Judge Teresa A. Beaudet, Case 20STCV01544 2023-02-22 Tentative Ruling

MIKE YESSIAN, et al. Plaintiff, vs. GARFIELD BEACH CVS LLC, et al. Defendants.	Case No.:	20STCV01544
	Hearing Date:	February 22, 2023
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Plaintiffs Mike Yessian and Mandi Martinez filed this action on January 13, 2020 against Defendant Garfield Beach CVS LLC. On August 4, 2021, Plaintiffs Michael Yessian (“Yessian”) and Mandi Martinez (“Martinez”) (jointly, “Plaintiffs”) filed the operative Second Amended Complaint (“SAC”) against Defendants Garfield Beach CVS LLC dba CVS Pharmacy Store and Deborah Padilla, asserting causes of action for (1) discrimination in violation of the Unruh Act; (2) defamation per se; (3) intentional infliction of emotional distress, and (4) negligent hiring, supervision, or retention of employee.

Garfield Beach CVS, LLC (“CVS”) and Deborah Padilla (“Padilla”) (jointly, “Defendants”) now move for summary judgment, or in the alternative, summary adjudication. Plaintiffs oppose.

On January 4, 2023, the Court issued a minute order providing, inter alia, that “[t]he hearing on the Motion for Summary Judgment is continued to address the punitive damages

issue as to Defendant Padilla only. Plaintiff agrees to the tentative (i.e. granting the MSA) regarding Defendant CVS as to punitive damages. Because the issue of punitive damages was set forth in a footnote on page 29 of the motion, the Court is allowing a response thereto of up to five pages plus any relevant evidence to be filed and e-served on or before January 11, 2023. Defendant Padilla’s response thereto must be filed and e-served on or before January 19, 2023. Courtesy copies are to be delivered by each party to Department 50 on the day of their filing. The rest of the Court’s tentative will not be changed. On the Court’s own motion, the Hearing on Motion for Summary Judgment scheduled for 01/04/2023 is continued to 02/22/23…”

On January 10, 2023, Plaintiff filed a Supplemental Brief in Opposition to Defendants’ Motion for Summary Judgment, or in the Alternative, Summary Adjudication. On January 19, 2023, Padilla filed a Response to Plaintiffs’ Supplemental Brief Re Punitive Damages.

The Court rules on the parties Joint Statement Re Evidentiary Objections in Support of and Opposition to Defendants’ Motion for Summary Judgment as follows:

Objection No. 5 (p. 29:1-30:6): sustained as to “the Police were on their way,” overruled as to the remainder.

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ((Code Civ. Proc., § 437c, subd. (c).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” ((Id., § 437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid. .)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ((Ibid. .) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ((Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

When a defendant seeks summary judgment or summary adjudication, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. ((Code Civ. Proc., § 437c(p)(2).)

In the SAC, Plaintiffs allege that on November 15, 2019, they visited CVS’s store located at 775 E. Foothill Blvd., Pomona, CA 91767. (SAC, ¶ 7.) After entering the store, Martinez needed to use the restroom but was told by the store’s manager, William Pineda (“Pineda”), that the restroom was unavailable because it was being cleaned. (SAC, ¶ 8.)

Yessian then asked Padilla, an employee of CVS, if she had seen Martinez. (SAC, ¶¶ 4, 9.) Yessian alleges that Martinez is his fiancé. (SAC, ¶ 10.) Padilla responded by saying “you mean the short fat Mexican with a purse?” (opening her arms as if to demonstrate Martinez’s size). (SAC, ¶ 9.) Padilla then stated that “she [Martinez] left with her stuff and whatever else she took” implying that Martinez had stolen items. (SAC, ¶ 9.) Padilla then went on to state, “if you have taken any stuff, remove them from your bag now as the Cops are on their way.” (SAC, ¶ 9.) Yessian then walked outside where he met with Martinez. (SAC, ¶ 10.) Yessian asked her if she had stolen anything from the store, and she said no. (SAC, ¶ 10.)

