Case Number: VC067441 Hearing Date: February 14, 2019 Dept: SEC

KIM v. AMERICAN AIRLINES INC.

CASE NO.: VC067441

HEARING: 02/14/19

JUDGE: KRISTIN S. ESCALANTE

#15

TENTATIVE ORDER

Defendant AMERICAN AIRLINES, INC.’s demurrer to Plaintiff’s Complaint is SUSTAINED with 30 days leave to amend. CCP §430.10(e).

Defendant AMERICAN AIRLINES, INC.’s motion to strike portions of Plaintiff’s Complaint is MOOT.

Moving Party to give notice.

This tort action was filed by Plaintiff ANDREW KIM (in pro per) on September 21, 2018. The Complaint alleges the following facts: On or about March 13, 2017, plaintiff arrived at the airport at about 8:20 a.m. for a 9:50 a.m. flight to St. Louis. Plaintiff proceeded to security with three carry-on bags – a laptop, sample box and small carry-on bag. TSA instructed plaintiff to check one of the bags because only two carry-on bags were allowed. Plaintiff returned to the American Airlines (“AA”) counter and was told to use one of the automated machines, but the machine malfunctioned. An AA representative told Plaintiff to gate check the bag, but when he returned to security, TSA informed the plaintiff that he would need to be escorted to the gate by an AA representative if he wanted to bring more than two carry-on bags through security. When he returned to the AA counter, he was instructed to wait in line. Plaintiff voiced complaints about the line, and an AA employee told him to quiet down or security would be called. Plaintiff did not reach the counter until 9:20, and he was then told it was too late to board his flight. Based on this course of events, Plaintiff draws the following factual conclusion: “Plaintiff believes that AA oversold and/or overbooked Plaintiff’s flight…and intentionally misled Plaintiff into not being able to board, even though at the time of purchase AA made the representation that a seat was available for Plaintiff.” (Complaint ¶20.)

Plaintiff’s Complaint asserts the following causes of action: (1) Negligence; (2) Intentional Infliction of Emotional Distress; and (3) Violation of Business & Professions Code §17200. Defendant generally demurs to each cause of action pursuant to CCP §4301.10(e).

First Cause of Action –Negligence

The elements of a negligence claim are duty, breach of duty, causation, and damages. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 269, 288.) The existence of a duty is a question of law. (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.)

Defendant demurs to this cause of action on the basis that Plaintiff has not alleged facts showing that Defendant breached any duty owed to Plaintiff.

Plaintiff alleges, in pertinent part, “Defendants owed Plaintiff, as a passenger with a fully paid ticket, the duty of reasonable care to give accurate instructions to make sure Plaintiff is able to properly board AA’s plane in an orderly and timely fashion.” (Complaint ¶24.) Plaintiff alleges that he suffered economic harm and emotional distress as a result of the breach of this alleged duty.

Plaintiff has not alleged sufficient facts to support the conclusion that the Defendant owed a duty of care to prevent the Plaintiff’s alleged economic loss and emotional distress. “[E]ntities generally have no duty to prevent purely economic loss to a potential plaintiff. Under the common law, it is only where a ‘special relationship’ exists, giving rise to such a duty that a plaintiff may recover purely economic loss.” (Mega RV Corp. v. HWH Corp. (2014) 225 Cal. App. 4th 1318, 1339 (quoting Greystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal.App.4th 1194, 1215.) “Courts are reluctant to impose duties to prevent economic harm to third parties because ‘[a]s a matter of economic and social policy, third parties should be encouraged to rely on their own prudence, diligence and contracting power, as well as other informational tools.’ ” Id. Plaintiff has not alleged sufficient facts to support the conclusion that the duty to avoid purely economic harm arose here. Nor has he alleged facts sufficient to show that a duty to avoid emotional distress arose in the absence of physical injury, which duty arises only in limited circumstances not applicable here. (See generally Krupnick v. Hartford Accident & Indemnity Co. (1994) 28 Cal. App. 4th 185.)

