff physical injury, mental pain and anguish, and economic loss. (SAC, ¶ 52.) Plaintiff alleges that Florence negligently hired, trained, and/or supervised DOE DEFENDANTS 26 to 30, who were incompetent and unfit to work as security guards and/or otherwise perform their duties as security guards for the employment for which they were hired or contracted to perform. (SAC, ¶ 54.)

Florence argues that it is unclear what actions are attributable to Defendant, co-defendants, or their various employees, and which defendants those alleged employees are employed by. Florence argues that Plaintiff alleges negligence of "Defendant," a corporation, when the actions are alleged to have been perpetrated by unnamed "security" and it is unclear if the security was employed by Defendant or co-defendants herein, and Plaintiff makes no attempt to make a distinction.

The Court finds that Plaintiff has not alleged sufficient facts supporting the fifth cause of action for Negligence as to Florence. Plaintiff has alleged that Florence was the employer of the individual that allegedly wrongfully detained and harmed Plaintiff in Florence’s store. Plaintiff alleges that Florence, as owner of the store that Plaintiff was shopping in, owed Plaintiff a reasonable duty of care in its hiring, training, and supervision of employees. Plaintiff alleges that, but for Florence’s failure to hire competent employees, properly supervise and train its employees, or institute policies and procedures to prevent Plaintiff’s alleged wrongful detention, Plaintiff would not have been harmed. Plaintiff alleges he did in fact suffer harm.

However, Plaintiff fails to allege any facts supporting how Florence breached a duty owed to Plaintiff. Plaintiff's SAC includes general allegations that Florence ratified tortious conduct, trained and incentivized their employees to use unreasonable force, and failed to intercede in the employee’s known patterns of misconduct. However, these allegations lack the specificity required by the law. For instance, Plaintiff fails to identify which of Defendant's managing agents authorized or ratified the alleged wrongful conduct, how they ratified or authorized the misconduct, or when and who among Defendant's managing agents learned of the employee’s similar past conduct and what specific similar past conduct occurred.

Therefore, Florence’s demurrer to the fifth cause of action is SUSTAINED with leave to amend.

To establish a claim for Intentional Infliction of Emotional Distress (“IIED”) a plaintiff must prove the following: (1) Outrageous conduct by defendant; (2) intention to cause or reckless disregard for the probability of causing emotional distress; (3) severe emotional distress; and (4) causation. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.)

Plaintiff incorporated and re-alleged the above facts in support of his sixth cause of action. (SAC, ¶ 62.) Plaintiff further alleges that Defendants’ acts and conduct were extreme and outrageous in that Defendants were aware and knew that the same were wrongful and improper and would and did cause Plaintiff mental torment, grief, and other serious injuries to his mind and well-being. (SAC, ¶ 63.) In particular, DOE DEFENDANTS 26 to 30’s intentional use of violent force against Plaintiff, which Florence ratified and/or authorized, was so excessive and gratuitous that no person should reasonably have been expected to endure it, even in the ordinary course of a security incident at the premises. Such use of force was so extreme as to exceed all bounds of that usually tolerated in a civilized community. (SAC, ¶ 63.)

Plaintiff further alleges that Defendants’ acts and conduct were intentional (not accidental), deliberate, willful, or done in reckless disregard of the likelihood they would cause Plaintiff serious emotional distress. (SAC, ¶ 64.) In doing the acts alleged above, Defendants inflicted severe emotional distress upon Plaintiff. (SAC, ¶ 65.)

Florence argues that the only "facts" alleged are that (1) on or about July 22, 202I, Plaintiff was a Black eighty-seven-year-old male who walks with a cane; (2) was a customer inside Defendant's store; and (3) was accused of stealing a lighter and detained in a physical manner. Florence argues that Plaintiff’s Complaint is devoid of any specific factual pleadings that would support a claim for intentional infliction of emotional distress, and the related claims are merely conclusions extrapolated from inferences from the elements required to plead such a cause of action. There are no facts that would support a claim that Defendant's or its employee's actions were malicious or unconscionable. Instead, Plaintiff points to three "reviews" that are not contemporaneous to the incident itself.

The Court finds that Plaintiff has not alleged sufficient facts supporting the sixth cause of action for IIED by Florence. Plaintiff fails to allege any facts showing Florence intended to cause or recklessly disregarded the probability of causing emotional distress in allegedly allowing its employee to detain Plaintiff. Similarly, Plaintiff fails to identify facts to support the legal conclusion that Defendants “ratified the tortious conduct of doe defendants” and that Defendants “knew or should have reasonably known that their store employees and/or security guards had a propensity to use, and a history of using, unreasonably violent force in the course and scope of providing store business and/or security services, and failed to intercede in their known pattern of using such force. (SAC, ¶ 68.) Plaintiff offers legal conclusions rather than facts in support of the second cause of action.

