Judge Yolanda Orozco, Case 22STCV03083 2022-08-31 Tentative Ruling

Judge: Yolanda Orozco, Case: 22STCV03083, Date: 2022-08-31 Tentative Ruling

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Case Number: 22STCV03083 Hearing Date: August 31, 2022 Dept: 31

DEMURRER IS SUSTAINED

Background

On January 26, 2022, Plaintiff pro se Peter N. Yaya, filed a Complaint against Defendant Nowhere Partners Corp d/b/a Erewhon Grocery Market; and Does 1 to 20.

The operative First Amended Complaint (FAC) alleges

1) Civil Rights Violation

2) Assault

3) Battery

4) Intentional Infliction of Emotional Distress

On June 27, 2022, Defendant filed a Demurrer without a Motion to Strike

Plaintiff has not filed an Opposition.

Meet and Confer Requirement

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred, in person or telephonically, to determine whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc. (CCP) § 430.41.)¿¿

Defense counsel attests that on or around June 17, 2022, he attempted to meet and confer over the phone with Plaintiff regarding Defendant’s intention to file a Demurrer. (Wainer Decl. ¶ 3.) Defense counsel states that Plaintiff advised him he would not agree to voluntarily amend or dismisses any causes of action as pled in the Complaint against Defendant. (Id.) Thus, the meet and confer requirement is met.

Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.¿ (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿ “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿ For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿¿

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)¿

Request for Judicial Notice (if applicable)

Defendant requests Judicial Notice of the following:

Exhibit A: Centers For Disease Control and Prevention. “CDC calls on Americans to wear masks to prevent COVID-19 spread.” July 14, 2020.

Exhibit B: Centers for Disease Control and Prevention. “Improve the Fit and Filtration of Your Mask to Reduce the Spread of COVID-19.” April 6, 2021.

Exhibit C: Centers for Disease Control and Prevention. “Science Brief: Community Use of Masks to Control the Spread of SARS-CoV-2.” December 6, 2021.

Exhibit D: Howard, J., et al. “An evidence review of face masks against COVID19.” Proceedings of the National Academy of Sciences of the United States of America, December 5, 2020. 118 (4) e2014564118.

Exhibit E: State of California Department of Public Health. Memorandum: Guidance for the Use of Face Coverings. June 24, 2021.

Exhibit F: County of Los Angeles Department of Public Health. Order of the Health Officer. July 22, 2021.

The request is made pursuant to Code of Civil Procedure sections 430.30, 452, and California Rules of Court rule 3.1113(1) and 3.1306(c). The Court may only judicially notice the existence of the record, not that its contents are true. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)

Defendant’s request for Judicial Notice is GRANTED.

Discussion

Plaintiff alleges that on or about December 29, 2020, at about 3:30 p.m., Plaintiff attempted to enter the store to purchase groceries. (FAC ¶ 8.) Plaintiff asserts that he is disabled within the meaning of California Civil Code section 51 subdivision (b)(1) because he has a deviated septum which is an impairment that substantially limits one or more major life activities, including functions of the respiratory system. (FAC ¶ 9.) Plaintiff asserts that Defendant’s employees, including the manager, closed and locked the front doors of the store to prevent Plaintiff from entering. (Id. ¶ 10.) Plaintiff believes he was prevented from entering the story because he was not wearing a face mask. (Id. ¶ 11.) When employees opened the door to allow a customer to exit, Plaintiff then attempted to enter but was assaulted and battered by several employees in violation of his civil rights. (Id. ¶ 12.)

Plaintiff asserts that he told the manager he had a disability that prevented him from being able to safely wear a mask. (FAC ¶ 13.) Plaintiff entered the store via a gap between the manager and the door frame, at which time another employee assaulted and battered the Plaintiff who was on his way to retrieve items for purchase. (Id.) At the time of purchase, “another employee encouraged the employees working the registers to close all registers and not allow [Plaintiff] to make a purchase.” (Id. ¶ 14.) Plaintiff filed a police report with the Los Angeles Police Department for assault and battery (case no. 2101:07M08-006.)

Lastly, Plaintiff asserts that on December 31, 2020, he sent an email to Defendant and asked for appropriate action to be taken, but never received a response. (FAC. ¶ 16.) Plaintiff asserts that the discriminatory denial and subsequent physical actions caused Plaintiff to experience emotional distress. (Id. at ¶ 15.)

Defendant now demurrers to Plaintiff’s Complaint on the basis that Plaintiff fails to state facts sufficient to constitute a claim. Defendant’s request for Judicial Notice of the fact that there was no cure or fully effective treatment for COVID-19 in December 2020 was granted. (RJD Ex. A-D.)

i. First Cause of Action: Violation of Civil Liberties

The Unruh Act provides that,

“All persons within the jurisdiction of [California] are free and equal, and no matter what their ... disability [or] medical condition ... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

(Cal. Civ. Code § 51 subd. (b).)

