Judge: Olivia Rosales, Case: 21STCV15757, Date: 2022-11-08 Tentative Ruling

DEPARTMENT SE-C LAW & MOTION PROCEDURES ARE AS FOLLOWS: APPEARANCES: The Court will hear oral arguments on all matters at the scheduled time of hearing. If all counsel intend to submit on the Tentative Order and do not want oral argument, please advise the clerk, in Department “C”, by calling (562-345-3702). If all sides submit on the Tentative Order and the clerk is so advised, the Tentative Order will become the final order of the court and the prevailing party shall give written Notice of Ruling per CRC 3.1312. If the Moving and Responding parties do not agree to submit on the Tentative Order, the motion will be called as calendared for hearing. There is no need to contact Department “C”, as the matter will remain on calendar for hearing. If the Moving party does not call Department “C” to submit on the Tentative Order and there is no appearance by any party, then the motion(s), at the Court’s discretion, may be taken off calendar without ruling on the motion(s). ORDERS: The minute order reflecting the Court’s Order will constitute the final Order. No additional orders should be submitted to the Court for signature unless required by law or by the Court. Prevailing party shall give written Notice of Ruling per CRC 3.1312. Minute orders, which constitute the final Order of the Court, will only be sent to the parties via U.S. mail  for the following: OSC re: sanctions, OSC re: contempt or matters taken under submission after oral arguments or briefing. Counsel or parties may request copies of all other minute orders/final orders either at the clerk’s office or in writing. If a request is in writing, a self-addressed stamped envelope and the appropriate fee for copies shall be submitted.

Case Number: 21STCV15757    Hearing Date: November 8, 2022    Dept: SEC

KINGSBURY v. THE KROGER CO. et al. 

CASE NO.:  21STCV15757  

HEARING:¿ 11/8/22 

JUDGE:  MARGARET M. BERNAL

#2

TENTATIVE ORDER 

I.             Defendant Ralph’s Grocery demurrer to plaintiff’s first amended complaint is SUSTAINED with leave to amend.  

II.            Defendant Ralph’s Grocery motion to strike plaintiff’s first amended complaint is MOOT.

Moving Party to give NOTICE.  

Defendant Ralph’s Grocery Company d/b/a Food 4 Less demurs to the second cause of action on the ground that it fails to state facts sufficient to constitute a cause of action.

Plaintiff Rosa Kingsbury alleges that on April 24, 2020, Plaintiff was on the premises of Defendants’ grocery store. While shopping, a pallet holding the food gave way, causing physical injuries to Plaintiff, including a fractured hand. (FAC ¶ 11.) Plaintiff alleges that the store employees intentionally refused to assist her, refused to investigate the claims, refused to call for medical services, refused to take an accident claim, refused to treat her with dignity and respect, and when she asked for help, the employees humiliated Plaintiff by asking her “don’t you have kids to help you?” (FAC ¶ 20.)

Plaintiff filed the initial complaint on April 27, 2021. On March 1, 2022, this Court sustained Defendants’ demurrer as to the second cause of action for Violation of the Unruh Civil Rights Act, giving Plaintiff 20 days leave to amend. On March 21, 2022, Plaintiff filed the operative First Amended Complaint (FAC). The FAC asserts causes of action for:

1.    Negligence

2.    Violation of the Unruh Civil Rights Act.

Defendant again demurs to the second cause of action for Violation of the Unruh Civil Rights Act.

SECOND CAUSE OF ACTION: VIOLATION OF UNRUH CIVIL RIGHTS ACT

Cal. Civ. Code § 51(b), or the Unruh Civil Rights Act, states “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race… ancestry, national origin… marital status… are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” The Act broadly outlaws arbitrary discrimination in public accommodations. (Jankey v. Lee (2012) 55 Cal.4th 1038, 1044.) A plaintiff seeking to establish a case under the Act must plead and prove intentional discrimination in public accommodations. (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 854.)

The essential elements of a cause of action for a violation of the Unruh Civil Rights Act are: (1) defendant is a business establishment, (2) defendant intentionally denied plaintiff accommodations, 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 (4) defendant’s conduct was a substantial factor in causing plaintiffs 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.)

The Court finds that Plaintiff has plead no additional facts in the amended complaint that would support a cause of action for violation of the Unruh Civil Rights Act. Plaintiff alleges that she is “a protected individual, older single Hispanic woman” (FAC ¶ 26), but Plaintiff’s allegations of discrimination are conclusory and do not provide sufficient facts showing that Defendants were motivated to refuse to assist Plaintiff or investigate her claim based on a Plaintiff’s age, marital status, or ancestry.

Plaintiff states that the employees humiliated her by asking her “don’t you have kids to help you?” (FAC ¶ 20). Additionally, Plaintiff states that Defendants required her granddaughter’s presence before they agreed to assist her with the accident report. (FAC ¶ 21.) These facts, on their own, do not show that defendant was motivated by Plaintiff’s age, marital status, or ancestry to refuse to assist Plaintiff. Someone with kids could be young, old, single, married, or of any ancestry. Additionally, requiring Plaintiff’s granddaughter to be present is not indicative of discrimination. Plaintiff has not shown that she received unequal treatment because of her age, marital status, or ancestry.

Accordingly, Defendants’ demurrer to the second cause of action is SUSTAINED. Because the Court has already given Plaintiff leave to amend once, and the FAC has the same deficiencies as the original complaint, the Court gives Plaintiff only one more opportunity to amend the complaint to include facts showing defendant’s discriminatory motivation. The Court gives Plaintiff 20 days to file an amended complaint.

The accompanying motion to strike attorney’s fees and punitive damages is MOOT in light of the court’s grant of leave to amend.