Case Name: Kathy Hughes v. Target Corporation, et al.

Case No.: 17CV317411

(1) Demurrer of Defendant Target Corporation to Plaintiff’s Second Amended Complaint
(2) Motion of Defendant Target Corporation to Strike Plaintiff’s Second Amended Complaint

Factual and Procedural Background

On October 14, 2015, defendant Target Corporation’s (“Target”) security profiled, approached, and confronted plaintiff Kathy Hughes (“Hughes”) while she was shopping in defendant Target’s store on El Camino Real in Santa Clara, causing plaintiff Hughes to suffer personal injuries. (Second Amended Complaint (“SAC”), ¶GN-1; see also SAC, ¶IT-1.) Defendant Target’s personnel intentionally profiled and confronted plaintiff Hughes because of her race, sex, and/or other unlawful purpose. (SAC, ¶IT-1.) Defendant Target’s in-store management continued engaging plaintiff Hughes. (SAC, ¶IT-1.) Defendant Target was negligent in hiring and/or training their security and management. (SAC, ¶GN-1; see also SAC, ¶IT-1.)

On October 4, 2017, plaintiff Hughes filed a Judicial Council form complaint against defendant Target asserting causes of action for:

(1) General Negligence
(2) Intentional Tort
(3) False Imprisonment
(4) Defamation of Character

On December 18, 2017, plaintiff Hughes dismissed the third and fourth causes of action.

On January 9, 2018, plaintiff Hughes filed a FAC asserting causes of action for:

(1) General Negligence
(2) Intentional Tort

On February 13, 2018, defendant Target filed a demurrer to plaintiff Hughes’s FAC and a motion to strike the exemplary damage allegations from plaintiff Hughes’s FAC.

On May 17, 2018, the court (Hon. Kuhnle) sustained Target’s demurrer to the second cause of action and granted Target’s motion to strike plaintiff Hughes’s claim for exemplary damages.

On May 18, 2018, plaintiff Hughes filed the operative SAC which asserts causes of action for:

(1) General Negligence
(2) Intentional Infliction of Emotional Distress

On June 18, 2018, defendant Target filed the two motions now before the court, a demurrer to the second cause of action in plaintiff Hughes’s SAC and a motion to strike plaintiff Hughes’s SAC.

I. Requests for judicial notice.

In support of and in opposition to the demurrer and motion to strike, both sides request the court take judicial notice of various documents and definitions. The requests for judicial notice are DENIED as the court does not find the information to be necessary, helpful, and/or relevant. (See Duarte v. Pacific Specialty Insurance Company (2017) 13 Cal.App.5th 45, 51, fn. 6—denying request where judicial notice is not necessary, helpful or relevant.)

II. Defendant Target’s demurrer to the second cause of action in plaintiff Hughes’ SAC is SUSTAINED.

“The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494 (Cochran); see also Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 744 – 745; see also CACI, Nos. 1600 and 1602.)

Defendant Target initially demurs to the second cause of action by arguing that the alleged conduct is not outrageous as a matter of law. “There is no bright line standard for judging outrageous conduct and its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical.” (Cochran, supra, 65 Cal.App.4th at p. 494.) “Even so, the appellate courts have affirmed orders which sustained demurrers on the ground that the defendant’s alleged conduct was not sufficiently outrageous.” (Id.) The Cochran court went on to state, “the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough.” (Id. at p. 496.) “In evaluating whether the defendant’s conduct was outrageous, it is not enough that the defendant has acted with an intent which is tortious or even criminal.” (Id.)

“In order to state a cause of action for intentional infliction of emotional distress a plaintiff must show, [among other things], outrageous conduct by the defendant.” (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.) “Conduct, to be ‘outrageous’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. While the outrageousness of a defendant’s conduct normally presents an issue of fact to be determined by a trier of fact, the court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” (Id.)

Defendant Target relies on Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1108–1109 (Johnson) where the appellate court upheld a trial court’s decision to sustain a demurrer to a cause of action for intentional infliction of emotional distress without leave to amend. Plaintiff alleged defendant grocery store and its independent contractor security company wrongfully detained her for shoplifting. While detained at the grocery store, “[one security officer] turned on a TV program that involved police officers arresting people, and he told [another security officer] that he had to make a ‘collar.’ [Plaintiff] was kept in the break room between one-and-a-half and two hours, after which she was handcuffed and escorted through the store. As she was escorted out, [the security officer] yelled, ‘that’s what you get’ and ‘you’re not welcome to shop here anymore.’” (Johnson, supra, 204 Cal.App.4th at p. 1102.)

