Judge: Michael E. Whitaker, Case: 23SMCV02791, Date: 2023-12-13 Tentative Ruling

Case Number: 23SMCV02791    Hearing Date: December 13, 2023    Dept: 207

TENTATIVE RULING

BACKGROUND

Plaintiff Kimberly Tucker’s (“Plaintiff”) business entity previously filed suit against Defendant City National Bank, N.A., alleging (1) race and color discrimination; (2) retaliation; (3) failure to prevent discrimination and retaliation; (4) unfair business practices; (5) intentional infliction of emotional distress; and (6) fraud and deceit for allegedly discriminating against it three times in five years for exercising its “freedom of speech” by “making a complaint about being mistreated.”  (See LAX Snak Trak Vending v. City National Bank, Los Angeles Superior Court Case No. 23STCV00130.)  The Court sustained Defendant’s unopposed demurrer to that complaint with leave to amend, on the basis that it was uncertain, and noted that Plaintiff cannot appear or file pleadings in pro per on behalf of the business, which can only be represented by a licensed attorney.  (Case No. 23STCV00130, May 11, 2023 Minute Order.)  Upon the entity’s failure to timely amend, the Court granted Defendant’s ex parte application to dismiss for failure to prosecute.

Plaintiff now brings this suit, again in pro per, but in an individual capacity, alleging three causes of action for (1) discrimination; (2) retaliation re a complaint; and (3) unlawful business practices, stemming from Defendant’s alleged racial discrimination in denying Plaintiff a business and CD account and retaliation for Plaintiff’s prior complaints of unfair treatment.

Defendant has demurred to all three causes of action on the basis that they fail to state a cause of action and are uncertain pursuant to Code of Civil Procedure 430.10, subdivisions (e) and (f).  Plaintiff opposes the demurrer[1] and Defendant replies.

MEET AND CONFER REQUIREMENT

            Code of Civil Procedure section 430.41, subdivision (a) requires that “before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” 

The statute further requires “As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.”  (Code Civ. Proc., § 430.41, subd. (a)(1).)  “The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.”  (Ibid.)

“The parties shall meet and confer at least five days before the date the responsive pleading is due.  (Code Civ. Proc., § 430.41, subd. (a)(2).)  “The demurring party shall file and serve with the demurrer a declaration stating either” the means by which the parties met and conferred, or that the party who filed the pleading subject to demurrer failed to respond to the meet and confer request.  (Id., subd. (a)(3).) 

Here, Defendant provided an attorney declaration indicating that on October 5, 2023, Defendant’s counsel sent Plaintiff an email, requesting a meet and confer call, but Plaintiff responded:  “I will not meet and confer as you have already stated your stance!”  (Ovsepian Decl. ¶ 2, Exh. 1.) 

Accordingly, the Court determines that Defendant has satisfied the meet and confer requirement.

ANALYSIS

1.      DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if one consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A.    UNCERTAINTY

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her.  (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)  Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers.  (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.) 

“[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)  Demurrers for uncertainty are strictly construed, “because ambiguities can reasonably be clarified under modern rules of discovery.”  (Ibid.)

Moreover, “the Code of Judicial Ethics requires judges to treat all litigants fairly.”  (Nuño v. California State University, Bakersfield (2020) 47 Cal.App.5th 799, 810.)  “A judge shall dispose of all judicial matters fairly, promptly, and efficiently. A judge shall manage the courtroom in a manner that provides all litigants the opportunity to have their matters fairly adjudicated in accordance with the law.”  (Ibid.)  Notwithstanding, “[t]he obligation of a judge to dispose of matters promptly and efficiently must not take precedence over the judge's obligation to dispose of the matters fairly and with patience.”  (Ibid.)  “For example, when a litigant is self-represented, a judge has the discretion to take reasonable steps, appropriate under the circumstances and consistent with the law and the canons, to enable the litigant to be heard.”  (Ibid.)  “Providing access to justice for self-represented litigants is a priority for California courts.”  (Cal. Rules of Court, rule 10.960(b).)

