Judge Teresa A. Beaudet, Case Number: 20STCV01544, Date: 2024-01-30 Tentative Ruling

MIKE YESSIAN, et al. Plaintiff, vs. GARFIELD BEACH CVS LLC, et al. Defendants.	Case No.:	20STCV01544
	Hearing Date:	February 8, 2024
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: PLAINTIFFS’ 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 March 14, 2023, Plaintiffs Michael Yessian (“Yessian”) and Mandi Martinez (“Martinez”) (jointly, “Plaintiffs”) filed the operative Third Amended Complaint (“TAC”) against Defendants Garfield Beach CVS LLC dba CVS Pharmacy Store and Deborah Padilla. The TAC alleges 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.

Plaintiffs now move “for summary judgment, or in the alternative, summary adjudication in their favor as to each cause of action asserted by Plaintiffs against Defendants Garfield Beach CVS, LLC and Deborah Padilla…in the operative complaint.”[1] Garfield Beach CVS LLC and Deborah Padilla (jointly, “Defendants”) oppose.

Objection No. 3 (p. 3:6-10): sustained as to “who must have heard the statements made by Deborah,” 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. 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.” ((Id., § 437c, subd. (f).)

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.)¿

For purposes of motions for summary judgment and summary adjudication, a plaintiff “has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on¿the¿cause of action.” (¿¿Code Civ. Proc., § 437c, subd. (p)(1)¿¿.)

In the TAC, Plaintiffs allege that on November 15, 2019, they visited CVS’s store located at 775 E. Foothill Blvd., Pomona, CA 91767. (TAC, ¶ 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. (TAC, ¶ 8.)

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

Plaintiffs then went back to the store to speak with Pineda. (TAC, ¶ 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.” (TAC, ¶ 11.) Padilla tried to deny that she had accused Martinez of theft. (TAC, ¶ 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. (TAC, ¶ 11.) Pineda offered apologies. (TAC, ¶ 11.)

“The Unruh Civil Rights Act, codified at [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.) 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 argue that the first cause of action “is subject to Summary Judgment or adjudication because there is no genuine dispute of material fact…” (Mot. at p. 2:21-22.) As to the first element 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,” Plaintiffs assert that “Martinez was denied access to the restroom and accused of theft while [Yessian] on his part, was also accused of theft and was forced to exit the store.” (Mot. at p. 3:16-18.)

Plaintiffs appear to 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[.] Other than -- no. All he said was, ‘I’m sorry. They’re being cleaned at the moment.’” (Jones Decl. in Support of Defendants’ Motion for Summary Judgment, or in the Alternative, Summary Adjudication, ¶ 5, Ex. 3 (Martinez Depo.) at p. 82:10-15.)[3] Martinez further testified that “[h]e said the police have been called -- excuse me -- due to a gentleman who was smoking heroin in the bathroom, which was the reason why the bathroom was out of order and needed to be cleaned at the time I asked to use it.” (Id. at pp. 108:23-109:2.) Plaintiffs then cite to the following testimony from Mr. Pineda’s deposition: “Q[.] So you do not know if it was a man or a woman who was in the restroom doing heroin? A[.] Well, from what I remember, it was probably a man. But I can’t remember the situation specifically. And it doesn’t sound like, from the testimony, that it was on the same day. It sounds like it was a different day than the incident.” (Alaric-Lorenzo Decl., ¶ 3, Ex. B (Pineda Depo.) at p. 23:3-9.) Plaintiffs assert that “[t]he restroom at the store was available and Pineda simply did not allow [Martinez] to use it,” and that “[a] denial of restroom access to [Martinez] was a denial of equal accommodations and facilities.” (Mot. at p. 4:8-9; 4:23-24.)

