Judge: Robert S. Draper, Case: 22STCV06049, Date: 2022-12-05 Tentative Ruling

Case Number: 22STCV06049    Hearing Date: December 5, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Defendants Rita Bocuzzi and Flourish’s Demurrer to the First and Second Causes of Action is OVERRULED. Defendants have thirty days to file an Answer.

Defendants Rita Bocuzzi and Flourish’s Demurrer to the Third and Fourth Causes of Action is SUSTAINED as the addition of those causes exceeded the limited leave to amend granted Plaintiffs.

FACTUAL BACKGROUND   

This is an action for violation of the Unruh Civil Rights Act. The operative First Amended Complaint (“FAC”) alleges as follows.

Defendant Rita Bocuzzi (“Bocuzzi”) is a financial expert doing business as Defendant Flourish (“Flourish” and together with Bocuzzi, “Movants”.) (FAC ¶¶ 12, 4.) Defendant Micaela A. Passeri (“Passeri”) is a motivational speaker doing business as Love You Revolution. (FAC ¶ 14, 6.)

Bocuzzi, Flourish, and Passeri posted an advertisement for a “Leveled Up Ladies” event (the “Event”) on www.eventbrite.com. (FAC ¶ 16.) The Event was to be hosted at Defendant California Fine Wine and Spirits, LLC’s (“Total Wine”) facility. (Ibid.) The Event was intended for “professional women” and focused on “accelerating [their] top-level skills for exceptional growth.” (FAC ¶ 18.)

Plaintiff Steve Frye (“Frye”) sent an email to Defendants stating that he had seen the advertisement and asking whether the Event was “for ladies only.” (FAC ¶ 19.) Defendants replied that the Event was a ladies only event, but that Defendants hosted events for all genders. (FAC ¶ 20.)

Frye and Plaintiff George St. George (“St. George”, and together with Frye, “Plaintiffs”) showed up for the Event at Total Wine and asked Total Wine’s employee if Plaintiffs could participate in the event. (FAC ¶ 25.) The employee responded that “the event was for ladies only.” (FAC ¶ 26.)

Plaintiffs allege that Defendants willfully and affirmatively intended to exclude men and non-binary persons from the Event. (FAC ¶ 34.)

PROCEDURAL HISTORY 

On February 17, 2022, Plaintiffs filed the Complaint asserting two causes of action:

1.    Violation of Civil Code § 51 – The Unruh Civil Rights Act; and,

2.    Violation of Civil Code § 51.5.  

On June 14, 2022, Movants filed a Demurrer to the Complaint.

On August 16, 2022, the Court sustained that Demurrer and granted Plaintiffs twenty days leave to amend.

On September 6, 2022, Plaintiffs filed the operative First Amended Complaint asserting four causes of action:

1.    Violation of Civil Code § 51 – The Unruh Civil Rights Act;

2.    Violation of Civil Code § 51.5;  

3.    Violation of Civil Code § 51.6 – The Gender Tax Repeal Act of 1995; and,

4.    Negligence.

On October 6, 2022, Movants filed the instant Demurrer to the First Amended Complaint.

On November 18, 2022, Plaintiffs filed an Opposition.

On November 28, 2022, Movants filed a Reply.

DISCUSSION 

                          I.          DEMURRER

Movants Demur to all causes of action in the First Amended Complaint pursuant to California Code of Civil Procedure section 430.10(e).

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) As is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)  

“In determining whether the complaint is sufficient as against the demurrer … if on 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.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) 

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. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.) 

A.   First and Second Causes of Action

First, Movants demur to the First and Second Causes of Action for Violation of Civil Code Section 51 – The Unruh Civil Rights Act (“Unruh”) and Violation of Civil Code Section 51.5, respectively.

No business establishment of any kind whatsoever shall discriminate against . . . any person in this state on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51 . . . because the person is perceived to have one or more of those characteristics, or because the person is associated with a person who has, or is perceived to have, any of those characteristics.” (Civ. Code § 51.5(a))

With the exception of ADA claims, “a plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act.”  (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1175 (superseded by statute on other grounds as explained in Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661.)   

Here, Movants argue that Plaintiff has not remedied the defects that caused the Court to sustain their Demurrer to the Complaint. In sustaining that Demurrer, the Court found that there was “no explanation whatsoever as to [Movants’] relationship to the other Defendants, to the events in question, to the Plaintiffs, or to the causes of action.” (August 16, 2022 Minute Order at p. 4.) The Court continued that “the Complaint provides no information regarding Flourish and Bocuzzi other than that they reside and do business in California. This is not sufficient to state a cause of action for anything.” (Ibid.)