While the Court agrees that the Complaint could be clearer in terms of the causes of action and allegations, it declines to sustain the demurrer on the basis of uncertainty.  Construing the allegations of the Complaint in the light most favorable to Plaintiff, especially in consideration of the fact that Plaintiff is self-represented, the Court does not find the Complaint so ambiguous that Defendant cannot reasonably determine what issues must be admitted or denied, or what claims are directed against it. 

Specifically, as Defendant points out, Plaintiff’s first cause of action appears to state a claim for racial discrimination in violation of the Unruh Civil Rights Act.  (Demurrer at p. 8.)  Similarly, as to the second cause of action for retaliation, the Unruh Civil Rights Act bars retaliation for filing discrimination complaints.  (See, e.g., Vaughn v. Hugo Neu Proler Int’l (1990) 223 Cal.App.3d 1612.)  And a cause of action for “unlawful business practices” appears to state a claim under California’s Unfair Business Practices Act (Bus. & Prof. Code, §§ 17200, et seq.) pursuant to the unlawful prong.

The Court thus declines to sustain Defendant’s demurrer on the basis of uncertainty. 

B.     FAILURE TO STATE A CAUSE OF ACTION

                                                                    i.            First Cause of Action – Discrimination

In order to state a cause of action for discrimination under the Unruh Civil Rights Act, a plaintiff must allege (1) defendant denied, aided or incited a denial of, discriminated, or made a distinction that denied full and equal accommodations, advantages, facilities, privileges, and/or services to plaintiff; (2) a substantial motivating reason for defendant’s conduct was plaintiff’s sex, race, color, religion, ancestry, national origin, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, and/or immigration status or defendant’s perception thereof; (3) that plaintiff was harmed; and (4) that defendant’s conduct was a substantial factor in causing plaintiff’s harm.  (See CACI No. 3060.)

Here, Plaintiff alleges Defendant “racially and retalitoratly” [sic] discriminated against Plaintiff by denying “opening a Business and CD account at City National Bank on 3 separate visit [sic] at 3 different location [sic] in a 5 year time span.”  (Complaint at p. 2:1-4.)  Thus, Plaintiff has alleged sufficient facts with respect to the first two elements. 

However, the Complaint does not allege any harm Plaintiff has suffered, or how Defendant’s allegedly discriminatory conduct caused Plaintiff’s harm.  Therefore, Plaintiff has failed to plead the third and fourth elements to establish a discrimination claim under the Unruh Civil Rights Act. 

                                                                  ii.            Second Cause of Action – Retaliation Re a Complaint

As discussed above, the Unruh Civil Rights Act also bars retaliation for filing discrimination complaints.  (See, e.g., Vaughn v. Hugo Neu Proler Int’l (1990) 223 Cal.App.3d 1612.)  Here, Plaintiff alleges that Defendant’s corporate office sent Plaintiff “a letter confirming I was flagged to not open account [sic] because I made a complaint years ago.”  (Complaint at p. 2:22-27.)

However, because the Complaint does not contain allegations of any harm Plaintiff suffered, or a causal connection between Defendant’s alleged retaliatory conduct and any harm, Plaintiff has similarly failed to satisfy the third and fourth elements of a retaliation claim under the Unruh Civil Rights Act.

                                                                iii.            Third Cause of Action – Unlawful Business Practices

Business & Professions Code section 17200, known as the Unfair Competition Law, or “UCL,” bars unfair competition, defined as “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.  “An unlawful business practice or act within the meaning of the UCL is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law.”  (Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 351.)  “By proscribing any unlawful business practice, section 17200 borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.”  (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.)  Moreover, “a practice may be deemed unfair even if not specifically proscribed by some other law.”  (Ibid.)

Here, Plaintiff alleges unlawful discrimination and retaliation.  However, in order to have standing to bring a UCL claim, a plaintiff must “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.”  (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322.)

