Judge Lee W. Tsao, Case Number: 22STCV34687, Date: 2023-09-11 Tentative Ruling

Judge: Lee W. Tsao, Case: 22STCV34687, Date: 2023-09-11 Tentative Ruling

Case Number: 22STCV34687 Hearing Date: September 26, 2023 Dept: C

SANCHEZ v. EOS FITNESS, LLC, et al.

CASE NO.: 22STCV34687

HEARING: 9/26/23

TENTATIVE RULING

I. Defendants EOS Fitness LLC, Apparcel, and Jones’s demurrer to Plaintiff’s first amended complaint is SUSTAINED with 10 days leave to amend.

II. Defendants EOS Fitness LLC, Apparcel, and Jones’s motion to strike is MOOT.

Moving Parties to give NOTICE.

Defendants EOS Fitness LLC, Apparcel, and Jones demur to the complaint on the grounds that the 1^st, and 4^th – 7^th causes of action fail to state facts sufficient to constitute a cause of action and are uncertain.

As an initial matter, the court notes that Plaintiff’s Opposition is 33 pages long. Plaintiff is reminded of the 15-page limitation pursuant to CRC 3.113(d). This court will overlook this transgression once. In the future, if any memorandum exceeds this page limit, the court will not consider the papers.

The First Amended Complaint (“FAC”) alleges that on May 13, 2022, at approximately 8:30 a.m., Plaintiff was informed that his membership was cancelled because team members feel harassed and uncomfortable… “It can be something as simple as taking off a bandanna that has the flag on it and waving it.” (FAC, ¶ 31.) Plaintiff was “pushed, shoved, stricken and beaten by persons that Plaintiff has never met before and who are not of color like Plaintiff, nor of the same race, religion and/or citizenship. Most of them have tattoos, eat meat, drink beer, worship money and/or women, and have no courtesy or consideration for Plaintiff.” (Id., ¶ 34.) “Plaintiff was subjected to discrimination because Plaintiff’s EOS Fitness gym membership was canceled for using patriotic attire during workouts in the gym and adamantly opposing the use of steroids to body build.” (Id., ¶ 36.) Fn. 6 of the FAC alleges that racial discrimination of Defendant EOS Fitness is evidenced by the painting on the front wall showing the Hollywood sign, which is the epitome of “white supremacy.” Based thereon, the FAC asserts causes of action for:

1. Violation of CC § 51

2. Assault

3. Battery

4. Violation of CC § 51.7

5. Violation of CC § 52

6. Violation of CC § 52.1

7. IIED

8. 42 USC § 1983

1^st, 4^th – 6^th, and 8^th CAUSES OF ACTION

VIOLATION OF CC §§ 51, 51.7, 52, and 52.1 and 42 USC § 1983:

“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.” (CC § 51(b).) “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.” (CC § 51.7(b)(1).) “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.” (CC § 52.) “ If a person or persons, whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, 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, the Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured.” (CC § 52.1.) “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” (42 USC § 1983.)

Plaintiff alleges that he was discriminated against because of his race, but provides no facts supporting any such “racial” discrimination. Plaintiff also alleges that he was assaulted by unknown Doe Defendants, but none of these individuals are alleged to be demurring Defendants.

Accordingly, the demurrer is SUSTAINED with 10 days leave to amend.

7^th CAUSE OF ACTION

IIED: The elements are: (1) outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal. 3d 148, 155 n.7.)

The conduct complained of (i.e. cancelling Plaintiff’s gym membership) does not rise to the level of outrageous conduct. Accordingly, the demurrer is SUSTAINED with 10 days leave to amend.

In light of the court’s grant of leave to amend, the accompanying motion to strike is MOOT.