CECILIA MARIA COLEMAN v. COSTCO

Defense Counsel separately filed declarations in support of the Demurrer and Strike Motion. Other than the discussions on the meet and confer efforts related to the SAC, the remainder portions of the declarations are improper and are not considered. A Demurrer and Strike Motion are limited to the matters pled or matters judicially noticed. Counsel is not permitted to put into the record new evidence, facts, or arguments via declarations (other than on compliance with the meet-and-confer obligation).

Demurrer

A demurrer challenges defects that appear on the face of the pleading, which includes incorporated exhibits or matters that are judicially noticeable, but nothing else. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [“Blank”]; Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) When evaluating a demurrer, the Court reasonably interprets the pleading by reading it as a whole and its parts in their context. (Blank, supra, 39 Cal.3d at p. 318.) The material facts that are properly pled are assumed true for purposes of a demurrer, but contentions, deductions, or conclusions of fact or law are not assumed true. (Ibid.) Whether a plaintiff can prove the allegations or the difficulty in proving the allegations is of no concern. (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 936.) The complaint is to be liberally construed. (Code Civ. Proc., §452.)

A demurrer predicated on insufficient facts to constitute a cause of action (Code Civ. Proc., §430.10, subd. (e)) should be granted only when the facts alleged on the face of the complaint fail to state any valid claim entitled to the plaintiff. (New Livable California v. Association of Bay Area Governments (2020) 59 Cal.App.5th 709, 714.)

If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility that the defect can be cured by amendment. (Blank, supra, 39 Cal.3d at p. 318.) On the other hand, “if it appears from the complaint ... there is no reasonable possibility that an amendment could cure the complaint’s defect,” sustaining without leave to amend is permissible. (Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486.)

Before filing a demurrer, the moving party shall meet and confer with the opposing party at least 5 days before a responsive pleading is due, in person, by telephone, or by video conference, to see if they can resolve the objections to the pleading. (Code Civ. Proc., §430.41, subd. (a).) With the demurrer, the moving party shall submit a declaration stating (a) how the parties met and conferred and no resolution was reached, or (b) the opposing party failed to respond to the demurring party’s meet and confer requests or failed to meet and confer in good faith. (Code Civ. Proc., §430.41, subd. (a)(3).)

Analysis

Procedurally, Defense Counsel sent emails/letters to Plaintiff to address the SAC. A phone call was scheduled but it did not occur because Plaintiff indicated in a responsive email that it would be meaningless. (Teas Decl. at ¶¶5-6, 8, 15.) Although a meet and confer was not performed in a codecompliant manner, the Court finds that a good faith effort to do so was made. By all implications, Plaintiff was not willing to speak based on it being meaningless to do so. Thus, the merits of the Demurrer are addressed.

Wrongful Death

In its Demurrer, Costco argues that the wrongful death claim by Plaintiff’s son is contrary to Code of Civil Procedure section 377.60, as Plaintiff has not passed away. Although Costco is correct on its argument, there is no wrongful death cause of action. The Complaint may improperly check box 12 from the form complaint and include improper wrongful death allegations, but those are properly addressed in the separately filed Motion to Strike. A party cannot demurrer to a non-existent cause of action.

Intentional Tort/IIED

Defendant Costco demurs to the 1st cause of action marked intentional tort because Plaintiff fails to identify the intentional tort within the form SAC. However, a fair reading of the intentional tort attachment is that Coleman is pleading a claim for IIED as her intentional tort.

In particular, the allegations in the attachment is that a Costco employee yelled at Coleman, which led to her suffering a seizure, and triggering her mania. She then allegedly reported the employee, the employee’s supervisor lied to her and indicated the Costco does not care about her disability after laughing loudly at her. It is further alleged that Costco employees’ actions caused Coleman to have a reasonable fear, suffer seizures, triggered her mental health, and re-traumatized her suicidal ideations.

After the attachment, Plaintiff attaches a document that addresses IIED. Plaintiff also attaches a pleading titled “Second Amended Complaint,” in which she identifies a cause of action for IIED at page 8:26-9:22 (or scanned pages 27-28).

Construing all this in totality, the 1st cause of action is one for IIED.

In challenging the IIED cause of action, Defendant Costco argues that the allegations fail to plead extreme and outrageous conduct and intent to cause emotional distress. To state an IIED claim, one must plead (1) outrageous conduct by the defendant, (2) intentional or reckless causing emotional distress, (3) severe emotional distress, and (4) causation. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.) Outrageous conduct is conduct that is so extreme it exceeds all bounds that are usually tolerated in a civilized community, beyond all possible bounds of decency, and regarded as atrocious. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51 [“Hughes”]; Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.)

In addition to the attachment allegations contained in the SAC pleading, Plaintiff alleges that while at a sample display, she went into a partial focal seizure. As she was coming out, employee Tracy willfully yelled loudly at her, which put her back into a focal seizure that led her to walk to the bathroom where she experienced a vomit seizure. Coleman’s caretaker had informed the employee, Tracy, to stop yelling because Coleman was in a seizure. Tracy continued to yell at the plaintiff. Coleman then reported Tracy to her supervisor/manager.

