Judge: Rafael A. Ongkeko, Case: 20STCV07929, Date: 2022-10-19 Tentative Ruling

Case Number: 20STCV07929    Hearing Date: October 19, 2022    Dept: 73

Le’Eldred Palm Sr. v. Red Lobster Hospitality LLC

Counsel for Defendant/moving party: Shareef S. Farag, Amy E. Beverlin, Kerri H. Sakaue (Baker & Hostetler LLP)

Counsel for Plaintiff/opposing party: Le’Eldred Palm Sr., pro per

DEMURRER TO FIRST AMENDED COMPLAINT WITH MOTION TO STRIKE

(filed 08/29/2022)

TENTATIVE RULING

Defendant’s Demurrer is SUSTAINED in part. 

Defendant’s Motion to Strike is GRANTED in part.

Leave to amend is granted.  

Background

This is a civil rights action filed by Plaintiff Le’Eldred Palm Sr. (“Plaintiff”) against Defendant Red Lobster Hospitality LLC (“Defendant”). According to Plaintiff’s First Amended Complaint (“FAC”), he suffered race and sex discrimination, threats of violence, and battery by Red Lobster employees as a patron of a Red Lobster restaurant. Plaintiff alleges that an unidentified Red Lobster bartender’s use of the term “boss” as directed to Plaintiff constituted race and sex discrimination. (FAC ¶¶ 10-44.) During the same visit to Red Lobster, Plaintiff alleges that he was “offended by [a Red Lobster employee’s] aggressive tapping on his shoulder.” (FAC ¶ 58.) On another occasion, Plaintiff alleges that Red Lobster manager Michael Waller (“Waller”) threatened him with violence by stating that “if [Plaintiff] spoke to any African Americans in the restaurant about their civil rights that he has instructed his staff to call the Sheriff’s Department to have [Plaintiff] remove from the restaurant (sic)”. (FAC ¶ 194.)

The FAC alleges four causes of action: (1) intentional discrimination in violation of the Unruh Civil Rights Act (“Unruh Act”); (2) intentional sex discrimination in violation of the Unruh Act; (3) intentional battery; and (4) violation of the Tom Bane Civil Rights Act (“Bane Act”).

On August 29, 2022, Defendant filed a Demurrer and Motion to Strike the FAC. Plaintiff filed opposition on October 7, 2022, and Defendant replied on October 11, 2022.

ANALYSIS

Defendant demurs to the FAC in its entirety for two reasons: (1) each cause of action fails to state facts sufficient to constitute a claim, and (2) each cause of action is impermissibly uncertain.

A.    Legal Standard for Demurrer

A demurrer tests the sufficiency of whether the complaint states a cause of action. (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.)¿When considering demurrers, courts read the allegations liberally and in context—any defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co.¿(2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn, supra, 147 Cal.App.4th at p. 747.)

I.                   Violations of the Unruh Act

Defendant argues that the FAC fails to state a claim for violation of the Unruh Act for two reasons. First, the FAC does not contain any allegations that Plaintiff was denied service because of his race. Second, the FAC makes clear that Defendant’s alleged conduct was undertaken for the purpose of maintaining order which is not precluded by the Unruh Act. Plaintiff argues conclusory that the first cause of action clearly alleges sufficient facts.

The elements of a claim for violation of the Unruh 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.)

Plaintiff was not denied service because of his race or sex.

The first and second causes of action is predicated on the bartender’s use of the term “boss.” According to Plaintiff, “boss” is a “stereotypical discriminatory and derogatory racial term.” (FAC ¶¶ 10-36, 129.) The bartender overheard a conversation between Plaintiff and another African American man “pertaining to African American men being intentionally stereotyped using the term ‘boss,’ as a stereotypical racial epithet to address African American men in public accommodations.” (FAC ¶ 17.) Further, the bartender used the term “with malice” by “intentionally stating to Mr. Palm, ‘there you go boss’” after overhearing the conversation. (FAC ¶ 18.) The court accepts these allegations as true on this demurrer. 

The Court finds that the FAC fails to allege facts sufficient to state a claim. While the FAC alleges Defendant’s use of a “stereotypical discriminatory and derogatory racial term,” the FAC fails to establish that Plaintiff was denied service, facilities, or privileges because of his race or sex. Rather, the FAC states that the bartender served the drinks to Plaintiff and that Plaintiff “patronized the Red Lobster restaurant several times over several weeks” after the incident with the bartender. (FAC ¶¶ 18, 45.)

Moreover, Plaintiff does not connect the use of the “discriminatory and derogatory racial term” to the three instances that he was allegedly denied services. Plaintiff alleges that a Red Lobster employee tapped him on the should and stated “we have to ask you to leave” soon after Plaintiff accidentally knocked over a wine glass. (FAC ¶¶ 55-59.) On another occasion, a Red Lobster employee whispered in Plaintiff’s ear, “You are no longer welcome at the restaurant.” (FAC ¶ 84.) Later, Waller stated to Plaintiff “you are not allowed to enter the restaurant today; you can come back tomorrow to discuss entering the restaurant.” (FAC ¶ 96.) At no point does Plaintiff connect his race or sex to the alleged denial of services. Thus, in this complaint, Plaintiff does not set forth sufficient facts to satisfy the second and third elements of an Unruh Act violation claim.

            Accordingly, the Court SUSTAINS the Demurrer as to the first and second causes of action.

