Susan Lea vs Mrs Gooch's Natural Food Markets Inc

Case Number

23CV02365

Case Type

Hearing Date / Time

Mon, 09/18/2023 - 10:00

Nature of Proceedings

Demurrer

Tentative Ruling

Susan Lea v. Mrs. Gooch’s Natural Food Markets, Inc. dba Whole Foods Market                                                                              

Case No. 23CV02365

           

Hearing Date: September 18, 2023                                     

Hearing:              Defendant’s Demurrer to Plaintiff’s Complaint

Attorneys:        For Plaintiff Susan Lea: Self-Represented

                        For Defendant Ms. Gooch’s Natural Food Markets, Inc. dba Whole Foods Market: Matthew E. Bennett                  

TENTATIVE RULING: For the reasons set forth herein: Defendant’s demurrer to plaintiff’s complaint is sustained in part and overruled in part as follows:

1. Defendant’s demurrer to plaintiff’s first cause of action for Violation of the California Constitution, art. I, sections 1 and 7, is overruled.
2. Defendant’s demurrer to plaintiff’s second cause of action for Violation of the Unruh Civil Rights Act, is overruled
3. Defendant’s demurrer to plaintiff’s third cause of action for Violation of Ralph Civil Rights Act, is sustained with leave to amend
4. Defendant’s demurrer to plaintiff’s fourth cause of action for Violation of the Americans with Disabilities Act, is sustained with leave to amend.
5. Plaintiff shall file and serve her first amended complaint no later than October 5, 2023.
   1. Plaintiff’s first amended complaint shall not add any additional causes of action without first obtaining permission of the court to do so.

Background:

Plaintiff Susan Lea (“Lea”) filed her verified complaint on June 2, 2023, against defendant Ms. Gooch’s Natural Food Markets, Inc. dba Whole Foods Market (“Whole Foods”). The complaint sets forth causes of action for: (1) Violation of article I, sections 1 and 7 of the California Constitution; (2) Breach of the Unruh Civil Rights Act; (3) Violation of the Ralph Civil Rights Act; and (4) Violation of the Americans with Disabilities Act.

As alleged in the complaint:

As a result of injuries from “toxic chemicals” in 2015, and a physical attack in 2020, Lea is “physically and sight impaired, scarred and disfigured, Plaintiff is “old, white, female and has extremely frizzy ‘African’ like ‘natural’ hair. As an ugly, old and disabled white female with frizzy hair, Plaintiff is treated very poorly and unequally.” (Complaint, ¶¶ 6, 7.)

On August 14, 2022, Lea was physically attacked by a complete stranger in the parking lot of the Santa Barbara Whole Foods. (Complaint, ¶ 9.) Lea describes the parking lot as “well known to be poorly designed and unsafe.” (Ibid.) Three Whole Foods customers phoned “911” but no Whole Foods staff or employee did anything to help. (Ibid.) When the police arrived, Whole Foods employees identified Lea to them, “proving” that the staff knew that Lea had been attacked in the parking lot. (Complaint, ¶ 10.) No Whole Foods employee spoke to Lea, asked her if she was alright, or made a report of the incident. (Ibid.)

Following the August 14, 2022, parking lot incident, Lea “was the victim of repeated unfair harassment, bias and vile discrimination from and by certain Whole Foods cashiers. At least three (3) cashiers specifically harassed and victimized Plaintiff with dirty looks, hateful scorn, angry threats, insults and hateful words (trash talking Plaintiff loudly among themselves) and, sometimes, the refusal to serve Plaintiff as a customer was affected by walking away when Plaintiff came to their cash register.” (Complaint, ¶ 11.) “Whole Foods never properly supervised the said cashiers and made no effort whatsoever to stop the intentional harm of Plaintiff perpetrated by their hateful, biased cashiers.” (Complaint, ¶ 12.)

At the beginning of December 2022, two of the three Whole Foods cashiers “ganged up” on Lea as she attempted to check out groceries. (Complaint, ¶ 13.) One of the cashiers intentionally put her hands and fingers into Lea’s lunch that Lea was attempting to purchase from the “hot bar” at Whole Foods. (Ibid.) The cashier was “leering at Plaintiff, laughing menacingly, and asking what Plaintiff was going to do about it.” (Ibid.) When Lea twice asked the cashier to take her hands out of the container and stop touching the food, the cashier repeatedly threatened to have Lea kicked out of the store. (Ibid.) A “Whole Foods front end staffer” told Lea to ignore the threats and attacks. (Ibid.) Lea left the store and threw the food away. (Ibid.)

