Case Number: BC515983 Hearing Date: April 18, 2014 Dept: 32

CASE NAME: Arthur G. Lawrence v. Norms Restaurants
CASE NO.: BC515983
HEARING DATE: 04/18/14
DEPARTMENT: 32
SUBJECT: Demurrer to Complaint
MOVING PARTY: Defendant Norms Restaurants
RESP. PARTY: None

TENTATIVE RULING

Demurrer pursuant to CCP § 430.10(a) OVERRULED.

General Demurrer

First Cause of Action (Assault and Battery) OVERRULED.

Second Cause of Action (Unruh Act Violation) SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

Third Cause of Action (Elder Abuse) SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

Fourth Cause of Action (Negligent Violation of Section 368 and 368.5 of the Penal Code) SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

Fifth and Sixth Causes of Action (California Disabled Persons Act and American’s with Disabilities Act) SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

ANALYSIS

Subject Matter Jurisdiction

In the demurrer, Defendant contends that the incident at issue in the complaint occurred in Orange County and that the Court therefore lacks jurisdiction. (CCP § 430.10(a).) “Except in a few cases in which the Constitution makes the place of trial jurisdictional (see art. VI, s 5) or a statute makes a local place of trial part of the grant of subject matter jurisdiction, venue is not jurisdictional (in the fundamental sense.)” (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 121.) Defendant fails to show that any statute or constitutional provision makes venue jurisdictional in this case.

The demurrer pursuant to CCP § 430.10(a) is OVERRULED.

General Demurrer

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action stated therein. (CCP § 430.50(a).) A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff’s ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal.App.4th 726, 732.) The court must treat as true all of the complaint’s material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732-33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.)

First Cause of Action – Assault and Battery

The elements of assault are: (1) Defendant intentionally caused plaintiff’s immediate apprehension of a harmful or offensive contact with the plaintiff’s body; (2) plaintiff did not consent to the contact; and (3) the contact caused injury, damage, loss or harm to plaintiff, such as emotional distress. (Lowry v. Standard Oil Co. (1944) 63 Cal. App. 2d 1, 6.) Battery has the same elements except that the Defendant actually causes a harmful or offensive contact with the plaintiff’s body. (Brown v. Ransweiler (2009) 171 Cal. App. 4th 516, 526.)

Here, Plaintiff alleges that has been a customer of Defendant Norms Restaurant for more than 50 years. At a Norm’s Restaurant in Costa Mesa, he became acquainted with a waiter and used the same waiter every time he went there, which was everyday, in an attempt to heal from his frightening accident of 8/19/10. He was accommodated with the same waiter every time he went there and usually sat in the same booth unless it was already occupied. Sometime after February 19, 2011, Plaintiff was at this Norm’s Restaurant in Costa Mesa when his silverware and food were taken from him by a “strange” waiter and he was ushered from the restaurant while his arm was held tightly.

Plaintiff further alleges the following: “This strange unknown waiter exclaimed ‘oh no you don’t’ and removed all food from table no. 2, all silverware, napkins, coffee and new food and thereupon assaulted plaintiff and held his arm tight and ushered him out of norm’s restaurant where he had dined for over fifty
years. Mind you, while plaintiff was attempting to heal from a deadly fall
that almost cost him his life and for which he was in intensive care for
approximately seven weeks with two major open head surgeries, the elimination
of the top of his head which was too infected to reattach to his skull.”

Defendant contends that Plaintiff has not alleged that Defendant had intent to harm Plaintiff, that the Plaintiff did not consent to the touching, that the Plaintiff was harmed, or that a reasonable person would have been offended. Liberally construing the pleading, Plaintiff has alleged an offensive contact (i.e. holding Plaintiff’s arm tightly); that Plaintiff did not consent to the touching; and that the touching would have been offensive to a reasonable person, especially given Plaintiff’s injuries. Whether Defendant intended to cause Plaintiff harm is a factual question that must be determined from the circumstances and therefore cannot be resolved on demurrer. Moreover, it can be inferred from the waiter’s conduct that he intended to cause the offensive touching.

The demurrer to the first cause of action for assault and battery is OVERRULED.

Second Cause of Action – Unruh Act Violation

The Unruh Act prohibits discrimination at a business establishment against any individual on the basis of his or her sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation. (Civ. Code § 51(b).)

Here, although Plaintiff has alleged facts regarding his medical status, he has not alleged facts suggesting that Defendant discriminated against him because of his medical status or a disability.

The demurrer to the second cause of action is SUSTAINED WITH LEAVE TO AMEND.

Third Cause of Action – Elder Abuse

“Elder” under the elder abuse statutes is defined as a person 65 years of age or older. (W & I Code § § 15610.27.) Plaintiff alleges that he has been visiting Norm’s since 1958, but that fact could be true even if he was less than 65 years old at the time of the incident. Plaintiff does not otherwise allege his age.

Defendant argues, without citing any authorities, that Plaintiff must also allege the name of the person who physically abused Plaintiff, that person’s conduct, and that the employee’s conduct was a substantial factor in causing Plaintiff’s harm. (Dem. 7.) As no authorities are cited, the demurrer is unpersuasive. Also, Plaintiff has alleged the conduct constituting abuse (holding Plaintiff’s arm tightly).

Nevertheless, as stated above, Plaintiff has not alleged that he is an elder for purposes of the Elder Abuse Act. Accordingly, the demurrer to the third cause of action is SUSTAINED WITH LEAVE TO AMEND.

Fourth, Fifth, and Sixth Causes of Action —Negligent Violation of Section 368 and 368.5 of the Penal Code; California Disabled Persons Act; and Americans With Disabilities Act

Plaintiff refers in his pleading to causes of action for Negligent Violation of Section 368 and 368.5 of the Penal Code; California Disabled Persons Act; and Americans With Disabilities Act. (Compl. pp. 3 and 5.) However, Plaintiff does not set forth facts in support of the elements of any of these causes of action. Insofar as Plaintiff relies on Penal Code §§ 368 and 368.5, it is not clear that these statutes provide a private right of action. Also, Plaintiff has not alleged that he is an elder under these statutes.

The general demurrer is SUSTAINED WITH LEAVE TO AMEND as to the fourth, fifth, and sixth causes of action for Negligent Violation of Section 368 and 368.5 of the Penal Code, California Disabled Persons Act, and Americans With Disabilities Act.