We agree with the trial court’s assessment that Robinson’s comment while watching a TV show in the employee break room that he needed to make a “collar,” and his comments to Johnson as she was escorted out of the store, “that’s what you get” and “you’re not welcome to shop here anymore,” are insufficient as a matter of law. “Ordinarily mere insulting language, without more, does not constitute outrageous conduct. The Restatement view is that liability ‘does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities…. There is no occasion for the law to intervene … where some one’s feelings are hurt.’ (Rest.2d Torts, § 46, com. d.).” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946, 160 Cal.Rptr. 141, 603 P.2d 58, overruled on another point in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 575, fn. 4, 88 Cal.Rptr.2d 19, 981 P.2d 944.) “ ‘The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind.’ ” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496, 76 Cal.Rptr.2d 540, quoting Rest.2d Torts, § 46, com. d. p.73)

(Id. at pp. 1108 – 1109.)

The court finds Johnson instructive. The alleged conduct in Johnson appear to be stronger than the allegations made by Hughes. Hughes alleges only that she was “confronted” by defendant Target’s security personnel and in-store management. While it may be reasonable to infer that Hughes was detained, Hughes makes no explicit allegation that defendant Target’s personnel detained her and certainly not for “between one-and-a-half and two hours” as in Johnson. There are no allegations that defendant Target made any comments to plaintiff Hughes nor are there any allegations that defendant Target ejected plaintiff Hughes from the store. On its face, the SAC presents less extreme and less outrageous conduct than in Johnson. On that basis, this court finds the alleged conduct is not sufficiently outrageous to support a claim for intentional infliction of emotional distress.

Plaintiff Hughes’s allegations are, in at least one respect, distinguishable from the facts in Johnson. In Johnson, the plaintiff conceded “she has no quarrel with her initial detention.” (Id. at p. 1108.) “Ralphs’s only involvement was hiring SOI as an independent contractor for security. Moreover, to any extent Ralphs could arguably be liable for the intentional conduct of SOI’s employees, they had probable cause to suspect Johnson of shoplifting and detain her.” (Ibid.)

In an earlier pleading, plaintiff Hughes alleged defendant Target’s security “ma[de] false assertions of wrongful/ criminal acts” despite having “observed no conduct … which would justify defendant’s unlawful detention.” (Complaint, ¶GN-1 and Third Cause of Action.) In effect, plaintiff Hughes’s original complaint alleged defendant Target and Target security personnel had no probable cause to detain her. Such an allegation is no different than Johnson where the plaintiff alleged defendants wrongfully accused her of shoplifting.

In this SAC, however, plaintiff Hughes now alleges that defendant Target personnel profiled, approached, and confronted her on the basis of her race, sex, or some other unlawful purpose. The court must consider whether plaintiff Hughes has adequately alleged some other valid cause of action. In that regard, the court pauses to consider whether plaintiff Hughes has alleged a cause of action for violation of the Unruh Civil Rights Act.

The Unruh Civil Rights Act states that “[a]ll persons within the jurisdiction of this state are free and equal and no matter what their sex, race, …[or] national origin … are entitled to the full and equal accommodations, advantages, facilities, privileges or services in all business establishments of every kind whatsoever.” (Civ. Code, §51.) A plaintiff may enforce his or her rights under the Unruh Civil Rights Act by bringing an action for damages. (Civ. Code, §52, subd. (a); see also CACI, No. 3060.)

By its very terms, one of the necessary elements in a claim for violation of the Unruh Civil Rights Act is that defendant denied “full and equal accommodations, advantages, facilities, privileges, or services” to the plaintiff. (See Surrey v. TrueBeginnings, LLC (2008) 168 Cal.App.4th 414, 418—“language of [Civil Code] section 52, subdivision (a) … bestows standing to sue only on those persons whose rights under the Unruh Act … have been ‘denied.’”) Here, plaintiff Hughes has not alleged defendant Target denied her any rights under the Unruh Civil Rights Act. Plaintiff Hughes does not allege that she was not allowed to continue shopping or that she was ejected from the store. Consequently, plaintiff Hughes has not set forth a valid claim for violation of the Unruh Civil Rights Act.

Defendant Target anticipated plaintiff would attempt to assert a claim for discrimination. Defendant Target argues that a claim for discrimination is, nevertheless, barred by the two-year statute of limitations because it does not relate back to the allegations made in the original complaint. In furtherance of judicial economy, the court will address defendant Target’s argument.