In 2023, Lea shopped at the Whole Foods once a week and no Whole Foods team leader or manager ever spoke to Lea about the December 2022 incident. (Complaint, ¶ 14.) The Whole Foods cashiers “continued to retaliate against Plaintiff with their racially motivated hatred, harassment, disrespect, incivility, discrimination, attacks, threats and imprecations. They turned their name tags so their names could not be read by Plaintiff whenever they targeted or came near Plaintiff.” (Ibid.)

On April 28, 2023, following an incident of rudeness at the self-check-out station, and an exchange with the man who had attacked her in the parking lot in August 2022, Lea called the customer service number for Whole Foods. (Complaint, ¶¶ 15-19.) The person answering the customer service call was one of the cashiers from the store. (Ibid.) The cashier said, “we all hate you” and “we want to get rid of you,” and then hung up the phone. (Ibid.)

A week later, on May 5, 2023, Lea was kicked out of the Whole Foods. (Complaint, ¶ 20.)

Whole Foods was served with the Summons and Complaint on June 13, 2023, through its agent for service of process.

Whole Foods filed the present demurrer on August 3, 2023, arguing that each cause of action is “uncertain, ambiguous, and/or unintelligible, and fails to state facts sufficient to constitute any cause of action against Defendant.”

Plaintiff filed her opposition to the demurrer August 16, 2023.

Whole Foods filed its reply on September 11, 2023.

Analysis:

“The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42.)’ (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

“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.) “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.)

“What is important is that the complaint as a whole contains sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)

First Cause of Action for Violation of Article I, section 1, and Article I, section 7, of the California Constitution

“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” (Cal. Const., art. I, § 1.)

“A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws . . ..” (Cal. Const., art. I § 7(a).)

The sections are similar in what is required to state a cause of action for violation of each one.

“These words do not explicitly disclose an intent either to authorize or to withhold damages as a remedy for a violation of the provision. Accordingly, we must look further in our attempt to discern whether article I, section 7(a) was intended to include a damages remedy.” (Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 318 (Katzberg).) The Katzberg court concluded that Article I section 7, of the California Constitution does not provide a damages remedy but it does afford injunctive or declaratory relief. “Even if the due process right embodied in article I, section 7(a) is enforceable only through an action for injunctive or declaratory relief, and not by an action for damages, this constitutional provision is hardly rendered innocuous or empty.” (Id. at p. 321.) There is “no basis upon which to infer an intent that the provision itself permit an action for damages to remedy a violation of that clause.” (Ibid.)

Lea pleads: “Plaintiff was deprived of her liberty without due process each time that Defendants, and each of them, threatened, harmed and discriminated against Plaintiff.” (Complaint, ¶ 28.) Lea further pleads: “The Defendants, and each of them, have knowingly denied Plaintiff her inalienable rights to enjoy life and denied Plaintiff any fundamental due process or legal protection of her rights under state or federal law.” (Complaint, ¶ 31.)

“[L]iberty is not license and consists not in a right in every man to do what he pleases, but that it consists in an equal right in all the people to have, to enjoy and to do in peace, security and without molestation, whatever the equal and constitutional laws of the country admit to be consistent with the public good.” (People v. Wickliff (1956) 144 Cal.App.2d 207, 211-212.)

Whole Foods acknowledges: “The State of California uniquely allows private causes of action against private entities, predominantly to date in the areas of privacy, voting rights, and sexual harassment.” (Demurrer, p. 11, ll. 8-10.) Whole Foods then argues: “However, the circumstances under which the State of California allows such constitutional actions against nongovernmental entities are limited in the case law. In order to properly allege such a claim against a nongovernmental entity, the law requires that there be some cogent precedential paradigm by which to make such an action colorable against private actors. No such basis exists for alleged life or liberty violations.” (Demurrer, p. 11, ll. 12-17.) Whole Foods provides no authority for this argument. It is true that nearly all of the cases involving a private persons action against a nongovernmental entity involve claims of privacy, voting rights, or sexual harassment, but there is nothing to suggest that this fact limits the ability of an individual to bring an action against a nongovernmental entity for other constitutional violations. Whole Foods citation to Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224 (Clausing) is not persuasive. It does not, as Whole Foods argues, stand for the proposition that: “Article I § 1 is merely a declaration of rights; it is not self-executing, does not impose a mandatory duty, nor does it create a private cause of action or private right to damages.” (Demurrer, p. 11, ll. 18-19.)