Plaintiff claims that defendant owed a heightened duty under the common carrier statute, Civil Code § 2100. But the heightened duty that airlines, as common carriers, owe to their passengers arises only when the passengers are accepted for carriage. For an airline, that occurs, at the earliest, when the passenger arrives at the boarding area. (See Orr v. Pacific Southwest Airlines (1989) 208 Cal. App. 3d 1467, 1474.) The events that allegedly took place here occurred prior to the time that Plaintiff had cleared security. Even assuming that section 2100 imposes upon common carriers a duty to avoid economic harm (which issue the Court does not decide), the duties that common carriers owe under section 2100 did not apply here because the airline had not yet accepted Plaintiff for carriage. (See id. at 1474 (airline did not owe a heightened duty of care at the security checkpoint).)

The demurrer is sustained with 30 days leave to amend.

Second Cause of Action – Intentional Infliction of Emotional Distress

To state a claim for intentional infliction of emotional distress, a plaintiff must plead and prove three elements: (1) that the defendant engaged in extreme and outrageous conduct with the intention of causing, or reckless disregard for the possibility of causing, emotional distress; (2) that the plaintiff suffered extreme or severe emotional distress; and (3) that the plaintiff’s emotional distress was actually and proximately caused by the defendant. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) Outrageous conduct is conduct that is “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id. at p. 1050-1051.) Here, Plaintiff has alleged no conduct that rises to the level of “extreme and outrageous” conduct sufficient to support a claim for emotional distress. The demurrer to the second cause of action is sustained with 30 days leave to amend.

Third Cause of Action – Violation of Business & Professions Code §17200

To state a claim under §17200, Plaintiff must allege that the conduct complained of is a fraudulent, unlawful or an unfair business practice. To bring a claim under the fraud prong, Plaintiff must allege an affirmative misrepresentation, conduct or business practice on the part of a defendant, or an omission in violation of defendant’s duty to disclose, and that is likely to deceive members of the public. (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 986.) To state a claim under the unfairness prong, Plaintiff must allege that one or more of Defendant’s business practices are unfair, unlawful or fraudulent and that the remedy sought is authorized by law. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676; see also Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 337.) To state a claim under the unlawful prong, Plaintiff must allege a violation of law and cite that law. (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 610.)

Here, Plaintiff bases his UCL claim on his belief, based on inferences drawn from the experience that he sets forth in detail in the complaint, that AA “systematically attempted to weed out passengers such as Plaintiff in an effort to disqualify passengers to conceal the fact that the flight was oversold and/or overbooked.” Complaint para. 35(b). The Complaint makes plain that this is a deduction or inference that Plaintiff is drawing based on the detailed facts he has alleged regarding his experience in attempting to check his third bag. But the facts pleaded by the Plaintiff do not support this inference. While the Court must treat the demurrer as admitting all material facts properly pleaded, the Court does not assume the truth of deductions, inferences or conclusions of fact. (See Blank v. Kirwant (1985) 39 Cal. 3d 311, 318; People ex rel. Lungren v. Superior Court (1996) 14 Cal. 4th 294, 301.) Plaintiff alleges facts concerning difficulties that he had with his luggage and appears to draw an unwarranted inference from these facts that the difficulties he had must have resulted from an attempt by AA to prevent him from boarding because the flight must have been overbooked. The Court concludes that the factual inferences or conclusions stated in the Complaint are not sufficiently supported by the alleged facts.

The demurrer is sustained with 30 days to amend. If the Plaintiff’s allegations that AA attempts to weed out passengers from overbooked flights through subterfuge is anything other than conjecture or speculation based on the experience he recounts in the present Complaint, then Plaintiff should make that clear in the amended complaint.

Defendant’s Motion to Strike is rendered moot by the Court’s ruling on the Demurrer.