Demurrer and Motion to Strike (Judge Patricia Nieto)

Case Number:?BC717751????Hearing Date:?October 30, 2018????Dept:?24

Defendant?s Demurrer to the Complaint is SUSTAINED with leave to amend. Defendant?s Motion to Strike?is GRANTED as it relates to the first cause of action. The motion is MOOT as it relates to the 2nd cause of action.


This action arises out of allegations by Plaintiffs Vardaman Anderson and Latrell Anderson that on July 3, 2017, Defendant Union Bank refused to cash Vardaman?s paycheck that was drawn on a Union Bank account despite Vardaman presenting two forms of identification. Plaintiffs contend that the teller told them to ?go somewhere else and cash it? and another employee, believed to be the branch manager, shouted out ?and don?t come back.? Defendant never explained the refusal to cash the check.

Plaintiffs commenced this action on August 14, 2018, against Defendant Union Bank alleging two causes of action for violation of Unruh Civil Rights Act and intentional infliction of emotional distress.

Defendant demurs to the 2nd cause of action for intentional infliction of emotional distress (?IIED?) on the grounds that it fails to state sufficient facts to constitute a cause of action. (See CCP ? 430.10(e).) Defendant also moves to strike punitive damages and the request for $25,000 penalty provided under Civil Code sections 51.7, 51.9, 52(b) and 52.1.