In the opposition, Defendants assert that there are disputes regarding Martinez’s assertion that she was denied equal access to facilities because she was denied use of the restroom. Defendants cite to the following testimony from Mr. Pineda’s deposition: “Q[.] Do you recall which of the restrooms this person was allegedly doing heroin in? A[.] I don’t. Q[.] Can you tell me whether or not it was standard procedure to close both restrooms each time either of the restrooms was being cleaned? A[.] Yes. Q[.] So you’re saying that every time that you have cleaners cleaning just one restroom, the other one automatically be closed to customers? A[.] I believe, in that situation, yeah. And that’s basically because of where the restrooms were located in the store. Q[.] I’m not asking what happened in that situation. I’m saying every time the restroom was being cleaned -- either restroom was being cleaned, both restrooms automatically were closed to customers; is that correct? A[.] Yes.” (Jones Decl., ¶ 4, Ex. 3 (Pineda Depo.) at pp. 25:15-26:8.)

In the motion, Plaintiffs also assert that there were “false allegations of theft and racial profiling.” (Mot. at p. 4:10). Plaintiffs appear to cite to the Declaration of Hillary Williams filed in support of Defendants’ motion for summary judgment, or in the alternative, summary adjudication. Ms. Williams is an Investigator in CVS’s Advice and Counsel Department, a division of CVS Human Resources. (Williams Decl., ¶ 1.) In her declaration, Ms. Williams states that “[o]n or about December 2, 2019, I received notice, via email, of an alleged incident between a customer and colleague at CVS Store No 8895 in Pomona, California. The complaint came in via the CVS customer service complaint phone line. I investigated the complaint by speaking with the District Leader (a regional supervisor over 10-15 CVS stores), and directing her to collect evidence. A true and correct copy of my summarized investigation notes, which are maintained in CVS’s Salesforce platform, is attached hereto as Exhibit 1.” (Williams Decl., ¶ 2, Ex. 1.) Plaintiffs note that this Exhibit 1 provides, inter alia, “Deborah admitted to describing a customer’s wife as ‘short and hispanic’. There is no evidence of discrimination. The customer was suspected of shoplifting previously. Deborah’s verbal comment was not discriminatory but she should have used other language to describe a customer.” (Williams Decl., ¶ 2, Ex. 1.)

Defendants submit the Declaration of Deborah Padilla in support of their opposition to the instant motion. Padilla states that “I did not know which customer was Mr. Yessian’s wife, but I responded that I had seen a lady who was short, Hispanic, and carrying a large reddish beige bag.” (Padilla Decl., ¶ 5.) Padilla asserts that she “absolutely did not, as Mr. Yessian alleges, use the words ‘fat’ or ‘Mexican’ to describe Ms. Martinez. I did not open my arms to demonstrate size or imply the word ‘fat.’” (Padilla Decl., ¶ 8, emphasis omitted.) Padilla states that she is Hispanic, and that she has “never treated anyone differently because of their race or national origin.” (Padilla Decl., ¶¶ 20, 24.)

Plaintiffs also appear to cite to Yessian’s deposition transcript attached to the Declaration of Leilani E. Jones filed in support of Defendants’ motion for summary judgment, or in the alternative, summary adjudication. Mr. Yessian testified that a female employee told him that “‘[w]ell, she left with her bag and whatever else she took, and the police are on their way. So if you have anything in your bag, you should take it out.’ I told her, ‘That’s cool. What does it got to do with me?’” (Jones Decl. ISO Defendants’ Motion for Summary Judgment, or in the Alternative, Summary Adjudication, ¶ 3, Ex. 1 (Yessian Depo.) at p. 69:5-9.) Plaintiffs also cite to the following testimony from Mr. Pineda’s deposition: “Q[.] Okay. Do you recall whether or not the cops or the police were called to the store on the day of the incident? A[.] I don’t recall, but I don’t believe so.” (Alaric-Lorenzo Decl., ¶ 3, Ex. B (Pineda Depo.) at p. 26:9-12.) Plaintiffs assert that “[t]he only reason why Defendant Padilla mentioned the police being called to the store was to frighten Plaintiff Yessian and to further Defendants’ unlawful enterprise.” (Mot. at p. 5:4-5.)

