Judge Lisa K. Sepe-Wiesenfeld, Case Number: 22SMCV00902, Date: 2023-10-04 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 22SMCV00902, Date: 2023-10-04 Tentative Ruling

Case Number: 22SMCV00902 Hearing Date: October 4, 2023 Dept: N

TENTATIVE RULING

Defendant Starbucks Corporation’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED, with thirty (30) days leave to amend.

Defendant Starbucks Corporation’s Motion to Strike Portions of Plaintiff’s First Amended Complaint is DENIED as MOOT.

Plaintiff Augustine Rotibi may amend his complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendant Starbucks Corporation to give notice.

REASONING

Defendant Starbucks Corporation (“Defendant”) demurs to Plaintiff Augustine Rotibi (“Plaintiff”)’s single cause of action for violation of the Unruh Civil Rights Act and moves to strike Plaintiff’s claim and prayer for punitive damages. Plaintiff has not filed an opposition to the motions. While the moving party generally bears the initial burden of proof on its motion, and lack of opposition will not automatically entitle the moving party to prevail on its motion, a party’s failure to file an opposition can be considered a concession that the motion is meritorious. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Further, the court may, upon 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).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

First Cause of Action: Unruh Civil Rights Violation

The elements of a claim for violation of the Unruh Civil Rights Act are (1) defendant is a business establishment, (2) defendant intentionally denied plaintiff accommodations, advantages, privileges, facilities, or services, (3) defendant was motivated to do so based on its perception that plaintiff belonged to a statutorily defined group, (4) plaintiff was harmed, and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (See Civ. Code, § 51; In re Cox (1970) 3 Cal.3d 205, 216.) “The objective of the Act is to prohibit businesses from engaging in unreasonable, arbitrary or invidious discrimination. Therefore, the Act applies not merely in situations where businesses exclude individuals altogether, but also where treatment is unequal.” (Pizarro v. Lamb’s Players Theatre (2006) 135 Cal.App.4th 1171, 1174, citations omitted.)

In its prior ruling on Defendant’s demurrer to the initial pleading, the Court ruled that Plaintiff had not alleged sufficient facts to support his claim for violation of the Unruh Civil Rights Act, and Plaintiff has made no amendments to his claim here. Plaintiff again alleges that he ordered a tea with a spike of lemonade, and when he asked for a refill, he was charged the full amount of the drink based on the color of his skin. (First Am. Compl. ¶¶ 12, 15, 19-21.) Plaintiff alleges a Caucasian female, was only charged 50 cents for a refill of the same drink, and that his client observed other patrons, all Caucasian, requesting and getting a refill for their drinks without any questions or refusal, and discounted rates were only offered to patrons that were Caucasian. (First Am. Compl. ¶¶ 15, 19, 20.) The Court ruled that Plaintiff had not alleged that any discrimination against him was intentional, and Plaintiff had also failed to allege how the corporation may be liable for the cashier’s actions.

There remain insufficient facts to support a claim for violation of the Unruh Civil Rights Act, as Plaintiff has provided only conclusions to support his claim without alleging intentional discrimination or facts which may support liability against Defendant for the cashier’s actions. Accordingly, Defendant Starbucks Corporation’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED, with thirty (30) days leave to amend. Given the Court’s ruling on demurrer, Defendant Starbucks Corporation’s Motion to Strike Portions of Plaintiff’s First Amended Complaint is DENIED as MOOT. Plaintiff Augustine Rotibi may amend his complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)