Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Mark V. Mooney, Judge.
Fleming Gray, in pro. per, for Plaintiff and Appellant.
Gordon & Reese, Debra Ellwood Meppen, James B. Metzger, and Mollie Burks-Thomas for Defendants and Respondents.
CHAVEZ, J.
Plaintiff and appellant Fleming Gray (plaintiff) appeals the dismissal of his action against defendants and respondents Ye Olde King’s Head, Donald Tavey, Lisa J. Powers, Lynne Kerr, and Peter Dolan (collectively, defendants) after the trial court sustained, without leave to amend, defendants’ demurrer to plaintiff’s first amended complaint. We affirm the judgment.
BACKGROUND
Plaintiff alleges that on July 9, 2006, he was illegally asked to leave Ye Olde King’s Head, a pub and restaurant in Santa Monica, California. He claims that he was “dressed in a non-descriptive fashion” and “quietly sitting while reading a newspaper” on the patio of the restaurant when two unidentified individuals approached him, told him that he was “creating a disturbance,” and asked him to leave the premises. Plaintiff alleges that defendant Dolan subsequently confronted him and told him the same thing, adding that plaintiff would be arrested if he did not exit the restaurant immediately. Plaintiff alleges that he returned to the restaurant on July 10, 2006, and spoke with defendants Kerr and Powers at the counter near the entrance of the restaurant. Plaintiff alleges that he met with defendant Tavey on August 2, 2006, on the public sidewalk in front of the La Brea Bakery.
Plaintiff’s original complaint asserted causes of action against defendants for violation of the California Constitution (free speech and discrimination), intentional infliction of emotional distress, and defamation. Defendants demurred and moved to strike portions of the complaint. At a February 7, 2007 hearing, the trial court sustained the demurrer for failure to state facts sufficient to constitute a cause of action. The trial court gave plaintiff a detailed explanation of the deficiencies in his complaint and accorded him 20 days leave to amend to “clear up some of those problems.”
Plaintiff filed a first amended complaint alleging the same causes of action, and defendants again demurred. Following a hearing on May 3, 2007, the trial court sustained the demurrer without leave to amend. This appeal followed.
DISCUSSION
I. Standard of Review
“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of the several grounds of demurrer is well taken. [Citations.]’ [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) The legal sufficiency of the complaint is reviewed de novo. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.)
If the trial court sustained the demurrer without leave to amend, the reviewing court must decide whether there is a reasonable probability the plaintiff could cure the defect with an amendment. (Blank v. Kirwin (1985) 39 Cal.3d 311, 318.) If an amendment could cure the defect, the trial court abused its discretion and the judgment must be reversed; if not, no abuse of discretion occurred. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) The plaintiff has the burden of proving an amendment would cure the defect. (Ibid.)
II. Violation of the Unruh Act and Right to Free Speech
The trial court treated plaintiff’s first cause of action, for discrimination in violation of the California Constitution, as a claim for violation of the Unruh Civil Rights Act (Civ. Code, §§ 51, 52). The court then determined that the first amended complaint failed to allege that plaintiff was a member of any class protected from discrimination under the statute and on that basis sustained the demurrer. We find no error in the trial court’s ruling.
Civil Code section 51, subdivision (b) provides: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” The statute is intended to “create and preserve a nondiscriminatory environment in California business establishments by ‘banishing’ or ‘eradicating’ arbitrary, invidious discrimination by such establishments. [Citations.]” (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 167.)
Although the California Supreme Court has stated that the enumerated categories of discrimination prohibited by Civil Code section 51 are “illustrative rather than restrictive” (In re Cox (1970) 3 Cal.3d 205, 216), it has also cautioned against expanding the categories of prohibited discrimination beyond those enumerated in the statute unless the result is consistent with legislative intent. (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1156-1162.) To determine whether the Unruh Act should apply to a nonenumerated classification proposed by a plaintiff asserting a discrimination claim, the Supreme Court has imposed a three-part test that examines (1) the language of the statute, (2) the legitimate business interests of the defendants, and (3) the consequences of allowing the new discrimination claim. (Id. at pp. 1159-1169.)