  1. Legal StandardA general demurrer may lie where the pleading fails to state sufficient facts to constitute a cause of action. (CCP ? 430.10(e).) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Merda?(2007) 147 Cal.App.4th 740, 747.) Complaints are read as a whole, in context and are liberally construed. (Blank v. Kirwan?(1985) 39 Cal.3d 311, 318;?Stevens v. Superior Court?(1999) 75 Cal.App.4th 594, 601.) ?In reviewing the sufficiency of a complaint against a general demurrer, courts accept as true all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law.? (Rakestraw v. California Physicians’ Service?(2000) 81 Cal.App.4th 39, 43. Courts also accept as true the contents of a written contract set out in full as well as any pleaded meaning to which the contract is reasonably susceptible. (Aragon-Haas v. Family Security Ins. Services, Inc.?(1991) 231 Cal.App.3d 232, 239.) Matters which may be judicially noticed are also considered. (Serrano v. Priest?(1971) 5 Cal.3d 584, 591.) Extrinsic evidence may not be considered. (Ion Equipment Corp. v. Nelson?(1980) 110 Cal.App.3d 868, 881.)
  2. Meet and ConferBefore filing a demurrer or a motion to strike, the demurrer or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. CCP ?? 430.41, 435.5. The moving party must file declaration with the demurrer or motion to strike regarding the results of the meet and confer process. (CCP ?? 430.41(a)(3), 435.5(a)(3).)The Court notes that the parties have complied with the meet and confer requirement. (See Decl. of Ronald R. St. John ?? 3-4.)
  3. Intentional Infliction of Emotional DistressThe elements of intentional infliction of emotional distress are: (1) defendant?s extreme and outrageous conduct (2) directed at the plaintiff or occurring in the presence of the plaintiff of whom the defendant is aware, (3) with the intention of causing, or reckless disregard of the probability of causing, (4) severe or extreme emotional distress, and (5) actual or proximate causation of emotional distress by the defendant?s outrageous conduct. (Christensen v. Superior Court?(1991) 54 Cal.3d 868, 903.) ?Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.? (Hughes v. Pair?(2009) 46 Cal. 4th 1035, 1051.) The conduct must ?be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.? (Cochran v. Cochran?(1998) 65 Cal. App. 4th 488, 496.)?Whether a defendant?s conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous.? (Berkley v. Dowds?(2007) 152 Cal. App. 4th 518, 534.)In their first cause of action for violation of the Unruh Civil Rights Act Plaintiffs allege that on July 3, 2017, Plaintiffs, who are African-American, attempted to cash a Plaintiff Vardaman?s paycheck, which was drawn on a Union Bank account, at a Union Bank branch. Vardaman presented two forms of identification when requested. After stepping away to speak to the Manager, who got on the phone and called someone else, the Hispanic bank teller returned and told Plaintiffs ?go somewhere else and cash it.? Vardaman exchanged words with the employee, believed to be another manager, who unlocked the door for them. That individual shouted out ?and don?t come back.?Plaintiffs incorporate the facts alleged in their first cause of action into their second cause of action for IIED and reiterate that the conduct amounts race discrimination, retaliation and harassment in violation of the Unruh Civil Rights Act and the Fair Employment and Housing Act, which violated Plaintiffs? right to equal access and accommodations to business places and services. Plaintiffs allege the conduct of Defendant?s employees was intentional, reckless, malicious and wrong and done for the purpose of causing Plaintiffs to suffer humiliation, mental anguish and emotional and physical distress. Plaintiffs further allege that the conduct of Defendant?s employees was extreme and outrageous as to exceed all bounds of that usually tolerated in a civilized society, which was intended to cause Plaintiffs severe emotional distress. Plaintiffs allege they did not consent to the conduct, which was unprivileged, and which caused them to suffer severe emotional distress.Plaintiffs allege that as a direct and legal result of the conduct of Defendant?s employees, Plaintiffs were rendered sick, sore, lame, disabled and disordered, both internally and externally, and suffered, among other things, numerous internal injuries, severe fright, shock, pain, discomfort and anxiety. Plaintiffs allege that the exact nature, extent, duration or permanence of their injuries are unknown at this time. However, they believe that some of the injuries are reasonably certain to be permanent. Plaintiffs contend that the conduct of Defendant?s employees forced them to incur expenses for medical care, x-rays, and laboratory costs and will be forced to incur additional medical expenses. Plaintiffs further allege that before these incidents occurred they were able bodied individuals, but since the incidents they have been unable to engage fully in their occupations, and believe that Plaintiffs will be incapacitated and unable to perform their usual work for an indefinite period of time in the future.After stripping away the legal conclusions and reviewing only the factual allegations, the Court finds that alleged conduct of Defendant?s employees does not amount to actionable outrageous conduct. The complaint does no allege any facts showing that Defendant?s employees engaged in conduct that was so extreme and outrageous as to exceed all bounds of that usually tolerated in a civilized society. The employees merely stated ?go cash it somewhere else? and ?don?t come back.? There were no racial epithets or threats of violence. (Compare, e.g.?Alcorn v. Anbro Engineering, Inc.?(1970) 2 Cal.3d 493, 496-497 [outrageous conduct sufficiently alleged where plaintiff employee, who was African-American, alleged he was fired in a despicable manner when his supervisor did so while shouting various racial epithets], with?Johnson v. Ralphs Grocery Co.?(2012) 204 Cal.App.4th 1097, 1108-1109 [remarks by independent security contractor’s employee to customer, who was being detained on suspicion of shoplifting, that he needed to make a ?collar,? and his comments to customer as she was escorted out of the store that ?that’s what you get? and ?you’re not welcome to shop here anymore,? did not constitute outrageous conduct necessary for claim of intentional infliction of emotional distress against store, assuming store could be held liable for the intentional conduct of contractor’s employees] and?Cochran v. Cochran?(1998) 65 Cal.App.4th 488, 494, 497 [allegation that telephone message constituted death threat was insufficient; there was no indication that defendant ever took steps either to carry out his alleged threat or to make it appear more real; defendant was just releasing ?steam? resulting from ill will in intimate relationship, which is not actionable].)
  4. Motion to Strike
  5. The mere conclusory allegation that the actions of Defendant?s employees were racially motivated without factual allegations to support the conclusion does not sufficiently allege outrageous conduct. Even if Plaintiffs? allegations sufficiently alleged racially motivated conduct, Plaintiffs cite no authority for the proposition that every such case is so extreme and outrageous as to exceed all bounds of that usually tolerated in a civilized society. Although interpreting Nevada law in the employment context, the Ninth Circuit has addressed this presumption and rejected it: ?Discriminatory employment practices are wrong and federal law makes such conduct unlawful and provides for relief; however, the tort of intentional infliction of emotional distress is not intended to reach every discrimination claim.? (Alam v. Reno Hilton Corp.?(D. Nev. 1993) 819 F.Supp. 905, 911.) The Court finds this authority persuasive and agrees. Therefore, the demurrer is SUSTAINED with leave to amend.
  1. Legal StandardA motion to strike may be brought in two situations. The first is where a party seeks to strike ?any irrelevant, false, or improper matter inserted in any pleading.? (CCP ? 436(a).) This subdivision does not authorize attacks on entire causes of action or entire pleadings.?(Ferraro v. Camarlinghi?(2008) 161 Cal.App.4th 509, 528.) ?Its purpose is to authorize the excision of superfluous or abusive allegations. ?[M]atter that is essential to a cause of action should not be struck and it is error to do so.? ? (Id.) The second is where a party seeks to ?[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.? (CCP ? 436(b).) This subdivision authorizes motions to strike ?a pleading due to improprieties in its?form?or in the?procedures?pursuant to which it was filed. This provision is commonly invoked to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court.?(Ferraro, supra,?161 Cal.App.4th at 528 [emphasis in original].)