Plaintiff states that he has a disability that makes it difficult to breathe and unsafe for him to wear a mask. (FAC ¶ 18.) Accordingly, Plaintiff asserts that he had a medical condition that excused him from wearing a face covering. (FAC Ex. A.) Plaintiff asserts his civil liberties were violated because he was regulated to the status of a second-class citizen by being compelled to do curbside pickup items rather than entering the store to select the specific items to be purchased like other members of the general public. (FAC ¶ 20.)

Furthermore, Plaintiff alleges that wearing a face shield, allowing an employee to shop on his behalf, and/or utilizing curbside pick-up is not an option for Plaintiff and does not qualify as full and equal access to goods and services as required by the Unruh Act. (FAC ¶ 28.) Plaintiff asserts that he was diagnosed with and suffers from anxiety, which makes it impossible for him to wear a face shield as well as a mask. (Id.) Plaintiff found the experience of having an employee shop for him to be “both humiliating and inconvenient.” (Id.) Plaintiff has previously attempted to use curbside pick-up before and found it to be “substandard to include missing items, and poor choice of produce, in addition to being charged a fee for services.” (Id.) Therefore, Plaintiff concludes that the alternative options offered by Defendant “are not the equivalent of full and equal access to good and services as required by law.” (Id.)

Defendant asserts that the Face Covering Policy was “necessary” to safely operate the store during COVID-19 and to protect its employees and other shoppers. Accordingly, the Unruh Act does not prohibit Defendant from barring Plaintiff or any individual entry if they do not or cannot wear a mask because entry without a face covering poses a “direct threat” to the health and safety of everyone in the store. Defendant asserts it has a duty to keep its customers and employees safe and avoid unnecessary risk. Defendant also asserts that when the pandemic started and deaths from COVID continued to rise, authorities, customers, and employees demanded action from Defendant. Accordingly, the Face Covering Policy was implemented.

By its terms, the Unruh Act “does not extend to practices and policies that apply equally to all persons.” (Turner v. Ass'n of Am. Med. Colls. (2008) 167 Cal.App.4th 1401, 1408, citing Cal. Civ. Code § 51(c)).) To establish a violation of the Unruh Act that is independent of a claim under the Americans with Disabilities Act (ADA), the plaintiff must “plead and prove intentional discrimination in public accommodations in violation of the terms of the [Unruh] Act.” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 668 [internal quotation marks omitted].” “The California Supreme Court has clarified that the Unruh Act contemplates ‘willful, affirmative misconduct on the part of those who violate the Act’ and that a plaintiff must therefore allege, and show, more than the disparate impact of a facially neutral policy.” (Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc. (9th Cir. 2014) 742 F.3d 414, 425 [citation omitted].)

Defendant asserts that it complied with the prohibition of discrimination by public accommodations because its “eligibility criterion” was a Face Covering Provision that was “necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered” because the policy was based on public and widespread information conveyed by the State of California and other governmental authorities about the Covid-19 pandemic. (See RJN Ex. E, F; 42 U.S.C.A. § 12182 subd. (b)(2)(A)(i).) Defendant asserts that Plaintiff is not disabled, however, the Court must accept as true the allegations made in the Complaint.

Because Plaintiff is asserting an Unruh Act claim independent of the ADA, Plaintiff was required to show that Defendant’s Face Covering Policy was not neutral and that Defendant acted with intent to discriminate against him. Accordingly, Plaintiff fails to plead any factual, non-conclusory allegation that he was intentionally discriminated against because Defendant implemented a neutral Face Covering Policy to protect its patron and employees.

Accordingly, Plaintiff has not articulated facts to show that Defendant’s neutral and necessary Face Covering Policy was discriminatory. Defendant’s demurrer as to the first cause of action is SUSTAINED with leave to amend.

ii. Second & Third Causes of Action: Assault and Battery

“The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in causing the plaintiff's harm. (Citation) The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)

Plaintiff alleges that Defendant’s employees assaulted him, in violation of California Penal Code section 240 when Defendant’s employees threatened to touch Plaintiff in a harmful manner and it reasonably appeared to Plaintiff that Defendant’s employees were about to carry out a threat. (FAC ¶¶ 33-35.) Plaintiff did not consent to the employees' conduct, Plaintiff was harmed, and Defendant’s conduct was a substantial factor in causing Plaintiff’s harm. (Id. at ¶¶ 36-38.)

