Judge Lisa K. Sepe-Wiesenfeld, Case Number: 23SMCV02243, Date: 2024-05-01 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 23SMCV02243, Date: 2024-05-01 Tentative Ruling

The trial court “may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.” (McGuan v. Endovascular Techs., Inc. (2010) 182 Cal.App.4th 974, 988, paragraph breaks omitted.)

Plaintiff Zhoie Perez (“Plaintiff”) moves to seal the documents filed in support of her request for default judgment on the ground that such documents contain private medical information. The Court finds that an overriding interest exists here that overcomes the right of public access to the record, that is, Plaintiff’s right to privacy as it relates to her medical history (see Heda v. Superior Court (1990) 225 Cal.App.3d 525, 527), and the public interest in accessing such information is minimal where the Court is denying the default judgment request at this juncture for the reasons stated below. The Court notes that should it find it proper to grant the default judgment request in the future, it may be improper to seal the medical records, as the judgment would be based only on those records, and there is an overwhelming interest in allowing the public to access information supporting its rulings, particularly where the plaintiff has put her medical status at issue in this action. Accordingly, Plaintiff Zhoie Perez’s Ex Parte Application for an Order Sealing Plaintiff Zhoie Perez’[s] Supplemental Declaration in Support of Default Judgment is GRANTED.

First, the statement of damages in this action was not properly served. Code of Civil Procedure section 425.11, subdivision (d)(1), requires that a statement of damages must be served in the same manner as a summons on a party who has not appeared in the action. The proof of service filed on July 19, 2023, shows that the statement of damages was served by substituted service, but no declaration of diligence is provided, such that the Court cannot conclude that service was proper. (See Code Civ. Proc., § 415.20, subd. (b) [requiring reasonable diligence to personally serve a party before serving by substituted service].) Code of Civil Procedure section 425.11, subdivision (c), provides that “the plaintiff shall serve the statement on the defendant before a default may be taken.” Given that the statement of damages was not properly served on Defendant before the default was taken, the default is invalid and must be set aside.

As to the merits of the default judgment request, it is axiomatic that “[p]laintiffs in a default judgment proceeding must prove they are entitled to the damages claimed.” (Kim v. Westmore Partners, Inc. (2011) 201 Cal.App.4th 267, 288.) While a default generally admits the allegations of the complaint, this rule does not relieve a plaintiff of a duty to establish causation and damages. (See Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1745 [sufficiency of evidence supporting default is not reviewed only “as to matters for which no proof is required by virtue of the admission by default of the allegations of the complaint . . . as to damages which, despite default, require proof the general rule does not apply”].) Punitive damages are warranted only “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).)

As to the first cause of action, “[t]he essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed [he or] she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.) “The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (Ibid.) Plaintiff alleges that Defendant Matthew Wilson (“Defendant”) made inflammatory statements to her and started throwing items at the group in which Plaintiff was present, but she also alleges that only one item, a glass ashtray, actually hit her; she alleges that the pipe did not hit her in the head, and she makes no specific allegations about the bowl. (Compl. ¶ 9.) She fails to allege any specific type of harm from this conduct, providing only a conclusory statement that she suffered harm. (Compl. ¶ 21.) As to any conduct of Plaintiff being placed in handcuffs, Defendant himself was not responsible for that, as Plaintiff alleges the police placed her in handcuffs. (Compl. ¶ 10.)

Plaintiff has provided supplemental evidence showing a diagnosis of posttraumatic stress disorder and panic disorder, as well as prescriptions for certain medication and proof of purchase of items for physical therapy, but there are no grounds for the Court to conclude that the diagnoses, medications, or physical therapy were the result of Defendant’s conduct. Plaintiff must provide more than conclusory statements that the alleged damages are the result of the alleged conduct, as there may be any number of reasons why Plaintiff has suffered this harm aside from Defendant’s conduct. Thus, there is no basis to conclude that Plaintiff is entitled to damages for assault and battery as presently alleged.

As to the second cause of action, in order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Plaintiff has alleged no facts that Defendant owed her a duty of care, and this claim mirrors Plaintiff claim for assault and battery, making the claims contradictory, i.e., Defendant either intended to harm Plaintiff by throwing items or he negligently threw the items without an intent to harm.