The next day, Coleman returned to speak with the supervisor who, after leaving to look at the cameras, came back and said he would speak with Tracy. In response, Coleman went to speak with manager Brandon about the supervisor lying. While speaking, Brandon cut her off with a loud laugh and said, “We don’t care about your disabilities, get to the point.” This caused Coleman to start shaking and crying. Her face turned red. (See, pp. 3:20-4:4)

If accepted that Costco employee yelled at a customer who was in the midst of a seizure, which the employee was informed about, and then continued to yell to cause Coleman to enter into a second seizure, a jury could arguably determine that such behavior was outrageous, beyond all bounds of decency. A jury could also find that under the alleged circumstances, the acts of continued yelling was intentional or recklessly caused emotional harm. Taking that with the follow-up acts by additional Costco employees could support allegations of intentional or reckless disregard of Coleman’s condition causing her emotional distress.

Based upon the totality of the allegations contained in the SAC, the court finds that sufficient facts are alleged to arguably establish the elements of an IIED cause of action and the court intends to overrule the Demurrer as to said cause of action, which is deemed an intentional tort cause of action.

Negligence

The second cause of action attachment to the form SAC is negligence. The SAC also pleads negligence (p. 8:15-21; scanned page 27). Plaintiff alleges that Costco owed a duty to prevent harm, and it breached its duty under the American Disabilities Act (ADA) and Fair Employment and Housing Act (FEHA) to provide a reasonable accommodation to disabled patrons. It provided no accommodation for customers with epilepsy and mental illness. Plaintiff also references the Unruh Civil Rights Act (Unruh Act), the Ralph Civil Rights Act (Ralph Act), Disabled Persons Act (DPA), and Penal Code section 422.55 and 242.

To plead negligence, the plaintiff must allege (1) legal duty, (2) breach of the legal duty, (3) causation, and (4) damages. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213.)

The ADA prohibits discrimination based on disability in the full and equal employment of goods, services, facilities, privileges, advantages, or accommodations of any public place. (Kwon v. Ramirez (C.D.Cal. 2021) 576 F.Supp.3d 696, 699.)

The Unruh Act provides that all persons within California are free and equal, and no matter their sex, race, color, religion, disability, etc. are entitled to the “full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, §51, subd. (b).) The objective of the Unruh Act is to prohibit businesses from engaging in unreasonable, arbitrary, or invidious discrimination. (White v. Square, Inc. (2019) 7 Cal.5th 1019, 1025; Cohn v. Corinthian Colleges, Inc. (2008) 169 Cal.App.4th 523, 527.)

The Ralph Act provides that all persons have the right to be free from any violence or intimidation by threat of violence, committed against their person or property because of their disability, etc. (Civ. Code, §51.7.) To prevail on a claim under the Ralph Act, a plaintiff must prove: (i) the defendant committed a violent act or intentionally threatened violence against the plaintiff or his property, (ii) a motivating reason for the defendant’s conduct was its perception of the plaintiff’s disability and/or any other protected status defined in Civ. Code §51(b) or (e), (iii) the plaintiff was harmed, and (iv) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (CACI 3023A, 3023B.)

Penal Code section 422.55 defines a hate crime to include a criminal act committed because of the victim’s disability.

Although Coleman references FEHA, it cannot support any theory because it provides relief for employees and housing tenants, which Coleman is not alleged to be either. In her Opposition, she concedes that the reference to FEHA was a mistake. Plaintiff also concedes the reference to Penal Code section 242, and DPA were mistakes, and she is removing them.

Although a person owes a general duty to do no harm [Civ. Code, §1714, subd. (a)], the SAC is not pleading any negligent harm or discrimination. The crux of the SAC is that an employee yelled at Coleman while she was in a seizure, which resulted in her going back into a second seizure. Her complaints to a supervisor and/or manager were then ignored and laughed upon. These are not pleading factual allegations of Costco denying access to its warehouse. Furthermore, an employee allegedly yelling at Coleman is not going to constitute a criminal hate crime, engaging in violence or threats of violence, and engaging in discrimination. As indicated above, it may support civil liability for IIED, but it is not going to support Costco engaged in negligent, intentional, or discriminatory conduct. The allegations lack any claim of denial of access to or the use of services at the Costco warehouse.

As Plaintiff’s sole theory of liability in the SAC rests on being yelled at, which is not going to support any negligence theory (e.g., Costco caused her physical injury), hate crime, or violation of the ADA, Unruh Act, or Ralph Act. Consistent with her complaint and her opposition to the demurrer to the first amended complaint, plaintiff offers nothing in her present opposition indicating the existence of facts that could be pled apart from being yelled at to support negligence, hate crime, or violations of the ADA, Unruh Act, or Ralph Act. Accordingly, the Court intends to sustain the demurrer to the 2nd cause of action for negligence and other statutory violations without leave to amend.

Motion to Strike

The court intends to grant the defendant’s motion to strike as it is unopposed and the Plaintiff concedes the points raised.

TENTATIVE RULING

(1) Defendant Costco’s Demurrer to the 1st cause of action, which the Court holds is one for IIED, is overruled; (2) Defendant Costco’s Demurrer to the 2nd cause of action for negligence and/or violations of the ADA, FEHA, Unruh Act, Ralphs Act, DPA, and/or Penal Code sections 422.55 and 242 is sustained without leave to amend; (3) The court grants Defendant Costco’s unopposed Motion to Strike in its entirety; (4) Defendant Costco is to file and serve its Answer to the SAC within 20 days of this ruling; and (5) Defendant to give notice of the court’s rulings on the Demurrer and Motion to Strike.