Plaintiffs then went back to the store to speak with Pineda. (SAC, ¶ 11.) Martinez asked Padilla why she falsely accused Martinez of stealing and why she decided to refer to Martinez as a “short fat Mexican woman.” (SAC, ¶ 11.) Padilla tried to deny that she had accused Martinez of theft. (SAC, ¶ 11.) Yessian indicated that Padilla had told him that the cops were on their way after also accusing him of theft, which Padilla did not deny. (SAC, ¶ 11.) Pineda offered apologies. (SAC, ¶ 11.)

“The Unruh Civil Rights Act, codified at section [Civil Code section 51] was enacted to prohibit discriminatory conduct by individual proprietors and private entities offering goods and services to the general public.” ((Thurston v. Omni Hotels Management Corp. (2021) 69 Cal.App.5th 299, 305 [internal quotations omitted].) The elements of a claim for violation of the Unruh Civil Rights Act are: (1) that defendant denied/aided or incited a denial of/discriminated or made a distinction that denied full and equal accommodations/advantages/facilities/privileges/

services to plaintiff; (2) that a substantial motivating reason for defendant’s conduct was its perception of plaintiff’s protected characteristic; or that the protected characteristic of a person whom plaintiff was associated with was a substantial motivating reason for defendant’s conduct; (3) plaintiff was harmed; and (4) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI 3060.)

Defendants contend that the first cause of action must fail because Plaintiffs cannot establish that they were denied access to any goods at the subject CVS store. Defendants provide evidence of the following testimony from Martinez’s deposition: “Q…Did anybody tell you that you couldn’t purchase the cosmetics that you had put in the shopping bag? A. No.” (Jones Decl., ¶ 5, Ex. 3 (Martinez Depo.) at p. 100:14-17.) In addition, “Q…Did anybody tell you that you couldn’t shop around the store to look for other items? A. No, no.” (Id. at p. 100:18-21.) Defendants also indicate that Yessian testified that when he entered the subject CVS he went to look for vitamins, but he “[c]ouldn’t see any of the ones [he] was looking for,” and that ultimately, the search for vitamins at the CVS was unsuccessful. (Jones Decl., ¶ 3, Ex. 1 (Yessian Depo.) at pp. 63:18-23; 67:2-4.)

Defendants also assert that Plaintiffs admit that CVS did not deny them access to any service or accommodation available to other customers. Martinez admitted that she only asked CVS Store Manager William A. Pineda (“Pineda”) if she could use the bathroom in the CVS on November 15, 2019. (Jones Decl., ¶ 8, Ex. 6, Response to Request for Admission No. 27.) Martinez testified that the male CVS employee at the register only said, “I’m sorry. They’re being cleaned at the moment.” (Jones Decl., ¶ 5, Ex. 3 (Martinez Depo.) at p. 82:10-15.) In addition, Yessian admitted that he did not attempt to use the bathroom at the subject CVS store and admitted that he was not denied access to the bathroom at the subject CVS store. (Jones Decl., ¶ 7, Ex. 5, Response to Request for Admission Nos. 11-12.)

Plaintiffs assert that the Unruh Act does not apply solely to situations in which businesses exclude individuals altogether, but also where treatment is unequal. Plaintiffs cite to Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 29, where the California Supreme Court noted that “[t]he scope of the [Unruh Act] clearly is not limited to exclusionary practices. The Legislature’s choice of terms evidences concern not only with access to business establishments, but with equal treatment of patrons in all aspects of the business. Courts have repeatedly held that the Unruh Act is applicable where unequal treatment is the result of a business practice.” Plaintiffs contend that “Defendants perceived Plaintiffs to be Mexican and provided them with unequal services in that they refused to allow them to shop in peace.” (Opp’n at p. 13:15-16.) Plaintiffs provide evidence that Padilla described Martinez as a “short fat Mexican” who had left the store

“with her stuff and whatever else she took.” (Yessian Decl., ¶¶ 4-5.) In addition, Padilla told Yessian that “if [he] had taken any stuff, that [he] should remove them from [his] bag now as the Police were on their way.” (Yessian Decl., ¶ 5.) Martinez also indicates that she was told by Pineda that the restroom was unavailable because it was being cleaned, but that she believes the store has a male and female restroom. (Martinez Decl., ¶ 3.)