Specifically, Plaintiff alleges that upon attempting to enter the store:

“Plaintiff first pushed by a large black male (DOE #1) wearing a blue shirt and yellow face mask, then grabbed and pushed by a second larger black male (DOE #2) wearing a black shirt with a blue surgical face mask and a black baseball cap, then pushed again by a smaller light-skinned black male (DOE #3) with hazel eyes wearing a gray hooded sweatshirt, a black face mask, and a black beanie hat who then also came out and began threatening plaintiff. DOE 3 emerged and in a series of instances feigned hitting Plaintiff and attempted to make him flinch with aggressive movements towards him. Plaintiff believed that he was going to be hit and flinched in response. When the plaintiff stated that it was assault, the assailant, DOE #3 said “you're going to get hit next”. DOE #3 also stated that he was going to “fuck you up”, referring to the Plaintiff, which caused Plaintiff to feel shocked and frightened for his life. Plaintiff believes and is informed that DOE #3 either recklessly or intentionally caused Plaintiff to be frightened by DOE #3’s outrageous conduct; and, as such, intentionally inflicted emotional distress upon Plaintiff, in addition to committing the assault.”

(FAC ¶ 38.)

Plaintiff alleged that Defendant committed a battery in violation of Penal Code section 242 when Defendant’s employees touched him with the intent to harm or offend him without his consent. (FAC. ¶¶ 40-42.) Plaintiff was harmed by Defendant’s conduct and a reasonable person in Plaintiff’s situation would have been offended by the touching. (Id. ¶¶ 43, 44.) Plaintiff specifically alleges:

“In rapid succession, two large males, DOES #1 and #2, grabbed Plaintiff by the lapels of his jacket and moved him aside, and in a second instance, DOE #3 forcefully pushed and threw him backward. The Plaintiff found this behavior offensive and completely unacceptable under the norms of a civilized society.”

(Id. ¶ 45.)

Defendant argues that even if the Does were employees of Defendant, Plaintiff has failed to allege that the employees were acting within the scope of their employment when they committed the alleged assault and battery. (See College Hospital v. Superior Court (1994) 8 Cal.4th 704.) Moreover, for the act to be within the scope of employment, the employee’s conduct must be incidental to his or her duties or reasonably foreseeable to the employer. (Martinez v. Hagopian (1986) 182 Cal.App.3d 1223,1227.)

The Court agrees. Plaintiff fails to state facts showing that Defendant’s employees acted within the scope of their employment when they allegedly assaulted and battered Plaintiff. Lastly Plaintiff has failed to state sufficient facts to show that the Does that attacked Plaintiff were employees of Defendant or that Defendant ratified the Does’ actions. (See Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 969 [stating that a principal ratifies its agent’s conduct after the fact by voluntarily electing to adopt the agent’s conduct as its own.].

Absent these facts, Plaintiff’s claims for battery and assault fail. Accordingly, Defendant’s demurrer to Plaintiff’s second and third cause of action is SUSTAINED with leave to amend.

iii. Fourth Cause of Action: Intentional Infliction of Emotional Distress

The tort of intentional infliction of emotional distress is committed when the defendant's conduct is intentionally intrusive and outrageous and has a traumatic effect on the plaintiff’s emotional tranquility. (Alcorn v. Anbro Engineering (1970) 2 Cal. 3rd 493, 498.) “[B]ehavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (Bogard v. Employers Cas. Co. (1985) 164 Cal. App. 3d 606, 616.)

Plaintiff alleges that Defendant’s conduct caused him to suffer severe emotional distress. (FAC. ¶ 47.) That “defendants acted with reckless disregard of the probability that the Plaintiff would suffer emotional distress, knowing that the plaintiff was present when the conduct occurred.” (Id. ¶ 48.) Plaintiff suffered severe emotional distress. (Id. ¶ 49.) Specifically, the assault and battery by DOES 1 to 3, and omissions by the manager (Doe #4), all caused Plaintiff significant emotional distress. (FAC ¶ 50.) Specifically:

“At any time the manager could have called off his employees, but chose not to. This act of omission shows intent to inflict emotional distress. As a result Plaintiff has had nightmares of having to fight and defend himself against people trying to prevent him from entering a business.”

(Id.) Consequently, anytime Plaintiff considers entering a business, “he is immediately overcome with a feeling of dread accompanied by a significant increase in heart rate, blood pressure and frequency of respiration.” (Id.) Lastly, Plaintiff asserts he was previously diagnosed with anxiety which is exacerbated by the use of a face mask due to the increased difficulty in breathing. (FAC ¶ 51.)

Since Plaintiff fails to state a cause of action for assault or battery against Defendant, Plaintiff cannot show that Defendant’s conduct was the proximate result of the emotional distress Plaintiff suffered. Accordingly, Defendant’s demurrer to the fourth cause of action is sustained with leave to amend.

Conclusion

Defendant Nowhere Partners Corp.’s demurrer to Plaintiff’s First Amended Complaint is SUSTAINED with 30 days’ leave to amend.

Defendant to give notice.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking protocols will be observed at the Courthouse and in the courtrooms.