In her declaration in support of the opposition, Padilla states that “Mr. Yessian’s version of our brief interaction is simply not true. I did not have any reason to believe that Mr. Yessian’s wife was attempting to steal any items from the store and I did not accuse her of stealing. Similarly, I did not have any reason to believe that Mr. Yessian was attempting to steal any items from the store and I did not accuse him of stealing.” (Padilla Decl., ¶ 12.) Padilla also states that “[a]s I have previously declared under penalty of perjury, I did not accuse Ms. Martinez of shoplifting (or any form of theft).” (Padilla Decl., ¶ 7, emphasis omitted.) Padilla states that “I absolutely did not say, as Mr. Yessian alleges, that Ms. Martinez had left the store with her purse and ‘whatever else she took.’” (Padilla Decl., ¶ 9, emphasis omitted.) Padilla also states that she “absolutely did not say, as Mr. Yessian alleges, that he should ‘remove any items from his bag.’” (Padilla Decl., ¶ 10, emphasis omitted.) Padilla states that she “absolutely did not, as Mr. Yessian alleges, say or suggest that ‘the police were on their way.’” (Padilla Decl., ¶ 11, emphasis omitted.) Defendants assert that “a jury must weigh the Parties’ conflicting evidence and make the ultimate credibility determination.” (Opp’n at p. 13:20-21.)

Based on the foregoing, the Court finds that Defendants have raised a triable issue of material fact regarding the first element of Plaintiffs’ first cause of action, i.e., whether defendant denied/aided or incited a denial of/discriminated or made a distinction that denied full and equal accommodations/advantages/facilities/privileges/services to Plaintiffs. (CACI 3060.) Thus, the Court denies Plaintiffs’ motion for summary adjudication as to the first cause of action.

Next, Plaintiffs assert that their “second cause of action for Defamation per se is subject to Summary Judgment or adjudication because there is no genuine dispute of material fact…” (Mot. at p. 9:3-4.) “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].) Plaintiffs also cite to CACI 1704, which provides that the essential elements of defamation per se (private figure – matter of private concern) are: (1) that defendant made one or more of the statement(s) to a person/persons other than plaintiff; (2) that this person reasonably understood that the statement(s) were about plaintiff; (3) that this person reasonably understood the statement(s) to mean [the grounds for defamation per se]; and (4) that defendant failed to use reasonable care to determine the truth or falsity of the statement(s). (CACI 1704.) In addition, “[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].)

In the second cause of action, Plaintiffs allege that “[Padilla] falsely accused Plaintiffs of stealing from the store. The store Manager, Adam William Pineda also accused Plaintiffs of stealing from the store. [Padilla’s] defamatory statements about Plaintiff Mandi Martinez were published to Plaintiff Michael Yessian. [Padilla] told Michael that [Martinez] had left the store with her stuff and whatever else she took. [Padilla’s] defamatory statements about plaintiff Michael Yessian were also published to at least one other customer who was standing close to [Padilla] and [Yessian] when [Padilla] told [Yessian] to remove anything he had stolen from his bag as the Cops were on their way.” (TAC, ¶ 22.)

Plaintiffs first assert in the motion that “CVS’ Employees including Defendant Deborah Padilla, made defamatory statements about Plaintiffs to a person or persons other than each individual Plaintiff.” (Mot. at p. 9:17-18.) Plaintiffs note, as set forth above, that Exhibit 1 to the Declaration of Hillary Williams provides, inter alia, “Deborah admitted to describing a customer’s wife as ‘short and hispanic’. There is no evidence of discrimination. The customer was suspected of shoplifting previously.” (Williams Decl., ¶ 2, Ex. 1.) Plaintiffs also appear to note that this Exhibit 1 states “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. - QD called the customer originally and apologized for incident, customer was still very irate.” (Williams Decl., ¶ 2, Ex. 1.) In addition, Plaintiffs note, as set forth above, that Yessian testified that a female employee told him that “‘[w]ell, she left with her bag and whatever else she took, and the police are on their way. So if you have anything in your bag, you should take it out.’ I told her, ‘That’s cool. What does it got to do with me?’” (Jones Decl. ISO Defendants’ Motion for Summary Judgment, or in the Alternative, Summary Adjudication, ¶ 3, Ex. 1 (Yessian Depo.) at p. 69:5-9.)

