Susan Lea vs Mrs Gooch's Natural Food Markets Inc et al

Case Number

23CV02365

Case Type

Hearing Date / Time

Mon, 03/04/2024 - 10:00

Nature of Proceedings

CMC; Motion: Leave to File Second Amended Complaint to Add Three Causes of Action

Tentative Ruling

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

Case No. 23CV02365         

Hearing Date: March 4, 2024                                                 

HEARING:             Plaintiff’s Motion for Leave to File Second Amended Complaint

ATTORNEYS:        For Plaintiff Susan Lea: Self-Represented

                        For Defendant Ms. Gooch’s Natural Food Markets, Inc. dba Whole Foods Market, Stephanie Botello, Julisa Perez, Makenzie Champion, Jacob Foley, Danielle Iverson, George Lazaro, Kathy Wise, Silvia Brown, and Sylvia Silva: Matthew E. Bennett            

TENTATIVE RULING:

Plaintiff’s motion for leave to file second amended complaint is denied.

Background:

Plaintiff Susan Lea (“Lea”) filed her original 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 original 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 demurred to the original complaint. On September 18, 2023, the demurrer was sustained in part and overruled in part. On September 28, 2023, Lea filed her first amended complaint (“FAC”) and then thereafter substituted in several individuals in place of Doe defendants. The FAC, while containing some additional facts, essentially sets forth the same allegations that are contained in the original complaint.

Lea now moves to file a second amended complaint (“SAC”) to add three additional causes of action: (1) Negligence; (2) Malicious Slander and Defamation; and (3) Fraud on Plaintiff and this Court.

Defendants’ oppose the motion arguing that the new causes of action are barred by the litigation privilege.

Analysis:

Pursuant to Code of Civil procedure section 473(a)(1), the court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading. The court’s discretion will usually be exercised liberally to permit amendment of the pleadings. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.)

“Generally, leave to amend must be liberally granted [citation], provided there is no statute of limitations concern, nor any prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. [Citation.]” (Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448.)

“A long unexcused delay may be the basis for denying permission to amend pleadings [citations], especially where the proposed amendment interjects a new issue [citations], which may require further investigation or discovery procedures [Citations.]” (Nelson v. Specialty Records, Inc. (1970) 11 Cal.App.3d 126, 139.)

            Motion Requirements

“(a) Contents of motion

A motion to amend a pleading before trial must:

“(1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

“(2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

“(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

“(b) Supporting declaration

A separate declaration must accompany the motion and must specify:

“(1) The effect of the amendment;

“(2) Why the amendment is necessary and proper;

“(3) When the facts giving rise to the amended allegations were discovered; and

“(4) The reasons why the request for amendment was not made earlier.

“(c) Form of amendment

The court may deem a motion to file an amendment to a pleading to be a motion to file an amended pleading and require the filing of the entire previous pleading with the approved amendments incorporated into it.

“(d) Requirements for amendment to a pleading

An amendment to a pleading must not be made by alterations on the face of a pleading except by permission of the court. All alterations must be initialed by the court or the clerk.” (Cal. Rules of Court, rule 3.1324.)

Lea has substantially complied with California Rules of Court, rule 3.1324.

            Litigation Privilege

As noted above, defendants oppose the motion on the grounds that there is a complete defense to Lea’s proposed new causes of action because they are barred by the litigation privilege.

With exceptions not present here, the litigation privilege exists: “In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding . . . .” (Civ. Code, § 47, subd. (b).)

The intention of the party making the privileged communication is irrelevant because the privilege “ ‘is absolute in nature, applying “ ‘to all publications, irrespective of their maliciousness.’ ” [Citation.]” (Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 288.)

“ ‘The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.’ ” [Citation.] The privilege “ ‘is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.’ ” [Citation.]” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.)

“ ‘The principal purpose of [the litigation privilege] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. [Citations.]’ ” [Citation.] In order to achieve this purpose of curtailing derivative lawsuits, we have given the litigation privilege a broad interpretation. The litigation privilege “ ‘derives from common law principles establishing a defense to the tort of defamation.’ ” [Citation.] “ ‘Its placement in the Civil Code immediately following the statutory provisions defining the elements of the twin defamation torts of libel and slander [citations] makes clear that, at least historically, the section was primarily designed to limit an individual's potential liability for defamation.’ ” [Citation.]” (Ibid.)

The privilege has been held to immunize defendants from tort liability based on theories of abuse of process, intentional infliction of emotional distress, intentional inducement of breach of contract, intentional interference with prospective economic advantage, negligent misrepresentation, invasion of privacy, negligence, and fraud (Silberg v. Anderson (1990) 50 Cal.3d 205,215), as well as suits to enjoin tortious conduct, and suits alleging interference with contract and related claims, including unfair competition. (Rubin v. Green (1993) 4 Cal.4th 1187, 1201-1203 [plaintiff may not plead around the privilege barrier by relabeling the nature of the action].).

By way of her motion, Lea argues: “Plaintiff’s proposed amendments to her complaint, creating 5th, 6th and 7th causes of action, are a direct result of new allegations Plaintiff learned from Defendants’ court pleadings and discovery responses, or lack thereof.” (Motion, p. 3, l. 28 - p. 4, l. 2.)  By way of her declaration, Lea declares: “The Amended pleading is necessary to Plaintiff’s case based on the new allegations contained in Defendants’ pleadings and discovery responses, and each of them. Plaintiff did not learn these new allegations until Defendants filed and served the said pleadings and served their discovery responses on Plaintiff.”

By way of her reply brief, Lea does not dispute that the new allegations arise from events occurring, or statements made, in this action. She, in fact, admits that they did by arguing: (1) “Defendants’ pleadings and lack of discovery responses refer to totally unsupported and generalized accusations that may support their wrongdoing and their violation of the laws already cited by Plaintiff in her complaint.” (Reply, p. 2, ll. 21-24.); and (2) “In sum, Defendants are engaged in lies, deceit, deception, fiction and fabrication which constitute a fraud on this Court and the Plaintiff. Plaintiff’s proposed amendments rely on her observations, Defendants’ silence and Plaintiff’s ability to connect the dots she observed and experienced.” (Id. at p. 3, ll.6-12.)

Also, the proposed new causes of action are conclusory and vague. They do not set forth sufficient facts to constitute causes of action. No individuals are identified and none of the specific actions or inactions described in the proposed amendments fall outside of the litigation privilege. For example, paragraph 62 further confirms that the facts upon which Lea attempts to add the new causes of action arise from the course of this litigation, stating: “All of Defendants’ allegations defending against Plaintiff are lies, misrepresentations and false, and said accusations will injure Plaintiff should this Court rely in any way on any of Defendants’ allegations.” (Italics added.)

“ ‘Any doubt as to whether the [litigation] privilege applies is resolved in favor of applying it. [Citations.]’ ” [Citation.]” (Tom Jones Enterprises, Ltd. v. County of Los Angeles (2013) 212 Cal.App.4th 1283, 1294.)

‘ “[L]eave to amend should not be granted where . . . amendment would be futile.” ’ [Citations.]” [Citation.]” (Nelson v. Tucker Ellis, LLP (2020) 48 Cal.App.5th 827, 848.)

Lea’s new causes of action are unequivocally barred by the litigation privilege because they arise from matters that have occurred during the course of litigation, by litigants or other participants authorized by law, to achieve the objects of the litigation, have a connection to the action, and they do not fall under any exception. Amendment of the complaint would be futile. The motion will be denied.