CARR v. TRADER JOE'S COMPANY, INC.

CASE NO.: 24NWCV02737 HEARING: Tuesday, August 25, 2026, at 9:30 AM I. Defendants TRADER JOE'S COMPANY and JEFF KERBY's Demurrer to Plaintiff's Second Amended Complaint is SUSTAINED in part. II. Defendants TRADER JOE'S COMPANY and JEFF KERBY's Motion to Strike Portions of Plaintiff's Second Amended Complaint is GRANTED with 30 days leave to amend. III. Plaintiff DR. FIRPO WYCOFF CARR, PhD's Motion to Compel Defendant JEFF KERBY's Further Responses to Request for Admissions, Set One is CONTINUED to Tuesday, October 6, 2026, at 9:30 AM in Dept. SE-R.

Background

Moving Party to give notice. On August 26, 2024, Plaintiff DR. FIRPO WYCOFF CARR, PhD (pro per) ("Plaintiff") filed this defamation action against Defendants TRADER JOE'S COMPANY, INC. ("Trader Joe's"); JEFF Kerby ("Kerby"); Jane Doe I; Jane Doe II; and Does 1-50.

On January 30, 2026, Plaintiff filed the operative Second Amended Complaint ("SAC". Plaintiff alleges that Defendant Jeff Kerby, a manager at a Trader Joe's store, told Plaintiff that he had committed acts of sexual assault against two female employees and asked Plaintiff not to return to the store. (SAC P. 19.) Another non-party employee, Sara Boyd, was present during the conversation. (SAC P. 33.) Plaintiff recorded the conversation. (SAC P. 19.)

Plaintiff's SAC asserts the following causes of action: (1) Defamation/Slander Per Se and (2) Vicarious Liability Defendants Trader Joe's and Kerby (collectively "Defendants") now specially and generally demur to each cause of action.

First Cause of Action - Defamation/Slander Per Se "Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement that is false, unprivileged, and has a natural tendency to injury or which causes special damage." (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.) "Slander is a form of defamation (Civ. Code Sec.44), consisting of a false and unprivileged oral publication (Civ. Code Sec.46). To establish a prima facie case for slander, a plaintiff must demonstrate an oral publication to third persons of a specified false matter that has a natural tendency to injure or that causes special damage." (Mann v. Quality Old Time Serv., Inc. (2004) 120 Cal.App.4th 90, 106.)

Plaintiff alleges that Kerby falsely accused Plaintiff of inappropriately touching a female Trader Joe's employee.

Publication Publication is a communication to some third person who understands both the defamatory meaning of the statement and its application to the person to whom reference is made. (Ringler Associates Inc. v. Maryland Cas. Co. (2000) 80 Cal.App.4th 1165, 1179.) Publication need not be to the public or a large group, communication to a single individual is sufficient. (Ibid.)

Plaintiff alleges Defendant Kerby made a false and unprivileged oral publication in the presence of non-party Sara Boyd. (FAC P. 33.) Publication to a single person is sufficient. The Court does not find authority stating that publication is insufficient where the third-person is a "interested party" or Defendant's employee.

Further, Defendant's arguments that Defendant Kerby was just communicating allegations and was no accusing Mr. Kerby of sexual misconduct is unfounded. Mr. Kerby stated, "You actually touched this crewmember." (SAC P. 19.) Similarly, the Court rejects Defendant's argument that Plaintiff does not allege Sara Boyd heard the statement, Plaintiff alleges Ms. Boyd was present, and pictures show she was within earshot of the coversation. (SAC P. 33, Ex. C.)

Hearsay Defendant's argument that any statements made by these employees to Defendant Kerby would constitute inadmissible hearsay on the part of Plaintiff is incorrect. Hearsay is a statement offered for the truth of the matter asserted. (Evid. Code Sec. 1200(a).) In bringing a defamation lawsuit, Plaintiff clearly is not using these statements of complaints against his for the truth of the matter. Quite the opposite, Plaintiff contends these statements are false.

Common Interest Privilege California's common interest privilege immunizes a person from tort liability for statements made to others on matters of common interest; provided that the person did not act with malice. (See Coastal Abstract Service, Inc. v. First American Title Insurance Co. (9th Cir. 1999) 173 F.3d 725, 735.) The common interest privilege is explained as follows: "(1) The 'interest' applies to a defendant who 'is protecting his own pecuniary or proprietary interest' (2) The required 'relation' between the parties to the communication is a contractual, business or similar relationship,... (3) The 'request' referred to must have been in the course of a business or professional relationship." (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118-1119.)

The Court already rejected Defendant's Common Interest Privilege argument holding: "The common interest privilege does not bar the second cause of action. There is no allegation that Kerby's alleged statements were made on a privileged occasion under the criteria set forth in Hui. A demurrer should only be sustained based on a qualified privilege where the application of the qualified privilege is clear on the face of the complaint. (See Tschirky v. Sup. Ct. (1981) 124 Cal. App.3d 534, 538). It is not clear on the face of the Complain that the alleged communications by Kerby to Plaintiff and one (or more) employees necessarily are subject to the "common interest" privilege. It is not clear what common interests Trader Joe's would have with Plaintiff/Trader Joe's employees." (07/08/25, M.O.)