Defendants assert that Plaintiffs cannot establish that any CVS employee intentionally discriminated against them because of their respective races. As set forth above, Defendants indicate that Martinez testified that the male CVS employee at the register only said to her, “I’m sorry. They’re being cleaned at the moment.” (Jones Decl., ¶ 5, Ex. 3 (Martinez Depo.) at p. 82:10-15.) Defendants also cite to the following testimony from Martinez’s deposition: “Q. Did any CVS employee at the store that you interacted with that day say that they did not like Mexican people? A. Well, they didn’t say it directly, no.” (Id. at p. 129:20-23.) In addition, Yessian testified that the female CVS employee he interacted with did not say anything that made him believe that she thought he was Hispanic. (Jones Decl., ¶ 3, Ex. 1 (Yessian Depo.) at p. 86:15-19).[1]

Plaintiffs counter that Defendants intended to discriminate against Plaintiffs because their perception of Plaintiffs’ race was a substantial motivating reason for the treatment Plaintiffs received. As referenced above, per CACI 3060, the second element of an Unruh Civil Rights Act claim is that a substantial motivating reason for defendant’s conduct was its perception of the plaintiff’s [sex/race/color/religion/ancestry/national origin/ medical condition/genetic information/marital status/sexual orientation/citizenship/primary language/immigration status/(or other actionable characteristic)]; or that the [sex/race/color/religion/ancestry/national origin/ medical condition/genetic information/marital status/sexual orientation/citizenship/primary language/immigration status/(or other actionable characteristic)] of a person whom plaintiff was associated with was a substantial motivating reason for defendant’s conduct.

Based on the foregoing, the Court finds that Plaintiffs have raised triable issues of material fact with regard to their first cause of action for discrimination in violation of the Unruh Act.

Next, Defendants assert that Plaintiffs’ second cause of action for defamation per se must fail. “The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a tendency to injure or causes special damage.” ((Briganti v. Chow (2019) 42 Cal.App.5th 504, 509 [internal quotations omitted].) In support of the second cause of action, Plaintiffs allege that Padilla falsely accused Plaintiffs of theft. (SAC, ¶ 22.) Specifically, Plaintiffs allege that Padilla told Yessian that Martinez “had left the store with her stuff and whatever else she took.” (SAC, ¶ 22.) Plaintiffs also allege that Padilla told Yessian “to remove anything he had stolen from his bag as the Cops were on their way.” (SAC, ¶ 22.)

Defendants assert that Plaintiffs admitted that no CVS employee accused them of theft. In support of this assertion, Defendants cite to the following testimony from Martinez’s deposition: “Q. Is there anything else specifically that you can recall the male CVS employee at the register saying to you, aside from the bathrooms were being cleaned? A…All he said was, ‘I’m sorry. They’re being cleaned at the moment.’” (Jones Decl., ¶ 5, Ex. 3 (Martinez Depo.) at p. 82:10-15.) Plaintiffs also provide the following testimony from Yessian’s deposition: “Q. Did she tell you that she had contacted the police because she suspected you of shoplifting?...A. No. She didn’t say that they called because of me. Q. Okay. Did she say that she had contacted the police because Ms. Martinez had shoplifted? A. No, she did not say those words.” (Jones Decl., ¶ 3, Ex. 1 (Yessian Depo.) at p. 83:15-84:3.)

Plaintiffs counter that Padilla made statements accusing Plaintiffs of theft. As discussed, Plaintiffs indicate that Padilla said to Yessian “she [Martinez] left with her stuff and whatever else she took.” (Yessian Decl., ¶ 5.) Plaintiffs assert that this statement implies that Martinez had stolen items. Padilla then stated that if Yessian had taken any items, that he should remove them from his bag now as the Police were on their way. (Yessian Decl., ¶ 5.) Defendants contend that while Yessian may have felt that Padilla’s inquiry implied theft, “a plaintiff may not construct an actionable statement by reading whatever implication it wishes into the defendants’ words…[I]n reviewing a defamation claim, a court must ask as a threshold matter whether a reasonable factfinder could conclude that the contested statement impl[ies] an assertion of objective fact. If the answer is no, the claim is foreclosed by the First Amendment…” ((Issa v. Applegate (2019) 31 Cal.App.5th 689, 707 [internal quotations and citations omitted].) Although Defendants reference this excerpt from the Issa case, they do not argue that Padillas’ statements do not imply an assertion of objective fact. (Mot. at p. 25:4-9.)

