2018-00232022-CU-DF

Lambert Davis vs. John Krivavic

Nature of Proceeding: Hearing on Demurrer to Plaintiffs 2nd Amended Complaint

Filed By: Spinelli, Domenic D.

The demurrer of Defendants Sacramento Kings LP (Kings) and John Krivacic (Krivacic) (collectively “Defendants”) to the second amended complaint (SAC) is SUSTAINED without leave to amend.

Defendants’ request for judicial notice is GRANTED.

Defendants’ request for a monetary sanction pursuant to CCP § 128.5 is DENIED.

Overview

Plaintiff Lambert Davis (Davis) is suing Defendants for violation of the Unruh Civil Rights Act, CC §§ 51 and 52(a). Davis allegedly operates a company that produces and sells cheesecakes. He alleges that he sometimes provides individuals in professional athletics with cheesecakes in exchange for tickets to sporting events.

Davis, who is African-American, describes Krivacic as a Kings employee who currently

serves as the Assistant Golden One Box Office Manager, and who formerly served as the Raley’s Field Box Office Manager. According to Davis, when Krivacic worked at Raley’s Field, Krivacic wrongfully identified him as a ticket scalper. (SAC, ¶ 10.) Davis alleges that Krivacic was racially biased.

Davis now alleges that, motivated by the same racial bias, Krivacic is attempting to deter Davis from obtaining Kings tickets or providing them to his friends. Davis describes the following incident:

On Thursday evening, March 29, 2018, in the midst of protests against the police shooting of Stephen Clark, plaintiff Lambert Davis peacefully approached the Golden One Will Call to pick up two tickets with two VIP passes. Pacers’ point guard, Cory Joseph left the tickets for him. As Lambert Davis showed his driver[‘]s license to the female customer service representative who held his tickets, defendant John Krivacic reached over her shoulder, snatched the ticket envelope and riffled through the contents. After Defendant humiliated Plaintiff in front of the box office staff, the crowd and the police, he gave the tickets back to the female, who handed them to Plaintiff.

(SAC, ¶ 8.) Davis adds:

Defendant Krivacic’s conduct of intercepting tickets, which were legitimately left for Plaintiff at Will Call, then gesturing toward him as if he were on the premises for an illegitimate reason, followed the pattern and practice of Defendant’s conduct toward Plaintiff. Krivacic singled Plaintiff out from the crowd giving the appearance to bystanders that he was engaged in wrongful activity. No one else approaching the Will Call table was singled out as if they were doing something wrong.

(Id., ¶ 28; see also id., ¶ 34 [“Defendant’s intent is to exclude Plaintiff from Golden One Center because of his previously complaint of race discrimination”] and id., ¶ 29 [Defendants treated Davis differently than other customers because of his race].) Davis does not allege, however, that Defendants denied him access to any Kings game or refused to provide him with tickets. Based on similar allegations in the first amended complaint (FAC), the court sustained Defendants’ demurrer on grounds Davis had failed to allege an actual violation of the Unruh Act. Leave to amend was granted.

Discussion

Preliminarily, the court denies Defendants’ request for an order dismissing the SAC on grounds of untimeliness. Defendants assert that Davis did not file or serve the SAC by the court-imposed deadline of 10/12/18. Given the absence of prejudice, the court will not dismiss the SAC based on any untimeliness.

Turning to the merits, Defendants argue that Davis has still failed to allege the denial of full and equal accommodations, advantages, facilities, privileges or services required to state an Unruh violation. (See CC §§ 51, 52(a).) The court agrees. Davis still has not alleged that he was actually denied access or otherwise subjected to unequal treatment under the Unruh Act.

As he did in opposition the demurrer to the FAC, Davis cites Vaughn v. Hugo Neu Proler International (1990) 223 Cal.App.3d 1612. The court in that case decided that a plaintiff who was not a member of any statutorily protected class was nonetheless entitled to sue under the Unruh Act for commercial retaliation after she brought a case against the business under Unruh. Vaughn’s precedential value has since been questioned. (See Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 934-935; Gayer v. Polk Gulch (1991) 231 Cal.App.3d 515, 521.) But even if Vaughn is still good law, it is distinguishable. The plaintiff there was denied ingress to and egress from the retaliating business. (Vaughn, pp. 1615-1616.) Davis alleges no such denials.

Davis also cites Pizzarro v. Lamb’s Players Theatre (2006) 135 Cal.App.4th 1171, 1174, for the proposition that “the Act applies not merely in situations where businesses exclude individuals altogether, but also where treatment is unequal.” Pizzarro, however, involved discriminatory pricing. The case at bench involves no such business practice.

Because Davis has not demonstrated a reasonable likelihood he can cure his allegations, leave to amend is denied.

Disposition

The demurer is sustained without leave to amend; monetary sanctions denied.

No formal order is required.

Pursuant to CRC 3.1312, Defendants shall lodge a judgment of dismissal for the court’s signature.