Judge Lee W. Tsao, Case 21STCV15757 2023-05-04 Tentative Ruling

Judge: Lee W. Tsao, Case: 21STCV15757, Date: 2023-05-04 Tentative Ruling

Case Number: 21STCV15757 Hearing Date: May 4, 2023 Dept: C

KINGSBURY v. FOOD4LESS

CASE NO.: 21STCV15757

HEARING: 05/04/23

TENTATIVE ORDER

I. Defendant RALPH’S GROCERY COMPANY’s demurrer to Plaintiff’s Second Amended Complaint is SUSTAINED without leave to amend.

II. Defendant RALPH’S GROCERY COMPANY’s Motion to Strike Portions of Plaintiff’s Second Amended Complaint is SUSTAINED without leave to amend.

Moving Party to give notice.

This action for premises liability was filed by Plaintiff ROSA M. KINGSBURY (“Plaintiff”) on April 27, 2021. On November 29, 2022, the operative Second Amended Complaint (“SAC”) was filed. Plaintiff alleges, in pertinent part, “On or about April 24, 2020, plaintiff… was on premises of defendants’ grocery store…. Defendants maintained the premises in an unsafe condition as pallets were present which were unstable and maintained in a manner where customers could and were harmed. Plaintiff… attempted to obtain products and the pallet gave way causing serious physical injuries to the plaintiff, including but not limited to a fractured hand. [¶] Further, the store employees humiliated plaintiff by asking her ‘Don’t you have kids to help you?’ Additionally, the facility failed and refused to take a report, call an ambulance or assist her despite her obvious injuries. They refused to give her any assistance, she was in fact forced to seek assistance from her son… then her granddaughter just to ensure that there was an accident report was considered…. The discriminatory policy and action of defendants in refusing to provide her with assistance, without her children and grandchildren seeking assistance was in violation of her rights.” (SAC ¶¶11-12.)

The SAC asserts the following causes of action: (1) Negligence; and (2) Violation of the Unruh Civil Rights Act.

Defendant RALPH’S GROCERY COMPANY’s dba Food 4 Less (“Defendant”) generally demurs to the second cause of action.

Second Cause of Action – Unruh Civil Rights Act

Civil Code § 51, known as the Unruh Civil Rights Act, states: “All persons within the jurisdiction of this state are free and equal, and no matter what their … disability … 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 broadly outlaws arbitrary discrimination in public accommodations. (Jankey v. Lee (2012) 55 Cal.4th 1038, 1044.) A Plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination in public accommodations. (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4^th 824, 854.) The essential factual elements of a cause of action for a violation of the Unruh Civil Rights Act are: (1) defendant denied, aided or incited a denial of, discriminated or made a distinction that denied full and equal accommodations, advantages, facilities, privileges, or services to plaintiff; (2) that a motivating reason for defendant’s conduct was its perception of plaintiff’s sex, race, color, religion, ancestry, national origin, disability, medical condition, or other actionable characteristic; (3) that plaintiff was harmed; and (4) that defendant’s conduct was a substantial factor in causing plaintiff’s harm. (See Belton v. Comcast Cable Holdings, LLC (2007) 151 Cal.App.4th 1224, 1238.)

Plaintiff fails to allege sufficient ultimate facts to establish that a motivating reason for Defendants’ conduct was their perception of Plaintiffs’ race, age, or sex. The allegations concerning discriminatory intent are wholly conclusory and fail to reach the standard of ultimate fact. “[U]ltimate fact… in general… refers to a core fact, such as an element of a claim or defense, without which the claim or defense must fail.” (Yield Dynamics, Inc. v. Tea Systems Corp. (2007) 154 Cal.App.4th 547, 558.) Here, Plaintiff alleges that she was discriminated against “based on her age and marital status.” (SAC ¶12.) However, Plaintiff fails to allege sufficient ultimate facts to establish that a motivating reason for Defendants’ conduct was their perception of Plaintiff’s age or marital status. The allegations concerning discriminatory intent are wholly conclusory and fail to reach the standard of ultimate fact. Plaintiff has not shown that she received unequal treatment because of her age or marital status.

The demurrer to the second cause of action is SUSTAINED without further leave to amend.

Motion to Strike

A motion to strike lies either when (1) there is “irrelevant, false or improper matter inserted in any pleading”; or (2) to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” (CCP §436.)

The Motion to Strike attorney fees, statutory damages pursuant to Cal. Civ. Code §52, and punitive damages is GRANTED without leave to amend pursuant to the Court’s ruling on the Demurrer above.