Next, Defendants assert that Padilla’s alleged statement cannot be defamatory because it

could not have been false. Defendants contend that “Padilla’s alleged statement was a question, conveying that she did not know one way or the other whether Plaintiff Martinez took anything else with her, and if so, what.” (Mot. at p. 25:13-15.) But as set forth above, Yessian indicates that Padilla stated that “she [Martinez] left with her stuff and whatever else she took.” (Yessian Decl., ¶ 5.) The Court does not see how this is an inquiry.

Defendants also note that “[i]t is axiomatic that for defamatory matter to be actionable, it must be communicated, or published, intentionally or negligently, to one other than the person defamed.” ((Cabesuela v. Browning-Ferris Indus. (1998) 68 Cal.App.4th 101, 112 [internal quotations omitted].) Defendants assert that Plaintiffs cannot establish that any alleged defamatory statements were published, but do not cite to any evidence in support of this assertion. As set forth above, the moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co., supra, at p. 850.)

Based on the foregoing, the Court finds that Plaintiffs have raised triable issues of material fact with regard to their second cause of action for defamation per se.

“[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct, to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1108 [internal quotations and reference to [Citation.] omitted].)

In support of the third cause of action for intentional infliction of emotional distress (“IIED”), Plaintiffs allege that “Defendants engaged in extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, emotional distress when [Padilla] falsely accused Plaintiffs of theft.” (SAC, ¶ 27.)[2] Defendants assert that Plaintiffs’ IIED cause of action must fail because Plaintiffs cannot identify any evidence of extreme and outrageous conduct.

As discussed, Defendants indicate that Martinez testified that she interacted with only one CVS employee (Pineda) during the subject shopping incident, who said, “I’m sorry[,] they’re being cleaned at the moment.” (Defendants’ Undisputed Material Fact (“UMF”) No. 58.) In addition, Yessian testified that he was on his way out of the store, “15 feet from the door,” that a female employee asked him if he needed any help; that Yessian testified that he told the female employee he was looking for his wife; and that the female employee responded “[i]s she short, Mexican, with a big purse?” (UMF Nos. 72-74.) Defendants cite to Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, where “[a]fter she was prosecuted criminally for shoplifting, Darin Johnson brought [a] civil action against Ralphs Grocery Company (Ralphs); its independent contractor security company, Special Operations International, Inc. (SOI); and SOI employees Michael Robinson and Jessie Barraza…Johnson… contend[ed] the trial court erred by sustaining Ralphs’s demurrer without leave to amend” on her cause of action for “intentional infliction of emotional distress.” (Id. at p. 1101.) The Court of Appeal found that, “[w]e agree with the trial court’s assessment that Robinson’s comment while watching a TV show in the employee break room that he needed to make a ‘collar,’ and his comments to Johnson as she was escorted out of the store, ‘that’s what you get’ and ‘you’re not welcome to shop here anymore,’ are insufficient as a matter of law…Ordinarily mere insulting language, without more, does not constitute outrageous conduct. The Restatement view is that liability…does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities…There is no occasion for the law to intervene…where some one’s feelings are hurt.” (Id. at pp. 1108-1109.) Defendants assert that here too, the alleged conduct of Padilla falls short of what is considered outrageous.