Plaintiff does not allege that he comes within any of the categories enumerated under Civil Code section 51, nor does he claim to be in a nonenumerated classification that should be protected from discrimination under the statute. Plaintiff also fails to allege any discriminatory animus on the part of any of the defendants. His first amended complaint therefore fails to allege facts sufficient to state a cause of action for violation of the Unruh Act.
Plaintiff’s first amended complaint also fails to allege facts establishing any violation of his right to free speech under the California Constitution. The first amended complaint alleges that plaintiff was “dressed in a non-descriptive fashion” and “quietly sitting while reading a newspaper” on the restaurant’s patio when he was asked to leave the premises. There are no facts to support plaintiff’s claim that defendants’ actions abridged his freedom of speech.
The trial court did not err by sustaining the demurrer to plaintiff’s first cause of action for discrimination and violation of his constitutional right of free speech.
III. Intentional Infliction of Emotional Distress
Plaintiff contends the trial court erred by sustaining defendants’ demurrer to the cause of action for intentional infliction of emotional distress. “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. [Citation.]” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.) In order to meet the first element, the alleged conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” [Citation.]’” (Ibid.) “[T]he tort does not extend to ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ [Citations.]” (Id. at p. 496, quoting Rest.2d Torts, § 46, com. d, p. 73.)
Plaintiff has alleged no conduct by any of the defendants that meets this standard. Plaintiff asserts that defendant Dolan asked him to leave the restaurant for “creating a disturbance.” He claims that defendants Kerr and Powers “deceitfully encouraged” him “to incorrectly identify defendant Dolan as ‘Darwin.’” He alleges that defendant Tavey told him that he would investigate the July 9, 2006 incident and then subsequently advised plaintiff that the investigation confirmed Dolan’s version of the events. There is no allegation of extreme and outrageous conduct by any of the defendants. The first amended complaint thus fails to allege facts sufficient to state a cause of action for intentional infliction of emotional distress, and the trial court did not err by sustaining the demurrer as to this cause of action.
IV. Defamation
Plaintiff contends the trial court erred by sustaining defendants’ demurrer to his defamation cause of action. “Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage. [Citations.] Publication, which may be written or oral, is defined as a communication to some third person who understands both the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the public or a large group; communication to a single individual is sufficient. [Citations.]” (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1179.) Plaintiff alleges that on July 10, 2006, he “spoke with defendants Lynne Kerr and Lisa J. Powers in the area at the counter near the entrance to Ye Olde King’[s] Head.” He fails, however, to disclose the substance of that conversation. There is thus no allegation that defendants Kerr or Powers made any statement, much less one that was false, unprivileged, or injurious to plaintiff. Plaintiff alleges that “[d]efendant Tavey, on August 2, 2006, did ‘broadcast’ . . . several statements with actual malice in a public venue to a third and disinterested party.” Plaintiff again fails to specify the content of those statements or to identify the third party to whom they were communicated. Plaintiff alleges that defendant Tavey accused him, in e-mail communications, of committing acts of battery and extortion. Plaintiff does not allege, however, that these e-mails were sent to anyone else. Plaintiff alleges that defendant Dolan falsely accused him of “creating a disturbance,” but does not allege that Dolan communicated that statement to anyone but plaintiff.
The first amended complaint thus fails to allege facts sufficient to constitute a cause of action for defamation. The trial court did not err by sustaining the demurrer to that cause of action.
V. Denial of Leave to Amend and Other Arguments
Plaintiff fails to suggest how his first amended complaint can be amended to correct the defects noted above. The burden of proving a reasonable possibility of amending the complaint to state a cause of action “is squarely on the plaintiff.” (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) The trial court therefore did not abuse its discretion by sustaining the demurrer without leave to amend.
Plaintiff asserts the trial court was biased against him and in favor of defendants, and that the trial court’s rulings were arbitrary and inconsistent with applicable law. He offers no facts or argument to support these assertions, and the record discloses none.
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal.
We concur: BOREN, P. J., DOI TODD, J.