As to the third cause of action, the elements of a claim for violations of the Ralph Civil Rights Act are (1) the defendant committed a violent act against the plaintiff or his or her property; (2) a motivating reason for the defendant’s conduct was his perception of the plaintiff’s perception of the plaintiff’s race or disability; (3) the plaintiff was harmed; and (4) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (Civ. Code, § 51.7, subd. (a); Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 880-881.) While Plaintiff alleges that Defendant made certain inflammatory statements to her, and she alleges she is a transgender woman, she alleges no facts that compel a conclusion that Defendant threw the items at Plaintiff specifically because she was a transgender woman of color. (Compl. ¶¶ 8, 9.) Plaintiff alleges that she appeared at Defendant’s door to serve a small claims case while recording Defendant, and she states that Defendant indicated a belief that Plaintiff was there to harm Defendant and his wife, such that the Court cannot conclude as a matter of fact that Defendant’s conduct in throwing items at Plaintiff was motivated by Plaintiff being a transgender woman of color. Rather, the facts support a conclusion that Defendant’s alleged conduct arose out of what Plaintiff was doing, not because of any perception of Plaintiff’s personal characteristics. Here, again, Plaintiff fails to allege any specific type of harm, with only a conclusory statement that she suffered harm and providing a list of harm which is difficult to connect to the alleged conduct of throwing items at Plaintiff. (Compl. ¶ 41.)

As to the fourth cause of action, the elements of a claim for violations of the Tom Bane Civil Rights Act are (1) the defendant interfered with or attempted to interfere with the plaintiff’s constitutional or statutory rights by threatening or committing violent acts; (2) the plaintiff reasonably believed that if he or she exercised his or her constitutional rights the defendant would commit violence against him or her or his or her property, or the defendant injured the plaintiff or his or her property to prevent him or her from exercising his or her constitutional rights or retaliated against the plaintiff for having exercised his or her constitutional rights; (3) the plaintiff was harmed; and (4) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (Civ. Code, § 52.1; Austin B. v. Escondido Union School Dist., supra, 149 Cal.App.4th at p. 882.) Plaintiff must allege facts that Defendant’s conduct was intended to deprive her of an enjoyment to a protected right; she provides only a conclusory statement that Defendant interfered with her exercise and enjoyment of rights. (Compl. ¶ 49.) Insofar as Plaintiff intends to take issue with her purported right to confront Defendant at his residence with a camera, Defendant has a constitutional right to privacy (Cal. Const. Art. 1, § 1), particularly at his residence, and Plaintiff also fails to allege that Defendant asked her to stop filming. Thus, there is no basis for concluding that Defendant denied Plaintiff of any constitutional rights.

As to the fifth cause of action, 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.) Plaintiff takes issue with Defendant’s purported denial of Plaintiff’s use of the public sidewalk (Compl. ¶ 63), but neither Defendant nor a public sidewalk are a business. “The objective of the Act is to prohibit businesses from engaging in unreasonable, arbitrary or invidious discrimination.” (Pizarro v. Lamb’s Players Theatre (2006) 135 Cal.App.4th 1171, 1174.) Thus, Plaintiff does not state a cognizable claim for violation of the Unruh Civil Rights Act.

As to the sixth cause of action, “[t]he elements of a tortious claim of false imprisonment are: (1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief.” (Lyons v. Fire Insurance Exchange (2008) 161 Cal.App.4th 880, 888.) Plaintiff alleges that Defendant made false allegations that Plaintiff had a gun and was waving it at Defendant (Compl. ¶ 74), but this does not state a claim for false imprisonment against Defendant. Defendant himself did not confine or restrain Plaintiff in any way, as she alleges she was detained in handcuffs by law enforcement (Compl. ¶ 75), law enforcement made their own judgment as to whether to restrain Plaintiff, and they had lawful privilege to do so based on the facts that were relayed to them by Defendant. Notably, Plaintiff has not alleged her claim against law enforcement, and she alleges no facts that Defendant himself confined her.

Again, Plaintiff must prove her entitlement to damages, and she has failed to state any cognizable claim for damages against Defendant here. It follows that Plaintiff is also not entitled to punitive damages. “If the complaint does not state a cause of action or the allegations do not support a claim for relief, a default judgment is erroneous,” and “[i]t is well established a default judgment cannot properly be based on a complaint which fails to state a cause of action against the party defaulted.” (Grappo v. McMills (2017) 11 Cal.App.5th 996, 1015.)