Clausing found Article I, section 28, subdivision (c), “is not self-executing, in the sense that it does not provide an independent basis for a private right of action for damages. Neither does it impose an express affirmative duty on any government agency to guarantee the safety of schools.” (Clausing, supra, at p. 1237-1238.) As to Article 1, section 1, the court held that it “is self-executing and supports a cause of action for an injunction.” (Id. at p. 1238.) “The difficulty is that appellants are not simply seeking injunctive relief in this cause of action. They are seeking to establish that respondents have a mandatory, affirmative duty to protect and defend the right of privacy; they ask for damages as well as equitable relief. Although citizens have a private cause of action against public entities for violation of the right to privacy, no case has ever held that California Constitution, article I, section 1, imposes a mandatory duty on public entities to protect a citizen’s right to privacy. The constitutional mandate is simply that the government is prohibited from violating the right; if it does, an aggrieved citizen may seek an injunctive remedy in court.” (Ibid.)

While the current action is different than Clausing, in the sense that it does not involve a governmental entity as a defendant, the reasoning can logically be applied  to the current action. Lea does not allege that Whole Foods has a mandatory duty to protect her rights. She alleges that Whole Foods violated her rights. As described above, Lea alleges multiple incidents including rude behavior, insults, putting hands and fingers in her food, threatening her, and kicking her out of a public grocery store.

At the pleading stage, reading the complaint as a whole and its parts in their context, as well as assuming the truth of all material facts pleaded, which the court must do, Lea has pled sufficient facts to overcome demurrer to her first cause of action.

         Second Cause of Action for Violation of the Unruh Act

The Unruh Civil Rights Act provides, in pertinent part: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status 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).) “This section shall not be construed to confer any right or privilege on a person that is conditioned or limited by law or that is applicable alike to persons of every sex, color, race, religion, ancestry, national origin, disability, medical condition, marital status, sexual orientation, citizenship, primary language, or immigration status, or to persons regardless of their genetic information.” (Id., at subd. (c).)

“A plaintiff can recover under the [Unruh Act] on two alternate theories: (1) a violation of the ADA ([Civ. Code,] § 51, subd. (f)); or (2) denial of access to a business establishment based on intentional discrimination.” (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1059.) Based on a reasonable reading of Lea’s complaint, she is basing her claim for recovery on both theories. Here, as ADA violations is contained in a separate cause of action, we will address the second theory: “denial of access to a business establishment based on intentional discrimination”.

“[A] plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act.” (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1175.)

Whole Foods argues that the Unruh Act only prevents “arbitrary, invidious, or unreasonable discrimination.” (Demurrer, p. 13, ll. 19-24.) Whole Foods argues that: “Plaintiff does not declare any particular instance where she was unable to access Defendant’s store, was unable to acquire or purchase desired items at Defendant’s store, or the like, due to the behaviors of the cashiers. The turning of nametags and walking away when Plaintiff approaches does not constitute a denial of privileges and services.” (Demurrer, p. 14, ll. 9-13.) “The only true denial of any advantages and privileges came about when Plaintiff was told that she would no longer be served in Defendant’s stores. Such a denial was only effectuated, however, as plead by Plaintiff, because she had called a staff member ‘stupid’ “. (Id. at ll. 18-20.)

Whole Foods representation that plaintiff admitted to calling a staff member “stupid,” is not true. What is alleged is: “Nevertheless, Danielle admitted that she had never talked to the Plaintiff, didn’t even know the Plaintiff, and had no personal knowledge of why the Plaintiff was being thrown from the store. She refused to speak to Plaintiff in any civil exchange, said she could not explain but mentioned she heard Plaintiff had called one of the cashiers ‘stupid’ ”. (Complaint, ¶ 20.) Nowhere in the complaint does Lea admit to calling anyone stupid or, for that matter, engaging in any poor behavior. By way of its reply brief, Whole Foods argues: “Plaintiff’s disruptive behavior was the operative basis that resulted in her exclusion.” (Reply, p. 7, ll. 13-14.) Whether or not Lea acted in a manner that would justify Whole Foods in kicking Lea out of the store is a matter of proof and would require the assessing of credibility and weighing of evidence. It is improper to do so in ruling on a demurrer.

As further relevant here, Lea pleads that Whole Foods employees intentionally discriminated against her based on her status as an “older, white, disabled female with frizzy hair” and that Whole Foods ratified the discrimination. (Complaint, ¶ 35.)

At the pleading stage, reading the complaint as a whole and its parts in their context, as well as assuming the truth of all material facts pleaded, which the court must do, Lea has pled sufficient facts to overcome demurrer to her second cause of action.

            Third Cause of Action for Violation of Ralph Civil Rights Act

The Ralph Civil Rights Act of 1976 provides, in pertinent part: “All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive.” (Civ. Code, § 51.7, subd. (b)(1), italics added.)

Whole Foods, like others before it, argues that the Ralph Civil Rights Act is a “hate crimes” statute but acknowledges that “hate” itself is not an element of the Act. (Opposition, p. 15, ll. 15-17.)