II.                Intentional Battery

The intentional battery cause of action is predicated on an unknown Red Lobster employee’s aggressive tapping on Plaintiff’s shoulder. To establish a claim of intentional battery, a plaintiff must prove (1) that the defendant touched Plaintiff with the intent to harm or offend him; (2) that the plaintiff was harmed or offended by the defendant’s conduct, and (3) that a reasonable person in plaintiff’s situation would have been offended by the touching. (California Jury Instructions (“CACI”) No. 1300.) Defendant argues that this cause of action is barred by the statute of limitations because Plaintiff alleged the claim for battery more than two years after the alleged incident occurred on or about March 8, 2018.

The Court disagrees with Defendant. In the initial complaint, Plaintiff alleges that “a Caucasian young man tapped [Plaintiff] on his left shoulder and told [Plaintiff] ‘we have to ask you to leave.’” (Complaint ¶ 49.) The initial complaint was based on the same operative set of facts as the present complaint. Indeed, the original complaint contains the  allegations giving rise to a claim for intentional battery.  (See Pointe San Diego v Propocio (2011) 195 Cal.App.4th 265, 277[“An amended complaint relates back to an earlier complaint if it is based on the same general set of facts, even if the plaintiff alleges a different legal theory or a new cause of action.”]; Rutter Group, Civil Procedure Before Trial, 6:735.) In Webb v Olive Garden (2009) 2009 WL 734667, the court dismissed the battery cause of action because the “complaint [did] not allege that any of the Defendants ever had contact with Plaintiff.” (Id. at * 3.) Webb, an unpublished federal case, does not support Defendant.

Accordingly, the Court OVERRULES  the Demurrer as to the third cause of action.

III.             The Bane Act

The fourth cause of action is based on violation of the Bane Act. Plaintiff alleges that Waller “used intimidation and coercion against [Plaintiff]” by permitting Plaintiff “to sit [only] at the bar when patronizing the restaurant and that if he spoke to anyone in the restaurant area [about their civil rights] the Sheriff’s would be called to have him removed.” (FAC ¶¶ 148, 194, 195.) Defendant argues that the claim fails because the FAC does not sufficiently allege that Plaintiff was subject to any threat, intimidation, or coercion as required by the Bane Act. Further, Defendant  argues in conclusory fashion that the fourth cause of action clearly alleges sufficient facts.

The elements of a claim for a Bane Act violation 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 exercised his constitutional rights the defendant would commit violence against him or his property, or the defendant injured the plaintiff or his property to prevent him from exercising his constitutional rights or retaliated against the plaintiff for having exercised his 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. (2007) 149 Cal.App.4th 860, 882.) “The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law[.]” (Austin B., 149 Cal.App.4th at p. 883.)

The FAC fails to allege facts sufficient to satisfy the first element. Except for paragraph 197, the fourth cause of action as pleaded in the FAC mirrors the original complaint. Paragraph 197 states: “[Plaintiff] perceived Michael Waller’s speech as a treat of violence against him and caused him to become fearful of patronizing Red Lobster, because Michael Waller had to means to carry out is threat violence against him (sic).” Case law does not support the contention that threats to call law enforcement constitutes a threat of violence. Nor can a warning to Plaintiff that law enforcement would be called if he spoke to patrons at the restaurant about civil rights be construed as a threat, intimidation, or coercion under the law. Such a warning is a type of speech that does not constitute an egregious interference with constitutional rights that the Bane Act was intended to address. (See, e.g., Ctr. for Bio-Ethical Reform, Inc. v. Irvine Co., LLC (2019) 37 Cal.App.5th 97, 115 (holding that a retailer who communicated to anti-abortion activists that they would be treated as trespassers if they failed to engage in picketing activity in a courteous and peaceful manner did not engage in “egregious interference.”) 

            Accordingly, the Court SUSTAINS the Demurrer as to the fourth cause of action.

IV.             Leave to Amend

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.)

Although the Court has sustained a demurrer once before, the Court GRANTS leave to amend as to the first, third and fourth causes of action.

V.                Motion to Strike

A motion to strike lies only where the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws.¿ (Civ. Proc. Code § 436.)¿ The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.¿ (Id. § 437.)¿¿¿

Defendant requests the Court to strike the following portions of the FAC on the grounds that they are improper and/or irrelevant and do not conform with CCP §§ 435, 436, and 437:

1.      Paragraphs 5 and 6 of the FAC, in which Michael Waller and Robert Gagnon are identified as “Defendants.”

2.      Plaintiff’s Second Cause of Action for violation of the Unruh Civil Rights Act due to intentional sex discrimination (FAC at ¶¶ 139-151 (in their entirety)).

3.      Plaintiff’s Third Cause of Action for intentional battery (FAC at ¶¶ 152-155 (in their entirety)).

As a threshold matter, given the rulings on the  Demurrer as to the second and third causes of action, the Motion to Strike is mooted as to those claims.

1.      Paragraphs 5 and 6

Defendant moves to strike paragraphs 5 and 6 because they are irrelevant and improper.  Paragraphs 5 and 6 identify Waller and Gagnon as “Defendants” but are not parties to this action. Nor does Plaintiff assert any causes of action against those individuals. However, Plaintiff states in his opposition that he inadvertently left in paragraphs 5 and 6 from the original complaint.

Accordingly, the Court GRANTS the motion to strike as to Paragraphs 5 and 6.

Conclusion

The Demurrer is sustained as to the first, second, and fourth causes of action with 30  days leave to amend.

The Motion to Strike is granted as to paragraphs 5 and 6 with  leave to amend  in 30 days.  

            Moving party to give notice.