Defendant's Demurrer to Plaintiff's First Cause of Action for Defamation is OVERRULED.

Second Cause of Action - Vicarious Liability Vicarious Liability is theory a liability, but not a separate cause of action. Plaintiff concedes this point. Defendant's Demurrer to Plaintiff's Second Cause of Action for Vicarious Liability is SUSTAINED. Plaintiff may incorporate any Vicarious Liability allegations into his first cause of action.

Motion to Strike A motion to strike lies either when (1) there is "irrelevant, false or improper matter inserted in any pleading"; or (2) to strike any pleading or part thereof "not drawn or filed in conformity with the laws of this state, a court rule or order of court." (CCP Sec.436.)

Punitive damages must be pled with specificity. Plaintiff must allege specific facts showing that the defendant's conduct was oppressive, fraudulent, or malicious. (Smith v. Sup. Ct. (1992) 10 Cal.App.4th 1033, 1041-42.) Allegations that a defendant exhibited a conscious disregard for the safety of others are sufficient to show malice. (Taylor v. Sup. Ct. (1979) 24 Cal.3d 890, 895-896.) To justify an award of punitive damages on this basis, Plaintiff must establish that the Defendant was aware of the probable consequences of his conduct. (Ibid.)

There must be pleaded "specific facts from which the conscious disregard of probable injury to others may reasonably be inferred." (Dawes v. Sup. Ct. (1980) 111 Cal.App.3d 82, 90.) Allegations of damages without allegations of fact to support them are conclusions of law. Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1509.) Mere allegations of wrongful, willful, knowing conduct are conclusory and insufficient to plead punitive damages. (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 32.)

When the defendant is a corporation, "the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation." (Wilson v. Southern California Edison Company ¿(2015) 234 Cal.App.4th 123, 164; see Civ. Code Sec. 3294(b).)¿¿

Plaintiff contends Defendant Kerby maliciously published a statement to third-parties. The Court does not find Defendant Kerby's actions support punitive damages. To start, as Plaintiff points out, Defendant Kerby let customers pass by before saying anything to Plaintiff. Further, the alleged defamatory statements were only communicated to Plaintiff and another one of Defendant's employees. Plaintiff's SAC also shows Defendant Kerby only communicated these statements because an employees made a complaint. (SAC P. 19.) Plaintiff fails to plead facts showing Defendant's oppressive, fraudulent, or oppressive conduct. Defendant's motion to strike punitive damages is GRANTED.

Leave to Amend 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 Plaintiff to show the Court that a pleading can be amended successfully. (Lewis v. Youtube, LLC (2015) 244 Cal.App.4th 118, 226.)¿¿ As to punitive damages, the Court will allow Plaintiff one opportunity to amend. Indeed, this is the first challenge to Plaintiff's punitive damages prayer and thus, the Court finds it appropriate to grant 30 days leave to amend. Defendant's Demurrer as to Plaintiff's Vicarious Liability Cause of Action is SUSTAINED without leave to amend.

Compel Further Defendant contends Plaintiff's Motion is MOOT because Defendant provided supplemental responses. Plaintiff maintains Defendant's additional responses remain deficient. The Court is not persuaded that counsel have exhausted their meet and confer obligations pursuant to the Code. Counsel are advised that their meet and confer efforts should go beyond merely sending letters stating their respective positions. (See Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1439.) "A determination of whether an attempt at informal resolution is adequate...involves the exercise of discretion.

The level of effort at an informal resolution which satisfies the 'reasonable and good faith attempt' standard depends upon the circumstances. In a larger, more complex discovery request, a greater effort at informal resolution may be warranted. In a simpler, or more narrowly focused case, a more modest effort may suffice. The history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of the discovery requested, the prospects for success and other similar factors can be relevant.

Judges have broad powers and responsibilities to determine what measures and procedures are appropriate in varying circumstances." (Obregon v. Sup. Ct. (1998) 67 Cal.App.4th 424, 431.)

Counsel are instructed to further meet and confer on the issues outlined in the subject Motion. Counsel are ORDERED to make further efforts to resolve the issues presented. If, after exhausting those efforts, court intervention is needed, counsel may appear and argue the merits on the continued hearing date. If counsel are unable to informally resolve their discovery disputes, then counsel are instructed to submit a JOINT STATEMENT outlining the remaining disputed issues for which a ruling is required. The joint statement must be FILED on or before Thursday, September 24, 2026.

Conclusion

Defendant's Demurrer to Plaintiff's SAC is SUSTAINED without leave to amend as to Plaintiff's Vicarious Liability Cause of Action and OVERRULED as to Plaintiff's Defamation Cause of Action. Defendant's Motion to Strike is GRANTED with 30 days leave to amend. Case Number: 25NWCV00196 Hearing Date: August 25, 2026 Dept: R #16 TRAN v. LA MIRADA POST ACUTE, LLC, ET AL.