In amending the Complaint, Plaintiffs add that Movants advertised the Event on www.eventbrite.com; that Plaintiffs saw Movants advertisement for the Event on that website; that Bocuzzi, Flourish, Passeri, and Total Wine were in a joint venture or partnership to host the Event; that the advertisement for the Event was targeted toward women only; that Frye emailed Defendants regarding the advertisement and was told that the event was for women only; and that Defendants, through a True Wine employee, denied Plaintiffs access to the Event. (FAC ¶¶ 15-20, 26.)

These additions adequately inform Movants of their alleged participation in the events constituting Plaintiffs’ First Amended Complaint and remedies the lack of clarity in the Complaint.

Next, Movants argue that Plaintiffs fail to include additional emails from Bocuzzi informing Frye of all of Movants upcoming events, including those intended for just women. However, as these emails are neither attached to the First Amended Complaint nor judicially noticeable, it is improper for the Court to consider them on Demurrer.

Next, Movants contend that the First Amended Complaint contains no allegations as to St. George’s involvement in the Event. However, Plaintiffs allege that both Plaintiffs were denied entry to the Event. (FAC ¶¶ 25-26.)

Next, Movants contend that Bocuzzi cannot be held liable under Unruh, as Unruh applies only to “business establishments,” and an individual cannot constitute a business establishment. However, the FAC alleges that Bocuzzi does business as business establishment Flourish. (FAC ¶ 4.) As the term “business establishment” must be interpreted “in the broadest sense reasonably possible,” this allegation is sufficient to establish liability as to Bocuzzi at the pleading stage. (See Doe v. California Lutheran High School Association (2009) 170 Cal.App.4th 828, 837.)

Next, Movants contend that the First Amended Complaint does not allege that Plaintiffs were denied entry into the event, or that they were in any way treated differently based on their gender. However, the First Amended Complaint alleges that when Plaintiffs asked whether they could attend the Event, they were told by a Total Wine employee that “the event was for ladies only.” (FAC ¶ 26.) Accordingly, the FAC alleges that Plaintiffs were denied access to the Event based solely on their gender.

Finally, Movants argue that for Plaintiffs to successfully state a claim under Unruh or Civil Code section 51.5, they must allege “that irrelevant differences between men and women were emphasized and that stereotypes were perpetuated.” Movants cite to Cohn v. Corinthian Colleges, Inc. (2008) 169 Cal.App.4^th 523 to support this contention.

However, Cohn was decided on summary judgment, following discovery, and the Cohn Court explicitly noted that “[t]he intent analysis must be individually applied to the particular facts present.” (Cohn at p. 530.) Here, unlike Cohn, the facts relevant to Movants’ alleged decision to exclude men from the Event have not been established, and therefore the Court cannot rule on that matter at the pleading stage as a matter of law.

Accordingly, Movants’ Demurrer to the First and Second Causes of Action is OVERRULED.

B.   Third and Fourth Causes of Action

Next, Movants demur to the Third and Fourth Causes of Action for Violation of Civil Code Section 51.6 and Negligence, respectively. Movants note that these causes of action were added following the Court’s granting of limited leave to amend so that Plaintiffs could add details regarding Defendants’ relationship to the events in question. Movants contend that Plaintiffs exceeded this limited leave by adding the Third and Fourth Causes of Action.

“It is the rule that when a trial court sustains a demurrer with leave to amend, the scope of the grant of leave is ordinarily a limited one. It gives the pleader an opportunity to cure the defects in the particular causes of action to which the demurrer was sustained, but that is all. [Citation.]” (Community Water Coalition v. Santa Cruz County Local Agency Formation Com. (2011) 200 Cal.App.4th 1317, 1329.) “The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.”¿(Harris v. Wachovia Mortgage, FSB¿(2010) 185 Cal.App.4th 1018, 1023.) This is also generally true of attempts to take advantage of leave to amend to add a new party. (People By & Through Dep’t of Public Works v. Clausen (1967) 248 Cal.App.2d 770, 783-786.) 

Here, the Third and Fourth Causes of Action clearly exceed the limited leave to amend the Court granted Plaintiffs in sustaining the Demurrer to the Complaint. Should Plaintiffs seek leave to add additional causes of action, they must do so pursuant to a motion complying with CCP Section 473 and California Rules of Court rule 3.1324.

Accordingly, Movants’ Demurrer to the Third and Fourth Causes of Action is SUSTAINED without leave to amend.  

DATED: December 5, 2022 

____________________________

Hon. Robert S. Draper 

Judge of the Superior Court