Plaintiffs assert that Johnson is inapposite here because in this case, “Plaintiffs were accused of stealing when Defendants knew that they had not stolen…” (Opp’n at p. 19:12-13.) In support of this assertion, Plaintiffs appear to cite to a document produced by Defendants indicating that “QD spoke to the SM Adam (William) Pineda and he stated that the ‘customers’ were return customers who have been confirmed to have stolen in the past. QD asked her SM what evidence there was and there wasn’t anything sufficient.” (Alaric-Lorenzo Decl., ¶ 3, Ex. 1.) Plaintiffs also note that Padilla indicated that “I did not have any reason to believe that Mr. Yessian’s wife was attempting to steal any items from the store... Similarly, I did not have any reason to believe that Mr. Yessian was attempting to steal any items from the store...” (Padilla Decl., ¶ 6.) As discussed, Plaintiffs provide evidence that Padilla described Martinez as a “short fat Mexican,” stated that “she [Martinez] left with her stuff and whatever else she took,” and stated that if Yessian “had taken any stuff, that [he] should remove them from [his] bag now as the Police were on their way.” (Yessian Decl., ¶¶ 4-5.) Plaintiffs assert that Padilla thus made such statements when she knew or had reason to know that Plaintiffs had not stolen anything. Plaintiffs accordingly allege that Defendants engaged in outrageous conduct with the intention of causing, or the reckless disregard of the probability of causing, emotional distress when Padilla falsely accused Plaintiffs of theft. (SAC, ¶ 27.)

Based on the foregoing, the Court finds that Plaintiffs have raised a triable issue of material fact as to whether Padilla engaged in “outrageous” conduct for purposes of Plaintiffs’ third cause of action for IIED.

E. Fourth Cause of Action for Negligent Hiring, Training, Supervision and/or Retention of Employee

“California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.¿Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” ((Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054 [internal citations omitted].) In support of the fourth cause of action, Plaintiffs allege that CVS hired Padilla and Pineda, who were “unfit or incompetent to perform the work for which they were hired as they clearly have animus against Hispanics or people who look like Hispanics.” (SAC, ¶ 29.) Plaintiffs allege that CVS “knew or should have known that employees were unfit or incompetent and that this unfitness or incompetence created a particular risk to others.” (SAC, ¶ 29.)

Defendants first assert that Plaintiffs cannot show that CVS knew or should have known that Padilla or Pineda presented an undue risk of harm to customers. But Defendants do not appear to cite to any evidence to support this assertion.

Defendants also assert that there is no reasonable basis to conclude that Padilla or

Pineda’s alleged discriminatory conduct was the result of CVS failing to ensure its employees understood that discrimination against CVS customers is unacceptable and a violation of company policy. Defendants cite to Flores v. AutoZone West, Inc. (2008) 161 Cal.App.4th 373, 377, where the plaintiff “filed his complaint against both AutoZone, and its employee, Erwin Gomez, in August of 2005. Flores alleged he was injured when Gomez brandished and struck him with a metal pipe.” The Court of Appeal “agree[d] with the trial court’s conclusion the evidence was insufficient as a matter of law to support Flores’s contention that his injuries were caused by AutoZone’s breach of an independent duty of care it owed in connection with the hiring, retention and training of Erwin Gomez.” ((Id. at p. 376.) The Flores Court reasoned that “an employer has no duty to investigate, let alone uncover, a prospective employee’s juvenile delinquency records, which are protected by law from disclosure. Nor does Flores even come close to establishing that a retail employer might owe its customers any legal duty to conduct a thorough background check on, or to administer personality tests to, each of its employees prior to allowing them contact with the public...As for the assertion that Flores’s injuries stemmed from AutoZone’s failure to properly train Gomez, we note that it borders on the absurd to suggest that Gomez might have been dissuaded from his attack if only AutoZone had provided more training concerning the inappropriateness of punching out customers.” ((Ibid. .) The plaintiff in Flores noted that “while Gomez was given an employee handbook, and required to sign an acknowledgement reflecting he was familiar with the policies and procedures contained in it, no one actually made sure he had actually read it and understood it.” (Id. at p. 385, emphasis omitted.) The Court of Appeal found that “implicit in this claim is the assertion that Gomez’s decision to physically attack Flores might have been caused by his failure to understand that such an act would contravene AutoZone’s policies. This does not pass the straight face test.” (Id. at p. 385.)