Because Plaintiff has not alleged any economic injury, or that Plaintiff’s harm was caused by Defendant’s alleged unlawful business practices, Plaintiff has failed to state a claim under the Unfair Competition Law for unlawful business practices.

2.      LEAVE TO AMEND

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

In opposition to Defendant’s demurrer, Plaintiff provides additional details regarding Defendant’s alleged discrimination and retaliation:

·         “I have tried in the past and present to resolve this hatred I I [sic] endured by the location staffers and managers.”  (Opp. at p. i, lines 17-19.)

·         “I later received a letter from the headquarters branch Manager stating I was flagged for making a complaint almost 4 years ago.”  (Opp at p. i, lines 21-25.)

·         “I never knew Iwas [sic] flagged for reporting the way I was racially harassed at the Santa Monica Branch by Jennifer Rudea.”  (Opp. at p. i, lines 24-28.)

·         “Plaintiff has unfairly treated as a black small business owner and single mom.” (Opp. at p. ii, lines 6-8.)

·         “I was talked down to, dismissed, dragged with verbal language, laughed upon, embarrassed in front of others inside of bank [sic], asked 100 questions not pertained [sic] to banking, my business, documents needed for account [sic], my deposit, money, etc.”  (Opp. at p. ii, lines 11-17.)

·         “I was literally asked to leave 2 branches because I asked questions and was protecting the conversation.”  (Opp. at p. ii, lines 17-19.)

·         “The last branch in Palisades, left me with “We prefer not to do business with you”. [sic] after they took everything needed to open my 2 accounts and never returned any of my private documents.”  (Opp at p. ii, lines 18-23.)

·         “I was also threaten [sic] with law enforcement due to my cashier check being deposited for 70,000.” (Opp. at p. iii, lines 11-13.)

·         “I was wrongfully ‘flagged’ for making a report and protecting myself and future people of color.”  (Opp. at p. iii, lines 15-19.)

·         “Bob Martinez was the branch manager that said ‘we prefer not to do business with people like you’ as this was relayed by teller [sic] over the phone when I called to ask about status [sic] of my new account 3 weeks later.”  (Opp at p. iii, lines 21-26.)

·         “City National Bank Flagging [sic] my name is proof that I was racially targeted.”  (Opp. at p. iv, lines 4-6.)

·         “City National did this others [sic] and had to pay 31 million.”  (Opp. at p. iv, lines 14-16.)

With regard to damages, the opposition provides the following additional facts:

·         “I am again asking for 3 million in damages.”  (Opp. at p. ii, line 28.)

·         “The discuss [sic] I have felt with this Bank had left me discouraged, defeated, in therapy, my reexamining myself [sic] worth, feeling like a failed business owner, a set back [sic] when I was questioned about friends family strangers [sic] in order to get a bank account possibly opened.”  (Opp. at p. iii, lines 6-12.)

·         “I was also threaten [sic] with law enforcement due to my cashier check being deposited for 70,000.”  (Opp. at p. iii, lines 11-13.)

·         “City National Bank not only emotionally, racially, pain and distress, tormented, sabotaged, accusatory re my 70,000 cashier check for deposit, without any proof of explanation or proof.”  [sic] (Opp. at p. iv, lines 5-10.)

·         “My business has taken a harsh financial hit due to the prior case.”  (Opp. at p. iv, lines 17-19.)

Therefore, Plaintiff has sufficiently identified additional facts that could be added to the Complaint to further clarify the allegations of discrimination and retaliation and to address the deficiencies identified by the Court with respect to causation and damages.    

CONCLUSION AND ORDER

For the reasons stated, the Court sustains Defendant’s demurrer to all three causes of action with leave to amend. 

Further, the Court orders Plaintiff to file and serve an amended complaint in conformance with the Court’s ruling on or before January 17, 2024.    

Defendant shall provide notice of the Court’s ruling and file a proof of service regarding the same. 

DATED:  December 13, 2023                                                ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court