In the opposition, Defendants assert that there are “disputed facts regarding the alleged ‘defamatory statements’.” (Opp’n at p. 17:19.) As set forth above, Padilla states in her declaration that “[a]s I have previously declared under penalty of perjury, I did not accuse Ms. Martinez of shoplifting (or any form of theft).” (Padilla Decl., ¶ 7, emphasis omitted.) Padilla states that “I absolutely did not say, as Mr. Yessian alleges, that Ms. Martinez had left the store with her purse and ‘whatever else she took.’” (Padilla Decl., ¶ 9, emphasis omitted.) Padilla also states that she “absolutely did not say, as Mr. Yessian alleges, that he should ‘remove any items from his bag.’” (Padilla Decl., ¶ 10, emphasis omitted.) Padilla states that she “absolutely did not, as Mr. Yessian alleges, say or suggest that ‘the police were on their way.’” (Padilla Decl., ¶ 11, emphasis omitted.) Padilla further states that “I did not have any reason to believe that Mr. Yessian’s wife was attempting to steal any items from the store and I did not accuse her of stealing. Similarly, I did not have any reason to believe that Mr. Yessian was attempting to steal any items from the store and I did not accuse him of stealing.” (Padilla Decl., ¶ 12.)

Defendants also assert that “a jury must resolve the factual disputes regarding the content of Pineda’s statements, as documented in CVS’s Salesforce platform.” (Opp’n at p. 18:20-21.) Defendants assert, inter alia, that “Pineda will also testify that he was not confirming or stating that the Plaintiffs were shoplifters, creating additional factual disputes.” (Opp’n at p. 19:19-20.) In his deposition, Pineda testified as follows: “Q[.] Okay. I know you don’t remember this conversation in full that you had with Quinn, and what we looked at right there are just notes, I’m assuming, of what the HR person took. But fair to say that whatever you were communicating was not something you were just making up about those customers? A If that is what I reported, then I’m assuming that’s accurate. Q[.] Okay. It sounds like you were just remarking that they were possibly return customers, possibly return shoplifters? A[.] Correct. Q[.] Okay. And you were just informing the business that that might have happened, but might not have had concrete evidence one way or another? A[.] That’s what it sounds like, yes.” (Jones Decl., ¶ 4, Ex. 3 (Pineda Depo.) at pp. 20:19-21:9.) Defendants also note that “[i]n all cases of alleged defamation…the truth of the offensive statements or communication is a complete defense against civil liability, regardless of bad faith or malicious purpose.” (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 28 (internal quotations omitted).)

In the motion, Plaintiffs also assert that “[t]he part of the statement concerning [Martinez] was made to the hearing of [Yessian] and at least one other customer who was standing in the area…The part of the statement concerning [Yessian] was made to the hearing of the customer who was standing in the area.” (Mot. at p. 10:2-4.) Plaintiffs point to Yessian’s supporting declaration, in which he states that “[Padilla] then proceeded to say that ‘she [Martinez] left with her stuff and whatever else she took’ implying that [Martinez] had stolen stuff. [Padilla] then went on to say that, if I had taken any stuff, that I should remove them from my bag now as the Police were on their way. There was at least one other customer who was within hearing range of this interaction…” (Yessian Decl., ¶ 5.) However, as set forth above, the Court sustains Defendants’ evidentiary objection to the following underlined portion of paragraph 5 of Mr. Yessian’s declaration: “[t]here was at least one other customer who was within hearing range of this interaction and who must have heard the statements made by Deborah.” (Yessian Decl., ¶ 5, emphasis added.) The Court agrees with Defendants that “[t]here is insufficient evidence to support a finding that the declarant, Mr. Yessian, has personal knowledge” that such customer “‘must have heard’ the statements.” (Defendants’ Evidentiary Objections at p. 3:7-9.) As noted by Defendants, Plaintiffs do not appear to offer evidence “that the unidentified ‘other customer’ actually heard Padilla and Yessian’s…interaction.” (Opp’n at p. 20:14-15.)