“ ‘It may be true that this section and other similar California statutes were enacted ‘ “in response to [the] alarming increase in hate crimes.” ’ [Citation.] Nevertheless, there is no requirement that the violence be extreme or motivated by hate in the plain language of the sections, or in the cases construing them; there is also no requirement that the act constitute a crime. If the California legislature wanted to limit the reach of the statute to extreme, criminal acts of violence, it could have explicitly said so. What it did instead was create civil liability which sweeps more broadly than the common, colloquial meaning of the phrase ‘hate crime.’ Without clear evidence that the legislature intended otherwise, we will not disturb the plain meaning of the statute.’ ” [Citation.]” (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 270.)

To state a Ralph Act claim, the violence or intimidation by threat of violence must have been committed “because of” one or more of the claimant’s protected characteristics. The Unruh Act definitions, discussed above, have been incorporated into the Ralph Act and includes as a protected characteristic the perception that someone has one of the listed characteristics. It also included “political affiliation” and “position in a labor dispute” as protected characteristics.

By the plain language of the statute, as an essential element of a claim brought under the Ralph Act, it must be alleged that the defendant committed or threatened violent acts against the plaintiff. “Violence” means the application of physical force. (See People v. Bamba (1997 58 Cal.App.4th 1113, 1123; People v. Bravot (1986) 183 Cal.App.3d 93, 97.)

To be actionable, as opposed to protected speech, a threat “on its face and in the circumstances in which it is made [must] . . . be so unequivocal, unconditional, immediate, and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.” (In re M.S. (1995) 10 Cal.4th 698, 710.)

Lea makes vague references to “violence” and “threats of violence” in her complaint. However, the only violence or threatened violence that is described in Lea’s complaint are related to actions of unknown third parties not alleged to be employees of Whole Foods.

Because the complaint fails to allege sufficient facts to state a cause of action under the Ralph Act, the demurrer to the third cause of action will be sustained.

“[F]or an original complaint, regardless whether the plaintiff has requested leave to amend, it has long been the rule that a trial court’s denial of leave to amend constitutes an abuse of discretion unless the complaint ‘shows on its face that it is incapable of amendment.’ [citations]” (Eghtesad v. State Farm General Insurance Company (2020) 51 Cal.App.5th 406, 411.)

As there is a reasonable probability that Lea could amend to state facts sufficient to set forth a proper third cause of action, she will be given leave to amend.

            Fourth Cause of Action for Violation of the Americans with Disabilities Act

Lea brings her forth cause of action for violation of the ADA based on Whole Foods denying her access or refusing admission to their market. (Complaint, ¶ 44.)

“Title III of the ADA provides, “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” (42 U.S.C. § 12182(a).)

“[A]n entity covered by Title III is not only obligated by the statute to provide disabled persons with physical access, but is also prohibited from refusing to sell them its merchandise by reason of discrimination against their disability.” (Pallozzi v. Allstate Life Ins. Co. (1999) 198 F.3d 28, 33.)

“To prevail on a Title III discrimination claim, the plaintiff must show that (1) she is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of her disability.” (Molski v. M.J. Cable, Inc. (9th Cir. 2007) 481 F.3d 724, 730.)

A place of public accommodation includes grocery stores. (42 U.S.C. § 12181(7)(E).)

As noted above, Lea alleges that she is “physically and sight impaired, scarred and disfigured.” For pleading purposes, the first prong is satisfied. There is no dispute that Whole Foods is a private entity that owns, leases, or operates a place of public accommodation. For pleading purposes, the second prong is satisfied.

However, Lea does not allege that she was kicked out of the Whole Foods because of any of her claimed disabilities. She alleges that “Danielle,” whom was not one of the cashiers alleged to be rude, kicked her out of the store. “Plaintiff asked ‘Can we

talk’, and Danielle said ‘yes’, then ‘no’. Nevertheless, Danielle admitted that she had never talked to the Plaintiff, didn’t even know the Plaintiff, and had no personal knowledge of why the Plaintiff was being thrown from the store. She refused to speak to Plaintiff in any civil exchange, said she could not explain but mentioned she heard Plaintiff had called one of the cashiers ‘stupid’ ”. (Complaint, ¶ 20.)

Being denied public accommodation because of a disability is an essential element of prevailing on a claim under the ADA. As such, Lea is required to allege sufficient facts of that element. She has failed to do so.

           

Because the complaint fails to allege sufficient facts to state a cause of action under the ADA, the demurrer to the fourth cause of action will be sustained. As there is a reasonable probability that Lea could amend to state facts sufficient to set forth a proper fourth cause of action, she will be given leave to amend.

“The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so . . .” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) Lea will be ordered to not add any new causes of action to her first amended complaint without following the proper legal procedure.