It is undisputed that retail employees at CVS are required to complete training about creating a welcoming environment for all customers; and that managers take an additional course about discussing culture and diversity with employees when approaching customer service. (UMF No. 100; Williams Decl., ¶ 5.) It is undisputed that on November 19, 2018, Pineda completed LearnNet Course No. 550225, “Creating a Welcoming Environment for All” as well as training for discussing culture and diversity with employees. (UMF No. 101; Williams Decl., ¶¶ 3, 5 Exs. 2, 4.) It is also undisputed that on December 14, 2018, Padilla completed LearnNet Course No. 550225, “Creating a Welcoming Environment for All.” (UMF No. 102; Williams Decl., ¶ 4, Ex. 3) In the opposition, Plaintiffs do not address the foregoing evidence. They argue that “Defendant CVS’ employees were unfit or incompetent to perform the work for which they were hired as they clearly have animus against Hispanics (or people whom they perceive to be Hispanic) or are not well trained on how to accommodate all customers.” (Opp’n at p. 20:9-12.) But Plaintiffs do not cite to any evidence in support of this assertion. Plaintiffs also contend that “[w]hen Defendant Padilla was deployed to patrol and monitor Plaintiffs, Defendants knew as a matter of fact that they had no evidence that Plaintiffs had shoplifted or were going to shoplift from the store.” (Opp’n at p. 20:17-20.) Plaintiffs again cite to the document indicating that “QD spoke to the SM Adam (William) Pineda and he stated that the ‘customers’ were return customers who have been confirmed to have stolen in the past. QD asked her SM what evidence there was and there wasn’t anything sufficient.” (Alaric-Lorenzo Decl., ¶ 3, Ex. 1.) But the Court does not see how this is relevant to whether CVS is liable to Plaintiffs for negligently hiring, supervising, or retaining an unfit employee.

Based on the foregoing, the Court finds that Defendants have met their burden of demonstrating that Plaintiffs’ fourth cause of action for negligent hiring, training, supervision and/or retention of employee is without merit, and that Plaintiffs have failed to raise a triable issue of material fact as to this cause of action.

Plaintiffs’ prayer for relief seeks “punitive damages where allowed and according to proof.” (SAC, p. 8:26.) Summary adjudication may be granted as to a claim for punitive damages even though it does not dispose of an entire cause of action. ((Code Civ. Proc., § 437c, subd. (f)(1).) An award of punitive damages “is authorized ‘in addition to the actual damages’ where ‘the defendant has been guilty of oppression, fraud or malice, express or implied.’” ((Alterauge v. Los Angeles Turf Club (1950) 97 Cal.App.2d 735, 739.)

Defendants assert that Plaintiffs cannot recover punitive damages because (1) they cannot offer evidence of oppression, fraud, or malice, on the part of any CVS employee, and (2) neither Padilla nor Pineda were officers, directors, or managing agents of CVS. (Mot. at p. 30, fn. 9.)

As to the second argument, pursuant to Civil Code section 3294, subdivision (b), “[a]n employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

Defendants assert that Padilla and Pineda were not officers, directors, or managing agents of CVS, and they did not make, suggest, or influence decisions that ultimately determined CVS’s corporate policy. It is undisputed that while in the subject CVS store, Plaintiffs interacted with two employees, Pineda and Padilla. (UMF No. 103.) It is also undisputed that at the time of the subject shopping incident, Pineda’s job title was store manager, and Padilla’s job title was operations supervisor. (UMF Nos. 104-105.) As set forth above, the Court’s January 4, 2023 minute order provides that “Plaintiff agrees to the tentative (i.e. granting the MSA) regarding Defendant CVS as to punitive damages.” Based on the foregoing, the Court finds that Defendants have met their burden of demonstrating that Plaintiffs’ claim for punitive damages is without merit as to CVS, and that Plaintiffs have failed to raise a triable issue of material fact as to such claim.

The hearing on the instant motion was “continued to address the punitive damages issue as to Defendant Padilla only.” (January 4, 2023 Minute Order.) As set forth above, Defendants also assert that Plaintiffs cannot recover punitive damages because they cannot offer evidence of oppression, fraud, or malice, on the part of any CVS employee.