Based on the foregoing, the Court finds that Defendants have raised a triable issue of material fact regarding whether “CVS’ Employees including Defendant Deborah Padilla, made defamatory statements about Plaintiffs to a person or persons other than each individual Plaintiff.” (Mot. at p. 9:17-18.) Thus, the Court denies Plaintiffs’ motion for summary adjudication as to the second cause of action.

“[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, 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.” (TAC, ¶ 29.) 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.” (TAC, ¶ 27.) In addition, Plaintiffs 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.” (TAC, ¶ 29.) Plaintiffs assert that their third cause of action is “subject to Summary Judgment or adjudication because there is no genuine dispute of material fact…” (Mot. at p. 12:12-14.)

Plaintiffs asserts that here, “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.” (Mot. at p. 12:24-26.) In support of this assertion, Plaintiffs appear to point to Exhibit 1 to the Williams Declaration, which, as discussed, provides, inter alia, that “Deborah admitted to describing a customer’s wife as ‘short and hispanic’…The customer was suspected of shoplifting previously...” (Williams Decl., ¶ 2, Ex. 1.) In the opposition, Defendants counter that “[t]he nature and extent of the CVS Employees’ conduct with respect to the Plaintiffs is disputed, as demonstrated above. It follows that whether the above conduct rises to the level of ‘extreme’ or ‘outrageous’ is a question of fact.” (Opp’n at p. 24:24-26.)[4] As discussed, Padilla states in her declaration in support of the opposition that “I did not have any reason to believe that Mr. Yessian’s wife was attempting to steal any items from the store and I did not accuse her of stealing. Similarly, I did not have any reason to believe that Mr. Yessian was attempting to steal any items from the store and I did not accuse him of stealing.” (Padilla Decl., ¶ 12.)

Plaintiffs also assert that “[Padilla] and Pineda acted intentionally or unreasonably with the recognition that their acts were likely to result in illness through mental distress.” (Mot. at p. 13:9-10.) As an initial matter, with respect to this argument pertaining to Pineda, the third cause of action of the TAC alleges (as set forth above) that “Defendants engaged in extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, emotional distress when Deborah falsely accused Plaintiffs of theft.” (TAC, ¶ 29, emphasis added.) The third cause of action does not appear to mention Pineda. The Court notes that “[t]he pleadings delimit the scope of the issues on a summary judgment motion…Evidence offered on an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the pleadings.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 637, footnote 3 (internal citations omitted).) In addition, as discussed, Plaintiffs argue that “Defendants engaged in extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, emotional distress when Deborah falsely accused Plaintiffs of theft.” (Mot. at p. 12:24-26.) Thus, the Court does not see why Plaintiffs’ motion contains arguments pertaining to Pineda’s asserted intent.

As to Padilla’s intent, Plaintiffs appear to point to the following testimony from Yessian’s deposition: “Q[.] So what specifically did she say about your bag? A[.] She said that my -- that Mandi had left with her bag and whatever else she took, and if there’s anything in my bag, I should take it out because the police are on their way. If that’s not -- that I have something in my bag I shouldn’t, I don’t know what is.” (Jones Decl. ISO Defendants’ Motion for Summary Judgment, or in the Alternative, Adjudication, ¶ 3, Ex. 1 (Yessian Depo.) at p. 83:3-10.) Plaintiffs also appear to point to the Declaration of Deborah Padilla filed in support of Defendants’ motion for summary judgment, or in the alternative, summary adjudication, in which she states, inter alia, that “I did not have any reason to believe that Mr. Yessian’s wife was attempting to steal any items from the store and I did not accuse her of stealing. Similarly, I did not have any reason to believe that Mr. Yessian was attempting to steal any items from the store and I did not accuse him of stealing.” (Padilla Decl., ¶ 6.)

