Judge: Margaret L. Oldendorf, Case: 23AHCV01188, Date: 2023-10-02 Tentative Ruling

Case Number: 23AHCV01188    Hearing Date: October 2, 2023    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

          I.        INTRODUCTION

          In this lawsuit, Plaintiff Emily Nagawa (Nagawa), who is African American,  alleges defamation and related claims against a grocery store. Nagawa alleges that Defendant Vallarta Supermarket (Vallarta) is patronized primarily by persons of Hispanic descent. She further alleges that when she patronized Vallarta, she was racially profiled while shopping there; and that after she paid for her items, the security guard followed her to the parking lot and confronted her and accused her of shoplifting.

          Vallarta demurs to the intentional infliction of emotional distress and Unruh Act causes of action; the demurrer is overruled as the pleading is sufficient. Vallarta’s motion to strike the prayer for punitive damages is granted, with leave to amend.

II.       SUMMARY OF FACTS ALLEGED

¶2       Nagawa has resided in California for over two years, and enjoys a good reputation both personally and occupationally.

¶4       Vallarta is located at 655 N. Fair Oaks in Pasadena.

¶8       Vallarta is predominantly patronized by people of Hispanic origin.

¶9       On April 5, 2023, at approximately 4:23 p.m., Nagawa entered the store to purchase groceries.

¶10     While she was shopping, Vallarta began racially profiling Nagawa because she is Black and/or African American.

¶¶11-14        When she finished shopping and went to the parking lot, Vallarta’s security guard followed her and falsely accused her of shoplifting. Nagawa produced the receipt, which the security guard disregarded. Vallarta then accused Nagawa of not paying for her groceries, accusing her of being a thief in the presence of over 20 shoppers. The security guard stated, “I was told she didn’t pay,” even after she produced the receipt.

¶¶15-17        Nagawa was shocked by the allegations because she has never stolen anything, and because even after producing the receipt, Vallarta proceeded to detain her.

¶24     But for Nagawa’s race and color, Vallarta would have acted differently.

          Based on these and additional factual allegations, the Complaint sets forth the following causes of action:

1. Slander and Slander Per Se

2. Negligence

3. Negligent Supervision

4. Intentional Infliction of Emotional Distress (IIED)

5. Violation of Civ. Code §§51 et seq. (Unruh Act).

III.     DEMURRER

A. Legal Standard

Code Civ. Proc. §430.10(e) provides for a demurrer on the basis that a complaint fails to state a cause of action. A demurrer admits, provisionally for purposes of testing the pleading, all material facts properly pleaded. Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1247. A demurrer tests the legal sufficiency of a complaint. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. 

Code Civ. Proc. §430.10(f) provides for a demurrer where a pleading is uncertain. Demurrers for uncertainty are disfavored, and are only sustained where a pleading is so incomprehensible a defendant cannot reasonably respond. A.J. Fistes v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695; Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.

          B. Meet and Confer Requirement Not Met

          The Declaration of Jasmine H. Ng, offered to demonstrate compliance with Code Civ. Proc. §430.41’s meet and confer requirement, shows only that an email was sent. The code requires the parties to meet and confer either in person or over the telephone. Code Civ. Proc. §430.41(a). Sending an email communication is insufficient. Failure to comply with the meet and confer requirement is not, however, grounds for overruling a demurrer. Code Civ. Proc. §430.41(a)(4).

          C. Demurrer to the IIED Cause of Action is Overruled

                     1. Elements

          The elements of an IIED cause of action are: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. To be “outrageous,” conduct must be “so extreme as to exceed all bounds of that usually tolerated in a civilized society.” Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.

          “In order to meet the first requirement of the tort, the alleged conduct ‘... must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.] Generally, conduct will be found to be actionable where the ‘recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” (Rest.2d Torts, § 46, com. d.)’ (KOVR–TV, supra, 31 Cal.App.4th at p. 1028, 37 Cal.Rptr.2d 431.)  . . .

          “There is no bright line standard for judging outrageous conduct and ‘... its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical....’ [Citation.]” (KOVR–TV, supra, 31 Cal.App.4th at p. 1028, 37 Cal.Rptr.2d 431.) Even so, the appellate courts have affirmed orders which sustained demurrers on the ground that the defendant’s alleged conduct was not sufficiently outrageous. (See, e.g., Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531, 536–537, 151 Cal.Rptr. 828.)” Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.

          “Whether a defendant’s conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous.” Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.

                     2. Facts Alleging the Elements

          The Complaint alleges that Nagawa was racially profiled and accused of being a thief; treatment that allegedly continued even after she produced a receipt. The Complaint alleges that Nagawa was publicly and wrongly accused of criminal conduct in front of 20 or so other customers, and that this occurred because of her race. Complaint at ¶¶8, 10-24.