An amended complaint is considered a new action for purposes of the statute of limitations only if the claims do not “relate back” to an earlier, timely-filed complaint. Under the relation-back doctrine, an amendment relates back to the original complaint if the amendment: (1) rests on the same general set of facts; (2) involves the same injury; and (3) refers to the same instrumentality. [Citations.] An amended complaint relates back to an earlier complaint if it is based on the same general set of facts, even if the plaintiff alleges a different legal theory or new cause of action. [Citations.] However, the doctrine will not apply if the “the plaintiff seeks by amendment to recover upon a set of facts entirely unrelated to those pleaded in the original complaint.” [Citation.]

(Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 276–277.)

Defendant Target acknowledges plaintiff Hughes alleged in her original complaint that Target employees, “without probable cause, profiled, approached, and then confronted” plaintiff “making false assertions of wrongful/criminal acts.” (Emphasis added.) The court finds these allegations, and namely the allegation of “profiling,” to be sufficiently similar to the same general set of facts now being asserted.

Target argues additionally that the instrumentality differs in that the original complaint, plaintiff Hughes alleges the reason for her detention was wrongful or criminal conduct whereas the SAC now alleges the reason for her detention is her sex and/or race. The court does not believe the instrumentality to be different. In both pleadings, plaintiff Hughes alleges her injury is caused by Target employees who detained her. The Target employees’ conduct is the instrumentality; not the reason for their conduct. As such, the relation back doctrine applies and the allegations of the SAC relate back to the filing of the original complaint.

Plaintiff Hughes has not stated facts sufficient to state a claim for either intentional infliction of emotional distress or violation of the Unruh Civil Rights Act. Accordingly, defendant Target’s demurrer to the second cause of action in plaintiff Hughes’s SAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] is SUSTAINED with 10 days’ leave to amend.

III. Defendant Target’s motion to strike [portions of] plaintiff Hughes’s SAC is GRANTED, in part.

Defendant Target moves to strike the allegations concerning discrimination on the basis that they are time-barred. As it argued on demurrer, defendant Target argues the relation back doctrine does not apply to these amended allegations because they do not involve the same general set of facts and do not involve the same instrumentality. For the same reasons discussed above, the court does not find this argument persuasive. However, in light of the court’s ruling with regard to the demurrer, defendant Target’s motion to strike the discrimination allegations from plaintiff Hughes’s SAC is deemed MOOT.

Defendant Target contends plaintiff Hughes’s exemplary damage allegations remain deficient because they are based on conclusory allegations. Pursuant to Civil Code section 3294, punitive damages may be recovered “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” In G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 26 (Searle), the court wrote, “In California the award of damages by way of example or punishment is controlled by Civil Code section 3294, which authorizes that kind of award against a tortfeasor who has been guilty of ‘oppression, fraud or malice, express or implied.’” “Notwithstanding relaxed pleading criteria, certain tortious injuries demand firm allegations. Vague, conclusory allegations of fraud or falsity may not be rescued by the rule of liberal construction. When the plaintiff alleges an intentional wrong, a prayer for exemplary damage may be supported by pleading that the wrong was committed willfully or with a design to injure. When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.” (Id. at p. 29; internal citations omitted; emphasis added.)

“In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (Monge v. Superior Court (1986) 176 Cal.App.3d 503 citing Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6 – 7.)

In light of the court’s ruling on the demurrer, the only surviving cause of action against defendant Target is the first cause of action for general negligence which alleges nondeliberate conduct. Allegations of gross negligence do not suffice. There are no allegations that defendant Target intended to cause injury to plaintiff Hughes.

The conclusory allegations of malice and oppression found at paragraph EX-1 are similarly insufficient. At paragraph EX-2, plaintiff Hughes asserts defendant Target “intentionally hired and placed store personnel who would profiled and/or who would allow profiling, at all times relevant,” in contrast to the allegations in plaintiff Hughes’s first cause of action which state defendant Target was “negligent and/or grossly negligent in hiring and/or training of their security and management.” (Emphasis added.) As previously stated, the court does not recognize a cause of action for intentional hiring of an incompetent or unfit employee. Plaintiff Hughes cannot obtain exemplary damages simply by recasting negligent conduct as intentional conduct.

Accordingly, defendant Target’s motion to strike the exemplary damages from plaintiff Hughes’s SAC is GRANTED.