Additionally, the SAC fails to allege facts to support a finding of any “extreme and outrageous” conduct by Florence as the SAC does not even sufficiently allege that Florence acted outside the scope of the so-called Merchant’s privilege, as discussed below, let alone extreme and outrageous conduct.

Therefore, Florence’s demurrer to the sixth cause of action is SUSTAINED with leave to amend.

To state a cause of action for false imprisonment, a plaintiff must show: (1) Nonconsensual, intentional confinement of a person; (2) without lawful privilege; and (3) for appreciable period. (Easton v. Sutter Coast Hosp. (2000) 80 Cal. App. 4th 485, 496.)

Plaintiff incorporated and re-alleged the above facts in support of his third cause of action. (SAC, ¶ 70.) Plaintiff also alleges that Florence acted with the intent to deprive Plaintiff of his freedom of movement by use of physical barriers and/or force, threats of force, menace, fraud, deceit, or unreasonable duress and the confinement compelled Plaintiff to remain under the control of Defendants for an appreciable time. (SAC, ¶ 71.) Plaintiff further alleges that he did not consent to any of the acts of Defendants alleged above. (SAC, ¶ 71.) Florence argues that Plaintiff alleges that he was falsely imprisoned after being accused of shoplifting on the date of the incident, in that security prevented him from leaving. However, Plaintiff has not alleged that any of the parties involved did not have a lawful privilege, as he was accused of shoplifting pending police intervention.

The Shopkeeper’s or Merchant’s privilege codified in Penal Code § 490.5(f)(1) provides, “A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant's premises.” Penal Code § 490.5(f)(7) further provides, “in any civil action brought by any person resulting from a detention or arrest by a merchant, it shall be a defense to such action that the merchant detaining or

arresting such person had probable cause to believe that the person had stolen or attempted to steal merchandise and that the merchant acted reasonably under all the circumstances.”

The Court finds that Plaintiff has not alleged sufficient facts supporting the seventh cause of action for false imprisonment as to Florence.

No facts alleged about Plaintiff’s confrontation with Florence’s employee indicates that the detention was unreasonable as the SAC did not state any facts regarding how, for example, Plaintiff attempted to explain that he paid for the item or did not take the item at all. Plaintiff offers legal conclusions, rather than specific factual allegations, and thus fails to allege sufficient facts to support a finding of unreasonable confinement. Accordingly, the SAC does not sufficiently allege that Florence acted outside the scope of the so-called Merchant’s privilege.

Therefore, Florence’s demurrer to the seventh cause of action is SUSTAINED with leave to amend.

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Generally, the court will allow leave to amend on at least the first try, unless there is absolutely no possibility of overcoming the issue. (See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 ("Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.").)

Here, Plaintiff is granted 30 days’ leave to amend all causes of action so that Plaintiff can have a fair opportunity to correct all defects.

Plaintiff alleges the wrongful conduct of Defendant was done with a conscious disregard of Plaintiff’s rights with the intent to vex, injure, and annoy Plaintiffs so as to cause the injuries sustained by Plaintiffs which amount to oppression and malice under Civil Code section 3294.

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).)

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.)

Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

“Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages . . . Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.” (Pacific Gas and Electronic Company v. Superior Court (2018) 24 Cal.App.5th 1150, 1170; Lackner v. North (2006) 135 Cal.App.4th 1188, 1210 [“‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]”].)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.)

The Court finds that Plaintiff has not met the heightened pleading standard required for punitive damages. To support a claim for punitive damages, Plaintiff must assert specific facts demonstrating that Defendant acted with oppression, fraud, or malice. (Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193.) Moreover, as Defendant Florence Bargain, Inc., is a corporation, Plaintiff must meet the additional requirements of Civil Code § 3294(b). Specifically, Plaintiff must demonstrate that the corporation had advance knowledge of the unfitness of the employee and employed the individual with conscious disregard for the rights or safety of others, or that the corporation authorized, ratified the employee’s conduct.

Plaintiff's SAC includes general allegations that the PREMISES DEFENDANTS ratified tortious conduct, trained and incentivized their employees to use unreasonable force, and failed to intercede in the employee’s known patterns of misconduct. However, these allegations lack the specificity required by the law. For instance, Plaintiff fails to identify which of Defendant's managing agents authorized or ratified the alleged wrongful conduct, how they ratified or authorized the misconduct, or when and who among Defendant's managing agents learned of the employee’s similar past conduct and what specific similar past conduct occurred. Plaintiff has not pled specific facts to fulfill the heightened pleading standard for his punitive damage claims.

The Court previously sustained Defendant Viva Bargain Center’s motion to strike punitive damages and gave Plaintiff 30 days leave to amend. Upon filing the SAC, Plaintiff failed to cure the defects in its pleading by failing to fulfill the heightened pleading standard for his punitive damage claims.

However, since Florence’s demurrer is SUSTAINED with leave to amend as to all causes of action against Florence, the motion to strike is MOOT.

Florence’s Demurrer is GRANTED as to all causes of action. Plaintiff is granted 30 days’ leave to amend.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court