Case Number: BC517883??? Hearing Date: August 16, 2016??? Dept: 58
Hearing Date: Tuesday, August 16, 2016
Calendar No: 8
Case Name: Anderson v. Choudhury, et al.
Case No.: BC517883
Motion: Motion for Summary Adjudication
Moving Party: Defendants Bikram Choudhury and Bikram?s Yoga College of India, L.P.
Responding Party: Plaintiff Larissa Anderson
Tentative Ruling: Motion for summary adjudication is granted as to the 8th COA and is otherwise denied.
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I. Background
On 8/9/13, Plaintiff Larissa Anderson filed this action against Defendant Bikram Choudhury and various other defendants arising out of an alleged 10/31/11 sexual assault and subsequent retaliation by Choudhury. On 4/1/14, Plaintiff filed a First Amended Complaint against Choudhury, Bikram?s Yoga College of India, L.P. (?Yoga College?), Bikram Choudhury Yoga, Inc., and Bikram, Inc. On 9/18/14, Plaintiff voluntarily dismissed Bikram Choudhury Yoga, Inc. and Bikram, Inc. without prejudice. On 4/23/15, Plaintiff filed the operative Second Amended Complaint.
Plaintiff asserts causes of action against Choudhury and Yoga College (collectively ?Defendants?) for (1) sexual battery, (2) gender violence, (3) Unruh Civil Rights Act sex discrimination, (4) Unruh Civil Rights Act sex harassment, (5) violation of the Ralph Act, (6) violation of the Bane Act, (7) fraud, (8) violation of Bus. & Prof. Code ?17200, (9) intentional interference with prospective economic advantage, (10) intentional infliction of emotional distress, (11) negligence, (12) negligent hiring and retention, (13) defamation, and (14) declaratory and injunctive relief. The 1st, 2nd, and 13th COAs are asserted against Choudhury only; the 3rd COA is asserted against Yoga College only; and the remaining COAs are asserted against Defendants. On 8/21/15, the Court sustained Yoga College?s demurrer to the 14th COA without leave to amend.
Trial is set for 9/16/16; FSC for 9/1/16.
II. Motion for Summary Adjudication
Defendants move for summary adjudication of the 7th through 9th and 13th COAs. Preliminarily, Plaintiff does not oppose the motion as to the 8th COA. Summary Adjudication is granted as to the 8th COA.
1. Evidentiary Objections
Defendants object to portions of the declarations of Anthony Ngyuen (Nos. 1-2) and Larissa Anderson (Nos. 3-6). All objections are overruled.
2. Undisputed Facts
In 2003, Plaintiff was certified as a Bikram Yoga teacher and judge. ? 2. From 2003 to 2011, Choudhury told Plaintiff that she would be guaranteed $600,000 a year as an owner of a yoga school if she taught yoga his way. ? 3. On 7/12/10, Plaintiff purchased a ?Sample Business Plan? from Michael Harris stating that within three years a Bikram Yoga school could be expected to make $587,300 in sales, and that many locations achieve $500,000 in sales or more by year three. ? 4.
On 3/26/11, Plaintiff signed an Affiliation Agreement with Yoga College which granted a license to use Bikram Yoga names. ? 10. Plaintiff negotiated a lease and on 4/5/11 Choudhury approved Plaintiff?s plans for her school. ? 13. On 4/25/11, Choudhury signed the Affiliation Agreement. ? 14. The Affiliation Agreement required Plaintiff to hire certified Bikram Yoga teachers (? 18), and provided that Yoga College would place Plaintiff?s school on Yoga College?s mailing list and website and refer prospective students 9? 19). Plaintiff borrowed $250,000 from her parents to finance the school. ? 20. In mid-September 2011, Choudhury told Plaintiff she would earn $600,000 to $1 million by operating the ?main? school in Seattle. ? 21. In March 2012, Yoga College denied Plaintiff permission to post notices for teachers on its job board website and declined to list her school on the website. ? 27. Plaintiff opened her yoga studio in May 2012. ? 22. In mid-2013, Plaintiff changed her school?s name and stopped offering Bikram Yoga classes. ? 29. Thereafter, Plaintiff enrolled fewer students because they wanted to practice Bikram Yoga. ? 33.
3. 7th COA, Fraud
Defendants argue that Plaintiff cannot establish justifiable reliance for the fraud claim. See, e.g., OCM Principal Opportunities Fund v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 864 (?The reasonableness of the plaintiff’s reliance is judged by reference to the plaintiff’s knowledge and experience. Except in the rare case where the undisputed facts leave no room for a reasonable difference of opinion, the question of whether a plaintiff’s reliance is reasonable is a question of fact.?). However, Plaintiff correctly notes that Defendants? arguments are solely directed at whether Plaintiff justifiably relied on statements as to how much Plaintiff could earn, and during which operating years she could expect to do so if she opened a Bikram Yoga school. See Def.?s Sep. Statement [?DSS?] ?? 7-9, 12. But Plaintiff?s fraud claim is based primarily or at least in part on the refusal to list Plaintiff?s school as an affiliated school (see SAC ?? 119, 122, 187, 190). Defendants? essential argument – – that this is a different factual fraud claim than alleged (see generally FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.2d 367, 381; Song X. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182 (?The issues to be addressed on the motion are framed by the pleadings.?)) – – is incorrect.