In the opposition, Defendants assert that “[w]hether the CVS Employees affirmatively ‘intended’ to cause the Plaintiffs harm is also in dispute.” (Opp’n at p. 25:7-8.) In her declaration in support of the opposition to the instant motion, Padilla states that “[d]uring my interactions with Mr. Yessian, I did not accuse him or Ms. Martinez of any wrongdoing, and did not hint or suggest that either had engaged in any wrongdoing…I had no reason to do so. I did not suspect that Mr. Yessian or Ms. Martinez were attempting to steal any items from the store.” (Padilla Decl., ¶¶ 26-27.) Padilla also states that “I merely answered Mr. Yessian’s question after he asked, ‘if I had seen his wife.’ And in doing so, I certainly did not intend to offend or cause any harm to Mr. Yessian or Ms. Martinez.” (Padilla Decl., ¶ 28.)

Based on the foregoing, the Court finds that Defendants have demonstrated that there is a triable issue of material fact concerning whether there was “outrageous conduct by the defendant” and whether the defendant had an “intention of causing or reckless disregard of the probability of causing emotional distress.” Thus, the Court denies Plaintiffs’ motion for summary adjudication as to the third cause of action.

Plaintiffs also seek summary adjudication on the following issues: (1) “Deborah Padilla adoptively admitted that she told Plaintiff Michael Yessian that the Police were on their way on the day of the incident,” (2) that “Deborah Padilla adoptively admitted that she told Plaintiff Yessian that if he had anything in his bag, he should take it out,” (3) that “Deborah Padilla and William Pineda’s statements about Plaintiffs are not protected by the common interest privilege,” and (4) that “Deborah Padilla and William Pineda’s statements about Plaintiffs are not protected by the litigation privilege and are not fair and true.” (See Notice of Motion at p. 2:13-20, Issues Nos. 4-7.)

In the opposition, Defendants assert that “an adoptive admission determination cannot be made at the summary judgment stage.” (Opp’n at p. 26:11-12.) Defendants cite to Code of Civil Procedure section 437c, subdivision (f)(1), which, as set forth above, provides that “[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. 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.”

Defendants assert that “[a]n ‘adoptive admission,’ is a not cause of action, affirmative defense, or issue of duty/claim for damages. It is an evidentiary rule, under California Evidence Code section 1221, governing when a statement is admissible as a hearsay exception.” (Opp’n at p. 26:15-17.) Evidence Code section 1221, which concerns “Adoptive admission,” provides that “[e]vidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” Plaintiffs do not appear to respond to this point in the reply.

Indeed, the Court does not find that Plaintiffs have shown that their Issues Nos. 4-7 concern “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.” (Id., section 437c, subd. (f)(1).) Thus, the Court denies Plaintiff’s motion for summary adjudication as to Issues Nos. 4-7.

Based on the foregoing, Plaintiffs’ motion for summary judgment, or in the alternative, summary adjudication is denied in its entirety.

[1]The Court notes that Plaintiffs’ memorandum of points and authorities in support of the motion does not discuss the TAC’s fourth cause of action for negligent hiring, supervision or retention of employee. Thus, to the extent Plaintiffs’ motion for summary judgment, or in the alternative, summary adjudication concerns the fourth cause of action, it is denied as to this cause of action.

[2]The Court notes that this sentence is contained in paragraph 12 of the Williams Declaration.

[3]The Court notes that it is difficult to determine from Plaintiffs’ separate statement in support of the motion what evidence Plaintiffs cite to. For instance, Plaintiffs’ Undisputed Material Fact No. 5 cites to the evidence “Id. at 82:10-18.” Although not entirely clear, this could refer to the deposition transcript of Mandi Martinez attached to the Declaration of Leilani Jones filed in support of Defendants’ motion for summary judgment, or in the alternative, summary adjudication.

[4] Defendants cite to So v. Shin (2013) 212 Cal.App.4th 652, 671-672, where the Court of Appeal noted that “[t]here is no bright line standard for judging outrageous conduct and…its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical…Thus, whether conduct is outrageous is usually a question of fact.” (Internal quotations and citations omitted.)

Superior Court of California

County of Los Angeles

Department 50