“‘Malice’ means . . . despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code,¿§ 3294, subd. (c)(2).) “‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code,¿§ 3294(c)(3).)¿“Despicable conduct is conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” ((Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 332-333 [internal quotations omitted].)

Defendants assert that there is no evidence that Padilla acted with oppression, fraud, or malice in any of her interactions with Plaintiffs. (Mot. at p. 30, fn. 9, citing UMF Nos. 106-114.) In support of this assertion, Defendants cite to Ms. Padilla’s declaration, in which she states that she has “never treated anyone differently because of their race or national origin,” and that she “did not treat Mr. Yessian and Ms. Martinez differently than any other customer.” (Padilla Decl., ¶ 17.) In addition, Ms. Padilla states in her declaration, “I identify as Mexican. I identify as Hispanic. And I am immensely proud to be Mexican and Hispanic.” (Padilla Decl., ¶ 15.) Defendants also note that Martinez testified that she interacted with only one CVS employee (Pineda) during the subject shopping incident, who said, “I’m sorry[,] they’re being cleaned at the moment.” (UMF No. 107.)

In their supplemental brief, Plaintiffs assert that Padilla acted with malice, oppression, and/or fraud. Plaintiffs assert that “[b]y accusing Plaintiffs of theft when she knew they had not stolen anything from the store, Defendant Padilla acted maliciously because her actions amounted to despicable conduct which was carried on with a willful and conscious disregard of the rights or safety of Plaintiffs.” (Suppl. Opp’n at pp. 3:7-9.) Plaintiffs also assert that “Padilla’s actions amount to oppression because it was despicable conduct that subjected Plaintiff Yessian to unjust hardship in conscious disregard of his rights.” (Suppl. Opp’n at p. 3:21-22.)

As set forth above, Plaintiffs provide evidence that Padilla described Martinez as a “short fat Mexican” who had “left with her stuff and whatever else she took.” (Yessian Decl., ¶¶ 4-5.) In addition, Padilla told Yessian that “if [he] had taken any stuff, that [he] should remove them from [his] bag now as the Police were on their way.” (Yessian Decl., ¶ 5.) Plaintiffs indicate that although Padilla made these statements, she also declared that she “did not have any reason to believe that Mr. Yessian’s wife was attempting to steal any items from the store,” and that she similarly “did not have any reason to believe that Mr. Yessian was attempting to steal any items from the store…” (Padilla Decl., ¶ 6.) Plaintiffs also cite to the document indicating that “QD spoke to the SM Adam (William) Pineda and he stated that the ‘customers’ were return customers who have been confirmed to have stolen in the past. QD asked her SM what evidence there was and there wasn’t anything sufficient.” (Alaric-Lorenzo Decl., ¶ 3, Ex. 1.)

Based on the foregoing, the Court finds that Plaintiffs have raised a triable issue of fact as to whether Padilla acted with malice and/or oppression for purposes of Plaintiffs’ punitive damages claim.

Defendants’ motion for summary adjudication is granted as to the fourth cause of action, as well as to Plaintiffs’ claim for punitive damages as to CVS. Defendants’ motion for summary adjudication is denied as to the first, second, and third causes of action, as well as to Plaintiffs’ claim for punitive damages as to Padilla.

[1]Defendants also cite to a number of non-binding cases in support of the assertion that “a theory of discrimination premised upon speculation is insufficient to state a viable claim under the Unruh Act.” (Mot. at p. 21:22-24.) In addition, Defendants cite to non-binding authority in support of the assertion that “the Unruh Act does not entitle customers to an ideal shopping experience…” (Mot. at p. 23:3-4.)

[2]Plaintiffs also allege that “[Martinez] no longer wants to have a child as she fears she may gain some weight leading to further discrimination from people who do not like ‘short fat Mexican’ women.” (SAC, ¶ 27.) Plaintiffs also allege that “[Yessian] has been very troubled by the incident and suffers extreme anxiety each time he goes out shopping as he fears he might be targeted.” (SAC, ¶ 27.)

Superior Court of California

County of Los Angeles

Department 50