Judge: Robert S. Draper, Case: 20STLC01042, Date: 2022-12-14 Tentative Ruling

Case Number: 20STLC01042    Hearing Date: December 14, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Defendant Wal Mart Inc.’s Motion to Dismiss is GRANTED.

FACTUAL BACKGROUND   

This is an action for breach of contract, negligence, and premises liability. The First Amended Complaint (“FAC”) alleges as follows. Plaintiff Nicole Jackson (“Plaintiff”) visited a Defendant WalMart Inc. (“WalMart”) store to make a purchase on February 2, 2018. (FAC ¶ 1.) Plaintiff’s credit card was declined, and Plaintiff left her items with the clerk and left the store several times to call the credit card company. (FAC ¶ 2.) Plaintiff was ultimately able to successfully make her purchase using her credit card. (FAC ¶ 2.) While exiting the store after making her purchase, WalMart security personnel grabbed Plaintiff’s shopping cart and refused to let go without Plaintiff showing a receipt. (FAC ¶ 3.) After a supervisor arrived, security let go of the cart and allowed Plaintiff to leave. (FAC ¶ 5.)

PROCEDURAL HISTORY

On February 3, 2020, Plaintiff filed the initial Complaint in the Limited Civil division asserting two causes of action:

1.    Breach of Contract;

2.    Negligence.

On January 14, 2021, Plaintiff filed the FAC asserting six causes of action and reclassifying to the Civil Unlimited division:

1.    Breach of Contract;

2.    Negligence;

3.    Violation of Civ. Code § 1714 – Negligent Hiring and Supervision;

4.    Premise Liability;

5.    Negligent Infliction of Emotional Distress; and

6.    Intentional Infliction of Emotional Distress.

On March 30, 2021, this case was reclassified to Civil Unlimited and reassigned to the instant Dept. 78.

On April 28, 2021, WalMart filed a Demurrer with Motion to Strike as to the First Amended Complaint.

On July 12, 2021, Jackson filed a Motion to Recuse and Disqualify presiding Judge Robert S. Draper.

On July 14, 2021, the Court struck Jackson’s Motion to Recuse the presiding judge.

On August 4, 2021, this Court sustained WalMart’s Demurrer with leave to amend as to the First through Fourth Causes of Action and Overruled the Demurrer as to the Fifth and Sixth Causes of Action. Additionally, this Court granted the Motion to Strike as to Plaintiff’s Prayer for Punitive Damages. Plaintiff has not filed a Second Amended Complaint.

On September 27, 2021, Plaintiff filed a second Motion to Recuse and Disqualify the Presiding Judge.

On October 12, 2021, the Court struck Plaintiff’s Statement of Disqualification.

On June 21, 2022, WalMart filed a Motion to Declare Vexatious Litigant.

On July 25, 2022, the Court granted WalMart’s Motion to Declare Plaintiff a Vexatious Litigant and ordered Plaintiff to post security in the amount of $31,080.00.

On August 5, 2022, WalMart filed the instant Motion to Dismiss.

On December 5, 2022, Plaintiff filed an Opposition.

On December 7, 2022, WalMart filed a Reply.

DISCUSSION 

                          I.          MOTION TO DISMISS

WalMart moves to dismiss the instant action pursuant to Code of Civil Procedure section 391.4.

Section 391.4 states, “[w]hen security has been ordered furnished is not furnished as ordered, the litigation shall be dismissed as to the defendant for whose benefit it was ordered furnished.”

Here, WalMart notes that on July 25, 2022, this Court ordered Plaintiff to furnish security in the amount of $31,080.00 by August 4, 2022. (Ex. 1.) Plaintiff was given notice of this Order on July 26, 2022. (Ibid.) As of the filing of the instant Motion, Plaintiff has not posted said security. (Colbert Decl. ¶ 6.)

In Opposition, Plaintiff argues that Judge Robert S. Draper is disqualified from presiding over the instant matter. Plaintiff notes that she attempted to file a Motion to Recuse as to Judge Draper on September 27, 2022. However, the instant Department 78 was dark on that date. Accordingly, Plaintiff filed the Motion to Recuse with the Civil Clerk in Room 102. Plaintiff argues that, as Judge Draper did not strike Plaintiff’s Statement of Disqualification within ten days of its service, Judge Draper is disqualified pursuant to Code of Civil Procedure section 170.3(c)(4).

However, as WalMart notes on Reply, section 170.3(c)(3) requires that the moving party personally serve the Judge who is alleged to be disqualified. As Plaintiff did not affect personal service on the presiding judge, Judge Draper is not disqualified from presiding over the instant matter, and Plaintiff’s argument is unavailing.

Accordingly, WalMart’s Motion to Dismiss pursuant to CCP section 391.4 is GRANTED.

DATED:  December 14, 2022

__________________________

Hon. Robert S. Draper 

Judge of the Superior Court