Defendants note that the Affiliation Agreement had a six-month term, but it is undisputed that Yoga College never cancelled the Affiliation Agreement (see DSS ? 32) and Plaintiff submits that she opened her school after the six-month term without opposition from Defendants (see Pl.?s Add?l Material Facts [?PAMF?] ? 115). Additionally, Defendants notably fail to address Plaintiff?s allegation that despite the expiration of the Affiliation Agreement, Defendants wished to use Plaintiff?s school as the location for a Bikram Yoga event. See SAC ? 123. Lastly, Defendants argue that Plaintiff?s school was not listed on Yoga College?s website because Plaintiff did not sign a franchise agreement (DSS ?? 24-25). Plaintiff submits that many other schools – – which were not franchised – – were listed (PAMF ?? 106, 117, 119). These allegations and the testimonial and documentary evidence submitted to date raise triable issues of fact as to whether Plaintiff justifiably relied on statements by Defendants that they would support Plaintiff?s school notwithstanding the expiration of the Affiliation Agreement.
Defendants argue that Plaintiff cannot establish resulting damages (see generally Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331) because Plaintiff abandoned Bikram Yoga after one year. But Plaintiff submits that the failure to list her school as an affiliated school on Yoga College?s website resulted in an inability to promote her school or recruit certified teachers such that Plaintiff needed to rebrand her school. DSS ? 33; PAMF ?? 107, 113, 118. This does not suggest that Plaintiff?s resulting damages are speculative, even if her claim for lost profits is uncertain (see generally Kids? Universe v. In2Labs (2002) 95 Cal.App.4th 870, 883-85). That Plaintiff may have hired some teachers for a period of time (Pl.?s Depo. p. 70:22-71:17 [Hurevitz Reply Decl. Ex. 1]) only raises triable issues of fact as to causation.
4. 9th COA, Interference with Prospective Economic Advantage
Defendants argue that Plaintiff fails to establish an independently wrongful act that caused disruption to a prospective economic relationship (see, e.g., San Jose Constr., Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1544-45), but Plaintiff?s fraud claim is sufficient to support such independently wrongful act.
Defendants argue that Plaintiff fails to allege facts to support prospective economic relationships or Defendants? knowledge thereof (id.), but this argument is essentially directed at the pleadings in connection with which the Court would grant Plaintiff an opportunity to amend if and as made and if and as necessary and appropriate. (see, e.g., Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663-64). Here, Plaintiff alleges that she had relationships with clients who wished to practice Bikram Yoga and that Defendants knew of these relationships because they encouraged her to open a Bikram Yoga school. SAC ?? 202-203. This does not suggest that Plaintiff?s claim is based only on speculative future clients. See Roth v. Rhodes (1994) 25 Cal.App.4th 530, 546. Additionally, Defendants fail to submit any substantial evidence to dispute the allegations that they were aware of these prospective economic relationships. In Winchester Mystery House, LLC v. Global Asylum, Inc. (2012) 210 Cal.App.4th 579, 597-98, the Court of Appeal concluded that the knowledge element was not established because the defendant (alleged to have used trademarks without authorization) was only informed that a third party had been contractually provided exclusive story rights and cease-and-desist letters focused on the defendant?s use of proprietary rights without mentioning a commercial relationship with any other party. No such similar evidence is presented here.
5. 13th COA, Defamation
Plaintiff?s defamation claim is based on Choudhury?s statements to third persons that Plaintiff?s claims in this action are false and that he had consensual sexual relations with Plaintiff. SAC ? 233. Defendants argue that Plaintiff?s defamation claim is meritless on two grounds.
First, Defendants argue that Plaintiff has failed to identify any persons hearing the alleged defamatory statements. See DSS ? 104. However, Defendants rely only on their counsel?s declaration that Plaintiff?s discovery did not identify any such persons (Hurevitz Decl. ? 7) which is insufficient to establish factually devoid discovery responses (see generally Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590). That Plaintiff may not have produced documents on this issue (see Hurevitz Reply Decl. ?? 3-4, Exs. 2-3) does not support factually devoid discovery responses.
Second, Defendant argues that the statements concerning Plaintiff?s claims made in this action are subject to the absolute litigation privilege of Civil Code ? 47(b). Silberg v. Anderson (1990) 50 Cal.3d 205, 211-12. But even if established, this does not support summary adjudication because it does not completely dispose of a cause of action, affirmative defense, claim for damages, or an issue of duty. CCP ? 437c(f)(1).
The Court notes that Yoga College argues that Plaintiff fails to support vicarious liability for Choudhury?s conduct (see, e.g., Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296), but this argument was first raised in the reply and Yoga College has failed to submit any evidence on this issue. In any event, vicarious liability would certainly not appear to be an issue appropriate for summary disposition.
6. Ruling
The motion for summary adjudication is granted as to the 8th COA and is otherwise denied.