  2. Here, Defendant brings this motion seeking to strike punitive damages and the request for a $25,000 penalty provided under Civil Code sections 51.7, 51.9, 52(b) and 52.1 on the ground that the matters to be stricken are irrelevant, sham, and frivolous in that the Complaint does not allege facts with sufficient particularity to state a claim for punitive damages. Therefore, presumably, Defendant brings this motion under section 436(a).
  3. 1st Cause of Action for Violation of Unruh and Request for $25,000 Civil Penalty and Exemplary Damages

Plaintiffs? first cause of action is for violation of the Unruh Civil Rights Act, Civil Code ? 51, et seq. (?Act?). The Act consists of Section 51,[1]?which provides the ?substantive scope of protections against invidious discrimination in public accommodations,? and Section 52, which ?provide[s] an enforcement mechanism for section 51 and other provisions of law.? (Munson v. Del Taco, Inc.?(2009) 46 Cal.4th 661, 667.)

Subdivision (a) of Section 52 provides the following remedies for violation of Section 51:

Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorney’s fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51, 51.5, or 51.6.

In the first cause of action, Plaintiffs allege they are entitled to a civil penalty of $25,000 pursuant to Section 52(b)(2) as well as punitive and exemplary damages. Subdivision (b) of Section 52 expressly provides for recovery of a $25,000 civil penalty and ?[a]n amount to be determined by a jury, or a court sitting without a jury for exemplary damages?. (Civ. Code ? 52(b)(1), (2).) However, by its plain language, the remedies provided pursuant to Section 52(b) apply only to violations of Sections 51.7 and 51.9, not Section 51. ?Plaintiff may seek punitive damages, but only as expressly authorized by [Section] 52(a). . . .? (Botosan v. Firtzhugh?(S.D. Cal. 1998) 13 F.Supp.2d 1047, 1052-53.) Section 52(a) does not provide for a $25,000 civil penalty and caps exemplary damages at three times the amount of actual damages but no less than $4,000.

In addition to alleging violations of the Act, Plaintiffs also mention Sections 51.7 and 52.1. Section 51.7 is limited to the right to be free from violence or intimidation by the threat of violence committed because of political affiliation or any characteristic under the Act. No such threats or intimidations are alleged. Section 52.1 only applies if a person ?interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individuals or rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.? There are no factual allegations of any threats, intimidation, or coercion. Section 51.9 is never explicitly mentioned in the complaint, although it is mentioned in Section 52(b), and it relates to sexual harassment, which is not alleged in the complaint. Accordingly, Plaintiff is not entitled to the remedies provided under Section 52(b). Plaintiff is only entitled to remedies under Section 52(a), which do not include a $25,000 civil penalty or punitive damages in an unlimited amount.

3.? 2nd Cause of Action and Request for Punitive Damages

Plaintiffs also seek punitive damages as a remedy to the second cause of action for IIED. However, because Plaintiffs? have not sufficiently alleged facts to state a cause of action for IIED, the motion to strike the request for punitive damages relative to the IIED is moot.

Consequently, the motion is GRANTED as it relates to the first cause of action. The motion is MOOT as it relates to the 2nd cause of action.

Moving party is ordered to give notice.