                     3. Analysis

          This is not the kind of conduct that one should be expected to tolerate in a civilized society. Wrongfully and intentionally accusing a customer of shoplifting based on the customer’s race, and continuing to detain and accuse the customer after being presented with a receipt, could be found by a jury to be extreme and outrageous. Vallarta argues that according to the pleading, the security guard said, “I was told she didn’t pay” -- implying the security guard was only following directions. But the security guard is not the defendant. Vallarta is the defendant and it is Vallarta who is alleged to have continued to detain Nagawa even after she produced a receipt. It is Vallarta who is alleged to have treated Nagawa differently based on her race. The allegation of “racial profiling” is arguably conclusory, but the allegation of treating Nagawa differently based on her race is not. That is a factual allegation that must be accepted as true for purpose of the demurrer. Further, if it turns out that it was a Vallarta manager who told the security guard that Nagawa had not paid, the allegation could implicate Vallarta in the conduct itself.

          Vallarta further urges that the pleading lacks allegations demonstrating intent to injure. What is required is either intent or reckless disregard for the probability of causing severe emotional distress. That requirement is met. Complaint at ¶¶20, 27, 28, 29, 31, 49.

          D. Demurrer to the Unruh Cause of Action

                     1. Elements

1) defendant denied plaintiff full and equal services/facilities/privileges;

2) a substantial motivating purpose for defendant’s conduct was plaintiff’s sex, race, etc.;

3) plaintiff was harmed;

4) defendant’s conduct was a substantial factor in causing the harm. CACI 3060.

                     2. Facts Alleging the Elements

¶64     Vallarta targeted Nagawa and referred to her as a shoplifter or thief based on her race or color and the fact that she is not Hispanic;

¶65     The main and substantial reason and motivating factor for the Vallarta’s labeling of Nagawa as a thief and/or shoplifter, a criminal matter, based on Nagawa’s race, color and/or national origin as an African American, including the fact that she was not a member of the Hispanic race, the predominant shoppers at Vallarta;

¶68     As a direct and proximate result of Vallarta’s conduct, Nagawa experienced and continues to experience isolation, disdain, shame, anxiety, headaches, frustration, sleeplessness, embarrassment, mental anguish, mortification, neglect, shock, and severe emotional distress.

                     3. Analysis

          Vallarta urges that what is required for an Unruh claim is discriminatory intent, rather than the discriminatory impact of a business practice. But that is what is alleged here -- an intent to discriminate against Nagawa based on her race or color.

          Vallarta cites Coronado v. Cobblestone Village Community Rentals, L.P. (2008) 163 Cal.App.4th 831, 840, for the rule that “a plaintiff seeking to establish a cause of action for damages under the Unruh Civil Rights Act ‘must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act.’” But here, Nagawa has done so. Vallarta also relies on federal cases, including Nia v. Bank of America, N.A. (S.D. Cal 2022) 603 F.Supp.3d 894, 906, which states that an Unruh complaint must include some factual context to give rise to a plausible inference of discriminatory intent. There is no plausibility standard in state court, but in any case, the pleading does contain factual context supporting a plausible inference of discriminatory intent. Vallarta also cites Dallas and Lashmi, Inc. v. 7-Eleven, Inc. (C.D. Cal. 2015) 112 F.Supp.3d 1048, a case in which appellants lost their franchise and sued, in part, that it was due to racial discrimination. However there, the allegations included the fact that the appellants were in breach of their franchise agreement. Under those circumstances, “the bare possibility of discrimination based on speculation” was found to be insufficient. Here, the facts are that Nagawa had not shoplifted but was accused of it anyway, based on her race and the fact that she did not fit the profile of the store’s more typical shoppers.  

IV.     MOTION TO STRIKE

          A. Legal Standard

                     1. Motions to Strike

          Code Civ. Proc. §436: “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out 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.”

                     2. Punitive Damages

          Civ. Code §3294:

(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

B. The Motion to Strike Punitive Damages is Granted, With Leave To Amend

While the pleading contains facts demonstrating malice, and is therefore in that way sufficient to support a prayer for punitive damages, it falls short of what is required to allege punitive damages against an employer.

The following is alleged at ¶32: “All actions of Defendants, and each of them, their agents and employees, herein alleged were known, ratified and approved by the Defendants, and each of them. Plaintiff thus is entitled to recover punitive and exemplary damages from Defendants, and each of them, for these wanton, obnoxious, and despicable acts in an amount based on the wealth and ability to pay according to proof at time of trial.”

What is missing are allegations of conduct by an officer, director, or managing agent of Vallarta. Such person must either have advance knowledge of the unfitness of an employee, or must have ratified an employee’s conduct, or must him or herself have engaged in wrongful conduct on behalf of the corporation.

This is a defect that may be remedied by further amendment. Leave to amend is therefore granted.

V.       ORDER

          The demurrer is overruled. The motion to strike punitive damages is granted for failure to comply with the pleading requirements of Civ. Code §3294(b). Nagawa is granted 10 days to file an amended Complaint.

          Vallarta is ordered to give notice of ruling.

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT